New South Wales Court of Criminal Appeal CITATION : R v McAskill [2000] NSWCCA 350 FILE NUMBER(S) : CCA 60637/99 HEARING DATE(S) : 09/08/00 JUDGMENT DATE : 9 August 2000 PARTIES : Regina William McAskill JUDGMENT OF : Dowd J at 1; James J at 19 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/3002 LOWER COURT JUDICIAL Ford DCJ OFFICER : COUNSEL : AM Blackmore- Crown R Burgess- Appellant SOLICITORS : SE O'Connor- Crown DJ Humphreys- Appellant CATCHWORDS : Sentence appeal - Aggravated dangerous driving occasioning grievous bodily harm - Guideline judgment - Blood alcohol level - Special crcumstances LEGISLATION CITED : Crimes Act 1900 Sentencing Act 1989 R v Gleeson (2000) NSWCCA 101. R v Jurisic (1988) 45 NSWLR 209. CASES CITED: R v Hallocoglu (1992) 29 NSWLR 67. R v Bo Too (Unreported, NSWCCA, 16 July 1992). R Brindley (1993) 66 A Crim R 204. DECISION : 1. Leave to appeal refused. IN THE COURT OF CRIMINAL APPEAL BRUCE JAMES J DOWD J Wednesday 9th August 2000 N60637/99 REGINA v WILLIAM McASKILL JUDGMENT 1 DOWD J : The applicant William McAskill, was convicted by Ford DCJ on 8 October 1999, at Campbelltown District Court, of two counts of aggravated dangerous driving occasioning grievous bodily harm, contrary to s52A(4) of the Crimes Act 1900 ('the Act'). For each offence the penalty is eleven years imprisonment. The applicant adhered to his plea of guilty. The applicant was sentenced to a minimum term of three years imprisonment, commencing on the date of sentence and to expire on 7 October 2002, with an additional term of one year imprisonment to expire on 7 October 2003. 2 The facts are that on the night of Saturday 11 July 1998, the applicant had drunk between ten and twelve schooners of beer before going home by taxi from the club where he was drinking. He was awakened at about 2.30am on Sunday 12 July 1998 by a work-mate, who asked him to fill in on a shift for him commencing at 4am. 3 Shortly after 4am on Sunday 12 July 1998, the applicant drove his Daihatsu tip-truck in an easterly direction on Stoney Creek Road, Bexley. He drove through an intersection which was controlled by a green light facing him. After passing the intersection, the applicant's vehicle drifted onto the incorrect side of the road, and into lane two for westbound traffic, for about fifty metres. Two young women were travelling in a car in lane two. The driver of that vehicle changed to lane one, then came back to lane two at a time when the applicant's vehicle turned sharply to the left, causing an impact and spinning the smaller vehicle around and on to the footpath, causing very severe damage to that vehicle. 4 The applicant was found to have a reading of .155 grams of alcohol in his bloodstream. Both the passenger and the driver of the other vehicle suffered a number of broken bones and other injuries, which required a long period of recovery. 5 The applicant has previous offences in relation to driving, a Children's Court offence relating to illegally using a motor vehicle and being an unlicensed driver. 6 More seriously, the applicant was convicted in 1985 for a mid-range PCA, in 1987 for a mid-range PCA, in 1990 for a low-range PCA and in May 1991 for a high-range PCA, as well as a driving whilst disqualified offence. 7 In a pre-sentence report before the sentencing judge, the evidence was that the applicant had terminated a personal relationship, which resulted in his drinking to excess at the time he committed the offence. Since then, he has had a stable and satisfactory relationship. 8 The applicant is employed as a roof plumber, who is a very hard and responsible worker. He was obviously highly thought of from the character evidence, and evidence that was given as to his hard work and responsibility before His Honour. 9 The applicant submitted that the sentence was manifestly excessive. The applicant referred to other cases which are not precisely similar to the present, R v Gleeson (2000) NSWCCA 101 being one. In Gleeson , the applicant had two prior convictions for low-level PCA, and he had driven with almost bald tyres. It was put that the PCA convictions were old, going back from 1985 to 1991, and it was suggested that His Honour made no mention of the circumstances under which the applicant came to be driving. 10 It is obviously to the applicant's credit that he took a taxi home after drinking ten to twelve schooners. The fact that a couple of hours later he would contemplate leaving home and putting himself in circumstances where he was likely to go to sleep again, as obviously appears likely to have happened, at the wheel, shows more than a bad error of judgment. 11 There is very little assistance that can be drawn from other cases of aggravated dangerous driving since the decision in R v Jurisic (1988) 45 NSWLR 209. That guideline judgment set out a number of factors, two of which focused on the occurrence, that is, the extent and nature of the injuries inflicted and the number of people put at risk. The balance referred to the conduct of the driver. 12 The sentencing judge in this case noted that the applicant's blood level reading was over three times the legal limit. It was submitted by the Crown, and in my view correctly, that His Honour saw that there was no useful comparison to be drawn from Gleeson . 13 There is no doubt that the fact of there being two persons injured exacerbated the gravity of the offence: R v Hallocoglu (1992) 29 NSWLR 67. In applying Jurisic , the nature and extent of the injuries sustained would contribute to the determination. 14 The repeat drink driving offences, albeit over a period of some years earlier, show that for a period of five years, there was a continuing disobedience of the law. I would dismiss that ground of appeal. 15 The further matters put were that His Honour did not disturb the relationship between the minimum and the additional term, and it was suggested that His Honour failed to consider that question: R v Bo Too (Unreported, NSWCCA 16 July 1992). It was put that this was the applicant's first term of imprisonment, and that he would need to re-establish himself in the community after a long period of incarceration, and that the applicant's pre-existing alcohol problems demonstrated his inability to cope. 16 What the applicant's history in fact shows, is that he did have an alcohol problem, but that he had learned to control it. However, on this occasion, he being wakened in an alcoholic state from sleep, did something contrary to what he would normally do, which was to get a taxi rather than drive whilst so affected. 17 In my view, the fact that it is the applicant's first custodial sentence does not constitute special circumstance. It is a circumstance. There is nothing special about it as that would inevitably cause everyone in their first offence to be entitled to such consideration and in that respect I refer to R v Brindley (1993) 66 A Crim R 204, being a decision of Hunt CJ at CL, saying it is desirable that there be a reference to s 5(2) of the Sentencing Act 1989, and where there is not there ought to be some examination of the facts. 18 There is, in my view, no case made out for the application of special circumstances in the particular facts. Therefore, this ground of appeal is not made out. I would, therefore, dismiss the application. 19 BRUCE JAMES J : I agree with the judgment of Dowd J. Leave to appeal is refused. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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