Regina v Stephen Joseph SCOTT [1999] NSWCCA 233

New South Wales Court of Criminal Appeal CITATION : Regina v Stephen Joseph SCOTT [1999] NSWCCA 233 FILE NUMBER(S) : CCA 60774 of 1998 HEARING DATE(S) : 6 August 1999 JUDGMENT DATE : 6 August 1999

REGINA

PARTIES : v

STEPHEN JOSEPH SCOTT JUDGMENT OF : Levine J at 1; Carruthers AJ at 20

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0578 LOWER COURT JUDICIAL OFFICER : Christie DCJ

R D Ellis (Crown) COUNSEL : P M Skinner (Applicant) C K Smith (Crown) SOLICITORS : T A Murphy (Applicant) CATCHWORDS : Criminal Law - sentencing - s 52A Crimes Act ACTS CITED : Crimes Act 1900 (NSW) CASES CITED: Regina v Jurisic (1998) 45 NSWLR 209 DECISION : See paragraph 19

IN THE COURT OF CRIMINAL APPEAL

60774/98

LEVINE J CARRUTHERS AJ FRIDAY 6 AUGUST 1999

REGINA v STEPHEN JOSEPH SCOTT

1 LEVINE J: The applicant, Mr Stephen Joseph Scott, seeks leave to appeal against the sentence imposed on him in the Sydney District Court by his Honour Judge Christie on 12 November 1998. 2 Upon the calling of the application on for hearing this morning, by reason of circumstances beyond the control of this Court and beyond the control of the applicant, Mr Scott was not present during the time Mr Skinner of counsel made his oral submissions to us in addition to the thorough written submissions that have been lodged. An opportunity has been forwarded to Mr Skinner now to confer with the applicant and one outstanding matter in relation to the applicant having surrendered his driver's licence has been clarified. 3 On 23 July 1998 the applicant pleaded guilty in the Local Court to a charge pursuant to section 52A of the Crimes Act, Dangerous Driving Occasioning Grievous Bodily Harm which carries the maximum of seven years imprisonment. The applicant was sentenced to a total term of four years imprisonment with a minimum term of two years commencing on 12 November 1998. The applicant had also been disqualified consequent upon the surrender of his licence from driving for a period of three years from 15 January 1998. 4 The facts of the matter as found by his Honour were: "The appellant was working as a bus driver and had been for some not insignificant period of time and had finished a night shift. During the morning of the day on which his shift finished he took himself to a club at Menai where he remained until about four o'clock. During that period of time he consumed a large number of schooners of Victoria Bitter beer, he thinks somewhere perhaps six to eight. Insofar as he would have an accurate recollection, I would be prepared to accept that that might be fairly close to the mark. He left the club obviously heavily under the influence of that beer. He travelled, before he eventually came to grief, as I shall hereafter describe, he travelled a distance along the road, on which the accident actually happened, of very nearly four kilometres and the statements of the various witnesses and the facts sheet submitted by the Crown paint a very disturbing picture of speed and dangerous driving involving, at very high speed, moving in and out of the two lanes of traffic heading in the same direction he was, tailgating other vehicles in an attempt to get around them and urge them out of his way. Eventually where the two lanes become one lane he was attempting, it would appear on all the facts, to overtake somebody, thought better of it, came back in and clipped the back of that car which led that car, of course, to go on the wrong side of the road and collide with another car and then another car became involved in the collision also. There was an estimate of speed given by one witness who eventually moved over to the left to let this prisoner past him, the estimate he gave was that the prisoner was driving at somewhere between 120 and 160 kilometres an hour as he went past him, that is when this particular driver pulled over to the left hand lane, in an effort to get out of his. The facts are so disturbing that one would spend a long time up here to see a worse set of facts. One of the drivers, of course, was (sic) occasioned very serious injury, that is Mr Helmers, who was the driver of the Toyota and he suffered a fractured pelvis, a fractured spine and a punctured lung. The breathalyser reading demonstrated 0.160 which, of course, is in the high range and demonstrative of a very significant intake of alcohol". 5 The following can be noted from his Honour's remarks. His Honour observed the objective circumstances of the offence to be serious and disturbing and save for the intervention of mitigating factors would have, upon conviction, been an offence to which he said he would have applied a sentence of about six years. 6 Secondly, his Honour gave the applicant full credit for his plea of guilty reflecting contrition and remorse. 7 Thirdly, his Honour gave the applicant credit by way of the allocation of an extended time for the additional term by reason of special circumstances. 8 His Honour was cognisant of the applicant's driving record reflecting two charges of negligent driving, failure to stop after an accident, exceeding the speed limit on three occasions, consuming liquor on the road, not making a turn with safety, failing to stop after an accident and including, I happen to note if I have understood it correctly, one offence as a pedestrian in November 1995. 9 The applicant complains of the sentence imposed, and the submissions on his behalf have been concerned with the operation of the guideline judgment of this Court in Regina v Jurisic (1998) 45 NSWLR 209. The nub of the complaint is that the circumstances of this case did not warrant in effect the doubling of the minimum total term of two years referred to by the Chief Justice in that guideline judgment for this particular offence. 10 It is argued that the fact of the four year sentence must indicate what is said to be a doubling-up of factors taken into account in reaching the guideline threshold of two years. There is, in my view, a risk that such a concept of doubling-up would neither conform with what the Chief Justice says in the passage cited below and could detract from the proper exercise of the still quite independently existing sentencing discretion his Honour the Chief Justice recognised. 11 The passage cited from the judgment of Spigelman CJ at 231B by counsel for the applicant is as follows: "The list of mitigating and aggravating factors, conveniently collected by Lord Lane CJ in R v Boswell and quoted above, are reflected in the judgments of this Court to which I have made reference. The presence or absence of these factors — and their degree — will determine the appropriate penalty. A survey of the authorities indicates that the following factors arise: (i) Extent and nature of the injuries inflicted.