R v Hawkins [2000] NSWCCA 380

Reported Decision : [2000] 32 MVR 176

New South Wales Court of Criminal Appeal

CITATION : R v Hawkins [2000] NSWCCA 380 FILE NUMBER(S) : CCA 60626/99 HEARING DATE(S) : 11/08/00 JUDGMENT DATE : 11 August 2000

PARTIES : Regina- Crown Dean Alexander Hawkins- Applicant JUDGMENT OF : James J at 1; Dowd J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/3101 LOWER COURT JUDICIAL Ford DCJ OFFICER :

COUNSEL : Mr RD Ellis- Crown Mr R Hoenig- Applicant SOLICITORS : SE O'Connor- Crown DJ Humphreys- Applicant CATCHWORDS : Severity appeal - Aggravated dangerous driving occasioning death - Alcohol problem LEGISLATION CITED : Crimes Act 1900 (NSW). Crimes (Sentencing Procedure) Act 1999 (NSW) CASES CITED: GDR (1994) 35 NSWLR 376. R v Jurisic (1998) 45 NSWLR 29. DECISION : 1. Application dismissed; 2. Leave to appeal refused.

IN THE COURT OF CRIMINAL APPEAL

BRUCE JAMES J DOWD J

Friday 11th August 2000

N60626/99 REGINA v DEAN ALEXANDER HAWKINS JUDGMENT

1 BRUCE JAMES J: The Court is in a position to give judgment, and I will call on Dowd J to give the first judgment. 2 DOWD J: The applicant, Dean Alexander Hawkins, entered a plea of guilty to a charge of aggravated dangerous driving occasioning death, contrary to s52A(2) of the Crimes Act 1900 (the "Act"). The offence carries a maximum penalty of fourteen years imprisonment. His Honour Ford DCJ, imposed a minimum term of four years imprisonment, to commence on 15 June 1999 and to expire on 14 June 2003. His Honour imposed an additional term of one year to commence on 15 June 2003. The applicant was disqualified from holding a drivers licence for not less than four years. 3 The offence occurred on 28 February 1996, the applicant being arrested on 28 March 1996. He was conditionally bailed with conditions as to the non-consumption of alcohol. He failed to appear at the District Court for a trial in November 1996. A warrant was subsequently issued. He surrendered himself to Cronulla police on 16 September 1998, and was again granted bail conditionally. He then failed to appear and a further bench warrant was issued on that date, being 3 November 1998. He was arrested on 15 June 1999, and bail was refused. He has been in continuous custody since then. 4 The facts are that about 9 o'clock on 28 February, the applicant was driving his motor vehicle, a one tonne utility along The Kingsway, Woolooware. He had, at the time, a blood concentration which, in his favour, was not less than 0.216. The speed limit was seventy kilometres per hour, and the applicant was driving at least one hundred kilometres per hour. He collided with a Datsun 120Y sedan, which in turn collided with an unattended vehicle. 5 The applicant's driving at the time was certainly inappropriate in terms of the manner in which he drove, as well as being thirty kilometres over the speed limit. As a result of the collision, the driver of the other vehicle, an eighty-five year old man, died from critical injuries received. 6 On the day before the collision, the applicant spent a period of time at a hotel from 3pm to 8.30pm consuming, on the estimate given by himself, probably six schooners of beer and three Bourbon whiskey and cokes. The applicant had a previous mid-range PCA conviction in 1999, when he was disqualified from driving for twelve months and fined $500. He also had convictions for mid-range PCA, assault, speeding, and not wearing a seat belt. 7 The applicant, on sentence, was supported by a report from a counsellor and a pre-sentence report, together with a report of a drug and alcohol worker at the MRRC. At the time of sentence, the applicant was twenty-nine years of age, single, worked as a labourer and obviously had a significant alcohol abuse problem. He had a good family background until he left home, which is when the alcohol abuse started. Although he had been largely employed for all of his working life, the evidence was that on social occasions he would drink excessively. The applicant did not consider that he was significantly different from his peers. Apparently, there is a propensity for drinking. Since the collision, his relationship with his family has deteriorated. 8 The first ground of appeal was that the sentencing judge erred in the relationship between the minimum and the additional terms. The minimum term was eighty percent of the total sentence. There is no principle of law requiring the setting of less than one-third of an additional term. The submission is clearly unsound. As had been held in GDR (1994) 35 NSWLR 376, there is no restriction on a sentencing judge's discretion. GDR says that there may be circumstances in which it is appropriate to explain the length of an additional term where it is less than twenty-five percent of the total, but no general principle of law and certainly nothing in the legislation exists. 9 The legislation and indeed its successor, the Crimes (Sentencing Procedure) Act 1999, make it clear that the restriction is on reducing the minimum term or the non-parole period below three-quarters of the total sentence but not a relationship of three to one establishing any statutory period as such. To suggest that is a normal period where there is no special circumstance is, in my view, unsound, as in most cases that come before this Court, special circumstances of some sort are found. 10 There is a degree of argumentation about the setting of a period of supervision. Clearly, the applicant has an alcohol problem, but to suggest that it is better dealt with by artificially increasing the non-parole period of 365 days to 455 days, by adding three months to that year, and to suggest that is an error of sentencing discretion is not a sound basis for increasing the additional term. 11 The need for supervision is based on the need of the applicant, not on its relationship to a minimum term. If this had been a three year minimum and one year additional term, the logic of this ground would fail, even though the need of the applicant is the same. 12 It must be remembered that the period of supervision has a degree of artificiality about it, even if an additional term of only twenty-five per cent were imposed. This is because it relates to the totality of the sentence, not to the period of supervision needed. 13 This alcohol problem has been present for some time. It is going to require considerable work, whether he has supervision or whether he does not have supervision. However, the principle of general deterrence is in fact something which counsel for the applicant frankly acknowledges is something which the law indicated is necessary, and the courts have indicated for this sort of offence. 14 Turning then to the other ground of appeal, which is that it was manifestly excessive, in Regina v Jurisic (1998) 45 NSWLR 29, the guideline judgment which was thereby established, indicated that a minimum of three year custodial sentence is appropriate depending on the various factors listed by Spigelman CJ, at 231. These include mitigating as well as exacerbating factors. 15 Here the extent of the injuries, of course, were catastrophic- the degree of speed was severe; the degree of intoxication was well over four times the minimum permitted; the driving was erratic; and it is clear that the guideline intended to establish a norm of sentencing but indicated the exacerbating factors, several of which are present here. 16 In the light of the plea of guilty, being of limited utility in the facts and in the light of the criminal record which gives no comfort to the applicant, in my view the basis of the submission that the sentence was manifestly excessive has not been made out. I would in the circumstances consider that that ground of appeal fails and I would not grant leave. 17 BRUCE JAMES J: I agree with the judgment of Dowd J, and the orders of the court will be those proposed by His Honour. Leave to appeal is refused. oOo