New South Wales Court of Criminal Appeal CITATION : R v Khan [2000] NSWCCA 454 FILE NUMBER(S) : CCA 60230/00 HEARING DATE(S) : 27 0CTOBER 2000 JUDGMENT DATE : 27 October 2000 PARTIES : Regina Mark Anthony Khan JUDGMENT OF : Wood CJ at CL at 1; Whealy J at 24 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/51/0083 LOWER COURT JUDICIAL Kirkham DCJ OFFICER : COUNSEL : Ms P. Hock Mr. M Williams QC/Mr.Dailly SOLICITORS : S.E. O'Connor Watson, McNamara and Watt DECISION : Leave to appeal granted; Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60230/00 WOOD CJ at CL WHEALY J FRIDAY 27 OCTOBER 2000 REGINA v MARK ANTHONY KHAN JUDGMENT 1 WOOD CJ at CL: The applicant seeks leave to appeal against the severity of a sentence of imprisonment of four and a half years with a non-parole period of three years, four months and fifteen days that was imposed by his Honour Judge Kirkham following a plea of guilty to one count of aggravated dangerous driving occasioning grievous bodily harm. That is an offence which carries a maximum penalty of eleven years imprisonment. 2 The facts as found by his Honour were as follows: 3 Between 1am and 4.30am on Saturday 4 June 1998 the applicant was the driver of a blue 1992 Daihatsu sedan, which he drove in an easterly direction along Grafton Road, at a speed which his counsel this morning conceded was substantial. At a location about one and a half kilometres west of the Guyra/Ebor Road intersection, whilst he was negotiating a sweeping left-hand bend on the side of a hill, the vehicle he was driving crossed to the incorrect side of the road and side swiped the Armco railing, which was on the eastern road shoulder, for a distance of some thirty-nine metres. The vehicle continued past the railing for a further sixty-nine metres and teetered on the edge of a steep grassed embankment before leaving the roadway and travelling down the hill into a stock reserve. It then crashed through two large trees until it eventually came to rest in an open area of the reserve, about twelve metres off the roadway and 169 metres east of the point where the applicant initially lost control. In the vehicle were the applicant and Cueshi Aysha Woodward, who was in the front passenger seat. 4 The applicant was able to release himself from the vehicle and make his way back to the roadway where he signalled for assistance from passing motorists. Miss Woodward was trapped in the car and was eventually released by emergency services, suffering a severe injury to her lower left leg which later required a below knee amputation. She also suffered other injuries, including fractures of the femur, scapula, clavicle and cheekbone as well as cracked ribs and a contused lung. 5 The applicant suffered serious injuries himself which were initially treated at Dorrigo Hospital and later at Coffs Harbour Hospital where he was admitted for an extended period. A blood sample taken from him at Dorrigo Hospital at 5.40am indicated a reading of 0.182 grams of alcohol per 100 millilitres of blood. Ms Judith Perl, a forensic pathologist, estimated that the blood level concentration at the time of the accident would have been between .200 and .210 grams of alcohol for every 100 millilitres of blood. This was a significantly high reading. 6 It was submitted that his Honour misdirected himself when observing that, in the guideline judgment in Jurisic (1998) 45 NSWLR 209 that "with a plea of guilty wherever there is present, to a material degree, any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed) of less than three years in the case of dangerous driving causing grievous bodily harm, should be exceptional". 7 In fact the three-year sentenced mentioned in the guideline judgment related to a case of dangerous driving causing death. Where the offence was one of causing grievous bodily harm, the guideline noted that a sentence of less than two years should be regarded as exceptional. It may well be that the reference to three years in this passage was a slip of the tongue, having regard to his Honour's observation in the very next paragraph: "A period of two or three years once the threshhold of abandoning responsibility has been reached is a starting point." 8 That was similarly a quotation from Jurisic, a decision which clearly was at the forefront of his Honour's deliberations. However, since the earlier error is capable of exciting concern, in the case of the applicant, in case his Honour did misdirect himself, I consider it appropriate to grant leave to appeal to and to then review the matter upon its merits. 9 Having taken that course, and having given full weight to the subjective circumstances, and to the matters upon which Mr Williams addressed us this morning, I am unpersuaded that the sentence was too severe. 10 In Jurisic at 231 the Court observed that the appropriate penalty will depend upon the presence or absence of the following factors, namely: (i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or substance abuse. (v) Erratic driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit." 11 That statement of facts was not intended to be exhaustive (see Howland (1999) 104 A Crim R 273 at para 49. As Spigelman CJ continued in Jurisic: "Paragraphs (i) and (ii) focus on the occurrence whereas paragraphs (iii) to (ix) refer to the conduct of the offender. The presence of these latter factors may indicate that the offender has abandoned responsibility for his or her conduct." 12 The Chief Justice also noted, as did his Honour in the present case, that the periods of two years for cases involving grievous bodily harm, and three years for cases involving death, are starting points. "The presence of additional aggravating factors or their increased intensity will determine the actual sentence. Those are the principles by which this matter is to be reviewed." 13 The present case was one that involved very serious injuries. It was also one in which other road users could have been placed at risk. Fortunately, by reason of the hour of night, there was no immediate oncoming traffic. However, it could not be assumed that the road was tree of traffic. 14 Otherwise, several aggravating factors of significant intensity were present which established an abandonment of responsibility by the applicant. The degree of his intoxication was particularly high and the speed must have been significant for the vehicle to have travelled so far after making contact with the Armco railing. Additionally, it may be observed that this was a case where the applicant had a previous conviction for high range PCA, as well as other traffic offences, including two speeding offences, three not wear seat belt offences, and one offence of driving contrary to a give-way sign, all accumulated over the four and a half years preceding the present offence. 15 That record was such as to disqualify the applicant from any element of or any claim to leniency: Kalanj (1997) 98 A Crim R 505 at 509 per Ireland J. He clearly had a limited regard for his responsibilities as a motorist and the present was, in my view, a particularly serious offence of its kind. 16 Moreover, it is to be noted that the guideline in Jurisic was handed down in relation to offences involving dangerous driving causing death and dangerous driving causing grievous bodily harm for which the statutory maximum sentences are ten years and seven years respectively, being offences charged under s 52A(1) and (3) of the Crimes Act. The present, however, was a case of aggravated dangerous driving causing grievous bodily harm, for which the maximum sentence is one of imprisonment for eleven years under s 52(A)(4) of the Crimes Act. 17 In McKinney (1999) NSWCCA 51 at par 14, Spigelman CJ pointed out that the Jurisic guidelines "would need to be proportionately increased for the aggravated versions of the offences", arising in cases of death under s 52A(2) where the maximum available sentence is one of fourteen years, and in cases of grievous bodily harm where, as I have mentioned, the maximum penalty is one of imprisonment for eleven years. 18 It by no means follows as a result that his Honour set the bar too high since, as also emerged from Jurisic, the two years sentence for dangerous driving causing grievous bodily harm marks the point at which the Court would need to find exceptional circumstances to justify a lesser sentence. 19 Although the Judicial Commission statistics would tend to suggest that this case was certainly at the high end of the range, those figures are of limited value having regard to the small sample and the inevitable variation between cases. Reference to those statistics and also to decisions of this Court in Bicheno (1999) NSWCCA 148 and Errington (1999) NSWCCA 18 do not lead me to the view that the present sentence was excessive. 20 The subjective circumstances which his Honour identified, namely, the applicant's plea of guilty, his positive work record, the punishment that was self-inflicted through the injuries he sustained, his contrition and his drinking problem, were all carefully and sympathetically taken into account. They do not, of themselves, either singly or in combination, call for any further tempering of the sentence. 21 So far as the applicant had a claim to relative youth and good character, this, it has been pointed out, is of limited value in cases such as the present (see Musumeci NSWCCA 30 October 1997, cited with approval in McKinney and Jurisic). The reason for this lies in the importance of the sentence for such offences reflecting a significant element of general deterrence. 22 I am, for those reasons, unpersuaded that the sentence was excessive or that an error of law of the kind which would justify intervention of the Court, as that has been recently discussed by the High Court in Dinsdale (2000) HCA 54 was established. 23 I would grant leave to appeal but dismiss the appeal. 24 WHEALY J: I agree. 25 WOOD CJ at CL: The order of the Court will be as I have proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.