R v Gleeson [2000] NSWCCA 101

New South Wales Court of Criminal Appeal

CITATION : R v Gleeson [2000] NSWCCA 101 FILE NUMBER(S) : CCA 60145/99 HEARING DATE(S) : 20/03/00 JUDGMENT DATE : 20 March 2000

PARTIES : Regina v Jamie Paul Gleeson JUDGMENT OF : Abadee J; James J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/2136 LOWER COURT JUDICIAL Sides DCJ OFFICER :

COUNSEL : In Person - Applicant MC Marien - Crown SOLICITORS : - SE O'Connor - Crown

DECISION : Leave to appeal refused

IN THE COURT OF CRIMINAL APPEAL 060145/99 ABADEE J JAMES J Monday 20 March 2000 REGINA (NSW) v JAMIE PAUL GLEESON JUDGMENT

1 JAMES J: Jamie Paul Gleeson has applied for leave to appeal against sentences imposed on him in the District Court on 26 March 1999 by his Honour Judge Sides, after he had pleaded guilty to two charges of dangerous driving occasioning grievous bodily harm, an offence under s 52A (3) of the Crimes Act for which the maximum penalty is imprisonment for seven years. 2 On each of the two charges Judge Sides sentenced the applicant to imprisonment for two years, consisting of a minimum term of 18 months commencing on 26 March 1999, the date on which the sentences were imposed, and an additional term of six months, the two sentences to be served concurrently. The applicant was disqualified from holding a driving licence for a period of three years from 26 March 1999. 3 On 11 October 1997 the applicant had been the driver of a vehicle in which one of the victims, his stepbrother, was a passenger. The applicant lost control of the vehicle and it span into the path of a vehicle which was being driven in the opposite direction by the other victim. 4 The sentencing judge found that the causes of the accident were that the applicant was driving at an excessive speed, that the tyres of his vehicle had little tread on them, the applicant having been aware that at least one of the tyres had little tread on it, and that the applicant was under the influence of alcohol. 5 An analysis of a sample of the applicant's blood taken after the accident showed a blood alcohol concentration of 0.149 grams per 100 mls of blood. This blood alcohol concentration was just under a concentration of 0.15 grams of alcohol per 100 mls of blood, which, if it had been present, would have constituted circumstances of aggravation, with the consequence that the applicant would have been guilty of the more serious offence under s 52A (4) of dangerous driving causing grievous bodily harm in circumstances of aggravation. 6 The applicant's step-brother suffered serious orthopaedic injuries as a result of the accident. According to the evidence which was placed before the sentencing judge, the applicant's stepbrother sustained fractures to bones in both legs, both hips, his pelvis and one arm and he was hospitalised for six weeks. The driver of the other vehicle sustained head injuries, which required hospitalization for ten weeks. 7 The applicant was 25 years old at the time of the committing of the offences and 26 years old at the time he was sentenced. He had two relevant previous convictions, for driving with a low range prescribed concentration of alcohol in 1991 and 1995, for which he had been fined. 8 In his remarks on sentence his Honour noted that the applicant was entitled to credit for his pleas of guilty. His Honour observed, correctly, that he was entitled to take into account that, at the time of driving the vehicle, the applicant was under the influence of alcohol, even though the blood alcohol concentration was less than 0.15 grams per 100 mls of blood, so long as he did not treat the offences as examples of the aggravated form of the offence. His Honour accepted that the applicant was very remorseful. 9 His Honour referred to evidence that, as a result of the collision, there had been a breakdown in the applicant's relationship with his defacto wife. His Honour also found that the applicant was very fond of his young daughter by that relationship. 10 However, his Honour considered that the applicant, by driving while under the influence of alcohol and with knowledge that there was little tread on one of the tyres of his vehicle, had abandoned responsibility for his conduct and had, accordingly, placed himself outside the exceptional class of cases referred to in the guideline judgment of the Chief Justice in R v Jurisic (1998) 45 NSWLR 209 for which a custodial sentence is not required for an offence of dangerous driving occasioning grievous bodily harm. 11 His Honour considered the question of special circumstances but decided that the present case was not a case where in a two year sentence an additional term exceeding one third of the minimum term should be imposed. 12 The applicant has not been legally represented on the hearing of this application and has appeared for himself. In a letter written to the court the applicant stated that, since he was sentenced, his daughter has been taken from his partner and fostered out. On the hearing of this application, the applicant informed the court that his former defacto wife has herself been imprisoned. The applicant said that he wishes to be released from custody, so as to be able to play the role of father to his young daughter. 13 In my opinion the sentencing judge correctly applied what was said by the Chief Justice in the guideline judgment of Jurisic, especially at p 231. At p 231 the Chief Justice said, inter alia:- "In my opinion this Court should promulgate the following guidelines: 1) A non-custodial sentence for an offence under s52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment. 2) 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 term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional". 14 The sentencing judge was entitled to find that the present case was not an exceptional case within the guidelines promulgated by the court in Jurisic. It was not a case of momentary inattention or misjudgment. It was a case where aggravating factors were present to a material degree. 15 The sentencing judge took into the account the nature of the relationship between the applicant and his daughter. 16 In general this Court as a court of error is limited to considering the evidence which was before the sentencing judge and cannot have regard to evidence of events occurring since the sentencing. 17 In my opinion, leave to appeal should be refused. 18 ABADEE J: I agree. The order of the court is that as proposed by James J.