R v Dunlop [2001] NSWCCA 435

New South Wales Court of Criminal Appeal

CITATION : R v Dunlop [2001] NSWCCA 435 FILE NUMBER(S) : CCA 60253/01 HEARING DATE(S) : 5 October 2001 JUDGMENT DATE : 16 November 2001

PARTIES : Regina Henry Kendal Dunlop JUDGMENT OF : Wood CJ at CL at 1; Studdert J at 54; Bell J at 55

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0079 LOWER COURT JUDICIAL Blanch CJ DC OFFICER :

COUNSEL : L M Lamprati P Byrne SC SOLICITORS : S E O'Connor David Giddy & Associates CATCHWORDS : CRIMINAL LAW - appeals - Crown appeal against sentence - whether sentence manifestly lenient - dangerous driving causing death - dangerous driving causing grievous bodily harm - driving whilst intoxicated - whether there was an abandonment of responsibility on the part of the offender - whether sentence reflected moral culpability and seriousness of the offence - whether sentence of periodic detention properly available - error of law - whether court should intervene. Crimes Act 1900 ss 52A (1)(a), 52A(3)(a) LEGISLATION CITED : Crimes (Sentencing Procedure) Act s 44(2) Criminal Appeal Act 1912 ss 5D DECISION : Appeal allowed. Non-parole period increased.

IN THE COURT OF CRIMINAL APPEAL 60253/01 WOOD CJ AT CL STUDDERT J BELL J

FRIDAY 16 NOVEMBER 2001 REGINA v Henry Kendall DUNLOP

Judgment 1 WOOD CJ AT CL: this is an appeal by the Director of Public Prosecutions pursuant to S 5D of the Criminal Appeal Act 1912 in respect of a sentence imposed by his Honour Justice Blanch CJ of the District Court upon the respondent on 11 April 2001, following his pleas of guilty to one count of dangerous driving causing death, and to one count of dangerous driving causing grievous bodily harm, in both cases at a time when he was under the influence of intoxicating liquor. Those pleas had been offered in the Local Court, and they were accepted as having been made at the earliest practical opportunity. 2 The sentence imposed in respect of each count was one of imprisonment for three years from 11 April 2001, with non-parole periods in each case of twelve months to date from the same date. Such sentences were directed to be served by way of periodic detention commencing on Friday 20 April 2001. The statutory ratio between the non-parole period and the head sentence, was varied, his Honour said, because in the ordinary course of events, were the respondent to serve that sentence on a full-time basis, he would need extra supervision and support, coming from the background that he did, and going into a prison situation that he would have to go into. 3 To that reason I will return, since I have some difficulty in understanding how it could logically have provided the basis for a finding of special circumstances where the sentence imposed was not one involving full time detention. 4 The facts giving rise to the offences were the subject of an agreed statement which was accepted by his Honour, and which was in the following terms: "Both charges arose from a motor vehicle collision which occurred at approximately 9.20am on Sunday 25 June 2000 on the Jugiong Road via Harden. The prisoner is twenty-one years of age (DOB 15/6/79) and has no prior criminal history. At the time of the collision he was living and working as a horse trainer at the Garangula Polo Club which is located 19 kilometres south of Harden. During the evening and night of Saturday/Sunday 24 and 25 June 2000, the prisoner was drinking alcohol with friends at the Harden Rugby club, a local hotel and finally at the home of Mr. Jamie Parker. He was awake until approximately 3.00-3.30am and was described as being 'drunk but not blind drunk'. He had previously made arrangements for his motor vehicle (a white Holden Commodore utility registration number VDX238) to be left at the home of Mr Christopher Johnson which ensured that he would not be driving after he finished drinking. The prisoner slept at the home of Mr Parker for approximately five to six hours during which time he awoke and had a brief meal. Sometime prior to 9.20 am the prisoner was driven by Mr John Parker to pick up his vehicle from Mr. Johnson's home. At Mr. Johnson's home he ate an apple and then, after driving Mr. Parker to his home, drove to work. He was described at this time as appearing to be 'allright'. The total distance to be travelled by the prisoner that morning was approximately 20 kilometres. At about 9.20am the prisoner was driving south on the Jugiong Road some 3.6 kilometres from Harden approaching four mile creek bridge. There was a down hill gradient and a slight left curve. The prisoner's vehicle drifted into the northbound lane. At that time Luke Weston, with a passenger Zain Pearce (the deceased), was driving a red Holden Kingswood utility (registration number NSY288) in a northerly direction. Mr. Weston attempted to avoid a collision by swerving into the southbound lane whereupon Mr Dunlop swerved back into that lane. There was a collision between the front and front near side of both vehicles. The point of impact was about one meter from the centre lane in the southbound lane. It is probable that the prisoner fell asleep causing his vehicle to drift into the northbound lane. At the time of the collision visibility was good, the road was dry and in good condition and the traffic was very light. There is no evidence to suggest that prior to the collision the prisoner (i) was driving at an excessive speed or in an erratic manner; (ii) had any warning of falling asleep; (iii) ignored any warning; (iv) was engaged in competitive driving or showing off, or (v) had abandoned responsibility for his conduct. The prisoner was seriously injured in the accident and has no memory of the events immediately prior to or after the collision. The prisoner was however observed, in an injured state, to be doing all within his power to rescue and assist the occupants of the other vehicle. He sustained additional injuries during the rescue attempts The prisoner was taken by ambulance to Harden hospital and transferred to Woden hospital in Canberra. At 12.45pm a blood sample was taken which when analysed revealed 0.119 grams of ethyl alcohol per 100 millilitres of blood. At the time of the collision it is estimated that the alcohol level would have been not less than 0.126 grams per 100 millilitres of blood." 5 It may be noted that the passenger who lost his life and who was trapped in Mr. Weston's vehicle was an eleven-year-old boy, and that Mr. Weston suffered significant injuries in the accident, including a fractured sternum and a fractured pelvis. 6 The respondent also suffered several injuries including a fractured sternum, severe bruising from the seat belt, and lacerations to his face, knee, forehead, eyebrow and chin, as well as burns to his left hand and wrist sustained when attempting to extinguish the fire in the vehicle of Mr. Weston. 7 In sentencing the respondent, his Honour made reference to his prior clear record (save for some minor traffic matters) and to the significant number of references from his family and from people in the community who knew and worked with him, which had been tendered and which established that he was a person of excellent character. His Honour concluded, and the Crown does not seek to contravert this finding, that his subjective features were "as good as they could be". 8 The respondent was in fact twenty-one years of age at the time of the offences, and came from a respectable farming family with whom he had a good relationship. He had worked as a stockman in Northern Queensland and was employed, at the time of the offence, as a horse trainer at a polo club near Harden. He had been assessed as very remorseful for the offences, and to not have had a problem with alcohol or drugs, the offence on this occasion involving an over indulgence on a social occasion, which was not usual for him. 9 As a result of the destruction of the two vehicles involved in the accident, the respondent accepted a liability to repay to the financier of his vehicle and to the insurer of the other vehicle, a sum in the order of $28,000. Additionally, he was disqualified from driving for three years. 10 The Crown submitted that, having regard to the guideline judgment in R v Jurisic 45 NSWLR 19 and subsequent decisions, the sentences imposed were manifestly lenient. In particular, it submitted that: