REGINA v BEGBIE [2001] NSWCCA 206

Reported Decision : 124 A Crim R 300

New South Wales Court of Criminal Appeal

CITATION : REGINA v BEGBIE [2001] NSWCCA 206 revised - 31/05/2001 FILE NUMBER(S) : CCA 60854/00 HEARING DATE(S) : 1 May 2001 JUDGMENT DATE : 3 May 2001

PARTIES : REGINA v DYLAN BEGBIE JUDGMENT OF : Mason P at 1; Sully J at 52; Dowd J at 78

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/3100 LOWER COURT JUDICIAL Moore DCJ OFFICER :

COUNSEL : Crown: G Smith Respondent: B T Stratton QC SOLICITORS : Crown: S E O'Connor Respondent: Mark Rumore CATCHWORDS : Criminal law - sentence - Crown appeal - Crimes Act, s52A - home detention - relevance of forgiveness by victim's family DECISION : Appeal allowed.

IN THE COURT OF CRIMINAL APPEAL CCA 60854/00 MASON P SULLY J DOWD J

Thursday 3 May 2001

REGINA v Dylan BEGBIE

JUDGMENT 1 MASON P: The Director of Public Prosecutions appeals against the adequacy of a sentence imposed following a plea of guilty to a charge under s 52A(1)(a) of the Crimes Act 1900 (dangerous driving occasioning death when the driver was under the influence of intoxicating liquor). The maximum penalty is ten years' imprisonment. 2 The offence occurred on 11 December 1999 when the respondent was a little over seventeen and a half years of age. 3 The plea of guilty was entered at the Local Court on 7 July 2000. The respondent was thereupon committed for sentence and he appeared before Moore DCJ on 1 December 2000 at the Campbelltown District Court. The sentence, imposed on 2 February 2001, was eighteen months' imprisonment commencing on that date with a non-parole period of six months to be served by way of home detention. 4 At about 2.40 am on 11 December 1999 the respondent was driving north along Appin Road, Campbelltown. His vehicle collided head-on with a vehicle being driven in a southerly direction. The respondent's vehicle had crossed over a raised grass median strip in the middle of the road after he had failed to negotiate a slight left-hand bend in the road. The respondent had fallen asleep at the wheel shortly before the collision. 5 The eighteen year old driver of the other vehicle suffered extensive injuries and died in hospital that day. 6 The respondent was interviewed by the police on 17 February 2000. He and his girlfriend had been at the Novotel Hotel in Wollongong between about 7 pm and 12.30 am on the night in question. He drove her home to Currans Hill (which was a 40-45 kilometres journey) around 12.30 am and he returned to the Novotel briefly before driving home to Mount Annan, near Campbelltown at about 2 am. He started feeling 'a little bit tired.' He turned off the music in the car to be able to concentrate harder, but he fell asleep at the wheel. The window in the car was wound up and the air conditioner was set to a warm temperature. 7 The respondent could not recall anything until waking up in Liverpool Hospital the next morning. The accident occurred about ten minutes away from his home. 8 Driving conditions at the time were good. The traffic was light. The respondent said he was driving at approximately 70-80 kilometres per hour. The respondent told police that between 9 pm and 9.30 pm he had consumed two 600 ml bottles filled with a mixture of lemonade and around 20-25 mls of Vodka. He had mixed the drinks himself. He believed that the alcohol affected him 'to a mild amount' until around 10.30 pm - 11 pm. After that he felt 'reasonably well' and he did not believe that his consumption of alcohol affected his driving at all. 9 Under cross-examination in the sentencing proceedings the respondent agreed that just before he left for the final journey back to Campbelltown he also took "less than half a glass" of a mixture of Coca-Cola and a spirit which he could taste in the drink. He said that he stopped drinking when he tasted the alcoholic content. 10 Notwithstanding what the respondent said in his record of interview, the plea of guilty established that the respondent was driving under the influence of intoxicating liquor at the time of the accident. A blood alcohol reading taken at 3.40 am indicated a concentration of 0.087 gms of alcohol per 100 mls of blood. This meant that at the time of the collision the blood alcohol reading would have been between 0.1 and 0.113. According to the evidence of Dr Moynham these levels would cause a person's driving ability to be impaired. For a driver with 'P' plates the upper limit was 0.02. 11 The respondent has no prior convictions. He lives with his mother and stepfather. He completed the Higher School Certificate at seventeen. He had completed a cookery course at TAFE and had commenced work as an apprentice chef. 12 The respondent had been committed to the District Court for sentence. He came before Judge Moore on 1 December 2000. 13 A background report prepared by the Department of Juvenile Justice assessed the respondent as suitable for a community service order. This report was tendered along with several character references. The respondent gave evidence expressing his regret and his understanding about the consequences of his actions to the family of the young woman killed as a result of his irresponsible conduct. His mother gave evidence along similar lines. 14 There was tendered into evidence a letter from the deceased girl's mother in which she stated that she had no malice or anger towards the respondent and in which she felt deeply for the respondent and the burden he would have to carry. A similar letter from the deceased woman's younger sister was also tendered. 15 Following a short adjournment Judge Moore proceeded to give judgment ex tempore. He commenced his remarks by stating that: ... there must be a sentence of imprisonment, but I will direct that in your case you be assessed for serving the non-parole period by way of home detention. The sentence will be one of two years with a non-parole period of six months and whilst you will be convicted and I pass that sentence, I will adjourn the matter for the purpose of your being assessed for suitability for home detention. That will take some time, you will be at liberty while that occurs and then the matter will come back to this Court depending on the result of the home detention assessment. 16 His Honour set out the material facts. 17 He held that the alcohol contributed substantially to the drowsiness and that the respondent had some warning of his impending drowsiness although he turned off the radio in the car in an endeavour to concentrate on his driving. Such conclusions were clearly open. 18 Adverting to the guideline judgment in Regina v Jurisic (1998) 45 NSWLR 209 at 231, his Honour observed that the instant case contained two aggravating factors which he described as "alcohol and the length of driving during which people are exposed to risk". His Honour did not feel it proper to categorise the case as one of an abandonment of responsibility in the sense used by Spigelman CJ at 231. He described the offender as an inexperienced driver. 19 His Honour also observed that the respondent was an inexperienced drinker who had no means of measuring the amount of alcohol which he had. I pause to say that I have difficulty understanding the evidentiary basis for these remarks, especially given the evidence about the respondent mixing his own drinks; and the pre-sentence report from the probation and parole officer which said: Mr Begbie stated that he began drinking alcohol on a social basis when aged sixteen years. He indicated that he had a tendency to binge drink when in the company of friends, particularly during outings, although not on a weekly basis.