R v Park [2001] NSWCCA 313

New South Wales Court of Criminal Appeal

CITATION : R v Park [2001] NSWCCA 313 FILE NUMBER(S) : CCA 60127/01 HEARING DATE(S) : 13 August 2001 JUDGMENT DATE : 13 August 2001

PARTIES : Regina Steven Park JUDGMENT OF : Wood CJ at CL at 18; Sperling J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/0006 LOWER COURT JUDICIAL Sorby DCJ OFFICER :

COUNSEL : W Flynn for the Applicant E A Wilkins for the Crown SOLICITORS : Marsdens for the Applicant S E O'Connor for the Director of Public Prosecutions CATCHWORDS : Criminal Law - Sentencing - s52A of Crimes Act - dangerous driving occasioning grievous bodily harm - no question of principle LEGISLATION CITED : Crimes Act 1900 (NSW), s52A CASES CITED: Jurisic (1998) 45 NSWLR 209 DECISION : 1. Leave to appeal granted; 2. Appeal dismissed; 3. So much of the sentencing order framed as recommending the applicant's release is varied to direct the applicant's release.

- 5 -IN THE COURT OF CRIMINAL APPEAL

Monday 13 August 2001

WOOD CJ at CL SPERLING J

60127/01 Regina v Steven Park

Judgment

1 SPERLING J: On 25 December 1999 the applicant lost control of the vehicle he was driving. The vehicle collided with another vehicle and then with a tree. Two passengers in the appellant's vehicle were injured. 2 The applicant was charged with two offences under s 52A(3) of the Crimes Act 1900, one charge in respect of each of the persons injured. The charge, in each case, was that the vehicle driven by the applicant was involved in an impact occasioning grievous bodily harm, and that the applicant was, at the time of the impact, driving the vehicle under the influence of intoxicating liquor. The maximum penalty for an offence under s52A(3) is imprisonment for seven years. 3 The applicant pleaded guilty to each charge. 4 The applicant's speed was not substantially over the limit for the area, but he had been drinking and was plainly intoxicated. According to the police officer's evidence concerning the applicant's apparent condition at the scene of the accident, the applicant's eyes were glazed and blood shot, he was uncoordinated and his breath smelt strongly of alcohol. When interviewed by the police, the applicant described his condition as being "fairly drunk". When giving evidence at the sentencing hearing he agreed, in cross-examination, that when he got into the car he "felt drunk". Asked whether he considered, at that time, that he should not drive, his answer was, "Just the spirit of the moment with my friends." 5 The appellant's blood alcohol level at the time of the event was not less than 0.148 and not more than 0.170 grams of alcohol per 100 ml of blood. Within that range, all persons would be under the influence of intoxicating liquor to the extent that there would be impairment of driving ability. That was the uncontradicted expert evidence. 6 There is some suggestion, on the material before this Court, that two further offences were taken into account on Form 1. However, there is no reference to any such offences in the remarks on sentence, and it appears that the offences referred to were "back up" charges with which the Crown has not proceeded. Accordingly, I put that aspect of the matter out of account. 7 The applicant was sentenced to imprisonment for two years with a non-parole period of one year. 8 The following guidelines were promulgated in Jurisic (1998) 45 NSWLR 209 at 231 so far as is material. (1) A non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases of momentary inattention or mis-judgment. (2) With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, the custodial sentence (minimum plus additional or fixed term) of ….. less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional. The Chief Justice referred to degree of intoxication as an aggravating factor for the purpose of guideline (2). The degree of intoxication, he said, may indicate that the offender abandoned responsibility for his conduct, in which case that factor could be said to be present to a material degree. 9 The sentencing judge found that the degree of intoxication in the present case indicated that the applicant had abandoned responsibility for his conduct. That finding was not challenged here and could not have been. 10 Accordingly, the sentencing judge was correct in treating Jurisic guideline (2) as applicable. 11 The applicant does not submit that there was any error in the factual findings made by the trial judge. It is submitted, however, that his Honour failed to give sufficient weight to subjective factors, and, in particular, that this would be the applicant's first time in prison. 12 It was also submitted that his Honour had failed to take into account that the passengers were not innocent bystanders, but had entered the applicant's vehicle apparently in full knowledge of the applicant's condition. 13 There were very strong subjective factors in favour of the applicant in this case, but it is not exceptional that this offence is committed by young men of otherwise unblemished character. That this would be the applicant's first time in prison is not exceptional for this offence. That those injured had, or may have had full knowledge of the applicant's condition is not exceptional. These considerations in combination are not exceptional. 14 The Crown submitted that there was no evidence to support a finding that the injured persons were fully aware of the applicant's condition and that, if they were, that is an irrelevant consideration. It is unnecessary to decide those issues because, as I have said, such a consideration alone or in combination with other factors does not make this case exceptional. 15 The sentence of two years imprisonment was as lenient as a sentence could have been, conformably with the guidelines in Jurisic. 16 The non-parole period of one year represented a generous reduction for special circumstances relative to the provisional statutory formula. There was no error in the exercise of the judge's discretion in not being more generous in that regard than he was. 17 I would grant leave to appeal in this case, but would dismiss the appeal. In doing so I would draw attention to the last sentence in his Honour's remarks on sentence in which his Honour said that he recommended the applicant's release at the expiration of the non-parole period. His Honour should have directed release at that time which will be the applicant's entitlement in view of the duration of the sentence. 18 WOOD CJ at CL: I agree. The order of the Court will be as Sperling J has proposed, varying so much of the sentencing order in terms of the recommendation. It will be replaced by an order directing the appellant's release at the expiration of the of the non-parole period. -o0o-