R v BURKE [2002] NSWCCA 456

New South Wales Court of Criminal Appeal

CITATION : R v BURKE [2002] NSWCCA 456 FILE NUMBER(S) : CCA 60286/02 HEARING DATE(S) : 13 November 2002 JUDGMENT DATE : 13 November 2002

PARTIES : Regina Wayne Allen BURKE (Applicant) JUDGMENT OF : Wood CJ at CL at 1; Dowd J at 2; Bell J at 29

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/31/0349 LOWER COURT JUDICIAL English DCJ OFFICER :

COUNSEL : P Power (Crown) SOLICITORS : Conditsis & Associates (Applicant) S E O'Connor (Crown) CATCHWORDS : Sentence appeal - dangerous driving occasioning greivous bodily harm - deliberate and grave conduct - no automatic full discount. Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedures) Act 1999 Road Transport (General) Act 1999 R v Jurisic (1998) 45 NSWLR 209 CASES CITED: R v Khatter [2000] NSWCCA 32 R v Whyte [2002] NSWCCA 343 R v Muscumeci NSWCCA (unreported, 30 October 1997) 9 DECISION : Leave to appeal granted; appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 060286/02

WOOD CJ at CL DOWD J BELL J

Wednesday 13 November 2002 REGINA v WAYNE ALLEN BURKE Judgment 1 WOOD CJ at CL: I agree with Dowd J. 2 DOWD J: The applicant entered a plea of guilty before English DCJ at Gosford on 15 March to a charge of dangerous driving, occasioning grievous bodily harm contrary to s52 A (3)(c) of the Crimes Act 1900 ("the Act") which carries a penalty of seven years with an automatic disqualification for up to three years with a minimum of one year under s25 (1) of the Road Transport (General) Act 1999. 3 The applicant was sentenced to imprisonment for eighteen months commencing 9 May 2002 expiring 8 November 2003 with a non-parole period of thirteen months and two weeks her Honour directing release to parole on 22 June 2003 with a twelve months driving disqualification commencing 9 May 2002. 4 The plea of guilty was entered leaving, somewhat unusually, one fact still to be determined and there was a contested hearing on that particular fact relating to an allegation by the police that the applicant was involved in drag-racing. 5 The facts are that the applicant at 8.15 on Wednesday 18 October 2000 attended a service station at Langford Drive, Kariong. There was an issue about whether the applicant asked friends to go for a drive but, in fact, the vehicle that he drove had three passengers. 6 The applicant was a learner-driver but was not in the company of a licensed driver. The applicant accelerated his vehicle to about eighty kilometres per hour and overtook a vehicle on the wrong side at about that speed. The applicant pulled his vehicle back onto the correct side of the road then lost control, hitting a gutter, mounting the grass verge, colliding with a power pole, a rock wall and a small tree. By the time the police and ambulance arrived, all occupants of the vehicle were outside the vehicle. 7 The applicant and two of the passengers, Sarah Turnbull and Christian Marf, were taken to hospital. The applicant having sustained minor injuries was then released. He was found to have a reading of .090 grams of alcohol per hundred millilitres when analysed. 8 Ms Turnbull sustained severe facial lacerations which required plastic surgery. She suffered fractures to her pelvis which were treated by way of bed rest. She may require revisionary surgery on her facial scarring. She had, at the time of the hearing of the sentencing, obvious scarring to her face which her Honour the learned sentencing judge could discern. 9 The applicant admitted, in an electronic interview, to drinking prior to the collision and to driving at eighty kilometres an hour in what he said was a sixty kilometre zone. The speed signs, however, showed fifty kilometres per hour. 10 Her Honour found at the end of the hearing, contrary to the evidence given by the applicant, that another vehicle did drive past his vehicle and that he overtook that vehicle driving in such a manner as to cause one of his passengers to brace himself with his seat belt and Ms Turnbull to call out to him to slow down. Her Honour found that the road was wet, and that the road surface was rough. 11 Her Honour found that the applicant, being inexperienced in wet weather, drove in a manner dangerous to the passengers in his vehicle and other users of the road. She found that he was a learner-driver and not accompanied by a licensed driver. She found that he drove at a speed at least eighty kilometres faster than the speed limit and that he had .090 grams of alcohol in a hundred millilitres of blood. Her Honour accepted that, at the time of the collision, his blood concentration would have been in the range of 110 grams per hundred millilitres and .139 grams per hundred millilitres and her Honour found that at least 110, he had not eaten since lunch, he had consumed three full-strength schooners of beer in the space of forty minutes and that when he walked out into the fresh air and had a cigarette he was dizzy. 12 The applicant alleged in his evidence before her Honour that the dizziness had been caused by the cigarette, which submission was rejected by her Honour who found that the dizziness was caused by the alcohol. 13 Her Honour found that he ought not to have driven the vehicle, that he knew he ought not to drive with passengers when he had been drinking and her Honour made a finding that the decision on the night of the accident was an abandonment of responsibility.