REGINA v SHARON MAREE BUCHANAN [2004] NSWCCA 141

New South Wales Court of Criminal Appeal

CITATION : REGINA v SHARON MAREE BUCHANAN [2004] NSWCCA 141 HEARING DATE(S) : 6 May 2004 JUDGMENT DATE : 12 May 2004

JUDGMENT OF : McColl JA at 1; Levine J at 2; Hidden J at 17 DECISION : 1. Leave to appeal granted.; 2. Appeal dismissed.

CATCHWORDS : Criminal law - sentencing - s52A(4) Crimes Act 1900 - aggravated dangerous driving whilst under the influence of intoxicating liquor causing grievous bodily harm LEGISLATION CITED : s52A(4) Crimes Act 1900 CASES CITED : R v Dandachli [2004] NSWCCA 100 R v Whyte (2002) 55 NSWLR 252 REGINA (Respondent)

PARTIES : v

SHARON MAREE BUCHANAN (Applicant) FILE NUMBER(S) : CCA 60502 OF 2003 G I O Rowling COUNSEL : (Respondent)

S Kavanagh (Respondent) SOLICITORS : R Day (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/3387 FILE NUMBER(S) : LOWER COURT Sides DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60502 OF 2003

McCOLL JA LEVINE J HIDDEN J

Wednesday May 12 2004 REGINA v SHARON MAREE BUCHANAN Judgment 1 McCOLL JA: I agree with Levine J. 2 LEVINE J: The applicant seeks leave to appeal from a sentence imposed upon her by his Honour Judge Sides QC at Campbelltown District Court on 2 June 2003. The applicant was charged with aggravated dangerous driving under the influence of intoxicating liquor causing grievous bodily harm under s52A(4) Crimes Act 1900. The maximum penalty for the offence is 11 years imprisonment. 3 The sentence imposed by his Honour was imprisonment for 2 ½ years to commence on 2 June 2003 and to expire on 1 December 2005. His Honour fixed a non-parole period of 15 months to expire on 1 September 2004. His Honour also disqualified the applicant from obtaining a driving license for 3 years. 4 The offence occurred on 1 June 2001 and the circumstance of aggravation was constituted by what his Honour found to be, on the evidence of Dr Perl, a blood alcohol concentration in the range of 0.25 to 0.28. His Honour also accepted that the offender's driving ability would have been "very significantly impaired". 5 In brief, the facts of the driving incident were: at about 6.15pm on 1 June 2001 the applicant was driving a red Magna vehicle south along Gould Road at Eagle Vale. When approaching the intersection of Aquamarine Place it was necessary for her to negotiate a right, upward curve. As she did so she crossed the double unbroken separation lines and collided with a Falcon being driven in the opposite direction by the 19-year-old victim. 6 The applicant received from his Honour a 25 per cent reduction in penalty for the utility of her plea of guilty. There had been some "delay" in relation to that plea but his Honour quite properly gave her the full benefit of it as the delay was founded in a live issue as to whether "grievous bodily harm" had been suffered by the victim. 7 The principal ground of appeal is that his Honour erred in characterising the offence as involving "a very high degree of moral culpability". That his Honour should so find was inappropriate, it was submitted, by reason essentially of two things: the acceptance of the fact that the applicant was forced to her vehicle by acts of domestic violence and the concession by the Crown that the grievous bodily harm suffered by the victim was towards the lower end of the scale for the type of offence (permanent dental damage). 8 His Honour accepted the explanation that the applicant gave in the proceedings on sentence as to why she went to the car, namely to escape her boyfriend's violence. His Honour said, however, that that did "not explain her driving in that state". 9 His Honour went on to say that there was no evidence that the violent partner was pursuing her to the car, or that he attempted to get into the car or that he was attacking it in any way. His Honour was of the view that it did not fall to him to provide those details or to fill in what appeared to be gaps in the evidence. His Honour concluded that driving the motor vehicle in that state of intoxication involved a very high degree of moral culpability. 10 It was submitted that his Honour in coming to that view in the light of his findings represented some form of "conflict" in approach. On the one hand his Honour was accepting that there was what is in submissions said to be "significant mitigating circumstances" that would support a finding that the moral culpability was not very high, yet his Honour went on to find it. 11 I can say for myself that this submission completely misconstrues what his Honour in a very thorough and detailed judgment concluded. 12 The offence, since it was an aggravated offence, was more serious than the subject of the guideline judgment in R v Whyte (2002) 55 NSWLR 252 which was concerned with an offence against the provisions of s52A(1) and (2) of the Crimes Act. As the Crown argued, since the offence was not one involving a case of momentary inattention or misjudgement, the applicant had a high level of moral culpability and a custodial sentence was appropriately called for: see Whyte at para [214] per Spigelman CJ. I interpolate that during the course of submissions reference was made on behalf of the applicant to suggest that the crossing of the double line represented a level of "misjudgement" on the one hand or "mishandling" of the vehicle on the other. Whatever it was, it was clearly attributable to the applicant having between 0.25 and 0.28 grammes of alcohol per 100 millilitres of blood. The applicant was affected by an extremely high degree of intoxication. Conformably with what was said in Whyte (see Spigelman CJ at paras [215] and [216](iv)) a sentence more severe than imprisonment for 2 years was required. 13 The decision of this Court in R v Dandachli [2004] NSWCCA 100 (16 April 2004) is distinguishable by reference to the charges and the facts and does not assist the applicant. 14 I agree with the Crown's submission that it was open to his Honour to find that entering the car to avoid the violence of her partner was one thing, but did not constitute an explanation of why she drove it, no matter how short the distance, before the inevitable catastrophe occurred. 15 I am of the view that his Honour was correct in holding the applicant's moral culpability to be very high. The sentence imposed by him is unaffected by error. 16 I would propose that leave to appeal be granted but that the appeal be dismissed. 17 HIDDEN J: I agree with Levine J.