R v ARDRON [2000] NSWCCA 412 | Case summary

1 HULME J: I will ask his Honour Barr J to deliver the first judgment. 2 BARR J: The applicant, Michelle Maree Ardron, seeks leave to appeal against a sentence imposed upon her for dangerous driving occasioning grievous bodily harm whilst under the influence of intoxicating liquor. She had pleaded guilty before a magistrate and on 3 March 2000 came before Garling DCJ for sentence. His Honour imposed a sentence of two years eight months imprisonment, comprising a minimum term of one year four months and an additional term of one year four months. In doing so his Honour took into account two further offences of being an unlicensed driver and self-administration of a prohibited drug, namely, marijuana. 3 The applicant was twenty-one years old at the time of the offence. Although she had had a provisional licence to drive a car, she was at the time of the offence unlicensed. She had virtually no driving experience. 4 On the day of the offence the applicant was in the company of a friend, who was driving her parents' car. They visited the applicant's sister and whilst there the applicant had some wine to drink. She consumed two large glasses of wine, described as middies or tumblers. 5 After they left that place they picked up two hitch-hikers, who sat in the rear seat. The car stopped in due course at a service station and the applicant got out. Although she had no intention when she was drinking of attempting to drive the car, she thought that it might be fun to do so. She asked whether she might drive and was given permission to do so. She knew that she was intoxicated. She drove the car for some few kilometres, sometimes exceeding the speed limit. Her friend asked her to slow down. The young man who was eventually hurt, one of the hitch-hikers, told her to pull in if she intended to keep on driving in that manner. 6 The speed limit on the road where the collision took place was eighty kilometres an hour. The applicant was driving at between eighty and ninety kilometres per hour. She tried to negotiate a bend, the advisory speed for which was fifty-five kilometres an hour. She lost control and the vehicle ran off the road and collided with a tree. 7 The hitch-hiker in the rear seat sustained acute abdominal injuries, a ruptured diaphragm, broken ribs and a punctured lung, which collapsed. He was taken to Shoalhaven Hospital but had to be air-lifted to Wollongong Hospital in a serious condition. The applicant's blood was demonstrated to contain .105 grams per 100 millilitres of blood. 8 It was submitted in this application that the sentence was excessive and wrong in principle. The first complaint was that his Honour erred in describing the applicant's blood alcohol content as an aggravating feature when the fact that the applicant was driving under the influence of alcohol was itself an element of the offence. In the passage of his Honour's remarks on sentence to which reference has been made, his Honour said this:- In these sort of sentences the Court is guided by a guideline judgment of the Court of Criminal Appeal, that being the judgment in R v Jurisic delivered on 12 October 1998 and I turn to that judgment. There were listed in there a number of factors which the Court had to look at. The first two are the extent and nature of injuries inflicted, the injuries were obviously serious; the number of people put at risk, the answer is four. Then the more important aspects when looking at sentencing, degree of speed, there was some speed but I have covered that. Degree of intoxication, there was a considerable degree of intoxication. Erratic driving, I am not prepared to find that. I am not prepared to find competitive driving or showing off. The length of journey is hard to know but it was not all that long. I am prepared to find there was some ignoring of warnings although that is not a significant factor in this, it appears that one of the boys asked her to pull over if she was going to keep driving, I assume at the speed she was, and she appeared to slow down a little. She was not escaping police pursuit. There were aggravating circumstances, that is the alcohol. The Court went on to say:- 'The presence of these later factors may indicate that the offender has abandoned responsibility for her own conduct. When the presence of such factors can be so described then it can be said to be present to a material degree for purposes of determining an appropriate sentence.' In my view there was in this case an abandonment of responsibility. The responsibility was abandoned in this way: Firstly, consuming an excessive amount of alcohol before driving. Secondly, knowing that she was affected by alcohol and her ability to drive would be affected by alcohol but seeking to drive a vehicle which she did not have to drive, which was being driven by someone else. Thirdly, seeking to do that in circumstances where there were two young hitch-hikers in the car. Fourthly, seeking to do that in circumstances that she knew she was an extremely inexperienced driver. Fifthly, to a degree, as I said a lesser degree, ignoring a warning and, lastly, driving at a speed which was not particularly excessive but under all those circumstances was excessive. I believe when all that is put together, even taking into account her immaturity, she abandoned responsibility for her own conduct. 9 There is an aggravated form of the offence of which the applicant was convicted - see s 52A(4) of the Crimes Act - but it is clear that his Honour did not regard the amount of alcohol the applicant had consumed as aggravating the offence in that way so as to attract a higher penalty. It seems clear that all his Honour was doing was considering point by point the matters referred to in Regina v Jurisic (1998) 45 NSWLR 209 as they affected the gravity of the case for sentencing purposes. (See the judgment of Spigelman CJ at 231.) 10 It was relevant for his Honour to consider the effect of alcohol as constituting an element of the offence. But the proper enquiry did not end there, for his Honour was also obliged to consider the degree to which the applicant was affected by alcohol in order to assess her criminality, and the amount of alcohol consumed was relevant to that enquiry. His Honour correctly drew attention to the blood alcohol reading. I detect no error of approach. 11 Then it was submitted that his Honour gave undue weight to a number of factors. First, that his Honour erred in remarking that the first way in which the applicant had abandoned her responsibility was in consuming an excessive amount of alcohol before driving, whereas it was not in dispute that the applicant had only been driving for a short time before the collision and that it was only after she had drunk the wine that she had formed the intention to drive. 12 I think the submissions made in this application concentrate rather too much on the detail of what was said without looking at the full sense of the sentence. It was quite obvious to his Honour that the decision to drive was not taken until after the applicant had ceased drinking and I take his Honour's reference to those circumstances. 13 It was further submitted that his Honour gave insufficient weight to certain matters, namely, that the applicant had little driving experience and had only driven for about half an hour before the collision, that she pleaded guilty, that she was genuinely contrite and shocked, that she was young and a person of prior good character and that her efforts at self-rehabilitation were genuine and apparently having some effect. 14 In my opinion these submissions have not been made good. His Honour referred to all the matters in respect of which complaint is made but nothing in the sentence leads me to believe that he gave them less than proper weight. In a careful judgment his Honour paid heed to the judgment of this Court in Regina v Jurisic and approached his task in a principled way. 15 I think that another error underlying submissions made to this Court rests in the assertion that Jurisic provides some sort of talisman or standard from which a sentencing Judge may not depart. It was submitted at one stage that the two years spoken of in Jurisic was some sort of a maximum sentence beyond which sentence could not be imposed without the presence of certain aggravating features. It should be understood that the case is a guideline. It is a case for the general guidance of sentencing Judges. It does not bind. It may be departed from in an appropriate case. 16 In my opinion his Honour correctly identified the aggravating factors to be taken into account, particularly the speed and manner in which the applicant drove and the number of people put at risk, in addition to those members of the public who were also put at risk. Bearing these matters in mind, together with the two minor matters his Honour took into account, and bearing in mind the indication given in Regina v Jurisic for a sentence in cases of this kind, the sentence imposed by his Honour was in my opinion well within the proper range of his Honour's sentencing discretion. 17 I would grant leave to appeal but would dismiss the appeal. 18 HULME J: I agree with the orders proposed and with his Honour's reasons. I would only add something further by way of reference to Jurisic. I do not understand that case as in any way dictating that in the circumstances there envisaged a Judge must impose a sentence of two years and no more. The indication that it was a guideline is an indication that it does not purport, except in the way in which it states, to circumscribe a Judge's discretion. This Court would have no authority to say that in every case in which the facts accorded with those of Jurisic that a two-years sentence and no other was the appropriate and only the appropriate sentence. 19 The order of the Court is that leave to appeal is granted but the appeal is dismissed. **********

R v ARDRON

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