Regina v McKINNEY [1999] NSWCCA 51 | Case summary

1 SPIGELMAN CJ: This is a Crown appeal against sentence. The Respondent pleaded guilty to a charge of aggravated dangerous driving occasioning death, contrary to s52A(2) of the Crimes Act 1900. The maximum penalty for this offence is fourteen years imprisonment. 2 On 17 September 1998 Acting Judge Cantrill sentenced the Respondent to a period of imprisonment for three years to date from 30 September 1998 and to be served by way of periodic detention. His Honour did not vary the automatic period of three years of disqualification. 3 The accident occurred on 10 December 1997, at about 3.00pm in the afternoon. The Respondent was driving his Mazda table-top truck with a mesh cage on the back. He was driving on Henry Lawson Drive, Lansvale, in circumstances described by an officer of the Crash Investigation Unit in the following way: "A driver travelling in a northerly direction, the same direction as the defendant was driving would experience a sweeping righthand bend. The vision through this bend could be described as good. The driver would then experience an uphill grade to the crest of the hill where the roadway divides into four lanes where it joins the intersection of the Hume Highway and Woodville Road. … Drivers travelling in both directions would have had what is described as a good and unobstructed view of the roadway." 4 There were no cars travelling in the same direction as the Respondent in his immediate vicinity. However, there was oncoming traffic. A number of eye-witnesses gave evidence about what happened. One witness said: "When I first saw him, he was in the middle of lanes 1 and 2. I saw the truck veer sharply to his left from his position in the middle of both lanes. He appeared to be out of control and going too fast for the direction he was going to travel. I watched the truck drive straight across the road travelling north-west. He drove across a gravel breakdown lane and hit a wooden horizontal telegraph pole. I saw the truck become airborne over this pole and land on the grass on the other side, still going at speed and then saw the front of the truck hit a tree which came crashing down on top of him. I then saw the truck collide with another tree and come to a stop against this tree." 5 This witness' observations are consistent with the subsequent observations by police who attended the scene and gave evidence of what they saw. Another witness said this: "This truck was the only vehicle on the roadway at the time and there were no other vehicles to the front, rear or side of it. It appeared to be travelling very fast up the hill. I then saw the truck drive off the bitumen section of the roadway and onto the gravel. ... The truck just seemed to me to be going very fast up the hill. The first I saw of this truck was it hitting the gravel and I was concerned as to what he was doing. I then saw the driver of the truck turn the steering wheel to his right. This caused the truck to swerve back onto the bitumen section of the roadway and he was heading straight towards my vehicle. I touched the brake slowly and slowed down to a speed of about 40 kilometres per hour. I could see the driver look straight at me and my vehicle. He then turned his steering wheel sharply to the left with his right hand on the top of the steering wheel. This caused the tyres on the back of the truck to roll to the right side. This caused the truck to tilt to the right side towards me and I saw that the left front and the left rear wheels were off the ground. The truck avoided hitting me and I then saw it drive over the gravel edge of the roadway. It hit a wooden barrier which lay on the ground and drove over the top of it disappearing down a grassed embankment." 6 A third eye-witness said: "I then noticed a small white truck with a steel cage on the back in the distance. The truck was carrying large tyres on the back. The truck was on the gravel portion and swerving, it appeared to have lost control. The two lefthand wheels were on the gravel and the two righthand wheels were on the bitumen. ... The truck was swerving from side to side in the gravel and I could not see any reason for it leaving the bitumen surface of the roadway. The truck then got back onto the bitumen surface of the roadway and continued to swerve from left to right. At this stage I would say that the driver did not have proper control of the vehicle. The truck then started to head in our direction and my husband slowed the car down and moved to the left side of the roadway. The driver of the truck then swerved hard to his left and his truck drove away from us. The truck seemed to be uncontrollable at this stage." 7 It is plain from these eye-witness descriptions that there was a significant degree of impact on the Respondent's driving that was occasioned by his drinking prior to, and during the course of, his journey. 8 As a result of the accident his wife, who was a passenger in the vehicle, died. The tragedy of the occurrence is rendered more poignant than usual because the Respondent and the deceased were returning from a visit that morning to an alcohol rehabilitation centre in Redfern where the deceased had attended in order to begin a program to cure herself of her addiction. 9 From the time of his first interview with the police, the Respondent candidly admitted the extent of his drinking during the course of that morning. According to him he had one beer in a pub while waiting for his wife at Redfern. Subsequently, he and she had drunk scotch mixed with coke on the way home. 10 The results of consumption of alcohol were clear and when tested the Respondent had a blood alcohol concentration of 0.243 grams of alcohol per 100 millilitres of blood. According to expert evidence, which his Honour accepted, that reading is indicative of a blood alcohol concentration within the range of 0.166 to 0.282 grams of alcohol per 100 millilitres of blood at the time of the accident. 11 The expert evidence also indicated that within that range all persons would be under the influence of intoxicating liquor to the extent that there would be impairment of driving ability. The extent of that impairment is critically illustrated by the inability to control the vehicle in the way described by the eye-witnesses. 12 Sections 52A(7) and (9) establish that the prescribed concentration of alcohol for the purposes of that section and, accordingly, for the purposes of s52A(2), means a concentration of 0.15 grams or more of alcohol in 100 millilitres of blood. It is this level which triggers the aggravated offence under s52A(2) of the Act for which the penalty is fourteen years. This is in contrast to the maximum penalty of ten years for the offence of dangerous driving occasioning death, relevantly, under the influence of intoxicating liquor, where the prescribed concentration is not matched or exceeded. 13 The limitations on a Crown appeal are well known and need no repetition here. The Crown must identify adequate grounds for interference with the exercise of the discretion. Specifically, some error of principle must be identified. Sometimes, the sentence itself may be so inadequate as to manifest such error. The Crown submits that this is such a case. The Crown also identifies a number of other alleged errors in the course of his Honour's reasoning, specifically his Honour's failure to give weight to the principle of general deterrence. 14 Acting Judge Cantrill sentenced the Respondent on 17 September 1998. This was before a five-person Bench of the Court of Criminal Appeal handed down the decision in R v Jurisic on 12 October 1998. That decision established certain guidelines with respect to sentencing for the offence of dangerous driving under s52A. However, the relevant guidelines referred only to the lower level of the offence in ss52A(1) and (3) for which the maximum penalties were respectively ten and seven years. Those guidelines would need to be proportionately increased for the aggravated version of the offence under ss52A(2) and (4) for which the maximum penalties are fourteen years and eleven years. In the present case the relevant maximum was fourteen years. 15 Although his Honour did not have available to him the guidelines in Jurisic, the basic reasoning in Jurisic reflects a long line of prior authority in this Court indicating the need for a sharp upward movement in sentencing for this offence. His Honour did make reference to a number of these authorities, specifically R v Kalanj (1997) 98 ACrimR 505. He also outlined the principles propounded by Hunt CJ at CL in R v Musumeci (NSWCCA 30 October 1997) which were confirmed in Jurisic (supra) at 29-30. 16 In Kalanj the decision of the court was delivered by Ireland J with whom Gleeson CJ and Bruce J agreed. That case involved a charge of aggravated dangerous driving occasioning death in which the offender had a similar blood alcohol reading of not less than 0.16 grams of alcohol per 100 millilitres of blood as did the Respondent in this case. There were, of course, differences in the factual situations. The deceased was the driver of another vehicle. The trial judge had imposed a sentence of imprisonment of three years comprising a minimum term of eighteen months and an additional term of eighteen months. On appeal, and notwithstanding the principles restricting Crown appeals and the application of the doctrine of double jeopardy, this Court increased the sentence to a period of five years comprising a minimum term of two years and six months and an additional term of two years and six months. 17 Acting Judge Cantrill referred to Kalanj in the following terms: "The facts of that case have some similarities to this, although the offender was a much younger man. He was then thirty-one years of age. The Crown appeal in that case was allowed and the sentence of the Court of Criminal Appeal regarded as appropriate a sentence totalling five years imprisonment with a minimum term of two and a half years. Looking at the range of penalties, that seems to be what would be regarded in many circumstances as appropriate." 18 Notwithstanding this comment about the similarities with Kalanj, his Honour imposed a considerably more lenient sentence than that which was overturned by the Court of Criminal Appeal in Kalanj. 19 His Honour's reasons for doing so were based on subjective factors which he described as "extraordinarily strong". I do not see any basis for such a conclusion. The subjective factors in this case were not uncommon for this kind of offence. There was a substantial degree of cooperation with the police and the earliest possible admission of guilt. There was a substantial degree of remorse and the personal penalty for the accused of realising that he had killed his own wife. There was also a child of the deceased, not the Respondent's biological child but, nevertheless, a three-year old girl to whom he had assumed the role of a father. 20 The reports of an officer of the Probation and Parole Service and of a psychologist were generally supportive and are summarised in his Honour's reasons on sentence. It is not necessary to set them out again here. 21 The essential error of a legal character, which has led to the exercise of the discretion miscarrying, is his Honour's failure to give appropriate weight to the principles of general deterrence appropriate for sentencing for this offence. 22 The importance of general deterrence is one of the matters in the list from the judgment of Hunt CJ at CL in Musumeci which his Honour sets out. Notwithstanding this reference, it does not appear that the principle of general deterrence played any substantive role in his Honour's reasoning. In the course of his reasons his Honour said as follows: "Subjectively, it appears to me that there is very little that I can do to punish this man more than he has already no doubt punished himself by the grief and guilt that he has experienced in the last nine months since he caused the death of his wife. Objectively, of course, I must consider the attitudes, both of the community in general and the legislature, as to what is an appropriate penalty and, so far as I can take into account the subjective matters, the objectively appropriate penalty in this case." 23 Shortly before reaching his final conclusion and after his reference to the "extraordinarily strong subjective factors" his Honour said: "Nonetheless it seems to me that notwithstanding, the community needs to be made aware by these courts repeatedly perhaps if necessary that the courts do regard offences such as this as extremely serious and that a gaol sentence would normally be imposed without hesitation. I have taken the view that on the face of this particular case, that the community would not be outraged if I were to temper justice with a degree of mercy in Mr McKinney's favour." 24 His Honour's view reinforces the earlier reference he made to community attitudes. Community attitudes are reflected in the maximum penalties for which the legislature provides. See Jurisic at pp20-29. Nothing in this part of his Honour's reasons can be identified as a reference to the need for general deterrence. Nor can I see any other such reference. In my opinion, his Honour failed to give such deterrence appropriate weight. In any event, the overall sentence is manifestly inadequate in the relevant sense. 25 This was a clear case in which, by reason of the course of drinking that had occurred over a period of time and his continuing to drive during that period of drinking, the Respondent abandoned responsibility for his conduct and as a direct result a person was killed. Furthermore, in this case there was a significant number of members of the public who were put at risk. I refer particularly to two eye-witnesses who indicated that at a particular point of time they apprehended that the truck was travelling towards them. 26 The principle of double jeopardy means that the appropriate approach of resentencing by this court is to impose the least sentence that could properly have been imposed on the Respondent in the first instance, subject to any additional material properly before this court. In my opinion, the least sentence that could have been properly imposed required a significant period of full time imprisonment. On appeal, we must give full credit for the time already served in periodic detention. 27 Furthermore, in this case I find that there are special circumstances for the purposes of sentencing. In view of the fixed term his Honour imposed, his Honour did not need to turn his mind to this issue. There was evidence of the need for a lengthy period of rehabilitation for the purposes of ensuring that the Respondent overcame his alcohol problem. Furthermore, the principle of double jeopardy also involves a special circumstance, for the purposes of determining the relationship between the minimum and an additional term. 28 Three affidavits have been filed in the appeal and have been read to the court without objection. There are two affidavits by Catherine Ellis Red and one by the Respondent. It is plain from reading these affidavits that the Respondent has applied himself with some diligence to a process of rehabilitation in terms of the drinking problems that he plainly had. Furthermore, his desire to re-establish a relationship with the young girl to whom he had adopted the role of father is reflected both in his own affidavit and in the psychological report from Anita Lee Wen, the senior regional counsellor at Fairfield DOCS service, who has been assisting the Respondent in this regard. 29 These matters are relevant to be taken into account in determining the appropriate sentence and the relationship between the minimum and additional terms so that the process of rehabilitation, which is plainly under way, should not be interfered with. Nevertheless, a period of full time imprisonment is required in the present case. 30 Constrained as the Court is by the principle of double jeopardy, in my opinion, the appropriate penalty for this offence is a period of three years imprisonment comprising a minimum term of one year and six months and an additional term of one year and six months. 31 The orders I propose are: 1 The Crown appeal against sentence is upheld. 2 The sentence imposed by Acting Judge Cantrill is quashed. 3 The Respondent is sentenced to imprisonment for a period of three years to comprise a minimum term of one year and six months commencing on 30 September 1998 and expiring on 30 March 2000 on which date the Respondent is to be released on parole and an additional term of one year and six months commencing on 31 March 2000. 4 The Respondent is disqualified from holding a driver's licence for a period of three years from 30 September 1998. 32 ABADEE J: I agree. 33 ADAMS J: I agree but I would just like to add this brief comment. I do not think that this court would say that it is not appropriate to temper justice with mercy. What this court has said is that his Honour the learned sentencing judge went too far in favour of leniency in a way that overlooked the seriousness of the offence and the actual culpability of the Respondent and the requirements of general deterrence. 34 SPIGELMAN CJ: The orders of the court are as I proposed.

Regina v McKINNEY

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