Regina v Rayner

IN THE COURT OF CRIMINAL APPEAL 60115/2002

SMART AJ BLANCH AJ

25 June, 2002 REGINA v Mark RAYNER Judgment 1 BLANCH AJ: This is an application for an extension of time to appeal against a sentence imposed at Gosford District Court on 13 December, 2001. The applicant entered pleas of guilty to one count of aggravated dangerous driving occasioning death, contrary to s52A(2) of the Crimes Act which has a maximum penalty of fourteen years and also to one count of aggravated dangerous driving occasioning grievous bodily harm, contrary to s52A(4) of the Crimes Act which has a maximum penalty of eleven years. In respect of the first count, he was sentenced to six years, with a non-parole period of four years, the sentence to date from 12 December, 2001 and the non-parole period to expire on 11 December, 2005. On the second count, the applicant was sentenced to a fixed term of four years imprisonment to date from 12 December, 2001.

2 The events which gave rise to the sentences occurred just after midday on 9 June, 2000 on the Pacific Highway near Charmhaven. The applicant was travelling north in a motor vehicle and Mr. McCulloch, the victim of the second charge, was riding his motor cycle south. Mr. McCulloch saw the car hit the median strip and go on to its two passenger side wheels. It then continued over the median strip on to the wrong side of the road to end up almost at right angles to oncoming traffic. Mr. McCulloch's motor cycle struck the front passenger's door.

3 Mr. Galway, a neighbour and friend of the applicant, was a passenger in the front seat of his motor vehicle. As a result of the collision, he received multiple injuries and died. Mr. McCulloch received compound fractures to the right lower arm, radius and ulna; fractured right wrist, amputation to the top of his right index finger, fractured pelvis, fractures to his right knee, femur and tibia and multiple fractures to his right foot. He is having ongoing treatment and in particular, his left leg needs to be re-aligned and his right shoulder will require further surgery. The evidence of Mr. McCulloch about the accident was confirmed by Mr. Fyffe, who was travelling behind the motor cycle.

4 The applicant was unconscious after the accident. He received a closed chest injury with multiple rib fractures on the left side associated with a lung collapse and bleeding into the chest cavity. There was a fracture of his left clavicle and abdominal injuries with lacerations to the spleen requiring a splenectomy. He also received brain injury. An analysis of the applicant's blood returned a reading which Dr. Starmer said indicated his blood alcohol level at the time of the accident was between 0.270 and 0.294. The passenger who was killed had a blood alcohol reading of 0.250.

5 The applicant could not recall the circumstances leading up to the accident and did not even recall drinking. He gave evidence that Mr. Galway was a neighbour and friend and he was extremely upset by his death. He also said he was upset at the injuries caused to Mr. McCulloch and he apologised for causing those injuries.

6 The applicant was born on 16 October, 1962 and was 37 at the time of the accident. He was a police officer for 18 years until 13 June, 2001 when his position was terminated. Evidence was called that for three years prior to the accident he worked as a custody manager at Hornsby Police Station. He was hoping to work until he was 55 when he would obtain a superannuation payout of $350,000. By preserving his rights, his payout figure will now only be $120,000.

7 Evidence as to brain injury occasioned by the accident to the applicant came from a report of Dr. Sivewright who said that this caused the applicant ongoing memory difficulties and word-finding difficulties during speech. He is also said to have had an almost complete loss of libido and sexual function. At the time of the accident, the applicant was on a bond to be of good behaviour for three years from 28 January, 1999 on a charge of dangerous driving.

8 The challenge to the sentence is based on the assertion that the sentence is manifestly excessive. In R v Jurisic (1998) 45 NSWLR 209 at 231, Spigelman CJ said: "With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence … of less than three years (in the case of dangerous driving causing death) … should be exceptional." He went on to say: "The period of three … years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence." Included in the list of possible aggravating features were the extent and nature of injuries inflicted, the number of people put at risk, the degree of intoxication and erratic driving. 9 Those aggravating features appear to exist in this case and for that reason the sentence which should be imposed is obviously a significant sentence. The applicant's record was not in his favour, being on a bond for a driving offence and his plea of guilty was not at the earliest stage in the process. The plea was entered after a first trial was aborted and on the day the second trial was to commence.

10 All of these cases must be determined on their own facts but I note in R v Kaliti [2001] NSWCCA 268 an appeal against a sentence of five years, with a non-parole period of three years and nine months was dismissed. That sentence was for an offence of dangerous driving occasioning grievous bodily harm and the blood alcohol reading was 0.20. The appellant there was 30 with no prior history.

11 In R v Khan [2000] NSWCCA 454 an appeal against a sentence of four and a half years, with a non-parole period of three years, four months and fifteen days was dismissed. The offence was a less serious offence of aggravated dangerous driving occasioning grievous bodily harm. The blood alcohol reading at the time of the accident was between 0.200 and 0.210.

12 In R v Hill CCA (NSW) unreported 4 December, 1998, an appeal against a sentence of six years, with a three year non-parole period on a charge of dangerous driving causing death was dismissed. The applicant was a disqualified driver and had a blood alcohol reading of 0.113. The applicant was also physically injured and was described as psychologically devastated. His disqualification was for a high range PCA offence.

13 In R v Black CCA(NSW) unreported 23 July, 1998, the Crown appealed against a sentence of four and a half years involving a minimum term of two years and three months for aggravated driving causing death and a concurrent fixed term of two years and three months for an offence of aggravated driving causing grievous bodily harm. The Crown appeal was allowed and the respondent was sentenced to five years, including a minimum term of three years. The Court made it plain this sentence was a lenient one, given only because it was a Crown appeal. The blood alcohol reading was in the range between 0.120 and 0.135.

14 In R v McDonald CCA (NSW) unreported 12 October, 1998, the Crown appealed against a sentence of five years, involving a two year minimum term on a charge of aggravated dangerous driving causing death and to a sentence of three years involving a minimum term of two years on a charge of aggravated dangerous driving causing grievous bodily harm. The respondent's blood alcohol reading was 0.195. The two victims were in another car. The respondent had prior PCA offences. The Court of Criminal Appeal substituted a sentence of six years, including a minimum term of three years on the more serious count and a fixed term of two years and six months on the other count. Spigelman CJ particularly noted that was a sentence imposed as a result of double jeopardy considerations on a Crown appeal.

15 Having reviewed those cases and bearing in mind the general principles of sentencing in these matters, in my view there has been no error by the sentencing judge as to matters of principle. He has given appropriate consideration to the plea of guilty and to the finding that special circumstances exist. The sentencing judge was well aware the applicant was a police officer being sent to prison for the first time. At the end of the day in accordance with all of the authorities, the sentence imposed was well within the appropriate sentencing range. It was not manifestly excessive and I would propose the application for an extension of time to appeal be granted but that leave to appeal be refused.

16 SMART AJ: I agree. The orders of the Court will be as proposed by Acting Justice Blanch.

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