NELSON, Cnantal Denise - CCA, 9.7.2004Grove, Dowd & Sperling JJCitation: R v Nelson  NSWCCA 231Conviction appeal.1 x aggravated dangerous drive causing death; 1 x aggravated dangerous drive causing GBH.Total of 6y with NPP of 2*y.Appellant was driving along a motorway with her
de-facto partner in the front passenger seat & 3 children in the rear seat. According to witnesses, the car was speeding at over 110 kph when it fishtailed & overturned. The
de facto partner died & one of the children suffered injuries amounting to GBH. A blood sample taken from the appellant shortly after the accident gave a reading of 0.194 grams of alcohol per 100 mls of blood. A police officer made a statement which claimed that when interviewing the appellant in hospital, she referred to one of the children's fathers & said "He might then come here and finish what I tried to do, kill myself." Appellant denied saying these words & testified that she said "my ex husband will come and kill me himself". She claimed that her
de facto had seized the steering wheel & that she was therefore not the driver of the car. She also relied upon the statutory defence that the harm was not in any way attributable to the fact that she was under the influence of alcohol (s.52A(8)
Crimes Act 1900). She gave differing versions as to who was in control of the car at the time of the accident.Aged 41 at time of offences - priors unknown.Whether miscarriage of justice in that evidence was received by the jury that should have been excluded - whether it was unfair not to exclude the comment made to the officer in the hospital, under s.90
Evidence Act 1995.Appeal dismissed.
The Guideline:(1) An ordinary case of the offence of high range PCA is one where:(i) the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;(ii) the offender was detected by a random breath test;(iii) the offender has prior good character;(iv) the offender has nil, or a minor, traffic record;(v) the offender's licence was suspended on detection;(vi) the offender pleaded guilty;(vii) there is little or no risk of re-offending;(viii) the offender would be significantly inconvenienced by loss of licence.
(2) In an ordinary case of an offence of high range PCA:(i) an order under s 10 of the
Sentencing Act will rarely be appropriate;(iii) a conviction cannot be avoided only because the offender has attended, or will attend, a driver's education or awareness course;(iii) the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification:(iv) a good reason under (iii) may include:(a) the nature of the offender's employment;(b) the absence of any viable alternative transport;(c) sickness or infirmity of the offender or another person.
(3) In an ordinary case of a second or subsequent high range PCA offence:(i) an order under s 9 of the
Sentencing Act will rarely be appropriate;(ii) an order under s 10 of the Sentencing Act would very rarely be appropriate;(iii) where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate.
(4) The moral culpability of a high range PCA offender is increased by:(i) the degree of intoxication above 0.15;(ii) erratic or aggressive driving;(iii) a collision between the vehicle and any other object;(iv) competitive driving or showing off;(v) the length of the journey at which others are exposed to risk;(vi) the number of persons actually put at risk by the driving.
(5) In a case where the moral culpability of a high range PCA offender is increased:(i) an order under s 9 or s 10 of the
Crimes (Sentencing Procedure) Act would very rarely be appropriate;(ii) where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than imprisonment of some kind, including a suspended sentence, would generally be inappropriate.
(6) In a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased:(i) a sentence of any less severity than imprisonment of some kind would generally be inappropriate;(ii) where any number of aggravating factors are present to a significant degree or where the prior offence is a high range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate.
HELD: (1) Where a "final sentence" for an indictable offence has been imposed by the Drug Court pursuant to s.12 of the
Drug Court Act 1998, the right of appeal is governed by s.5AF of the
Criminal Appeal Act 1912. This section provides that the appeal is to be heard by a single judge of the CCA. This approach was approved by the Court in
R v Ohar  NSWCCA 83 & also extends to summary offences where those offences were included in a single indictment along with indictable offences.
(2) Where an indictable offence was committed prior to an offender entering a Drug Court programme, but sentenced after entry to Drug Court programme, any appeal is governed by s.5(1)(c) of the
Criminal Appeal Act & the provisions of s.5AF relating specifically to appeals form the Drug Court do not apply:
R v Ohar followed. In those circumstances, the appeal must be heard by 2 or 3 judges of the CCA.
(3) Where any summary offence is sentenced by the Drug Court (other than summary offences included on an indictment with other indictable offences), the CCA has no jurisdiction to hear an appeal. The right of appeal in those circumstances is governed by s.5A of the
Justices Act 1902 & the appeal must be made to the DC.
NOTE: See alsoR v Rowley NSWCCA 388 andR v Rowley NSWCCA 390 for resolution of appeals against sentence.