The New South Wales Court of Criminal Appeal in its recent judgment in the case of Rummukainen v R [2020] NSWCCA 187 (Rummukainen) has held that for the purposes of sentencing the guilty for the crime of dangerous driving that occasioned death, it was not an error for the sentencing judge to take into account the impairment caused by alcohol consumption, even though the Crown had not proved beyond reasonable doubt that the guilty person’s blood alcohol concentration at the time of the collision was greater than the prescribed level.

The above essentially means that the Court can consider consumption of alcohol and presence of alcohol in the blood as factors to determine the quantum of punishment for the crime of dangerous driving occasioning death, regardless of the fact that blood alcohol level is below the prescribed limit. Before we understand the implications of this judgment, let us examine the law that deals with dangerous driving occasioning death.

THE LAW

Section 52A (1) of the Crimes Act 1900 (Crimes Act) sets out the offence of dangerous driving occasioning death. It reads as follows:

(1) Dangerous driving occasioning death

A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle:

(a)  under the influence of intoxicating liquor or of a drug, or

(b)  at a speed dangerous to another person or persons, or

(c) in a manner dangerous to another person or persons.

What must the police/prosecution prove?

The police/prosecution must prove each of the following beyond reasonable doubt:

1. Death was occasioned to any person through any of the following:
   1. An impact between the person and the vehicle
   2. The vehicle overturning or leaving a road while the person is being conveyed in or on that vehicle;
   3. An impact between any object and the vehicle while the person is being conveyed in or that vehicle.
   4. An Impact with anything on or attached to the vehicle;
   5. An impact with anything that is in motion through falling from the vehicle
   6. At the time the vehicle was being driven by the accused either under the influence or intoxicating liquor, under the influence of a drug, at a dangerous speed

What is the maximum punishment prescribed for the crime?

The maximum punishment prescribed under the law for this crime is imprisonment for 10 years. However, this punishment is rendered for the most serious of offences.

Guideline judgment regarding sentencing in dangerous driving occasioning death

In addition to the provision of the Crimes Act  stated above, a guideline judgment lays down certain factors to be considered for the purposes of sentencing for the crime under the section.

The case of R v Whyte (2002) 55 NSWLR 252 (“Whyte”), is the longstanding guideline judgment for Section 52A of the Crimes Act. The Court of Appeal in Whyte stated that custodial sentence, i.e imprisonment or other forms of detention, will usually be appropriate for the crime of dangerous driving occasioning death unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement while driving. Further, the Court laid down eleven aggravating factors which sentencing judges should take into account in sentencing for dangerous driving causing death. They are as follows:

1. Extent and nature of the injuries inflicted
2. Number of people put at risk
3. Degree of Speed
4. Degree of intoxication or of substance abuse
5. Erratic or aggressive driving
6. Competitive driving or showing off
7. Length of the journey during which others were exposed to risk
8. Ignoring of warnings
9. Escaping police pursuit
10. Degree of sleep deprivation and
11. Failing to stop.

Among the list of aggravating factors mentioned above, the Court stated that items 3 to 11 related to moral culpability of an offender. The level of moral culpability is relevant in determining the objective seriousness of the offence.

What is Objective Seriousness of the Offence?

The High Court held in Muldrock v The Queen (2011) 244 CLR 120 (“Muldrock”)  that “objective seriousness” of an offence is the determination of the seriousness of the offence wholly by reference to the offending without reference to matters personal to the offender or class of offenders.

THE CASE OF RUMMUKAINEN

With the understanding of the position of law and implications of the guideline judgment mentioned above, we will now delve into the judgment of the New South Wales Court of Criminal Appeal in the matter of Rummukainen v R [2020] NSWCCA 187.

Facts

Risto Rummukainen (Risto), was sentenced by the District Court in 2019, having been found guilty by a jury of one count of dangerous driving occasioning death of Mr. Alexander Henry at Bellmount Forest. A sentence of imprisonment for 3 years, with a non-parole period of 18 months was rendered. Subsequently, Risto filed an appeal to the Court of Criminal Appeal on the ground that the sentencing judge erred in taking into account the applicant’s consumption of alcohol prior to the collision, in circumstances where the Crown was not able to prove beyond reasonable doubt that Risto’s blood alcohol concentration at the time of the collision was greater than the prescribed limit.

Issues

The Court of Appeal granted leave to the appeal filed and delved into the question posed by Risto. It noted that the appeal filed had three particulars:

First, the expert evidence before the sentencing judge in the District Court was not clear enough to firmly conclude that Risto’s blood alcohol level was above the prescribed limit. Although, the sentencing judge stated that he could not determine to what degree Risto’s driving skills had been impaired by the alcohol consumption, he concluded that the expert evidence provided was sufficient to conclude that Risto was impaired to some extent as a result of consumption of alcohol. In this regard, the sentencing judge placed the offence at below the mid-range of objective seriousness but above the low range.

Second, the sentencing judge noted that Risto had no significant previous criminal record, however, did not consider it a ground for leniency in this case. This was because of one drink driving offence committed by Risto previously, especially when the facts were that Risto was drinking prior to drinking on the day of the offence.

Third, the sentencing judge concluded that general deterrence was a significant factor when sentencing for the offence of dangerous driving occasioning death, even where it cannot be found beyond reasonable doubt that the offender was above the legal limit. The sentencing judge stated that sentences imposed for this type of offence must constitute a real deterrent.

Arguments

The counsel for Rito argued before the Court of Criminal Appeal that the sentencing judge was not permitted to take into account evidence about Rito’s impairment in any of the three particulars mentioned above because the Crown had not demonstrated that an offence was committed with prescribed concentration of blood alcohol contrary to ss 108 and 110 of the Road Transport Act 2013 (NSW).

The basis of such argument was that, “it was a deliberate policy choice of the Parliament, a deliberate balancing of the desire among people consume alcohol and still be able to drive and the risks that alcohol obviously poses to road users, and that Parliament has made that deliberate choice and it would be to interfere in that policy choice for sentencing courts to take into account affectation brought about by a blood alcohol level below .05, and indeed to seek to deter persons from driving where their blood alcohol level is [at] or above .05.”

Judgment

The Court of Appeal rejected the above-mentioned counsel’s arguments and stated that the longstanding guideline judgment of R v Whyte was inconsistent with it. The Court held that, “while it was correct to say that the legislature has made a policy choice that it is not unlawful, per se, to drive after consuming alcohol or to drive “sleep deprived” or having ingested medication which was lawfully prescribed. That does not mean that in sentencing an offender for dangerous driving occasioning death it is irrelevant that the offender had been consuming alcohol or was sleep deprived or that his or her driving skills were impaired by having ingested prescription medication.”

However, an important caveat was laid down with regard to the above. The Court stated that “there is no basis in sentencing for dangerous driving causing death to treat as irrelevant evidence of one of the Whyte factors (See above) unless the Crown can establish beyond reasonable doubt that a separate offence was thereby committed.”

Further, with regard to the objective seriousness of the offence, the Court held that “It was not necessary for the sentencing judge to find that the applicant’s(accused) impairment had caused the collision in order for his driving after drinking to be relevant to the objective seriousness of the offence, or the assessment of the applicant’s moral culpability.” This conclusion of the court was based on precedents of the Court of Appeal which stated that “evidence relevant to the moral culpability of the offender is not to be narrowly confined”.

Lastly, the Court of Appeal held that “The offence was more objectively serious as the offender drove dangerously while impaired to some extent by alcohol. The evidence of alcohol consumption was also relevant to general deterrence. The more objectively serious the criminal conduct, here dangerous driving causing death whilst impaired by alcohol, the greater the need for general deterrence. It is undoubtedly correct, as the sentencing judge remarked, that the road toll in this State remains at far too high a level and the sentences imposed for this type of offence must constitute a real deterrent”

1. WHAT DOES THIS JUDGMENT OF THE COURT OF CRIMINAL APPEAL MEAN TO YOU?

The judgment of the Court of Criminal Appeal clarifies that the Crown need not establish beyond reasonable doubt that the blood alcohol levels of the driver is above the legal limit in order to obtain a harsher sentencing for the crime of dangerous driving occasioning death. This means that even significantly lower levels of alcohol which impair the skills of the driver can be considered to render harsher punishments. It also means that the threshold of proof on Crown/Police to prove impairment due to alcohol consumption is low. So, the next time you think of driving after having a couple of drinks, think again.

If you have been arrested or the police are looking to interview you regarding an investigation, Pannu Lawyers is able to advise you of your rights at every step of the criminal investigation & trial process. Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales such as Blacktown Local Court, Mt Druitt Local Court, Parramatta Local Court & District Court, Burwood Local Court, Downing Centre Local Court & District Court, and Penrith Local Court. If your matter is at Blacktown Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.

The above information is intended as general information and is not intended to be relied on as legal advice.