Adam v R

Case [2014] NSWCCA 265 20 November 2014

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Court of Criminal Appeal

New South Wales

Case Title: Adam v R

Medium Neutral Citation: [2014] NSWCCA 265

Hearing Date(s): 7 October 2014

Decision Date: 20 November 2014

Before: Meagher JA at [1]
Fullerton J at [2]
Schmidt J at [3]

Decision:
Leave to appeal granted, but order that the appeal be dismissed.

Catchwords: CRIMINAL LAW - leave to appeal against sentence - whether sentence was manifestly excessive - failure to stop and render assistance after impact - s 52AB Crimes Act 1900 (NSW) offences - proper construction of s 52AB - whether sentence on summary disposal relevant - whether lesser offence relevant - relevance of negligent driving - appeal dismissed

Legislation Cited: Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Road Transport (Safety and Traffic Management Act) 1999 (NSW)
Road Transport Act 2013 (NSW)

Cases Cited: Dinsdale v R [2000] HCA 54; 202 CLR 321
Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483
GAS v R [2004] HCA 22; 217 CLR 198
McCullough v R [2009] NSWCCA 94
R v El Masri [2005] NSWCCA 167
Sheen v R [2011] NSWCCA 259; 215 A Crim R 208
Shumack v R [2008] NSWCCA 311; 191 A Crim R 513
Vuni v R [2006] NSWCCA 171
Zreika v R [2012] NSWCCA 44; 223 A Crim 460

Texts Cited: NSW Legislative Assembly, Parliamentary Debates (Hansard), 21 September 2005 at 18124

Category: Principal judgment

Parties: Richard Adam (Applicant)
Regina (Crown)

Representation

- Counsel: Counsel:
Mr P Lowe (Applicant)
Mr P Ingram SC (Crown)

- Solicitors: Solicitors:
Sydney Criminal Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/118751

Decision Under Appeal

- Before: Madgwick ADCJ

- Date of Decision: 20 February 2014

- Court File Number(s): 2011/00118751

Publication Restriction: None

JUDGMENT

MEAGHER JA: I agree with Schmidt J.
FULLERTON J: I agree with Schmidt J.
SCHMIDT J: The applicant, Richard Adam, seeks leave to appeal against the sentence imposed upon him by Madgwick ADCJ on 20 February 2014 as being manifestly excessive.
The applicant had pleaded guilty to two offences under s 52AB (1) and (2) of the Crimes Act1900 (NSW), of failing to stop and assist after a vehicle impact, committed on 2 April 2011. That impact caused the death of Mr Quang Mai and grievous bodily harm to Mr Liem Thanh Le.
After a 25% discount for his plea, a total aggregate sentence of 32 months was imposed on the applicant, with a non-parole period of 20 months and an additional term of 12 months. The maximum penalty for the s 52AB(1) offence was 10 years imprisonment and for the s 52AB(2) offence, 7 years.

Grounds of appeal

The one ground of appeal pressed was:
"The sentence imposed by the Sentencing Judge was manifestly excessive having regard to the following matters:
(a) That given the circumstances under which the applicant fell to be sentenced he failed to take into account as a matter in mitigation that the s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adam v R

Details

AGLC: Adam v The Queen [2014] NSWCCA 265
Case: [2014] NSWCCA 265
Decision Date: 20 November 2014

CaseChat Overview and Summary

In Adam v R, the appellant was convicted of failing to stop and render assistance after impact, contrary to section 52AB of the Crimes Act 1900 (NSW), and was sentenced to a term of imprisonment. The Crown appealed the sentence as manifestly excessive, and the appellant sought leave to appeal against the sentence. The crux of the case was the interpretation and application of section 52AB and the appropriateness of the sentence imposed.

The legal issues before the court were whether the sentence was manifestly excessive, and the proper construction of section 52AB. The court had to consider the correct approach to sentencing in cases involving summary disposal, and whether the failure to stop and render assistance after impact constituted a lesser offence. Additionally, the court examined the relevance of negligent driving in assessing the sentence.

The court held that the sentence was not manifestly excessive. It found that section 52AB required the accused to stop and render assistance after an impact, even if the accused was not driving. The court emphasised that the gravity of the offence depended on the circumstances of the impact, not on whether the accused was driving or not. It noted that the maximum penalty for the offence was appropriate, and that the sentence imposed was within the range of penalties available for the offence. The court also found that the failure to stop and render assistance after impact was not a lesser offence, and that the relevance of negligent driving was not a factor in assessing the sentence.

The appeal was dismissed.

Orders