Aitken v The Queen - [2014] NSWCCA 201

Court of Criminal Appeal

New South Wales

Case Title: Aitken v R

Medium Neutral Citation: [2014] NSWCCA 201

Hearing Date(s): 29 September 2014

Decision Date: 29 September 2014

Before: Hoeben CJ at CL at [1];
Adams J at [2];
R A Hulme J at [3]

Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - dangerous driving occasioning death - length of journey not improperly calculated - alleged miscalculation had little bearing on sentence - sentence not unreasonable or plainly unjust

Legislation Cited: Crimes Act 1900 (NSW)

Cases Cited: Makarian v The Queen [2005] HCA 25; 228 CLR 357
R v Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep))
R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
WW v R [2012] NSWCCA 165

Category: Principal judgment

Parties: Mathew Wayne Aitken (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
Mr G Newton (Applicant)
Ms J Girdham SC (Crown)

- Solicitors: Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2012/22186

Decision Under Appeal

- Before: Lerve DCJ

- Date of Decision: 12 June 2013

- Court File Number(s): 2012/22186

JUDGMENT

HOEBEN CJ at CL: I agree with R A Hulme J.
ADAMS J: I agree with R A Hulme J.
R A HULME J: Matthew Wayne Aitken (the applicant) was sentenced by his Honour Judge Lerve in the District Court at Dubbo for an offence of driving under the influence of intoxicating liquor occasioning death to imprisonment for 4 years 1 month with a non-parole period of 2 years 6 months.
The offence is contrary to s 52A(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 10 years.

Facts

The applicant was 18 years of age and held a learner's permit to drive. At about 9.45pm on Friday 25 November 2011 he was driving a utility with two passengers in Mudgee. He failed to negotiate a left hand bend in the road, lost control and the vehicle impacted heavily with a tree before coming to rest. One of the passengers, Mr Blake Shearan who was a close friend of the applicant's, was killed. The other passenger was not seriously injured.
Empty bottles of beer were on the ground near the car and partially consumed bottles of bourbon and rum were inside. A blood sample taken from the applicant revealed that his blood alcohol level was 0.109.
The applicant later told police that it was pouring with rain at the time and visibility was reduced to about 20 to 50 metres ahead. It was a 50km/h speed limited area but it was an agreed fact that he had been travelling at between 76 and 93 km/h, more likely towards the upper end of that range. He told police that he was aware that as a learner driver he was subject to a zero blood alcohol limit, a speed limit of 80 km/h and was to be under the supervision of a fully licensed sober…

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 Aitken v The Queen

Details

AGLC: Aitken v The Queen [2014] NSWCCA 201
Case: [2014] NSWCCA 201
Decision Date: 29 September 2014

CaseChat Overview and Summary

The appellant, Aitken, was convicted for dangerous driving occasioning death. He appealed against the sentence imposed by the court. The central issue in this appeal was whether the trial judge had improperly calculated the length of the journey during which the dangerous driving occurred, which in turn affected the severity of the sentence. The appeal raised questions about the accuracy of the journey's length and its impact on the sentence.

The court considered whether the trial judge had indeed miscalculated the length of the journey. It concluded that any alleged miscalculation had minimal bearing on the overall sentence. The court found that the sentence was not unreasonable or plainly unjust. It was emphasised that the trial judge's consideration of all relevant factors in imposing the sentence was appropriate and that the sentence reflected the gravity of the offence.

Consequently, the appeal was dismissed. The court confirmed that the sentence was not improperly calculated and was justified given the circumstances of the case. The decision underscored the importance of considering all relevant factors in sentencing, and reaffirmed that the sentence was proportionate to the offence committed.

Orders