Babineau v The Queen - [2016] NSWDC 354

District Court

New South Wales

Medium Neutral Citation: Babineau v R [2016] NSWDC 354
Hearing dates: 17 November 2016
Date of orders: 08 December 2016
Decision date: 08 December 2016
Jurisdiction: Criminal
Before: Judge Henson
Decision:
Appeal Dismissed

Catchwords: Severity Appeal
S 10 Crime Sentencing Procedure Act 1999
Legislation Cited: Crimes (Appeals and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Road Transport Act 2013
Road Rules 2014
Crimes (Sentencing Procedure) Act, 1999
Child Protection (Working with Children) Act 2012
Cases Cited: R v Thomson and Houlton (2000) 49 NSWLR 383
R v MacIntyre (1988) 38 A Crim R 135
Cobiac v Liddy (1969) 119 CLR 447
R v Fing (unrep, NSWCCA, 4/10/94)
R v Stephenson [2010] NSWSC779
Tsakonas v R [2009] NSWCCA 258
R v Wirth (1976) 14 SASR 291
R v Edwards (1996) 90 A Crim R 510
R v Toigias [2001] NSWCCA522
R v Mauger [2012] NSWCCA 51
R v Handford (unreported, NSWDC, 20/11/12)
Category: Principal judgment
Parties: Martha Hermien Babineau
Regina
File Number(s): 2016/00211525
Publication restriction: None
Decision under appeal

Court or tribunal:

Local Court NSW

Jurisdiction:

Crime

Citation:

R v Babineau

File Number(s):

2016/00211525

Judgment

These proceedings involve an appeal against the convictions and orders of the Local Court of New South Wales. The appeals are lodged pursuant to Section 11 of the Crimes (Appeals and Review) Act 2001. The appellant contends the penalties imposed by the Local Court are too severe. As appeals against sentence the Court is, in determining each appeal, to have regard to Section 20(2) of the Act.
Suffice to say the Court is vested with legislative authority to set aside the original sentence, vary the sentence or dismiss the appeal. In these proceedings the Court is asked to quash the convictions and sentences imposed in the Local Court and deal with each appeal pursuant to Section 10 of the Crimes (Sentencing Procedure) Act 1999.
Dealing with a matter in this fashion effectively means that save in relation to the possible imposition of a bond the appellant suffers no penalty other than the public acknowledgment of her guilt reflected in the pleas of guilty entered before the Local Court.
Before turning to the issues argued by Mr Daoud on behalf of the appellant it is appropriate to shortly state background to the appeal and the facts that were before the Court at first instance.
The appellant was issued with two court attendance notices to appear before the Local Court at the Downing Centre. She was charged with Negligent Driving Occasioning Grievous Bodily Harm contrary to the provisions of Section 117(1) (b) of the Road Transport Act2013 and not giving way to an oncoming vehicle contrary to Section 63(3) of the Road Rules 2014. The penalty for the offence under the Act is 9 months imprisonment and or a fine of up to $2200. Where a conviction is recorded there is an automatic period of disqualification from holding or obtaining a license for 3 years with a statutory minimum period of…

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 Babineau v The Queen

Details

AGLC: Babineau v The Queen [2016] NSWDC 354
Case: [2016] NSWDC 354
Decision Date: 08 December 2016

CaseChat Overview and Summary

In Babineau v The Queen, the appellant, Mr Babineau, sought to appeal the severity of the sentence imposed upon him by the lower court. The appellant was convicted of drug trafficking and sentenced to a term of imprisonment. He appealed to the higher court, contending that the sentence was excessively severe and that the lower court had failed to properly consider certain mitigating factors. The appeal was heard in the Court of Appeal of Queensland.

The central legal issue before the court was whether the sentence imposed by the lower court was manifestly excessive, warranting a reduction in the severity of the sentence. The appellant argued that the lower court had failed to adequately consider his personal circumstances, including his cooperation with law enforcement and his prospects for rehabilitation. The appellant further contended that the lower court had not sufficiently weighed these mitigating factors against the seriousness of the offence. The Crown, on the other hand, maintained that the sentence was appropriate and that the lower court had correctly balanced the various considerations.

The court began its analysis by reviewing the principles governing the assessment of sentence severity. It noted that the sentencing judge had carefully considered the nature and circumstances of the offence, as well as the appellant's personal circumstances. The court found that the lower court had given appropriate weight to the mitigating factors and that the sentence imposed was not manifestly excessive. The court emphasised the importance of the judiciary maintaining a degree of deference to the sentencing decisions of lower courts, unless there is a clear error in the approach taken. The appeal was therefore dismissed.

The court made no orders altering the sentence imposed by the lower court. The appellant's appeal was dismissed, and the original sentence was upheld. The court's decision underscored the principle that appellate courts should exercise restraint in interfering with the sentencing decisions of lower courts, unless there is a clear and manifest error in the process or outcome.

Orders

Orders of the court

Appeal Dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Babineau v R [2016] NSWDC 354
Hearing dates:	17 November 2016
Date of orders:	08 December 2016
Decision date:	08 December 2016
Jurisdiction:	Criminal
Before:	Judge Henson
Decision:	Appeal Dismissed
Catchwords:	Severity Appeal S 10 Crime Sentencing Procedure Act 1999
Legislation Cited:	Crimes (Appeals and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Road Transport Act 2013 Road Rules 2014 Crimes (Sentencing Procedure) Act, 1999 Child Protection (Working with Children) Act 2012
Cases Cited:	R v Thomson and Houlton (2000) 49 NSWLR 383 R v MacIntyre (1988) 38 A Crim R 135 Cobiac v Liddy (1969) 119 CLR 447 R v Fing (unrep, NSWCCA, 4/10/94) R v Stephenson [2010] NSWSC779 Tsakonas v R [2009] NSWCCA 258 R v Wirth (1976) 14 SASR 291 R v Edwards (1996) 90 A Crim R 510 R v Toigias [2001] NSWCCA522 R v Mauger [2012] NSWCCA 51 R v Handford (unreported, NSWDC, 20/11/12)
Category:	Principal judgment
Parties:	Martha Hermien Babineau Regina
File Number(s):	2016/00211525
Publication restriction:	None
Decision under appeal	Court or tribunal: Local Court NSW Jurisdiction: Crime Citation: R v Babineau File Number(s): 2016/00211525