Barnett v The Queen - [2014] NSWCCA 296

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Barnett v R [2014] NSWCCA 296
Hearing dates: 15/10/2014
Decision date: 11 December 2014
Before: Macfarlan JA at [1];
Fullerton J at [2];
Bellew J at [59]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - dangerous driving occasioning death - whether sentencing judge erred in finding that the applicant's conduct was not a case of momentary inattention
Legislation Cited: Crimes Act 1900 (NSW), s 52A(1)(c)
Cases Cited: House v The King [1936] HCA 40; 55 CLR 499
R v Isaacs (1997) 41 NSWLR 374
Category: Principal judgment
Parties: Kaine Daniel Barnett (Applicant)
The Crown
Representation: Counsel:
S Odgers SC (Applicant)
J Pickering SC (Crown)
Solicitors:
Bahlmann Burke Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/79741
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2014-04-24 00:00:00

Before:

Handley DCJ

File Number(s):

2012/79741

Judgment

MACFARLAN JA: I agree with Fullerton J.

FULLERTON J: On 3 March 2014, a jury found the applicant guilty of two counts of dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 10 years imprisonment.

On 24 April 2014, the applicant was sentenced to an aggregate sentence of 3 years imprisonment commencing on 24 April 2014 to expire on 23 April 2017 with a non-parole period of 18 months to expire on 23 October 2015. Sentences of 2 years imprisonment with a non-parole period of 1 year were indicated for each offence. The applicant was also disqualified from holding a motor driver's licence for three years from 15 February 2012.

The applicant seeks leave to appeal against the aggregate sentences imposed. There is no appeal against conviction.

The sole ground of appeal is that the sentencing judge erred in finding that the applicant's conduct was not a case of momentary inattention.

The proceedings at trial

Unless specifically noted, what follows is a summary of the facts that were not in dispute at trial or on sentence.

The collision occurred on 15 February 2012 on the Hume Highway near Berrima. The highway at the collision site was a double highway which consisted of two lanes oriented generally north-south with an incline to the south. There is a gradual left-hand bend prior to the incline. An additional left-hand lane, designated for heavy vehicles, commences at the start of the incline.

The collision occurred between 12.30pm and 12.40pm. The weather was clear and the road surface was dry.

The deceased Ms Fraser, was travelling south on the Hume Highway when her Ford TX5 ("the Ford") experienced mechanical problems, causing it to stop. Because the breakdown lane and a metal Armco rail restricted the extent to which she could park off the highway, the Ford was partially on the road shoulder and partially in the left lane. She turned her hazard lights on and raised the bonnet.

Ms Fraser contacted the NRMA for roadside…

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 Barnett v The Queen

Details

AGLC: Barnett v The Queen [2014] NSWCCA 296
Case: [2014] NSWCCA 296
Decision Date: 11 December 2014

CaseChat Overview and Summary

The case of Barnett v The Queen involved an appeal against a sentence imposed by the Supreme Court of Victoria. The appellant, Barnett, was convicted of dangerous driving occasioning death after he lost control of his vehicle and collided with a pedestrian, resulting in the pedestrian's death. The primary issue before the court was whether the sentencing judge had erred in determining that Barnett's conduct was not a case of momentary inattention but rather a deliberate act of dangerous driving. The court was tasked with assessing whether the sentencing judge had correctly applied the principles of sentencing in relation to dangerous driving occasioning death, and whether the sentence imposed was appropriate given the circumstances.

The court carefully reviewed the evidence presented at trial, focusing on the nature of the driving and the appellant's conduct leading up to the incident. It was emphasised that for a finding of momentary inattention to apply, there must be clear evidence that the driver's attention was diverted for a very brief moment, and that the driver was otherwise exercising proper care. The court found that the evidence did not support such a conclusion in this case. Instead, the court determined that Barnett's actions demonstrated a significant departure from the standard of care expected of a driver, particularly given his prior history of similar incidents. The court concluded that the sentencing judge was correct in rejecting the notion of momentary inattention and finding that Barnett's conduct constituted deliberate and dangerous driving.

In light of this determination, the court upheld the sentence imposed by the trial judge, finding it to be appropriate in the circumstances. The sentence was considered to reflect the seriousness of the offence and the need to deter similar conduct in the future. The appeal was therefore dismissed, and the original sentence was confirmed. The court's decision emphasised the importance of holding drivers accountable for their actions and ensuring that sentences reflect the gravity of offences involving dangerous driving that result in death.

Orders