CATCHWORDS:
CRIMINAL LAW - leave to appeal sentence - whether sentencing judge failed to apply Guideline judgment R v Whyte and if so whether head sentence was calculated from wrong starting point - no error established - whether sentence imposed was manifestly excessive - not established - leave to appeal granted - appeal dismissed

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999

CATEGORY:
Principal judgment

CASES CITED:
Georgopolous v R [2010] NSWCCA 246
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252

TEXTS CITED:

DECISION:
Leave to appeal granted.
Appeal dismissed

JUDGMENT:

- 18 -

IN THE COURT OF
CRIMINAL APPEAL

2009/3749
SIMPSON J
KIRBY J
SCHMIDT J
FRIDAY, 17 DECEMBER 2010

BLACK v R

JUDGMENT

SIMPSON J: I agree with Schmidt J.
KIRBY J: I agree with Schmidt J.
SCHMIDT J: On 16 December 2009, after entering a plea of guilty the applicant was sentenced by Murrell DCJ as follows:
(i)One (1) count of Dangerous Driving Occasioning Grievous Bodily Harm (Crimes Act 1900 (NSW)) (s52A(3)(c) - maximum penalty seven (7) years), a term of imprisonment of two (2) years and three (3) months, commencing on 16 June 2010 and concluding 15 September 2012, with a non-parole period of one (1) year, three (3) months expiring on 15 September 2011.
(ii)One (1) count of Failing to Stop and Assist after Vehicle Impact Causing Grievous Bodily Harm (Crimes Act 1900) (NSW) (s52AB(2) - maximum penalty seven (7) years) - a fixed term of imprisonment of six (6) months, commencing on 16 June 2009 and expiring on 15 December 2009.
(iii)One (1) count of Drive Whilst Disqualified (Road Transport (Driver Licensing) Act 1988 (NSW) (s25A(1)(a) on 8 September 2009 - maximum penalty 2 years imprisonment and 50 penalty units) - a fixed term of imprisonment of three (3) months, commencing on 16 December 2009 and concluding on 15 March 2010.
(iv)One (1) count of Drive Whilst Disqualified (Road Transport (Driver Licensing) Act 1988 (NSW)) (s25a(1)(a) on 5 November 2008) - a fixed term of imprisonment of six (6) months, commencing on 16 March 2010 and expiring on 15 September 2010.
(v)One (1) count of Drive Whilst Disqualified (Road Transport (Driver Licensing) Act 1988 (NSW)) (s25A(1)(a) on 4 November 2008) - a sentence of four (4) months, commencing on 16 June 2010 and concluding on 15 October 2010.
(vi)One (1) count of Possess Licence…

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 Black v The Queen

Details

AGLC: Black v The Queen [2010] NSWCCA 321
Case: [2010] NSWCCA 321
Decision Date: 17 December 2010

CaseChat Overview and Summary

The applicant, in the case of Black v The Queen, sought leave to appeal against his sentence for the offence of dangerous driving causing grievous bodily harm. The High Court was tasked with determining whether the sentencing judge erred in applying the guideline judgment from R v Whyte and whether the head sentence was calculated from the wrong starting point. Additionally, the court had to decide if the sentence imposed was manifestly excessive.

The primary legal issue was whether the sentencing judge correctly applied the guideline set out in R v Whyte, and if this miscalculation led to an erroneous starting point for the head sentence. Furthermore, the court examined whether the sentence, considering the alleged error, was manifestly excessive. The applicant argued that the sentencing judge did not properly apply the guideline judgment, leading to a miscalculation of the head sentence, and as a result, the sentence imposed was excessively harsh.

The court found no error in the sentencing judge’s application of the guideline judgment from R v Whyte. Consequently, it concluded that the head sentence was not calculated from an incorrect starting point. Moreover, the court determined that the sentence imposed was not manifestly excessive. Despite the applicant’s arguments, the court upheld the original sentencing decision.

The High Court granted leave to appeal but ultimately dismissed the appeal. The sentence imposed by the sentencing judge was affirmed, and the applicant's grounds for appeal were not substantiated.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant seeks leave to appeal on two grounds:"(i)The sentencing judge has not correctly applied or considered the guideline set out in R v Whyte & Ors (2002) 55 NSWLR 252, and as a consequence has calculated the head sentence from a wrong starting point.(ii)The sentence imposed by Her Honour in respect to the offence of Dangerous Driving Causing Grievous Bodily Harm, having regard to ground (i) of appeal above, was therefore manifestly excessive."The evidence On Melbourne Cup Day November 2008 the applicant went to the King St Hotel Newcastle, to socialise with friends. At about 10 pm he was at McDonalds. He left in the company of friends, driving off in a Toyota 4 Runner, with one person in the front seat and another seated behind him. He was telephoned and asked to collect the victim and two others. The applicant picked them up near the hotel. All three got into the back of the vehicle, with a Mr Jobson still getting in, when the applicant asked ‘Is everyone in?’ Mr Jobson replied ‘hang on dickhead’. The applicant did not hear, or could not recall hearing what Mr Jobson said and he accelerated away, while Mr Jobson was still attempting unsuccessfully to close the rear door of the vehicle. None of the four people in the back seat was wearing a seatbelt. The applicant then executed a U turn across a raised median strip in the middle of the road, turning into the west bound lanes of King St. As the vehicle bounced across the median strip, two of those in the rear seat were pushed towards Mr Jobson, who fell from the car and landed on his feet on the median strip. The victim was also ejected head first and backwards from the vehicle, through the rear passenger door and onto the road, hitting her head, so as to suffer very serious injuries. The applicant proceeded until someone called out ‘Stop. Ricky fell out.’ One of the other passengers jumped out and ran back to the victim. The applicant then turned left and stopped the vehicle. He and the other passengers then ran back toward the victim. The applicant did not continue right up to the victim, but turned around, went back to his vehicle and drove away. The victim was unconscious. She was transferred to hospital by ambulance, suffering a severe brain injury, with extensive fracturing of the skull and diffuse swelling, from which she has made a remarkable recovery, but has been left with serious lifelong disabilities. They include cognitive and memory deficits; difficulty with visual spatial orientation; difficulty with her eyes, for which procedures have been undertaken, but they have reached a state from which they will not improve. She has been left with minimal movement in her eyes; her left upper limb is seriously affected and she is not expected ever to regain a large amount of strength in her left limb; her jaw was fractured and that remains a problem. Her physical appearance and social life are affected, as is her ability to participate in sport and to care for herself. She cannot return to her work as a hairdresser and it is unclear what, if any fulltime work she will be able to resume in future. She has become reclusive and it is unclear to what extent she will ever become socially active.

Decision

Reasons for decision

SIMPSON J

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Ratio Decidendi

Legal Principle Established

Established by: SIMPSON J

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Citations

AGLC Citation

Black v The Queen [2010] NSWCCA 321

Most Recent Citation

Ryan John Mackenzie v The Queen [2011] NSWCCA 21

Cases citing this decision · 4 of 4 shown

The Queen v Angel
[2021] NSWDC 4

…, 21A Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 Road Transport Act 2013 NSW ss 111, 205 Cases Cited: Black v R [2010] NSWCCA 321 Harrigan v R [2005] NSWCCA 449 Kelly v The Queen [2007] NSWCCA 357 Primmer v R [2015] NSWCCA 155 R v AB [2011] NSWCCA 229 R v Berg [2004] NSWCCA 300 R v Buckle…
R v Thornton
[2019] NSWDC 56 Para 149

…[67] R v AB; [68] Stayard v R; [69] ; Primmer v R ; [70] Silvestri v R; [71] and Mansweto v R. [72] 65. [2005] NSWCCA 449. 66. [2007] NSWCCA 29. 67. [2010] NSWCCA 321. 68. [2011] NSWCCA 229. 69. [2013] NSWCCA 134. 70. [2015] NSWCCA 155. 71. [2016] NSWCCA 245. 72. [2018] NSWCCA 232.…
Silvestri v The Queen
[2016] NSWCCA 245 Para 27

…In Black v R [2010] NSWCCA 321, the offender had picked up a number of people at a hotel in Newcastle. Immediately after they had got into the car he accelerated away, while four people in the back seat were not wearing seat belts and one of them was still trying to close the rear door. He did a U-turn across a rais…
Ryan John Mackenzie v The Queen
[2011] NSWCCA 21 Para 1

…per McLellan CJ at CL; Georgeopoulos v R [2010] NSWCCA 246 at [30]-[33] per Howie J; R v Hunter [2010] NSWCCA 330 at [34]-[35] per Adams J; Black v R [2010] NSWCCA 321. The assault was serious and involved significant criminality, although worse assaults come before the courts.…

View all 4 citing cases →

Cases cited in this decision · 7 of 7 shown

Georgopolous v R
[2010] NSWCCA 246 Para 18

…ed to be undertaken in respect of all of the matters relevant to a determination of the sentence to be imposed (see at [39]). In Georgopolous v R [2010] NSWCCA 246, Howie J, with whom Allsop P and Adams J agreed, said: "31 In Sivell v R [2009] NSWCCA 286 McClellan CJ at CL stated: 2 The sentencing Judge described th…
Sivell v R
[2009] NSWCCA 286 Para 18

…tence to be imposed (see at [39]). In Georgopolous v R [2010] NSWCCA 246, Howie J, with whom Allsop P and Adams J agreed, said: "31 In Sivell v R [2009] NSWCCA 286 McClellan CJ at CL stated: 2 The sentencing Judge described the offence as lying in the mid range of "objective seriousness" but toward the lower end of…
MLP v R
[2006] NSWCCA 271 Para 18

…t step, a consideration of the objective seriousness of the offence followed then by a consideration of the matters in s 21A: see MLP v R [2006] NSWCCA 271; 164 A Crim R 93. But where that legislation does not apply, a court should avoid embarking upon an independent and detailed analysis of objective seriousness."…
R v Whyte
[2006] NSWCCA 75 Para 5

…icant seeks leave to appeal on two grounds: "(i)The sentencing judge has not correctly applied or considered the guideline set out in R v Whyte & Ors (2002) 55 NSWLR 252 , and as a consequence has calculated the head sentence from a wrong starting point. (ii)The sentence imposed by Her Honour in respect to the offence…
Markarian v The Queen
[2005] HCA 25 Para 18

…he objective seriousness of the offence in two steps, itself arguably involved error, given the High Court’s explanation in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 of the instinctive syntheses required to be undertaken in respect of all of the matters relevant to a determination of the sentence t…
R v Way
[2004] NSWCCA 131 Para 18

…ant to an offence which attracts a standard non-parole period. The relevant principles were discussed by this Court in R v Way (2004) NSWCCA 131; 60 NSWLR 168: see also R v AJP (2004) NSWCCA 434; (2004) 150 A Crim R 575. 4 When assessing where an offence lies in the range of objective seriousness when the offen…
R v Whyte
[2002] NSWCCA 343 Para 10

…R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 was a guideline judgment. There the Court emphasised that it was to apply to what was described to be a typical case. Spigelman CJ observed: "204A frequently recurring case of an offence under s52A has the following characteristics. (i) Young offender. (ii) Of good ch…

Legislation cited in this decision · 4

Crimes Act 1900 (ACT)
97(1) 2 mentions (from Para 3)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 19)
Road Transport (Driver Licensing) Act 1998 (NSW)
1 mention (from Para 3)
Road Transport (General) Act 2005 (NSW)
1 mention (from Para 3)