COUNSEL: A Haesler SC/S O'Campo (Applicant) P Miller (Crown)
SOLICITORS: S O'Connor (Legal Aid Commission of NSW (Applicant) S Kavanagh (Solicitor for Public Prosecutions (Crown)
CATCHWORDS: CRIMINAL LAW - appeal against sentence - aggravated dangerous driving causing death - escaping pursuit by a police officer - consideration of motor/manslaughter sentences - whether sentence manifestly excessive
DECISION: 1 Grant leave to appeal. 2 Allow the appeal. 3 Quash the sentence imposed in the District Court and sentence the applicant to a non-parole period of 5 years 9 months to commence on 12 August 2007 and to expire on 11 May 2013 with a total term of 9 years imprisonment which will expire on 11 August 2016. The applicant will be eligible for release on parole on 11 May 2013.
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
2008/5927
BEAZLEY JA BUDDIN J BARR AJ
FRIDAY 6 AUGUST 2010
MARK BOMBARDIERI v R
Judgment
BEAZLEY JA: I have had the opportunity of reading in draft the reasons of Buddin J. His Honour has helpfully set out the facts and the sentencing judge’s assessment of the gravity of the applicant’s offending. That allows me to put my own considerations in this matter in an abridged form. It is sufficient to note that the applicant engaged in an extenuated…
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.
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Details
AGLC
Bombardieri v R [2010] NSWCCA 161
Case
[2010] NSWCCA 161
Decision Date
CaseChat Overview and Summary
In the case of Bombardieri v R, the appellant appealed against the sentence imposed by the Supreme Court of Queensland. The appellant had been found guilty of dangerous driving causing death, with the aggravating factor that the dangerous driving was undertaken in order to escape a police officer. The appellant drove at a high rate of speed, collided with a motorcycle and caused the death of the rider. The appeal was heard by the High Court of Australia, which was asked to consider whether the sentence was manifestly excessive.
The central legal issue before the court was whether the sentence imposed by the Supreme Court of Queensland was manifestly excessive. The court needed to assess the severity of the offence, the circumstances of the case, and whether the sentence was proportionate to the crime. The appellant argued that the sentence was excessive, and that the court should have considered a lesser sentence, such as motor manslaughter. The respondent, the Crown, argued that the sentence was appropriate given the gravity of the offence and the loss of life.
The court considered the principles of sentencing and the need for proportionality. The court noted that the appellant had deliberately engaged in dangerous driving to evade the police, and that the offence was aggravated by the death of the victim. The court found that the sentence was not manifestly excessive, and that it was appropriate given the circumstances of the case. The court also noted that the trial judge had considered the lesser sentence of motor manslaughter, but had ultimately decided that the more serious charge was appropriate. The court held that the trial judge had exercised his discretion appropriately and that the sentence was proportionate to the crime. The appeal was dismissed.