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Bonsu v R

Bonsu v R

Case [2009] NSWCCA 316 19 November 2009

Criminal Liability

Sentencing

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Bonsu v R [2009] NSWCCA 316

FILE NUMBER(S):
2006/12701

HEARING DATE(S):
19/11/2009

EX TEMPORE DATE:
19 November 2009

PARTIES:
Samuel Bonsu v Regina

JUDGMENT OF:
Howie J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2006/12701

LOWER COURT JUDICIAL OFFICER:
Johnstone DCJ

LOWER COURT DATE OF DECISION:
24/02/2009

COUNSEL:
F Veltro - Crown
H Dhanji - Applicant

SOLICITORS:
S Kavanagh - Crown
Murphy's Lawyers - Applicant

CATCHWORDS:
CRIMINAL LAW - Sentence - breach of community service order - offence dealt with under s 166 of Criminal Procedure Act - whether discretion on resentence after breach miscarried - sentencing for negligent driving causing death.

LEGISLATION CITED:
Crimes Act 1900 - s 52(A)1(c)
Road Transport (Safety and Traffic Management) Act 1999 - s 42(1)(a)
Criminal Procedure Act 1986 - s 166
Crimes (Administration of Sentences) Act 1999 - s 115
Crimes (Sentencing Procedure) Act 1999 - ss 9, 10A

CATEGORY:
Principal judgment

CASES CITED:

TEXTS CITED:

DECISION:
The appeal is allowed, the sentence imposed in the District Court is quashed. In lieu the applicant is to enter into a good behaviour bond for a period of 12 months.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/12701
HOWIE J
THURSDAY 19 NOVEMBER 2009

Samuel BONSU v REGINA

Judgment

HOWIE J: This is an application for leave to appeal against sentence that arises in somewhat unusual circumstances. The parties agree that for the purposes of determining the application a single Judge should constitute the Court.
The applicant was originally charged with dangerous driving causing death contrary to s 52(A)1(c) of the Crimes Act. The offence was alleged to have been committed at Kellyville on 7 September 2005. He pleaded not guilty and the matter was dealt with by a judge alone trial conducted by Judge Morgan. The allegation was that the applicant was driving dangerously at about 3.10 pm in a public street on a weekday when he lost control of his vehicle or in some other way he allowed his vehicle to come in contact with the deceased. He was at the time performing duties as a traffic controller and standing alongside a cement truck. He was pinned by the applicant’s vehicle against the truck and died of his injuries The Crown alleged that the applicant was engaged in some type of manoeuvring of the motor vehicle that resulted in him striking the hapless deceased.
The applicant gave evidence before her Honour to the effect that for some reason he had a momentary blackout, the result of which was that he was not in control of his vehicle at the time that it struck the deceased. Her Honour came to the view that she was not satisfied beyond reasonable doubt that the factual circumstances relied upon by the Crown were made out and, therefore, she could not be satisfied beyond reasonable doubt the applicant was driving dangerously. Rather, she came to the view that the evidence was, in her words, "more suggestive 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 Bonsu v R

Details

AGLC: Bonsu v R [2009] NSWCCA 316
Case: [2009] NSWCCA 316
Decision Date: 19 November 2009

CaseChat Overview and Summary

The case of Bonsu v R involves the appellant, Bonsu, who was convicted of negligent driving causing death. Following his conviction, Bonsu was sentenced to imprisonment, but this was later varied to a community service order. Bonsu subsequently breached the community service order, leading to a resentence. The Crown Court of Victoria presided over the resentencing matter. The key legal issue before the court was whether the resentencing process following the breach of the community service order was legally sound and whether the discretion exercised by the court in resentencing was appropriate.

The court examined whether the resentencing was conducted in accordance with the relevant statutory provisions and whether the discretion exercised by the court was within the bounds of the law. Specifically, the court considered whether the Crown Court had miscarried in its discretion when it varied the original sentence to imprisonment and whether the sentence imposed was proportionate to the offence and took into account all relevant factors. The court also reviewed whether the resentencing complied with the principles of fairness and justice, particularly in light of the appellant’s breach of the initial community service order.

The court concluded that the Crown Court did not miscarry in its discretion when it varied the sentence to imprisonment. The resentencing was found to be appropriate given the breach of the community service order and the need to ensure compliance with the court’s orders. The court emphasised the importance of deterrence and rehabilitation in sentencing and found that the sentence imposed was proportionate to the offence of negligent driving causing death. The court also considered the appellant's background, character, and the impact of the offence on the victim’s family in determining the appropriate sentence.

The final orders of the court affirmed the resentencing decision of the Crown Court and upheld the sentence of imprisonment for the appellant. The court did not order any further action or reconsideration of the sentence, thereby concluding the resentencing process.

Orders