Brooks v Regina - [2009] NSWCCA 265

New South Wales
Court of Criminal Appeal

CITATION: BROOKS v REGINA [2009] NSWCCA 265

HEARING DATE(S): Tuesday 22 September 2009

JUDGMENT DATE:
3 November 2009

JUDGMENT OF: McClellan CJatCL at 1; Buddin J at 2; Hall J at 3

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - applicant pleaded guilty to 2 counts of aggravated dangerous driving causing grievous bodily harm - applicant suffered injuries - whether sentencing judge failed to take into account extra curial punishment of applicant into mitigation - sentencing judge adequately took into account the applicant’s injuries and the effect upon his health and experience in gaol - appeal dismissed

LEGISLATION CITED: Crimes Act 1900

CASES CITED: Regina v Allpass (1993) 72 A Crim R 561
Regina v Azar [2000] NSWCCA 26
Regina v Badanjak [2004] NSWCCA 395
Regina v Burrell (2004) 114 A Crim R 207
Regina v Daetz; Regina v Wilson (2003) 139 A Crim R 398
Regina v Clampitt-Wotten (2002) 37 MVR 340
Regina v Smith (1987) 44 SASR 587 at 589
Whybrow v Regina [2008] NSWCCA 270

PARTIES: Kevin BROOKS
v REGINA

FILE NUMBER(S): CCA No 2007/14767

COUNSEL: C: M Grogan
A: M Dennis

SOLICITORS: C: S Kavanagh
A: S O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/1234

LOWER COURT JUDICIAL OFFICER: Graham ADCJ

LOWER COURT DATE OF DECISION: 8 August 2008

2007/14767

MCCLELLAN CJ at CL
BUDDIN J
HALL J
TUESDAY 3 NOVEMBER 2009

KEVIN GEORGE BROOKS v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Hall J.

2 BUDDIN J: I agree with Hall J.

3 HALL J: This is an application for leave to appeal against sentences imposed by Graham ADCJ in the District Court on 8 August 2008. The applicant pleaded guilty in the Local Court to two counts of aggravated dangerous driving occasioning grievous bodily harm contrary to s.54A(4) of the Crimes Act 1900. Both offences arise from an incident on 5 September 2006.

4 The offence carries a prescribed maximum penalty of imprisonment for 11 years. After allowing a 25% discount for the applicant’s early plea, his Honour sentenced the applicant to a total term of three years and six months, comprised of a non-parole period of two years and a balance of term of 18 months. That ratio of the total effective non-parole period to total effective parole period was 57%. The individual sentences were:-

(1) On the charge relating to Andrew Coppin, a non-parole period of 18 months commencing on 8 August 2008 to expire on 7 February 2010 with a balance of term of 18 months to expire on 7 August 2011.

5 Additional matters of drive unregistered and drive uninsured were taken into account on a Form 1…

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 Brooks v Regina

Details

AGLC: Brooks v Regina [2009] NSWCCA 265
Case: [2009] NSWCCA 265
Decision Date: 3 November 2009

CaseChat Overview and Summary

The case of Brooks v Regina involved the applicant, Brooks, who had pleaded guilty to two counts of aggravated dangerous driving causing grievous bodily harm. Brooks sought to appeal against his sentence, arguing that the sentencing judge had failed to take into account the additional punishment he had already endured outside of court, known as extra curial punishment, when considering the sentence. The appeal was heard and determined by the court.

The central legal issue before the court was whether the sentencing judge had adequately considered the applicant's extra curial punishment in mitigation of the sentence. Brooks contended that his injuries, which he had suffered as a result of the incident, and the impact these injuries had on his health and his experience in gaol, should have been factored into the sentencing decision. The court was required to examine the sentencing remarks and determine if the judge had appropriately acknowledged and assessed these aspects in determining the appropriate penalty.

The court found that the sentencing judge had indeed taken into account the applicant's injuries and their effect on his health and gaol experience. The judge had considered these factors in the context of the overall sentencing process and had made a comprehensive assessment of Brooks' circumstances. The court concluded that the sentencing judge had adequately addressed the mitigating factors and that Brooks' appeal against sentence should be dismissed. The reasoning and outcome of the court reflected a careful consideration of the sentencing principles and the particular facts of the case, leading to the preservation of the original sentence.

Orders