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Casey v R

Casey v R

Case [2015] NSWCCA 142 17 June 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Casey v R [2015] NSWCCA 142
Hearing dates: 25 May 2015
Decision date: 17 June 2015
Before: Hoeben CJ at CL at [1]
Hidden J at [53]
Adams J at [54]
Decision:
(1) Leave to appeal be granted.
(2) The appeal be dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – driving in a manner dangerous occasioning death – victim was pillion passenger on a motor cycle driven by applicant – applicant intoxicated and motor cycle unsuitable for a pillion passenger – no error in assessment of objective seriousness of offence – no obligation to find special circumstances – delay adequately taken into account – sentence not manifestly excessive – appeal dismissed.
Legislation Cited: Crimes Act 1900 – s 52A(1)(a)
Crimes (Sentencing Procedure) Act 1999 – s 44(2)
Cases Cited: Alameddine v Regina [2006] NSWCCA 317
Caristo v R [2011] NSWCCA 7
Jiang v R [2010] NSWCCA 277
MD v R [2015] NSWCCA 37
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Allpass (1993) 72 A Crim R 561
R v Blanco [1999] NSWCCA 121; 106 A Crim R 303
R v Cramp [2004] NSWCCA 264
R v Errington [1999] NSWCCA 18
R v Fidow [2004] NSWCCA 172
R v Howcher [2004] NSWCCA 179; 146 A Crim R 371
R v Janceski [2005] NSWCCA 288
R v Musumeci (unreported, NSWCCA, 30 October 1997)
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Whelan [2004] NSWCCA 379
R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Category: Principal judgment
Parties: Luke Mathew Casey – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Ms H Cox - Applicant
Ms N Williams – Respondent Crown
Solicitors:
Bryce Morrison Lawyer - Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2012/277786
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

30 July 2014

Before:

Wilson SC DCJ

File Number(s):

2012/277786

Judgment

HOEBEN CJ at CL:

Offences and sentence

The applicant seeks leave to appeal from the sentences imposed by Wilson SC DCJ on 30 July 2014 following a trial in the Newcastle District Court from 12 – 24 June 2014.

The applicant was found guilty of one count of driving in a manner dangerous occasioning death, contrary to s 52A(1)(a) of the Crimes Act 1900, for which the maximum penalty is imprisonment for 10 years. The victim was the pillion passenger on a Suzuki motorcycle ridden by the applicant which collided with a parked car. This caused the victim to be flung from the bike to his death on 25 April 2011. The applicant was under the influence of intoxicating liquor at the time.
On 30 July 2014 the applicant was sentenced to imprisonment with a non-parole period of 2 years and 7 months, commencing 21 July 2014 and expiring 20 February 2017, with…

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 Casey v R

Details

AGLC: Casey v R [2015] NSWCCA 142
Case: [2015] NSWCCA 142
Decision Date: 17 June 2015

CaseChat Overview and Summary

The appeal was brought by the applicant, who was convicted of driving a motor vehicle in a dangerous manner occasioning death. The deceased was the pillion passenger on the motorcycle driven by the applicant. The case was heard in the Court of Criminal Appeal in New South Wales. The applicant sought to appeal against the sentence imposed by the primary judge, arguing it was manifestly excessive.

The legal issues before the court were whether the sentence was manifestly excessive and whether the primary judge erred in failing to find special circumstances. The applicant contended that the delay in bringing the appeal to court should be considered a significant mitigating factor. The prosecution argued that the sentence was appropriate given the gravity of the offence and that no special circumstances existed to warrant a reduction in sentence.

The court found that there was no error in the primary judge's assessment of the objective seriousness of the offence. The court noted that the applicant was intoxicated and the motorcycle was not suitable for carrying a pillion passenger, which contributed to the dangerous nature of the driving. The court also found that while the delay in bringing the appeal was a mitigating factor, it had been adequately taken into account by the primary judge. The court concluded that the sentence was not manifestly excessive and dismissed the appeal. The applicant's sentence was upheld.

Orders