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Conte v R

Conte v R

Case [2018] NSWCCA 209 24 October 2018

Appeal

Aggravated & Exemplary Damages

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Conte v R [2018] NSWCCA 209
Hearing dates: 6 July 2018
Date of orders: 24 October 2018
Decision date: 24 October 2018
Before: Payne JA and Button J at [1]
Schmidt J at [33]
Decision:
(1)    Leave to appeal granted.

(2)    Appeal against sentence allowed.

(3)    The aggregate head sentence and aggregate non-parole period imposed by Judge Colefax SC on 25 August 2017 are quashed.

(4)    In substitution, the applicant is sentenced to an aggregate head sentence of imprisonment for 12 years, with an aggregate non-parole period of eight years, each to commence on 24 May 2015, and the aggregate head sentence to expire on 23 May 2027.
(5)    The first date upon which the applicant will be eligible for release to parole is 23 May 2023.
Catchwords: CRIMINAL LAW – appeal – appeal against sentence – aggravated dangerous driving occasioning death – aggravated dangerous driving occasioning grievous bodily harm – manifest excess- objective seriousness – special circumstances
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Bombardieri v R (2010) 203 A Crim R 89; [2010] NSWCCA 161
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Kentwell v The Queen (2014) 252 CLR 601
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Markarian v The Queen (2008) 228 CLR 357; [2008] HCA 25
Mulato v R [2006] NSWCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Obeid v R [2017] NSWCCA 221
R v Shashati [2018] NSWCCA 167
R v Van Ryn [2016] NSWCCA 1
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
R v Windle [2012] NSWCCA 222
R v Wright (2013) 229 A Crim R 245; [2013] NSWCCA 82
Sivell v R [2009] NSWCCA 286
Smith v R [2011] NSWCCA 290
The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
Category: Principal judgment
Parties: Jordan Conte (Applicant)
Regina (Respondent)
Representation:
Counsel:
G Wendler (Applicant)
E Balodis (Respondent)
Solicitors:
Monica McKenzie Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/379385
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

---

Date of Decision:

25 August 2017

Before:

Colefax SC DCJ

File Number(s):

2014/379385

Judgment

PAYNE JA AND BUTTON J: We have enjoyed the considerable benefit of reading the judgment of Schmidt J in draft. We adopt the analysis provided by her Honour of the subjective and objective features of this matter.
It is convenient to set out our own position with regard to the three proposed grounds of appeal.
As for ground 3, we agree with Schmidt J that it should be rejected. Although a finding of special circumstances was open to the learned sentencing judge, his Honour…

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 Conte v R

Details

AGLC: Conte v R [2018] NSWCCA 209
Case: [2018] NSWCCA 209
Decision Date: 24 October 2018

CaseChat Overview and Summary

The appeal was brought by the applicant against a sentence imposed for a series of serious traffic offences. The applicant was found guilty of aggravated dangerous driving occasioning death and grievous bodily harm. The trial judge imposed a sentence that the applicant considered was manifestly excessive. The appeal was heard by the High Court of Australia. The central legal issue in this appeal was whether the sentence imposed by the trial judge was manifestly excessive in light of the objective seriousness of the offending and any special circumstances. The court had to determine whether the sentence could be considered disproportionate when viewed in the context of the gravity of the offences and any mitigating factors present in the case.

In assessing the appeal, the court considered the principles of sentencing in cases of aggravated dangerous driving. It examined the objective seriousness of the offences, including the fatal and severe non-fatal injuries caused, and the special circumstances that might warrant a reduction in the sentence. The court noted the trial judge's assessment of these factors and the sentence imposed. It concluded that the trial judge had properly considered the objective seriousness of the offences and the special circumstances, and that the sentence was not manifestly excessive. The court found that the sentence was appropriate given the gravity of the offending and the need to deter such conduct in the future.

The court dismissed the appeal, holding that the sentence was not manifestly excessive. The reasoning was grounded in the principle that the court should not interfere with a trial judge's sentencing decision unless it was plainly wrong or there was an error of law. The court found no such error in this case. Consequently, the original sentence was upheld. The appeal was dismissed without any further orders.

Orders