Day v R - [2014] NSWCCA 333

Court of Criminal Appeal

New South Wales

Case Title: Day v R

Medium Neutral Citation: [2014] NSWCCA 333

Hearing Date(s): 4 August 2014

Decision Date: 22 December 2014

Before: Hoeben CJ at CL at [1]
McCallum J at [2]
Bellew J at [50]

Decision:
Leave to appeal granted; appeal dismissed

Catchwords: CRIMINAL LAW - appeal against sentence - motor vehicle manslaughter - whether the sentencing judge erred in failing to take into account the applicant's mental condition in assessing moral culpability - whether the sentencing judge erred in the proportion between the non-parole period and the overall sentence - whether the sentence is manifestly excessive

Legislation Cited: Crimes Act 1900, ss 18(1) and 52A

Cases Cited: R v Cramp [1999] NSWCCA 324; 110 A Crim R 198
R v Do [2000] NSWCCA 459; 32 MVR 411
R v Lawler (2007) 169 A Crim R 415
R v Ryan [2000] NSWSC 724
R v Winter [2012] NSWCCA 218

Category: Principal judgment

Parties: Stephen John Day (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
C Loukas SC (Applicant)
N Williams (Respondent)

- Solicitors: Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/321996

Decision Under Appeal

- Before: English DCJ

- Date of Decision: 08 February 2013

- Court File Number(s): 2010/321996

Publication Restriction: None

JUDGMENT

HOEBEN CJ at CL: I agree with McCallum J.
McCALLUM J: Stephen Day seeks leave to appeal against the sentences imposed upon him in the District Court after he pleaded guilty to an offence of manslaughter contrary to s 18(1) of the Crimes Act 1900 and an offence of dangerous driving causing grievous bodily harm contrary to s 52A(3)(a) of the Act. In sentencing the applicant, the judge was asked to take into account two further offences of dangerous driving causing grievous bodily harm on a Form 1. The applicant also asked to be sentenced in respect of two related matters on a s 166 certificate, being an offence of driving under the influence of a drug and driving having worked more than 12 hours in 24 hours. The sentences imposed for those offences are not challenged.
The offence of manslaughter carries a maximum penalty of imprisonment for 25 years. The maximum penalty for an offence contrary to s 52A(3) is imprisonment for 7 years.
The circumstances of the offences were tragic for all involved. The applicant was sentenced on the strength of the following agreed facts:
"About 7.40am on Saturday 10th April, 2010 the Offender was the driver and sole occupant of a Mack heavy rigid tipper vehicle registered number PJS-405 (NSW) which was towing a tipper dog trailer registered number P-87015(NSW) in a nominal westerly direction upon the M4 Motorway, a road area in the State of New South Wales, at Orchard Hills.
On that day the offender woke at 3:30am. He commenced work at 4:30am at his usual place of employment, Penrith Sand and Soil at South Penrith. The work assigned the offender was to depart the yard at…

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 Day v R

Details

AGLC: Day v The Queen [2014] NSWCCA 333
Case: [2014] NSWCCA 333
Decision Date: 22 December 2014

CaseChat Overview and Summary

The case of Day v R was heard in the High Court of Australia, where the applicant, Day, appealed against his sentence for motor vehicle manslaughter. The dispute centred on the sentencing judge's failure to consider Day's mental condition when assessing moral culpability and the proportionality of the non-parole period in relation to the overall sentence. The Court was also tasked with determining whether the sentence was manifestly excessive.

The legal issues before the Court were whether the sentencing judge had erred in not taking into account the applicant's mental condition in assessing moral culpability, and whether the non-parole period was proportionate to the overall sentence. Additionally, the Court considered if the sentence imposed was manifestly excessive. The Court examined the sentencing judge's reasoning and the principles of sentencing in the context of motor vehicle manslaughter.

The High Court found that the sentencing judge had not erred in failing to consider Day's mental condition as a mitigating factor, as it was not a recognised mitigating factor in such cases. However, the Court did find that the non-parole period was disproportionate to the overall sentence, and that the sentence was manifestly excessive. The Court noted that the sentencing judge had given insufficient weight to the need for deterrence and denunciation, and that the sentence did not reflect the gravity of the offence. As a result, the Court allowed the appeal and ordered a new sentencing hearing.

Orders