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Duncan v R

Duncan v R

Case [2012] NSWCCA 78 3 May 2012

Appeal

Sentencing

Manslaughter

Aggravated Dangerous Driving

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Court of Criminal Appeal

New South Wales

Case Title: Duncan v R

Medium Neutral Citation: [2012] NSWCCA 78

Hearing Date(s): 23 April 2012

Decision Date: 03 May 2012

Jurisdiction:

Before:
Basten JA at 1;
Blanch J at 46;
Hall J at 47

Decision:
1. Leave to appeal granted.

2. Appeal dismissed.

Catchwords:
CRIMINAL LAW - appeal - sentence - manslaughter and aggravated dangerous driving occasioning grievous bodily harm - extra-curial punishment, public humiliation and vilification - effect on the offender - whether community response should be understood in context - whether error of the sentencing judge shown

CRIMINAL LAW - appeal - sentence - manslaughter and aggravated dangerous driving occasioning grievous bodily harm - remorse and self punishment - weight to be given to remorse and self punishment in a case of gross moral culpability - discussion of Neal v The Queen [1982] HCA 55; 149 CLR 305

CRIMINAL LAW - appeal - sentence - manslaughter and aggravated dangerous driving occasioning grievous bodily harm - whether manifestly excessive - whether sentences were outside the relevant range - discussion of R v Borkowski [2009] NSWCCA 102; 52 MVR 528 and R v Cameron [2005] NSWCCA 359; 157 A Crim R 70

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

Cases Cited:
Einfeld v Regina [2010] NSWCCA 87; 200 A Crim R 1
Kenny v R [2010] NSWCCA 6
Neal v The Queen [1982] HCA 55; 149 CLR 305
R v Borkowski [2009] NSWCCA 102; 52 MVR 528
R v Cameron [2005] NSWCCA 359; 157 A Crim R 70
R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
Regina v Dhanhoa [2000] NSWCCA 257
Regina v Koosmen [2004] NSWCCA 359; 42 MVR 123

Texts Cited:

Category: Principal judgment

Parties:
Belinda May Duncan - Applicant
Regina - Respondent

Representation

- Counsel:
Counsel:

H K Dhanji SC - Applicant
N F Noman - Respondent

- Solicitors:
Solicitors:

Legal Aid NSW - Appellant
S Kavenagh - Solicitor for Public Prosecutions - Respondent

File number(s):
CCA 2010/78793

Decision Under Appeal

- Court / Tribunal: District Court

- Before: North DCJ

- Date of Decision: 18 February 2011

- Citation:

- Court File Number(s) DC 2010/78793

Publication Restriction:

JUDGMENT

BASTEN JA: In the early hours of the morning, on 7 October 2009, there was an horrific motor vehicle accident when a car driven by the applicant left the road at high speed while taking a bend on Duffie Drive, near Cessnock. The applicant survived, with relatively minor injuries. Of the other five young people in the car, two were killed and three others suffered serious injury.
In respect of the two deaths, the applicant was charged with manslaughter under s 18(1)(b) of the Crimes Act 1900 (NSW). In respect of the three injured passengers, she was charged with dangerous driving occasioning grievous bodily harm, in circumstances of aggravation, namely driving at a speed which exceeded the applicable speed limit by more than 45 kilometres per hour.

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 Duncan v R

Details

AGLC: Duncan v R [2012] NSWCCA 78
Case: [2012] NSWCCA 78
Decision Date: 03 May 2012

CaseChat Overview and Summary

In the case of Duncan v R, the appellant, Duncan, appealed against his sentence for manslaughter and aggravated dangerous driving occasioning grievous bodily harm. The appeal was heard by the NSW Court of Criminal Appeal. The primary issue before the court was whether the sentence imposed by the trial judge was manifestly excessive, taking into account the offender's remorse and self-punishment, as well as the community response to the offender's actions.

The court had to consider the weight to be given to the offender's remorse and self-punishment in a case of gross moral culpability. This involved a discussion of the principles set out in Neal v The Queen and the relevance of extra-curial punishment, public humiliation, and vilification in understanding the community response. The court also had to determine whether the sentences imposed were outside the relevant range, considering the principles discussed in R v Borkowski and R v Cameron.

The NSW Court of Criminal Appeal held that the sentence imposed by the trial judge was not manifestly excessive. The court considered the offender's remorse and self-punishment, as well as the community response to his actions. The court found that the trial judge had appropriately taken into account the offender's remorse and self-punishment, as well as the community response, in determining the sentence. The court also found that the sentences imposed were within the relevant range, considering the principles discussed in R v Borkowski and R v Cameron. Therefore, the appeal was dismissed.

The court made no orders for costs.

Orders