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Ellis v The Queen

Ellis v The Queen

Case [2020] NSWCCA 303 25 November 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ellis v R [2020] NSWCCA 303
Hearing dates: 19 October 2020
Decision date: 25 November 2020
Before: Hoeben CJ at CL at [1];
Harrison J at [67];
Bellew J at [68]
Decision:
(1) Leave to appeal against sentence is granted.
(2) The appeal against sentence is dismissed.

Catchwords:
CRIMINAL LAW – sentence appeal – driving in a manner dangerous occasioning grievous bodily harm and cause bodily harm by misconduct in charge of a vehicle – collision between semi-trailer and two cars – serious injuries caused to occupants of cars – whether objective seriousness of offending aggravated by knowledge of defective brakes and ignoring the speedometer – whether aggregate sentence manifestly excessive – appeal against sentence dismissed.

Legislation Cited:
Crimes Act 1900 (NSW) – ss 52A, 53
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 3A, 21A, 66
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)

Cases Cited:
AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58 [2014] HCA 2
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Costello v R [2017] NSWCCA 32
Cvetjovski (Cvetkovski) v R [2019] NSWCCA 100; 89 MVR 1
Edwards v R [2020] NSWCCA 141
JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Markham v Regina [2007] NSWCCA 295
Mitreski v R; R v Mitreski [2008] NSWCCA 301
Morabito v Regina [2007] NSWCCA 126
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Obeid v R (2017) 350 ALR 103; [2017] NSWCCA 221
Preston v Regina [2011] NSWCCA 25; 57 MVR 346
R v Jurisic (1998) 45 NSWLR 209; [1998] NSWSC 423
Regina v Clampitt-Wotton [2002] NSWCCA 383; 37 MVR 340
Regina v Craig Besant [2003] NSWCCA 388
Regina v Errington (2005) 157 A Crim R 553; [2005] NSWCCA 348
Regina v Gardiner [2004] NSWCCA 365
Regina v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
Thornton v R [2020] NSWCCA 257
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: Desmond James Ellis – Applicant
Regina – Respondent
Representation:
Counsel:
D Carroll – Applicant
M Kumar – Respondent
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent

File Number(s): 2018/003004
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

30 October 2019

Before:

Hanley SC DCJ

File Number(s):

2018/003004

JUDGMENT

HOEBEN CJ at CL:

Offences and sentence

The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence imposed upon him on 30 October 2019 by his Honour Judge Hanley SC (the sentencing judge) in the District Court at Penrith. The applicant pleaded guilty to one offence…

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 Ellis v The Queen

Details

AGLC: Ellis v The Queen [2020] NSWCCA 303
Case: [2020] NSWCCA 303
Decision Date: 25 November 2020

CaseChat Overview and Summary

Ellis was found guilty of driving in a manner dangerous to the public occasioning grievous bodily harm and causing bodily harm by misconduct in charge of a vehicle. The charges arose from a collision between the semi-trailer he was driving and two cars, which resulted in serious injuries to the occupants of the cars. Ellis was sentenced to a total of seven years imprisonment, with a non-parole period of four years and three months. Ellis appealed against the severity of his sentence, arguing that the objective seriousness of his offending was not aggravated by his knowledge of defective brakes and that he did not ignore the speedometer. The court had to determine whether the aggregate sentence was manifestly excessive.

The court examined the circumstances of the offence and the principles of sentencing for such crimes. It considered the objective seriousness of the offending, the culpability of the offender, and the need for deterrence and denunciation. The court found that the objective seriousness of the offending was indeed aggravated by Ellis's knowledge of the defective brakes and his disregard for the speedometer. The court also considered the impact of the offending on the victims and the community. After a thorough analysis, the court concluded that the sentence was not manifestly excessive and dismissed the appeal.

The court emphasised the importance of driving safely and responsibly, especially when operating heavy vehicles. It highlighted the need for appropriate sentencing to reflect the gravity of such offences and to deter others from engaging in similar conduct. The court also noted the significant impact of the offending on the victims and their families, and the importance of acknowledging that impact in the sentencing process. The appeal against the sentence was dismissed, and Ellis's original sentence was upheld.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence of a total of seven years imprisonment, with a non-parole period of four years and three months, was upheld. The court's decision emphasised the importance of appropriate sentencing for serious driving offences and the need to consider the objective seriousness of the offending, the culpability of the offender, and the impact on the victims and the community.

Orders