Elphick v R - [2021] NSWCCA 167

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Elphick v R [2021] NSWCCA 167
Hearing dates: 12 July 2021
Decision date: 21 July 2021
Before: Basten JA at [1]; Walton J at [2]; Adamson J at [3]
Decision:
(1) Grant leave to the applicant to appeal against the sentence imposed on him in the District Court on 19 January 2021.
(2) Appeal dismissed.

Catchwords:
CRIME — Appeals — Appeal against sentence —The sentencing judge did not overstate the applicant’s moral culpability — Applicant drove straight into the side of a highly visible vehicle on a highway with a speed limit of 110kph — Conduct constituted an egregious want of care — Failure to look properly and assess the presence of oncoming traffic created a substantial risk of collision with catastrophic consequences — The sentencing judge properly assessed the application for an ICO — Assessed the applicant’s risk of reoffending low whether given an ICO or full-time custody — The purposes of general deterrence would not be sufficiently served by an ICO — Sentence was not manifestly excessive

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

Cases Cited:
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Thai v R [2009] NSWCCA 314

Category: Principal judgment
Parties: Luke Elphick (Applicant)
Regina (Respondent)
Representation:
Counsel:
D Dalton SC / S Kluss (Applicant)
G Newton (Respondent)
Solicitors:
Rake Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/264420
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

19 January 2021

Before:

Lerve DCJ

File Number(s):

2019/264420

Judgment

BASTEN JA: I agree with Adamson J. Just how the applicant came to drive into the side of the vehicle in which the victims were travelling is difficult to comprehend. However, making every allowance for the good character of the applicant, that difficulty does not reduce his culpability. There was no error of principle or fact in the careful reasoning of the sentencing judge.
WALTON J: I agree with the judgment and orders proposed by Adamson J and the additional observations made by Basten JA.
ADAMSON J: Luke Elphick (the applicant) applies for leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Lerve DCJ on 19 January 2021 at Wagga Wagga District Court for two offences: dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW) and dangerous driving occasioning grievous bodily harm contrary s 52A(3)(c) of the Crimes Act.
His Honour imposed an aggregate sentence of 3 years’ imprisonment commencing on 19 January 2021 and expiring on 18 January 2024 with a non-parole period of 2 years to expire on 18 January 2023. The ratio of 66.66% between the non-parole period and the total term reflects his Honour’s finding of special circumstances. His Honour allowed a discount…

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 Elphick v R

Details

AGLC: Elphick v R [2021] NSWCCA 167
Case: [2021] NSWCCA 167
Decision Date: 21 July 2021

CaseChat Overview and Summary

In the case of Elphick v R, the applicant, Elphick, appealed against his sentence imposed by the sentencing judge. Elphick had driven into the side of a highly visible vehicle on a highway with a speed limit of 110kph, leading to a collision. The primary issue before the court was whether the sentencing judge had correctly assessed Elphick's moral culpability and whether the sentence was manifestly excessive. Additionally, the court had to determine if an Intensive Corrections Order (ICO) was an appropriate alternative to full-time custody, considering the risk of reoffending and the purposes of general deterrence.

The court examined whether the sentencing judge had overstated Elphick's moral culpability, considering the egregious want of care demonstrated by his failure to look properly and assess the presence of oncoming traffic, which created a substantial risk of collision with catastrophic consequences. The court found that the sentencing judge had properly assessed Elphick's moral culpability, taking into account the severity of the incident and the significant risk he posed to other road users. Furthermore, the court considered the applicant's risk of reoffending, which was assessed as low whether given an ICO or full-time custody. The court concluded that an ICO would not sufficiently serve the purposes of general deterrence in this case.

The court held that the sentencing judge had not overstated Elphick's moral culpability and that the sentence was not manifestly excessive. The court dismissed the appeal, affirming the sentence imposed by the sentencing judge. The court found that the purposes of general deterrence would not be sufficiently served by an ICO, and the risk of reoffending was low regardless of the sentence imposed. The final orders of the court were that the appeal was dismissed, and the sentence imposed by the sentencing judge was upheld.

Orders