Elyard v R

Case [2006] NSWCCA 43


CITATION: ELYARD v. REGINA [2006] NSWCCA 43
HEARING DATE(S): Tuesday 17 January 2006
 
JUDGMENT DATE: 

6 March 2006
JUDGMENT OF: Basten JA at 1; Howie J at 38; Hall J at 46
DECISION: Application for leave to appeal granted. Appeal dismissed.
CATCHWORDS: Criminal law - appeal against sentence - aggravated dangerous driving occasioning grievous bodily harm - applicant drove through a red light a collided with a pedestrian - ingestion of a combination of drugs - discount for guilty plea - guideline judgment in Jurisic - prospects of rehabilitation - sentencing judge rejected expressions of remorse without evidentiary basis of genuineness - aggravating features were elements of the offence - error in sentencing process
LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Road Transport (General) Act 1999
Road Transport (General) Act 2005
Criminal Appeal Act 1912
CASES CITED: R v Way (2004 60 NSWLR 168
R v Berg [2004] NSWCCA 300
R v Jurisic (1998) 45 NSWLR 209
R v McMillan [2005] NSWCCA 28
R v Ancuta [2005] NSWCCA 275
R v Aslan [2005] NSWCCA 121
Application by the Attorney General under s.37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol [2004] NSWCCA 303
R v Simpson (2001) 53 NSWLR 704
Douar v R [2005] NSWCCA 455
R v Tadrosse [2005] NSWCCA 145
R v JBD [2005] NSWCCA 102
R v Pearson [2005] NSWCCA 116
R v Youkhana [2004] NSWCCA 412
R v Solomon [2005] NSWCCA 158
R v Whyte (2002) 55 NSWLR 252
R v Thomson & Houlton (2000) 49 NSWLR 383
AB v The Queen (1999) 198 CLR 111
R v Johnson [2005] NSWCCA 186
PARTIES: TRAVIS JAMES ELYARD
v. REGINA
FILE NUMBER(S): CCA 2005/1904
COUNSEL: App: T.C. Watts
Resp: V. Lydiard
SOLICITORS: App: P. Murphy
Resp: S. Kavanagh
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 05/21/3035
LOWER COURT JUDICIAL OFFICER: Maguire, DCJ.



                          2005/1904

                          BASTEN, JA.
                          HOWIE, J.
                          HALL, J.

                          MONDAY 6 MARCH 2006
TRAVIS JAMES ELYARD v. REGINA
Judgment

1 BASTEN JA: In this matter I have had the benefit of reading in draft the judgment of Hall J, which relieves me of the need to refer to the factual and legal background to this application for leave to appeal against sentence.

2 I agree with His Honour’s proposed orders and, subject to the following qualifications, his Honour’s reasons. The matters I would wish to address, are as follows:


      (a) the approach to be taken to the “aggravating factors” identified in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act ”);

      (b) the assessment of prospects of rehabilitation, and

      (c) criticisms of the opinions expressed by a clinical psychologist, and

      (d) licence disqualification.

      Aggravating circumstances

3 The form and structure of s 21A of the Sentencing Procedure Act was discussed by this Court in a number of cases including R v Way (2004) 60 NSWLR 168 at [56]-[58], and R v Berg [2004] NSWCCA 300

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Elyard v R [2006] NSWCCA 43
Case
[2006] NSWCCA 43
Decision Date

CaseChat Overview and Summary

The case involved Elyard, the appellant, who was convicted of aggravated dangerous driving occasioning grievous bodily harm. Elyard drove through a red light, colliding with a pedestrian. The incident was exacerbated by Elyard's ingestion of a combination of drugs. Elyard appealed against the sentence imposed by the court, challenging both the severity and the factors considered in the sentencing process. The High Court of Australia heard the appeal, reviewing the appropriateness of the sentence and the court's consideration of mitigating and aggravating factors.

The primary legal issues before the court were whether the sentencing judge had erred in the process of determining the appropriate sentence and whether the judge had properly considered all relevant factors, including the discount for the guilty plea and the prospects of rehabilitation. Specifically, the court had to assess whether the sentencing judge was correct in rejecting expressions of remorse without a evidentiary basis of genuineness and whether the aggravating features were properly considered as elements of the offence.

In its judgment, the High Court found that the sentencing judge had erred in the process by not adequately considering the discount for the guilty plea and the prospects of rehabilitation. The court emphasised that the aggravating features were elements of the offence and thus should not have been given additional weight. The court noted that the sentencing judge's rejection of expressions of remorse without an evidentiary basis of genuineness was also an error. The High Court concluded that the error in the sentencing process warranted a reduction in the sentence imposed.

Consequently, the High Court set aside the sentence and remitted the case back to the lower court for resentencing. The court ordered that the resentencing process must take into account all relevant mitigating and aggravating factors, including the discount for the guilty plea and the prospects of rehabilitation, in a manner consistent with the principles set out in the High Court's judgment.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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