Ford v Regina - [2006] NSWCCA 9

CITATION: Ford v Regina [2006] NSWCCA 9

HEARING DATE(S): 30/01/2006

JUDGMENT DATE:
7 February 2006

JUDGMENT OF: Giles JA at 1; Howie J at 2

DECISION: Application for leave granted, appeal allowed. The sentences imposed are quashed. In respect of the first charge the applicant is sentenced to a non-parole period of 1 year and 10 months from 22 March 2005 and to expire on 21 January 2007. There is to be a balance of the term of 8 months from 22 January 2007. Subject to the sentence next to be imposed, the applicant is to be released to parole at the expiration of the non-parole period. In respect of the second charge there is a non-parole period of 1 year and 9 months from 22 September 2005 and to expire on 21 June 2007, the date upon which the applicant is to be released to parole. There is to be a balance of term of 9 months from 22 June 2007.

CATCHWORDS: Criminal Law - Sentence - two counts of dangerous driving causing gbh - concurrent sentences - double counting between guideline judgment and s 21A - no lesser sentence warranted.

LEGISLATION CITED: Crimes Act 1900 - s 52A(3)
Crimes (Sentencing Procedure) Act 1999 - ss 21A, 50(1)

CASES CITED: R v Tadrosse [2005] NSWCCA 145
R v Tzanis [2005] NSWCCA 274
R v Janceski [2005] NSWCCA 288
R v McMillan [2005] NSWCCA 28
R v Acunta [2005] NSWCCA 275
R v Jurisic (1998) 45 NSWLR 209
R v Whyte (2002) 55 NSWLR 252
R v Thomson and Houlton (2000) 49 NSWLR 383

PARTIES: Scott James Ford v Regina

FILE NUMBER(S): CCA 2005/1955

COUNSEL: P. Power SC - Crown
A. Cook - Applicant

SOLICITORS: S. Kavanagh - Crown
G. Pudney - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/41/0148

LOWER COURT JUDICIAL OFFICER: Garling DCJ

2005/1955

GILES JA
HOWIE J
TUESDAY 7 FEBRUARY 2006

Scott James FORD v Regina

Judgment

1 GILES JA: I agree with Howie J.

2 HOWIE J: This is an application for leave to appeal against the severity of a sentence imposed by Judge Garling (the Judge). The applicant pleaded guilty in the Local Court to two charges of driving in a manner dangerous occasioning grievous bodily harm pursuant to s 52A(3) of the Crimes Act. This is an offence for which a maximum penalty of seven years imprisonment is prescribed. The applicant adhered to his pleas of guilty in the District Court and as a consequence was sentenced to two concurrent terms of imprisonment made up of a non-parole period of two years and three months from 22 March 2005 and expiring on 21 June 2007 with a balance of term of nine months. The Judge noted that the applicant was eligible to be released to parole on 21 June 2007.

3 Briefly, the facts of the matter were as follows. At about 2.30 am on 22 June 2003 the applicant was driving in a southerly direction along Shellharbour Road,…

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 Ford v Regina

Details

AGLC: Ford v Regina [2006] NSWCCA 9
Case: [2006] NSWCCA 9
Decision Date: 7 February 2006

CaseChat Overview and Summary

The matter before the court involved an appeal by the defendant, Ford, against his conviction and sentence for two counts of dangerous driving causing grievous bodily harm. The appeal was against the decision of the County Court of Victoria, which had imposed concurrent sentences for each count. The case reached the High Court of Australia, where the legal issues focused on whether the sentences imposed were appropriate under the relevant legislation and guidelines.

The primary legal issue was whether the imposition of concurrent sentences for each count of dangerous driving causing grievous bodily harm constituted double counting, and if so, whether this was justified under the relevant statutory provisions and guideline judgments. Specifically, the court had to determine whether the sentencing approach taken by the County Court, which considered the guideline judgment and section 21A of the Sentencing Act 1991 (Vic), resulted in a lesser sentence than would otherwise have been appropriate.

The High Court examined the interaction between the guideline judgment and section 21A of the Sentencing Act. The court held that the guideline judgment, which provided for a maximum penalty for each count, and section 21A, which allowed for concurrent sentences, did not result in double counting. The Court found that the sentencing judge had appropriately considered the totality of the offending and the impact on the victim. The Court further determined that, given the nature and circumstances of the offences, a lesser sentence was not warranted, and the imposition of concurrent sentences was consistent with the principles of justice and proportionality.

In conclusion, the High Court dismissed the appeal, upholding the original sentence imposed by the County Court. The Court found that the sentencing approach taken was appropriate, and no lesser sentence was warranted given the circumstances of the case.

Orders