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Geagea v R

Geagea v R

Case [2020] NSWCCA 350 21 December 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Geagea v R [2020] NSWCCA 350
Hearing dates: 20 November 2020
Date of orders: 21 December 2020
Decision date: 21 December 2020
Before: Hoeben CJ at CL; Davies J; Fagan J
Decision:
(1) Time for filing the application for leave to appeal is extended so far as necessary to enable the application to proceed.
(2) Leave to appeal is granted.
(3) The appeal is upheld.
(4) The aggregate sentence imposed by Colefax DCJ on 21 June 2019 is quashed.
(5) In lieu thereof the applicant is sentenced to an aggregate sentence of 3 years and 10 months commencing on 19 June 2019 and expiring on 18 April 2023 with a non-parole period of 2 years and 6 months expiring on 18 December 2021. The applicant will be eligible for parole from 19 December 2021.

Catchwords:
CRIMINAL LAW – appeal against sentence – dangerous driving occasioning death – fail to stop after vehicle impact causing death – whether sentencing judge erred in assessment of objective seriousness of failing to stop and assist – whether sentencing judge failed to accept applicant’s remorse – leave to appeal granted – appeal upheld and applicant resentenced

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Delaney v R [2013] NSWCCA 150
Hoskins v R [2020] NSWCCA 18
Khoury v R [2011] NSWCCA 118
R v Georgopolous [2010] NSWCCA 246
R v Pearce [2020] NSWCCA 61
R v Pullen [2018] NSWCCA 264
R v Jurisic (1998) 45 NSWLR 209
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
R v Wilkinson (No. 5) [2009] NSWSC 432
Sarikaya v The Queen [2015] VSCA 236

Category: Principal judgment
Parties: Georges Geagea (applicant)
Regina (respondent)
Representation:
Counsel:
T Game SC with I McLachlan (applicant)
H Roberts (respondent)

Solicitors:
Aquila Lawyers (applicant)
The Solicitor for the Director of Public Prosecutions (respondent)

File Number(s): 2017/4507
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 345

Date of Decision:

21 June 2019

Before:

Colefax SC DCJ

File Number(s):

2017/4507

Judgment

THE COURT: This is an application for leave to appeal against an aggregate sentence passed by his Honour Judge Colefax SC in the District Court at Parramatta on 21 June 2019. The sentence was imposed for the following offences, upon the applicant having pleaded guilty to each charge:

Dangerous driving occasioning death, contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW).

Failing to stop and assist after a vehicle impact causing death, contrary to s 52AB(1) of the Crimes Act.

The maximum penalty for each offence is 10 years imprisonment.

Both offences were committed on 28 December 2016. The applicant was arrested and charged on 7 January 2017 and was on bail from then until he entered his plea of guilty on 19 June 2019. His sentence was fixed to commence on that day. The aggregate imposed by his Honour was 6…

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 Geagea v R

Details

AGLC: Geagea v The Queen [2020] NSWCCA 350
Case: [2020] NSWCCA 350
Decision Date: 21 December 2020

CaseChat Overview and Summary

The case of Geagea v R involved the appellant, Geagea, who appealed against his sentence following a conviction for dangerous driving occasioning death and failing to stop after a vehicle impact causing death. The case was heard in the High Court of Australia, which granted the appellant leave to appeal on the basis of the contention that the sentencing judge had erred in their assessment of the objective seriousness of the appellant's failure to stop and assist after the accident. The appellant also argued that the sentencing judge had failed to appropriately take into account his expressions of remorse.

The key legal issues in the case centred on the proper assessment of the objective seriousness of the appellant's conduct in failing to stop and assist after the accident, and the extent to which the sentencing judge should have considered the appellant's remorse when determining the appropriate sentence. The High Court needed to determine whether the sentencing judge had erred in these respects, and if so, whether such errors were significant enough to warrant the granting of leave to appeal and the subsequent upending of the original sentence.

The High Court found that the sentencing judge had erred in their assessment of the objective seriousness of the appellant's failure to stop and assist. The Court held that the sentencing judge had failed to appropriately consider the totality of the appellant's conduct, and had placed excessive weight on the appellant's failure to stop and assist, to the detriment of other relevant factors. Furthermore, the Court found that the sentencing judge had not adequately considered the appellant's remorse, which was a relevant mitigating factor that should have been given appropriate weight. As a result of these errors, the High Court allowed the appeal and resentenced the appellant. The Court noted that while the appellant's conduct was clearly serious, the sentencing judge had not properly balanced the various factors in reaching their original sentence, and as such the appeal was upheld.

Orders