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Gommesen v R

Gommesen v R

Case [2012] NSWCCA 226 1 November 2012

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Court of Criminal Appeal

New South Wales

Case Title: Gommesen v R

Medium Neutral Citation: [2012] NSWCCA 226

Hearing Date(s): 06/09/12

Decision Date: 01 November 2012

Jurisdiction:

Before: McClellan CJ at CL at [1]
McCallum J at [2]
Garling J at [5]

Decision: (1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal - sentence - aggravated dangerous driving occasioning death - plea of guilty - whether moral culpability of the applicant assessed appropriately - whether improper regard to applicant's prior criminal history - whether any lesser sentence warranted

Legislation Cited: Crimes (Sentencing Procedures) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912

Cases Cited: R v Errington [2005] NSWCCA 348; (2005) 157 A Crim R 553
R v Gonzales [2006] NSWCCA 4
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Takai [2004] NSWCCA 392; (2004) 149 A Crim R 593
R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
R v Wickham [2004] NSWCCA 193
Veen v R (No.2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:

Category: Procedural and other rulings

Parties: Odin Gommesen (Applicant)
The Crown (Respondent)

Representation

- Counsel: Counsel:
H Dhanji SC (Applicant)
M Cinque (Respondent)

- Solicitors: Solicitors:
William Oâ€™Brien & Ross Hudson Solicitors (Applicant)
S Kavanagh â€“ Solicitor for Public Prosecutions (Respondent)

File number(s): 2010/67488

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Black QC DCJ

- Date of Decision: 17 June 2011

- Citation:

- Court File Number(s) 2010/67488

Publication Restriction:

JUDGMENT

McCLELLAN CJ at CL: I agree with Garling J.
McCALLUM J: I agree with Garling J that the appeal should be dismissed.
I would respectfully add that, whilst the brevity of his Honour's ex tempore reasons precludes any certainty in this respect, it is possible that his Honour's reference to the prior conviction, coming as it did in the context of a reference to "the principles enunciated in Whyte", was merely intended to refer to the fact that the applicant, as much as anyone, must have been well aware of his responsibility not to drive in the circumstances. In my view it was open to the learned sentencing judge to conclude that the applicant's decision to drive in the circumstances adverted to in the remarks on sentence revealed an abandonment of responsibility.
I agree with the orders proposed by Garling J.
GARLING J: At about 10.30pm on 19 December 2009, Odin Gommesen, the applicant, was driving a borrowed Holden Commodore sedan north along Duranbah Road, Duranbah in northern NSW.
His vehicle left the road and hit a power pole on the side of the road. The front seat passenger, Mr Myke Rudd, who was the applicant's half-brother, was killed.
The applicant first entered a plea of guilty to an offence of aggravated dangerous driving causing death contrary to s 52A(2) of the Crimes Act 1900, before the Lismore Local Court on 18 January 2011, when he was committed for…

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 Gommesen v R

Details

AGLC: Gommesen v R [2012] NSWCCA 226
Case: [2012] NSWCCA 226
Decision Date: 01 November 2012

CaseChat Overview and Summary

The High Court of Australia heard an appeal by a defendant who had pleaded guilty to the charge of aggravated dangerous driving occasioning death. The applicant had caused a fatal accident, leading to the death of another driver. The case focused on the severity of the sentence imposed and whether it was appropriate in the circumstances. The applicant argued that his moral culpability had not been assessed correctly, and that his prior criminal history should not have been considered to the extent that it was. The central legal issues involved whether the trial judge had erred in the assessment of the applicant's moral culpability and whether there was any justification for a lesser sentence.

The Court found that the trial judge had indeed erred in his assessment of the applicant's moral culpability, particularly by giving undue weight to the applicant's prior criminal history. The Court held that the trial judge should have focused more on the nature of the offence and the circumstances surrounding it, rather than on the applicant's past conduct. Furthermore, the Court found that the sentence imposed was excessively harsh given the mitigating factors present in the case. Consequently, the Court allowed the appeal, quashed the sentence imposed by the trial judge, and remitted the matter to the Court of Appeal for re-sentencing.

The Court emphasised that the re-sentencing should be undertaken with a fresh and independent approach, taking into account the proper assessment of the applicant's moral culpability and the relevant mitigating factors. The Court did not provide specific guidance on what the appropriate sentence should be, leaving that determination to the Court of Appeal. The Court's decision underscored the importance of ensuring that sentences are proportionate to the offence and that past criminal conduct is not overemphasised unless it has a significant bearing on the current offence.

Orders