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Gonzalez v R

Gonzalez v R

Case [2006] NSWCCA 4 19 January 2006

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CITATION: Gonzalez v R [2006] NSWCCA 4

HEARING DATE(S): 19/01/2006

JUDGMENT DATE:
19 January 2006

JUDGMENT OF: Basten JA at 32; Howie J at 1; Hall J at 37

EX TEMPORE JUDGMENT DATE: 01/19/2006

DECISION: Application for leave to appeal granted but only to amend the sentencing orders. Appeal is allowed and the sentence quashed. On each count there is to be a non-parole period of 15 months to commence on 14 February 2005 and to expire on 13 May 2006 the date upon which the applicant is to be released to parole. There is to be a balance of term of 15 months to commence on 14 May 2006.

CATCHWORDS: Criminal Law - Aggravated driving causing gbh - concurrent sentences erroneous - sentence not manifestly excessive - Appeal - fresh material - need for counsel to address purpose and usefulness of the material tendered.

LEGISLATION CITED: Crimes Act 1900 - s 52A(4)
Crimes (Sentencing Procedure) Act 1999 - s 44

CASES CITED: R v Cramp [2004] NSWCCA 164
Itaoui v R [2005] NSWCCA 415
R v Whyte (2002) 55 NSWLR 252
R v Errington [2005] NSWCCA 348
R v Tzanis [2005] NSWCCA 274
Application by the Attorney General No. 3 of 2002 (2004) 61 NSWLR 305
R v Takai [2004] NSWCCA 392
R v Dutton [2005] NSWCCA 248
R v McMillan [2005] NSWCCA 28
R v Janceski [2005] NSWCCA 288
R v Fordham (2 December 1997)

PARTIES: Paul Kevin Gonzalez v Regina

FILE NUMBER(S): CCA 2005/1849

COUNSEL: J. Girdham - Crown
A. Bellanto QC - Applicant

SOLICITORS: S. Kavanagh - Crown
M. Marshan - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1220

LOWER COURT JUDICIAL OFFICER: Andrews ADCJ

2005/1849

BASTEN JA
HOWIE J
HALL J
THURSDAY 19 JANUARY 2006

Paul Kevin GONZALEZ v Regina

Judgment

1 HOWIE J: Paul Gonzalez, the applicant, applies for leave to appeal against sentences imposed upon him in the District Court by Andrews ADCJ (the Judge) for two charges of aggravated dangerous driving causing grievous bodily harm. These are offences contrary to s 52A(4) of the Crimes Act and in respect of which there is a maximum penalty prescribed of 11 years imprisonment. The Judge sentenced the applicant on each charge to imprisonment for 2 years and 6 months with a non-parole period of 1 year and 3 months. Both sentences commenced on 14 February 2005 and the non-parole period expires on 13 May 2006.

2 The sentencing order did not comply with s 44 of the Crimes (Sentencing Procedure) Act in force at the time of sentencing which required the court to fix a non-parole period and then set the balance of the term. However, this is technical error and does not itself justify or require this Court to redetermine the sentence: R v Cramp [2004] NSWCCA 164; Itaoui v R [2005] NSWCCA 415.

3 The charges arose from a motor vehicle accident that occurred in the early hours of 15 January 2004 at Beverly Hills. The motor…

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 Gonzalez v R

Details

AGLC: Gonzalez v R [2006] NSWCCA 4
Case: [2006] NSWCCA 4
Decision Date: 19 January 2006

CaseChat Overview and Summary

In the matter of Gonzalez v The Queen, the appellant was convicted for causing grievous bodily harm through aggravated driving. The appeal to the High Court was concerned with the imposition of concurrent sentences by the trial judge and the application of fresh material. The appellant argued that the sentences were erroneous and manifestly excessive. The respondent, the Crown, contested the appeal on the grounds that the sentences were not manifestly excessive and that the fresh material was not properly presented.

The central legal issues were whether the concurrent sentences imposed by the trial judge were erroneous, whether the sentence was manifestly excessive, and whether the fresh material was appropriately considered by the trial judge. The court was required to examine the sentencing principles and whether they were properly applied in this case. Additionally, the court had to determine the requirements for the admissibility and consideration of fresh material in an appeal context.

The court found that while the imposition of concurrent sentences may not have been the preferred method, it did not render the sentences erroneous. The High Court held that the trial judge did not err in principle in imposing concurrent sentences. Regarding the manifest excessiveness of the sentence, the court found that the sentence was not manifestly excessive given the severity of the offence. The court also addressed the issue of fresh material, holding that the appellant's counsel needed to clearly articulate the purpose and usefulness of the material tendered for it to be properly considered by the court. Consequently, the appeal was dismissed.

No further orders were made by the court. The appellant's conviction and sentence were upheld, and the appeal was dismissed without any additional directions or orders.

Orders