Ian Gobbett v Regina - [2006] NSWCCA 46

CITATION: Ian Gobbett v Regina [2006] NSWCCA 46

HEARING DATE(S): 24 February 2006

JUDGMENT DATE:
8 March 2006

JUDGMENT OF: Mason P at 1; Barr J at 2; Howie J at 22

DECISION: Grant leave to appeal and allow the appeal. Quash the sentences imposed and substitute the following - On the first count: a non-parole period of three years commencing on 28 January 2005 and expiring on 27 January 2008 and a balance of term of two years; On the second count: a non-parole period of three years commencing on 28 January 2006 and expiring on 27 January 2009 and a balance of term of two years; and On the third count: a fixed term of three years commencing on 28 January 2005 and expiring on 27 January 2008.

PARTIES: Ian Gobbett, Regina

FILE NUMBER(S): CCA 2005/2011

COUNSEL: P Power SC
H Dhanji

SOLICITORS: S Kavanagh
Steve O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1310

LOWER COURT JUDICIAL OFFICER: Kinchington QC DCJ

2005/2011

MASON P
BARR J
HOWIE J
8 MARCH 2006

IAN GOBBETT v REGINA

Judgment

1 MASON P: I agree with Barr J.

2 BARR J: The applicant, Ian Gobbett seeks leave to appeal against sentences imposed in the District Court.

3 The applicant pleaded guilty in the Local Court to two counts of dangerous driving causing death and one count of dangerous driving causing grievous bodily harm. He was committed to the District Court for sentence. On 18 March 2005 Kinchington QC DCJ sentenced him on each of the counts of dangerous driving causing death to a head sentence of six years, commencing on 28 January 2005 and expiring on 27 January 2011. For each sentence his Honour fixed a non-parole period of four years, expiring on 27 January 2009. For the offence of dangerous driving causing grievous bodily harm his Honour imposed a fixed term of four years wholly concurrent with the non-parole periods. The effective sentence was therefore one of six years with a non-parole period of four years.

4 The facts were summarised by his Honour as follows -

At about 9:10pm on Friday 11 July 2003 the offender was driving his motor vehicle, a Victorian registered vehicle, DEJ 455, south on the Pacific Highway, north of Yelgun. Within the vehicle at that time was his partner and intended wife Karen Mann and three of her children, Megan, Justin and Amber Cavanagh. The vehicle had approached the rear of a number of vehicles travelling south bound at a position where the highway was divided. There were two lanes proceeding in both the northerly and southerly direction at that time. This was approximately 10 to 15 minutes prior to the collision which gave rise to these proceedings.

At that time the offender, coming up behind one of those vehicles, verged into the breakdown lane adjacent to the nearside lane of that dual carriageway and passed a vehicle driven by a man by the name of Harris on his left-hand side while…

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.

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Details

Case: [2006] NSWCCA 46
Decision Date: 8 March 2006

CaseChat Overview and Summary

Ian Gobbett was convicted in the Local Court of two counts of dangerous driving causing death and one count of dangerous driving causing grievous bodily harm. He was sentenced in the District Court to six years imprisonment for each of the first two counts, with a four-year non-parole period for each, and a concurrent fixed term of four years for the third count. Gobbett appealed to the New South Wales Court of Criminal Appeal against the severity of his sentence. The appeal court found that the District Court judge had erred in the assessment of the aggravating features of Gobbett's driving and in not properly considering the benefits of his early guilty pleas. The court held that the sentences imposed were manifestly excessive and did not properly balance the aggravating and mitigating factors. The Court of Criminal Appeal granted leave to appeal, quashed the original sentences, and substituted new sentences with reduced non-parole periods and balances of term to promote Gobbett's rehabilitation. Specifically, the court ordered a non-parole period of three years and a two-year balance of term for the first two counts and a three-year fixed term for the third count.

Orders