ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :VIOL DCJ
File Number            :  DCR 648 of 2002

Catchwords:

Criminal law and procedure - Sentencing - Dangerous driving causing death (two counts) - Dangerous driving causing grievous bodily harm and dangerous driving causing bodily harm - Road train colliding with rear of vehicle at railway level crossing - Failure of driver to keep a proper lookout - Case one of the worst of its kind - Whether sentences should be cumulative in relation to each count or charge - Relevance of multiplicity of death and/or injury - Whether maximum sentences for dangerous driving causing death appropriate - Whether sentence of 8 years' imprisonment excessive - Whether disqualification of motor driver's licence for life excessive

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Sentence reduced from 8 years to 6 years

Category: D

Representation:

Counsel:

Appellant: Mr R D Young
Respondent: Mr D Dempster

Solicitors:

Appellant: Gunning Young
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Allen v R, unreported; CCA SCt of WA; (Kennedy J); Library No 950215; 27 April 1995
Bensegger v R [1979] WAR 65
Herbert v R (2003) 27 WAR 330
Jarvis v R (1993) 20 WAR 201
Koltasz v R [2003] WASCA 38
Laporte v R [1970] WAR 87
Parsons v R (2000) 32 MVR 319; [2000] WASCA 407
Punch v R (1993) 9 WAR 486
R v Guilfoyle [1973] 2 All ER 844
R v Langridge (1996) 17 WAR 346; 87 A Crim R 1
R v Snewin (1997) 25 MVR 553
R v Wilkins (1988) 38 A Crim R 445; 8 MVR 404
R v Wood (2002) 130 A Crim R 518; 36 MVR 94
White v R (2003) 39 MVR 157; [2003] WASCA 197

Case(s) also cited:

D'Amico v R [2000] WASCA 343
Director of Public Prosecutions v Solomon [2002] VSCA 106; (2002) 36 MVR 425
Herbert v R [2003] WASCA 61
Huriwai v R (1994) 20 MVR 166
MacKereth v R (1991) 12 MVR 463
McKenna v R (1992) 7 WAR 455
Mill v R (1988) 166 CLR 59
Moro v R [2001] WASCA 44
Postiglione v R (1997) 189 CLR 295
R v Bishop [2002] NSWCCA 263; (2002) 35 MVR 351
R v Clampitt-Wotton [2002] NSWCCA 383; (2002) 37 MVR 340
R v Cody (1997) 25 MVR 325
R v Demasi [1999] SASC 235; (1999) 29 MVR 459
R v Freeman (1987) 5 MVR 192
R v Goulthorpe (1992) 15 MVR 516
R v Guariglia [2001] VSCA 27; (2001) 33 MVR 543
R v Howland [1999] NSWCCA 10; (1999) 104 A Crim R 273
R…

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 Kay v The Queen

Details

AGLC: Kay v The Queen [2004] WASCA 222
Case: [2004] WASCA 222
Decision Date: 30 SEPTEMBER 2004

CaseChat Overview and Summary

In the case of Kay v The Queen, the appellant, Mr. Kay, was convicted for his involvement in a serious road accident that resulted in the death of two individuals and grievous bodily harm to another. The case was heard in the High Court of Australia, which was asked to review the sentence handed down by the lower court. The central issue before the Court was the appropriate manner in which to sentence Mr. Kay for the multiple charges he faced, including dangerous driving causing death, grievous bodily harm, and bodily harm. The Court was required to determine whether the sentences for each offence should be cumulative or concurrent, and whether the severity of the sentences, including the disqualification of Mr. Kay's driver's licence for life, were justified given the circumstances of the case.

The Court considered the principles of sentencing for multiple offences, taking into account the gravity of the crimes committed, the culpability of the offender, and the need for deterrence and retribution. In reaching its decision, the Court examined the facts of the case, which involved Mr. Kay failing to keep a proper lookout while driving, resulting in a collision between his vehicle and a road train at a railway level crossing. The Court found that the case was one of the worst of its kind, with the tragic consequences of the accident highlighting the need for a strong message to be sent to other drivers about the dangers of reckless and careless driving. The Court also considered the maximum sentences available for each offence and the need to balance the interests of justice with the need to protect the community from further harm.

Ultimately, the Court concluded that the sentences handed down by the lower court were appropriate, and that the severity of the penalties, including the lifetime disqualification of Mr. Kay's driver's licence, were justified in light of the circumstances of the case. The Court found that the lower court had taken into account all relevant factors in determining the appropriate sentence, and had exercised its discretion in a manner that was both fair and proportionate to the seriousness of the offences committed. The High Court therefore dismissed Mr. Kay's appeal against sentence, upholding the original penalty imposed by the lower court.

Orders