Bathurst CJ at [1]; Hoeben CJ at CL at [122]; Price J at [123]
Decision:
(1) Grant the applicant leave to appeal. (2) Appeal dismissed.
Catchwords:
CRIMINAL LAW – appeal – sentencing – dangerous driving – whether error in taking into account previous unrelated criminal history – whether error in not finding moral culpability at lower end of range – whether error in finding applicant was driving at excessive speeds – whether error in finding length of journey was an aggravating factor – whether error in not finding accident was result of momentary inattention – whether error in finding specific and general deterrence were relevant factors – whether error in aggregation – whether manifestly excessive
Counsel: M Thangaraj SC / J Raftery (Applicant) P G Ingram SC (Respondent)
Solicitors: Korn Macdougall Legal (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):
2014/167867
Publication Restriction:
Nil
Decision under appeal:
Court or Tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
21 August 2015
Before:
Knox DCJ
File Number(s):
2014/00167867
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant was driving his vehicle in the first lane of a three lane highway when he ran into the back of a group of seven cyclists travelling in the same lane and in the same direction. The road was straight at the point of the accident, however, an earlier bend in the road meant that the cyclists were visible for a distance of approximately 300m. The cyclists were travelling at 32km/h. A nearby driver whose cruise control was set to 80km/h indicated that the applicant was driving slower than him. It was accepted that the applicant was driving at approximately 70km/h. Several witnesses reported that the applicant did…
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
AGLC
Kerr v R [2016] NSWCCA 218
Case
[2016] NSWCCA 218
Decision Date
CaseChat Overview and Summary
The case of Kerr v R came before the court in an appeal against sentencing for dangerous driving. The applicant had been found guilty of dangerous driving causing death and was appealing against the severity of the sentence imposed. The appeal raised several issues concerning the sentencing process, including whether the sentencing judge erred in taking into account the applicant's previous unrelated criminal history, in not finding the applicant's moral culpability at the lower end of the range, in finding that the applicant was driving at excessive speeds, and in finding that the length of the journey was an aggravating factor. The applicant also argued that the sentencing judge erred in not finding that the accident was the result of momentary inattention, in finding that specific and general deterrence were relevant factors, and in the aggregation of these factors. Finally, the applicant submitted that the sentence was manifestly excessive.
The court examined each of these issues in turn. Regarding the consideration of the applicant's previous criminal history, the court found that the sentencing judge was entitled to take it into account in determining the appropriate sentence within the framework set by the objective circumstances of the offence. The court noted that the sentencing judge had expressly stated that the applicant's criminal history could not be taken into account as an aggravating factor in determining the objective seriousness of the offence, but rather in determining where a sentence should lie within the boundaries set by the objective circumstances. The court found that this approach was consistent with previous decisions and that the sentencing judge was entitled to take the applicant's criminal history into account in the manner in which he did. Regarding the other issues raised by the applicant, the court found that the sentencing judge had not erred in his assessment of the relevant factors and that the sentence imposed was not manifestly excessive.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
HOEBEN CJ
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Ratio Decidendi
Legal Principle Established
Established by:
HOEBEN CJ
The Crown also submitted that breach of conditional liberty such as an intensive correction order is a relevant aggravating factor under s 21A(2)(j) of the Sentencing Procedure Act and at common law, although the breach does not serve to increase the objective gravity of the offence. It was submitted that the breach was relevant regardless of whether the subsequent offence was of the same or a different character.Consideration In his sentencing judgment, the sentencing judge expressly stated that neither the criminal history nor the traffic record of the applicant could be taken into account as an aggravating factor in determining the objective seriousness of the offence. He elaborated on this later in his judgment where he stated that the applicant’s driving record and “to a limited extent” his criminal record were only relevant to determining where a sentence should lie within the boundaries set by the objective circumstances of the offence and not to determine its objective seriousness. The remarks of the sentencing judge, to which I have referred above at [53]-[55], must be read in that context. It does not seem to me that he took the prior convictions and traffic record into account in dealing with the objective seriousness of the offence but rather, as he said, in determining the appropriate sentence within the framework set by the objective circumstances. It seems to me that the sentencing judge was entitled to take those matters into account in the manner in which he did. In R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1, the Court accepted that it was appropriate to take the applicant’s traffic and criminal record into account when sentencing the offender. In that case, Howie J, with whom McClellan CJ at CL and Simpson J agreed, stated that the determination of whether a criminal record was a matter of aggravation was largely a matter for the sentencing judge to determine: at [47]. A similar approach has been taken by this Court in other cases: Gonzalez v The Queen [2006] NSWCCA 4 at [7], [11], [29]; Stanyard v The Queen [2013] NSWCCA 134 (Stanyard) at [25]-[26]. Further, this Court on a number of occasions has stated that the fact that the offence was committed whilst the offender was on conditional liberty constitutes an aggravating circumstance: R v Harrison [2001] NSWCCA 79; (2001) 121 A Crim R 380 at [5]; R v Cicekdag [2004] NSWCCA 357; (2004) 150 A Crim R 299 at [7]; Frigiani v The Queen [2007] NSWCCA 81 at [24]-[25]. In the latter case, Howie J made it clear that the offence in respect of which the offender was on conditional liberty did not have to be similar to the offence the subject of the indictment before it could be considered an aggravating factor, although it would generally be considered more aggravating where the conduct was similar to that for which the offender is being sentenced: at [24]. It is true that, in the present case, the offence was a result offence rather than an intentional offence. Nonetheless, to drive in a manner dangerous to the public whilst the subject of an intensive corrections order for an offence of a different nature could be held to be an aggravating circumstance in determining the appropriate sentence. The sentencing judge was entitled to take it into account and did not commit error in doing so.