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Mansweto v The Queen

Mansweto v The Queen

Case [2018] NSWCCA 232 17 October 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Mansweto v R [2018] NSWCCA 232
Hearing dates: 10 August 2018
Date of orders: 17 October 2018
Decision date: 17 October 2018
Before: Meagher JA; Hoeben CJ at CL; Fagan J
Decision:
(1) Leave to appeal granted.
(2) The appeal is upheld.
(3) The aggregate sentence imposed in the District Court on 20 June 2017 for counts 1 and 2 is quashed.
(4) In lieu thereof the applicant is sentenced to an aggregate term of imprisonment comprising a non-parole period of 1 year and 4 months commencing on 20 June 2017 and expiring on 19 October 2018 and a balance of term of 1 year commencing 20 October 2018 and expiring on 19 October 2019.

Catchwords: CRIMINAL LAW – appeal against sentence – two counts of dangerous driving occasioning grievous bodily harm contrary to Crimes Act 1900 (NSW), s 52A(3)(c) – victims injured when car crashed into home after brakes failed and steering wheel detached from column – two further offences taken into account on Form 1, namely causing bodily harm by misconduct in charge of motor vehicle contrary to Crimes Act, s 53 – further offences of failure to register and failure to insure dealt with on certificate under Crimes (Sentencing Procedure) Act 1999 (NSW), s 166 – aggregate sentence of imprisonment for 4 years 6 months with non-parole period of 2 years 9 months at first instance – where sentencing judge criticised failure of defence to serve evidence relevant to expert opinions – where sentencing judge referred to criticism of a defence expert by Court of Criminal Appeal in a previous case – whether apprehended bias – whether error in assessment of moral culpability – whether sentence manifestly excessive – sentence found manifestly excessive and appellant resentenced
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Road Transport Act 2013 (NSW)
Cases Cited: Australian Securities and Investments Commission v Southcorp Ltd (2003) 46 ACSR 438
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
House v The King (1936) 55 CLR 499
Hughes v R [2018] NSWCCA 2
Isbester v Knox City Council [2015] HCA 20
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258
R v AB [2011] NSWCCA 229
R v AB (No 2) [2011] NSWCCA 256
R v Price [2004] NSWCCA 186
R v Whyte (2002) 55 NSWLR 252; [2005] NSWCCA 343
Tarrant v R [2018] NSWCCA 21
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
Wood v R [2012] NSWCCA 21
Category: Principal judgment
Parties: Jason Mansweto (Appellant)
Regina (Crown)
Representation:
Counsel:
Mr A Bellanto QC with Mr T Bicanic (Appellant)
Mr F Veltro (Crown)
Solicitors:
Mr Y Maksisi…

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 Mansweto v The Queen

Details

AGLC: Mansweto v The Queen [2018] NSWCCA 232
Case: [2018] NSWCCA 232
Decision Date: 17 October 2018

CaseChat Overview and Summary

Mansweto has appealed against his sentence for two counts of dangerous driving occasioning grievous bodily harm. The incident occurred when the brakes failed and the steering wheel detached from the column, causing the vehicle to crash into a home and injure two occupants. Mansweto was also found guilty of causing bodily harm by misconduct in charge of a motor vehicle, as well as failure to register and insure the vehicle. The trial judge imposed a sentence of imprisonment for 4 years 6 months, with a non-parole period of 2 years 9 months. Mansweto's appeal challenged the sentence on several grounds, including the trial judge's criticism of the defence for not serving relevant expert evidence and the reference to a previous case where the Court of Criminal Appeal had criticised a defence expert. Mansweto argued that the sentence was manifestly excessive and that there was apprehended bias on the part of the trial judge. The appeal court found that the sentence was manifestly excessive and resentenced Mansweto. The court found that the trial judge's criticism of the defence for not serving evidence did not constitute bias, and the reference to a previous case did not impact the trial judge's assessment of the evidence. The court also found that the trial judge's assessment of moral culpability was not in error. The court concluded that the original sentence was manifestly excessive and imposed a new sentence of imprisonment for 3 years with a non-parole period of 1 year 6 months.

Orders