Markham v Regina - [2007] NSWCCA 295

New South Wales
Court of Criminal Appeal

CITATION: Markham v Regina [2007] NSWCCA 295

HEARING DATE(S): 18/05/07

JUDGMENT DATE:
13 November 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 2; Price J at 35

DECISION: Leave to appeal granted and appeal allowed. The sentence passed in the District Court is quashed and, in lieu, the applicant is sentenced to a term of imprisonment comprising a non-parole period of two years and three months, commencing on 15 June 2006 and expiring on 14 September 2008, and a balance of term of one year and nine months, commencing on 15 September 2008 and expiring on 14 June 2010. He will be eligible for release on parole on 14 September 2008.

CATCHWORDS: CRIMINAL LAW: Application for leave to appeal against sentence - dangerous driving occasioning death - applicant driving heavy vehicle - approach to guideline in R v Whyte - whether sentence manifestly excessive

LEGISLATION CITED: Crimes Act 1900 s52A(1)

CASES CITED: R v Whyte (2002) 55 NSWLR 252
R v Jurisic (1998) 45 NSWLR 209
R v Clampitt-Wotton [2002] NSWCCA 383
Musgrove v R (2007) 167 A Crim R 424

PARTIES: Simon Colin Markham (applicant)
Regina (respondent)

FILE NUMBER(S): CCA 2007/3264 (formerly 2007/572)

COUNSEL: T A Game SC (applicant)
L M B Lamprati SC (Crown)

SOLICITORS: David Phillip Giddy (applicant)
Solicitor for Public Prosecutions (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/3071

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

2007/3264 (formerly 2007/572)

McCLELLAN CJ at CL
HIDDEN J
PRICE J
Tuesday, 13 November 2007

Simon Colin Markham v Regina

Judgment

1 McCLELLAN CJ at CL: I agree with Hidden J.

2 HIDDEN J: The applicant, Simon Colin Markham, pleaded guilty before a magistrate to a charge of dangerous driving occasioning death, an offence under s52A(1) of the Crimes Act which carries a maximum sentence of ten years imprisonment. He was committed for sentence in the District Court and, in due course, was sentenced to imprisonment for six years, comprising a non-parole period of three years, commencing on 15 June 2006, and a balance of term of three years. The sentence dates from the day on which he was taken into custody following the proceedings on sentence in the District Court. His driver’s licence was also disqualified for a period, but that is of no significance for present purposes. He seeks leave to appeal against the sentence.

Facts

3 The offence arose from an accident in which the applicant was involved at Wetherill Park in the morning of 1 April 2005. The applicant worked as a truck driver and was driving a heavy vehicle. He had commenced his journey at Mildura the previous night. It will be necessary to examine the evidence concerning the course of that journey.

4 The facts of the offence were set out in an agreed statement, as follows:

At about 10.15am on Friday 1 April 2005 the offender was the driver of a blue Kenworth prime mover with attached B…

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 Markham v Regina

Details

AGLC: Markham v R [2007] NSWCCA 295
Case: [2007] NSWCCA 295
Decision Date: 13 November 2007

CaseChat Overview and Summary

In the case of Markham v Regina, the applicant, Markham, appealed against the sentence imposed for dangerous driving occasioning death. Markham was convicted for driving a heavy vehicle in a manner that was dangerous and caused the death of a pedestrian. The Court of Appeal assessed whether the sentence was manifestly excessive in light of the relevant guidelines.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. The court was required to consider the principle articulated in R v Whyte, which provides guidance on the appropriate sentence for dangerous driving occasioning death. The court needed to determine if the sentence departed to such an extent from the guideline as to be manifestly excessive.

The Court of Appeal found that the sentence imposed was not manifestly excessive. The trial judge had considered the relevant principles and guidelines in R v Whyte and had appropriately balanced the factors relevant to the offence. The court held that the sentence was within the range of appropriate penalties for the offence, and therefore, the sentence was not manifestly excessive. Consequently, the appeal against sentence was dismissed. The Court of Appeal's decision affirmed the trial judge's sentence, and no further orders were made.

Orders