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McGonigle v R

McGonigle v R

Case [2020] NSWCCA 84 1 May 2020

Appeal

Aggravated & Exemplary Damages

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: McGonigle v R [2020] NSWCCA 84
Hearing dates: 3 April 2020
Date of orders: 01 May 2020
Decision date: 01 May 2020
Before: McCallum JA at [1]
Johnson J at [2]
Adamson J at [149]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords: APPEAL – sentence – offences of aggravated dangerous driving causing grievous bodily harm and driving dangerously during a police pursuit – applicant’s vehicle in near collision with police vehicle – police pursued applicant’s vehicle over 8.1 kilometres on north coast country road – applicant drove up to 139 kilometres per hour with a blood alcohol content between 0.155 and 0.180 grammes per 100 millilitres of blood – applicant’s vehicle spun out of control and collided with tree – passenger in applicant’s vehicle ejected 39.5 metres away and suffered substantial injuries – aggregate sentence of imprisonment for four years and three months with non-parole period of two years and three months – whether aggregate sentence was manifestly excessive – where sentencing Judge had regard to the guideline judgment in R v Whyte – where there were two statutory aggravating factors under s.52A(7) Crimes Act 1900 of driving with prescribed concentration of alcohol and driving at a speed which exceeded the speed limit by 45 kph – substantial objective gravity of offences – where sentencing Judge had proper regard to the Applicant’s strong subjective case – aggregate sentence not manifestly excessive – appeal dismissed
Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Road Transport Act 2013
Cases Cited: Brookes v R [2009] NSWCCA 265
Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428; [2017] HCA 41
Gray v R [2018] NSWCCA 39
JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
Lawson v R [2018] NSWCCA 215
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Owen v R [2017] NSWCCA 54
Priovolidis v R [2016] NSWCCA 201
R v Carruthers (2008) 182 A Crim R 481; [2008] NSWCCA 59
R v Coffee [2010] NSWDC 261
R v Dodd (1991) 57 A Crim R 349
R v Glover [2011] NSWDC 65
R v Innes [2009] NSWDC 345
R v Jurisic (1998) 45 NSWLR 209
R v Kyle [2014] NSWCCA 300
R v MacPherson [2017] NSWDC 170
R v Palu (2002) 134 A Crim R 174; [2002] NSWCCA 381
R v Reay [2018] NSWDC 386
R v Tuhakaraina [2016] NSWCCA 81
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
Reddy v R [2018] NSWCCA 212
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Ul-Hassan v R [2018] NSWCCA 177
Vale v R [2016] NSWCCA 154
Vandeventer v R [2013] NSWCCA 33
XZ v R [2018] NSWCCA 76
Texts Cited: ---
Category: Principal judgment
Parties: Mark McGonigle (Applicant)
Regina (Respondent)
Representation:
Counsel:

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 McGonigle v R

Details

AGLC: McGonigle v The Queen [2020] NSWCCA 84
Case: [2020] NSWCCA 84
Decision Date: 01 May 2020

CaseChat Overview and Summary

McGonigle appealed against his sentence of four years and three months imprisonment with a non-parole period of two years and three months, imposed after he was found guilty of aggravated dangerous driving causing grievous bodily harm and driving dangerously during a police pursuit. The appeal centered on whether the sentence was manifestly excessive. The case involved a police pursuit of the applicant’s vehicle over 8.1 kilometres on a north coast country road at speeds up to 139 kilometres per hour, with the applicant's blood alcohol content measured between 0.155 and 0.180 grammes per 100 millilitres of blood. The applicant’s vehicle subsequently spun out of control, colliding with a tree, which resulted in a passenger being ejected 39.5 metres away and sustaining substantial injuries.

The legal issues before the court included whether the aggregate sentence was manifestly excessive, considering the sentencing Judge had applied the guideline judgment from R v Whyte, and the presence of two statutory aggravating factors under section 52A(7) of the Crimes Act 1900. These factors were the driving with a prescribed concentration of alcohol and the excessive speed limit breach of 45 kph. The court also had to consider the substantial objective gravity of the offences and the applicant's subjective circumstances.

The court found that the sentencing Judge had given appropriate consideration to the guideline judgment and the statutory aggravating factors, as well as the substantial objective gravity of the offences and the applicant's subjective case. The aggregate sentence was not deemed manifestly excessive. Consequently, the appeal was dismissed, affirming the original sentence imposed by the lower court.

Orders