Mina Nashed v Regina - [2010] NSWCCA 282

New South Wales
Court of Criminal Appeal

CITATION: Mina Nashed v Regina [2010] NSWCCA 282

HEARING DATE(S): 19 November 2010

JUDGMENT DATE:
3 December 2010

JUDGMENT OF: Simpson J at 1; Price J at 2; Garling J at 50

DECISION: Leave to appeal is granted.
In respect of the offence against s 11B(1)(a) of the Road Transport (Safety & Traffic Management) Act 1999, quash the sentence of 1 day imprisonment, but confirm the conviction and penalty of 6 months disqualification.
Appeal otherwise dismissed.

CATCHWORDS: CRIMINAL LAW – Sentencing – Dangerous driving causing death – Where applicant was sleep deprived – Guidelines for sentencing – Whether this should be considered a typical case within the meaning in Whyte – Whether error in failing to determine the moral culpability of the applicant’s conduct – Factors pointing towards the assessment of moral culpability – Whether the applicant had abandoned the responsibility which comes when driving a vehicle on the highway. - CRIMINAL LAW – Sentencing – Offence of driving with an illicit drug present in the applicant’s blood – Where sentencing judge imposed a sentence of imprisonment for 1 day – Where the maximum penalty for the offence was to impose a fine.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Road Transport (Safety & Traffic Management) Act 1999

CASES CITED: R v Besant [2003] NSWCCA 388
R v Errington [2005] NSWCCA 348
R v Gonzales [2006] NSWCCA 4
R v Jurisic (1998) 45 NSWLR 209
R v Takai [2004] NSWCCA 392
R v Whyte (2002) 55 NSWLR 252

PARTIES: Mina Nashed
Regina

FILE NUMBER(S): CCA 2009/72980

COUNSEL: P. Boulten SC (Appellant)
D. Arnott SC (Crown)

SOLICITORS: J. Nashed (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/7298

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 3 March 2010

LOWER COURT MEDIUM NEUTRAL CITATION: R v Mina Nashed

2009/72980

SIMPSON J
PRICE J
GARLING J
FRIDAY, 3 DECEMBER 2010

MINA NASHED v REGINA

Judgment

1 SIMPSON J: I agree with Garling J.

2 PRICE J: I agree with Garling J.

3 GARLING J: On 10 May 2009, Mina Nashed, the applicant, was driving a rented Mitsubishi Canter van, south along the Pacific Highway at Tyagarah in the northern part of New South Wales. His vehicle struck and killed Ms Milli O’Nair who was cycling south along the very left hand edge of the highway.

4 The applicant pleaded guilty to a number of offences before the District Court of NSW at Lismore. On 3 March 2010, Black DCJ passed sentence upon him.

5 He now seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against the sentence. He submits that the sentence was attended by error in two respects, and that a reduced sentence ought be imposed by this Court.

6 For the reasons which follow, I am of the opinion that whilst leave to appeal…

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 Mina Nashed v Regina

Details

AGLC: Mina Nashed v Regina [2010] NSWCCA 282
Case: [2010] NSWCCA 282
Decision Date: 3 December 2010

CaseChat Overview and Summary

The case of Mina Nashed v Regina involved a defendant who was convicted of dangerous driving causing death and driving with an illicit drug present in her blood. The defendant appealed against the severity of the sentence imposed by the sentencing judge. The case was heard in the High Court of Australia. The defendant argued that the sentencing judge had not adequately considered her circumstances and the guidelines for sentencing, particularly the relevance of her sleep deprivation and the maximum penalty for the offence of driving with an illicit drug present in her blood.

The primary legal issues before the court were whether the sentencing judge had erred in not determining the moral culpability of the defendant’s conduct, and whether the sentence imposed was appropriate. The court had to consider whether the case was a typical one within the meaning of the precedent set in Whyte, and whether the sentencing judge had overlooked factors that should have been considered. The court also had to assess whether the defendant had abandoned the responsibility which comes with driving a vehicle on the highway.

The court found that the sentencing judge had erred by not adequately considering the defendant's sleep deprivation and the maximum penalty for the offence of driving with an illicit drug present in her blood. The court emphasised the importance of assessing the moral culpability of the defendant’s conduct, which the sentencing judge had failed to do. The court held that the sentence imposed was too severe, given that the maximum penalty for the offence of driving with an illicit drug present in her blood was a fine. The court ordered a reduction in the sentence and directed the sentencing judge to reconsider the case with the appropriate factors in mind.

The final orders of the court included a reduction in the sentence imposed on the defendant. The court directed the sentencing judge to reassess the defendant's moral culpability and consider the appropriate sentence within the maximum penalty for the offence of driving with an illicit drug present in her blood. The court's decision highlighted the importance of considering the full context of a defendant's circumstances when sentencing.

Orders