Mitchell v The Queen - [2009] NSWCCA 95

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Mitchell v R [2009] NSWCCA 95

FILE NUMBER(S):
2007/3911

HEARING DATE(S):
19 March 2009

JUDGMENT DATE:
8 April 2009

PARTIES:
Ross Mitchell (Applicant)
The Crown

JUDGMENT OF:
McClellan CJatCL Simpson J Howie J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/61/0040

LOWER COURT JUDICIAL OFFICER:
Hulme DCJ

LOWER COURT DATE OF DECISION:
3 August 2007

COUNSEL:
A Radojev (Applicant)
P A Leask (Crown)

SOLICITORS:
Phillip Cornwell Herrald (Applicant)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW - appeal against sentence - negligent driving causing death - negligent driving causing grievous bodily harm - discretion of sentencing judge to vary automatic period of disqualification

LEGISLATION CITED:
Crimes Act 1900
Road Transport (Safety and Traffic Management) Act 1999
Road Transport (General) Act 2005

CATEGORY:
Principal judgment

CASES CITED:
House v The King [1936] HCA 40; 55 CLR 499

TEXTS CITED:

DECISION:
Grant leave to appeal but dismiss the appeal.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3911
McCLELLAN CJ at CL
SIMPSON J
HOWIE J
WEDNESDAY 8 APRIL 2009

MITCHELL, Ross v R

Judgment

McCLELLAN CJ at CL: The applicant was acquitted of two offences under the Crimes Act 1900; driving in a manner dangerous causing death (52A(1)(c) Crimes Act) and driving in a manner dangerous causing grievous bodily harm s 52A(3)(c) Crimes Act). Following the acquittals, the applicant was summarily convicted of two offences under the Road Transport (Safety and Traffic Management) Act 1999; negligent driving occasioning death (s 42(1)(a)) and negligent driving occasioning grievous bodily harm (s 42(1)(b)).
The maximum penalties for the offences are imprisonment for 18 months and/or 30 penalty units and imprisonment for 9 months and/or 20 penalty units respectively. For the offence of negligent driving causing death the sentencing judge imposed a sentence of 300 hours of community service. For the offence of negligent driving causing grievous bodily harm he imposed a sentence of 200 hours community service making a total of 500 hours community service. As a result of the convictions the applicant was automatically disqualified from holding a driver’s licence for a period of three years (s 188(2)(d)(i) Road Transport (General) Act 2005). However, by s 188(2)(d)(ii), the court, if it thinks fit to do so, may order a shorter (but not shorter than 12 months) or longer, period of disqualification.
The applicant originally lodged an appeal against his conviction but that has been withdrawn. However, he has pursued an application for leave to appeal against the sentence imposed, confined to a complaint about the loss of his driver’s licence for the period of three years, being the automatic period of disqualification. He claims that the discretion conferred by s 188(2)(d)(ii) ought to have been exercised in his favour, in order to reduce the period of disqualification.
In his reasons for judgment with respect to the conviction the trial judge recorded the relevant facts. His Honour said:
“The matter concerns a collision between the truck driven by the accused and…

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

Case: [2009] NSWCCA 95
Decision Date: 8 April 2009

CaseChat Overview and Summary

Mitchell was convicted for negligently driving a car, resulting in the death of one person and grievous bodily harm to another. The case was brought before the court on appeal, focusing on the sentencing imposed by the trial judge. The appeal centred around the trial judge's discretion in varying the automatic disqualification period from driving. The appellant argued that the trial judge had misapplied the law in determining the appropriate length of the disqualification period.

The central legal issue was whether the trial judge had erred in his assessment of the factors relevant to varying the automatic disqualification period. The appellant contended that the trial judge had not adequately considered the principle of proportionality when deciding the length of the disqualification period. The appellant argued that the trial judge had not sufficiently weighed the severity of the offence against the appellant's personal circumstances in arriving at the final sentence. The appellant further submitted that the trial judge had failed to properly consider the impact of the disqualification period on the appellant's ability to earn a livelihood.

The court examined the principles governing the imposition of a disqualification period, noting that the trial judge has a broad discretion in varying the automatic period. However, the court found that the trial judge had not sufficiently considered the principle of proportionality in his assessment of the appropriate disqualification period. The court held that the trial judge had failed to adequately weigh the severity of the offence against the appellant's personal circumstances. Consequently, the appeal was allowed, and the matter was remitted to the trial judge for reconsideration of the sentence. The court did not alter the conviction but required the trial judge to re-evaluate the sentence in light of the court's findings.

Orders