Leeming JA at [1]; Price J at [31]; Hamill J at [55]
Decision:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) Quash the sentence imposed in the District Court on 5 November 2020 and in lieu thereof:
(i) The applicant is sentenced to an aggregate sentence of 12½ years commencing on 29 September 2018 and expiring on 28 March 2031.
(ii) There will be a non-parole period of 8 years and 4 months commencing on 29 September 2018 and expiring on 28 January 2027.
(iii) The applicant will first be eligible for release to parole at the expiration of the non-parole period.
(4) Confirm the order for disqualification from driving made by the District Court.
Catchwords:
CRIME – sentencing – appeal against sentence – two counts of vehicular manslaughter – additional count of dangerous driving causing grievous bodily harm – two people killed – offender heavily intoxicated – whether sentencing Judge erred in finding facts – whether Judge failed to afford procedural fairness – finding that offender always intended to drive away from hotel – thoughtful and comprehensive sentencing judgment – no patent error established – no denial of procedural fairness
CRIME – sentencing – whether sentence manifestly excessive – tragic case – offending approaching but not within the worst category of case – survey of comparable cases – totality – aggregate sentence – where individual indicative sentences high but within range – totality and notional accumulation – (by majority) aggregate sentence held to be excessive – appeal allowed – applicant re-sentenced
Legislation Cited:
Crimes Act 1900 (NSW), ss 18, 51B(1), 52(4), 52A(2), 52A(4)
[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
AGLC
Moananu v R [2022] NSWCCA 85
Case
[2022] NSWCCA 85
Decision Date
CaseChat Overview and Summary
Moananu was convicted of two counts of vehicular manslaughter and one count of dangerous driving causing grievous bodily harm. The defendant was heavily intoxicated when he drove away from a hotel, resulting in the deaths of two individuals and serious injury to another. Moananu appealed the sentence imposed by the sentencing Judge, arguing that there was a patent error in the finding of facts, procedural unfairness, and that the aggregate sentence was manifestly excessive. The appeal was heard in the High Court of Australia.
The appeal raised two primary legal issues. Firstly, whether the sentencing Judge erred in finding the facts or failed to afford procedural fairness. Secondly, whether the aggregate sentence was manifestly excessive given the totality of the circumstances. The court examined the sentencing judgment and the evidence to determine if the Judge's findings were based on an error of law or fact. The court also considered if the Judge afforded the defendant procedural fairness by considering all relevant factors and allowing for proper representation. The court then assessed the aggregate sentence against the totality of the circumstances and compared it to similar cases to determine if it was manifestly excessive.
The court found that the sentencing Judge did not err in finding the facts, and the process was fair. The judgment was thoughtful and comprehensive, taking into account all relevant factors and giving appropriate weight to the severity of the offending. The court noted that the case was tragic but did not fall within the worst category of cases. The court compared the aggregate sentence to similar cases and concluded that, while the individual indicative sentences were high, they were within the appropriate range. The majority of the court held that the aggregate sentence was excessive when considering the totality and notional accumulation of the sentences. As a result, the appeal was allowed, and Moananu was re-sentenced.
The final orders of the court were to allow the appeal and re-sentence Moananu. The court did not specify the new sentence but noted that it should reflect the totality of the circumstances and be proportionate to the offending. The court's decision emphasised the importance of considering the totality of the circumstances and ensuring that the sentence is fair and proportionate to the offending.