Mocerino v The King - [2024] NTCCA 12

CITATION:Mocerino v The King [2024] NTCCA 12
PARTIES:MOCERINO, Nicholas John
v

THE KING

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:AP 6 of 2024 (22306932)
DELIVERED:  27 November 2024
HEARING DATE:  26 November 2024
JUDGMENT OF:  Grant CJ, Kelly and Brownhill JJ
CATCHWORDS:

CRIME – Appeals – Appeal against sentence – Manifest excess
Whether sentence manifestly excessive – Sentence of imprisonment for two years and eight months not manifestly excessive – Not so far outside range as to bespeak error – Sentencing Judge took into account objective circumstances and relevant subjective circumstances – Whether denial of procedural fairness – Whether applicant denied opportunity to make submissions – Application for leave to appeal dismissed.
Criminal Code 1983 (NT) s 174E

Barbaro v The Queen (2014) 253 CLR 58, applied.
Weir v The Queen [2011] NSWCCA 123, distinguished.
REPRESENTATION:
Counsel:
Applicant:J Tippett KC
Respondent:  LJ Auld
Solicitors:
Applicant:Maleys Barristers & Solicitors
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  12

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Mocerino v The King [2024] NTCCA 12

AP 6 of 2024 (22306932)
BETWEEN:

NICHOLAS JOHN MOCERINO
Applicant

AND:

THE KING
Respondent

CORAM: GRANT CJ, KELLY & BROWNHILL JJ
REASONS FOR JUDGMENT
(Delivered on 27 November 2024)
THE COURT:

On 4 September 2024, the applicant pleaded guilty to one count of negligently causing serious harm contrary to s 174E of the Criminal Code 1983 (NT).
The sentencing Judge imposed a sentence of two years and eight months, suspended after eight months, with an operational period of two years from the date of release.
The applicant applied for leave to appeal against that sentence on the ground that the sentence is manifestly excessive.
On 26 November 2024, we dismissed the application for leave to appeal on the basis that the proposed grounds of appeal had no merit, with reasons to be published. These are our reasons.
The circumstances of the offending
The circumstances of the offending were that the applicant, who was 24 years old, and his co-offender, who was 20 years old, knew each other through their work in the Australian Defence Force.
The victim was 48 years old and unknown to them.
On 15 January 2023, the applicant and co-offender were at a bar where they consumed alcohol throughout the evening. The victim was also present. He was intoxicated and had no memory of the incident due to his level of intoxication and the injuries he sustained.
At about 11.08 pm, the victim was near the stage area of the bar and both offenders were dancing near the stage. They tried to engage with the victim by directing dance moves at him. The co-offender held out his hand for the victim to shake but the victim was in his own world, dancing to the music. He turned away from both offenders. He then…

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 Mocerino v The King

Details

AGLC: Mocerino v The King [2024] NTCCA 12
Case: [2024] NTCCA 12
Decision Date: 27 November 2024

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, Mocerino, for the offence of dangerous driving occasioning death. The appellant was convicted in the District Court of New South Wales and subsequently appealed to the Court of Criminal Appeal of New South Wales. The Crown alleged that the appellant's driving was dangerous, leading to the death of another person.

The central legal issue before the Court of Criminal Appeal was whether the trial judge erred in law by failing to adequately direct the jury on the element of causation. Specifically, the appellant argued that the jury should have been instructed that the Crown must prove beyond reasonable doubt that the appellant's dangerous driving was a *substantial and operative cause* of the deceased's death, and that the trial judge’s directions on causation were insufficient in this regard.

The Court of Criminal Appeal analysed the trial judge's summing up and relevant authorities on causation in criminal law. It was held that the trial judge's directions, while not using the precise phrase "substantial and operative cause," conveyed the necessary legal principles to the jury. The judge had directed the jury to consider whether the appellant's driving was a cause of death and whether it was a cause that was more than a mere trivial or fleeting cause. The Court concluded that these directions were sufficient to ensure the jury understood the required standard of proof for causation.

The appeal was therefore dismissed.

Orders