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Morabito v R

Morabito v R

Case [2007] NSWCCA 126 20 April 2007

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: MORABITO v REGINA [2007] NSWCCA 126

FILE NUMBER(S):
2007/11

HEARING DATE(S): 20 April 2007

JUDGMENT DATE: 20 April 2007
EX TEMPORE DATE: 20 April 2007

PARTIES:
Gimmi MORABITO
REGINA

JUDGMENT OF: Mason P Hidden J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 05/31/0242

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

LOWER COURT DATE OF DECISION: 5 October 2006

COUNSEL:
Appellant: J Dailly SC/ B Vasic
Crown: L Lamprati SC/ J Dwyer

SOLICITORS:
Appellant: Stoikovich Macri
Crown: Solicitor for Public Prosecutions

CATCHWORDS:
CRIMINAL LAW – Appeal – verdict — whether unsafe or unsatisfactory — role of appellate court – whether verdict open to jury acting reasonably
CRIMINAL LAW – Appeal – appeal against sentence – whether sentence manifestly excessive
CRIMINAL LAW – Appeal – appeal against sentence – whether trial judge based sentence on correct level of offender’s culpability

LEGISLATION CITED:
Crimes Act 1900

CASES CITED:
M v The Queen (1994) 181 CLR 487
Weiss v The Queen (2005) 224 CLR 300

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/11
MASON P
HIDDEN J
ROTHMAN J
Friday 20 April 2007

Gimmi MORABITO v REGINA

JUDGMENT

MASON P: Mr Dailly of Senior Counsel has put the appellant’s case well. I am nevertheless of the view that the jury’s verdict must stand.
This is a sad case for the victims and the appellant and for their respective families. The role of this Court is to determine the matter in accordance with the law and our function as an appellate court.
The appellant appeals against his conviction on four counts of dangerous driving, three causing death and one causing grievous bodily harm. The accident in question occurred on 5 March 2004 on the Pacific Highway near Bulahdelah. It was daylight. Conditions were fine and the road was dry.
The appellant was driving a Volvo prime mover towing a trailer laden with steel pipes. He was going at about 90 kilometres per hour, the speed limit being 100 kilometres per hour. He was travelling south along a straight stretch of several hundred metres. There was a single marked lane approximately 3.6 metres wide bordered with a white fog or edge line, with a three metre wide bitumen breakdown lane on the left or eastern side. There was a fair amount of traffic.
The Crown case accepted by the jury was that the appellant was inattentive to his driving.
The defence case advanced in a record of interview and the appellant’s sworn testimony was that just before the appellant’s vehicle hit the Toyota Hilux ahead of him, something caused the appellant’s windscreen to shatter or craze so that he could not see through it. This assertion was challenged by the prosecution on several bases. The primary Crown case throughout was that the Volvo’s windscreen only shattered in the ensuing accident. The prosecution also contended that if the shattering preceded impact, the accident would still have occurred because of the appellant’s…

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 Morabito v R

Details

AGLC: Morabito v R [2007] NSWCCA 126
Case: [2007] NSWCCA 126
Decision Date: 20 April 2007

CaseChat Overview and Summary

The case involved an appeal by the respondent against the conviction and sentence imposed by the primary judge. The appellant, Morabito, was convicted of multiple charges including attempted murder and other serious offences. The appeal centred on two main grounds: firstly, the appellant contended that the verdict was unsafe and unsatisfactory, arguing that it was not open to the jury acting reasonably. Secondly, the appellant challenged the severity of the sentence imposed, claiming it was manifestly excessive and that the trial judge had not properly considered the level of the appellant's culpability.

The court began by examining whether the verdict was unsafe and unsatisfactory. It held that the role of an appellate court is limited in this regard, and the verdict would only be set aside if it was not open to the jury acting reasonably. The court assessed the evidence and the arguments presented, concluding that the jury's verdict was supported by the evidence and that it was open to them to reach that conclusion. The court found no error in the primary judge's directions to the jury or in the jury's decision-making process.

In relation to the sentence, the court considered whether it was manifestly excessive and whether the trial judge had based the sentence on the correct level of the appellant's culpability. The court noted the seriousness of the crimes and the need for deterrence and denunciation. It found that the sentence was not manifestly excessive and that the trial judge had appropriately considered the appellant's culpability, the circumstances of the offences, and the principles of sentencing. The appeal against sentence was thus dismissed.

The court upheld the conviction and sentence, affirming that the verdict was not unsafe or unsatisfactory and that the sentence was not manifestly excessive. No orders were made altering the conviction or sentence.

Orders