Nauer v R - [2020] NSWCCA 174

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Nauer v R [2020] NSWCCA 174
Hearing dates: 26 June 2020
Date of orders: 23 July 2020
Decision date: 23 July 2020
Before: Hoeben CJ at CL at [1]
Fagan J at [2]
Cavanagh J at [3]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME — appeals — application for leave to appeal against sentence — where applicant pleaded guilty to disqualified driving and dangerous driving occasioning death offences — where applicant's legal representative did not place relevant evidence of her subjective circumstances before District Court for purposes of sentencing — whether miscarriage of justice occasioned by legal representative’s omission — whether such evidence would have been capable of materially affecting the outcome of the sentencing hearing

Legislation Cited:
Crimes Act 1900 (NSW), s 52A
Road Transport Act 2013 (NSW), s 54

Cases Cited:
Brown v R [2018] NSWCCA 257
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Munro v R [2006] NSWCCA 350
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
Rae v R [2019] NSWCCA 284
Tsiakas v R [2015] NSWCCA 187

Category: Principal judgment
Parties: Penina Karoline Nauer (Applicant)
Regina (Respondent)
Representation:
Counsel:
J Paingakulam (Applicant)
D Patch (Respondent)
Solicitors:
Legal Aid Commission NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/361931
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

21 March 2019

Before:

O’Brien DCJ

File Number(s):

2017/361931

Judgment

HOEBEN CJ at CL: I agree with Cavanagh J and the orders which he proposes.
FAGAN J: I agree with Cavanagh J’s reasons and with the orders he proposes.
CAVANAGH J: The applicant, Penina Nauer, seeks leave to appeal from the sentence imposed upon her by his Honour Judge O’Brien sitting in the District Court of New South Wales at Campbelltown on 21 March 2019.
The applicant entered pleas of guilty to a number of offences arising out of a motor vehicle accident that resulted in the death of two of her relatives and serious injuries to other relatives travelling in the vehicle she was driving.
The applicant was sentenced to an aggregate sentence of imprisonment of 4 years and 6 months, to date from 21 March 2019 and expire on 20 September 2023, with a non-parole period of 2 years and 6 months. The non-parole period is due to expire on 20 September 2021.
I set out below a table showing the offences, the maximum penalties and the indicative sentences:

Sequence

Offence

Maximum penalty

Sentence

1

Dangerous driving (manner dangerous) occasioning death, contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW)

Victim: Antonino Nauer (59 years old)

10 years’ imprisonment

Indicative sentence:

Imprisonment for 3 years and 4 months

2

Dangerous driving (manner dangerous) occasioning grievous bodily harm, contrary to s 52A(3)(c) of the Crimes Act 1900 (NSW)

Victim:…

Sequence	Offence	Maximum penalty	Sentence
1	Dangerous driving (manner dangerous) occasioning death, contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW) Victim: Antonino Nauer (59 years old)	10 years’ imprisonment	Indicative sentence: Imprisonment for 3 years and 4 months
2	Dangerous driving (manner dangerous) occasioning grievous bodily harm, contrary to s 52A(3)(c) of the Crimes Act 1900 (NSW) Victim:…

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 Nauer v R

Details

AGLC: Nauer v The Queen [2020] NSWCCA 174
Case: [2020] NSWCCA 174
Decision Date: 23 July 2020

CaseChat Overview and Summary

Nauer was convicted of disqualified driving and dangerous driving occasioning death offences and sought leave to appeal against his sentence. The applicant's legal representative did not place relevant evidence of her subjective circumstances before the District Court for purposes of sentencing. The applicant claimed that the failure to present this evidence occasioned a miscarriage of justice and that the evidence would have been capable of materially affecting the outcome of the sentencing hearing. The court was required to decide whether the failure to present this evidence constituted a miscarriage of justice and whether the evidence would have been capable of materially affecting the outcome of the sentencing hearing.

The court held that the failure to present the evidence did not occasion a miscarriage of justice and that the evidence would not have been capable of materially affecting the outcome of the sentencing hearing. The court noted that the applicant had not demonstrated that the evidence would have made a difference to the sentence imposed. The court further held that the applicant's legal representative had not been negligent in failing to present the evidence, as the evidence was not available at the time of sentencing and could not have been presented. The court held that the applicant's legal representative had acted reasonably in not presenting the evidence.

The court dismissed the application for leave to appeal against sentence. The court held that the failure to present the evidence did not occasion a miscarriage of justice and that the evidence would not have been capable of materially affecting the outcome of the sentencing hearing. The court further held that the applicant's legal representative had not been negligent in failing to present the evidence, as the evidence was not available at the time of sentencing and could not have been presented. The court held that the applicant's legal representative had acted reasonably in not presenting the evidence.

Orders