NSW Police v Nash - [2016] NSWLC 3

Local Court

New South Wales

Medium Neutral Citation: NSW Police v Nash [2016] NSWLC 3
Hearing dates: 23 February 2016
Decision date: 12 April 2016
Jurisdiction: Criminal
Before: Stewart LCM
Decision:
Community Service Order 250 hours
Licence disqualification 12 months

Catchwords: SENTENCE – negligent driving occasioning death – failure to keep proper lookout – sentencing considerations – harm to victim and community – prior good character – exemplary driving record – demonstrated remorse – general deterrence – licence disqualification – automatic period – discretion to reduce disqualification period
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 5, 8, 21A, 26 – 30
Crimes (Sentencing Procedure) Regulation 2010, cl 23(c)
Law Enforcement (Powers and Responsibilities) Act 2002, s 134
Road Transport Act 2013, s 117
Cases Cited: Attorney General’s Application Pursuant to s. 37 of the Crimes (Sentencing Procedure) Act for Guideline Judgment Concerning the offence of High Range Prescribed Concentration of Alcohol (No.3 of 2002) [2004] NSWCCA 303
Bonsu v R [2009] NSWCCA 316
DPP v Bhandari [2011] NSWLC 7
DPP v Markovski [2011] NSWLC 31
DPP (NSW) v Pelletier [2014] NSWLC 9
Mitchell v R [2009] NSWCCA 95
Police v Curkovic [2008] NSWLC 1
Police v Turner [2011] NSWLC 27
R v Barbetta [2008] NSWSC 688
R v Bloomfield (1998) 101 A Crim R 404
R v Borkowski [2009] NSWCCA 102
R v Carroll [2008] NSWCCA 218
R v Dodd (1991) 57 A Crim R 349
R v Dutton [2005] NSWCCA 248
R v Foster (2001) 33 MVR 565
R v Jurisic (1998) 45 NSWLR 209
R v McIntyre (1988) 38 A Crim R 135
R v Musumeci (unreported, NSWCCA, 30/10/1997)
R v Rushby [1977] 1 NSWLR 594
R v Ryan (2003) 141 A Crim R 403
R v Slattery (1996) 90 A Crim R 519
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Way (2004) 60 NSWLR 168
R v Whyte [2002] NSWCCA 343
Category: Sentence
Parties: NSW Police
Wallace Nash (defendant)
Representation:
Counsel:
Mr J Dalzell (for the defendant)
Solicitors:
Sgt D Gumley (police prosecutor)
Ms K Clark, Austen Brown Boog Solicitors (for the defendant)

File Number(s): 2015/244670

Judgment

Remarks on Sentence

“Sentencing for an offence that is the product of tragedy arising out of an everyday and otherwise lawful activity is one of the most difficult tasks in which a Court may become engaged. The collective psyche of the community at large is not easily reconciled to the need for punishment attaching to negligence through the experience of failing to keep a proper lookout. This is because it is likely that everyone who drives a motor vehicle has been at one time or another guilty of this act of omission but fortunately with little or no consequence. The concept in judging tragedy in these circumstances will invariably be tempered at first blush by the aphorism “there but for the Grace of God go I”. This form of self-evaluation is not something that sits comfortably with the criminal law. Courts are required…

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: [2016] NSWLC 3
Decision Date: 12 April 2016

CaseChat Overview and Summary

In the case of NSW Police v Nash, the defendant was charged and convicted of negligent driving causing the death of another. The matter was heard in the NSW District Court, where sentencing was the primary issue before the court. The court needed to determine the appropriate sentence for Nash, considering various factors such as the harm caused to the victim and the community, Nash's prior good character and exemplary driving record, as well as the demonstrated remorse shown by Nash.

The court gave careful consideration to the aggravating and mitigating factors present in the case. On one hand, the death of the victim and the impact on the victim's family and the broader community weighed heavily in the sentencing decision. On the other hand, Nash's previously unblemished character and his long, unblemished driving record were significant mitigating factors. Additionally, Nash had shown genuine remorse for his actions, which the court took into account as a factor in his favour. The court also considered the need for general deterrence, ensuring that the sentence would serve as a warning to others against similar conduct.

After weighing all these factors, the court decided that Nash should be sentenced to a community service order of 250 hours and a licence disqualification for 12 months. This was a reduction from the automatic disqualification period, which was a reflection of the mitigating factors present in the case, including Nash's remorse and otherwise unblemished character.

Orders

Orders of the court

Community Service Order 250 hours

Licence disqualification 12 months

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	NSW Police v Nash [2016] NSWLC 3
Hearing dates:	23 February 2016
Decision date:	12 April 2016
Jurisdiction:	Criminal
Before:	Stewart LCM
Decision:	Community Service Order 250 hours Licence disqualification 12 months
Catchwords:	SENTENCE – negligent driving occasioning death – failure to keep proper lookout – sentencing considerations – harm to victim and community – prior good character – exemplary driving record – demonstrated remorse – general deterrence – licence disqualification – automatic period – discretion to reduce disqualification period
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 3A, 5, 8, 21A, 26 – 30 Crimes (Sentencing Procedure) Regulation 2010, cl 23(c) Law Enforcement (Powers and Responsibilities) Act 2002, s 134 Road Transport Act 2013, s 117
Cases Cited:	Attorney General’s Application Pursuant to s. 37 of the Crimes (Sentencing Procedure) Act for Guideline Judgment Concerning the offence of High Range Prescribed Concentration of Alcohol (No.3 of 2002) [2004] NSWCCA 303 Bonsu v R [2009] NSWCCA 316 DPP v Bhandari [2011] NSWLC 7 DPP v Markovski [2011] NSWLC 31 DPP (NSW) v Pelletier [2014] NSWLC 9 Mitchell v R [2009] NSWCCA 95 Police v Curkovic [2008] NSWLC 1 Police v Turner [2011] NSWLC 27 R v Barbetta [2008] NSWSC 688 R v Bloomfield (1998) 101 A Crim R 404 R v Borkowski [2009] NSWCCA 102 R v Carroll [2008] NSWCCA 218 R v Dodd (1991) 57 A Crim R 349 R v Dutton [2005] NSWCCA 248 R v Foster (2001) 33 MVR 565 R v Jurisic (1998) 45 NSWLR 209 R v McIntyre (1988) 38 A Crim R 135 R v Musumeci (unreported, NSWCCA, 30/10/1997) R v Rushby [1977] 1 NSWLR 594 R v Ryan (2003) 141 A Crim R 403 R v Slattery (1996) 90 A Crim R 519 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Way (2004) 60 NSWLR 168 R v Whyte [2002] NSWCCA 343
Category:	Sentence
Parties:	NSW Police Wallace Nash (defendant)
Representation:	Counsel: Mr J Dalzell (for the defendant) Solicitors: Sgt D Gumley (police prosecutor) Ms K Clark, Austen Brown Boog Solicitors (for the defendant)
File Number(s):	2015/244670