Page v The Queen - [2008] NSWCCA 26

New South Wales
Court of Criminal Appeal

CITATION: Page v R [2008] NSWCCA 26

HEARING DATE(S): 21 November 2007

JUDGMENT DATE:
19 February 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 2; Price J at 3

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal Law - sentencing - aggravated driving causing death - contributory negligence - onus of proof - sentence not manifestly excessive - psychological report not tendered at hearing - lesser sentence not warranted - no miscarriage of justice.

LEGISLATION CITED: Crimes Act 1900 s 52A, s 52A(2), s 154A(1)(b),
Criminal Procedure Act 1986 s 166,

CATEGORY: Principal judgment

CASES CITED: Nudd v The Queen (2006) 80 ALJR 614
R v Jurisic (1998) 45 NSWLR 209
R v McNaughton (2006) 66 NSWLR 566
R v Olbrich (1999) 199 CLR 270
R v Ryan (2003) 141 A Crim R 403
R v Storey [1998] VR 359
R v Thomson & Houlton (1999-2000) 49 NSWLR 383
R v Whyte (2002) 55 NSWLR 252
R v Woodward [2001] NSWCCA 90
Regina v Fernando [2002] NSWCCA 28
Thompson v R [2007] NSWCCA 299

PARTIES: Patrick John Page
Regina

FILE NUMBER(S): CCA 2006/5055

COUNSEL: Patrick John Page (Self Represented Applicant)
N Adams (Respondent)

SOLICITORS: S Kavanagh Public Prosecutions ( Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/0123

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

LOWER COURT DATE OF DECISION: 27 July 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Patrick John Page

2006/5055

McCLELLAN CJ at CJ
HALL J
PRICE J
19 February 2008

Patrick John PAGE v R

Judgment

1 McCLELLAN CJ at CL: I agree with Price J.

2 HALL J: I agree with Price J.

3 PRICE J: On 27 July 2006 Patrick John Page, the applicant, pleaded guilty in the District Court at Parramatta to a charge that on 3 June 2005 at Bankstown in the State of New South Wales he drove a motor vehicle in a manner dangerous to other persons whereby the vehicle was involved in an impact as a result of which the death of Trong Tai Pham was occasioned and when he was driving the vehicle in an attempt to escape pursuit by a police officer. The offence being one of aggravated dangerous driving occasioning death contrary to s 52A(2) of the Crimes Act 1900 is punishable by a maximum penalty of 14 years imprisonment.

4 At the time the plea was entered, it was indicated that certain facts were in dispute and the proceedings were set down for hearing. When the applicant came before the Judge on 31 July 2006 three areas of dispute were identified being the speed the applicant’s vehicle was travelling shortly before and at the time of impact; the contribution (if any) to the accident of the levels of morphine and codeine in the applicant’s blood and whether there had been significant contributory negligence by the driver of the vehicle in which the deceased had been a passenger.

5…

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 Page v The Queen

Details

AGLC: Page v The Queen [2008] NSWCCA 26
Case: [2008] NSWCCA 26
Decision Date: 19 February 2008

CaseChat Overview and Summary

Page v The Queen is a case concerning a criminal appeal against a sentence imposed by the lower court. The appellant was found guilty of aggravated driving causing death and was sentenced to imprisonment. The appellant argued that the sentence was manifestly excessive and that the court below did not consider all relevant factors. The High Court of Australia was called upon to determine whether the sentence was unjust and whether the lower court erred in its consideration of contributory negligence.

The central legal issues in this case revolved around the principles of sentencing in aggravated driving causing death cases and the allocation of the onus of proof in relation to contributory negligence. The appellant contended that the sentence imposed was manifestly excessive and that the lower court failed to consider all relevant mitigating factors. Furthermore, the appellant argued that the onus of proof for contributory negligence should have been on the respondent. The court was required to determine whether the sentence was unjust and whether the lower court erred in its consideration of the contributory negligence.

The High Court found that the sentence imposed was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the offence. The court held that the lower court had appropriately considered the relevant mitigating factors and that the psychological report, which was not tendered at the hearing, was not necessary to reach a just outcome. The court also rejected the appellant's argument that the onus of proof for contributory negligence should have been on the respondent, stating that the onus of proof remains with the appellant in such cases. The High Court concluded that there was no miscarriage of justice in the sentence imposed.

The High Court dismissed the appeal and affirmed the sentence imposed by the lower court. The court found that the sentence was not manifestly excessive and that the lower court had appropriately considered the relevant mitigating factors and the principles of contributory negligence. The court further held that the absence of the psychological report did not result in a miscarriage of justice and that the onus of proof for contributory negligence remained with the appellant.

Orders