Peberdy v The King - [2023] NSWCCA 144

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Peberdy v R [2023] NSWCCA 144
Hearing dates: 9 December 2022
Decision date: 21 June 2023
Before: Davies J at [1];
Ierace J at [2];
R A Hulme AJ at [120]
Decision:
(1) Grant leave to appeal;
(2) Appeal dismissed.

Catchwords:
CRIME – Appeals – Appeal against sentence – Dangerous driving offences arising from fatal head-on vehicle collision – Where sentencing judge found matter was “not one of momentary inattention” – Whether purported factual errors caused sentencing discretion to miscarry – Whether error in assessments of objective seriousness and moral culpability

Legislation Cited:
Crimes Act 1900 (NSW), s 52A

Cases Cited:
Fuller v R [2022] NSWCCA 203
House v The King (1936) 55 CLR 499; [1936] HCA 40
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343

Category: Principal judgment
Parties: David William Peberdy (Applicant)
Rex (Respondent)
Representation:
Counsel:
D Randle (Applicant)
S Traynor (Respondent)
Solicitors:
Anderson Boemi Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/102755
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

4 March 2022

Before:

N Williams DCJ

File Number(s):

2020/102755

JUDGMENT

DAVIES J: I agree with Ierace J.
IERACE J: The applicant seeks leave to appeal from a sentence imposed on him on 4 March 2022 by N Williams DCJ following his pleas of guilty to two counts of dangerous driving occasioning death, contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW), and two counts of dangerous driving occasioning grievous bodily harm, contrary to s 52A(3)(c) of the Crimes Act.
The maximum penalty for an offence against s 52A(1)(c) is 10 years imprisonment and against s 52A(3)(c) is 7 years. Neither type of offence has a standard non-parole period. The applicant received an aggregate sentence of 5 years’ imprisonment to commence from the date of sentence and expire on 3 March 2027, with a non-parole period of 3 years which will expire on 3 March 2025. He received concurrent periods of disqualification from driving for a period of 3 years in respect of each offence, which will apply from the date of his release back into the community.
The applicant has advanced two grounds of appeal, which are as follows.

“Ground 1
The learned sentencing judge mistook key facts with regard to the available evidence concerning the applicant’s driving conduct, causing the sentencing discretion to miscarry.
Ground 2
The learned sentencing judge erred in the characterisation of the objective seriousness of the subject driving.”

The background to the offences

An agreed statement of facts that was tendered at the sentence hearing was to the following effect. The offences arise from a head-on motor vehicle collision that occurred on Wednesday 18 March 2020 on the Golden Highway, which is a major regional road, on a section that had one lane of traffic in each direction and a speed limit of 100kph (I note that the indictment stated that the offences occurred at…

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 Peberdy v The King

Details

AGLC: Peberdy v The King [2023] NSWCCA 144
Case: [2023] NSWCCA 144
Decision Date: 21 June 2023

CaseChat Overview and Summary

In the case of Peberdy v The King, the appellant, Mr Peberdy, appealed against the sentence imposed for dangerous driving offences that resulted from a fatal head-on vehicle collision. The sentencing judge had determined that the incident was not a case of momentary inattention but rather involved significant culpability. The appeal challenged whether certain factual errors identified by the appellant led to an improper exercise of the sentencing discretion. Specifically, the appeal questioned whether these errors resulted in a flawed assessment of the objective seriousness and moral culpability of the offence.

The primary legal issues before the court were whether the sentencing judge's findings regarding the appellant's culpability were influenced by factual inaccuracies and, if so, whether these inaccuracies led to an unjust outcome. The court needed to determine whether the sentencing discretion was misapplied due to the alleged errors and whether the sentence imposed was appropriate given the objective seriousness and moral culpability of the offence.

The court examined the sentencing judge's assessment of the appellant's culpability and found that while some factual errors were present, they did not materially affect the overall conclusion that the offence was serious and involved significant moral culpability. The court held that the sentencing judge had adequately considered the relevant factors and applied the appropriate legal principles in determining the sentence. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders