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Police v Christopher James Turner

Police v Christopher James Turner

Case [2011] NSWLC 27 18 August 2011

Dangerous Driving causing Grievous Bodily Harm

Sentencing

Disqualification from Holding a Driver's Licence

Criminal Law

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Local Court

New South Wales

Medium Neutral Citation: Police v Christopher James TURNER [2011] NSWLC 27
Hearing dates: 21/06/2011, 18/08/2011
Decision date: 18 August 2011
Jurisdiction: Criminal
Before: Magistrate P.S. Dare SC
Decision:
For the charge of Dangerous Driving causing Grievous Bodily Harm the Offender is convicted and sentenced to a term of 1 year and 6 months imprisonment with a non-parole period of 6 months commencing on 18 August 2011 and expiring on 17 February 2012. There is a balance of 1 year commencing on 18 February 2012 and expiring on 17 February 2013.
The Offender is disqualified from holding any drivers or riders licence for a period of 18 months to date from 18 August 2011.
For the charge of Special Range PCA, the Offender is convicted and fined $500 plus $81 court costs. As a separate order the Offender is disqualified from holding any drivers or riders licence for a period of 6 months to date from 18 August 2011.

Catchwords:
CRIMINAL LAW - Drive Manner Dangerous cause GBH - sleep deprivation and alcohol as factors - no breach of De Simoni principles to include combination of factors within s 52A(3) - moral culpability - abandonment of responsibility
SENTENCING - 19 year old offender - no prior record - relevance of youth and character - custodial penalty called for - deterrence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Road Transport (General) Act 2005
Road Transport (Safety and Traffic Management) Act 1999
Cases Cited: Blundell v R [2008] NSWCCA 92
Cheung v The Queen (2001) 209 CLR 1
Duffy v R; Mangan v R [2009] NSWCCA 304
Gonzalez v R [2006] NSWCCA 4
Markham v R [2007] NSWCCA 295
Mill v The Queen (1988) 166 CLR 59
O'Neill v R [1979] 2 NSWLR 582
R v Berg [2004] NSWCCA 300
R v Borkowski [2009] NSWCCA 102
R v Dodd (1991) 57 A Crim R 349
R v Douglas (1998) 29 MVR 316
R v Dutton [2005] NSWCCA 248
R v El-Hayek (2004) 144 A Crim R 90
R v Errington (2005) 157 A Crim R 553
R v H (1980) 3 A Crim R 53
R v Jurisic (1998) 45 NSWLR 209
R v King (2004) 150 A Crim R 409
R v MA (2004) 145 A Crim R 434
R v Musumeci (Unrep., 30/10/97, NSWCCA)
R v Olbrich (1999) 199 CLR 270
R v Oliver (1980) 7 A Crim R 174
R v Rushby [1977] 1 NSWLR 594
R v Simpson (2001) 53 NSWLR 704
R v Slattery (1996) 90 A Crim R 519
R v Smith (1997) 95 A Crim R 373
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Townsend [2010] NSWCCA 336
R v Whyte (2002) 55 NSWLR 252
R v Zamagias [2002] NSWCCA 17
Rosenthal v R [2008] NSWCCA 149
TG v R [2010] NSWCCA 28
Weininger v The Queen (2003) 212 CLR 629
Category: Sentence
Parties: Police
Christopher James Turner (the Offender)
Representation: Mr D…

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 Police v Christopher James Turner

Details

AGLC: Police v Christopher James Turner [2011] NSWLC 27
Case: [2011] NSWLC 27
Decision Date: 18 August 2011

CaseChat Overview and Summary

The case involved the state of Victoria, represented by the police, prosecuting Christopher James Turner for dangerous driving causing grievous bodily harm and for exceeding a special range speed limit. Turner was sentenced in the County Court of Victoria. The court had to determine whether Turner’s sleep deprivation and alcohol consumption, which were factors in his dangerous driving, could be combined for sentencing purposes under section 52A(3) of the relevant Act without contravening the principles set out in De Simoni. Additionally, the court had to consider the appropriate penalty for Turner, taking into account his age, character, and the need for deterrence.

The court examined whether the combination of Turner’s sleep deprivation and alcohol consumption could be considered under the statute without breaching the De Simoni principles, which require that all relevant matters be considered in determining the moral culpability of the offender. The court found that Turner’s sleep deprivation and alcohol consumption were both relevant factors that could be considered together, as they both contributed to his impaired driving. The court emphasised that Turner had abandoned his responsibility as a driver by choosing to drive while impaired, which was a significant factor in the sentencing decision.

The court concluded that Turner’s youth and lack of a prior criminal record were mitigating factors, but the seriousness of the offence and the need for deterrence outweighed these considerations. The court sentenced Turner to a term of imprisonment and imposed a fine and licence disqualification. The non-parole period for the imprisonment term was set at six months, reflecting the court's view that Turner's actions warranted a significant penalty to deter him and others from engaging in similar behaviour.

The court ordered that Turner be imprisoned for a total of eighteen months, with a non-parole period of six months, and that he be disqualified from holding a driver’s licence for eighteen months. For the speeding offence, Turner was fined $500 plus court costs and disqualified from holding a driver’s licence for six months. These orders reflect the court's determination that Turner’s actions required a substantial penalty to serve both punitive and deterrent purposes.

Orders

Orders of the court

For the charge of Dangerous Driving causing Grievous Bodily Harm the Offender is convicted and sentenced to a term of 1 year and 6 months imprisonment with a non-parole period of 6 months commencing on 18 August 2011 and expiring on 17 February 2012. There is a balance of 1 year commencing on 18 February 2012 and expiring on 17 February 2013.

The Offender is disqualified from holding any drivers or riders licence for a period of 18 months to date from 18 August 2011.

For the charge of Special Range PCA, the Offender is convicted and fined $500 plus $81 court costs. As a separate order the Offender is disqualified from holding any drivers or riders licence for a period of 6 months to date from 18 August 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Police v Christopher James Turner [2011] NSWLC 27

Most Recent Citation

NSW Police v Nash [2016] NSWLC 3

Cases citing this decision · 1 of 1 shown

NSW Police v Nash
[2016] NSWLC 3 Para 24

…he presence of certain factors, it is mitigated by the absence of those factors ”: R v Dutton [2005] NSWCCA 248 at [29], cited in Police v Turner [2011] NSWLC 27 at [37].…

View all 1 citing cases →

Cases cited in this decision · 18 of 18 shown

R v Townsend
[2010] NSWCCA 336 Para 1

…Mr Thorley of Counsel presented a detailed outline of his submissions and proceeded to address them. He referred to the authority of R v Townsend [2010] NSWCCA 336 - a Crown appeal relating to a charge of dangerous driving causing death. He urged upon the Court not to impose a full-time custodial penalty and took me…
TG v R
[2010] NSWCCA 28 Para 1

…cter to gaol, but where appropriate, it must be done as a deterrent to others: R v Slattery (1996) 90 A Crim R 519 at 523. As Howie J noted in TG v R [2010] NSWCCA 28, if a young male is old enough to be licensed to drive a motor vehicle, he is to be assumed to be mature enough to comply with its conditions and the…
Duffy v R
[2009] NSWCCA 304 Para 1

…e the essence of the charge. It does not admit the non-essential ingredients an offence: O'Neill v R [1979] 2 NSWLR 582 at 588; Duffy v R; Mangan v R [2009] NSWCCA 304 at [21].…
R v Robert Borkowski
[2009] NSWCCA 102 Para 1

…scount of 25% for the utilitarian value of the pleas in accordance with the principles in R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Borkowski [2009] NSWCCA 102 . See also section 22(1), Crimes (Sentencing Procedure) Act 1999.…
Rosenthal v R
[2008] NSWCCA 149 Para 1

…ded that they become terms of art in this branch of sentencing law": Markham v R [2007] NSWCCA 295 per Hidden J at [ 25 ]. According to Rosenthal v R [2008] NSWCCA 149 at [16], abandonment of responsibility:…
Blundell v R
[2008] NSWCCA 92 Para 1

…tion. It follows from what I have just said that it is not appropriate for the sentences to be suspended: R v Zamagias [2002] NSWCCA 17; Blundell v R [2008] NSWCCA 92 per Simpson J.…
Markham v Regina
[2007] NSWCCA 295 Para 1

…e judgment, are useful but necessarily flexible and "it was not intended that they become terms of art in this branch of sentencing law": Markham v R [2007] NSWCCA 295 per Hidden J at [ 25 ]. According to Rosenthal v R [2008] NSWCCA 149 at [16], abandonment of responsibility:…
R v Whyte
[2006] NSWCCA 75 Para 1

…uacy" of sentences, a guideline was promulgated: R v Jurisic (1998) 45 NSWLR 209 at 229-230. The guideline was subsequently reformulated in R v Whyte (2002) 55 NSWLR 252.…
Gonzalez v R
[2006] NSWCCA 4 Para 1

…As Howie J said in Gonzalez v R [2006] NSWCCA 4 at [ 13 ]:…
R v Dutton
[2005] NSWCCA 248 Para 1

…nsibility, it does not follow that where the offender has not abandoned responsibility that a full-time custodial sentence can be avoided: R v Dutton [2005] NSWCCA 248 at [ 29 ].…
R v Berg
[2004] NSWCCA 300 Para 1

…manner of driving, sleep deprivation and the presence of alcohol. While the guideline has been described as a "check" and an "indicator", in R v Berg [2004] NSWCCA 300, Howie J (with whom Spigelman CJ and Wood CJ at CL agreed) said at [21] that the factors in the list set out in Whyte as indicative of a typical case…
Weininger v The Queen
[2003] HCA 14 Para 1

…Each factual matter found at sentence need not fit into the extremes of aggravating and mitigating factors. In Weininger v The Queen (2003) 212 CLR 629 at [22], the High Court said:…
R v Zamagias
[2002] NSWCCA 17 Para 1

…rence, retribution and denunciation. It follows from what I have just said that it is not appropriate for the sentences to be suspended: R v Zamagias [2002] NSWCCA 17; Blundell v R [2008] NSWCCA 92 per Simpson J.…
Cheung v The Queen
[2001] HCA 67 Para 1

…of not guilty, where the task of assessing an offender's culpability is more difficult than that of determining his or her guilt: Cheung v The Queen (2001) 209 CLR 1 per Gleeson CJ, Gummow and Hayne JJ at [8].…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 1

…I allow the full discount of 25% for the utilitarian value of the pleas in accordance with the principles in R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Borkowski [2009] NSWCCA 102 . See also section 22(1), Crimes (Sentencing Procedure) Act 1999.…
R v Olbrich
[1999] HCA 54 Para 1

…It is necessary for the Court to decide the relevant facts because everything else flows from that. The High Court said in R v Olbrich (1999) 199 CLR 270 at 274:…
Regina v Simpson
[1999] NSWCCA 367 Para 1

…ole period must reflect the criminality involved in the offence, including its objective gravity and the need for general deterrence: see R v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at 718. I will allow special circumstances principally on the basis of the Offender's age, this is his first time in custody and the…
Mill v The Queen
[1988] HCA 70 Para 1

…objective gravity of the offence: see, for example, R v Dodd (1991) 57 A Crim R 349 at 354 . See also R v Rushby [1977] 1 NSWLR 594; Mill v The Queen (1988) 166 CLR 59.…

Legislation cited in this decision · 4

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 1)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Road Transport (General) Act 2005 (NSW)
1 mention (from Para 1)
Road Transport (Safety and Traffic Management) Act 1999 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	Police v Christopher James TURNER [2011] NSWLC 27
Hearing dates:	21/06/2011, 18/08/2011
Decision date:	18 August 2011
Jurisdiction:	Criminal
Before:	Magistrate P.S. Dare SC
Decision:	For the charge of Dangerous Driving causing Grievous Bodily Harm the Offender is convicted and sentenced to a term of 1 year and 6 months imprisonment with a non-parole period of 6 months commencing on 18 August 2011 and expiring on 17 February 2012. There is a balance of 1 year commencing on 18 February 2012 and expiring on 17 February 2013. The Offender is disqualified from holding any drivers or riders licence for a period of 18 months to date from 18 August 2011. For the charge of Special Range PCA, the Offender is convicted and fined $500 plus $81 court costs. As a separate order the Offender is disqualified from holding any drivers or riders licence for a period of 6 months to date from 18 August 2011.
Catchwords:	CRIMINAL LAW - Drive Manner Dangerous cause GBH - sleep deprivation and alcohol as factors - no breach of De Simoni principles to include combination of factors within s 52A(3) - moral culpability - abandonment of responsibility SENTENCING - 19 year old offender - no prior record - relevance of youth and character - custodial penalty called for - deterrence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Road Transport (General) Act 2005 Road Transport (Safety and Traffic Management) Act 1999
Cases Cited:	Blundell v R [2008] NSWCCA 92 Cheung v The Queen (2001) 209 CLR 1 Duffy v R; Mangan v R [2009] NSWCCA 304 Gonzalez v R [2006] NSWCCA 4 Markham v R [2007] NSWCCA 295 Mill v The Queen (1988) 166 CLR 59 O'Neill v R [1979] 2 NSWLR 582 R v Berg [2004] NSWCCA 300 R v Borkowski [2009] NSWCCA 102 R v Dodd (1991) 57 A Crim R 349 R v Douglas (1998) 29 MVR 316 R v Dutton [2005] NSWCCA 248 R v El-Hayek (2004) 144 A Crim R 90 R v Errington (2005) 157 A Crim R 553 R v H (1980) 3 A Crim R 53 R v Jurisic (1998) 45 NSWLR 209 R v King (2004) 150 A Crim R 409 R v MA (2004) 145 A Crim R 434 R v Musumeci (Unrep., 30/10/97, NSWCCA) R v Olbrich (1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 R v Rushby [1977] 1 NSWLR 594 R v Simpson (2001) 53 NSWLR 704 R v Slattery (1996) 90 A Crim R 519 R v Smith (1997) 95 A Crim R 373 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Townsend [2010] NSWCCA 336 R v Whyte (2002) 55 NSWLR 252 R v Zamagias [2002] NSWCCA 17 Rosenthal v R [2008] NSWCCA 149 TG v R [2010] NSWCCA 28 Weininger v The Queen (2003) 212 CLR 629
Category:	Sentence
Parties:	Police Christopher James Turner (the Offender)
Representation:	Mr D…