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Police v Elliot

Police v Elliot

Case [2022] NSWLC 23 12 December 2022

Disqualification from Driving

Criminal Law

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Local Court

New South Wales

Medium Neutral Citation: Police v Elliot [2022] NSWLC 23
Hearing dates: 22 November 2022
Date of orders: 22 November 2022
Decision date: 12 December 2022
Jurisdiction: Criminal
Before: Stewart LCM
Decision:
Imprisonment 3 years NPP 20 months
Disqualification from driving 5 years

Catchwords:
Aggregate sentence – dangerous driving under the influence of a drug occasioning grievous bodily harm – cause bodily harm by misconduct of motor vehicle – record amounting to common law aggravation – conditional liberty for drive under the influence of drugs – steps towards rehabilitation – promote rehabilitation of offender - general deterrence – specific deterrence – protection of community – denunciation – make offender accountable for actions - objective seriousness – guideline judgment – abandonment of responsibility – high moral culpability – consideration of ICO – attitude of victim

Legislation Cited:
Crimes (Sentencing Procedure) Act1999 (NSW) s. 3A, 5, 21A, 22, 53A, 66
Crimes Act 1900 (NSW) s.52A(3), 53
Road Transport Act 2013 (NSW) s. 4, 9(2A), 9(5), 54(3)(a), 111, 112(1)(a), 205
Drug Misuse and Trafficking Act 1985 (NSW) s. 10

Cases Cited:
Director of Public Prosecutions (NSW) v Kirby [2017] NSWSC 1754
Gonzalez v R [2006] NSWCCA 4
Greaves v R [2020] NSWCCA 140
Jibran v The Queen [2020] NSWCCA 86
Karout v R [2019] NSWCCA 253
Mbele v The Queen [2021] NSWCCA 182
Meis v R [2022] NSWCCA 118
Park v The Queen [2021] HCA 37
R v Borkowski [2009] NSWCCA 102
R v Errington [2005] NSWCCA 348; 157 A Crim R 553
R v Fangaloka [2019] NSWCCA 173
R v Gardiner [2004] NSWCCA 365
R v Khatter [2000] NSWCCA 32
R v Palu [2002] NSWCCA 381
R v Thomson; R v Houlton (2000)49 NSWLR 383; [2000] NSWCCA 309
R v Whyte [2002] NSWCCA 343
The Queen v Baden-Clay [2016] HCA 35
Veen v The Queen (No 2) [1988] HCA 14

Category: Sentence
Parties: NSW Police Force (Prosecution)
Craig Elliott (Defendant)
Representation:
Sergeant Wiblin (Police Prosecutor)
Solicitor: V Hampel (Defendant)

File Number(s): 2022/124121; 22/131407; 21/39030; 20/278573
Publication restriction: NIL

REMARKS ON SENTENCE

The Charges and the Pleas

The offender Craig Elliot pleaded guilty to Dangerous Driving Occasioning Grievous Bodily Harm Under the Influence of a Drug contrary to section 52A(3)(a) Crimes Act 1900 (NSW) and Cause Bodily Harm by Misconduct in charge of a Motor Vehicle contrary to section 53 Crimes Act: H87715504.
Further, he pleaded guilty to 2 counts of Possess Prohibited Drug contrary to section 10(1) Drug Misuse and Trafficking Act 1985 (NSW): H89736982.
The guilty pleas were entered on 6 October 2022 at the earliest opportunity. I allow a discount of 25% off the penalty that might otherwise be imposed for the utilitarian value of each plea: see R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and the judgment of Howie J in R v Borkowski [2009] NSWCCA 102 at [32].

Maximum Penalties

The offence of dangerous driving occasioning grievous bodily harm under the influence…

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 Elliot

Details

AGLC: Police v Elliot [2022] NSWLC 23
Case: [2022] NSWLC 23
Decision Date: 12 December 2022

CaseChat Overview and Summary

In the matter of Police v Elliot, the defendant was convicted of dangerous driving under the influence of a drug, which resulted in grievous bodily harm, as well as causing bodily harm by the misconduct of a motor vehicle. The case was heard in the County Court of Victoria. The primary dispute centred on the appropriate sentence to be imposed on the defendant, taking into account the severity of the offence and the various factors relevant to sentencing.

The court was required to determine the appropriate balance between the principles of punishment, rehabilitation, deterrence, and denunciation in sentencing the defendant. This involved weighing the objective seriousness of the crime against the defendant's personal circumstances, including their steps towards rehabilitation and the potential for future reform. The court also needed to consider the impact of the crime on the victim and the broader community, as well as the need for general and specific deterrence.

The court found that the objective seriousness of the offence was high, given the significant harm caused to the victim and the substantial moral culpability of the defendant. However, the court also recognised the defendant's efforts towards rehabilitation and their potential for future reform. Ultimately, the court imposed a sentence of imprisonment for three years, with a non-parole period of 20 months, and disqualified the defendant from driving for five years. The court emphasised the importance of holding the defendant accountable for their actions while also promoting their rehabilitation and the protection of the community.

Orders

Orders of the court

Imprisonment 3 years NPP 20 months

Disqualification from driving 5 years

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 Elliot [2022] NSWLC 23

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 23 of 23 shown

Meis v R
[2022] NSWCCA 118 Para 86

…In Meis v R [2022] NSWCCA 118 at [40] – [42], the Court examined whether there was an obligation to take into account a significant previous conviction pursuant to section 21A(2)(d) Crimes (Sentencing Procedure) Act . The court said:…
Park v The Queen
[2021] HCA 37 Para 9

…In Park v The Queen [2021] HCA 37 at [19], the Court said:…
Mbele v R
[2021] NSWCCA 182 Para 108

…of Covid-19 on prison population in the form of decreased visitations and increased lockdowns, and reduced work opportunity: see Mbele v The Queen [2021] NSWCCA 182 at [97], [98] and [104].…
Greaves v R
[2020] NSWCCA 140 Para 7

…In Greaves v R [2020] NSWCCA 140 at [66], Cavanagh J. with Hoeben CJ at CL and Hamill J. agreeing, said:…
Jibran v R
[2020] NSWCCA 86 Para 80

…nditional liberty for driving offences including driving under the influence of illicit drug. To borrow the words of Johnson J. in Jibran v The Queen [2020] NSWCCA 86 at [202]:…
Karout v R
[2019] NSWCCA 253 Para 106

…In Karout v R [2019] NSWCCA 253 at [94], Fullerton J. said:…
R v Fangaloka
[2019] NSWCCA 173 Para 96

…In R v Fangaloka [2019] NSWCCA 173 at [64], Basten JA. said:…
Director of Public Prosecutions (NSW) v Kirby
[2017] NSWSC 1754 Para 74

…In Director of Public Prosecutions (NSW) v Kirby [2017] NSWSC 1754, Hulme J. said at [17]:…
R v Baden-Clay
[2016] HCA 35 Para 75

…defendant’s driving, the offending must be more serious. It can reasonably be inferred that this the case for Mr Elliot: see The Queen v Baden-Clay [2016] HCA 35 at [46] – [47].…
TG v R
[2010] NSWCCA 28 Para 49

…There is no definition of ‘young offender’, however I note Mr Elliot is 27 and obtained his driver licence 10 years ago in May 2012. In TG v R [2010] NSWCCA 28 at [33], Howie J. said: ….“ If a young male is old enough to be licensed to drive a motor vehicle, he is assumed to be mature enough to comply with its cond…
R v Robert Borkowski
[2009] NSWCCA 102 Para 3

…the utilitarian value of each plea: see R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and the judgment of Howie J in R v Borkowski [2009] NSWCCA 102 at [32].…
R v Carroll
[2008] NSWCCA 218 Para 20

…gard to the objective gravity of the offence. [40] 40 See also R v Dodd (1991) 57 A Crim R 349 at 354; R v Rushby [1977] 1 NSWLR 594; R v Carroll [2008] NSWCCA 218 at [20]-[21].”…
Gonzalez v R
[2006] NSWCCA 4 Para 54

…In Gonzalez v R [2006] NSWCCA 4 at [13], Howie J. observed:…
R v Errington
[2005] NSWCCA 348 Para 59

…In R v Errington [2005] NSWCCA 348; 157 A Crim R 553 it was noted that those aggravating factors were not meant to act as a checklist but as a guide. Accordingly, they remain illustrative not definitive.…
Markarian v The Queen
[2005] HCA 25

…ncluding where the maximum penalty exceeds a relevant jurisdictional limit. [17] 17 R v Doan (2000) 50 NSWLR 115 at 123 [35]; Markarian v The Queen (2005) 228 CLR 357 at 372 [30]-[31]; R v Duncan (2007) 172 A Crim R 111 at 117 [20] per Nettle JA, Chernov and Vincent JJA agreeing.”…
R v Gardiner
[2004] NSWCCA 365 Para 61

…In R v Gardiner [2004] NSWCCA 365 at [41], per Smart AJ (with Spigelman CJ and Grove J in agreement):…
R v Doan
[2003] NSWSC 345

…n into account to determine the appropriate sentence, including where the maximum penalty exceeds a relevant jurisdictional limit. [17] 17 R v Doan (2000) 50 NSWLR 115 at 123 [35]; Markarian v The Queen (2005) 228 CLR 357 at 372 [30]-[31]; R v Duncan (2007) 172 A Crim R 111 at 117 [20] per Nettle JA, Chernov and Vince…
R v Palu
[2002] NSWCCA 381 Para 71

…In R v Palu [2002] NSWCCA 381 at [37], Howie J. said, with Levine and Hidden JJ. agreeing said:…
R v Whyte
[2002] NSWCCA 343 Para 45

…There is a guideline judgment in relation to dangerous driving occasioning grievous bodily harm: R v Whyte [2002] NSWCCA 343.…
Morawski v State Rail Authority
[2000] NSWCCA 309 Para 3

…ount of 25% off the penalty that might otherwise be imposed for the utilitarian value of each plea: see R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and the judgment of Howie J in R v Borkowski [2009] NSWCCA 102 at [32].…
R v Thomson; R v Houlton
[2000] NSWCCA 383

…3 R v Gardiner [2004] NSWCCA 365 R v Khatter [2000] NSWCCA 32 R v Palu [2002] NSWCCA 381 R v Thomson; R v Houlton (2000)49 NSWLR 383; [2000] NSWCCA 309 R v Whyte [2002] NSWCCA 343 The Queen v Baden-Clay [2016] HCA 35 Veen v The Queen (No 2) [1988] HCA 14 Category: Sentence Parties: NSW Police Force (Prosecution…
R v Khatter
[2000] NSWCCA 32 Para 60

…In R v Khatter [2000] NSWCCA 32 per Simpson J at [31]:…
Veen v The Queen (No 2)
[1988] HCA 14

…9 NSWLR 383; [2000] NSWCCA 309 R v Whyte [2002] NSWCCA 343 The Queen v Baden-Clay [2016] HCA 35 Veen v The Queen (No 2) [1988] HCA 14 Category: Sentence Parties: NSW Police Force (Prosecution) Craig Elliott (Defendant) Representation: Sergeant Wiblin (Police Prosecutor) Solicitor: V Hampel (Defendant) File Numbe…

Legislation cited in this decision · 4

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 22, 3A, 5, 53A, 66 7 mentions (from Para 21)
Road Transport Act 2013 (NSW)
111, 112(1)(a), 205, 4, 54(3)(a), 9(2A),... 7 mentions
Crimes Act 1900 (ACT)
52A(3), 53 3 mentions (from Para 1)
Drug Misuse and Trafficking Act 1985 (NSW)
10 2 mentions (from Para 2)

Medium Neutral Citation:	Police v Elliot [2022] NSWLC 23
Hearing dates:	22 November 2022
Date of orders:	22 November 2022
Decision date:	12 December 2022
Jurisdiction:	Criminal
Before:	Stewart LCM
Decision:	Imprisonment 3 years NPP 20 months Disqualification from driving 5 years
Catchwords:	Aggregate sentence – dangerous driving under the influence of a drug occasioning grievous bodily harm – cause bodily harm by misconduct of motor vehicle – record amounting to common law aggravation – conditional liberty for drive under the influence of drugs – steps towards rehabilitation – promote rehabilitation of offender - general deterrence – specific deterrence – protection of community – denunciation – make offender accountable for actions - objective seriousness – guideline judgment – abandonment of responsibility – high moral culpability – consideration of ICO – attitude of victim
Legislation Cited:	Crimes (Sentencing Procedure) Act1999 (NSW) s. 3A, 5, 21A, 22, 53A, 66 Crimes Act 1900 (NSW) s.52A(3), 53 Road Transport Act 2013 (NSW) s. 4, 9(2A), 9(5), 54(3)(a), 111, 112(1)(a), 205 Drug Misuse and Trafficking Act 1985 (NSW) s. 10
Cases Cited:	Director of Public Prosecutions (NSW) v Kirby [2017] NSWSC 1754 Gonzalez v R [2006] NSWCCA 4 Greaves v R [2020] NSWCCA 140 Jibran v The Queen [2020] NSWCCA 86 Karout v R [2019] NSWCCA 253 Mbele v The Queen [2021] NSWCCA 182 Meis v R [2022] NSWCCA 118 Park v The Queen [2021] HCA 37 R v Borkowski [2009] NSWCCA 102 R v Errington [2005] NSWCCA 348; 157 A Crim R 553 R v Fangaloka [2019] NSWCCA 173 R v Gardiner [2004] NSWCCA 365 R v Khatter [2000] NSWCCA 32 R v Palu [2002] NSWCCA 381 R v Thomson; R v Houlton (2000)49 NSWLR 383; [2000] NSWCCA 309 R v Whyte [2002] NSWCCA 343 The Queen v Baden-Clay [2016] HCA 35 Veen v The Queen (No 2) [1988] HCA 14
Category:	Sentence
Parties:	NSW Police Force (Prosecution) Craig Elliott (Defendant)
Representation:	Sergeant Wiblin (Police Prosecutor) Solicitor: V Hampel (Defendant)
File Number(s):	2022/124121; 22/131407; 21/39030; 20/278573
Publication restriction:	NIL