Preston v Regina - [2011] NSWCCA 25

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Preston v Regina [2011] NSWCCA 25
Hearing dates: 15 February 2011
Decision date: 02 March 2011
Before: Beazley JA at 1;
Hidden J at 51;
RA Hulme J at 52
Decision:
1. Grant leave to appeal against sentence.
2. Appeal allowed.
3. Set aside the sentence imposed by the sentencing judge.
4. Sentence the applicant to a term of imprisonment comprising a non-parole period of 18 months and a balance of term of 18 months. The sentence is to date from 24 November 2009. The total sentence will conclude on 23 November 2012. The applicant is to be released on parole upon the expiration of the non-parole period on 23 May 2011.
5. Set aside the period of licence disqualification ordered by his Honour.
6. Order that the applicant be disqualified from driving for a period of 2 years, such period of disqualification to date from 24 November 2009.

Catchwords: CRIMINAL LAW - sentence - appeal against sentence and period of licence disqualification - whether the sentencing judge erred in his assessment of the aggravating features of the offence - whether the sentence was manifestly excessive - sentencing judge correctly held the offence was not due to momentary inattention - no evidentiary basis for the finding that conduct was due to a time imperative - low moral culpability - sentence imposed was manifestly excessive
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Road Transport (General) Act 2005
Cases Cited: R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
Category: Principal judgment
Parties: Edward Sydney Preston (Applicant)
Regina (Respondent)
Representation: Counsel:
P O'Donnell (Applicant)
J Pickering (Respondent)
Solicitors:
Barry F Cosier & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/1976
Decision under appeal

Citation:

R v Edward Sydney Preston

Date of Decision:

2010-04-01 00:00:00

Before:

Blackmore DCJ

File Number(s):

2009/1976

Judgment

BEAZLEY JA : On 27 November 2009, the applicant, Edward Sydney Preston, was convicted by a jury of one count of dangerous driving occasioning death contrary to the provisions of the Crimes Act 1900, s 52A(1). The maximum penalty for the offence is 10 years imprisonment.

On 1 April 2010, the applicant was sentenced by his Honour Blackmore DCJ in the Sydney District Court to 4 years imprisonment, with a non-parole period of 3 years to date from 24 November 2009 (taking into account prior time spent in custody). The applicant was also disqualified from driving for a period of 5 years commencing on 23 November 2012, the date of his likely release from prison on parole.

The applicant seeks leave to appeal under the Criminal Appeal Act 1912, s 5(1)(c) against the sentence of imprisonment imposed and the period of licence disqualification. If leave is granted, he raises two grounds of appeal. First, he contends that the sentencing judge erred in his assessment of the aggravating features of the offence. Secondly, he complains that the sentence was manifestly excessive.

Background facts

The…

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 Preston v Regina

Details

AGLC: Preston v Regina [2011] NSWCCA 25
Case: [2011] NSWCCA 25
Decision Date: 02 March 2011

CaseChat Overview and Summary

In the matter of Preston v Regina, the appellant sought to appeal his conviction and sentence imposed by the lower court. The appellant was found guilty of a serious driving offence and was sentenced to imprisonment with a period of licence disqualification. The appellant argued that the sentencing judge erred in assessing the aggravating features of the offence and that the sentence was manifestly excessive. The appeal was heard by the court, which was required to determine whether the sentencing judge erred in his assessment of the aggravating features of the offence and whether the sentence imposed was manifestly excessive.

The court examined the evidence presented during the trial and considered the aggravating features of the offence. The court found that the sentencing judge correctly held that the offence was not due to momentary inattention. The court also found that there was no evidentiary basis for the finding that the conduct was due to a time imperative. The court considered the low moral culpability of the appellant and found that the sentence imposed was manifestly excessive. The court noted that the appellant had no prior convictions and that the offence was committed in a moment of recklessness rather than intentional harm.

In conclusion, the court allowed the appeal against the sentence and reduced the period of licence disqualification. The court found that the sentencing judge erred in his assessment of the aggravating features of the offence and that the sentence imposed was manifestly excessive. The court considered the low moral culpability of the appellant and reduced the period of licence disqualification to reflect the appropriate penalty for the offence committed. The final orders of the court were that the appellant's sentence be reduced and the period of licence disqualification be amended accordingly.

Orders