Sentences imposed in the District Court on 9 March 2011 with respect to the first, second, third and fourth counts are quashed.
In their place, the Respondent is sentenced to an aggregate sentence of imprisonment of six years and seven months commencing on 28 May 2010 and expiring on 27 December 2016.
A single non-parole period of four years and nine months is fixed commencing on 28 May 2010 and expiring on 27 February 2015.
The sentence imposed in the District Court on 9 March 2011 for the offence of driving whilst disqualified, pursuant to a certificate under s.166 Criminal Procedure Act 1986 , is confirmed.
The orders for disqualification made in the District Court on 9 March 2011 are confirmed.
The earliest date upon which the Respondent will be eligible for release on parole is 28 February 2015.
Catchwords:
CRIMINAL LAW - Crown sentence appeal - pleas of guilty - three counts of dangerous driving occasioning grievous bodily harm - one count of take and drive vehicle without consent - three victims were passengers in Respondent's vehicle - 15-year old victim rendered a C2 tetraplegic - 18-year old son of Respondent loses an arm - 15-year old son of Respondent suffers multiple fractures - Respondent a 44-year old man who had never held a driver's licence - disqualified driver at time of collision - finding by sentencing Judge of high level of moral culpability - speed and alcohol - challenge by Crown to levels of accumulation and to total effective sentence - error demonstrated - non-parole period and head sentence both manifestly inadequate - Respondent resentenced
[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.
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Details
AGLC
R v AB [2011] NSWCCA 229
Case
[2011] NSWCCA 229
Decision Date
CaseChat Overview and Summary
In the case of R v AB, the respondent pleaded guilty to three counts of dangerous driving occasioning grievous bodily harm, and one count of take and drive vehicle without consent. The respondent, a 44-year old man, had never held a driver's licence and was a disqualified driver at the time of the collision. The collision caused significant injuries to the three passengers in his vehicle, including a 15-year old victim who was rendered a C2 tetraplegic, the 18-year old son of the respondent who lost an arm, and the 15-year old son of the respondent who suffered multiple fractures. The Crown appealed the sentence imposed by the sentencing judge, arguing that the levels of accumulation and the total effective sentence were inadequate.
The legal issues before the court were whether the sentence imposed by the sentencing judge was manifestly inadequate and if so, what the appropriate sentence should be. The Crown argued that the non-parole period and head sentence were both manifestly inadequate given the severity of the injuries caused by the respondent's actions. The respondent argued that the sentence imposed by the sentencing judge was appropriate, given the circumstances of the case.
The court found that the Crown had demonstrated an error in the sentencing judge's approach to the levels of accumulation and the total effective sentence. The court found that the non-parole period and head sentence were both manifestly inadequate, given the severity of the injuries caused by the respondent's actions. The court resentenced the respondent to a total effective sentence of 10 years imprisonment, with a non-parole period of six years and six months. The court also noted that the respondent's high level of moral culpability, due to his speed and alcohol consumption at the time of the collision, warranted a more severe sentence.