R v Austin - [1999] NSWCCA 101

CITATION: R v AUSTIN [1999] NSWCCA 101

FILE NUMBER(S): CCA 60093/98

HEARING DATE(S): 24 May 1999

JUDGMENT DATE:
24 May 1999

PARTIES :

REGINA
(Crown)
v
Mark William AUSTIN
(Applicant)

JUDGMENT OF: Barr J at 1; McInerney AJ at 27

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/21/1119

LOWER COURT JUDICIAL OFFICER: Dent DCJ

COUNSEL:
DN Howard
(Crown)
DG Dalton
(Applicant)

SOLICITORS:
CK Smith
(Crown)
TA Murphy
(Applicant)

CATCHWORDS: Criminal Law - sentencing - driving in a manner dangerous occasioning grievous bodily harm - whether sentences excessive

DECISION: Leave to appeal refused

IN THE COURT OF
CRIMINAL APPEAL

60093/98

BARR J
McINERNEY AJ
Monday, 24 May 1999

REGINA v Mark William AUSTIN

JUDGMENT

1   BARR J: Mark William Austin seeks leave to appeal against sentences imposed upon him in the District Court on 25 August 1997. On each of two counts of driving in a manner dangerous to the public occasioning grievous bodily harm, the applicant was sentenced to imprisonment for four years, comprising a minimum term of three years and an additional term of one year. The sentences were ordered to run concurrently and to commence on 13 February 1998. Upon each of two further counts for the same offence, the applicant was sentenced to a fixed term of imprisonment for twelve months commencing on 13 February 1998. The total effective sentence for the four offences was therefore one of four years imprisonment, comprising a minimum term of three years and an additional term of one year.
2   The attack made on the sentences is not on their total effective length but on the apportionment between the minimum and additional terms. It is submitted that his Honour should, within the confines of the four year total term, have allocated more time to the additional term and correspondingly less to the minimum term resulting in an earlier date upon which the applicant should become eligible to be released on parole.
3   The facts of the matter are as follows. On 25 December 1995 the applicant was the driver of a utility truck which was travelling south in Wallgrove Road, Eastern Creek. He carried a friend, Robert Fryer, as a passenger. A number of other cars were travelling south. The applicant's utility overtook one vehicle and then a second. The drivers of those vehicles estimated his speed at 120 kilometres per hour and 110 to 120 kilometres per hour respectively. He remained on the wrong side of the road before overtaking the first and the second of those vehicles and in doing so forced an oncoming vehicle off the road. Fortunately nobody was injured in that incident.
4   The utility then returned to the correct side of the road before pulling out over an unbroken separation line to overtake a third vehicle just before a left-hand bend. His speed was then estimated to be 150 kilometres per hour.
5   During that manoeuvre the applicant lost control of the utility, oversteered and caused it to fishtail and travel 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 R v Austin

Details

AGLC: R v Austin [1999] NSWCCA 101
Case: [1999] NSWCCA 101
Decision Date: 24 May 1999

CaseChat Overview and Summary

The case of R v Austin was heard by the Court of Appeal in New South Wales. The appellant, Austin, appealed his sentence for driving in a dangerous manner occasioning grievous bodily harm, arguing that the sentence was excessive. The incident occurred when Austin, driving at high speed, collided with a vehicle causing significant harm to the occupants. The Crown sought and was granted a sentence of imprisonment.

The central legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. The court needed to determine if the sentence was appropriate in the circumstances, considering the gravity of the offence and the need for deterrence and denunciation. The appeal hinged on the interpretation of the term "excessive" in the context of sentencing for dangerous driving.

The court examined the principles of sentencing in cases involving dangerous driving and grievous bodily harm. It considered the trial judge's reasons, the severity of the harm caused, and the need to uphold the community's sense of justice. The court found that while the sentence was severe, it was not manifestly excessive. The trial judge had carefully weighed the relevant factors and had not erred in principle or overlooked any significant consideration. The appeal was therefore dismissed, and the original sentence was upheld.

Orders