R v Balla - [2021] NSWCCA 325

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Balla [2021] NSWCCA 325
Hearing dates: 8 December 2021
Decision date: 23 December 2021
Before: Simpson AJA at [1];
Rothman J at [2];
Button J at [7]
Decision:
Appeal dismissed

Catchwords:
CRIME – CROWN APPEAL – alleged errors of fact – alleged mistake as to momentary inattention – alleged error in finding accident as distinct from deliberate running of red light – moral culpability – manifest inadequacy – no error of fact disclosed – no error of conclusion – sentence within range and within judge’s discretion given subjective circumstances and otherwise good character – appeal dismissed.

Legislation Cited:
Crimes Act 1900 (NSW) s 52A(1)(c)

Cases Cited:
House v The King (1936) 55 CLR 499; [1936] HCA 40
R v Khatter [2000] NSWCCA 32

Category: Principal judgment
Parties: Regina (Appellant)
Tommy Balla (Respondent)
Representation:
Counsel:
G Newton (Appellant)
R Khalilizadeh (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Appellant)
Streeton Lawyers (Respondent)

File Number(s): 2020/181856
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 487

Date of Decision:

5 July 2021

Before:

Hanley SC DCJ

File Number(s):

2020/181856

judgment

SIMPSON AJA: I agree with Button J.
ROTHMAN J: I have had the advantage of reading in draft the analysis of Button J with which I agree. I agree with his Honour’s reasons for judgment and the orders he proposes.
I would add the following. I have viewed the “dashcam” footage a number of times. While I accept that the lights were clear and may be seen by users of the road, the colour of the lights is not so discernible in the footage. The change from green to amber and from amber to red can be inferred from what seems to be the upward movement of the traffic light.
Over and above the analysis of Button J, even if one were to accept the analysis of the Crown to which his Honour referred, the gist of this offence is that, having seen the amber light, the respondent misjudged the time he had to make the right hand turn and decided to effect the turn. His inattention even on the Crown case, is confined to the two seconds that the light was red.
Ordinarily, it takes at least one second to react to a situation while driving. This case, if the Crown analysis were correct, is a tragic lesson for those who decide to travel through amber lights, when they have time to stop.
Nothing in these additional comments is intended to qualify my agreement with Button J, which I reiterate.
BUTTON J:

Introduction

This is a Crown appeal against the sentence imposed on Mr Tommy Balla (the respondent) for the offence of dangerous driving causing death, contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of imprisonment for ten years, and no standard non-parole period.

On 20 August 2021, 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 R v Balla

Details

AGLC: R v Balla [2021] NSWCCA 325
Case: [2021] NSWCCA 325
Decision Date: 23 December 2021

CaseChat Overview and Summary

The case of R v Balla involved an appeal by the Crown against the sentence imposed on the defendant, Balla, who was found guilty of dangerous driving occasioning death. The case was heard in the appellate court where the Crown sought to argue that the sentence was manifestly inadequate and that the trial judge had erred in fact and in law. The Crown's primary contention was that the trial judge had overlooked the gravity of Balla's actions, particularly in relation to his momentary inattention and the distinction between an accident and a deliberate act of running a red light.

The legal issues before the court included whether the trial judge had made an error in fact or law in assessing the circumstances of the offence and in determining the appropriate sentence. Specifically, the court had to consider whether there was a mistake in the trial judge's understanding of Balla's momentary inattention and whether the judge had correctly differentiated between an accidental driving incident and a deliberate act of running a red light. Additionally, the court needed to evaluate the concept of moral culpability and whether the sentence imposed reflected the appropriate level of moral blameworthiness.

The appellate court carefully reviewed the evidence and the reasoning of the trial judge. The court found that there was no error of fact that would warrant interference with the trial judge's findings. The trial judge had adequately considered the evidence and the circumstances surrounding the incident, including Balla's momentary inattention and his otherwise good character. The court held that the sentence was within the range of appropriate penalties for the offence and that the trial judge had exercised his discretion appropriately. The appellate court concluded that there was no manifest inadequacy in the sentence and dismissed the Crown's appeal.

Orders