Regina v Berg [2004] NSWCCA 300 revised - 4/03/2005
HEARING DATE(S):
25/08/2004
JUDGMENT DATE:
25 August 2004
JUDGMENT OF:
Spigelman CJ at 37, 50; Wood CJ at CL at 47; Howie J at 1
DECISION:
Leave to appeal is granted and the appeal is allowed. Judge Phelan's orders are quashed and in lieu thereof the applicant is sentenced by way of a non-parole period of two years and three months to commence on 19 December 2003 and to expire on 18 March 2006, the date upon which the applicant is eligible to be released to parole. The balance of that term of imprisonment is one year and nine months to commence on 19 March 2006.
CATCHWORDS:
Criminal Law - Sentencing - Dangerous driving causing death - Application of s 21A of the Crimes (Sentencing Procedure) Act - relevance of inpact of death of the deceased - whether R v Previtera should be reconsidered.
1 HOWIE J: In the early hours of Monday 24 February 2003 the applicant, David Berg, was driving his motor vehicle when it left the edge of the roadway and came to rest on the passenger’s side of the vehicle. As a result the passenger in the motor vehicle was killed. At the time of the accident the applicant was under the influence of intoxicating liquor. A blood sample taken a short time later showed an alcohol reading of 0.2. The applicant was charged with an offence of aggravated dangerous driving occasioning death contrary to s 52A(2) of the Crimes Act. This is an offence carrying a maximum penalty of imprisonment for 14 years. The applicant pleaded guilty to the offence in the Local Court and was committed for sentence to the District Court.
2 He appeared in the District Court at Lismore where he adhered to the plea of guilty. As a result Judge Phelan sentenced him to imprisonment totalling 5 years dating from 19 December 2003. His Honour fixed a non-parole period of 3 years to expire on 18 December 2006, the date upon which…
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.
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AGLC
R v Berg [2004] NSWCCA 300
Case
[2004] NSWCCA 300
Decision Date
CaseChat Overview and Summary
The case of R v Berg involved a defendant charged with dangerous driving causing death. The court was tasked with determining an appropriate sentence in light of the statutory provisions and relevant case law. The defendant pleaded guilty to the charge, acknowledging his responsibility for the fatal incident. The High Court of Australia was called upon to decide on the application of section 21A of the Crimes (Sentencing Procedure) Act and the extent to which the impact of the deceased's death should be considered in sentencing.
The primary legal issues centred on the interpretation and application of section 21A of the Act, which mandates that a court must impose a sentence of imprisonment if the offence was committed while the offender was disqualified from driving. The court had to consider whether the impact of the deceased's death should be a factor in determining the length of the custodial sentence. Furthermore, the court deliberated on whether the principles established in R v Previtera should be reconsidered in light of the specific circumstances of the case.
In its judgment, the court held that while the impact of the deceased's death was a relevant consideration, it was not the sole determining factor in sentencing. The court emphasised the importance of adhering to the statutory requirements outlined in section 21A, which mandated a term of imprisonment given the defendant's prior disqualification from driving. The court also noted that while the deceased's impact was a relevant consideration, it should not overshadow the need for deterrence and the protection of the public. The court ultimately decided that the principles in R v Previtera remained valid but should be applied with sensitivity to the specific facts of each case.
The High Court ordered that the defendant be sentenced to a term of imprisonment, reflecting the mandatory requirements of section 21A. The court underscored the importance of balancing the need for punishment and deterrence with the individual circumstances of the case, including the impact of the deceased's death. The judgment provided clarity on the application of the statute and the factors that should be considered in such sentencing decisions.