Hoeben CJ at CL at [1]; Bellew J at [140]; Hidden AJ at [180]
Decision:
(1) The Crown appeal is allowed.
(2) The orders made by his Honour Ellis DCJ on 7 October 2020 are quashed.
(3) In lieu thereof, the following orders are made:
(a) In relation to the s 166 Certificate, the respondent is disqualified from driving for 6 months.
(b) In relation to the three indictment counts, the respondent is convicted and a global disqualification is imposed of 4 years.
(c) The respondent is sentenced to an aggregate sentence of imprisonment for 8 years commencing 7 October 2020 and expiring on 6 October 2028 with a non-parole period of 4 years and 9 months commencing 7 October 2020 and expiring 6 July 2025.
(d) In relation to Count 1 (Sequence 5) the indicative sentence is 6 years.
(e) In relation to Count 2 (Sequence 6) the indicative sentence is 6 years.
(f) In relation to Count 3 (ex officio) the indicative sentence is 9 months.
Catchwords:
CRIMINAL LAW – Crown sentence appeal – pleas of guilty to one count of dangerous driving occasioning grievous bodily harm and two counts of aggravated dangerous driving causing death – three victims were passengers in respondent’s vehicle, two of whom were killed as a result of his conduct – sentence of imprisonment for 6 years with a non-parole period of 2 years and 9 months imposed – speed and alcohol – challenge by Crown to levels of accumulation and to total effective sentence – high level of moral culpability – error demonstrated – non-parole period and head sentence both manifestly inadequate – respondent re-sentenced.
[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 Bortic [2021] NSWCCA 138
Case
[2021] NSWCCA 138
Decision Date
CaseChat Overview and Summary
The Crown appealed against the sentence imposed on the respondent, Bortic, who had pleaded guilty to one count of dangerous driving occasioning grievous bodily harm and two counts of aggravated dangerous driving causing death. The victims were passengers in Bortic’s vehicle, two of whom died as a result of his conduct. The original sentence imposed by the court was imprisonment for 6 years with a non-parole period of 2 years and 9 months. The Crown challenged both the levels of accumulation of the sentences and the total effective sentence, arguing that they were inadequate given the high level of moral culpability demonstrated by the respondent. The Crown's appeal centred on the contention that the sentence imposed was manifestly inadequate, both in terms of the head sentence and the non-parole period.
The court considered the nature of the offences, the speed at which the vehicle was being driven, and the fact that the respondent was under the influence of alcohol at the time. It was noted that the respondent’s conduct showed a high level of moral culpability, as he chose to drive dangerously while intoxicated, leading to the death of two passengers and grievous bodily harm to another. The court found that the original sentence did not adequately reflect the severity of the crimes and the level of culpability. The Crown's appeal was thus allowed, and the court re-sentenced the respondent, imposing a new sentence that better reflected the gravity of the offences.
The court re-assessed the levels of accumulation and the total effective sentence, taking into account the high moral culpability and the tragic consequences of the respondent's actions. The re-sentenced imposed by the court was a significant increase from the original sentence, with a new head sentence and a longer non-parole period, ensuring that the punishment was commensurate with the severity of the crimes committed. The court’s decision emphasised the importance of ensuring that sentences reflect the true nature and consequences of the offences, particularly in cases involving high levels of moral culpability and tragic outcomes.
The court’s final orders involved the imposition of a new sentence, reflecting a more appropriate level of punishment for the respondent's actions. The re-sentenced was designed to adequately address the moral culpability and the tragic consequences of the offences, ensuring that the punishment served both as a deterrent and a form of retribution. The court’s decision underscored the need for sentences to be proportionate to the severity of the crimes and the culpability of the offender.