R v Burke - [2002] NSWCCA 456

CITATION: R v BURKE [2002] NSWCCA 456

FILE NUMBER(S): CCA 60286/02

HEARING DATE(S): 13 November 2002

JUDGMENT DATE:
13 November 2002

PARTIES :

Regina
Wayne Allen BURKE (Applicant)

JUDGMENT OF: Wood CJ at CL at 1; Dowd J at 2; Bell J at 29

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/31/0349

LOWER COURT JUDICIAL
OFFICER : English DCJ

COUNSEL :
P Power (Crown)

SOLICITORS: Conditsis & Associates (Applicant)
S E O'Connor (Crown)

CATCHWORDS: Sentence appeal - dangerous driving occasioning greivous bodily harm - deliberate and grave conduct - no automatic full discount.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedures) Act 1999
Road Transport (General) Act 1999

CASES CITED:
R v Jurisic (1998) 45 NSWLR 209
R v Khatter [2000] NSWCCA 32
R v Whyte [2002] NSWCCA 343
R v Muscumeci NSWCCA (unreported, 30 October 1997) 9

DECISION: Leave to appeal granted; appeal dismissed.

060286/02

WOOD CJ at CL
DOWD J
BELL J
Wednesday 13 November 2002

REGINA v WAYNE ALLEN BURKE

Judgment

1 WOOD CJ at CL: I agree with Dowd J.

2 DOWD J: The applicant entered a plea of guilty before English DCJ at Gosford on 15 March to a charge of dangerous driving, occasioning grievous bodily harm contrary to s52 A (3)(c) of the Crimes Act 1900 (“the Act”) which carries a penalty of seven years with an automatic disqualification for up to three years with a minimum of one year under s25 (1) of the Road Transport (General) Act 1999.

3 The applicant was sentenced to imprisonment for eighteen months commencing 9 May 2002 expiring 8 November 2003 with a non-parole period of thirteen months and two weeks her Honour directing release to parole on 22 June 2003 with a twelve months driving disqualification commencing 9 May 2002.

4 The plea of guilty was entered leaving, somewhat unusually, one fact still to be determined and there was a contested hearing on that particular fact relating to an allegation by the police that the applicant was involved in drag-racing.

5 The facts are that the applicant at 8.15 on Wednesday 18 October 2000 attended a service station at Langford Drive, Kariong. There was an issue about whether the applicant asked friends to go for a drive but, in fact, the vehicle that he drove had three passengers.

6 The applicant was a learner-driver but was not in the company of a licensed driver. The applicant accelerated his vehicle to about eighty kilometres per hour and overtook a vehicle on the wrong side at about that speed. The applicant pulled his vehicle back onto the correct side of the road then lost control, hitting a gutter, mounting the grass verge, colliding with a power pole, a rock wall and a small tree. By the time the police and ambulance arrived, all occupants of the vehicle were outside the vehicle.

7 The applicant and two of the passengers, Sarah Turnbull and Christian Marf, were taken to hospital. The applicant having sustained minor injuries was…

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 Burke

Details

AGLC: R v Burke [2002] NSWCCA 456
Case: [2002] NSWCCA 456
Decision Date: 13 November 2002

CaseChat Overview and Summary

The case of R v Burke involved an appeal by the defendant against the sentence imposed for dangerous driving occasioning grievous bodily harm. The incident in question involved the defendant driving recklessly, causing significant harm to another road user. The matter was brought before the court for the purpose of assessing whether the sentence was appropriate and whether the defendant was entitled to a discount for his plea of guilty.

The primary legal issue the court had to determine was whether the sentence imposed was commensurate with the severity of the offence and the defendant's culpability. The court also had to consider the principles of sentencing for dangerous driving, including the applicability of any discount for a plea of guilty, and whether there were circumstances that warranted a departure from the usual discount.

The court found that the defendant's actions were deliberate and exhibited a grave disregard for the safety of others on the road. It was noted that the harm caused was significant, leading to severe and long-lasting injuries for the victim. Given the gravity of the conduct, the court determined that the usual full discount for a plea of guilty was not automatic and could be adjusted based on the circumstances. The court held that the sentence imposed was appropriate given the nature of the offence and the defendant's culpability, and thus, the appeal was dismissed.

As a result, the original sentence stands affirmed, and the defendant is required to adhere to the terms and conditions set out in the initial judgment.

Orders