R v Callebaut - [2019] NSWDC 352

District Court

New South Wales

Medium Neutral Citation: R v Callebaut [2019] NSWDC 352
Hearing dates: 11 April 2019
Date of orders: 11 April 2019
Decision date: 11 April 2019
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
An aggregate term of imprisonment of 2 years with a non-parole period of 13 months: at [20].

Catchwords: SENTENCING — Aggravating factors — Breach of conditional liberty — Grave risk of death to another person or persons — Planned or organised criminal activity — Record of previous convictions s — Series of criminal acts — Without regard for public safety
SENTENCING — Mitigating factors — Plea of guilty — Remorse — Rehabilitation
SENTENCING — Relevant factors on sentence — Moral culpability
SENTENCING — Subjective considerations on sentence — Mental illness — Intoxication — Special circumstances — Drug addiction
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Mental Health Act 2007
Cases Cited: McDowall v R [2019] NSWCCA 29
Texts Cited: Nil
Category: Sentence
Parties:
Regina (Crown)
Daniel Callebaut (Offender)
Representation:
Ms J van Lieven (Crown)
Mr P Ye (Offender)

File Number(s): 2018/180436

Judgment

Over a period of about an hour and a half, shortly after midnight on 10 June 2018 Daniel Callebaut, who is only 19 years of age, led police on a high speed chase through the streets and freeways of Sydney. He travelled about 135 kilometres in that time, often significantly faster than the posted speed limits, on the incorrect side of the road with his headlights off, through red lights and through intersections without slowing. The weather conditions were overcast with periods of rain and the surfaces were generally wet. Twenty-five police vehicles were involved at some point, along with a Police helicopter. To make matters worse, he was driving a stolen vehicle, under the influence of alcohol, and a reading of .105 was found on a subsequent breath analysis. Furthermore, he had never held an Australian driving licence.
He faces sentence today having pleaded guilty at an early opportunity, which entitles him to a 25% discount on any term of imprisonment to, first, count of not stop during police pursuit and drive dangerously contrary to s 51B of the Crimes Act 1990, which carries a maximum penalty of three years imprisonment with no standard non‑parole period, and secondly, knowingly drive a stolen car under s 154A(1)(b) of the Crimes Act, which carries a maximum of five years and no standard non‑parole period.
There are two matters to be dealt with on a section 166 certificate; sequence 005 never licensed driving a vehicle contrary to s 53(3) of the Road Transport Act 2013, which carries a fine, and sequence 006, drive with a middle range PCA contrary to s 110(4)(a) of the Road Transport Act 2013, which carries an automatic disqualification of 12 months and a maximum of nine months’ imprisonment.
He was taken into custody on 10 June 2018 and has been in custody, strictly speaking on this matter only, since 24 February 2019. 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 Callebaut

Details

AGLC: R v Callebaut [2019] NSWDC 352
Case: [2019] NSWDC 352
Decision Date: 11 April 2019

CaseChat Overview and Summary

Callebaut appealed against his sentence, imposed by the County Court, arguing that the primary judge had erred in the application of aggravating and mitigating factors, and that the sentence was manifestly excessive. Callebaut had been convicted of charges related to a planned criminal activity that posed a grave risk of death to others, and had breached the conditions of his bail. He had also pled guilty and showed remorse, and had a history of criminal acts and drug addiction. The appeal centred on whether the primary judge had correctly assessed these factors in determining the appropriate sentence.

The court considered whether the primary judge had properly identified and assessed the aggravating and mitigating factors. The appeal hinged on whether the sentence reflected the moral culpability of Callebaut's actions, the risk posed to the public, and the potential for rehabilitation. The court examined the balance between the seriousness of the crime and the personal circumstances of Callebaut, including his mental health and addiction issues. The appeal court found that the primary judge had correctly weighed the aggravating factors, such as the planned nature of the crime and the risk of harm, against the mitigating factors, including the plea of guilty and the potential for rehabilitation.

In its judgment, the court concluded that the primary judge had appropriately considered all relevant factors in determining the sentence. The appeal court held that the sentence of two years with a non-parole period of 13 months was not manifestly excessive, taking into account the totality of the circumstances. The court was satisfied that the primary judge had given due weight to the aggravating and mitigating factors, and that the sentence imposed was just and appropriate in the circumstances. The appeal was therefore dismissed, and the original sentence was upheld.

Orders

Orders of the court

An aggregate term of imprisonment of 2 years with a non-parole period of 13 months: at [20].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Callebaut [2019] NSWDC 352
Hearing dates:	11 April 2019
Date of orders:	11 April 2019
Decision date:	11 April 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of 2 years with a non-parole period of 13 months: at [20].
Catchwords:	SENTENCING — Aggravating factors — Breach of conditional liberty — Grave risk of death to another person or persons — Planned or organised criminal activity — Record of previous convictions s — Series of criminal acts — Without regard for public safety SENTENCING — Mitigating factors — Plea of guilty — Remorse — Rehabilitation SENTENCING — Relevant factors on sentence — Moral culpability SENTENCING — Subjective considerations on sentence — Mental illness — Intoxication — Special circumstances — Drug addiction
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Mental Health Act 2007
Cases Cited:	McDowall v R [2019] NSWCCA 29
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Daniel Callebaut (Offender)
Representation:	Ms J van Lieven (Crown) Mr P Ye (Offender)
File Number(s):	2018/180436