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R v Conway

R v Conway

Case [2021] NSWDC 198 12 March 2021

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District Court

New South Wales

Medium Neutral Citation: R v Conway [2021] NSWDC 198
Hearing dates: 26 February 2021
Decision date: 12 March 2021
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Sentenced to an aggregate term of imprisonment of 11 years; non-parole period 7 years.
Driver’s licence disqualification 7 years.

Catchwords:
CRIME – sentence – manslaughter by gross negligence – failing to stop and assist – take and drive without consent of owner – drive while disqualified – vehicle driven on wrong side of road at speed - on conditional liberty at time of offence – no aggravating factors in his criminal history – no remorse or contrition – attempts to blame others for his conduct – not a momentary period of reckless driving but a course of reckless driving over an extended period – totality of criminality – special circumstances – aggregate sentence – partial accumulation on existing sentence.

Legislation Cited:
Crimes (Sentencing Procedure) Act1999
Sentencing Act 1989

Cases Cited:
DPP(Cth) v De La Rosa [2010] NSWCCA 194
Duncan v R [2012] NSW CCA 781
Pearce v R [1998] HCA 57
R v Borkowski [2009] NSWCCA 102
R v Cramp [1999] NSWCCA 324
R v Do [2000] NSWCCA 459
R v Falzon[2000] NSWCCA 530
R v Gorman [2002] NSWCCA 516
R v Hammoud (2000)118 A Crim R 66
R v Jurisic (CCA - unreported – 12 October 1998)
R v Ryan [2000] NSW SC 724
R v Whyte [2002] NSWCCA 343
R v XX (2009) 195 A Crim R
Reynolds v R [2015] NSWCCA 29
Smith v R [2020] NSWCCA 181
Spark v R [2013] NSWCCA
Stevens v R (CCA – unreported - 15 August 1993)
Veen (No2) v R (1988) 164 CLR 465
Woodbridgev R [2010] NSWCCA 185
Young v R [2009] NSWCCA 298

Category: Sentence
Parties: Regina (Crown)
Sam Conway (Accused)
Representation: Counsel:
Mr R Herps (DPP)
Mr M Smith (Accused)

File Number(s): 2019/00212111
Publication restriction: No

Judgment

The first thing I want to say, Mr Conway, addressing you, it is my practice to tell people in advance what the sentence is going to be because most prisoners are more concerned about that than s 3A of the Crimes (Sentencing Procedure) Act1999 and the like.
In your case I propose to fix an aggregate sentence of 11 years imprisonment to commence on 21 June 2021, which is at the expiry of your current non‑parole period. This is in accordance with traditional sentencing practice. Because in fixing your non‑parole period I have to take into account that two year, four month period. I have adjusted your non‑parole period to make a finding of ‘special circumstances’ because of the effect of accumulation. Your non‑parole period will be seven years, expiring on 19 January 2028, ultimately the total sentence imposed upon you effectively from what I am doing at the moment is to fix a sentence that is, taking into account your current custody, 13 years and four months with an effective non‑parole period of nine…

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 Conway

Details

AGLC: R v Conway [2021] NSWDC 198
Case: [2021] NSWDC 198
Decision Date: 12 March 2021

CaseChat Overview and Summary

In the case of R v Conway, the defendant faced multiple charges arising from a serious motor vehicle incident that resulted in the death of another road user. The incident involved the defendant driving a stolen vehicle while disqualified from driving, driving on the wrong side of the road at high speed, and failing to stop and assist the victim. The matter was heard in the Supreme Court of New South Wales, where the defendant's sentencing was the primary focus. The court had to determine an appropriate sentence that reflected the severity and totality of the defendant's criminal conduct, while also considering his background and any potential mitigating factors.

The legal issues before the court encompassed the appropriate weight to give to various aggravating factors, such as the defendant's prior criminal history, his lack of remorse, and the extent of his reckless driving. Additionally, the court had to consider the principle of totality, ensuring that the aggregate sentence did not excessively exceed the cumulative sentences for each individual offence. The court was also required to assess whether any of the offences should partially accumulate on an existing sentence the defendant was serving at the time of the offence.

In delivering the judgment, the court emphasised the gravity of the defendant's conduct, highlighting the prolonged and reckless nature of his driving which culminated in the fatal incident. Despite the absence of aggravating factors in his criminal history and the fact that he was on conditional liberty at the time of the offence, the court noted the defendant's attempts to shift blame and his lack of contrition. After considering these factors, the court determined that the totality of the defendant's criminality warranted a significant sentence. The court imposed an aggregate term of imprisonment of 11 years, with a non-parole period of 7 years, and also disqualified the defendant from holding a driver's licence for 7 years.

Orders

Orders of the court

Sentenced to an aggregate term of imprisonment of 11 years; non-parole period 7 years.

Driver’s licence disqualification 7 years.

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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Citations

AGLC Citation

R v Conway [2021] NSWDC 198

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 17 of 17 shown

Smith v The Queen
[2020] NSWCCA 181 Para 77

…Another comparative case relied upon by the defence was the case of Smith [2020] NSWCCA 181. This was an appeal against sentence for a single death caused by manslaughter where the driver was highly intoxicated and where she had to findings of guilt previously for drink-driving, one in 1998, for an offence of “speci…
Reynolds v R
[2015] NSWCCA 29 Para 42

…Crown also referred the Court to Reynolds v Regina [2015] NSWCCA 29. This was a boating manslaughter that also, in my view, bears no relationship to this case.…
Khazaal v The Queen (No 2)
[2013] NSWCCA 140 Para 46

…there were few manslaughter driving cases arising from gross criminal negligence. But the Crown particularly relied on the decision of the Spark v R [2013] NSWCCA 140, seeking to summarise the pertinent facts, the discount given for the pleas of guilty and the resultant sentence, noting the fact that there was no p…
Woodbridge v R
[2010] NSWCCA 185 Para 76

…of those cases) it was noted some commonality of features within the facts. It was submitted by counsel for the prisoner that the case of Woodbridge [2010] NSWCCA 185 was most comparable. I have read the detail of that case and the other cases in the schedule closely. It is not comparable to this case in a range of…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 31

…condition which would warrant a reduction in the weight to be given to general deterrence in the context of what are sometimes called ‘ De La Rosa [2010] NSWCCA 194 (per McLellan CJ at CL, at [177]-[178]) principles’. The report of Dr Adam Marten dated 9 December 2019 was prepared for the purposes of sentencing in…
Young v R
[2009] NSWCCA 298 Para 72

…appropriate sentence was 12 years imprisonment primarily because the Crown had not appealed against the sentence of a co-offender. The case of Young [2009] NSWCCA 298, where for single manslaughter the sentence was 8 years with a 5 year non-parole period, that appellant had a “very favourable subjective case”, was…
R v Robert Borkowski
[2009] NSWCCA 102 Para 47

…The Crown also referred to R v Borkowski [2009] NSWCCA 102, cited by the defence, as containing propositions of significance. It was a Crown appeal. The Crown was correct to submit that, in cases of vehicle manslaughter, the sentence to be imposed must take into account the fact that there is a structure of sentence…
R v Gorman
[2002] NSWCCA 516 Para 68

…ty of the criminality noting the observations of Pearce v R [1998] HCA 57 at [45]–[48]. Also the court should have regard to the decision of Gorman [2002] NSWCCA 516. In Pearce , which was a conviction appeal, the majority noted at [45]-[46];…
R v Whyte
[2002] NSWCCA 343 Para 3

…it was not erroneous to have regard to the list of aggravating factors identified in Whyte [2002] NSWCCA 343 (the guideline judgment in relation to sentencing pursuant to s 52A Crimes Act 1900). This may be correct but there is no need to do so here.…
R v Falzon
[2000] NSWCCA 530

…earce v R [1998] HCA 57 R v Borkowski [2009] NSWCCA 102 R v Cramp [1999] NSWCCA 324 R v Do [2000] NSWCCA 459 R v Falzon [2000] NSWCCA 530 R v Gorman [2002] NSWCCA 516 R v Hammoud (2000)118 A Crim R 66 R v Jurisic (CCA - unreported – 12 October 1998) R v Ryan [2000] NSW SC 724 R v Whyte [2002] NSWCCA 343 R v XX (2009…
R v Do
[2000] NSWCCA 459 Para 41

…The Crown also referred the Court to R v Do [2000] NSWCCA 459, Crown appeal in which I appeared for the respondent and which was dismissed. That was a failed brakes case and bears no comparison with this matter in terms of the moral culpability of the prisoner. It was a much more lenient sentence than required in th…
R v Ryan
[2000] NSWSC 724 Para 71

…s. That offender was 18 years of age, had an almost clear record and real prospects of rehabilitation. Another case cited in that judgment was Ryan [2000] NSWSC 724, a truck driver driving on the wrong side of a six lane highway affected by with amphetamines, pleading guilty to manslaughter, sentenced to 7 years 10…
R v Cramp
[1999] NSWCCA 324 Para 48

…The Crown also referred to a decision of R v Cramp [1999] NSWCCA 324, which involved criticism of the comparison of the offending as manslaughter with offending pursuant to s 52A Crimes Act 1900, but ultimately held that the sentence imposed (nine years four months imprisonment with a non-parole period of seven year…
Pearce v The Queen
[1998] HCA 57 Para 68

…It is open to the court to impose an aggregate sentence having regard to the totality of the criminality noting the observations of Pearce v R [1998] HCA 57 at [45]–[48]. Also the court should have regard to the decision of Gorman [2002] NSWCCA 516. In Pearce , which was a conviction appeal, the majority noted a…
Mill v The Queen
[1988] HCA 70

…for each offence and then consider questions of accumulation or concurrence, as well, of course, as questions of totality ( Mill v The Queen (1988) 166 CLR 59, at 62 – 63). Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision… It is, then,…
Veen v The Queen (No 2)
[1988] HCA 14 Para 65

…ll opportunity to demonstrate the specific deterrent effect of his first lengthy sentence of imprisonment means that the principles in Veen (No2) (1988) 164 CLR 465 were not engaged. These matters have been taken into account.…
But the outcome has to be seen in the context of many more favourable mitigating factors. Duncan
[2012] NSWCCA 781 Para 72

…d as “amongst the more serious of its kind”. But the outcome has to be seen in the context of many more favourable mitigating factors. Duncan [2012] NSWCCA 781 is not comparable having regard to the number of dead or injured. The subjective case was more favourable than for this accused.…

Legislation cited in this decision · 3

Crimes Act 1900 (ACT)
2 mentions (from Para 8)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 1)
Sentencing Act 1989 (NSW)
1 mention

Medium Neutral Citation:	R v Conway [2021] NSWDC 198
Hearing dates:	26 February 2021
Decision date:	12 March 2021
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Sentenced to an aggregate term of imprisonment of 11 years; non-parole period 7 years. Driver’s licence disqualification 7 years.
Catchwords:	CRIME – sentence – manslaughter by gross negligence – failing to stop and assist – take and drive without consent of owner – drive while disqualified – vehicle driven on wrong side of road at speed - on conditional liberty at time of offence – no aggravating factors in his criminal history – no remorse or contrition – attempts to blame others for his conduct – not a momentary period of reckless driving but a course of reckless driving over an extended period – totality of criminality – special circumstances – aggregate sentence – partial accumulation on existing sentence.
Legislation Cited:	Crimes (Sentencing Procedure) Act1999 Sentencing Act 1989
Cases Cited:	DPP(Cth) v De La Rosa [2010] NSWCCA 194 Duncan v R [2012] NSW CCA 781 Pearce v R [1998] HCA 57 R v Borkowski [2009] NSWCCA 102 R v Cramp [1999] NSWCCA 324 R v Do [2000] NSWCCA 459 R v Falzon[2000] NSWCCA 530 R v Gorman [2002] NSWCCA 516 R v Hammoud (2000)118 A Crim R 66 R v Jurisic (CCA - unreported – 12 October 1998) R v Ryan [2000] NSW SC 724 R v Whyte [2002] NSWCCA 343 R v XX (2009) 195 A Crim R Reynolds v R [2015] NSWCCA 29 Smith v R [2020] NSWCCA 181 Spark v R [2013] NSWCCA Stevens v R (CCA – unreported - 15 August 1993) Veen (No2) v R (1988) 164 CLR 465 Woodbridgev R [2010] NSWCCA 185 Young v R [2009] NSWCCA 298
Category:	Sentence
Parties:	Regina (Crown) Sam Conway (Accused)
Representation:	Counsel: Mr R Herps (DPP) Mr M Smith (Accused)
File Number(s):	2019/00212111
Publication restriction:	No