Kirk JA at [1]; N Adams J at [6]; McNaughton J at [178].
Decision:
Appeal is dismissed.
Catchwords:
CRIME – Appeals – appeal against sentence – seven offences committed whilst on conditional liberty – whether sentence was manifestly inadequate – whether indicative sentences were manifestly inadequate – objective seriousness of offences – proper consideration of Form 1 matters – sentence lenient but not manifestly inadequate – appeal dismissed
CRIME – Manslaughter – use of motor vehicle – vehicular manslaughter based on gross criminal negligence – whether objective seriousness increased because it was preceded by illegal activity – vehicle collision unintentional
Legislation Cited:
Crimes Act 1900 (NSW), ss 18(1)(b), 35(2), 52AB(1), 93G(1)(a)(i), 112(2)
[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 Cook [2023] NSWCCA 9
Case
[2023] NSWCCA 9
Decision Date
CaseChat Overview and Summary
In this case, the appellant, Cook, was convicted of seven offences committed while on conditional liberty. The offences included dangerous driving occasioning death, driving whilst disqualified, driving with a cancelled licence, driving with no insurance, and possessing a restricted weapon. The appellant appealed against the sentence, arguing that it was manifestly inadequate. The respondent, the Crown, submitted that the sentence was appropriate, and the appeal should be dismissed. The case was heard in the Court of Appeal.
The primary legal issue was whether the sentence imposed by the trial judge was manifestly inadequate. The appellant argued that the sentence was lenient and that the trial judge had failed to properly consider the objective seriousness of the offences, particularly the fact that they were committed while the appellant was on conditional liberty. The appellant also argued that the indicative sentences provided by the Crown were manifestly inadequate. The Crown, on the other hand, submitted that the sentence was appropriate, and the trial judge had properly considered all relevant matters.
The Court of Appeal held that the sentence was lenient but not manifestly inadequate. The court found that the trial judge had properly considered the objective seriousness of the offences, including the fact that they were committed while the appellant was on conditional liberty. The court also held that the indicative sentences provided by the Crown were not manifestly inadequate, and the appellant had not shown that the sentence was manifestly inadequate. The Court of Appeal dismissed the appeal.
The Court of Appeal did not make any orders. The original sentence imposed by the trial judge remained in place.