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R v Cousins

R v Cousins

Case [2002] NSWCCA 81 5 March 2002

Sentencing

Aggravated Dangerous Driving

Causation

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v COUSINS [2002] NSWCCA 81

FILE NUMBER(S):
60878/01

HEARING DATE(S): 5 March 2002

JUDGMENT DATE: 05/03/2002

PARTIES:
Regina
Peter John Cousins

JUDGMENT OF: Spigelman CJ Grove J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0878

LOWER COURT JUDICIAL OFFICER: Naughton DCJ

COUNSEL:
R A Hulme (Crown)
C B Craigie SC (Respondent)

SOLICITORS:
S E O'Connor (Crown)
D J Humphreys (Respondent)

CATCHWORDS:
CRIMINAL LAW - sentencing - Crown appeal against inadequacy of sentence - whether sentence manifestly inadequate - aggravated dangerous driving occasioning death and grievous bodily harm - whether offence fell within worst category of offences of this kind - where gravity extremely high and subjective case for offender weak - whether discount for guilty plea appropriate - whether finding of special circumstances based on rehabilitative prospects appropriate where persistently defiant attitude to law demonstrated.

LEGISLATION CITED:
Crimes Act 1900

DECISION:
Appeal allowed, sentence for offence of dangerous driving occasioning death quashed. Respondent sentenced to imprisonment for eight years commencing 5 April 2001 with a non-parole period of six years expiring 4 April 2007.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60878/01
SPIGELMAN CJ
GROVE J
SMART AJ
Tuesday 5 March 2002

REGINA v PETER JOHN COUSINS

Judgment

SPIGELMAN CJ: This is a crown appeal from the alleged inadequacy of the sentence imposed by his Honour Judge Naughton QC on 1 November 2001. The Respondent pleaded guilty to one charge of aggravated dangerous driving occasioning death contrary to s52A(2) of the Crimes Act 1900 and another count of aggravated dangerous driving occasioning grievous bodily harm contrary to the same section. Two comparatively minor matters were taken into account on a Form 1, but would have had little impact on the sentences. His Honour sentenced the Appellant to imprisonment for seven years with a non-parole period of four years on the first count and to a fixed term of four years for the second count.
On 5 April 2001, the Respondent was driving a car which he knew to have been stolen. In that car was his de facto wife, Tammy Francis and their two year old daughter. They travelled to a methadone clinic in Kogarah. After obtaining the methadone, they offered a lift to David Kristian and his girlfriend, Kelly Ton. In the accident, to which I will refer below, David Kristian died. This was the death referred to in count 1. Kelly Ton was injured. This was the grievous bodily harm referred to in count 2.
At about 11.33am while driving a friend's car, the owner of the stolen car saw his car being driven in Allawah. He followed it and noticed it pull into a service station in Hurstville. Miss Francis and her daughter left the car. Two police vehicles, responding to the owner's report, entered the service station. One was parked across the front of the stolen car. A uniformed police officer, Constable Rebecca Callas, reached in and grabbed the offender by the upper…

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 Cousins

Details

AGLC: R v Cousins [2002] NSWCCA 81
Case: [2002] NSWCCA 81
Decision Date: 5 March 2002

CaseChat Overview and Summary

The case of R v Cousins involved a Crown appeal against the sentence imposed on the defendant, Cousins, for aggravated dangerous driving occasioning death and grievous bodily harm. The original sentence was deemed inadequate by the Crown, prompting an appeal to a higher court. The court was tasked with determining whether the sentence was manifestly inadequate, whether the offence fell within the worst category of such offences, and whether any discounts for a guilty plea or findings of special circumstances were appropriate.

The legal issues before the court included the assessment of the gravity of the offence, the appropriateness of a discount for a guilty plea, and the consideration of special circumstances based on the offender's rehabilitative prospects. The court had to weigh the extremely high gravity of the offence against the subjective case for the offender, as well as the offender's persistently defiant attitude towards the law. The court also needed to decide whether the discount for a guilty plea was justified and whether the finding of special circumstances was appropriate given the offender's demonstrated attitude.

The court found that the original sentence was indeed manifestly inadequate, given the extremely high gravity of the offence. The court noted that while the offender had pleaded guilty, which typically warranted a discount, the subjective case for the offender was weak. Furthermore, the court rejected the finding of special circumstances based on rehabilitative prospects, as the offender's persistently defiant attitude towards the law undermined any potential for rehabilitation. The court concluded that the offence fell within the worst category of such offences, warranting a more severe sentence.

The court ordered that Cousins be re-sentenced, taking into account the high gravity of the offence and the need for a sentence that appropriately reflected the seriousness of the crime. The court emphasised that any discount for a guilty plea and findings of special circumstances would need to be carefully reconsidered in light of the offender's attitude and the gravity of the offence.

Orders