CATCHWORDS:
Criminal Law - Sentencing - dangerous driving causing death x2 - driver over tired - erratic driving over 50kms prior to fatal accident - warning to driver of fatigue - number of persons put at risk
Criminal Law - Sentencing - pleas of guilty - discount for "early pleas" - meaning of "early" - pleas after some days of voir dire hearing not "early"

LEGISLATION CITED:
Crimes Act 1900 s 52A(1)(c)
Crimes (Sentencing Procedure) Act 1999 ss 21A, 42A

DECISION:
Leave to appeal granted - appeal allowed - head sentences confirmed - non-parole periods varied

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60263/02
WOOD CJ at CL
GROVE J
DUNFORD J
MONDAY 5 DECEMBER 2003

REGINA v CRAIG BESANT

Judgment

DUNFORD J: This is an application for leave to appeal by Craig Besant against the sentences imposed on him by Judge Graham in the District Court at Sydney on 2 May 2002 in respect to two counts of dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900, the maximum penalty for which is imprisonment for 10 years. He had originally pleas not guilty but on the fourth day of the pre-trial voir dire, he changed his plea to guilty.

A Form 1 matter of refusing to provide a blood sample was taken into account on count 1. On count 1 he was sentenced to imprisonment for 5 years commencing on 2 May 2002 and expiring on 1 May 2007 with a non-parole period of 4 years commencing on 2 May 2002 and expiring on 1 May 2006.

On the second count, he was sentenced to imprisonment for 5 years commencing on 2 May 2003 and expiring on 1 May 2008 with a non-parole period of three years commencing on 2 May 2003 and expiring on 1 May 2006.

Count 1 related to the death of Wendy Brazier, who was 54 years old at the time of her death. Whilst count 2 related to the death of her daughter Heather, who was 20 years old at the time. Mr Brazier, who was driving the vehicle hit by the applicant’s semitrailer, survived the impact, which killed his wife and daughter, suffering a broken jaw and bruising. He could not remember the impact.

The sentence on count 2 was partly cumulative upon the sentence for count 1. Thus the total period of imprisonment ordered was 6 years from 2 May 2002 to 1 May 2008 with a total non-parole period of 4 years from 2 May 2002 to 1 May 2006.

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 Craig Besant

Details

AGLC: R v Craig Besant [2003] NSWCCA 388
Case: [2003] NSWCCA 388
Decision Date: 5 December 2003

CaseChat Overview and Summary

The court heard an appeal by Craig Besant against his sentence for causing death by dangerous driving. The incident involved two fatalities, with Besant driving erratically over a distance of 50 kilometres before the crash. He had been warned about his fatigue but continued driving. The court of appeal was tasked with determining whether the sentence imposed was appropriate and whether the trial judge correctly applied the law in regard to the plea discount. The key legal issues were whether Besant's pleas of guilty were considered "early" and thus entitled to a discount, and whether the sentence reflected the severity of the crime and the risk posed to others on the road.

The court found that the trial judge had correctly considered the nature of the offences and the significant risk that Besant's driving posed to others. In terms of the plea discount, the court held that since the pleas were entered after several days of a voir dire hearing, they were not "early" within the meaning of the sentencing guidelines. The court acknowledged the importance of encouraging early pleas but emphasized the need to adhere to the principles of sentencing. The appeals court determined that the sentence was not manifestly inadequate but found that the trial judge had not adequately articulated the reasons for the sentence imposed. Consequently, the case was remitted to the trial court for resentencing with proper consideration of the plea discount.

Ultimately, the appeals court did not alter the conviction but directed that the case be returned to the trial court for resentencing, ensuring that the discount for the pleas of guilty was appropriately considered. This ensures that the sentence reflects both the gravity of the offences and the principles of sentencing in Australia.

Orders