R v Dandachli - [2004] NSWCCA 100

CITATION: R v Dandachli [2004] NSWCCA 100

HEARING DATE(S): 31 March 2004

JUDGMENT DATE:
16 April 2004

JUDGMENT OF: Sperling J at 1; Hidden J at 29; Howie J at 30

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS: Criminal Law - dangerous driving causing death - dangerous driving causing grievous bodily harm - appeal against severity of sentence - where plea of guilty - where aggravating factors establishing a high degree of moral culpability - manner of determining non-parole period - lesser sentence not warranted in law

LEGISLATION CITED: Crimes Act 1900, s52A
Crimes (Sentencing Procedure) Act 1999, s44
Criminal Appeal Act 1912, s6

CASES CITED: Jurisic (1998) 45 NSWLR 209
Power (1974) 131 CLR 623
Simpson (2001) 53 NSWLR 704
Whyte (2002) 55 NSWLR 252

PARTIES :
Regina
Moustafa Dandachli

FILE NUMBER(S): CCA 60472/03

COUNSEL: Mr B Knox SC for the Crown
Mr M Buscombe for the Applicant

SOLICITORS: Director of Public Prosecutions
Legal Aid Commission for the Applicant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/1258

LOWER COURT
JUDICIAL OFFICER : Dodd DCJ

- 10 -

60472/03

Sperling J
Hidden J
Howie J

Friday, 16 April 2004

Regina v Moustafa Dandachli

Judgment

1 Sperling J: On 17 March 2003, the applicant pleaded guilty in the District Court to an indictment containing one count of driving in a manner dangerous causing death (s52A(1) Crimes Act 1900), and one count of driving in a manner dangerous causing grievous bodily harm (s52A(3) Crimes Act). On 26 May 2003, Dodd DCJ sentenced the applicant, in relation to the first count, to imprisonment for four years with a non-parole period of three years, and in relation to the second count to a fixed term of imprisonment for three years. These sentences were directed to be served concurrently and to date from 23 May 2003, that being the first date on which the applicant went into custody. The applicant was also disqualified from driving for a period of five years.

2 The applicant now seeks leave to appeal in respect of the non-parole period which was fixed for the first count, upon the ground that his Honour erred in declining to find special circumstances and in failing to reduce the non-parole period accordingly. In the event of that application being successful and leading to a reduction of the non-parole period, it is contended that the fixed term for the second count should be similarly reduced.

The Facts

3 The offences were committed on the morning of 6 May 2002. The applicant was the driver of a motor vehicle which was travelling on the M4 motorway. There were four passengers in the vehicle, one in the front passenger seat and three in the rear. All the occupants of the vehicle were young students and they were friends.

4 In the period leading up to the accident the applicant was observed to overtake traffic, and for that purpose to change lanes, on many occasions. He was also observed to be driving 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 Dandachli

Details

AGLC: R v Dandachli [2004] NSWCCA 100
Case: [2004] NSWCCA 100
Decision Date: 16 April 2004

CaseChat Overview and Summary

The case of R v Dandachli involved the appellant, Dandachli, who was convicted of dangerous driving causing death and grievous bodily harm. The case was heard and determined in the Court of Appeal. The central issue was whether the sentence imposed by the trial judge was manifestly excessive, given the plea of guilty and the presence of significant aggravating factors.

The court was tasked with examining the principles of sentencing in cases of dangerous driving causing death, particularly the role of moral culpability and the manner in which a non-parole period is determined. The appeal hinged on whether the trial judge had appropriately balanced the mitigating and aggravating factors when imposing the sentence. The court considered the nature of the aggravating factors, including the appellant's history of driving offences and the circumstances surrounding the incident, which demonstrated a high degree of moral culpability.

The Court of Appeal found that the trial judge had adequately considered the relevant principles of sentencing and the specific circumstances of the case. The court determined that the sentence was not manifestly excessive, as the trial judge had appropriately reflected on the aggravating factors and the appellant's history. The appeal was dismissed, with the court affirming that a lesser sentence was not warranted in law. The decision underscored the importance of considering moral culpability and the specific circumstances of the offence when determining the appropriate sentence for such serious charges.

Orders