R v Douglass - [2001] NSWCCA 250

CITATION: R v DOUGLASS [2001] NSWCCA 250 revised - 2/07/2001

FILE NUMBER(S): CCA 60090/01

HEARING DATE(S): 23 May 2001

JUDGMENT DATE:
23 May 2001

PARTIES :

Regina
Robin Lyle Douglass

JUDGMENT OF: Spigelman CJ at 16; Hulme J at 1; Howie J at 17

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/51/0134

LOWER COURT JUDICIAL
OFFICER : Freeman DCJ

COUNSEL : Crown: PG Berman SC
Appellant: P Byrne SC

SOLICITORS: Crown: SE O'Connor
Appellant: DJ Humphreys

DECISION: See paragraphs 15 and 20

- 7 -

No:60090/01

SPIGELMAN CJ

HULME J

HOWIE J

REGINA -v- Robin Lyle DOUGLASS

JUDGMENT

1 HULME J: On 14 February 2001 the above-named applicant was found guilty of a charge that on 15 August 1997 he drove a motor vehicle when it was involved in an impact occasioning grievous bodily harm to his wife and that at the time the prescribed concentration of alcohol was in his blood. On 21 February he was sentenced by Judge Freeman to imprisonment for a term of two years, including a non-parole period of six months, both periods commencing on that day. He was disqualified from holding a driver's licence for two years.

2 The concentration of alcohol was not less than .190, a level which, it was found, severely compromised the applicant's ability to drive. The vehicle was known to have a propensity for instability. Judge Freeman found that the most he would conclude from the evidence as to the applicant's manner of driving was that it was in an assertive fashion and too fast in the circumstances. Although he was not prepared to find that the applicant had completely abandoned any sense of responsibility - a finding favourable to the applicant - his Honour said that the applicant was behaving reprehensibly and his conduct was well towards the upper level of culpability. In this connection his Honour recorded that the applicant had been convicted of driving with the prescribed concentration of alcohol in 1975 and 1979 and in 1990 of refusing a breath analysis.

"For the past three and a half years since being trained in these tasks at the Royal North Shore Hospital and at a rehabilitation centre, the Prisoner has provided this extremely high and continuous level of care for her. He has displayed what is described as comprehensive knowledge and admirable dedication.

Mrs Douglass understandably does not want her husband, the Prisoner, to be incarcerated. She will suffer great inconvenience, the loss of his company, perhaps difficulties in not having the same uniform high standard of care and so on. There is no doubt that she will in a sense be punished even further than…

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 Douglass

Details

AGLC: R v Douglass [2001] NSWCCA 250
Case: [2001] NSWCCA 250
Decision Date: 23 May 2001

CaseChat Overview and Summary

The case of Regina v Douglass was heard by the New South Wales Court of Criminal Appeal. Robin Lyle Douglass was found guilty of driving a motor vehicle when it was involved in an impact occasioning grievous bodily harm to his wife, and that at the time the prescribed concentration of alcohol was in his blood. The District Court sentenced Douglass to two years imprisonment, including a non-parole period of six months, and disqualified him from holding a driver's licence for two years. The key legal issues were whether the District Court had adequately taken into account the exceptional circumstances of the case and whether the sentence was manifestly excessive.

The Court of Criminal Appeal found that the District Court had miscarried in its sentencing. The exceptional circumstances included the catastrophic impact of the accident on Mrs Douglass, who became a C-4 quadriplegic, and the fact that Douglass had immersed himself in his wife's care since the accident. The Court held that the District Court had not adequately recognised these exceptional circumstances and had been overly constrained by the guidelines set forth in Jurisic. The Court quashed the original sentence and imposed a new sentence of 21 months imprisonment, suspended for 21 months, with the condition that Douglass enter into a good behaviour bond for that period. The Court also reinstated the disqualification from holding a driver's licence for two years.

Orders