R v Dudgeon - [2008] NSWDC 131

CITATION: R v Dudgeon [2008] NSWDC 131

HEARING DATE(S): 10 June 2008

JUDGMENT DATE:
10 June 2008

JURISDICTION: Criminal

JUDGMENT OF: Bennett SC DCJ

DECISION: Imprisonment:
Overall period - 3 years full time custody
Non-parole period - 1 year

CATCHWORDS: CRIME – dangerous driving occasioning death – s 52A (1) Crimes Act 1900 (NSW) – offender driving utility vehicle – impaired by midrange blood alcohol level –excessive speed at night across unfamiliar rough terrain – deceased thrown from rear tray – aggravating and mitigating factors – s 21A Crimes (Sentencing Procedure) Act 1999 (NSW) – assessment of moral culpability

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Khatter [2000] NSWCCA 32
R v Previtera (1997) 94 A Crim R 76
R v Whyte (2002) 55 NSWLR 252

PARTIES: The Queen
Christopher Daniel Dudgeon

FILE NUMBER(S): 2008 / 00007099

COUNSEL: Mr T Healey (Offender)

SOLICITORS:
Mr M Ferguson (Crown)
Turnbull Hill Lawyers (Offender)
Office of the Director of Public Prosecutions (Crown)

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JUDGMENT

Introduction

1 Christopher Daniel Dudgeon, the offender, reached his thirtieth birthday on 11 March this year. His friend, Timothy Hillis, did not reach the point of being able to celebrate his twenty fourth birthday. In the early hours of 28 January 2007 he died from extensive injuries suffered when he was thrown from the back tray of a 4-wheel drive vehicle, which then rolled over onto him, after the offender was driving it in pursuit of a kangaroo across a paddock in Gunnedah. The offender now faces the certainty of imprisonment and the continuing burden that he will carry for the balance of his life, knowing that he was the reason for the death of his younger friend.

2 This case provides yet another example of the tragic outcome when individuals place themselves and others at risk by driving motor vehicles dangerously and after ingesting excessive quantities of alcohol in the face of the enormous effort by the legislature and the courts to curb this behaviour.

The Proceedings

3 The offender pleaded guilty in the Local Court at Tamworth to dangerous driving causing death, an offence contrary to s 52A (1) (c) of the Crimes Act 1900, for which the maximum penalty provided is imprisonment for ten years. The charge, as expressed in the court attendance notice commencing these proceedings, identifies the offence to have occurred between 11:30 pm on 27 January 2007 and 12:30 am on 28 January 2007 at Gunnedah. The charge is expressed thus:

That Christopher Daniel Dudgeon, between 27 January 2007 and 28 January 2007, at Gunnedah, in the State of New South Wales, did drive a motor vehicle, to wit VMY-165, a white Toyota Landcruiser Table Top 4 x 4, when it was involved in an impact occasioning the death of Timothy Hillis and, at the time of impact, the said Christopher Dudgeon was driving the vehicle in a manner dangerous to another person.

4 In this court the offender adheres to his plea of…

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 Dudgeon

Details

AGLC: R v Dudgeon [2008] NSWDC 131
Case: [2008] NSWDC 131
Decision Date: 10 June 2008

CaseChat Overview and Summary

The case of R v Dudgeon was heard in the NSW Supreme Court. The defendant was charged with dangerous driving occasioning death under section 52A of the Crimes Act 1900 (NSW). The incident occurred when the defendant was driving a utility vehicle while impaired by a midrange blood alcohol level. He was driving at excessive speed across unfamiliar and rough terrain at night. The deceased was thrown from the rear tray of the vehicle and died as a result. The primary legal issue was whether the defendant's actions amounted to dangerous driving occasioning death and, if so, what the appropriate sentence would be.

The court considered whether the defendant's actions were reckless and whether they demonstrated a high degree of culpability. It was noted that the defendant was impaired by alcohol and driving at a high speed in unfamiliar and challenging terrain, which were significant aggravating factors. The court also took into account mitigating factors, such as the defendant's otherwise good character and his expression of remorse. Under section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the court assessed the moral culpability of the defendant and the circumstances of the offence to determine the appropriate sentence.

The court found that the defendant's actions did amount to dangerous driving occasioning death. It was determined that the defendant's impaired state and excessive speed, combined with the challenging terrain and night-time conditions, demonstrated a high degree of recklessness. The court considered the aggravating and mitigating factors and concluded that the appropriate sentence was imprisonment. The defendant was sentenced to a total of three years in full-time custody, with a non-parole period of one year.

Orders

Orders of the court

Imprisonment: Overall period - 3 years full time custody Non-parole period - 1 year

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Dudgeon [2008] NSWDC 131
HEARING DATE(S):	10 June 2008
JUDGMENT DATE:	10 June 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Bennett SC DCJ
DECISION:	Imprisonment: Overall period - 3 years full time custody Non-parole period - 1 year
CATCHWORDS:	CRIME – dangerous driving occasioning death – s 52A (1) Crimes Act 1900 (NSW) – offender driving utility vehicle – impaired by midrange blood alcohol level –excessive speed at night across unfamiliar rough terrain – deceased thrown from rear tray – aggravating and mitigating factors – s 21A Crimes (Sentencing Procedure) Act 1999 (NSW) – assessment of moral culpability
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Khatter [2000] NSWCCA 32 R v Previtera (1997) 94 A Crim R 76 R v Whyte (2002) 55 NSWLR 252
PARTIES:	The Queen Christopher Daniel Dudgeon
FILE NUMBER(S):	2008 / 00007099
COUNSEL:	Mr T Healey (Offender)
SOLICITORS:	Mr M Ferguson (Crown) Turnbull Hill Lawyers (Offender) Office of the Director of Public Prosecutions (Crown)