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R v Dutton

R v Dutton

Case [2005] NSWCCA 248 20 July 2005

Sentencing

Dangerous Driving

Manifestly Inadequate Sentence

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Dutton [2005] NSWCCA 248

FILE NUMBER(S):
2005/620

HEARING DATE(S): 14/07/2005

JUDGMENT DATE: 20/07/2005

PARTIES:
Regina v Bronwyn Gay Dutton

JUDGMENT OF: Studdert J Kirby J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1042

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

COUNSEL:
G. Rowling - Crown
B. Niven - Respondent

SOLICITORS:
S. Kavanagh - Crown
-

CATCHWORDS:
Criminal Law - Sentence - Crown appeal against sentence for dangerous driving - suspended sentence - whether manifestly inadequate - finding of judge as to culpability of respondent based upon blood alcohol reading taken 2 1/2 hours after the impact erroneous - appeal allowed and respondent re-sentenced.

LEGISLATION CITED:
Crimes Act 1900 - ss 52A(2), 52A(3), 52A(4), 52A(7), 52A(9), 52AA
Crimes (Sentencing Procedure) Act 1999 - s 12

DECISION:
The appeal is allowed and the sentence is quashed. In lieu the respondent is sentenced to imprisonment for 2 years. There is to be a non-parole period of 15 months. The sentence is to be served by way of periodic detention. The sentence is to commence on 23 July 2005. The respondent is to be released to parole on 22 October 2006. She is to attend the Detention Centre for Women at Parramatta by 8 am on 23 July 2005 and thereafter every Friday at 7 pm.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/620 CCAP
STUDDERTJ
KIRBY J
HOWIEJ
WEDNESDAY 20 JULY 2005

Regina v Bronwyn Gay DUTTON

Judgment

STUDDERT J: I agree with Howie J re his expression of the reasons for the orders made on 14 July 2005.
KIRBY J: I agree with Howie J.
HOWIE J: This is an appeal by the Crown in respect of a sentence imposed upon the respondent in the District Court by Judge Dodd (the Judge). On 14 July 2005 the Court allowed the appeal and imposed upon the respondent a sentence of 2 years with a non-parole period of 15 months and ordered that the sentence be served by way of periodic detention. These are the reasons that I joined in the orders of the Court.
The respondent had pleaded guilty in the Local Court to an offence of dangerous driving causing grievous bodily harm contrary to s 52A(3) of the Crimes Act. That is an offence for which the maximum penalty prescribed is imprisonment for 7 years. It was alleged that at the time of the impact that caused the harm to the passenger in her vehicle, the respondent was driving under the influence of intoxicating liquor.
The respondent was committed for sentence to the District Court and adhered to her plea of guilty when she appeared before the Judge. As a consequence on 22 February 2005 the respondent was sentenced to imprisonment for 2 years with a non-parole period of 18 months. The sentence was then suspended under s 12 of the Crimes (Sentencing Procedure) Act. The Judge also disqualified the respondent from holding a drivers licence…

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 Dutton

Details

AGLC: R v Dutton [2005] NSWCCA 248
Case: [2005] NSWCCA 248
Decision Date: 20 July 2005

CaseChat Overview and Summary

The case of R v Dutton involved the respondent, Dutton, who was convicted of dangerous driving occasioning grievous bodily harm. The Crown appealed against the sentence of a suspended sentence imposed by the trial judge, arguing it was manifestly inadequate. The appeal was heard in the Court of Criminal Appeal of New South Wales. The Crown's primary contention was that the sentence was insufficient given the gravity of the offence and the harm caused.

The legal issues before the court included whether the original sentence was manifestly inadequate and whether the trial judge's assessment of Dutton's culpability was correctly based on a blood alcohol reading taken 2 1/2 hours post-incident. The court examined the principles guiding sentencing for dangerous driving and the relevance of the blood alcohol reading taken at that specific time. The court considered the nature of the harm caused, the culpability of Dutton, and the deterrent effect of the sentence.

The court found that the original sentence was indeed manifestly inadequate. The reliance on a blood alcohol reading taken 2 1/2 hours after the incident was deemed erroneous as it did not accurately reflect Dutton's state at the time of the offence. The court emphasised the need for a sentence that appropriately reflected the seriousness of the crime and the harm caused. Consequently, the appeal was allowed, and Dutton was re-sentenced to a period of imprisonment.

Orders