Hamill J at [1] Lonergan J at [91] Ierace J at [92]
Decision:
The prosecution appeal under s 5D of the Criminal Appeal Act1912 (NSW) against the sentence imposed in the District Court on 9 December 2022 is dismissed.
Catchwords:
CRIMINAL LAW – sentence – aggravated dangerous navigation occasioning death – prosecution appeal against asserted inadequacy – intensely sad case – death of four year old child – where kayak capsized – respondent extremely intoxicated – child not wearing life jacket – whether judge erred in assessment of objective criminality – erroneous use of personal features of the respondent to reduce assessment from “high” to “mid-range” – parsing of terminology – utility of placing offences on putative scale of objective seriousness – applicability of guideline judgment on dangerous driving to kayaking accident – where error established but sentence appropriate – discretion to dismiss prosecution 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.
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AGLC
R v Eaton [2023] NSWCCA 125
Case
[2023] NSWCCA 125
Decision Date
CaseChat Overview and Summary
The case of R v Eaton involved the respondent, who was extremely intoxicated at the time of the incident, navigating a kayak in a dangerous manner that resulted in the death of a four-year-old child. The prosecution appealed against the sentence imposed on the respondent, arguing that it was inadequate. The case came before the court, which was tasked with determining whether the sentence was appropriate given the circumstances of the case.
The legal issues before the court included whether the trial judge erred in their assessment of the objective criminality of the incident and whether the judge made an error by considering the personal features of the respondent in reducing the assessment of objective criminality from "high" to "mid-range." The court also needed to determine whether the terminology used by the judge was appropriate and whether the guideline judgment on dangerous driving could be applied to the kayaking accident. The court considered whether the error established by the prosecution warranted a dismissal of the prosecution appeal.
After considering the evidence and arguments presented by both parties, the court found that the trial judge had erred in their assessment of the objective criminality of the incident. However, the court also found that the sentence imposed on the respondent was appropriate given the circumstances of the case. The court held that the error made by the trial judge did not warrant a dismissal of the prosecution appeal. The court ultimately dismissed the prosecution appeal, confirming the sentence imposed on the respondent.