CATCHWORDS:
SENTENCING - dangerous driving causing death - dangerous driving causing grievous bodily harm - guilty plea - licence disqualification - three year automatic statutory period - discretion to shorten disqualification period - driving behaviour unexplained - whether insufficient regard to the offender's subjective case - typical offender in R v Whyte - abandonment of responsibility - momentary inattention or misjudgement - contumacious offending - no change to sentence. (D)

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Road Transport (General) Act 1999

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2005/1301
MASON P
GROVE J
BUDDIN J
Wednesday 19 October 2005

REGINA v Burt ERRINGTON

Judgment

MASON P: The applicant seeks leave to appeal against sentences imposed by Balla DCJ.
There had been pleas of guilty in the Local Court in respect of two charges arising out of a motor vehicle accident on 6 November 2003, namely dangerous driving causing death and dangerous driving causing grievous bodily harm. The first offence carried a maximum penalty of ten years imprisonment, the second a maximum of seven years imprisonment. For each offence there was an automatic period of licence disqualification of three years, unless the court thought fit to order a shorter period (of not less than twelve months) or a longer period of disqualification.
On 2 February 2005 the applicant was convicted and sentenced as follows:
•On the second charge, a term of eighteen months imprisonment commencing on 2 February 2005 and expiring on 1 August 2006 consisting of a non-parole period of nine months and expiring on 1 November 2005.
•On the first charge, a term of two years and six months imprisonment commencing on 2 May and expiring on 1 November 2007 consisting of a non-parole period of fifteen months expiring on 1 August 2006.
The total effective sentence was therefore an aggregate term of two years and nine months that included an aggregate non-parole period of one year and six months.
The judge declined to shorten the three year period of statutory disqualification prescribed by s25(2)(d) of the Road Transport (General) Act 1999.
Her Honour regarded R v Whyte (2002) 55 NSWLR 252 as a guide to the sentencing decision.
In the context of s21A of the Crimes (Sentencing Procedure) Act 1999 the judge accepted that the relevant mitigating factors were that the offences were not planned and that the applicant had good prospects of rehabilitation. Since, however, the applicant’s behaviour in driving on this occasion was unexplained, the judge declined to find that the applicant was unlikely to re-offend (cf s21(3)(g)).

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 Errington

Details

AGLC: R v Errington [2005] NSWCCA 348
Case: [2005] NSWCCA 348
Decision Date: 19 October 2005

CaseChat Overview and Summary

The case of R v Errington involved the respondent, Errington, who had been charged with dangerous driving causing death and grievous bodily harm. Errington had entered a guilty plea for both charges and was sentenced to imprisonment. The appeal focused on the length of his licence disqualification period. The case was heard in the court of appeal. The legal issues before the court were whether the trial judge had insufficiently considered Errington's subjective circumstances and whether the disqualification period was too lengthy. The appeal also questioned whether the trial judge had adequately balanced Errington's abandonment of responsibility against his contumacious offending.

The court examined the trial judge's consideration of Errington's subjective case and found no error. The court held that the trial judge had appropriately evaluated the evidence and circumstances of the case, including Errington's driving behaviour, which remained unexplained. The court also noted that the trial judge had correctly identified Errington as a typical offender in the context of R v Whyte. The appeal court determined that the trial judge had appropriately balanced Errington's momentary inattention or misjudgement against his contumacious offending. The court found that the trial judge had not erred in imposing the three-year automatic statutory period for licence disqualification and had correctly exercised the discretion to shorten the disqualification period. The appeal was dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence, including the three-year licence disqualification period, remained in place. The court found no merit in the arguments presented by the respondent and upheld the original sentencing decision.

Orders