NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: REGINA v ERRINGTON [2005] NSWCCA 348
FILE NUMBER(S):
2005/1301
HEARING DATE(S): 12 September 2005
JUDGMENT DATE: 19/10/2005
PARTIES:
REGINA
Burt ERRINGTON
JUDGMENT OF: Mason P Grove J Buddin J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 04/11/1182
LOWER COURT JUDICIAL OFFICER: Balla DCJ
COUNSEL:
Appellant: A Francis
Crown: P Ingram
SOLICITORS:
Appellant: Simon Fung-Greenfield Lawyers Pty Ltd
Crown: Public Prosecutions
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 JWednesday 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)).
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- AGLC
- R v Errington [2005] NSWCCA 348
- Case
- [2005] NSWCCA 348
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
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Decision
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