Giles JA at 1; Greg James J at 2; Badgery-Parker AJ at 3
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S) :
00/31/0256
LOWER COURT JUDICIAL OFFICER :
Bellear J
COUNSEL :
G E Smith (Crown) M A Marty (Applicant)
SOLICITORS:
S E O'Connor (Crown) Cole and Butler (Applicant)
CATCHWORDS:
Dangerous driving occasioning death- Jurisic guidelines- "momentary reckless error of judgment"- gradations of culpability- suspended sentence not excessively lenient - :Crown appeal- discretion-Crown's attitude below- departure on appeal. - :Suspended sentence- two step procedure- reasons for - failure to follow may but does not necessarily reveal error in sentence.
3 BADGERY PARKER AJ: This was a Crown appeal in respect of the sentence imposed on the respondent upon his plea of guilty to a charge of dangerous driving occasioning death. At the conclusion of the hearing we made an order that the appeal be dismissed, with our reasons to be delivered at a later date. These are my reasons for joining in the order. His Honour Judge Bellear sentenced the respondent to imprisonment for a term of 22 months, commencing 10 November 2000 and expiring 9 September 2002 and ordered that that sentence be suspended for 22 months upon the respondent entering a bond to be of good behaviour for the like period. The respondent was disqualified from driving for that period also.
4 The charge was laid under s 52A(1)(c) of theCrimes Act 1900 which prescribes a maximum penalty of imprisonment for 10 years.
5 A person is guilty of such an…
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.
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Details
AGLC
R v Foster [2001] NSWCCA 215
Case
[2001] NSWCCA 215
Decision Date
CaseChat Overview and Summary
The case of R v Foster dealt with the issue of dangerous driving that resulted in death. The appellant, Foster, had been convicted and sentenced for causing the death of a pedestrian through dangerous driving. The matter was brought before the court for appeal on the grounds of the sentence imposed. The Crown argued that the sentence was excessively lenient and sought a more severe penalty.
The central legal issue before the court was whether the original sentence was excessively lenient and if the appeal court should exercise its discretion to impose a harsher sentence. The court had to consider the guidelines for sentencing in cases of dangerous driving resulting in death, the culpability of the offender, and the principles governing the imposition of a suspended sentence. The court was also required to determine if the Crown's dissatisfaction with the original sentence was justified and if the sentence imposed on appeal should differ from that originally imposed.
The court examined the jurisprudence regarding the imposition of sentences for dangerous driving causing death and the principles guiding the application of the Jurisic guidelines. It found that the original sentence was not excessively lenient and that the Crown's appeal was based on a departure from the approach taken by the original sentencing judge. The court emphasised the importance of following a two-step procedure when imposing a suspended sentence and providing adequate reasons for the sentence imposed. While the Crown's failure to follow this procedure might indicate an error, it did not necessarily mean that the sentence was erroneous. The court concluded that the original sentence was appropriate and did not find merit in the Crown's appeal.
The court dismissed the appeal, upholding the original sentence imposed on Foster. It was determined that the original sentence was not excessively lenient and that the Crown's dissatisfaction with the sentence did not warrant a departure from the principles guiding the imposition of a suspended sentence. The court emphasised the importance of adhering to the two-step procedure and providing adequate reasons for the sentence imposed.