R v Grant (No 2)

Case [2022] NSWDC 46


District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Grant (No 2) [2022] NSWDC 46
Hearing dates: 01, 02, 05, 08, 22 and 26 November 2021 - Trial
11 February 2022 - Sentence
Date of orders: 04 March 2022
Decision date: 04 March 2022
Jurisdiction:Criminal
Before: Hatzistergos DCJ
Decision:

See [185] onwards

Catchwords:

CRIMINAL LAW –– Driving offences – Dangerous driving occasioning death – Failing to stop and assist – Police pursuit – Intoxication – Erratic driving –Consideration of impact of alcohol and mild cognitive impairment on decision to drive – Assessment of moral culpability in light of aggravating factors considered in R v Whyte

SENTENCE –– High degree of moral culpability for dangerous driving offence – Failing to stop and assist offence found below mid-range – Police pursuit offence found below the mid-range and towards the lower range – Mid-range PCA dealt with by conviction with no other penalty – Offender found to have excellent prospects of rehabilitation and a low risk of re-offending

SENTENCE –– Substantial harm to the victim recognised by the Court – Assistance fully taken into account – Offender of prior good character – No prior criminal convictions – Remorse established – Offender found to be of poor physical and mental health – Intoxicating effects not taken into account as a mitigating matter on sentence but considered in light of the Offender’s deteriorating mental health resorting him to alcohol – Impacts of COVID-19 on prisoners considered

Legislation Cited:

Crimes Act 1900 (NSW) s 52A

Crimes (Administration of Sentences) Act 1999 (NSW) s 276

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 10A, 21A,

Criminal Procedure Act 1986 (NSW) ss 166,

Road Transport Act 2013 (NSW) ss 110, 205D

Cases Cited:

Adam v R [2014] NSWCCA 265

Hoskins v R [2020] NSWCA 18

Markarian v R (2005) 228 CLR 357

Muldrock v R (2011) 244 CLR 120

Pullen v R [2018] NSWCCA 264

R v Casey [2015] NSWCCA 142

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

R v Dunlop [2001] NSWCCA 435

R v Grant [2021] NSWDC 643

R v Holyoak (1995) 82 A Crim R 502

R v Khatter [2000] NSWCCA 32

R v Manok [2017] NSWCCA 232

R v McIntyre (1988) 38 A Crim R 135

R v Minna [2013] NSWDC 104

R v Raymond [2019] NSWDC 579

R v Shashati [2018] NSWCCA 167

R v Taula [2015] NSWCCA 8

R v Whyte (2002) 55 NSWLR 252; 134 A Crim R 53

Shumack v R [2008] NSWCCA 311

WW v R [2012] NSWCCA 165

Category:Sentence
Parties: Mr Kenneth Wayne Grant (the Offender)
Regina (the Crown)
Representation:

Counsel:
Mr P Boulten SC (the Offender)
Mr L Carr SC (the Crown)

Solicitors:
Nicholas Dan Solicitor (the Offender)
Director of Public Prosecutions (the Crown)
File Number(s): 2019/00377991
Publication restriction: Nil

Judgment

Introduction

  1. On 26 November 2021 following a judge alone trial of 6 days duration the offender was found guilty of three offences which were as follows:

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Details
AGLC
R v Grant (No 2) [2022] NSWDC 46
Case
[2022] NSWDC 46
Decision Date

CaseChat Overview and Summary

The appellant, Grant, faced the court in the second iteration of his case, charged with multiple driving offences. The charges included dangerous driving resulting in death, failing to stop and render assistance, and engaging in a police pursuit. The Supreme Court of New South Wales presided over the case. The central legal issues revolved around the extent of the appellant's moral culpability for the dangerous driving offence, the appropriate sentencing range for each charge, and the consideration of mitigating factors such as his intoxication, cognitive impairment, and overall health in determining his sentence.

The court meticulously examined the evidence and arguments to determine the appropriate degree of moral culpability for the dangerous driving charge. It found that the appellant exhibited a high degree of moral culpability due to his decision to drive under the influence of alcohol and while experiencing mild cognitive impairment. The court then assessed the sentencing for each offence, placing the failing to stop and render assistance charge below the mid-range and the police pursuit charge towards the lower range. The court acknowledged the appellant's prior good character, lack of criminal history, and his expressed remorse, which were considered as mitigating factors. However, the effects of alcohol were not treated as a separate mitigating factor but were considered alongside the appellant's deteriorating mental health, which had driven him to alcohol.

The court ultimately sentenced the appellant to a mid-range penalty for the principal charge of dangerous driving occasioning death, which was dealt with by a conviction without imposing additional penalties. The court also considered the substantial harm caused to the victim, the appellant's full cooperation, and his poor physical and mental health. The impacts of COVID-19 on the prison system were also factored into the sentencing decision. The court concluded that the appellant had excellent prospects of rehabilitation and a low risk of re-offending, which further influenced the sentencing outcome.

The final orders of the court were detailed in the judgment, beginning at paragraph 185. These orders reflected the comprehensive assessment of the appellant's circumstances and the legal principles applied to reach the sentencing decision.

Orders

Orders of the court

See [185] onwards

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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