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

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:

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 Grant (No 2)

Details

AGLC: R v Grant (No 2) [2022] NSWDC 46
Case: [2022] NSWDC 46
Decision Date: 04 March 2022

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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Citations

AGLC Citation

R v Grant (No 2) [2022] NSWDC 46

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 24 of 24 shown

R v Grant
[2021] NSWDC 643 Para 2

…lating to each Count are fully set out in my judgment of 26 November 2022. [1] However, the relevant facts can be summarised as follows. 1. R v Grant [2021] NSWDC 643 (footnoted hereafter as “J’).…
Moiler v R
[2021] NSWCCA 73 Para 148

…en into account as a matter of mitigation on sentence (section 21A (5AA) of the 1999 Act ). However, I adopt the statements of Button J in Moiler v R [2021] NSWCCA 73 (Basten JA and Davies agreeing) where in a case involving the ingestion of prohibited drugs His Honour stated at [61]:…
Windsor v Health Care Complaints Commission (No 2)
[2020] NSWCA 18 Para 178

…ave previously assessed the objective seriousness of Counts 2 and 3. In sentencing on Count 2 however I note the comments of Basten JA in Hoskins v R [2020] NSWCA 18:…
Whitton v Dexus Funds Management Limited
[2019] NSWDC 579 Para 175

…In R v Raymond [2019] NSWDC 579 the offender was charged with one count under s 52A(1)(c) and one under s 52AB(1) of the 1900 Act . There was also a related offence for low range PCA. The case involved an offender who attended a party where she consumed alcoholic beverages. At some point she left the party only to…
R v Pullen
[2018] NSWCCA 264 Para 89

…ose of the offence is not only to stop and provide assistance but also to deter people from impeding a police investigation, by fleeing cf Pullen v R [2018] NSWCCA 264 at [49].…
R v Shashati
[2018] NSWCCA 167 Para 63

…I accept that evidence in relation to moral culpability is not to be narrowly confined cf R v Shashati [2018] NSWCCA 167.…
R v Manok
[2017] NSWCCA 232

…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 Shu…
Casey v R
[2015] NSWCCA 142 Para 173

…R v Casey [2015] NSWCCA 142 involved the offender and deceased drinking at the hotel and a club with his friend the victim. After leaving the club at 8.30pm they were driven to the offender’s house by his fiancée. They subsequently decided to travel by motor cycle to West Wallsend a distance of about 10km to share d…
R v Tuala
[2015] NSWCCA 8 Para 30

…2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ( the 1999 Act ) and can, as such, be taken into account on sentence. [28] cf R v Taula [2015] NSWCCA 8. I accept that this is so. 28. Crown Written submissions at [55] and Defence written submissions at [41]-[42].…
Adam v R
[2014] NSWCCA 265 Para 88

…o be viewed as less in circumstances where the offender ought to have known as opposed to having actual knowledge of the victim’s death cf Adam v R [2014] NSWCCA 265 at [35]-[36].…
R v Minna
[2013] NSWDC 104 Para 172

…R v Minna [2013] NSWDC 104 was a case involving one charge of dangerous driving causing death. It involved a car driven by an offender described as a young tourist from Italy with 4 other passengers. The deceased was sitting in the back and was the only one with no seatbelt. Each of the persons in the car had atten…
WW v R
[2012] NSWCCA 165 Para 90

…The purpose of providing assistance extends to where a person is deceased cf WW v R [2012] NSWCCA 165 at [85].…
Muldrock v The Queen
[2011] HCA 39 Para 15

…e a value judgment as to what is the appropriate sentence given all the factors relevant to offending behaviour and the offender: cf Muldrock v R (2011) 244 CLR 120 ; Markarian v R (2005) 228 CLR 357 ; Hili v The Queen (2010) 242 CLR 520.…
Hili v The Queen
[2010] HCA 45 Para 15

…actors relevant to offending behaviour and the offender: cf Muldrock v R (2011) 244 CLR 120 ; Markarian v R (2005) 228 CLR 357 ; Hili v The Queen (2010) 242 CLR 520.…
SBF v R
[2009] NSWCCA 231 Para 36

…would have warranted a conviction for another more serious offence. [32] 31. Defence written submissions at [15] and T 17.17 (sentence). 32. SBF v R [2009] NSWCCA 231 at [128]-[129].…
Shumack v R
[2008] NSWCCA 311 Para 47

…The offender did not stop at the scene being a matter relevant to the assessment of the moral culpability at the time of impact. cf Shumack v R [2008] NSWCCA 311 at [32]-[33]. The details are discussed below in respect of Count 2.…
R v Whyte
[2006] NSWCCA 75 Para 31

…The base principles relating to an offence under s 52A of the 1900 Act are primarily found in the guideline judgment of R v Whyte (2002) 55 NSWLR 252; 134 A Crim R 53.…
Markarian v The Queen
[2005] HCA 25 Para 15

…e appropriate sentence given all the factors relevant to offending behaviour and the offender: cf Muldrock v R (2011) 244 CLR 120 ; Markarian v R (2005) 228 CLR 357 ; Hili v The Queen (2010) 242 CLR 520.…
R v Koosmen
[2004] NSWCCA 359 Para 122

…Of course, remorse and self-punishment do not balance high moral culpability. [67] 67. R v Koosmen [2004] NSWCCA 359 at [32].…
Weininger v The Queen
[2003] HCA 14 Para 15

…omplexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money”: Weininger v R (2003) 212 CLR 629. Ultimately, I must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is t…
R v Dunlop
[2001] NSWCCA 435 Para 54

…In this context, the Defence drew attention to what fell from Wood CJ at CL (with whom Bell and Studdert JJ agreed) in R v Dunlop [2001] NSWCCA 435 which favourably referenced Simpson J’s remarks in R v Khatter [2000] NSWCCA 32 at [31].…
R v Khatter
[2000] NSWCCA 32 Para 54

…ood CJ at CL (with whom Bell and Studdert JJ agreed) in R v Dunlop [2001] NSWCCA 435 which favourably referenced Simpson J’s remarks in R v Khatter [2000] NSWCCA 32 at [31].…
R v Howland
[1999] NSWCCA 10

…to recognise a continuum, rather than a dichotomy, when assessing moral culpability. This was the approach taken by the Chief Justice in R v Howland [1999] NSWCCA 10; 104 A Crim R 273. The circumstances in which the respondent came to be driving after consuming alcohol should not be overlooked. He did not anticipa…
R v De Simoni
[1981] HCA 31 Para 36

…open to have regard to the fact that the offender was affected by alcohol. [31] In this respect, I am mindful of the principles in the R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 and the need to ensure that relevant findings do not cross the line into findings which take into account circumstances of aggrav…

Legislation cited in this decision · 5

Crimes (Sentencing Procedure) Act 1999 (NSW)
10A, 21A 3 mentions (from Para 30)
Road Transport Act 2013 (NSW)
110, 205D 3 mentions (from Para 13)
Crimes (Administration of Sentences) Act 1999 (NSW)
276 2 mentions (from Para 155)
Crimes Act 1900 (ACT)
52A 2 mentions (from Para 1)
Criminal Procedure Act 1986 (NSW)
166 2 mentions (from Para 13)

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