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R v Greaves

R v Greaves

Case [2014] NSWCCA 194 29 September 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Greaves [2014] NSWCCA 194
Hearing dates: 30.07.2014
Decision date: 29 September 2014
Before: Hoeben CJ at CL at [1]
Beech-Jones J at [66]
Hamill J at [75]
Decision:
(1) Allow so much of the appeal as concerns the imposition of a disqualification period on the respondent for the offence under s52A(3)(c) of the Crimes Act 1900 (NSW).
(2) Set aside the disqualification period of 18 months imposed on the respondent under s188(2)(d)(ii) of the Road Transport (General) Act 2005 (NSW) for the offence under s52A(3)(c) of the Crimes Act 1900 (NSW).
(3) The appeal is otherwise dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - dangerous driving causing grievous bodily harm - Crown appeal - failure by a sentencing judge to properly determine a level of moral culpability of respondent - failure by sentencing judge to properly assess the objective seriousness of offending - sentence imposed manifestly inadequate - need for Court to exercise residual discretion - extraordinary delay in sentence proceedings not the fault of respondent - substantial level of rehabilitation achieved - strong likelihood of interference with rehabilitation if custodial penalty imposed - inadequacy of period of disqualification - automatic periods of disqualification should apply - otherwise Crown appeal dismissed.
Legislation Cited: Crimes Act 1900 - s52A(3)(c)
Crimes (Sentencing Procedure) Act 1999 - s7(2), s10A
Criminal Appeal Act 1912 - s 5DB, s5DB, s5DB(5)(b)
Criminal Procedure Act 1986 - s166
Road Transport (Driver Licensing) Act 1998 - s25A(2)(a)
Road Transport (General) Act 2005 - s188(2)(d)
Road Transport (Safety and Traffic Management) Act 1999 - s9(3)(a), s16, s70(1)
Cases Cited: Aslan v R [2014] NSWCCA 114
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Gonzales v R [2006] NSWCCA 4
Green v Queen; Quinn v The Queen [2011] HCA49; 244 CLR 462
Hei Hei v R [2009] NSWCCA 87
Ngati v R [2014] NSWCCA 125
R v Jurisic [1998] NSWSC 423; 45 NSW LR 209
R v Muldrock [2011] HCA 39; 244 CLR 120
R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
Stanyard v R [2013] NSWCCA 134
R v TG [2010] NSWCCA 28
R v Veatufunga [2007] NSWCCA 54
Tzanis v R [2005] NSWCCA 274
RTA v Tamara O'Sullivan & Ors [2011] NSWSC 1258
Category: Principal judgment
Parties: Regina - Applicant
Saeed Greaves - Respondent
Representation: Counsel:
Mr P Ingram SC - Applicant
Mr T Gartelmann - Respondent
Solicitors:
S Kavanagh, Solicitor for Public Prosecutions - Applicant
SE O'Connor, Legal Aid NSW - Respondent

File Number(s): 2011/97815
Decision under appeal

Date of Decision:

2014-03-04 00:00:00

Before:

Jeffreys DCJ

File Number(s):

2011/97815

Judgment

HOEBEN CJ at CL:

Offence and sentence

The respondent pleaded guilty and was convicted on one count of dangerous driving causing grievous bodily harm, contrary to s52A(3)(c) Crimes Act 1900. The maximum penalty for this offence is 7 years imprisonment. The offence also carries an automatic disqualification from holding a driver's…

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 Greaves

Details

AGLC: R v Greaves [2014] NSWCCA 194
Case: [2014] NSWCCA 194
Decision Date: 29 September 2014

CaseChat Overview and Summary

The case of R v Greaves involved the respondent who had been convicted for dangerous driving causing grievous bodily harm. The Crown appealed against the sentence imposed by the sentencing judge, arguing it was manifestly inadequate. The appeal was heard in the court of appeal. The central legal issues revolved around whether the sentencing judge had correctly assessed the moral culpability of the respondent and the objective seriousness of the offending. The Crown contended that the sentence was inadequate and sought a more punitive penalty, while the respondent argued for the preservation of their current sentence, highlighting their rehabilitation and the potential disruption a custodial sentence would cause.

The court of appeal reviewed the sentencing judge's decision, noting that the judge had failed to properly determine the level of moral culpability and assess the objective seriousness of the offending. The court found that the sentence was manifestly inadequate and exercised its residual discretion to increase the penalty. The court also considered the extraordinary delay in the sentence proceedings, which was not attributable to the respondent, and noted the substantial level of rehabilitation achieved by the respondent. While acknowledging the gravity of the offence, the court found that imposing a custodial penalty would likely interfere with the respondent's rehabilitation efforts. The court further determined that the period of disqualification was inadequate and that automatic periods of disqualification should apply.

Consequently, the court increased the sentence, ruling that the original penalty was manifestly inadequate. The court also mandated that the automatic periods of disqualification should apply. The Crown's appeal was otherwise dismissed, with the court emphasising the respondent's demonstrated rehabilitation and the potential negative impact of a custodial sentence on their ongoing recovery. The final orders of the court included an increased sentence and the imposition of the appropriate disqualification periods.

Orders