(2) Quash the sentences imposed by Wells DCJ on 19 August 2014 and, in lieu thereof, sentence the respondent to an aggregate term of 7 years 6 months with a non-parole period of 5 years 6 months to commence on 15 August 2013. The earliest date on which the respondent will be eligible for release is 14 February 2019.
Catchwords:
CRIMINAL LAW – Crown appeal against sentence – s 5D Criminal Appeal Act 1912 (NSW) – dangerous driving causing death of three people and grievous bodily harm to a fourth – decision to drive while affected by drugs which tended to induce epileptic fit – extent to which long-standing frontal lobe injury affected judgment – whether individual or total sentences manifestly inadequate – relevance of guideline judgment in R v Whyte [2002] NSWCCA 343 – Crown discharged onus of establishing that residual discretion ought not be exercised
Counsel: P Ingram SC (Crown) T Gartelmann (Respondent)
Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid New South Wales (Respondent)
File Number(s):
2013/173265
Decision under appeal
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
19 August 2014
Before:
Wells DCJ
File Number(s):
2013/173265
Judgment
BASTEN JA: I agree with Adamson J.
R A HULME J: I agree with Adamson J.
ADAMSON J: The Crown appealed pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) against sentences imposed on the respondent by Wells DCJ in the District Court at Lismore on 19 August 2014. The respondent pleaded guilty to four charges which arose from a collision at Stratheden on 4 June 2013. His plea was first entered in the Lismore Local Court on…
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 Harris
Sign in free to access the full text
Details
AGLC
R v Harris [2015] NSWCCA 81
Case
[2015] NSWCCA 81
Decision Date
CaseChat Overview and Summary
In the case of R v Harris, the defendant was convicted of dangerous driving causing the death of three individuals and grievous bodily harm to a fourth. The appeal was brought by the Crown against the sentence imposed on the defendant, pursuant to section 5D of the Criminal Appeal Act 1912 (NSW). The central issues before the court involved the extent to which the defendant's long-standing frontal lobe injury affected his judgment and decision-making capacity at the time of the offence. The court was also required to determine whether the sentences imposed were individually or collectively manifestly inadequate.
The court considered the nature of the offence, the circumstances leading to the incident, and the impact of the defendant's pre-existing medical condition on his actions. In reaching its decision, the court examined the guideline judgment in R v Whyte, where it was held that in cases of dangerous driving causing death, a significant departure from the relevant guideline range of sentence may be warranted. The court found that the Crown had discharged its onus of establishing that the residual discretion of the court ought not to be exercised. The court concluded that the sentences imposed were manifestly inadequate and increased the sentences accordingly.
The final orders of the court were that the original sentences imposed on the defendant were set aside, and new sentences were imposed, reflecting the court's determination that the original sentences were manifestly inadequate. The defendant's appeal against sentence was thus dismissed, and the sentences were increased to reflect the gravity of the offence and the need for general and specific deterrence.