R v Howcher - [2004] NSWCCA 179

Reported Decision:
146 A Crim R 371

New South Wales

Court of Criminal Appeal

CITATION: R v HOWCHER [2004] NSWCCA 179

HEARING DATE(S): 12 December 2003

JUDGMENT DATE:
21 June 2004

JUDGMENT OF: Grove J at 1; Hulme J at 2; Smart AJ at 54

DECISION: Leave to appeal granted; Appeal dismissed

PARTIES :
Regina
Mohamad HOWCHER

FILE NUMBER(S): CCA 60278/03

COUNSEL: Crown: D Frearson
Appellant: P Byrne SC

SOLICITORS: Crown: CK Smith
Appellant: W Ball

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/0279

LOWER COURT
JUDICIAL OFFICER : Sides DCJ

- 20 -

60278/03

GROVE J
HULME J
SMART AJ

R v Mohamad HOWCHER

Judgment

1 GROVE J: I agree with Hulme J.

2 HULME J: On 12 September 2002 the abovenamed Applicant for leave to appeal pleaded guilty to a charge that on 20 May 1996 he drove a motor vehicle in a manner dangerous to another person or persons when it was involved in an impact occasioning death and at the time of the impact the Applicant was driving the vehicle on a road in circumstances of aggravation, namely a speed that exceeded by more than 45 kms per hour the applicable speed limit.

3 On 28 November 2002 Judge Sides sentenced the Applicant to imprisonment for 3 ½ years commencing on 21 November 2002 such term to include a non-parole period of 2 years. His Honour disqualified the Applicant from holding or obtaining a driving licence for 4 years from 28 November 2002.

4 The circumstances of the offence as found by his Honour – and to these there is no challenge – included the following. During the late morning of that day the Applicant was demonstrating the capabilities of a car he had purchased some 3 days before to some friends. After one friend had received such a demonstration, he got out of the car and the deceased became the passenger. The weather was fine. The road surface was dry and in a good state of repair and the visibility was excellent. The vehicle was an RX3 Mazda Rotary Sedan which, as the Applicant knew at the time of his purchase of it had been modified for the purposes of improving its performance. The modifications increased its maximum speed capability and its acceleration capacity. The speed limit in the area where the incident occurred was 60km per hour.

5 His Honour was satisfied to the requisite standard that the vehicle had began to yaw as a result of the Applicant driving the vehicle at a very high speed, somewhere within the range of 115-126kms per hour. His Honour was also satisfied that the vehicle had reached this speed as a result of the Applicant deliberately accelerating at a very rapid rate over a short distance.

6 His Honour was not persuaded that the Applicant lost control of the vehicle when he manoeuvred to overtake a learner driver or that any of three defects – contaminated rear brake linings, cracks and…

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 Howcher

Details

AGLC: R v Howcher [2004] NSWCCA 179
Case: [2004] NSWCCA 179
Decision Date: 21 June 2004

CaseChat Overview and Summary

Mohamad Howcher was convicted of driving a vehicle in a dangerous manner causing death, where the vehicle was driven at a speed more than 45 kilometres per hour over the speed limit. He was sentenced to 3.5 years' imprisonment, with a non-parole period of 2 years, and disqualified from holding a driver's licence for 4 years. Howcher appealed against the sentence, arguing it was manifestly excessive and that the sentencing judge had erred in his application of sentencing principles. The New South Wales Court of Criminal Appeal considered the grounds of appeal, ultimately dismissing the appeal and affirming the sentence. The court found the sentence was within the appropriate range for such offences and that the sentencing judge had appropriately considered relevant factors, including the nature of the offence, Howcher's prior record, and his rehabilitation. The appeal was dismissed, and the original sentence upheld.

Orders