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R v Kaliti

R v Kaliti

Case [2001] NSWCCA 268 29 June 2001

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CITATION: R v Kaliti [2001] NSWCCA 268 revised - 25/07/2001

FILE NUMBER(S): CCA 60704/2000

HEARING DATE(S): 29 June 2001

JUDGMENT DATE:
29 June 2001

PARTIES :

Regina
Steven Kaliti

JUDGMENT OF: Wood CJ at CL at 1; Howie J at 21

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/21/0205

LOWER COURT JUDICIAL
OFFICER : Kirkham DCJ

COUNSEL : Crown: M. C. Grogan
Applicant: D.G. Dalton

SOLICITORS: S E OConnor
D J Humphreys

CATCHWORDS: CRIMINAL LAW - appeals - appeal against sentence - dangerous driving causing grievous bodily harm in circumstances of aggravation - whether special circumstances justifying departure from the ratio between non-parole period and term of sentence - whether age, lack of antecedents and fact that sentence involves first occasion of custody are of themselves special circumstances - whether special help needed to overcome drug or alcohol problem

LEGISLATION CITED: Crimes Act 1900 s 52A (4)
Crimes (Sentencing Procedure) Act 1999 s 44(2)

DECISION: Leave to appeal granted. Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL
60704/00

WOOD CJ at CL

HOWIE J

FRIDAY 29 JUNE 2001

REGINA v STEVEN KALITI

JUDGMENT

1 WOOD CJ at CL: Following a plea of guilty to one count of dangerous driving causing grievous bodily harm in circumstances of aggravation, contrary to s 52A(4) of the Crimes Act, the applicant was sentenced by Kirkham DCJ to five years imprisonment. A non-parole period was fixed of three years and nine months. He now seeks leave to appeal against the sentence.

2 The circumstances of aggravation were that, when the vehicle driven by the applicant struck the victim, who was at the time standing alongside a box trailer, he was under the influence of alcohol. The victim suffered catastrophic injuries in the accident including traumatic amputation of one leg, and subsequent surgery amputation of his remaining leg, as well as brain damage. Breath analysis of the applicant following the accident, returned a reading of .2 grams of alcohol per 100 millilitres of blood, a reading four times the prescribed limit.

3 No issue is taken with the head sentence, nor could it be, having regard to the guideline judgment of this Court in R v Jurisic (1998) 45 NSWLR 209. It was then made clear that, among the circumstances relevantly to be taken into account in sentencing for this offence - and here expressly referred to by his Honour in his reasons for sentence - are the extent and nature of the injuries inflicted, and the degree of intoxication involved. The latter is relevant to the determination whether the offender has abandoned responsibility for his or her conduct.

4 The present case is one where there was a clear and significant abandonment of responsibility, as was made clear, not only by the quantity of alcohol involved but also by the frank admission by the applicant that he knew he was over the limit but, nevertheless, elected to drive the motor vehicle.

5 Rather, this application is directed to the question of whether…

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 Kaliti

Details

AGLC: R v Kaliti [2001] NSWCCA 268
Case: [2001] NSWCCA 268
Decision Date: 29 June 2001

CaseChat Overview and Summary

The appellant, Kaliti, was convicted of dangerous driving causing grievous bodily harm in circumstances of aggravation. Kaliti appealed against his sentence, arguing that the trial judge did not adequately consider special circumstances that would justify a departure from the ratio between the non-parole period and the term of his sentence. The appeal was heard by the Court of Criminal Appeal. The primary issue for the court was whether the appellant's age, lack of antecedents, and the fact that the sentence would involve his first occasion of custody were special circumstances that warranted a departure from the standard sentencing ratio. Additionally, the court had to consider whether the appellant's need for special help to overcome a drug or alcohol problem constituted a special circumstance.

The Court of Criminal Appeal determined that while the appellant's age, lack of antecedents, and the fact that this would be his first occasion of custody were relevant factors, they did not, in isolation, constitute special circumstances warranting a departure from the standard sentencing ratio. The court held that these factors, although mitigating, did not alter the overall seriousness of the offence. Regarding the appellant's need for special help to overcome a drug or alcohol problem, the court found that this factor did not constitute a special circumstance that would justify a departure from the sentencing ratio. The court emphasised that the need for rehabilitation did not equate to a special circumstance unless it was directly relevant to the circumstances of the offence or the appellant's culpability. Ultimately, the court concluded that the trial judge had correctly applied the principles of sentencing and that the appeal against sentence was without merit.

The Court of Criminal Appeal dismissed the appeal, affirming the sentence imposed by the trial judge. The appellant's sentence was deemed appropriate given the seriousness of the offence and the need to uphold public confidence in the criminal justice system.

Orders