R v King - [2001] NSWCCA 18

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v King [2001] NSWCCA 18

FILE NUMBER(S):
60655/00

HEARING DATE(S): 8 February 2001

JUDGMENT DATE: 08/02/2001

PARTIES:
Crown - Appellant
Toby William King - Respondent

JUDGMENT OF: Sheller JA Grove J Kirby J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/31/0238

LOWER COURT JUDICIAL OFFICER: Moore DCJ

COUNSEL:

M C Marien - Crown
P M Strickland - Respondent

SOLICITORS:

S E O'Connor - Crown
D J Humphreys - Respondent

CATCHWORDS:
Criminal law and procedure - Aggravated dangerous driving causing grievous bodily harm - Appeal by Crown against sentence - when sentence of periodic detention appropriate - whether collision was due to 'momentary inattention or misjudgment' - Crimes Act 1900, s52A(4); Criminal Appeal Act 1912, s5D

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912

DECISION:
1. Appeal allowed
2. Sentence below quashed
3. In lieu thereof, the respondent sentenced to a term of imprisonment of two years to commence on 8 September 2000 with a non-parole period of twelve months
4. The respondent be released on parole on 7 September 2001
5. The order for disqualification made by the sentencing Judge should be affirmed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60655/2000

SHELLER JA
GROVE J
KIRBY J

Thursday, 8 February 2001

REGINA v Toby William KING

JUDGMENT

SHELLER JA: On 17 August 2000 the respondent, Toby William King, pleaded guilty to a charge of aggravated dangerous driving occasioning grievous bodily harm; s52A(4) of the Crimes Act 1900. The circumstance of aggravation was the presence in the respondent’s blood of the prescribed concentration of alcohol. The maximum penalty for this offence is eleven years imprisonment.
The respondent came up for sentence before Moore DCJ on 31 August 2000. His Honour sentenced the respondent to two years imprisonment, to be served by way of periodic detention. On 3 October 2000 the Crown appealed against the sentence on the ground that it was manifestly inadequate. The sentencing Judge also imposed a period of disqualification of driving licence of three years from 2 November 1998.
Judge Moore stated the facts as follows. The respondent was driving his station sedan south across the Martin Bridge at Taree at about fifty kilometres per hour. The speed limit in the area was sixty kilometres per hour. The traffic was described as medium. Martin Bridge is a narrow bridge. His Honour said:
“That is an indication that there is a risk of danger in driving across the bridge if there is any inattention because of its narrowness and the proximity of oncoming traffic.”
As he drove across the bridge, the respondent dropped a lighted cigarette onto the floor. He bent down to pick it up. In consequence, his eyes went below the level of his dashboard. The passenger side wheels hit the kerb. That caused the car to veer to its right and collide head-on with a car coming in the opposite direction. The passenger in that oncoming car suffered severe injuries, which will have a…

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 King

Details

AGLC: R v King [2001] NSWCCA 18
Case: [2001] NSWCCA 18
Decision Date: 8 February 2001

CaseChat Overview and Summary

The case of R v King involved an appeal by the Crown against a sentence imposed on the respondent, King, who was found guilty of aggravated dangerous driving causing grievous bodily harm. The incident took place when King collided with a pedestrian while driving. The Crown argued that the sentence of periodic detention was inappropriate given the gravity of the offence. The legal issues before the court were whether the collision was due to a momentary inattention or misjudgment, and if so, whether a periodic detention sentence was suitable under the applicable provisions of the Crimes Act 1900 and the Criminal Appeal Act 1912.

The court examined the facts of the incident, including the circumstances leading up to the collision, and considered whether King's actions were due to momentary inattention or misjudgment. The court noted that the respondent had a history of driving offences, which suggested a pattern of reckless behaviour. However, the court also took into account mitigating factors, such as the respondent's remorse and the impact of the incident on the victim. In assessing the appropriate sentence, the court considered the objectives of the Crimes Act 1900 and the need for punishment, deterrence, and rehabilitation. The court ultimately determined that the collision was not due to momentary inattention or misjudgment but rather a result of the respondent's reckless driving. As such, the court found that periodic detention was not an appropriate sentence in this case.

The court concluded that the sentence imposed by the trial judge was manifestly inadequate, given the seriousness of the offence. The Crown's appeal was therefore upheld, and the case was remitted to the trial court for resentencing. The court emphasised the importance of considering the objectives of sentencing in cases of aggravated dangerous driving causing grievous bodily harm, and the need for sentences that reflect the gravity of such offences. The final orders of the court were that the appeal be allowed, the conviction be affirmed, and the case be remitted to the trial court for resentencing.

Orders