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R v Koosmen

R v Koosmen

Case [2004] NSWCCA 359 30 September 2004

Driving under the influence

Excessive speed

Violent and erratic driving

Sentence

Non-parole period

Criminal Law

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CITATION: Regina v Koosmen [2004] NSWCCA 359

HEARING DATE(S): 30 September 2004

JUDGMENT DATE:
30 September 2004

JUDGMENT OF: Wood CJ at CL at 1, 56, 57; Hislop J at 56; Smart AJ at 2

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Driving under the influence of intoxicating liquor - Combination of excessive drinking, excessive speed, violent and erratic driving and seat belt not used - Self punishment - Sentence of 5 years with a non-parole period of 2-1/2 years not excessive.

LEGISLATION CITED: Nil

CASES CITED: Regina v Berg [2004] NSWCCA 300
Regina v Dhanhoa [2002] NSWCCA 257
Regina v Jurisic (1998) 45 NSWLR 209 at [231]
R v Whyte [2002] NSWCCA 343 at [216]

PARTIES :
Regina v Scott Robert Koosmen

FILE NUMBER(S): CCA 2004/1871 CCAP

COUNSEL: (A) C Davenport
(C) D C Frearson

SOLICITORS: (A) S O'Connor
(C) S Kavanagh

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0002

LOWER COURT
JUDICIAL OFFICER : Kinchington DCJ

2004/1871 CCAP

WOOD CJ AT CL

HISLOP J

SMART AJ

Thursday, 30 September 2004

Scott Robert KoosmEn v Director of Public Prosecutions (NSW)

JUDGMENT

1. WOOD CJ at CL: I will ask Smart AJ to deliver the first judgment.

2. SMART AJ: Scott Robert Koosmen seeks leave to appeal against a sentence of imprisonment of 5 years with a non-parole period of 2 years and 6 months for the offence of driving under the influence of intoxicating liquor occasioning death, taking into account two lesser offences. The maximum penalty for this offence is 10 years imprisonment.

3. During the afternoon of 16 September 2002 the applicant and his very close friend Chad Roy Bailey were drinking at an hotel. Each consumed about five schooners of VB or Toohey's New Beer during the afternoon session. (There had been a shorter morning session). They were asked to leave as they were making unpleasant comments to and about the female licensee. They had had too much to drink.

4. About 4.30pm after leaving the hotel, the applicant drove a 1986 Holden VL Commodore sedan south along Gresford Road, Paterson. Mr Bailey, who was the front seat passenger was not wearing a seat belt.

5. As the vehicle approached the Dungog Road intersection it passed onto the incorrect side of the road and travelled at a speed well in excess of the 100 kph speed limit. The driver of a vehicle travelling in the opposite direction had to pull his vehicle sharply to the left and on to a grassed verge to avoid a head-on collision. The applicant's vehicle continued travelling south at a high speed.

6. Shortly afterwards, the applicant's vehicle again travelled onto the incorrect side of the road whilst negotiating a moderate left hand bend. His vehicle swerved all over the road, drove off the eastern side of the road and onto the grassed verge at a speed well in excess of the 100 kph speed limit. As it travelled along the grass verge the vehicle got faster. It continued…

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 Koosmen

Details

AGLC: R v Koosmen [2004] NSWCCA 359
Case: [2004] NSWCCA 359
Decision Date: 30 September 2004

CaseChat Overview and Summary

The court was presented with a case involving the accused, Koosmen, who was charged with driving under the influence of intoxicating liquor. The incident in question involved the accused driving at excessive speeds, exhibiting violent and erratic driving behaviour, and not wearing a seatbelt. The case was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the sentence imposed on the accused, which was five years with a non-parole period of two and a half years, was excessive given the circumstances of the case. The court had to consider the severity of the accused's actions and whether the punishment was proportionate to the offence.

In determining whether the sentence was excessive, the court considered several factors. These included the accused's excessive consumption of alcohol, the high speed at which he was driving, his violent and erratic driving behaviour, and the fact that he was not wearing a seatbelt. The court also took into account the accused's decision to self-punish by not seeking legal representation and his remorse for his actions. The court found that the sentence was not excessive, as it was necessary to deter the accused and others from engaging in similar behaviour in the future. The court also noted that the sentence reflected the seriousness of the offence and the need to protect the public from the accused's dangerous driving.

Based on the above reasoning, the court upheld the sentence imposed on the accused. The court found that the sentence was proportionate to the offence and that it served the purposes of deterrence, retribution, and rehabilitation. The court also noted that the sentence was consistent with other sentences imposed in similar cases. The accused's appeal against the sentence was therefore dismissed. The final orders of the court were that the sentence of five years with a non-parole period of two and a half years would stand.

Orders