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R v Manok

R v Manok

Case [2017] NSWCCA 232 27 September 2017

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Regina v Manok [2017] NSWCCA 232
Hearing dates: 6 September 2017
Decision date: 27 September 2017
Before: Payne JA at [1]
McCallum J at [20]
Wilson J at [65]
Decision:
Appeal dismissed

Catchwords: CRIME – sentence – Crown appeal – dangerous driving causing death and dangerous driving causing grievous bodily harm – fatigue – whether sentencing judge erred in assessment of moral culpability – whether sentence manifestly inadequate
Legislation Cited: Crimes Act 1900 (NSW), ss 52A(1)(c), 52A(3)(c)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 7, 53A
Criminal Appeal Act 1912 (NSW), s 5D
Cases Cited: Carroll v The Queen [2009] HCA 13
CMB v The Attorney-General for New South Wales [2015] HCA 9
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Mulato v R [2006] NSWCCA 282
R v Begbie [2001] NSWCCA 206; (2001) 124 A Crim R 300
R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489
R v Janceski [2005] NSWCCA 288
R v Khatter [2000] NSWCCA 32
R v Merillo [2017] NSWCCA 173
R v Paul Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep)
R v Whelan [2012] NSWCCA 147
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
Silvestri v R [2016] NSWCCA 245
Taylor v R [2006] NSWCCA 7
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Crown (applicant))
Muhammad Al-Hafiz Manok (respondent)
Representation:
Counsel:
B K Baker (Crown applicant)
G Smith SC (respondent)
Solicitors:
Solicitor for Public Prosecutions (Crown applicant)
Solve Legal Pty Ltd (respondent)

File Number(s): 2016/149120
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court, Gosford

Jurisdiction:

Crime

Date of Decision:

29 March 2017

Before:

Bozic DCJ

File Number(s):

2016/149120

Judgment

PAYNE JA: I have had the opportunity to consider the reasons of McCallum J in draft. I agree with her Honour that the Crown appeal against sentence should be dismissed, although for somewhat different reasons.
Although I am persuaded by the Crown that this is a case where the sentencing judge erred in his assessment of the facts, and thus in characterising the objective seriousness of the offence, I would exercise the residual discretion to decline to interfere with the sentence.
Objective seriousness of the offending
Whilst the moral culpability of the respondent was low on the hypothesis that the length of the journey during which others in the car were exposed to risk was only the 12km from the turn off onto Peats Ridge Road until the point of the accident, I am unable to accept this finding as one open to the sentencing judge on the evidence.
Whilst it may be accepted that, subjectively, the respondent only “felt tired” from the turn off onto Peats Ridge Road, the objective evidence about the length of the journey during which others in the car were exposed to risk was to the contrary.

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 Manok

Details

AGLC: R v Manok [2017] NSWCCA 232
Case: [2017] NSWCCA 232
Decision Date: 27 September 2017

CaseChat Overview and Summary

The appeal concerned the sentencing of a driver who was responsible for causing the death of one person and serious injury to another through dangerous driving. The sentencing judge imposed a sentence that the Crown deemed manifestly inadequate. The matter was brought before the court to determine whether the sentencing judge had erred in assessing the moral culpability of the offender and whether the sentence was manifestly inadequate.

The legal issues before the court were whether the sentencing judge had erred in assessing the moral culpability of the offender and whether the sentence imposed was manifestly inadequate. The court considered the relevant statutory provisions and case law to determine whether the sentence was appropriate in the circumstances. The Crown argued that the sentence did not adequately reflect the gravity of the offender's actions, which had caused the death of one person and serious injury to another.

The court considered the principles of sentencing in cases of dangerous driving causing death and grievous bodily harm. The court noted that the sentencing judge had taken into account the offender's lack of criminal history, his remorse, and the fact that he had been fatigued at the time of the incident. However, the court held that the sentencing judge had not adequately considered the gravity of the offender's actions and the need to deter others from engaging in similar conduct. The court held that the sentence was manifestly inadequate and ordered that a new sentence be imposed.

The court ordered that a new sentencing hearing be held to determine an appropriate sentence for the offender. The court noted that the new sentence should adequately reflect the gravity of the offender's actions and the need to deter others from engaging in similar conduct. The court also noted that the new sentence should take into account the offender's lack of criminal history, his remorse, and the fact that he had been fatigued at the time of the incident.

Orders