R v Mark Reay - [2018] NSWDC 386

District Court

New South Wales

Medium Neutral Citation: R v Mark REAY [2018] NSWDC 386
Hearing dates: 15, 20 June 2018
Date of orders: 20 June 2018
Decision date: 20 June 2018
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
I sentence you to imprisonment. I set a non-parole period of one year and three months, commencing on 20 June 2018 and expiring on 19 September 2019. I impose a further period of imprisonment of one year to commence upon the expiration of the non-parole period and expiring on 19 September 2020. The total sentence is therefore two years and three months, comprising the non-parole period and the balance of the sentence.

Catchwords: CRIME – SENTENCE – Aggravated dangerous driving causing grievous bodily harm – Blood alcohol level of 0.216 – Prior PCA convictions – Victim close personal friend, passenger in offender’s case – Victim made good recovery with only intermittent low level sequelae – Offender 36 years old at time of offence – No prior imprisonment – After 25% discount for utilitarian value of plea of guilty, head sentence 2yrs 3months, NPP 1yr 3 months
Legislation Cited: Drug Misuse and Trafficking Act 1985
Crimes Act 1900
Cases Cited: R v Kyle [2014] NSWCCA 300
R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 452
Category: Sentence
Parties: Regina (Crown)
Mark Reay (Offender)
Representation:
Counsel:
S Stuart (Crown)
P Murphy (Offender)
Solicitors:
ODPP (Crown)
Peter Murphy Criminal Law (Offender)

File Number(s): 2017/82305
Publication restriction: Nil

Judgment

HIS HONOUR: Mark Reay stands for sentence as a consequence to having pleaded guilty to a charge that, on 16 March 2017 at Mount Ku-ring-gai he did drive a vehicle, a blue coloured Mitsubishi Lancer registered number AR-38EK, when it was involved in an impact occasioning grievous bodily harm to Luke Towner and at the time of the impact the said Mark Reay was driving the vehicle under the influence of intoxicating liquor, in circumstances of aggravation, to wit, the said Mark Reay had in his blood the prescribed concentration of alcohol, a reading of 0.216. That is an offence contrary to s 52A (4) of the Crimes Act 1900 and carries a maximum penalty of 11 years imprisonment.
Section 52A creates a number of crimes. The first is dangerous driving occasioning death and then dangerous driving occasioning death in circumstances of aggravation. Subs (3) establishes the crime of dangerous driving occasioning grievous bodily harm, and, subs (4) establishes the crime of dangerous driving occasioning grievous bodily harm in circumstances of aggravation. Subs (3) provides this:

“A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact driving the vehicle:
(a) under the influence of intoxicating liquor or of a drug, or
(b) at a speed dangerous to another person or persons, or
(c) in a manner dangerous to another person or persons.”

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 Mark Reay

Details

AGLC: R v Mark Reay [2018] NSWDC 386
Case: [2018] NSWDC 386
Decision Date: 20 June 2018

CaseChat Overview and Summary

In the case of R v Mark Reay, the defendant was sentenced for aggravated dangerous driving causing grievous bodily harm. The court heard that the defendant had a blood alcohol level of 0.216 and had prior convictions for personal care assistance. The victim, who was a close personal friend and passenger in the defendant's car at the time of the offence, made a good recovery but experienced intermittent low-level sequelae. The defendant, aged 36 at the time of the offence, had no prior imprisonment. After applying a 25% discount for the utilitarian value of the defendant's plea of guilty, the head sentence was determined to be two years and three months. The non-parole period was set at one year and three months.

The primary legal issue before the court was to determine the appropriate sentence for the defendant, considering the factors such as the nature of the offence, the defendant's prior convictions, and the circumstances surrounding the incident. The court had to balance the need for punishment and deterrence with the defendant's personal circumstances and the impact of the offence on the victim. The court also had to consider the discount for the defendant's early guilty plea.

The court held that the defendant's actions were reckless and had caused significant harm to the victim. The court acknowledged the defendant's early guilty plea and his otherwise good character, but also considered the severity of the offence and the need for general deterrence. The court determined that the appropriate sentence was two years and three months imprisonment, with a non-parole period of one year and three months. The court imposed a further period of imprisonment of one year to commence upon the expiration of the non-parole period.

In conclusion, the court sentenced the defendant to imprisonment for two years and three months, with a non-parole period of one year and three months. The court considered the defendant's personal circumstances and the impact of the offence on the victim, but ultimately determined that a custodial sentence was necessary to achieve the aims of punishment, deterrence, and rehabilitation.

Orders

Orders of the court

I sentence you to imprisonment. I set a non-parole period of one year and three months, commencing on 20 June 2018 and expiring on 19 September 2019. I impose a further period of imprisonment of one year to commence upon the expiration of the non-parole period and expiring on 19 September 2020. The total sentence is therefore two years and three months, comprising the non-parole period and the balance of the sentence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Mark REAY [2018] NSWDC 386
Hearing dates:	15, 20 June 2018
Date of orders:	20 June 2018
Decision date:	20 June 2018
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	I sentence you to imprisonment. I set a non-parole period of one year and three months, commencing on 20 June 2018 and expiring on 19 September 2019. I impose a further period of imprisonment of one year to commence upon the expiration of the non-parole period and expiring on 19 September 2020. The total sentence is therefore two years and three months, comprising the non-parole period and the balance of the sentence.
Catchwords:	CRIME – SENTENCE – Aggravated dangerous driving causing grievous bodily harm – Blood alcohol level of 0.216 – Prior PCA convictions – Victim close personal friend, passenger in offender’s case – Victim made good recovery with only intermittent low level sequelae – Offender 36 years old at time of offence – No prior imprisonment – After 25% discount for utilitarian value of plea of guilty, head sentence 2yrs 3months, NPP 1yr 3 months
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Crimes Act 1900
Cases Cited:	R v Kyle [2014] NSWCCA 300 R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 452
Category:	Sentence
Parties:	Regina (Crown) Mark Reay (Offender)
Representation:	Counsel: S Stuart (Crown) P Murphy (Offender) Solicitors: ODPP (Crown) Peter Murphy Criminal Law (Offender)
File Number(s):	2017/82305
Publication restriction:	Nil