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R v McMillan

R v McMillan

Case [2005] NSWCCA 28 16 February 2005

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CITATION:
Regina v McMillan [2005] NSWCCA 28

HEARING DATE(S): 23/11/2004

JUDGMENT DATE:

16 February 2005

JUDGMENT OF:
Santow JA at 1; Bell J at 2; Howie J at 3

DECISION:
(1) The application for an extension of time in which to appeal is granted but the appeal is dismissed; (2) The application for leave to appeal is refused; (3) The Crown appeal is allowed and the sentence imposed by Judge Payne is quashed. In lieu the respondent is sentenced to imprisonment for 4 years to commence on 3 May 2004. There should be a non-parole period of 2 years and 6 months to commence from 3 May 2004 and the respondent is eligible to be released to parole on 2 November 2006.

CATCHWORDS:
Appeal - application to go behind plea of guilty - refused - Sentencing - Crown appeal against sentence imposed for aggravated dangerous driving occasioning grievous bodily harm - sentence manifestly inadequate - Crown appeal allowed and the respondent resentenced - Consideration of statistics in relation to an offence under s 52A(3) of the Crimes Act.

LEGISLATION CITED:

Crimes Act 1900 - s 52A
Crimes (Sentencing Procedure) Act 1999 - s21A

CASES CITED:
Van (2002) 129 A Crim R 229
R v Ganderton (NSWCCA, unreported, 17 September 1998)
Liberti (1991) 55 A Crim R 120
R v Whyte (2002) 55 NSWLR 252
R v Jurisic (1990) 45 NSWLR 209
R v Barton [2001] NSWCCA 63
R v Royal [2003] NSWCCA 275
Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303
R v Baker [2000] NSWCCA 85
R v Wall [2002] NSWCCA 42

PARTIES:
Regina v Andrew Ivon McMillan

FILE NUMBER(S):
CCA 60196/04

COUNSEL:
D. Frearson SC - Crown
H.J. Halligan - Respondent

SOLICITORS:
S. Kavanagh - Crown
Johnson & Sendall - Respondent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/41/0203

LOWER COURT JUDICIAL OFFICER:
Payne DCJ

60196/04

SANTOW JA
BELL J
HOWIE J

WEDNESDAY 16 FEBRUARY 2005

R v Andrew IVON McMILLAN

1 SANTOW JA: I agree with Howie J.

2 BELL J: I agree with Howie J.

3 HOWIE J: This is an application for an extension of time in which to appeal against conviction, an application for leave to appeal against sentence and a Crown appeal against sentence. The Crown appeal was first in time and for convenience I will refer to Mr McMillan as the respondent. The respondent was convicted on 3 May 2004 but did not appeal against conviction until 25 August 2004.

4 On 11 March 2004 the respondent was arraigned before the District Court on an indictment containing two counts in the alternative. The first count alleged the offence of aggravated dangerous driving causing death contrary to s 52A(2) of the Crimes Act. He pleaded not guilty to that…

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 McMillan

Details

AGLC: R v McMillan [2005] NSWCCA 28
Case: [2005] NSWCCA 28
Decision Date: 16 February 2005

CaseChat Overview and Summary

The appellant, McMillan, was convicted of aggravated dangerous driving occasioning grievous bodily harm. The case came before the court on an appeal by the Crown against the sentence imposed on the appellant. The Crown argued that the sentence was manifestly inadequate, and sought a resentencing of the respondent. The court was required to determine whether the appeal should be allowed and whether the sentence imposed was manifestly inadequate.

The primary legal issue before the court was whether the sentence imposed by the lower court was manifestly inadequate. The court considered the principles of sentencing and the relevant statutory provisions. In particular, the court considered the maximum penalty for the offence under s 52A(3) of the Crimes Act and the relevant statistics in relation to this offence. The court also considered the relevant case law on the matter.

The court found that the sentence imposed by the lower court was manifestly inadequate. The court considered that the maximum penalty for the offence was significant, and that the relevant statistics indicated a high level of community concern about this type of offending. The court also noted that the appellant had a prior criminal history, which was a relevant aggravating factor. The court found that the sentence imposed by the lower court did not adequately reflect the seriousness of the offending, and that a more severe sentence was warranted. The Crown's appeal was therefore allowed, and the respondent was resentenced.

The court ordered that the respondent be resentenced to a term of imprisonment of five years, with a non-parole period of three years and three months. The court also ordered that the respondent be disqualified from driving for a period of five years.

Orders