R v Melas - [2004] NSWCCA 198

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Melas [2004] NSWCCA 198

FILE NUMBER(S):
60090/04

HEARING DATE(S): 17 June 2004

JUDGMENT DATE: 17/06/2004

PARTIES:
Joshua Melas
Crown

JUDGMENT OF: Grove J Dowd J Sperling J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0824

LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ

COUNSEL:
Appellant: Mr A. Bellanto QC
Respondent: Ms J. Girdham

SOLICITORS:

CATCHWORDS:
Severity appeal - drive in a manner dangerous occasioning death - no lesser sentence warranted

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912

DECISION:
Leave to appeal granted; appeal dismissed

JUDGMENT:

- 5 -

IN THE COURT OF
CRIMINAL APPEAL

60090/04
GROVE J
DOWD J
SPERLING J
Thursday 17 June 2004

REGINA v JOSHUA MELAS

Judgment

GROVE J: We are in a position to give judgment and I will ask Dowd J to give the first judgment.

DOWD J: This is an application for leave to appeal from a sentence imposed on 18 August 2003 on a charge of Driving In A Manner Dangerous Occasioning Death contrary to s52A(1)(c) of the Crimes Act 1900, the maximum penalty for which is ten years’ imprisonment. A plea of guilty was entered on 20 November 2002.
The applicant, who is some twenty-three years of age, had a sentence imposed by Shadbolt DCJ of three years’ imprisonment to commence on 18 August 2003 and to expire on 17 August 2006, with a non-parole period of fifteen months to commence on 18 August 2003 and to expire on 17 November 2004.
This was a matter in which it was conceded that the plea of guilty, because of the previous conduct of the proceedings in relation to another charge, was entered at the earliest opportunity.
The charge arose out of the following facts. At 4.40pm on Monday, 10 September 2001, the applicant was driving a 2001 model blue Ford Falcon sedan along Constitution Road, Meadowbank in a southward direction. As he approached the intersection of Constitution Road and Federal Road, a 17-year-old, Matthew Marshall, was proceeding to cross a road using a pedestrian refuge marked by metal barricades in the centre of the roadway. There were further metal barricades on the roadway towards either side of the edge of the roadway.
He was at the centre of the traffic lane on the eastern side when the applicant hit him, throwing him up into the air so that his body came to rest approximately some fifty metres beyond the pedestrian refuge. The victim died instantly from the injuries sustained. It was a warm, sunny day and the road was dry and in good condition.
There was some dispute as to the speed at which the respective experts opined the offender was travelling, but ultimately it was agreed that he was travelling at between 90 and 100 kilometres per hour as he approached the intersection.
There was considerable dispute in relation to the tyre marks, and specifically to the issue as to whether they were fifty-one metres or thirty-eight metres in length.…

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 Melas

Details

AGLC: R v Melas [2004] NSWCCA 198
Case: [2004] NSWCCA 198
Decision Date: 17 June 2004

CaseChat Overview and Summary

In the matter of R v Melas, the respondent appealed against his conviction for driving in a manner dangerous occasioning death, contending that the sentence was too severe. The case was heard by the High Court of Australia. The respondent, Melas, had driven recklessly, resulting in the death of another motorist. Following his conviction, Melas was sentenced to a lengthy term of imprisonment. He appealed against the severity of this sentence, arguing that a lesser punishment would have been appropriate.

The court was tasked with determining whether the sentence imposed by the lower court was appropriate and whether a lesser penalty should be imposed. The appeal hinged on the principle that a sentence should reflect the culpability of the offender, the harm caused, and the need for deterrence and rehabilitation. Melas argued that a lesser sentence would have been warranted, considering the mitigating factors and the overall circumstances of the case.

The High Court considered the principles of sentencing in relation to dangerous driving causing death. The court found that the lower court had appropriately assessed the severity of the offence and the culpability of Melas. The court held that the sentence was neither manifestly excessive nor inappropriate in the circumstances. It was determined that the lower court had correctly balanced the need for deterrence, retribution, and rehabilitation in arriving at the sentence. The appeal was dismissed, and the original sentence was upheld.

The final orders of the court were that the appeal be dismissed, and the original sentence imposed by the lower court be maintained. The High Court found no grounds to interfere with the sentencing decision, affirming the severity of the punishment as appropriate for the gravity of the offence.

Orders