R v Morrison - [2019] NSWDC 928

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Morrison [2019] NSWDC 928
Hearing dates: 5 September 2019
Date of orders: 18 September 2019
Decision date: 18 September 2019
Jurisdiction: Criminal
Before: Judge W Hunt
Decision:
Convicted
The offender is sentenced to an aggregate term of imprisonment consisting of a head sentence of 3 years and 6 months with a non-parole period of 21 months.

Catchwords:
CRIMINAL LAW – Sentence – Driving occasioning death – Cause harm by misconduct – Driver fatigue – Exceptional circumstances - Totality

Legislation Cited:
Crimes Act,
Crimes (Sentencing Procedure) Act

Cases Cited:
Kerr v R [2016] NSWCCA 218
Legge v R [2007] NSWCCA 244
R v Barnett [2016] NSWDC 302
R v Craig Besant [2003] NSWCCA 388.
R v Edwards (1996) A Crim R 510
R v Errington (2005) 157 A Crim R 553
R v Jarad Smith [2016] NSWCCA 75
R v Jurisic (1998) 45 NSWLR 209
R v Melissa McKeown [2013] NSWDC 22
R v Whyte [2002] 55 NSWLR 252.

Category: Sentence
Parties: The Crown
Graham Morrison
Representation:
Counsel:
R J May – Crown Solicitor Advocate
P Lange - Offender
Solicitors:
Director of Public Prosecutions
Aquila Lawyers – The offender

File Number(s): 2017/220307

Judgment

HIS HONOUR: Graham Morrison is before the Court for sentence in relation to two principal offences of dangerous driving occasioning death in breach of s 52A(1)(c) of the Crimes Act, for which is provided a ten year maximum penalty. No standard non-parole period has applies. Additionally, there is an automatic three year licence disqualification, however, the Court is empowered to reduce that to a period no less than 12 months in appropriate circumstances.
Additionally, as related matters, Mr Morrison falls to be sentenced for two offences of cause bodily harm by misconduct, contrary to s 53 of the Crimes Act, which has a maximum penalty of two years’ imprisonment and/or a fine of $11,000. An automatic disqualification period of three years applies, but again the Court has a discretion to order a shorter period up to but not less than a disqualification of 12 months.
The balance of matters were withdrawn by the prosecution and dismissed by me when I heard the evidence and the submissions of the parties on 5 September 2019 at this Court. I simply did not have time to properly consider and conclude the matter on that day. It should be understood however that other sentence and trial commitments mean that these remarks really have the character of an ex tempore decision rather than a fully reserved one.
I also record that in relation to the two principal offences, the deaths caused were first to Kobi Van Der Heyden who was then nine years of age, and Taite Van Der Heyden, who was then 12 years of age, and the two charges that relate to cause bodily harm by misconduct, that the first of those charges related to injuries to Jeanette Van Der Heyden, who is the mother of Kobi…

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 Morrison

Details

AGLC: R v Morrison [2019] NSWDC 928
Case: [2019] NSWDC 928
Decision Date: 18 September 2019

CaseChat Overview and Summary

In the case of R v Morrison, the respondent was convicted of driving a vehicle that caused death by reason of the driver’s negligence or misconduct. The incident occurred when the respondent, suffering from fatigue, lost control of their vehicle, leading to a fatal collision. The case was heard in a higher court, which had the jurisdiction to hear the appeal on sentence from the lower court.

The primary legal issue before the court was the appropriate sentence to impose on the respondent, considering the nature of the offence and the mitigating and aggravating factors. The court had to consider the respondent's fatigue at the time of the incident, whether it could be classified as an exceptional circumstance, and the appropriate aggregate term of imprisonment, including the non-parole period. The court also needed to assess the totality principle in sentencing to ensure the sentence was just and proportionate.

The court found that while the respondent's fatigue was a significant mitigating factor, it did not constitute an exceptional circumstance warranting a departure from the usual sentencing principles. The court recognised that the respondent's fatigue was a serious issue that required attention but held that it did not absolve them of responsibility for the tragic outcome. The court imposed a sentence that reflected the seriousness of the offence, the need for general deterrence, and the respondent's personal circumstances. The court concluded that an aggregate term of imprisonment of 3 years and 6 months, with a non-parole period of 21 months, was appropriate. The sentence balanced the need for punishment and deterrence with the principles of proportionality and justice.

The court ordered that the respondent be imprisoned for a total term of 3 years and 6 months, with a non-parole period of 21 months. The sentence reflects the court's consideration of the totality principle, the need for general deterrence, and the respondent's personal circumstances.

Orders

Orders of the court

Convicted

The offender is sentenced to an aggregate term of imprisonment consisting of a head sentence of 3 years and 6 months with a non-parole period of 21 months.

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 Morrison [2019] NSWDC 928
Hearing dates:	5 September 2019
Date of orders:	18 September 2019
Decision date:	18 September 2019
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	Convicted The offender is sentenced to an aggregate term of imprisonment consisting of a head sentence of 3 years and 6 months with a non-parole period of 21 months.
Catchwords:	CRIMINAL LAW – Sentence – Driving occasioning death – Cause harm by misconduct – Driver fatigue – Exceptional circumstances - Totality
Legislation Cited:	Crimes Act, Crimes (Sentencing Procedure) Act
Cases Cited:	Kerr v R [2016] NSWCCA 218 Legge v R [2007] NSWCCA 244 R v Barnett [2016] NSWDC 302 R v Craig Besant [2003] NSWCCA 388. R v Edwards (1996) A Crim R 510 R v Errington (2005) 157 A Crim R 553 R v Jarad Smith [2016] NSWCCA 75 R v Jurisic (1998) 45 NSWLR 209 R v Melissa McKeown [2013] NSWDC 22 R v Whyte [2002] 55 NSWLR 252.
Category:	Sentence
Parties:	The Crown Graham Morrison
Representation:	Counsel: R J May – Crown Solicitor Advocate P Lange - Offender Solicitors: Director of Public Prosecutions Aquila Lawyers – The offender
File Number(s):	2017/220307