R v Nilsson - [2005] NSWCCA 34

CITATION:
R v NILSSON [2005] NSWCCA 34

HEARING DATE(S): 30 June 2004

JUDGMENT DATE:

18 February 2005

JUDGMENT OF:
Ipp JA at 1; Hulme J at 2; Hislop J at 29

DECISION:
See paragraph 28

PARTIES:
Regina
Lief Lars NILSSON

FILE NUMBER(S):
CCA 60487/03

COUNSEL:
Crown: E Wilkins
Applicant: G Butler

SOLICITORS:
Crown: S Kavanagh
Applicant: G Angelinas

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/0059

LOWER COURT JUDICIAL OFFICER:
Blackmore DCJ

- 9 -

60487/03

IPP JA
HULME J
HISLOP J

Friday 18 February 2005

R v Leif Lars NILSSON

Judgment

1 IPP JA: Save that I make no comment as to the utility of the order disqualifying the Applicant from driving, I agree with Hulme J.

2 HULME J: The abovenamed Applicant for leave to appeal was sentenced by Judge Blackmore in respect of two offences of driving in a manner dangerous to the public causing grievous bodily harm – in one case to a passenger in his vehicle, one Jennifer Thompson, and in the other to a driver of another vehicle, one Donna Maxfield. The offences arose under s52A(3) of the Crimes Act and each rendered the offender liable to imprisonment for 7 years.

3 In respect of each offence Judge Blackmore sentenced the Applicant to imprisonment for 5 years from 19 May 2003 such term to include a non-parole period of 3 years and 9 months.

4 During the course of the appeal there was no suggestion that his Honour’s description of the objective circumstances was in any respect inaccurate and it is accordingly convenient to quote from it.

The offender’s vehicle continued to travel a short distance and collided with a third vehicle…

The offender’s vehicle came to rest in lane number 3 for east bound traffic facing in a westerly direction. The front passenger in the offender’s vehicle, Jennifer Thompson, was conveyed to the Royal North Shore Hospital suffering from a fractured collar bone, which required a metal rod to be inserted, and a fracture to her lower ribs. The offender also suffered some injuries, a broken…

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 Nilsson

Details

AGLC: R v Nilsson [2005] NSWCCA 34
Case: [2005] NSWCCA 34
Decision Date: 18 February 2005

CaseChat Overview and Summary

In this case, Regina, represented by the Crown, prosecuted Leif Lars Nilsson for two counts of dangerous driving causing grievous bodily harm, committed under section 52A(3) of the Crimes Act. The offenses occurred on 10 July 2001, when Nilsson drove under the influence of drugs, failed to negotiate a bend on Victoria Road at West Ryde, and collided with another vehicle, causing severe injuries to the other driver, Donna Maxfield, and a passenger in his vehicle, Jennifer Thompson. Nilsson was found to be under the influence of cannabis, fluenitrazepam, diazepam, methadone, and morphine at the time of the incident. The District Court sentenced Nilsson to imprisonment for 5 years, with a non-parole period of 3 years and 9 months. Nilsson appealed against his sentence.

The legal issues before the court were whether the District Court's assessment of the seriousness of the offenses and the resultant sentence was correct, and whether the disqualification from driving for 10 years was appropriate. The court found that the District Court had erred in assessing the seriousness of the offenses, as it had taken into account the injuries of both victims for each offense, rather than considering each offense separately. The court also found that the sentence imposed was manifestly excessive, and that the non-parole period should have been 2 years and 9 months for each offense. The court agreed with the District Court's decision to disqualify Nilsson from driving for 10 years, as no argument was made on behalf of the applicant that the period was excessive.

The court granted leave to appeal, allowed the appeal, and quashed the sentences imposed by the District Court. The court sentenced Nilsson to imprisonment for 3 years and 9 months for each offense, including a non-parole period of 2 years and 9 months for each offense, with the sentences to commence on different dates. The court also recorded that Nilsson would be eligible for parole on 18 February 2007.

Orders