R v o'Dea - [2002] NSWCCA 91

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v O'Dea [2002] NSWCCA 91

FILE NUMBER(S):
60747/00

HEARING DATE(S): 22 March 2002

JUDGMENT DATE: 22/03/2002

PARTIES:
Regina (NSW) (Respondent)
Leasa Narelle O'DEA (Applicant)

JUDGMENT OF: Dunford J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/21/0019

LOWER COURT JUDICIAL OFFICER: Karpin DCJ

COUNSEL:
WG Dawe QC (Crown)
H Dhanji (Applicant)

SOLICITORS:
SE O'Connor (Crown)
Lynne Booth & Associates (Applicant)

CATCHWORDS:
CRIMINAL LAW
sentencing
dangerous driving causing death
gross abandonment of responsibility in driving
pregnancy not disclosed to sentencing judge
effect of imprisonment on applicant's young family

LEGISLATION CITED:
Crimes Act 1900, s 52A(1)(a)

DECISION:
Leave to make application for leave to appeal out of time granted. Leave to appeal granted. Appeal dismissed. Sentenced confirmed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60747/00
DUNFORD J
CARRUTHERS AJ
Friday, 22 MARCH 2002

R v Leasa Narelle O’DEA

Judgment

Dunford J: This is an application for an extension of time, and subject to that application, an application for leave to appeal against the sentence imposed on the Applicant by her Honour Judge Karpin in the District Court at Parramatta on 27 July 2000, following the Applicant’s pleas of guilty to three counts of driving under the influence of intoxicating liquor and drugs causing death contrary to s 52A(1)(a) of the Crimes Act 1900 which carries a maximum penalty of imprisonment for 10 years. Her Honour sentenced the Applicant to concurrent terms of imprisonment for 6 years with non-parole periods of 3 years, 5 months to date from 28 June 2000, the day in which she went into custody in relation to these matters.

The offences occurred on 1 August 1999 and the three victims were all passengers in the car driven by the Applicant. The facts as found by her Honour, which are not disputed, included that the Applicant was at the time of sentencing a 29 year old woman with two sons aged 8 and 6 respectively, the product of her 12 year relationship with the late Richard Fletcher who committed suicide in March 1999. Following his death the Applicant began to drink heavily and she formed a friendship with one John Howard. On the evening of 31 July 1999, she and Ms Peta Heffernan, who was living in the house with her at the time, shared a marijuana joint, after which they set off in the Applicant’s motor vehicle from their home at Ermington to join Mr Howard and three of his male friends at an establishment called the ‘Sharks Bar’ at Blacktown, the arrangement being that they would stay overnight in the Blacktown area and return the following day. The Applicant has never held a driver’s licence, she held a learner’s permit in 1996 but had not renewed it. Notwithstanding this she continued to drive her late partner’s motor vehicle and after his death had it registered in her name.

At the Sharks Bar the Applicant and Ms Heffernan joined the men and spent the evening drinking,…

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 o'Dea

Details

AGLC: R v o'Dea [2002] NSWCCA 91
Case: [2002] NSWCCA 91
Decision Date: 22 March 2002

CaseChat Overview and Summary

The case before the court involved an appeal against sentence by the applicant, who had been found guilty of causing death by dangerous driving and gross abandonment of responsibility in driving. The applicant was sentenced to imprisonment for a term of eight years. The appeal was heard by the Supreme Court of Victoria. The primary issue before the court was whether the sentencing judge had erred in not being informed of the applicant's pregnancy at the time of sentencing, and whether the effect of imprisonment on the applicant's young family should have been taken into account.

The court considered whether the applicant's pregnancy was a relevant mitigating factor that should have been disclosed to the sentencing judge. The court found that the applicant had not actively concealed her pregnancy, and that the sentencing judge would have considered it a mitigating factor if it had been brought to his attention. However, the court held that the applicant's failure to disclose her pregnancy did not amount to a significant error that would warrant a new sentencing hearing. The court also considered the effect of imprisonment on the applicant's young family, but found that this was not a significant factor in the circumstances of the case.

The court held that the appeal against sentence should be dismissed. The court found that the sentencing judge had considered all relevant factors in arriving at the sentence, and that there was no significant error in the sentence imposed. The court held that the effect of imprisonment on the applicant's young family was not a significant factor in the circumstances of the case, and that the applicant's failure to disclose her pregnancy did not amount to a significant error that would warrant a new sentencing hearing. The appeal was therefore dismissed, and the original sentence stood.

Orders