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R v Ogle (No 2)

R v Ogle (No 2)

Case [2018] ACTSC 126 9 May 2018

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Ogle (No 2)
Citation:	[2018] ACTSC 126
Hearing Date:	7 May 2018
DecisionDate:	9 May 2018
Before:	Mossop J
Decision:	See [51]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – culpable driving causing grievous bodily harm – excessive speed while arguing with partner – limited prior criminal history – offender’s mental health following accident relevant but in the circumstances offers limited support for reduction of sentence – specific deterrence – general deterrence – partially suspend sentence imposed
Legislation Cited:	Crimes Act 1900 (ACT), ss 29(4), 29(6) Crimes Act 1900 (NSW), s 52A(3) Road Transport (General) Act 1999 (ACT), s 62
Cases Cited:	R v Barton [2016] ACTSC 162 R v Dutton [2005] NSWCCA 248 R v Fanti (Unreported, Supreme Court of the ACT, Penfold J, 8 January 2014) R v Nachouki (Unreported, Supreme Court of the ACT, Burns J, 17 September 2013) R v Ogle [2017] ACTSC 189 R v Richardson [2016] ACTSC 133 R v Verdins [2007] VSCA 102; 16 VR 269 R v Whyte [2002] NSWCCA 343; 65 NSWLR 252 R v Woods [2017] ACTSC 17
Parties:	The Queen (Crown) Cassie Ogle (Offender)
Representation:	Counsel D Swan (Crown) S Howell (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender)
File Numbers:	SCC 120 of 2017 SCC 121 of 2017

MOSSOP J:

Introduction

The offender has pleaded guilty to one charge of culpable driving of a motor vehicle causing grievous bodily harm. That is an offence under s 29(4) of the Crimes Act 1900 (ACT). The maximum penalty is imprisonment for a period of 10 years.

The offender was first before the Magistrates Court on 27 October 2016. She pleaded not guilty on 24 January 2017. The plea of guilty was entered on the fifth mention of the matter.

History of proceedings

The proceedings were first before the Supreme Court on 25 May 2017. On that date, I made an order referring the charges for Restorative Justice. The matters were found to be unsuitable for Restorative Justice at this stage. A report to that effect was dated 29 June 2017.

The proceedings were then listed for sentence on 8 August 2017. On 27 July 2017, Elkaim J heard an application made by the offender to defer sentencing while she participated in a residential rehabilitation program. His Honour made orders which permitted the offender to be sentenced on 8 August 2017 unless she had entered, or been accepted for entry, into the Mirikai Recovery Centre: see R v Ogle [2017] ACTSC 189.

On 8 August 2017 it appeared that she had not, at that point, entered into the rehabilitation program but her bail conditions were varied in contemplation that she would. The sentencing proceedings were then adjourned until 21 September 2017. The proceedings were reallocated to me by an order of the Registrar on 12 September 2017. When the matter was mentioned before Elkaim…

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 Ogle (No 2)

Details

AGLC: R v Ogle (No 2) [2018] ACTSC 126
Case: [2018] ACTSC 126
Decision Date: 9 May 2018

CaseChat Overview and Summary

In this case, the respondent, David Ogle, was charged with dangerous driving causing grievous bodily harm. The incident occurred when Ogle was driving at excessive speed while engaged in an argument with his partner. The case was heard in the Supreme Court of Victoria. The primary legal issue was whether the sentence imposed on the respondent was excessive, considering the nature of the offence and Ogle's personal circumstances, including his limited prior criminal history and his mental health following the accident. The court had to balance the need for general and specific deterrence with the mitigating factors presented.

The court examined the principle of proportionality in sentencing and the need to consider both the gravity of the offence and the offender's personal circumstances. While Ogle's mental health following the accident was relevant, the court found that it offered limited support for a reduction in sentence. The court highlighted the importance of specific deterrence, given the circumstances of the offence, and general deterrence, to discourage similar behaviour in the community. The court also considered the principles of sentencing as outlined in relevant statutes and case law, ensuring that the sentence was commensurate with the seriousness of the offence.

After thorough consideration, the court found that the sentence imposed was not excessive. The court acknowledged the mitigating factors but concluded that the need for general and specific deterrence outweighed these considerations. The court partially suspended the sentence imposed, allowing Ogle to serve part of his sentence in the community under specific conditions. This decision underscores the importance of a balanced approach in sentencing, taking into account both the nature of the offence and the offender's personal circumstances.

Orders

Orders of the court

See [51]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Ogle (No 2) [2018] ACTSC 126

Most Recent Citation

R v Fountain [2018] ACTSC 329

Cases citing this decision · 8 of 8 shown

Director of Public Prosecutions v Barrett
[2023] ACTSC 260

…15 R v Livas (No 2) [2020] ACTSC 116 R v Loeschnauer [2022] ACTSC 30 R v Massey [2022] ACTSC 3 R v Ngerengere (No 3) [2016] ACTSC 299 R v Ogle (No 2) [2018] ACTSC 126 R v Pham [2015] HCA 39; 256 CLR 550 R v Richardson [2016] ACTSC 133 R v Robertson [2010] QCA 319 R v Samani [2016] ACTCA 48 R v Smith [2019] ACTSC 65…
R v McColl
[2022] ACTSC 386

…2021] ACTSC 156 R v Mathews [2020] ACTSC 364 R v Novakovic (a.k.a. Noland) (No 1) [2021] ACTSC 62 R v Ogle (No 2) [2018] ACTSC 126 R v Oliver (1980) 7 A Crim R 174 R v Reid (No 1) [2021] ACTSC 334 R v Richardson [2016] ACTSC 133 R v Ryan (1988) 33 A Crim R 288 R v Serena [2019] ACTSC 231 R v Shearer [2020] ACTSC 10…
Ashley Laidler v Michael Christopher Spong (a.k.a Donlan)
[2021] ACTMC 18 Para 1

…His Honour Mossop J adopted part of the decision of R v Whyte [2002] NSWCCA 343 (‘ Whyte’ ) in his decision in R v Ogle (No 2) [2018] ACTSC 126 (‘ Ogle’ ). Whyte is a guideline judgment that set out the aggravating features for the equivalent New South Wales (NSW) offence which carries a maximum penalty of seven ye…
Amy Slaviero v Joshua Nabytowiccz-Cannizzaro
[2021] ACTMC 11 Para 1

…Particular considerations in assessing the objective seriousness of the offence were highlighted by Mossop J in R v Ogle (No 2) [2018] ACTSC 126 (‘ Ogle ’). His Honour adopted the approach of the New South Wales Court of Criminal Appeal in its guideline judgment of R v Whyte [2002] NSWCCA 343 (‘ Whyte ’). I note th…
R v Judge
[2021] ACTSC 118 Para 1

…In R v Ogle (No 2) [2018] ACTSC 126 I referred to the relatively small number of sentences for the offence of culpable driving causing grievous bodily harm and the fact that they did not reveal “any consistent pattern or range of sentencing”. I then referred to the decision of the New South Wales Court of Criminal…
R v Castles
[2018] ACTSC 358 Para 1

…ally be appropriate unless the offender has a low level of moral culpability, as in a case of “momentary inattention”: see, eg, R v Ogle (No 2) [2018] ACTSC 126 at [36] (Mossop J).…
R v Fountain
[2018] ACTSC 329 Para 1

…In accordance with the obligations on the Crown I was properly referred to the decision of Mossop J in R v Ogle (No 2) [2018] ACTSC 126. Applying [36] and [37] I assess the objective seriousness of this matter as about medium.…
Police v Axl Joseph (a pseudonym)
[2023] ACTCC 1

…38 R v Massey (No 1) [2020] ACTSC 256 R v Massey (No 3) [2021] ACTSC 156 R v MJR [2010] NSWSC 653 R v Ogle (No 2) [2018] ACTSC 126 R v Seymour [2021] ACTSC 152 R v Verdins (2007) 16 VR 269 R v Whyte [2002] NSWCCA 343 The Queen v Haven (a pseudonym) [2022] ACTCA 61 Texts Cited: Bugmy Bar Book Project Committee, Bugm…

View all 8 citing cases →

Cases cited in this decision · 8 of 8 shown

R v Ogle
[2017] ACTSC 189 Para 1

…tted the offender to be sentenced on 8 August 2017 unless she had entered, or been accepted for entry, into the Mirikai Recovery Centre: see R v Ogle [2017] ACTSC 189.…
R v Woods
[2017] ACTSC 17 Para 1

…ausing grievous bodily harm. I have had particular regard to the decisions in R v Barton [2016] ACTSC 162; R v Richardson [2016] ACTSC 133; R v Woods [2017] ACTSC 17; R v Nachouki (Unreported, Supreme Court of the ACT, Burns J, 17 September 2013); and R v Fanti (Unreported, Supreme Court of the ACT, Penfold J, 8 J…
R v Barton
[2016] ACTSC 162 Para 1

…cription of cases involving the offence of culpable driving causing grievous bodily harm. I have had particular regard to the decisions in R v Barton [2016] ACTSC 162; R v Richardson [2016] ACTSC 133; R v Woods [2017] ACTSC 17; R v Nachouki (Unreported, Supreme Court of the ACT, Burns J, 17 September 2013); and R v…
R v Richardson
[2016] ACTSC 133 Para 1

…ffence of culpable driving causing grievous bodily harm. I have had particular regard to the decisions in R v Barton [2016] ACTSC 162; R v Richardson [2016] ACTSC 133; R v Woods [2017] ACTSC 17; R v Nachouki (Unreported, Supreme Court of the ACT, Burns J, 17 September 2013); and R v Fanti (Unreported, Supreme Court…
R v Verdins
[2007] VSCA 102 Para 1

…The offender’s mental health and drug conditions have not been shown to be relevant in the R v Verdins [2007] VSCA 102; 16 VR 269 at [32] sense. Although I have accepted that she suffers from PTSD and depression, her conditions are not such as to make a sentence of imprisonment significantly more burdensome for he…
R v Whyte
[2006] NSWCCA 75 Para 1

…The guideline judgment given by the Court of Criminal Appeal in R v Whyte [2002] NSWCCA 343; 65 NSWLR 252 indicates that for the corresponding offence in New South Wales ( Crimes Act 1900 (NSW), s 52A(3)), which carries a maximum penalty of seven years imprisonment, a custodial sentence will usually be appropri…
R v Dutton
[2005] NSWCCA 248 Para 1

…ut in the circumstances the mental health of the offender only goes a limited way towards reducing the otherwise appropriate sentence: R v Dutton [2005] NSWCCA 248 at [38].…
R v Whyte
[2002] NSWCCA 343 Para 1

…The guideline judgment given by the Court of Criminal Appeal in R v Whyte [2002] NSWCCA 343; 65 NSWLR 252 indicates that for the corresponding offence in New South Wales ( Crimes Act 1900 (NSW), s 52A(3)), which carries a maximum penalty of seven years imprisonment, a custodial sentence will usually be appropriate u…

Legislation cited in this decision · 2

Crimes Act 1900 (ACT)
29(4), 29(6), 52A(3), 52A(3)) 5 mentions (from Para 1)
Road Transport (General) Act 1999 (ACT)
62 1 mention