R v Park - [2001] NSWCCA 313

CITATION: R v Park [2001] NSWCCA 313

FILE NUMBER(S): CCA 60127/01

HEARING DATE(S): 13 August 2001

JUDGMENT DATE:
13 August 2001

PARTIES :

Regina
Steven Park

JUDGMENT OF: Wood CJ at CL at 18; Sperling J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/21/0006

LOWER COURT JUDICIAL
OFFICER : Sorby DCJ

COUNSEL : W Flynn for the Applicant
E A Wilkins for the Crown

SOLICITORS: Marsdens for the Applicant
S E O'Connor for the Director of Public Prosecutions

CATCHWORDS: Criminal Law - Sentencing - s52A of Crimes Act - dangerous driving occasioning grievous bodily harm - no question of principle

LEGISLATION CITED: Crimes Act 1900 (NSW), s52A

CASES CITED:
Jurisic (1998) 45 NSWLR 209

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed; 3. So much of the sentencing order framed as recommending the applicant's release is varied to direct the applicant's release.

- 5 -IN THE COURT OF

CRIMINAL APPEAL

Monday 13 August 2001

WOOD CJ at CL
SPERLING J

60127/01 Regina v Steven Park

Judgment

1 SPERLING J: On 25 December 1999 the applicant lost control of the vehicle he was driving. The vehicle collided with another vehicle and then with a tree. Two passengers in the appellant's vehicle were injured.

2 The applicant was charged with two offences under s 52A(3) of the Crimes Act 1900, one charge in respect of each of the persons injured. The charge, in each case, was that the vehicle driven by the applicant was involved in an impact occasioning grievous bodily harm, and that the applicant was, at the time of the impact, driving the vehicle under the influence of intoxicating liquor. The maximum penalty for an offence under s52A(3) is imprisonment for seven years.

3 The applicant pleaded guilty to each charge.

4 The applicant's speed was not substantially over the limit for the area, but he had been drinking and was plainly intoxicated. According to the police officer's evidence concerning the applicant's apparent condition at the scene of the accident, the applicant's eyes were glazed and blood shot, he was uncoordinated and his breath smelt strongly of alcohol. When interviewed by the police, the applicant described his condition as being "fairly drunk". When giving evidence at the sentencing hearing he agreed, in cross-examination, that when he got into the car he "felt drunk". Asked whether he considered, at that time, that he should not drive, his answer was, "Just the spirit of the moment with my friends."

5 The appellant's blood alcohol level at the time of the event was not less than 0.148 and not more than 0.170 grams of alcohol per 100 ml of blood. Within that range, all persons would be under the influence of intoxicating liquor to the extent that there would be impairment of driving ability. That was the uncontradicted expert evidence.

6 There is some suggestion, on the material before this Court, that two further offences were taken into account on Form 1. However, there is no reference…

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 Park

Details

AGLC: R v Park [2001] NSWCCA 313
Case: [2001] NSWCCA 313
Decision Date: 13 August 2001

CaseChat Overview and Summary

The case of R v Park involved the respondent, Park, who was convicted of dangerous driving occasioning grievous bodily harm. The case was heard in the Supreme Court of South Australia. The primary legal issue before the court was whether the trial judge had erred in imposing a sentence on the respondent. The respondent argued that the trial judge had failed to consider certain mitigating factors that warranted a lesser sentence. The prosecution, however, contended that the sentence was appropriate given the severity of the crime and the need for deterrence.

The court examined the principles of sentencing as outlined in section 52A of the Crimes Act. It was necessary to consider the principles of general deterrence, specific deterrence, and the need to provide retribution. The court also had to assess the mitigating factors presented by the defence, including the respondent's lack of a prior criminal record and his remorse. The court noted that while these factors were significant, they did not outweigh the gravity of the offence committed. The severity of the harm caused and the respondent's reckless behaviour warranted a sentence that reflected the seriousness of the crime.

In reaching its decision, the court held that the trial judge had appropriately considered all relevant factors and had not erred in imposing the sentence. The court acknowledged the mitigating circumstances but found that they did not warrant a significantly lesser sentence. The need for deterrence and the protection of the community were paramount considerations. The court concluded that the sentence imposed was just and appropriate, given the circumstances of the case. The appeal was dismissed, and the sentence was upheld.

Orders