Johnson J at [1] Harrison J at [2] Schmidt J at [99]
Decision:
(1) Appeal allowed. (2) Quash the sentence imposed by her Honour Bright DCJ on 24 August 2018. (3) In lieu thereof, sentence Dominic Ashley Pullen to an aggregate period of imprisonment of 3 years to be served by way of an Intensive Correction Order commencing on 24 August 2018 and expiring on 23 August 2021. (4) The Intensive Correction Order is subject to the following conditions: (a) The offender must not commit any offence. (b) The offender must submit to supervision by a community corrections officer. (c) The offender must perform 650 hours of community service work. (d) The offender is to participate in a rehabilitation program or to receive treatment. (e) The offender is to abstain from consuming alcohol and drugs. (f) The offender is to complete the Sober Driver Program if he is assessed as suitable by his supervisor. (5) Mr Pullen is disqualified from driving for a period of 2 years commencing on 24 August 2018.
Catchwords:
CRIMINAL LAW – appeal – Crown appeal against inadequacy of sentence – dangerous driving occasioning grievous bodily harm – fail to stop and assist after impact causing grievous bodily harm – whether sentence imposed is manifestly inadequate –whether sentencing judge erred in assessing the objective seriousness of the fail to stop and assist offence as “well below the mid-level” – whether the Court should exercise its residual discretion not to intervene – resentencing – whether the Court should impose an Intensive Correction Order
[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.
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AGLC
R v Pullen [2018] NSWCCA 264
Case
[2018] NSWCCA 264
Decision Date
CaseChat Overview and Summary
In the case of R v Pullen, the appellant was convicted of dangerous driving occasioning grievous bodily harm and failing to stop and assist after the impact, causing grievous bodily harm. The case was heard in the NSW Court of Criminal Appeal, where the Crown appealed against the adequacy of the sentence imposed on the appellant. The Crown argued that the sentence was manifestly inadequate, particularly in relation to the objective seriousness of the appellant's failure to stop and assist after the impact. The sentencing judge had assessed the objective seriousness of the fail to stop and assist offence as “well below the mid-level”, a decision the Crown contested.
The legal issues before the court were whether the sentence imposed was manifestly inadequate, whether the sentencing judge erred in assessing the objective seriousness of the fail to stop and assist offence as “well below the mid-level”, and whether the court should exercise its residual discretion not to intervene. Additionally, the court had to consider whether the court should impose an Intensive Correction Order. The court considered the meaning of "community safety" as outlined in the Crimes (Sentencing Procedure) Act 1999 and the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017.
The court found that the sentencing judge had erred in assessing the objective seriousness of the fail to stop and assist offence. The court considered that the fail to stop and assist offence was of mid-level seriousness, not well below the mid-level. The court also found that the sentence imposed was manifestly inadequate and exercised its residual discretion to intervene. The court imposed a sentence of imprisonment with an Intensive Correction Order, reflecting the seriousness of the offences and the need for community safety. The court's decision was based on a detailed analysis of the statutory provisions and the principles of sentencing.