R v RADLEY - [2010] NSWCCA 64

New South Wales
Court of Criminal Appeal

CITATION: R v RADLEY [2010] NSWCCA 64
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 9 April 2010

JUDGMENT DATE:
15 April 2010

JUDGMENT OF: Beazley JA at 1; Grove J at 2; Hislop J at 23

DECISION: Crown appeal dismissed.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Dangerous driving occasioning death - Sentence - Order for service by periodic detention - Collision at dawn by vehicle driven by offender and motorcycle - Vehicle engaged in overtaking manoeuvre - Rural road - No breach of road rule or restrictive signage - Misjudgment the effective cause - Crown assertion that sentence manifestly inadequate not established

LEGISLATION CITED: Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: R v Hallocoglu (1992) 27 NSWLR 67
R v Jurisic (1998) 45 NSWLR 209
R v Whyte (2002) 55 NSWLR 252
Thai v R [2009] NSWCCA 314

PARTIES: REGINA - Appellant
Laurence Ramon RADLEY - Respondent

FILE NUMBER(S): CCA 2008/19439

COUNSEL: P Leask - Crown/Appellant
I McClintock - Respondent

SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions - Crown/Appellant
Greg Murray - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/1641

LOWER COURT JUDICIAL OFFICER: North DCJ

LOWER COURT DATE OF DECISION: 4 December 2009

CCA 2008/19439

BEAZLEY JA
GROVE J
HISLOP J
15 April 2010

R v Laurence Ramon RADLEY

Judgment

1 BEAZLEY JA: I agree with Grove J.

2 GROVE J: This is a Crown appeal against sentence pursuant to s 5D of the Criminal Appeal Act 1912.

3 The respondent pleaded guilty to a charge of dangerous driving occasioning death and he asked to be taken into account on sentence a further offence of doing an act with intent to pervert the course of justice. The indicted offence has attached to it a maximum prescribed penalty of ten years imprisonment and the offence on the Form 1 a prescribed maximum penalty of fourteen years imprisonment.

4 North DCJ (the Judge) sentenced the respondent to imprisonment for two years with a non-parole period of one year four months to be served by periodic detention. The sentence was ordered to commence on the date of imposition, 4 December 2009.

5 We are informed that on 17 December 2009 a Deputy Director of Public Prosecutions signed a notice of appeal which was served on the respondent on 19 December. An amended notice of appeal dated 29 March 2010 specifies a single ground in these terms:

“The sentence is manifestly inadequate as it fails to give proper weight to the objective seriousness of the offence.”

6 The amended notice of appeal records the non-parole period as eighteen months which is inconsistent with the transcript of the Judge’s remarks on sentence and a typescript of the sentence and orders signed by him apparently to be treated as the endorsement on the back of the indictment.

7 The facts were outlined in a statement and acknowledged to…

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 RADLEY

Details

AGLC: R v Radley [2010] NSWCCA 64
Case: [2010] NSWCCA 64
Decision Date: 15 April 2010

CaseChat Overview and Summary

The case of R v RADLEY involved the appellant, who was charged with dangerous driving occasioning death following a fatal collision with a motorcycle. The incident occurred at dawn on a rural road, where the appellant's vehicle was engaged in an overtaking manoeuvre. The court had to determine whether the appellant's actions constituted dangerous driving and, if so, whether the sentence imposed was adequate. The trial judge found that the appellant's misjudgment was the effective cause of the collision but did not find a breach of any road rule or restrictive signage.

The primary legal issue before the court was whether the appellant's actions amounted to dangerous driving, as defined under the relevant statute. The court needed to assess if the appellant's conduct fell below the standard of care that a reasonable person would have exercised under the same circumstances. Additionally, the court had to consider the appropriateness of the sentence, including whether the order for service by periodic detention was justified.

In delivering the judgment, the court found that the appellant's actions, while not in breach of any specific road rule, demonstrated a significant departure from the standard of care expected on the road. The court highlighted that the appellant's misjudgment regarding the safety of the overtaking manoeuvre led to the fatal collision. The court determined that the sentence imposed was not manifestly inadequate and thus affirmed the trial judge's decision. The appeal against sentence was dismissed, and the order for service by periodic detention was upheld.

The court's decision emphasised that the appellant's misjudgment, rather than a breach of specific road rules, was the critical factor in the fatal incident. The court concluded that the sentence reflected the gravity of the offence and the need for deterrence and rehabilitation. The court's affirmation of the trial judge's sentence and the order for service by periodic detention underscored the importance of maintaining high standards of road safety and holding offenders accountable for their actions.

Orders