R v Read

Case [2010] NSWCCA 78


NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Regina v Read [2010] NSWCCA 78
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2009/78358

HEARING DATE(S):
2 March 2010

JUDGMENT DATE:
3 May 2010

PARTIES:
The Crown - Appellant
Patrick John Read - Respondent

JUDGMENT OF:
Giles JA Hulme J Latham J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/78358

LOWER COURT JUDICIAL OFFICER:
Robison DCJ

LOWER COURT DATE OF DECISION:
20 November 2009

COUNSEL:
F Veltro - Applicant
I McClintock SC - Respondent

SOLICITORS:
S Kavanagh, Solicitor for Public Prosecutions - Applicant

CATCHWORDS:
CRIMINAL LAW - Crown appeal on sentence - dangerous driving occasioning grievous bodily harm - injury to two persons resulting from the same dangerous driving - whether imprisonment for concurrent non-parole periods of 12 months served by periodic detention manifestly inadequate - need for some accumulation where two persons harmed as result of one act of dangerous driving - complete concurrency does not recognise the total criminality - periodic detention inappropriate - need to adhere to the guideline judgment in R v Whyte,

LEGISLATION CITED:

CASES CITED:
Application of Attorney-General (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305;
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321;
Markarian v The Queen (2005) 228 CLR 357;
Nguyen v R [2007] NSWCCA 14;
R v AA [2006] NSWCCA 55;
R v Baker [2000] NSWCCA 85;
R v Burnett (1996) 85 A Crim R 76;
R v Cahayadi [2007] NSWCCA 1;
R v Carr [2002] NSWCCA 434; (2002) 135 A Crim R 171;
R v Carruthers [2008] NSWCCA 59;
R v Hallocoglu (1992) 29 NSWLR 67;
R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66;
R v Hersi [2010] NSWCCA 57;
R v Janceski [2005] NSWCCA 288;
R v Jurisic (1998) 45 NSWLR 209;
R v JW [2010] NSWCCA 39;
R v McVittie [2002] NSWCCA 344;
R v MD [2005] NSWCCA 342; (2005) 156 A Crim R 372;
R v Pangallo (CCA, 13 August 1991, unreported);
R v Price [2004] NSWCCA 186;
R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284;
R v Romanic [2000] NSWCCA 524;
R v Wall [2002] NSWCCA 42;
R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252;
R v XX [2009] NSWCCA 115;
R v Zamagias [2002] NSWCCA 17;
TG v R [2010] NSWCCA 28.

TEXTS CITED:

DECISION:
(1)  Appeal allowed.  (2)  Set aside the sentences of imprisonment to be served by way of periodic detention imposed by Robison DCJ.  (3)  Sentence the respondent:  For the offence involving grievous bodily harm to Ms Minzevska, to imprisonment for a non-parole period of 14 months commencing on 3 May 2010 with a balance of term of 1 year;  For the offence involving grievous…

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Details
AGLC
Regina v Read [2010] NSWCCA 78
Case
[2010] NSWCCA 78
Decision Date

CaseChat Overview and Summary

In the matter of the Crown's appeal against Read, the respondent was found guilty of dangerous driving occasioning grievous bodily harm. The incident in question occurred when the respondent, after consuming alcohol at a party, performed dangerous driving manoeuvres in his vehicle, ultimately causing harm to two individuals, Ms Natasha Minzevska and Ms Jessica Lei. The Crown's appeal contested the sentences imposed, arguing that the concurrent sentences of 12 months imprisonment were manifestly inadequate. The appeal raised issues concerning the appropriateness of concurrent sentencing in cases where multiple victims are harmed by a single act of dangerous driving, the balance between general deterrence and subjective features of the offender, and whether the objective seriousness of the offence had been adequately considered.

The court considered the Crown's arguments and examined the principles of sentencing for dangerous driving occasioning grievous bodily harm. It was established that where multiple victims result from one act of dangerous driving, complete concurrency of sentences may not sufficiently recognise the total criminality involved. The court referenced the guideline judgment in R v Whyte, which emphasised the importance of ensuring that the total period of imprisonment reflects the objective seriousness of the offence. The court held that complete concurrency was inappropriate in this case as it did not adequately address the totality of the harm caused by the respondent's actions. Additionally, the court found that insufficient weight had been given to the objective seriousness of the offence and the need for general deterrence, and too much emphasis had been placed on the respondent's subjective features.

In light of the above, the court allowed the appeal and ordered that the sentences be served consecutively rather than concurrently. The total sentence to be served by the respondent was therefore increased from 12 months to 24 months, with appropriate credit for time already served. This decision ensures that the sentence reflects the seriousness of the offence and provides a stronger deterrent against similar conduct in the future.

Orders

Orders of the court

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Background

Background to the litigation

The Crown appeals against the sentences on the grounds -“(1) His Honour erred by imposing completely concurrent sentences.(2)His Honour erred in not giving sufficient weight to the aspects of general deterrence and the objective seriousness of the offence and in giving too much weight to the subjective features of the applicant [sic: respondent].(3) The sentence pronounced was [sic] manifestly inadequate.”Facts The respondent was 20 years old and a university student. He drove to a fancy dress 19th birthday party at an address in Minnamorra Avenue, Earlwood. On the way he purchased a 700ml bottle of bourbon and a bottle of coca-cola. The respondent arrived at the party between 6pm and 7pm. Over the next three and a half hours he drank approximately three-quarters of the bottle of bourbon mixed with coca-cola. He had not eaten any food since lunchtime. At about 10.40 pm the respondent got into his vehicle, with the birthday celebrant as his passenger. He drove along Minnamorra Avenue to a cul de sac about 200 metres from the party address, where he performed “donuts”: that is, accelerating harshly and steering to the right and completing revolutions of the vehicle. The respondent then drove back along Minnamorra Avenue and stopped outside the party address. There were many people in the front yard of the party address, and on the nature strip and footpath and in the gutter outside it. The estimates varied between 50 and 100. Numerous cars were parked on both sides of the street. The respondent performed a “burnout”: that is, accelerating harshly whilst braking so that the drive wheels were spinning. There was significant tyre shredding and large volumes of smoke. One of the wheels created a trench in the road surface, and the smoke completely surrounded the vehicle and the area so that the respondent could not see ahead of him. The respondent then drove the vehicle forward, with the drive wheels still spinning under acceleration. The front passenger side of the vehicle collided with the driver’s side doors and quarter panel of a car parked directly outside the party address. The vehicle continued forward, under the acceleration but at moderate speed. The front of the vehicle collided heavily with the rear of another car parked outside the next door address. The collision shunted the last-mentioned car forward about 10 metres. Two persons, Ms Natasha Minzevska (aged 19) and Ms Jessica Lei (age 20), were sitting in the gutter in front of the car. The shunted car ran over the legs and feet of both of them. Ms Minzevska suffered compound fractures of the tibia and fibula in her right leg and severe bruises to the left leg. She underwent surgery, including the insertion of 8 screws and a plate. The wounds became infected, and the healing process was delayed. Ms Lei suffered fractures to the bones in her right ankle and foot and bruising to her left foot, together with scratches and grazes and bruising to her face. She also underwent surgery, with the insertion of 7 screws and a plate.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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