R v Royal - [2003] NSWCCA 275

CITATION: REGINA v. ROYAL [2003] NSWCCA 275

HEARING DATE(S): Friday 5 September 2003

JUDGMENT DATE:
29 September 2003

JUDGMENT OF: Wood CJ at CL at 1; Greg James J at 6; Howie J at 1

DECISION: Appeal dismissed

CATCHWORDS: Criminal law - Crown appeal - dangerous driving causing grievous bodily harm - sentence and particularly non-parole period markedly less than range in guideline judgment - severely aggravating circumstances - trial judge's finding of unusual mitigating circumstances in mitigating non-parole period on erroneous view matter could be dealt with in lower court - error in holding matter outside the guidelines - sentence and non-parole period manifestly inadequate - non-parole period disproportionately short but Crown appeal dismissed in exercise of discretion.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Engert (1995) 84 A. Crim. R. 67
Whyte (2002) 55 NSWLR 252
Jurisic (1998) 45 NSWLR 209

PARTIES :
REGINA v.
ROYAL, Colleen Veronica

FILE NUMBER(S): CCA No. 60205 of 2003

COUNSEL: Crown: D. Frearson
Resp: R.A. Hulme, SC.

SOLICITORS: Crown: S.E. O'Connor
Resp: D.J. Humphreys

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0209

LOWER COURT
JUDICIAL OFFICER : Coolahan, DCJ.

No. 60205 of 2003

WOOD, CJ. at CL.
GREG JAMES, J.
HOWIE, J.
MONDAY 29 SEPTEMBER 2003

REGINA v. COLLEEN VERONICA ROYAL

Judgment

1 WOOD, CJ. at CL. and HOWIE, J: We have read the draft judgment of Greg James J and generally agree that these were our reasons for having reached the view that the Crown appeal should be dismissed. However, we wish to emphasise that we were of the view that the appeal should be dismissed on discretionary grounds.

2 In our opinion the sentencing discretion exercised by Judge Coolahan was infected with the errors identified by Greg James J and as a consequence the sentence imposed was inadequate to a degree that would have justified interference by this Court. In particular, the non-parole period was manifestly inadequate. It simply did not reflect the objective seriousness of the offence nor adequately denounce the respondent’s conduct and provide for general deterrence. This was a serious instance of an offence of dangerous driving and a minimum period of punishment of imprisonment for 4 months cannot be supported on any view of the facts.

3 Further, the disparity between the head sentence imposed and the non-parole period specified could rarely, if ever, be justified in the regime under s 44 of the Crimes (Sentencing Procedure) Act that existed at the time the respondent was sentenced and by a proper application of sentencing principles. It seems that his Honour found special circumstances in order to provide for a longer period on parole: there was no other reason to reduce the non-parole period. But the ability to provide for the rehabilitation of an offender is subject to limits; it cannot be provided by lengthening the overall sentence above that which is appropriate to reflect the objective seriousness of the offence nor can the non-parole period be reduced to a point…

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 Royal

Details

AGLC: R v Royal [2003] NSWCCA 275
Case: [2003] NSWCCA 275
Decision Date: 29 September 2003

CaseChat Overview and Summary

In the case of R v Royal, the appellant, who was originally convicted of dangerous driving causing grievous bodily harm, appealed against the sentence imposed by the trial judge. The appeal was heard in the High Court of Australia. The Crown subsequently appealed against the sentence, arguing that the sentence and particularly the non-parole period were markedly less than the range indicated in the guideline judgment and were manifestly inadequate given the severity of the offence.

The primary legal issue before the Court was whether the sentence imposed by the trial judge was manifestly inadequate and whether the Crown's appeal should be allowed. The Court needed to consider the appropriateness of the sentence, particularly the non-parole period, in light of the guideline judgment and the circumstances of the case. The trial judge had found unusual mitigating circumstances that influenced the non-parole period, but these were based on an erroneous view that the matter could be dealt with in a lower court. The Court also needed to determine whether the trial judge had erred in holding that the matter was outside the guidelines.

The Court found that the trial judge's error in holding that the matter was outside the guidelines did not necessarily mean that the sentence was manifestly inadequate. However, the non-parole period was disproportionately short and manifestly inadequate given the severity of the offence and the aggravating circumstances. Despite this, the Court dismissed the Crown appeal in the exercise of its discretion, acknowledging the unusual mitigating circumstances and the overall sentence imposed.

Orders