R v Russell

Case [2022] NSWCCA 294


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: R v Russell [2022] NSWCCA 294
Hearing dates: 21 October 2022
Date of orders: 22 December 2022
Decision date: 22 December 2022
Before: Kirk JA at [1];
N Adams J at [2];
McNaughton J at [3]
Decision:

(1) Allow the appeal;

(2) Quash the sentence imposed on the respondent in the District Court on 5 May 2022 and in lieu thereof, sentence the respondent to a term of imprisonment of 6 years and 6 months with a non-parole period of 4 years commencing on 5 May 2022. The date the respondent is first eligible for release to parole is 4 May 2026.

Catchwords:

CRIME – Appeals – Crown appeal against sentence – whether sentencing judge erred in assessment of length of journey during which others were exposed to risk – whether sentence manifestly inadequate – offences of dangerous driving occasioning two deaths and one grievous bodily harm – grossly overloaded caravan – appeal allowed – sentence below quashed – sentence increased

Legislation Cited:

Crimes Act 1900 (NSW) ss 52A(1)(c), 52A(3)(c), 319

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 36, 37A, 42A, 44(2B), 52A

Criminal Appeal Act 1912 (NSW) s 5D

Merchant Shipping Act Amendment Act 1862 (UK) s 54(4)

Road Transport Act 2013 (NSW) s 206B

Cases Cited:

Caristo v R [2011] NSWCCA 7

CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9

Elias vThe Queen (2013) 248 CLR 483; [2013] HCA 31

Foaiaulimav R [2020] NSWCCA 270

Gibson v R [2019] NSWCCA 221

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Hall v R [2021] NSWCCA 220

Hejazi v R [2009] NSWCCA 282; (2009) 217 A Crim R 151

Hordern v R [2019] NSWCCA 138

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155

Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528

Kliendienst v R [2020] NSWCCA 98

Ladas v R [2022] NSWCCA 160

Maglis v R [2010] NSWCCA 247

Martinez v R [2022] NSCCA 12

McBride v The Queen (1966) 115 CLR 44; [1966] HCA 22

Mina Nashed v Regina [2010] NSWCCA 282

Moodie v R [2020] NSWCCA 160

Power v The Queen (1974) 131 CLR 623; [1974] HCA 26

R v Bortic [2021] NSWCCA 138

R v Errington (2005) 157 A Crim R 553

R v Hill [2020] NSWCCA 197

R v Howcher [2004] NSWCCA 179; (2004) 146 A Crim R 371

R v Janceski [2005] NSWCCA 288; (2005) 44 MVR 328

R v Jarad Smith [2016] NSWCCA 75

R v Jurisic (1998) 45 NSWLR 209

R v Khatter [2000] NSWCCA 32

R v Lau [2022] NSWCCA 131

R v Manok [2017] NSWCCA 232

R v Melissa McKeown

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AGLC
R v Russell [2022] NSWCCA 294
Case
[2022] NSWCCA 294
Decision Date

CaseChat Overview and Summary

The case of R v Russell involved the Crown appealing against the sentence imposed on the respondent, Russell, who had been found guilty of two counts of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm. The offences arose from a journey during which Russell was driving a grossly overloaded caravan, leading to a tragic accident. The matter was heard in the Supreme Court of Victoria, with the appeal being brought before the Court of Appeal.

The primary legal issues before the Court of Appeal were whether the sentencing judge had erred in assessing the length of the journey during which others were exposed to risk, and whether the sentence imposed was manifestly inadequate given the gravity of the offences. The Court needed to determine if the sentence was proportionate to the severity and nature of the crimes committed, which included causing the deaths of two individuals and grievous bodily harm to another.

In delivering the judgment, the Court of Appeal found that the sentencing judge had erred in his assessment of the length of the journey during which the risk was exposed. This error led to an underestimation of the gravity of Russell’s offences. The Court concluded that the sentence imposed was manifestly inadequate given the severity of the crimes. As a result, the appeal was allowed, the original sentence was quashed, and Russell was sentenced to a more appropriate term of imprisonment. The Court emphasised the need for sentences to reflect the true extent of the harm caused and the culpability of the offender.

Orders

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Background

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Evidence

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Decision

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