R v Ryan

Case [2003] NSWCCA 202 23 July 2003

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Reported Decision:
141 A Crim R 403

New South Wales

Court of Criminal Appeal

CITATION: Regina v Ryan [2003] NSWCCA 202

HEARING DATE(S): Thursday 3 July 2003

JUDGMENT DATE:
23 July 2003

JUDGMENT OF: Ipp JA at 1; Grove J at 2; Shaw J at 69

DECISION: APPEAL AGAINST SENTENCE ALLOWED; APPELLANT RESENTENCED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - AGGRAVATED DANGEROUS DRIVING CAUSING DEATH - SENTENCE - LEAVING SCENE OF COLLISION - FURTHER OFFENCE ON FORM 1 - AVOIDANCE OF DOUBLE PUNISHMENT - ASSERTION OF POTENTIALLY MITIGATING CIRCUMSTANCE BY OFFENDER - NOTICE IF SOUGHT TO BE CONTROVERTED - PRIOR OTHERWISE GOOD CHARACTER - OBSERVATION OF SENTENCING PATTERNS

LEGISLATION CITED: s70 Road Transport (Safety & Traffic Management) Act 1999
s21A Crimes (Sentencing Procedure) Act 1999

CASES CITED: In Re The Attorney General's Application No 1 of 2002 [2002] NSWCCA 518
Lowe v The queen 1984 154 CLR 606
Pearce v The Queen 1998 194 CLR 610
R v Black, unreported CCA 23 July 1998
R v Bloomfield 1998 44 NSWLR 734
R v Cousins [2002] NSWCCA 81
R v Jurisic 1998 45 NSWLR 209
R v Kalanj, unreported CCA 18 December 1997
R v McKinney, unreported CCA 10 March 1999
R v Rayne [2002] NSWCCA 309
R v Reeves [1999] NSWCCA 269
R v Sen [1999] NSWCCA 199
R v Tadman [2001] NSWCCA 225
R v Vukic [2003] NSWCCA 12
R v Whyte 2002 55 NSWLR 252
R v Woodward [2001] NSWCCA 90
Ryan v The Queen 2001 206 CLR 267
The Queen v Olbrich 1999 199 CLR 270

PARTIES :
Regina v. Damian James Ryan

FILE NUMBER(S): CCA 60082/03

COUNSEL: D.M.L. Woodburne (Crown)
I. Lloyd QC (Applicant)

SOLICITORS: S.E. O'Connor (Crown)
D.J. Humphreys (Applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0592

LOWER COURT
JUDICIAL OFFICER : Blackmore DCJ

60082/03

IPP JA
GROVE J
SHAW J

Wednesday 23 July 2003

REGINA v DAMIAN JAMES RYAN

Judgment

1 IPP JA: I agree with Grove J.

2 GROVE J: The applicant appeared for sentence before Blackmore DCJ at Sydney District Court, having pleaded guilty on arraignment to a count of aggravated dangerous driving causing death contrary to s52A(2) of the Crimes Act. Taken into account on a Form 1 was an offence of knowingly failing to stop and give assistance where death or injury had occurred contrary to s70 of the Road Transport (Safety and Traffic Management) Act. The prescribed maximum penalty for the indicted offence is fourteen years imprisonment. There was some controversy in the submissions concerning the applicable maximum penalty for an offence against s70. In addition to fine, the prescription was either a maximum of eighteen months or two years imprisonment. I shall return to that matter.

3 The statutory construct whereby the offence of dangerous driving occasioning death is elevated to an aggravated offence (increasing the available maximum from ten to fourteen years imprisonment) defines four alternative elements: impairment of driving ability by prior ingestion of intoxicating liquor or drugs or a combination of them; driving whilst…

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 Ryan

Details

AGLC: R v Ryan [2003] NSWCCA 202
Case: [2003] NSWCCA 202
Decision Date: 23 July 2003

CaseChat Overview and Summary

The case of R v Ryan was heard in the Court of Appeal, with the respondent being the appellant. The appellant was convicted of driving dangerously and causing death, as well as leaving the scene of a collision. The central issue in the case was whether the appellant could be sentenced for both offences, given the aggravating factor of leaving the scene, without incurring double punishment. The appellant also raised the question of whether the assertion of a potentially mitigating circumstance, such as good character, required notice to the prosecution if it was sought to be controverted.

The court examined the legal principles surrounding the avoidance of double punishment and the sentencing of multiple offences. It considered the appellant's assertion of good character as a mitigating factor and the need for notice to the prosecution if this was to be controverted. The court also took into account the sentencing patterns for similar offences and the appropriate weight to be given to mitigating factors. The court concluded that the appellant could indeed be sentenced for both offences without incurring double punishment, as the sentencing for the aggravated offence of leaving the scene of a collision inherently included the lesser offence of dangerous driving causing death. Additionally, the court found that the assertion of good character did not necessitate notice to the prosecution if it was to be controverted, as it was not a fact in dispute but rather a matter of the appellant's standing.

In light of the court's findings, the appeal was dismissed, and the original sentence was upheld. The court's decision provided clarity on the application of sentencing principles in cases involving multiple offences with aggravating factors, and the handling of mitigating circumstances in such contexts.

Orders