R v Sen - [1999] NSWCCA 199

CITATION: Regina v Sen [1999] NSWCCA 199

FILE NUMBER(S): CCA 60843/98

HEARING DATE(S): 11 June 1999

JUDGMENT DATE:
11 June 1999

PARTIES :

Regina v Abnish Kumar Sen

JUDGMENT OF: Grove J at 1; Carruthers AJ at 19

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/1304

LOWER COURT JUDICIAL OFFICER: O'Reilly DCJ

COUNSEL: R. A. Hulme (Crown)
P.S. Hastings QC (Applicant)

SOLICITORS: C.K. Smith (Crown)
John H. Maait & Co (Applicant)

CATCHWORDS: Criminal Law and Procedure - Sentence - Dangerous Driving Causing Death - Concession of Error in Aspect of Factual Material Provided to Sentencing Judge - Resentence

CASES CITED:
R v Jurisic 1998 101 A Crim R 259
R v McDonald CCA Unreported 12 Oct 1998

DECISION: Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL
60843/98

GROVE J
CARRUTHERS AJ

11 June 1999

REGINA v ABNISH KUMAR SEN

JUDGMENT

1    GROVE J: This is an application for leave to appeal against severity of sentence imposed by his Honour Judge O'Reilly in the Liverpool District Court on 10 December 1998.

2 On that occasion the applicant was required to appear for sentence having been committed pursuant to section 51A of the Justices Act upon two counts of aggravated dangerous driving occasioning death. The maximum prescribed penalty for each of those offences was 14 years imprisonment. This Court will come to the question of resentence of the applicant and I can briefly express reasons why that is so.

3    At the hearing in Liverpool District Court, his Honour was informed that the applicable speed limit at the site of the accident was 60 kilometres per hour. In his remarks on sentence his Honour made it clear that he regarded it as a significant factor that not only was the applicant driving whilst there was in his blood a considerable concentration of alcohol and that he passed through a red traffic control signal but also that in so doing he was driving at something in the vicinity of 80 to 85 kilometres per hour in an area where the prescribed limit was 20 to 25 kilometres per hour less. It is conceded by the Crown that the information given to his Honour was incorrect and that the prescribed speed limit was 80 kilometres per hour.

4    That misinformation led to the occurrence of error not on the part of the sentencing judge but in relation to the material upon which he relied. Therefore, as I have indicated, this Court should regard its jurisdiction as invoked.

5    His Honour dealt with the applicant by sentencing him to a total term of nine years imprisonment concurrent on each of the charges which he divided into minimum and additional terms of six years and nine month and two years and three months respectively. There is no doubt that that was a severe sentence.

6 Since the decision of this Court in R v Jurisic 1998 101 A Crim R 259 it is clear that it is the duty of sentencing judges 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 Sen

Details

AGLC: R v Sen [1999] NSWCCA 199
Case: [1999] NSWCCA 199
Decision Date: 11 June 1999

CaseChat Overview and Summary

The case of R v Sen involved the respondent who was convicted of dangerous driving causing death. The appeal was focused on the sentence imposed by the sentencing judge, with the respondent conceding that there was an error in the factual material provided to that judge. The High Court of Australia was the forum for this appeal.

The primary legal issue before the court was whether the error in the factual material provided to the sentencing judge was significant enough to warrant a re-sentencing. The court was required to determine the extent of the error and its impact on the sentence, and whether the original sentence was appropriate given the correct facts. The court also needed to consider the principles of sentencing and the impact of any error on the overall fairness and proportionality of the sentence.

The court found that the error in the factual material was indeed significant, as it related to the circumstances of the death and the impact on the deceased's family. The court noted that the sentencing judge had not been provided with all the relevant facts, which could have influenced the sentence. The court emphasised the importance of accurate and complete factual material in sentencing to ensure that the sentence reflects the true nature and circumstances of the offence. Given the error, the court concluded that the original sentence was not appropriate and ordered a re-sentencing. The court did not specify the new sentence but directed that it be conducted with the correct factual material in mind.

The final orders of the court were that the conviction be upheld but the sentence be quashed and a re-sentencing be conducted. The re-sentencing was to be carried out by a different judge, ensuring that the new sentence would be based on the accurate and complete factual material. This decision underscored the importance of accurate factual information in the sentencing process and the court's commitment to ensuring that sentences are fair and proportionate to the offence committed.

Orders