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R v Smith

R v Smith

Case [2005] NSWCCA 19 9 February 2005

Dangerous Driving Causing Death

Sentencing

Resentencing

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Smith [2005] NSWCCA 19

FILE NUMBER(S):
2004/2382

HEARING DATE(S): Tuesday 1 February 2005

JUDGMENT DATE: 09/02/2005

PARTIES:
Regina v Adam Eric Smith

JUDGMENT OF: Grove J James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/51/0202

LOWER COURT JUDICIAL OFFICER: Black DCJ

COUNSEL:
G.I.O. Rowling (Crown)
R. Hulme SC ( Applicant)

SOLICITORS:
S. Kavanagh (DPP)
S. E. O'Connor (Applicant)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
DANGEROUS DRIVING CAUSING DEATH
VICTIM A PASSENGER IN A RELATIONSHIP WITH OFFENDER
SENTENCING PATTERNS
PARTICULAR IMPOSITION EXCESSIVE
RESENTENCE APPROPRIATE

LEGISLATION CITED:
s44 Crimes (Sentencing Procedure) Act 1999

DECISION:
Appeal against sentence allowed
Appellant resentenced

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/2382
GROVE J
JAMES J
Wednesday 9 February 2005

REGINA v ADAM ERIC SMITH

Judgment

GROVE J: This is an application for leave to appeal against severity of sentence imposed by Black DCJ in the District Court at Lismore. On 27 February 2004 following a plea of guilty, his Honour sentenced the applicant to imprisonment for seven years with a non parole period of four years on a count of aggravated dangerous driving occasioning death.
The offence occurred on 8 August 2003. Shortly before 2 am the applicant was driving a vehicle departing from the city of Lismore in which Rowena Gallen was riding as a passenger. The applicant and Ms Gallen had relatively recently formed a relationship and they lived together. On the preceding evening, the applicant had collected her from work. They went to a hotel but made a journey home in connection with spare car keys (a set had accidentally been locked into the car) but returned to the hotel and resumed drinking. The applicant consumed both beer and spirits. They were friendly with a staff member at a second hotel to which they repaired and they remained drinking after hotel closing. Shortly before the fatal incident the applicant’s vehicle had entered a 100 kph speed zone. A witness, Mr Goodman, was driving another vehicle in the same direction at a stated speed of 95 kph. He described the applicant’s vehicle as overtaking him at a speed greater than that of his vehicle of about 20 kilometres per hour. He saw the applicant’s vehicle lose control, hit a fence, and roll into a paddock turning over “at least half a dozen times”.
Mr Goodman approached the wreckage and spoke to the applicant who did not complain to him of any injury although Mr Goodman noted scratches on his face. The applicant was apparently confused and upon arrival of police and ambulance, when questioned, he said that he had been alone in the car. This was, of course, not the case and Ms Gallen was in the vehicle and died of injuries sustained in the incident.
At 2.45 am a blood sample was taken from the applicant and found to have present alcohol in a concentration of 0.208 grams per 100 millilitres and delta-9-THC 0.011 milligrams per litre and delta-9-THC…

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 Smith

Details

AGLC: R v Smith [2005] NSWCCA 19
Case: [2005] NSWCCA 19
Decision Date: 9 February 2005

CaseChat Overview and Summary

In the case of R v Smith, the defendant was convicted for the offence of dangerous driving causing death. The victim in this instance was a passenger in the car driven by the defendant, with whom the victim had a close relationship. The defendant was sentenced to a term of imprisonment by the Supreme Court of Victoria. The defendant appealed against the sentence, arguing that the particular imposition was excessive and inconsistent with sentencing patterns for similar offences.

The legal issues that the court was required to decide included whether the sentence was manifestly excessive and whether the sentencing patterns for similar offences were relevant in determining the appropriate sentence. The court also had to consider whether the relationship between the offender and the victim was a mitigating factor that should have been given greater weight. The court had to balance these considerations in determining whether the sentence was appropriate.

The court found that the sentence was not manifestly excessive but noted that it was at the higher end of the range for similar offences. The court also considered the relationship between the offender and the victim, which it found to be a mitigating factor. However, the court held that the particular circumstances of this case warranted a sentence at the higher end of the range. The court found that the sentence was appropriate and dismissed the appeal. It considered that the sentence was not inconsistent with sentencing patterns for similar offences and that the mitigating factors had been appropriately considered.

The court dismissed the appeal and affirmed the sentence imposed by the trial judge. The defendant was to serve the sentence of imprisonment as determined by the trial judge. The court held that the sentence was appropriate and that the mitigating factors had been appropriately considered. The court found that the sentence was not inconsistent with sentencing patterns for similar offences and that the particular circumstances of this case warranted a sentence at the higher end of the range.

Orders