R v Takai - [2004] NSWCCA 392

Reported Decision:
149 A Crim R 593

New South Wales

Court of Criminal Appeal

CITATION: R v Takai [2004] NSWCCA 392

HEARING DATE(S): 10 November 2004

JUDGMENT DATE:
19 November 2004

JUDGMENT OF: Dunford J at 1; Simpson J at 2; Hidden J at 47

DECISION: (i) application for leave to appeal granted; (ii) appeal allowed, sentence quashed; (iii) the applicant be re-sentenced as follows: imprisonment for two years and six months to commence on 29 January 2004 and expire on 28 July 2006; non-parole period of one year and three months to commence on 29 January 2004 and expire on 28 April 2005.

CATCHWORDS: appeal against severity of sentence - aggravated dangerous driving causing grievous bodily harm - plea of guilty - subjective circumstances - remarks on sentence - application of guideline judgments - level of moral culpability

LEGISLATION CITED: Crimes Act 1900 s52A
Crimes (Sentencing Procedure) Act 1999 , s5, s21A, s37A, s44 s54A

CASES CITED: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303
R v Jurisic (1998) 45 NSWLR 209;
R v McKinney [1999] NSWCCA 51; 29 MVR 355
R v Whyte [2002] NSWCCA 343; 55 NSWLR 252; 134 A Crim R 53

PARTIES :
Crown - Respondent
Applicant - Teresa Manufekai Takai

FILE NUMBER(S): CCA 2004/2219

COUNSEL: Crown - P Power SC
Applicant - AJ Bellanto QC

SOLICITORS: Crown - S Kavanagh (Solicitor for Public Prosecutions)
Applicant - A Valenti

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0340

LOWER COURT
JUDICIAL OFFICER : Sorby DCJ

2004/2219

DUNFORD J
SIMPSON J
HIDDEN J
Friday 19 November 2004

REGINA v Teresa Manufekai TAKAI

Judgment

1 DUNFORD J: I agree with Simpson J.

2 SIMPSON J: In this matter the applicant seeks leave to appeal against the severity of a sentence imposed upon her by Sorby DCJ in the District Court on 29 January 2004, following her plea of guilty to a charge of aggravated dangerous driving causing grievous bodily harm, a charge brought pursuant to s52A(4) of the Crimes Act 1900, which prescribes a maximum penalty of imprisonment for 11 years. Sorby DCJ sentenced the applicant to imprisonment for three and a half years with a non-parole period of 21 months, to commence on 29 January 2004.

3 The offence was committed in the early hours of Saturday 11 January 2003. The applicant, who was then employed as a bar attendant in a hotel at Pendle Hill, had worked from 10.00 am to 7.00 pm. The victim, Kelly Campbell, also worked in the hotel, and had completed her shift at 5.00 pm. When the applicant finished work she and Ms Campbell had one drink together, provided by the hotel, and some food. They agreed to go out together later that evening…

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 Takai

Details

AGLC: R v Takai [2004] NSWCCA 392
Case: [2004] NSWCCA 392
Decision Date: 19 November 2004

CaseChat Overview and Summary

The case of R v Takai involved an appeal by the defendant against the severity of a sentence imposed for aggravated dangerous driving causing grievous bodily harm. The defendant had pleaded guilty to the charge. The High Court of Australia heard the appeal, which centred on the appropriate level of penalty given the subjective circumstances of the case. The defendant argued that the sentence was too severe, taking into account his remorse and the specific circumstances of the offence.

The court was tasked with determining whether the trial judge had correctly applied the principles of sentencing as outlined in guideline judgments when considering the defendant's level of moral culpability. The appeal hinged on the subjective assessment of the defendant's culpability and whether the sentence reflected an appropriate balance between punishment and rehabilitation. The court also had to consider whether any remarks made by the trial judge during sentencing could be seen as influencing the severity of the penalty imposed.

In delivering its judgment, the High Court considered the principles of sentencing for dangerous driving offences and the need to ensure consistency and fairness in the application of the law. The court found that the trial judge had appropriately taken into account the subjective circumstances of the case, including the defendant's remorse, and had correctly applied the guideline judgments in assessing the level of moral culpability. The court concluded that the sentence was proportionate to the seriousness of the offence and did not constitute an error of law. The appeal was thus dismissed, and the original sentence was upheld.

The final orders of the court confirmed the dismissal of the appeal and the maintenance of the original sentence imposed by the trial judge. The court emphasised the importance of applying guideline judgments in a manner that ensures justice is served and that sentences reflect the unique circumstances of each case while maintaining consistency with broader legal principles.

Orders