R v Turner - [2000] NSWCCA 455

CITATION: R v Turner [2000] NSWCCA 455

FILE NUMBER(S): CCA 60232/00

HEARING DATE(S): 27 October 2000

JUDGMENT DATE:
27 October 2000

PARTIES :

Regina
Michael A Turner

JUDGMENT OF: Wood CJ at CL at 1; Whealy J at 19

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/51/0177

LOWER COURT JUDICIAL
OFFICER : Kirkham DCJ

COUNSEL : Ms P. Hock
Mr M. Williams QC/Mr Dailly

SOLICITORS: S.E. O'Connor
Watson McNamara & Watt

DECISION: Leave to appeal granted; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL
60232/00

WOOD CJ at CL
WHEALY J
FRIDAY 27 OCTOBER 2000

REGINA v MICHAEL ANTHONY TURNER

JUDGMENT

1 WOOD CJ at CL: This is another application for leave to appeal against the severity of a sentence of three years imprisonment with a non-parole period of two years and three months imposed by his Honour Judge Kirkham, following the applicant's plea of guilty to one count of aggravated dangerous driving occasioning grievous bodily harm. That sentence was imposed upon the same day as the sentenced imposed in the appeal just decided by the Court in Khan. 2 The reasons for sentence contained a similar misstatement of the decision in Jurisic and, for the reasons identified in Khan, I consider it appropriate to also grant leave in this matter and then to review the matter afresh. 3 The facts, as found by his Honour, were as follows: 4 At about 7.30pm on 4 November 1997 the applicant and Gregory John Faint went to the Armidale Ex-Services Club for a few drinks. An issue has arisen today as to who drove Mr. Faint’s vehicle to that club but to my mind that is not a matter of any moment so far as the outcome of the sentencing proceedings or this appeal are concerned. 5 At 10.30pm the pair then walked up to the New England Hotel and had a few more drinks. After midnight they returned to the Ford Falcon utility of Mr Faint. The applicant asked or volunteered to drive that vehicle. He drove up Dumaresq Street in an easterly direction and then south into Canambe Street. Near the intersection of Barney Street he lost control of the vehicle which skidded across the roadway, over the kerb and thereafter continued over a grassed verge before colliding with a timber railing fence, demolishing some twenty-five metres of it in the process. 6 When the police arrived at the scene they formed the view that both the applicant and Mr Faint were heavily intoxicated. They noticed a number of empty beer bottles upon the floor of the car. 7 A blood sample was taken from the applicant at the hospital at 1.20am on the morning of 5 November, returning a reading of 0.194, again a significantly high level of intoxication. 8 The applicant suffered a wound to his head. Mr Faint suffered a laceration to his chin requiring suturing, as well as a closed fracture of the left proximal humerus. Some weeks later he had to undergo…

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 Turner

Details

AGLC: R v Turner [2000] NSWCCA 455
Case: [2000] NSWCCA 455
Decision Date: 27 October 2000

CaseChat Overview and Summary

In the case of R v Turner, the defendant, Michael Anthony Turner, was convicted of aggravated dangerous driving occasioning grievous bodily harm and sentenced to three years imprisonment with a non-parole period of two years and three months. Turner applied for leave to appeal against the severity of his sentence, which was granted by the Court of Criminal Appeal. The appeal was subsequently dismissed. The sentencing was conducted by Judge Kirkham in the District Court, and Turner's case was heard on 27 October 2000 by Wood CJ at CL and Whealy J.

The primary legal issue the court had to decide was whether Turner's sentence was excessive and whether the District Court had erred in its consideration of the sentencing principles. Turner's case was similar to that of Khan, where the court had recently considered the effect of the decision in Jurisic and the qualification in McKinney. Turner's case involved aggravating factors such as his very high level of intoxication, the speed at which he was driving, and the wet road conditions. The court also considered Turner's prior convictions and his lack of regard for his responsibilities as a motorist.

The Court of Criminal Appeal found that Turner's sentence was not excessive and that the District Court had properly considered the relevant principles in imposing the sentence. The court noted that Turner had shown some remorse and had taken steps to address his alcohol and aggression issues. However, the court emphasised that in cases of aggravated dangerous driving occasioning grievous bodily harm, general deterrence is a crucial consideration. The court found that the difference in severity between Turner's case and Khan's case was sufficient to justify the sentence imposed on Turner. The court concluded that no legal error had been made, and therefore, the appeal was dismissed.

Orders