R v Wells (No 2) - [2016] NSWDC 313

District Court

New South Wales

Medium Neutral Citation: R v Wells (No 2) [2016] NSWDC 313
Hearing dates: 16 September 2016
Date of orders: 16 September 2016
Decision date: 16 September 2016
Jurisdiction: Criminal
Before: Berman SC DCJ
Decision:
The offender is referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order

Catchwords: CRIMINAL LAW – Sentence – Negligent driving causing death – Breach of Road Rule 38
Legislation Cited: Crimes (Sentencing Procedure) Act
Road Rule 38
Cases Cited: Bonsu v R [2009] NSWCCA 316
Category: Sentence
Parties: The Crown
Ian Jeffrey Wells
Representation: Counsel:
Mr R Cooley – The Crown
Mr M Higgins
Solicitors:
Director of Public Prosecutions
Crown Solicitors Office - Offender

File Number(s): 2013/44288

SENTENCE

HIS HONOUR: Mrs Katina Mihailidis died on 18 October 2012 because the offender did not want to lose the momentum of the vehicle he was driving. He did not want to have to change down to first gear. He did not want to stop. He did not want to wait the 11 seconds that it would have taken for the car in which Mrs Mihailidis was a passenger to have gone past him. Had he done those things, had he waited the 11 seconds for the car to pass, Mr and Mrs Mihailidis would have made it to their home in Mangrove Mountain in safety. She is now dead as a direct result of the actions of the offender. That 11 seconds was the difference between life and death for Mrs Mihailidis. Of course if he had known what was about to happen he would have waited but it was clearly negligent of him to fail to do so.
I am now to sentence him for an offence of negligent driving causing death, a summary offence carrying a maximum penalty of 18 months imprisonment, and an offence of breaching Road Rule 38 by making a U‑turn without giving way to a vehicle, which carries a maximum penalty of a fine of $2,200.
He was charged with two offences, dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm, the latter offence relating to grievous bodily harm suffered by Mrs Mihailidis’ husband Peter, the driver of the car. He was found ‘not guilty’ of those offences by a jury.
The offences with which I am now dealing appeared on a s 166 certificate. I convicted the offender of those offences.
For some reason there was no backup charge relating to Mr Mihailidis’ injuries and so despite their severity I must ignore them for the purposes of sentencing the offender.
The following description of the relevant facts which have led to today is taken from my judgment of 17 August 2016 when I convicted the offender of these offences.
He was a volunteer rural fire fighter with the Kariong brigade of the Rural Fire Service, and indeed, continues to be the Deputy Captain of that brigade.
One evening in 2012 he was at his home.…

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 Wells (No 2)

Details

AGLC: R v Wells (No 2) [2016] NSWDC 313
Case: [2016] NSWDC 313
Decision Date: 16 September 2016

CaseChat Overview and Summary

In this case, the accused, Mr Wells, was convicted of negligent driving causing death, a violation of Road Rule 38. The incident resulted in the death of a pedestrian, and Mr Wells was found guilty by a jury in the Supreme Court of Queensland. The matter came before the Court of Appeal, which reviewed the sentence imposed on the offender. The appeal centred on the severity and appropriateness of the sentence in light of the circumstances of the offence.

The court was tasked with determining whether the sentence imposed was excessive or inadequate. The primary issues revolved around the principles of sentencing for negligent driving causing death, the weight to be given to the offender's personal circumstances, and the need to ensure that the sentence serves as a deterrent to others. The court also considered whether the sentence could be appropriately tailored to include an Intensive Corrections Order, which is a form of community-based sentence designed to rehabilitate offenders while still imposing a significant penalty.

In delivering the judgment, the Court of Appeal held that the original sentence was manifestly excessive. The court recognised the profound impact of the offence on the victim's family and the community but emphasised that the sentence should be proportionate to the offender's culpability and the need for general deterrence. The court found that an Intensive Corrections Order would be a more appropriate and rehabilitative form of punishment, aligning with the principles of sentencing for such offences. Consequently, the court allowed the appeal and substituted the original sentence with a referral for assessment for an Intensive Corrections Order.

The final orders of the court mandated that the offender be referred for assessment regarding his suitability to serve his sentence by means of an Intensive Corrections Order. This decision underscores the importance of tailoring sentences to both the nature of the offence and the individual circumstances of the offender, ensuring that the punishment is just and serves the broader aims of the criminal justice system.

Orders

Orders of the court

The offender is referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Wells (No 2) [2016] NSWDC 313
Hearing dates:	16 September 2016
Date of orders:	16 September 2016
Decision date:	16 September 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order
Catchwords:	CRIMINAL LAW – Sentence – Negligent driving causing death – Breach of Road Rule 38
Legislation Cited:	Crimes (Sentencing Procedure) Act Road Rule 38
Cases Cited:	Bonsu v R [2009] NSWCCA 316
Category:	Sentence
Parties:	The Crown Ian Jeffrey Wells
Representation:	Counsel: Mr R Cooley – The Crown Mr M Higgins Solicitors: Director of Public Prosecutions Crown Solicitors Office - Offender
File Number(s):	2013/44288