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R v Winter

R v Winter

Case [2012] NSWCCA 218 16 October 2012

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Court of Criminal Appeal

New South Wales

Case Title: R v Winter

Medium Neutral Citation: [2012] NSWCCA 218

Hearing Date(s): 12 September 2012

Decision Date: 16 October 2012

Jurisdiction:

Before: McClellan CJ at CL at [1]
Johnson J [57]
Garling J at [58]

Decision:
1. Uphold the appeal and quash the sentences imposed in the District Court.

2. In relation to count 1, sentence the respondent to a non-parole period of 4 years commencing on 17 November 2011 and concluding on 16 November 2015 with an additional term of 3 years expiring on 16 November 2018.

3. In relation to count 2, sentence the respondent to a non-parole period of 4 years commencing on 17 November 2013 and concluding on 16 November 2017 with an additional term of 3 years expiring on 16 November 2020.

Catchwords: CRIMINAL LAW - Crown appeal - sentence - whether sentence for manslaughter is manifestly inadequate - where respondent drove vehicle in circumstances where she was aware she may lose consciousness - where respondent had lost consciousness while driving on prior occasion - sentence manifestly inadequate - respondent re-sentenced - sentence increased.

Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912

Cases Cited: Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Everett v R (1994) 181 CLR 295
Gillett [2005] NSWDC 3
Gillett v R [2006] NSWCCA 370; 166 A Crim R 419
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Griffiths v R (1977) 137 CLR 293
R v Cramp [2004] NSWCCA 264
R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
R v Jurisic (1998) 45 NSWLR 209
R v Wall [2002] NSWCCA 42; (2002) 71 NSWLR 692
R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
Wong v R [2001] HCA 64; (2001) 207 CLR 584
Woodbridge v R [2010] NSWCCA 185; (2010) 208 A Crim R 503

Texts Cited:

Category: Principal judgment

Parties: Crown (Appellant)
Karen Winter (Respondent)

Representation

- Counsel: Counsel:
T Smith (Crown/Appellant)
C Smith (Respondent)

- Solicitors: Solicitors:
Solicitor for Public Prosecutions (Appellant)
Legal Aid of NSW (Respondent)

File number(s): 2011/107456

Decision Under Appeal

- Court / Tribunal:

- Before: Toner DCJ

- Date of Decision: 29 February 2012

- Citation:

- Court File Number(s) 2011/107456

Publication Restriction:

JUDGMENT

McCLELLAN CJ at CL: The respondent, Karen Winter, pleaded guilty to two counts of manslaughter that were committed when she was driving a motor vehicle and collided with, and killed, two pedestrians. The offences, which are contrary to s 18(1)(b) of the Crimes Act 1900, each carry a maximum penalty of 25 years imprisonment. There is no standard non-parole period.
The respondent pleaded guilty at the earliest opportunity and was afforded a 25% discount by the sentencing judge. His Honour imposed a sentence of 3 years imprisonment in relation to each offence and provided for an accumulation of 1 year. His…

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 Winter

Details

AGLC: R v Winter [2012] NSWCCA 218
Case: [2012] NSWCCA 218
Decision Date: 16 October 2012

CaseChat Overview and Summary

The case of R v Winter involved the respondent who had been convicted of manslaughter following a car accident. The Crown appealed the sentence of the respondent on the basis that it was manifestly inadequate. The respondent had driven a vehicle while being aware of the risk that she may lose consciousness, a risk that had previously materialised when she lost consciousness while driving on a prior occasion. The appeal was heard in the High Court of Australia.

The central legal issue in the appeal was whether the sentence imposed on the respondent was manifestly inadequate in the circumstances of the case. The Crown argued that the sentence did not appropriately reflect the gravity of the offence or the risk posed by the respondent's actions. The appeal hinged on whether the original sentence adequately addressed the danger to the public that the respondent's actions created, given her prior history of losing consciousness while driving.

The court found that the original sentence was indeed manifestly inadequate. It considered the respondent's awareness of the risk of losing consciousness, the prior incident, and the potential danger to the public. The court increased the sentence, finding that the original penalty did not appropriately reflect the seriousness of the offence. The court concluded that the increased sentence was necessary to adequately address the risk posed by the respondent's actions and to provide appropriate deterrence.

The court ordered that the respondent be re-sentenced to a term that appropriately reflected the gravity of the offence and the risk to the public. The new sentence was designed to ensure that the punishment matched the severity of the respondent's actions and to provide an adequate deterrent against similar conduct in the future.

Orders