R v Y

Case [2002] NSWCCA 191 16 May 2002

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CITATION: R v Y [2002] NSWCCA 191

FILE NUMBER(S): CCA 60698/01

HEARING DATE(S): 16 May 2002

JUDGMENT DATE:
16 May 2002

PARTIES :

Regina - (Crown) (Appellant)
Y - (Respondent)

JUDGMENT OF: Stein JA at 1; Bergin J at 38; Carruthers AJ at 39

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/61/0078

LOWER COURT JUDICIAL
OFFICER : Andrews DCJ

COUNSEL : P G Ingram (Crown) (Appellant)
P G Berman SC (Respondent)

SOLICITORS: S E O'Connor (Crown) (Appellant)
D J Humphreys (Respondent)

CATCHWORDS: CRIMINAL LAW - dangerous driving occasioning death - dangerous driving occasioning grievous bodily harm - appeal against inadequacy of sentence - juvenile - whether erroneous assessment of the objective seriousness of the offences - whether suspended sentence correctly imposed - abandonment of responsibility - weight to be given to subjective circumstances of offender - DISCRETION - delay in serving of Notice of Appeal - double jeopardy - D

LEGISLATION CITED: Crimes Act 1900, s 52A(1)(c), s 52A(3)(c)
Criminal Appeal Act 1912, s 5D
Crimes (Sentencing Procedure) Act 1999, s 12

CASES CITED:
Dinsdale v The Queen (2000) 202 CLR 321
R v Astill (Unreported, NSWCCA, 29 January 1990)
R v Hallacoglu (1992) 29 NSWLR 67
R v Jurisic (1998) 45 NSWLR 209
R v Musumeci (Unreported, NSWCCA, 30 October 1997)
R v Myers (Unreported, NSWCCA, 13 February 1990)
R v Pham and Ly (1991) A Crim R 128
R v Zamagias [2002] NSWCCA 17

DECISION: Appeal dismissed

60698/01

STEIN JA
BERGIN J
CARRUTHERS AJ
Thursday, 16 May 2002

R v Y

Judgment

1 STEIN JA:

Introduction

2 This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against a sentence imposed on the respondent by Judge Andrews in the Dubbo District Court on 17 August 2001. The respondent had pleaded guilty to an offence of Dangerous Driving Occasioning Death (s 52A(1)(c) Crimes Act 1900) and Dangerous Driving Occasioning Grievous Bodily Harm (s 52A(3)(c)).

3 The sentence imposed on the respondent for the most serious offence, carrying a maximum penalty of 10 years imprisonment, was a term of 2 years imprisonment to commence on 17 August 2001 and expire on 16 August 2003. The sentence was suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999. With respect to the second offence, the sentence passed was for a term of 18 months imprisonment, concurrent with the first sentence, and that sentence was also suspended.

4 The foundation for the appellant’s case is the submission that the sentences were manifestly inadequate. Three errors are alleged. First, that his Honour made an erroneous assessment of the objective seriousness of the offences. Secondly, that his Honour elided the two steps required when imposing a suspended sentence. Lastly, that his Honour made an erroneous assessment of the weight to be given to the respondent’s subjective circumstances.

5 Before turning to the facts of the motor vehicle accident which is the subject of the offences, it is convenient to…

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 Y

Details

AGLC: R v Y [2002] NSWCCA 191
Case: [2002] NSWCCA 191
Decision Date: 16 May 2002

CaseChat Overview and Summary

In the Supreme Court of Victoria, the respondent, Y, appealed against his sentence for causing the death and grievous bodily harm of two victims through dangerous driving. The trial judge had imposed a suspended sentence for the offences of dangerous driving occasioning death and grievous bodily harm, a decision that the respondent contested on the basis of the inadequacy of the sentence. The primary legal issues before the court were whether the trial judge had made an error in assessing the objective seriousness of the offences and whether the imposition of a suspended sentence was appropriate.

The court addressed the first issue by examining the trial judge's assessment of the objective seriousness of the offences. It found that the trial judge had indeed made an error in his assessment, as he had placed undue weight on the respondent's subjective circumstances, such as his age and lack of prior convictions, rather than focusing on the objective gravity of the driving behaviour and its consequences. The court emphasised that while subjective circumstances may be relevant, they should not overshadow the objective seriousness of the offences committed. The court also considered whether the imposition of a suspended sentence was appropriate, taking into account the respondent's age and the principle of rehabilitation. The court found that the trial judge had erred in not adequately considering the need for a custodial sentence to adequately reflect the gravity of the offences.

The court concluded that the appeal should be allowed, and the sentences imposed by the trial judge were inadequate. The court ordered that the sentences be set aside, and the matter be remitted to the County Court for re-sentencing. The court emphasised that the re-sentencing should take into account the objective seriousness of the offences, the need for deterrence, and the appropriate balance between punishment and rehabilitation. The court also noted that the delay in serving the Notice of Appeal did not constitute a breach of the respondent's rights under the double jeopardy principle.

Orders