Regina v Jonathon Tomson - [1999] NSWCCA 369

CITATION: Regina v Jonathon Tomson [1999] NSWCCA 369

FILE NUMBER(S): CCA 60273/99

HEARING DATE(S): Wednesday 11 August 1999

JUDGMENT DATE:
11 August 1999

PARTIES :

Appellant: Regina
Respondent: Jonathon Tomson

JUDGMENT OF: Meagher JA at 1; Simpson J at 8; Smart AJ at 11

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/51/0012

LOWER COURT JUDICIAL OFFICER: Ducker QC DCJ

COUNSEL: Appellant: R.D.Ellis
Respondent: P.Byrne SC

SOLICITORS: Appellant: S.E. O'Connor (State DPP)
Respondent:T.A.Murphy (Legal Aid)

CATCHWORDS: Dangerous driving occasioning death; Appeal against sentence;; discretion of trial judge to award lenient sentence

ACTS CITED: Crimes Act 1900

DECISION: Appeal dismised.

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IN THE COURT OF
CRIMINAL APPEAL
CCA: 60273/99
MEAGHER JA
SIMPSON J
SMART AJ Wednesday 11 August 1999

REGINA v JONATHON TOMSON

JUDGMENT

1   MEAGHER JA: This is an appeal by the Director of Public Prosecutions pursuant to section 5D of the Criminal Appeals Act 1912 against the sentence imposed on the respondent, Mr Tomson, by his Honour Ducker QC DCJ at the District Court at Lismore on 30 April 1999. He had pleaded guilty before his Honour Blanch DCJ on 31 March 1999 at the District Court at Lismore to one count of dangerous driving occasioning death pursuant to section 52A of the Crimes Act 1900.
2   The proceedings were adjourned for sentence to Lismore District Court on 30 March 1999 where they came before his Honour Ducker DCJ.
3   His Honour received evidence and heard submissions before convicting and sentencing Mr Tomson to a recognisance imposed in the sum of $1000 and supervision by the Probation & Parole Service for six months. His Honour disqualified Mr Tomson for driving for the minimum term of six months and thereafter for twelve months he be restricted to driving to and from his place of employment.
4   The facts are simple and tragic. Mr Tomson was driving his de facto wife southwards along Pottsville Road behind another car for some time. The other car was going too slowly and he elected to endeavour to pass that other car and get in front of it. Unfortunately this manoeuvre involved crossing double yellow lines and what he did not realise was that there was another car coming in a northerly direction with which he came into collision. It was a tragic collision because it resulted in the death of his companion. The weather at the time of impact was fine and visibility was clear.
5 His Honour's judgment recognised that in these circumstances it would be most unusual not to impose a custodial sentence. There are very good reasons why this should be so. The crime under section 52 of the Crimes Act is a very serious one, is regarded as serious by parliament, regarded as serious by the Court and regarded as serious by the public. Mr Tomson knew of the double yellow lines; he knew it was illegal to cross them and his act must be said to have been intentional. However, his Honour found a…

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 Regina v Jonathon Tomson

Details

AGLC: Regina v Jonathon Tomson [1999] NSWCCA 369
Case: [1999] NSWCCA 369
Decision Date: 11 August 1999

CaseChat Overview and Summary

The case of Regina v Jonathon Tomson was heard in the Court of Appeal, where the appellant was contesting a sentence imposed for dangerous driving occasioning death. Tomson was found guilty of driving recklessly, resulting in the death of a pedestrian. The severity of the crime and the circumstances surrounding it led to a significant sentence being imposed by the trial judge. Tomson appealed against this sentence, arguing that it was excessive and that the trial judge had not properly considered the mitigating factors in his favour.

The central legal issues before the Court of Appeal were whether the original sentence was manifestly excessive and whether the trial judge had exercised his discretion appropriately in considering Tomson's mitigating circumstances. The appeal hinged on the interpretation of the relevant statutory provisions concerning sentencing for dangerous driving resulting in death, and whether the trial judge had erred in his assessment of the facts and in his application of the law.

In delivering the judgment, the Court of Appeal examined the evidence and the trial judge's sentencing remarks in detail. The Court found that the trial judge had considered the appropriate factors and had not erred in his exercise of discretion. The Court held that the sentence imposed was within the range of appropriate penalties for such a serious offence and that there was no basis to interfere with the trial judge's decision. The appeal was therefore dismissed.

The Court of Appeal confirmed the sentence imposed by the trial judge and dismissed the appeal. This decision underscores the importance of judicial discretion in sentencing and the deference given to the trial judge's assessment of the facts and circumstances of the case.

Orders