Regina v McKinney - [1999] NSWCCA 51

CITATION: Regina v McKINNEY [1999] NSWCCA 51

FILE NUMBER(S): CCA 60632/98

HEARING DATE(S): 10 March 1999

JUDGMENT DATE:
10 March 1999

PARTIES :

Appellant: Regina
Respondent: Robert McKinney

JUDGMENT OF: Spigelman CJ at 1; Abadee J at 32; Adams J at 33

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/3105

LOWER COURT JUDICIAL OFFICER: Acting Judge Cantrill

COUNSEL: Appellant: P G Ingram
Respondent: P R Zahn

SOLICITORS: Appellant: S E O'Connor
Respondent: T A Murphy

CATCHWORDS: CRIMINAL LAW; sentencing; appeal by Crown; principles of general deterrence; principle of double jeopardy; CRIMINAL LAW; driving offences; aggravated dangerous driving causing death; s52A(2) Crimes Act 1900

ACTS CITED: Crimes Act 1900

CASES CITED:
R v Jurisic NSWCCA 12 October 1998
R v Kalanj (1997) 98 ACrimR 505

DECISION: Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL

60632/98

SPIGELMAN CJ
ABADEE J
ADAMS J
Wednesday 10 March 1999

REGINA v Robert McKINNEY

The respondent pleaded guilty to a charge of aggravated dangerous driving causing death contrary to s52A(2) of the Crimes Act 1900. The aggravating circumstance was exceeding the concentration of blood alcohol proscribed by s52A(7) and s52A(9).
Held: (Crown appeal against sentence upheld)
The judge at first instance did not give appropriate weight to the principle of general deterrence appropriate for this offence. The sentence is manifestly inadequate. R v Jurisic NSWCCA 12 October 1998; R v Kalanj (1997) 98 ACrimR 505 referred to.
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IN THE COURT OF
CRIMINAL APPEAL

60632/98

SPIGELMAN CJ
ABADEE J
ADAMS J
Wednesday 10 March 1999

REGINA v Robert McKINNEY
JUDGMENT

1 SPIGELMAN CJ: This is a Crown appeal against sentence. The Respondent pleaded guilty to a charge of aggravated dangerous driving occasioning death, contrary to s52A(2) of the Crimes Act 1900. The maximum penalty for this offence is fourteen years imprisonment.
2 On 17 September 1998 Acting Judge Cantrill sentenced the Respondent to a period of imprisonment for three years to date from 30 September 1998 and to be served by way of periodic detention. His Honour did not vary the automatic period of three years of disqualification.
3 The accident occurred on 10 December 1997, at about 3.00pm in the afternoon. The Respondent was driving his Mazda table-top truck with a mesh cage on the back. He was driving on Henry Lawson Drive, Lansvale, in circumstances described by an officer of the Crash Investigation Unit in the following way:
"A driver travelling in a northerly direction, the same direction as the defendant was driving would experience a sweeping righthand bend. The vision through this bend could be described as good. The driver would then experience an uphill grade to the crest of the hill where the roadway divides into four lanes where it joins the intersection of the Hume Highway and Woodville Road.

…
Drivers travelling in both directions would have had what is described as a good and unobstructed view of the roadway."

4 There were no cars travelling in the same direction as the Respondent in his immediate…

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 McKinney

Details

AGLC: Regina v McKinney [1999] NSWCCA 51
Case: [1999] NSWCCA 51
Decision Date: 10 March 1999

CaseChat Overview and Summary

The case of Regina v McKinney arose in the New South Wales Court of Criminal Appeal. The defendant was convicted of aggravated dangerous driving causing death. The Crown appealed the sentence imposed by the primary judge, contending it was too lenient. The defendant argued that the sentence was appropriate given the circumstances of the case. The appeal focused on the principles of sentencing, particularly the need to balance general deterrence with individual circumstances.

The central legal issue before the court was whether the primary judge had erred in failing to adequately consider the principles of general deterrence when imposing the sentence. The Crown submitted that the sentence did not sufficiently reflect the seriousness of the offence, which involved the death of a person. The defendant, on the other hand, argued that the sentence was appropriate and that the court had appropriately balanced the relevant sentencing principles. The court had to determine whether the appeal should be allowed, and if so, what the appropriate sentence should be.

The court found that the primary judge had failed to adequately consider the principle of general deterrence in the context of the offence. The court emphasised that aggravated dangerous driving causing death is a serious offence with significant potential to cause harm. While the court acknowledged the individual circumstances of the case, it held that the sentence needed to reflect the broader need for general deterrence. The appeal was allowed, and the matter was remitted to the sentencing judge for re-sentencing. The court did not speculate on the appropriate sentence but directed that the sentencing judge reconsider the matter in light of the principles of general deterrence.

No further orders were made in the judgment. The court's decision underscores the importance of considering general deterrence in sentencing, particularly for serious driving offences that result in death.

Orders