Regina v Menzies - [1999] NSWCCA 222

CITATION: Regina v MENZIES [1999] NSWCCA 222

FILE NUMBER(S): CCA 60472/98

HEARING DATE(S): 2 August 1999

JUDGMENT DATE:
2 August 1999

PARTIES :

The Crown (Appellant)
William John Menzies (Respondent)

JUDGMENT OF: Newman J at 1; Sperling J at 24; Greg James J at 25

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/21/1225

LOWER COURT JUDICIAL OFFICER: Coleman DCJ

COUNSEL: P G Berman (Crown)
J S Andrews (Respondent)

SOLICITORS: S E O'Connor (Crown)
T A Murphy (Respondent)

CATCHWORDS: Crown appeal; Dangerous driving causing death; Home detention

ACTS CITED: Crimes Act 1900

CASES CITED:
R v Smith (1997) 95 A Crim R 373
R v Jurisic (1998) 45 NSWLR 209
Everett v R (1994) 181 CLR 295

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60472/98

NEWMAN J
SPERLING J
GREG JAMES J

MONDAY, 2 AUGUST 1999

REGINA v William John MENZIES

JUDGMENT

1    NEWMAN J: This is an application for leave to appeal by the Crown against a sentence imposed by his Honour Judge Coleman in the District Court on 14 August 1998.
2 The respondent had pleaded not guilty before the District Court to a charge of dangerous driving causing death contrary to the provisions of s 52A(1)(C) of the Crimes Act 1900.
3 After a trial which lasted between 22 April and 28 April 1998 the jury had found the respondent guilty of the offences charged. Under that section of the Crimes Act a maximum penalty of ten years penal servitude is allowed.
4    In the event his Honour sentenced the respondent to a minimum term of imprisonment of twelve months, commencing on 14 August 1998 and expiring on 13 August 1999, with an additional term of six months commencing on 14 August 1999 and expiring on 13 February 2000. His Honour also ordered that the term was to be served by way of home detention. It is the Crown's submission that his Honour's sentence was manifestly inadequate and that this Court should intervene.
5    I shall later in the reasons turn to the progress of this matter before this Court, a matter which I am of the view is of some importance.
6    However, I presently turn to the facts of the matter as found by his Honour. His Honour in determining the matters of fact when passing sentence made a number of minor errors which in my view do not affect the considerations of this Court. His Honour found quite properly that the offence took place at Luxford Road, Shalvey, a suburb of Sydney. He correctly found that the respondent was driving his car in the kerb side lane on the northern side of the roadway where there were two lines of traffic travelling east.
7    The collision took place on the pedestrian crossing approximately 21 metres east of the western kerb alignment of Hopman Crescent. At the point where the pedestrian crossing intersected the median strip there were three lanes for traffic travelling west, in the opposite direction.
8    The victim…

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 Menzies

Details

AGLC: Regina v Menzies [1999] NSWCCA 222
Case: [1999] NSWCCA 222
Decision Date: 2 August 1999

CaseChat Overview and Summary

The appeal was lodged by the Crown against the decision of Menzies J, who had reduced the sentence of the appellant from imprisonment to home detention. The appellant had been found guilty of dangerous driving causing death. The primary judge found that the appellant was remorseful, had a clean criminal record, and had shown good character, which led to the imposition of a non-custodial sentence. The Crown argued that the sentence was manifestly inadequate and that a term of imprisonment was necessary to adequately reflect the seriousness of the offence.

The legal issue before the court was whether the sentence imposed was manifestly inadequate. The court considered the principles of sentencing for dangerous driving causing death, including the need for general and specific deterrence, denunciation, and the protection of the community. The court also considered the circumstances of the appellant, including his remorse and good character, but ultimately found that the primary judge had given insufficient weight to the need for specific deterrence and denunciation. The court held that the sentence imposed was manifestly inadequate and remitted the matter to the primary judge for resentencing.

The court found that the primary judge had erred in placing too much weight on the appellant's remorse and good character, and had failed to adequately consider the need for specific deterrence and denunciation. The court held that the primary judge had also erred in failing to consider the need to protect the community, and in not imposing a term of imprisonment. The court found that the sentence imposed was manifestly inadequate and remitted the matter to the primary judge for resentencing. The court noted that the appellant's remorse and good character were relevant considerations, but they did not outweigh the need for specific deterrence and denunciation.

The court did not make any final orders, as the matter was remitted to the primary judge for resentencing. The court did, however, provide guidance on the principles of sentencing for dangerous driving causing death, and the need to adequately consider the circumstances of the offender and the need for specific deterrence and denunciation. The court also noted that home detention may be an appropriate sentence in some cases, but it is not a suitable alternative to imprisonment in cases of dangerous driving causing death.

Orders