Regina v Pates - [2001] NSWCCA 142

CITATION: Regina v Pates [2001] NSWCCA 142

FILE NUMBER(S): CCA 60413/00

HEARING DATE(S): 6/4/01

JUDGMENT DATE:
6 April 2001

PARTIES :

REGINA v STEPHEN PATES

JUDGMENT OF: O'Keefe J at 1;32; Smart AJ at 31

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/11/0445

LOWER COURT JUDICIAL
OFFICER : McGuire DCJ

COUNSEL : G E Smith - for Crown
Applicant in person

SOLICITORS: Applicant in person
S E O'Connor - for Crown

CATCHWORDS: Dangerous driving causing grievous bodily harm - Appeal against sentence - Hardship as ground of appeal - Extreme or exceptional hardship required - Onus of establishing hardship is on appellant

LEGISLATION CITED: Crimes Act 1900

CASES CITED:
Queen v Edwards (1996) 19 ACR 510
Queen v Jurisic (1998) 45 NSWLR 209

DECISION: Leave to appeal refused.

IN THE COURT OF
CRIMINAL APPEAL

No: 60413/00

O’Keefe J
Smart AJ

Friday, 6 April 2001

REGINA v STEPHEN PATES

JUDGMENT

1 O'KEEFE J: Stephen Pates, the applicant, has sought leave to appeal against the severity of the sentence imposed in the District Court by Judge McGuire (the Judge) on 30 June 2000.

2 The applicant pleaded guilty to a charge of driving in a manner dangerous causing grievous bodily harm in circumstances of aggravation. That charge carried a maximum penalty of 11 years imprisonment. In addition, the applicant asked the Court to take into account an offence of car stealing and another of larceny, each of which carries a maximum penalty of five years imprisonment.

3 The judge sentenced the applicant to imprisonment for four years and six months to commence on 9 June 2000 and to expire on 8 December 2004. The non-parole period was fixed at three years.

4 The circumstances which gave rise to the principal charge were that the applicant had stolen a car some four or five days prior to the date of his arrest. He did not then have a current driver's licence. The records show that he had only ever held a learner's permit and that it had expired in 1986. Having stolen the car, he was observed by police on 25 May 1999, and was followed by them in a police vehicle. The applicant sought to escape by accelerating through a give-way sign, accelerate again and went through a red light at speed at a busy suburban intersection. In the course of so doing, the vehicle he was driving collided with another vehicle. The force of the collision was such as to push the vehicle with which he had collided a number of metres so that it hit the kerb and struck a light pole with the front of the vehicle he was driving embedded in its side. The force of the collision trapped the driver of the other vehicle in his vehicle for some 45 minutes and caused him serious injuries, including a broken shoulder and five broken ribs. His condition was serious enough to require mechanical assistance for his breathing. It was later found he had also suffered…

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 Pates

Details

AGLC: Regina v Pates [2001] NSWCCA 142
Case: [2001] NSWCCA 142
Decision Date: 6 April 2001

CaseChat Overview and Summary

In Regina v Pates, the appellant was convicted of dangerous driving causing grievous bodily harm, and he sought to appeal against his sentence on the basis of hardship. The appellant argued that the sentence imposed was unjust and disproportionate, considering the hardship he would face in serving the sentence. The court was required to determine whether the appellant had established that the hardship he would face was extreme or exceptional, and whether this was sufficient ground for the appeal to be successful.

The court examined the principles governing appeals against sentence on the basis of hardship. It noted that the onus is on the appellant to establish that the hardship they would face is extreme or exceptional. The court considered the nature of the hardship, the appellant's personal circumstances, and whether the hardship was of a kind that the sentencing court could not reasonably have taken into account. The court concluded that the appellant had not established that the hardship he would face was extreme or exceptional, and therefore the appeal against sentence was dismissed.

The court emphasised that the onus of establishing hardship as a ground for appeal is on the appellant, and that the hardship must be of an extreme or exceptional nature. The court found that the appellant had not met this burden of proof, and therefore the appeal was unsuccessful. The orders of the court were that the appeal against sentence be dismissed.

Orders