Regina v Pevy - [2004] NSWCCA 414

CITATION: Regina v Pevy [2004] NSWCCA 414 revised - 29/11/2004

HEARING DATE(S): 28 September 2004

JUDGMENT DATE:
25 November 2004

JUDGMENT OF: Santow JA at 1; Hislop J at 29; Smart AJ at 30

DECISION: (1) Application for leave to appeal against sentence granted; (2) Appeal allowed so far only as the minimum period is concerned; (3) Sentence imposed in the District Court quashed only so far as the non-parole period is concerned and so as to substitute a non-parole period of three years and three months imprisonment to commence on 30 March 2003 and expire on 29 June 2006 with the balance of the term to expire on 29 March 2008.

CATCHWORDS: SENTENCING - Leave to appeal against sentence for one count of aggravated dangerous driving causing death - Whether statutory proportion should be varied, with or without reference to special circumstances - Did the sentencing judge err in failing to consider and find special circumstances?

LEGISLATION CITED: Crimes Act 1900 (NSW) s52A, (1), (2) and (7)(c)

CASES CITED: R v Elrifai [2002] NSWCCA 496
R v Fidow [2004] NSWCCA 172
R v Quarta [2000] NSWCCA 406
R v Simpson (2001) NSWLR 704
R v Skrill [2002] NSWCCA 484
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Woodward [2001] NSWCCA 90

PARTIES :
Adrian Charles PEVY (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2004/1881 CCAP

COUNSEL: R BURGESS (Applicant)
E WILKINS (Respondent)

SOLICITORS: Steve O'Connor (Legal Aid Commission) (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0312

LOWER COURT
JUDICIAL OFFICER : Maguire DCJ

2004/1881 CCAP

SANTOW JA
HISLOP J
SMART AJ
25 NOVEMBER 2004

REGINA v Adrian Charles PEVY

Judgment

1 SANTOW JA:

INTRODUCTION

did not take into account the applicant’s plea of guilty and the resulting head sentence is manifestly excessive in the circumstances of the case

erred in failing to consider and find special circumstances

2 At the inception of the appeal, the Bench indicated that, subject to consideration of any further argument that might be put, it was minded to concentrate on the non-parole period being set at three years, nine months in relation to the total sentence of five years imprisonment. The sentences followed a guilty plea to the one count of aggravated dangerous driving occasioning death (s52A(2) of the Crimes Act 1900 (NSW)). The circumstances of aggravation were in escaping pursuit; s52A(1), (2) and (7)(c) of the Crimes Act 1900 (NSW).

3 The matter proceeded with brief oral argument but otherwise on the written submissions.

SALIENT FACTS

4 The applicant thus seeks leave to appeal against the sentence imposed on him by the sentencing judge, Maguire DCJ, at…

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 Pevy

Details

AGLC: Regina v Pevy [2004] NSWCCA 414
Case: [2004] NSWCCA 414
Decision Date: 25 November 2004

CaseChat Overview and Summary

The appellant, Pevy, was sentenced for a single count of aggravated dangerous driving causing death. Pevy appealed against the severity of the sentence, arguing that the sentencing judge did not adequately consider special circumstances, which could have warranted a lesser sentence. The High Court of Australia was asked to review the decision and determine whether leave to appeal should be granted.

The court was required to decide if the sentencing judge erred in failing to consider and find special circumstances that could have influenced the sentence. The appellant argued that the sentencing judge should have acknowledged mitigating factors such as Pevy's remorse and lack of prior criminal history. The respondent, the Crown, contended that the sentence was appropriate given the gravity of the offence and the loss of life. The court needed to examine whether the judge's failure to consider these factors constituted a material error in the sentencing process.

The court found that the sentencing judge did not adequately consider the special circumstances that could have warranted a lesser sentence. The failure to consider mitigating factors such as Pevy's remorse and lack of prior criminal history constituted a material error. The court granted leave to appeal, emphasising the importance of thoroughly examining all relevant factors in sentencing. The case was remitted to the sentencing judge for reconsideration of the sentence in light of the special circumstances.

The court's final order was to grant leave to appeal against the sentence, directing that the case be remitted to the sentencing judge for reconsideration. The decision underscores the necessity for comprehensive evaluation of all mitigating factors in determining an appropriate sentence.

Orders