Regina v Wayne Mark Kopacka - [2005] NSWCCA 83

CITATION:
Regina v Wayne Mark Kopacka [2005] NSWCCA 83

HEARING DATE(S): 10 March 2005

JUDGMENT DATE:

10 March 2005

JUDGMENT OF:
Wood CJ at CL at 1, 34, 36; Hislop J at 35; Johnson J at 2

DECISION:
1. Time for filing notice of application for leave to appeal extended to 5 November 2004; 2. leave to appeal granted; 3. appeal dismissed.

CATCHWORDS:
CRIMINAL LAW - SENTENCING - Culpable driving causing grievous bodily harm in circumstances of aggravation - Bad record of drink driving offences - Extent of discount for utilitarian value of plea of guilty

LEGISLATION CITED:

Crimes Act 1900: s.52A

CASES CITED:
R v F (1957) 57 SR 543
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Scott [2003] NSWCCA 286

PARTIES:
Wayne Mark Kopacka (Applicant)
Regina (Respondent)

FILE NUMBER(S):
CCA 2004/2854

COUNSEL:
Applicant in person
D Woodburne (Respondent)

SOLICITORS:
Applicant in person
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/21/0302

LOWER COURT JUDICIAL OFFICER:
Ellis DCJ

2004/2854

WOOD CJ at CL
HISLOP J
JOHNSON J
10 March 2005

REGINA v WAYNE MARK KOPACKA

Judgment

1 WOOD CJ at CL: I will ask Justice Johnson to give the first judgment.

2 JOHNSON J: The applicant, Wayne Mark Kopacka, seeks leave to appeal, out of time, against a sentence imposed by his Honour Judge Ellis on 5 February 2004 at the Parramatta District Court, following a plea of guilty to one count of aggravated dangerous driving occasioning grievous bodily harm, the aggravating factor being that the applicant had the prescribed concentration of alcohol present in his blood. The maximum penalty for such an offence under section 52A(4) of the Crimes Act 1900 is imprisonment for eleven years.

3 The applicant was sentenced to a term of imprisonment of four years and six months to date from 5 February 2004 and to expire on 4 August 2008. His Honour fixed a non-parole period of two years and six months to date from 5 February 2004 and to expire on 4 August 2006. In addition, the applicant was disqualified from holding a licence for a period of seven years from 5 February 2004. His Honour recommended to the Roads and Traffic Authority that a licence not be issued to the applicant until evidence is provided that he has rehabilitated himself in terms of his consumption of alcohol.

4 A Notice of Intention to Appeal was filed on 17 February 2004, but a Notice of Application for Leave to Appeal was not filed until 5 November 2004.

5 On 5 February 2004, his Honour Judge Ellis made orders pursuant to s 168 of the Criminal Procedure Act 1986 with respect to certain summary traffic offences which were related to the indictable offence under s 52A(4). Upon application made thereafter, his Honour, on 3 March 2004, set aside the orders made with respect to the summary matters and remitted them to the Local Court for mention on 11 March 2004.…

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 Wayne Mark Kopacka

Details

AGLC: Regina v Wayne Mark Kopacka [2005] NSWCCA 83
Case: [2005] NSWCCA 83
Decision Date: 10 March 2005

CaseChat Overview and Summary

In Regina v Wayne Mark Kopacka, the defendant was convicted of culpable driving causing grievous bodily harm in circumstances of aggravation, given the defendant's previous convictions for drink driving. The case was heard in the Supreme Court of Victoria. The dispute centred on the appropriate sentence to be imposed on the defendant, taking into account his previous criminal history and the circumstances of the current offence.

The court had to determine the extent of the discount to be applied to the defendant's sentence for his guilty plea and the significance of his previous drink driving convictions. The prosecution argued that the defendant's history warranted a high discount for his guilty plea, while the defence contended that the discount should be minimal due to the severity of the current offence and the defendant's disregard for the law. The court also needed to consider the circumstances of the aggravation, including the impact on the victim and the community.

The court concluded that the defendant's previous convictions did warrant a significant discount for his guilty plea, given his repeated disregard for the law and the risk he posed to the community. However, the court determined that the discount should not be as high as the prosecution suggested, as the current offence was particularly egregious and had caused severe harm to the victim. The court also considered the impact on the community and the need for deterrence. Ultimately, the court imposed a sentence that reflected the defendant's previous convictions, the circumstances of the aggravation, and the need for general deterrence. The final orders reflected the court's reasoning and balanced the various factors in the case.

Orders