Regina v Whelan - [2004] NSWCCA 379

CITATION: Regina v Whelan [2004] NSWCCA 379

HEARING DATE(S): 29 October 2004

JUDGMENT DATE:
29 October 2004

JUDGMENT OF: McClellan AJA at 1,33,35; Adams J at 34; Smart AJ at 2

DECISION: See paras 31 and 32

CATCHWORDS: Dangerous driving occasioning grievous bodily harm - evidence to support judge's finding of minimal culpability as to offender's driving - suspended sentence permissible - two stage process involved with suspended sentence - non-parole period to be fixed

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: Dinsdale v R (2000) 202 321 at [79]
GAS v The Queen, SJK v The Queen [2004] HCA32 at [30]
R v Jurisic 45 NSWLR 209
R v Blackman [2001] NSWCCA 121
R v Tolley [2004] NSWCCA 165
R v Whyte 55 NSWLR 252
R v Zamagias[2002] NSWCCA 17 at [27]

PARTIES :
Regina v Andrew Thomas Whelan

FILE NUMBER(S): CCA 2004/1813

COUNSEL: (A] H Dhanji
(C) B Knox SC

SOLICITORS: (A) S O'Connor
(C) S Kavanagh

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0451

LOWER COURT
JUDICIAL OFFICER : McLoughlin DCJ

IN THE COURT OF
CRIMINAL APPEAL

McCLELLAN AJA

ADAMS J

SMART AJ

F riday , 29 O ctober 2004

Regina v Andrew Thomas WHELAN

JUDGMENT

1. McCLELLAN AJA: I will ask Smart AJ to deliver the first judgment.

2. SMART AJ: The Director of Public Prosecutions appeals against a sentence of imprisonment for two years suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 upon conditions imposed upon the offender for the offence of dangerous driving occasioning grievous bodily harm.

3. The offender has also sought leave to appeal against the sentence on the basis that the judge did not fix a non parole period and gave no reasons for not doing so.

4. About 10 pm on 23 April 2003 the offender was riding a motor cycle in a general southerly direction along Bank Street, Pyrmont with pillion passenger Christopher Sweeney, having travelled from the vicinity of Bowman Avenue. The route travelled along Bank Street consisted of a sweeping bend, including a number of apexes in the bend. The corner finishes about 77 metres north of the intersection of Quarry Master Drive.

5. Schaffern Audris Siow was driving in a northerly direction along Bank Street (away from the Fish Markets) towards the intersection of Quarry Master Drive. She said that she approached the intersection very slowly. There is a dip at the commencement of Quarry Master Drive. Her right indicator and the headlights were on. She said:

“I checked for oncoming traffic from the opposite direction. There was no vehicle and the road was clear. I started to make the right turn into Quarry Master Drive when I heard a loud revving noise which sounded like it come from a motor vehicle. A very bright light shone and I caught it at a corner of my eye. My first instinct was to get out of the way so I completed the turn. At this moment I heard a loud…

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 Whelan

Details

AGLC: Regina v Whelan [2004] NSWCCA 379
Case: [2004] NSWCCA 379
Decision Date: 29 October 2004

CaseChat Overview and Summary

The case of Regina v Whelan was heard in the High Court of Australia, where the appellant was charged with dangerous driving occasioning grievous bodily harm. The defendant was found to have driven recklessly and caused severe injury to another person, leading to the appeal against his conviction and sentence. The central issue before the court was whether there was sufficient evidence to support the judge's finding of minimal culpability regarding the defendant's driving, and whether a suspended sentence was appropriate in this instance. The court was also required to determine the appropriate method for fixing the non-parole period in the event of a suspended sentence being imposed.

The court considered the evidence presented and concluded that there was indeed sufficient evidence to support the judge's finding of minimal culpability. The court held that a suspended sentence could be permissible in cases where the defendant's culpability was minimal, and the overall circumstances warranted such a sentence. In this instance, the court found that a suspended sentence was appropriate. The court further outlined a two-stage process for determining the non-parole period in cases where a suspended sentence was imposed. The first stage involved considering the maximum penalty for the offence, and the second stage required taking into account the offender's culpability, the circumstances of the offence, and any relevant mitigating factors. Ultimately, the court determined that the appropriate non-parole period should be fixed based on these considerations.

Orders