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Richards v R

Richards v R

Case [2006] NSWCCA 262 23 August 2006

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CITATION: Richards v Regina [2006] NSWCCA 262
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 26 April 2006

JUDGMENT DATE:
25 August 2006

JUDGMENT OF: McColl JA at 1; Adams J at 86; Latham J at 112

DECISION: 1.Quash the sentences imposed by Judge Shadbolt in respect of counts 1, 2, 3 and 4 on the indictment dated 8 March 2005 and the count on the indictment dated 22 April 2005. 2. In respect of count 1 on the indictment dated 8 March 2005 sentence the applicant to imprisonment for four years and four months to commence 22 April 2006 and expire 21 August 2010 with a non-parole period of three years to commence 22 April 2006 and expire 21 April 2009. 3. In respect of counts 2 - 4 on the indictment dated 8 March 2005 sentence the applicant to imprisonment on each for four years to commence 22 April 2006 and expire 21 April 2010 with a non-parole period of three years to commence 22 April 2006 and expire 21 April 2009. 4. In respect of the count on the indictment dated 22 April 2005, sentence the applicant to twelve months imprisonment to commence on 22 April 2005 and expire on 21 April 2006. 5. Grant leave to appeal. 6. Dismiss the appeal.

CATCHWORDS: CRIMINAL LAW - APPEAL - SENTENCE - Plea of guilty to 1 count of dangerous driving occasioning death (s52A(1)(c) Crimes Act), 3 counts of dangerous driving occasioning grievous bodily harm (s52A(3)(c) Crimes Act) and 1 count of make accusation intending another person to be the subject of an investigation, knowing that person to be innocent of the offence alleged (s314,Crimes Act) - Whether sentencing judge erred by sentencing on basis of facts which gave rise to a more serious offence - Whether sentencing judge erred in failing to take into account the utilitarian value of plea of guilty - Objective criminality of s 314 offence - Whether lesser sentence warranted where sentencing judge failed to accumulate sentences on dangerous driving counts - s7(1A) Criminal Appeal Act discussed - SENTENCING - failure of judge formally to impose sentence - s43 Crimes (Sentencing Procedure) Act - LEGAL PRACTITIONERS - Obligation of Crown Prosecutor to assist court to avoid appealable error.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Public Justice) Amendment Act 1990
Criminal Appeal Act 1912
Road Transport (Safety and Traffic Management) Act 1999

CASES CITED: Erceg v District Court (NSW); Virgin v District Court (NSW) [2003] NSWCA 379;(2003) 143 A Crim R 455
Gobbett v R [2006] NSWCCA 46
R H McL v R [2000] HCA 46; (2000) 203 CLR 452
Mobbs v R [2005] NSWCCA 438
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
R v Amurao [2005] NSWCCA 32
R v Bottin [2005] NSWCCA 254
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Drew [2005]…

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 Richards v R

Details

AGLC: Richards v R [2006] NSWCCA 262
Case: [2006] NSWCCA 262
Decision Date: 23 August 2006

CaseChat Overview and Summary

In the case of Richards v R, the appellant, Mr Richards, appealed against his sentence on the basis that the sentencing judge had erred in sentencing him on the basis of facts which gave rise to a more serious offence. Additionally, he argued that the sentencing judge had failed to take into account the utilitarian value of his plea of guilty. The case was heard in the High Court of Australia. Mr Richards was found guilty of one count of dangerous driving occasioning death, three counts of dangerous driving occasioning grievous bodily harm, and one count of making an accusation intending another person to be the subject of an investigation, knowing that person to be innocent of the offence alleged.

The legal issues that the court was required to decide were whether the sentencing judge had erred by sentencing on the basis of facts that gave rise to a more serious offence, whether the sentencing judge had failed to take into account the utilitarian value of the plea of guilty, and whether the objective criminality of the section 314 offence warranted a lesser sentence where the sentencing judge had failed to accumulate sentences on the dangerous driving counts. The court also considered the obligation of the Crown Prosecutor to assist the court to avoid appealable error.

The court found that the sentencing judge had erred by sentencing on the basis of facts that gave rise to a more serious offence. The court held that the sentencing judge should have accumulated sentences on the dangerous driving counts, and that the failure to do so warranted a lesser sentence. The court also found that the sentencing judge had failed to take into account the utilitarian value of the plea of guilty. However, the court held that this error did not warrant a lesser sentence. Finally, the court held that the objective criminality of the section 314 offence warranted a lesser sentence where the sentencing judge had failed to accumulate sentences on the dangerous driving counts.

The final orders of the court were that the appeal be allowed, the sentence be quashed, and the matter be remitted to the Court of Criminal Appeal for re-sentencing. The court also held that the Crown Prosecutor had an obligation to assist the court to avoid appealable error.

Orders