SBF v R

Case [2009] NSWCCA 231 10 September 2009

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Reported Decision: 198 A Crim R 219[2010] ALMD 122[2010] ALMD 123[2010] ALMD 12153 MVR 438

New South Wales

Court of Criminal Appeal

CITATION: SBF v R [2009] NSWCCA 231

HEARING DATE(S): 22 June 2009

JUDGMENT DATE:
10 September 2009

JUDGMENT OF: Spigelman CJ at 1; McClellan CJatCL at 2; Johnson J at 7

DECISION: 1. Time extended for the Applicant to seek leave to appeal against sentences imposed at the Newcastle District Court on 22 August 2008.
2. Leave granted to appeal with respect to sentence.
3. Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW - sentence - aggravated dangerous driving causing death (two counts) - Form 1 offence of aggravated dangerous driving causing grievous bodily harm - 17-year old driver on learner’s permit - grossly excessive speed in residential area - some impairment by alcohol - collision with power pole - 16 and 17-year old passengers killed - 17-year old passenger seriously injured - late pleas of guilty - offender denies being driver until shortly before trial date - sentences of imprisonment imposed - whether error in assessment of aggravating features of offences - whether error in use of victim impact statements of families of deceased victims - whether breach of De Simoni principle in findings of fact - claim that findings amounted to findings of manslaughter - whether sentences manifestly excessive - relevance of offender’s youth, inexperience and immaturity - importance of general deterrence - no error established - sentences not manifestly excessive

LEGISLATION CITED: Crimes Act 1900
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Crimes and Other Acts (Amendment) Act 1974
Crimes (Life Sentences) Amendment Act 1989

CATEGORY: Principal judgment

CASES CITED: The Queen v De Simoni (1981) 147 CLR 383
Clarke v R [2009] NSWCCA 49
R v Jurisic [1998] 45 NSWLR 209
R v Whyte (2002) 55 NSWLR 252
R v Berg [2004] NSWCCA 300
R v Tzanis [2005] NSWCCA 274
House v The King (1936) 55 CLR 499
R v Merritt (2004) 59 NSWLR 557
R v Takai (2004) 149 A Crim R 593
R v Previtera (1997) 94 A Crim R 76
R v Bollen (1998) 99 A Crim R 510
Whybrow v R [2008] NSWCCA 270
Wilson v The Queen (1991) 174 CLR 313
R v Vukic [2003] NSWCCA 13
R v Buttsworth (1983) 1 NSWLR 658
R v Borkowski [2009] NSWCCA 102
Carroll v The Queen (2009) 83 ALJR 579
R v Hooper [2004] NSWCCA 10
Attorney General v Bindoff (1953) 53 SR(NSW) 489
Director of Public Prosecutions v Yeo [2008] NSWSC 953; 51 MVR 157
R v Forbes (2005) 160 A Crim R 1
R v Cameron (2005) 157 A Crim R 70
R v Cramp (1999) 110 A Crim R 198
Nydam v R [1977] VR 430
The Queen v Lavender (2005) 222 CLR 67
Thompson v R [2007] NSWCCA 299
Gillett v R (2006) 166 A Crim R 419
R v Peake (2002) 37 MVR 354; [2002] SASC 303
R v…

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 SBF v R

Details

AGLC: SBF v R [2009] NSWCCA 231
Case: [2009] NSWCCA 231
Decision Date: 10 September 2009

CaseChat Overview and Summary

The case of SBF v R involved a 17-year-old driver who was on a learner’s permit when he drove at grossly excessive speeds in a residential area, resulting in a collision with a power pole. The incident led to the deaths of two teenage passengers, aged 16 and 17, and left a third seriously injured. The driver, initially denying he was at the wheel, entered late pleas of guilty to charges of aggravated dangerous driving causing death and grievous bodily harm. The Supreme Court of Victoria was tasked with sentencing the offender and addressing various legal issues raised in the appeal against sentence.

The key legal issues before the court were whether there were errors in the assessment of aggravating features of the offences, the use of victim impact statements from the families of the deceased victims, and whether the findings of fact breached the De Simoni principle. The appellant also contended that the findings amounted to findings of manslaughter, and that the sentences imposed were manifestly excessive. The court considered the relevance of the offender’s youth, inexperience, and immaturity, as well as the importance of general deterrence.

The court found no errors in the primary judge’s assessment of the aggravating features of the offences or in the use of the victim impact statements. It also concluded that there was no breach of the De Simoni principle, as the findings of fact were not tantamount to findings of manslaughter. The sentences were deemed not to be manifestly excessive, taking into account the gravity of the offences and the need for general deterrence. The youth, inexperience, and immaturity of the offender were considered but did not outweigh the need for a sentence that reflected the seriousness of the crimes committed.

The court dismissed the appeal against sentence, affirming the original sentences of imprisonment imposed. The decision underscores the court's consideration of the gravity of the offences, the impact on the victims' families, and the importance of deterrence in setting an appropriate sentence for such serious driving offences.

Orders