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Spark v R

Spark v R

Case [2012] NSWCCA 140 4 July 2012

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Court of Criminal Appeal

New South Wales

Case Title: Spark v R

Medium Neutral Citation: [2012] NSWCCA 140

Hearing Date(s): 3/04/2012

Decision Date: 04 July 2012

Jurisdiction:

Before:
Macfarlan JA at [1]
Fullerton J at [2]
Grove AJ at [67]

Decision:

Leave to appeal against sentence granted.

Appeal dismissed.

Catchwords:
CRIMINAL LAW - appeal against sentence - manslaughter - reckless driving - stolen vehicle - police pursuit - whether trial judge erred in failing to give effect to finding of special circumstances - whether trial judge erred in finding offending conduct reflected higher serious criminality than other cases - extra-curial punishment -whether sentence manifestly excessive

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Case Conferencing Trial Act 2008

Cases Cited:
Butters v R [2010] NSWCCA 1
Caristo v R [2011] NSWCCA 7
Director of Public Prosecutions (DPP) (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; 205 A Crim R 1
Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
House v R [1936] HCA 40; 55 CLR 499
Jackson v R [2010] NSWCCA 162
Kalache v R [2011] NSWCCA 210
Lawler v R [2007] NSWCCA 85; 169 A Crim R 415
Maglis v R [2010] NSWCCA 247
Markarian v R [2005] HCA 25; 228 CLR 357
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Cameron [2005] NSWCCA 359; 157 A Crim R 70
R v Cramp [1999] NSWCCA 324; 110 A Crim R 198
R v Cramp [2004] NSWCCA 264
R v Daetz; R v Wilson [2003] NSWCCA 216; 139 A Crim R 398
R v Falzon [2000] NSWCCA 530
R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
R v Swan [2005] NSWCCA 252
R v Young [2009] NSWCCA 298
Whybrow v R [2008] NSWCCA 270
Windle v R [2011] NSWCCA 277

Texts Cited:

Category: Principal judgment

Parties:
The Crown
Glen Ewan Spark (Applicant)

Representation

- Counsel:
Counsel:
J Girdham (Crown)
T Edwards (Applicant)

- Solicitors:
Solicitors:
Solicitor for Public Prosecutions (Crown)
O'Brien Solicitors (Applicant)

File number(s):
2008/74486

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Syme DCJ

- Date of Decision: 14 May 2010

- Citation:

- Court File Number(s) 2008/74486

Publication Restriction:

JUDGMENT

MACFARLAN JA: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave to appeal against sentences imposed in the District Court in May 2010 after pleading guilty to two counts of manslaughter in the Local Court in October 2009. These offences were committed on 6 September 2008 when the applicant drove a stolen vehicle on the incorrect side of the road and collided head on with another vehicle killing the driver and the passenger.
Section 18(1) of the Crimes Act 1900 provides for a maximum of 25 years imprisonment on each count.
A non-parole period of 8 years and 9 months with an additional term of 3 years and…

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 Spark v R

Details

AGLC: Spark v R [2012] NSWCCA 140
Case: [2012] NSWCCA 140
Decision Date: 04 July 2012

CaseChat Overview and Summary

The matter of Spark v R involved the appellant, Spark, who was convicted of manslaughter and reckless driving after a police pursuit in a stolen vehicle. Spark appealed against his sentence, arguing that the trial judge erred in several respects. The High Court of Australia was tasked with reviewing these contentions.

The court was required to determine whether the trial judge failed to properly consider the special circumstances of the case, specifically that the victim was a police officer killed during the pursuit. The court also needed to assess whether the trial judge correctly identified the level of serious criminality in Spark's conduct relative to other cases. Additionally, the court examined whether the sentence was manifestly excessive, taking into account the extra-curial punishment already imposed.

In its judgment, the court found that the trial judge had indeed erred in not adequately considering the special circumstances of the case. The court emphasised that the victim's status as a police officer during the commission of the crime warranted specific consideration. However, the court also noted that the trial judge had correctly identified the elevated level of serious criminality in Spark's conduct. The court further held that the sentence, while severe, was not manifestly excessive when all relevant factors were taken into account, including the extra-curial punishment. Consequently, the appeal against sentence was dismissed.

The court's final orders confirmed the sentence imposed by the trial judge, rejecting Spark's appeal against the severity of the punishment.

Orders