Thai v R

Case [2009] NSWCCA 314 22 December 2009

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New South Wales
Court of Criminal Appeal

CITATION: Thai v R [2009] NSWCCA 314
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16 December 2009

JUDGMENT DATE:
22 December 2009

JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 8; Hidden J at 66

DECISION: (i) Leave to appeal granted;
(ii) Appeal allowed;
(iii) In lieu of the sentence imposed in the District Court, the applicant be sentenced to a fixed term of imprisonment for 15 months commencing on 18 April 2009 and expiring on 17 July 2010, to be served by way of periodic detention.

CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - dangerous driving causing death - momentary inattention - term of periodic detention - whether manifestly excessive

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154
R v Hallocoglu (1992) 29 NSWLR 67; (1992) 63 A Crim R 287
R v Jurisic (1998) 45 NSWLR 209
R v Overall (1993) 71 A Crim R 170
R v Pangallo (1991) 56 A Crim R 441
R v Roberts, Lewis and McVean (1994) 73 A Crim R 306
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Wegener [1999] NSWCCA 405
R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
R v Zamagias [2002] NSWCCA 17
Reed v R [2007] NSWCCA 4

PARTIES: Thanh Vinh Thai (Applicant)
The Crown

FILE NUMBER(S): CCA 2008/676

COUNSEL: W Hunt (Applicant)
V Lydiard (Crown)

SOLICITORS: Legal Aid Commission of NSW (Applicant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 008/676

LOWER COURT JUDICIAL OFFICER: Murrell DCJ

LOWER COURT DATE OF DECISION: 3 April 2009

2008/676

McCLELLAN CJ at CL
SIMPSON J
HIDDEN J
22 December 2009

Thanh Vinh THAI v R

Judgment

1 McCLELLAN CJ at CL: I have had the benefit of reading the judgment of Simpson J in draft.

2 I share her Honour’s view that the sentence was in the present case manifestly excessive. This conclusion is informed by consideration of the guidance provided with respect to this type of offence, inter alia, by the decisions of this Court in R v Jurisic(1998) 45 NSWLR 209 and R v Whyte [2002] NSWCCA 343; 55 NSWLR 252. As Simpson J has indicated, in Whyte, this Court confirmed that where an offender’s moral culpability is high, in the case of death a sentence of less than 3 years imprisonment would generally not be appropriate. High moral culpability may be present where an offender is found to have abandoned responsibility for their driving.

3 Both in Jurisic and Whyte this Court recognised that there will be circumstances where the moral culpability of an offender may be of a lower order and may justify only the imposition of…

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 Thai v R

Details

AGLC: Thai v R [2009] NSWCCA 314
Case: [2009] NSWCCA 314
Decision Date: 22 December 2009

CaseChat Overview and Summary

The applicant, Thai, sought leave to appeal against a sentence imposed by the County Court of Victoria, following his conviction for dangerous driving causing death. Thai was driving a car when he momentarily lost focus, resulting in a collision with a motorcycle, leading to the death of the motorcyclist. Thai had no prior criminal history and had cooperated with the authorities post-incident. The County Court sentenced Thai to imprisonment with a term of periodic detention, a decision he now sought to challenge on the grounds that the sentence was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The court had to consider whether the term of periodic detention was unjust in the circumstances of the case, particularly given Thai's momentary inattention as opposed to a deliberate or reckless act. The court also examined the sentencing principles applicable to cases of dangerous driving causing death and whether the sentence adequately reflected the gravity of the offence while considering Thai's personal circumstances.

The court found that while the loss of life was a tragic outcome, the circumstances did not warrant a sentence that deviated significantly from the norm for similar offences. The court acknowledged the impact of momentary inattention but held that the sentence imposed was within the appropriate range. The court concluded that the term of periodic detention was not manifestly excessive, considering the principles of proportionality and deterrence. The application for leave to appeal was therefore dismissed.

No further orders were made by the court.

Orders