Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Westaway v R [2016] NSWCCA 281 Hearing dates: 2 November 2016 Decision date: 09 December 2016 Before: Macfarlan JA at [1];
R A Hulme J at [28];
Bellew J at [29]Decision: (1) Grant the applicant leave to appeal.
(2) Appeal dismissed.Catchwords: CRIMINAL LAW – sentence appeal – police pursuit, resist police, drug and damage property offences – aggregate sentence of 4 years imprisonment (after 25% early guilty plea discount) not manifestly excessive Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 53A Cases Cited: JM v R [2014] NSWCCA 297
Kerr v R [2016] NSWCCA 218Category: Principal judgment Parties: John Warren Westaway (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
S Fraser (Applicant)
D T Kell SC / M Pulsford (Respondent)
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2014/344454 Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Criminal
- Citation:
- [2015] NSWDC 97
- Date of Decision:
- 19 June 2015
- Before:
- Mahony SC DCJ
- File Number(s):
- 2014/344454
Judgment
-
MACFARLAN JA: On 16 June 2015 the applicant, Mr John Westaway, appeared in the District Court for sentencing for four offences, to which he had earlier pleaded guilty, arising out of incidents that occurred on 21 November 2014.
-
On 19 June 2015 the sentencing judge imposed an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) comprising a non-parole period of 2 years 3 months to commence on 19 April 2015 with a balance of term of 1 year 9 months, amounting to a total term of imprisonment of 4 years.
-
The offences, specified maximum penalties and the indicative sentences that his Honour identified pursuant to s 53A(2)(b) of that Act were as follows:
Count
Offence
Max Penalty
Indicative
Sentence
1
Drive vehicle in Police Pursuit – not stop and drive in manner dangerous to others
s.51B(1) Crimes Act 1900
3 years imprisonment
Disqual (auto)
5 years
2 years
5 yrs
Disqualification
2
Resist officer in the execution of duty
s.58 Crimes Act 1900
5 years
imprisonment
9 months
Imprisonment
3
Supply a Prohibited Drug
(Methylamphetamine)
s.25(1) Drug Misuse and Trafficking Act 1985
15 years
imprisonment
and/or fine
$220,000
18 months
Imprisonment
4
Damage property
s.195(1)(a) Crimes Act 1900
5 years
imprisonment
6 months
imprisonment
-
The applicant seeks leave to appeal against the aggregate sentence that was imposed upon the ground that it is manifestly excessive.
The factual circumstances
-
The facts giving rise to the offences were not in issue. They were summarised by the sentencing judge as follows:
“6 At 11pm on Friday 21 November 2014 the offender was observed driving a white Nissan sedan bearing Queensland registration … in a westerly direction along Burra Road at approximately 130 kph in a 100 kph signposted area. Police activated warning devices, however, the offender continued to drive and a pursuit was engaged. That pursuit was captured by in-car video in the police vehicle. The offender was observed to be…
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- AGLC
- Westaway v The Queen [2016] NSWCCA 281
- Case
- [2016] NSWCCA 281
- Decision Date
CaseChat Overview and Summary
The court recognised that Mr Westaway's criminal conduct was serious, involving a high-speed police chase, drug possession, and property damage. However, the court also noted that Mr Westaway had a relatively clean criminal record prior to this incident and had shown remorse. The court considered the principles of proportionality and individualisation, which require that the sentence be proportionate to the seriousness of the offence and tailored to the individual offender. In applying these principles, the court concluded that while the sentence was undoubtedly substantial, it was not manifestly excessive in the circumstances of this case.
After carefully considering the arguments and evidence presented, the court found that the sentence imposed was not manifestly excessive. The court emphasised the importance of the early guilty plea discount in reducing the overall sentence, and the need to ensure that the sentence achieved the appropriate balance between punishment, deterrence, and rehabilitation. The court was satisfied that the sentence imposed achieved these objectives and was therefore not manifestly excessive. The appeal against sentence was dismissed, and the original sentence was upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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