Hoeben JA; at [1] Johnson J; at [92] Button J; at [93]
Decision:
Leave to appeal is granted. The appeal is dismissed.
Catchwords:
CRIMINAL LAW - sentence appeal - driving in a manner dangerous occasioning the death of a person and failing to stop after occasioning the death of a person - whether open to sentencing judge to make findings of fact adverse to offender - whether contents of psychological report properly taken into account - whether offender's youth properly taken into account - whether guideline judgment in Regina v Whyte properly taken into account - whether sentences individually and in total manifestly excessive.
Counsel: Mr S Odgers SC - Applicant Ms J Girdham - Respondent Crown
- Solicitors:
Solicitors:Legal Aid of NSW - Applicant S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown
File Number(s):
2009/230937
Decision Under Appeal
- Before:
Conlon DCJ
- Date of Decision:
19 April 2011
- Court File Number(s):
2009/230937
JUDGMENT
HOEBEN JA:
Offences and sentence The applicant was charged with two counts.
(a)On 17 October 2009 driving in a manner dangerous occasioning the death of Jason Stortz, contrary to s 52A(1)(c) Crimes Act 1900 for which the maximum sentence is imprisonment for 10 years.
(b)On 17 October 2009 failing to stop after occasioning the death of Jason Stortz, contrary to s 52AB(1) Crimes Act1900 for which the maximum penalty is imprisonment for 10 years.
The trial with respect to those counts was fixed for hearing before Conlon DCJ and a jury on 9 February 2011. Before the trial commenced, the applicant entered a plea of guilty to the second count but not guilty in respect of the first. The trial then proceeded in relation to the first count. On 23 February 2011 the jury returned a verdict of guilty in respect of the first count.
On 19 April 2011 the…
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.
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Details
AGLC
WW v R [2012] NSWCCA 165
Case
[2012] NSWCCA 165
Decision Date
CaseChat Overview and Summary
The appellant, WW, appealed against his conviction and sentence for driving in a manner dangerous occasioning the death of a person and for failing to stop after occasioning the death of a person. The case was heard in the Court of Criminal Appeal. WW was sentenced to a term of imprisonment with a non-parole period. The appeal raised several issues regarding the sentencing process, including whether it was open to the sentencing judge to make findings of fact adverse to the offender, whether the contents of a psychological report were properly taken into account, and whether the offender's youth and the guideline judgment in Regina v Whyte were properly considered. Additionally, the appeal questioned whether the sentences imposed, both individually and in total, were manifestly excessive.
The court examined the sentencing process and the factors that should be considered when imposing a sentence. The court found that it was open to the sentencing judge to make findings of fact adverse to the offender, as the appellant had not adduced any evidence to rebut the findings made by the sentencing judge. The court also found that the contents of the psychological report were properly taken into account, as the report was provided to both the defence and the prosecution and was considered by the sentencing judge. Regarding the offender's youth, the court found that it was properly taken into account, as the sentencing judge had considered the appellant's age and the impact it may have had on his actions. The court found that the guideline judgment in Regina v Whyte was also properly taken into account, as the sentencing judge had considered the principles set out in that judgment. Finally, the court found that the sentences imposed, both individually and in total, were not manifestly excessive, as they were within the range of sentences that could be imposed for the offences committed.
In conclusion, the appeal was dismissed. The court found that the sentencing judge had properly considered all relevant factors when imposing the sentence and that the sentences imposed were not manifestly excessive. The court found that the appellant's arguments regarding the sentencing process were without merit and that the sentences imposed were appropriate in the circumstances of the case. The appeal was therefore dismissed, and the original sentence was upheld.