Bates v R [2020] NSWCCA 259

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Bates v R [2020] NSWCCA 259 Hearing dates: 25 September 2020 Decision date: 07 October 2020 Before: Simpson AJA at [1] Rothman J at [2] Bellew J at [3] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – Sentence – Appeal – Offences of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm – Where applicant was driving a B-double vehicle along a motorway – Applicant took eyes off the road in order to retrieve a drink and removed both hands from the wheel – Vehicle suddenly left the northbound carriageway, crossed a wide median strip and entered the southbound carriageway where it collided with another vehicle killing the passenger and severely injuring the driver – Two drivers behind forced to take evasive action and collided with the trailer of the applicant's truck after it had come to rest – Where sentencing judge found that this was not a case of momentary inattention – Whether this was a "typical" case of the kind identified in R v Whyte – Whether aggregate sentence of 4 years and 6 months' imprisonment with a non-parole period of 3 years' imprisonment was manifestly excessive – Serious offending – Not a typical case attracting the strict application of the guideline – Level of notional accumulation justified having regard to the injuries sustained to the driver – Finding of manifest excess not supported by reference to sentencing outcomes in other cases – Leave to appeal granted – Appeal dismissed Legislation Cited: Crimes Act 1900 (NSW) Cases Cited: Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 FL v R [2020] NSWCCA 114 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Moodie v R [2020] NSWCCA 160 Preston v R (2011) 57 MVR 346; [2011] NSWCCA 25 R v Clampitt-Wotton (2002) 37 MVR 340; [2002] NSWCCA 383 R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 Vaiusu v R [2017] NSWCCA 71 Category: Principal judgment Parties: Jeffrey Bates – Applicant Regina – Respondent Representation: Counsel: L Brasch – Applicant M Kumar – Respondent