Peberdy v R [2023] NSWCCA 144

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Peberdy v R [2023] NSWCCA 144 Hearing dates: 9 December 2022 Decision date: 21 June 2023 Before: Davies J at [1]; Ierace J at [2]; R A Hulme AJ at [120] Decision: (1) Grant leave to appeal; (2) Appeal dismissed. Catchwords: CRIME – Appeals – Appeal against sentence – Dangerous driving offences arising from fatal head-on vehicle collision – Where sentencing judge found matter was "not one of momentary inattention" – Whether purported factual errors caused sentencing discretion to miscarry – Whether error in assessments of objective seriousness and moral culpability Legislation Cited: Crimes Act 1900 (NSW), s 52A Cases Cited: Fuller v R [2022] NSWCCA 203 House v The King (1936) 55 CLR 499; [1936] HCA 40 R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 Category: Principal judgment Parties: David William Peberdy (Applicant) Rex (Respondent) Representation: Counsel: D Randle (Applicant) S Traynor (Respondent)

Solicitors: Anderson Boemi Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2020/102755 Decision under appeal Court or tribunal: District Court Date of Decision: 4 March 2022 Before: N Williams DCJ File Number(s): 2020/102755

JUDGMENT 1. DAVIES J: I agree with Ierace J. 2. IERACE J: The applicant seeks leave to appeal from a sentence imposed on him on 4 March 2022 by N Williams DCJ following his pleas of guilty to two counts of dangerous driving occasioning death, contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW), and two counts of dangerous driving occasioning grievous bodily harm, contrary to s 52A(3)(c) of the Crimes Act. 3. The maximum penalty for an offence against s 52A(1)(c) is 10 years imprisonment and against s 52A(3)(c) is 7 years. Neither type of offence has a standard non-parole period. The applicant received an aggregate sentence of 5 years' imprisonment to commence from the date of sentence and expire on 3 March 2027, with a non-parole period of 3 years which will expire on 3 March 2025. He received concurrent periods of disqualification from driving for a period of 3 years in respect of each offence, which will apply from the date of his release back into the community. 4. The applicant has advanced two grounds of appeal, which are as follows. "Ground 1 The learned sentencing judge mistook key facts with regard to the available evidence concerning the applicant's driving conduct, causing the sentencing discretion to miscarry. Ground 2 The learned sentencing judge erred in the characterisation of the objective seriousness of the subject driving."