R v Kilborn [2001] NSWCCA 116

New South Wales Court of Criminal Appeal

CITATION : R v Kilborn [2001] NSWCCA 116 FILE NUMBER(S) : CCA 60329/00 HEARING DATE(S) : 30 March 2001 JUDGMENT DATE : 30 March 2001

PARTIES : Regina Jonathon David Kilborn JUDGMENT OF : Wood CJatCL at 1; Greg James J at 28

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/1028 LOWER COURT JUDICIAL Shadbolt DCJ OFFICER :

COUNSEL : Crown: Mr. M. Marien Appellant Mr. P.D.J. Hamill SOLICITORS : S.E. O'Connor D.J. Humphreys CATCHWORDS : CRIMINAL LAW - appeal - appeal against sentence - material taken into account which was not in evidence - sentence imposed manifestly excessive - subjective factors to be taken into account LEGISLATION CITED : Crimes Act 1900 s 52A(3)(a) Crimes (Sentencing Procedure Act) 1999 s 50 DECISION : (1) Appeal allowed. ; (2) Sentence quashed and new sentence imposed of two and a half years imprisonment with a non-parole period of 15 months.

IN THE COURT OF CRIMINAL APPEAL

No. 60329 of 2000

WOOD CJ at CL Greg James J 30 March 2001 Regina v Kilborn JUDGMENT

The applicant pleaded guilty to the offence of dangerous driving occasioning grievous bodily harm under s 52A(3)(a) Crimes Act on the basis of intoxication. He was sentenced to three years imprisonment with a non-parole period of two years. The applicant seeks leave to appeal against the sentence on the grounds that (1) his Honour took into account material which was not in evidence; (2) the sentence was manifestly excessive.

Held: (Allowing the appeal):

Ground 1: Material not in evidence The statement of facts recorded that the applicant was traveling at 70km per hour in a 60km per hour zone. A statement given by a witness indicated that the applicant's vehicle was traveling at 100km per hour. This statement was not in evidence before the sentencing Judge. The sentencing Judge's reference to the speed of the vehicle was in error. His Honour should not have taken this statement into account. This aspect of the case was left in an unsatisfactory position.