Regina v Gardiner [2004] NSWCCA 365

New South Wales Court of Criminal Appeal

CITATION : Regina v Gardiner [2004] NSWCCA 365 revised - 22/10/2004 HEARING DATE(S) : 6 October 2004 JUDGMENT DATE : 20 October 2004

JUDGMENT OF : Spigelman CJ at 1; Grove J at 2; Smart AJ at 3 DECISION : Leave to appeal against sentence granted; appeal dismissed.

CATCHWORDS : Driving prime mover and trailer under the influence of a drug - colliding with vehicle in front, forcing it off the road and thereby killing its driver - need to have regard to combination of circumstances in assessing moral culpability - Jurisic and Whyte not exhaustive - 4 years with 2-1/2 years non-parole period not excessive LEGISLATION CITED : Crimes Act 1900 CASES CITED : R v Jurisic (1998) 45 NSWLR 209 R v Whyte [2003] NSWCCA 343 PARTIES : Regina v Tracey Gardiner FILE NUMBER(S) : CCA 2004/1867 CCAP COUNSEL : (A) T J Golding (C) P Miller SOLICITORS : (A) V Havryliv (C) S Kavanagh

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/13339 FILE NUMBER(S) : LOWER COURT Sorby DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/1867 CCAP

SPIGELMAN CJ GROVE J SMART AJ Wednesday, 20 October 2004

Tracey Gardiner v Director of Public Prosecutions Judgment

1. SPIGELMAN CJ: I agree with Smart AJ

2. GROVE J: I agree with Smart AJ

3. SMART AJ: Tracey Gardiner seeks leave to appeal against a sentence of imprisonment of 4 years with a non-parole period of 2 years 6 months for the offence of driving whilst under the influence of a drug causing death contrary to s 52A(1)(a) of the Crimes Act 1900. The maximum penalty is 10 years imprisonment.