Regina v Vale [2004] NSWCCA 469

New South Wales Court of Criminal Appeal

CITATION : Regina v Vale [2004] NSWCCA 469 HEARING DATE(S) : 23/11/04 JUDGMENT DATE : 20 December 2004

JUDGMENT OF : Santow JA at 1; Bell J at 48; Howie J at 49 DECISION : Leave to appeal granted; Appeal allowed, and the orders made by English DCJ quashed. In lieu thereof the applicant is sentenced to a term of imprisonment comprising a non-parole period of two years with that period to commence on 14 August 2003 and to expire on 13 August 2005, the date upon which the applicant is eligible to be released to parole. There should be a balance of the term of the imprisonment of two years and three months which is to commence on 14 August 2005 and to expire on 13 November 2007. The applicant is disqualified from driving for a period of five years, commencing on 14 August 2003.

LEGISLATION CITED : Crimes Act 1900 CASES CITED : The Queen v De Simoni (1980-81) 147 CLR 383 PARTIES : Regina Ian John VALE (aka Walford) (Applicant) FILE NUMBER(S) : CCA 2004/2218 COUNSEL : Mr D Frearson (Crown) Ms H Cox (Applicant) SOLICITORS : S Kavanagh SE O'Connor (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 03/51/0102 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/2218 CCAP

SANTOW JA BELL J HOWIE J

20 DECEMBER 2004 Regina v Ian John VALE (aka Walford) Judgment 1 SANTOW JA: INTRODUCTION The applicant, Ian John Vale (aka Walford), applies pursuant to s5(1)(c) of the Criminal Appeal Act (1912) for leave to appeal against the gravity of the sentence imposed by English DCJ on 15 August 2003. 2 The applicant entered a plea of guilty, and was adjudged truly remorseful and contrite, receiving a reduction in sentence of 25%. The plea was in response to a charge under s52A(1) of the Crimes Act 1900 (NSW), for dangerous driving occasioning death. The sentence was five year's imprisonment (from 14 August 2003 to 13 August 2008) with a non-parole period of two years six months such that the applicant would be eligible for release on 13 February 2006. The applicant was also disqualified from driving for five years. 3 Essentially the grounds of appeal are these: (a) that the sentencing judge took into account as an aggravating factor a fact which would have warranted a conviction for a more serious offence, so breaching the principle that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence; The Queen v De Simoni (1980-81) 147 CLR 383 at 389 per Gibbs CJ, (b) the sentencing judge made a finding that the death of the victim was an aggravating feature of the offence when the death of the victim was in fact an element of the offence, and (c) the sentence imposed was manifestly excessive.