R v Melas [2004] NSWCCA 198

New South Wales Court of Criminal Appeal

CITATION : R v Melas [2004] NSWCCA 198 HEARING DATE(S) : 17 June 2004 JUDGMENT DATE : 17 June 2004

JUDGMENT OF : Grove J at 1; Dowd J at 2; Sperling J at 22 DECISION : Leave to appeal granted; appeal dismissed

CATCHWORDS : Severity appeal - drive in a manner dangerous occasioning death - no lesser sentence warranted LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 R v Jurisic (1999) 101 A Crim R 259 CASES CITED : R v Thompson (2000) 49 NSWLR 383 R v Whyte [2002] NSWCCA 343 PARTIES : Joshua Melas Crown FILE NUMBER(S) : CCA 60090/04 COUNSEL : Appellant: Mr A. Bellanto QC Respondent: Ms J. Girdham SOLICITORS :

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0824 FILE NUMBER(S) : LOWER COURT Shadbolt DCJ JUDICIAL OFFICER :

- 5 - IN THE COURT OF CRIMINAL APPEAL 60090/04

GROVE J DOWD J SPERLING J

Thursday 17 June 2004 REGINA v JOSHUA MELAS Judgment 1 GROVE J: We are in a position to give judgment and I will ask Dowd J to give the first judgment.

2 DOWD J: This is an application for leave to appeal from a sentence imposed on 18 August 2003 on a charge of Driving In A Manner Dangerous Occasioning Death contrary to s52A(1)(c) of the Crimes Act 1900, the maximum penalty for which is ten years' imprisonment. A plea of guilty was entered on 20 November 2002. 3 The applicant, who is some twenty-three years of age, had a sentence imposed by Shadbolt DCJ of three years' imprisonment to commence on 18 August 2003 and to expire on 17 August 2006, with a non-parole period of fifteen months to commence on 18 August 2003 and to expire on 17 November 2004. 4 This was a matter in which it was conceded that the plea of guilty, because of the previous conduct of the proceedings in relation to another charge, was entered at the earliest opportunity. 5 The charge arose out of the following facts. At 4.40pm on Monday, 10 September 2001, the applicant was driving a 2001 model blue Ford Falcon sedan along Constitution Road, Meadowbank in a southward direction. As he approached the intersection of Constitution Road and Federal Road, a 17-year-old, Matthew Marshall, was proceeding to cross a road using a pedestrian refuge marked by metal barricades in the centre of the roadway. There were further metal barricades on the roadway towards either side of the edge of the roadway. 6 He was at the centre of the traffic lane on the eastern side when the applicant hit him, throwing him up into the air so that his body came to rest approximately some fifty metres beyond the pedestrian refuge. The victim died instantly from the injuries sustained. It was a warm, sunny day and the road was dry and in good condition. 7 There was some dispute as to the speed at which the respective experts opined the offender was travelling, but ultimately it was agreed that he was travelling at between 90 and 100 kilometres per hour as he approached the intersection. 8 There was considerable dispute in relation to the tyre marks, and specifically to the issue as to whether they were fifty-one metres or thirty-eight metres in length. It is clear, whatever that distance was, that the applicant saw the deceased, saw what the deceased was doing, registered that he was approaching him at a considerable speed, and that he braked. His Honour, in his remarks on sentence, made certain findings as to the distance of the skid marks. His Honour found there was no erratic or aggressive driving, saying at p 6 of his remarks: "There was no erratic or aggressive driving. If driving in excess of 90 kilometres per hour through a pedestrian refuge killing a young man in the process is not aggressive, then there is none."