R v Dandachli [2004] NSWCCA 100

New South Wales Court of Criminal Appeal

CITATION : R v Dandachli [2004] NSWCCA 100 HEARING DATE(S) : 31 March 2004 JUDGMENT DATE : 16 April 2004

JUDGMENT OF : Sperling J at 1; Hidden J at 29; Howie J at 30 DECISION : 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS : Criminal Law - dangerous driving causing death - dangerous driving causing grievous bodily harm - appeal against severity of sentence - where plea of guilty - where aggravating factors establishing a high degree of moral culpability - manner of determining non-parole period - lesser sentence not warranted in law Crimes Act 1900, s52A LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999, s44 Criminal Appeal Act 1912, s6 Jurisic (1998) 45 NSWLR 209 CASES CITED : Power (1974) 131 CLR 623 Simpson (2001) 53 NSWLR 704 Whyte (2002) 55 NSWLR 252 PARTIES : Regina Moustafa Dandachli FILE NUMBER(S) : CCA 60472/03 COUNSEL : Mr B Knox SC for the Crown Mr M Buscombe for the Applicant SOLICITORS : Director of Public Prosecutions Legal Aid Commission for the Applicant

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/1258 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER :

- 10 - IN THE COURT OF CRIMINAL APPEAL 60472/03

Sperling J Hidden J Howie J

Friday, 16 April 2004 Regina v Moustafa Dandachli Judgment 1 Sperling J: On 17 March 2003, the applicant pleaded guilty in the District Court to an indictment containing one count of driving in a manner dangerous causing death (s52A(1) Crimes Act 1900), and one count of driving in a manner dangerous causing grievous bodily harm (s52A(3) Crimes Act). On 26 May 2003, Dodd DCJ sentenced the applicant, in relation to the first count, to imprisonment for four years with a non-parole period of three years, and in relation to the second count to a fixed term of imprisonment for three years. These sentences were directed to be served concurrently and to date from 23 May 2003, that being the first date on which the applicant went into custody. The applicant was also disqualified from driving for a period of five years. 2 The applicant now seeks leave to appeal in respect of the non-parole period which was fixed for the first count, upon the ground that his Honour erred in declining to find special circumstances and in failing to reduce the non-parole period accordingly. In the event of that application being successful and leading to a reduction of the non-parole period, it is contended that the fixed term for the second count should be similarly reduced.