Regina v Wayne Mark Kopacka [2005] NSWCCA 83

New South Wales Court of Criminal Appeal

CITATION: Regina v Wayne Mark Kopacka [2005] NSWCCA 83

HEARING DATE(S): 10 March 2005

JUDGMENT DATE: 10 March 2005

JUDGMENT OF: Wood CJ at CL at 1, 34, 36; Hislop J at 35; Johnson J at 2

DECISION: 1. Time for filing notice of application for leave to appeal extended to 5 November 2004; 2. leave to appeal granted; 3. appeal dismissed.

CATCHWORDS: CRIMINAL LAW - SENTENCING - Culpable driving causing grievous bodily harm in circumstances of aggravation - Bad record of drink driving offences - Extent of discount for utilitarian value of plea of guilty

LEGISLATION CITED: Crimes Act 1900: s.52A

R v F (1957) 57 SR 543 CASES CITED: R v Thomson and Houlton (2000) 49 NSWLR 383 R v Scott [2003] NSWCCA 286

Wayne Mark Kopacka (Applicant) PARTIES: Regina (Respondent)

FILE NUMBER(S): CCA 2004/2854

Applicant in person COUNSEL: D Woodburne (Respondent)

Applicant in person SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/0302

LOWER COURT JUDICIAL OFFICER: Ellis DCJ

IN THE COURT OF CRIMINAL APPEAL 2004/2854

WOOD CJ at CL HISLOP J JOHNSON J

10 March 2005 REGINA v WAYNE MARK KOPACKA Judgment 1 WOOD CJ at CL: I will ask Justice Johnson to give the first judgment. 2 JOHNSON J: The applicant, Wayne Mark Kopacka, seeks leave to appeal, out of time, against a sentence imposed by his Honour Judge Ellis on 5 February 2004 at the Parramatta District Court, following a plea of guilty to one count of aggravated dangerous driving occasioning grievous bodily harm, the aggravating factor being that the applicant had the prescribed concentration of alcohol present in his blood. The maximum penalty for such an offence under section 52A(4) of the Crimes Act 1900 is imprisonment for eleven years. 3 The applicant was sentenced to a term of imprisonment of four years and six months to date from 5 February 2004 and to expire on 4 August 2008. His Honour fixed a non-parole period of two years and six months to date from 5 February 2004 and to expire on 4 August 2006. In addition, the applicant was disqualified from holding a licence for a period of seven years from 5 February 2004. His Honour recommended to the Roads and Traffic Authority that a licence not be issued to the applicant until evidence is provided that he has rehabilitated himself in terms of his consumption of alcohol. 4 A Notice of Intention to Appeal was filed on 17 February 2004, but a Notice of Application for Leave to Appeal was not filed until 5 November 2004. 5 On 5 February 2004, his Honour Judge Ellis made orders pursuant to s 168 of the Criminal Procedure Act 1986 with respect to certain summary traffic offences which were related to the indictable offence under s 52A(4). Upon application made thereafter, his Honour, on 3 March 2004, set aside the orders made with respect to the summary matters and remitted them to the Local Court for mention on 11 March 2004. It is not necessary to make further reference to these matters for the purposes of determining the present application.