Regina v McMillan [2005] NSWCCA 28

New South Wales Court of Criminal Appeal

CITATION: Regina v McMillan [2005] NSWCCA 28

HEARING DATE(S): 23/11/2004

JUDGMENT DATE: 16 February 2005

JUDGMENT OF: Santow JA at 1; Bell J at 2; Howie J at 3

DECISION: (1) The application for an extension of time in which to appeal is granted but the appeal is dismissed; (2) The application for leave to appeal is refused; (3) The Crown appeal is allowed and the sentence imposed by Judge Payne is quashed. In lieu the respondent is sentenced to imprisonment for 4 years to commence on 3 May 2004. There should be a non-parole period of 2 years and 6 months to commence from 3 May 2004 and the respondent is eligible to be released to parole on 2 November 2006.

CATCHWORDS: Appeal - application to go behind plea of guilty - refused - Sentencing - Crown appeal against sentence imposed for aggravated dangerous driving occasioning grievous bodily harm - sentence manifestly inadequate - Crown appeal allowed and the respondent resentenced - Consideration of statistics in relation to an offence under s 52A(3) of the Crimes Act.

Crimes Act 1900 - s 52A LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s21A

Van (2002) 129 A Crim R 229 R v Ganderton (NSWCCA, unreported, 17 September 1998) Liberti (1991) 55 A Crim R 120 R v Whyte (2002) 55 NSWLR 252 R v Jurisic (1990) 45 NSWLR 209 CASES CITED: R v Barton [2001] NSWCCA 63 R v Royal [2003] NSWCCA 275 Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303 R v Baker [2000] NSWCCA 85 R v Wall [2002] NSWCCA 42