MITRESKI v R; R v MITRESKI [2008] NSWCCA 301

Appeal Outcome: Special leave refused by the High Court - 11 December 2009

New South Wales Court of Criminal Appeal

CITATION: MITRESKI v R; R v MITRESKI [2008] NSWCCA 301

HEARING DATE(S): 25 November 2008

JUDGMENT DATE: 11 December 2008

JUDGMENT OF: Giles JA at 1; Latham J at 2; Mathews AJ at 64

1. Appeal against conviction dismissed. 2. The sentences imposed by Graham ADCJ on 13 June 2008 are quashed. DECISION: 3. On the first count, the respondent is sentenced to a non parole period of two years to date from 21 June 2008, expiring 20 June 2010, with a balance of term of one year, expiring 20 June 2011. 4. On the second count, the respondent is sentenced to a non parole period of two years, to date from 21 October 2008, expiring 20 October 2010, with a balance of term of one year, expiring 20 October 2011. 5. The disqualification period of three years from 3 April 2008 is confirmed.

CATCHWORDS: CRIMINAL LAW - Conviction appeal - Dangerous Driving Causing Death - whether verdicts were unreasonable - Crown case based on excessive speed and management of vehicle - appellant's account admitted excessive speed - jury not bound to accept the appellant's account where evidence of actual speed was indeterminate - Crown appeal against inadeqate sentences - whether judge required to find speed of respondent's vehicle for purposes of sentencing - effect of jury verdicts - erroneous characterisation of respondent's liability based upon momentary inattention - failure to apply guideline judgment re Dangerous Driving.

LEGISLATION CITED: Crimes Act 1900

R v Jurisic (1998) 45 NSWLR 209 R v Whyte (2002) 55 NSWLR 252 R v Khatter [2000] NSWCCA 32 R v Davies [2000] NSWCCA 84 CASES CITED : R v Dunlop [2001] NSWCCA 435 R v Romanic [2000] NSWCCA 524 R v Guilfoyle (1973) 57 Cr App R 549 R v Musumeci (unreported) NSWCCA 30 October 1997 R v Bailey [2001] NSWCCA 10 R v Sopher (1993) 70 A Crim R 570