R v TOWNSEND [2010] NSWCCA 336

New South Wales Court of Criminal Appeal

CITATION: R v TOWNSEND [2010] NSWCCA 336

HEARING DATE(S): 15 December 2010

JUDGMENT DATE: 24 December 2010

JUDGMENT OF: Giles JA; Hislop J; RA Hulme J

DECISION: Order previously made: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – appeal – sentencing – dangerous driving causing death – sentenced to 300 hours community service and disqualified from holding driver licence for 12 months – Crown appeal based substantially on alleged error in finding defendant not in a hurry and not speeding, with consequential or additional error in assessing low level of moral culpability and inadequacy of sentence – no impairment of offender's driving ability – evidence of statements at the time by offender that he was late, in a hurry and should not have been speeding – gave evidence that not in hurry and to best of his knowledge not speeding – judge found distressed and upset at the time – no objective evidence of excessive speed – judge found not in a hurry – evidence of statements at the time not uniform – on analysis, statements lacked rationality – judge found momentary inattention or misjudgement – necessary to show error within principles stated in House v The King – findings reasonably open to judge – judge did not automatically reason to low level of moral culpability – assessment of low level of moral culpability open – no errors in relation to other grounds – sentence not manifestly inadequate.

Application by the Attorney General under s 37 of the Crimes (Sentencing Procedure) Act for a guideline judgment concerning the offence of high range prescribed concentration of alcohol under s9(4) of the Road Transport (Safety) and Traffic Management Act 1999 (No 3) of 2002 [2004] NSWCCA 303; DPP v Samadi [2006] NSWCCA 308; McBeth v R [2009] NSWCCA 235; R v Foster [2001] NSWCCA 215; CASES CITED : R v Howland [1999] NSWCCA 10; (1999) 104 A Crim 237; R v Jurisic (1998) 45 NSWLR 209; R v Price [2004] NSWCCA 186; R v Thomson [2000] NSWCCA 209; (2000) 49 NSWLR 383; R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252; Thai v R [2009] NSWCCA 314.