Preston v Regina [2011] NSWCCA 25

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Preston v Regina [2011] NSWCCA 25 Hearing dates: 15 February 2011 Decision date: 02 March 2011 Before: Beazley JA at 1; Hidden J at 51; RA Hulme J at 52 Decision: 1. Grant leave to appeal against sentence. 2. Appeal allowed. 3. Set aside the sentence imposed by the sentencing judge. 4. Sentence the applicant to a term of imprisonment comprising a non-parole period of 18 months and a balance of term of 18 months. The sentence is to date from 24 November 2009. The total sentence will conclude on 23 November 2012. The applicant is to be released on parole upon the expiration of the non-parole period on 23 May 2011. 5. Set aside the period of licence disqualification ordered by his Honour. 6. Order that the applicant be disqualified from driving for a period of 2 years, such period of disqualification to date from 24 November 2009. Catchwords: CRIMINAL LAW - sentence - appeal against sentence and period of licence disqualification - whether the sentencing judge erred in his assessment of the aggravating features of the offence - whether the sentence was manifestly excessive - sentencing judge correctly held the offence was not due to momentary inattention - no evidentiary basis for the finding that conduct was due to a time imperative - low moral culpability - sentence imposed was manifestly excessive Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Road Transport (General) Act 2005 Cases Cited: R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 Category: Principal judgment Parties: Edward Sydney Preston (Applicant) Regina (Respondent) Representation: Counsel: P O'Donnell (Applicant) J Pickering (Respondent) Solicitors: Barry F Cosier & Associates (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/1976 Decision under appeal Citation: R v Edward Sydney Preston Date of Decision: 2010-04-01 00:00:00 Before: Blackmore DCJ File Number(s): 2009/1976