R v AB [2011] NSWCCA 229

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v AB [2011] NSWCCA 229 Hearing dates: 16 August 2011 Decision date: 14 October 2011 Before: Bathurst CJ at 1 Hoeben J at 4 Johnson J at 5 Decision: Crown appeal allowed. Sentences imposed in the District Court on 9 March 2011 with respect to the first, second, third and fourth counts are quashed. In their place, the Respondent is sentenced to an aggregate sentence of imprisonment of six years and seven months commencing on 28 May 2010 and expiring on 27 December 2016. A single non-parole period of four years and nine months is fixed commencing on 28 May 2010 and expiring on 27 February 2015. The sentence imposed in the District Court on 9 March 2011 for the offence of driving whilst disqualified, pursuant to a certificate under s.166 Criminal Procedure Act 1986 , is confirmed. The orders for disqualification made in the District Court on 9 March 2011 are confirmed. The earliest date upon which the Respondent will be eligible for release on parole is 28 February 2015. Catchwords: CRIMINAL LAW - Crown sentence appeal - pleas of guilty - three counts of dangerous driving occasioning grievous bodily harm - one count of take and drive vehicle without consent - three victims were passengers in Respondent's vehicle - 15-year old victim rendered a C2 tetraplegic - 18-year old son of Respondent loses an arm - 15-year old son of Respondent suffers multiple fractures - Respondent a 44-year old man who had never held a driver's licence - disqualified driver at time of collision - finding by sentencing Judge of high level of moral culpability - speed and alcohol - challenge by Crown to levels of accumulation and to total effective sentence - error demonstrated - non-parole period and head sentence both manifestly inadequate - Respondent resentenced Legislation Cited: Criminal Appeal Act 1912 Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Criminal Procedure Act 1986 Road Transport (Driver Licensing) Act 1998 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v JW [2010] NSWCCA 49; 77 NSWLR 7 R v Wilkinson (No. 5) [2009] NSWSC 432 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 O'Neil-Shaw v R [2010] NSWCCA 42 Siganto v The Queen [1998] HCA 74; 194 CLR 656 Haoui v R [2008] NSWCCA 209; 188 A Crim R 331 R v Dutton [2005] NSWCCA 248 R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 R v Berg [2004] NSWCCA 300 Hughes v R [2008] NSWCCA 48; 185 A Crim R 155 R v Janceski [2005] NSWCCA 288; 44 MVR 328 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 R v MMK [2006] NSWCCA 272; 164 A Crim R 481 Rosenthal v R [2008] NSWCCA 149 R v Koosmen [2004] NSWCCA 359 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Dodd (1991) 57 A Crim R 349 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v MA [2004] NSWCCA 92; 145 A Crim R 434 R v Fidow [2004] NSWCCA 172 R v Scott [1999] NSWCCA 233 Legge v R [2007] NSWCCA 244 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Gillett v R [2006] NSWCCA 370; 166 A Crim R 419 R v Nguyen [2008] NSWCCA 113 Texts Cited: --- Category: Principal judgment Parties: Regina (Appellant) AB (Respondent) Representation: Ms S Dowling (Appellant) Mr G Corr (Respondent) Solicitor for Public Prosecutions (Appellant) M Doughty (Respondent) File Number(s): 2009/55060 Publication restriction: --- Decision under appeal Citation: --- Date of Decision: 2011-03-09 00:00:00 Before: Her Honour Judge Murrell SC File Number(s): 2009/55060