WHELAN, Heath Andrew v R [2012] NSWCCA 147

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: WHELAN, Heath Andrew v R [2012] NSWCCA 147 Hearing dates: 21 May 2012 Decision date: 04 July 2012 Before: Allsop P at [1] Davies J at [5] Schmidt J at [6] Decision: 1.That the conviction appeal be dismissed. 2.That the sentence appeal be dismissed. Catchwords: CRIMINAL LAW - dangerous driving - foetus - child in utero - child born alive prematurely and later died - appeal against conviction - whether it was necessary to establish that the baby was injured in utero - whether it was necessary to establish that it was an intended act which caused the baby to be born - grounds not established - appeal against sentence - intensive correction order - whether sentence was manifestly inadequate - whether her Honour erred in determining the degree of moral culpability for this offence as being at a low level - grounds not established Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Regulation 2010 Cases Cited: Attorney-General's Reference (No 3 of 1994) [1998] AC 245 Attorney General's Reference (No 3 of 1994) [1996] QB 581 Campbell v The Queen (1980) 2 A Crim R 157 Dinsdale v R [2000] HCA 54; (2000) 203 CLR 321 DPP v Samadi [2006] NSWCCA 308 Hedges v Regina [2011] NSWCCA 263 Hili v R [2010] HCA 45 Mitreski v R; R v Mitreski [2008] NSWCCA 301 SKA v R [2011] HCA 13 R v Bateson [2011] NSWSC 643 R v Boughen; R v Cameron [2012] NSWCCA 17 R v F (1996) 40 NSWLR 245 R v Iby [2005] NSWCCA 178; (2005) 154 A Crim R 55 R v Jurisic (1998) 45 NSWLR 209; [1998] 101 A Crim R 259 R v King (2003) 59 NSWLR 472 R v Khatter [2000] NSWCCA 32 R v Radley [2010] NSWCCA 64 R v Townsend [2010] NSWCCA 336 R v West [1848] 175 RE 329; 2 Car & P 784, R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 Royall v R [1991] HCA 27; (1991)172 CLR 378 Texts Cited: Archbold, 43rd edition Category: Principal judgment Parties: Heath Andrew Whelan (Appellant/Respondent) Regina (Crown) Representation: Counsel: B Greenhill SC (Appellant/Respondent) J Pickering (Crown) Solicitors: WG McNally Jones Staff (Appellant/Respondent) S Kavanagh, Solicitor for Public Prosecutions (Crown) File Number(s): 2009/284939 Publication restriction: None Decision under appeal Jurisdiction: 9101 Citation: 2009/284939 Date of Decision: 2011-11-11 00:00:00 Before: Quirk DCJ