McGonigle v R [2020] NSWCCA 84

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McGonigle v R [2020] NSWCCA 84 Hearing dates: 3 April 2020 Date of orders: 01 May 2020 Decision date: 01 May 2020 Before: McCallum JA at [1] Johnson J at [2] Adamson J at [149] Decision: 1. Leave to appeal against sentence granted. 2. Appeal dismissed. Catchwords: APPEAL – sentence – offences of aggravated dangerous driving causing grievous bodily harm and driving dangerously during a police pursuit – applicant's vehicle in near collision with police vehicle – police pursued applicant's vehicle over 8.1 kilometres on north coast country road – applicant drove up to 139 kilometres per hour with a blood alcohol content between 0.155 and 0.180 grammes per 100 millilitres of blood – applicant's vehicle spun out of control and collided with tree – passenger in applicant's vehicle ejected 39.5 metres away and suffered substantial injuries – aggregate sentence of imprisonment for four years and three months with non-parole period of two years and three months – whether aggregate sentence was manifestly excessive – where sentencing Judge had regard to the guideline judgment in R v Whyte – where there were two statutory aggravating factors under s.52A(7) Crimes Act 1900 of driving with prescribed concentration of alcohol and driving at a speed which exceeded the speed limit by 45 kph – substantial objective gravity of offences – where sentencing Judge had proper regard to the Applicant's strong subjective case – aggregate sentence not manifestly excessive – appeal dismissed Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Road Transport Act 2013 Cases Cited: Brookes v R [2009] NSWCCA 265 Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 Gray v R [2018] NSWCCA 39 JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 Lawson v R [2018] NSWCCA 215 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Owen v R [2017] NSWCCA 54 Priovolidis v R [2016] NSWCCA 201 R v Carruthers (2008) 182 A Crim R 481; [2008] NSWCCA 59 R v Coffee [2010] NSWDC 261 R v Dodd (1991) 57 A Crim R 349 R v Glover [2011] NSWDC 65 R v Innes [2009] NSWDC 345 R v Jurisic (1998) 45 NSWLR 209 R v Kyle [2014] NSWCCA 300 R v MacPherson [2017] NSWDC 170 R v Palu (2002) 134 A Crim R 174; [2002] NSWCCA 381 R v Reay [2018] NSWDC 386 R v Tuhakaraina [2016] NSWCCA 81 R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 Reddy v R [2018] NSWCCA 212 The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 Ul-Hassan v R [2018] NSWCCA 177 Vale v R [2016] NSWCCA 154 Vandeventer v R [2013] NSWCCA 33 XZ v R [2018] NSWCCA 76 Texts Cited: --- Category: Principal judgment Parties: Mark McGonigle (Applicant) Regina (Respondent) Representation: Counsel: Mr KH Averre MBE (Applicant) Mr D Patch (Respondent)