HEI HEI, Marcus Joseph v R; R v Marcus Joseph HEI HEI [2009] NSWCCA 87

HEI HEI, Marcus Joseph v R; R v Marcus Joseph HEI HEI [2009] NSWCCA 87

The sentencing judge erred by treating disregard for public safety as an aggravating factor when no facts beyond the blood alcohol aggravation inherent in the offence were found, but the Court was not satisfied under s 6(3) of the Criminal Appeal Act 1912 that a lesser sentence was warranted, given Mr Hei Hei's criminal and driving history and the mid-range sentence. The disqualification order was defective because, on the assumed reliance on s 188(2)(d)(ii) of the Road Transport (General) Act 2005, the judge fixed a 3-year period rather than a shorter or longer period; the proper course was to allow the Crown appeal and impose a longer disqualification period concluding on 19 February 2014.

Jurisdiction
Australia
Judgment Date
02 April 2009
Procedural Posture
Criminal Sentencing Appeal and Crown Appeal / Application for Leave to Appeal and Appeals in the New South Wales Court of Criminal Appeal From Sentence and Driving Disqualification Order Imposed in the District Court
Outcome
Leave to appeal granted; Mr Hei Hei's appeal against sentence dismissed; Crown appeal against the driving disqualification order allowed and substituted order made.
Legal Topics
['aggravated Dangerous Driving Causing Death' 'double Counting Aggravating Factors' 'manifest Excess' 'driving Disqualification' 'crown Appeal Against Sentence or Penalty']
['criminal Law' 'sentencing' 'traffic Law'] ['aggravated Dangerous Driving Causing Death' 'double Counting Aggravating Factors' 'manifest Excess' 'driving Disqualification' 'crown Appeal Against Sentence or Penalty']

Case Brief

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Procedural Posture

Criminal Sentencing Appeal and Crown Appeal / Application for Leave to Appeal and Appeals in the New South Wales Court of Criminal Appeal From Sentence and Driving Disqualification Order Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentencing judge erred by taking disregard for public safety under s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999 into account as an aggravating factor when it was inherent in the offence.' 'Whether, despite identified error, a lesser sentence was warranted under s 6(3) of the Criminal Appeal Act 1912.' 'Whether the sentence was manifestly excessive.' 'Whether the driving disqualification could be fixed for 3 years commencing at the expiry of the non-parole period rather than from conviction, and how the order should be corrected.']

Ratio Decidendi

The sentencing judge erred by treating disregard for public safety as an aggravating factor when no facts beyond the blood alcohol aggravation inherent in the offence were found, but the Court was not satisfied under s 6(3) of the Criminal Appeal Act 1912 that a lesser sentence was warranted, given Mr Hei Hei's criminal and driving history and the mid-range sentence. The disqualification order was defective because, on the assumed reliance on s 188(2)(d)(ii) of the Road Transport (General) Act 2005, the judge fixed a 3-year period rather than a shorter or longer period; the proper course was to allow the Crown appeal and impose a longer disqualification period concluding on 19 February 2014.

Court Disposition

Leave to appeal granted; Mr Hei Hei's appeal against sentence dismissed; Crown appeal against the driving disqualification order allowed and substituted order made.

Orders

  • ['Leave to appeal be granted.' 'The appeal against sentence by Mr Hei Hei be dismissed.' 'The appeal by the Crown against the order of his Honour Judge Bennett DCJ, disqualifying Mr Hei Hei from driving, be allowed.' 'Pursuant to the terms of section 188(2)(d)(ii) of the Road Transport (General) Act 2005, Mr Hei Hei...