Regina v McMillan [2005] NSWCCA 28

Regina v McMillan [2005] NSWCCA 28

The respondent was not permitted to go behind his plea of guilty because the plea admitted the elements of aggravated dangerous driving occasioning grievous bodily harm and no miscarriage of justice was shown; s 52AA did not bar charging or conviction merely because the blood sample was taken more than two hours after impact. The District Court sentence was manifestly inadequate because the offence involved high moral culpability, abandonment of responsibility, a blood alcohol level above the prescribed concentration, serious injury to the victim and a relevant prior record, requiring a higher sentence despite the plea discount and special circumstances.

Jurisdiction
Australia
Judgment Date
16 February 2005
Procedural Posture
Criminal Appeal / Application for Extension of Time to Appeal Against Conviction, Application for Leave to Appeal Against Sentence, and Crown Appeal Against Sentence From the District Court
Outcome
Application for extension of time granted but appeal against conviction dismissed; application for leave to appeal against sentence refused; Crown appeal allowed and respondent resentenced.
Legal Topics
['aggravated Dangerous Driving Occasioning Grievous Bodily Harm' 'plea of Guilty' 'going Behind a Plea of Guilty' 'blood Alcohol Concentration' 'crown Appeal Against Sentence' 'manifest Inadequacy' 'sentencing Statistics' 'non Parole Period']
['criminal Law' 'sentencing' 'criminal Procedure'] ['aggravated Dangerous Driving Occasioning Grievous Bodily Harm' 'plea of Guilty' 'going Behind a Plea of Guilty' 'blood Alcohol Concentration' 'crown Appeal Against Sentence' 'manifest Inadequacy' 'sentencing Statistics' 'non Parole Period']

Case Brief

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Procedural Posture

Criminal Appeal / Application for Extension of Time to Appeal Against Conviction, Application for Leave to Appeal Against Sentence, and Crown Appeal Against Sentence From the District Court

Legal Issues

  1. 1 ['Whether the respondent should be permitted to go behind his plea of guilty to aggravated dangerous driving occasioning grievous bodily harm.' 'Whether ss 52A and 52AA of the Crimes Act prevented the respondent from being charged with or convicted of the aggravated offence where the blood sample was taken more than two hours after impact.' 'Whether the sentence imposed by the District Court was manifestly inadequate.' 'Whether the sentencing judge erred in considering aggravating and mitigating factors and sentencing statistics.']

Ratio Decidendi

The respondent was not permitted to go behind his plea of guilty because the plea admitted the elements of aggravated dangerous driving occasioning grievous bodily harm and no miscarriage of justice was shown; s 52AA did not bar charging or conviction merely because the blood sample was taken more than two hours after impact. The District Court sentence was manifestly inadequate because the offence involved high moral culpability, abandonment of responsibility, a blood alcohol level above the prescribed concentration, serious injury to the victim and a relevant prior record, requiring a higher sentence despite the plea discount and special circumstances.

Court Disposition

Application for extension of time granted but appeal against conviction dismissed; application for leave to appeal against sentence refused; Crown appeal allowed and respondent resentenced.

Orders

  • ['The application for an extension of time in which to appeal is granted but the appeal is dismissed.' 'The application for leave to appeal is refused.' 'The Crown appeal is allowed and the sentence imposed by Judge Payne is quashed.' 'In lieu the respondent is sentenced to imprisonment for 4 years to commence on 3...