Regina v Berg [2004] NSWCCA 300

Regina v Berg [2004] NSWCCA 300

The sentencing judge erred by treating as aggravating the emotional harm suffered by the deceased's relatives in the absence of sufficient evidence and by failing to properly apply s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, which prohibits treating elements of the offence as additional aggravating factors. A new sentence should be imposed reflecting these errors and the correct principles.

Parties
Crown: Regina; Applicant: David Raymond Berg
Jurisdiction
Australia
Judgment Date
25 August 2004
Procedural Posture
Criminal Appeal / Application for Leave to Appeal Against Sentence and Appeal Determination
Outcome
Leave to appeal granted; appeal allowed.
Legal Topics
Sentencing, Dangerous Driving Causing Death, Aggravating and Mitigating Factors, Victim Impact Statements
Criminal Law Sentencing Dangerous Driving Causing Death Aggravating and Mitigating Factors Victim Impact Statements

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Parties

Regina

Crown

David Raymond Berg

Applicant

Procedural Posture

Criminal Appeal / Application for Leave to Appeal Against Sentence and Appeal Determination

Legal Issues

  1. 1 Whether the sentencing judge erred in taking into account aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act when assessing the seriousness of the offence
  2. 2 Whether a lesser sentence than that imposed was warranted in law
  3. 3 Relevance of the impact of the death of the deceased and prior convictions as aggravating factors

Ratio Decidendi

The sentencing judge erred by treating as aggravating the emotional harm suffered by the deceased's relatives in the absence of sufficient evidence and by failing to properly apply s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, which prohibits treating elements of the offence as additional aggravating factors. A new sentence should be imposed reflecting these errors and the correct principles.

Court Disposition

Leave to appeal granted; appeal allowed.

Orders

  • Judge Phelan's orders quashed.
  • Applicant is sentenced by way of a non-parole period of two years and three months to commence on 19 December 2003 and to expire on 18 March 2006.