Page v R [2008] NSWCCA 26

Page v R [2008] NSWCCA 26

The guilty plea was late and followed by a substantial disputed facts hearing, so a 10 per cent utilitarian discount was open. The sentencing judge was entitled to accept Mr Nguyen's evidence and find no contributory negligence. Although the judge applied a more onerous standard by requiring the Crown to negative contributory negligence beyond reasonable doubt rather than requiring the applicant to prove it on the balance of probabilities, that error did not adversely affect the applicant. Given the aggravated offence, police pursuit, impairment by heroin, excess speed, parole status, criminal history, Form 1 matter and subjective circumstances, the sentence was within the discretionary...

Jurisdiction
Australia
Judgment Date
19 February 2008
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the NSW Court of Criminal Appeal
Outcome
Leave to appeal granted. Appeal dismissed.
Legal Topics
['aggravated Dangerous Driving Occasioning Death' 'contributory Negligence' 'onus of Proof on Sentence' 'utilitarian Discount for Guilty Plea' 'manifest Excess' 'legal Representation and Miscarriage of Justice']
['criminal Law' 'sentencing'] ['aggravated Dangerous Driving Occasioning Death' 'contributory Negligence' 'onus of Proof on Sentence' 'utilitarian Discount for Guilty Plea' 'manifest Excess' 'legal Representation and Miscarriage of Justice']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the NSW Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the 10 per cent discount for the guilty plea was inadequate.' 'Whether the sentencing judge erred in finding no contributory negligence by Mr Nguyen.' 'Whether the sentencing judge applied the wrong standard of proof to contributory negligence and whether any error adversely affected the applicant.' 'Whether the sentence was manifestly excessive having regard to guideline judgments and aggravating and subjective factors.' 'Whether the sentencing judge failed properly to take remorse or contrition into account.' 'Whether the absence of psychological evidence before the sentencing judge caused a miscarriage of justice or warranted a lesser sentence.' 'Whether the sentence should have been backdated.']

Ratio Decidendi

The guilty plea was late and followed by a substantial disputed facts hearing, so a 10 per cent utilitarian discount was open. The sentencing judge was entitled to accept Mr Nguyen's evidence and find no contributory negligence. Although the judge applied a more onerous standard by requiring the Crown to negative contributory negligence beyond reasonable doubt rather than requiring the applicant to prove it on the balance of probabilities, that error did not adversely affect the applicant. Given the aggravated offence, police pursuit, impairment by heroin, excess speed, parole status, criminal history, Form 1 matter and subjective circumstances, the sentence was within the discretionary...

Court Disposition

Leave to appeal granted. Appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']