Gonzalez v R [2006] NSWCCA 4

Gonzalez v R [2006] NSWCCA 4

The objective facts supported a finding of high moral culpability: the applicant drank heavily, insisted on driving, drove with a blood alcohol reading well over the high range PCA limit, carried two passengers, was subject to a good behaviour licence condition, and lost control on a major road causing serious injuries. The sentence of 2 years and 6 months with a 15 month non-parole period was not manifestly excessive and was lenient. However, the original orders were erroneous because the sentences were wholly concurrent despite two victims and because the orders did not properly state the non-parole period followed by the balance of term under s 44. Leave was therefore granted only to...

Jurisdiction
Australia
Judgment Date
19 January 2006
Procedural Posture
Criminal Application for Leave to Appeal Against Sentence / Application for Leave to Appeal in the New South Wales Court of Criminal Appeal
Outcome
Application for leave to appeal granted but only to amend the sentencing orders; appeal allowed; sentence quashed and re-imposed in corrected form.
Legal Topics
['aggravated Dangerous Driving Causing Grievous Bodily Harm' 'moral Culpability' 'manifestly Excessive Sentence' 'concurrent Sentences' 'fresh Evidence on Sentence Appeal' 'non Parole Period and Balance of Term']
['criminal Law' 'sentencing'] ['aggravated Dangerous Driving Causing Grievous Bodily Harm' 'moral Culpability' 'manifestly Excessive Sentence' 'concurrent Sentences' 'fresh Evidence on Sentence Appeal' 'non Parole Period and Balance of Term']

Case Brief

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Procedural Posture

Criminal Application for Leave to Appeal Against Sentence / Application for Leave to Appeal in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in finding a high level of moral culpability for the offences.' 'Whether the sentences imposed were manifestly excessive.' 'Whether concurrent sentences were erroneous where one driving incident caused injuries to two victims.' "Whether fresh material concerning a victim's injuries should affect the appeal." 'Whether the sentencing orders complied with s 44 of the Crimes (Sentencing Procedure) Act 1999.']

Ratio Decidendi

The objective facts supported a finding of high moral culpability: the applicant drank heavily, insisted on driving, drove with a blood alcohol reading well over the high range PCA limit, carried two passengers, was subject to a good behaviour licence condition, and lost control on a major road causing serious injuries. The sentence of 2 years and 6 months with a 15 month non-parole period was not manifestly excessive and was lenient. However, the original orders were erroneous because the sentences were wholly concurrent despite two victims and because the orders did not properly state the non-parole period followed by the balance of term under s 44. Leave was therefore granted only to...

Court Disposition

Application for leave to appeal granted but only to amend the sentencing orders; appeal allowed; sentence quashed and re-imposed in corrected form.

Orders

  • ['On each count there is to be a non-parole period of 15 months to commence on 14 February 2005 and to expire on 13 May 2006, the date upon which the applicant is to be released to parole.' 'There is to be a balance of term of 15 months to commence on 14 May 2006.']