Regina v McKINNEY [1999] NSWCCA 51

Regina v McKINNEY [1999] NSWCCA 51

The sentencing discretion miscarried because the sentencing judge treated the subjective factors as extraordinarily strong without sufficient basis and failed to give appropriate substantive weight to general deterrence. Given the respondent's prolonged drinking, very high blood alcohol concentration, loss of control, death of his wife and risk to members of the public, the sentence of three years imprisonment by periodic detention was manifestly inadequate. Constrained by double jeopardy and taking rehabilitation into account as special circumstances, the least proper sentence required full-time imprisonment for three years with a minimum term of one year and six months and an additional...

Jurisdiction
Australia
Judgment Date
10 March 1999
Procedural Posture
Crown Appeal Against Sentence / Appeal From Sentence Imposed in the District Court
Outcome
Appeal allowed; sentence quashed; respondent resentenced.
Legal Topics
['aggravated Dangerous Driving Causing Death' 'general Deterrence' 'double Jeopardy on Crown Sentence Appeal' 'periodic Detention' 'driver Licence Disqualification']
['criminal Law' 'sentencing'] ['aggravated Dangerous Driving Causing Death' 'general Deterrence' 'double Jeopardy on Crown Sentence Appeal' 'periodic Detention' 'driver Licence Disqualification']

Case Brief

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Procedural Posture

Crown Appeal Against Sentence / Appeal From Sentence Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentencing judge failed to give appropriate weight to general deterrence for aggravated dangerous driving causing death.' 'Whether the sentence of three years imprisonment to be served by periodic detention was manifestly inadequate.' 'What sentence should be imposed on a Crown appeal having regard to double jeopardy and special circumstances.']

Ratio Decidendi

The sentencing discretion miscarried because the sentencing judge treated the subjective factors as extraordinarily strong without sufficient basis and failed to give appropriate substantive weight to general deterrence. Given the respondent's prolonged drinking, very high blood alcohol concentration, loss of control, death of his wife and risk to members of the public, the sentence of three years imprisonment by periodic detention was manifestly inadequate. Constrained by double jeopardy and taking rehabilitation into account as special circumstances, the least proper sentence required full-time imprisonment for three years with a minimum term of one year and six months and an additional...

Court Disposition

Appeal allowed; sentence quashed; respondent resentenced.

Orders

  • ['The Crown appeal against sentence is upheld.' 'The sentence imposed by Acting Judge Cantrill is quashed.' 'The Respondent is sentenced to imprisonment for a period of three years to comprise a minimum term of one year and six months commencing on 30 September 1998 and expiring on 30 March 2000 on which date the...