R v Takai [2004] NSWCCA 392

R v Takai [2004] NSWCCA 392

The sentencing judge did not err in considering s5, s21A, the guideline judgments, or in finding high moral culpability, but the sentence was manifestly excessive. The applicant's blood alcohol reading, although high, was 0.169 and only slightly above the 0.15 threshold for the aggravated offence; if the sentencing...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
19 November 2004
Procedural Posture
Application for Leave to Appeal Against Sentence / Appeal Against Severity of Sentence From the District Court
Outcome
Application for leave to appeal granted; appeal allowed; sentence quashed; applicant re-sentenced to imprisonment for two years and six months with a non-parole period of one year and three months.
Legal Topics
['aggravated Dangerous Driving Causing Grievous Bodily Harm' 'plea of Guilty' 'guideline Judgments' 'moral Culpability' 'manifestly Excessive Sentence' 'blood Alcohol Concentration']
['criminal Law' 'sentencing'] ['aggravated Dangerous Driving Causing Grievous Bodily Harm' 'plea of Guilty' 'guideline Judgments' 'moral Culpability' 'manifestly Excessive Sentence' 'blood Alcohol Concentration']

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Procedural Posture

Application for Leave to Appeal Against Sentence / Appeal Against Severity of Sentence From the District Court

Legal Issues

  1. 1 ['Whether the sentencing judge erred in applying the guideline judgments in R v Jurisic and R v Whyte.' 'Whether the sentencing judge failed adequately to consider s5 and s21A of the Crimes (Sentencing Procedure) Act 1999.' 'Whether the sentencing judge erred in finding a high level of moral culpability.' 'Whether the sentence imposed was manifestly excessive.']

Ratio Decidendi

The sentencing judge did not err in considering s5, s21A, the guideline judgments, or in finding high moral culpability, but the sentence was manifestly excessive. The applicant's blood alcohol reading, although high, was 0.169 and only slightly above the 0.15 threshold for the aggravated offence; if the sentencing judge treated it as five times the legal limit that may have contributed to an excessive increment. Comparable cases and the circumstances showed the sentence exceeded the range legitimately available, so the sentence was quashed and a lesser sentence imposed.

Court Disposition

Application for leave to appeal granted; appeal allowed; sentence quashed; applicant re-sentenced to imprisonment for two years and six months with a non-parole period of one year and three months.

Orders

  • ['Application for leave to appeal granted.' 'Appeal allowed, sentence quashed.' 'The applicant be re-sentenced to imprisonment for two years and six months to commence on 29 January 2004 and expire on 28 July 2006.' 'Non-parole period of one year and three months to commence on 29 January 2004 and expire on 28 April...