A RUBBISH truck driver who struck and killed a young cyclist in Golden Square has been refused leave to appeal his prison sentence.
Mathew Anthony John Gray, 43, was in June sentenced to four years and two months in jail after pleading guilty to dangerous driving causing the death of 18-year-old Michael Keating.
Gray, who could be eligible for parole within two years, wanted to appeal his jail term on the grounds that it was "manifestly excessive".
But the Court of Appeal refused his application, saying it was not "reasonably arguable".
Gray was driving a waste collection truck when he struck and killed Mr Keating on the afternoon of June 7, 2019.
The court heard Gray was driving south on Woodward Road when he approached the give way sign at the intersection with Hattam Street.
Gray slowed down as he approached the intersection but did not stop. As he entered the intersection, Mr Keating approached on his red bicycle.
The 18-year-old was wearing a fluorescent yellow shirt and the weather conditions were fine, but Gray did not see Mr Keating as he proceeded through the intersection.
The court heard the front right-hand side of Gray's truck struck Mr Keating, killing him instantly.
In his sentencing remarks, County Court Judge Michael Tinney noted the lack of aggravating features in the offending.
But Judge Tinney said while there were not any aggravating features, it did not mean that the offending was less serious.
The County Court judge said Mr Keating's family and friends had to live with a "deep sense of loss and grief" as a result of Gray's driving.
The judge also noted Gray's personal circumstances, including his "relatively late" guilty plea, his remorse, and his physical and mental health issues.
Judge Tinney said he reduced the ultimate sentence as a result of those factors.
But Gray was seeking to appeal his jail term on the grounds that it was manifestly excessive. He also argued that the judge did not properly assess his moral culpability.
Gray's counsel submitted that the 43-year-old's moral culpability should have been characterised as at the lower end, given that he was not driving erratically, speeding, or driving in a "hoonish manner".
Appeal Judge Stephen McLeish said that ground of appeal was not something that the court could form a judgement on.
On the argument that the sentence was manifestly excessive, Gray's counsel submitted that Judge Tinney did not take into account mitigating features like his guilty plea or the burden of jail.
Judge McLeish again rejected that submission.
"It must be shown that something has gone 'obviously, plainly or badly wrong' in the exercise of the sentencing discretion, without necessarily identifying what that something is," the appeal judge said.
"In my opinion, it is not open to reach that conclusion in the present case.
"The mitigating factors upon which the applicant could draw, while significant, were unremarkable in offences of this kind."
Judge McLeish refused Gray leave to appeal his prison sentence.
The jail term of four years and two months, with a non-parole period of two years and six months, was upheld.
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