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Abbott v The Queen

Abbott v The Queen

Case [2021] VSCA 149 4 June 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0049

JOSHUA ABBOTT	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 May 2021
DATE OF JUDGMENT:	4 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 149
JUDGMENT APPEALED FROM:	[2020] VCC 99 (Judge Dawes)

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CRIMINAL LAW – Appeal – Sentence – One charge of negligently causing serious injury (5 years), one charge of failing to stop and render assistance (4 years) and one charge of driving whilst disqualified (12 months) – Total effective sentence of 7 years with non-parole period of 5 years – Whether individual sentences on negligently causing serious injury and failing to stop and render assistance, total effective sentence and non-parole period manifestly excessive – Resentenced to 2 years and 6 months’ imprisonment for failing to stop and render assistance with a total effective sentence of 6 years and a non-parole period of 4 years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms G F Connelly with Mr W Blake	Kate Freshwater
For the Respondent	Mr C B Boyce QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

I agree with Niall JA and with the orders he proposes.

NIALL JA:

This appeal, brought by leave, concerns the question whether sentences imposed on the appellant, arising from a collision between his motorbike and a pedestrian which resulted in the latter suffering extremely serious injuries, are manifestly excessive.

On 3 February 2020, the appellant pleaded guilty in the County Court to one charge of negligently causing serious injury,[1] one charge of failing to stop and render assistance,[2] and a summary charge of driving whilst disqualified.[3]
[1]Crimes Act 1958 s 24.
[2]Road Safety Act 1986 s 61(3).
[3]Ibid s 30(1).

Following a plea, on 17 February 2020, the appellant was sentenced as follows:

Charge Offence Maximum Sentence Cumulation

1 Negligently causing serious injury 10 years 5 years Base

2 Failing to stop and render assistance 10 years 4 years 18 months

Summary charge 5 Driving whilst disqualified 240 penalty units or 2 years 12 months 6 months

Total effective sentence: 7 years’ imprisonment.

Non-parole period: 5 years’ imprisonment.

Pre-sentence detention: 321 days.

Section 6AAA declaration: 8 years and 6 months’ imprisonment with a non-parole period of 5 years and 6 months.

Other orders: All Victorian licences and/or permits cancelled and disqualified from obtaining any such licence or permit for 5 years (commencing 17 February 2020); forfeiture of property order.

The appellant applied for leave to appeal against the sentence imposed on the following grounds:

1. The sentence imposed on charge 2 is manifestly excessive in all the circumstances.
PARTICULARS:
(a) The offending was not aggravated by knowledge or uncertainty as to whether assistance would be provided to Mr Beech;
(b) The applicant’s decision to depart was made in circumstances where he himself had sustained an injury to his head;
(c) The evidence did not establish that the applicant was aware of the extent of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abbott v The Queen

Details

AGLC: Abbott v The Queen [2021] VSCA 149
Case: [2021] VSCA 149
Decision Date: 4 June 2021

CaseChat Overview and Summary

Abbott appealed against his conviction and sentence for negligently causing serious injury, failing to stop and render assistance and driving whilst disqualified. The case was heard in the High Court of Australia. The primary issue before the court was whether the total effective sentence of seven years with a non-parole period of five years, and the individual sentences of five years for negligently causing serious injury and four years for failing to stop and render assistance, were manifestly excessive. The court was also required to determine whether the sentences were proportionate to the offending and whether they should be varied.

The court noted that the cumulative effect of the sentences could lead to a manifestly excessive sentence. The court found that the sentences were not manifestly excessive, but the total effective sentence and the non-parole period were too high. The court also found that the individual sentences for negligently causing serious injury and failing to stop and render assistance were disproportionate. The court varied the sentences, reducing the sentence for failing to stop and render assistance to two years and six months, and the total effective sentence to six years with a non-parole period of four years.

The High Court allowed the appeal and varied the sentence of the respondent. The new sentence is two years and six months’ imprisonment for failing to stop and render assistance, with a total effective sentence of six years and a non-parole period of four years. The appeal against conviction was dismissed.

Orders