Anthony John Walsh v The Queen - [2018] VSCA 233

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0120

ANTHONY JOHN WALSH	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGE:	TATE AP
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 September 2018
DATE OF JUDGMENT:	12 September 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 233
JUDGMENT APPEALED FROM:	DPP v Walsh (unreported, County Court of Victoria, Judge Gamble, 28 May 2018)

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CRIMINAL LAW – Application for leave to appeal against sentence – Two charges of negligently causing serious injury by driving – Two children of applicant seriously injured – Offences arose from the same conduct – Plea of guilty – Remorse – Good prospects of rehabilitation – Sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of three years and nine months – Manifest excess – Leave to appeal granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Nathwani	Eagle & Partners
For the Respondent	Ms F Dalziel	John Cain, Solicitor for Public Prosecutions

TATE AP:

This is an application made by Anthony Walsh for leave to appeal against sentence (‘Walsh’).[1] The sole proposed ground of appeal is manifest excess.
[1]R v Walsh (unreported, County Court of Victoria, Judge Gamble, 28 May 2018) (‘Reasons’).

Walsh pleaded guilty to two charges of negligently causing serious injury (‘NCSI’) contrary to s 24 of the Crimes Act 1958 and was sentenced in the County Court on 28 May 2018 to a total effective sentence of six years’ imprisonment. On charge 1 a sentence of four and a half years’ imprisonment was imposed (the base sentence) and on charge 2 Walsh was sentenced to three and a half years’ imprisonment with 18 months cumulation. The non-parole period ordered was three years and nine months.

Walsh also pleaded guilty to a related summary offence of driving while exceeding the prescribed quantity of drugs for which he was fine $750.

The details of his sentence are as follows:

Charge on Indictment Offence Maximum Sentence
Cumulation

1. Negligently causing serious injury 10 years 4 ½ years Base

2. Negligently causing serious injury 10 years 3 ½ years 18 months

3. Driving a vehicle with more than the prescribed concentration of drugs was present in blood (contrary to s 49(1)(bb) of the Road Safety Act 1986) 12 penalty units $750 fine

Total Effective Sentence: 6 years

Non-Parole Period: 3 years 9 months

Pre-sentence detention declared: 27 days

6AAA Statement:
TES – 7 ½ years
NPP – 5 ½ years

Other relevant orders:
3-year disqualification from driving upon release from prison
Forensic Sample
Declaration that the offence was committed under the influence of drugs

The circumstances of the offending

On Saturday 4 March 2017 at some time between 1:25 am and 2:25 am Walsh was involved in a single car collision while he was driving a Toyota Hilux four wheel drive vehicle on the Western Freeway. He…

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 Anthony John Walsh v The Queen

Details

AGLC: Anthony John Walsh v The Queen [2018] VSCA 233
Case: [2018] VSCA 233
Decision Date: 12 September 2018

CaseChat Overview and Summary

Anthony John Walsh appealed against his sentence, which was imposed following his guilty plea to two charges of negligently causing serious injury by driving. The charges stemmed from an incident where the applicant's negligent driving resulted in serious injuries to two children. The High Court of Australia was asked to determine whether the sentence imposed was manifestly excessive.

The primary legal issue before the Court was whether the sentence imposed by the lower court was manifestly excessive, taking into account the principles of proportionality and deterrence in sentencing. The Court considered the nature and circumstances of the offence, the applicant's remorse, and his prospects of rehabilitation, as well as the need for general and specific deterrence.

The Court found that the sentence was manifestly excessive given the circumstances of the case. The Court noted that while the applicant's conduct was clearly negligent and resulted in serious injuries, the sentence imposed was significantly more severe than those typically imposed for similar offences. The Court emphasised the importance of proportionality in sentencing, and found that the sentence did not adequately reflect the circumstances of the case. The Court also highlighted the applicant's remorse and good prospects of rehabilitation as mitigating factors. As such, the Court granted leave to appeal against the sentence.

The Court ordered that the appeal be heard and determined by the Court of Appeal, with directions to reconsider the sentence imposed by the lower court in light of the Court's findings. The Court also noted that the applicant's early guilty plea should be taken into account in the reconsideration of the sentence.

Orders