Ashley Luke Powell v The King

[2023] VSCA 235

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0135

ASHLEY LUKE POWELL	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, WALKER JJA and HOLLINGWORTH AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 September 2023
DATE OF JUDGMENT:	28 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 235
JUDGMENT APPEALED FROM:	[2023] VCC 1126 (Judge Cannon)

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CRIMINAL LAW – Appeal – Sentence – Assist offender and related summary offences – Guilty plea – Sentence of 3 years 4 months’ imprisonment – Non-parole period of 18 months – Concession that sentence manifestly excessive – Sentencing discretion re-opened – Whether

victim impact statement admissible when re-exercising sentencing discretion – Victim impact statement inadmissible – Mitigating factors including guilty plea, cooperation with police and PTSD – Current sentencing practices considered – Appeal allowed – Resentenced to 20 months’ imprisonment – Non-parole period 12 months.

Sentencing Act 1991 ss 3, 5, 8L.

Landmark v The Queen [2015] VSCA 178 discussed.

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Counsel

Applicant:	Ms G Connelly
Respondent:	Mr P Bourke KC
Solicitors
Applicant:	James Dowsley & Associates
Respondent: BEACH JA	Ms A Hogan, Solicitor for Public Prosecutions
WALKER JA  HOLLINGWORTH AJA:

1          On 9 November 2021, in a tragic sequence of events, RJ drove erratically and at high speed on Hall Road, where Timmy Rakei and Shaun Kilmartin were setting up roadworks signs. They had earlier placed warning signs ahead of the area in which they were working, but RJ failed to heed those warning signs, or the reduced speed limit of

40km per hour. RJ’s car hit Mr Rakei and then Mr Kilmartin, killing Mr Rakei and

seriously injuring Mr Kilmartin. After the collision, RJ made a phone call and ran away from the area. Shortly afterwards the applicant, driving a black SUV, picked RJ up from

the side of the road and drove him back to the applicant’s partner’s home. At some stage

after arriving there, the applicant became aware that RJ had been involved in a serious collision in which a person had died. The applicant nonetheless continued to assist RJ.

2          First, RJ and the applicant drove away together in the black SUV. It is not known who was driving. The police attempted to intercept the car, activating emergency lights and angling their car so as to block the road. The driver of the car then accelerated heavily towards the police car and then past it. The SUV then drove onto the wrong side of the road, mounted the kerb, travelled across the nature strip and footpath and drove into parkland at speed, before returning to the road. Police then abandoned their attempts to intercept the car.

3          At 11:15 am that day, the black SUV was seen entering a park in Frankston South and

witnesses saw either the applicant or RJ get out of the car, go around to the driver’s side

and then return to the passenger side shortly thereafter wearing different clothing. The witnesses noticed smoke coming from the area where either the applicant or RJ…