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…
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- AGLC
- Ashley Luke Powell v The King [2023] VSCA 235
- Case
- [2023] VSCA 235
- Decision Date
CaseChat Overview and Summary
The court examined the legal principles surrounding the reopening of sentencing discretion when a concession is made that the sentence is manifestly excessive. It also considered the admissibility of a victim impact statement during the re-exercising of sentencing discretion. The court determined that the victim impact statement was inadmissible as it did not assist in determining an appropriate sentence within the broad sentencing discretion available to the original sentencing judge. Instead, the court focused on the mitigating factors presented, including the appellant's guilty plea, his cooperation with the police, and his diagnosis of PTSD.
Upon reassessing the sentence in light of the mitigating factors and current sentencing practices, the court concluded that the original sentence was indeed manifestly excessive. The court allowed the appeal, resentencing the appellant to 20 months’ imprisonment with a non-parole period of 12 months. This decision was made after carefully weighing the mitigating factors against the nature of the offences committed.
Orders
Orders of the court
Appeal allowed – Resentenced to 20 months’ imprisonment – Non-parole period 12 months.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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