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Bell v The Queen

Bell v The Queen

Case [2018] VSCA 281 2 November 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0166

ARRON BELL	Appellant
V
THE QUEEN	Respondent

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JUDGES:	PRIEST and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 October 2018
DATE OF ORDERS:	31 October 2018
DATE OF JUDGMENT:	2 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 281
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge McInerney, 17 July 2018)

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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing death – Sentence of 9 months’ imprisonment combined with a community correction order of 2 years’ duration – Whether judge erred in assessing objective gravity of offending and appellant’s moral culpability – Whether appellant denied procedural fairness – Whether sentence manifestly excessive – Appeal allowed – Appellant re-sentenced to 2 year community correction order.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms D Price	Sally Wilson Legal
For the Respondent	Ms R L Harper	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA:

I agree with Ashley JA. For the reasons given by his Honour, I joined in the orders made on 31 October 2018 (set out at [3] below).

ASHLEY JA:

Arron Bell (conveniently, ‘the appellant’) pleaded guilty to a charge of dangerous driving causing death. The offence was committed on 16 January 2017. The appellant was then aged 26. There was a plea hearing on 2 July this year. On 17 July the judge sentenced the appellant to nine months’ imprisonment, together with a community correction order for a period of two years. There being no period of pre-sentence detention, the appellant’s earliest release date was to be 16 April 2019.

On 31 October 2018, this Court made orders granting leave to appeal, allowing the appeal, setting aside the sentence imposed below, and in lieu thereof sentencing the appellant to a community correction order for a period of two years. It said that reasons would later be published. These are my reasons for joining in those orders.

Grounds

The appellant sought leave to appeal against sentence, and, if leave was granted, that his appeal be allowed. He relied upon the following grounds:

1. The learned sentencing judge erred in finding that the objective gravity of the offence, and the [appellant’s] moral culpability, were ‘mid-range’.
2. The learned sentencing judge denied the appellant procedural fairness by:
(a)Not informing counsel that he proposed to find the objective gravity of the offence as ‘mid-range’ and to reject the joint submission of prosecution and defence that the offence was brought about by momentary inattention and that the [appellant’s] moral culpability was low; and
(b)Discussing the facts of the case with the prosecution on two occasions, both in the absence of the [appellant] and his legal representatives.

3. The sentence is manifestly excessive.
4. A combination or aggregation of defects have led to a miscarriage of justice.

Circumstances

The fatal collision occurred at the intersection of Warby Street and Ryley Street in Wangaratta. Warby Street runs more or less north-south and there is a lane in each direction.…

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 Bell v The Queen

Details

AGLC: Bell v The Queen [2018] VSCA 281
Case: [2018] VSCA 281
Decision Date: 2 November 2018

CaseChat Overview and Summary

The case of Bell v The Queen involved an appeal against a sentence imposed on the appellant for dangerous driving causing death. The appellant had been sentenced to a term of imprisonment of 9 months, combined with a community correction order of 2 years. The appeal was heard by the court, which was tasked with determining whether the trial judge had erred in assessing the objective gravity of the offending and the appellant’s moral culpability. The appellant also contended that the sentence denied them procedural fairness and was manifestly excessive.

The court considered the nature of the offence, which involved a high degree of culpability and resulted in the death of an innocent person. The appellant’s culpability was further exacerbated by their prior criminal history, which included several driving-related offences. The court also examined the sentence imposed, noting that the combination of imprisonment and a community correction order was unusual. The court found that the trial judge had erred in assessing the objective gravity of the offending and the appellant’s moral culpability, as well as in considering the appropriate length of the community correction order.

After reviewing the evidence and arguments presented, the court found that the sentence was manifestly excessive. The court acknowledged that the appellant’s offending was serious but noted that the sentence imposed did not adequately reflect the gravity of the offending or the appellant’s moral culpability. The court also found that the appellant had been denied procedural fairness, as the trial judge had not adequately considered the appellant’s mitigating factors. As a result, the appeal was allowed, and the appellant was re-sentenced to a 2-year community correction order.

The final orders of the court were that the appellant’s sentence of 9 months’ imprisonment combined with a community correction order of 2 years’ duration be set aside and replaced with a 2-year community correction order. The court also ordered that the appellant be released from prison immediately, as the time already served was sufficient to satisfy the custodial element of the sentence.

Orders