Bell v The Queen - [2016] VSCA 203

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0093

GORDON FRANK BELL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, REDLICH and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 July 2016
DATE OF JUDGMENT:	22 August 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 203
JUDGMENT APPEALED FROM:	[2016] VCC 515 (Judge Lawson)

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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing serious injury (3 counts) – Guilty plea – Sentenced to aggregate sentence of 22 months’ imprisonment with 5-year community correction order requiring supervision, drug and alcohol abuse assessment and treatment and participation in courses relating to offending behaviour – Whether sentence manifestly excessive – Whether principle of parsimony required sentencing judge not to impose sentence of imprisonment in circumstances – Sentencing Act 1991 s 5 – Boulton v The Queen (2014) 46 VR 308; Greatorex v The Queen [2016] VSCA 136, discussed – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D N Sala	Stary Norton Halphen
For the Respondent	Mr D A Trapnell QC	Mr J Cain, Solicitor for Public Prosecutions

THE JUDGMENT OF THE COURT WAS DELIVERED BY McLEISH JA:

On 21 April 2016 the applicant was sentenced on three charges of dangerous driving causing serious injury contrary to s 319(1A) of the Crimes Act 1958. The judge imposed an aggregate sentence of 22 months’ imprisonment with a five year community correction order (‘CCO’). The sentence followed a plea of guilty to those charges, along with other charges which are not relevant for present purposes, in respect of which monetary fines were imposed.

No non-parole period was specified in respect of the sentence imposed. The judge recorded under s 6AAA of the Sentencing Act 1991 (‘Sentencing Act’) that, but for the plea of guilty, she would have imposed a total effective sentence of five years’ imprisonment with a non-parole period of three years.

The applicant seeks leave to appeal on the single ground that the sentence imposed was manifestly excessive.

The three charges of dangerous driving causing serious injury arose from a single incident which took place in Geelong in the early hours of Friday 14 December 2012. The applicant was aged 23 at the time and was the holder of a Victorian driver licence that had been suspended. The three passengers in the motor vehicle which the applicant was driving suffered the serious injuries which gave rise to the charges. Each of the passengers was aged 22 at the time of the incident. The passenger in the front seat was Mitchell Cassidy, whose mother owned the motor vehicle (a Holden Commodore). In the back seat were Jack Parnell and Jacob McDonald.

The applicant had been drinking prior to the collision, firstly with Mr Cassidy and Mr Parnell at the Norlane Hotel since approximately 5:00 pm the previous afternoon and then at other locations including the Eureka nightclub. On leaving the nightclub, the group offered Mr McDonald a lift home.

At approximately…

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: Gordon Frank Bell v The Queen [2016] VSCA 203
Case: [2016] VSCA 203
Decision Date: 22 August 2016

CaseChat Overview and Summary

The case before the court involved the appellant, Bell, who had pleaded guilty to three counts of dangerous driving causing serious injury. The sentencing judge imposed an aggregate sentence of 22 months’ imprisonment, with a 5-year community correction order. This order included supervision, a drug and alcohol abuse assessment and treatment, and participation in courses relating to offending behaviour. Bell sought to appeal the sentence, arguing that it was manifestly excessive. He also contended that the principle of parsimony, which suggests leniency in sentencing, required the sentencing judge to refrain from imposing a sentence of imprisonment.

The court examined whether the sentence imposed was manifestly excessive and whether the principle of parsimony mandated that the sentencing judge should not have imposed a sentence of imprisonment. The appellant relied on various authorities, including Boulton v The Queen and Greatorex v The Queen, to argue that the sentence was too severe. However, the court considered the gravity of the offences and the need for general deterrence and denunciation. It concluded that the sentence was not manifestly excessive and did not breach the principle of parsimony.

The court's reasoning was based on the seriousness of the offences, the need to protect the community, and the importance of general deterrence. The court found that the sentence was appropriate and did not contravene the principle of parsimony. Consequently, the appeal was dismissed, and leave to appeal was refused. The original sentence of 22 months’ imprisonment with a 5-year community correction order remained in place.

Orders