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Board v The Queen

Board v The Queen

Case [2013] VSCA 190 17 July 2013

Appeal

Sentencing

Dangerous Driving Causing Death

Negligence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0024

VERNON BOARD
	Applicant
v
THE QUEEN	Respondent

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JUDGES	MAXWELL ACJ and BUCHANAN JA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 July 2013
DATE OF JUDGMENT	17 July 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 190
JUDGMENT APPEALED FROM	DPP v Board (Unreported, County Court of Victoria, 20 December 2012, Judge Hampel)

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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing death – Dangerous driving causing serious injury (3) – 4 years’ imprisonment – Non-parole period 1 year, 6 months – Very serious example of offending – Applicant aware of fatigue and considered pulling over but failed to do so – Applicant lost control of vehicle – Applicant not affected by alcohol – Whether trial judge made erroneous finding that applicant fell asleep at wheel – No such finding made – Not manifestly excessive – Application refused – Neethling v The Queen (2009) 22 VR 466 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Balmer and Associates
For the Respondent	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL ACJ:

The applicant pleaded guilty to one charge of dangerous driving causing death and three charges of dangerous driving causing serious injury. He was sentenced as follows:

Charge on indictment Offence Maximum Sentence Cumulation

1. Dangerous driving causing death 10 y 30 m Base

2. Dangerous driving causing serious injury 5 y 18 m 6 m

3. Dangerous driving causing serious injury 5 y 18 m 6 m

4. Dangerous driving causing serious injury 5 y 18 m 6 m

Total Effective Sentence: 4 y

Non-Parole Period: 1 y, 6 m

6AAA Statement: 6 y, 3 m

The application for leave to appeal against sentence was refused by a single judge, who concluded that none of the grounds of appeal was reasonably arguable. Pursuant to s 315(2) of the Criminal Procedure Act 2009 (Vic), the applicant elected to renew his application before a bench of two judges. One of the grounds advanced before the single judge has been abandoned.

For reasons which follow, I have come to the same conclusion as the single judge. I do not consider any of the proposed grounds of appeal to be reasonably arguable and I would refuse leave to appeal.

The circumstances of the offending

The applicant (‘B’)[1] was driving a car in which his wife and mother‑in‑law were both passengers. The fatal accident occurred when the applicant’s vehicle crossed the centre line into the path of an oncoming vehicle. His mother‑in‑law was killed. His wife sustained serious injuries, as did the two front seat passengers in the other car. There were two children in the back seat of the other car. Fortunately, they suffered only minor injuries.
[1]The abbreviation is used for ease of reference, not for anonymity.

The collision occurred on Monbulk Road. B was driving north, in the direction of Silvan. It was a Sunday afternoon. The weather was fine, the traffic was moderate…

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 Board v The Queen

Details

AGLC: Board v The Queen [2013] VSCA 190
Case: [2013] VSCA 190
Decision Date: 17 July 2013

CaseChat Overview and Summary

In the case of Board v The Queen, the applicant appealed against his sentence for dangerous driving causing death and serious injury. The matter was heard in the Court of Appeal, where the central issue was the severity of the sentence imposed by the trial judge. The applicant was sentenced to four years in prison with a non-parole period of one year and six months, following a high-speed crash that resulted in the death of one person and serious injury to another.

The appeal focused on whether the sentence was manifestly excessive and whether the trial judge had made an erroneous finding that the applicant fell asleep at the wheel. The Court of Appeal examined the trial judge's sentencing remarks and found no evidence of such a finding. The Court held that the sentence was not manifestly excessive, taking into account the very serious nature of the offending and the applicant's awareness of his fatigue before the crash. Despite considering pulling over, the applicant failed to do so, leading to the tragic consequences.

The Court of Appeal dismissed the application for appeal, applying the principles set out in Neethling v The Queen. The Court found that the trial judge had appropriately considered the relevant factors and that the sentence was proportionate to the gravity of the offence. The Court did not find the sentence to be manifestly excessive, given the applicant's culpability and the serious harm caused.

Orders