Brayshaw v The Queen

[2011] VSCA 233

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0306

SCOTT ANTHONY BRAYSHAW	Appellant
	v
THE QUEEN	Respondent

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JUDGES	HARPER and HANSEN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	5 August 2011
DATE OF JUDGMENT	18 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 233
JUDGMENT APPEALED FROM	R v Brayshaw (Unreported, County Court of Victoria, Judge Chettle, 10 August 2010)

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CRIMINAL LAW – Sentence – Culpable driving causing death and negligently causing serious injury – Plea of guilty – Total effective sentence of 9 years’ imprisonment and non-parole period of 6 years and 6 months – Manifest excess – General deterrence – Whether sentencing judge erred in the manner of determining the appropriate sentencing range – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr S A Moglia	Tony Hannerbery
For the Crown	Mrs C M Quin	Mr C Hyland, Solicitor for Public Prosecutions

HARPER JA:

The background to the appeal

1. The appellant pleaded guilty in the County Court and on 10 August 2010 was sentenced on one count of culpable driving causing death and one count of negligently causing serious injury, as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Culpable driving causing death [s 318 Crimes Act 1958]	20 years	8 years	Base
2.	Negligently causing serious injury [s 24 Crimes Act 1958]	10 years	2 years	1 year
Total Effective Sentence:		9 years’ imprisonment
Non-Parole Period:		6 years 6 months
6AAA Statement:		11 years’ imprisonment with a NPP of 8 years

1. While under the influence of methylamphetamine, the appellant drove a car which, at about 4.10am on Sunday 7 June 2009, collided with two trees before coming to rest.  A reconstruction of the accident by an appropriately qualified expert resulted in evidence that, at the time the appellant lost control, the car was travelling at 122 km/h.  The applicable speed limit at the location of the accident, on the Princes Highway just outside the central business district of Geelong, was 70 km/h.  The rear passenger was killed and the front passenger was severely injured.  The appellant had prior convictions for drink driving and other traffic offences.

1. The appellant did not give evidence at his plea hearing.  His instructions, which counsel put to his Honour during the course of the plea and which the judge accepted, were that he was asleep when a call came from the two friends who subsequently became his two victims.  It was very early on a Sunday morning, they were being harassed by some unfriendly people, and they wanted help to escape from a situation which was awkward, if not dangerous.  The appellant had himself been the victim of a street stabbing in 2006, so was conscious of the potential perils which his friends were facing.  The day or so before, however, he had consumed drugs.  He was not fit to drive.  The best that can be said for him was put on his plea:

The drugs were not taken proximate to the driving, but at the time…