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
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
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.
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…
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- AGLC
- Brayshaw v The Queen [2011] VSCA 233
- Case
- [2011] VSCA 233
- Decision Date
CaseChat Overview and Summary
The court found that the sentencing judge had correctly identified the relevant principles and applicable law in determining the appropriate sentence. The judge had considered the relevant aggravating and mitigating factors, including the appellant's previous good character, the severity of the offences, and the need for general deterrence. The court held that the sentencing judge had not erred in determining the appropriate sentencing range and that the sentence imposed was not manifestly excessive. The appeal was dismissed, and the original sentence was upheld.
In reaching its decision, the court emphasised the importance of general deterrence in sentencing for offences of this nature. The court also noted that while the sentence imposed was severe, it was not so disproportionate as to render it manifestly excessive. The court found that the sentencing judge had appropriately balanced the various factors and exercised their discretion in a manner consistent with the relevant legal principles. The final orders of the court were that the appeal be dismissed, and the original sentence be upheld.
Orders
Orders of the court
Appeal dismissed.
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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