SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0006
| MICHAEL BYAST | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and EMERTON JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 October 2021 |
| DATE OF JUDGMENT: | 8 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 344 |
| JUDGMENT APPEALED FROM: | [2020] VCC 2051 (Judge Hogan) |
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CRIMINAL LAW – Appeal – Sentence – Negligently causing serious injury by driving – Conduct endangering a person – Total effective sentence 6 years and 11 months’ imprisonment – Whether judge erred in application of Harrison v The Queen – Upper range of seriousness – No error – Whether manifestly excessive – Application of Verdins principles – Bipolar affective disorder – Mitigating effect reduced – Non-compliance with prescribed medication – Persistent drug use – Extra-curial punishment – Appellant injury – Sentence within range – Appeal dismissed – Harrison v The Queen(2015) 49 VR 619, DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M Reardon with Mr N Howard | Victoria Legal Aid |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
EMERTON JA:
Summary
This appeal principally concerns the sentence of 6 years’ imprisonment imposed on the appellant for negligently causing serious injury by driving (‘NCSI by driving’). As will appear, the appellant’s offence was very serious indeed. He drove at ‘grossly excessive’ speed along a narrow street before colliding with the victim’s vehicle. The victim suffered very serious injuries. The judge found that the ongoing consequences for her and her family have been ‘devastating’.
The grounds of appeal raised two distinct issues. The first was whether the judge was right to regard this case as engaging the principles enunciated by this Court in Harrison v The Queen[1] and, in particular, what the Court there said about the need for ‘uplift’ in sentencing for upper end examples of NCSI by driving.
[1](2015) 49 VR 619; [2015] VSCA 349 (‘Harrison’).
The second issue concerned the appellant’s mental state at the time of the offence. The judge accepted that he suffered from bipolar affective disorder and that, at the time of the collision, he was in a manic state attributable to that disorder. Her Honour found, however, that the mitigating effect of that impairment of mental functioning was reduced by reason of the fact that the appellant had been non-compliant with his prescribed medication and, moreover, had been persistently taking drugs which he knew had an adverse effect on his mental state.
In our respectful opinion, her Honour’s approach was entirely correct. This was, very plainly, a case in the upper range of seriousness and what was said in Harrison was directly applicable, as recent decisions of this Court have confirmed.[2] As with the other ‘uplift’ decisions of this Court, the continuing authority of Harrison is unaffected by anything said by the High Court in Director of Public Prosecutions v Dalgliesh (a pseudonym)
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- AGLC
- Byast v The Queen [2021] VSCA 344
- Case
- [2021] VSCA 344
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the trial judge erred in applying the principles from Harrison v The Queen regarding the upper range of seriousness for such offences. The court also considered whether the sentence was manifestly excessive in light of the Verdins principles, taking into account mitigating factors such as the appellant's bipolar affective disorder, his non-compliance with prescribed medication, and his persistent drug use. The court balanced these mitigating factors against the extra-curial punishment the appellant had already endured, including his own injury, in assessing the overall severity of the sentence.
The High Court concluded that no error was made by the trial judge in applying the principles from Harrison v The Queen. The court found that the sentence was within the appropriate range for the offence, considering both the mitigating and aggravating factors. The court also noted that the appellant's persistent drug use and non-compliance with prescribed medication reduced the mitigating effect of his bipolar affective disorder. After weighing all these factors, the High Court held that the sentence was not manifestly excessive and dismissed the appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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