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)

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 Byast v The Queen

Details

AGLC: Byast v The Queen [2021] VSCA 344
Case: [2021] VSCA 344
Decision Date: 8 December 2021

CaseChat Overview and Summary

The appeal in Byast v The Queen involves the appellant, Byast, who was convicted of negligently causing serious injury by driving. The dispute primarily revolves around the severity of the sentence handed down by the lower court, which amounted to a total effective sentence of six years and eleven months’ imprisonment. The High Court was tasked with determining whether the judge erred in applying the principles set out in Harrison v The Queen and whether the sentence was manifestly excessive.

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