CRIMINAL LAW – Appeal – Sentence – Culpable driving causing death (three charges) – Negligently causing serious injury (three charges) – Reckless conduct endangering life (one charges) – Category of offending - Offences at upper end of range of seriousness – Behaviour ‘entirely conscious and deliberate’ – Current sentencing practice – Dangerousness informed by extent of risk – Sentences on individual charges not manifestly excessive – Totality principle not infringed – Application for leave to appeal refused – R v Towle (2009) 54 MVR 543 followed.
CRIMINAL LAW – Appeal – Sentence – Mitigating factors – Risk of deportation – Whether changes to Migration Act 1958 (Cth) capable of constituting ‘fresh evidence’ – Whether changes to Ministerial Directions capable of constituting ‘fresh evidence’ – Whether mandatory cancellation with option for revocation materially different risk – Risk remains matter of speculation – Expectations of the Australian community – No different sentence required – Guden v The Queen (2010) 28 VR 288 – R v Tabone (2006) 167 A Crim R 18 - Darcie v The Queen [2012] VSCA 11 - Migration Act 1958 (Cth) ss 501(3A), 501CA.
---
APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr J McLoughlin with Mr J Cass
Victoria Legal Aid
For the Respondent
Mr D Trapnell QC
Mr J Cain, Solicitor for Public Prosecutions
MAXWELL P REDLICH JA PRIEST JA:
The applicant (now aged 32) pleaded guilty to three charges of culpable driving, three charges of negligently causing serious injury and one charge of reckless conduct endangering life. He was sentenced as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1
Culpable driving[1]
20y
10y
Base
2
Culpable driving
20y
10y
18m
3
Culpable driving
20y
10y
18m
4
Negligently cause serious injury[2]
10y
5y
11m
5
Negligently cause serious injury
10y
3y
6m
6
Negligently cause serious injury
10y
4y
8m
7
Reckless conduct endangering life[3]
10y
5y
11m
Total Effective Sentence:
16y
Non-Parole Period:
11y
Pre-sentence Detention Declared:
248 days
6AAA Statement:
18y (NPP: 13y)
Other orders: Licence cancellation (effective as of date of sentence), licence disqualification for the balance of the non-parole period.
The applicant seeks leave to appeal on the following grounds:
1.The fact of my mandatory deportation following expiration of my minimum term constitutes fresh evidence and requires that the sentencing discretion be reopened and this factor be taken into account in mitigation of sentence; and
2.The individual sentences imposed upon me, the extent of cumulation ordered, and resulting total effective sentence and non-parole period are manifestly excessive in particular having regard to current sentencing practices and the principle…
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 Da Costa v The Queen
Sign in free to access the full text
Details
AGLC
Da Costa v The Queen [2016] VSCA 49
Case
[2016] VSCA 49
Decision Date
CaseChat Overview and Summary
The appellant, Da Costa, appealed against his sentence for culpable driving causing death, negligently causing serious injury, and reckless conduct endangering life. The Court of Appeal was asked to consider whether the sentences imposed were manifestly excessive and whether there were mitigating factors that warranted reconsideration, specifically the risk of deportation. The Supreme Court had sentenced Da Costa to a total of ten years’ imprisonment, with a non-parole period of five years and six months.
The Court of Appeal examined whether the sentences were at the upper end of the range of seriousness, whether the appellant's behaviour was entirely conscious and deliberate, and if the totality principle was infringed. It was noted that the offences were serious and the behaviour was conscious and deliberate, but the sentences were not manifestly excessive. The Court followed the principle in R v Towle that the totality principle was not infringed. The Court also considered whether the risk of deportation could be considered fresh evidence warranting a different sentence. It found that the risk of deportation remained speculative and did not materially alter the appellant's prospects.
The Court of Appeal dismissed the appeal against sentence, affirming that the sentences were appropriate and not manifestly excessive. The mitigating factors of potential deportation were considered but did not warrant a different sentence. The Court referenced Guden v The Queen, R v Tabone, and Darcie v The Queen to support its decision. The appellant's application for leave to appeal was refused.