Damian Rakatau v The Queen - [2021] VSCA 76

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0221

DAMIAN RAKATAU	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and McLEISH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 March 2021
DATE OF JUDGMENT:	26 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 76
JUDGMENT APPEALED FROM:	[2019] VCC 1318 (Judge Dawes)

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CRIMINAL LAW – Appeal – Sentence – Culpable driving causing death – Negligently causing serious injury – Total effective sentence 13 years – Non-parole period 9 years – Moral culpability – Appellant’s cognitive deficits – High blood alcohol level – Excessive speed – Incapable of controlling vehicle because of alcohol – Whether cognitive deficits were ‘meaningful factor’ in offending – No error – Leave to appeal refused – Wright v The Queen [2015] VSCA 333; Carroll v The Queen [2011] VSCA 150.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Edney	Mr M Brennan
For the Respondent	Ms E Ruddle SC	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
McLEISH JA:

Summary

The applicant pleaded guilty to two charges of culpable driving causing death and one charge of negligently causing serious injury. The sentencing judge imposed a sentence of 9 years’ imprisonment on each of the culpable driving charges, and 4 years’ imprisonment on the charge of negligently causing serious injury. With cumulation, the total effective sentence was 13 years’ imprisonment and a non-parole period of 9 years was fixed.

The applicant seeks leave to appeal on a single ground which contends that the judge erred in her treatment of his significant cognitive deficits. Specifically, it is said, it was not open to the judge to conclude that the applicant’s moral culpability, and the need for general deterrence, were unaffected by those cognitive deficits.

In our view, the proposed ground of appeal is not reasonably arguable, and leave to appeal must be refused. The evidence before the judge was that the applicant was heavily intoxicated at the time of the fatal accident. His blood alcohol concentration was estimated to have been between 0.15 and 0.17 per cent, more than three times the legal limit. It was well open to the judge to find that the level of intoxication was ‘an integral factor’ in the offending and to reject the submission that the cognitive deficits played a ‘meaningful part’ in the offending.

Background circumstances

On 7 July 2018, the applicant and his partner attended an evening function at a rugby club. While he was there, the applicant and a friend consumed between them 25 cans of whisky and cola, having an alcohol content of 6.9 per cent. The applicant left the party at around 11:15pm and was driven home by his partner, who then went to bed.

Just before midnight, the applicant left home again, driving a station wagon. His driving caught the attention of other motorists, as it was erratic and appeared to be dangerous. One driver recalled being overtaken by the applicant’s car travelling at ‘a high rate of speed’.…

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.

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Details

Case: [2021] VSCA 76
Decision Date: 26 March 2021

CaseChat Overview and Summary

Damian Rakatau appealed against his conviction and sentence for culpable driving causing death and negligently causing serious injury. The appeal was heard by the Supreme Court of Victoria. The key issue for the court was whether the appellant’s cognitive deficits constituted a meaningful factor in his offending, and if not, whether the sentence imposed was appropriate. The court also considered whether there was any error in the trial judge’s assessment of the appellant’s moral culpability and the totality of the sentence.

The court found that the appellant’s cognitive deficits were not a meaningful factor in his offending as the primary cause of the incident was his excessive speed and high blood alcohol level, which rendered him incapable of controlling the vehicle. The court held that there was no error in the trial judge’s assessment of the appellant’s moral culpability, noting that the appellant’s actions were reckless and demonstrated a high degree of blameworthiness. The total effective sentence of 13 years, with a non-parole period of 9 years, was considered appropriate given the gravity of the offences and the appellant’s culpability. The court dismissed the appeal and refused leave to appeal.

The final orders of the court were that the appeal be dismissed and leave to appeal be refused. The court upheld the original sentence imposed by the trial judge, finding that it was just and appropriate in all the circumstances.

Orders