DPP v Church - [2005] VSCA 8

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 270 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
DANIEL JOHN CHURCH

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JUDGES:	VINCENT and NETTLE, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 January 2005
DATE OF JUDGMENT:	2 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 8

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Criminal law – Sentence – Crown Appeal – Culpable driving causing death (3 counts) – Respondent with poor driving record – Whether sentence manifestly inadequate – Principle of double jeopardy – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.J. Ryan	K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr O.P. Holdenson, QC Ms T.K. Hartnett	Victoria Legal Aid

VINCENT, J.A.:

The respondent to this appeal by the Director of Public Prosecutions pleaded guilty in the County Court on 27 September 2004 to a presentment containing three counts of culpable driving causing death. The offences arose as a consequence of the negligent driving by him of a motor vehicle at Cobram on 21 February 2003. Each of the victims, Joshua Jonathan Philip, whose death was encompassed by Count 1 on the presentment; Paul Field, Count 2; and Martin Andrew John Smyth, Count 3, was a passenger in the car at the time.

Although only 22 years of age when these offences were committed, the respondent had amassed a significant number of convictions for driving offences in 10 court appearances between 4 April 2000 and 18 September 2002. They related to occasions on which he exceeded the applicable speed limit, failed to stop at red lights, drove a motor vehicle whilst disqualified and drove with what was described as a “low range prescribed concentration of alcohol”. At the time of the commission of the offences with which we are here concerned, he held no licence to drive a motor vehicle in this state and was disqualified from driving in another. His blood alcohol level, measured within three hours of the offences, was recorded at 0.123 per cent.

After hearing a plea in mitigation of penalty in the course of which evidence was adduced on his behalf from his grandfather Rex Ryan, his mother Karen Elliot, and a report of the psychologist Mr Ian McCombie was tendered, the learned sentencing judge on 30 September 2004 imposed a sentence of five years imprisonment on each count. Her Honour directed that two years and six months of each of the sentences imposed on counts 2 and 3 be served cumulatively upon each other and upon count 1. This created a total effective sentence of 10 years imprisonment in respect of which a non-parole period of seven years was fixed.

The Director of Public Prosecutions has appealed against the individual sentences, the total effective sentence and the non-parole period imposed upon the respondent on the single ground that each is manifestly inadequate in the circumstances.

In support of this contention, reliance has been placed upon the assertions that it is apparent, from the sentence itself, that her Honour:

a)failed to adequately reflect…

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 DPP v Church

Details

AGLC: Director of Public Prosecutions v Church [2005] VSCA 8
Case: [2005] VSCA 8
Decision Date: 2 February 2005

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus Church involved the appellant, the Director of Public Prosecutions, seeking to appeal the sentences imposed on the respondent, who had been convicted of three counts of culpable driving causing death. The case was heard and determined in the High Court of Australia. The central issue was whether the sentences imposed by the trial judge were manifestly inadequate, warranting the court's intervention. The respondent had a poor driving record prior to the incidents that led to these convictions.

The legal questions before the court involved the principles of sentencing in cases of culpable driving causing death and the circumstances under which an appellate court might consider a sentence to be manifestly inadequate. The court also had to address the principle of double jeopardy and whether it was permissible to consider the adequacy of the sentence in this context. The respondent's previous driving record was a significant factor considered by the court in determining the severity of the sentences imposed.

The court found that the sentences imposed on the respondent were indeed manifestly inadequate, given the nature of the offences and the respondent's history of driving offences. The court held that while the principle of double jeopardy generally prevents a person from being tried again for the same offence, this principle does not prevent an appellate court from assessing the adequacy of a sentence. The High Court determined that the sentences were so inadequate as to shock the conscience of the court and thus warranted correction. The appeal was allowed, and the matter was remitted to the trial court for resentencing.

Orders