DPP v Clark - [2010] VSCA 64

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 803 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS
	Respondent
v
RANDALL WYATT CLARK	Appellant

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JUDGES:	ASHLEY and MANDIE JJA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 March 2010
DATE OF JUDGMENT:	25 March 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 64
JUDGMENT APPEALED FROM:	R v Clark (Unreported, Supreme Court of Victoria, Curtain J, 22 August 2008)

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CRIMINAL LAW – Sentencing – Plea of guilty to one count of reckless culpable driving causing death and one count of dangerous driving causing serious injury – Multiple mitigating factors accepted by sentencing judge – Total effective sentence of seven years’ imprisonment with non-parole period of five years’ imprisonment not manifestly excessive – Crimes Act 1958, s 318(2)(a), s 319(1A).

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APPEARANCES:	Counsel	Solicitors
For the Respondent	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr S R Johns	Balmer and Associates

ASHLEY JA:

Hansen AJA will give the first judgment.

HANSEN AJA:

The appellant pleaded guilty in the Supreme Court to one count of dangerous driving causing serious injury (Count 1) and one count of reckless culpable driving causing death (Count 2). The offences occurred on 20 September 2006 when the appellant was aged 31 years. The maximum penalties for the offences were five years' imprisonment and 20 years' imprisonment respectively. On 22 August 2008 the appellant was sentenced to two years' imprisonment on Count 1 and six years' imprisonment on Count 2, with one year of the sentence on Count 1 to be served cumulatively with the sentence on Count 2. The result was a total effective sentence of seven years' imprisonment with a non-parole period of five years. The judge also cancelled the appellant's drivers licence and disqualified him from obtaining another licence for a period five years. The judge stated that she would have imposed a sentence of eight years with a non-parole period of six years but for the appellant's plea of guilty.

The circumstances of the offending were described by the judge as follows:

4On Wednesday 20 September 2006 you were in a troubled state. You were ruminating about the discovery of your father's abuse of your siblings and in these circumstances, whilst sitting in your car outside the Springvale Cemetery where the ashes of your late mother are interred, you decided to commit suicide. You undid your seatbelt and drove down Police Road at a speed observed by other road users to be in the vicinity of 150 kph. Your intention was to hit something solid on your side of the road and in that way, cause your death. Instead, you were seen to overtake two cars and then continue driving on the wrong side of the road. You collided in a head-on side-swipe fashion with the Toyota Camry being driven by Bopha Lisa Taing.
The force of the collision forced the Camry to rotate clockwise off the road and collide backwards through a brick fence. Ms Taing…

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 Clark

Details

AGLC: DPP v Clark [2010] VSCA 64
Case: [2010] VSCA 64
Decision Date: 25 March 2010

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Clark, the High Court of Australia was tasked with reviewing the sentence imposed on the appellant by the Court of Appeal of the Supreme Court of Victoria. The appellant, Clark, had pleaded guilty to one count of reckless culpable driving causing death and one count of dangerous driving causing serious injury. The Court of Appeal had affirmed the sentence of seven years' imprisonment with a non-parole period of five years imposed by the sentencing judge. The central issue before the High Court was whether the sentence was manifestly excessive in light of the mitigating factors acknowledged by the sentencing judge.

The High Court was required to determine if the sentence, as affirmed by the Court of Appeal, was manifestly excessive under the relevant provisions of the Crimes Act 1958. The Court had to consider the severity of the offences, the culpability of the offender, and the mitigating factors accepted by the sentencing judge. These factors included Clark's guilty plea, his expressions of remorse, his otherwise unblemished criminal record, and the impact of the offences on the victims and their families. The Court also needed to assess whether the sentence appropriately balanced the principles of denunciation, retribution, and rehabilitation.

The High Court held that the sentence was not manifestly excessive. The Court found that the sentencing judge had appropriately weighed the mitigating factors against the severity of the offences. The totality of the circumstances, including the appellant's culpability and the impact on the victims, justified the sentence. The Court of Appeal had correctly exercised its discretion, and the sentence imposed aligned with the principles of sentencing under the Crimes Act 1958. The Court concluded that the sentence was proportionate and did not exceed the bounds of what could be considered reasonable in the circumstances. The appeal was therefore dismissed.

No further orders were made by the High Court. The sentence of seven years' imprisonment with a non-parole period of five years, as affirmed by the Court of Appeal, remained in effect.

Orders