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DPP v Gany

DPP v Gany

Case [2006] VSCA 148 7 July 2006

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 55 of 2006

THE DIRECTOR OF PUBLIC PROSECUTIONS
	v.
TABAN WILLIAM GANY

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JUDGES:	CHERNOV, VINCENT and REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 May 2006
DATE OF JUDGMENT:	7 July 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 148	1^st Revision 16 August 2006

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CRIMINAL LAW – Director’s appeal against sentence – Whether sentence manifestly inadequate – Repeated conduct involving drink driving - Negligently causing serious injury to children in schoolyard – Reckless conduct placing others in danger of serious injury – Failure to make orders for cumulation on each count – Suspended sentence – Necessity to first determine appropriate sentence – Whether total effective sentence appropriate – Failure of sentence to reflect gravity of offences – Appeal allowed

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. with Mr M.A. Gamble	Mr S. Carisbrooke Acting Solicitor for Public Prosecutions
For the Respondent	Mr L.C. Carter with Mr M. White	Matthew White & Associates

REDLICH, J.A. delivered the judgment of the Court (Chernov, Vincent, Redlich, JJ.A.):

The respondent, who is a Sudanese refugee now aged 33 years, pleaded guilty in the County Court at Melbourne on 18 December 2005 to a presentment which alleged four counts of negligently causing serious injury (counts 1 to 4) and one count of reckless conduct endangering persons (count 5). He also pleaded guilty to one summary charge of having a blood alcohol content which exceeded the prescribed limit. The offences occurred on 19 May 2005 at Dandenong when he lost control of the motor vehicle which he was driving. At that time his blood alcohol level was well in excess of the prescribed limits. The vehicle crashed through a cyclone mesh fence on the boundary of the Dandenong West Primary School causing serious injury to a number of children who were playing in the school ground.

The respondent admitted prior convictions from two court appearances, the most recent of which was at the Magistrates’ Court at Dandenong on 24 February 2005, when he was convicted of driving a motor vehicle whilst exceeding the prescribed blood alcohol concentration limit, being a learner driver driving a motor vehicle without an experienced driver and failing to display L-plates. Fines were imposed in relation to each of the charges and the Court ordered that his probationary driver’s licence be cancelled and that he be disqualified from obtaining any further licence for a period of 18 months. The respondent had also been convicted on 29 October 2004 of being a learner driver driving a motor vehicle without an experienced driver and had been placed upon a bond to be of good behaviour until 29 April 2005.

A plea for leniency was made on 8 December 2005 during which a drug intervention and treatment programme case manager and a medical practitioner who was treating the respondent for alcohol abuse were called as witnesses for the respondent. Numerous victim impact statements from the victims and family members…

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 Gany

Details

AGLC: DPP v Gany [2006] VSCA 148
Case: [2006] VSCA 148
Decision Date: 7 July 2006

CaseChat Overview and Summary

The case involved the Director of Public Prosecutions (DPP) appealing against the sentence imposed on Gany, who had been convicted of drink driving. The court had imposed a suspended sentence, which the DPP considered manifestly inadequate given Gany's repeated history of drink driving, and his negligent actions that caused serious injury to children in a schoolyard. Gany's conduct had also placed others in danger of serious injury. The issue before the court was whether the sentence imposed was appropriate, considering the gravity of the offences. The court also needed to determine if the sentence reflected the seriousness of Gany's actions.

The court determined that the sentence imposed was manifestly inadequate, as it did not adequately reflect the gravity of Gany's repeated and reckless conduct. The court noted that the sentence failed to impose a total effective sentence that adequately addressed the severity of Gany's actions. The court also found that the failure to make orders for cumulation on each count was an error that needed to be rectified. The court held that the appropriate course of action was to determine the appropriate sentence for each count and then cumulate them. The court concluded that the sentence imposed did not adequately reflect the gravity of the offences and allowed the appeal.

The court ordered that the sentence imposed by the trial court be set aside, and the matter be remitted to the trial court for the imposition of a total effective sentence. The court also directed the trial court to make orders for cumulation on each count, and to consider the appropriate sentence for each count. The court emphasised the importance of imposing a sentence that adequately reflects the gravity of the offences, and the need to protect the community from repeat offenders.

Orders