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DPP v Huby

DPP v Huby

Case [2019] VSCA 106 17 May 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0237

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
THOMAS CALLUM HUBY	Respondent

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JUDGES:	PRIEST, McLEISH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 May 2019
DATE OF ORDERS:	13 May 2019
DATE OF REASONS:	17 May 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 106
JUDGMENT APPEALED FROM:	DPP v Huby [2018] VCC 1621 (Judge Gaynor)

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CRIMINAL LAW – Director’s appeal against inadequacy of sentence – Culpable driving causing death – Death of respondent’s own child – Plea of guilty – Sentence 5 years’ imprisonment, non-parole period 12 months – Disproportionality between head sentence and non-parole period – Whether non-parole period manifestly inadequate – Whether open to the Court to exercise residual discretion – Construction of ss 289 and 290 Criminal Procedure Act 2009 considered – R v VZ (1998) 7 VR 693; R v Leesley (2001) 33 MVR 495; R v De Montero (2009) 25 VR 694; DPP v Avci (2008) 21 VR 310; R v Tsiaras [1996] 1 VR 398; R v Bullen [2005] VSCA 206; R v Satalich (2004) 41 MVR 435; DPP v Miller (2005) 42 MVR 411; R v Campbell [2005] VSCA 225; DPP v King (2008) 50 MVR 517; Chaplin v The Queen (2010) 55 MVR 591; Leddin v The Queen [2014] VSCA 155 considered – Lower level of culpability of offending – Non-parole period not manifestly inadequate when considered separate from issue of disproportionality – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms F Dalziel QC with Ms J Warren	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr J McLoughlin with Ms A Wong	Victoria Legal Aid

PRIEST JA
MCLEISH JA
WEINBERG JA:

On 13 May 2019, this Court heard an appeal brought by the Director of Public Prosecutions against a sentence imposed on a charge of culpable driving causing death. At the conclusion of oral argument, the Court ordered that the appeal be dismissed. It indicated that reasons for that decision would be published in due course. These are those reasons.

Introduction

On 26 September 2018 the respondent, now aged 27, pleaded guilty in the County Court, at Ballarat, to a single charge of culpable driving causing death. He was sentenced on 3 October 2018 as follows:

Charges on Indictment Offence Maximum Sentence Cumulation

1
Culpable driving causing death

[contrary to s 318(1) of the Crimes Act 1958]
20 years 5 years Nil

Total Effective Sentence: 5 years’ imprisonment

Non-Parole Period: 12 months

(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: Nil

Other relevant orders:

All Victorian licences and/or permits held by the respondent be cancelled and that he be disqualified from obtaining any such licence or permit for a period of 30 months from 3 October 2018.

S6AAA Statement: 7 year’s imprisonment, with a non-parole period of 5 years.
Background facts

On Saturday, 23 April 2016, at about 2.35 pm, the respondent was…

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 Huby

Details

AGLC: Director of Public Prosecutions v Thomas Callum Huby [2019] VSCA 106
Case: [2019] VSCA 106
Decision Date: 17 May 2019

CaseChat Overview and Summary

The case of Director of Public Prosecutions v Huby involves the Director of Public Prosecutions appealing the sentence of a defendant convicted of culpable driving causing the death of their own child. The matter was heard in the Victorian Court of Appeal. The respondent had entered a guilty plea to the charge, and was sentenced to five years' imprisonment, with a non-parole period of 12 months. The Director of Public Prosecutions argued that the non-parole period was manifestly inadequate given the nature of the offence and the culpability of the offender.

The court was required to determine whether the non-parole period was manifestly inadequate and whether it had the residual discretion to alter the sentence. The court examined the relevant provisions of the Criminal Procedure Act 2009, and considered various authorities on the matter, including R v VZ, R v Leesley, R v De Montero, DPP v Avci, R v Tsiaras, R v Bullen, R v Satalich, DPP v Miller, R v Campbell, DPP v King, Chaplin v The Queen, and Leddin v The Queen. The court had to balance the need for a sentence that reflects the community's sense of justice with the principle that the determination of parole eligibility is a matter for the parole authority.

After considering the relevant authorities and the circumstances of the case, the court concluded that the non-parole period was not manifestly inadequate when considered separately from the issue of disproportionality. The court held that the lower level of culpability of the offending warranted a lesser sentence than would typically be imposed for culpable driving causing death. The court also noted that the respondent's remorse and the impact of the sentence on the family were relevant factors to consider. The appeal was dismissed, and the original sentence was upheld.

Orders