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DPP v Janson

DPP v Janson

Case [2011] VSCA 19 4 February 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2010 0231

DIRECTOR OF PUBLIC PROSECUTIONS
	v
BRETT ANTHONY JANSON

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JUDGES	NETTLE and NEAVE JJA and KYROU AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	3 February 2011
DATE OF JUDGMENT	4 February 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 19
JUDGMENT APPEALED FROM	DPP v Janson, (Unreported, County Court of Victoria, Judge Hampel, 23 June 2010)

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CRIMINAL LAW – Sentencing – Director’s appeal – Dangerous driving causing death (2 counts) and dangerous driving causing serious injury (3 counts) – Respondent in control of large prime mover and trailer – Entered intersection against traffic lights at 70 kph – Failing to keep proper lookout ahead for between 10 and 11 seconds – Whether sentence of three years wholly suspended for three years and a Community Based order of 250 hours over a two year period manifestly inadequate – Whether appropriate case for exercise of discretion not to re-sentence – Whether recent Parliamentary increase in maximum sentencing penalty taken wholly into account – Sentence manifestly inadequate – Resentenced to a total effective sentence of four years’ imprisonment with a non-parole period of two years.

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Appearances:	Counsel	Solicitors
For the Crown	Mr J W Rapke QC, DPP with Mrs C M Quin	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson QC with Mr E J Delany	Tony Hargreaves & Partners

NETTLE JA:

On 23 June 2010, the respondent, Brett Anthony Janson, was sentenced by a judge of the County Court on two counts of dangerous driving causing death, to which he pleaded guilty, to a total sentence of three years’ imprisonment, wholly suspended for three years, and on three counts of dangerous driving causing serious injury, to which he also pleaded guilty, to a community based order with a condition of 250 hours unpaid community work over two years. The judge further ordered that the respondent’s driving licence be cancelled and that he be disqualified from obtaining a licence for two years.

The Crown now appeals against the sentence on grounds that the judge erred in failing to give full effect to the increase in maximum penalty for dangerous driving causing death (from five to ten years’ imprisonment) which was effected by s 5 of the Crimes Amendment (Child Homicide) Act 2008; erred in characterising the respondent’s offences of dangerous driving causing death as being at the low end of the dangerous driving scale, and his offences of dangerous driving causing serious injury as being at the low level of the culpability hierarchy; erred in approaching the matter on the basis that general deterrence carried less weight in sentencing in this case than it does generally in sentencing for offences of culpable driving causing death or negligently causing serious injury; erred in her perception of current sentencing practices; and imposed a sentence which was in all the circumstances manifestly inadequate.

Circumstances of the offending

The facts appear from the judge’s sentencing remarks. On…

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 Janson

Details

AGLC: DPP v Janson [2011] VSCA 19
Case: [2011] VSCA 19
Decision Date: 4 February 2011

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Janson, the case was heard in the Court of Appeal. The appeal arose from a sentencing decision regarding the respondent who was found guilty of multiple charges related to dangerous driving. These included two counts of dangerous driving causing death and three counts of dangerous driving causing serious injury. The incidents involved the respondent operating a large prime mover and trailer, entering an intersection against traffic lights at a speed of 70 kph, and failing to maintain a proper lookout ahead for a significant period.

The central legal issue before the court was whether the original sentence of three years, wholly suspended for three years, and a Community Based order of 250 hours over a two-year period was manifestly inadequate. The court also needed to determine if it was an appropriate case for the exercise of the discretion not to re-sentence and whether the recent Parliamentary increase in the maximum sentencing penalty for such offences had been taken into account. The court examined the severity of the offences and the impact of the respondent's actions on the victims and their families.

The court found that the sentence was manifestly inadequate, considering the gravity of the offences and the Parliament's recent increase in the maximum sentencing penalty. The court held that the original sentence did not reflect the seriousness of the respondent's actions, which resulted in significant harm and loss of life. As a result, the court exercised its discretion to re-sentence the respondent to a total effective sentence of four years' imprisonment, with a non-parole period of two years. This decision emphasised the need for sentences to appropriately reflect the seriousness of dangerous driving offences that result in death or serious injury.

Orders