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DPP v Johnstone

DPP v Johnstone

Case [2006] VSCA 281 15 December 2006

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 103 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
MARCUS STEPHEN JOHNSTONE

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JUDGES:	WARREN, C.J., MAXWELL, P. and BUCHANAN, J.A.
WHERE HELD:	BENDIGO
DATE OF HEARING:	11 October 2006
DATE OF JUDGMENT:	15 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 281

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CRIMINAL LAW – Crown appeal - Culpable driving – Respondent reading mobile phone – Respondent not travelling at excessive speed – Two passengers dead – One passenger seriously injured - Total effective sentence of four years and six months with non-parole period of two years and three months manifestly inadequate – Appeal allowed – Respondent re-sentenced to total effective sentence of six years and nine months with non-parole period of three years and three months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs. C.M. Quinn	Ms A. Cannon, Solicitor for Public Prosecutions
For the Respondent	Mr. P.G. Priest Q.C. with Mr M.J. Croucher	Dwyer Robinson

WARREN, C.J.:

The respondent, Marcus Stephen Johnstone, was convicted after trial in the County Court at Warrnambool on two counts of culpable driving and one count of negligently causing serious injury. A total effective sentence of four years and six months imprisonment was imposed and a non-parole period of two years and three months was fixed. The Director of Public Prosecutions appeals the sentences pursuant to s 567A of the Crimes Act 1958 on the ground of manifest inadequacy.

The circumstances of the offending arose from a single vehicle collision that occurred when the respondent was driving a 1993 VR Commodore sedan. The respondent failed to negotiate a sweeping left hand bend on the Cobden – Warrnambool Road and struck a utility pole on the opposite side of the roadway. As a result of the collision, Stephanie McCoy-Brassington, aged 13 years, and Emily Compton, aged 14 years, who were rear seat passengers in the vehicle, died instantly. Another passenger, Jessica McCosh, aged 15 years, also a rear seat passenger, was seriously injured.

The roadway approaching the point of collision was a sealed bitumen surface with a single lane provided for traffic travelling in the opposite direction. The speed limit was 100 kilometres per hour with an advisory speed sign of 70 kilometres per hour. The advisory speed sign was displayed to traffic travelling in the direction of the respondent’s vehicle when approaching the left hand curve. At the time of the collision it was dark, the road surface was dry and visibility was good. A total of seven individuals were in the vehicle at the time of the collision and a number were unrestrained by seatbelts. Arrangements had been made to pick up some of the passengers from Camperdown. The drive then involved travelling from Camperdown to Warrnambool via Cobden. During the drive the passengers in the back seat, Jessica McCosh, Stephanie McCoy-Brassington, Carl Stankovic – the owner of the car – and Emily Compton were laughing, joking and generally playing around. Their behaviour was distracting the respondent and he warned them to settle down.…

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.

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Details

AGLC: DPP v Johnstone [2006] VSCA 281
Case: [2006] VSCA 281
Decision Date: 15 December 2006

CaseChat Overview and Summary

The Director of Public Prosecutions brought an appeal against Johnstone following his conviction and sentencing for culpable driving. Johnstone was driving when he read a text message on his mobile phone, causing him to lose control of the vehicle. The vehicle rolled over, resulting in the deaths of two passengers and leaving another seriously injured. Johnstone was convicted and sentenced to a total effective term of four years and six months, with a non-parole period of two years and three months. The Director of Public Prosecutions appealed on the basis that the sentence was manifestly inadequate.

The court was required to determine whether the original sentence was manifestly inadequate. The court noted that the deaths of the two passengers and the serious injury of another were a result of the respondent’s gross negligence. The court also noted that Johnstone had no previous convictions, had shown remorse, and had cooperated with authorities throughout the proceedings. However, the court found that the original sentence did not reflect the seriousness of the offending and the loss of life. The court held that the original sentence was manifestly inadequate and allowed the appeal.

The court re-sentenced Johnstone to a total effective term of six years and nine months, with a non-parole period of three years and three months. The court noted that the re-sentence reflected the seriousness of the offending and the loss of life. The court also noted that the re-sentence was not excessive and took into account the respondent’s age, background, and remorse. The court held that the re-sentence was appropriate and proportionate to the offending. The appeal was allowed, and Johnstone was re-sentenced.

Orders