Driscoll v The Queen - [2013] VSCA 366

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0129

JOHN GARY DRISCOLL	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, COGHLAN JA and DIXON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 August 2013
DATE OF JUDGMENT	13 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 366
JUDGMENT APPEALED FROM	DPP v Driscoll (Unreported, County Court of Victoria, 12 May 2011, Judge Taft)

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CRIMINAL LAW – Appeal – Sentence – Negligently causing serious injury (4 counts), unlicensed driving, unregistered vehicle – Total effective sentence 5 years, non-parole period 3 years 3 months – New evidence – Ill-health – Sentencing judge assumed appellant would have pain-relieving surgery – Surgery not available – Pain more severe than judge contemplated – Whether sentence should be reduced – Serious offending – High blood alcohol content – Serious injuries – Sentence reduction necessary to avoid miscarriage of justice – Appeal allowed – Non-parole period reduced to 2 years 9 months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
COGHLAN JA
DIXON AJA:

The appellant (now aged 42) pleaded guilty to four charges of negligently causing serious injury, and to summary charges of unlicensed driving, fraudulent use of a numberplate, fraudulent use of a registration label, and use of an unregistered motor vehicle. He was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Negligently causing serious injury [Crimes Act 1958 (Vic) s 24] 10 y [Crimes Act 1958 (Vic) s 24] 3 y 3 m Base

2 Negligently causing serious injury 10 y 3 y 3 m 6 m

3 Negligently causing serious injury 10 y 3 y 3 m 6 m

4 Negligently causing serious injury 10 y 3 y 3 m 6 m

Uplifted summary charge 22 Unlicensed driving [Road Safety Act 1986 (Vic) s 18(1)(a)] 25 penalty units or no more than 3 m [Road Safety Act 1986 (Vic) s 18(1)(a)] Aggregate term of 4 m (for summary offences 22, 24 and 25) 3 m of the aggregate term is cumulative upon above sentence

Uplifted summary charge 23 Using an unregistered motor vehicle [Road Safety Act 1986 (Vic) s 7(1)(a)] 25 penalty units for a first offence or 30 penalty units for a second or subsequent offence [Road Safety Act 1986 (Vic) s 7(1)(a)] Convicted and fined $200

Uplifted summary charge 24 Fraudulent use of a registration label [Road Safety Act 1986 (Vic) s 72(1)] 10 penalty units or 2 m [Road Safety Act 1986 (Vic) s 72(1)] Aggregate term of 4 m (for summary offences 22, 24 and 25)

Uplifted summary charge 25 Fraudulent use of a number plate [Road Safety Act 1986 (Vic) s 72(1A)] 60 penalty units or 6 m [Road Safety Act 1986 (Vic) s 72(1A) Aggregate term of 4 months (for summary offences 22, 24 and 25)

Total Effective Sentence: 5…

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 Driscoll v The Queen

Details

AGLC: Driscoll v The Queen [2013] VSCA 366
Case: [2013] VSCA 366
Decision Date: 13 December 2013

CaseChat Overview and Summary

The appellant, Driscoll, appealed against his conviction and sentence for negligently causing serious injury on four occasions, unlicensed driving, and driving an unregistered vehicle. The case was heard in the High Court of Australia. The primary issue before the Court was whether the sentence imposed by the trial judge was appropriate, given the appellant’s deteriorating health and the unavailability of the pain-relieving surgery that the sentencing judge had assumed would be available.

Driscoll’s argument centred on the severity of his physical condition, which was worse than the sentencing judge had anticipated. The appellant contended that his health issues warranted a reduction in his sentence to avoid a miscarriage of justice. The Court examined the principle that a sentence should be proportionate to the offence and the offender. In this context, the Court recognised that the appellant's health issues were significant and had not been adequately considered by the sentencing judge. The High Court also acknowledged the seriousness of the offences, including the high blood alcohol content at the time of the incidents and the severe injuries caused.

The Court found that the appellant's physical condition, which was more severe than anticipated, warranted a reconsideration of the sentence. The Court concluded that the original sentence was inappropriate given these new circumstances, and the non-parole period was reduced to 2 years and 9 months. The Court allowed the appeal on the basis that the original sentence would result in a miscarriage of justice due to the appellant's unmitigated health issues. The Court emphasised that while the offences were serious, the sentence needed to be proportionate to both the severity of the crimes and the appellant's personal circumstances.

Orders