Gangur v The Queen - [2012] VSCA 139

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0149

JOHN ANDREW GANGUR	Appellant
	v
THE QUEEN	Respondent

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JUDGES	BUCHANAN, NEAVE and REDLICH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 May 2012
DATE OF JUDGMENT	27 June 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 139
JUDGMENT APPEALED FROM	DPP v Gangur (Unreported, County Court of Victoria, Judge Gaynor, 11 February 2011)

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CRIMINAL LAW − Appeal against sentence − Two charges of dangerous driving causing serious injury − Four summary driving charges − Plea of guilty − Total effective sentence of six years and six months’ imprisonment, with non-parole period of four years and six months − Whether judge erred in imposing sentence of imprisonment for summary offence − Whether order for cumulation made on sentence for exceeding prescribed concentration of alcohol amounted to double punishment − R v Audino (2007) 180 A Crim R 371 considered − Whether sentence manifestly excessive − Whether sentence offended principle of totality − Appeal allowed − Appellant re-sentenced to five years and three months’ imprisonment, with non-parole period of three years.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the Respondent	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

NEAVE JA:
REDLICH JA:

The appellant, John Andrew Gangur, pleaded guilty to two charges of dangerous driving causing serious injury and four summary driving offences. He was sentenced to a total effective sentence of six years and six months’ imprisonment, with a non-parole period of four years and six months.

The maximum sentences for those offences, the individual sentences imposed and the orders made by the learned sentencing judge are set out below:

Charge	Offence	Maximum	Sentence	Cumulation
Charge 1	Dangerous driving causing serious injury	5 years’ imprisonment	4 years’ imprisonment	Base sentence
Charge 2	Dangerous driving causing serious injury	5 years’ imprisonment	3 years’ imprisonment	2 years’ imprisonment
Summary charge	Exceeding the prescribed concentration of alcohol	18 months’ imprisonment or 180 penalty units	12 months’ imprisonment	6 months’ imprisonment
Summary charge	Driving with illicit substance present in blood	12 penalty units	3 months’ imprisonment
Summary charge	Unlicensed driving	3 months’ imprisonment or 25 penalty units	2 months’ imprisonment
Summary charge	Using a vehicle not in a safe and roadworthy condition (without conviction)	5 penalty units	Fine of $500.00

In addition, the appellant was disqualified from obtaining any Victorian licence and/or permit for a period of 6 years from the date of sentence, and the judge ordered that any such licence and/or permit(s) held by the appellant be cancelled.

On 26 October 2011, the appellant was granted leave to appeal against his sentence.

Background

The background to the offences and the offender were set out in Neave JA’s leave reasons as follows:

3The offences arose out of an incident on 9 June 2010, in which the applicant drove his vehicle in a southerly direction along the Calder Highway, having some hours earlier consumed a six pack of full strength beer 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 Gangur v The Queen

Details

AGLC: Gangur v The Queen [2012] VSCA 139
Case: [2012] VSCA 139
Decision Date: 27 June 2012

CaseChat Overview and Summary

In the matter of Gangur v The Queen, the appellant, Gangur, appealed against his sentence following a guilty plea to two charges of dangerous driving causing serious injury and four summary driving charges. The case was heard by the Court of Appeal in Australia, where the appellant contested the total effective sentence of six years and six months’ imprisonment, with a non-parole period of four years and six months. The appellant argued that the judge erred in imposing a sentence of imprisonment for the summary offences, that the order for cumulation made on the sentence for exceeding the prescribed concentration of alcohol amounted to double punishment, and that the overall sentence was manifestly excessive and offended the principle of totality.

The court considered whether the judge was correct in imposing a sentence of imprisonment for the summary offences, despite the appellant's argument that such a sentence was inappropriate. The court also examined whether the order for cumulation made on the sentence for exceeding the prescribed concentration of alcohol constituted double punishment, and whether the overall sentence was manifestly excessive and breached the principle of totality. The court referred to the decision in R v Audino to assist in its reasoning.

The court determined that the judge erred in imposing a sentence of imprisonment for the summary offences, as such sentences should typically be dealt with by fines or other non-custodial penalties. The court also found that the order for cumulation made on the sentence for exceeding the prescribed concentration of alcohol did not amount to double punishment, as it was a legitimate way to reflect the gravity of the offending. However, the court agreed that the overall sentence was manifestly excessive and breached the principle of totality, as it did not appropriately balance the seriousness of the offences with the appellant’s circumstances. The appeal was allowed, and the appellant was re-sentenced to five years and three months’ imprisonment, with a non-parole period of three years.

Orders