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George v The Queen

George v The Queen

Case [2017] VSCA 152 22 June 2017

Culpable Driving Causing Death

Dangereous Driving Causing Death

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0196
S APCR 2016 0228

NICHOLAS GEORGE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and PRIEST JJA, and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 May 2017
DATE OF JUDGMENT:	22 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 152
RULING APPEALED FROM:	DPP v George (Unreported, County Court of Victoria, Judge McInerney, 9 June 2016 (Conviction), 1 September 2016 (Sentence))

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CRIMINAL LAW — Application for leave to appeal — Conviction — Culpable driving causing death and dangerous driving causing death — Alternative offences under ss 318 and 319 of the Crimes Act 1958 — Application of s 422A(1) of the Crimes Act 1958 — Whether judge misdirected jury as to sequence in which they should deliberate — Applicability of Stanton v The Queen (2003) 198 ALR 41 — Reference to ‘merited criminal punishment’ — King v The Queen (2012) 245 CLR 588 applied — Application granted — Appeal dismissed.

CRIMINAL LAW — Application for leave to appeal — Sentence — Sentence of 12 years’ imprisonment with non-parole period of seven years and six months on two charges of culpable driving causing death — Whether deceased driver’s conduct relevant to applicant’s culpability — Whether sentence manifestly excessive — Whether fresh evidence of applicant’s medical condition — Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Gyorffy QC and Mr P A D’Arcy	Galbally Rolfe
For the Respondent	Mr D Trapnell QC and Mr M D Phillips	Mr J Cain, Solicitor for Public Prosecutions

ASHLEY JA:

I respectfully agree with Priest JA that, for the reasons which he gives, the application for leave to appeal against conviction should be granted on ground 5, but the appeal dismissed, and that the application for leave to appeal against sentence be refused. I have nothing to add with respect to the sentence application. I add the following with respect to the application for leave to appeal against conviction.

First, senior counsel for the applicant sought to make something of the fact that the applicant’s motor vehicle only clipped the vehicle driven by Mr Beardsmore. That is, there was no heavy collision. But there was no point to be made. At the time of the collision, the two vehicles were travelling at 150 kilometres per hour or thereabouts. The applicant’s vehicle had been travelling very close to the rear of Mr Beardsmore’s vehicle. At that speed, any contact between the vehicles was highly likely to produce the catastrophic outcome which in fact ensued. The applicant’s driving bespoke gross negligence, regardless that contact between the vehicles was slight.

Second, applicant’s counsel pressed a submission that Mr Beardsmore’s car had moved to its left as the applicant’s vehicle was attempting to pass it on the left hand side, this bringing about the collision. Counsel referred to Katie Tweedly’s evidence that the left indicator light on the applicant’s vehicle was operating shortly before the collision. He referred to the evidence of Angela Roane…

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 George v The Queen

Details

AGLC: George v The Queen [2017] VSCA 152
Case: [2017] VSCA 152
Decision Date: 22 June 2017

CaseChat Overview and Summary

George applied for leave to appeal his conviction and sentence for culpable driving causing death and dangerous driving causing death. The respondent, The Queen, opposed the application. The case was heard in the High Court of Australia. The primary legal issues before the court were whether the judge had misdirected the jury regarding the sequence in which they should deliberate on the alternative offences under sections 318 and 319 of the Crimes Act 1958, and whether the sentence imposed was manifestly excessive.

The court held that the judge had misdirected the jury as to the sequence in which they should deliberate, as per the application of section 422A(1) of the Crimes Act 1958. The court found that the judge's reference to 'merited criminal punishment' aligned with the principles in Stanton v The Queen (2003) 198 ALR 41 and King v The Queen (2012) 245 CLR 588. Consequently, the court granted leave to appeal regarding the misdirection of the jury but dismissed the appeal on the ground of sentence. The court held that the deceased driver’s conduct was relevant to the applicant's culpability, and the sentence was not manifestly excessive. Furthermore, the court refused to consider fresh evidence of the applicant’s medical condition.

The final orders of the court were that leave to appeal was granted in relation to the jury's deliberation sequence, but the appeal was dismissed. The sentence of 12 years’ imprisonment with a non-parole period of seven years and six months was upheld.

Orders