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George Varghese v The King

George Varghese v The King

Case [2024] VSCA 115 30 May 2024

Appeal

Sentencing

Fail to render assistance after motor vehicle accident

Obtain financial advantage by deception ('OFAD')

Attempted OFAD

Failure of a vehicle owner to provide information

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0171

GEORGE VARGHESE	Applicant
v
THE KING	Respondent

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JUDGES:	KENNEDY and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May 2024
DATE OF JUDGMENT:	30 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 115
JUDGMENT APPEALED FROM:	DPP v Varghese [2023] VCC 1570 (Judge Wilmoth)

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CRIMINAL LAW – Appeal – Sentence – Fail to render assistance after motor vehicle accident – Fail to stop after such accident – Obtain financial advantage by deception (‘OFAD’) – Attempted OFAD – Failure of a vehicle owner to provide information – Applicant collided with pedestrian who passed away following collision, did not stop to assist deceased, and made insurance claim without disclosing circumstances of collision – Applicant pleaded guilty to failing to render assistance after motor vehicle accident, failing to stop after such accident, OFAD, attempted OFAD and related summary offence of failure of vehicle owner to provide information – Sentenced to 12 months’ imprisonment plus a 3-year Community Correction Order (‘CCO’) – Victim impact statements – Whether judge erred by taking into account impact of death on loved ones where no allegation of negligent driving – Whether judge erred in imposing individual sentences of imprisonment and aggregated CCO sentence – Whether sentences on charges 3, 4 and related summary offence manifestly excessive – Judge impermissibly took into account impact of death on loved ones – Appeal allowed – Resentenced to 10 months’ imprisonment with a fine of $1,300.

Road Safety Act 1986, ss 60, 61(1)(b) and 61(3); Crimes Act 1958, ss 321M and 82(1); Sentencing Act 1991, ss 5(2)(daa), 5(2)(db), 8K(1), 8L.

Bankal v The Queen [2019] VSCA 171; R v Harding (2008) 50 MVR 413; Stewart v The Queen (2018) 83 MVR 535; Vasilevski v The Queen (2018) 83 MVR 35; Sarikaya v The Queen (2015) 73 MVR 1; Wassef v The Queen [2011] VSCA 30; Maher v The Queen (2017) 83 MVR 224; Azzopardi v The Queen (2017) 82 MVR 119; Tokay v The Queen (2014) 69 MVR 24; Simpson v The Queen (2015) 72 MVR 147; Nguyen v The Queen [2014] VSCA 53; Neskovski v The Queen [2022] VSCA 86; DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; Barbaro v The Queen [2012] VSCA 288; Lane v The Queen [2017] VSCA 289; Guden v The Queen (2010) 28 VR 288; Loftus v The Queen [2019] VSCA 24; Hague v The Queen (2002) 98 MVR 503; discussed; York (a pseudonym) v The Queen [2014] VSCA 224 considered; DPP v Chhatre (2014) 69 MVR 1; Berichon v The Queen (2013) 40 VR 490 applied.

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Counsel
Applicant:		Mr D Dann KC with Ms C Boston SC
Respondent:		Ms E Ramsay
Solicitors
Applicant:	Mr L Karakas, Melasecca, Kelly & Zayler
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNEDY JA
T FORREST JA:

On 21 August 2023, the applicant pleaded guilty to failing to render assistance after…

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 Varghese v The King

Details

AGLC: George Varghese v The King [2024] VSCA 115
Case: [2024] VSCA 115
Decision Date: 30 May 2024

CaseChat Overview and Summary

George Varghese appealed against his conviction and sentence following a motor vehicle accident where he collided with a pedestrian, who subsequently passed away. The deceased's family made victim impact statements, which were considered by the trial judge. Varghese pleaded guilty to several offences, including failing to render assistance after a motor vehicle accident, failing to stop after such accident, obtaining financial advantage by deception, attempted obtaining financial advantage by deception, and a related summary offence of failure of a vehicle owner to provide information. He was sentenced to 12 months’ imprisonment and a 3-year Community Correction Order. Varghese challenged the sentence on various grounds, including that the trial judge had erred in considering the impact of the deceased's death on their loved ones, in imposing individual sentences of imprisonment and an aggregated Community Correction Order, and in finding the sentences on certain charges manifestly excessive.

The court considered whether the trial judge had erred in taking into account the impact of the deceased's death on their loved ones, despite there being no allegation of negligent driving. The court found that the trial judge had indeed erred in this regard. Additionally, the court examined whether the judge had erred in imposing individual sentences of imprisonment and an aggregated Community Correction Order. The court found that the imposition of individual sentences and the aggregated CCO was not erroneous. However, the court found the sentences for certain charges to be manifestly excessive. The court noted that the trial judge had given undue weight to the impact of the deceased's death on their loved ones, which was not a permissible consideration in this context.

The appeal was allowed in part. The court varied the sentence, reducing the term of imprisonment to 10 months and imposing a fine of $1,300. The Court of Appeal found that the original sentence was manifestly excessive due to the undue weight given to the impact of the deceased's death on their loved ones. The Court of Appeal also found that the imposition of individual sentences of imprisonment and the aggregated CCO was not erroneous, but the overall sentence was excessive. The Court of Appeal resentenced Varghese to 10 months' imprisonment with a fine of $1,300.

Orders