| 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…
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- AGLC
- George Varghese v The King [2024] VSCA 115
- Case
- [2024] VSCA 115
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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