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Gorladenchearau v The Queen

Gorladenchearau v The Queen

Case [2011] VSCA 432 16 December 2011

Appeal

Criminal Liability

Sentencing

Negligent Causing Serious Injury

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0894

PRASAD GORLADENCHEARAU	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, ASHLEY JA & ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 August 2011
DATE OF JUDGMENT:	16 December 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 432
JUDGMENT APPEALED FROM:	R v Gorladenchearau (Unreported, County Court of Victoria, Judge Gullaci, 17 July 2009)

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CRIMINAL LAW – Appeal – Sentence – Driving offences – Negligently causing serious injury – Gravity of offending assessed by reference to culpability and harm – Culpability a function of degree of risk and extent of likely harm – Relevance of effect on victim– Increase to maximum penalty – Review of current sentencing practice – Sentence manifestly excessive in light of recent sentencing practice – Whether current sentencing practice adequately reflects increase in maximum penalty – Appeal allowed – Appellant resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Slade & Parsons
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

This appeal principally concerns sentencing for the offence of negligently causing serious injury (‘NCSI’), contrary to s 24 of the Crimes Act 1958 (Vic) (‘Act’). The maximum penalty for NCSI was doubled in early 2008, from 5 years’ imprisonment to 10 years’ imprisonment,[1] following a recommendation to that effect by the Sentencing Advisory Council (‘SAC’).[2]
[1]By the Crimes Amendment (Child Homicide) Act 2008 (Vic), which also doubled the maximum penalty for dangerous driving causing death, from 5 years’ imprisonment to 10 years’ imprisonment.
[2]Sentencing Advisory Council, Maximum Penalty For Negligently Causing Serious Injury, (2007) (‘SAC Report’).

The appellant pleaded guilty to two counts of NCSI. These were driving related offences, as is almost invariably the case when a charge of NCSI is laid.[3] The appellant also pleaded guilty to two counts of recklessly engaging in conduct which placed another person in danger of serious injury, contrary to s 23 of the Act. The maximum penalty for that offence is 5 years’ imprisonment. He was sentenced as set out in the table below:

[3]The SAC’s review of NCSI offences prosecuted in the County Court in the period 2000–01 to 2005–06 showed that 95.8 per cent were driving related: SAC Report p 32.

Count Offence Maximum penalty Sentence Cumulation

1 Negligent driving causing serious injury (Crimes Act 1958 (Vic), s 24) 10y 5y Base

2 Negligent driving causing serious injury (Crimes Act 1958 (Vic), s 24) 10y 3y 12m

3 Reckless conduct endangering serious injury (Crimes Act 1958 (Vic), s 23) 5y 12m 3m

4 Reckless conduct endangering serious injury (Crimes Act 1958 (Vic), s 23) 5y 12m 3m

Summary charge Driving without licence 3m $500

Total effective sentence: 6y 6m

Non-parole period: 4y

Section 6AAA Statement: 8y with a non-parole period of 5y 6m

Other orders:

Licence cancelled and disqualified for period of 4y from the date of sentence

The circumstances of the offending

Count	Offence	Maximum penalty	Sentence	Cumulation
1	Negligent driving causing serious injury (Crimes Act 1958 (Vic), s 24)	10y	5y	Base
2	Negligent driving causing serious injury (Crimes Act 1958 (Vic), s 24)	10y	3y	12m
3	Reckless conduct endangering serious injury (Crimes Act 1958 (Vic), s 23)	5y	12m	3m
4	Reckless conduct endangering serious injury (Crimes Act 1958 (Vic), s 23)	5y	12m	3m
Summary charge	Driving without licence	3m	$500
Total effective sentence:	6y 6m
Non-parole period:	4y
Section 6AAA Statement:	8y with a non-parole period of 5y 6m
Other orders: Licence cancelled and disqualified for period of 4y from the date of sentence

On 23 August 2008, at approximately…

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 Gorladenchearau v The Queen

Details

AGLC: Gorladenchearau v The Queen [2011] VSCA 432
Case: [2011] VSCA 432
Decision Date: 16 December 2011

CaseChat Overview and Summary

In the case of Gorladenchearau v The Queen, the appellant was convicted of negligently causing serious injury by dangerous driving and was sentenced to the maximum penalty available under the statute. The matter was brought to the court of appeal, where the appellant contested the severity of the sentence, arguing that it did not align with recent sentencing practices and was excessively harsh given the circumstances of the case. The court was required to determine whether the appellant's sentence was appropriate in light of the statutory maximum penalty and the principles of sentencing for such offences.

The legal issues for the court to resolve included the assessment of the gravity of the offending, the relevance of the degree of risk and extent of likely harm to the appellant's culpability, and the impact of the offending on the victim. The court also needed to consider whether the current sentencing practices appropriately reflected the increase in the maximum penalty and whether the sentence imposed was manifestly excessive. In reviewing these issues, the court examined the appellant's culpability, the harm caused, and the broader context of sentencing for similar offences.

The court found that the appellant's culpability, while significant, was not of the highest degree, and the sentence imposed did not adequately reflect the principles of proportionality and consistency in sentencing. The court observed that recent cases had imposed lesser sentences for similar offences, indicating that the current sentencing practice may not fully account for the increase in the maximum penalty. As a result, the court concluded that the sentence was manifestly excessive. The appeal was allowed, and the appellant was resentenced to a term that more accurately reflected the gravity of the offending and aligned with recent sentencing practices.

The final orders of the court included the quashing of the original sentence and the re-sentencing of the appellant to a term that appropriately balanced the culpability and harm caused, while also being consistent with recent sentencing trends. The new sentence imposed recognised the seriousness of the offence but also considered the mitigating factors present in the case, ensuring a just outcome for both the appellant and the victim.

Orders