SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0097
| MATTHEW GRAY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | McLEISH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 24 November 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 322 |
| JUDGMENT APPEALED FROM: | [2021] VCC 896 (Judge Tinney) |
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CRIMINAL LAW – Leave to appeal – Sentence – One charge of dangerous driving causing death – Related summary offence – Applicant driving truck failed to give way at intersection, colliding with cyclist – Sentence of 4 years and 2 months’ imprisonment – Non-parole period of 2 years and 6 months – Whether sentence manifestly excessive – Whether judge erred in assessing gravity of offending and moral culpability – Leave to appeal refused.
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| Written submissions: | Counsel | Solicitors |
| For the Applicant | Mr J Lowy | Docherty Legal |
| For the Respondent | Mr D Glynn | Ms A Hogan, Solicitor for Public Prosecutions |
McLEISH JA:
On 23 June 2021, the applicant pleaded guilty before a judge of the County Court to one charge of dangerous driving causing death,[1] and one related summary charge of driving a vehicle while exceeding the prescribed concentration of drugs.[2]
[1]Crimes Act 1958 s 319(1).
[2]Road Safety Act 1986 s 49(1)(bb).
On 2 July 2021, the judge sentenced him as follows:
Charge on indictment K11489040
Offence
Maximum
Sentence
Cumulation
1
Dangerous driving causing death
10 years
4 years and 2 months
–
Related summary offence
Charge 3
Driving a vehicle while exceeding prescribed concentration of drugs
12 penalty units
$750
N/A
Total effective sentence:
4 years and 2 months
Non-parole period:
2 years and 6 months
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
211 days
6AAA statement:
5 years and 6 months’ imprisonment with a non-parole period of 3 years and 4 months
Other relevant orders:
Licence cancellation and disqualification for 18 months from release date
The applicant seeks leave to appeal against sentence on two proposed grounds: first, that the sentence is manifestly excessive; and secondly, that the judge erred in assessing the objective gravity of the offending and the applicant’s moral culpability.
For the reasons that follow, leave to appeal will be refused.
Circumstances of offending
At the time of the offending, the applicant was 41 years old, working as a waste collection driver. In the early morning of 7 June 2019, he commenced his shift. At around noon, he was driving south on Woodward Road, Golden Gully, when he approached the intersection with Hattam Street.
The applicant was familiar with the route. There was a give way sign at the intersection. It was a fine day and the applicant had clear visibility westward along Hattam Street.
The applicant slowed his truck to a speed he believed to have been around 15 to 20 kilometres per hour as he approached the intersection, but did not stop. As he entered the intersection, Michael Keating was approaching the intersection from the west. Mr Keating was riding a red bicycle…
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- AGLC
- Gray v The Queen [2021] VSCA 322
- Case
- [2021] VSCA 322
- Decision Date
CaseChat Overview and Summary
The Court considered whether the sentence was manifestly excessive and whether the judge erred in assessing the gravity of the offending and the applicant’s moral culpability. The Court found that the judge appropriately assessed the seriousness of the offending and the applicant’s culpability. The Court noted that the applicant drove at speed into a familiar intersection without checking for oncoming traffic, despite having ample visibility and the cyclist wearing high-visibility clothing. The Court also accepted that the applicant demonstrated actual remorse and pleaded guilty, which were mitigating factors considered by the judge. The Court found that the judge had given appropriate weight to the circumstances of the case and the impact of the offending on the victim’s family and friends.
The Court dismissed the application for leave to appeal. The Court found that the sentence was not manifestly excessive and that the judge had appropriately assessed the gravity of the offending and the applicant’s moral culpability. The Court noted that the judge had considered all relevant factors, including the circumstances of the offending, the impact on the victim’s family and friends, and the applicant’s personal circumstances. The Court found that the sentence reflected the seriousness of the offending and the need to deter and rehabilitate the applicant. The Court did not grant leave to appeal, and the original sentence stands.
No orders were made by the Court in relation to the outcome of the appeal. The Court dismissed the application for leave to appeal and found that the original sentence was appropriate. The applicant remains sentenced to four years and two months imprisonment, with a non-parole period of two years and six months.
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
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The previous night, the applicant had consumed a small amount of methylamphetamine at home. After the accident, he provided a blood sample to police, which revealed a methylamphetamine level of 0.09mg/L (summary charge 3 — driving a vehicle while exceeding prescribed concentration of drugs). It was not suggested that the presence of the methylamphetamine contributed to the dangerous driving. The judge described the offending as neither at the lower nor the highest end of the range of seriousness for what is always, by its nature, a serious offence.[3] He rejected the applicant’s submission that it was ‘lower end’ offending. The applicant entered the intersection, which was familiar to him, at speed and without conducting an appropriate check for oncoming traffic. The judge accepted that the applicant wrongly believed the intersection was clear. But given the applicant’s driving experience, the fine conditions, ample visibility, and Mr Keating’s high-visibility clothing, any appropriate check would have revealed that Mr Keating was approaching the intersection with right of way.[4] The judge accepted that possible aggravating features were absent, while noting that the assessment of seriousness is not a matter of the subtraction of potential aggravating factors.[5][3]DPP v Gray [2021] VCC 906, [78] (‘Sentencing Remarks’).[4]Ibid [74].[5]Ibid [69]. The judge described the ‘profound’ impact of the offending. The loss to Mr Keating’s family and friends was devastating. He described their ‘deep sense of loss and grief’.[6] He paraphrased in some detail the contents of their victim impact statements.[6]Ibid [16]. The judge then set out the applicant’s personal circumstances. He had intermittent drug issues over a number of years, including one relatively minor previous drug conviction more than two decades earlier, which did not inform the sentencing task. The applicant had been a licensed driver for many decades, with little relevant traffic history. He had made productive use of his time in custody, including by abstaining from drugs. He had lost his job and his driving licence as a result of the offending, and was unable while imprisoned to care for his mother, who has breast cancer and chronic kidney disease, and his stepfather, who has dementia. The judge then referred to six further matters in mitigation. First, the applicant pleaded guilty, even though he did so ‘relatively late’, after a short contested committal and shortly after he was first shown CCTV footage of the incident. The judge attributed heightened utilitarian value to the plea because of pandemic-related backlogs.[7] [7]Ibid [43]–[49]; Worboyes v The Queen [2021] VSCA 169. Secondly, the judge accepted that the applicant demonstrated actual remorse, shown both by his plea, as well as a letter of apology.[8] [8]Sentencing Remarks [50]. Thirdly, the judge accepted that the applicant’s term of imprisonment would involve a greater burden than usual, by reason of pandemic-related limits on visits and programs, as well as the applicant’s anxiety from his inability to continue to care and assist his mother and stepfather.[9] [9]Ibid [54].