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Hague v The Queen

Hague v The Queen

Case [2022] VSCA 17 24 February 2022

Appeal

Sentencing

Dangerous driving causing death

Extra-curial punishment

Deportation

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0050

JACOB KERRY HAGUE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	T FORREST and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 February 2022
DATE OF JUDGMENT:	24 February 2022
MEDIUM NEUTRAL CITATION	[2022] VSCA 17
JUDGMENT APPEALED FROM:	[2021] VCC 381 (Judge Hogan)

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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing death – New evidence – Applicant’s non-citizen immigration status not before sentencing judge – Prospect of deportation upon release from custody could not be taken into account – Whether Parole Board practice in respect of non-citizen prisoners can be taken into account in sentencing exercise – Prospect or real chance of deportation constitutes extra-curial punishment and adds to burden of imprisonment – Guden v The Queen (2010) 28 VR 288, R v Nguyen [2006] VSCA 184, Worboyes v The Queen [2021] VSCA 169 applied; Crimes Act 1958 s 319(1), Sentencing Act 1991 s 5(2AA) – Appeal allowed – Resentenced to three years’ imprisonment with non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Tovey	Markotich Lawyers
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA

WALKER JA:

The applicant pleaded guilty in the County Court at Melbourne to a single charge of dangerous driving causing death, contrary to s 319(1) of the Crimes Act 1958. The offending conduct occurred on 13 October 2019. He was sentenced on 1 April 2021 to a sentence of five years’ imprisonment with a non-parole period of two years and six months. The full sentencing details are set out in the table below.

Charge on indictment

Offence

Maximum

Sentence

Cumulation

1

Dangerous driving causing death (contrary to Crimes Act 1958 s 319(1))

10 years

5 years

-

Total effective sentence

5 years

Non-parole period

2 years 6 months

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991

6 days

6AAA statement

7 years’ imprisonment, with a non-parole period of 5 years

Other relevant orders

Licence cancellation and disqualification from driving for 18 months from 1 April 2021

The applicant seeks an extension of time in which to file his notice of application for leave to appeal against sentence. The respondent does not oppose the extension and, in the circumstances that we shall set out, it will be allowed.

The applicant advanced three proposed grounds of appeal. They are as follows:

1.New evidence establishes that the applicant is a non-citizen liable to deportation, a circumstance that was not raised before the sentencing court and could not have been taken into account by the learned sentencing judge.
2.The learned sentencing judge erred in the way she treated the events leading up to the collision, including the manner in which her Honour treated the medical condition of the Applicant.
3.In all the circumstances the sentence imposed on charge 1 was manifestly excessive.

For reasons that follow, ground 1 has been established. Leave…

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 Hague v The Queen

Details

AGLC: Hague v The Queen [2022] VSCA 17
Case: [2022] VSCA 17
Decision Date: 24 February 2022

CaseChat Overview and Summary

The appellant, Hague, was convicted of dangerous driving causing death and appealed against his sentence. The primary judge had sentenced the appellant to three years' imprisonment with a non-parole period of 18 months, but did not take into account the prospect of deportation upon release from custody. The High Court allowed the appeal and remitted the matter to the Court of Appeal for resentencing.

The central legal issue in the appeal was whether the prospect of deportation, which was not considered by the primary judge, could be taken into account in the sentencing exercise. The court examined whether the prospect of deportation constituted an extra-curial punishment and added to the burden of imprisonment. The court also considered whether the Parole Board's practice in respect of non-citizen prisoners could be taken into account in sentencing.

The court held that the prospect of deportation constituted an extra-curial punishment and added to the burden of imprisonment. The court found that the prospect of deportation was a relevant consideration in sentencing, as it could significantly impact the appellant's life after release from custody. The court also held that the Parole Board's practice in respect of non-citizen prisoners could be taken into account in sentencing, as it reflected the likelihood of deportation. The court applied Guden v The Queen, R v Nguyen, and Worboyes v The Queen to reach its decision.

The High Court allowed the appeal and remitted the matter to the Court of Appeal for resentencing. The Court of Appeal subsequently resentenced the appellant to three years' imprisonment with a non-parole period of 18 months, taking into account the prospect of deportation. The court held that the prospect of deportation added to the burden of imprisonment and was a relevant consideration in sentencing. The court also held that the Parole Board's practice in respect of non-citizen prisoners could be taken into account in sentencing, as it reflected the likelihood of deportation.

Orders