Halket v The Queen - [2016] VSCA 221

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0076

JASON HALKET	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL ACJ, REDLICH and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 July 2016
DATE OF JUDGMENT:	14 September 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 221
JUDGMENT APPEALED FROM:	DPP v Halket [2016] VCC 520

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CRIMINAL LAW – Appeal – Sentence – Negligently causing serious injury (by driving) – Two charges – Sentenced to six years’ imprisonment (charge 1), four years and six months (charge 2) – Total effective sentence seven years and six months – Driver not in proper control – Sleep-deprived – ‘Rebound’ effect of methylamphetamine – Unsafe driving over 2.4 kilometres – Collided with stationary vehicle – Whether sentence manifestly excessive – Judge not constrained by previous sentencing practice – Application for leave to appeal refused – Harrison v The Queen (2015) 74 MVR 58 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J R Cass	Victoria Legal Aid
For the Respondent	Mr B F Kissane QC	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL ACJ
REDLICH JA
McLEISH JA:

Summary

The applicant pleaded guilty to two counts of negligently causing serious injury by driving (‘NCSI by driving’).[1] He was sentenced as follows:
[1]See Harrison v The Queen (2015) 74 MVR 58, 62 [1] (‘Harrison’).

Charge Offence Maximum Sentence Cumulation

1 Negligently causing serious injury[2] 10y 4y 6m 1y 6m

2 Negligently causing serious injury 10y 6y Base

Total Effective Sentence: 7y 6m

Non-Parole Period: 5y

6AAA Statement (in relation to charge 1): 9y with 7y NPP

Other relevant orders:

§ Licence cancelled and disqualified for 7y

§ S464ZF Forensic Sample

[2]Crimes Act 1958 (Vic) s 24.

In December 2015, in Harrison, this Court held that current sentencing practices for NCSI by driving were ‘plainly inadequate’ and that sentences for this offence needed to be increased.[3] The applicant pleaded guilty several months after that decision was handed down. Accordingly, it was common ground before the sentencing judge that she was not constrained by pre-Harrison sentencing practices.
[3](2015) 74 MVR 58, 87 [137]–[140].

There are two proposed grounds of appeal. The first is that the judge made a specific error in assessing the applicant’s prospects of rehabilitation as ‘guarded’. The second is that the sentence was manifestly excessive.

For reasons which follow, we are not persuaded that the sentence imposed was outside the range reasonably open to the judge in the circumstances of the case,[4] nor that there was any error with respect to the applicant’s prospects of rehabilitation. The application for leave to appeal must therefore be refused.
[4]Clarkson v The Queen (2011) 32 VR 361, 384 [89].

The circumstances of the offending

The applicant was aged 47 when he committed these offences. He was a professional truck driver and he was familiar with the truck he was driving that day. He had just dropped a full load of clay from a construction site in Caulfield to the…

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 Halket v The Queen

Details

AGLC: Halket v The Queen [2016] VSCA 221
Case: [2016] VSCA 221
Decision Date: 14 September 2016

CaseChat Overview and Summary

The appellant was convicted of two charges of negligently causing serious injury by driving, arising from a collision with a stationary vehicle. The trial judge sentenced the appellant to six years’ imprisonment for the first charge, and four years and six months for the second, to run concurrently, resulting in an effective sentence of seven years and six months. The appellant sought leave to appeal against the sentence, contending it was manifestly excessive. The High Court considered whether the trial judge was constrained by previous sentencing practice and if the sentence was manifestly excessive.

The primary issue before the court was whether the trial judge was constrained by previous sentencing practice in imposing the sentence, and if the sentence was manifestly excessive. The appellant argued that the trial judge was constrained by previous sentencing practice and that the sentence was manifestly excessive, given the appellant's sleep-deprived state and the 'rebound' effect of methylamphetamine at the time of the offence. The Crown argued that the trial judge was not constrained by previous sentencing practice and that the sentence was not manifestly excessive, given the gravity of the offence and the need for general deterrence.

The court held that the trial judge was not constrained by previous sentencing practice and that the sentence was not manifestly excessive. The court found that the trial judge had considered the appellant's sleep-deprived state and the 'rebound' effect of methylamphetamine, but had also considered the gravity of the offence and the need for general deterrence. The court held that the sentence was appropriate and that the appellant had not demonstrated that the sentence was manifestly excessive. The court applied the principles in Harrison v The Queen (2015) 74 MVR 58 and held that the sentence was not manifestly excessive.

The court refused the appellant leave to appeal against the sentence. The court held that the sentence was not manifestly excessive and that the trial judge had properly considered the relevant factors in imposing the sentence. The court found that the sentence was appropriate and that the appellant had not demonstrated that the sentence was manifestly excessive.

Orders