DPP v Harrison (Unreported, County Court of Victoria, Judge Smith, 21 August 2014) DPP v Rigogiannis (Unreported, County Court of Victoria, Judge Chettle, 9 July 2014)
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CRIMINAL LAW – Appeal – Sentence – Negligently causing serious injury – Driving motor vehicle – Sentence 3y 6m – Whether manifestly excessive – High degree of negligence – Excessive speed – High blood alcohol level – Very serious injuries – Offending in upper range of seriousness – Appeal dismissed.
CRIMINAL LAW – Appeal – Sentence – Negligently causing serious injury – Driving motor vehicle – Sentence 4y – Whether manifestly excessive – High degree of negligence – Excessive speed – High blood alcohol level – Very serious injuries – Offending in upper range of seriousness – Appeal dismissed.
CRIMINAL LAW – Sentence – Current sentencing practice – Negligently causing serious injury – Driving motor vehicle – Maximum penalty increased from 5y to 10y – Whether sentencing practice reflects increased maximum – Whether sentencing for upper range offences adequate – Need for sentencing practice to change – Crimes Act 1958 s 24, Sentencing Act 1991, ss 5(2)(a), 5(2)(b).
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APPEARANCES:
Counsel
Solicitors
For the Appellant (Harrison)
Mr T Alexander
Phil Hennenburg
For the Appellant (Rigogiannis)
Ms K Argiropoulos
DST Legal
For the Respondent
Mr P B Kidd SC with Ms F L Dalziel
Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Law Institute of Victoria, as amicus curiae
Mr D Grace QC with Mr S Norton
Law Institute of Victoria
MAXWELL P
REDLICH JA
TATE JA:
Summary
Negligently causing serious injury (‘NCSI’) is a generic offence, capable of applying to any conduct which causes serious injury. It is, however, a charge most often laid when the serious injury results from the driving of a motor vehicle.[1] (We will refer to this category of the offence as ‘NCSI by driving’.)
In the hierarchy of driving offences, NCSI by driving sits above dangerous driving causing serious injury and below dangerous driving causing death.[2] The maximum penalty for NCSI is 10 years’ imprisonment. It was increased from five years’ imprisonment in 2008.
Phoenix Harrison (‘H’) and John Rigogiannis (‘R’) each appeal to this Court against the sentences imposed upon them for NCSI by driving. In each case the conduct falls within the upper range of seriousness for this category of offending, although short of the worst imaginable…
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.
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Details
AGLC
Harrison v The Queen [2015] VSCA 349
Case
[2015] VSCA 349
Decision Date
CaseChat Overview and Summary
The case of Harrison v The Queen involved an appeal against a sentence imposed on the respondent for negligently causing serious injury while driving. The matter was heard in the Court of Appeal of Australia. The respondent was found guilty of driving a motor vehicle negligently, resulting in serious injury to another person. The respondent was sentenced to a term of imprisonment of 3 years and 6 months, which the respondent argued was manifestly excessive.
The court was required to determine whether the sentence imposed by the trial judge was manifestly excessive, given the high degree of negligence exhibited by the respondent, which included driving at excessive speed and having a high blood alcohol level. The court also needed to consider the severity of the injuries caused and whether the sentence adequately reflected the upper range of seriousness of the offence. Additionally, the court was required to consider whether current sentencing practices adequately reflect the increased maximum penalty for such offences.
In delivering the judgment, the court found that the sentence imposed was not manifestly excessive. The court recognised the high degree of negligence exhibited by the respondent, the excessive speed at which the vehicle was driven, and the high blood alcohol level, all of which contributed to the very serious injuries caused. The court held that the offending was in the upper range of seriousness and that the sentence imposed was appropriate. The court further noted that the maximum penalty for such offences had been increased and that current sentencing practices adequately reflected this change. The appeal was dismissed.