Harrison v The Queen

Case [2015] VSCA 349


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0220

PHOENIX HARRISON Appellant
v
THE QUEEN Respondent

S APCR 2014 0226

JOHN RIGOGIANNIS Appellant
v
THE QUEEN Respondent

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JUDGES: MAXWELL P, REDLICH and TATE JJA
WHERE HELD: MELBOURNE
DATES OF HEARING: 17 June and 10 August 2015
DATE OF ORDER: 12 August 2015
DATE OF JUDGMENT: 16 December 2015
MEDIUM NEUTRAL CITATION: [2015] VSCA 349
JUDGMENT APPEALED FROM: 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

  1. 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’.) 

    [1]Sentencing Advisory Council, ‘Maximum Penalty for Negligently Causing Serious Injury’ (Report, Sentencing Advisory Council, October 2007) 1 [1.2] (‘SAC 2007 Report’).

  1. 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.

    [2]See Gorladenchearau v The Queen (2011) 34 VR 149, 153 [13] (‘Gorladenchearau’).

  1. 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…

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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.

No further orders were made by the court.

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

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Ratio Decidendi

Legal Principle Established

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