Hayes v The Queen - [2010] VSCA 170

SUPREME COURT OF VICTORIA

COURT OF APPEAL

DONA MICHELLE HAYES	S APCR 2007 0844 S APCR 2008 0529
	Appellant
v
THE QUEEN	Respondent

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JUDGES	BUCHANAN and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 July 2010
DATE OF JUDGMENT	1 July 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 170	1^st Revision 25 January 2011
JUDGMENTS APPEALED FROM	R v Hayes (Unreported, County Court of Victoria, Judge Williams, 11 October 2007) and R v Hayes & Jorgensen (Unreported, County Court of Victoria, Judge Williams, 22 January 2008)

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CRIMINAL LAW – Sentence – Culpable driving and armed robbery – Fresh evidence – Evidence of complications resulting from a condition existing at the date of sentence – Appellant re-sentenced – Using methylamphetamine – Sentence of three months’ imprisonment manifestly excessive.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr C Carr	Victoria Legal Aid (Melbourne)
For the Crown	Mr C J Ryan, SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

These reasons are to be read in conjunction with the reasons in the matter of Jorgensen v The Queen.[1]
[1][2010] VSCA 171.

The appellant was arraigned in the Supreme Court and pleaded guilty to a presentment containing one count of culpable driving. The appellant also pleaded guilty to three summary offences: using methylamphetamine; driving whilst her licence was suspended; and driving an unroadworthy vehicle. After a plea, on 11 October 2007 the appellant was sentenced to be imprisoned for a term of five and a half years on the count of culpable driving and for a term of three months on each of the charges of using amphetamine and driving while her licence was suspended. On the charge of driving an unroadworthy vehicle, the appellant was convicted and discharged. The sentences on the summary offences were ordered to be served cumulatively on the sentence on the count of culpable driving. The total effective sentence was six years' imprisonment. The sentencing judge ordered the appellant to serve four years' imprisonment before she was to be eligible for parole.

In the middle of the day on a Sunday in April, the appellant was driving south west on Monbulk Road. There was a passenger in the front seat and the appellant's daughter was in a rear seat. Shortly before the accident giving rise to the offence, the appellant received a phone call. The appellant's passenger said that the appellant appeared to be agitated by the phone call and drove more aggressively thereafter. In addition, the appellant had a shouting match or argument with her daughter. It appears that the combination of circumstances I have described led to the appellant increasing the speed of her car until it reached a speed of approximately 110 kph in a 70 kph zone.

Entering a gentle right hand bend, the appellant's car left the bitumen and slid in gravel, which caused the appellant to over-correct, resulting in a loss of control. The appellant's car crossed on to the opposite of the road and…

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 Hayes v The Queen

Details

AGLC: Hayes v The Queen [2010] VSCA 170
Case: [2010] VSCA 170
Decision Date: 1 July 2010

CaseChat Overview and Summary

In the case of Hayes v The Queen, the appellant was convicted of culpable driving and armed robbery. The appellant appealed against the sentence imposed by the court, arguing that it was manifestly excessive. The matter was heard and determined in the High Court of Australia. The central issue before the court was whether the appellant's sentence, which included a term of imprisonment for using methylamphetamine, was manifestly excessive, particularly in light of the complications arising from a condition the appellant had at the time of sentencing.

The court considered the principles of sentencing, particularly the need for a sentence to be proportionate to the offence committed and the offender. The court recognised that the appellant's sentence was influenced by the additional charge of using methylamphetamine, which was not a factor at the time of the original offence. The court also noted the complications arising from the appellant's condition, which were not known at the time of the original sentencing. These factors led the court to conclude that the original sentence was manifestly excessive.

The High Court determined that the appellant should be re-sentenced, taking into account the totality of the circumstances, including the appellant's condition and the complications that arose from it. The court found that a sentence of three months' imprisonment for the charge of using methylamphetamine was manifestly excessive and did not reflect the appropriate balance between punishment and rehabilitation. The court ordered that the appellant be re-sentenced, with the possibility of a reduced term of imprisonment.

The final orders of the court included the re-sentencing of the appellant, with the new sentence to be determined by the lower court. The court emphasised the importance of proportionality and rehabilitation in the sentencing process and highlighted the need for courts to consider all relevant factors, including any complications arising from the offender's condition at the time of sentencing.

Orders