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Howton v The Queen

Howton v The Queen

Case [2012] VSCA 281 22 November 2012

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0131

DAVID BAREND HOWTON	Appellant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE, OSBORN and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	22 November 2012
DATE OF JUDGMENT	22 November 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 281
JUDGMENT APPEALED FROM	DPP v Howton (Unreported, County Court of Victoria, Judge Tinney, 11 May 2012)

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CRIMINAL LAW − Appeal against sentence − Dangerous driving causing death − Sentence of four years and four months’ imprisonment, with non-parole period of two and a half years − Appellant sustained significant injuries in accident − Whether sentence manifestly excessive − Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Pica Criminal Lawyers
For the Respondent	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

The appellant, David Howton, appeals, with leave, against a sentence of four years and four months’ imprisonment, with a non-parole period of two and a half years, which was imposed on him following his conviction by a County Court jury of dangerous driving causing the death of Mr John Grady. The maximum penalty for the offence is 10 years’ imprisonment.[1] The appellant’s driver licence was cancelled and he was disqualified from obtaining a licence for 24 months after his eventual release from prison.
[1]Crimes Act 1958, s 319.

On 19 September 2012, the appellant was granted leave to appeal against his sentence on the sole ground that the sentence was manifestly excessive.

The circumstances of the offending

The accident occurred when the appellant, a professional truck driver, was following his boss home from work, driving on an unfamiliar road. The circumstances of the offence are set out in my leave reasons as follows:

2[T]he applicant, a professional truck driver, crossed double lines onto the wrong side of the road in his Jaguar Sedan, colliding head on with station wagon driven by the victim, Mr John Grady, who was travelling in the opposite direction.
3The road conditions were fine and dry, the applicant’s car was in a roadworthy condition, and he was not affected by fatigue, drugs or alcohol. The road leading to the point of collision was straight and the speed limit was 100 km/hour. However, at the point of collision, there was ‘a slight incline to a crest, over which there is a “dip” in the road’, which significantly reduced the visibility of oncoming vehicles. One hundred and eighty five metres before the dip, the recommended speed was 60 km per hour and a cautionary sign warned drivers of an upcoming dip in the road. Double white lines were also marked on the road surface from the same point.
4Mr Grady died at the scene of the collision. The applicant was extricated from his vehicle and airlifted to the Alfred Hospital with life-threatening injuries.
5On 30 August 2009, the applicant told police in a record of interview that he had no recollection of the collision. On 16 April 2010,…

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 Howton v The Queen

Details

AGLC: Howton v The Queen [2012] VSCA 281
Case: [2012] VSCA 281
Decision Date: 22 November 2012

CaseChat Overview and Summary

The appellant, Howton, appealed against the sentence imposed on him by the County Court of Victoria for dangerous driving causing death. The deceased, who was a passenger in Howton's vehicle at the time of the accident, was killed when the vehicle crashed into a tree. Howton sustained significant injuries in the accident. He was sentenced to four years and four months' imprisonment, with a non-parole period of two and a half years. The central legal issue in the appeal was whether the sentence imposed was manifestly excessive.

The court considered the seriousness of the offence and the need to deter others from engaging in similar conduct. The court noted that the appellant had a prior history of driving offences, which indicated a disregard for the safety of others on the road. The court also considered the impact of the appellant's injuries on his ability to participate in rehabilitation programs while in custody. Ultimately, the court found that the sentence was not manifestly excessive, and dismissed the appeal. The court noted that the sentence reflected the seriousness of the offence and the need to deter others from engaging in similar conduct.

The court emphasised the importance of taking into account the appellant's prior history of driving offences and the need to protect the community from further harm. The court also noted that the sentence provided the appellant with an opportunity to participate in rehabilitation programs while in custody, which could assist in reducing the risk of reoffending. The court rejected the appellant's argument that his significant injuries should have been taken into account in determining the sentence. The court found that the appellant's injuries did not mitigate the seriousness of the offence or the need to deter others from engaging in similar conduct.

The appeal was dismissed, and the original sentence was upheld. The court emphasised the importance of imposing sentences that reflect the seriousness of the offence and the need to protect the community from further harm. The court also noted the importance of providing offenders with an opportunity to participate in rehabilitation programs while in custody, which could assist in reducing the risk of reoffending. The original sentence was affirmed, and the appellant's appeal was dismissed.

Orders