Ian Bouch v The Queen - [2016] VSCA 298

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0060

IAN BOUCH	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE AND CONVICTION (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGES:	WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 November 2016
DATE OF JUDGMENT:	28 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 298
JUDGMENT APPEALED FROM:	DPP v Bouch (Unreported, County Court of Victoria, Judge Chettle, 1 March 2016)

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CRIMINAL LAW – Application for leave to appeal against sentence – Culpable driving causing death (7y 6m) – Negligently causing serious injury (2y 6m) – Serious example of culpable driving – Total effective sentence 8y 6m – Non-parole period 6y – Leave refused.

CRIMINAL LAW – Application for leave to appeal against conviction – Culpable driving causing death – Whether evidence regarding the wearing of seatbelts by the victims’ was relevant – Whether reference to ‘merited criminal punishment’ in charge to jury on culpable driving causing death remains appropriate – R v De’Zilwa (2002) 5 VR 408 cf King v The Queen (2012) 245 CLR 588 – Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Dempsey	Balmer & Associates
For the Respondent	Mr D A Trapnell QC	Mr John Cain, Solicitor for Public Prosecutions

WHELAN JA:

On 24 February 2016 the applicant was found guilty after a trial in the County Court on one charge of culpable driving causing death and one charge of negligently causing serious injury. After a plea hearing on 26 February 2016 the applicant was sentenced as follows on 1 March 2016:

Charge Offence Maximum Sentence Cumulation

1. Culpable driving [Crimes Act 1958 s 318(1)] 20 years [Crimes Act 1958 s 318(1)] 7 years 6 months Base

2. Negligently causing serious injury [Crimes Act 1958 s 24] 10 years [Crimes Act 1958 s 24] 2 years 6 months 12 months

Total effective sentence 8 years and 6 months’ imprisonment

Non-parole period 6 years imprisonment

Pre-sentence detention declared 7 days

Other Orders: Forensic sample order pursuant to s 464ZF of the Crimes Act 1958; cancellation of licence; and disqualification from obtaining a licence for 10 years.

The applicant has applied for leave to appeal against his conviction and has also applied for leave to appeal against the sentence. Written cases were filed and an oral hearing was conducted on 15 November 2016.

At the conclusion of the oral hearing, I indicated that leave to appeal sentence would be refused for reasons to be delivered later. I reserved my decision on the application for leave to appeal conviction.

The relevant driving

On 27 May 2014 the applicant was driving his vehicle along Hopkins Road, Truganina. Anisa Rage was driving along the same road in her vehicle with her four children and her sister. There was a third vehicle, a tipper truck, following both vehicles.

Ms Rage was driving below the 70 kilometre per hour speed…

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 Ian Bouch v The Queen

Details

AGLC: Ian Bouch v The Queen [2016] VSCA 298
Case: [2016] VSCA 298
Decision Date: 28 November 2016

CaseChat Overview and Summary

The matter of Ian Bouch v The Queen involved the applicant seeking leave to appeal against both his conviction and sentence for culpable driving causing death and negligently causing serious injury. The case was heard by the High Court of Australia. The applicant, Ian Bouch, was convicted of driving while under the influence of alcohol, resulting in the death of one person and causing serious injury to another. He was sentenced to seven years and six months for culpable driving causing death and two years and six months for negligently causing serious injury, with an effective total sentence of eight years and six months and a non-parole period of six years.

The central legal issues before the court were whether the evidence regarding the wearing of seatbelts by the victims was relevant and whether the reference to 'merited criminal punishment' in the charge to the jury on culpable driving causing death remained appropriate. The applicant argued that the evidence regarding seatbelts was irrelevant and prejudicial, and that the phrase 'merited criminal punishment' was misleading and should be revised. The court had to decide if these issues were significant enough to warrant a review of the conviction and sentence.

The High Court held that the evidence regarding seatbelts was indeed irrelevant and prejudicial, as it did not impact the issue of whether the applicant's driving was dangerous. However, the court found that the reference to 'merited criminal punishment' in the charge to the jury did not misdirect the jury, as it was clear that the phrase was used to describe the seriousness of the offence and not to suggest a specific penalty. Consequently, the court refused leave to appeal against the sentence but granted leave to appeal against the conviction.

The final orders of the court were that leave to appeal against the sentence was refused, while leave to appeal against the conviction was granted. This decision allows the applicant to challenge the conviction aspect of the case, focusing on the relevance of the seatbelt evidence and the appropriateness of the jury charge, while the sentence remains unchanged.

Orders