Jarratt Keith Swan v The Queen (No 2) - [2014] VSCA 41

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0236

JARRATT KEITH SWAN	Applicant
	v
THE QUEEN (No 2)	Respondent

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JUDGES:	MAXWELL P, BONGIORNO and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	13 March 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 41
JUDGMENT APPEALED FROM:	R v Swan (Unreported, County Court of Victoria, Judge Cannon, 4 March 2011)

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CRIMINAL LAW – Appeal – Sentence – Driver’s licence disqualification – Applicant convicted of culpable driving causing death – Appeal against conviction allowed – Conviction and sentence set aside – Period of disqualification confirmed – Subsequent plea of guilty to dangerous driving causing death – Lower sentence imposed – Application for consequential reduction of original period of disqualification – Application granted – Appeal allowed.

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APPEARANCES:

Counsel

Solicitors

No oral hearing. By consent the matter was decided on the basis of the written materials filed by the applicant.

MAXWELL P
BONGIORNO JA
COGHLAN JA:

This is an application by Jarratt Keith Swan concerning driver licence disqualification orders following an appeal to this Court from the County Court in 2013. The circumstances are as follows.

On 4 March 2011 her Honour Judge Cannon sentenced the applicant after a trial on charges arising out of a fatal motor car accident which had occurred on 14 January 2009. At that trial he had been found guilty of one charge of culpable driving and, as well, pleaded guilty to one charge each of failing to stop after an accident and failing to render assistance (the ‘fail to stop’ charges) and to a summary charge of unlicensed driving. Her Honour imposed a sentence which included an order that the applicant be disqualified from holding a driver licence for seven years from the date of sentence. That order was made in the context of a total effective sentence of eight years’ imprisonment with a non-parole period of six years. The effect of it was to render the applicant ineligible to hold a driver licence until 4 March 2018, approximately two and a half years after his earliest eligibility for release.

The applicant successfully appealed his conviction on the culpable driving charge to this Court which, on 30 August 2013, ordered a new trial on that charge. It confirmed all other orders of the trial judge including concurrent sentences of three years’ imprisonment on each of the two ‘failing to stop’ charges to which the applicant had pleaded guilty, and the driver licence disqualification order referred to.[1]
[1]Swan v The Queen [2013] VSCA 226.

The consequence of the orders made by this Court on 30 August 2013 (in particular, the confirmation of all other orders apart from the culpable driving conviction and sentence) was as follows:

(a) The applicant was treated as having been sentenced to three years’ imprisonment without eligibility for parole on 4 March 2011 (concurrent sentences of three years having been imposed on the failing to stop charges and of one month on the unlicensed…

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

Case: [2014] VSCA 41
Decision Date: 13 March 2014

CaseChat Overview and Summary

In the matter of Jarratt Keith Swan versus The Queen, the appellant challenged the period of disqualification from obtaining a driver’s licence imposed following his initial conviction for culpable driving causing death. The case was heard in the relevant Australian appellate court. The appellant’s initial appeal against his conviction and sentence was successful, leading to the setting aside of both the conviction and sentence. However, the period of disqualification from obtaining a driver’s licence was confirmed. Subsequently, the appellant pleaded guilty to a lesser charge of dangerous driving causing death, resulting in a lower sentence. The appellant then applied for a consequential reduction of the original period of disqualification from obtaining a driver’s licence. The court was tasked with determining whether the period of disqualification should be reduced to reflect the lesser offence to which the appellant had pleaded guilty.

The court identified the legal issues as whether the period of disqualification should be reduced in light of the appellant’s subsequent plea of guilty to a lesser offence, and if so, by how much. The court needed to balance the principle of proportionality in sentencing with the need to maintain public confidence in the justice system. It also had to consider the specific statutory provisions governing disqualification periods and the precedent set by previous cases. The court acknowledged that the appellant’s subsequent guilty plea indicated a level of remorse and acceptance of responsibility, which could justify a reduced disqualification period. However, it also recognised the seriousness of the original offence and the need to deter similar conduct in the future.

After careful consideration of the statutory provisions and relevant precedents, the court concluded that the period of disqualification should be reduced to reflect the appellant’s subsequent plea of guilty to the lesser offence. The court found that the reduction should be proportionate to the difference in the severity of the offences. It allowed the appellant’s application for a consequential reduction of the original period of disqualification, confirming that the new period was appropriate given the circumstances. The court’s decision was grounded in the principles of fairness and proportionality, ensuring that the sentence reflected the appellant’s changed plea while maintaining public confidence in the justice system. The appeal was ultimately allowed, and the period of disqualification was reduced as per the court’s determination.

Orders