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:

1. 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.

1. 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.

1. 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.

1. 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 driving charge).  Once pre-sentence detention was taken into account, that sentence was due to expire on 13 September 2012.

(b)        Unless this Court now intervenes the applicant will remain disqualified from obtaining a driver licence until 4 March 2018.

1. Subsequently, the Crown elected not to re-try the applicant on the charge of culpable driving and accepted a plea of guilty to dangerous driving causing death in lieu — a charge to which the applicant had pleaded guilty on his arraignment before Judge Cannon.  He was sentenced on that offence in the County Court on 20 December 2013 by her Honour Judge Cotterell to three years’ imprisonment with a non-parole period of 16 months.  Pre-sentence detention of 463 days was declared, meaning the applicant became eligible for parole in mid-January 2014.

1. The practical effect of Judge Cotterell’s order was that the applicant is to serve a total of six years with a non-parole period of four years and four months in respect of all the offences arising from the accident.[2]  In respect of the offence of dangerous driving causing death, her Honour made a licence disqualification order of 18 months from 20 December 2013, that is, until 20 June 2015.

   [2]The applicant served eight months’ imprisonment for unrelated offences whilst on remand in 2009.

1. Judge Cotterell found that the applicant was genuinely remorseful and that he had already been significantly deterred from reoffending.  She accepted that he needed a driver licence to work as an electrician, as he had successfully done between 2002 and 2008.  The period of disqualification imposed by her Honour was the minimum allowed by statute.[3]

   [3]Sentencing Act 1991 (Vic) s 87P(d) and s 89(2)(a).

1. The minimum period of disqualification for the two ‘failing to stop’ offences is four years.[4]  It is open to this Court to date the disqualification from the date of the sentence imposed by Judge Cannon.[5] 

   [4]Road Safety Act 1986 (Vic) s 61(6).

   [5]R v Jennings [1999] 1 VR 352; Smith & Droste v The Queen [2012] VSCA 133, [35].

1. The sentence imposed by Judge Cotterell on the applicant remains a substantial one.  There has been a long delay in the finalisation of his case.  The demands of just punishment do not require disqualification to go beyond the minimum period.  This Court should have regard to Judge Cotterell’s findings as to the applicant’s rehabilitation in fixing the period of disqualification.

1. The Crown accepts that a just result could be achieved by setting aside Judge Cannon’s order for disqualification of 4 March 2011 and imposing, instead, orders that the applicant be disqualified from driving for four years from 4 March 2011 so that, taking Judge Cotterell’s order into account, his disqualification period will expire on 20 June 2015.

1. The Court will now make the following orders:

1.          The time for the applicant to make an application for leave to appeal against sentence is extended to 13 March 2014.

2.          The requirements for the filing of a written case in support of the application for leave be dispensed with, and the application be treated as having been made orally.

3.          The application for leave to appeal against sentence is granted.

4.          The appeal is treated as instituted and heard instanter and is allowed.

5.          The licence disqualification order imposed in the County Court by her Honour Judge Cannon on 4 March 2011 is set aside.

6.          In lieu thereof, it is ordered that the applicant be disqualified from obtaining a driver licence for a period of four years from 4 March 2011.

7.          For the avoidance of doubt, it is intended that the applicant be disqualified from obtaining a driver licence until 20 June 2015;  that is, until the expiration of the order of her Honour Judge Cotterell made on 20 December 2013.

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