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Johns v The Queen

Johns v The Queen

Case [2020] VSCA 135 29 May 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0049

SAMANTHA IRENE JOHNS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	FERGUSON CJ, McLEISH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 May 2020
DATE OF JUDGMENT:	29 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 135
JUDGMENT APPEALED FROM:	DPP v Johns (Unreported, County Court of Victoria, Judge C Ryan, 8 February 2019)

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CRIMINAL LAW – Appeal – Conviction – Application for leave to appeal against conviction – Convicted for recklessly cause serious injury in circumstances of gross violence – Crimes Act 1958 s 15B – Whether verdict unsafe and unsatisfactory – Head on collision between applicant’s car and victim’s truck – Whether it was open to jury to find that applicant foresaw probable risk of serious injury to victim given marked disparity between size and weight of vehicles – Application for leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal against sentence – Judge applied wrong test under Sentencing Act 1991 s 10A(2)(e) when considering whether ‘special reasons’ existed to justify imposing non-parole period of less than four years – Whether error constituted ‘error in the sentence’ for purpose of Sentencing Act 1991 s 281(a) – Whether error was ‘material’ and vitiated sentencing discretion – Kentwellv The Queen (2014) 252 CLR 601 considered – Whether inadequate order for concurrency – Whether sentence manifestly excessive – Application for leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr K McDonald	Docherty Legal
For the Respondent:	Mr B Kissane QC with Ms J Warren	Ms A Hogan, Solicitor for Public Prosecutions

FERGUSON CJ
McLEISH JA

NIALL JA:

On 23 May 2014, a Toyota Camry car, driven by the applicant, collided with a truck and tanker trailer carrying 35,000 litres of canola oil driven by Robert Stocks (the victim). The collision occurred on the Wimmera Highway around 17 km east of Edenhope in Western Victoria. The two vehicles were travelling in opposite directions on an open stretch of highway.

The applicant later told police that she thought she was travelling at 100 km an hour at the point of collision. The victim estimated that the speed of his truck was 95 km per hour. The victim said that the applicant’s car came at him all of a sudden. The evidence of a police officer, Leading Senior Constable Perry (‘LSC Perry’), was to the effect that the car had crossed the centre line and collided with the front right-hand side of the truck.

The force of the collision tore the tyre off the front wheel on the right-hand side of the truck and the victim lost control of his vehicle, which veered across the road and rolled, causing him serious injury and extensive damage to the truck and trailer. The injuries sustained by the victim included a severe laceration to the scalp and the fracture of two vertebrae in his neck.

Both the truck and tanker were…

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 Johns v The Queen

Details

AGLC: Samantha Irene Johns v The Queen [2020] VSCA 135
Case: [2020] VSCA 135
Decision Date: 29 May 2020

CaseChat Overview and Summary

In Johns v The Queen, the applicant appealed against both his conviction and sentence. The applicant was convicted of recklessly causing serious injury to another person in circumstances of gross violence under the Crimes Act 1958. The applicant was involved in a head-on collision with a truck, and the victim was the driver of the truck. The appeal against conviction argued that the jury's verdict was unsafe and unsatisfactory, as it was not open to the jury to find that the applicant foresaw the probable risk of serious injury to the victim, given the marked disparity between the size and weight of the vehicles. The appeal against sentence contended that the judge applied the wrong test when considering whether 'special reasons' existed to justify imposing a non-parole period of less than four years, and that this error constituted a 'material' error that vitiated the sentencing discretion.

The court found that the evidence presented to the jury was sufficient to support the verdict of reckless causing of serious injury, given the marked disparity between the size and weight of the vehicles. The court also found that the judge's error in applying the wrong test when considering the non-parole period was not a 'material' error that vitiated the sentencing discretion. The court held that the sentence was not manifestly excessive and that the order for concurrency was adequate. The court refused the application for leave to appeal against conviction but granted the application for leave to appeal against sentence. However, the appeal against sentence was ultimately dismissed.

In summary, the court refused the applicant's application for leave to appeal against his conviction for recklessly causing serious injury in circumstances of gross violence. The court found that the evidence presented to the jury was sufficient to support the verdict. The court granted the application for leave to appeal against sentence, but ultimately dismissed the appeal against sentence. The court found that the judge's error in applying the wrong test when considering the non-parole period was not a'material' error that vitiated the sentencing discretion, and that the sentence was not manifestly excessive.

Orders