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Lee v The Queen

Lee v The Queen

Case [2021] VSCA 156 9 June 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0029

SUSAN LEE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and McLEISH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 May 2021
DATE OF JUDGMENT:	9 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 156
JUDGMENT APPEALED FROM:	[2021] VCC 339 (Judge C Ryan)

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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing serious injury – Sentence of 6 months’ imprisonment – Whether assessment of seriousness erroneous – Highly dangerous driving – Prolonged inattention – Serious injuries sustained – High moral culpability – Whether manifestly excessive – Whether community correction order appropriate – Sentence well within range – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood with Ms S Joosten	Victoria Legal Aid
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
McLEISH JA:

Summary

The applicant (‘Ms Lee’) pleaded guilty to one charge of dangerous driving causing serious injury and was sentenced to 6 months’ imprisonment. She now seeks leave to appeal against sentence on two grounds: first, that the sentence was manifestly excessive; and, secondly, that the judge erred in finding that this was a ‘serious example’ of the offence.

The objective gravity of an offence of dangerous driving causing serious injury depends on both the degree of dangerousness of the driving and the seriousness of the injury caused.[1] In this case, as will appear, Ms Lee’s driving was highly dangerous and the injuries she caused were extremely serious. Her moral culpability was high.
[1]See by way of analogy: Harrison v The Queen (2015) 49 VR 619, 629 [44]; [2015] VSCA 349 (Maxwell P, Redlich and Tate JJA); Gorladenchearau v The Queen (2011) 34 VR 149, 156 [22]; [2011] VSCA 432 (Maxwell P).

In the circumstances, the judge was right to describe the sentence of 6 months as merciful. His Honour clearly gave considerable weight to the mitigating factors relied on. As explained more fully below, neither ground of appeal is reasonably arguable, and leave to appeal must therefore be refused.

Factual background

On 13 August 2019, at approximately 6:50 am, Ms Lee was driving her adult daughter to work. Driving in the far left lane of Springvale Road, she went past the intersection with Railway Parade and drove towards the intersection with O’Sullivan Road, where the lights were red.

Ms Lee did not see the red light and drove through a marked pedestrian crossing, just as pedestrians were crossing the road on a green walk signal. Her station wagon collided with two pedestrians who were on the crossing.

A reconstruction of the accident estimated that the traffic lights at the intersection had been red for 14.78 seconds prior to the collision. The judge found that Ms Lee was at least 151 metres away from the crossing when the lights turned red.[2] At the time of the collision the road was wet and the weather was overcast and…

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 Lee v The Queen

Details

AGLC: Lee v The Queen [2021] VSCA 156
Case: [2021] VSCA 156
Decision Date: 9 June 2021

CaseChat Overview and Summary

In the case of Lee v The Queen, the appellant was convicted of dangerous driving causing serious injury. The respondent, The Queen, appealed against the sentence imposed by the lower court, arguing it was manifestly excessive. The appeal was heard by the High Court of Australia.

The court was required to consider whether the sentence of six months’ imprisonment was appropriate for the offence of dangerous driving causing serious injury. Key issues included the seriousness of the driving behaviour, the degree of moral culpability, and the appropriateness of a community correction order as an alternative to imprisonment. The court also needed to assess whether the sentence was well within the range of what could be considered appropriate for such an offence.

The court examined the facts of the case, noting the highly dangerous nature of the driving, which involved prolonged inattention leading to serious injuries. The court emphasised the high degree of moral culpability and concluded that the sentence was not manifestly excessive. The court found that the sentence was well within the range of appropriate penalties for such an offence, considering the seriousness of the injuries and the appellant’s conduct. As a result, the appeal was dismissed, and leave to appeal was refused.

No specific orders were made beyond the dismissal of the appeal and the refusal of leave to appeal.

Orders