Marsh v The Queen - [2011] VSCA 6

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2010 0105

KEVIN JOSEPH MARSH	Appellant
	V
THE QUEEN	Respondent

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JUDGES	WEINBERG JA and KING AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 January 2011
DATE OF JUDGMENT	12 January 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 6
JUDGMENT APPEALED FROM	DPP v Marsh (Unreported, County Court of Victoria, Judge Wood, 19 March 2010)

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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to one count of negligent driving causing serious injury – Appellant, though fatigued, continued to drive combination semi-trailer along Hume Highway – Appellant fell asleep at wheel immediately prior to collision – No suggestion of alcohol or excessive speed – Sentenced to three years’ imprisonment, 18 months of which were suspended for three years – Victim impact statements tending towards imposition of severe sentence considered by sentencing judge – Whether letter subsequently written to Court by victim and wife indicating forgiveness and desire for appellant’s immediate release admissible on appeal as additional evidence under R v Eliasen (1991) 53 A Crim R 391 – Whether likely that sentencing judge would have extended greater leniency to appellant had he been aware of current attitude of victim and his wife – Additional evidence received – Appellant re-sentenced to three years’ imprisonment with balance of sentence suspended to enable release on basis of time served.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Mr P Rose SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA
KING AJA:

The appellant, Kevin Joseph Marsh, pleaded guilty in the County Court at Shepparton, to one count of negligent driving causing serious injury. He was sentenced to a term of three years’ imprisonment, 18 months of which was suspended for three years.

The background facts can be briefly stated. On 23 April 2008, the appellant was driving a B-Double combination semi-trailer on the Hume Highway near Clonbinane at about 12:15pm when his vehicle collided with the rear of a Country Fire Authority (CFA) truck being driven by Mr Allan Kosmer. The collision caused Mr Kosmer to sustain serious physical injury, and some residual brain damage. It seems that the appellant, who was an experienced driver, and who had previously led an otherwise exemplary life, fell asleep whilst driving, or in the sentencing judge’s words, ‘had a micro-nap’.

There was no suggestion that the appellant had ingested alcohol or drugs and no indication that he had been speeding. Neither the road conditions nor the weather contributed in any way to the collision.

All that could be said by way of aggravation was that shortly before the collision, the appellant was struggling to stay awake. He had already veered out of his lane on at least one occasion before checking himself and correcting his vehicle’s path. The gravity of the offending lay in the fact that the appellant chose to keep driving, despite knowing that he was drowsy, and that his faculties were therefore impaired.

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 Marsh v The Queen

Details

AGLC: Marsh v The Queen [2011] VSCA 6
Case: [2011] VSCA 6
Decision Date: 12 January 2011

CaseChat Overview and Summary

The appeal before the court concerns the sentence imposed on the appellant, Marsh, following his guilty plea to a charge of negligent driving causing serious injury. The incident in question occurred when the appellant, while fatigued, continued to operate a combination semi-trailer along the Hume Highway before falling asleep at the wheel, which resulted in a collision. The appellant's actions were not influenced by alcohol or excessive speed. The sentencing judge imposed a sentence of three years' imprisonment, with 18 months suspended for three years, after considering victim impact statements that leaned towards a severe sentence.

The central legal issues addressed by the court were whether the letter written to the court by the victim and his wife, expressing forgiveness and a desire for the appellant's immediate release, could be admitted as additional evidence on appeal, and whether the sentencing judge would have shown greater leniency to the appellant if aware of the current attitudes of the victim and his wife. The court determined that the letter was admissible under the precedent set by R v Eliasen and concluded that the sentencing judge would likely have extended leniency had he been aware of the victim's and his wife's current stance.

Upon receiving the additional evidence, the court re-sentenced the appellant to three years' imprisonment, with the balance of the sentence suspended. This decision enabled the appellant's release on the basis of time already served. The court found that the circumstances presented a compelling case for re-sentencing, taking into account the victim's forgiveness and the appellant's demonstrated remorse and the fact that he had already served part of his sentence.

Orders