Martin Fox v The Queen - [2020] VSCA 3

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0231

MARTIN FOX	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 November 2019
DATE OF JUDGMENT:	30 January 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 3
JUDGMENT APPEALED FROM:	[2017] VCC 1986 (Judge Carmody)

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CRIMINAL LAW – Appeal – Sentence – Negligently causing serious injury by driving – Driving whilst disqualified – Applicant reversed while victim leaning into car, then drove vehicle forward over victim’s leg – Victim sustained fractured femur and ankle – Sentence 3 years and 9 months’ imprisonment – Whether manifestly excessive – Whether judge erred in assessing offence seriousness – Whether in ‘mid to upper range’ – Whether injuries ‘very serious’ – Whether sentence for driving whilst disqualified constituted double punishment – Very serious offence – No error – Leave to appeal refused – Harrison v The Queen (2015) 49 VR 619; [2015] VSCA 349 applied – Crimes Act 1958 s 15.

WORDS AND PHRASES – ‘Serious injury’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C M Randazzo SC	Giorgianni & Liang Lawyers
For the Respondent	Mr J C J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P

BEACH JA:

Summary

This Court is regularly called on to review sentences imposed for negligently causing serious injury (‘NCSI’) by driving.[1] Such cases invariably concern negligent driving on a highway. As Maxwell P said in Gorladenchearau v The Queen:

cases of driving-related NCSI have a shocking similarity. The critical features recur: speed, inattention, intoxication (alcohol or drugs) … .[2]

[1]See, eg, Gorladenchearau v The Queen (2011) 34 VR 149; [2011] VSCA 432 and Harrison v The Queen (2015) 49 VR 619; [2015] VSCA 349 (‘Harrison’).

[2](2011) 34 VR 149, 160 [43]; [2011] VSCA 432.

The present case was entirely different. The applicant’s vehicle was in a stationary position, at the side of the road, when he put it in motion. The victim (‘RP’), with whom the applicant was having a verbal altercation, was leaning through the front passenger window of the vehicle. The applicant reversed, causing RP to fall over and fracture his left ankle. The applicant then drove forward, running over RP’s leg and fracturing his femur.

The applicant subsequently pleaded guilty to one charge of NCSI, and was sentenced to 3 years and 9 months’ imprisonment. He pleaded guilty to several other charges arising out of the incident, including driving while disqualified (his 11^th such conviction). The total effective sentence was 4 years and 9 months’ imprisonment, with a non-parole period of 3 years and 6 months.

The applicant now contends that the sentence imposed was manifestly excessive. His principal attack is on the NCSI sentence. He contends that the judge was wrong to characterise that offence as being in the ‘mid to upper range’ of seriousness. The offence should, it is submitted, have been characterised as being at ‘the lower end…

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 Martin Fox v The Queen

Details

AGLC: Martin Fox v The Queen [2020] VSCA 3
Case: [2020] VSCA 3
Decision Date: 30 January 2020

CaseChat Overview and Summary

The appeal in Martin Fox v The Queen involved the appellant, Martin Fox, contesting the sentence imposed by the County Court for negligently causing serious injury by driving and driving while disqualified. The appellant, while driving without a license, backed his vehicle into a parked car, causing the victim to lean into the car to retrieve his belongings. The appellant then drove forward, running over the victim’s leg, resulting in a fractured femur and ankle. The County Court sentenced Fox to three years and nine months’ imprisonment. Fox sought leave to appeal on the grounds that the sentence was manifestly excessive and that the judge erred in assessing the seriousness of the offence, particularly regarding the injuries sustained by the victim.

The court needed to determine whether the sentence was manifestly excessive and whether the judge erred in assessing the seriousness of the offence, including the classification of the victim’s injuries as “very serious”. The court also had to consider whether the sentence for driving while disqualified constituted double punishment. The appellant argued that the sentence was too harsh and that the injuries were not as severe as the judge had found. The appeal hinged on the interpretation of the seriousness of the injuries and the appropriate range for the sentence.

In considering the appeal, the court held that the sentence was not manifestly excessive and that the judge did not err in assessing the seriousness of the offence. The court found that the injuries sustained by the victim were indeed very serious and that the sentence was appropriate within the mid to upper range. The court further determined that the sentence for driving while disqualified did not constitute double punishment. The appeal was dismissed, and leave to appeal was refused, following the precedent set in Harrison v The Queen. The decision underscored the importance of correctly assessing the gravity of injuries and the appropriateness of sentences within the prescribed range.

Orders