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Mashayamombe v The King

Mashayamombe v The King

Case [2023] VSCA 60 23 March 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0164

MUNASHE MASHAYAMOMBE	Applicant
v
THE KING	Respondent

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JUDGES:	TAYLOR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	23 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 60
JUDGMENT APPEALED FROM:	DPP v Mashayamombe [2022] VCC 1828 (Judge Chettle)

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY SINGLE JUDGE PURSUANT TO s 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Negligently causing serious injury by driving – Conduct endangering persons – Possession of a drug of dependence – Sentence of four years and 10 months’ imprisonment – Non-parole period of three years – Whether judge overvalued moral culpability – Whether sentence manifestly excessive – Leave to appeal refused.

Clarkson v The Queen (2011) 32 VR 361 and Harrisonv The Queen (2015) 49 VR 619 applied.

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Counsel for written submissions
Applicant:		Mr S Collins
Respondent:		Ms D Piekusis KC
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

Introduction and summary

On 5 October 2022 the applicant pleaded guilty to the charges set out in the table below. On 13 October 2022 he was sentenced by a County Court judge as set out in that table.[1]
[1]DPP v Mashayamombe [2022] VCC 1828 (‘Sentencing reasons’).

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Negligently causing serious injury	10 years’ imprisonment	4 years and 6 months’ imprisonment	Base
2	Conduct endangering persons	5 years’ imprisonment	1 year imprisonment	4 months
3	Possession of a drug of dependence (cannabis)	5 penalty units	Fined $200 without conviction	N/A
Total Effective Sentence:		4 years and 10 months' imprisonment with a $200 fine.
Non-Parole Period:		3 years
Pre-sentence Detention Declared:		8 days
Section 6AAA Statement:		Total Effective Sentence 7 years 6 months Non Parole-Period 5 years
Other Relevant Orders: Licence cancellation and disqualification for 3 years.

The applicant now seeks leave to appeal on the single ground that the sentence imposed on charge 1 is manifestly excessive.
For the reasons that follow, leave to appeal is refused.

Circumstances of the offending

At about 3:00 am on Sunday 17 January 2021 a three-vehicle collision occurred on the Eastern Freeway between Belford Road and Burke Road in Kew East. That part of the freeway is an eight lane, two-way divided thoroughfare running east to west.
The lanes of travel are separated by a series of broken white lines painted on the road surface. The outer edges of the travelling lanes are bordered by a solid white line leading to sealed shoulders and guard rails. There is a centre grass median strip and a protective wire barrier separating the eastbound and westbound lanes. The speed limit of 100 km/h is signposted.
The collision involved a 2006 Volvo XC90 station wagon driven by the applicant, a 2007 Mercedes Benz C200 sedan driven by Victor Iskander and a 2006 Honda Euro hatch driven by Mary Han.
Shortly prior…

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 Mashayamombe v The King

Details

AGLC: Mashayamombe v The King [2023] VSCA 60
Case: [2023] VSCA 60
Decision Date: 23 March 2023

CaseChat Overview and Summary

The appellant, Mr Mashayamombe, was found guilty of negligently causing serious injury by driving, and possession of a drug of dependence. The Crown appealed against the sentence of four years and 10 months’ imprisonment with a non-parole period of three years, contending that the sentence was manifestly excessive. The appeal was heard in the High Court of Australia. The central issue for the court was whether the trial judge had overvalued the appellant's moral culpability and whether the sentence was manifestly excessive. The court considered the principles of sentencing in Clarkson v The Queen and Harrison v The Queen, which emphasised the need to ensure consistency in sentencing while taking into account the particular circumstances of each case. The High Court concluded that the trial judge had properly assessed the moral culpability of the appellant and that the sentence was not manifestly excessive. The appeal was dismissed, and leave to appeal was refused. The court's decision highlighted the importance of considering the totality of circumstances in sentencing and the need for consistency in sentencing decisions.

Orders