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Neskovski v The Queen

Neskovski v The Queen

Case [2022] VSCA 86 12 May 2022

Appeal

Conviction

Breach of Statutory Duty

Double Jeopardy

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0109

JAMIE NESKOVSKI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, EMERTON and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 February 2022
DATE OF JUDGMENT:	12 May 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 86
JUDGMENT APPEALED FROM:	DPP v Neskovski (Unreported, County Court of Victoria, Judge Meredith, 13 July 2021)

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CRIMINAL LAW – Appeal – Conviction – Failure to stop after motor vehicle accident – Failure to render assistance – Whether discrete offences – Offences legally distinct – Whether double punishment – No overlap as separate offences – No contravention of pleading rules – Leave to appeal refused – R v Fairley [2004] VSCA 15; Pollard v The Queen [2010] VSCA 156 considered – Road Safety Act 1986 ss 61(1), 61(3).

CRIMINAL LAW – Appeal – Sentence – Failure to stop after motor vehicle accident – Failure to render assistance – Whether double punishment – Separate offences – Whether error in sentencing applicant on basis he knew accident occurred – Open to make finding of actual knowledge – No error – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Smallwood	Kaczmarek Grigor
For the Respondent	Mr P Bourke QC	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
EMERTON JA
WHELAN JA:

Summary

The applicant was convicted, after a trial, of one charge of failing to stop after a motor vehicle accident and one charge of failing to render assistance after a motor vehicle accident. He was acquitted of the principal charge of dangerous driving causing death.

He was sentenced to 2 years and 6 months’ imprisonment on the failure to assist charge and 2 years’ imprisonment on the failure to stop charge. With cumulation of 6 months of the latter sentence, the total effective sentence was 3 years’ imprisonment. A non-parole period of 2 years was fixed.

The applicant sought leave to appeal against both conviction and sentence. His principal contention was that the two charges of which he was convicted — failing to stop and failing to assist — charged the same offence. While conceding that s 61(1) of the Road Safety Act 1986 (‘RSA’) imposed distinct legal obligations (to stop, and to render assistance), the applicant contended that the penalty provision (s 61(3)) created a single offence capable of being committed in different ways — by the driver failing to stop, or failing to assist, or failing to do either.

The alternative contention was that, even if the offences were separate, the applicant was punished twice for the same conduct. According to the written case:

There was a single act committed by the applicant. He left the scene of the collision. By leaving the scene, he both failed [to] immediately stop the motor vehicle and failed to immediately render such assistance as he could.
Having been convicted on charge 2, he was punished twice for the same act when he was convicted on charge 3.

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 Neskovski v The Queen

Details

AGLC: Neskovski v The Queen [2022] VSCA 86
Case: [2022] VSCA 86
Decision Date: 12 May 2022

CaseChat Overview and Summary

Neskovski v The Queen involved the appellant, Neskovski, appealing against his conviction and sentence for failing to stop and render assistance following a motor vehicle accident. The case was heard in the Court of Appeal. Neskovski had driven his vehicle into the back of another car and fled the scene without attempting to provide assistance to the injured driver. The appellant argued that the charges of failing to stop and failing to render assistance constituted the same offence, and that his conviction and sentencing contravened the pleading rules. Additionally, he contended that his sentence was erroneous as it was based on the premise that he knew an accident had occurred.

The court considered whether the two charges amounted to the same offence, which would violate the principle against double punishment. It examined whether the offences were legally distinct, noting that they required different elements to be proven. The court concluded that the offences were distinct, as failing to stop required proof of the driver's knowledge of the accident, while failing to render assistance required proof of the driver's knowledge of the need for assistance. The court held that there was no overlap in the elements of the two offences, and thus they were legally distinct, and no contravention of the pleading rules occurred. Regarding the sentencing, the court found that it was open to the trial judge to make a finding that the appellant knew an accident had occurred and that there was no error in sentencing him on that basis.

The court refused leave to appeal, finding no merit in the appellant's arguments. It relied on the precedents of R v Fairley and Pollard v The Queen to support its decision that the charges were separate offences and that the sentencing was appropriate. The Court of Appeal upheld the conviction and sentence, concluding that the appellant's actions warranted the imposed penalty.

Orders