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Parker v The King

Parker v The King

Case [2022] VSCA 207 26 September 2022

Sentencing

Dangerous driving causing death

Community correction order

Licence disqualification

Leave to appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0075

KATRINA PARKER	Applicant
v
THE KING	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	26 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 207
JUDGMENT APPEALED FROM:	[2022] VCC 681 (Judge Marich)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Dangerous driving causing death – Community correction order of 2 years with 250 hours of unpaid community work and licence disqualification of 3 years – Whether arguable that period of disqualification manifestly excessive – Not reasonably arguable that period of disqualification manifestly excessive – Application for leave to appeal refused.

Sentencing Act 1991, ss 5(2H) and 89.

R v Tran (2002) 4 VR 457, Rodi v The Queen [2011] VSCA 48, Clarkson v The Queen (2011) 32 VR 361, Koukoulis v The Queen [2020] VSCA 19, Peers v The Queen [2021] VSCA 264 referred to.

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Counsel:
Applicant:		Mr JD Williams
Respondent:		Ms E Ruddle KC
Solicitors
Applicant:	Tony Hargreaves & Partners
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

On 7 March 2022, the applicant pleaded guilty in the County Court to one charge of dangerous driving causing death, contrary to s 319(1) of the Crimes Act 1958. The maximum term of imprisonment for the offence of dangerous driving causing death is 10 years. The offence is also a Category 2 offence within the meaning of s 3(1) of the Sentencing Act 1991. Being a Category 2 offence, s 5(2H) of the Sentencing Act obliged the sentencing judge to impose a period of imprisonment without a community correction order (‘CCO’) unless one of the exceptions in s 5(2H)(a) to (e) was established.
On 20 May 2022, following a plea hearing on 4 April 2022, the applicant was sentenced to a CCO for a period of 2 years, with a condition that the applicant perform 250 hours of unpaid community work. Additionally, pursuant to s 89 of the Sentencing Act, the judge cancelled the applicant’s licence to drive and disqualified her from obtaining a licence for a period of 3 years.
The applicant now seeks leave to appeal against her sentence on the ground that the period of licence disqualification ordered by the judge is manifestly excessive.

Circumstances of the offending

At approximately 8:20 am on 28 February 2019, the applicant was driving her usual route from her home in Camberwell to her workplace in Ringwood East. The weather was sunny and the road was dry.
Travelling through Ringwood, the applicant turned into Railway Avenue, driving along this road for approximately 1 kilometre before reaching her next turn at the intersection of Morinda Street. As she approached the intersection, she entered the right-hand turning lane and commenced to cross the solid white line on Railway Avenue into Morinda Street.
At the same time as the applicant was turning from Railway Avenue into Morinda Street, her victim, Magda…

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 Parker v The King

Details

AGLC: Parker v The King [2022] VSCA 207
Case: [2022] VSCA 207
Decision Date: 26 September 2022

CaseChat Overview and Summary

In the matter of Parker versus The King, the applicant appealed against the sentence imposed by the County Court of Victoria for dangerous driving causing death. The applicant was sentenced to a community correction order of two years, inclusive of 250 hours of unpaid community work, and a disqualification from holding or obtaining a driver's licence for three years. The Supreme Court of Victoria was tasked with determining whether there was an arguable basis for an appeal against the sentence, specifically focusing on the period of licence disqualification.

The primary legal issue before the court was whether it was reasonably arguable that the three-year disqualification period was manifestly excessive. The applicant argued that the disqualification period was disproportionate to the offence, considering the applicant's otherwise unblemished record and the mitigating factors present in the case. The court had to weigh these arguments against the statutory objectives of sentencing, particularly deterrence and denunciation, in the context of dangerous driving causing death.

In its reasoning, the court noted that while the offence was serious, the sentence was not manifestly excessive. The court observed that the three-year disqualification period aligned with the statutory framework and was consistent with sentences imposed in similar cases. The court relied on precedents such as R v Tran, Rodi v The Queen, Clarkson v The Queen, Koukoulis v The Queen, and Peers v The Queen to support its conclusion. It found that the sentence was proportionate to the offence and did not manifestly exceed what was appropriate.

Accordingly, the court dismissed the application for leave to appeal. The applicant was not granted permission to appeal the sentence imposed by the County Court.

Orders