CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing death – Applicant sentenced to 2 years and 6 months’ imprisonment with a non-parole period of 12 months’ imprisonment – Whether applicant had impaired mental functioning that would result in her being subject to substantially and materially greater than the ordinary burden or risks of imprisonment for purpose of Sentencing Act 1991 sub-s 5(2H)(c)(ii) – Whether there were substantial and compelling circumstances that are exceptional and rare for purpose of sub-s 5(2H)(e) Sentencing Act 1991 – Application for leave to appeal granted – Appeal allowed.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr M Habib
Kate Freshwater
For the Respondent
Ms D Piekusis QC
Ms A Hogan, Solicitor for Public Prosecutions
NIALL JA SIFRIS JA:
On her plea of guilty to a single charge of dangerous driving causing death,[1] the applicant was sentenced by a judge in the County Court to 30 months’ imprisonment. The judge set a non-parole period of 12 months.
[1]Crimes Act1958 s 319(1). The maximum penalty is 10 years’ imprisonment.
Dangerous driving causing death is a category 2 offence, with the consequence provided for by s 5(2H) of the Sentencing Act1991, that unless one or other of certain prescribed circumstances apply, a judge must impose a term of imprisonment. A term of imprisonment combined with a community correction order (‘CCO’), as contemplated by s 44 of the Sentencing Act, is not permitted.
The circumstances that allow for a non-custodial or combination order include where the offender satisfies the court on the balance of probabilities that he or she has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment,[2] and where there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order of imprisonment.[3]
On her plea, the applicant contended that either or both of those circumstances were satisfied and that the judge should impose a CCO. Those contentions were rejected and the sentence of imprisonment just described was imposed.
The applicant seeks leave to appeal on two proposed grounds directed to whether the judge was wrong to find that neither of the circumstances applied.
The facts
On the day of the accident, being a Sunday afternoon in July 2019, the applicant was driving a Holden VT SS (V8) Commodore sedan. Her de facto partner, Rowan Penberthy, was in the front passenger seat.
At approximately 4:05 pm, the applicant was travelling in a westerly direction along River Road Kialla, in North Central Victoria. In…
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.
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AGLC
Peers v The Queen [2021] VSCA 264
Case
[2021] VSCA 264
Decision Date
CaseChat Overview and Summary
The case of Peers v The Queen involved an appeal against a sentence imposed on the applicant, Peers, who was convicted of dangerous driving causing death. The applicant had been sentenced to two years and six months' imprisonment, with a non-parole period of 12 months. The primary issue before the court was whether the applicant's impaired mental functioning would result in her being subject to substantially and materially greater than the ordinary burden or risks of imprisonment, as required under section 5(2H)(c)(ii) of the Sentencing Act 1991. Additionally, the court had to determine if there were substantial and compelling circumstances that were exceptional and rare, as outlined in section 5(2H)(e) of the same act.
The court examined the applicant's mental health history and concluded that her impaired mental functioning did indeed place her at substantially and materially greater risk than the average prisoner. This conclusion was based on the severity of her mental health conditions, which included a history of significant psychiatric episodes and a high likelihood of relapse in a prison environment. The court also found that there were substantial and compelling circumstances that warranted a departure from the usual sentencing principles, given the unique nature of the applicant's case. These exceptional and rare circumstances included her severe mental health issues and the potential for significant harm to herself and others if she were to be incarcerated.
As a result of these findings, the court granted the application for leave to appeal and allowed the appeal. The applicant's sentence was quashed, and the matter was remitted to the sentencing court for reconsideration. The court emphasised the importance of tailoring sentences to the individual circumstances of the offender, particularly when considering the impact of mental health conditions on the ability to serve a prison sentence. The final orders of the court included the quashing of the original sentence and the direction for the sentencing court to re-evaluate the appropriate sentence for the applicant, taking into account her mental health status and the risks associated with imprisonment.