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Pollard v The Queen

Pollard v The Queen

Case [2010] VSCA 156 18 June 2010

Appeal

Sentencing

Negligent Causing of Serious Injury

Failure to Render Assistance

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

NO S APCR 0935 OF 2009

AMANDA MAREE POLLARD	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P and WEINBERG JA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 June 2010
DATE OF JUDGMENT	18 June 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 156	First revision 23 June 2010
JUDGMENT APPEALED FROM	The Queen v Pollard (Unreported, County Court of Victoria, Judge Lawson, 24 November 2009)

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CRIMINAL LAW – Appeal – Sentence – Negligently causing serious injury – Failure to render assistance – Total effective sentence 3 years and 6 months’ imprisonment, with non-parole period of 12 months – Consideration of aggravating circumstances – Submission that appellant punished separately for failing to stop at scene of an accident, and failing to render assistance – Principle in De Simoni v R discussed – Mercy – Hardship to third party – Manifest Excess – Appeal dismissed.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Appellant	Mr P.F. Tehan QC	McNamaras
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor For Public Prosecutions

MAXWELL P
WEINBERG JA:

The appellant, Amanda Maree Pollard, pleaded guilty in the County Court at Melbourne, on 24 November 2009, to one count of negligently causing serious injury contrary to s 24 of the Crimes Act 1958 (count 1), and one count of failing to render assistance after an accident contrary to s 61(1)(b) of the Road Safety Act 1986 (count 2). Each offence carried a maximum penalty of ten years’ imprisonment.

The appellant was sentenced to three years’ imprisonment on count 1, and 12 months’ imprisonment on count 2. Six months of the sentence on count 2 was made cumulative upon count 1, making a total effective sentence of three years and six months. A non-parole period of 12 months was fixed.

Circumstances surrounding the offending

Shortly after midnight on Friday 18 April 2008, the appellant drove her Toyota sedan in a northerly direction along Montague Street in South Melbourne, towards the Westgate Freeway. She had earlier that evening attended a work function, at which she had been drinking. Unlike what she normally did in such circumstances, she did not arrange for a taxi to take her home.

A traffic management truck, driven by Mr Kevin Serle, was parked on the entry ramp in the emergency left lane of the Westgate Freeway. Mr Serle had stopped to collect traffic management material and, in particular, a trailer-mounted arrow board. The truck had a roof-mounted arrow board directing traffic to the right of the truck, as well as two rotating yellow lights on its roof. In addition, the truck’s normal headlights, as well as its hazard lights, were operating. Mr Serle was wearing a pair of white overalls with reflective tags, and an orange reflective vest.

As he alighted from his truck, Mr Serle noticed the appellant’s vehicle heading at considerable speed directly towards his vehicle. Realising that the Toyota sedan was unlikely to stop, he took hold of the right hand side of his…

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 Pollard v The Queen

Details

AGLC: Pollard v The Queen [2010] VSCA 156
Case: [2010] VSCA 156
Decision Date: 18 June 2010

CaseChat Overview and Summary

In the matter of Pollard versus The Queen, the appellant, Mr Pollard, sought to appeal against his sentence for negligently causing serious injury and for failing to render assistance at the scene of an accident. The case was heard in the High Court of Australia. The appellant's total effective sentence was three years and six months’ imprisonment, with a non-parole period of 12 months. The appeal was grounded on the contention that the appellant was being punished separately for both the failure to stop at the scene of an accident and the failure to render assistance, which amounted to a manifest excess.

The primary legal issue the court had to resolve was whether the appellant's total sentence was manifestly excessive. The appellant's counsel argued that by imposing separate penalties for the failure to stop and the failure to render assistance, the sentence amounted to double punishment for the same conduct. The court needed to assess whether the sentence was disproportionate in light of the principles discussed in De Simoni v R, which provide guidelines on the severity of sentences. Furthermore, the court considered the principles of mercy and hardship to third parties in determining the appropriate sentence.

The court found that the sentence was not manifestly excessive. The court acknowledged that the failure to stop and the failure to render assistance were separate offences, and thus, separate penalties were justified. The court also considered the principles of mercy and hardship to third parties but concluded that these did not warrant a reduction in the sentence. The court held that the sentence was proportionate to the appellant's conduct and did not constitute a manifest excess. Accordingly, the appeal was dismissed, and the original sentence was upheld.

Orders