R v Brown - [2003] VSCA 153

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 223 of 2002

THE QUEEN
	v.
ALAN PHILIP BROWN

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JUDGES:	WINNEKE, P., CALLAWAY and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 September 2003
DATE OF JUDGMENT:	17 September 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 153

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Criminal Law – Sentencing – Culpable driving causing death – Negligently causing serious injury – Previous convictions, including convictions for culpable driving, driving whilst unlicensed or disqualified and driving whilst having blood alcohol concentrations exceeding .05 per cent – Protection of community – Sentences of 12 years and three months' imprisonment for culpable driving and three years and six months' imprisonment for negligently causing serious injury and total effective sentence of 14 years' imprisonment with non-parole period of ten years and three months not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S.E. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M.C. Kowalski	C. & H. Lawyers

WINNEKE, P.:

Callaway, J.A. will give the first judgment in this application.

CALLAWAY, J.A.:

The applicant, who is now aged 36, pleaded guilty in the County Court to one count of culpable driving causing death (count 1) and one count of negligently causing serious injury (count 2). The form of culpability charged was that in s.318(2)(c) of the Crimes Act 1958, namely, being under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. The applicant’s blood alcohol concentration was .171%, which is more than three times the legal limit. I shall refer to his previous convictions later in these reasons. The applicant consented to the court’s dealing with three summary offences to which he pleaded guilty. They were driving a motor vehicle whilst having a blood alcohol concentration exceeding .05%, driving a motor vehicle whilst disqualified and failing to give right of way.

After hearing a plea for leniency on his behalf, the learned judge sentenced the applicant on 6^th September 2002 to 12 years and three months’ imprisonment on count 1 and three years and six months’ imprisonment on count 2. A sentence of two months' imprisonment was imposed for the first summary offence and 15 months' imprisonment for the second summary offence. A fine of $400 was imposed for the third summary offence. His Honour directed that 21 months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of 14 years' imprisonment, in respect of which a non-parole period of 10 years and three months was fixed. The applicant was currently undergoing a straight sentence of 29 months, of which he had served nearly five months. His Honour directed that seven months of the sentence he imposed be served cumulatively upon that sentence. The practical effect was a sentence of 15 years' imprisonment with a non-parole period of 11 years and three months. The applicant has never held a driver licence. The judge disqualified him…

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 R v Brown

Details

AGLC: R v Brown [2003] VSCA 153
Case: [2003] VSCA 153
Decision Date: 17 September 2003

CaseChat Overview and Summary

In the case of R v Brown, the appellant faced charges and was ultimately convicted for culpable driving causing death and negligently causing serious injury. The case was heard and determined by the Supreme Court of Victoria. The appellant, who had a history of driving offenses, including previous convictions for culpable driving, driving whilst unlicensed or disqualified, and driving with blood alcohol concentrations exceeding.05 per cent, was found to have caused the death of one individual and seriously injured another through negligent driving. The court was tasked with determining an appropriate sentence that would serve to protect the community while also considering the appellant’s criminal history and the nature of the offenses.

The primary legal issues before the court involved the assessment of the appropriate sentence for the appellant's offenses, with particular emphasis on the cumulative impact of his criminal history and the need for a sentence that would effectively protect the community. The court had to balance the appellant's previous convictions against the severity and circumstances of the current offenses, including the impact on the victims and the necessity of deterrence and denunciation. The court also needed to consider the principle of totality in sentencing, ensuring that the overall sentence did not result in an excessive penalty for the appellant.

In delivering the judgment, the court acknowledged the appellant's extensive criminal history, which included multiple serious driving offenses. Despite this, the court determined that the sentences imposed—12 years and three months' imprisonment for culpable driving causing death and three years and six months' imprisonment for negligently causing serious injury, with a total effective sentence of 14 years' imprisonment and a non-parole period of ten years and three months—were not manifestly excessive. The court emphasised the importance of protecting the community and the need for a sentence that reflected the gravity of the offenses. The court concluded that the sentences were appropriate in the circumstances, taking into account the appellant's history and the need to deter future offending.

The final orders of the court were to uphold the sentences imposed by the trial judge, affirming that the total effective sentence and non-parole period were not manifestly excessive. The appellant's appeal against sentence was dismissed, and the original sentences were confirmed.

Orders