R v Caldwell - [2004] VSCA 40

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 81 of 2003

THE QUEEN
	v.
SHARON LEE CALDWELL

---

JUDGES:	BATT, J.A., SMITH and O'BRYAN, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 March 2004
DATE OF JUDGMENT:	1 April 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 40

---

CRIMINAL LAW – Sentence – Culpable driving whilst under the influence of alcohol – Failure to stop – Total sentence of seven years and six months' imprisonment – Minimum term of five years' imprisonment – Disqualified from obtaining licence for ten years – Whether sentence of seven years and six months' imprisonment and ten years’ licence disqualification manifestly excessive.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr A. Shwartz	Victoria Legal Aid

BATT, J.A.:

I agree with O’Bryan, A.J.A.

SMITH, A. J.A.:

I agree generally with the reasons of O’Bryan, A.J.A. and the orders he proposes.

I wish to reserve my position, however, on the general rule he proposes that the criminality of conduct breaching s.318(2)(c) of the Crimes Act 1958 increases with the offender’s blood alcohol level.

O'BRYAN, A.J.A.:

The appellant is appealing (by leave) against sentences imposed in the County Court on 7 March 2003 following guilty pleas to two counts in a presentment and one summary offence.

Count 1:Culpable driving of a motor vehicle causing death of a male person at Bendigo on 23 December 2001 whilst under the influence of alcohol[1].
Count 2:Failing to immediately stop the vehicle after an accident occurred[2].
Summary charge: Driving with a blood alcohol level exceeding .05%[3].

[1]Section 318(2)(c) Crimes Act 1958 - Maximum penalty 20 years’ imprisonment. Section 89(1)(c) Sentencing Act 1991 - Minimum disqualification from obtaining licence for two years.

[2]Section 61(1)(a) Road Safety Act 1986 - Maximum penalty 2 years’ imprisonment (s.61(3)). Section 61(6) Road Safety Act - Minimum disqualification from obtaining licence for two years.

[3]Section 49(1)(b) Road Safety Act 1986 – Maximum penalty for a first offence is a fine of not more than 12 penalty units (s.49(3)(a)). Section 50 (1A) (a) and Schedule 1 of the Road Safety Act – for a reading of .23 and not less than .24, minimum disqualification from obtaining licence for 23 months.

Following the plea, the sentencing judge imposed sentences as follows:

Count 1:Seven years and six months. All licences cancelled and disqualification from driving for a period of ten years.
Count 2:Six months' imprisonment.
Summary charge: Convicted. All licences cancelled and disqualification from driving for a period of five years.

The total effective custodial sentence was imprisonment for seven years and six months. A non-parole period of five years was fixed. I note that no order for disqualification was made as required by s.61(6) of the Road Safety Act.

The appellant admitted 33 convictions from three court appearances. No conviction for a driving offence was alleged.

The appellant appealed on the ground that the sentence imposed was manifestly excessive as to head sentence, non-parole period and licence disqualification…

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 Caldwell

Details

AGLC: R v Caldwell [2004] VSCA 40
Case: [2004] VSCA 40
Decision Date: 1 April 2004

CaseChat Overview and Summary

The case of R v Caldwell involved the appellant, who was convicted of various charges including driving under the influence of alcohol, failing to stop after an accident, and causing death by dangerous driving. The incident occurred when the appellant, while intoxicated, collided with a motorcycle, resulting in the death of the motorcyclist. The matter was heard in the Court of Appeal where the appellant contested the severity of the sentence imposed, arguing it was manifestly excessive.

The court was required to determine whether the total sentence of seven years and six months' imprisonment, along with a ten-year disqualification from obtaining a driver's licence, was manifestly excessive in light of the circumstances. The appellant argued that the sentence did not appropriately balance the need for punishment, deterrence, and rehabilitation. The court needed to assess the appropriate weight to give to various factors, including the appellant's culpability, the severity of the offence, and the impact on the victim's family.

The Court of Appeal found that while the sentence was severe, it was not manifestly excessive. The court acknowledged the appellant's culpability, the gravity of the offence, and the impact on the victim's family. The court emphasised the importance of deterrence and rehabilitation, considering the appellant's history of driving under the influence. The court concluded that the sentence reflected the need to protect the community and ensure the appellant was held accountable for their actions. The appeal was dismissed, and the original sentence was upheld.

The court did not make any further orders beyond upholding the original sentence. The appellant remained subject to the original sentence of seven years and six months' imprisonment and a ten-year disqualification from obtaining a driver's licence.

Orders