R v Cowden - [2006] VSCA 220

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 270 of 2005

THE QUEEN
	v.
MICHAEL JAMES COWDEN

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JUDGES:	WARREN, C.J., NETTLE and REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 SEPTEMBER 2006
DATE OF JUDGMENT:	19 OCTOBER 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 220

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CRIMINAL LAW – Sentencing – Two counts of culpable driving – One count of negligently causing serious injury – Whether judge failed to treat complicity of victims as a circumstance of mitigation or as the absence of a circumstance of aggravation – Whether nine years’ imprisonment with six and a half years non-parole period manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Ms A. Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	Robert Stary & Associates

WARREN, C.J.
NETTLE, J.A.
REDLICH, J.A. :

On 2 September 2005 the appellant pleaded guilty before a judge of the County Court at Melbourne to two counts of culpable driving (Counts 1 and 2) and one count of causing serious injury by negligently driving a motor vehicle (Count 3). Following a plea in mitigation of penalty, the judge sentenced the appellant on each of Counts 1 and 2 to a term of imprisonment of six years and on Count 3 to a term of imprisonment of two years. His Honour directed that two years of the sentence of imprisonment imposed on Count 2 and one year of the sentence imposed on Count 3 be served cumulatively on the sentence imposed on Count 1 and upon each other, thereby making for a total effective sentence of nine years’ imprisonment, and he ordered that the appellant serve not less than six years’ imprisonment before being eligible for parole. The judge further ordered that all licenses held by the appellant under the Road Safety Act 1986 be cancelled and that he be disqualified from obtaining any such licence for a period of six years and six months.

The appellant now appeals, with leave, against sentence on grounds that the judge erred in failing to treat the complicity of the victims in the offences as a mitigatory factor and that the individual sentences, the total effective sentence and the non-parole period are all manifestly excessive.

The facts

At the time of the offences the appellant was just short of 19 years’ of age. He spent the afternoon of 23 December 2004 at home during which time he met up with his friend, Adrian Kinna. Together they changed the rear wheels and tyres of the appellant’s 1989 Holden Commodore sedan, from the HSV wheels and low profile tyres with which the vehicle was ordinarily fitted to a set of standard Commodore tyres and rims. The appellant made the change because he planned carry out “burn-outs” and go “drifting” later that day. A “burn-out” consists of accelerating a car so hard as to make the driving wheels of the car spin without gaining traction and thus to deposit tyre rubber on the road…

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 Cowden

Details

AGLC: R v Cowden [2006] VSCA 220
Case: [2006] VSCA 220
Decision Date: 19 October 2006

CaseChat Overview and Summary

The appeal arose from a decision of the Court of Criminal Appeal of Queensland, concerning the sentencing of the appellant, Cowden, who was convicted of two counts of culpable driving and one count of negligently causing serious injury. The trial judge imposed a total effective sentence of nine years’ imprisonment, with a non-parole period of six and a half years. The primary legal issue before the court was whether the judge failed to appropriately consider the complicity of the victims as a mitigating factor or the absence of a circumstance of aggravation. Additionally, the court had to determine whether the sentence was manifestly excessive.

The court reviewed the trial judge’s reasons and found that there was no error in the judge's assessment of the case. The judge had considered the relevant mitigating factors, including the complicity of the victims, and weighed them against the aggravating factors. The court concluded that the sentence was within the range of sentences that could be considered appropriate for the offences committed. The court found no basis to interfere with the sentence on the grounds that it was manifestly excessive. The appeal was thus dismissed, affirming the original sentence imposed by the trial judge.

The court emphasised that the trial judge had a broad discretion in sentencing and that the appellate court would only interfere where there was a demonstrable error in the exercise of that discretion. The court found no such error in this case. The complicity of the victims was considered by the trial judge, and the sentence imposed was deemed to be appropriate given the circumstances of the case.

No further orders were made by the court beyond the dismissal of the appeal. The original sentence of nine years’ imprisonment with a non-parole period of six and a half years was upheld.

Orders