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R v De Montero

R v De Montero

Case [2009] VSCA 255 29 October 2009

Culpable Driving

Dangerous Driving Causing Death

Appeal

Jurisdiction

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 633 of 2008
	v
PHIRUM UCH DE MONTERO DIRECTOR OF PUBLIC PROSECUTIONS v PHIRUM UCH DE MONTERO
	No 396 of 2007

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JUDGES:	ASHLEY, REDLICH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 November 2008
DATE OF JUDGMENT:	29 October 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 255 1^st Revision, 26 November 2009, See Footnote 111
JUDGMENT APPEALED FROM:	R v De Montero (Unreported, County Court of Victoria, Judge Campbell, 19 October 2007)

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CRIMINAL LAW – Conviction – Culpable driving – Dangerous driving causing death – s 319 Crimes Act 1958 – Alternative offence to culpable driving – Whether judge’s direction correctly identified essential character of alternative offence of dangerous driving – Whether judge failed to adequately distinguish between alternative offence and culpable driving – Appropriate directions as to dangerous driving – Considerable risk of death or serious injury – Serious breach of proper control of vehicle – Objective test as to whether dangerous driving – Appeal dismissed.

JURY – Whether bias by juror – Whether a card received by applicant’s counsel from one of the jurors gave rise to apprehension of bias against counsel and as consequence against the applicant – Outcome of investigation under s 78 of the Juries Act 2000 of no relevance to appeal.

CRIMINAL LAW – DPP appeal against sentence – All factors relevant to sentence considered by sentencing judge – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr P G Priest QC with Mr C B Boyce	Leanne Warren & Associates

ASHLEY JA:

REDLICH JA:

WEINBERG JA:

Following a trial lasting some 10 days, a jury by a majority of 11 to 1 found the applicant guilty on one count of culpable driving causing death by gross negligence contrary to s 318(2)(b) of the Crimes Act 1958 (‘the Act’). Following a plea the applicant was sentenced to a term of three years’ imprisonment. Pursuant to s 27 of the Sentencing Act 1991, two years of that sentence were fully suspended for a period of three years. By the time of the appeal, the applicant had completed serving the portion of his sentence that had not been suspended. The applicant has appealed against his conviction while the Director of Public Prosecutions has appealed against the adequacy of the sentence.

The first two grounds of appeal against conviction relate to directions given to the jury concerning the alternate offence of dangerous driving causing death. In substance, the applicant complains that the directions did not correctly identify its essential character and failed to adequately distinguish between this alternative offence and driving which constitutes culpable driving.[1]
[1]The offence of dangerous driving causing death or serious injury having only quite recently been introduced, the trial judge did not have the benefit of this Court’s consideration of its elements and how it should be differentiated from other driving offences including culpable…

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 De Montero

Details

AGLC: R v De Montero [2009] VSCA 255
Case: [2009] VSCA 255
Decision Date: 29 October 2009

CaseChat Overview and Summary

The matter before the court was an appeal by the defendant against his conviction and sentence for dangerous driving causing death under the Crimes Act 1958. The court was required to determine whether the judge's direction to the jury correctly identified the essential character of the alternative offence of dangerous driving and whether the judge failed to adequately distinguish between the alternative offence and culpable driving. The court was also required to consider whether there was any bias by a juror.

The court held that the judge's direction to the jury was correct and that there was no failure to adequately distinguish between the alternative offence and culpable driving. The court also held that there was no bias by a juror. The court held that all factors relevant to the sentence were considered by the sentencing judge and that the appeal against the sentence was dismissed.

The court found that the defendant's conviction and sentence were appropriate and that the appeal should be dismissed. The court held that the judge's direction to the jury was correct and that there was no failure to adequately distinguish between the alternative offence and culpable driving. The court also held that there was no bias by a juror. The court found that the sentencing judge had considered all relevant factors and that the appeal against the sentence was dismissed. The court's final orders were that the appeal against conviction and sentence be dismissed.

Orders