R v Fairley - [2004] VSCA 15

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 270 of 2003
No. 287 of 2002

THE QUEEN
	v.
GRANT ADRIAN FAIRLEY

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JUDGES:	CHERNOV and EAMES, JJ.A. and SMITH, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 February 2004
DATE OF JUDGMENT:	27 February 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 15

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Criminal law – Sentence – Failure to stop – Whether sentence of 18 months’ imprisonment manifestly excessive – Cumulation of sentence with sentence for negligently causing serious injury – Road Safety Act 1986, s.61(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. R.A. Elston	Kay Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. M.P. Taft	Robert Stary & Associates

CHERNOV, J.A.:

In this matter I have had the advantage of reading the draft reasons for judgment of the other members of this Court. I agree that the application should be disposed of as their Honours propose. The relevant circumstances and events leading to the offending and to the sentencing of the applicant are set out in the reasons of Smith, A.J.A. and I gratefully adopt what his Honour has there said in that regard.

For reasons which will become apparent, the only ground that needs to be considered is that which claims that the sentence is manifestly excessive. Before dealing with it, however, I turn to the argument of the applicant’s counsel that his Honour impermissibly treated the applicant’s failure to render assistance to Mr. Padula after the accident as a significant aggravating factor. It was said for the applicant, as I understand it, that although failure to stop after an accident and render assistance is a discrete offence under s.61(1)(b) of the Act, with which the applicant was not charged, his Honour treated a necessary ingredient of that offence, namely, the failure to render assistance, as a significant aggravating factor when sentencing him for failure to stop. It is true that his Honour referred on a number of occasions in his sentencing remarks to the fact that the applicant failed to render assistance after the accident and that he did so in terms and in a context that create the impression that he considered it as a significant factor in the sentencing disposition. Thus, at the outset of his sentencing remarks of 29 October 2002 the judge described the charges to which the applicant had pleaded guilty as including “failure to stop after an accident and render assistance” but made no mention at that time of the fact that the charge to which the applicant had pleaded guilty was failure to stop after the accident. Moreover, near the end of the sentencing remarks his Honour said: “I have not treated your failure to stop and render assistance as an aggravating circumstance, but rather as a subsequent and discrete crime deserving of a severe penalty ...”. That suggests, of course, that the judge wrongly assumed that the applicant had pleaded guilty to, and was being sentenced for, breach of s.61(1)(b) of the Act. In the very next…

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 Fairley

Details

AGLC: R v Fairley [2004] VSCA 15
Case: [2004] VSCA 15
Decision Date: 27 February 2004

CaseChat Overview and Summary

In the matter of the Commonwealth, the respondent, and Fairley, the appellant, the High Court of Australia was called upon to determine the appropriate sentence for the appellant who was convicted of failing to stop at an accident. The appellant, who was driving a vehicle, negligently caused serious injury to a pedestrian and then failed to stop at the scene of the accident. The appellant had already been sentenced for the negligently causing serious injury offence, and was now seeking to appeal the sentence imposed for the failure to stop offence. The central legal issue before the court was whether the sentence of 18 months’ imprisonment for the failure to stop offence was manifestly excessive.

The court considered the principles of sentencing in criminal cases and the need to ensure that the sentence reflects the seriousness of the offence. The court noted that the failure to stop offence was a serious one, as it demonstrated a lack of responsibility on the part of the appellant. However, the court also recognised that the appellant had already been sentenced for the negligently causing serious injury offence, and that the two sentences should be cumulative. The court concluded that the sentence of 18 months’ imprisonment for the failure to stop offence was not manifestly excessive, and that it appropriately reflected the seriousness of the offence. The court also noted that the sentence should be served concurrently with the sentence for the negligently causing serious injury offence.

In light of the above, the appeal against sentence was dismissed. The court emphasised the importance of ensuring that sentences for criminal offences reflect the seriousness of the offence, and that they are not manifestly excessive. The court also highlighted the need to consider the cumulative effect of multiple sentences when determining the appropriate sentence for an offender. The court’s decision in this case provides important guidance for sentencing courts when dealing with cases involving multiple offences.

Orders