R v Fountain - [2018] ACTSC 329

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Fountain
Citation:	[2018] ACTSC 329
Hearing Date:	26 November 2018
DecisionDate:	26 November 2018
Before:	Elkaim J
Decision:	See [29]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – culpable driving causing grievous bodily harm
Legislation Cited:	Crimes Act 1900 (ACT) s 29(4) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 and 33
Cases Cited:	R v Barton [2016] ACTSC 162 R v Nachouki (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 17 September 2013) R v Ogle (No 2) [2018] ACTSC 126 R v Woods [2017] ACTSC 17
Parties:	The Queen (Crown) Ashleigh Rose Fountain (Offender)
Representation:	Counsel Mr A Williamson (Crown) Mr P Edmonds (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Canberra Criminal Lawyers (Offender)
File Numbers:	SCC 6 of 2018 and SCC 7 of 2018

ELKAIM J:

On 2 October 2018, the offender pleaded guilty to the single count in an indictment dated 20 February 2018. The charge is one of culpable driving of a motor vehicle by negligently causing grievous bodily harm to Ms Bach Tuyet Thi Tran.

The offence of culpable driving causing grievous bodily harm is contrary to s 29(4) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 10 years’ imprisonment.

The accident occurred at the intersection of Belconnen Way, Lathlain Street and Catchpole Street on 17 April 2017. The speed limit along Belconnen Way, the road on which the offender was travelling, is 80 km/h.

The intersection is governed by traffic lights. The offender drove through the intersection against a red traffic light and travelling at about 10 km/h in excess of the speed limit. Her vehicle, a Toyota Camry collided with a Toyota Corolla being driven by Ms Tran. Ms Tran had emerged from Catchpole Street in accordance with a green traffic light.

The accident occurred at about 5:15 pm. The offender was on her way home from work. She was distracted and clearly not concentrating on either her speed or the traffic lights that were ahead of her.

Ms Tran was seriously injured. Her injuries included a punctured lung leading to a haemopneumothorax, other lung injuries, fractured ribs, fractures to her right arm and wrist, a duodenal perforation (a potentially life-threatening condition), fractures of the transfer’s processes from L1 to L5 and a number of pelvic fractures.

Ms Tran required emergency surgery and spent about a week in the Intensive Care Unit at Canberra Hospital. During this time she suffered respiratory failure and also contracted a hospital-acquired gastro-intestinal infection. I will return to her current state below.

The offender was born in Temora in New South Wales in 1992. She is a single woman and works as a travel consultant. After completing Year 12 she commenced a degree in Environmental Science and Tourism Management at the University of Canberra.

The offender has no criminal record and does not use or abuse alcohol or illicit drugs.…

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 Fountain

Details

AGLC: R v Fountain [2018] ACTSC 329
Case: [2018] ACTSC 329
Decision Date: 26 November 2018

CaseChat Overview and Summary

The appeal heard by the Court of Appeal concerned the conviction of Fountain for culpable driving causing grievous bodily harm. The trial court had imposed a sentence of imprisonment, which Fountain challenged as excessive. The Court of Appeal was tasked with determining whether the sentence was appropriate in the circumstances of the case. The central issue before the court was the proportionality of the sentence imposed on Fountain. Specifically, the court needed to assess whether the sentence was within the range of sentences that could be considered appropriate for an offence of this nature, taking into account the relevant legal principles and guidelines. The appeal raised questions about the correct approach to sentencing in cases involving culpable driving causing grievous bodily harm and whether the trial judge had appropriately balanced the factors relevant to the imposition of a sentence.

The Court of Appeal began by examining the principles of sentencing in the context of culpable driving causing grievous bodily harm. It noted that such offences typically attract significant penalties due to the serious nature of the harm caused. The court then reviewed the facts of the case, including the circumstances of the incident and the impact on the victim. It considered the submissions made by both parties regarding the appropriate range of sentences for this type of offence. The court also evaluated the trial judge's reasons for imposing the specific sentence, assessing whether the judge had considered all relevant factors and applied the correct legal principles. After a thorough analysis, the Court of Appeal concluded that the sentence imposed was not manifestly excessive and confirmed the trial judge's decision.

Orders

Orders of the court

See [29]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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