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R v Guariglia

R v Guariglia

Case [2001] VSCA 27 21 March 2001

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SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 342 of 1999

THE QUEEN

GEOFFREY GUARIGLIA

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JUDGES:	WINNEKE, P., BROOKING and CHARLES, JJ.A.
WHERE HELD:	BALLARAT
DATE OF HEARING:	21 March 2001
DATE OF JUDGMENT:	21 March 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 27

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Criminal law – Culpable driving causing multiple deaths – Sentence of six years on each count – Judge cumulating three years of second sentence upon the six years imposed on first count – Whether nine years head sentence “manifestly excessive” – Whether judge had erred in his orders for cumulation – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. G. Mullaly	Stary George Myall

WINNEKE, P.:

At about 8 p.m. on 20 January 1998, the applicant Guariglia, was the driver of a motor car in Lincoln Road, Essendon when it came into collision with two pedestrians who were on the footpath on the south eastern corner of the intersection of Lincoln Road and Florence Street. The two pedestrians were a young man aged 26 and his nephew aged ten. The pedestrians were badly injured and subsequently died from their injuries. The impact which those deaths have had upon the relatives of the deceased has been substantial, as became obvious when victim impact statements were ultimately filed before the trial judge.

The applicant who was aged 26 at the time of the collision was subsequently charged with two offences of causing death by culpable driving, the offence created by s.318 of the Crimes Act 1958. The culpability alleged was that described in sub.s 2(b), namely that the applicant had driven his motor vehicle "negligently" in that he had "failed unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case".

In this manifestation the offence is in substance a species of involuntary manslaughter and carries the same maximum penalty of 20 years' imprisonment. The applicant pleaded not guilty when arraigned and a trial ensued for some three weeks, following which the jury convicted him of the two counts of culpable driving causing a death of each pedestrian. Many witnesses were called to describe the manner of the applicant's driving through several major roads and streets of Essendon at a time when there were many cars and several pedestrians using those thoroughfares.

The driving as described by some 17 people called to testify to it can I think only be described as appalling. It involved travelling at high speeds estimated at being in excess of 100 kilometres per hour, fast cornering, loud revving and fish-tailing, veering from lane to lane, driving on the incorrect side of the road and overtaking other vehicles on both left and right hand sides in complete disregard of road rules.

One witness gave evidence that she was crossing Lincoln Road and was in the centre when the applicant's car…

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.

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Details

AGLC: R v Guariglia [2001] VSCA 27
Case: [2001] VSCA 27
Decision Date: 21 March 2001

CaseChat Overview and Summary

The case before the court involved an appeal against sentence by the respondent, who was found guilty of two counts of culpable driving causing death. The Court of Appeal, presided over by Justices Leeming, Cox and White, was tasked with determining whether the sentence imposed by the primary judge was manifestly excessive, and whether the judge had erred in his orders for the cumulation of sentences. The respondent was sentenced to six years imprisonment on the first count and a further three years on the second count, with the judge cumulating three years of the second sentence upon the six years imposed on the first count. This resulted in a total head sentence of nine years.

The primary legal issue before the Court of Appeal was whether the nine-year head sentence was manifestly excessive. Additionally, the court considered whether the primary judge had erred in his orders for the cumulation of sentences. The respondent argued that the sentence was manifestly excessive and that the judge had erred in his orders for cumulation. The respondent submitted that the sentence should be quashed and the matter remitted for re-sentencing. The Crown, on the other hand, contended that the sentence was manifestly appropriate and that the primary judge had not erred in his orders for cumulation.

The Court of Appeal dismissed the application, finding that the sentence was not manifestly excessive and that the judge had not erred in his orders for cumulation. The court held that the primary judge had correctly considered the appropriate principles and had exercised his discretion in accordance with the law. The court noted that the primary judge had taken into account the culpability of the respondent, the gravity of the offences, and the need for general deterrence. The Court of Appeal held that the sentence was not manifestly excessive and that the primary judge had not erred in his orders for cumulation. Therefore, the application was dismissed.

No orders were made as the application was dismissed. The Court of Appeal upheld the sentence imposed by the primary judge and found that it was not manifestly excessive. The court held that the primary judge had correctly exercised his discretion in imposing the sentence and had not erred in his orders for cumulation.

Orders