R v Harding - [2008] VSCA 124

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 349 of 2007

THE QUEEN
	v
RAYMOND HARDING

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JUDGES:	ASHLEY and DODDS-STREETON JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 June 2008
DATE OF JUDGMENT:	25 July 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 124

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CRIMINAL LAW — Sentence — Appeal — Failing to stop after accident — Possession of a drug of dependence — Driving motor vehicle while licence was suspended — Whether judge erred by taking into account consequences of injuries sustained by victim — Whether judge made finding that it was highly likely that appellant was under influence of alcohol or drugs at time of accident — Proof beyond reasonable doubt required for conclusions adverse to the appellant in sentencing — Whether sentence manifestly excessive — Very small quantity of drug of dependence — Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr G Davis	Chester Metcalfe & Co

ASHLEY JA:

I agree with Lasry AJA, for the reasons which his Honour gives, that the appeal should be allowed but only so as to impose a different sentence on count 2; and, in consequence, a different total effective sentence. I add this. His Honour is surely correct in saying that an accused person – and, in the event of an appeal, this Court – must not be left uncertain whether a potential sentencing fact was found at all, whether it was found to the appropriate standard, and what impact it had upon sentence. Considered by reference to that template, the judge’s remarks which founded the first and second grounds of appeal just met the minimum requirement.

DODDS-STREETON JA:

I have had the benefit of reading in draft the reasons of Lasry AJA. I agree with his Honour’s proposed disposition, for the reasons he gives.

LASRY AJA:

On 15 August 2007 the appellant pleaded guilty to one count of failing to stop after an accident contrary to s 61(1)(a) of the Road Safety Act 1986 (Vic)[1] and two counts of possession of a drug of dependence contrary to s 73(1) of the Drugs Poisons and Controlled Substances Act 1981 (Vic).[2] He admitted prior convictions. In addition, he pleaded guilty to two further counts of driving a motor vehicle while his licence was suspended and agreed that the matters be dealt with in the County Court.[3]

[1]The maximum penalty for this offence is 10 years’ imprisonment.

[2]The maximum penalty for an offence under s 73(1)(a) is 5 penalty units, and the maximum penalty for an offence under s 73(1)(c) is 400 penalty units or 5 years’ imprisonment or both.

[3]The offences were against s 30 of the Road Safety Act 1986 Act and the prescribed penalty for a subsequent offence, which this was, is imprisonment for not less than 1 month and not more than 2 years.

After hearing a plea in mitigation of sentence, the learned sentencing judge imposed…

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 Harding

Details

AGLC: R v Harding [2008] VSCA 124
Case: [2008] VSCA 124
Decision Date: 25 July 2008

CaseChat Overview and Summary

The appeal before the court involved the appellant, Harding, who was sentenced for various driving-related offences. The charges included failing to stop after an accident, possessing a drug of dependence, and driving a motor vehicle while his licence was suspended. The primary dispute was whether the sentence handed down by the trial judge was manifestly excessive and whether certain considerations were improperly taken into account during sentencing.

The legal issues that the court needed to address were whether the trial judge had erred by considering the consequences of the injuries sustained by the victim, whether the judge had made a finding that it was highly likely that the appellant was under the influence of alcohol or drugs at the time of the accident, and whether the proof of these conclusions was established beyond reasonable doubt. Additionally, the court had to consider whether the sentence was manifestly excessive, given the very small quantity of the drug of dependence involved.

The court found that the trial judge had indeed erred in taking into account the consequences of the victim's injuries when determining the sentence, as these were matters for the jury and not for the judge to consider. Furthermore, the court held that the judge had not made a finding that it was highly likely that the appellant was under the influence of alcohol or drugs at the time of the accident. The court also noted that the proof of these conclusions required a higher standard of proof than was applied by the trial judge. Finally, the court determined that the sentence was manifestly excessive, particularly in light of the small quantity of the drug of dependence found on the appellant.

The appeal was allowed, and the sentence was quashed. The case was remitted to the District Court for re-sentencing, with directions to ensure that the trial judge did not take into account the consequences of the victim's injuries and that the proof of any conclusions adverse to the appellant was established beyond reasonable doubt.

Orders