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R v Healey

R v Healey

Case [2008] VSCA 132 5 August 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 33 of 2007

THE QUEEN
	v
BRENDON HEALEY

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JUDGES:	ASHLEY and NEAVE JJA and PAGONE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 July 2008
DATE OF JUDGMENT:	5 August 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 132

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CRIMINAL LAW – Conviction – Appellant pleaded guilty to four counts of negligently driving a motor vehicle causing serious injury and to two summary offences – Whether appellant subject to double punishment – Appeal allowed – Convictions on summary offences quashed and sentences set aside.

CRIMINAL LAW – Sentencing – Whether denial of procedural fairness – Whether sentencing discretion re-opened following successful appeal against conviction – Whether evidence of deterioration of existing injury should be admitted as fresh evidence – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Paul Vale Criminal Law
For the Crown	Mr D A Trapnell	Ms S Ward, Acting Solicitor for Public Prosecutions

ASHLEY JA:

I agree with Neave JA.

NEAVE JA:

The appellant, Brendon Healey, pleaded guilty to four counts of negligently causing serious injury (counts 1 to 4) under s 24 of the Crimes Act 1958. He also pleaded guilty to two summary offences: one count of driving a motor vehicle while more than the prescribed concentration of alcohol was present in his blood[1] (the ‘.05 offence’) and one count of exceeding the speed limit.[2] After hearing a plea in mitigation, the learned judge below sentenced him as follows:
[1]Road Safety Act 1986, s 49(1)(b).
[2]Road Rules – Victoria, r 20.

· three years and six months’ imprisonment on each of counts 1, 2 and 3;

· two years’ imprisonment on count 4;

· on the .05 offence, a fine of $700; and

· on the offence of exceeding the speed limit, a fine of $300.

His Honour ordered that twelve months of the sentences imposed on counts 2 and 3 and six months of the sentence imposed on count 4 be served cumulatively on each other and on the sentence imposed on count 1, resulting in a total effective sentence of six years’ imprisonment, and fixed a non-parole period of four years and six months. In relation to these counts, his Honour made orders cancelling the appellant’s licence to drive a motor vehicle and disqualifying him from obtaining a licence in Victoria for a period of four years, under s 89(1)(B) of the Sentencing Act1991.

His Honour also made orders cancelling the appellant’s licence and disqualifying him from obtaining a licence for specified periods,[3] consequent on the

[3]A disqualification period of 10 months was imposed in relation to the .05 offence conviction and of 6 months for the conviction for exceeding the speed limit.

summary offence convictions. His Honour ordered that the various licence disqualification periods which he had imposed should run concurrently.
Circumstances of the offence and offender

The offences occurred in the following circumstances. On the evening of 7 October 2003 Elissa Wilkie,…

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 Healey

Details

AGLC: R v Healey [2008] VSCA 132
Case: [2008] VSCA 132
Decision Date: 5 August 2008

CaseChat Overview and Summary

In the case of R v Healey, the appellant, Healey, appealed against his convictions and sentences imposed by the Magistrates’ Court. Healey pleaded guilty to four counts of negligently driving a motor vehicle causing serious injury and two summary offences. He sought to appeal on the basis that the convictions on the summary offences constituted double punishment and that the magistrate had failed to exercise procedural fairness during sentencing.

The appeal raised two primary issues: first, whether the convictions on the summary offences constituted double punishment, and second, whether the sentencing discretion was re-opened following the successful appeal against conviction and whether evidence of the deterioration of an existing injury should be admitted as fresh evidence. The court had to determine if the summary offences were distinct from the negligent driving charges and whether the evidence of the injury deterioration could be considered in the sentencing process.

The court found that the convictions on the summary offences constituted double punishment, as they were not distinct from the charges of negligent driving causing serious injury. Consequently, the appeal was allowed, and those convictions were quashed. The court also set aside the sentences imposed. However, regarding the sentencing appeal, the court held that the denial of procedural fairness did not warrant reopening the sentencing discretion. Additionally, the evidence of the deterioration of an existing injury was not admitted as fresh evidence. The appeal in this respect was dismissed.

The final orders of the court were that the convictions on the summary offences were quashed, and the sentences were set aside. The sentences were to be re-imposed following a proper sentencing hearing.

Orders