R v Leesley - [2001] VSCA 90

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 289 of 2000

THE QUEEN
	v.
JOHN LEESLEY

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JUDGES:	WINNEKE, A.C.J., ORMISTON and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 and 7 June 2001
DATE OF JUDGMENT:	7 June 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 90

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Criminal law – Sentence – Culpable driving causing death by gross negligence – Partner of applicant killed when car ran off road – Powerful mitigating factors found by sentencing judge warranting lower head sentence and minimum term than would “ordinarily” be imposed – Whether sentence of five years with non-parole period of two-and-a-half years excessive in special circumstances – Impact on infant child of applicant and deceased considered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms. G. Cannon	Mr. S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr. P.G. Priest Q.C. and Mr. P.A. D’Arcy	Moores Legal

WINNEKE, A.C.J.:

The appellant, who is now aged 31, pleaded guilty before the Chief Judge of the County Court on 25 September 2000 to one count of culpable driving by gross negligence (the maximum term for which is 20 years’ imprisonment), one count of possessing a drug of dependence (heroin), one count of having in his possession cannabis and one count of having in his possession rivotril. Both cannabis and rivotril are also drugs of dependence.

On 28 September 2000, the Judge sentenced the appellant to five years’ imprisonment on the culpable driving charge, and fined him $200 on the count of possessing cannabis, and $1,000 each on the count of possessing the other two drugs. His Honour ordered the appellant to serve 2½ years before becoming eligible for parole. The appellant had admitted a number of prior convictions which included convictions for, inter alia, speeding and careless driving. Two of the former were convictions for exceeding the speed limit by 50 kph or more. His Honour also cancelled the appellant’s driver’s licence and disqualified him from obtaining any further licence for a period of 4 years. I think I should also say that the appellant had not previously been sentenced to a term of imprisonment.

The appellant, pursuant to leave granted, appeals to this Court against the sentence imposed for the offence of culpable driving (count 1) and the term of the licence disqualification. The grounds of appeal argued were essentially as follows:

(a)the judge failed to give any or sufficient weight to family hardship;
(b)that his Honour gave too much weight to the appellant’s prior convictions and wrongly used those convictions as going to moral culpability;
(c)that the judge gave too much or too little weight to remorse, the guilty pleas, prospects of rehabilitation, and general deterrence leading to a sentence which is manifestly excessive.

Before turning to the submissions made in respect of the grounds, it is desirable to briefly turn to the facts. They were the subject of an agreed statement before the sentencing judge:

On 26 January 1999 at 4.30 a.m. a turbo Nissan EXA motor vehicle driven…

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 Leesley

Details

AGLC: R v Leesley [2001] VSCA 90
Case: [2001] VSCA 90
Decision Date: 7 June 2001

CaseChat Overview and Summary

The case of R v Leesley involved the defendant, Leesley, who was convicted of culpable driving causing death by gross negligence. The deceased was Leesley's partner, who died when the vehicle he was driving ran off the road. Leesley was sentenced to five years imprisonment with a non-parole period of two-and-a-half years, a sentence he argued was excessive. The appeal against sentence was heard in the Court of Appeal.

The primary legal issue before the court was whether the sentence imposed by the sentencing judge was manifestly excessive. The court had to consider the sentencing principles applicable to culpable driving causing death by gross negligence and whether the sentencing judge had appropriately balanced the relevant aggravating and mitigating factors. The appeal hinged on whether the sentence was excessive given the special circumstances of the case, particularly the impact on the infant child of both the defendant and the deceased.

The Court of Appeal found that the sentencing judge had appropriately assessed the aggravating and mitigating factors. The judge had given substantial weight to the mitigating factors, which were deemed powerful enough to warrant a lower head sentence and a shorter minimum term than would ordinarily be imposed. The court considered the impact on the infant child as a significant mitigating factor, recognising the hardship and distress it caused. Despite these considerations, the court concluded that the sentence was not excessive, affirming the sentencing judge's discretion and the appropriateness of the sentence imposed.

No further orders were made by the court.

Orders