R v McPherson and Sargent - [2015] VSC 403

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0139

THE QUEEN

JAMIE WILLIAM MCPHERSON

AND

S CR 2014 0140

THE QUEEN

SHAYNE WILLIAM SARGENT

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JUDGE:	WEINBERG JA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 July 2015
DATE OF JUDGMENT:	10 August 2015
CASE MAY BE CITED AS:	R v McPherson and Sargent
MEDIUM NEUTRAL CITATION:	[2015] VSC 403

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CRIMINAL LAW – Two co-offenders – D1 pleaded guilty to two charges of culpable driving causing death – D1 70 years old, suffers from emphysema with limited life expectancy – No remorse – Total effective sentence of 8 years’ imprisonment with non-parole period of 5 years – D2 pleaded guilty to two charges of dangerous driving causing death – Lesser role in offending and less culpable than D1 – Genuine remorse – Total effective sentence of 5 years’ imprisonment with non-parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms L A Taylor QC	Office of Public Prosecutions
For the Accused McPherson	Mr D Gibson	Victoria Legal Aid
For the Accused Sargent	Mr M McGrath	Balmer & Associates

HIS HONOUR:

Jamie William McPherson and Shayne William Sargent. You have each pleaded guilty to having, by your negligent driving, caused the deaths of Gary and Fred Whearem. In your case, McPherson, you have pleaded guilty to two charges of culpable driving causing death, contrary to s 318(1) of the Crimes Act 1958, with each charge carrying a maximum penalty of 20 years’ imprisonment. You, Sargent, have pleaded guilty to two charges of dangerous driving causing death, contrary to s 319(1) of that Act. Each of those charges carries a maximum penalty of 10 years’ imprisonment. It is now my task to sentence you for your offences.

The events leading up to, and the facts surrounding, the commission of these offences were, ultimately, not in dispute. They may be briefly stated.

On Saturday, 4 January 2014, Gary Whearem was driving a blue Ford station wagon in a south-easterly direction along the Calder Highway. He was travelling at that stage on a stretch of road between Wedderburn and Inglewood. His younger brother, Fred, was a passenger in the front seat of that vehicle.

You, McPherson, were driving a brown Ford Fairmont sedan in close proximity to the Whearem vehicle, effectively, at stages, tailgating it. Your partner, Rebecca Toner, was in the front passenger seat of your car. Both vehicles were travelling at a considerable speed, later estimated by police to be about 109 kilometres per hour. The speed limit in that area was 100 kilometres per hour.

At about 12.40 pm, the passenger side of your vehicle came into contact with the driver’s side of the blue Ford. As a result of that contact, Gary Whearem lost control of his vehicle. It spun around in a clockwise direction, before colliding head on with a tree on the side of the road. Both Gary and Fred Whearem sustained fatal injuries, and…

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

Case: [2015] VSC 403
Decision Date: 10 August 2015

CaseChat Overview and Summary

The case before the court involved two defendants who were co-offenders in a tragic incident resulting in the deaths of two individuals. McPherson pleaded guilty to two charges of culpable driving causing death, while Sargent pleaded guilty to two charges of dangerous driving causing death. The court was tasked with determining appropriate sentences for both defendants, taking into account their respective roles in the offence and various personal circumstances.

The primary legal issues before the court were the determination of appropriate sentences for McPherson and Sargent, considering the gravity of their offences, their roles, and personal factors. The court needed to balance the principles of retribution, deterrence, and rehabilitation in sentencing, particularly given the defendants' ages and health conditions, and the impact of their actions on the victims and their families.

In delivering the judgment, the court considered the respective roles of McPherson and Sargent in the incident. McPherson, who was 70 years old and suffered from emphysema with a limited life expectancy, was held to be the more culpable of the two, having shown no remorse for his actions. The court imposed a total effective sentence of 8 years’ imprisonment with a non-parole period of 5 years. Sargent, who played a lesser role in the offending and had demonstrated genuine remorse, was sentenced to a total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years. The court emphasised the importance of individualising sentences to reflect the specific circumstances of each offender and the need to uphold public confidence in the criminal justice system.

The court made clear orders for both McPherson and Sargent, outlining the specific terms of their sentences, including the non-parole periods, and the conditions under which they would be served. The court’s decision underscored the importance of tailoring sentences to the particular facts of each case, taking into account the culpability of the offenders, their personal circumstances, and the broader principles of sentencing.

Orders