R v McStay - [2022] VSC 268

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0143

Between:
THE QUEEN
-and-
BRADLEY McSTAY	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2022
DATE OF SENTENCE:	24 May 2022
CASE MAY BE CITED AS:	R v McStay
MEDIUM NEUTRAL CITATION:	[2022] VSC 268

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CRIMINAL LAW — Sentence following sentence indication — Culpable driving (by gross negligence) causing death — In an erratic fashion over 12 kilometres, accused in his utility followed sedan containing former girlfriend (KK) and her new beau LP, as well as CT and AS (the driver) — When AS stopped the sedan on a dark country road, LP stepped out of the rear passenger seat at same moment accused’s utility clipped right side of sedan — LP struck by utility, went onto bonnet momentarily and then fell under it — Accused did not intend to collide with sedan or LP — Nor did he know LP had stepped out of sedan — Unknown to accused, LP was dragged 58 metres under utility and then driven over, which killed him — Accused drove away temporarily and then returned to scene and waited for police — Accused unlicensed — Whether accused saw LP on bonnet momentarily — Whether lead-up driving aggravates offending — Plea of guilty — Remorse — Limited criminal history — Delay between offence and sentence — Strong prospects of rehabilitation — Pandemic restrictions in custody — Current sentencing practices — Importance of general deterrence, denunciation, just punishment and rehabilitation — Specific deterrence and community protection of less weight — Parsimony — Standard sentence offence — Whether “in interests of justice” not to fix non-parole period of at least 60 percent of head sentence — Sentence of six-and-a-half years’ imprisonment with non-parole period of three-and-a-half years — But for plea of guilty, sentence of eight-and-a-half years’ imprisonment with non-parole period of six years — Crimes Act 1958 (Vic), s 318; Criminal Procedure Act 2009 (Vic), ss 207-209; Sentencing Act 1991 (Vic), ss 5, 6AAA & 11A(4)(c).

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K Churchill	Solicitor for Public Prosecutions
For the Accused	Mr R Edney with Mr S Tovey	Markotich Lawyers

HIS HONOUR:

OVERVIEW

Following a sentence indication in March, Bradley McStay pleaded guilty to culpable driving (by gross negligence) causing the death of Luke Price at around midnight on 10 February 2020. Yesterday, I heard an opening, a plea in mitigation and submissions on matters of law.

This is an unusual case of culpable driving. In short, Mr Price was struck when he stepped out of the rear passenger seat of a sedan at the same moment that Mr McStay’s utility clipped the sedan at low speed. Mr McStay did not intend to clip the sedan or strike Mr Price and was not even aware that he had stepped out of the vehicle. Unfortunately, after ending up on the bonnet of the ute for a moment, Mr…

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 McStay

Details

AGLC: R v McStay [2022] VSC 268
Case: [2022] VSC 268
Decision Date: 24 May 2022

CaseChat Overview and Summary

In the matter of R v McStay, the defendant faced the County Court of Victoria for an incident of culpable driving (by gross negligence) causing death. The accused, McStay, followed a sedan containing his former girlfriend, KK, and her new partner, LP, over a distance of 12 kilometres in an erratic manner. When the sedan stopped on a dark country road, LP exited the vehicle simultaneously as McStay's utility vehicle clipped the sedan's right side. LP was momentarily on the bonnet of the utility vehicle before falling under it and being dragged for 58 metres, ultimately resulting in his death. McStay was unlicensed at the time of the incident and did not intend to collide with the sedan or LP. The accused returned to the scene and waited for police intervention.

The central legal issues addressed by the court involved determining whether McStay saw LP on the bonnet of his vehicle, assessing whether the lead-up driving constituted an aggravating factor in the offence, and considering the appropriate sentence given the plea of guilty, the remorse displayed by McStay, his limited criminal history, the delay between the offence and sentencing, his strong prospects of rehabilitation, and the impact of pandemic restrictions in custody. The court had to balance the principles of general deterrence, denunciation, just punishment, and rehabilitation against the lesser considerations of specific deterrence and community protection. Given these factors, the court determined that the standard sentence for the offence was six-and-a-half years' imprisonment with a non-parole period of three-and-a-half years. Considering the mitigating effect of the guilty plea, the court would have otherwise sentenced McStay to eight-and-a-half years' imprisonment with a non-parole period of six years.

The County Court found that the plea of guilty and other mitigating factors warranted a reduction in the non-parole period. Therefore, the final order was a sentence of six-and-a-half years' imprisonment with a non-parole period of three-and-a-half years. This decision reflects the court's consideration of all relevant factors and the importance of achieving a just outcome that aligns with current sentencing practices and the broader objectives of the criminal justice system.

Orders