R v Menzies - [2001] VSCA 22

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 206 of 2000

THE QUEEN
	v.
CARMEL THERESE MENZIES

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JUDGES:	CALLAWAY and BUCHANAN, JJ.A. and COLDREY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 March 2001
DATE OF JUDGMENT:	15 March 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 22

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CRIMINAL LAW – Sentencing – Culpable driving causing death – Negligently causing serious injury – Injection of heroin together with use of prescribed drugs – Plea of guilty – Rehabilitation achieved and in prospect – Delay – Sentence of 7 years' imprisonment with non-parole period of 3½ years reduced (by majority) to 4½ years' imprisonment with non-parole period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G.G. Hicks, S.C.	Acting Solicitor for Public Prosecutions
For the Appellant	Mr J.P. Dickinson	Slades & Parsons

CALLAWAY, J.A.:

I shall ask Coldrey, A.J.A. to deliver the first judgment.

COLDREY, A.J.A.:

On 28 July 2000, the appellant, Carmel Menzies, was sentenced in the County Court at Melbourne to a period of six years' imprisonment for having, on 20 February 1999, caused the death of John Rogers by the culpable driving of her motor vehicle whilst under the influence of a drug to such an extent as to be incapable of having proper control of that motor vehicle. The appellant pleaded guilty to that count as well as a second count alleging that, on the same occasion, by negligently driving her motor car, she caused serious injury to Annaliese Rogers. On that charge she was sentenced to one year's imprisonment. Count 3 on the presentment was one of possessing a drug of dependence, namely heroin, on the same date. This resulted in imprisonment for seven days. The sentencing judge directed that count 1 was to be served cumulatively with the sentence on count 2, resulting in a total effective sentence of seven years. A non-parole period of three and a half years was set, and a period of 16 days' pre-sentence detention was ordered to be taken into account as having already been served under the sentence. Additionally, the appellant's licence to drive a motor car was cancelled concurrently on counts 1 and 2 and a period of three years was fixed during which the appellant was disqualified from obtaining a licence.

The grounds of appeal are as follows:

(1)That the sentence imposed was manifestly excessive.
(2)The learned sentencing judge erred in not treating the evidence of rehabilitation as relevant to the head sentence as well as the minimum period.
(3)The learned sentencing judge erred in that he gave no, or insufficient, weight to the issue of delay.
(4)The learned sentencing judge erred by placing disproportionate weight on the consumption of heroin by the appellant, thus sentencing

on the basis that he was dealing with a significant drugs case.
(5)The learned sentencing judge erred in directing total cumulation of the sentences imposed on counts 1 and 2.
(6)The learned sentencing judge erred in giving insufficient weight to the matters put in mitigation, inter alia:

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 Menzies

Details

AGLC: R v Menzies [2001] VSCA 22
Case: [2001] VSCA 22
Decision Date: 15 March 2001

CaseChat Overview and Summary

In the case of R v Menzies, the defendant was convicted of culpable driving causing death and negligently causing serious injury. Menzies had been driving while under the influence of heroin, combined with prescribed drugs, when the accident occurred. The case was heard in the Court of Criminal Appeal. Menzies had pleaded guilty to the charges and the matter proceeded to sentencing, where the trial judge imposed a sentence of 7 years' imprisonment with a non-parole period of 3½ years. Menzies appealed against the sentence, arguing that it was excessive and should be reduced.

The key legal issues before the court were whether the sentence was manifestly excessive and whether the trial judge had failed to give adequate weight to Menzies' rehabilitation and prospects for rehabilitation. The court also had to consider the delay in bringing the matter to sentencing and whether this warranted any adjustment to the sentence. The appeal hinged on the assessment of Menzies' personal circumstances, his remorse, and the potential for rehabilitation.

The Court of Criminal Appeal, in considering the appeal, found that the sentence was indeed excessive. The majority of the court was of the opinion that the sentence should be reduced to reflect Menzies' achievements in rehabilitation and the prospects for continued rehabilitation. The court also took into account the delay in sentencing and reduced the non-parole period accordingly. The sentence was thus reduced to 4½ years' imprisonment with a non-parole period of 2 years. The decision was made by a majority, with one judge dissenting, arguing that the sentence should not be reduced as much as the majority had decided.

The final orders of the court were that the sentence of Menzies be reduced to 4½ years' imprisonment with a non-parole period of 2 years. This reduction recognised Menzies' achievements in rehabilitation and the prospects for ongoing rehabilitation, as well as the delay in bringing the matter to sentencing.

Orders