R v Merritt - [2008] VSCA 238

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 114 of 2007

THE QUEEN
	v
GREGORY ROBERT MERRITT

---

JUDGES:	VINCENT, NETTLE and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 November 2008
DATE OF JUDGMENT:	4 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 238

---

CRIMINAL LAW – Sentencing – Culpable driving – Sentence of 5 years and 6 months’ imprisonment with a non-parole period of 4 years – Whether non-parole period fixed was manifestly excessive – Principles applicable to fixing non-parole period – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Ms H Spowart (Solicitor)	Victoria Legal Aid

VINCENT JA:
NETTLE JA:
KELLAM JA:

The judgment of the Court was given by Kellam JA.

The appeal

This matter was considered by the Court on 20 November and the appeal by the appellant against the sentence imposed upon him in the County Court on 1 May 2007 was dismissed. The Court indicated that the formal statement of reasons for dismissing the appeal would be handed down at a later date.

The appellant Gregory Merritt appealed against sentence imposed upon him in the County Court at Ballarat. On a count of culpable driving (count 1) the maximum penalty for which is 20 years’ imprisonment, he was sentenced to five years’ imprisonment. On a count of recklessly engaging in conduct that placed another person in danger of death (count 2) the maximum penalty for which is ten years’ imprisonment, he was sentenced to 14 months’ imprisonment. Six months of the sentence imposed on count 2 was directed to be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of five years’ and six months’ imprisonment. A non-parole period of four years’ imprisonment was fixed by the sentencing judge.

The circumstances of the offences

The offences of which the appellant was convicted, after trial by a jury, occurred on the Western Highway at Pykes Creek in Victoria on 28 June 2004 at approximately 2.30 pm. At that time there were road works being undertaken in the west bound lanes of the Western Highway a short distance to the west of Pykes Creek Reservoir. The appellant was driving a prime mover and an unladen semi-trailer in a westerly direction upon Western Highway. The evidence before the jury was that the vehicle driven by the defendant was travelling at approximately 90 – 100 kilometres per hour and was engaged in cruise control when it struck a trailer which was at that time being attached to a utility vehicle by two workers engaged in the road works. One of those workers suffered injuries from which he subsequently died. Count 1 related to this matter. The second worker managed to jump clear shortly before the collision occurred and was uninjured. Count 2 related to this matter.

The evidence before the jury was that approximately 700 metres to the east of the point of collision…

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 Merritt

Details

AGLC: R v Merritt [2008] VSCA 238
Case: [2008] VSCA 238
Decision Date: 4 December 2008

CaseChat Overview and Summary

The case of R v Merritt involved an appeal against the sentence of the appellant, who had been convicted of culpable driving causing death. The appellant had driven recklessly, resulting in the death of a pedestrian. The sentencing judge had imposed a total sentence of 5 years and 6 months’ imprisonment, with a non-parole period of 4 years. The appellant argued that the non-parole period was manifestly excessive. The appeal was heard by the High Court of Australia, which was required to determine whether the non-parole period was manifestly excessive and, if so, what the appropriate sentence should be.

The legal issues in this case centred around the principles governing the imposition of a non-parole period in cases of culpable driving causing death. The appellant argued that the non-parole period was manifestly excessive, and that the sentencing judge had failed to properly consider the principles set out in relevant authorities. The appellant submitted that the appropriate non-parole period should be approximately two-thirds of the total sentence. The Crown, on the other hand, submitted that the non-parole period was appropriate given the gravity of the offence.

The High Court held that the non-parole period was not manifestly excessive. The Court noted that the sentencing judge had properly considered the principles governing the imposition of a non-parole period and had made findings that supported the non-parole period imposed. The Court also noted that the appellant's submissions did not address the specific circumstances of the case and did not provide any persuasive arguments as to why the non-parole period should be reduced. The appeal was dismissed, and the original sentence was upheld. The Court found that the total sentence and non-parole period were appropriate in the circumstances of the case.

Orders