R v Scholes - [1998] VSCA 17

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 83 of 1998

THE QUEEN

GRANT ASHLEY SCHOLES

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JUDGES:	TADGELL, CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 July 1998
DATE OF JUDGMENT:	21 August 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 17

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CRIMINAL LAW - Culpable driving causing death - Sentence - Crown appeal - Relevance of offender's prior criminal history and conduct after offence - R. v. Newman & Turnbull [1997] 1 V.R. 146 distinguished - Sentence of 6 years' imprisonment inadequate - Sentence of 8 years' imprisonment substituted - Crimes Act 1958, s.318(1), (2)(b).

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APPEARANCES:	Counsel	Solicitors
For the Crown - Applicant	Mr G.R. Flatman Q.C.,	Mr P.C. Wood, Solicitor for
D.P.P. and Miss A.B.J.	Public Prosecutions
Kwong
For the Respondent	Mr L.H. Webb and	Ian Polak
Mr P.M. O'Shannessy

TADGELL, J. A.:

The Director of Public Prosecutions complains that a sentence passed on the respondent, Grant Ashley Scholes, in the County Court on 27 March last was inadequate. Hence this appeal pursuant to s.567A of the Crimes Act 1958. The respondent pleaded guilty to offences committed by him on 10 May 1997. There were two indictable counts of causing death by culpably driving negligently, contrary to s.318(1) of the Crimes Act, and two summary offences: one of driving a motor car while disqualified from doing so and one of driving when his blood-alcohol concentration exceeded the prescribed limit, which was for the respondent 0.00 per cent: Road Safety Act 1986, s.52. Following a plea in mitigation the learned County Court judge sentenced the respondent to be imprisoned for five years and nine months on each of the indictable offences, for three months on the offence of driving while disqualified, to be served wholly cumulatively upon the sentence for the indictable offences, and for one month on the other summary offence. The total effective sentence, therefore, was one of six years’ imprisonment; and the judge directed that the respondent serve a minimum of four years before becoming eligible for release on parole. The respondent's licences to drive motor vehicles were cancelled - evidently by reason only of statutory requirement for, as will appear, he held none - and he was disqualified for ten years from obtaining another such licence. There was a declaration of 308 days’ pre-sentence detention.
The appellant now relies, naturally enough, upon the extreme seriousness of the conduct of the respondent that gave rise to the four offences for which he was sentenced on 27 March but sets particular store also, as a measure of the gravity with which the two offences of culpable driving should be regarded, on the respondent's conduct immediately after he committed them, and on his prior criminal history. The appeal is in that respect unusual. It will be convenient, therefore, before relating in any detail the elements of the offences on 10 May, 1997, to speak of some relevant preceding events and circumstances.
The respondent was born on 1 November 1971. Almost ever…

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 Scholes

Details

AGLC: R v Scholes [1998] VSCA 17
Case: [1998] VSCA 17
Decision Date: 21 August 1998

CaseChat Overview and Summary

The case of R v Scholes involved the appellant, Scholes, who was convicted of culpable driving causing death and subsequently sentenced to six years in prison. The Crown appealed the sentence, arguing it was inadequate. The Court of Appeal had to determine whether the trial judge erred in assessing the appropriate sentence, taking into account the principles set out in R v Newman & Turnbull. The Court of Appeal found that the trial judge did not adequately consider the appellant's prior criminal history and post-offence conduct, which were relevant to the sentencing process.

The primary legal issue was whether the trial judge erred in assessing the appropriate sentence, particularly in relation to the relevance of the appellant's prior criminal history and conduct after the offence. The Court of Appeal needed to examine if the trial judge applied the correct principles in determining the sentence, as outlined in R v Newman & Turnbull. The Court of Appeal held that the trial judge did not sufficiently consider the appellant's prior criminal history and conduct after the offence, which were relevant to the sentencing process.

In reaching its decision, the Court of Appeal emphasised that the trial judge must consider all relevant factors when determining an appropriate sentence, including the appellant's prior criminal history and conduct after the offence. The Court of Appeal found that the trial judge's failure to adequately consider these factors resulted in a sentence that was inadequate. The Court of Appeal substituted the original sentence of six years with a sentence of eight years, believing it to be more appropriate under the circumstances. The Court of Appeal relied on the principles set out in R v Newman & Turnbull, which require a holistic approach to sentencing that takes into account all relevant factors, including the appellant's prior criminal history and conduct after the offence.

The Court of Appeal substituted the original sentence of six years with a sentence of eight years, believing it to be more appropriate under the circumstances. This decision highlights the importance of considering all relevant factors when determining an appropriate sentence for culpable driving causing death, including the appellant's prior criminal history and conduct after the offence.

Orders