R. v. Sherpa - [2001] VSCA 145

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 335 of 2000

THE QUEEN
	v.
NORDEN SHERPA

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JUDGES:	ORMISTON and CALLAWAY, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 August 2001
DATE OF JUDGMENT:	22 August 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 145

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CRIMINAL LAW - Sentencing - Culpable driving causing death - Whether judge gave sufficient weight to mitigating factors - Whether he treated alleged theft of motor vehicle as circumstance of aggravation - Significance of general deterrence and youth - Sentence of seven years' imprisonment with non-parole period of five years reduced to five years’ imprisonment with non-parole period of three years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms Kay Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr P.J. Morrissey	Victoria Legal Aid

ORMISTON, J.A.:

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

CALLAWAY, J.A.:

The applicant, who was 20 at the time of the offence and is now aged 22, pleaded guilty in the County Court to one count of culpable driving causing death. The maximum custodial sentence for that offence is 20 years' imprisonment, but the form of culpability that was specified in the presentment was that in s.318(2)(b) of the Crimes Act 1958, i.e. negligence of the same degree as that required to support a charge of manslaughter[1]. After hearing a plea for leniency on his behalf and later considering a psychological report obtained from Mr Ian Joblin, the learned judge sentenced the applicant to seven years' imprisonment with a non-parole period of five years. A declaration was made regarding 58 days' pre-sentence detention and the applicant was disqualified for five years from obtaining a licence to drive a motor vehicle.
[1]See R. v. Shields [1981] V.R. 717 at 724, R. v. Franks (No.1) [1999] 1 V.R. 518 at [5]
and R. v. Wright [1999] 3 V.R. 355 at [9].

The applicant seeks leave to appeal against sentence on six grounds: that the sentence is manifestly excessive (ground 1); that the learned sentencing judge erred in treating the applicant's use of a car said to be stolen as an aggravating feature (ground 2); that his Honour gave insufficient weight to the applicant's youth, prospects of rehabilitation and lack of criminal history (grounds 3, 4 and 5); and that he fixed a non-parole period which was excessive in all the circumstances (ground 6).

The circumstances of the offence may be briefly summarised. On Tuesday 25th May 1999 the applicant was living in an apartment above a Nepalese restaurant in Prahran. A friend of his, one Walid Hidad, worked there as a kitchen-hand and, like other employees of the restaurant, often used the applicant's apartment as a

changing room. He had done so on the afternoon in question and, at approximately 5 p.m., the applicant removed Mr Hidad's car keys from his trousers, which were hanging on a hook in the apartment, and took his Toyota Camry sedan, which was parked in an adjacent street.…

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. Sherpa

Details

AGLC: R. v. Sherpa [2001] VSCA 145
Case: [2001] VSCA 145
Decision Date: 22 August 2001

CaseChat Overview and Summary

The defendant, Sherpa, was convicted of culpable driving causing the death of another person. The case was heard in the Court of Appeal. Sherpa appealed against his sentence, arguing that the judge did not sufficiently consider mitigating factors and incorrectly treated the alleged theft of the motor vehicle as an aggravating circumstance.

The court was required to decide whether the sentence imposed was appropriate, and whether the judge had correctly assessed the mitigating factors and the alleged theft of the vehicle. The court had to consider the significance of general deterrence and the youth of the offender in determining the sentence.

The court found that the judge did not give sufficient weight to the mitigating factors and mischaracterised the alleged theft as an aggravating circumstance. The court held that general deterrence and youth were significant factors to consider in sentencing. The court reduced the sentence from seven years' imprisonment with a non-parole period of five years, to five years’ imprisonment with a non-parole period of three years.

The appeal was allowed, and the sentence was varied as stated.

Orders