R v Smith - [2006] VSCA 92

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 134 of 2005

THE QUEEN
	v
MICHAEL GRAHAM SMITH

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JUDGES:	MAXWELL P, ASHLEY JA and MANDIE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 March 2006
DATE OF JUDGMENT:	28 April 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 92

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Criminal Law – Culpable driving – Overtaking another vehicle on a country road in heavy fog – Collision with oncoming vehicle – Verdict of culpable driving by driving negligently open – Verdict not unsafe or unsound.

Criminal Law – Verdict of guilty on count of culpable driving by driving negligently – Verdict of not guilty on count of negligently causing serious injury - Whether verdicts inconsistent – Open to jury to conclude injury not serious injury – No necessary inconsistency.

Criminal Law – Culpable driving – Sentence of 5 years’ imprisonment with 3 years non-parole period – Not a bad instance of a serious crime – Many ameliorating considerations – Sentence not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr S Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr M Perry	Sharrock Pitman Legal

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons for judgment of Ashley JA. I agree with his Honour that, for the reasons he gives, the applications for leave to appeal should be refused.

ASHLEY JA:

Statement of the case

The applicant, Michael Graham Smith, was found guilty at the County Court at Wangaratta on 13 April 2005 of a count of culpable driving. At the same time he was acquitted of a count of negligent driving causing serious injury. On 27 April he was convicted and sentenced to five years’ imprisonment with a non-parole period of three years. Now he seeks leave to appeal against conviction and sentence.

Three grounds are relied upon in connection with the conviction application:

1.That it was not open to the jury to find that the driving of the applicant on the subject occasion amounted to negligent driving.

2. That the verdict of the jury was unsafe and unsatisfactory.
3. That the verdict of not guilty returned on the count of negligent driving causing serious injury was inconsistent with the verdict of guilty on the count of culpable driving.

Seven grounds are set out in support of the sentence application. Three of them were relied upon in written submissions filed on the applicant’s behalf. But only one, in substance, was the subject of oral argument – that is, that the sentence imposed was manifestly excessive. Other grounds, most particularly Grounds numbered 3, 4, 5 and 6,[1] were said by applicant’s counsel to particularize, or explain, why the sentence was manifestly excessive.
[1]“3. That the learned Trial Judge erred in law by placing excessive weight on the appellant’s previous convictions.
4. That the learned Trial Judge erred in law in failing to give any or any sufficient weight to the evidence of the victim’s former partner.
5. That the learned Trial…

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 Smith

Details

AGLC: R v Smith [2006] VSCA 92
Case: [2006] VSCA 92
Decision Date: 28 April 2006

CaseChat Overview and Summary

The appellant, Smith, was charged with culpable driving by driving negligently, causing a collision with an oncoming vehicle on a country road in heavy fog. The collision resulted in injuries to the driver of the oncoming vehicle, who was the appellant's passenger at the time of the incident. Smith was convicted of culpable driving by driving negligently but acquitted of the charge of negligently causing serious injury. Smith appealed against his conviction and sentence, arguing that the verdicts were inconsistent and that the sentence was manifestly excessive.

The court considered whether the verdicts were inconsistent, given that the jury found Smith guilty of culpable driving but acquitted him of causing serious injury. The court found that there was no necessary inconsistency in the verdicts, as the jury was open to conclude that the injury was not a serious injury. The court emphasised that the jury was entitled to consider all the evidence and determine the appropriate verdict for each charge.

The court also reviewed the sentence of five years’ imprisonment with a three-year non-parole period. The court found that the sentence was not manifestly excessive, given that the incident was not a bad instance of a serious crime and there were many ameliorating considerations. The court noted that the appellant had no prior convictions, had shown remorse, and had cooperated with authorities since the incident.

The court dismissed the appeal against conviction and sentence. Smith's conviction for culpable driving by driving negligently and his sentence of five years’ imprisonment with a three-year non-parole period were upheld.

Orders