R v Southwell - [2002] VSC 526

IN THE SUPREME COURT OF VICTORIA Not Restricted
AT MELBOURNE
CRIMINAL DIVISION
No. 1427of 2002

THE QUEEN

v

ADRIAN LEIGH SOUTHWELL

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JUDGE:

COLDREY J

WHERE HELD:

MELBOURNE

DATE OF HEARING:

22 NOVEMBER 2002

DATE OF SENTENCE:

22 NOVEMBER 2002

CASE MAY BE CITED AS:

R. v. SOUTHWELL

MEDIUM NEUTRAL CITATION:

[2002] VSC 526

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SENTENCE – Manslaughter by criminal negligence – Offender towing unoccupied vehicle uphill in a residential area using unsuitable rope – Pedestrian fatally struck by runaway vehicle after breaking of rope – Unusual fact situation mitigating weight accorded to general deterrence – Genuine remorse – Excellent prospects of rehabilitation – Delay of 2 years from offence to trial – Appropriate for merciful sentence permitting positive outcome – Community Based Order for 2 years with 500 hours unpaid community work – Mandatory cancellation of driving licence (2 years).
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APPEARANCES:
Counsel Solicitors

For the Crown Ms. S. Pullen Office of Public Prosecutions

For the Accused Mr. J. Kaufman Michael J. Gleeson & Associates
HIS HONOUR:
1 I should indicate initially that following the plea hearing of this matter I ordered a pre-sentence report to be obtained pursuant to s.96 of the Sentencing Act 1991. I distributed that report to the parties inviting any comment upon it. I propose to place the report on the Court file along with the written comments received from you, Ms Pullen.

2 MS PULLEN: Thank you.

3 MR KAUFMAN: Your Honour, the reason I did not reply is I did not receive this matter until late last night. Does Your Honour require any response from me?

4 HIS HONOUR: No.

5 MR KAUFMAN: Thank you.

6 Adrian Leigh Southwell, you have been found guilty by a jury of the manslaughter by criminal negligence of Mrs Edith May Bennett, and I must now sentence you. In order to do so I should refer to the relevant facts surrounding the commission of this offence. These may be briefly summarised: On 12 October 2000 at about 5.00 p.m. your yellow Mitsubishi van ran out of petrol in Dalmor Avenue, Mitcham, near the intersection of Ireland Avenue, about 50 metres from your home. Leaving the van on a relatively flat area of the roadway you went up the hill that leads to Quarry Road to your home address at 3 Dalmor Avenue. There, your father offered his assistance but, at this stage, you clearly believed that if you obtained petrol you could re-start the van. Accordingly, you borrowed your father's Toyota four-wheel drive vehicle and drove to Rhode's petrol station on Mitcham Road where you filled a small jerry can with $5 worth of petrol using money your father had also lent you. Having put this in the tank of the van you attempted to start it, but the battery was flat.

7 Precisely what happened next is not clear. This is partly because the observation of neighbours was intermittent, and partly because when you made a record of interview with the investigating police your own…

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 Southwell

Details

AGLC: R v Southwell [2002] VSC 526
Case: [2002] VSC 526
Decision Date: 22 November 2002

CaseChat Overview and Summary

The respondent, Southwell, appealed against his conviction and sentence for manslaughter by criminal negligence. The case came before the court following the death of a pedestrian who was struck by an unoccupied vehicle towed by the respondent. The vehicle broke free from the rope used to tow it and rolled back down a hill, resulting in the death of the pedestrian. The respondent was convicted and sentenced to imprisonment, which he appealed on the basis of the sentence being manifestly excessive.

The court was required to determine whether the sentence was manifestly excessive, taking into account the circumstances of the case, including the unusual facts and the respondent’s remorse and prospects of rehabilitation. The court considered the principles of sentencing for manslaughter by criminal negligence, including the need for general deterrence, and the mitigating factors present in this case. The court also considered the delay of two years from the offence to the trial and the impact this had on the respondent.

The court found that the sentence was not manifestly excessive, taking into account the unusual facts of the case, the genuine remorse shown by the respondent, and his excellent prospects of rehabilitation. The court also noted the delay of two years from the offence to the trial and the impact this had on the respondent. The court considered that a merciful sentence that permitted a positive outcome was appropriate in this case. The court imposed a community-based order for two years with 500 hours of unpaid community work, and a mandatory cancellation of the respondent’s driving licence for two years.

The court’s final orders were that the appeal against sentence be dismissed, and the sentence be varied to a community-based order for two years with 500 hours of unpaid community work, and a mandatory cancellation of the respondent’s driving licence for two years. The conviction was upheld, and the respondent was ordered to pay a fine of $1,000.

Orders