R v Teh

Case [2003] VSCA 169 7 November 2003

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 200 of 2002

THE QUEEN
	v.
ROBERT TEH

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JUDGES:	WINNEKE, A.C.J., CALLAWAY and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 September 2003
DATE OF JUDGMENT:	7 November 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 169

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Criminal Law – Sentence – Culpable driving causing death and serious injury negligently – Applicant with poor driving record – Whether making orders for substantial cumulation resulted in a manifestly excessive sentence – Significance of offender’s personal consequences where their criminal conduct has occasioned death of a loved one – Application allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K. Judd	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher	Slades & Parsons

WINNEKE, A.C.J.:

I agree with Vincent, J.A.

CALLAWAY, J.A.:

I also agree with Vincent, J.A., although I should say that I was more troubled by the way in which the learned sentencing judge dealt with the effect of his offence on the offender.[1] As the discretion is reopened for other reasons, there is no need to say more, except that I agree with Vincent, J.A. that distress, injury or loss caused to an offender by the commission of the offence is often relevant to the instinctive synthesis that is required and that its significance will vary from case to case.[2]

VINCENT, J.A.:

[1]Compare, in the context of arson, R. v. Haddara (1997) 95 A.Crim.R. 108 at 108-109 and 113 and the cases there cited.

[2]Reasons of Vincent, J.A. at [20]-[21].

On 15 July 2002, the applicant pleaded guilty to negligently causing serious injury to Maree Licardi (count 1 on presentment P02600800), culpable driving arising from the death of his daughter Jacqueline Teh (count 1 on presentment P02256323), and causing serious injury negligently to his son, Bradley Teh and Atia Cader (counts 2 and 3 on presentment P02256323 respectively). He also agreed to the determination of a summary charge, to which he pleaded guilty, of driving on 28 June 2001 whilst his authorisation to do so was suspended as a consequence of an earlier speeding offence. He had, on 12 May 2001, exceeded the speed limit on the Warburton Highway at Seville by 30 kph but less than 40 kph. He was issued with a penalty infringement notice at the time and, accordingly, his licence was suspended for one month from 10 June 2001, that is, 28 days from his receipt of the notice. The applicant had a history of 14 prior convictions, and one finding of guilt from seven previous court appearances. They included nine convictions for driving offences.

After hearing a plea in mitigation of penalty, on 19 August 2002 the applicant was sentenced as follows:

Presentment P02600800 –
Count 1- two years and six months' imprisonment, one year and six months to be served cumulatively on the sentence imposed on Presentment P02256323.

Presentment P02256323
Count 1- seven years' imprisonment.
Count 2- two years' imprisonment, one year of which was to be served cumulatively upon the…

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 Teh

Details

AGLC: R v Teh [2003] VSCA 169
Case: [2003] VSCA 169
Decision Date: 7 November 2003

CaseChat Overview and Summary

The case of R v Teh involved the applicant, who was convicted for culpable driving causing death and serious injury negligently. The applicant had a history of driving offenses and was sentenced to imprisonment and disqualification from driving. The applicant sought to challenge the sentence, arguing that the cumulative effect of the orders resulted in a manifestly excessive sentence. The court was required to consider whether the cumulative effect of the orders was unjust and to assess the personal consequences of the applicant’s criminal conduct, including the death of a loved one. The case was heard by the Supreme Court of Victoria.

The legal issues before the court were whether the cumulative effect of the orders for imprisonment and disqualification from driving was manifestly excessive and whether the personal consequences of the applicant’s criminal conduct should be considered in determining the appropriate sentence. The court had to consider the principles of sentencing for culpable driving causing death and serious injury negligently and assess the circumstances of the case, including the applicant’s poor driving record and the personal consequences of their criminal conduct. The court also had to consider the significance of the death of a loved one in determining the appropriate sentence.

The court found that the cumulative effect of the orders for imprisonment and disqualification from driving was manifestly excessive and allowed the application. The court held that the personal consequences of the applicant’s criminal conduct, including the death of a loved one, were relevant in determining the appropriate sentence. The court found that the applicant’s poor driving record was a significant factor in determining the sentence, but that the personal consequences of their criminal conduct were also important. The court considered that the sentence should reflect the seriousness of the offense and the need to deter the applicant and others from engaging in similar conduct, while also taking into account the personal consequences of the applicant’s criminal conduct.

The court made orders reducing the applicant’s sentence and varying the disqualification from driving. The court held that the orders were just and appropriate in the circumstances and allowed the application. The court emphasised the importance of considering the personal consequences of the applicant’s criminal conduct in determining the appropriate sentence and recognised the significant impact that the death of a loved one had on the applicant. The court also noted the need to balance the principles of deterrence and retribution with the need to consider the personal consequences of the applicant’s criminal conduct.

Orders