R v Toombs - [2001] VSCA 144

SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 354 of 2000

THE QUEEN

v.

DALE JOHN TOOMBS

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JUDGES:

ORMISTON and CALLAWAY, JJ.A. and O'BRYAN, A.J.A.

WHERE HELD:

MELBOURNE

DATE OF HEARING:

23-24 August 2001

DATE OF JUDGMENT:

26 September 2001

MEDIUM NEUTRAL CITATION:

[2001] VSCA 144

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Criminal law – Sentencing – Reckless culpable driving and other driving charges – Plea of guilty – Youthful offender with substantial criminal record – Cumulation – Sentences not manifestly excessive.
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APPEARANCES: Counsel Solicitors

For the Crown Ms R. Carlin
K. Robertson, Solicitor for Public Prosecutions

For the Appellant Mr R.J. Bourke Clarebrough Pica
ORMISTON, J.A.:
1 In this matter I have had the benefit of reading the judgment of O’Bryan, A.J.A. in draft form and, for the reasons he has stated, I consider that the appeal should be allowed to the limited extent stated in those reasons.

CALLAWAY, J.A.:
2 I also agree with O’Bryan, A.J.A. It is not to be thought that a sentence of seven years' imprisonment, every day of which may have to be served, would be imposed on a 17 year-old other than in the most exceptional circumstances, but the circumstances here are of that character and the relevant form of culpability[1] is recklessness, not negligence. The judge below sentenced the appellant as for involuntary manslaughter. Mr Bourke properly conceded that the form of culpability in s.318(2)(a) is markedly more serious than that in s.318(2)(b). In those circumstances I agree with O’Bryan, A.J.A. that no occasion arises to give further consideration to the relevant passage in R. v. McGrath[2]. I simply record, without taking the matter further, that the opinion there expressed was based on a number of considerations, including but not limited to the words “substantial risk” in s.318(2)(a) and the explanation of reckless murder at common law in Boughey v. R.[3].
[1]Crimes Act 1958, s.318(2) and (3).
[2][1999] VSCA 197 at [15]; see also [16], [24] and [26].
[3](1986) 161 C.L.R. 10.

O’BRYAN, A.J.A.:
3 The appellant pleaded guilty in the County Court on 14 November 2000 to five counts in a presentment. Count 1 was theft of a motor vehicle at Rosanna on 18 July 2000. Counts 2, 3 and 4 were recklessly engaging in conduct, namely the dangerous manner in which he drove a motor car which placed three named individuals in danger of serious injury. Two of those individuals were members of the Police Force performing their duty in a marked police car. The third individual

was a private citizen driving a private vehicle. Count 5 was reckless culpable driving at Rosanna causing the death of a female driver. Counts 2 to 5 were committed on 18 July 2000. Count 5 pleaded paras.(a) and (d) of s.318(2) of the Crimes Act 1958. Because part of the case for the appellant focused upon the significance of “recklessly” in paragraph (a) of s.318(2), I shall refer to the words of sub-s.(2).
"(2)A person drives a motor vehicle culpably if he…

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 Toombs

Details

AGLC: R v Toombs [2001] VSCA 144
Case: [2001] VSCA 144
Decision Date: 26 September 2001

CaseChat Overview and Summary

The case of R v Toombs involved the respondent, Toombs, who was convicted and pleaded guilty to multiple driving-related offences, including reckless culpable driving. The respondent's criminal history was extensive, consisting of previous convictions that included serious offences. The matter was heard in the Supreme Court of Victoria. The court was tasked with determining an appropriate sentence, considering the nature of the offences and the respondent's background.

The primary legal issues the court needed to address were the appropriate sentence for the respondent given the gravity of the offences, the need to consider the principle of cumulative sentencing, and the respondent's extensive criminal history. The court also had to weigh the principles of deterrence and rehabilitation against the severity of the sentence. The respondent's age and prior criminal record were critical factors in the sentencing process.

The court found that the cumulative nature of the respondent's offences warranted a severe sentence. However, it concluded that the sentences imposed were not manifestly excessive, given the respondent's extensive criminal history and the need for both punishment and rehabilitation. The court considered the respondent's age and the potential for rehabilitation, but ultimately decided that the sentences were proportionate to the severity of the offences. The court found that the sentences imposed did not exceed what was just and appropriate under the circumstances.

The court ordered that the sentences for the various offences be served cumulatively, reflecting the cumulative nature of the respondent's offending behaviour. The respondent was to serve a term of imprisonment for reckless culpable driving, with additional terms for the other driving-related offences, to be served concurrently as per the court's determination.

Orders