R v Withers - [2003] VSCA 176

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 244 of 2002

THE QUEEN
	v.
MATTHEW DOUGLAS WITHERS

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JUDGES:	WINNEKE, A.C.J., VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 October 2003
DATE OF JUDGMENT:	24 October 2003
MEDIUM NEUTRAL CITATION:	VSCA [2003] 176

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CATCHWORDS: Criminal Law - Sentence - Culpable driving causing death - Applicant intoxicated and had never held a driver's licence - Whether sentence of seven years and six months with a non-parole period of five years manifestly excessive - Whether sentencing judge failed to give sufficient weight to the applicant's plea of guilty and prospects of rehabilitation - Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Elston	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C.	Grubissa White

WINNEKE, A.C.J.:

I will invite Vincent, J.A. to give the first judgment in this appeal.

VINCENT, J.A.:

The applicant pleaded guilty in the County Court at Melbourne on 20 September 2002 to one count of culpable driving. After hearing a plea in mitigation of penalty, on 30 September the sentencing judge imposed a term of imprisonment of seven years and six months in respect of which he fixed a non-parole period of five years. He further made an order disqualifying the applicant from obtaining a driver's licence for six years effective from the date of sentence.

The applicant seeks leave to appeal against that sentence on two grounds.

"1. That it is manifestly excessive in all of the circumstances.
2.That the sentencing judge erred in failing to give any or any sufficient weight to:
(a) the applicant's plea of guilty; and
(b) the applicant's prospects of rehabilitation."

At about 6 a.m. on 1 September 2001, Verna Elizabeth Howe, a sprightly 81 year old woman in good health, rose early and, as was her custom, commenced to walk to a Shell Service Station situated on the corner of Broadway and Whitelaw Street, Reservoir, in order to purchase a newspaper. This involved crossing a two-lane street known as Broadway, separated by a grass median strip. She reached a position in Broadway opposite the service station and some metres west of Whitelaw Street where she stepped on to the road. At that point there were two lanes for traffic. She traversed one lane and the median strip and was about halfway across the second lane when she was struck and killed by a car being driven by the applicant. The force of impact was sufficient that she was decapitated. Her body was either thrown or carried completely across Whitelaw Street where it struck a pole and came to rest approximately 70 metres from where she was struck. Her head was located a little further on

The applicant's vehicle left a passenger side tyre skid mark approximately 109 metres in length. This mark commenced a short distance east of the point of impact and indicated that there had been no reduction of speed prior to impact. By reference to the skid mark…

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 Withers

Details

AGLC: R v Withers [2003] VSCA 176
Case: [2003] VSCA 176
Decision Date: 24 October 2003

CaseChat Overview and Summary

The applicant, Withers, was convicted of culpable driving causing death, having been intoxicated and unlicensed at the time of the offence. Withers applied to the court for an appeal against sentence, arguing that the sentence of seven years and six months imprisonment, with a non-parole period of five years, was manifestly excessive. Withers contended that the sentencing judge had failed to give sufficient weight to his guilty plea and prospects of rehabilitation. The court was required to determine whether the sentence was manifestly excessive and whether the sentencing judge had failed to adequately consider the applicant's plea and rehabilitation prospects.

The court examined the sentencing principles relevant to the case, emphasising the need for a sentence to reflect the seriousness of the offence, promote the rehabilitation of the offender, and provide deterrence. The court noted that culpable driving causing death was a serious offence, and the sentence imposed reflected the gravity of the crime. The court also considered the circumstances of the case, including the applicant's intoxication and lack of a driver's licence. The court found that the sentencing judge had given appropriate weight to the applicant's plea of guilty and prospects of rehabilitation, taking into account the seriousness of the offence and the need for deterrence.

Having considered the arguments presented by the applicant and the sentencing principles, the court found that the sentence imposed was not manifestly excessive. The court determined that the sentencing judge had appropriately balanced the various factors in reaching the sentence, including the applicant's plea of guilty and prospects of rehabilitation. The court dismissed the application for an appeal against sentence.

The court did not make any further orders in relation to the application.

Orders