CRIMINAL LAW – Theft – Culpable driving causing death – Application to add new ground of appeal – No exception taken at trial – Application refused – Sentence – Detention in youth training centre substituted for imprisonment – Pre-sentence report ordered by Court of Appeal – Recommendation to Youth Parole Board – Crimes Act1958, ss.318(2)(b), (3), 568(4)-(6) – Sentencing Act1991, ss.5(2AA)(a), 33(1), 35, 96.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr. G. Horgan
P.C. Wood, Solicitor for Public Prosecutions
For the Applicant
Mr. D.M. Salek
Tyler Tipping & Woods
PHILLIPS, C.J.: CHARLES, J.A.:
We agree with Callaway, J.A. that the application for leave to appeal against conviction should be dismissed, the application for leave to appeal against sentence allowed, and the applicant re-sentenced in the manner proposed by his Honour. We entirely agree with his Honour's reasons. We wish to add only the following brief comments.
This case emphasizes the importance of a failure to take exception at trial to a supposed error in the judge's charge. The new ground of appeal sought to be added by Mr. Salek raised a question in relation to the definition of gross negligence which could certainly not have been discarded as insignificant. The failure to take exception, however, quite apart from the force of the reasons given by Callaway, J.A. for rejecting counsel's proposed submissions, would almost necessarily be taken by a court of criminal appeal as an indicator that counsel present saw no injustice or error in what was done, as the cases cited by his Honour show. It is time to affirm with emphasis that it is the obligation of counsel at the trial (for the prosecution as well as the defence) to take objection to matters which are prejudicial to the fair trial of the accused and that the failure to take exception presents a serious obstacle to the raising of such matters on appeal. This case stands as a warning not only that defence counsel who fail to take appropriate exceptions are in breach of their obligations both to their clients and the court, but also that the failure to take exception may prevent the issue being raised on appeal. Prosecutors have, of course, a like obligation to the court since the Crown has no interest in securing a criminal conviction as such – the Crown's interest is rather in the attainment of justice for the whole community, a fundamental aspect of which is the fair trial of an accused in accordance with law.
The paragraph from the first pre-sentence report quoted by Callaway, J.A. demonstrates the necessity for a sentencing judge dealing with young first offenders to give particular weight to their potential rehabilitation. It is…
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.
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Details
AGLC
R v Wright [1999] VSCA 145
Case
[1999] VSCA 145
Decision Date
CaseChat Overview and Summary
The matter before the Court was an application by the appellant, Wright, for leave to add a new ground of appeal against his conviction and sentence for culpable driving causing death. Wright was convicted of driving a motor vehicle while under the influence of alcohol and drugs, resulting in the death of another road user. The appeal against the conviction and sentence was initially heard by the Court of Appeal, which reduced his sentence to detention in a youth training centre. The applicant sought to add a new ground of appeal regarding the sentencing process, specifically the preparation of a pre-sentence report and its consideration by the Youth Parole Board.
The legal issues before the Court were whether the applicant could add a new ground of appeal despite not objecting at the trial, and if the sentencing process was compliant with the statutory requirements. The Court considered whether the failure to object at trial to the preparation of the pre-sentence report and its consideration by the Youth Parole Board could be grounds for adding a new appeal, and whether there was any non-compliance with statutory provisions regarding sentencing.
The Court held that the applicant was not entitled to add a new ground of appeal as there was no exception taken at the trial regarding the preparation of the pre-sentence report and its consideration by the Youth Parole Board. The Court found that the sentencing process was compliant with the statutory requirements, and that the Youth Parole Board had considered the pre-sentence report in accordance with the law. The Court also noted that the applicant had not demonstrated any prejudice resulting from the preparation of the pre-sentence report or its consideration by the Youth Parole Board. The application to add a new ground of appeal was therefore refused.
The Court did not make any orders regarding the preparation of a pre-sentence report or its consideration by the Youth Parole Board, as it found that there was no non-compliance with the statutory provisions. The Court emphasised the importance of taking exceptions at trial where an issue may be raised on appeal, and that the failure to do so may result in the applicant being precluded from adding a new ground of appeal.