Rawiri v The Queen - [2013] VSCA 130

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0181

ANDREI RAWIRI	Appellant
	V
THE QUEEN	Respondent

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JUDGES	REDLICH, WEINBERG AND COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	7 March 2013
DATE OF JUDGMENT	29 May 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 130
JUDGMENT APPEALED FROM	DPP v Rawiri (Unreported, County Court of Victoria, Judge Tinney, 27 July 2012

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CRIMINAL LAW — Appeal — Sentence — Dangerous driving causing injury — Total effective sentence of 3 Years 9 months’ imprisonment — Non-parole period of 22 months —Erroneously sentenced on basis that negligence was an element of the offence — Appeal allowed — Total effective sentence of 3 years — Non-parole period of 15 months fixed — King v The Queen (2012) 245 CLR 588 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

For the reasons given by Coghlan JA, the appellant was sentenced on an inappropriate basis and should be re-sentenced as his Honour proposes.

WEINBERG JA:

I agree with Coghlan JA.

COGHLAN JA:

On 26 April 2012, the appellant pleaded guilty to four charges of dangerous driving causing serious injury, and a single uplifted summary charge of dangerous driving. Following a plea, he was sentenced on 27 July 2012 as follows:

charge on indictment
offence maximum sentence cumulation

1 Dangerous driving causing serious injury [Crimes Act 1958 (Vic) s 319(1A)] 5 years [Crimes Act 1958 (Vic) s 319(1A)] 30 months Base

2 Dangerous driving causing serious injury [Crimes Act 1958 (Vic) s 319(1A)] 5 years [Crimes Act 1958 (Vic) s 319(1A)] 18 months 3 months

3 Dangerous driving causing serious injury [Crimes Act 1958 (Vic) s 319(1A)] 5 years [Crimes Act 1958 (Vic) s 319(1A)] 2 years 5 months

4 Dangerous driving causing serious injury [Crimes Act 1958 (Vic) s 319(1A)] 5 years [Crimes Act 1958 (Vic) s 319(1A)] 2 years 5 months

summary charge Dangerous driving [Road Safety Act 1986 (Vic) s 64(1)] 2 years [Road Safety Act 1986 (Vic) s 64(2)] 10 months 2 months

Total Effective Sentence: 3 years and 9 months’ imprisonment

Non-Parole Period: 22 months

Pre-sentence Detention Declared: 11 days

6AAA Statement: 6 years’ imprisonment with a non-parole period of 4 years

Other orders:

Charges 1, 2, 3 and 4 – Order that all Victorian licences and/or permits held by the offender be cancelled and that the offender be disqualified from obtaining any such licence or permit for a period of 18 months commencing from the date of first release, whether at the expiration of this sentence or upon release pursuant to an order from the parole board.

Summary Charge – With conviction order that all Victorian licences and/or permits held by the offender be cancelled and that the offender be disqualified from obtaining any such licence or permit for a period of 6 months from 27…

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 Rawiri v The Queen

Details

AGLC: Rawiri v The Queen [2013] VSCA 130
Case: [2013] VSCA 130
Decision Date: 29 May 2013

CaseChat Overview and Summary

Rawiri appealed against his conviction for dangerous driving causing injury, arguing the sentence was excessive and the court had erred in its application of the law. The appeal was heard by the High Court of Australia. The central legal issues were whether the sentencing court had erred in its assessment of the non-parole period and whether negligence was a necessary element of the dangerous driving offence.

The court found that the trial judge had misunderstood the elements of the dangerous driving offence, as negligence was not a required element. Given this error, the court reconsidered the appropriate sentence, taking into account the seriousness of the offence and the need for deterrence. The High Court held that while the offence was serious, the total effective sentence should be reduced, and a non-parole period of 15 months was appropriate. The appeal was allowed, and the original sentence was altered.

The final orders of the court were that the total effective sentence of 3 years 9 months’ imprisonment was reduced to 3 years, with a non-parole period of 15 months. This decision aligned with the principles established in King v The Queen, where the High Court outlined the appropriate approach to sentencing in cases involving dangerous driving causing injury.

Orders