Rodi v The Queen

[2011] VSCA 48

SUPREME COURT OF VICTORIA
COURT OF APPEAL

No S APCR 2010 0150 

DAMIAN RODI
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and HARPER JJA and HARGRAVE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 February 2011
DATE OF JUDGMENT:	3 March 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 48
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Lewitan, 14 May 2010)

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CRIMINAL LAW – Conviction – Dangerous driving causing death and dangerous driving causing serious injury – Applicant’s vehicle not subject to collision – Whether verdict unsafe and unsatisfactory – Whether open to jury to conclude that applicant and driver of the other car drove in dangerous manner by racing at excessive speed – Whether open to jury to conclude that applicant’s driving was cause of collision and of resulting death and injuries – Whether open to jury to be satisfied beyond reasonable doubt of alternative case based on concert – Application for leave to appeal against conviction refused.

CRIMINAL LAW – Sentence – Whether total effective sentence of three years and three months imprisonment with non-parole period of 18 months manifestly excessive – Whether inadequate weight given to applicant’s youth (18 at time of offence and 21 at time of sentence) and delay, and excessive weight to general deterrence – In all the circumstances of the offence and the offender, sentence appropriate – Appeal allowed in respect of commencing date of licence cancellation and disqualification.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr L C Carter	Victoria Legal Aid
For the Crown	Mr D A Trapnell, SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

1. Damian Rodi was found guilty by a jury in the County Court on a count of dangerous driving causing death and three counts of dangerous driving causing serious injury.  On 2 March 2010 he was convicted and sentenced to two years and six months’ imprisonment on the first count, and to nine months’ imprisonment on each of the other counts.  With cumulation, the total effective sentence was three years and three months’ imprisonment.  The judge fixed a non-parole period of 18 months’ imprisonment.  She further cancelled the applicant’s driving licence, and disqualified him from obtaining a licence for a period of 18 months after his release from imprisonment.

1. The events giving rise to Rodi’s conviction took place on the evening of 10 February 2007.  In consequence of those events, Rodi, a man then aged 18, and a man named Jarrod Rooke were each presented on a count of culpable driving and on three counts of negligently causing serious injury.  Each of them was acquitted on those counts, but was convicted on the alternative counts to which I have just referred.

1. Now Rodi seeks leave to appeal against conviction and, if he fails to overturn his conviction, then against sentence.  In a separate proceeding, Rooke seeks leave to appeal against sentence. [1] 

   [1]Rooke was sentenced to three years’ imprisonment on count 1, and to 12 months’ imprisonment on each of counts 2–4.…