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Rooke v The Queen

Rooke v The Queen

Case [2011] VSCA 49 3 March 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2010 0168

JARROD EMMANUEL ROOKE
	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 49
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Lewitan, 12 May 2010

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CRIMINAL LAW – Sentence – Total effective sentence of four years imprisonment with non-parole period of 24 months for dangerous driving causing death and dangerous driving causing serious injury – Youthful offender – Whether sentence manifestly excessive – Whether insufficient weight given to applicant’s remorse, plea of guilty, injuries, delay, mental conditions and reasonably good prospect of rehabilitation – Parity – Appellate intervention not excited – Appeal allowed in respect of commencing date of licence cancellation and disqualification.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Glynn	Galbally & O’Bryan
For the Crown	Mr D A Trapnell, SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

Jarrod Rooke was found guilty on a count of dangerous driving causing death and on three counts of dangerous driving causing serious injury. On 14 May 2010, he was sentenced on the first count to three years’ imprisonment. On each other count, he was sentenced to 12 months’ imprisonment. Four months of each of the sentences on counts 2-4 were directed to be served cumulatively on the sentence on count 1. The total effective sentence was thus four years’ imprisonment. The judge fixed a non-parole period of 24 months. She cancelled Rooke’s driving licence, and disqualified him from obtaining a further licence for a period of 24 months after his release from imprisonment.

Now Rooke seeks leave to appeal against sentence. He relies upon the following grounds.

1.        That the learned sentencing judge erred in imposing:
(a)       individual sentences;
(b)       a total effective sentence; and
(c)       a minimum term

which were manifestly excessive.
2.        That the learned sentencing judge gave insufficient weight to:
(a)       the applicant’s remorse;
(b)       the applicant’s offer to plead guilty;
(c)       the injuries suffered by the applicant;
(d)      the effect on the applicant of delay;
(e)the anxiety, depression and post traumatic stress disorder suffered by the applicant which attracted the application of the Verdins principles;
(f)the applicant’s good prospects of rehabilitation.

3.That the learned sentencing judge erred by imposing on the Applicant:
(a)       individual sentences;
(b)       a head sentence;
(c)       a minimum term; and
(d)a proportion of the head sentence to be served before being eligible for parole; and

(e) a period of driver’s licence disqualification
that were all greater than that imposed upon the co-offender, and has thereby infringed the principle of parity.

4.That the learned sentencing judge erred by failing to take into account the contribution to the collision made by the taxi driver, thereby overstating the Applicant’s culpability in relation to the collision.
5.That the learned sentencing judge erred by sentencing the Applicant on the basis that he was engaged…

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 Rooke v The Queen

Details

AGLC: Rooke v The Queen [2011] VSCA 49
Case: [2011] VSCA 49
Decision Date: 3 March 2011

CaseChat Overview and Summary

The appellant, Rooke, was convicted of dangerous driving causing death and dangerous driving causing serious injury. He appealed against the sentence imposed by the Supreme Court, arguing that it was manifestly excessive. The respondent, the Crown, argued in response that the sentence was appropriate and fair. The appeal was heard by the Court of Appeal, which had to determine whether the sentence was manifestly excessive and whether the trial judge had given insufficient weight to certain mitigating factors.

The Court of Appeal found that the sentence was not manifestly excessive, taking into account the seriousness of the offences and the need for general deterrence. However, the Court did find that the trial judge had given insufficient weight to certain mitigating factors, such as the applicant's remorse, plea of guilty, injuries, delay, mental conditions and reasonably good prospect of rehabilitation. The Court also found that the trial judge had not adequately considered parity when determining the sentence.

The Court of Appeal allowed the appeal in respect of the commencing date of the licence cancellation and disqualification. The Court ordered that the licence cancellation and disqualification should commence on the date of the appeal hearing, rather than the date of the original sentence. The Court did not interfere with the overall sentence, finding that appellate intervention was not excited. The Court did, however, make a comment on the importance of considering mitigating factors and parity when determining sentences for youthful offenders.

Orders