Rowe v the Queen - [2013] VSCA 140

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0256

MATTHEW ROWE
	v
THE QUEEN

---

JUDGES	BUCHANAN, NEAVE and OSBORN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	21 May 2013
DATE OF JUDGMENT	12 June 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 140
JUDGMENT APPEALED FROM	Unreported, County Court of Victoria at Bendigo, Judge Pilgrim, Date of Sentence 19 October 2012

---

CRIMINAL LAW — Sentencing — Dangerous driving causing death — Appeal against sentence of 3 years and 6 months’ imprisonment with a non-parole period of 2 years — Licence cancelled and disqualified from obtaining licence for two years — Passenger killed — Lower end of the range of criminality — Driving a roadworthy vehicle — Not affected by alcohol or drugs — Trial judge impermissibly influenced by the sentence imposed in another case — Trial judge erred by reasoning from the sentencing range supplied by the Crown in another case – Disagreement in expert evidence about the speed at which the car was travelling — Appeal allowed — Sentence decreased to 2 years and 6 months with a non-parole period of 20 months — R v McCraw [2012] VCC 1621.

---

Appearances:	Counsel	Solicitors
For the Appellant	Mr P J Smallwood	Victoria Legal Aid (Bendigo)
For the Respondent	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Neave JA.

NEAVE JA:

This is an appeal against sentence by Mr Matthew Rowe, (‘Rowe’) who was found not guilty by a County Court jury of culpable driving, but guilty on the alternative verdict of dangerous driving causing death, following a ten day trial.[1] On 19 October 2012, a County Court judge sentenced Mr Rowe to 3 years and 6 months’ imprisonment with a non-parole period of 2 years. His Honour also ordered that Mr Rowe’s driver’s licence be cancelled and disqualified him from obtaining such a licence for two years from 19 October 2012.[2]
[1]DPP (Vic) v Rowe [2012] VCC 1675 (‘Reasons’). Leave to appeal was granted in Rowe v The Queen (Supreme Court of Victoria, Court of Appeal, Priest JA, 11 April 2013) (‘Rowe v The Queen’).
[2]Reasons, [44].

Circumstances of the offending and the offender.

On 4 July 2009, the appellant and the deceased, Mr Heath Tootell, were at a barbeque at a house in the Swan Hill area. At approximately 8:20 pm, the appellant and Mr Tootell got into the appellant’s utility and drove to help a friend, Mr Joel Alexander, who could not find the house where the barbecue was being held.

The appellant drove down the driveway onto Monash Drive, a bitumen road with gravel shoulders. After driving only 900 metres the vehicle began to slip sideways. It is not entirely clear why this occurred. The yawing may have commenced when the vehicle became unsettled as the result of driving over a bump, and the appellant attempted to correct the steering.[3] As Mr Rowe lost control of the vehicle, it slid on to…

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 Rowe v the Queen

Details

AGLC: Rowe v The Queen [2013] VSCA 140
Case: [2013] VSCA 140
Decision Date: 12 June 2013

CaseChat Overview and Summary

In the case of Rowe v the Queen, the appellant appealed against his sentence for dangerous driving causing death. The matter was heard in the Court of Appeal of the Supreme Court of Victoria. The appellant was involved in a car accident that resulted in the death of a passenger. The trial judge imposed a sentence of 3 years and 6 months’ imprisonment with a non-parole period of 2 years. The appellant’s licence was cancelled and he was disqualified from obtaining a licence for two years.

The legal issues that arose for determination were whether the trial judge was influenced by an impermissible factor, whether the trial judge erred by using the sentencing range provided by the Crown in another case, and whether the trial judge erred in considering the expert evidence about the speed of the car. The appellant submitted that the trial judge was influenced by the sentence imposed in another case and that the trial judge erred by using the sentencing range provided by the Crown. The appellant also argued that the trial judge erred in considering the expert evidence about the speed of the car.

The Court of Appeal found that the trial judge was influenced by an impermissible factor and that the trial judge erred by using the sentencing range provided by the Crown. The Court of Appeal also found that the trial judge erred in considering the expert evidence about the speed of the car. The Court of Appeal held that the sentence imposed by the trial judge was manifestly inadequate. The Court of Appeal reduced the sentence to 2 years and 6 months with a non-parole period of 20 months. The Court of Appeal allowed the appeal and substituted the sentence of the trial judge.

The Court of Appeal ordered that the appellant be re-sentenced to 2 years and 6 months with a non-parole period of 20 months. The Court of Appeal also ordered that the appellant’s licence be cancelled and that he be disqualified from obtaining a licence for two years.

Orders