SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0256
| MATTHEW ROWE |
| v |
| THE QUEEN |
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| 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 |
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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.
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| 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…
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- AGLC
- Rowe v The Queen [2013] VSCA 140
- Case
- [2013] VSCA 140
- Decision Date
CaseChat Overview and Summary
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
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