Russell v The Queen - [2021] VSCA 221

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0078

NATHAN RUSSELL	Appellant
v
THE QUEEN	Respondent

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JUDGE:	PRIEST and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 August 2021
DATE OF JUDGMENT:	12 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 221
JUDGMENT APPEALED FROM:	[2019] VCC 1909 (Judge McInerney)

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CRIMINAL LAW — Appeal — Sentence — Reckless conduct endangering life and associated offences — Horrendous driving to evade police — Extensive criminal history — Whether total effective sentence of 8 years and 9 months’ imprisonment with 7 years non-parole manifestly excessive — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant:	Mr H Rattray and Ms J McGarvie	Sarah Pratt and Associates
For the Respondent:	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

Introduction

On 1 November 2019, the appellant, now aged 36 years,[1] pleaded guilty in the County Court to reckless conduct endangering life[2] (three charges); attempted aggravated carjacking[3] (one charge); theft[4] (three charges); and possession of a drug of dependence[5] (one charge); and to related summary charges of driving whilst disqualified;[6] fraudulently displaying number plates;[7] failing to stop on police direction;[8] failing to stop vehicle after an accident;[9] driving under the influence of a drug;[10] and possession of a controlled weapon.[11]
[1]His date of birth is 24 May 1985.
[2]Crimes Act 1958, s 22. The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 79A and s 321P. The maximum penalty is 20 years’ imprisonment.
[4]Crimes Act 1958, s 74(1). The maximum penalty is 10 years’ imprisonment.
[5]Drugs Poisons and Controlled Substances Act 1981, s 73(1). The maximum penalty is 12 months’ imprisonment or 30 penalty units or both.
[6]Road Safety Act 1986, s 30(1). The maximum penalty is two years’ imprisonment or 240 penalty units.
[7]Road Safety Act 1986, s 72. The maximum penalty is two months’ imprisonment or 10 penalty units.
[8]Road Safety Act 1986, s 64A. The maximum penalty is six months’ imprisonment or 60 penalty units.
[9]Road Safety Act 1986, s 61. The maximum penalty is one month imprisonment or 10 penalty units.
[10]Road Safety Act 1986, s 49. The maximum penalty is 18 months’ imprisonment or 180 penalty units.
[11]Control of Weapons Act 1990, s 6(1). The maximum penalty is 12 months’ imprisonment or 120 penalty units.

Following a plea, on 20 November 2019 the judge sentenced the appellant to a total effective sentence of eight years and nine months’ imprisonment with a non-parole period of seven years, in accordance with the following table:

Charge Offence Sentence Cumulation

1 Theft (of Navara motor vehicle) 1 year 3 months

2 Theft (of fuel) 3 months —

3 Theft (of registration plates, bankcards) 3 months —

4 Reckless conduct endangering life 6 years Base

5 Reckless conduct endangering life 3 years 1 year

6 Reckless conduct endangering life 3 years 1 year

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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 Russell v The Queen

Details

AGLC: Russell v The Queen [2021] VSCA 221
Case: [2021] VSCA 221
Decision Date: 12 August 2021

CaseChat Overview and Summary

The appellant, Russell, appealed against his conviction and sentence imposed by the Supreme Court of Victoria. Russell was found guilty of multiple offences, including reckless conduct endangering life, dangerous driving, and failing to stop after an accident. The appeal was heard by the Court of Appeal in Victoria. The primary issue before the court was whether the sentence imposed was manifestly excessive given the totality of the circumstances, including the nature of the offences and Russell's extensive criminal history. The court also considered whether the sentence failed to achieve the purposes of sentencing, including denunciation, retribution, and deterrence.

The Court of Appeal carefully reviewed the nature and gravity of the offences committed by Russell. The court noted that Russell engaged in horrendous driving, deliberately evading police at high speeds, ultimately resulting in a serious accident. The court highlighted that Russell's actions demonstrated a profound disregard for the safety of others and the community. The court acknowledged Russell's extensive criminal history, which included numerous prior convictions for serious offences. Despite these considerations, the court found that the sentence imposed was not manifestly excessive. The court emphasised that the sentence, which included an 8-year and 9-month imprisonment term with a 7-year non-parole period, appropriately reflected the seriousness of the offences and adequately achieved the purposes of sentencing.

Given the totality of the circumstances, the Court of Appeal concluded that the sentence was neither manifestly excessive nor did it fail to achieve the purposes of sentencing. The appeal was dismissed, and the original sentence was upheld. The court underscored the importance of considering both the nature of the offences and the offender's criminal history in determining an appropriate sentence.

Orders