Scammell v The Queen - [2015] VSCA 206

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0076

DAVID ANDREW SCAMMELL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 June 2015
DATE OF JUDGMENT:	6 August 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 206
JUDGMENT APPEALED FROM:	DPP v Scammell (Unreported, County Court of Victoria, Judge Montgomery, 3 December 2014)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Appeal – Negligently causing serious injury – Collision at controlled intersection – No element of speed, alcohol or drugs – Youthful offender – No prior criminal history – Excellent prospects of rehabilitation – Sentence of 27 months' detention in youth justice centre – Whether sentence manifestly excessive – Sentence manifestly excessive in all the circumstances – Application for leave to appeal granted – Appeal allowed – Re-sentenced to 18 months' detention in youth justice centre.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J E McLoughlin	Victoria Legal Aid
For the Respondent	Mr B F Kissane QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA
BEACH JA:

Introduction

On 1 December 2014, the applicant pleaded guilty in the County Court to one charge of negligently causing serious injury. Following a plea hearing conducted on 1 and 2 December, the applicant was sentenced on 3 December 2014 as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Causing serious injury negligently [Crimes Act 1958 s 24] 10 years’ imprisonment [Crimes Act1958 s 24] 27 month Youth Justice Centre Order N/A

Total Effective Sentence: 27 month Youth Justice Centre Order

Pre-sentence Detention Declared: Nil

6AAA Statement: 4 years’ imprisonment with a non-parole period of 2 years

Other orders:

Licence cancelled and disqualified for 3 years

Forensic sample order

The applicant initially sought leave to appeal against the sentence imposed upon him on the following grounds:

1.The sentence was manifestly excessive in that a sentence involving confinement was not required to achieve the proper purposes of sentencing given:
(a) the circumstances of the offending;
(b)the applicant’s youth, previous good character and excellent prospects of rehabilitation; and
(c)the substantial risk that detention would be harmful to the applicant.

2.The learned sentencing judge erred in failing to take into account as a mitigating factor the evidence that the applicant was suffering from Major Depression.

During the hearing of the application the applicant sought leave to amend his notice of appeal to add a further ground to the following effect:

The learned sentencing judge erred in reasoning that a community correction order was not an available sentencing option because this was not a case in which a suspended sentence could have been imposed in the past, thus failing to recognise the necessity to re-examine past approaches to sentencing in the light of the availability of community correction orders.

Circumstances of the offending

On 29 October 2013 at around 9:30pm the applicant was travelling west on the Princes Highway towards the intersection of that highway and the…

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 Scammell v The Queen

Details

AGLC: Scammell v The Queen [2015] VSCA 206
Case: [2015] VSCA 206
Decision Date: 6 August 2015

CaseChat Overview and Summary

The case of Scammell v The Queen involved a young offender who was convicted of negligently causing serious injury through a collision at a controlled intersection. The offender had no prior criminal history and had no element of speed, alcohol, or drugs contributing to the incident. The offender was sentenced to 27 months' detention in a youth justice centre. The offender applied for leave to appeal against the sentence, arguing that it was manifestly excessive. The appeal was allowed and the offender was re-sentenced to 18 months' detention in a youth justice centre. The legal issues before the court were whether the original sentence was manifestly excessive and, if so, what the appropriate sentence should be.

The court considered the circumstances of the offence, the offender's age, lack of prior criminal history, and prospects of rehabilitation. The court noted that the offender had shown remorse and had taken steps to address the underlying issues that led to the offence. The court held that the original sentence was manifestly excessive in all the circumstances, given the offender's age, lack of prior criminal history, and prospects of rehabilitation. The court also noted that the sentence should be proportionate to the offence and should take into account the offender's age and prospects of rehabilitation.

The application for leave to appeal was granted, and the appeal was allowed. The offender was re-sentenced to 18 months' detention in a youth justice centre. The court held that the new sentence was appropriate, given the circumstances of the offence and the offender's prospects of rehabilitation. The court emphasised the importance of proportionality in sentencing, particularly in cases involving young offenders with no prior criminal history. The court also noted the importance of taking into account the offender's prospects of rehabilitation when determining an appropriate sentence.

In conclusion, the court held that the original sentence was manifestly excessive and that the offender was entitled to a new sentence. The court emphasised the importance of proportionality in sentencing and the need to take into account the offender's age, lack of prior criminal history, and prospects of rehabilitation. The offender was re-sentenced to 18 months' detention in a youth justice centre, which the court considered to be an appropriate sentence in the circumstances. The offender's application for leave to appeal was granted, and the appeal was allowed.

Orders