Scott v The Queen - [2013] VSCA 347

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0088

NATHAN AARON SCOTT
	Applicant
v
THE QUEEN
	Respondent

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JUDGES	WEINBERG, PRIEST and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 October 2013
DATE OF JUDGMENT	3 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 347
JUDGMENT APPEALED FROM	R v Scott [2012] VSC 514 (Beach J)

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CRIMINAL LAW – Appeal – Sentence – Manslaughter – Failing to stop after an accident – 9 years’ imprisonment – Non-parole period of 6 years fixed – Whether sentence manifestly excessive – Serious offending – All mitigating features taken into account – Sentence not outside the range – Leave to appeal refused – No point of principle.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr A Barrie	C Marshall & Associates
For the Respondent	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I agree, for the reasons given by Coghlan JA, that leave to appeal should be refused.

PRIEST JA:

I agree with Coghlan JA.

COGHLAN JA:

The applicant has elected to review a decision on the part of the Registrar to refuse an extension of time within which to make application for leave to appeal against sentence. The respondent does not oppose the extension of time.

Factual background

On 19 October 2012 the applicant pleaded guilty in the Supreme Court at Shepparton to the charges set out below. He was sentenced on 7 November 2012 as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Manslaughter [Common Law]
20 years’ imprisonment

[s. 5 of the Crimes Act 1958]

8 years

6 months

BASE

2 Failing to stop after an accident [s. 61(1)(a) of the Road Safety Act 1986]
10 years’ imprisonment
[s. 61(3) of the Road

Safety Act 1986]

12

months

6 months

Total Effective Sentence: 9 years’ imprisonment

Non-Parole Period 6 years’ imprisonment

Pre-sentence Detention: 258 days

6AAA Statement 11 years’ imprisonment with a non-parole period of 8 years.

Other relevant orders: Pursuant to s. 89 of the Sentencing Act 1991 and s. 61(6)(a) of the Road Safety Act 1986, the prisoner’s licence was cancelled and he was disqualified from obtaining a driver’s licence for a period of four years commencing 12 months before the expiration of the non-parole period.

Pursuant to s. 464ZFB(1) of the Crimes Act 1958 – Retention of a forensic sample.

It was not until 21 May 2013, more than six months after the applicant was sentenced, that he filed his application for an extension of time and his notice of appeal. The one and only proposed ground of appeal is as follows:

The sentence imposed by the learned sentencing judge is manifestly excessive in that he failed to take into account, or properly take into account :

(a) the youth of the applicant;

(b) the mental state of the applicant at the time of the offence;

(c) the deprived background of the applicant;

(d) the assault upon the applicant before the offence and the circumstances…

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 Scott v The Queen

Details

AGLC: Scott v The Queen [2013] VSCA 347
Case: [2013] VSCA 347
Decision Date: 3 December 2013

CaseChat Overview and Summary

Scott v The Queen involved the defendant, who was convicted of manslaughter and sentenced to nine years in prison for failing to stop after an accident. The case was appealed to the court, which considered whether the sentence was manifestly excessive. The defendant argued that the sentence was too harsh, considering the non-parole period of six years fixed. The appeal court examined the nature of the offence and whether the sentence appropriately reflected the seriousness of the crime, taking into account all mitigating features.

The legal issues before the court were whether the sentence imposed was manifestly excessive, and if not, whether the court had appropriately considered all mitigating factors. The appeal court was required to determine whether the sentence was within the appropriate range for the offence of manslaughter committed by failing to stop after an accident. The court needed to assess whether there was any error in the sentence that warranted intervention.

The court held that the sentence was not manifestly excessive and that all mitigating features had been taken into account. The seriousness of the offence was considered, along with the defendant's remorse and other relevant factors. The court found that the sentence was within the appropriate range for the offence. Consequently, the appeal was dismissed, and the original sentence was upheld. The court determined that there was no point of principle that warranted leave to appeal.

Orders