Shane David Bausch v The Queen - [2019] VSCA 235

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0107

SHANE DAVID BAUSCH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 October 2019
DATE OF JUDGMENT:	22 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 235
JUDGMENT APPEALED FROM:	DPP v Bausch (Unreported, County Court of Victoria, Judge Wilmoth, 6 March 2019)

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CRIMINAL LAW – Appeal – Sentence – One charge of driving in a dangerous manner causing serious injury, one charge of driving with illicit drug present in blood, one charge of fail to appear on bail – Total effective sentence of 3 years’ imprisonment with non‑parole period of 2 years – Driving licences and permits cancelled – Disqualified from obtaining driving licence or permit for 5 years – Whether trial judge erred in concluding applicant knew of drugs in his body when offending occurred – Whether trial judge erred in relying on this conclusion as aggravating applicant’s moral culpability – Whether sentence manifestly excessive – No evidence of when or how some drugs ingested – No evidence of causal relationship between drugs and offending – Drugs could not be said to aggravate offending – Impact of acquired brain injury on offending – Impact of acquired brain injury on sentencing – General and specific deterrence – Real prospects of rehabilitation – Leave to appeal granted – Applicant resentenced to total effective sentence of 2 years and 1 month’s imprisonment with non‑parole period of 15 months – Applicant disqualified from driving motor vehicle on Victorian roads for 9 years – R v Bernath [1997] 1 VR 271; King v The Queen (2012) 245 CLR 588; DPP v Neethling (2009) 22 VR 466; Stephens v The Queen (2016) 50 VR 740; R v Verdins (2007) 16 VR 269.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Emma Turnbull Lawyers
For the Respondent	Mr P Bourke	Mr J Cain, Solicitor for Public Prosecutions

ASHLEY JA:
OSBORN JA:

On 18 February 2019 in the County Court at Geelong the applicant pleaded guilty to one charge of dangerous driving causing serious injury and one charge of driving with an illicit drug present in his blood. Subsequently he pleaded guilty to one charge of failing to appear on bail. On 6 March 2019 her Honour Judge Wilmoth sentenced the applicant[1] as follows:
[1]DPP v Bausch (Unreported, County Court of Victoria, Judge Wilmoth, 6 March 2019) (‘Reasons’).

Charge	Offence	Maximum Penalty	Sentence	Cumulation
Indictment No: G11007637.1
1	Dangerous driving causing serious injury	5 years	3 years	Base
Summary charges
1	Failing to answer bail	2 years	3 months
6	Failing a drug blood test	60 penalty units	$800 fine
Total Effective Sentence			3 years
Non-Parole Period Fixed			2 years
Pre-Sentence Detention			110 days
6AAA statement			4 years, with a non-parole period of 3 years
Other Orders			Licences cancelled, disqualified from driving for 5 years from 6 March 2019; forensic sample order

The applicant now seeks leave…

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 Shane David Bausch v The Queen

Details

AGLC: Shane David Bausch v The Queen [2019] VSCA 235
Case: [2019] VSCA 235
Decision Date: 22 October 2019

CaseChat Overview and Summary

In the matter of Shane David Bausch v The Queen, the respondent appealed against his sentence following a conviction for driving in a dangerous manner causing serious injury, driving with illicit drugs present in his blood, and failing to appear on bail. The case was heard by the Court of Appeal of the Supreme Court of Victoria. The primary legal issues before the court were whether the trial judge erred in concluding that the applicant was aware of the presence of drugs in his system at the time of the offences, and if this conclusion was correctly used to aggravate the applicant's moral culpability. Additionally, the court had to determine whether the sentence imposed was manifestly excessive.

The Court of Appeal held that there was no evidence to establish when or how the drugs were ingested, and no causal relationship between the drugs and the offending behaviour was proven. Consequently, the presence of drugs could not be considered as aggravating the seriousness of the offences. The court further noted that the applicant's acquired brain injury, which impacted his ability to make safe driving decisions, should have been taken into account. The court concluded that the trial judge had erred in relying on the presence of drugs to increase the applicant's moral culpability, and that the sentence was manifestly excessive. The Court of Appeal granted leave to appeal and resentenced the applicant to a total effective sentence of 2 years and 1 month’s imprisonment, with a non-parole period of 15 months. Additionally, the applicant was disqualified from driving on Victorian roads for 9 years.

In summary, the Court of Appeal found that the trial judge had erred in their assessment of the applicant's moral culpability and the excessiveness of the sentence. The court resentenced the applicant and imposed a new driving disqualification period.

Orders