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Shields v The Queen

Shields v The Queen

Case [2011] VSCA 386 25 November 2011

Appeal

Sentencing

Culpable Driving

Negligent Causing Serious Injury

Blood Alcohol Concentration

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0980

LUKE SHIELDS	Appellant
	v
THE QUEEN	Respondent

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JUDGES	BUCHANAN JA, WHELAN and ROBSON AJJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 September 2011
DATE OF JUDGMENT	25 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 386
JUDGMENT APPEALED FROM	The Queen v Shields (Unreported, County Court of Victoria, Judge Duckett, 14 December 2009)

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CRIMINAL LAW – Appeal against sentence – One count of culpable driving causing death, one count of negligently causing serious injury and one summary offence of having a blood alcohol concentration in excess of the prescribed limit – Guilty Plea – Crown concession of double punishment in relation to summary offence – Total effective sentence of 13 years’ imprisonment with non-parole period of 10 years manifestly excessive having regard to current sentencing practice – Appeal allowed – Re-sentenced to total effective sentence of 10 years’ imprisonment with non-parole period of 7 years.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr M J Croucher SC with Mr P Smallwood	Victoria Legal Aid
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Whelan AJA, for the reasons his Honour has stated, that the appeal should be allowed and the appellant re-sentenced as his Honour proposes.

WHELAN AJA:

The appellant pleaded guilty before a judge in the County Court to one count of culpable driving causing death, one count of negligently causing serious injury and one summary offence of having a blood alcohol concentration in excess of the prescribed limit. He was sentenced on 14 December 2009 to a total effective sentence of 13 years’ imprisonment with a non-parole period of 10 years.

On 20 August 2010 the appellant was granted leave to appeal that sentence pursuant to s 315 of the Criminal Procedure Act2009.

The grounds of appeal set out in the full statement of grounds are as follows:

Ground 1:
The learned judge erred in imposing sentence for the summary offence of exceeding the prescribed concentration of alcohol in circumstances where the behaviour giving rise to that offence was totally subsumed by the behaviour giving rise to Counts 1 and 2, thereby resulting in double punishment.
Ground 2:
The learned judge erred in his approach to the appellant’s pleas of guilty, in particular he erred:
(a)in reducing the weight to be accorded to the pleas of guilty on account of his view that ‘there appear[ed] to be little prospect of [the appellant’s] successfully defending [the] charges’;
(b)in allowing a manifestly inadequate discount on sentence on account of the pleas of guilty.
Ground 3:

The individual sentences, the extent of cumulation directed, the resulting total effective sentence and the non-parole period are manifestly excessive and in breach of totality.

The appellant was born on 30 May 1977 and was aged 31 years at the time of the commission of the offences.

The offences occurred at about 7.15 pm on 24 December 2008. 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 Shields v The Queen

Details

AGLC: Shields v The Queen [2011] VSCA 386
Case: [2011] VSCA 386
Decision Date: 25 November 2011

CaseChat Overview and Summary

The case of Shields v The Queen involved an appeal against the sentence imposed on the appellant for his involvement in a fatal car accident. The appellant had pleaded guilty to one count of culpable driving causing death, one count of negligently causing serious injury, and one summary offence of having a blood alcohol concentration in excess of the prescribed limit. The High Court of Australia was tasked with reviewing the sentence and determining whether it was manifestly excessive.

The central legal issue before the court was whether the total effective sentence of 13 years’ imprisonment, with a non-parole period of 10 years, was manifestly excessive considering the current sentencing practices. The Crown conceded that there was double punishment in relation to the summary offence. The court was required to weigh the severity of the appellant's actions against the need for the sentence to reflect the community's standards of justice and to achieve the aims of punishment, deterrence, and rehabilitation.

The High Court found that the total effective sentence was indeed manifestly excessive. The court noted that the Crown's concession regarding the double punishment for the summary offence reduced the effective sentence to 12 years. However, even without this concession, the court determined that the sentence was still manifestly excessive. The court took into account the principles of proportionality and the need for sentences to reflect current community standards. It was held that a total effective sentence of 10 years’ imprisonment, with a non-parole period of 7 years, was appropriate. The appeal was allowed, and the appellant was re-sentenced accordingly.

Orders