DPP v Stephens (Unreported, County Court of Victoria, Judge Maidment, 30 October 2015)
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CRIMINAL LAW – Sentence – Dangerous driving causing death – Four wheel all terrain buggy – Lack of protection of passengers – Whether appellant’s moral culpability was ‘very high’ – Moral culpability and dangerousness assessed by reference to all of the conduct and circumstances of specific case and offender – R v Whyte (2002) 55 NSWLR 252, R v Jurisic (1998) 45 NSWLR 209, discussed – Knowledge of risk by driver – Warning as to safety ignored – Exceeding passenger limit – Driving in a deliberately dangerous manner – No error in judge’s finding that moral culpability was very high – Sentence of 3 years and 3 months for dangerous driving causing death, 1 year and 6 months for reckless conduct endangering life, with total effective sentence of 3 years and 9 months – Assertion that Community Correction Order was correct disposition rejected – Appeal dismissed.
CRIMINAL LAW – Current sentencing practice – Dangerous driving causing death – Relationship with offence of negligently causing serious injury by driving – Harrison v The Queen [2015] VSCA 349, considered – Increase in maximum penalty from 5 years to 10 years – Failure by courts to give proper effect to increased maximum term as a ‘yard stick’ – Inappropriately narrow range of sentences imposed – Warning that sentencing practice should be uplifted for mid category seriousness of the offence – Poyner v The Queen (1986) 66 ALR 264; Ashdown v The Queen (2011) 37 VR 341, applied.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr D D Gurvich QC with Mr P J Smallwood
James Dowsley & Associates
For the Respondent
Ms F L Dalziel
Mr J Cain, Solicitor for Public Prosecutions
REDLICH JA SANTAMARIA JA BEACH JA:
Introduction
On 26 October 2015, the appellant pleaded guilty in the County Court to one charge of dangerous driving causing death (charge 1) and one charge of reckless conduct endangering life (charge 2). The maximum term of imprisonment for each of these charges is 10 years.
On 30 October 2015, the appellant was sentenced to a term of imprisonment of 3 years and 3 months in respect of charge 1 and 1 year and 6 months in respect of charge 2. The judge ordered that 6 months of the sentence on charge 2 be served cumulatively on the sentence imposed on charge 1, making a total effective sentence of 3 years and 9 months’ imprisonment. The judge fixed a minimum non-parole period of 2 years and 3 months.
On 4 March 2016, this Court gave the appellant leave to appeal against his sentence on the following…
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.
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Details
AGLC
Stephens v The Queen [2016] VSCA 121
Case
[2016] VSCA 121
Decision Date
CaseChat Overview and Summary
In the case of Stephens v The Queen, the appellant was convicted of dangerous driving causing death, and the case was brought before the court of appeal. The appellant had driven a four-wheel all terrain buggy in a deliberately dangerous manner, resulting in the death of a passenger who was not adequately protected. The legal issues for the court to decide included whether the appellant’s moral culpability was “very high”, and whether the sentence imposed was appropriate given the increased maximum penalty for the offence.
The court examined the appellant’s knowledge of the risk involved in his conduct, the fact that he had ignored safety warnings, and that he had exceeded the passenger limit. The court found that the judge had not erred in concluding that the appellant’s moral culpability was very high. The court also rejected the assertion that the Community Correction Order was the correct disposition, and dismissed the appeal. The court noted that the maximum penalty for the offence had been increased from 5 years to 10 years, and that the sentence imposed was at the lower end of the range. The court warned that sentencing practice should be uplifted for the mid category seriousness of the offence.
The court referenced several cases in reaching its decision, including R v Whyte, R v Jurisic, Harrison v The Queen, Poyner v The Queen, and Ashdown v The Queen. The court concluded that the sentence imposed was not manifestly inadequate, and that the appeal was dismissed. The court did not order any changes to the sentence, but highlighted the need for sentencing practice to reflect the increased maximum penalty for the offence.