JUDGES:	WEINBERG and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 January 2018
DATE OF JUDGMENT:	8 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 55
JUDGMENT APPEALED FROM:	DPP v Stewart [2017] VCC 390 (Judge McInerney)

---

CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing serious injury, failure to stop after accident and two related summary offences – Total effective sentence of six years’ imprisonment with non-parole period of four years – Whether sentence manifestly excessive – Very serious examples of offending – Relevant criminal history – Relevance of time spent in residential rehabilitation facility while on bail prior to sentence – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R F Edney	Doogue + George
For the Crown	Mr B F Kissane QC	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA

COGHLAN JA:

Overview

On 25 March 2016, the appellant, then aged 23, drove her motor car on to the incorrect side of the road and collided with a cyclist, Christian Ashby, thereby inflicting catastrophic injuries upon him. She was affected by ‘ice’ (methylamphetamine) at the time.

On 29 March 2017, the appellant pleaded guilty in the County Court to a charge of dangerous driving causing serious injury (Charge 1), failing to stop after an accident (Charge 2) and two related summary offences of driving whilst disqualified and using an unregistered motor vehicle (Charges 5 and 6). A plea hearing was conducted. On 3 April 2017, she was sentenced to be imprisoned for six years, with a non-parole period of four years, as follows:

Charge Offence Maximum Sentence Cumulation

1
Dangerous driving causing serious injury

[Crimes Act 1958 s 319(1A)]
5 years 3 years and 6 months 2 years

2
Fail to stop after accident

[Road Safety Act 1986 s 30(1)]
10 years 4 years Base

Related Summary Offences

5
Drive whilst disqualified

[Road Safety Act 1986 s 30(1)]
2 years or 240 penalty units 4 months Nil

6
Use unregistered motor vehicle

[Road Safety Act 1986 s 7(1)(a)]
25 penalty units $1000 fine N/A

Total Effective Sentence 6 years’ imprisonment

Non-Parole Period 4 years

Pre-Sentence detention 43 days

6AAA Statement 8 years’ imprisonment, non-parole period of 5 years and 4 months.

Other relevant orders
On Charge 1: Disqualified from obtaining any licence or permit for a period of 18 months from 3 April 2017.

On Charge 2: Disqualified from obtaining any licence or permit for a period of 8 years from 3 April 2017.

On 27 September 2017, Priest JA granted leave to appeal on the following ground:

The sentences imposed on the charges of dangerous driving causing serious injury and fail to stop after a motor vehicle accident, the order for cumulation, non‐parole period and total effective sentence:
(i) are manifestly excessive; and
(ii) outside the range of sentences reasonably open in the circumstances of the offence…

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 Stewart v The Queen

Details

AGLC: Stewart v The Queen [2018] VSCA 55
Case: [2018] VSCA 55
Decision Date: 8 March 2018

CaseChat Overview and Summary

The appellant, Stewart, appealed against his sentence in the Supreme Court of Victoria, following his conviction for dangerous driving causing serious injury, failing to stop after an accident, and two related summary offences. The Crown sought a total effective sentence of six years’ imprisonment with a non-parole period of four years. The primary judge found the offending to be very serious, took into account the appellant’s criminal history, and considered the time the appellant spent in a residential rehabilitation facility while on bail. The appellant argued that the sentence was manifestly excessive.

The court examined whether the sentence was manifestly excessive by considering the seriousness of the offending, the appellant’s criminal history, and the time spent in the rehabilitation facility. The court noted that the offending involved a significant breach of community standards and resulted in serious injury to the victim. The appellant’s criminal history, which included previous convictions for driving offences, was also considered. The court held that the time spent in the rehabilitation facility should be disregarded when calculating the non-parole period, as it did not constitute time spent in custody. The court concluded that the sentence was not manifestly excessive and dismissed the appeal.

The court held that the sentence imposed was appropriate given the seriousness of the offending and the appellant’s criminal history. The court found that the total effective sentence of six years’ imprisonment with a non-parole period of four years was just and appropriate. The appeal was dismissed, and the original sentence was upheld. The court did not make any further orders.

Orders