Tang v The Queen - [2013] VSCA 31

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0281

SHARON TANG
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	HARPER and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 February 2013
DATE OF JUDGMENT:	19 February 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 31
JUDGMENT APPEALED FROM:	DPP v Tang (Unreported, County Court of Victoria, Judge Mullaly, 7 November 2012)

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CRIMINAL LAW – Application for leave to appeal against sentence – Dangerous driving causing serious injury and failing to stop after an accident – Sentenced to 2 years’ imprisonment, 14 months suspended for 2 years – Whether sentencing judge erred in stating that offence of failing to stop generally warrants imprisonment – Whether an immediate custodial sentence was manifestly inappropriate – R v Mohamed [2209] VSCA 158, Wassef v The Queen [2011] VSCA 30 and R v Miller [2012] VSCA 265 discussed – Application for leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr L C Carter	Slater & Gordon
For the Respondent	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

HARPER JA:

At 6.40am on Thursday 22 March 2012 Bree Edwards was on her way to work. She had stopped at the lights at the median strip pedestrian crossing halfway across Canterbury Road, Heathmont, a short distance east of the Bedford Road intersection. Immediately ahead of her was a second set of pedestrian lights, governing the eastbound carriageway. When these changed to allow her to continue her journey across the road, traffic in two of the lanes of that carriageway came to a halt as the lights facing that traffic turned red. Ms Edwards did as she was entitled to do. She stepped into the eastbound portion of Canterbury Road. She also stepped into tragedy. The applicant, Sharon Tang, a driver in the third lane, was travelling at a minimum of 49 kilometres per hour when she failed to obey the red light. The consequences for Ms Edwards were catastrophic. The impact caused her to be thrown into the air, and resulted in very significant, indeed life threatening and life changing, injuries. But, although the windscreen of the applicant’s vehicle was damaged, and although a cyclist ahead of her signalled for her to pull over, the applicant did not stop.

The sentencing judge accepted that neither high speed nor drugs or alcohol were factors; the applicant’s failure to stop at the red light was due to inadvertence. His Honour also accepted that, given the applicant’s ‘underlying good character’, the only plausible explanation for her not stopping immediately after the collision was that she ‘in essence, … panicked.’ However, the applicant’s subsequent conduct did not reflect well on her. After she drove off, she did stop to make two telephone calls: one was to her boss to say she would be late because she was experiencing car problems, while the other was an attempt to get through to her insurance company. She then proceeded to work, where her colleagues noticed she looked stressed,…

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 Tang v The Queen

Details

AGLC: Tang v The Queen [2013] VSCA 31
Case: [2013] VSCA 31
Decision Date: 19 February 2013

CaseChat Overview and Summary

The applicant, Tang, applied for leave to appeal against his sentence following his conviction for dangerous driving causing serious injury and for failing to stop after an accident. Tang's application was heard in the Victorian Court of Appeal. The case presented a challenge to the appropriateness of the sentence imposed by the trial judge, focusing on whether the judge had erred in his assessment of the appropriate punishment for the offence of failing to stop after an accident.

The key legal issues in this appeal centred on whether the sentencing judge had erred in his approach to sentencing by stating that the offence of failing to stop after an accident generally warrants imprisonment. Tang argued that the trial judge's comment implied a mandatory custodial sentence for this offence, which was not supported by the authorities. Additionally, Tang contended that an immediate custodial sentence was manifestly inappropriate given his personal circumstances and the mitigating factors present in the case. The court considered relevant case law, including R v Mohamed, Wassef v The Queen, and R v Miller, to determine whether the trial judge's approach was consistent with established legal principles.

The Court of Appeal found that the trial judge did not err in his approach to sentencing. The court held that the statement made by the trial judge did not imply a mandatory custodial sentence for the offence of failing to stop after an accident. Rather, the court found that the sentencing judge had properly considered all relevant factors, including Tang's personal circumstances and mitigating factors, before imposing the sentence. The court concluded that the sentence imposed was not manifestly inappropriate and that the trial judge's approach was consistent with the principles set out in the relevant authorities. Accordingly, the application for leave to appeal was dismissed.

Orders