Vernon Board v The Queen

Case [2013] VSCA 91


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0024

VERNON BOARD Applicant
v
THE QUEEN Respondent

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JUDGES WEINBERG JA
WHERE HELD MELBOURNE
DATE OF HEARING 19 April 2013
DATE OF JUDGMENT 19 April 2013
MEDIUM NEUTRAL CITATION [2013] VSCA 91
JUDGMENT APPEALED FROM DPP v Board (Unreported, County Court of Victoria, Judge Hampel, 20 December 2012

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
(DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE
CRIMINAL PROCEDURE ACT 2009)

CRIMINAL LAW — Application for leave to appeal against sentence — Plea of guilty to one count of dangerous driving causing death and three counts of dangerous driving causing serious injury — Applicant veered onto wrong side of road resulting in head on collision with vehicle travelling in opposite direction — Applicant aware that he was tired and observed to be driving erratically leading up to collision — 97 year old passenger in applicant’s vehicle died as a result of collision — Applicant’s wife as well as two occupants of other vehicle sustained serious injury — Total effective sentence of four years’ imprisonment with non-parole period of 18 months — Whether sentencing judge proceeded upon erroneous basis that applicant had fallen asleep at the wheel — Whether sentencing judge failed properly to assess relevance of age of deceased — Whether sentencing judge treated DPP v Janson (2011) 31 VR 222 as a quantitative precedent on sentence — Whether sentence manifestly excessive — No grounds reasonably arguable — Leave to appeal against sentence refused.

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APPEARANCES: Counsel Solicitors
For the Applicant Mr T Kassimatis Balmer & Associates
For the Crown Ms F Dalziel Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

  1. The applicant, Vernon Board, pleaded guilty in the County Court at Melbourne on 17 December 2012 to various driving offences arising from an incident that occurred on 23 October 2011.  He was sentenced for those offences on 20 December 2012.  He now seeks leave to appeal against sentence, and applies for bail pending any appeal.

  1. The individual sentences, and the offences for which they were imposed, were as follows:

·charge 1 (dangerous driving causing death): two years and six months’ imprisonment;

·charge 2 (dangerous driving causing serious injury): 18 months’ imprisonment;

·charge 3 (dangerous driving causing serious injury): 18 months’ imprisonment;

·charge 4 (dangerous driving causing serious injury): 18 months’ imprisonment.

  1. Six months each of the sentences imposed on charges 2-4 were ordered to be served cumulatively upon the sentence imposed on charge 1, resulting in a total effective sentence of four years’ imprisonment.  A non-parole period of 18 months was fixed.

Circumstances of the offending

  1. The circumstances of the offending were set out in the Crown’s ‘Summary of Prosecution Opening’, which was tendered on the plea. 

  1. In the afternoon of 23 October 2011, the applicant, then aged 71, was driving a 2006 silver Holden Commodore sedan northwards towards Mt Evelyn along Monbulk Road, Monbulk.  The vehicle was unroadworthy at the time owing to insufficient tread…

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AGLC
Board v The Queen [2013] VSCA 91
Case
[2013] VSCA 91
Decision Date

CaseChat Overview and Summary

Vernon Board applied for leave to appeal against a sentence imposed by the County Court of Victoria for dangerous driving causing death and serious injury. The applicant had pleaded guilty to four charges arising from a collision that resulted in the death of a passenger in his vehicle and serious injuries to his wife and two occupants of another vehicle. The collision occurred when the applicant veered onto the wrong side of the road, leading to a head-on collision. The applicant was observed to be driving erratically and was aware of his fatigue prior to the incident.

The primary legal issues before the court were whether the sentencing judge had proceeded on an erroneous basis, whether the sentencing judge had failed to properly assess the relevance of the age of the deceased, and whether the sentencing judge had treated a previous case as a quantitative precedent. Additionally, the court considered whether the sentence was manifestly excessive.

The court found that the sentencing judge had not proceeded on an erroneous basis by assuming the applicant had fallen asleep at the wheel. It was noted that the applicant had acknowledged being tired and observed to be driving erratically. The court also found that the sentencing judge had properly assessed the relevance of the age of the deceased, noting that the deceased was 97 years old, which was relevant but not determinative in the sentencing process. The court determined that the sentencing judge had not treated the previous case as a quantitative precedent but had considered it for its qualitative guidance. Finally, the court concluded that the sentence was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the offences committed.

Leave to appeal against the sentence was refused.

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