Vernon Board v The Queen - [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:

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.

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.

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

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

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…

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 Vernon Board v The Queen

Details

AGLC: Board v The Queen [2013] VSCA 91
Case: [2013] VSCA 91
Decision Date: 19 April 2013

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.

Orders