DPP v Victorsen (Unreported, County Court of Victoria, Judge Chettle, 20 December 2018)
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CRIMINAL LAW — Appeal — Sentence — Culpable driving causing death and failing to render assistance after an accident — Very high speed and disobedience to red light — Two deaths — Youthful offender — Deprived background and cognitive difficulties — Total effective sentence 13 years’ imprisonment with eight years non-parole — Whether error in application of standard sentence — Whether sentence manifestly excessive — Whether principle of totality infringed — Leave to appeal refused.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Ms D McCann and Ms A Renieris
Victoria Legal Aid
For the Respondent
Mr J McWilliams
Ms A Hogan, Solicitor for Public Prosecutions
PRIEST JA:
Introduction
Eric Victorsen, the applicant, is now aged 21 years.[1] He was aged 19 when, on 21 April 2018, he drove a stolen motor vehicle into an intersection against a red light at breakneck speed, colliding with another vehicle and killing its entirely innocent occupants. After the collision he fled, leaving the passenger of the other vehicle, Matthew Goland, aged 38 years, dead; and the driver, Bita Toudeh Zaeim, aged 32, dying.
[1]His date of birth is 23 November 1998.
An indictment filed in the County Court charged the applicant with culpable driving causing death[2] (two charges – charges 1 and 2) and failure to render assistance after an accident[3] (charge 3). He pleaded guilty before a judge of that court on 6 December 2018; and, following a plea, on 20 December 2018 the judge sentenced him to nine years’ imprisonment on each charge of culpable driving, and to two years’ imprisonment on the third charge. Three years of the sentence on charge 2, and one year of the sentence on charge 3, were ordered to be served cumulatively with the sentence on the first charge. The total effective sentence was thus 13 years’ imprisonment, upon which the judge fixed a non-parole period of eight years.[4] The applicant was also disqualified from driving for 10 years.
[2]Crimes Act 1958, s 318(1). The maximum sentence is 20 years’ imprisonment, and the standard sentence is eight years’ imprisonment.
[3]Road Safety Act 1986, ss 61(1)(b) and (3). The maximum penalty is 10 years’ imprisonment.
[4]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the pleas of guilty, he would have imposed a sentence of 16 years’ imprisonment, with a non-parole period of 11 years.
The applicant sought leave to appeal against the sentence on three grounds as follows:
1. The sentencing judge misapplied the standard sentence provisions.
2. The individual sentences and orders for cumulation, total effective sentence and non-parole period are manifestly…
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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AGLC
Victorsen v The Queen [2020] VSCA 248
Case
[2020] VSCA 248
Decision Date
CaseChat Overview and Summary
The appellant, Victorsen, appealed against his sentence for culpable driving causing death and failing to render assistance after an accident. The case was heard in the High Court of Australia. The incident involved the appellant driving at very high speed, disobeying a red light, and causing the deaths of two individuals. The appellant, a young person from a deprived background with cognitive difficulties, was sentenced to a total effective term of 13 years’ imprisonment, with a non-parole period of eight years. The primary legal issues the court had to address were whether there was an error in the application of the standard sentence, whether the sentence was manifestly excessive, and whether the principle of totality was infringed.
The court examined the sentence imposed on the appellant and considered the principles of sentencing in Australia, particularly the objectives of punishment, deterrence, and rehabilitation. The court noted that the appellant had a deprived background and cognitive difficulties, which were factors that could be taken into account in the sentencing process. However, the court also highlighted the seriousness of the offences, including the high speed and disobedience of traffic signals, which contributed to the tragic outcome. The court held that the sentence imposed was not manifestly excessive and did not infringe the principle of totality. The court further found that there was no error in the application of the standard sentence, and the sentence reflected an appropriate balance between the need for punishment and the need to consider the appellant's personal circumstances.
The High Court concluded that the sentence imposed on the appellant was just and appropriate, taking into account the seriousness of the offences and the appellant's personal circumstances. The court found that there was no error in the application of the standard sentence, and the sentence did not infringe the principle of totality. The appeal was dismissed, and the sentence imposed by the lower court was upheld. The appellant's total effective sentence of 13 years’ imprisonment, with a non-parole period of eight years, remained in place.