Legal Research
Cases
Walsh v The Queen

Walsh v The Queen

Case [2018] VSCA 334 7 December 2018

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0120

ANTHONY JOHN WALSH	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	PRIEST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 November 2018
DATE OF JUDGMENT:	7 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 334
JUDGMENT APPEALED FROM:	DPP v Walsh (Unreported, County Court of Victoria, Judge Gamble, 28 May 2018)

---

CRIMINAL LAW — Appeal — Sentence — Two charges of negligently causing serious injury by driving — Victims the appellant’s children — Negligent driving resulting from rebound fatigue through methylamphetamine use — Whether sentence inconsistent with comparable cases — Whether total effective sentence of 6 years’ imprisonment with non-parole period of 3 years and 9 months manifestly excessive — Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Nathwani	Eagle & Partners
For the Respondent	Ms K Judd QC DPP with Mr T Bourbon	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
WEINBERG JA:

Overview

In the early hours of 4 March 2017, a Toyota Hilux four wheel drive vehicle being driven by the appellant along the Western Freeway in Wendouree left the roadway and nose-dived into a rail cutting. Two of his children who were passengers — Madelynne, aged 9 years, and Matthew, aged 14 — were seriously injured.

Madelynne’s injuries were life threatening. They included:

· multiple system trauma;

· a fracture dislocation of the ‘C2’ dens with significant ligamentous injury at the crania cervical junction, and ‘T2’ signal changes suggesting oedema within the cervical cord;

· traumatic brain injury;

· the fracture of multiple ribs with flail chest;

· a bilateral pneumothorax;

· a ‘grade 1’ liver laceration;

· laceration of the spleen;

· small bowel perforation; and

· a ‘C2’ cervical fracture.

Madelynne had to undergo a number of procedures and surgeries. Post-operatively she was managed with total parenteral nutrition due to her small bowel injuries and feed intolerance, which was later changed to nasogastric intubation feeding. She also suffered ventilation-associated pneumonia. Madelynne has had to tolerate extensive rehabilitation, and continues to have issues with her health that affect her schooling and day to day life.

Matthew’s injuries included:

· multiple right kidney lacerations and kidney contusions with bleeding, with blood collection around the kidney and blood in the urine;

· bruising to both lungs, breathing problems and shallow breathing;

· bruising and abrasions over the chest;

· bruising to the upper and right lower quadrants on the abdomen;

· bruising over the right groin;

· left leg swelling;

· abrasion to left shinbone and calf;

· abrasion to the right lower shin;

· spinal bone fracture on torso level (possibly due to an unrelated pre-event medical condition); and

· the complication of infection with fever.

Matthew is likely to suffer from future complications as a result of the injuries to his kidneys and to have a reduced quality of life.

Plea, sentence and ground of appeal

On 1 May 2018, the appellant, now aged 40,[1] pleaded guilty before a…

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 Walsh v The Queen

Details

AGLC: Walsh v The Queen [2018] VSCA 334
Case: [2018] VSCA 334
Decision Date: 7 December 2018

CaseChat Overview and Summary

The appellant, Walsh, appealed against his sentence for two charges of negligently causing serious injury by driving, with the victims being his children. The case was heard in the High Court of Australia, which was asked to determine whether the sentence was inconsistent with comparable cases and whether the total effective sentence of 6 years’ imprisonment with a non-parole period of 3 years and 9 months was manifestly excessive.

The central legal issues were whether the sentence imposed was consistent with the principle of parity and whether it was manifestly excessive. The court examined whether the sentence was disproportionate in comparison to other cases involving similar offences and circumstances, particularly those where the offender caused harm to their children due to negligent driving linked to drug use.

The court found that while the sentence was severe, it was not inconsistent with comparable cases. The court considered the gravity of the offence, the appellant’s history of drug use, and the need for general deterrence. The sentence reflected the seriousness of the appellant’s actions and the harm caused to his children. Consequently, the appeal was dismissed, affirming the original sentence as appropriate and not manifestly excessive.

No additional orders were made by the court beyond dismissing the appeal.

Orders