SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0120
| ANTHONY JOHN WALSH | Appellant |
| v | |
| THE QUEEN | Respondent |
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| 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) |
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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.
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| 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…
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- AGLC
- Walsh v The Queen [2018] VSCA 334
- Case
- [2018] VSCA 334
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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