CRIMINAL LAW — Appeal — Recklessly causing serious injury, reckless conduct endangering serious injury and failing to render assistance after a motor vehicle accident — Spectator seriously injured and others endangered at illegal ‘skid’ meet — Sentence of two years and five months’ imprisonment, with a non-parole period of one year and four months — Whether sentencing judge failed to give sufficient utilitarian value to guilty plea during COVID-19 pandemic — Whether judge failed to take into account forfeiture of appellant’s vehicle — Whether sentence manifestly excessive — Appeal dismissed.
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APPEARANCES:
Counsel
Solicitors
For the Appellant:
Ms M O’Brien
Armstrong Legal
For the Respondent:
Ms K Judd, QC, DPP, with Mr E S Dober
Ms A Hogan, Solicitor for Public Prosecutions
PRIEST JA KAYE JA T FORREST JA:
Introduction
Pursuant to a grant of leave on the papers,[1] the appellant, Tyler Worboyes, now aged 27 years,[2] appeals against a total effective sentence of two years and five months’ imprisonment, with a non-parole period of one year and four months, imposed upon him by a judge of the County Court on 24 July 2020, following his pleas of guilty to: recklessly causing serious injury;[3] reckless conduct endangering serious injury;[4] and failing to render assistance after a motor vehicle accident.[5]
[1]Worboyes v The Queen (Unreported, Court of Appeal, Priest JA, 19 March 2021).
[2]His date of birth is recorded 28 March 1994.
[3]Crimes Act 1958, s 17. The maximum penalty is 15 years’ imprisonment.
[4]Crimes Act 1958, s 23. The maximum penalty is five years’ imprisonment.
[5]Road Safety Act 1986, ss 61(1) and (3). The maximum penalty is 10 years’ imprisonment.
The appellant was granted leave to appeal on four grounds, which are (as renumbered):[6]
1. The learned sentencing judge erred in failing to take into account the impact of the forfeiture of the [appellant’s] vehicle, and in doing so failed to apply and consider the relevant principles of proportionality and totality.
2. The learned sentencing judge erred in failing to give meaningful attribution to the benefit of a plea of guilty during the COVID-19 pandemic.
3. The learned sentencing judge erred in failing to properly apply the principle of parsimony, in that his Honour did not consider whether a term of imprisonment in combination with a community correction order was a sentencing option.
4. The total effective sentence, individual sentences, orders for cumulation and non-parole period fixed are manifestly excessive.
[6]Leave to appeal was refused on what was then the first ground, formulated as follows:
1. The sentencing discretion miscarried as a consequence of the applicant’s representation failing to call evidence in relation to…
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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Details
AGLC
Worboyes v The Queen [2021] VSCA 169
Case
[2021] VSCA 169
Decision Date
CaseChat Overview and Summary
Worboyes was convicted for recklessly causing serious injury, reckless conduct endangering serious injury, and failing to render assistance following a motor vehicle accident. The incident occurred during an illegal ‘skid’ meet where a spectator was seriously injured and others were endangered. The appellant was sentenced to two years and five months’ imprisonment, with a non-parole period of one year and four months. The appeal focused on whether the sentencing judge did not sufficiently consider the value of the appellant's guilty plea during the COVID-19 pandemic, failed to account for the forfeiture of his vehicle, and whether the sentence was manifestly excessive.
The legal issues before the court were whether the sentencing judge failed to appropriately value the appellant's guilty plea, did not take into account the forfeiture of his vehicle, and if the sentence was manifestly excessive. The court examined the judge's assessment of the appellant's culpability, the nature and circumstances of the offending, and the principles of sentencing. The court was required to determine if the sentence was within the range of appropriate penalties for the crimes committed.
The court found that the sentencing judge had adequately considered the appellant's guilty plea and the forfeiture of his vehicle. The court emphasised the gravity of the appellant’s actions, including the serious injuries caused and the danger posed to others. The judge balanced the appellant's culpability with the benefits of a guilty plea and the forfeiture of his vehicle. The court concluded that the sentence was not manifestly excessive, taking into account the principles of deterrence, denunciation, and rehabilitation. The appeal was dismissed, and the original sentence was upheld.
The final orders of the court were to dismiss the appeal and affirm the original sentence imposed by the lower court. The appellant was to serve two years and five months’ imprisonment, with a non-parole period of one year and four months.