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[2004] VSCA 132
Court of Appeal (Vic)
2004-08-05
WARREN, C.J., BATT and EAMES, JJ.A.
Original judgment source is linked above.
[1] [1998] VSCA 100; [1999] 1 V.R. 518 at 531. Legislation substantially embodying the President's formulation as a form of negligent culpable driving has been introduced into the Parliament but not yet passed: Crimes (Dangerous Driving) Bill 2004.
[2] [2003] VSCA 55 at the end of para.[24].
[3] Compare Sentencing Act 1991, s.6(b) and (c).
[4] [1998] 2 V.R. 79 at 80-81. It was also submitted that the affidavit contained non-expert opinion evidence, presumably as to the child's not coping and becoming unsettled. The better view, however, I consider, is that the deponent was stating facts compendiously.
[5] [2002] VSCA 118; (2002) 134 A.Crim.R. 451 at 452, para.[2].
[6] [1998] 2 V.R. 385 at 388-389.
[8] Though even that may be insufficient: R. v. Holland, where grandparents were available.
[9] (1995) 79 A.Crim.R. 199 at 208-209.
[11] Although counsel for the respondent stated that he did not accept that the sentencing judge was referring to Scott he accepted that there was no Court of Appeal decision containing a passage similar to his Honour's proposition other than Scott. That case had been cited to his Honour and none of the other cases cited to him appears to contain any similar statement. I am satisfied that the sentencing judge was basing himself on Scott.
[13] [1999] VSCA 55 at para.[19].
[14] Crimes Act, s.568(4).
[15] The interviewing police member himself drew the distinction and it accords with common experience.
[16] The sentencing judge spoke only of actual knowledge ("appreciated by you at the time") when stating how the Crown case was put and proceeded to sentence on that basis. As Mr. Kennan pointed out, that did not accord with the prosecutor's opening, though no ground of appeal raises the point. In so far as his Honour found actual knowledge, he must have done so on the basis of the appellant's answers in interview. Since that depends only on assessing and interpreting the printed word, there is no inhibition on this Court from making a different finding.
R
Satalich [2004] VSCA 132
CRIMINAL LAW - Sentencing - Culpable driving - By negligence - Negligently causing serious injury - Sleep deprivation - Driver fell asleep - Erroneous view of R. v. Scott [2003] VSCA 55 - Re-sentenced to total effective sentence of 4 years with non-parole period of one year and 10 months.