The Court of Appeal (Justice Whelan and Justice McLeish) today dismissed an appeal against sentence by the applicant, Bradley Nicholson. The applicant pleaded guilty to one charge of dangerous driving causing death and two charges of dangerous driving causing serious injury. He was sentenced to 3 years and 9 months’ in prison with a non-parole period of 1 year and 9 months. The charges related to a 2015 motor vehicle accident. The applicant had a blood alcohol concentration of 0.108 and took a curve too fast with five passengers in the car. The consequences were devastating. One young person was killed. Two suffered very serious injuries.

The applicant contended that the sentencing judge failed to account for the effect of the applicant’s intellectual disability on his moral culpability. He sought to rely on new expert evidence. The Court found that the evidence available at sentencing had not allowed the judge to find that the way the applicant drove, or his decision to drive after drinking, were affected by his disability, and the new expert evidence took the matter no further. The Court also found that the judge had taken the applicant’s disability into account in considering the applicant’s failure to heed a warning not to drive or to ensure his passengers wore seatbelts. The applicant also sought to rely on fresh evidence to show that his sentence had become excessive, by reference to the effect of his disability on his imprisonment and the effect of prison on his mental health. The Court found that the judge had significantly moderated the applicant’s sentence by reference to his disability, and that the fresh evidence did not go beyond a working out of matters already fully taken into account at sentencing.

The Court held that the sentencing judge had given proper account to the applicant’s disability, good character and excellent rehabilitation prospects. No lesser sentence could be imposed given the catastrophic consequences of his actions and the need to ensure that the applicant’s sentence served as a warning to other drivers.

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NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

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Author
Supreme Court of Victoria
Publisher
Supreme Court of Victoria
Date of Publication

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