Abbott v The Queen
[2021] VSCA 149
•4 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0049
| JOSHUA ABBOTT | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 May 2021 |
| DATE OF JUDGMENT: | 4 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 149 |
| JUDGMENT APPEALED FROM: | [2020] VCC 99 (Judge Dawes) |
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CRIMINAL LAW – Appeal – Sentence – One charge of negligently causing serious injury (5 years), one charge of failing to stop and render assistance (4 years) and one charge of driving whilst disqualified (12 months) – Total effective sentence of 7 years with non-parole period of 5 years – Whether individual sentences on negligently causing serious injury and failing to stop and render assistance, total effective sentence and non-parole period manifestly excessive – Resentenced to 2 years and 6 months’ imprisonment for failing to stop and render assistance with a total effective sentence of 6 years and a non-parole period of 4 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms G F Connelly with Mr W Blake | Kate Freshwater |
| For the Respondent | Mr C B Boyce QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA:
I agree with Niall JA and with the orders he proposes.
NIALL JA:
This appeal, brought by leave, concerns the question whether sentences imposed on the appellant, arising from a collision between his motorbike and a pedestrian which resulted in the latter suffering extremely serious injuries, are manifestly excessive.
On 3 February 2020, the appellant pleaded guilty in the County Court to one charge of negligently causing serious injury,[1] one charge of failing to stop and render assistance,[2] and a summary charge of driving whilst disqualified.[3]
[1]Crimes Act 1958 s 24.
[2]Road Safety Act 1986 s 61(3).
[3]Ibid s 30(1).
Following a plea, on 17 February 2020, the appellant was sentenced as follows:
Charge Offence Maximum Sentence Cumulation 1 Negligently causing serious injury 10 years 5 years Base 2 Failing to stop and render assistance 10 years 4 years 18 months Summary charge 5 Driving whilst disqualified 240 penalty units or 2 years 12 months 6 months Total effective sentence: 7 years’ imprisonment. Non-parole period: 5 years’ imprisonment. Pre-sentence detention: 321 days. Section 6AAA declaration: 8 years and 6 months’ imprisonment with a non-parole period of 5 years and 6 months. Other orders: All Victorian licences and/or permits cancelled and disqualified from obtaining any such licence or permit for 5 years (commencing 17 February 2020); forfeiture of property order.
The appellant applied for leave to appeal against the sentence imposed on the following grounds:
1. The sentence imposed on charge 2 is manifestly excessive in all the circumstances.
PARTICULARS:
(a) The offending was not aggravated by knowledge or uncertainty as to whether assistance would be provided to Mr Beech;
(b) The applicant’s decision to depart was made in circumstances where he himself had sustained an injury to his head;
(c) The evidence did not establish that the applicant was aware of the extent of the serious injury to the victim;
(d) The applicant did not have prior convictions for leaving the scene of a driving incident;
(e) It was necessary to avoid aggravating the sentence by reference to offences not on the indictment, such as attempting to pervert the course of justice or breach of s 61(4) of the Road Safety Act;
(f) Insufficient weight was accorded:
(i) current sentencing practices;
(ii)the applicant’s guilty plea at a reasonably early stage;
(iii)the applicant’s genuine remorse;
(iv)the applicant’s reasonable prospects of rehabilitation;
(v) youth;
(vi) the principle of totality.
2. The total effective sentence and non-parole period are manifestly excessive in all the circumstances.
In his amended written case the appellant also relies on ground 3, which contends that the sentence imposed on charge 1 is manifestly excessive.
On 31 July 2020, Priest JA granted that application.[4]
[4]Abbott v DPP (Unreported, Supreme Court of Victoria, Priest JA, 31 July 2020) (‘Leave Reasons’).
For the reasons that follow, I would uphold ground 1, set aside the sentence on charge 2 and resentence the appellant.
The offending
The following account of the offending is from the summary of prosecution opening and was extracted in the Leave Reasons:[5]
[5]Ibid [5].
At approximately 12:15 am on Sunday 10 March 2019, a collision occurred on a shared pedestrian and bicycle path that runs east-west from the intersection of McKenzie and Eyre Streets, Echuca.
The collision occurred when an unregistered dirt bike being ridden by [the appellant] collided with a pedestrian, Joel Beech, who was walking along the path.
After getting back to his feet, [the appellant] started the dirt bike and fled the scene in a westerly direction. He did not render any assistance to Joel Beech.
As a result of the collision, Joel Beech sustained life-threatening injuries and was flown to the Royal Melbourne Hospital for treatment. He continues to receive ongoing treatment and rehabilitation in relation to the injuries received in the collision.
Daniel Norris subsequently disposed of the dirt bike involved in the collision.
…
The Collision Scene
The shared footpath commenced from the west side of McKenzie Street, at the intersection of Eyre Street and ran in an east-west direction through to a footbridge that crossed the Campaspe River and intersected Campaspe Esplanade on the west side of the river. The footpath was bitumen in construction and was approximately 2.4 meters wide. It had a broken white line down the middle of the path that defined an east and westbound walking lane. There was loose gravel along both sides of the bitumen area of the footpath.
There was a single street light located at the intersection of McKenzie Street and Eyre Street, approximately 80 meters east of the collision scene. There was another street light located along the footpath, approximately 60 meters to the west of the collision scene. There were no other light sources in the immediate vicinity of the collision.
The Circumstances
At approximately 11:10pm on Saturday 9 March 2019, Joel Beech was scanned entering The American Hotel in Echuca. Investigators have been unable to obtain the CCTV from The American Hotel to confirm what time the victim left the establishment.
Investigators believe that at approximately 11:45 pm on Saturday 9 March 2019 Joel Beech left The American Hotel and commenced walking home.
It is estimated that Joel Beech walked for approximately 25 minutes prior to the collision along Eyre Street before continuing onto the shared footpath where the collision occurred. The collision location was approximately 5 minutes from the victim’s home address.
Shortly prior to the collision, [the appellant] is believed to have left an unknown address in Echuca and ridden west along Eyre Street and onto the shared footpath where he struck the victim as he was walking along the footpath. [The appellant] was riding a Honda CRF250 which he owned. The bike was not registered and did not have a light affixed to the front of it. This forms the basis of Charge 1 – Negligently causing serious injury.
The plea is put on the basis that the negligence includes the following combination of factors:
·The dirt bike was unregistered and did not have a light fitted to the front of it. Street lights were located 80m east and 60m west of the collision location, so the collision location was dark.
·Witnesses Campbell and Bowman heard the dirt bike in the lead-up to the collision and believed it was travelling very fast.
·The collision reconstructionist concluded that at the time of the collision, [the appellant] was travelling at a minimum of 41-50kph.
·[The appellant] was disqualified from driving.
Witnesses Declan Campbell and Zachary Bowman, who were walking along the footpath at the time of the collision, immediately came to the aid of both the victim and [the appellant]. Records indicate that Bowman first called 000 at 12:16 am. Both Campbell and Bowman stated that they believed the dirt bike was travelling very fast in the lead-up to the collision (from the sound it was making).
Campbell and Bowman assisted the victim as he lay on the path. After rolling the victim into the recover position, they assisted [the appellant] who was lying on the ground with one leg underneath the bike and the other leg on top of the bike.
Campbell and Bowman both described the motorbike as being a Honda, black in colour and having twin exhaust pipes. The rider was described by Campbell as wearing a red and white dirt bike helmet, dark coloured cargo pants and red riding boots.
Campbell and Bowman switched the bike off before laying it back down. After getting back to his feet, [the appellant] picked up the bike and tried to start it. When questioned by Campbell what he was doing, [the appellant] told Campbell that he was just seeing if it still worked. After starting the bike, [the appellant] got back on and quickly proceeded to ride west along the pedestrian footpath, over the footbridge across the Campaspe River towards his home address in Crossen Street. This forms the basis of Charge 2 – Fail to stop and render assistance. This charge is put on the basis that even though the dirt bike ‘stopped’ as a result of the physics of the collision at the scene, [the appellant] made no attempt to remain at the scene and no attempt to render assistance to Joel Beech. Once he was no longer trapped by the dirt bike, he left the scene immediately. He also told witness Bowman not to call an ambulance.
S/C Carfoot and Constable Fleming attended at the scene at approximately 12:38am before Act Sgt Gregor and paramedics arrived shortly afterwards.
The victim Beech was treated at the scene by paramedics before being airlifted to the Royal Melbourne Hospital with life threatening injuries.
As a result of the collision, Mr Beech sustained the following injuries:
· severe traumatic brain injury with large right extradural haemorrhage and subdural haemorrhage with midline shift and uncal herniation;
· multiple facial and skull fractures, including right petrous temporal bone, cribriform plate, parietal skull fracture and right orbital tripod fracture;
· neck fractures and haematoma;
· abdominal injury, including liver laceration, bilateral renal lacerations and adrenal haemorrhage;
· pelvic fractures, including right acetabular, right inferior pubic ramus, left posterior ilium extending into the sacral-iliac joint and left sacral body;
· left elbow fracture, requiring operation with external fixation and complicated by infection requiring removal of metalware, resulting in very restricted elbow movement with likely joint fusion; and
· chest injuries including bilateral pulmonary contusions, rib fractures and right upper lobe lung laceration.
Collision reconstructionist, Detective Senior Constable MacFarlane, concluded that the motorbike was travelling at a minimum of 41 to 50 kph at the time of collision. Initial investigations identified a motorbike matching the description provided by witnesses. This motorbike was linked to two addresses for which investigators obtained search warrants. Subsequent DNA analysis of goggles, a helmet mouthpiece and blood droplets located at the scene revealed that the likely source of the DNA was the appellant.
At approximately 4.10 pm on 10 March 2019, police executed a search warrant at the appellant’s address. Investigators observed a number of visible injuries to the appellant, including a swollen and black left eye, grazing and lacerations on the right shoulder blade and back region. The motorbike was not located.
The appellant was arrested and transported to the Echuca Police Station. A record of interview was commenced, but was suspended due to concerns for the appellant’s welfare. He was transported to Echuca Hospital before being released and returned to the Bendigo Police Station later that night. The following day, 11 March 2019, the appellant made a ‘no comment’ record of interview in relation to his involvement in the collision.
On 1 April 2019, police returned to the appellant’s address. While police were speaking to the appellant’s mother, the appellant ran out the back door and was unable to be located. The following day, 2 April 2019, police attended at an address in Echuca where the appellant was located hiding under a bed. He was arrested and taken to the Echuca Police Station where he was reinterviewed. The appellant denied any involvement in the collision and provided no explanation as to why his blood was located at the scene. He was charged and remanded in custody.[6]
[6]Paragraphs [8]–[13] are from the Leave Reasons.
After the collision Norris assisted the appellant by painting parts of the appellant’s motorbike green, partially burning it and then concealing it. Norris pleaded guilty to assisting an offender, committing an indictable offence whilst on bail and unlicensed driving. He was sentenced on the same day as the appellant, by the same judge, to 16 months’ imprisonment with a non-parole period of 10 months.
Reasons for sentence
Again it is convenient to take the following description of the judge’s reasons from the Leave Reasons.
The sentencing judge considered the medical evidence and victim impact statements outlining the nature and extent of the injuries sustained by Mr Beech. She noted that Mr Beech was discharged from hospital over nine months after the incident.[7] Rehabilitation physician, Dr Kim Proudlove, was of the view that Mr Beech’s cognitive impairment is severe enough to require formal support in all aspects of his life in the future. Mr Beech will require intensive community support, including daily attendant carers to assist him with personal care, domestic and leisure activities, and community access.
[7]DPP v Abbott & Anor (Unreported, County Court of Victoria, Judge Dawes, 17 February 2020) [33] (‘Reasons’).
A victim impact statement prepared on behalf of Mr Beech by his sister, and her own victim impact statement, were read aloud on the plea. The appellant’s conduct, the judge noted, ‘has caused the victim and his family irreversible sadness and pain’.[8]
[8]Ibid [36].
With respect to the appellant’s plea, the judge noted that the matter resolved to a plea of guilty at a committal mention on 18 September 2019. The appellant’s pleas of guilty had ‘significant utilitarian benefit’,[9] and ‘facilitated the efficient administration of justice’.[10]
[9]Ibid [45].
[10]Ibid [46].
Martin Jackson, consultant clinical neuropsychologist, prepared a report dated 13 December 2019. Mr Jackson stated that the appellant expressed regret for his actions; said that he knew what he did was wrong (in particular, leaving the scene of the accident and getting his friend to dispose of the motorbike); and understood that Mr Beech has been very seriously injured, and will be affected by those injuries for the rest of his life. In Mr Jackson’s opinion, the remorse the appellant demonstrated is sincere. He said that the appellant accepted that a term of imprisonment will result from his conduct.
The judge considered a number of personal references written to the Court by members of the appellant’s family. She found that the appellant appears to have developed a level of insight into the distress he had caused to both Mr Beech and his family.[11] The appellant had also written a letter to the Court expressing his remorse for the injuries he caused to Mr Beech, and acknowledging what Mr Beech’s family have endured as a result of his conduct.
[11]Ibid [48].
As to his claimed remorse, the sentencing judge found that the appellant was ‘belatedly remorseful for [his] offending’.[12] But she accepted — ‘after some hesitation’ — that the appellant’s remorse was genuine, this ‘sentiment’ being consistent with his plea of guilty.[13]
[12]Ibid [50].
[13]Ibid.
The judge noted the appellant’s criminal history, which is constituted by driving offences in both the children’s and adult jurisdictions, some of it involving serious offending. Notably, the appellant had findings of guilt on seven charges of unlicensed driving between 22 April 2014 and 23 May 2018. Further, on 4 October 2017, in the Deniliquin Court of Petty Sessions, the appellant was found guilty of offences including driving a motor vehicle with a prescribed concentration of drugs present in his blood or oral fluid. He was convicted and fined. The appellant’s licence was cancelled, and he was disqualified from driving for six years. A few months later, on 23 May 2018, at the Echuca Magistrates’ Court, the appellant was found guilty of driving a motor vehicle dangerously or negligently while being pursued by police; driving whilst disqualified; and other driving offences. He was convicted and placed on a community correction order (‘CCO’) for 18 months. The appellant’s licence was cancelled, and he was disqualified from driving for two years. The judge also noted that the appellant had a number of offences that are listed for a consolidated plea of guilty in the Magistrates’ Court on 26 February 2020. These offences included five charges of driving whilst disqualified between 12 July 2018 and 4 August 2018.
Significantly, the current offences occurred in breach of the CCO and the disqualification of the appellant’s licence. Regrettably, however, so the judge said, these orders did not deter the appellant from driving, the appellant showing ‘a blatant disregard for orders of the court’.[14]
[14]Ibid [56].
This, the judge noted, is the first time that the appellant has been incarcerated.[15] In the course of consultation for a report prepared by Alison Mynard, clinical psychologist, dated 25 May 2019, the appellant said he had suicidal ideation when held in police cells at the beginning of his remand period. He has since engaged in drug rehabilitation and vocational courses in prison. Random drug screens in custody have been negative. The appellant had worked as a gardener and was currently managing the cleaning of prison staff offices. His work has ‘some status attached to it’ and indicates that the appellant is trusted by those in control.[16] Ms Mynard, the judge said, believed that incarceration had provided the appellant with a highly structured environment from which he had benefited. Mr Jackson agreed, stating there was no indication that incarceration has had an adverse effect on the appellant.
[15]Ibid [57].
[16]Ibid [58].
As to family support, the judge noted that the appellant had weekly contact with his family over the past eight months, and his relationship with them had improved over this time. The judge said that the appellant’s ‘family clearly support [him] and will continue to do so in the future’.[17]
[17]Ibid [60].
The appellant was aged 23 years of age at the time of the offending, and was 24 at the time of sentence. In light of the seriousness and objective gravity of the offences, the judge said, ‘the mitigating effect of [the appellant’s] age and relative youth is reduced’, but ‘are still relevant when considering [his] prospects of rehabilitation’.[18]
[18]Ibid [61].
Mr Jackson assessed the appellant as having ‘a longstanding generalised verbal and language disability with all aspects of verbal and language functions being in the extremely low to borderline range’, and his perceptual skills are ‘mostly average’.[19] In his opinion, ‘there is no specific relationship between [the appellant’s] cognitive condition and the alleged offending’.[20] The judge said that the appellant did not have ‘any significant medical history, nor any mental health issues that have contributed to [his] offending’.[21]
[19]Ibid [62].
[20]Ibid.
[21]Ibid.
Prospects for the appellant’s rehabilitation, the judge said, were ‘reasonable’.[22]
[22]Ibid [63].
Outlining the appellant’s personal circumstances, the judge noted his close relationship with his parents and siblings. The appellant did not progress well academically and left school after completing Year 10. Since then, he had various forms of employment including working as a labourer, polishing concrete, farm hand, and mechanic. He began to use amphetamine at the age of 17 years.
The offending, the judge said, was a ‘serious example of significant criminal offending’ and his driving was ‘extraordinarily negligent’.[23] She considered the objective gravity of the appellant’s offending to be high, as was his moral culpability. The appellant’s prior convictions were highly relevant and significant. Only a substantial term of imprisonment was appropriate. General deterrence, denunciation and protection of the community were to be given significant weight in the sentencing process, and specific deterrence must also feature. Finally, the judge said that she had taken into account the appellant’s plea of guilty, his reasonable prospects of rehabilitation, his belated remorse, and the principle of totality.[24]
[23]Ibid [70].
[24]Paragraphs [15]–[29] are from the Leave Reasons.
Ground 1
Appellant’s submissions
The appellant submits that the sentence imposed on charge 2 (failing to stop and render assistance) is manifestly excessive in all of the circumstances.
The appellant submits that although he failed to stop and assist when he knew that he had been involved in an accident that had resulted in serious injury, his moral culpability is reduced because the evidence did not establish that the life-threatening nature of the injuries sustained by the victim must have been apparent to him. The appellant points to the fact that the collision occurred in the dark, he was driving a dirt bike, not a car, and he had sustained a head injury.
The appellant also submits that his moral culpability is reduced because he knew the victim was being attended to by two other people and he made no attempt to impede that assistance. This was not a case where the offending was aggravated by the victim being ‘left for dead’.[25] Although the appellant said ‘don’t call an ambulance’, he says that he did so in the context of Mr Bowman’s apprehension of the appellant’s own injuries. In addition, the appellant did not have any prior convictions arising from leaving the scene of an accident.
[25]Stewart v The Queen (2018) 83 MVR 535; [2018] VSCA 55, [22] (Weinberg and Coghlan JJA) (‘Stewart’); Sarikaya v The Queen (2015) 73 MVR 1; [2015] VSCA 236, [16] (‘Sarikaya’); Wassef v The Queen [2011] VSCA 30, [4] (Maxwell P and Redlich JA) (‘Wassef’).
The prosecutor invited the judge to place weight on the appellant’s subsequent conduct of falsely representing to police that he had not been involved in the collision and in attempting to hide evidence. The judge found that the appellant had ‘participated in endeavouring to conceal this offending’.[26] The appellant accepted that he asked Mr Norris to get rid of the bike, however, he submits that the offending was complete when he left the scene and subsequent conduct should not impact his moral culpability and nor can conduct for which the appellant was not charged aggravate the offending.
[26]Reasons [71].
The appellant submits that in all of the circumstances, this was not a ‘most serious’ example of the offence, and the sentence imposed was manifestly excessive because it was equal to the highest sentence imposed for this offence, which was imposed in circumstances where the offender had a prior conviction for leaving the scene,[27] or where the offender was convicted after trial.[28]
Respondent’s submissions
[27]Stewart (2018) 83 MVR 535; [2018] VSCA 55.
[28]Sarikaya (2015) 73 MVR 1; [2015] VSCA 236.
The respondent submits that the judge correctly identified and applied the relevant sentencing principles and imposed a sentence that was well within range.
The respondent notes that the appellant’s conduct following the collision was solely aimed at self-preservation. The respondent also submits that there was no evidence or submissions about any impact of the appellant’s head injury, the presence of others at the scene of the collision did not reduce the appellant’s obligation to render assistance and his criminal history bore directly on his moral culpability, prospects for rehabilitation, and the weight to be given to specific deterrence.
The respondent says that the judge was correct to consider that general deterrence, denunciation and protection of the community were to be given significant weight and that specific deterrence must also feature in the sentencing synthesis.
Ground 2
Appellant’s submissions
The appellant submits that the total effective sentence and the non-parole period are manifestly excessive in all of the circumstances.
The appellant says that the sentence on charge 1 (negligently causing serious injury), if not manifestly excessive, is at the very top of the range of sentences available for the offence. He seeks to distinguish his offending from a case involving a car or truck driven on a road by someone who knew that he or she was impacted by sleep deprivation or substances.
In addition, the sentence imposed for the summary offence — half of the maximum sentence available — was at the top of the range of sentences open for that offence and was stern in circumstances where it was the appellant’s first sentence of imprisonment as a youthful offender.
The appellant submits that the judge imposed very substantial cumulation alongside very stern or manifestly excessive individual sentences. The appellant accepts that the separate criminality in each offence justified a measure of cumulation, but submits that the judge erred in applying the principle of totality by imposing very substantial cumulation in circumstances where some matters bore on each sentence and it was necessary to moderate the overall sentence to ensure that it was just and appropriate.
Respondent’s submissions
The respondent submits that the individual sentences, orders for cumulation, total effective sentence and non-parole period imposed by the judge are well within range. The respondent relies on the absence of any specific error on the part of the judge, the gravity of the offending — which it submits was at the upper end of the range — the severity of the injuries sustained by the victim and the appellant’s relevant and significant criminal record.
The respondent notes that the maximum penalty for negligently causing serious injury increased from 5 years’ imprisonment to 10 years’ imprisonment in 2008 and that this Court has called for an uplift in sentences for this offence.[29]
[29]Harrison v The Queen (2015) 49 VR 619; [2015] VSCA 349 (‘Harrison’).
The respondent submits that the objective gravity of the offending increased the importance of general deterrence and denunciation in the sentencing process and reduced the weight to be afforded to factors such as the appellant’s youth and prospects for rehabilitation.
Ground 3
Appellant’s submissions
The appellant submits that the sentence imposed on charge 1 is manifestly excessive because the judge gave insufficient weight to the appellant’s youth, gave excessive weight to the seriousness of the victim’s injuries, overestimated the measure of departure from the standard of care required — which was not as great as in many cases — or was due to a combination of these factors.
Respondent’s submissions
The respondent submits that the sentence imposed on charge 1 was within range, relying on the gravity of the offending, the appellant’s high moral culpability, the appellant’s significant and highly relevant criminal history and comments made in Harrison,[30] including that in that case, a sentence of six or seven years’ imprisonment would have been well within the range.[31]
[30](2015) 49 VR 619; [2015] VSCA 349 (Maxwell P, Redlich and Tate JJA).
[31](2015) 49 VR 619, 651 [141]; [2015] VSCA 349 (Maxwell P, Redlich and Tate JJA).
The respondent notes that an evaluation of the degree of departure from the requisite standard of care is informed by a variety of factors, including the degree of risk and potential harm involved in the manner of driving, and the foreseeability of the risk created by the driving. The respondent submits that a reasonable person would foresee the appellant’s driving to entail a very high degree of risk and foresee the serious harm likely to result from a collision.
Consideration
In order to address the grounds it is convenient to deal first with the sentence on charge 1 (ground 3), then turn to charge 2 (ground 1) before addressing the total effective sentence and non-parole period (ground 2).
Charge 1 (Ground 3)
Sentencing for driving offences which result in death or serious injury is notoriously difficult. They often involve catastrophic brain or spinal injuries which are devastating for victims and their family. They also often involve offenders who have no prior convictions or an unblemished record. Because they present such challenges, it is useful to commence by noting some general propositions concerning the offence.
The Crimes Act 1958 prescribes specific offences in relation to driving offences, including culpable driving causing death,[32] and dangerous driving causing death,[33] or serious injury.[34] Different maximum penalties are prescribed for these offences being 20 years, 10 years and 5 years’ imprisonment respectively. Culpable diving causing death is a standard sentence offence for which the standard sentence is 8 years’ imprisonment.[35]
[32]Crimes Act 1958 s 318.
[33]Ibid s 319(1).
[34]Ibid s 319(1A).
[35]Ibid s 318(1A).
In addition to those specific offences, the more general offence of negligently causing serious injury is often applied to conduct involving the use of motor vehicles.[36] That offence carries a maximum penalty of 10 years’ imprisonment.
[36]Ibid s 24.
It is important to observe the mental element necessary to establish the offence. In Aston v The Queen,[37] this Court said:
the offence of negligently causing serious injury is established where the jury is satisfied that the accused unjustifiably and to a gross degree failed to observe the standard of care which a reasonable person would have observed in all of the circumstances (that conduct having caused serious injury). The adjective ‘gross’ conveys the notion that the negligence must be of a high order, involving a great falling short of the standard of care which a reasonable person would have exercised in all of the circumstances, and involving a high risk that serious injury would follow from that conduct.[38]
[37][2019] VSCA 225.
[38]Ibid [26] (Priest, Beach and Kaye JJA).
The mental element required may be contrasted with intentionally causing serious injury,[39] and recklessly causing serious injury,[40] each of which carries a higher maximum penalty reflecting, no doubt, the different culpability that the law attaches to the offences.
[39]Crimes Act 1958 s 16 (maximum penalty 20 years).
[40]Ibid s 17 (maximum penalty 15 years).
In approaching a sentence for a charge of negligently causing serious injury involving a motor vehicle, it is also necessary to recall that neither the Crimes Act nor the Sentencing Act 1991 imposes any special or unique rules for the offence.
Within that context, it is convenient to start with the maximum penalty of 10 years which represents an important ‘yardstick’ to which the Court must have regard.[41] The maximum is reserved for the worst category of the offence having regard to both the circumstances of the offence and the individual circumstances of the offender. In every case the judge is bound to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category (properly so called).[42]
[41]Markarian v The Queen (2005) 228 CLR 357, 372 [30]; [2005] HCA 25 (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[42]Ibid.
The objective gravity for an offence of this type involving a motor vehicle, will generally fall to be assessed according to the degree of negligence involved and the seriousness of the injuries caused.[43]
[43]Walsh v The Queen (2018) 87 MVR 76; [2018] VSCA 334, [26] (Priest and Weinberg JJA).
Since the use of motor vehicles is ubiquitous and because of the enormous dangers they present if driven negligently, the protection of the public means that both general, and where applicable, specific deterrence are important.
Offenders are often young, and otherwise of good character. They are often able to call in aid an unblemished record, strong evidence of remorse and good prospects of rehabilitation. However, even in such cases, the protection of the community requires courts to fix sentences that denounce such behaviour and send an unambiguous signal that such conduct is deplorable and will result in stern punishment. General deterrence is so important, that it may come at the cost of reducing the force that personal circumstances might otherwise demand.
In those cases, of which the present is one, where the offender has a history of driving and other relevant offences, specific deterrence will also be factor that must be given appropriate weight. In that context the applicable principles are those stated by Charles JA in R v O’Brien & Gloster,[44] where his Honour observed that no principle of sentencing requires that more severe sanctions be administered to those who persist in the guilty behaviour. However, prior convictions may be relevant as an indicator of the offender’s moral culpability, his prospects of rehabilitation, his dangerous propensity and the community’s need for protection and the increased importance of specific deterrence as a factor in sentencing.
[44][1997] 2 VR 714, 718.
With those general observations in mind, I turn to the sentence imposed on charge 1.
There was a very high degree of negligence involved. The appellant drove a motorbike at a speed of between 41 and 50 kph on a poorly lit pathway designed for use by pedestrians and bicycles. The pathway was 2.4m wide. The motorbike did not have a front light. At the point of impact the nearest lights were 80 metres to the east and 60 metres to the west.
In this case the collision occurred shortly after midnight on a shared pedestrian/bicycle path. Given the poor illumination and the absence of lights on the motorbike, it would have been very difficult for anyone on the path to take any steps to avoid a collision with a motorbike travelling at speed. There were witnesses who heard the motorbike being driven but the victim was caught unaware and had no ability to avoid impact. Although it must have been reasonably foreseeable that there might be pedestrians on the path at midnight, the risk is different to driving a motor vehicle on the open road and disobeying traffic signals where the risk of collision might be thought to be substantially higher. On the other hand, if there were persons present they were likely to be pedestrians for whom a collision would very likely result in serious injury.
The judge described the appellant’s driving as ‘extraordinarily negligent’.[45] In my view, the risk of collision was high and given the speed, any collision with a pedestrian was highly likely to cause serious injury. In those circumstances, whether the adverb ‘extraordinarily’ as used is apt, the negligence was high. Reading the reasons as a whole, the judge did not overstate its seriousness.
[45]Reasons [70].
For completeness, I note that on the plea the prosecution also sought to rely on the fact that the motorbike was unregistered and the appellant was disqualified from driving as particulars of the negligence. In my opinion, neither of those facts were relevant to the standard of care exercised by the appellant on that evening. That he was disqualified did not make his conduct more dangerous or risky. The fact that the motorbike was unregistered did not bear upon the breach of duty. Apart from the absence of a light, which was a significant aggravating feature, it was not suggested that the bike was otherwise unroadworthy or defective. The point can be demonstrated by observing that had the motorbike been registered and the appellant licensed to drive it, these matters would not have made the conduct less negligent.
The injuries to the victim are devastating and ongoing. The appellant submits that the judge sentenced on the basis that, at discharge, the victim required intensive community support, including daily attendant carers to assist him with personal care and that he had severe deficits in recall recognition, moderate deficits with each of memory, following directions and sequencing, foresight and planning, safety and judgment. However, the appellant submits that these conclusions were based on the projected state at discharge and that the evidence showed a somewhat less serious position. I do not agree. The judge’s assessment of the injuries was accurate and fair.
In summary, the seriousness of the injuries when combined with the significant negligence involved means that this was, to my mind, a serious example of the offence.
The appellant relied on the fact that he is a young offender and his plea of guilty. The judge accepted that the appellant had reasonable prospects of rehabilitation and had demonstrated, albeit belatedly, remorse. Those factors required some moderation of sentence.
The judge regarded the appellant’s prior convictions as highly relevant and significant. In my opinion, given the number of driving offences committed by the appellant in the recent past, specific deterrence was called for. The appellant took issue with the judge’s finding that the past offending demonstrated a blatant disregard for orders of the Court. That submission was based on psychological evidence which was to the effect that his recidivism had, in part, been caused by cognitive or personality deficits. In my opinion, no criticism of the judge’s description of the past offending is warranted. At the time of the offence the appellant was on a CCO in respect of driving offences. The psychological evidence did not rise to a level that undermined the appellant’s understanding of the Court orders and of the importance of complying with the law. Further, it was not suggested that any cognitive or personality weaknesses meant that specific deterrence was inappropriate.
In my opinion, it was open to the judge to regard the offending as serious and to place considerable weight on both general and specific deterrence.
As already observed, general deterrence has a large role to play where the serious injury is caused by negligently driving a motor vehicle. In part that is because of the common elements that are often found in offending of this kind: speed, drug and alcohol use and breach of road rules. However, as the respondent submits, on the present application the facts were unusual for an offence of this kind. For that reason there is much less utility in comparing the outcome in this case to sentences imposed in other cases.[46] Further, given the unusual features, general deterrence should be moderated at least in comparison to the weight that factor is often accorded in cases of negligently causing serious injury involving motor vehicles.
[46]Halket v The Queen [2016] VSCA 221; DPP v Barry [2017] VSCA 344; Papachristodoulou v The Queen [2017] VSCA 284.
The sentence of 5 years’ imprisonment on a maximum of 10 years following a guilty plea for a relatively youthful offender is a significant punishment and deserved very close scrutiny. However, given the importance of general deterrence and having regard to the degree of negligence and the severity of the injuries sustained by the victim I am not persuaded that the sentence on charge 1 was wholly outside the range open to the judge.
I would reject ground 3.
Charge 2 (ground 1)
The appellant also pleaded guilty to a breach of s 61(3) of the Road Safety Act. That provision relevantly provides that a person is guilty of an offence if, as a result of an accident involving a motor vehicle, a person is killed or suffers serious injury; and the driver of the motor vehicle knows or ought reasonably to have known that the accident had occurred and had resulted in a person being killed or suffering serious injury and the driver fails to (a) immediately stop the motor vehicle and (b) immediately render such assistance as he or she can. Thus, the obligations to which s 61(3) is directed are to stop and to render such assistance as he or she can.
As a result of the force of the collision the appellant stopped. However, he failed to render such assistance as he could and fled the scene. The obligation to render assistance subsists whether or not others are present who are capable of or are rendering assistance.[47]
[47]Bankalv The Queen [2019] VSCA 171, [20] (Maxwell P and Priest JA) (‘Bankal’).
By his plea to the charge, the appellant accepted that he knew he had been involved in an accident that had resulted in serious injury to the victim. The judge observed, correctly, that the appellant’s immediate instinct after the collision was self-preservation and that he lied to the people present who were endeavouring to assist the victim who had been grievously injured by telling them that he was just seeing whether the motorbike was working before using it to flee the scene.
In Stewart v The Queen,[48] this Court upheld a sentence of 4 years’ imprisonment on a charge of failing to stop after an accident. In that case, the defender had collided with a bicycle when she was driving her car on the wrong side of the road. The victim was thrown over his bike striking the top of the windscreen and roof on the driver’s side of the car. The windscreen was shattered. The accident occurred at around 6:30 am on Good Friday when there was no one around. The offender left the scene without rendering assistance. This Court regarded the finding by the sentencing judge that the offender’s objective culpability was between mid to high range as favourable to the offender.[49]
[48](2018) 83 MVR 535; [2018] VSCA 55.
[49](2018) 83 MVR 535; [2018] VSCA 55, [21] (Weinberg and Coghlan JJA).
In rejecting an appeal against sentence, this Court observed that although the offence was fleeting, the decision to leave the scene was made in circumstances where there was no reason to assume that assistance to the victim was at hand or readily available.[50]
[50]Ibid [22].
In Bankal, the offender’s car was struck by a motorcycle which was travelling at high speed just before the collision. Both the motorcycle and its rider caught fire and the injuries proved fatal to the motorcycle rider. The applicant, although he was not the cause of the accident, fled the scene without rendering assistance. At the time of the offence the applicant was on a CCO and had been fined on charges of failing to give his name and address to the owner of the vehicle after an accident and exceeding the prescribed concentration of alcohol within three hours of driving.[51] He had a substantial criminal history. This Court concluded that a sentence of 3 years and 3 months’ imprisonment on the charge of failing to render assistance was not manifestly excessive. The Court said:
In more recent times — all other things being equal — it has not been unusual for sentences of three to four years’ imprisonment to be imposed for the offence of failing to render assistance after a motor vehicle accident in which a person was seriously injured or killed, sentences of a similar order routinely being imposed for the allied offence of failing to stop after an accident (although, it must be acknowledged, it is also not unusual for lesser sentences to be imposed).[52]
[51]Bankal [2019] VSCA 171, [25] (Maxwell P and Priest JA).
[52]Ibid [38] (citations omitted).
In Wassef, a sentence of 3 years and 3 months’ imprisonment was upheld in this Court. Redlich JA said:
He knew that he had struck the cyclist in circumstances where it was likely that the victim would have been injured. It was his legal responsibility to remain at the scene. Knowing of these circumstances, he deliberately fled from the scene, presumably to protect himself. Drivers who, in breach of their duty, depart the scene of an accident in circumstances where it is likely to be inferred that they did so to avoid the consequences of unlawful conduct, cannot expect that the courts will give weight to exculpatory explanations for why they have done so which are proffered after the event. They must expect the imposition of substantial terms of imprisonment.[53]
[53]Wassef [2011] VSCA 30, [31] (Maxwell P and Redlich JA).
The sentences imposed in other cases are not precedents, however, they may illuminate the applicable principles and show how offending against s 61 has been viewed by the courts. It is possible to discern from the cases that the section is designed to force people to stop and render assistance and the extent of the injuries is relevant to the assessment of the gravity of the offending. Breaches of s 61(3) are regarded very seriously and substantial terms of imprisonment have been imposed.
Notwithstanding that there are examples in which sentences of 3 or 4 years have been justified, I am persuaded that the sentence imposed on charge 2 was wholly outside the range of sentences available.
As already observed, the injuries sustained by the victim were horrendous, and the appellant accepts that he knew at the time he fled the scene that the victim had sustained serious injury, however, the extent of the injury was unlikely to have been known to the appellant. The victim was being attended to by two bystanders, and the offending lacks the additional aggravating factor seen in Stewart, where the victim was left alone and without assistance. The offending was fleeting, and the appellant himself sustained some injury. Given the circumstances of the collision, it is probable that the appellant was, at least to some extent, disorientated by the accident. That said, his conduct demonstrated a callous attitude of self-preservation and complete indifference to the plight of the victim.
The respondent emphasised that immediately after the accident the appellant told one of the bystanders not to call an ambulance. The appellant was sentenced on the basis that he failed to offer assistance and it was not suggested, and the judge did not sentence on the basis, that the appellant took any steps to impede the obtaining of assistance for the victim. The judge did not identify what was said as an aggravating factor in sentencing and it was not given any particular weight by her. I proceed on the same basis for the purpose of considering this ground of appeal.
The appellant was entitled to the benefit of the guilty plea and the relatively favourable findings as to remorse and rehabilitation. He was a young offender and although he had number of relevant prior convictions, he had not been imprisoned before. In my opinion, the sentence of 4 years on charge 2 was manifestly excessive. Even allowing for the importance attached to general deterrence and community protection, I am persuaded that the sentence is wholly outside the permissible range.
I would uphold ground 1 and set aside the sentence on charge 2.
Ground 2: Total effective sentence
In addition to my conclusion on charge 2, I am also persuaded that, when regard is had to the overall criminality involved, the sentence of 7 years with a non-parole period of 5 years is manifestly excessive. Even had I upheld the individual sentence on charge 2, I would have regarded the degree of cumulation to be excessive.
Given that it is necessary to set aside the sentence on charge 2 and resentence the appellant, it will also be necessary to fix a new non-parole period.
Disposition
I would not alter the sentence in charge 1, which I have found to be within range. It will remain the base sentence. I would substitute a sentence of 2 years and 6 months’ imprisonment on charge 2. I would make orders for cumulation of 9 months on charge 2 and 3 months on the charge of driving while disqualified.
This would result in a total effective sentence of 6 years’ imprisonment. I would set a new non-parole period of 4 years. For the purpose of s 6AAA of the Sentencing Act, had the appellant been convicted after a trial, I would have sentenced the appellant to a term of 7 years and 6 months’ imprisonment with a non-parole period of 5 years.
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