Anthony John Walsh v The Queen
[2018] VSCA 233
•12 September 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0120
| ANTHONY JOHN WALSH | Applicant |
| v | |
| THE QUEEN | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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| JUDGE: | TATE AP |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 September 2018 |
| DATE OF JUDGMENT: | 12 September 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 233 |
| JUDGMENT APPEALED FROM: | DPP v Walsh (unreported, County Court of Victoria, Judge Gamble, 28 May 2018) |
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CRIMINAL LAW – Application for leave to appeal against sentence – Two charges of negligently causing serious injury by driving – Two children of applicant seriously injured – Offences arose from the same conduct – Plea of guilty – Remorse – Good prospects of rehabilitation – Sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of three years and nine months – Manifest excess – Leave to appeal granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Nathwani | Eagle & Partners |
| For the Respondent | Ms F Dalziel | John Cain, Solicitor for Public Prosecutions |
TATE AP:
This is an application made by Anthony Walsh for leave to appeal against sentence (‘Walsh’).[1] The sole proposed ground of appeal is manifest excess.
[1]R v Walsh (unreported, County Court of Victoria, Judge Gamble, 28 May 2018) (‘Reasons’).
Walsh pleaded guilty to two charges of negligently causing serious injury (‘NCSI’) contrary to s 24 of the Crimes Act 1958 and was sentenced in the County Court on 28 May 2018 to a total effective sentence of six years’ imprisonment. On charge 1 a sentence of four and a half years’ imprisonment was imposed (the base sentence) and on charge 2 Walsh was sentenced to three and a half years’ imprisonment with 18 months cumulation. The non-parole period ordered was three years and nine months.
Walsh also pleaded guilty to a related summary offence of driving while exceeding the prescribed quantity of drugs for which he was fine $750.
The details of his sentence are as follows:
Charge on Indictment Offence Maximum Sentence Cumulation
1. Negligently causing serious injury 10 years 4 ½ years Base 2. Negligently causing serious injury 10 years 3 ½ years 18 months 3. Driving a vehicle with more than the prescribed concentration of drugs was present in blood (contrary to s 49(1)(bb) of the Road Safety Act 1986) 12 penalty units $750 fine Total Effective Sentence: 6 years Non-Parole Period: 3 years 9 months Pre-sentence detention declared: 27 days 6AAA Statement:
TES – 7 ½ years
NPP – 5 ½ yearsOther relevant orders:
3-year disqualification from driving upon release from prison
Forensic Sample
Declaration that the offence was committed under the influence of drugsThe circumstances of the offending
On Saturday 4 March 2017 at some time between 1:25 am and 2:25 am Walsh was involved in a single car collision while he was driving a Toyota Hilux four wheel drive vehicle on the Western Freeway. He was travelling from his home to Wendouree to visit his new girlfriend, a journey of some 185 km, and was about ten minutes from his destination when the collision occurred. In the car were two of his children, Madelynne, aged nine, and Matthew, aged 14. Madelynne was asleep in the backseat and not wearing a seatbelt. The Crown accepts that when she was first put into the car Walsh understood that the seat belt was on and that there is no evidence about how it came to be undone. For that reason the Crown does not rely on it as an aggravating factor. Matthew was in the front passenger seat and was wearing his seatbelt.
At some point in the journey Walsh’s car left the road while travelling through a left hand curve in the road, entered the grass verge in the centre, travelled down the embankment, went around a tree, fell into a rail cutting front first, and then rotated over so that the rear of the car came to rest against the wall of the underpass in an almost vertical position on its front. Walsh was able to get himself and the children out of the car. He and his son walked along the train tracks for some 50 metres before turning west and continuing along a fence line for 300 metres. Walsh carried his daughter wrapped in a blanket. He called 000 at 2:40 am. A Victoria Police reconstructionist gave expert evidence that the scene of the collision was not consistent with Walsh swerving to miss a kangaroo, as Walsh claimed in a record of interview, but with an inattentive driver running off the road for unknown reasons.
The injuries caused
Both of the children were seriously injured and were taken to hospital. Madelynne was airlifted to the Royal Children’s Hospital suffering from life threatening injuries to her head and neck, and spent three months in traction in a Halo Device. Her injuries included fractures to the spine and ribs, traumatic brain injury, laceration to her liver and spleen, and perforation of her small bowel. She had to undergo a number of procedures and surgeries and extensive rehabilitation, and continues to have issues with her health that affect her schooling and day to day life. Matthew was also taken to hospital with substantial injuries to his lungs and kidneys, as well as bruising and abrasions. He is likely to suffer from future complications as a result of the injuries to his kidneys and have a poor quality of life.
Ms Dalziel, who appeared for the Crown this morning, emphasized that both children suffered significant injuries. The fact that there are multiple victims warranted, she submitted, that cumulation be ordered to reflect the fact that the victims are not to be treated as mere statistics. She also submitted that the circumstances warranted the degree of cumulation that the judge ordered.
Walsh also suffered injuries and was taken to the Ballarat Base Hospital. A blood sample taken at that time showed the presence of .14 milligrams per litre of methylamphetamine and .50 milligrams per litre of amphetamine.
Proposed ground of appeal
As noted, Walsh now seeks leave to appeal against sentence on the single ground of appeal of manifest excess which he further particularises:
Ground 1 – The individual sentences, order for cumulation, total effective sentence and non-parole period fixed are each manifestly excessive.
Particulars:
(i)Insufficient discount was given to the applicant’s plea of guilty; further and/or alternatively,
(ii)The learned judge took too high a starting point, further and/or alternatively,
(iii)The cumulation in the circumstances was not sufficiently moderated, further and/or alternatively,
(iv) That the sentence imposed offended the totality principle, and/or
(v)That the total effective sentence reflected an upper range sentence despite sentencing remarks and the facts of the case identifying this as a mid-range case, further and/or alternatively,
(vi)The learned judge did not reduce the sentence sufficiently to mark the specific deterrence that he accepted the Applicant had already received, and/or
(vii)The learned judge gave insufficient weight to the personal circumstances of the Applicant, and/or
(viii)The learned judge did not sufficiently take into account the impact of the Applicant’s incarceration on the victims,
and
(ix)The sentences imposed are more severe than that which were necessary to achieve the purposes for which the sentences were imposed.
The judge’s reasons
The judge took the view that the two offences of NCSI were serious examples of their type, involving a high degree of negligence[2] and a significant level of moral culpability.[3] The judge described the decision by Walsh to undertake the road trip on the night of the accident with his two young children as selfish and criminally negligent. Walsh had worked all day as a courier/truck driver, then had waited at work for another driver to finish a shift at 9:30 pm and drove the two of them home, arriving at 11:00 pm. He had something to eat, then put Madelynne and Matthew into the car shortly after 11:00 pm and left. His vehicle passed a speed camera on the Hume Freeway in Wallan at 11:32 pm and was travelling at 100 km/h. He stopped at a petrol station at 11:41 pm where he purchased an iced coffee drink and can be seen on CCTV stretching and yawning. He left the station at 11:45 pm. At 12:45 am he sent a Facebook message to his girlfriend saying he was in Pentland Hills doing 120 km/h. The collision then happened at some time between 1:25 am and 2:25 am.
[2]Reasons [50].
[3]Ibid [52]
The judge made the following remarks about Walsh’s decision:
The degree of negligence was itself high. Given his weekly work routine and the consequent lack of sleep that he had, particularly in the previous 24 hours, Mr Walsh must have known that he was very tired when he chose to embark on a relatively lengthy night drive. Moreover, he had previously used the drug, methylamphetamine, which I am well satisfied contributed to his fatigued state in the manner explained by Dr Gaya. In that context, Mr Walsh must have known that there was a real, as opposed to a fanciful risk, of him falling asleep at the wheel, particularly in the latter part of that journey. And, that is exactly what happened, in my view. He lost concentration, fell asleep momentarily and then sought to save the situation when it was, by then, too late.
…
In my view, the circumstances of this offending are such that Mr Walsh should be seen as bearing a significant level of moral culpability. He must have known that it was not safe for him to drive on that night. Yet, he chose to do so, with two young passengers on board. By driving as he did, he betrayed their trust in a serious fashion for selfish reasons. He could quite easily have delayed his departure until the following day, but did not because he wanted to see his new partner that night.[4]
[4]Ibid [50], [52].
The judge’s finding about the role of the drugs taken by Walsh was based on evidence provided by Dr Sanjeev Gaya, a forensic physician attached to the Victorian Institute of Forensic Medicine. Although Dr Gaya was not able to determine the dose or timing of the drug used by Walsh from the blood analysis results alone, he was able to make the following observations:
(a) the level of amphetamines found in the blood sample was similar to the levels found in large numbers of people driving under the influence of drugs;
(b) generally the higher the level, the more likely it is that a person is impaired;
(c) the general effect is for the drug to cause a period of stimulation, followed by a period of rebound fatigue;
(d) both of these stages can cause severe driving impairment.
Given the absence of evidence of any corrective actions by Walsh until after the vehicle had already veered off the freeway and onto a wide, grassed verge, Dr Gaya also expressed the opinion that this was indicative of a temporary lapse in the driver’s awareness of his immediate environment. He was of the view that the crash occurred at a time of maximum sleepiness for Walsh given he had been awake for in the vicinity of 18 to 19 hours. His opinion was that rebound fatigue from methylamphetamine use and subsequent falling asleep would have impaired Walsh’s ability to drive, thus preventing him from having proper control of the vehicle.
The judge considered that both of the NCSI offences were ‘at least mid-range instances’ and in the case of Madelynne, which was the more serious offence, ‘very close to being an upper-end instance’.[5] Mr Nathwani, who appeared for the applicant this morning, emphasized the manner in which the judge characterised the offences as ‘mid-range’ offences. The judge did not accept the submissions made on behalf of Walsh that an appropriate sentence would be a stand-alone community correction order, or a combination of a short period of imprisonment and a community correction order. He considered that a substantial term of imprisonment was warranted:
In my view, given the nature and seriousness of this offending, this Court has no alternative but to sentence Mr Walsh to a substantial term of immediate imprisonment, comprising a head sentence and a non-parole period.[6]
[5]Ibid [52].
[6]Ibid [81].
The judge identified a number of factors in mitigation and Mr Nathwani emphasized some of these factors again this morning:
·Walsh’s plea of guilty at the earliest reasonable opportunity;
·his genuine remorse and willingness to take personal responsibility for the collision;
·the unlikelihood of him offending in this manner in the future;
·the burden of seeing his children, in particular Madelynne, suffering with the ongoing effect of their injuries;
·his voluntary engagement with drug and alcohol counselling;
·his self-imposed ban on driving;
·the enforced separation from his children during his imprisonment;[7]
·the fact that he himself suffered injuries;
·the 9 month’s delay in being charged.
[7]The judge also said that Walsh was likely to find the fact that he had not experienced imprisonment before and while on remand found the experience difficult, and would likely find the remainder of his imprisonment difficult. In fact, as his counsel acknowledged in his written case, Walsh had been in prison in 2001 for cultivating cannabis. Counsel was informed of that only after his client had been sentenced.
The judge concluded that Walsh’s prospects of rehabilitation were good.[8] This issue was also emphasised this morning by Mr Nathwani.
[8]Reasons [77].
Should there be a grant of leave to appeal?
In my view, leave to appeal against sentence should be granted as I consider that the proposed ground of appeal is reasonably arguable.
The circumstances make it clear that the two offences were not only part of a single episode but arose out of the same conduct. The question arises whether, in those circumstances, it was appropriate to order cumulation of 18 months on a base sentence of four and a half years. Walsh, through his counsel, submitted that the starting point was too high; the order for cumulation was not sufficiently moderated and resulted in a total effective sentence that was appropriate to an offence in the upper range rather than mid-range as the judge described it; and the impact of the sentence contravened the principle of totality. He also queries whether the total effective sentence indicates that the judge did not give the reduced weight to specific deterrence that he said was his intention.[9] I consider that these matters are reasonably arguable and warrant a grant of leave to appeal.
[9]Ibid [74].
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