Board v The Queen
[2013] VSCA 190
•17 July 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0024
| VERNON BOARD | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL ACJ and BUCHANAN JA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 17 July 2013 | |
| DATE OF JUDGMENT | 17 July 2013 | |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 190 | |
| JUDGMENT APPEALED FROM | DPP v Board (Unreported, County Court of Victoria, 20 December 2012, Judge Hampel) | |
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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing death – Dangerous driving causing serious injury (3) – 4 years’ imprisonment – Non-parole period 1 year, 6 months – Very serious example of offending – Applicant aware of fatigue and considered pulling over but failed to do so – Applicant lost control of vehicle – Applicant not affected by alcohol – Whether trial judge made erroneous finding that applicant fell asleep at wheel – No such finding made – Not manifestly excessive – Application refused – Neethling v The Queen (2009) 22 VR 466 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis | Balmer and Associates |
| For the Respondent | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL ACJ:
The applicant pleaded guilty to one charge of dangerous driving causing death and three charges of dangerous driving causing serious injury. He was sentenced as follows:
Charge on indictment Offence Maximum Sentence Cumulation 1. Dangerous driving causing death 10 y 30 m Base 2. Dangerous driving causing serious injury 5 y 18 m 6 m 3. Dangerous driving causing serious injury 5 y 18 m 6 m 4. Dangerous driving causing serious injury 5 y 18 m 6 m Total Effective Sentence: 4 y Non-Parole Period: 1 y, 6 m 6AAA Statement: 6 y, 3 m
The application for leave to appeal against sentence was refused by a single judge, who concluded that none of the grounds of appeal was reasonably arguable. Pursuant to s 315(2) of the Criminal Procedure Act 2009 (Vic), the applicant elected to renew his application before a bench of two judges. One of the grounds advanced before the single judge has been abandoned.
For reasons which follow, I have come to the same conclusion as the single judge. I do not consider any of the proposed grounds of appeal to be reasonably arguable and I would refuse leave to appeal.
The circumstances of the offending
The applicant (‘B’)[1] was driving a car in which his wife and mother‑in‑law were both passengers. The fatal accident occurred when the applicant’s vehicle crossed the centre line into the path of an oncoming vehicle. His mother‑in‑law was killed. His wife sustained serious injuries, as did the two front seat passengers in the other car. There were two children in the back seat of the other car. Fortunately, they suffered only minor injuries.
[1]The abbreviation is used for ease of reference, not for anonymity.
The collision occurred on Monbulk Road. B was driving north, in the direction of Silvan. It was a Sunday afternoon. The weather was fine, the traffic was moderate and B was not affected by alcohol.
There was a car travelling immediately behind B’s car over a three kilometre stretch from the outskirts of Monbulk to the accident site. The driver of that car (‘W’) observed B’s car twice veer onto the wrong side of the road and once onto the gravel on the left side of the road. He also observed B’s vehicle veering from side to side within the left lane on a number of occasions. W described B’s driving as erratic, a description which the judge accepted without dissent from defence counsel.
The judge included in her reasons the following extracts from W’s statement, as set out in the Crown opening:
[B’s vehicle] veered slowly to the right. The right side tyres went onto the incorrect side of the road by about a foot. It then straightened and followed the line of the road with the right-hand tyres still across the centre line for a couple of seconds, and then it drifted slowly back onto the correct side of the road. When it drifted back there didn’t appear to be any sense of urgency by the driver to return to the correct side of the road. As it was going around the right-hand bend it drifted wide to the left, towards the exit of the bend. The left-hand tyres went onto the gravel on the left side of the road. The left-hand wheels were on the gravel by about six inches, and it was very noticeable. It again slowly drifted back into the lane. The reactions of the driver appeared to me to be slower than normal.
It again drifted partially into the right-hand lane. This manoeuvre was similar to the last two, in that it was a gentle and slow drift and, again, there was no sudden movement back to the correct side oft eh road. On this occasion the right-hand wheels were on or just over the centre line and remained like that for only a second or so. I noticed the car was veering from side to side within its lane. These movements were gentle and inconsistent. I was approaching the left-hand bend. I remember the car just going straight ahead at this bend. It didn’t appear that it slowed at all, as my distance behind it didn’t appear to change. [B’s vehicle] didn’t take any evasive action, and it was like it just didn’t turn. It went most of the way into the right-hand lane, but my attention was drawn to a small, gold-coloured four-wheel-drive coming in the opposite direction. Both of the cars then collided head-on, but on a slight angle, and in the right-hand lane.
At some point in the course of driving those three kilometres, B said to his wife that he was tired and that he ‘would look for somewhere to pull over’. As defence counsel conceded — quite properly — on the plea, this statement showed that B was aware both that he was tired and that, because of the danger associated with driving in that condition, he should pull off the road. The prosecutor submitted — and the defence again properly conceded — that the loss of control which resulted in the collision was not ‘a momentary lapse’. As the judge noted in her reasons, the erratic driving had continued over a considerable distance.[2]
[2]DPP v Board (Unreported, County Court of Victoria, 20 December 2012, Judge Hampel), [15] (‘Reasons’).
Factual basis of sentence
The first two proposed grounds of appeal concern the factual basis of the sentence. Proposed Grounds 1A and 1B are in these terms:
1AThe sentencing discretion miscarried as a result of the Judge’s having sentenced the Applicant on the basis that he had fallen asleep at the wheel. In particular, the judge erred and thus impermissibly aggravated the Applicant’s offending, in circumstances where:
(a)the Prosecutor did not open or allege that the Applicant had fallen asleep at the wheel; and
(b)Counsel for the Applicant took no issue with that part of the Prosecution Opening, and did not submit nor concede that his client had fallen asleep at the wheel.
1BThe sentencing Judge erred by imposing sentence upon the Applicant:
(a)on a basis not advanced by either party on the plea;
(b)without raising with Counsel for the Applicant the judge’s proposed adverse finding or otherwise availing Counsel of the opportunity to make submissions directed at address the proposed finding; and
(c)as a consequence of (a) and (b), by depriving the Applicant procedural fairness on a material question of fact.
Unsurprisingly, the issue of B’s drowsiness while driving was the focus of debate on the plea in mitigation. The prosecutor submitted that the case fell
into a category of not a momentary lapse in concentration but in the fatigue category where there are signs of fatigue that the driver’s aware [of] and the driver’s culpability is to be measured by the fact that he in this case fails to take appropriate action in light of the fatigue he’s feeling.
Defence counsel led evidence to show that B had subsequently been diagnosed as suffering from obstructive sleep apnoea. Counsel acknowledged, however, that it was not clear what effect the sleep apnoea would have had on B at the time of the accident. Counsel continued:
It’s clear what can’t be disputed is that [B] failed to have proper control of the vehicle and it’s highly likely given what [his wife] has said that he was tired at the time. The point or the reason that I have included this information is it perhaps goes some way to explain that [B] at the time was unaware that he had the obstructive sleep apnoea. He was certainly aware that he was tired.
The judge pointed out — and defence counsel accepted — that whether or not B knew the cause of his sleepiness, he was aware of it and, moreover, had considered pulling over but failed to do so. Later in the plea, defence counsel accepted the judge’s description of B’s driving as ‘clearly driving by somebody who was struggling to stay awake and who was drifting as a result’.
It has been argued on this application that the existence of the undiagnosed —and, to B, unknown —condition of sleep apnoea was relevant to his culpability for this offending — that is, because he did not know the cause of his sleepiness. I reject that submission. As defence counsel properly acknowledged, it was not at all clear what impact the sleep apnoea had at the particular time. In any case, as the judge rightly pointed out, what mattered was that B was aware of his sleepiness and had considered pulling over, but failed to do so.[3]
[3]Ibid [24], [55].
Her Honour referred to those factors (approved by this Court in DPP v Neethling)[4] which may aggravate the seriousness of a particular offence of dangerous driving causing death.[5] Her Honour then identified three factors as aggravating the seriousness of B’s offences. The first was the number of victims: one person killed and three seriously injured. The second was the number of people put at risk: two children in the other car, and other road users.
[4] DPP v Neethling (2009) 22 VR 466, 473 [31] (‘Neethling’).
[5]Reasons, [19].
The third aggravating factor was that B had continued to drive while drowsy. As her Honour expressed the point:
[Y]ou knew you were tired, and that your driving had been erratic for some distance, up to three kilometres. Despite the number of times you drifted and recovered you did not stop when you could have, but chose to keep driving.[6]
[6]Ibid [24].
The applicant contends (by reference to a passage to which I will refer shortly) that the judge in fact concluded — erroneously and impermissibly— that B had actually fallen asleep. Of course, the sentencing reasons have to be read as a whole. But it seems to me inevitable that, if her Honour had made such a significant factual finding, she would have made reference to it quite specifically here, when she was dealing with this particular aggravating feature of the offending. Her Honour made no such reference. That confirms the clear impression, gained from reading the sentencing reasons as a whole, that her Honour made no such finding.
I asked counsel for B why, if there was such a significant finding about falling asleep, it was not mentioned in her Honour’s list of aggravating factors. Counsel submitted that this had nothing to do with aggravating factors. Rather, it was said, this was simply ‘a misstatement of the facts, which renders the offence a more serious example of such offending’. But that is precisely what is meant by an aggravating factor. That is to say, the presence of an aggravating factor renders the particular offender’s conduct a more serious instance of the relevant offence than it would have been had that factor not been present.[7]
[7]See, eg, R v Storey [1998] 1 VR 359; Elyard v The Queen [2006] NSWCCA 43, [4]; R v Priestley (2002) 137 A Crim R 289, 292 [14].
Her Honour then dealt at some length with B’s good character and with what she described as the ‘exemplary life’ he had lived for the last 30 years, before continuing in these terms:
There are no winners in a case such as this. If I had to consider your personal circumstances alone I would see no need to impose a term of imprisonment on you. But that is not the only consideration. General deterrence, just punishment and denunciation all must be given proper weight. Driving cases where lives are lost and change[d] forever are often cases where we are called upon to sentence otherwise good and decent people to imprisonment.
I see no option if I am to apply sentencing principles that I have identified properly other than to sentence you to a term of immediate imprisonment. It must be long enough to properly reflect your moral culpability for the life taken and the injuries inflicted on the three victims, to reflect the needs of general deterrence, just punishment and denunciation.
Cars can be very dangerous weapons. People who are tired and cause enormous harm as your case demonstrates, otherwise good, careful and responsible people can cause enormous harm — if they make a decision to keep on driving when they are tired. The force of a car no longer under the control of a driver who has gone to sleep has the potential to cause enormous harm and injury to other road users and that is exactly what happened here. We must make it clear to people who drive that if they are tired they must stop, that it is not sufficient to say I am nearly there, I will keep on going, or to say I think I will be all right. You imperil yourself and others. We must make that message very clear that people must take responsibility for stopping in such circumstances, no matter what inconvenience might be caused.[8]
[8]Reasons, [68]–[70] (emphasis added).
The emphasised sentence is the basis of this proposed ground of appeal. In my opinion, the ground is without substance. It is plain on a fair reading of these paragraphs that her Honour was making a general statement — incontestably correct — about how dangerous a vehicle becomes when, because of the effects of tiredness, the driver ceases to be in control of the vehicle. That was — as her Honour correctly said — exactly what had occurred here. Because of the effects of tiredness, B ceased to be in control of his vehicle. As already noted, it was properly conceded by defence counsel on the plea that his driving was that of someone ‘struggling to stay awake’.
It may be accepted that there is a qualitative difference between feeling sleepy and actually falling asleep. But it is an immaterial distinction when — as here — the driver’s sleepiness results in a loss of control of the vehicle, the conscious will of the driver no longer being in command of the vehicle. As the decision of this Court in DPP v Oates[9] clearly demonstrates, the Court’s assessment of culpability in a case such as this focuses on:
·how the loss of control came about;
·whether the driver had forewarning of the danger associated with the loss of control; and
·whether the driver took any steps to avert the risk.
[9]DPP v Oates (2007) 47 MVR 483 (‘Oates’).
Even assuming that it is a material distinction (contrary to the view I have expressed), it is not arguable, in my view, that her Honour made any such finding about B falling asleep. On a fair reading of the sentencing reasons and of the exchanges between the judge and defence counsel on the plea, there was a common understanding of the factual basis on which sentence was to be imposed. It is not reasonably arguable that the judge went outside that agreed basis.
Guidance from appellate decisions
Under the next proposed ground it is contended that the judge allowed her sentencing decision to be improperly governed or constrained by the decision of this Court in DPP v Janson.[10] Proposed ground 3 is in these terms:
The sentencing discretion miscarried because in its exercise the Judge improperly steered by the circumstances of, and the sentence imposed by the Court of Appeal in, DPP v Janson (2011) 31 VR 222. In particular, the Judge erred by:
(a)expressly or impliedly regarding Janson as a ‘benchmark’ which was determinative, or near-determinative, of the sentence imposed; and
(b)undertaking a comparative analysis inimical to the instinctive synthesis and at odds with the Court of Appeal’s judgment in Hudson v R (2010) 30 VR 610.
[10](2011) 31 VR 222 (‘Janson’).
In the course of submissions on the plea, defence counsel helpfully drew her Honour’s attention to a number of appellate decisions dealing with similar offences, including the decisions in Oates and in Janson. As this Court has said repeatedly, it will usually be of considerable assistance to the sentencing court for counsel on both sides to draw attention to what are said to be comparable cases. Such reference is likely to assist the judge in identifying the appropriate sentencing range for the particular offence and offender.[11]
[11]Hudson v The Queen (2010) 30 VR 610, 617 [28]–[29].
This Court has very recently reaffirmed the importance of comparable cases in the identification of the sentencing range applicable to the case at hand. In Anderson v The Queen,[12] the Court (Redlich, Weinberg and Harper JJA) endorsed the statement by Redlich JA in Ashdown v The Queen that it is:
[current sentencing practices], as revealed by those comparable cases concerned with the relevant category of seriousness of the offence, that will generally inform the range of sentences that are reasonably open to the sentencing judge.[13]
[12][2013] VSCA 138 (‘Anderson’).
[13]Ashdown v The Queen [2011] VSCA 408, [174] (emphasis added), cited in Anderson [2013] VSCA 138, [22]. See also DPP v Terrick (2009) 24 VR 457, 475–6 [76].
In the present case, the following exchange took place in the course of argument on the plea where, as is conventional in the course of debates of this kind, there is reference to what is similar and what is different as between the present case and the appellate decisions in question:
HER HONOUR: No, no, I’m troubled because I have to sentence consistently with principle and Oates and Janson are both appeals from decisions of mine and I’ve got to be mindful of the way I reasoned in each of those cases and what the Court of Appeal said about my reasoning in those cases.
[DEFENCE COUNSEL]: I wasn’t aware that Your Honour was the judge at first instance in Oates.
HER HONOUR: Yes.
[DEFENCE COUNSEL]: Your Honour’s very familiar with sentencing principles in these sorts of cases.
HER HONOUR: And with having been corrected by the Court of Appeal in Janson and having been corrected but not overturned in Oates.
[DEFENCE COUNSEL]: Yes. In relation to the factual or the facts of Oates, it’s different. Your Honour’s correct in the sense that Oates was a person who stopped and then went again and it was inattention. But it was similar in the sense that it was tiredness. Mr Board has no history of falling asleep at the wheel or anything of that nature and he had had a good sleep the night before, he had adequate rest.
HER HONOUR: But he knew he was tired at the time.
[DEFENCE COUNSEL]: He did know he was tired at the time.
HER HONOUR: And the driving as witnessed by others was clearly driving by somebody who was struggling to stay awake and who was drifting as a result.
[DEFENCE COUNSEL]: Yes.
HER HONOUR: Both had a number of warnings.
[DEFENCE COUNSEL]: Yes.
HER HONOUR: That’s why it’s different from Oates.
[DEFENCE COUNSEL]: Yes, Your Honour.
HER HONOUR: And why it’s different too from Janson.
[DEFENCE COUNSEL]: Yes, well Janson I think had another death, there were two deaths in Janson.
HER HONOUR: Yes, but Janson was under the speed limit, just not seeing the red light.
The applicant draws attention to the following statement by the judge in the course of the prosecutor’s reply:
[PROSECUTOR]: [M]y submission is that really three and a half years is the rock bottom of a proportionate sentence and obviously Your Honour in this case could have a longer than usual non-parole period in the order of 50 per cent, you don’t get to see them very often below 50 per cent, so that would be a 21 month non-parole period. Now that’s in my submission sadly, and I don’t like having to say it, the lowest proportionate sentence that can be imposed in this case. Now I’m not saying to Your Honour that it isn’t obviously open to Your Honour to go below that in an exercise of mercy, but that would be a matter for Your Honour’s instinctive reaction to the totality of the circumstances before you and I can’t obviously second-guess that. All I can say is that if that was part of your sentencing outcome then it obviously would have been taken into account in any further consideration of this matter.
HER HONOUR: Having regard to my history in sentencing in these matters in the past I’m particularly conscious of the need not to give too much weight to an instinctive response but to ensure that I am properly applying principle. There is a risk that whilst intuitive synthesis is important that the instinctive response may not properly balance the needs of general deterrence.
[PROSECUTOR]: And denunciation.
HER HONOUR: With other matters and may not properly take into account the analysis of the proportionate sentence and the need for cumulation given the number of victims.
[PROSECUTOR]: Yes.[14]
[14]Emphasis added.
The applicant’s submission is that the highlighted remarks ‘prima facie reveal on the judge’s part a tension between her understanding of sentencing by “instinctive synthesis” or “response” and the proper application of principle’. There is no substance in that contention, in my view. Her Honour was making the perfectly correct point that sentencing is not ‘instinctive’ in the ordinary sense of that word at all. Rather, the process of what is called ‘instinctive synthesis’ involves taking into account all the relevant circumstances and all the applicable sentencing principles, including general deterrence. This was an orthodox statement of sentencing law, entirely consistent with what the High Court said in Wong v The Queen[15] and in Markarian v The Queen[16] about the nature of ‘instinctive synthesis’.
[15](2001) 207 CLR 584, 611–12 [74]–[76].
[16](2005) 228 CLR 357, 373–5 [36]–[39].
The applicant then draws attention to the following paragraphs of the judge’s reasons, referring to differences between the present case and Janson:
I consider Janson must guide me in determining the appropriate sentences here. That is, first, that an individual sentence for dangerous driving causing serious injury or causing death of two years, six months, for dangerousness above the lower end of the scale was lower than would be appropriate if sentencing at first instance, even if there were evidence of psychological suffering of the extent experienced by Mr Janson.
And secondly, that a sentence of 12 months’ imprisonment for dangerous driving causing serious injury and without cumulation is justified only to avoid double punishment. It follows that if sentencing at first instance for an offence of dangerous driving causing death falling above the lower end of the scale there must be some cumulation for each successive charge and the individual sentences for dangerous driving causing serious injury must be greater than 12 months’ imprisonment.
…
[The victims in the other car] are neither particularly forgiving nor particularly vengeful. Although in Marsh the court considered that the attitude of the victims could be relevant to the exercise of the sentencing discretion, there is nothing in the circumstances here which in my view arising out of the victim’s attitudes which would place this case in an exceptional category.
By contrast, in Janson the victim impact statements made clear how deep and long lasting the grief of the families of the children who were killed, was. That was referred to particularly by Neave JA, and she referred to that specifically as a relevant feature which weighed heavily against the weight to be given to Mr Janson’s suffering.
Coming back to the analysis of the differences, with the consequences between you and Janson; unlike Mr Janson you have been able to carry on with your normal activities. You had already retired from your previous occupation as a painter but your church activities and volunteer work, to which I will refer to in more detail shortly, have continued unabated and you have continued to drive.[17]
[17]Reasons, [35]–[36], [47]–[49].
The submission for B is that her Honour treated the decision in Janson as a ‘benchmark,’ and hence as ‘determinative or near-determinative’ of the sentence she should impose. It is further objected that the judge ‘directly compared the facts and sentences’ in Janson with the present case in arriving at the sentence imposed.
That submission is misconceived, in my view. Her Honour was doing no more than was required of her. That is, it was both necessary and appropriate for her Honour to pay careful attention to recent appellate decisions on sentencing for offences of this kind, both for such guidance as they might provide on the applicable principles and in order to determine whether, and to what extent, they could be regarded as comparable cases. The plurality judgment of the High Court in Hili v The Queen affirmed that past sentences ‘stand as a yardstick against which to examine a proposed sentence,’[18] and that the greatest guidance is likely to be obtained from the sentences ‘imposed in cases most closely comparable with the present’.[19]
[18](2010) 242 CLR 520, 537 [54] (‘Hili’), citing DPP (Cth) v De La Rosa (2010) 243 FLR 28, 98 [304].
[19] Hili (2010) 242 CLR 520, 540 [62].
The judgment about whether cases are comparable or not is a matter for the sentencing judge. It is a task to be carried out in the way that her Honour carried it out, with the considerable assistance of defence counsel.
Manifest excess
The final proposed ground is that the individual sentences, and the overall sentence, are manifestly excessive. In my opinion, this ground too is not reasonably arguable.
This Court has repeatedly pointed out that the ground of manifest excess is very difficult to establish. The question is not what sentence the appeal judges might have imposed had they been sentencing B for these offences. It is whether the sentence imposed has been demonstrated to fall outside the legal limits within which the judge’s discretion was exercisable. That reflects the clear policy of criminal justice in this State, that sentencing is for sentencing judges and that this Court will only interfere when it is demonstrated that something has gone badly or obviously wrong or — in the language of our recent decisions — that it was not reasonably open to the judge, giving proper weight to all relevant circumstances, to impose the sentence which she did.[20]
[20]See DPP v Karazisis (2010) 31 VR 634, 662–3 [127]; Clarkson v The Queen (2011) 32 VR 361, 384 [89]; Mokbel v The Queen [2013] VSCA 118 [106].
In this case, I consider that the sentences were well within the range which was reasonably open to her Honour. Decisions of this Court establish the following principles relevant to sentencing in cases such as these:
1. The driver’s moral culpability must be taken into account, together with the ‘objective dangerousness’ of the driving.[21]
[21]Neethling (2009) 22 VR 466, 473–4 [34]–[37].
2. A person who drives dangerously, knowing of a risk associated with his driving, will (other things being equal) be adjudged more blameworthy than one who drives in the same dangerous manner without that knowledge.[22]
[22]Towle v The Queen (2009) 54 MVR 543, 559–60 [50]–[51].
3. The Court’s assessment of the dangerousness of the driving will be informed by the extent of the risk which the driving created, as well as by the extent of potential harm should the risk materialise.[23]
4. General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.[24] The importance of care in driving, given the risks associated with dangerous or careless driving, underpins the need for sentences to be imposed which will deter others from following a similar course of driving dangerously.
[23]Ibid 563 [66]–[68].
[24]Neethling (2009) 22 VR 466, 472–3 [30]–[32]; Janson (2011) 31 VR 222, 230 [35].
Applying those principles, it can be seen that this was a very serious instance of this kind of offending. Driving while drowsy is a highly dangerous activity. As pointed out earlier, the effect of drowsiness is that the driver loses control of the vehicle, and an uncontrolled vehicle is likely to cause death or serious injury. The risk actually created is great, and the potential harm is likewise very great.
B’s culpability was high, in my view, because he was fully aware of his own drowsiness and of the risk which that created, and was conscious that because of that risk he should stop driving without delay. There was apparently nothing to prevent him pulling over but he did not do so and he continued to drive with knowledge of the very grave risk that that created.
Her Honour was of the same view as to culpability. In her reasons, she stated the following:
Your counsel in the course of his thorough, careful and very considered plea acknowledged correctly that this was not low end of the scale dangerous driving. You were aware that you were tired and must be taken to have made a conscious choice to continue driving. As Mr Walters’ statement makes clear, you were seen to be driving erratically for a considerable distance, up to three kilometres on a winding road, before you drove into the path of that oncoming car driven by Mr Helmore. It was acknowledged that you could have pulled over to the verge on the side of the road at any time. The number of separate acts of veering, both across and outside your line and within it, describe what properly is described as a pattern of erratic driving over a considerable distance.
This is not a case of ‘unthinking negligence’, to use the term used by the Court of Appeal in DPP v Janson … Nor is it, to apply the words used by Weinberg JA and King AJA in Marsh v The Queen … to the facts of this case, a case of momentary inattention resulting in unforeseen and unforeseeable consequences. To the contrary, the collision was an entirely foreseeable result of your having chosen to continue driving at a time when you knew that you were drowsy, and when your car had already, on a number of occasions, veered significant distances from its proper course before its path was corrected.
The authorities to which I have been referred make it clear therefore that your moral culpability is higher, significantly higher than that attaching to drivers whose momentary inattention results in unforeseen and unforeseeable but catastrophic consequences. The Court of Appeal has repeatedly said a term of imprisonment is usually warranted for cases of dangerous driving causing death, except where moral culpability is low.[25]
[25]Reasons, [15]–[17] (citations omitted).
These were, in my opinion, moderate sentences in the circumstances. Notwithstanding the strong mitigating factors on which reliance could be placed, the sentences were well within range.
BUCHANAN JA:
I agree.
MAXWELL ACJ:
The order of the Court is: application for leave to appeal be refused.
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