Brayshaw v The Queen

[2011] VSCA 233

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0306

SCOTT ANTHONY BRAYSHAW	Appellant
	v
THE QUEEN	Respondent

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JUDGES	HARPER and HANSEN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	5 August 2011
DATE OF JUDGMENT	18 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 233
JUDGMENT APPEALED FROM	R v Brayshaw (Unreported, County Court of Victoria, Judge Chettle, 10 August 2010)

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CRIMINAL LAW – Sentence – Culpable driving causing death and negligently causing serious injury – Plea of guilty – Total effective sentence of 9 years’ imprisonment and non-parole period of 6 years and 6 months – Manifest excess – General deterrence – Whether sentencing judge erred in the manner of determining the appropriate sentencing range – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr S A Moglia	Tony Hannerbery
For the Crown	Mrs C M Quin	Mr C Hyland, Solicitor for Public Prosecutions

HARPER JA:

The background to the appeal

1. The appellant pleaded guilty in the County Court and on 10 August 2010 was sentenced on one count of culpable driving causing death and one count of negligently causing serious injury, as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Culpable driving causing death [s 318 Crimes Act 1958]	20 years	8 years	Base
2.	Negligently causing serious injury [s 24 Crimes Act 1958]	10 years	2 years	1 year
Total Effective Sentence:		9 years’ imprisonment
Non-Parole Period:		6 years 6 months
6AAA Statement:		11 years’ imprisonment with a NPP of 8 years

1. While under the influence of methylamphetamine, the appellant drove a car which, at about 4.10am on Sunday 7 June 2009, collided with two trees before coming to rest.  A reconstruction of the accident by an appropriately qualified expert resulted in evidence that, at the time the appellant lost control, the car was travelling at 122 km/h.  The applicable speed limit at the location of the accident, on the Princes Highway just outside the central business district of Geelong, was 70 km/h.  The rear passenger was killed and the front passenger was severely injured.  The appellant had prior convictions for drink driving and other traffic offences.

1. The appellant did not give evidence at his plea hearing.  His instructions, which counsel put to his Honour during the course of the plea and which the judge accepted, were that he was asleep when a call came from the two friends who subsequently became his two victims.  It was very early on a Sunday morning, they were being harassed by some unfriendly people, and they wanted help to escape from a situation which was awkward, if not dangerous.  The appellant had himself been the victim of a street stabbing in 2006, so was conscious of the potential perils which his friends were facing.  The day or so before, however, he had consumed drugs.  He was not fit to drive.  The best that can be said for him was put on his plea:

The drugs were not taken proximate to the driving, but at the time the drugs were taken there was no intention to drive … and the decision to drive came later when he was affected by [amphetamines, or] ‘speed’; that affected his decision making process, and it affected the manner in which he drove.

1. There are two grounds of appeal:

(a) the individual sentences and the total effective sentence are manifestly excessive;  and

(b)the sentencing judge erred in the manner in which he determined the appropriate sentencing range.

Ground 1 – manifest excess

1. The appellant now submits that the sentences are excessive.  Reliance is placed on the evidence to which I have just referred:  that the appellant had not intended to drive, and that his decision to do so may have been clouded by the effect of drugs.  In addition, the point is made that he pleaded guilty, he demonstrated significant remorse and insight, he had a good work history, his history of drug use commenced in his teens, he suffered from depression and anxiety, and he would find prison harder because of the impending birth of his first child. 

1. It was also submitted that the sentencing judge had placed undue emphasis on deterrence.  During the course of his reasons for sentence, his Honour had said:

There has been an enormous campaign, warning of the dangers of driving under the influence of drugs.  There is currently an extensive campaign warning of the consequences of speeding, and a combination of drugs and speed make a fatal mix.  The court will impose a significant gaol sentence upon those who behave in the way you did, in the hope that strong denunciation and punishment will deter others from similar conduct.  If only one person is deterred by your sentence, the life or lives of others may be saved, and other families spared the horror and the consequences of conduct such as yours.

...

General deterrence must therefore be and is the principal sentencing consideration in this case.

1. The appellant submitted that research, albeit research published after this sentence was pronounced, indicates that the approach of his Honour to the weight to be given to general deterrence as a sentencing consideration, is inappropriate.  We were referred to a Sentencing Advisory Council paper published in April 2011 entitled Does Imprisonment Deter?  A Review of the Evidence. 

1. The general conclusion of that paper is that the threat of imprisonment has but a small ‘positive’ effect as a deterrent, and that increases in penalty are not reflected in any diminution in the incidence of offending.  The weight to be given to deterrence when arriving at an appropriate sentence is to be assessed accordingly.

1. This was not the approach adopted by his Honour.  But this is not the time or place to reconsider the weight which deterrence should be given in the sentencing synthesis.  It is sufficient to say that his Honour was correct to give general deterrence significance in circumstances where an horrific accident had caused not only the death of a young woman, but also untold anguish to her family and friends, and serious injury to another passenger.  It is likely that very few Geelong residents would be unaware of the accident and its aftermath.  The sentencing of the appellant was equally likely to be an issue of considerable community interest.  It is not often that the courts can be confident that any sentence will receive the publicity which, if deterrence is to be an effective instrument of crime-prevention, it requires.  This sentence was in that exceptional category.

1. That is not to say that, simply because an individual offender thus presented the courts with an opportunity to send a message to the community, considerations of deterrence should result in that offender being punished more severely than would otherwise be warranted.  It must always be remembered that the effect of general deterrence is to impose upon an offender an additional element of punishment which is not directly connected with the repayment of the individual offender’s debt to society, but in order to influence the future behaviour of others.  In other words, the offender becomes, through the instrumentality of his or her punishment, a vehicle by which the future conduct of others is sought to be modified.

1. Injustice would undoubtedly be done were an offender improperly to be used as a vehicle for the message which general deterrence is intended to convey.  In this case, however, the sentencing judge was justified in ensuring that, while an especially favourable opportunity to send that message was not unfairly exploited so as to result in a well-grounded grievance, nor was it wasted.  In my opinion, there is nothing in either the sentencing reasons or the sentence itself to indicate that the judge gave inappropriate weight to general deterrence as a sentencing consideration in this case.  Rather, he saw deterrence as an integral part of, indeed the culminating effect of, the other sentencing considerations of denunciation and punishment.  It is in that sense that it was ‘the principal sentencing consideration in this case.’

1. In his sentencing reasons in an earlier case of culpable driving, a case which forms the foundation for the second ground of appeal in the present case, his Honour observed that general deterrence was, and had to be, the principal sentencing consideration for offences of this nature.  The offender, a man named Williamson, was sentenced to eight years’ imprisonment for culpable driving causing death, and two years’ imprisonment for negligently causing serious injury.  One year of those two was ordered to be served cumulatively with the eight years imposed for culpable driving.  The total effective sentence was therefore nine years’ imprisonment.  Williamson was ordered to serve six years and six months before becoming eligible for parole. 

1. In other words, the punishment inflicted upon Williamson was precisely the same as that imposed by the same judge upon the present appellant.

1. In the present case, however, the sentencing judge had before him the result of the appeal instituted by Williamson following his sentence.[1]  One of the grounds upon which Williamson relied was that the eight years’ imprisonment imposed for the culpable driving, and the two years’ imprisonment imposed for negligently causing serious injury, were manifestly excessive.

   [1]R v Williamson (2009) 21 VR 330.

1. He was unsuccessful.  The Court of Appeal did not in its judgment comment adversely upon the approach of the sentencing judge to the significance of general deterrence.  On the contrary, it noted that, in the earlier appeal of R v Kennedy,[2] this Court had described the offence of culpable driving as one in which general deterrence was of more than usual importance.[3]  

   [2](2006) 45 MVR 208.

   [3]Ibid 210, [11].

1. The present appellant relied upon sentencing trends in the higher courts of Victoria in support of his submission that the sentences imposed upon him were manifestly excessive.  Statistics maintained by the Sentencing Advisory Council of Victoria and published in the Council’s Sentencing Snapshot No.111 (May 2011) show that, in the period between 2005-2006 and 2009-2010, the median sentence for culpable driving was 5 years 6 months, which can be contrasted with the eight years’ imprisonment imposed in this case.  In that period, three sentences of eight years’ imprisonment were imposed, with one of nine and one of ten years’ imprisonment.    

1. The Court of Appeal in its judgment in Williamson analysed a number of cases in which the offender was sentenced for culpable driving causing death.  In the present case, the sentencing judge drew counsel’s attention to his sentencing reasons in Williamson, and then adjourned so that counsel could consider those reasons and, if they then wished to address him about them, to do so. 

1. Counsel for the appellant took up the invitation without any suggestion that this approach to the sentencing task was ill-advised, still less contrary to law. No blame should be attached to counsel for this, although the appellant now submits that his Honour’s invitation was symptomatic of the judge’s failure to deal appropriately with earlier sentencing decisions.

1. Following the adjournment, it was submitted on behalf of the appellant that Williamson was more deserving of stern punishment than is the present appellant.  Although Williamson was 20 when his accident occurred, and the appellant at 34 years of age was 14 years older, Williamson drove immediately after a very heavy bout of drinking, and after at least one of his companions (who was to be seriously injured in the subsequent collision with a power pole) had offered to drive in his place because the companion had ceased to drink some time before.  Moreover, Williamson’s driving could be said to be even more dangerous than that of the appellant.  As against that, Williamson was, as the judge pointed out, full and frank with the police, whereas the present appellant was not.  Both had previous convictions for offences against the road traffic laws, but Williamson had a driver’s licence, whereas the appellant did not.

1. In my opinion, the differences between the circumstances of the two offenders were relevantly insignificant, and were balanced by their similarities.  In any event, it seems to me that the attempt to draw comparisons was partially misconceived.  Any attempt to draw fine distinctions, or find neat similarities, between the circumstances of broadly similar cases – or even the exercise of determining whether the distinctions are fine or broad – is fraught with difficulty.  I shall develop this point when I turn to the second ground of appeal.  In the meantime, it is sufficient to observe that the sentencing exercise should never include the ready adoption of easy assumptions – thought must always be given to whether they are as easy as they seem.

1. In my opinion, the first ground is not made out.

Ground 2 – The determination of the appropriate sentencing range  

1. The appellant submits that his Honour erred by failing to act upon the principle that comparable sentences are only a guide to the range of penalties appropriately open to the sentencing judge in any given case.  He relied upon passages from Hudson v The Queen; DPP v Hudson[4] which caution against using ‘like’ cases as anything more than, at best, ‘a general guide or impression as to the appropriate range of sentences’[5] and which state that ‘[s]entences imposed in other cases are not precedents which must be applied unless they can be distinguished.’[6]  But that, the appellant submits, is exactly what his Honour did by relying upon the sentences which he imposed upon Williamson.

   [4][2010] VSCA 332.

   [5]Ibid [29].

   [6]Ibid [31].

1. The principles enunciated in the judgment of this Court in Hudson were explicitly limited to instances ‘[w]here principles of parity do not apply’.[7]  But, in the present case, issues analogous to those which arise when parity is a live consideration are in my opinion very much to the fore.  Where a judge is to sentence an offender for the same offences, with the same maximum penalties, as those for which he or she recently sentenced another offender, and the circumstances of each offending are closely and relevantly comparable, then any disparity in the severity of the punishment would appear to the offender who received the sterner sentence to be unjust; and to the objective and disinterested observer would appear unjustifiably idiosyncratic, if not inexplicable.  Only consistency with the (analogous) principle of parity could avoid those reactions – or, in other words, could ensure that justice was not only done, but seen to be done.

   [7]Ibid.

1. In my opinion, this case was sufficiently comparable to that of Williamson as to justify the approach taken by the sentencing judge.  To be sure, the exercise required a careful examination of both, to ensure that easy assumptions were not too readily made – and to ensure that irrelevant differences were not reflected in disparate sentences.  In my opinion, those traps were avoided in this case.

1. It follows that the second ground is not made out.  That being so, the appeal must be dismissed.

HANSEN JA:

1. I agree with Harper JA.

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