Camin v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0001

RILEY CAMIN	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, KENNEDY and TAYLOR JJA
WHERE HELD:	Shepparton
DATE OF HEARING:	5 June 2024
DATE OF JUDGMENT:	7 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 124
JUDGMENT APPEALED FROM:	DPP v Camin (County Court of Victoria, Judge Brookes, 7 December 2023)

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CRIMINAL LAW – Leave to appeal – Sentence – Dangerous driving causing death – Dangerous driving causing serious injury – 18 year old applicant failed to recognise intersection and to stop at stop sign – Driver of other vehicle in collision sustained fatal injuries as result of collision – Front seat passenger in offender’s vehicle sustained complex trauma as result of collision – Sentenced to total effective sentence of 2 years’ detention in a Youth Justice Centre – Whether sentence manifestly excessive – Sentence not wholly outside the range of available sentencing options – Leave to appeal refused.

Minutolo v The King [2023] VSCA 300; Leddin v The Queen [2014] VSCA 155, DPP v Neethling (2009) 22 VR 466, applied; DPP v Lewis [2019] VCC 1174; DPP v Sameri [2019] VCC 2218, distinguished.

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Counsel
Applicant:		Ms S Locke
Respondent:		Ms E Ruddle KC
Solicitors
Applicant:	Slater Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KENNEDY JA
TAYLOR JA:

On 7 December 2023, following an earlier plea of guilty, the applicant was sentenced by a County Court judge at Shepparton as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Dangerous driving causing death[1]	10 years’ imprisonment	2 years’ detention in a Youth Justice Centre (aggregate)	N/A
2	Dangerous driving causing serious injury[2]	5 years’ imprisonment		N/A
Total Effective Sentence:		2 years’ detention in a Youth Justice Centre
Non-Parole Period:		N/A
Pre-sentence Detention Declared:		Nil
Section 6AAA Statement:		Total Effective Sentence 3 years’ imprisonment Non Parole-Period 2 years
Other Relevant Orders: 1. Licence cancelled and disqualified from driving for 18 months

[1]Contrary to Crimes Act 1958, s 319.

[2]Ibid.

The applicant seeks leave to appeal on the following proposed ground:
The aggregate term of youth detention imposed on charges 1 and 2 is manifestly excessive.
For the reasons set out below, we will refuse leave to appeal.

Circumstances of the offending[3]

[3]DPP v Camin (County Court of Victoria, Judge Brookes, 7 December 2023) [3]–[21] (‘Sentencing Reasons’).

The applicant was 18 years old at the time of the offending. He was the holder of a New South Wales probationary driver’s licence.
The first victim, Alexander William Eagle, was 69 years old at the time of the offending. The second victim, Lachlan Turpin, was 18 years old at the time of the offending.
On 20 January 2023, at approximately 10:35 pm, the applicant was driving in a northerly direction on Dunbar Road, with Mr Turpin as the front seat passenger, when he collided with a utility being driven by Mr Eagle who was driving east along Lancaster Road.
The location of the collision was at the intersection of Dunbar Road and Lancaster Road. The area would be classified as rural with farmland on each side. Lancaster Road is a two way, two-lane sealed bitumen road running in an east/west direction. Opposing lanes were divided by a single broken painted white line. The bitumen shoulders on each side abutted long grass and rural fencing. A channel ran parallel to the road on the northern side. The applicable speed limit was 100 kilometres per hour.
At approximately 80 metres south from the intersection with Lancaster Road located on the eastern shoulder of Dunbar Road, was a yellow sign with a stop sign ahead symbol affixed to a metal pole. At the intersection of Dunbar and Lancaster Roads, a single stop sign was also erected on the western shoulder of the road and a painted stop line was applicable to north-bound traffic on Dunbar Road.
At the time of the collision the road was dry, the weather was fine, visibility was good and traffic was light. It was dark and there was no street lighting.
The applicant approached the Lancaster Road intersection in a northerly direction along Dunbar Road, but failed to recognise the intersection, approaching it at a speed apparently not in excess of the speed limit. The applicant braked heavily about 10 metres south of the intersection, failing to stop at the stop sign and skidding through the intersection with Lancaster Road.
Expert opinion from a police Accident Reconstruction Specialist opined that, at the time of the collision, Mr Eagle was travelling at approximately 89 kilometres per hour. Further, that the applicant was travelling at approximately 85 kilometres per hour, reduced from 102 kilometres per hour that he was travelling at the commencement of the skid marks.
At the time of the collision, the front of the applicant’s vehicle impacted the driver’s door of Mr Eagle’s vehicle as it was travelling eastbound. This saw both Mr Eagle and the applicant’s vehicles leave the eastbound north lane of Lancaster Road and travel in a north-easterly direction to the north-east shoulder of the intersection.
Mr Eagle’s vehicle rolled and came to rest on the driver’s side facing south-west. Mr Eagle was trapped in the vehicle between the B-pillar of the vehicle and the vehicle dash that had been pushed in. He was unresponsive, having sustained multiple fatal injuries as a result of the collision. He was pronounced deceased on the scene by paramedics. These facts constitute dangerous driving causing death (charge 1).
The applicant and Mr Turpin managed to extricate themselves from the applicant’s vehicle. Upon police arrival, Mr Turpin was lying next to the vehicle, conscious and breathing, but experiencing extensive pain in his legs. Mr Turpin was treated on the scene by paramedics before being flown to hospital where he was admitted.
The applicant spoke to several people at the accident scene including police officers, stating that he ‘missed the intersection’ and that he and Mr Turpin were talking. Further, that he lost where he was in relation to the intersection and had gone through the stop sign. He was arrested at the scene before being conveyed to hospital for assessment.
On 21 January 2023, a record of interview was conducted by police during which the applicant made a ‘no comment’ interview. He was subsequently charged and released on bail.
On 13 April 2023, Dr Maaike Moller from the Victorian Institute of Forensic Medicine opined, upon analysis of the relevant medical records, that Mr Turpin had sustained complex trauma as a result of the car crash, including a rupture of his diaphragm; an open fracture of his left thigh bone; complex fractures of his wrist; multiple hand bone and rib fractures; a collapsed lung; bruising of his heart and damage to his spleen and liver.
At the time of completing her report, Dr Moller noted that Mr Turpin was under specialist review and may yet experience long-term complications, including (but not limited to) difficulty mobilising and difficulty in hand function. These facts constitute dangerous driving causing serious injury (charge 2).
On 10 March 2023, a police mechanical investigator examined both vehicles involved in the collision. In respect of the applicant’s vehicle, he stated that:
(a)the vehicle was significantly damaged with damage predominantly being to the passenger side front and down the passenger side;
(b)all of the tyres were inflated and none showed signs of malfunction or failure prior to the collision;
(c)there is no evidence to suggest that the brakes were not functioning as intended pre-collision; and
(d)there were indications that both the driver’s and passenger seatbelts were being worn at the time of the collision.

Judge’s sentencing remarks

After setting out the circumstances of the offending, the judge recorded the maximum penalty for the offences, as set out above. He noted that charge 1 is a category 2 offence, such that he was required to make a custodial order unless any of the special reasons under s 5(2H) of the Sentencing Act 1991 are established.[4]
[4]Ibid [22]–[23].
The judge recorded that the applicant had no prior convictions within Victoria, although he did have limited New South Wales traffic priors of failing to wear a seatbelt, and a speeding offence for travelling between 10–20 kilometres over the speed limit. It was agreed that the applicant’s plea was given at an early stage in the proceeding.[5]
[5]Ibid [26]–[28].
The judge then turned to consider the seriousness of the offending. He recorded that the applicant’s counsel submitted that this was a case of ‘momentary inattention with horrific consequences’; that excessive speed, alcohol or drugs played no role; that the intersection is unlit; and that the applicant remained at the scene, visibly distressed and made admissions to police. He further relied on a statement of one of the first passers-by, Eloise Westervelt, that:
For cars heading north on Dunbar Road, the forward vision is pretty average. It comes up on a rise and then there is long grass and a channel bank. You have to creep right up to the corner because you can’t see what’s coming in either direction on Lancaster Road until you are right up to the intersection.[6]
[6]Ibid [30]–[34].
The judge noted that it was not disputed that the intersection in the direction in which the applicant was travelling is regulated by signage that should have attracted his attention. He also noted that in one of the victim impacts statements that it was known that the intersection was dangerous, but that the applicant should have also known this as he was a local person.[7]
[7]Ibid [32], [35].
The judge took into account various cases which had been provided to him,[8] but also noted that they did not bind his instinctive analysis. He ultimately accepted the applicant’s counsel’s submission that his momentary inattention is ‘at the lower end’ and is not appropriately to be compared to cases such as DPP v Holt,[9] which concerned a more serious offence and circumstances such as high speed, reckless driving and filming.[10]
[8]DPP v Holt [2021] VCC 1655; DPP v Lewis [2019] VCC 1174; DPP v McKernan [2019] VCC 1610; DPP v Sameri [2019] VCC 2218; DPP v Stevenson [2023] VCC 277; DPP v Ziro [2021] VCC 1187.
[9][2021] VCC 1655.
[10]Sentencing Reasons, [65]–[66].
Turning to the applicant’s personal circumstances, the judge recorded that the applicant was 18 years old at the time of the offending, and at the time of sentencing, had recently turned 19. He is the oldest of three siblings. His family lived in Kyabram, but he was living with his grandparents in New South Wales when he obtained his licence to assist with his apprenticeship. The applicant was diagnosed with dyslexia and ADHD as a child, and his younger brother (to whom he was very close) was diagnosed with high functioning autism spectrum disorder. He has been engaged with psychologist Suzie Crawford since 22 February 2023. Ms Crawford’s evidence was that the applicant has fully engaged in the therapeutic process and is well supported.[11]
[11]Ibid [36]–[37], [38], [43].
The judge recorded that the applicant has almost completed an Engineering Fabrication apprenticeship and is employed. His employer provided a positive character reference, as had one of his teachers. The applicant’s employer has indicated that he will keep his job for him to return to, following completion of his sentence. Mr Nicholson (senior vice president of his football club) also provided a glowing reference of his character.[12]
[12]Ibid [40]–[42].
The judge therefore considered that the applicant was well supported by family, friends and members of the local community. Further, that the applicant had taken responsibility for his offending from the outset and struggled to cope with the knowledge of the consequences of his offending. It was also to the applicant’s credit that he recognised the seriousness of the offences and did not pursue a non-custodial sentence.[13]
[13]Ibid [44]–[45].
The judge considered that there was ‘much evidence’ before the court of the applicant’s ‘genuine and heartfelt remorse’ for the offending. This was reflected in letters of support (including from Mr Turpin’s mother), a letter from the applicant to Mr Eagle’s family, his conduct at the scene, and his pleas of guilty.[14]
[14]Ibid [47].
The judge noted that the applicant was a young man with no criminal history, who took responsibility for his offending immediately by making admissions at the scene and pleading guilty at the earliest reasonable opportunity. The applicant had strictly complied with his bail conditions and had not committed any further offences. He also considered that the applicant’s commitment to his apprenticeship and employment speaks highly of his prospects for rehabilitation.[15]
[15]Ibid [48]–[50].
The applicant was also entitled to a substantial benefit for his early plea of guilty.[16]
[16]Ibid [48], [51].
The judge noted that the applicant’s counsel had submitted that the appropriate disposition was a Youth Justice Centre order pursuant to s 32 of the Sentencing Act 1991, and that the respondent had conceded that this disposition was appropriate.[17] He noted that a pre-sentence report[18] dated 28 November 2023 concluded that the applicant had ‘strong prospects for rehabilitation’. The judge also considered that the applicant was impressionable and likely to be subject to undesirable influences in adult prison.[19]
[17]Ibid [52], [55].
[18]Section 32(1) relevantly provides that the court may make a Youth Justice Centre order if it has received a pre-sentence report and believes there are reasonable prospects for rehabilitation of the young offender (s 32(1)(a)) or the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison (s 32(1)(b)).
[19]Sentencing Reasons, [58], [61]–[63].
In formulating his sentence the judge summarised the victim impact statements.[20] He noted the obvious ‘pain and rawness’ that the family are still experiencing at the loss of Mr Eagle.[21] The statements included a letter from Mr Eagle’s wife of 48 years, Moira Eagle, who struggles to live without him. She said that the night of 20 January 2023 had ‘changed her life forever’ and that his absence during a recent freak storm ‘nearly broke her.’[22]
[20]The judge referred to the victim impact statements of Moira Eagle (Mr Eagle’s wife), Tim Eagle, Michael Eagle and Melissa Hoornweg (Mr Eagle’s children), and Sue Scott and Jan Petzke (Mr Eagle’s sisters-in-law). There was also the victim impact statement of another of Mr Eagle’s sisters-in-law, Kerry Morey.
[21]Sentencing Reasons, [67].
[22]Ibid [71]–[72].
The judge considered that it was to the applicant’s credit that both Mr Turpin and his mother had forgiven him and that Mr Turpin’s mother considers that imprisoning the applicant would not benefit him or Mr Turpin. However, the judge considered that factors relating to just punishment and general deterrence meant that a custodial sentence must be imposed.[23]
[23]Ibid [76].
The judge also had regard to a letter from the applicant’s mother, to the effect that imprisonment will impact on the applicant’s younger brother’s wellbeing and mental health greatly. Further, that the tragic incident has ‘forever changed’ their family, with the applicant having become a ‘withdrawn, defensive and broken individual’. He also noted that the court has to take into account evidence of character, in sentencing, and that the letter from the applicant’s former teacher, Ms Stockdale, was instructive in stating that he was a person of good character, who went out of his way to help others.[24]
[24]Ibid [77]–[80].

Proposed ground of appeal — manifest excess

Applicant’s submissions

The applicant submitted that the term of detention imposed is manifestly excessive having regard to the powerful mitigating features, the objective gravity of the offending and the applicant’s low moral culpability.
The applicant highlighted that the offending did not exhibit any of the features of recklessness frequently seen with young men such as speeding, alcohol or drugs and that it fell towards the lower end of seriousness, as conceded by the prosecution. He submitted that this was a case of ‘momentary inattention, albeit with tragic consequences, on a long, straight, rural road at an intersection that was not illuminated by any street lighting’. Further, that the applicant’s post-offence conduct by remaining at the scene and making admissions to police, reflected his integrity and genuine remorse.
The applicant submitted that his personal circumstances meant that specific deterrence had little role to play. Further, that although general deterrence needed to be reflected in the sentence imposed, his prospects of rehabilitation were of primary importance. He highlighted that he was a young offender,[25] had no prior convictions, was remorseful and had excellent prospects for rehabilitation. In particular, despite his diagnoses of dyslexia and ADHD, he was close to completing his apprenticeship. Further, he was a much-valued employee and his employer intended to try to keep his job available for him upon his eventual release from custody. The consequences of offending weighed heavily on him and he was able to call on the significant benefits that flow from an early plea of guilty.
[25]As defined in the Sentencing Act 1991, s 3(1).
The applicant also relied on DPP v Lewis (‘Lewis’)[26] and DPP v Sameri (‘Sameri’),[27] and submitted that in both cases the gravity of the offending and the offender’s moral culpability were much greater than in the applicant’s case.
Respondent’s submissions
[26][2019] VCC 1174.
[27][2019] VCC 2218.
The respondent submitted that the applicant has failed to demonstrate that the judge erred in imposing a sentence that is manifestly excessive.
The respondent highlighted that the offence of dangerous driving causing death is an ‘inherently serious offence’ involving the taking of a human life. The maximum penalty of 10 years’ imprisonment, as well as 5 years for dangerous driving causing serious injury, reflect Parliament’s view of the gravity of the offending. Ordinarily, a sentence of imprisonment must follow. Dangerous driving causing death is also a category 2 offence, such that a judge must impose a term of imprisonment unless s 5(2H) applies.[28]
[28]The respondent highlighted that it was conceded on the plea that s 5(2H) does not apply, and no submission was made to the contrary to this Court.
Although not seeking to resile from the prosecution position at plea, the respondent submitted that the applicant’s driving involved ‘more than mere momentary inattention’ when looked at globally. It submitted that the applicant failed to keep a proper lookout (likely as a result of talking to Mr Turpin), resulting in him missing the ‘stop sign ahead’ sign at 80 metres from the intersection, as well as the ‘stop’ sign at the intersection, and indeed the intersection itself, until he was around 10 metres before the intersection. The observations of Ms Westervelt had limited applicability where the applicant failed to observe the intersection itself, not just oncoming traffic, which would have been obscured by the long grass and channel bank.
The respondent also highlighted that the consequences of death and complex trauma were grave and that the lasting and profound impact of Mr Eagle’s death is apparent from the victim impact statements.

The respondent conceded that the offending was absent many of the aggravating features often seen in driving cases,[29] however submitted that such matters are not ‘some mere checklist’. It further submitted that the experience of the driver is also a relevant consideration to the assessment of culpability.[30] In this case, the applicant was plainly an inexperienced driver, who must realise that his inexperience creates risks for himself, passengers, and other road users.[31] The respondent also highlighted that, notwithstanding the applicant’s limited time as a licenced driver, his New South Wales Traffic Record shows two prior traffic matters.
[29]Citing R v Whyte (2002) 55 NSWLR 252, 286 [216]–[217] (Spigelman CJ); [2002] NSWCCA 252, adopted in DPP v Neethling (2009) 22 VR 466, 473 [31] (Maxwell P, Vincent JA and Hargrave AJA); [2009] VSCA 116 (‘Neethling’).
[30]Citing Stephens v The Queen (2016) 50 VR 740, 747 [25] (Redlich, Santamaria and Beach JJA); [2016] VSCA 121.
[31]Citing Neethling (2009) 22 VR 466, 475 [43] (Maxwell P, Vincent JA and Hargrave AJA); [2009] VSCA 116.
The respondent conceded that the applicant had much to call upon in aid on the plea hearing. However, it contended that the ‘constellation of factors’ present in this case (eg lack of criminal history, lack of drugs or alcohol involved, high levels of remorse, full admissions and good prospects for rehabilitation) are routinely before the courts in such matters.[32]
[32]Citing eg DPP v Lombardo (2002) 302 A Crim R 329; [2022] VSCA 204; Woldesilassie v The Queen [2018] VSCA 285; DPP v Singh [2016] VCC 1826; DPP v Wilson [2016] VCC 2059; DPP v Perry [2017] VCC 1383; DPP v Vandergeest [2018] VCC 1324; DPP v Ratol [2019] VCC 416.
The respondent further highlighted that the applicant fell to be sentenced for two charges, each of which represented separate criminality and a separate victim, and submitted that the principle of totality is not diminished by the imposition of an aggregate sentence. It also submitted that mitigatory matters had to be balanced against the seriousness of the offending, and that in cases of dangerous driving causing death or serious injury, general deterrence must be regarded as of great importance.[33] The respondent submitted that the applicant’s youth, whilst a relevant consideration, assumed less relevance than it may otherwise have for other types of offending.[34] Further, that the judge appropriately took the applicant’s youth into account by imposing a sentence of detention in a Youth Justice Centre.
[33]Citing Neethling (2009) 22 VR 466, 477 [55] (Maxwell P, Vincent JA and Hargrave AJA); [2009] VSCA 116.
[34]Citing ibid 472 [28] (Maxwell P, Vincent JA and Hargrave AJA).
The respondent also submitted that the judge had regard to relevant comparable cases and correctly observed that they are to be taken into account, but do not bind the instinctive synthesis. The respondent highlighted that, unlike the present case, neither Lewis nor Sameri involved two dangerous driving charges. Further, that the personal circumstances of the accused in Sameri were ‘quite unique’ and ‘markedly different’ from those of the applicant.

Consideration

Recently in Minutolo v The King,[35] this Court summarised the approach when determining whether a sentence is manifestly excessive:[36]
The ground of manifest excess is only established where the sentence imposed was ‘wholly outside the range of sentencing options available’ to the sentencing judge.[37] It must be shown that ‘something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion’.[38]
[35][2023] VSCA 300.
[36]Ibid [62] (Kennedy JA and Kidd AJA) (footnotes in original).
[37]R v Abbott (2007) 170 A Crim R 306, 309–10 [13]–[15] (Maxwell P, Eames JA agreeing at 312 [22], Habersberger AJA agreeing at 312 [23]); [2007] VSCA 32.
[38]Ayol v The Queen [2014] VSCA 151, [30] (Maxwell P), citing Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157. See also Weatherburn v The King [2023] VSCA 283, [55] (McLeish, Taylor and Kaye JJA).
The tragic impact of death on the roads is highlighted by the victim impact statements in this case. A man who might have expected to share many more years with his loved ones has been struck down leaving those close to him, particularly his wife, to bear profound grief at his loss. There is also a second victim in this case who has suffered traumatic serious injuries with potentially long-term consequences.
The terrible consequences of this type of offending are reflected in the maximum penalties applicable. The maximum penalty of 10 years imprisonment (in respect of the offence of dangerous driving causing death), as well as the maximum penalty of 5 years imprisonment (in respect of the dangerous driving causing serious injury offence) reflect the seriousness with which the community regards these types of offences.
An aggregate sentence of 2 years detention in a Youth Justice Centre does not bespeak excessiveness in such a context.
It is true that there is an absence of some of the features which are often present in this type of offending, including excessive speeding, intoxication, or drug use. However the judge expressly recorded this absence. Although the judge was also correct to accept that the offending involved ‘momentary inattention’ given the way the case was conducted, it was not disputed that the intersection was regulated by signage which should have attracted the applicant’s attention.
It is also undoubtedly true that characteristics such as a guilty plea, youth, vulnerability, excellent character evidence and genuine remorse — which are present in this case — are all matters properly to be taken into account.[39] However, they are also characteristics which offenders often possess in relation to this type of offending. Youth is also given less weight in this context, where general deterrence is of primary importance.[40]
[39]Leddin v The Queen [2014] VSCA 155, [21] (Whelan JA, Weinberg JA agreeing at [31] and Beach JA agreeing at [32]).
[40]Neethling (2009) 22 VR 466 [53]–[55] (Maxwell P, Vincent JA and Hargrave AJA); [2009] VSCA 116.
Insofar as other cases were cited, they are of limited assistance. In particular, neither Lewis nor Sameri involved two dangerous driving charges. There were also unique circumstances applicable in Sameri, including the prospect of deportation, as well as a mental health condition.
Ultimately, this case highlights the multi-layered character of these tragedies. A husband, father and grandfather is dead, leaving a family devastated. A good friend has sustained serious complex trauma. Meanwhile, a young, law abiding person, who is of good character is ‘broken’, and condemned to spend time in youth detention.[41]
[41]Remarks of a similar nature were made in Leddin v The Queen [2014] VSCA 155, [28] (Whelan JA, Weinberg JA agreeing at [31] and Beach JA agreeing at [32]).
Despite the mitigatory features in this case, we are simply not satisfied that the sentence was wholly outside the range of available sentencing options.

Conclusion

The application for leave to appeal will be refused.
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[2024] VSCA 124

7 June 2024