Damian Rakatau v The Queen
[2021] VSCA 76
•26 March 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0221
| DAMIAN RAKATAU | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and McLEISH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 March 2021 |
| DATE OF JUDGMENT: | 26 March 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 76 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1318 (Judge Dawes) |
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CRIMINAL LAW – Appeal – Sentence – Culpable driving causing death – Negligently causing serious injury – Total effective sentence 13 years – Non-parole period 9 years – Moral culpability – Appellant’s cognitive deficits – High blood alcohol level – Excessive speed – Incapable of controlling vehicle because of alcohol – Whether cognitive deficits were ‘meaningful factor’ in offending – No error – Leave to appeal refused – Wright v The Queen [2015] VSCA 333; Carroll v The Queen [2011] VSCA 150.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Edney | Mr M Brennan |
| For the Respondent | Ms E Ruddle SC | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
McLEISH JA:
Summary
The applicant pleaded guilty to two charges of culpable driving causing death and one charge of negligently causing serious injury. The sentencing judge imposed a sentence of 9 years’ imprisonment on each of the culpable driving charges, and 4 years’ imprisonment on the charge of negligently causing serious injury. With cumulation, the total effective sentence was 13 years’ imprisonment and a non-parole period of 9 years was fixed.
The applicant seeks leave to appeal on a single ground which contends that the judge erred in her treatment of his significant cognitive deficits. Specifically, it is said, it was not open to the judge to conclude that the applicant’s moral culpability, and the need for general deterrence, were unaffected by those cognitive deficits.
In our view, the proposed ground of appeal is not reasonably arguable, and leave to appeal must be refused. The evidence before the judge was that the applicant was heavily intoxicated at the time of the fatal accident. His blood alcohol concentration was estimated to have been between 0.15 and 0.17 per cent, more than three times the legal limit. It was well open to the judge to find that the level of intoxication was ‘an integral factor’ in the offending and to reject the submission that the cognitive deficits played a ‘meaningful part’ in the offending.
Background circumstances
On 7 July 2018, the applicant and his partner attended an evening function at a rugby club. While he was there, the applicant and a friend consumed between them 25 cans of whisky and cola, having an alcohol content of 6.9 per cent. The applicant left the party at around 11:15pm and was driven home by his partner, who then went to bed.
Just before midnight, the applicant left home again, driving a station wagon. His driving caught the attention of other motorists, as it was erratic and appeared to be dangerous. One driver recalled being overtaken by the applicant’s car travelling at ‘a high rate of speed’. That driver saw the applicant cross double lines in order to overtake another car.
Another driver saw the applicant swerving from side to side, trying to overtake her car. At one point, the applicant was driving on the wrong side of the road and another car had to brake and swerve to avoid a collision. A different witness estimated that the applicant was travelling approximately 110 kilometres per hour as he drove up behind her.
The driver of a Honda was travelling in the same direction as the applicant. His cruise control was set at 80 kilometres per hour. He observed the applicant travelling behind him in the same direction. At the same time, he observed a Ford sedan coming towards him in the opposite direction.
The Ford was travelling at approximately 63 kilometres per hour. When the Ford was almost alongside the Honda, the applicant tried to overtake the Honda and immediately collided head-on with the Ford. The force of the impact knocked the Honda to the side of the road. The Ford was forced backwards, coming to rest in a ditch on the shoulder of the road.
There were four people in the Ford: a mother and father and their two children, a 10 year old girl and a 4 year old boy. The mother was driving. In the collision, she was crushed in the driver’s seat of the vehicle. She was taken to hospital in a life-threatening condition, having sustained a moderate traumatic brain injury, spinal injuries and severe orthopaedic injuries.
Both children were killed. The 10 year old daughter was pronounced dead at the scene and the 4 year old son died at the Royal Children’s Hospital. The father was not seriously injured.
As noted earlier, expert evidence estimated that the applicant’s blood alcohol concentration at the time of the collision would have been between 0.15 per cent and 0.17 per cent. As the judge found:
This blood alcohol content significantly affected the skills required for driving, thus rendering [him] incapable of having proper control of a motor vehicle.[1]
[1]DPP v Rakatau [2019] VCC 1318, [11] (‘Reasons’).
It was estimated that, at the time of the collision, the applicant was travelling at 115 kilometres per hour, that is, approximately 35 kilometres per hour over the speed limit. He was not licensed to drive a motor vehicle and had never held a full driver’s licence.
Cognitive impairment
On the plea, reliance was placed on a detailed report by Dr Linda Borg, a senior clinical neuropsychologist, who also gave evidence before the judge. The relevant parts of Dr Borg’s expert evidence were summarised in the sentencing reasons, as follows:
In her opinion, you do not have an intellectual disability, but aspects of your cognitive function demonstrated deficits. You have a significant difficulty with conceptual reasoning, deficits in attention and executive functioning and a likely alcohol-related mild brain injury. Your reading and spelling abilities are in an impaired range, being at a grade prep to grade one equivalent.
Your cognitive processing was moderately impaired. It fell to an impaired level with additional task complexity. When your attention is divided in complex or unfamiliar circumstances, you have difficulty in shifting your attention between competing elements. This is relevant to your ability to drive.
Dr Borg said that your cognitive impairment results in impulsive actions. You have the skills to mitigate your impulsivity when sober. However, when under the influence of alcohol, this impulsivity is exacerbated, as alcohol serves as a further disinhibitor as well as diminishing your consequential thinking. In her opinion, acute intoxication is likely to exacerbate these underlying vulnerabilities, leading to more significant deficits.
The speed of your mental processing was found to be between a borderline to impaired range. It would be a barrier to ever holding a driver’s licence. In Dr Borg’s opinion, it is unlikely that you will ever be able to obtain a driver’s licence.
She stated that you have insight into your current predicament and an awareness of the seriousness of your circumstances. You had the foresight to understand the risks of engaging in driving when intoxicated.
Dr Borg stated that she believes that you are moderately anxious, with severe levels of depression and stress.[2]
[2]Ibid [31]–[36].
As the judge noted, the defence submission was that the effect of the applicant’s cognitive weaknesses, and his levels of stress and depression, was to make incarceration more onerous for him than for others without those difficulties. Her Honour accepted that submission and took that consideration into account.
It was also submitted that the applicant’s impaired cognitive functioning lowered his moral culpability. This was said to be so because his capacity for impulse control and consequential thinking were compromised by reason of his reduced cognitive ability. The judge rejected that submission, stating her reasons as follows:
It is difficult to evaluate the extent that your cognitive function has affected your decision making and so reduce your culpability. I accept that your cognitive ability is reduced. However, given the significant quantity of alcohol you had consumed, the effect that your self-induced intoxication had on you and your ability to control any impulsive behaviour is hard to determine. Clearly, your level of intoxication was an integral factor in your offending. Your [blood alcohol content] significantly affected your ability to properly control your car. You were unable to drive safely at that level of intoxication.
Ultimately, you must satisfy the court on balance, of mitigating factors. I am unable to be satisfied to that standard that your cognitive deficit played a meaningful part in this offending.[3]
[3]Ibid [40]–[41].
The primary submission on the appeal was that the applicant’s mental state at the time was ‘of cardinal significance’. According to the submission, his cognitive deficits were ‘integral to what occurred’.
The judge was also said to have erred in failing to take account of the possibility that, while alcohol exacerbated the applicant’s cognitive impairments, those impairments still had some role in the offending. It was not a question of attributing the offending to intoxication or to cognitive impairment. Each had a role to play and the result should have been some moderation of the sentence.
Consideration
As the respondent correctly submitted, the onus was on the applicant to establish, on the balance of probabilities, that his cognitive deficits contributed to the offending in such a way as to render him less blameworthy for the offending conduct than a person who did not suffer from those deficits.[4] For that purpose, he had to show that there was a ‘realistic connection’ between the two.[5]
[4]Wright v The Queen [2015] VSCA 333, [41] (Maxwell P, Redlich and Osborn JJA).
[5]Johnston v The Queen [2013] VSCA 362, [14] (Redlich JA).
There were two significant obstacles in the way of the applicant making good that contention. First, there was compelling evidence that the applicant’s very significant state of intoxication was the causal factor in the offending. As the judge found, the level of intoxication — more than three times the legal limit — rendered the applicant incapable of having proper control of a vehicle. All of the eyewitness observations of his driving confirmed that he was driving in a highly dangerous manner.
Secondly, the neuropsychological evidence simply did not establish a connection between his cognitive deficits and his decision-making about whether to drive, and how to drive, on the evening in question. As the respondent submitted, there was no basis in the evidence for the judge to find either that the applicant’s decision to drive while intoxicated, or any relevant decision made in the course of driving while intoxicated, was linked to his cognitive deficits.
Nor did the judge err by failing to recognise that it was possible that the applicant’s intoxication and his cognitive impairments both contributed to the offending. She was clearly alive to that possibility and addressed the question of whether the cognitive deficits ‘played a meaningful part’ in the offending.
The judge’s finding on this question was a finding of fact.[6] Appellate intervention would therefore only be warranted if the finding were not reasonably open on the evidence. For the reasons we have given, her Honour’s finding was well open. Accordingly, leave to appeal must be refused.
[6]Carroll v The Queen [2011] VSCA 150, [17]–[18] (Maxwell P).
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