Dillon James Stocks v The Queen
[2017] VSCA 137
•14 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0183
| DILLON JAMES STOCKS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH, SANTAMARIA AND FERGUSON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 March 2017 |
| DATE OF JUDGMENT: | 14 June 2017 |
| May 2017 | [2017] VSCA 137 |
| JUDGMENT APPEALED FROM: | DPP v Stocks (Unreported, County Court of Victoria, Judge Parsons, 15 August 2016) |
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CRIMINAL LAW – Sentence – Appeal – Indictable offences – Related summary charges – Sentenced to imprisonment on summary charges – First offence – Sentences invalid – Appeal allowed – Appellant resentenced on summary charges – Other sentences and orders for cumulation confirmed – Appellant resentenced to 4 years and 2 months’ imprisonment and fines of $400 with non-parole period of 2 years and 6 months – Road Safety Act 1986 ss 49(2A)(a), 49(3AAA)(a).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C G Mandy | Victorian Aboriginal Legal Service |
| For the Crown | Mr C B Boyce SC with Mr M D Stanton | John Cain, Solicitor for Public Prosecutions |
REDLICH JA
SANTAMARIA JA
FERGUSON JA:
Introduction
On 18 April 2016, the applicant, now aged 22, pleaded guilty to three charges of negligently causing serious injury contrary to s 24 of the Crimes Act 1958 and two related summary charges arising from a vehicle collision on 28 March 2015.
Following a plea hearing on 18 April, 4 July and 28 July 2016, the applicant was sentenced on 15 August 2016 as follows:
Indictment F14068449
Charge
Offence
Maximum
Sentence
Cumulation
1
Negligently causing serious injury [s 24 Crimes Act 1958]
10 years [s 24 Crimes Act 1958]
3 years and 6 months
Base
2
Negligently causing serious injury
10 years
3 years and 6 months
4 months
3
Negligently causing serious injury
10 years
3 years and 6 months
4 months
Related Summary Charges
8
Exceed prescribed concentration of alcohol in the blood within 3 hours of driving [s 49(1)(g) Road Safety Act 1986]
20 penalty units (first offence) [s 49(2A)(a) Road Safety Act 1986]
3 months
1 month
9
Exceed prescribed concentration of drugs in the blood [s 49(1)(bb) Road Safety Act 1986]
12 penalty units [s 49(3AAA)(a) Road Safety Act 1986]
3 months
1 month
Total Effective Sentence: 4 years and 4 months’ imprisonment Non-Parole Period: 2 years and 9 months’ imprisonment Pre-sentence detention declaration: 42 days Section 6AAA statement: Total effective sentence of 6 years’ imprisonment with a non-parole period of 3 years and 6 months. Other relevant orders: Licence disqualification for 2 years from 4 July 2016; Forensic Sample Order
Proposed grounds of appeal
The applicant now seeks leave to appeal his sentence on the following grounds:
1 The sentences imposed on the ‘related summary offences’ are invalid.
2The individual sentences and orders for cumulation on the counts of negligently causing serious injury are manifestly excessive, and fail to give appropriate weight to the matters in mitigation.
During the course of oral argument, the applicant was given leave to amend his application for leave to appeal by adding a further proposed ground of appeal as follows:
The learned sentencing judge erred in a) rejecting the submission as to a causal connection between the [applicant’s] impaired mental functioning and his offending, and consequent reduction in moral culpability; and b) failing to give sufficient weight to the prospect that the [applicant’s] mental health would deteriorate in custody.[1]
[1]The Crown did not oppose the grant of leave.
Circumstances of offending
On 28 March 2015, shortly before 2.00 am, the applicant picked up his girlfriend, Barbara Gonzales, from an address in Cranbourne. From there, the applicant commenced the journey by car to their home in Noble Park. Following an argument between the two, Ms Gonzales elected to sit in the back seat of the car and refused to put her seat belt on, notwithstanding the applicant’s request that she do so. The applicant drove north along Narre Warren Cranbourne Road, towards an intersection with Princes Highway. The speed limit was 80 kilometres per hour.
The applicant entered the intersection and collided with a vehicle, driven by Kirsty Hickey, which was making a right-hand turn into Narre Warren Cranbourne Road in front of the applicant. Ms Hickey had one passenger, Payton Beveridge, in the front seat of her car.
Subsequent investigation and reconstruction analysis showed that, at a distance of 91 metres from the intersection, the applicant was driving his vehicle at 146 kilometres per hour and had the accelerator pedal pushed down as far as it would go; that is, the applicant had his ‘foot to the floor’. At that time, the Princes Highway intersection traffic light had been red for four seconds. 1.5 seconds prior to the collision, he was travelling at a speed of around 144 kilometres per hour. The applicant took his foot off the accelerator at that point and put his foot on the brake, slowing his car to around 109 kilometres per hour. He was travelling at around 96 kilometres per hour at the point of impact. Neither vehicle had any mechanical fault; the weather was fine and road dry; traffic was light; and the street lights and traffic lights were operating normally.
After the collision, Ms Hickey, Ms Beveridge and Ms Gonzales were taken to Alfred Hospital. No alcohol or drugs were detected in Ms Hickey’s blood. The applicant was taken to the Royal Melbourne Hospital. Around 90 minutes after the collision, a blood sample was taken and revealed that his blood contained 0.037 per cent alcohol and 4 ng/ml of THC (tetrahydrocannabinol).
As a result of the collision, Ms Gonzales suffered a severe head injury causing a coma and generalised seizure. She sustained multiple facial fractures, a skull fracture, a broken nose and sinus, a fractured humerus and related nerve damage, lacerations to her spleen and liver and a punctured lung. Rehabilitation was lengthy and extensive. At the time of the plea, Ms Gonzales was awaiting surgery to replace the front of her skull, which had been removed to allow her brain to heal. She has reduced vision to her left eye and suffers from anxiety and panic attacks. She has a right wrist drop that requires a splint, slightly reduced memory and needs to wear a helmet to protect her brain.
Ms Hickey suffered a broken jaw, broken teeth, a brain injury, a fractured knee, a fractured hip, bruising and cuts. She had a steel plate inserted into her jaw. She wore a leg brace and was on crutches for more than two months after the collision. She underwent rehabilitation including physiotherapy for 10 weeks and was fed through a straw for three weeks. She suffered memory loss, numbness in her jaw, constant aching in her knee and required anti-seizure medication for six months following a seizure while in hospital.
Ms Beveridge sustained a broken right femur, broken scapula, broken ribs and bruising.
The applicant was arrested on 11 August 2015 and pleaded guilty at the earliest opportunity on 10 February 2016.
Personal circumstances of the applicant
The applicant was raised by his mother in an unstable and often violent home environment. He completed Year Eight and then commenced working almost immediately. At the time of sentencing, he had been consistently employed since leaving school at the age of 14. He was homeless at the age of 16 and lived out of a car, during which time he started smoking cannabis and indulging in other drugs, including alcohol heavily for a period of time.
The applicant attempted suicide twice when he was aged 16 and 18. His relationship with Ms Gonzales started about four years ago, and he has a daughter with her aged 18 months. The Department of Human Services became involved with the applicant’s daughter from birth, which caused the applicant some anxiety, although she is now back in Ms Gonzales’ full time care, and the applicant is able to see her in a supervised environment.
The applicant was working as a concreter at the time of the collision but, as a result of the injuries he sustained, was unable to work for several months after it. He was then employed full time with a firm called VK Bathrooms doing a variety of tasks including customer service, cleaning, stocktaking, warehouse work and customer deliveries.
The applicant’s criminal history includes prior findings of guilt for offences including driving in a dangerous manner, failing to stop a motor vehicle upon request, failing to display L plates and being a learner driver without an experienced driver. He also has findings of guilt for armed robbery, theft, burglary and criminal damage. The majority of his prior findings of guilt are from the Children’s Court, and on all occasions he received without conviction dispositions.
Most relevantly, on 17 May 2012, the applicant was found guilty of driving in a dangerous manner and failing to stop a vehicle upon request, among other things. He was released without conviction on a youth supervision order for nine months. The applicant instructed his lawyers that that incident occurred when he was 16 and living out of his car as a result of his homelessness. He was unable to otherwise recall details of his offending. The applicant related well to those supervising him when on the youth justice supervision order, and from time to time those in the Children’s Court jurisdiction were concerned about his mental health.
On 18 August 2014, the applicant first appeared in the adult jurisdiction and was sentenced to a 12 month community correction order with a number of treatment conditions. The applicant completed everything required of him as part of that order, which included a number of men’s behavioural change programs and attending a psychiatrist. The collision occurred about six months after that order commenced.
According to a report of Dr Aaron Cunningham dated 14 April 2016, the applicant meets the criteria for post-traumatic stress disorder with symptoms of irritability, outbursts of anger and reckless and self-destructive behaviour. In Dr Cunningham’s opinion, those symptoms were active at the time of the offence, and were triggered by his inability to cope with an argument with Ms Gonzales. According to Dr Cunningham, the applicant’s disorder impaired his judgment with respect to his offensive behaviour and its consequences.
In a medical report requested by the judge and dated 22 June 2016, Dr Patel said that he could not find convincing evidence to support a diagnosis of post-traumatic stress disorder. He agreed that the witnessing of domestic violence as a young person continued to distress the applicant, but noted that there were no other signs that support such a diagnosis. It was Dr Patel’s view that the applicant had Attention Deficit Hyperactivity Disorder.
A bundle of documents in support of the applicant’s rehabilitation efforts was tendered on the plea and included letters of support from a friend and an employer.
Sentencing remarks
The judge described the task of sentencing as ‘an extraordinarily difficult matter’.[2] He described:
[2]DPP v Stocks (Unreported, County Court of Victoria, Judge Parsons, 15 August 2016) (‘Sentencing remarks’) [82].
(a) the circumstances of the offending and, in particular, the speed at which the applicant had been travelling in the time running up to impact;
(b) the significant injuries suffered by the victims and the contents of the victim impact statements;
(c) the various mitigating circumstances, including:
(i) the early plea of guilty;
(ii) the applicant’s unstable and often violent home environment; and
(iii) his attempted suicides;
(d) the applicant’s work and employment history;
(e) the applicant’s criminal record in the Children’s Court and his compliance with a 12-month community correction order;
(f) psychological assessments of Aaron Cunningham and Gunvant Patel (Forensicare). In particular, he accepted the report of Dr Patel who:
(i) although he could not find ‘convincing evidence to support a diagnosis of post-traumatic stress disorder’, agreed that ‘the witnessing of domestic violence as a young person’ did continue to distress the applicant;
(ii) considered that the applicant ‘likely [had] Attention Deficit Hyperactivity Disorder (ADHD)’, which made it difficult for the applicant to keep his mind calm and not feel mentally rushed and physically restless and that he had been using marijuana in a self-medication capacity to assist him to remain calm in the presence of feeling overly aroused and restless due to the presence of ADHD;
(iii) considered that the applicant felt remorse for his actions; and
(iv) considered that the imprisonment would be difficult for the applicant and more so than the average person, given that he was at risk of developing a more depressive state or experiencing thoughts of hopelessness and suicide and that he had been taken away from his current circumstances, where he had been actively engaged in his rehabilitation;[3]
[3]In doing so, the judge considered that principles 5 and 6 of R v Verdins (2007) 16 VR 269 (‘Verdins’) were engaged. See below [46].
(g) the attendance by the applicant at the Bunurong Aboriginal Health Service, where he made links with his indigenous roots and where he introduced his daughter to hers, and his use of the assistance of the Aboriginal Health Service to join the relevant groups;
(h) the applicant’s youth at the time of the offending;
(i) the applicant’s remorse. The judge said:
I have no doubt about your remorse, which is significant and ongoing, and you have demonstrated that in an appropriate manner, as well as of course, your youth is a significant matter for sentencing.[4]
(j) the delay. The judge said that, as there had been an early plea of guilty and a delay of 15 months in bringing the matter to the plea, he would give an appropriate sentencing discount.
[4]Sentencing remarks [29].
The judge had the applicant assessed for a community correction order, but said, referring to Harrison v The Queen:[5]
I am directed that as the degrees of negligence and the seriousness of the injuries increase, the likelihood that a community correction order alone or in combination will be appropriate necessarily diminishes, and in my view has been extinguished by those matters.[6]
[5](2015) 74 MVR 58 (‘Harrison’).
[6]Sentencing remarks [39].
The judge assessed the injuries suffered by the victims as ‘very serious’.
The judge concluded his remarks as follows:
But clearly, you are a young man with significant and difficult circumstances in your early life, and I have no doubt that they have not diminished over time.
I am on balance satisfied that the chances of your rehabilitation are reasonably good given the matters that have been referred to in those reports, and particularly, as I say, given the passage of the past 15 months and what you have done in that time to seek to effect your rehabilitation. Of course, as well as those matters personal to you to which I have referred, including the question of rehabilitation, I must take into account such matters as deterrence and especially general deterrence, and particularly for the reasons set out in the cases relied upon by [the prosecution], and in particular the case of Harrison. Clearly, specific deterrence given your driving, both before and after the particular accident, remains a matter of some concern.
I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your reoffending, which I hope is significantly diminished in light of the last 15 months, but of course I do bear in mind the remarks of the author of the Forensicare report, which clearly reserves the notion that there is still a difficulty that you have not fully resolved.[7]
[7]Ibid [42]–[44].
Ground 1: Related summary offences
Applicant’s submissions
The applicant submitted, and the Crown conceded, that the sentences imposed on the related summary offences were invalid because the judge could not impose a sentence of imprisonment upon either of those charges.[8]
[8]As set out above, the maximum penalties for summary charges 8 and 9 were 20 penalty units and 12 penalty units respectively in the case of a first offence: see ss 49(2A)(a) and 49(3AAA)(a) of the Road Safety Act 1986. As at 1 July 2016, a penalty unit is $155.46.
According to the applicant, this error infected the whole of the sentence imposed on the applicant and, on that basis, he submitted that this Court ought to resentence the applicant.
The applicant also submitted that this error was ‘emblematic of a mechanistic approach’ to sentencing of the applicant. The applicant referred to Eagles v The Queen,[9] in which a judge was found by this Court to have conducted ‘a mechanistic sentencing exercise’ whereby the total effective sentence imposed was the result of a mathematical conclusion that did not give consideration to the differences in the culpability of the offender for each event or series of events, either in arriving at an individual sentence, or making orders for cumulation.[10] According to the applicant, this resulted in the judge failing to give appropriate weight to mitigating factors which led to the imposition of a manifestly excessive sentence as discussed under ground 2.
[9][2012] VSCA 102 (‘Eagles’).
[10]Eagles [2012] VSCA 102 [57].
Crown’s submissions
The Crown submitted that the judge’s error was ‘simply a mistake’ as to whether imprisonment was a sentencing option and was not indicative of him having taken any particular approach to his sentencing task. The Crown rejected the applicant’s contention that the error demonstrated a ‘mechanistic’ approach of the kind discussed in Eagles.
The Crown also submitted that the judge’s error did not infect the sentences imposed on the indictable offences or the orders for cumulation upon those charges and that those sentences therefore ought to stand.
Analysis
The Crown accepted that, by reason of the mistake in the sentence in relation to the summary offences, the applicant should be resentenced pursuant to s 242 of the Criminal Procedure Act 2009.
Part 3B of the Sentencing Act 1991 deals with fines. Pursuant to s 52(1) of that Act, if a court decides to fine an offender it must in determining the amount and method of payment of the fine take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose. Section 52(2) provides that a court is not prevented from fining an offender only because it has been unable to find out the financial circumstances of the offender.
Section 54 of the Sentencing Act 1991 also provides that when fixing a fine the Court may have regard to any loss or destruction of, or damage to, property suffered by a person as a result of the offence and the value of any benefit derived by the offender as a result of the offence.
There are no forfeiture, compensation or restitution orders to take into account.
In these circumstances, the Crown has submitted that the Court may impose an aggregate fine which must not exceed the sum of the maximum fines that could be imposed in respect of each of the offences.
Given the applicant’s circumstances, a modest fine would be appropriate. He is not to be punished twice for the circumstances of the indictable offences.
Should the applicant remain serving an immediate custodial sentence, then he may be able to default on the fine and ‘call it in’, with the result that it will be converted to a period of imprisonment to be served concurrently with the sentences imposed for the indictable offences.
We do not accept the applicant’s further submission that the error infected the whole sentencing process or that it was emblematic of a mechanistic approach.
Amended proposed ground 3
It is convenient next to consider proposed ground 3, which alleges specific error. At the hearing of the application for leave to appeal, the applicant was given leave to file an amended proposed ground of appeal.[11]
[11]The Crown did not oppose the grant of leave.
The applicant submitted that the judge erred in not giving weight to Verdins principles 1 (reduction in moral culpability) and 3 (moderation of general deterrence).[12]
[12]See below [46].
First, the applicant addressed his contention that the judge had erred in rejecting a submission as to a causal connection between his offending and his impaired mental function. In his original written submissions before the judge, the applicant had contended that, at the time of the offending, he was suffering from Post-Traumatic Stress Disorder (PTSD). In doing so, he relied upon the evidence of Dr Aaron Cunningham. He said that PTSD symptoms of irritability and outbursts of anger and reckless and self-destructive behaviour were active at the time of this offence. Accordingly, he submitted that his moral culpability should be moderated in circumstances where his PTSD had contributed to his offending behaviour. Consequently, he said that the weight given to general deterrence in his case should be reduced. At the first sentencing hearing on 18 April 2016, that aspect of Dr Cunningham’s report was discussed. In the event, the judge directed that a Forensicare assessment be prepared.
A Forensicare report dated 22 June 2016 was prepared by Dr Patel.
On 4 July 2016, a further hearing took place before the judge. While accepting that Dr Patel had come to a different diagnosis from that of Dr Cunningham, the applicant contended that both practitioners opined that he has difficulty with impulse control and emotional dysregulation, particularly when under stress. The applicant submitted that, whatever the correct diagnosis, his mental health played a role in his poor decision-making on the night of the offending, when the argument with his partner escalated. It was submitted that ultimately the symptomatology seemed to be the same, namely that the issues with anger management and emotional regulation were due to the diagnosis of disorder.
Before this Court, the applicant contended that the causal link between his mental health and his offending had been maintained before the judge. The critical question was not the label attached to his condition but ‘how the particular condition might have affected the mental functioning of the offender in the particular circumstances.’[13] According to the applicant, while it was open to the judge to prefer the report of Dr Patel to that of Dr Cunningham, he should not have rejected there being a causal link between his mental health and the offending. The applicant submitted that the evidence in the reports established that the incapacity was ‘such as to have affected the offender’s appreciation of the gravity of his or her offending, in order that that incapacity be a basis upon which to moderate the application of general deterrence in a particular case’.[14]
[13]DPP v O’Neill (2015) 47 VR 395, 409 [56] (‘O’Neill’); Verdins (2007) 16 VR 269, 272 [13].
[14]O’Neill (2015) 47 VR 395, 411–2 [65].
Second, the applicant addressed his contention that the judge had failed to give sufficient weight to the prospect that his mental health would deteriorate in custody. Sentencing judges must take into account the person they are sentencing as they were when they committed the offence and as they are on the date of sentence. The applicant was deeply troubled, with deeply-rooted psychological issues from his past, which he was struggling to overcome. But, he was making a concerted effort to do so. Their burden had a role to play in his offending and would likely be made heavier by his time in custody. Those are always matters proper to take into account and to give their due weight. Their burden may ‘have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.’[15]
[15]Ibid 412 [66]; Verdins (2007) 16 VR 269, 276 [32].
Specific error: Verdins
In Verdins,[16] this Court discussed the relevance and effect of impaired mental function upon sentencing and said:
[16](2007) 16 VR 269.
Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.[17]
[17]Ibid 276 [32] (citations omitted).
In the present case, it was open to the judge to prefer the report of Dr Patel to that of Dr Cunningham. In his report, Dr Patel said that the applicant was likely to have ADHD. He said that this was:
... evident in his difficulties with keeping his mind calm and not feeling mentally rushed and physically restless. The inability to sit still and his thought pattern at interview would also be supportive of ongoing ADHD. As a result he is likely to experience increased impulsivity, particularly when under stress, and to also have difficulties with emotional dysregulation.
In O’Neill,[18] the Court of Appeal held:
[I]n order for the first, second, third and fourth principles enunciated in Verdins to have application to the sentencing task, there must be a connection between the impairment to mental functioning and the appellant’s moral culpability or the need for general and specific deterrence. If the mental impairment existed at the time of the offending, it must have some ‘realistic connection’ with the offending; or have ‘caused or contributed’ to the offending; or be ‘causally linked’ to the offending. For example, Vincent and Weinberg JJA and Mandie AJA said in DPP v Weidlich, in a passage subsequently quoted with approval in DPP v Eli and R v Safatli:
Generally, the measure of culpability of an offender under the criminal law rests upon the extent to which the individual can be seen to be personally responsible for both the prohibited acts and their consequences. Little thought is required to appreciate that the greater the level of insight and understanding possessed by him or her concerning the act and its potential harm, the higher becomes the level of culpability for then deliberately engaging in the conduct involved. The Court in Tsiaras and Verdins recognised that sometimes as a consequence of the contribution made to the commission of an offence by a mental disorder from which a perpetrator was suffering at the time, it would be unjust to attribute to the offender a full measure of personal responsibility. The presence of the disorder could bear upon the sentencing judge’s assessment of the individual’s motivation and level of culpability, prospects of rehabilitation, the need for specific deterrence and the appropriateness of giving full effect to the principle of general deterrence. However it follows, when addressing the question of the significance of the disorder for these purposes, that the nature and extent of its possible effect upon the offender’s behaviour must be carefully explored.[19]
[18](2015) 47 VR 395.
[19]Ibid 414–5 [74] (citations omitted).
The Crown submitted that, while there was a general comment about the applicant having increased impulsivity in Dr Patel’s report, particularly when under stress, and difficulties with emotional dysregulation, there was no ‘rigorous evaluation’ of how the applicant’s ADHD affected his conduct at the time of offending. The Crown said that there was no careful exploration of the nature and extent of the possible effect of ADHD on the applicant’s behaviour when committing the offences.
In our opinion, the applicant has not established that his offending conduct was associated with his ADHD such that the demands of denunciation and general deterrence should be moderated. It is to be recalled that (a) the applicant was driving in an unsafe manner for a considerable period before entering into his argument with Ms Gonzales and the collision, (b) he was sufficiently self-possessed to tell her to fasten her seat belt, and (c) he had a relevant driving history involving, on one occasion, the offence of dangerous driving, which involved a police pursuit and the applicant crossing double white lines into oncoming traffic to overtake vehicles.
The judge took into account, pursuant to principle 6 in Verdins, the prospect that the applicant’s mental health would deteriorate in custody. In his amended grounds of appeal, the applicant now says that the judge failed to give sufficient weight to that prospect.
As indicated above, the judge accepted Dr Patel’s opinion that the applicant would find imprisonment more burdensome than the average person, and that he was at a risk of developing a more depressive state or experiencing thoughts of hopelessness and suicide.
We accept the submission of the Crown that this matter should be considered as an aspect of manifest excess.
Ground 2: Manifest excess
Applicant’s submissions
It was common ground between the parties that the judge was bound by this Court’s decision in Harrison wherein it was held that the current sentencing practices for offences of negligently causing serious injury as a result of negligent driving were inadequate and should be increased.
The applicant submitted that, despite this Court’s guidance in Harrison, the offence must be weighed against the other personal factors relevant to an accused.
The applicant submitted that his offences were not at the upper end for the offence of negligently causing serious injury and that, even if they were, the overall sentence imposed could not have taken account of the wealth of mitigating factors that the applicant called in his aid. According to the applicant, even if the head sentence was within range, the applicant’s youth, prospects for rehabilitation, demonstrated rehabilitation, remorse, mental health, and the application of the principles in Bugmy v The Queen,[20] Markovic v The Queen[21] and Verdins[22] all justified a far longer period on parole for his rehabilitation to continue in the community.
[20](1990) 169 CLR 525.
[21](2010) 30 VR 589.
[22](2007) 16 VR 269.
The applicant submitted that a combination sentence of a term of imprisonment and a community correction order was an appropriate sentencing disposition in this case.
During oral submissions, counsel for the applicant said that it had been conceded before the judge that the offending in the present case was in the ‘mid-range’. In seeking to justify that classification, counsel compared the case with the circumstances in Harrison: in the present case, there was driving at an excessive speed and ignoring a red light and the amounts of alcohol and drugs could not be treated as having any material bearing on the criminality. In Harrison, there was grossly excessive speeding, a significant level of alcohol, proceeding through successive red lights and relevant prior convictions. He also compared the injuries suffered by the victims in both cases.
Counsel said that, although the judge had pointed to and made findings on several mitigatory factors, the appropriate weight of mitigation did not appear in the sentence. The incident occurred on 28 March 2015. The applicant gave early notice that he would plead guilty. Counsel referred to the impact of ‘delay’ and said that it had not been properly weighted. There had been several hearings. The first hearing, which took place in April 2016, was a hearing in the County Koori Court. At that hearing the judge had indicated the things which the applicant should do to rehabilitate himself. The applicant was on bail. He embarked on a programme of rehabilitation and took steps to turn his life around. A Forensicare report was prepared and dated 22 June 2016. At the second hearing, which took place in early July 2016, the judge said that he was contemplating a community correction order. After that hearing, the applicant was taken into custody. The third hearing took place on 28 July 2016. The applicant was not sentenced until 15 August 2016.
Counsel referred to the youth of the applicant and his prospects for rehabilitation. He said that these had not been properly reflected in the sentence.
Crown’s submissions
The Crown submitted that the sentences imposed on the charges of negligently causing serious injury and the orders for cumulation were not manifestly excessive. According to the Crown, the question for this Court is whether the sentence imposed was reasonably open.
The Crown submitted, as had the prosecution on the plea, that, in light of the objective circumstances of the offending, it ought be considered between the mid-range and upper range. The circumstances referred to by the Crown included the fact that the applicant was travelling at a high speed; had his ‘foot to the floor’; deliberately drove through a red light at a busy intersection which had been ‘red’ for some time; had been detected speeding before and after the collision on the morning of the offending; had a prior history of driving offences; and was on a community correction order at the time of the offending.
Analysis
In order to establish the ground of manifest excess, an applicant must establish that the sentence imposed by the judge was wholly outside the range of sentencing options available to the judge.
We do not consider that the sentence imposed was outside the range of sentences that could be imposed for this offending. In reaching that conclusion, we take into account (a) the careful and comprehensive remarks of the judge, (b) the objective gravity of the offending in which the applicant (i) drove at excessive speed and (ii) went through a traffic control signal which had been ‘red’ for some time, (c) the seriousness of the injuries caused by his conduct, (d) the need to give weight to general deterrence, and (e) the observation of this Court in Harrison that current sentencing for offences of negligently causing serious injury by driving at the upper end of seriousness is inadequate and needs to be uplifted with the consequence that there will be a flow-on effect on sentencing for mid-range and low-range instances of that offence.
In Harrison, the Court said:
It may very well be that some instances of [negligently causing serious injury] by driving, in lower categories of seriousness, may appropriately be dealt with by the imposition of a CCO or a combination of a CCO with a term of imprisonment of up to two years. But the likelihood that a CCO alone or in a combination sentence will be appropriate necessarily diminishes as the degree of negligence and the seriousness of the injuries increase. As the Court recognised in Boulton, a point will be reached at which such sentencing options cease to be capable of satisfying the sentencing purposes of punishment, denunciation and deterrence.[23]
[23]Harrison (2015) 74 MVR 58, 86 [130] (citations omitted).
In view of this, we accept the submission of the Crown that, even if the judge should have given limited weight to Verdins principles 1 and 3, given the circumstances of the offending, the serious injuries to the victims, and what was said in Harrison, it should not result in the applicant receiving a combined sentence of imprisonment and a community correction order.
Conclusion
The applicant has succeeded only on ground 1. We will re-sentence the applicant on charges 8 and 9. If, contrary to our view, that error infected the sentences imposed on any of the other charges, we do not consider that less severe sentences should be imposed.
The applicant is sentenced as follows:
Indictment F14068449
Charge
Offence
Maximum
Sentence
Cumulation
1
Negligently causing serious injury [s 24 Crimes Act 1958]
10 years [s 24 Crimes Act 1958]
3 years and 6 months
Base
2
Negligently causing serious injury
10 years
3 years and 6 months
4 months
3
Negligently causing serious injury
10 years
3 years and 6 months
4 months
Related Summary Charges
8
Exceed prescribed concentration of alcohol in the blood within 3 hours of driving [s 49(1)(g) Road Safety Act 1986]
20 penalty units (first offence) [s 49(2A)(a) Road Safety Act 1986]
$200
9
Exceed prescribed concentration of drugs in the blood [s 49(1)(bb) Road Safety Act 1986]
12 penalty units [s 49(3AAA)(a) Road Safety Act 1986]
$200
Total Effective Sentence: 4 years and 2 months’ imprisonment and fines of $400 Non-Parole Period: 2 years and 6 months’ imprisonment Section 6AAA statement: Total effective sentence of 6 years’ imprisonment with a non-parole period of 3 years and 6 months and fines of $400
All other relevant orders are confirmed.
5
0