Director of Public Prosecutions v Albert
[2010] VSCA 75
•13 April 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| DIRECTOR OF PUBLIC PROSECUTIONS | No 681 of 2009 |
| v | |
| DALE ROBERT ALBERT |
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| JUDGES | BUCHANAN and HARPER JJA and HABERSBERGER AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 1 February 2010 |
| DATE OF JUDGMENT | 13 April 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 75 |
| JUDGMENT APPEALED FROM | DPP v Albert (Unreported, County Court of Victoria, Judge Mason, 22 May 2009) |
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CRIMINAL LAW – Director’s appeal – Motor vehicle accident – Driving an unregistered motor cycle at night without lights and at high speed while disqualified from driving and with a blood alcohol content of more than 0.15% – Collision with a pedestrian – Plea of guilty to negligently causing serious injury – Plea to summary offences of driving a motor vehicle while exceeding the prescribed concentration of blood alcohol, driving while disqualified and using an unregistered motor vehicle on a highway – Offender sentenced to a total effective sentence of 31 months’ imprisonment – Non-parole period of 16 months – General deterrence – Protection of the community – Denunciation by the Court – Whether failure to have regard to previous offences – Aggravating features – Whether too much weight given to mitigating factors – Subsequent increase to maximum penalty – Whether sentences so manifestly inadequate as to constitute an error in principle – Effect of double jeopardy – Whether re-sentencing would amount to mere tinkering – Appeal dismissed.
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Appearances: | Counsel | Solicitors |
| For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr O P Holdenson QC with Mr C Carr | Victoria Legal Aid |
BUCHANAN JA:
In my view, the maximum sentence for the offence of negligently causing serious injury leaves insufficient room to increase this sentence having regard to the plea of guilty, the respondent’s remorse, his mental health and the principle of double jeopardy. I agree with Harper JA that the appeal should be dismissed.
HARPER JA:
On 25 November 2008, after a two-day hearing in the Latrobe Valley Magistrates’ Court, the respondent was committed to stand trial on one count of negligently causing serious injury. In brief, the case against him was that his negligence when riding a motorcycle on the night of 15 February 2007 resulted in a collision which injured a pedestrian (Mark Kasper) so badly that, after being taken by air ambulance from Gippsland to Melbourne, Mr Kasper was in an induced coma and in intensive care for four weeks.
The respondent pleaded guilty to that charge. He also consented (pursuant to s 359AA of the Crimes Act 1958) to three summary offences, committed in conjunction with his motorcycle riding on 15 February 2007, being dealt with by the County Court, and indicated that he would enter a plea of guilty to those offences as well. The three were, first, that he drove a motor vehicle whilst exceeding the prescribed concentration of alcohol in his blood; secondly, that he drove whilst disqualified; and thirdly, that he used an unregistered motor vehicle on a highway.
The plea in relation to all charges was heard in the Latrobe Valley County Court on 14 May 2009. The respondent was sentenced on the following 22 May. The penalty imposed on the first count, that of negligently causing serious injury, was 30 months’ imprisonment. On the charge of driving whilst exceeding the prescribed concentration of alcohol in the blood (this being the fifth occasion on which the respondent had been convicted of this offence) his licence to drive a motor vehicle was cancelled, and he was disqualified for 48 months from obtaining another. At the
same time, the Court recorded that the level of alcohol found to be present in the respondent’s blood was 0.155 grams per 100 millilitres of blood, although that result was based upon a sample of blood taken more than six hours later. For driving whilst disqualified he was sentenced to 1 month’s imprisonment, this being the statutory minimum where, as in this case, the offender had previously been convicted of this offence. The judge directed that this term be served cumulatively on the sentence imposed on count 1. For using an unregistered motor vehicle on a highway the respondent was fined $250. The total effective period of incarceration was therefore 31 months. His Honour fixed a period of 16 months’ imprisonment before the respondent was eligible for parole. He also declared that, but for the respondent’s plea of guilty, the sentence that would have been imposed was imprisonment for 3 years, with a non-parole period of 2 years.
The maximum penalty for negligently causing serious injury was, at the time of the accident, 5 years’ imprisonment. Thirteen months later, on 19 March 2008, it was doubled. In the case of a fifth conviction for driving whilst exceeding the prescribed concentration of alcohol, the maximum penalty is a fine of not more than 180 penalty units, or imprisonment for a term of not more than 18 months if (as in this case) the concentration of alcohol in the offender’s blood was 0.15% or more. In addition to this, the Court must disqualify the offender from obtaining a driver’s licence for not less than 30 months (it will be remembered that the respondent was disqualified for 48 months). For driving whilst disqualified, for a second or subsequent offence (as in the respondent’s case) there is a fixed minimum term of not less than 1 month’s imprisonment (which the judge imposed) with the maximum being not more than 2 years. For a first offence of driving an unregistered motor vehicle (as in this case) the maximum penalty is 25 penalty units.
The Director appeals on the basis that not only the sentence imposed in respect of count 1, but also the total effective sentence and the non-parole period, are manifestly inadequate. By his notice of appeal, he claims – with an eye to s 5 of the Sentencing Act1991 - that, in imposing a sentence of 2½ years’ imprisonment on count 1, in ordering a total effective sentence of 31 months’ imprisonment, and in fixing a period of 16 months before the respondent was eligible for parole, the sentencing judge:
(a)failed sufficiently to punish the respondent to an extent which is just;
(b)failed sufficiently to deter the respondent or other persons from committing offences of the same or similar character;
(c)failed sufficiently to manifest the denunciation by the Court of the type of conduct in which the respondent engaged;
(d) failed sufficiently to protect the community from the respondent;
(e)failed to have sufficient regard to the maximum penalty prescribed for ‘the offence’(singular);
(f)failed to have sufficient regard to the nature and gravity of the offence;
(g)failed to have sufficient regard to the respondent’s culpability and degree of responsibility for the offence;
(h)failed to have sufficient regard to the impact of the offence on its victims;
(i)failed to have sufficient regard to the respondent’s previous criminal history;
(j)failed to have sufficient regard to aggravating features of the offending, and in particular to the (unchallenged) evidence that –
· the respondent’s motor cycle was unregistered and in poor condition;
· the respondent was driving his motor cycle without lights and at high speed;
· the respondent had a blood alcohol content of not less than 0.19%;
· the respondent was at the relevant time disqualified from driving a motor vehicle; and
(k)gave too much weight to mitigating factors and, in particular, to the respondent’s mental disabilities.
The respondent admitted to many previous offences. They begin on 31 July 1990, when he was convicted of driving a motor vehicle whilst having a blood alcohol content exceeding the prescribed limit. He was sentenced to pay a fine of $350, and his driver’s licence was cancelled. He was disqualified for a period of 11 months from obtaining a fresh licence. Similarly, on 15 February 1994, he was convicted of the same offence and was sentenced to be discharged without penalty. His driver’s licence was cancelled, however, and a period of 13 months’ disqualification was imposed. Then, on 11 September 2001, he was convicted of aggravated burglary, criminal damage and causing injury recklessly. In each case, the matter was adjourned for 12 months. On 10 July 2005, the respondent was again convicted of driving a motor vehicle whilst having a blood alcohol content exceeding the prescribed limit (his third such conviction) and was sentenced to be discharged without penalty. His driver’s licence was cancelled and he was disqualified from obtaining a further licence for a period of 10 months. On 5 January 2006, he was convicted of three counts of destroying property intentionally (counts 1-3), two counts of unlawful assault (counts 4 and 5), and one count of each of the following: breaching the terms and conditions of an intervention order (count 6); aggravated burglary (count 7); theft (count 8); driving a motor vehicle whilst disqualified (count 9); failing to report an accident to the police (count 10); and driving a motor vehicle whilst having a blood alcohol content exceeding the prescribed limit (count 11). On the counts of destroying property intentionally, unlawful assault, breaching the terms and conditions of an intervention order, aggravated burglary and theft, he was sentenced to be released on a community based order for a period of 12 months. This sentence was accompanied by a special condition - that he either be assessed for alcohol and drug addiction or that he submit to medical, psychiatric or psychological assessment and to treatment as required. On the charges of driving a motor vehicle whilst disqualified and failing to report an accident (counts 9 and 10), the respondent was sentenced to pay an aggregate fine of $1,000. In addition, on the ninth charge, his driver’s licence was suspended for a period of three months; and on the eleventh charge, his driver’s licence was cancelled and he was disqualified for a period of 12 months from obtaining a further licence. Finally, on 4 September 2006, the respondent was convicted of breaching the terms and conditions of an intervention order, and was sentenced to pay a fine of $300. All these convictions preceded the events of 15 February 2007.
At approximately 11.50 pm on that day, the respondent’s motor cycle collided with Mr Kasper. The respondent was travelling east, and Mark Kasper was standing at or near the northernmost edge of the road. Mr Kasper suffered very severe injuries: fractures to the right tibia and fibular, to the right ulnar and radius, to the right orbital roof, and to the occipital condyle. His left carotid artery was dissected, and he suffered a closed head injury, traumatic avulsion of the mesentery and acute traumatic myocardial infarction. Following the accident, he was flown to the Alfred Hospital where he underwent surgery, including a bowel resection with a colostomy and an external fixture to realign the fractures to his lower right leg. He remained in an induced coma for four weeks. On 30 March 2007 he was discharged from hospital and admitted to the Victoria Rehabilitation Centre. For some time his recovery was satisfactory, but on 16 May he presented at the Latrobe Valley Regional Hospital with acute abdominal pain. Complications became apparent during surgery the following day, and he was again flown to the Alfred Hospital, suffering a cardiac arrest on the way. Despite being placed in intensive care, he died on 25 June from multiple organ failure.
When the bare facts are set out in that form, the inference which the reader might draw is that the death and the accident were intimately connected. The issue of causation was explored during the respondent’s committal proceedings, however, and was resolved in his favour. A charge of culpable driving was then dropped, and the respondent pleaded guilty to negligently causing serious injury. The sentencing judge accepted that this plea ‘was made at the earliest stage of proceedings and, in the circumstances, bespeaks remorse’.
Mr Kasper was not the only victim of the accident on 15 February 2007. The respondent himself (who was not wearing a helmet) suffered a closed head injury, fractured left ribs, back pain, and abrasions to both hands and lacerations to his face. He too was flown to the Alfred Hospital. A sample of his blood was taken at 6.10 am on 16 February 2007. It was found to contain 0.155 grams of alcohol per 100 millilitres of blood. Expert evidence was to the effect that at the time of the accident the respondent had a blood alcohol concentration of (at a conservative estimate) about 0.19%.
Following the collision, the headlight of the motor cycle was inspected. This revealed that it was not operative at the time that Mr Kasper was injured.
The principal witness to the collision, and another victim of it, was Mr Kasper’s partner, Patricia Cahill. Shortly before midnight on 15 February, she was walking with Mr Kasper along the northern edge of Brown Coalmine Road, which at that point runs east-west, when they heard an approaching motor cycle. It had no operating headlight. Its engine was very loud. It was very dark, and (according to the witness) the motor cycle almost collided with the pedestrians as, travelling west, it passed close to them on the wrong side of the road. It returned shortly afterwards, travelling fast in the opposite direction. Mr Kasper attempted to call the police. The motor cycle, with the respondent aboard, then collided with him.
Although Ms Cahill was not physically involved in the collision, she saw her partner of 15 years thrown into the air by the force of the impact. She then observed him as he underwent a prolonged and difficult period of hospitalisation and rehabilitation, followed by his death on 25 June.
In the location of the accident, Brown Coalmine Road is undivided, of a sealed bitumen construction, and in excellent condition. It has provision for one lane of traffic to travel in either direction. The lanes are separated by regularly spaced white lines marked along the approximate centre of the road, which is bordered by gravel shoulders on either side. There was then, and perhaps is now, no overhead street lighting at the location of the accident, and visibility was very poor. The relevant speed limit is 80 kilometres per hour.
Driving a motor cycle at speed in the dark of the night on a public road without a headlight could properly be regarded as reckless. The respondent was therefore fortunate not to have been charged with a more serious offence than negligently causing serious injury. Nevertheless, and despite the respondent’s appalling record on the road, the sentencing judge imposed on him a penalty that was only half the maximum for that crime. In fixing upon that penalty, his Honour took into account the respondent’s plea of guilty. He noted what he accepted as the respondent’s remorse, and his belated but apparently sincere attempts to control his alcoholism. His Honour also took into account the respondent’s mild to moderate acquired brain injury, his low range of intellectual functionality, and an overlay of depression. The sentencing judge considered that the respondent’s ‘mental health falls [sic] appropriately as a mental disorder or abnormality and accordingly, the significance that would otherwise be given to general deterrence and specific deterrence should, … be moderated to some extent’.[1] His Honour accepted that, because of the respondent’s mental disabilities, the time he spent in prison would be more difficult for him than for most prisoners.
[1]Sentencing remarks, [34].
As stated in the notice of appeal, however, the Director of Public Prosecutions considers that a different sentence ought to have been passed. In support of the proposition that the head sentence, the total effective sentence and the non-parole period are all ‘manifestly inadequate’, the appellant referred first to the ‘notoriously low’ maximum term then prescribed for the offence of negligently causing serious injury.
It is true that five years earlier, in R v Brown,[2] Callaway JA, with whom Winneke P and Vincent JA agreed, said that it was ‘notorious’ that the maximum penalty for this offence was too low because it was ‘out of kilter with the maximum penalties for related offences.’ Callaway JA added that, while this did not mean that the maximum can be ignored, it does not prevent the courts from ‘firming up’ in an appropriate case when sentencing for the negligence encompassed by this crime.
[2][2003] VSCA 153, [9].
The respondent takes issue with this. In an outline of submissions prepared on his behalf, he argued that ‘firming up’ is not an option because that expression is not defined, and so has no fixed meaning. In addition, the respondent submits, sentencing judges are required to steer by the maximum, not aim towards it;[3] and the invitation to ‘firm up’ is in truth an invitation to ignore the statute – which, of course, no court is entitled to do.
[3]DPP v Aydin & Kirsch [2005] VSCA 86, [12]. It is to be noted that the judge who in this case used this metaphor was Callaway JA.
This submission encounters the problem that Brown’s case has since been accepted as properly disclosing a weakness in the then current statutory regime for the punishment of those who have been convicted of negligently causing serious injury. It follows that, at the very least, a sentencing judge post Brown would be justified, were gross negligence involved in a case of negligently causing serious injury, to eschew following the sentencing trends down to a level which was based upon the false notion that the maximum penalty for the offence was consonant with the maximum penalties for related offences.
It is also clear that the respondent’s level of criminality was high. Although he later sought to place the events of 15 February 2008 as ‘in the middle range’ of seriousness for negligence causing serious injury, counsel for the respondent said during the course of the plea that ‘obviously your Honour’s sentence must be proportionate to the offence, and when categorising the offence within the spectrum of the offence of negligently causing serious injury, clearly it’s a very serious offence.’ His Honour’s response, with which I respectfully agree, was ‘Yes, it is.’
Consistently with this, his Honour noted in his reasons for sentence that:
These offences were committed whilst you were … driving with a high alcohol reading and following four previous convictions for driving above the prescribed alcohol limit. It reflects an appalling contempt for the safety of other citizens, and as a result a man has suffered serious injury and his family have suffered anguish and emotional pain.
Alcohol, and a very poor history of alcohol-related traffic offences, are not the only ingredients which increased the respondent’s culpability. In a passage which makes it clear that the sentencing judge was aware not only that this is so, but also of the dicta of Callaway JA in Brown, his Honour said:
The maximum penalty of 5 years’ imprisonment for negligently causing serious injury has been described in the courts as notoriously low and out of kilter with the maximum penalties for related offences. In March 2008 this offence was legislated to increase the maximum penalty to 10 years’ imprisonment. Your conduct falls within the previous maximum; nonetheless, this classification of offence, even with the 5 year maximum, has been viewed extremely seriously by the courts. Your conduct of driving on a main road at high speed, at around midnight, without lights and at a time when you had consumed a large amount of alcohol, merits condign punishment.
‘Condign’ is not a word with which most offenders would be familiar. For that reason, its use in sentencing remarks may not be helpful. Nevertheless, those who use it might with some justification argue that the context should make its meaning clear. That, it might be said, was so in this case. The sentencing judge had given ample reasons for the conclusion that severe punishment was warranted. Nevertheless, while the context may have illuminated the meaning of the word ‘condign’, the end result was at odds with that meaning. Although severe punishment was warranted, the sentence imposed was not severe when assessed, as notions of severity must be, against relevant criteria. The general public, one of the audiences to whom sentencing remarks are addressed, is entitled to think that a sentence is severe or otherwise by comparison to the range which is open to the sentencing judge. Two and a half years’ imprisonment, half the maximum, is a not a severe, or condign, sentence if that maximum is notoriously low. Although the severity of a sentence must be measured against more than merely the maximum penalty, here the level of criminality was clearly high.
It is important that there be a match between the sentence imposed in any particular case and the reasons given for it. As I have already noted, sentencing remarks are addressed to a wide audience. To the extent that they speak of general deterrence, they are addressed in particular to those who might otherwise be tempted to commit a comparable crime. In many cases, they are also directed to the victims of the behaviour in question. In all cases, they are a public expression of the court’s denunciation of that behaviour. Nothing the courts do has a greater impact upon the attitude of the public to the administration of justice than the sentences courts impose, and the reasons given for them. Care must be taken to ensure that sentencing remarks, when examined fairly and in the whole of their context, demonstrate why the sentencing discretion has been exercised in a particular way so as to produce a particular result. Courts must strive to avoid a perception that justifiably harsh condemnation of serious criminality is accompanied by a sentence which is unjustifiably lenient.
In my respectful opinion, the learned sentencing judge imposed a sentence which failed to correspond to the seriousness of the offence. In comparable cases, more severe punishment had been imposed. In R v Brown itself, Brown had pleaded guilty to a number of driving offences, including one count of negligently causing serious injury. A sentence of three years and six months’ imprisonment was imposed on a man with (it is true) an even worse driving record than the present respondent, but whose driving on the occasion in question was of equivalent negligence, and whose blood alcohol level was also comparable. That sentence was upheld on appeal, Callaway JA (with whom Winneke P and Vincent JA agreed) describing it as ‘entirely appropriate’.[4] In R v Fackovic[5] the plea was guilty, but was entered very late. A period of seriously negligent driving ended after a collision in which the prisoner, whose blood alcohol level was higher than that of the present respondent, was severely injured, as was the driver of the other car. The Court of Appeal, having upheld an appeal against the prisoner’s conviction for the theft of the car used by him, resentenced the appellant by re-imposing the original sentence of three years and six months’ imprisonment for negligently causing serious injury. In R v Healey[6] the appellant pleaded guilty to (among other things) four counts of negligently causing serious injury. His negligence in driving at night when under the influence of alcohol (but with a blood alcohol content less than that of the present respondent, and when driving a vehicle with headlights operating) resulted in an accident in which he and four others were seriously injured. He was sentenced to three years and six months’ imprisonment on three of four counts of negligently causing serious injury, and two years on the fourth. His appeal seeking a re-exercise of the sentencing judge’s discretion, on the ground that his health had deteriorated, was dismissed.
[4][2003] VSCA 153, [9].
[5][2007] VSCA 93.
[6](2008) 186 A Crim R 433; [2008] VSCA 132.
There being, as Nettle JA pointed out in DPP v OJA, (albeit in the context of sexual offences) a need for at least some degree of comparison between one example of a particular offence and a different example of the same offence, it seems to me that these three cases serve that purpose. Having regard to them, and to the mitigating and aggravating factors which his Honour properly took into account, a sentence of more than two years and six months’ imprisonment was warranted in this case. At the same time, all those considerations also pointed to a sentence of no more than the three years and six months’ imprisonment – that is, 12 months over and above that actually imposed in this case – which in each of Brown, Fackovic and Healey was considered by this Court to be appropriate.
I must of course recognise that sentencing judges are invested with a substantial discretion not shared by the judges of the Court of Appeal in the circumstances of this case. And, as the respondent has submitted in his outline of submissions, manifest inadequacy alone will not be sufficient to warrant appellate intervention. As the court said in DPP v Bright:[7]
A number of the principles which govern appeals by the Director of Public Prosecutions are set out in The Queen v Clarke [1996] 2 VR 520 at 522 and DPP v Johnston (2004) 10 VR 85 at 96-97. One is that an appeal should not be brought unless the sentence reveals such ‘manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle’. An examination of authorities suggests, as was conceded by the Director in argument, that manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the sentence must be ‘clear and egregious’, the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and ‘undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes’. When re-sentencing the offender the appellate court must pay careful heed to the factor of double jeopardy, inherent in a Crown appeal, arising from the respondent’s exposure to sentencing on a second occasion for the same crime. Because of the element of double jeopardy, Crown appeals are regarded as having a ‘rare and exceptional’ character which calls for restraint, even where manifest inadequacy may be present, the court having an overarching discretion not to interfere. Double jeopardy is a factor which must be considered in both the Court’s determination of whether this Court should exercise its discretion to allow the Crown appeal and, where the discretion is exercised, as to the sentence which should be imposed. Any different sentence to be imposed must allow for double jeopardy.
[7](2006) 163 A Crim R 538, [10].
This remains the law, although legislative intervention will in the future remove considerations of double jeopardy in sentencing. Section 28 of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 inserted s 289(2) into the Criminal Procedure Act 2009. It provides that ‘[i]n considering whether an appeal should be allowed, the Court of Appeal must not take into account any element of double jeopardy involved in the respondent being sentenced again, if the appeal is allowed.’ But, by virtue of cl 10(4) of Schedule 4 of the Criminal Procedure Act 2009, this provision ‘applies to an appeal where the sentence is imposed on or after the commencement day’ (which was 1 January 2010).
Were that provision applicable in the circumstances of this case, I would allow the appeal and re-sentence the respondent to a term of imprisonment which more appropriately reflected his criminality. In the light of the necessity to allow for double jeopardy, however, and in the light of the fact that manifest inadequacy alone is insufficient, it seems to me that this Court has no power to interfere with the sentence imposed upon the respondent, too low as it nevertheless is. Given the applicable sentencing practices, as illustrated by Brown, Fackovic and Healey, no sentence greater than three and a half years’ imprisonment would have been open to the County Court; but the principle of double jeopardy closes that option to this
Court, while anything much less would be mere tinkering. In the particular circumstances which here prevail, the appeal must therefore be dismissed.
HABERSBERGER AJA:
I agree with Harper JA, for the reasons given by his Honour, that the appeal by the Director of Public Prosecutions should be dismissed, notwithstanding that the sentence of 30 months’ imprisonment imposed on the count of negligently causing serious injury was manifestly inadequate.
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