Director of Public Prosecutions v Caldarera
[2003] VSCA 140
•12 September 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 61 of 2003
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| DANIEL CALDARERA |
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JUDGES: | PHILLIPS, C.J., VINCENT, J.A. and ASHLEY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 August 2003 | |
DATE OF JUDGMENT: | 12 September 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 140 | |
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CRIMINAL LAW – Culpable driving and negligently causing serious injury – Two deaths and two serious injuries resulting – Appeal against sentence by Director of Public Prosecutions – Sentences on some counts and the cumulation direction found to be manifestly inadequate – Appeal allowed and increased sentence imposed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. Ms K. Judd | K. Robertson, Solicitor for Public Prosecutions |
| For the Respondent | Mr O.P. Holdenson, Q.C. | Galbally & O’Bryan |
PHILLIPS, C.J.:
The respondent, who is now aged 20, pleaded guilty in the County Court at Melbourne on 6 February last to a presentment containing four counts. These were two counts of culpable driving, based on gross negligence, in which the deceased persons were Jack Gilhooley and Joshua Martin respectively, (counts 1 and 2) and two counts of negligently driving a motor car causing serious injury, in which the victims were Tom Smith and Timothy Garrard respectively (counts 3 and 4). He also pleaded guilty to a summary offence which may be shortly described as having more than the prescribed concentration of alcohol present in his blood within three hours of driving a motor vehicle. All these offences were committed at View Bank on 28 July 2001 and carried maximum penalties of 20 years’ imprisonment (counts 1 and 2), five years’ imprisonment (counts 3 and 4) and a fine of $1,200 (the summary offence). A disqualification touching his drivers licence was also involved.
The respondent had no prior convictions and the learned sentencing judge presided over a plea proceeding. In the course of this four Victim Impact Statements were tendered and some of these were supplemented by oral evidence. Counsel for the respondent, in addition to addressing the judge on penalty, tendered five statements, viz: a statement by Ms Moseley, a loss and grief counsellor; two statements of Mr Patrick Newton, a forensic and counselling psychologist; a report of a Dr Paul Brown and a statement of the respondent made to the police on 5 April 2002. In addition, a witness named Smart was called to give viva voce evidence.
On 14 February 2003 the learned judge imposed the following sentences. Counts 1 and 2, four years’ imprisonment on each count; counts 3 and 4, 12 months’ imprisonment on each count; the summary offence, a fine of $200. His Honour directed that one year of the sentence on count 2 and three months of each of the sentences on counts 3 and 4 be served cumulatively upon each other and upon the sentence on count 1, making for a total effective sentence of five years and six months’ imprisonment. A non-parole period of two years and six months was fixed and the respondent’s driving licence cancelled for two years.
The appellant, the Director of Public Prosecutions, later lodged notice of appeal pleading the following:
“GROUND OF APPEAL
The individual sentences imposed in relation to Counts 1, 2, 3 and 4, the total effective sentence and the non-parole period are each manifestly inadequate.
PARTICULARS
In imposing the individual terms of imprisonment for Counts 1, 2. 3 and 4 and in making the orders with respect to cumulation as between those counts and in fixing the non-parole period, the learned sentencing judge:
(a)failed to adequately reflect the gravity of these offences generally and in this case in particular;
(b)failed to take into account or sufficiently to take into account the aspect of general deterrence;
(c)failed to take into account or sufficiently to take into account the aspect of specific deterrence;
(d)gave too much weight to factors going to mitigation;
(f)ordered an insufficient degree of cumulation between the sentences imposed on Counts 3 and 4 and between each of those counts with the sentence on Count 1.”
It is now necessary to set out, in summary form, the facts of this matter. Recourse has been made, in this exercise, to the statement of evidence supplied to the Court which has not been challenged.
On Saturday 28 July 2001 at about 3.40 a.m. a motor vehicle collision occurred on Lower Plenty Road View Bank. The collision involved a Lexus Soarer which contained five male occupants at the time it crashed. The vehicle was driven by the respondent, then aged 18 years.
The collision occurred when the respondent travelled at excessive speed and lost control of the vehicle after exiting a sweeping left curve on Lower Plenty Road. The vehicle left the roadway, colliding with a brick fence, garden rocks, a tree, a paling fence and a brick dwelling located on the South West corner of Lower Plenty Road and Broadlea Crescent. Only the respondent was wearing a seatbelt.
Jack Gilhooley was then aged 16 years and Joshua Martin was then aged 17 years as was Tom Smith. Tim Garrard was aged 19 years.
The respondent received minor injuries as a result of the collision.
The respondent then resided with his parents at an address in View Bank.. He was a part-time worker in his uncle’s restaurant as well as a student at Swinburne University. He was the holder of a probationary drivers licence which was issued to him on 11 December 2000, some seven and a half months before this collision. As a probationary licence holder he was required by law to have a zero blood alcohol content.
The Lexus Soarer, whilst registered to the respondent’s mother, was mainly considered as his father’s car, which the respondent had permission to use on occasions. The vehicle had a three litre, six cylinder, twin turbo charged motor. The car had the configuration of a sports coupe which provided seating for four persons.
During the Friday evening prior to the collision the respondent arranged with a group of friends to have a social gathering at his address in View Bank. After picking up and driving his friends to various local bottle shops to purchase alcohol, the group of friends gathered at the respondent’s house and began drinking alcohol. The respondent collected two females, Megan Burnham and Peta Shaw from North Eltham and returned with them to his home. These young people remained at the house as a group until approximately 11.45 p.m. when the two females indicated they wanted to leave to go to another party. From this, a “heated discussion” ensued between the group about not wanting the girls to leave. The respondent seemed to be the most upset with their decision and his mood swung to being “pissed off”. Burnham and Shaw left around 12.15 a.m. on Saturday 28 July.
Some time later, the respondent received a telephone call from Burnham who told him that there had been a fight amongst some of the youths in a group she was with at the BP Service Station in Eltham. A number of phone calls over a lengthy period of time took place between Burnham and the respondent. The respondent indicated that he was worried about Burnham and he told her that he was going to come and get her.
The respondent then got into the Lexus with the four other males taking up various seating positions. In total, therefore, there were five males in a vehicle that provided seating for four persons. The respondent drove from View Bank to the BP Service Station in Eltham, some ten kilometres. When the respondent arrived he saw a Christopher Kavanagh, walking across the apron of the Service Station.
According to Kavanagh, the respondent beeped the car’s horn and told him to get out of the way. The respondent eventually parked the Lexus in the parking bays.
When the Lexus arrived at the service station Burnham and Shaw made the observation of the respondent being angry and “fired up ready for a fight”. Burnham further stated:
“When Daniel and the boys arrived they appeared to me to be pretty drunk. Daniel was affected by alcohol but he looked more angry than drunk. By affected by alcohol I could tell that he had been drinking. I just know that he was affected by alcohol…I don’t know exactly how to describe it but he was affected.”
When the group left the service station the vehicle had the five male occupants plus Burnham and Shaw – a total of seven people. The respondent was driving and the two females were seated on the males’ laps, one in the front seat and one across the rear seat. Burnham stated that the respondent drove out of the service station as fast as the car could go and accelerated up to 110 kilometres per hour in a 60 kilometre per hour zone. The music was on in the vehicle at a very loud volume. Shaw told the respondent that she wanted to go home but he suggested that they go back to his house and he drove at about 100 kilometres per hour past the turn off to Burnham’s house. He continued travelling at that speed to the roundabout at the Eltham Shopping Centre where he did a fast “U” turn. Shaw felt uncomfortable about the way she was sitting and also felt unsafe without a seatbelt. A short time later the respondent stopped in the middle of Wattletree Road to argue about them going home and they had to yell at him to get him to move the car from the middle of the road. After they were dropped off Burnham heard the vehicle accelerate away fast. The respondent’s vehicle was next seen on Main Road Eltham, just East of the Eltham Shopping Centre by a group of three witnesses. They indicated that the car was travelling at approximately 100 kilometres per hour in a 60 zone when they first saw it. The respondent stopped his vehicle to speak to this group of males whom he knew.
The respondent drove around Eltham before dropping Burnham and Shaw at a house in Research. He then drove back through Eltham towards View Bank.
Whilst travelling through Eltham the respondent stopped in order to have a discussion with a group of youths known to him. At this point the local police arrived and spoke to the group. A policeman said to the respondent “I’m not talking to you because you’re too pissed”. They were not aware that the respondent was driving a vehicle which was parked a little distance away.
The respondent and the four passengers left in the car a short time later. The respondent was the only occupant wearing a seatbelt. There are no witnesses who saw the vehicle between Eltham and View Bank but, Stephen Johns, a resident of Lower Plenty Road, and a former testing engineer with Holden, informed the police that he was awake around 3.30 a.m. when he heard the sound of a vehicle travelling at an extremely fast rate of speed along Lower Plenty Road. He then heard the vehicle lose control and collide with solid structures.
One hour and forty-eight minutes after the collision the respondent had a breath test, the analysis of which indicated he had a blood alcohol content of 0.089%. He was later taken to the Austin Hospital where, at 8.40 a.m., a sample of blood was taken from him which was later analysed and found to contain a blood alcohol content of 0.06%.
The deceased Jack Gilhooley was the rear nearside passenger in the car. He died in the Austin Hospital at 7.06 a.m. on 28 July 2001.
The deceased Joshua Martin was the rear offside passenger and died in the vehicle.
Tom Smith was the front nearside passenger in the car. He received life threatening injuries which included fractured ribs, breathing difficulties and a collapsed lung with air leaking into the chest cavity which was compressing structures such as the heart and lungs. He was treated in hospital and eventually made a full recovery.
Tim Garrard was the middle rear passenger in the car. He received serious injuries which included a fracture of his left ulna (forearm) bone and a deep laceration to his scalp. He was treated in hospital and eventually made a full recovery. A plate was inserted into his arm.
Evidence on the roadway indicated that after the respondent negotiated the left curve in the roadway he applied the brakes to the vehicle which left a series of deceleration scuff marks, consistent with being caused by a vehicle with ABS fitted. He then oversteered the vehicle to the left causing a yaw type tyre mark to be left on the road. It then appeared that the respondent attempted to correct the left oversteer by oversteering back to the right. This caused the vehicle to sideslip.
The vehicle had left the roadway and sideslipped along the Southern footpath/nature strip with the front nearside of the vehicle colliding with and damaging a brick fence. The vehicle had continued in a Westerly direction travelling out of control along the Southern footpath, across Broadlea Crescent and into a property on the South-Western corner of the intersection of Broadlea Crescent. As the vehicle entered this property it had begun to roll onto its nearside whilst colliding with a tree, a paling fence and the brick dwelling on the property. The vehicle eventually landed upside down.
Police attended the scene shortly after the collision where the respondent made admissions to being the driver of the vehicle. He was subsequently conveyed to the Heidelberg Police Station where a breath test was conducted.
Doctor Morris Odell, a Forensic Medical Officer, was later provided with details regarding the respondent, his drinking pattern prior to the collision and the results of his alcohol testing. He stated that in his opinion:
“1.Mr Caldarera was driving after having consumed alcohol and had a blood alcohol concentration between 0.107% and 0.125% at the time of the collision.
2.His driving skills would have been adversely affected by the effects of alcohol at the time of the collision.”
Police from the Major Collision Unit interviewed the respondent. In that interview, which was tape recorded, the respondent admitted drinking alcohol at his home address, however he significantly understated the amount he consumed, stating that he only consumed two glasses of Jim Beam bourbon mixed with Coke. He stated that he was travelling at approximately 75 kilometres per hour at the time he lost control and that the loss of control was caused by him taking evasive action to avoid colliding with something he observed ahead of him. He was unsure exactly what it was that appeared in front of him – the respondent stating that it may have been a duck of a piece of metal. Nothing was found by police on the roadway.
Sergeant Bellion, an expert accident reconstructionist, was provided with photographs, measurements and other data relating to the collision scene. He used this information to calculate a minimum speed for the vehicle as it began to lose control. That minimum speed he calculated was 103 kilometres per hour. The car travelled a further 115 metres from that point until it came to rest.
Lower Plenty Road, View Bank, in the vicinity of the collision scene is a 70 kilometre per hour zone. At the time of the collision the road was wet and visibility good. There was no traffic in the vicinity of the collision at the time it occurred.
I now turn to the arguments of counsel on the appeal. Both counsel spoke economically to detailed written outlines of argument of a high standard. I shall endeavour to reflect that combination. The Director of Public Prosecutions began his submissions by referring to principles which govern appeals by the Director of Public Prosecutions that are set out in R. v. Clarke[1]. In particular, he relied on a passage from the judgment of Charles, J.A. (with whom Winneke, P. and Hayne, J.A. agreed). After observing that Director’s appeals should be brought in only rare and exceptional circumstances, his Honour said (522):
“Occasions may arise for the bringing of a Crown Appeal
(a)When a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300)…”
[1][1996] 2 VR 520
Mr Coghlan submitted that the sentences imposed on the culpable driving counts would have been ludicrous if they had been any lower. He contended that all the individual sentences were “outside the range” and that when a cumulation direction “in itself inadequate” was made there followed a manifestly inadequate sentence and consequent error in principle.
Counsel pointed to the learned judge’s description in his reasons for sentence:
“At about 3.30 on the morning you and other passengers in the car responded to a female friend’s call for assistance at a nearby service station. In the course of travelling to that location in the vicinity of Lower Plenty Road View Bank, and approaching the intersection of Broadlea Crescent, you lost control of the car, the car skidded from the road, collided with a fence, crashed through a garden and ultimately collided with a house.” (34)
Such a description – of the collision occurring during a “rescue mission” - was to seriously mistake what occurred, counsel submitted.
Mr Coghlan contended that this was a serious case of culpable driving and of negligently causing serious injury. The case involved both speed (at least 103 km per hour in a 70 km per hour zone) and alcohol (at least 0.89%). The road was wet. The vehicle travelled 115 metres after loss of control. Counsel reminded the Court that there were two deaths and the injuries suffered by the victims in counts 3 and 4 were very serious.
Tom Smith had suffered life threatening injuries although his recovery has been good. Tim Garrard had suffered serious injuries and has a permanent plate in his left arm.
Counsel submitted that the individual sentences of four years for culpable driving (against a maximum sentence of 20 years) and the individual sentences of one year for negligently causing serious injury (against a maximum sentence of five years) are manifestly inadequate. Each sentence was but 20% of the maximum. The most significant inadequacy, however, he submitted, is to be identified in the total effective sentence.
Mr Coghlan said he relied on each of the particulars set out in the notice of appeal, namely that the learned sentencing judge:
(a)failed to adequately reflect the gravity of these offences generally and in this case in particular;
(b)failed to take into account or sufficiently take into account the aspect of general deterrence;
(c)failed to take into account or sufficiently take into account the aspect of specific deterrence;
(d)gave too much weight to factors going to mitigation;
(e)ordered an insufficient degree of cumulation as between the sentences imposed on counts 1and 2; and
(f)ordered an insufficient degree of cumulation between each of those counts with the sentence on count 1.
In particular, so the argument went, the appellant relied on the principle of general deterrence, which was, it was submitted, of paramount importance in respect of sentencing for the offence of culpable driving. DPP v. Wareham[2]; R. v. McGrath[3]; R. v. Taylor[4]; R. v. Sherpa[5]; R. v. Bekhazi[6] and DPP v. Scott[7].
[2][2002] VSCA 110 at 16
[3][1999] VSCA 197 at 18
[4][1999] 206 at 11
[5][2001] VSCA 145 at 11
[6](2001) 3 VR 321 at 18
[7][2003] VSCA 25
In McGrath an application for leave to appeal against a sentence of five years’ imprisonment with a non-parole period of two years and nine months for an offence of culpable driving, was dismissed. It had been argued, inter alia, that the sentence was manifestly excessive. Callaway, J.A. (with whom Batt and Chernov, JJ.A. agreed,) after noting that the victim was blameless and some details of the offender’s gross driving, observed:
“There is no standard sentence. I would not give currency to the idea that five years’ imprisonment is a standard sentence. Every case depends on its own facts; but, in a case such as I have just described, general deterrence is of paramount importance.” (6)
In Wareham, a sentence of five years’ imprisonment with a non-parole period of two and a half years for an offence of culpable driving was the subject of an appeal by the Director of Public Prosecutions. It was held that the head sentence was manifestly inadequate. O’Bryan, A.J.A., with whom Winneke, P. and Buchanan, J.A. agreed, cited McGrath:
“There is no standard sentence, but general deterrence is of paramount importance for culpable driving.” (6)
The sentence was increased to one of six years’ imprisonment with a non-parole period of four years.
In Taylor (which was apparently the first case to come before the Court of Appeal after Parliament had increased the maximum sentence for culpable driving to 20 years’ imprisonment), an application for leave to appeal against a sentence of seven years with a non-parole period of three and a half years was dismissed. The offences involved were a count of culpable driving and two counts of negligently causing serious injury. Brooking, J.A. (Phillips and Buchanan, JJ.A. agreeing), observed:“(Counsel) relied on the applicant’s youth and submitted that the requirements of general deterrence ought to have been moderated by the youth of the offender and the importance of rehabilitation. But these offences are, unfortunately, often committed by young men. General deterrence must be emphasised.” (6)
In Sherpa a sentence of seven years’ imprisonment with a non-parole period of five years for culpable driving was reduced on appeal. Callaway, J.A., (with whom Ormiston, J.A. and O’Bryan, A.J.A. agreed) said:
“General deterrence must usually be emphasised in the punishment of this offence and there is correspondingly less scope than in the case of some other crimes for leniency on a count of an offender’s youth.” (3)
Bekhazi was a case where an application for leave to appeal against a sentence of seven years’ imprisonment with a non-parole period of five years for offences of culpable driving and reckless conduct endangering life, was dismissed. It had been argued that the sentence was manifestly excessive and that error had occurred in the cumulation direction made as both offences were constituted by one act. Winneke, P., presiding, observed:
“In the light of the evidence before him, his Honour was entitled to conclude that this was a bad example of the offence of culpable driving and that the principles of deterrence should play their part in fixing an appropriate penalty.” (332) (Charles and Vincent, JJ.A. agreed.)
Scott was a case of a Director’s appeal against a sentence of four and a half years’ imprisonment with a non-parole period of two years. Offences of culpable driving and negligently causing serious injury were involved. Vincent, J.A. (with whom Cummins, A.J.A. and I agreed) said:
“…the level of personal culpability of the applicant for the commission of the offences presently under consideration must be regarded as extremely high. Both general and specific deterrence assumed importance as relevant sentencing considerations.”
The appeal was allowed and the sentence increased to five and a half years’ imprisonment with a non-parole period of three years.
Mr Coghlan submitted that the non-parole period, being less than 50% of the head sentence, is lower than usual. A non-parole period ought to play a part in punishment and deterrence. The deterrent aspect of this non-parole period is questionable. He cited (R. v. V.Z[8]). In that case an application for leave to appeal against sentence was successful and a non-parole period of six and a half years against a head sentence of eight years’ imprisonment was reduced to five and a half years. Callaway, J.A. with whom Batt, J.A. and I agreed, referred to R. v. Krasnovand Shlakht[9]. In that case an “unusual” non-parole period of 14 years against a head sentence of 16 years had been fixed without the sentencing judge stating reasons for taking such a course. His Honour continued:
“Similarly, in this case, no reason was given for fixing a non-parole period of six and a half years. That does not inevitably betoken error, …but a failure to give reasons invites scrutiny if the non-parole period is unusual either by comparison with other cases or having regard to the facts of the instant case or the course of the plea.” (3)
[8][1998] VSCA 32 at 15
[9](1995) 82 A. Crim. R. 92
Mr Coghlan submitted that a message has to be conveyed to the community that it is not acceptable to drink and drive. In respect of a P-Plate driver, it is a condition of their licence that they remain alcohol free when driving. The respondent was taken to have a blood alcohol concentration at the time of the collision of between 0.089% and 0.125%. If a P-Plate driver does drink and drive and as a result takes a life (or in this case two lives), a substantial period of imprisonment must be imposed on that offender.
Culpable driving, he continued, is a species of involuntary manslaughter and it must be treated as such (R. v. O’Connor[10]; R. v. McGrath[11]; DPP v. Wareham[12] and R. v. Tran[13]).
[10][1999] VSCA 55 at 19
[11][1999] VSCA 197 at 17
[12][2002] VSCA 110 at 11
[13][2002] 4 VR 457 at 32
O’Connor contains the now oft quoted observations of Winneke, P.
“If there is still a residual opinion existing in this community that the offence of culpable driving is not to be treated like other criminal offences because it is ‘a tragedy for all concerned’ – and I use those words advisedly in the context in which arguments have been advanced in this case – then, in my view, the time has come for such views to be dispelled. Offences of culpable driving are commonly committed by persons who are of good character, but it must be understood that the community will not tolerate the taking of human life by acts of gross negligence of the sort that occurred in this case. The offence is a species of involuntary manslaughter, and it must be treated as such.”
Tran involved the driving offences of two counts of culpable driving and four counts of negligently causing serious injury. It was an application for leave to appeal against a sentence of ten years’ imprisonment with a non-parole period of seven years. The Court found error in the sentencing process in the Court below but, upon re-sentencing, the same sentence was imposed save for the aspect which involved disqualification of the offender’s driving licence. Callaway, J.A. recalled his remarks in Sherpa, already cited.
In addressing the matter of cumulation, counsel submitted that it is important that sentencing courts ensure that each offence, in particular each death, be adequately recognised in both the overall sentence and the way in which a sentence is structured. Obviously, this has to be moderated by reason of other sentencing principles, in particular the principle of totality. However, it is important for victims and their families to feel that each crime (or death) is recognised in the sentence. In this case, the sentence and the cumulation orders were not effective to achieve these requirements. The sentences imposed did not sufficiently recognise the existence of separate obligations owed to each of the several victims. Mr Coghlan claimed that this submission falls into stark reality when the individual sentences are examined (R. v. Bekhazi[14] and R. v. Guariglia[15]).
[14][2001] 3 VR 321 at 14 and 24
[15][2001] VSCA 27 at 20-21
Guariglia was an application for leave to appeal against sentence. Two pedestrians had been killed by the culpable driving of the offender and he had received sentences of six years’ imprisonment on each count. The learned sentencing judge had then cumulated three years of the sentence on count 2 upon the sentence on count 1 making for a total effective sentence of nine years’ imprisonment. A non-parole period of five years and two months was fixed. After noting that the real complaint of the applicant was one of excessive cumulation of sentence, and that cumulation has in the past been directed for the purpose of recognising that two offences causing injury have been committed against two different victims, Winneke, P. continued:
“No different principle is involved, in my view, where the offences have resulted in multiple deaths, save that the maximum penalties available are much greater. So long as the cumulation does not offend the principle of totality it is, as I see it, properly within the exercise of a sound discretion to recognise the fact that the culpable driving has caused multiple deaths by cumulating a sensible portion of the sentence imposed for one offence upon the sentence imposed for the other.” (7) (Brooking and Charles, JJ.A. agreed.)
I note that in the course of his submissions Mr Coghlan did allow “there might be some scope for a longer than usual parole period”.
Mr Holdenson, for the respondent, began his submissions by contending:
“What makes this sentence unappellable is all those matters which, in combination, make this case different to all the cases provided to the Court by the appellant.”
He proceeded to point out that on the plea before the learned sentencing judge, counsel for the respondent relied upon a number of matters in mitigation of sentence; these matters included:
(a)the respondent’s pleas of guilty to each of the offences for which he fell to be sentenced;
(b)the consequences of the respondent’s pleas of guilty;
(c)the age of the respondent (namely, 18½ years) at the time of his commission of the offences for which he fell to be sentenced;
(d)the age of the respondent (namely, 20 years) at the time of the imposition of sentence;
(e)the respondent’s good family background;
(f)the respondent’s otherwise good character; he had not been otherwise charged with the commission of any offence; and
(g)the respondent had been rendered unable to continue wit his tertiary studies.
Mr Holdenson also placed substantial reliance upon the documentary materials placed before the learned sentencing judge; those materials included:
-the letter dated 11 November, 2002 provided by Ms Gilliam Moseley, Counsellor (Exhibit 1);
-the report dated 11 November, 2002 prepared by Mr Patrick Newton, Psychologist (Exhibit 2);
-the report dated 4 February, 2003 prepared by Mr Patrick Newton Psychiatrist (Exhibit 3)
-the reported dated 1 February, 2003 [sic] prepared by Dr Paul Brown Psychiatrist (Exhibit 4).
These materials disclosed, counsel contended, a number of matters relevant to the exercise of the sentencing discretion, including:
(a)the respondent was genuinely and deeply remorseful and ashamed of his offending and its consequences;
(b)the respondent was experiencing and suffering from profound distress and anxiety;
(c)the respondent was suffering from a major depressive disorder; and
(d)the respondent had a post-traumatic stress disorder.
The genesis of both the respondent’s profound distress and anxiety and the two disorders being suffered by him, so the argument went, were the respondent’s offending and its consequences.
Mr Holdenson then proceeded to take the Court through a number of the cases in the written outlines in development of his opening submission.
Counsel continued his submissions, arguing that the sentencing judge plainly had specific deterrence (and indeed general deterrence) in mind. He had neve said that “lesser weight” was being given to specific deterrence. In Wareham, O’Bryan, A.J.A. had said:
“For present purposes, I would accept that a sentence of five years’ imprisonment for a single fatality culpable driving offence based upon gross negligence and without aggravating features would be within the range available to a sentencing judge. The particular circumstances might justify a greater or lower sentence.” (6)
In Scott similar observations by the same judge, and quoted by Vincent, J.A., occur.
“I would accept that a sentence of four years’ imprisonment for a culpable driving offence based upon gross negligence and without aggravating features is within the range available to a sentencing judge.” (10)
Mr Holdenson pointed out that, on the plea, counsel for the respondent also placed reliance upon the evidentiary material which disclosed that the respondent had been the subject of a number of “incidents” from a person who was related to one of the victims; these “incidents” had caused the respondent much anxiety, distress and to be fearful for his personal safety and that of his family and should be viewed as exacerbating his distress and anxiety.
On the material before him, it was submitted it was open to the learned sentencing judge to find that the respondent had good prospects of rehabilitation, which a significant prison term might undermine as well as operating harshly upon him. Findings were also open that the respondent had, to an extent, already been punished and was unlikely to re-offend:
Consideration of the respondent’s age and other mitigating matters made it both proper and necessary for the judge to approach his sentencing on the basis of maximising his prospects of rehabilitation and giving limited weight to such matters as specific and general deterrence and retribution. This, in effect, it was submitted, is what the learned judge had done. The length of the non-parole period was of particular importance in this context and appropriately fixed by his Honour.
Mr Holdenson completed his submissions by submitting that in the light of the considerations he had put forward this case does not fall within the class of case in which it is appropriate for the bringing of a Crown appeal. He cited R. v. Clarke[16] supra and, by way of an alternative submission, argued that this Court ought not intervene in the exercise of its overriding discretion. In this connection he referred to R. v. Boxtel[17].
[16][1996] 2 VR 520 at 522
[17][1994] 2 VR 98 at 104
Boxtel was a case where, by a majority, an appeal by the Director of Public Prosecutions was dismissed. The sentence involved was of a head sentence of four years’ imprisonment with a non-parole period of 15 months. After noting that the appellant did not challenge the head sentence but rather directed attack to the non-parole period fixed, Crockett and Hampel, JJ., after reviewing a number of relevant authorities, continued:
“Finally, we consider that, even if sentencing error had been established, we ought not in the exercise of our discretion intervene so as to pass a different sentence. The existence of such a discretion in such circumstances is beyond question. See R. v. Myers and Ward (unreported, Full Court, 31 August 1993) and the cases referred to therein.
The application of the double jeopardy principle to the present case would have the effect of ‘discounting’ any increase in the sentence. Such an increase would thus be minor bearing in mind the length of the original sentence. In such circumstances we consider that the intervention of this court could not be justified.” (105)
Again citing Boxtel, Mr Holdenson submitted that if this Court were to intervene, it would, in having regard to the principle of “double jeopardy”, be required to impose a substantially lesser sentence than that which otherwise should have been imposed with the consequence, in this case, of “requiring” the Court to impose the same sentence.
After consideration of the arguments of counsel, some general observations may be made.
*That this is a bad case of culpable driving has never been seriously disputed.
*The respondent’s decision to plead guilty was a relatively late one – the first indication coming in October 2002. The respondent had reserved his plea after a contested committal in July of that year when 17 prosecution witnesses were cross-examined. The respondent, of course, should not have this used against him, but the degree of discount for the plea, which might otherwise have been allowed, is affected accordingly.
*On the related matter of remorse, the learned judge found that there had been “a degree of remorse” despite assertions of a higher level of it in some of the reports tendered.
*Early in the plea the judge expressed concern about the time it had taken to bring this matter to completion but the respondent’s able senior counsel came to concede “…there hasn’t been substantial delay. There has been some delay but not of any magnitude.” (32) I think this was said in the context of the timing of the plea indication, but, in any event, there was certainly no evidence of culpable delay on the part of the prosecution.
*The learned judge’s description in his reasons for sentence of the timing of the collision was clearly wrong but I am unable to determine whether this was a true mistake of understanding or simply an error in the drafting of the reasons.
I now turn to my conclusions.
Consistently with long established precedent resolution of this appeal involves ascertainment of all the relevant circumstances and then inspection of the face of the sentence in order to see whether or not it is indeed manifestly inadequate as alleged. If it is found to be so, (the onus being on the appellant), then it will be inferred that the judicial discretion has in some way miscarried and establishment of some specific, and identifiable, error is not necessary.
Carrying out this process I am satisfied that the sentences on counts 3 and 4
the cumulation direction and the non-parole period are manifestly inadequate.
Again, bearing in mind the onus of the appellant, and with some hesitation, I am not so satisfied with respect to the sentences on counts 1 and 2.
Prominent among my reasons for the conclusions set out in paragraph 66 are the maximum penalties fixed by Parliament for the relevant offences, the multiplicity of victims, the gross degree of negligence displayed by the respondent and its grave consequences.
Should the other members of the Court agree, it will fall to us to re-sentence the respondent. Bearing in mind matters urged on his behalf and the doctrine of double jeopardy developed by the High Court, I would propose that he be re-sentenced as follows.
Count 1 – four years’ imprisonment
Count 2 – four years’ imprisonment
Count 3 – two years’ imprisonment
Count 4 – two years’ imprisonment
I would further propose that two years of the sentence on count 2 and six months of each of the sentences on counts 3 and 4 be served cumulatively upon each other and upon the sentence on count 1, making for a total effective sentence of seven years’ imprisonment. Taking into account, in addition to the foregoing, Mr Coghlan’s allowance that there “might be some scope for a longer than usual parole period” I would propose a non-parole period of three years and eight months.
VINCENT, J.A.:
I agree that this appeal should be allowed and the respondent re-sentenced as proposed by the learned Chief Justice.
ASHLEY, A.J.A.:
I have had the advantage of reading in draft the judgment of the learned Chief Justice. I agree in the disposition of the appeal there proposed, and with his Honour’s reasons.
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