Director of Public Prosecutions v Morgan
[2022] VCC 1052
•6 July 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00535
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DALE MORGAN |
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JUDGE: | Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 June 2022 | |
DATE OF SENTENCE: | 6 July 2022 | |
CASE MAY BE CITED AS: | DPP v Morgan | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1052 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Negligently causing serious injury – Failing to render assistance after a motor vehicle accident – Recklessly engaging in conduct endangering persons – Exceeding the prescribed concentration of alcohol –
Legislation Cited: Crimes Act 1958 (Vic); Road Safety Act 1986 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Harrison & Rigogiannis v The Queen (2015) 49 VR 619; Papachristodoulou v The Queen [2017] VSCA 284; Sutic v The Queen [2018] VSCA 246; Halket v The Queen [2016] VSCA 221; Sarikaya v The Queen [2015] VSCA 236; Abbott v The Queen [2021] VSCA 149; Neskovski v The Queen [2022] VSCA 86; R v Samia [2009] VSCA 5; Towle v The Queen [2009] VSCA 280; Sutic v The Queen [2018] VSCA 246; Worboyes v The Queen [2021] VSCA 169; Cook v The Queen [2021] VSCA 293; DPP v Dalgliesh (2017) 262 CLR 428; Byast v The Queen [2021] VSCA 344; DPP v Barry [2017] VSCA 344; Walsh v The Queen [2018] VSCA 317; Bankal v The Queen [2019] VSCA 171; Postiglione v The Queen (1997) 71 ALJR 875; Landale v The Queen [2022] VSCA 121; Hawker v The Queen [2022] VSCA 127
Sentence: 5 years and 10 months’ imprisonment – 3 year non-parole period – s 6AAA declaration – 8 years and 6 months’ imprisonment with a minimum non-parole period of 5 years – Plea of guilty – Serious offending – Prospects of rehabilitation – General deterrence – Current sentencing practices
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Hogan | Office of Public Prosecutions |
| For the Accused | Mr A. Moore | Slades & Parsons |
HIS HONOUR:
1Dale Morgan, you have pleaded guilty to the following four charges:
(a) Negligently causing serious injury, which carries a maximum penalty of 10 years’ imprisonment;[1]
(b) Failing to render assistance after a motor vehicle accident, which carries a maximum penalty of 10 years’ imprisonment;[2]
(c) Recklessly engaging in conduct endangering persons, which carries a maximum penalty of 5 years’ imprisonment;[3] and
(d) Exceeding the prescribed concentration of alcohol within 3 hours of driving a motor vehicle which carries a maximum penalty of a fine of 20 penalty units.[4]
[1] Crimes Act 1958 (Vic), s 24.
[2] Road Safety Act 1986 (Vic), s 61(1)(b) and (3).
[3] Crimes Act 1958 (Vic), s 23.
[4] Road Safety Act 1986 (Vic), s 49(1)(f).
Facts
2The circumstances of your offending are described in the Summary of Prosecution Opening dated 6 June 2022.[5] This is an agreed summary. The following outline is a summary of the Opening.
[5] Exhibit P1.
3On 21 March 2019 you went to the Shoppingtown Hotel in Doncaster between 4.00 pm and 5.00 pm. You met friends of yours, Cassine DeVoy, Hillary Green and Daniel Newnam. You were drinking together and you told police that you drank about 10 schooners or pints of beer as well as ‘probably around another ten [mixed] drinks as well’.[6] When the bar closed at 10.30 pm, you offered to drive the other three to the Doncaster Inn.
[6] That is what you told Mr Patrick Newton, psychologist – see report dated 14 June 2022, para [36].
4The four of you arrived at the Doncaster Inn a short time later and drank together there until about 12.30 am on 22 March 2019. You then left the hotel and you got into the driver’s seat of your car with the other three in the passengers’ seats. Before you started to drive, Mr DeVoy said something like ‘are you right to drive?’ You told Mr Patrick Newton, psychologist, that you could not account for your decision to drive.[7]
[7] Report of Mr Patrick Newton dated 14 June 2022, para [36].
5You drove for a short distance along Victoria Street until you turned into George Street when you started to drive fast. George Street has hills and dips and Mr DeVoy describes a sensation of weightlessness in his stomach as you drove over the hills. He describes the experience as like being on a rollercoaster. He says you were driving ‘like a maniac’ and, while he does not know your speed, it was ‘well in excess of a reasonable speed’.
6At 12.35 am, Ramon Jimenez was driving his Mitsubishi Magna along George Street when you collided with the rear of his car. He was alone in the car. His car came to rest approximately 181 metres further along the road. The Magna suffered major damage and Mr Jiminez ended up in the rear passenger seat.
7Mr Jiminez suffered a number of injuries as a result of the collision. These included a left parietal haemotoma, left temporal lobe contusion, left subdural haematoma, minimally displaced fracture of the sternal body with an associated small overlying haematoma. He also experienced a reduction in his conscious state associated with a seizure and required intubation and subsequent admission to ICU. He was placed in an induced coma for the purposes of surgery. He regularly attended the Royal Melbourne Hospital for treatment during the 10 months following the accident. Fortunately, he has largely made a full recovery (Charge 1 – negligently causing serious injury).
8After seeing the extensive damage to your car, you and Mr Newnam walked to Mr Green’s house in Box Hill North. You did not check on the welfare of Mr Jiminez who was lying seriously injured in his car (Charge 2 – Failing to render assistance after a motor vehicle accident).
9Mr DeVoy and Mr Green walked to the Magna and Mr DeVoy was injured when the Magna rolled trapping his leg. Mr Green remained at the scene with Mr Jiminez until the Fire Brigade arrived. He then walked home.
10Mr DeVoy’s injuries included a T1 vertebral fracture and leg injuries. He was transported to Box Hill hospital by ambulance where he was treated for 5 days. He had to wear a brace for a further six weeks. Your other passengers suffered minor bruising. All three were exposed to the danger of serious injury by your driving (Charge 3 – reckless conduct endangering persons). Charge 3 is a rolled up charge.
Investigation
11Police located you in Box Hill and took you to the Box Hill police station where they administered an evidentiary breath test at 3.27 am. You recorded a breath alcohol concentration of 0.168 g of alcohol per 210L of breath (related summary charge – exceeding prescribed concentration). Your licence was suspended for 12 months. You told police you were not the driver of your car. That was a lie. However, on the following day, you contacted police and told them that you were the driver.
12On 1 May 2019, you were interviewed by Police. You admitted you had been the driver at the time of the collision but were unable to recall the details of your driving. You made a number of admissions in the interview including what you had drunk and the events of the evening. You said you left the scene in panic and that you were sorry for the pain and suffering you had caused.
13Detective Senior Constable MacFarlane, a reconstruction expert with the Major Collision Investigation Unit provided a collision reconstruction and opined that your Audi A4 was travelling at between 87 kph and 116 kph in a 60 kph zone at the time of the collision.
14Dr Morris O’Dell, head of Clinical Forensic Medicine at the Victorian Institute of Forensic Medicine, opined that with a blood alcohol concentration of .0168% you would have been incapable of having proper control of a motor vehicle. He also concluded that you would have had a total body content of alcohol at the time of the collision equivalent to a blood alcohol concentration between 0.197% and 0.255%.
Victim Impact
15The court received a victim impact statement dated 4 July 2022 prepare by Ramon Jiminez.[8] In the statement, he describes the physical, social, financial and emotional impacts of your crime. He was unable to work at all for some months and unable to drive for 10 months. I have taken into account the contents of the VIS.
[8] Ex P2.
Objective gravity and moral culpability
Charge 1 – Negligently causing serious injury
16The first charge to which you plead guilty is negligently causing serious injury (NCSI) by your driving. The Court of Appeal has explained the policy rationale behind the law in the following terms:
The motor vehicle is an integral part of our society. Most adult citizens drive cars. A car driven negligently is capable of producing catastrophic consequences for victims. When the degree of negligence of the driver increases, there is a corresponding increase in the likelihood of devastating consequences. The most serious instances of the offence of NCSI by driving demonstrate negligent conduct of the highest order.[9]
[9] Harrison & Rigogiannis v The Queen (2015) 49 VR 619 at [106].
17The Court also explained the purpose of sentencing for such offending:
The law thus provides for particular penal consequences for those who drive in a negligent manner and cause serious injury. The primary purposes for the sanction are twofold: to punish the offender and to deter drivers from driving irresponsibly.[10]
[10] (2015) 49 VR 619 at [107].
18The nature and gravity of the offence of NCSI are evidenced by the maximum penalty of 10 years’ imprisonment. The maximum penalty was increased from 5 years in 2008.
19A person will not be found guilty of the offence of NCSI unless the degree of negligence associated with their driving amounts to criminal or gross negligence.
20The Court of Appeal has also described how a court should assess the objective gravity of a particular instance of NCSI by driving. In Papachristodoulou v The Queen, Kaye JA and T Forrest AJA referred to a number of earlier cases and explained that:
In general, an assessment of the seriousness of such an offence is made by reference both to the degree of departure by the offender from the standard of reasonable care expected of an ordinary driver, and by the seriousness of the injuries occasioned by the driving. In turn, an evaluation of the degree of departure by the offender from the requisite standard of care is informed by a variety of factors, including the degree of risk and potential harm involved in the manner of driving by the offender and the foreseeability of the risk created by the offender’s driving.[11]
[11] [2017] VSCA 284 at [34], references omitted.
21I consider that on 22 March 2019 your departure from the standard of reasonable care expected of an ordinary driver was very considerable. Put simply, your decision to drive followed by the manner in which you drove on this night was appalling. So much is acknowledged by your counsel’s written submissions in which it is accepted that ‘there is a high degree of negligence in this case’.[12] Your counsel accepted that your case falls within the category of NCSI cases described by the Court of Appeal in Harrison v The Queen as ‘in the upper range of seriousness’.[13]
[12] Written submissions dated 16 June 2022 at [28].
[13] (2015) 49 VR 619 at [140].
22The features of your driving that lead this Court to this conclusion are:
(a) First, the speed at which you were driving. One of your passengers, Mr DeVoy, says you drove at a speed well above what was reasonable. He said he was really scared. As noted above, your speed at the time of the collision was estimated by a police accident reconstruction expert to be between 87 and 116 km/h. The speed limit in that part of George Street, Doncaster was 60 km/h. You were at least 27 kph above the maximum speed limit and possibly as much as 56 kph above that limit;
(b) Secondly, the quantity of alcohol in your blood at the time. Within approximately 3 hours of the collision, you recorded a breath alcohol concentration of 0.168 grams of alcohol per 210L of breath. Dr Odell estimates that your blood alcohol concentration at the time of the collision was between .0197% and 0.2555%. This is a very high reading indeed. It of course resulted from your very heavy alcohol consumption over many hours the previous evening. Dr Odell opines that you would have been ‘incapable of having proper control of a motor vehicle’ in those circumstances;
(c) Thirdly, you persisted in driving even when asked by Mr DeVoy if you were alright to drive; and
(d) Fourthly, you drove your car in these circumstances despite having three passengers in your car whose safety you were responsible for and knowing there were other drivers on the road to whom you owed a duty of care.
23There was clearly a high degree of risk of harm arising from the way you drove your car. One of your passengers on the night, Mr DeVoy said he was ‘very worried we would have a crash’.
24The injuries suffered by Mr Jiminez were clearly serious as you accept by your plea of guilty to charge 1. They were detailed earlier in this sentence.
25As noted, your counsel Mr Hill QC accepts, and I find, that your offending on charge 1 is in the ‘upper range of seriousness’ as that expression was used by the Court of Appeal in Harrison & Rigogiannis v The Queen.[14] I will return to consider the consequences of this characterisation for sentencing you.
[14] (2015) 49 VR 619 at [140].
26This was not a momentary lapse of concentration by a young person resulting in serious harm as is sometimes seen in this court in driving cases.[15] It was a ‘wilful and deliberate disregard of the fundamentals of road safety’.[16]
[15] Cf. Sutic v The Queen [2018] VSCA 246 at [54].
[16] Halket v The Queen [2016] VSCA 221 at [26].
27You are a mature man with many years of driving and life experience. You had been drinking to excess for many years and yet you chose to drive your car on this night after consuming a large quantity of alcohol. At no stage have you explained why you did not catch a taxi or an Uber.[17] And you chose to drive in a manner that you accept by your plea of guilty to charge 3 was reckless.
[17] You told Mr Patrick Newton that you could not account for your decision to drive and that you would usually have caught a taxi – see exhibit D1 at para 36.
28I conclude that your moral culpability in respect of charge 1 is very high.
Charge 2 – Failing to render assistance
29You have also pleaded guilty to a charge of failing to render assistance to Mr Jiminez which also carries a maximum penalty of 10 years’ imprisonment. In 2005, the maximum sentence for the offence was increased from 2 years’ to 10 years’ imprisonment. The reason for this dramatic increase was explained by the Court of Appeal in the case of Sarikaya v The Queen:
The Second Reading Speech of the Minister for Transport, and a number of decisions of this court, have recognised that the increase in the maximum sentence was designed to dissuade persons, involved in an accident, from fleeing the scene. The fivefold increase in the maximum sentence makes it plain that Parliament intended that general deterrence be given significant weight in the exercise of the sentencing discretion in a case such as this.[18]
[18] [2015] VSCA 236 at [34].
30Under s 61(1)(b) and (3) of the Road Safety Act 1986 (Vic) you were required to render such assistance to Mr Jiminez as you could.[19] The obligation ‘subsists whether or not others are present who are capable of or are rendering assistance’.[20] As the Court of Appeal has explained, breaches of the section are ‘regarded very seriously and substantial terms of imprisonment have been imposed’.[21]
[19] I note that you are not charged with the separate offence of failing to stop – see s 61(1)(a).
[20] Abbott v The Queen [2021] VSCA 149 at [76].
[21] Ibid at [82]; Neskovski v The Queen [2022] VSCA 86 at [29].
31In assessing the gravity of this aspect of your offending I have had regard to your explanation in your police interview for leaving the scene which was that you panicked. It is also relevant in assessing the gravity of your offending, that Mr Jiminez was not left alone and without assistance.[22] Fortunately, two of your passengers, one of whom was himself injured, went to the aid of Mr Jiminez. Unlike you, they were under no legal obligation to do this and it is to their credit that they did so. I agree with your counsel’s description of your behaviour as ‘disgraceful’.
[22] Sarikaya v The Queen [2015] VSCA 236 at [40].
32On balance, I assess this as a mid-range example of the offence of failing to render assistance in circumstances where the defendant is charged on the basis that he ‘ought to have known’ that a person was seriously injured.
Charge 3 – reckless conduct endangering persons
33Your driving on the night in question not only led to the injuries suffered by Mr Jiminez but also endangered the safety of your three passengers. For the reasons I have already explained, this is a high-level breach. Fortunately, none of your passengers suffered serious injury in the collision. However, the impact of the collision could have been far worse for each of them.
34Charge 3 is a rolled-up charge which means that you face only one maximum penalty of 5 years’ imprisonment despite the exposure of each of your passengers to risk of serious injury being a separate offence. It is incorrect to approach sentencing in such a case as requiring a sentence of three times the individual sentences that would have been imposed had you pleaded guilty to 3 separate offences.[23] However, I must impose a sentence that recognises that there were three individual victims.[24] At the same time, the sentence must reflect that the conduct being punished is the same conduct for which you are to be punished under charge 1. You are not to be punished twice.
[23] R v Samia [2009] VSCA 5 at [12].
[24] Towle v The Queen [2009] VSCA 280 at [92]; Halket v The Queen [2016] VSCA 221 at [37].
Charge 4 – Exceed PCA
35A reading of .0168 is clearly a high reading. This offence was committed as soon as you started the second period of driving.[25] However, for sentencing purposes, the quantity of alcohol in your blood on the night in question is clearly central to the driving charges and you are not to be doubly punished.
[25] Cf. Sutic v The Queen [2018] VSCA 246 at [89]-[90].
Personal background and circumstances
36You were born in May 1972 and you have an elder sister to whom you are close.
37You grew up in a conflict-ridden household and your parents, who were heavy drinkers, separated when you were 8 years old.
38You were educated to year 12 at Yarra Valley Grammar school and graduated in 1989. Since that time, you have worked in a variety of jobs as a financial planner. Your longest job was with Westpac where you met your wife Joanne, to whom you have been married for 19 years.
39In 2016, your financial advisory practice was purchased by Viridian Advisory, a director of which, Mr Jim Tellis, provided a reference to the Court.[26] Mr Tellis, who has known you for 20 years and is fully aware of this matter, informs the court that he wishes to employ you in the future.
[26] Exhibit D4.
40It is clear to the court that you have the strong support of your sister, Dr Kelly Cassidy and your wife Joanne Morgan, each of whom provided moving character references to the court.[27] Dr Cassidy states that while you understand that you can’t change the events of the night of the collision, you can change your behaviour that led you there. She says that she has seen evidence of this and is confident that ‘with our family support, this change is sustainable’’. Ms Morgan asks for the court’s trust that nothing like this will happen again. She says that you are both committed to ‘creating a positive future for ourselves and all those around us in the community’. This support is relevant to your prospects of rehabilitation which I discuss below.
[27] Exhibits D3 and D5, respectively.
41You have had a longstanding problem with alcohol starting when you were a teenager. By the time of the collision, you were consuming between 10 and 20 standard drinks four or five times a week. Rare were the days when you did not consume alcohol.
42After the collision, you were referred to a psychologist, Mr Robert Ellery, for assessment and treatment. In his report dated 14 June 2022,[28] Mr Ellery states that you have attended 31 counselling sessions with him since March 2019. He has diagnosed you with Alcohol Use Disorder in Moderate and Sustained Remission.
[28] Exhibit D2.
43Mr Ellery reports that you have been administered the Depression, Anxiety and Stress Scale at approximately six-monthly intervals and each time you have scored within the Severe or Extremely Severe category for each of the three factors.
44Mr Ellery states that, as part of your treatment, you have professed a life-long commitment to zero alcohol consumption. He notes that, while you have had month-long bouts of sobriety, you have suffered relapses since the accident. He notes that you are fully committed to regular on-going counselling.
45Finally, Mr Ellery expresses a concern about how you will cope in prison and its likely detrimental effect on your psychological state.
46For the purposes of the plea hearing, you were examined by Mr Patrick Newton, Clinical and Forensic Psychologist, who completed a comprehensive report dated 14 June 2022.[29] Mr Newton has seen you seven times – once in April 2020 and on a further six occasions since February of this year.
[29] Ex D1.
47Mr Newton assesses you as a man with ‘extreme alcohol-related problems’ and diagnoses you with alcohol-use disorder. He notes that you have made several past efforts to control your drinking and that you have attended Alcoholics Anonymous since February 2022. He notes that you continue to experience relapses to alcohol abuse at times of stress and ‘it would be premature to specify his alcohol-use disorder as being in remission’.[30]
[30] Ex D1 at para 29.
48Mr Newton also diagnoses you with persistent depressive disorder (dysthymia) and states that you have a need for ‘integrated treatment’.
49In relation to your prospects of rehabilitation, Mr Newton opines that your above-average intelligence ‘should be a positive prognostic indicator and would fit him for continue[d] work in a professional role’.[31] He states that you are in the early stage of recovery from a severe alcohol-related problem and that your most pressing need is to receive structured alcohol-focused intervention. Further, your long-term abstinence is likely only to be achieved in the context of addressing your mental health needs in a comprehensive fashion.
[31] Ex D1 at para 46.
50Mr Newton addresses the likely impact of a custodial sentence on you. He states that your withdrawal from alcohol in such a setting needs to be medically monitored so that it can be safely managed. He also considers that you would be ‘at greater than usual risk for deterioration in [your] mental state’.[32] He concludes that your:
…experience of the custodial environment would be likely to be somewhat more onerous than that of other prisoners who did not suffer his pre-existing depressive condition.[33]
[32] Ex D1 at para 54.
[33] Ex D1 at para 54 (emphasis added).
51I accept your counsel’s submission that this unchallenged evidence enlivens, to a degree, the 5th limb of Verdins.[34] This operates to mitigate punishment and I have taken it into account in setting both the head sentence and the non-parole period.
[34] [2007] VSCA 102 at [32.5].
Other Matters of Mitigation
52I turn to consider certain other matters that are relied upon by your counsel in mitigation. The first of these is your plea of guilty.
53Your plea of guilty ameliorates your sentence because it is an indication of your remorse and reflects well on your prospects of rehabilitation.
54In addition, it has a utilitarian benefit of saving the time and expense of a trial and saving witnesses, especially Mr Jiminez, from giving evidence and re-living the trauma of his experiences.
55As a result of the significant court delays associated with the pandemic, you are entitled to an additional discount on sentence for your plea of guilty.[35] I must ensure that your plea results in a ‘perceptible amelioration of sentence’ and I do so.[36]
[35] Worboyes v The Queen [2021] VSCA 169 at [35]-[39].
[36] [2021] VSCA 169 at [39].
56I also take into account in mitigation of your sentence, the lengthy delay associated with the finalisation of your case. The collision was on 21 March 2019 and you were not charged for nearly a year. It has taken a further two years for the matter to be listed for a plea. The matter has been hanging over your head for over three years and this has added to your stress.
Remorse
57Remorse is relevant in sentencing because it forms part of the rehabilitative component of sentencing. I accept that you are genuinely remorseful. So much is clear from your repeated responses during your record of interview with police on 1 May 2019. For example, you told police that you were so sorry about the pain and suffering you had caused.[37]
[37] ROI, Q&A 253.
58The character references tendered on your behalf also make this clear. For example, your brother-in-law, Mark Cassidy writes of your quite significant degree of remorse and regret. He says that he knows for a fact that you are ‘extremely remorseful for the events that occurred and for the subsequent impact this has had on other people’s lives’.
59In May 2019, you paid Mr Jiminez $7,331 on account of the damage to his car. In June 2022, you set a letter of apology to Mr Jiminez together with a further $18,254 to reimburse his out-of-pocket expenses as calculated by him. In his VIS, Mr Jiminez expresses his gratitude for the apology which he accepts conveyed a ‘genuine sense of regret and remorse for what occurred’.[38]
[38] VIS dated 4 July 2022, p 4.
60A further clear expression of your remorse is found in the report of your treating psychologist, Mr Emery:
Across three years of counselling, Dale has frequently and consistently articulated his sole and total acceptance of responsibility and complete remorse for what occurred, without reservation and excuse. His repeated narratives have revealed deep insight into the consequences of his actions upon others; showing profound empathy for all, but especially for the drive of the other vehicle.[39]
[39] Report of Mr Robert Ellery dated 14 June 2022, p 2.
Good character and prospects of rehabilitation
61As noted above, your counsel relies on a number of impressive character witnesses from work colleagues and family members. The authors speak eloquently of knowing you for many years and being aware of this offending. They say that the offending was out of character and that you have been a positive influence on their lives and those of others for a very long time. They speak of your remorse and desire to redeem yourself.
62You have a relatively good driving record for a person who has been driving for three decades. Your only alcohol-related driving offence was in 1991 when you were fined $400 and your licence disqualified for 16 months. You committed a number of minor speeding offences mainly in 2010 which attracted infringement notices. Other than these matters, you have had no prior exposure to the criminal courts. I take your record into account in your favour.
63You have a lengthy work history in responsible positions and good prospects of returning to your chosen field of financial advice after you serve your sentence.
64Despite these positive indicators, Mr Newton assesses your rehabilitation as a work in progress. He explains that your most pressing need is to receive structured alcohol-focused intervention. You also need further education about the risks of alcohol use to avoid relapses.
65On balance, given your ongoing struggles with alcohol addition but recognising the supports available to you, I assess your rehabilitation prospects as good.
66While I have taken these various matters of mitigation into account in your favour in determining the appropriate sentence to impose on you, I need to give appropriate weight to your character and your prospects of rehabilitation in light of the other applicable sentencing considerations such as general deterrence and just punishment.
67As the Court of Appeal has explained in a somewhat similar case to yours, ‘… in this and in similar cases of high objective gravity, less weight will be accorded to personal mitigating factors than would otherwise be the case’.[40] This is because the prevalence and seriousness of this type of offending ‘requires general deterrence and denunciation to assume more significance in the sentencing exercise, and, accordingly, less significance must be placed upon mitigating factors such as … previous good character and rehabilitation prospects’.[41]
[40] Cook v The Queen [2021] VSCA 293 at [41] citing Harrison & Rigogiannis v The Queen (2015) 49 VR 619 at [85]-[86].
[41] Ibid; see also Harrison & Rigogiannis v The Queen (2015) 49 VR 619 at [116]-[118].
68Put simply, the law requires this Court to give greater weight in sentencing you to deterring others from endangering their fellow road users than to reflecting your previous good character and good prospects of rehabilitation.
Current sentencing practices
69A further matter to which I must have regard in fixing an appropriate sentence is current sentencing practices or how other judges have sentenced in similar cases. However, as the High Court has explained, while sentencing practices must be taken into account, they are only one factor and not the controlling factor in fixing a just sentence.[42] Further, ‘the proper exercise of the sentencing discretion does not involve the pursuit of either numerical equivalence or fixed relativities either by reference to current sentencing practices or otherwise’.[43] Each case is different and the sentence imposed must reflect this.
[42] DPP v Dalgliesh (2017) 262 CLR 428 at [68].
[43] Sutic v The Queen [2018] VSCA 246 at [70].
70In 2015, the Court of Appeal heard two appeals against sentences imposed in cases of NCSI in the context of driving offences. The Court concluded that sentencing practices for the offence of NCSI by driving current had paid insufficient attention to the maximum penalty prescribed by Parliament. The Court concluded that courts had been treating four years’ imprisonment as a ceiling in such cases despite a maximum penalty of 10 years and that ‘sentences imposed in the upper range of seriousness disclose an inadequate response to the increase in the maximum penalty’.[44] Further, the sentences that had been imposed failed ‘to reflect the objective seriousness of this category of NCSI by driving’.[45]
[44] Harrison & Rigogiannis v The Queen (2015) 49 VR 619 at [137].
[45] Harrison & Rigogiannis v The Queen (2015) 49 VR 619 at [139].
71The Court of Appeal in Harrison concluded that by way of general guidance, sentences of 6 or 7 years would be ‘well within range’ for serious examples of the offence of NCSI by driving.[46] As noted above, yours is such a case. In those particular appeals, the facts involved excessive speed and high blood alcohol levels.
[46] Harrison & Rigogiannis v The Queen (2015) 49 VR 619 at [141].
72In the period since 2015, sentencing practices have reflected this guidance and there has been an evident increase in the sentences imposed.[47] This trend is also reflected in the post-Harrison cases to which I have been referred by the prosecution.[48] I have taken this trend into account in sentencing you.
[47] See Halket v The Queen [2016] VSCA 221 (six years); Byast v The Queen [2021] VSCA 344 (6 years and 11 months); Abbott v The Queen [2021] VSCA 149 (5 years); see also Sutic v The Queen [2018] VSCA 246 at [104] and DPP v Barry [2017] VSCA 344 at [69].
[48] Cook v The Queen [2021] VSCA 293 (5 years and 3 months); Walsh v The Queen [2018] VSCA 317 (six years); DPP v Barry [2017] VSCA 344 (20 months, 2 year CCO and a fine of $3,000 increased to 5 years after Director’s appeal).
73I also note that the cases cited in the previous paragraph were decided before the Court of Appeal determined the appeal in Worboyes v The Queen.[49] The defendants in those cases did not have the benefit of the ‘perceptible amelioration of sentence’ that is now required in cases where an accused pleads guilty. I have taken that into account in your favour in my consideration of current sentencing practices.
[49] [2021] VSCA 169.
74In relation to the charge of failing to render assistance, the Court of Appeal observed in 2019 that in recent times, ‘it has not been unusual for sentences of three to four years’ imprisonment to be imposed for the offence of failing to render assistance after a motor vehicle accident in which a person has been seriously injured or killed … (although it must be acknowledged, it is also not unusual for lesser sentences to be imposed)’.[50]
[50] Bankal v The Queen [2019] VSCA 171 at [38], references omitted.
Application of sentencing principles
75The basic purposes for which a court can impose a sentence are just punishment, deterrence both general and specific, rehabilitation, denunciation and community protection. I have considered each of these purposes and have taken into account the seriousness of the offences, your moral culpability for them, the effect of the offending on the victims as well as your personal circumstances and prospects of rehabilitation.
76In your case, denunciation, general deterrence and just punishment must be given significant weight for the reasons I have explained above.
77Totality is a very important consideration in your case. The law ‘requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved’.[51] This will be achieved by making the individual sentences wholly or partly concurrent.[52]
[51] Postiglione v The Queen (1997) 71 ALJR 875 at 871 (McHugh J).
[52] Landale v The Queen [2022] VSCA 121 at [78]-[79].
78I have also had regard to the principle of parsimony which provides that a sentence may not be more severe than that which is needed to achieve the purposes for which the sentence is imposed.[53]
[53] Sentencing Act 1991 (Vic), s 5(3).
79I have sought to achieve a total effective sentence by imposing an appropriate sentence on charge 1 and making the sentences on charges 2 and 3 partly concurrent.
80I have set a non-parole period that is appropriate in all the circumstances and reflects your good prospects of rehabilitation noting as I do that, as was explained by the Court of Appeal, it is ‘perfectly proper to give effect to a rehabilitative purpose in a custodial sentence by fixing a non-parole period term lower than would otherwise be imposed’.[54]
[54] Hawker v The Queen [2022] VSCA 127 at [45].
Mr Morgan, please stand:
81On charge 1, negligently causing serious injury, you are convicted and sentenced to five years’ imprisonment. That is the base sentence.
82On charge 2, failing to render assistance, you are convicted and sentenced to two years’ imprisonment.
83On charge 3, recklessly engaging in conduct which endangered persons, you are convicted and sentenced to two years’ imprisonment.
84On charge 4, exceeding the prescribed concentration of alcohol, you are convicted and fined $500.
85I order that four months of the sentence imposed on charge 2 and six months of the sentence imposed on charge 3 be served cumulatively on the sentence imposed on charge 1 and on each other.
86The total effective sentence is therefore five years and ten months.
87I order you to serve a minimum of three years before being eligible for parole.
88As charges 1 and 3 are ‘serious motor vehicle offences’ under s 87P of the Sentencing Act 1991, I am required to cancel your drivers’ licence and disqualify you from obtaining another one for a period of not less than twenty-four months.[55]
[55] Sentencing Act 1991 (Vic), s 89(2)(b).
89I order that your licence is cancelled and that you are disqualified from obtaining a further one for a period of three years.
90In accordance with section 6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have sentenced you to a total effective sentence of eight years and six months’ imprisonment with a minimum non-parole period of five years.
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