DPP v Borg
[2016] VSCA 53
•23 March 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0205
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| STEPHEN BORG | Respondent |
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| JUDGES: | MAXWELL P, WEINBERG and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 February 2016 |
| DATE OF JUDGMENT: | 23 March 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 53 |
| JUDGMENT APPEALED FROM: | DPP v Borg (Unreported, County Court of Victoria, Judge Smallwood, 30 September 2015) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Dangerous driving causing death (two charges) – Dangerous driving causing serious injury (two charges) – Sentenced to five year Community Correction Order, with conditions requiring 500 hours of community work, supervision and treatment – Whether manifestly inadequate – Objective gravity of offending high – Devastating consequences – Moral culpability – Offender’s impaired cognitive function – Judge found ‘low level culpability’ – Finding not challenged – Delay – Originally charged with culpable driving – Plea to lesser charges belatedly accepted – Offender lost opportunity for Youth Justice Centre order – Sentence manifestly inadequate – Residual discretion – Special circumstances – Appeal dismissed.
CRIMINAL LAW – Trial – Evidence – Expert evidence – Dangerous driving causing death – Dangerous driving causing serious injury – Accused’s state of mind in issue – Expert evidence filed by prosecution and defence – County Court judge ordered experts to confer – Joint report prepared – Prosecutor accepted plea to lesser charges – Practice Direction No 2 of 2014 – Expert Evidence in Criminal Trials para 10.2.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J R Champion QC with Ms A Hassan | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr J F Desmond with Mr R F Edney | Tyler, Tipping & Woods |
MAXWELL P
WEINBERG JA
PRIEST JA:
The respondent, Stephen Borg (‘SB’),[1] now aged 22, pleaded guilty in the County Court to two charges of dangerous driving causing death, and two charges of dangerous driving causing serious injury. He was sentenced as follows:
[1]The abbreviation is used for ease of reference only.
Charge on Indictment Offence Maximum Sentence Cumulation 1 Dangerous Driving Causing Death [Crimes Act 1958 s 319(1)] 10 years
5 year Community Correction Order (‘CCO’) N/A 2 Dangerous Driving Causing Death 10 years 5 year CCO N/A 3 Dangerous Driving Causing Serious Injury [Crimes Act 1958 s 319(1A)] 5 years 5 year CCO N/A 4 Dangerous Driving Causing Serious Injury 5 years 5 year CCO N/A Total Effective Sentence: 5 year Community Correction Order with conditions including: 500 hours of unpaid community work; supervision and treatment and rehabilitation conditions. 6AAA Statement No statement made. Other orders:
Disqualified from obtaining a licence for two years from 30 September 2015.
Pursuant to s 287 of the Criminal Procedure Act 2009, the Director of Public Prosecutions (‘the Director’) now appeals against that sentence on the sole ground that it was manifestly inadequate. The particulars relied upon in support of that ground are that the sentencing judge:
(a) failed to have sufficient regard to the gravity of the offending;
(b) failed to give sufficient weight to the principles of general deterrence, punishment and denunciation;
(c) failed to give sufficient weight to the consequences of the offences on multiple victims;
(d) failed to have sufficient regard to the maximum penalties prescribed for the offences; and
(e) gave excessive weight to factors in mitigation.
Before this Court, the Director contended that nothing short of an immediate term of imprisonment of at least moderate duration was warranted, and that the five year CCO imposed was therefore wholly outside the range of sentences reasonably available to the sentencing judge. For the reasons which follow, we would uphold that contention — that is, that the sentence was manifestly inadequate. We would, however, exercise the residual discretion which the Court has on a Crown appeal against sentence, and order that the appeal be dismissed.
Circumstances of the offending
The facts may be briefly stated as follows.
On 22 November 2013, at approximately 2:20pm, SB (then aged 20) was driving his utility vehicle east along the Princes Highway, in Rosedale. The speed limit at that stretch of road was 100 kilometres per hour, and he was travelling at about that speed. He had not consumed any alcohol or drugs.
At that moment, SB’s vehicle crossed double white lines and collided head-on with a Ford Territory travelling west along the highway at about 86 kilometres per hour. The driver of that vehicle was Robert Hutchings. The passengers were his wife, Theresa Sinclair, and their three children.
Not surprisingly, the impact was horrendous. The consequences were utterly devastating. Two passengers in the Ford Territory, Ms Sinclair (aged 47) and her daughter Mikayla (aged five), were killed. Their deaths formed the basis for Charges 1 and 2 respectively.
Another of the children, a son Andrew (aged nine), sustained terrible injuries. He suffered a lower thoracic spinal cord injury resulting in paraplegia and neurogenic bowel and bladder; separate fractures to a vertebra (as well as to his ankle and pelvis); and lacerations to his liver and spleen. He also suffered a traumatic brain injury, the effects of which will be on-going. These injuries formed the basis of Charge 4.
Mr Hutchings (aged 47) was also seriously injured. He sustained a fractured pelvis, torn aorta, eight fractured ribs, and a punctured lung. These injuries formed the basis of Charge 3. It was understood on the plea that Mr Hutchings was expected to make a full recovery, in time. Andrew, however, will never walk again.
There was a third child in the Ford Territory, Matthew (aged four). Fortunately, he was not seriously injured.
SB also sustained a number of injuries. He received fractures to his left knee cap and left lower leg. The sentencing judge noted that he was likely to make a full recovery.
It was accepted on the plea that the collision was not brought about by excessive speed. As previously indicated, it was also accepted that neither alcohol nor drugs had played any role in the collision. A blood sample taken from SB shortly after the collision made that clear.
There was nothing to suggest that SB had been using his mobile telephone at the time. Telecommunication records showed that he had not sent or received any text messages from his mobile telephone, or made or received any calls, at the relevant time.
On the afternoon in question, Mr Hutchings and his family were on their way to Melbourne to visit relatives. They had stopped in Sale, and again in Rosedale. They then commenced the drive from Rosedale to Traralgon.
SB had left work and was en route to his home in Dennison. He had by that stage held his licence for about 18 months. A motorist who was driving behind him said that he had followed SB from Traralgon almost as far as Rosedale. His evidence as regards SB’s driving, shortly before the collision, was important. He said:
At about five to 10 minutes after leaving the traffic lights at Maffra Road, I noticed that this utility started to wander a bit on the road, [and] his vehicle was wandering across into the oncoming lane across the double white lines. The first [time] this happened, his driver’s side wheels were on the double white lines and he came back into his lane. A few [hundred] metres further on, he wandered further across, so his driver’s side wheels were completely in the oncoming lane over the double white lines. Where this happened was on a bend to the left. He would only be over the centre line for a second and then he would correct and steer back to the left.[2]
[2]DPP v Borg (Unreported, County Court of Victoria, Judge Smallwood, 30 September 2015) [17] (‘Reasons’).
The witness added that he overtook SB’s vehicle some three kilometres or so before the point of impact. He said that when he did so, he observed that ‘[t]he driver looked like he was zoned out and was looking straight ahead’.[3] It may be inferred that the witness looked closely at SB because of his erratic driving, as described above. The driver of another vehicle, who also saw SB weaving across white lines, confirmed this description of his general appearance, and his evidently blank look.
[3]Reasons [18].
In his sentencing remarks, the judge commented upon this evidence. His Honour focused in particular upon SB having twice crossed white lines shortly before the collision. He said:
That clearly shows that you were sufficiently awake, and I use that word advisedly, to realise and go back to the correct side. It is in that scenario that the danger of what you then did comes to pass.[4]
[4]Reasons [17].
It seems that SB had been working two jobs in the week before the collision, and had worked five shifts at each job. On the day before the accident, he had worked more than 13 hours. He had had only five and a half hours’ sleep, at most.
It would have been open to his Honour to have concluded, on these bare facts, that SB’s act of getting into his car and driving when, manifestly, he was fatigued and incapable of exercising proper control over that vehicle, constituted the gravamen of these offences. That would, in all likelihood, have made the offending even more grave, since it would have involved a lengthier period of criminality.
The Crown did not, however, press for any such finding. Rather, it was content to have the judge sentence SB on the basis that it was only in the few moments leading up to the collision that he had either ‘zoned out’ or become sufficiently sleepy as to require him to pull over, and that his culpability arose from his failure to do so.
In his sentencing remarks, the judge noted that there were a number of signs between Traralgon and Rosedale warning of the dangers of driving whilst fatigued. However, his Honour declined to treat the existence of these warning signs as an aggravating factor. At first blush, this might be regarded as a somewhat benevolent finding. However, as will soon be apparent, there was a proper basis for his Honour’s conclusion in that regard.
Some three weeks or so after the collision, SB was arrested and interviewed. He was released pending further inquiries. He was subsequently charged with two counts of culpable driving causing death and two counts of negligent driving causing serious injury. On the first day of the committal he indicated, through his legal advisers, that he would be prepared to plead guilty to any charges apart from culpable driving. For reasons that are by no means apparent, that offer was not accepted until much later, when good sense at last prevailed.
Sentencing remarks
In his reasons for sentence, the judge noted that SB was to receive the benefit of his guilty plea. His Honour accepted that SB was genuinely remorseful and, based on the psychological evidence, had felt shame for what he had done.[5] The judge also considered that SB had ‘accepted responsibility from the outset’,[6] noting that he had sought to apologise for his actions.
[5]Reasons [3].
[6]Reasons [4].
With regard to SB’s decision to plead guilty to the lesser charges on the present indictment, but not to the more serious charges, the judge commented as follows:
I can say from where I sit after many years’ experience that it would be my view that on the material contained within this brief, such a charge [of culpable driving causing death] could not have been sustained. … The result has been, however, as I understand it, that the offer was made a significant time ago, that there has now been a delay of some 22 months in total. … I am not sure when you were charged, but that delay when someone is of your age is of real significance.
The fact that you have pleaded in circumstances where, even on a charge of dangerous driving causing death, you had a prospect of acquittal adds to the decision I have made that you do have appropriate remorse. Whilst it may seem to someone looking at all this that there has been recalcitrance, I accept that that is not the case.[7]
[7]Reasons [5]–[6] (emphasis added).
The judge noted that SB’s lack of prior convictions, and his youth, were ‘clearly’ matters to be taken into account. However, he further indicated that in sentencing for offences of this kind those matters would ‘not usually have the significance that they have when sentencing for other forms of crime’.[8]
[8]Reasons [7].
The judge recognised the importance of general deterrence, denunciation and punishment in sentencing for offences of this type. He indicated that he did not consider specific deterrence as being of any particular significance in this case.
With regard to the injuries sustained by SB, the judge remarked that they were brought about by his own actions. He therefore considered them to be of little significance so far as the sentence to be imposed was concerned.
Turning to SB’s personal circumstances, the judge noted that he had suffered, and continued to suffer, ‘real difficulties in [his] life.’[9] His Honour referred, in that regard, to SB’s issues with his speech (for which he had received assistance over a very long period of time). He also referred to the ‘psychological problems’[10] which SB had experienced at school, for which he had received, or endeavoured to obtain, treatment. Seemingly, during his school years, it was thought that SB either had an acquired brain injury or a significant cognitive defect. He had been the subject of bullying, and had few friends.
[9]Reasons [10].
[10]Reasons [12].
It was not until after the fatal collision that SB was first diagnosed as being autistic. It seems that at about age 10 or 11, his IQ had been assessed at 67 (equivalent to a mild intellectual disability). More recently, however, his IQ had been assessed at 83.
The judge characterised SB as ‘a 20 year old with limited abilities who was having a serious go at being a member of the community’.[11] His Honour noted that, after leaving school, SB had, with persistence, gained employment washing dishes at a bar. He had been described, among other things, as a ‘diligent worker’ by a psychologist,[12] and as ‘very simplistic’.[13] Gaining additional employment as a storeman, he had worked in the early hours of the morning.
[11]Reasons [37].
[12]Reasons [14] and [34].
[13]Reasons [14].
Regarding SB’s employment history, the judge stated:
You were therefore, as is not always the case these days, a young man with ongoing difficulties and significant defects who was working hard and indeed working two jobs to try to get ahead.[14]
[14]Reasons [14].
The judge noted that the psychologist had characterised SB as being ‘particularly vulnerable’, which meant that he would have real difficulty in the prison environment.[15]
[15]Reasons [65].
At the time of sentence, SB had neither worked nor driven since the crash. He was diagnosed at that time as suffering severe depression (seemingly, a reactive depression), an adjustment disorder, and anxiety. He had been receiving psychiatric treatment and had been on medication, including anti-psychotic drugs. The judge noted that SB had been admitted to Latrobe Regional Hospital and had been suicidal at that time. His Honour observed that SB’s family feared for his safety, believing him to be at risk of possible suicide and expressing concern about his very poor capacity to deal with an actual custodial sentence.
In dealing with the circumstances surrounding the collision, the judge observed that it would be ‘dangerous … to draw any conclusions’[16] regarding SB’s drowsiness prior to the crash. His Honour emphasised that the Crown had not suggested that SB had acted culpably by getting into his car and driving per se. Rather, its case turned upon his failure to pull over to the side of the road once he became aware that he was not properly in control of his vehicle.
[16]Reasons [15].
The judge considered, in that regard, that the ‘answer’ to the conundrum of how this accident had occurred lay in the fact that SB had ‘zoned out’[17] (seemingly for two or three minutes).[18] That view of the facts, his Honour noted, was consistent with the descriptions given of SB’s appearance shortly before the collision occurred.
[17]Reasons [16].
[18]Reasons [44].
His Honour noted that there were a number of signs between Traralgon and Rosedale alerting drivers to the dangers of driving whilst tired. However, he pointed to the medical evidence that had been placed before him as a possible explanation for SB’s lack of awareness regarding the importance of the message contained in those signs. His Honour referred in particular to the psychologist’s assessment that SB’s ‘level of fatigue and/or autistic functioning are likely to have combined to reduce his level of self-awareness in regards to his physical and psychological functioning’, resulting in a ‘zoned out’ state of mind.[19]
[19]Reasons [21].
The judge also accepted the psychologist’s view that SB’s lack of driving experience was also likely to have contributed to what occurred on the day in question.
His Honour commented that, all in all, the circumstances surrounding the commission of these offences were ‘very unusual for this type of offending’.[20]
[20]Reasons [24].
Balanced against these factors, the judge noted the absolute devastation that SB’s offending had wreaked upon Mr Hutchings and his family, both immediate and extended. His Honour said:
What the Crown opening does not describe is the absolute devastation something like this causes to a family and a community. Mr Hutchin[g]s read his victim impact statement out aloud in court. I have read again all of the victim impact statements on a number of occasions. They show the devastation that not only occurs to the people immediately involved but to the extended family. The sense of loss, the sense of frustration, the sense of anger, the sense of bewilderment I think in some situations will persist for a very long period of time.[21]
[21]Reasons [29].
The judge accepted that a case such as this — involving two charges of dangerous driving causing death and one of dangerous driving causing serious injury of a catastrophic nature — would ordinarily require the imposition of an immediate custodial term. As his Honour noted, that was the Crown’s position on the plea.
His Honour noted, however, that there were several factors that weighed in SB’s favour which — he said — made this a particularly difficult sentencing exercise. As noted earlier, SB had just turned 20 at the time of the offending. Had he been dealt with within a reasonably short time, as ought surely to have been possible, he would (having not yet turned 21 at the time he came to be sentenced) have been eligible for a Youth Justice Centre order. Such an order might perhaps have been of a relatively short duration. It was the Crown’s obdurate refusal to recognise the reality of the situation, and to negotiate an appropriate plea, that prevented such an obviously just disposition from being implemented.
The judge referred to a number of authorities relevant to sentencing for offences such as this. These included Director of Public Prosecutions (Vic) v Oates[22] and Director of Public Prosecutions v Neethling.[23]
[22](2007) 47 MVR 483 (‘Oates’).
[23](2009) 22 VR 466 (‘Neethling’).
The judge accepted that, although this case did not exhibit a number of aggravating features typically found in cases of dangerous driving causing death or serious injury, there were nonetheless certain aggravating factors to be taken into account. These included, first and foremost, the horrific consequences resulting from his continuing to drive, at high speed, even after having been twice alerted to his inability properly to control his vehicle. Moreover, he had, by his conduct, put a number of other people at risk.
Low moral culpability and the choice of a CCO
The objective gravity of the offending having undoubtedly been assessed as high, the judge then had to go on and consider the extent of SB’s moral culpability. His Honour said:
The level of moral culpability here, in the circumstances described here of your incapacities and disabilities to recognise the danger that you were putting others in, is of a low order.[24]
[24]Reasons [48] (punctuation altered).
The basis for that conclusion was the significant body of evidence led on the plea concerning SB’s cognitive limitations. (We deal with that evidence later in these reasons.) The question of his sleep deprivation at the time of the collision, and any role that it might have played, was, according to his Honour, difficult to ascertain, and was therefore largely put to one side.[25]
[25]Reasons [45].
In Neethling, this Court quoted the following statement by the New South Wales Court of Criminal Appeal in R v Whyte:[26]
[I]n determining the appropriateness of full time custody and the length thereof, the sentencing judge must give close attention to the degree of moral culpability involved. This is a critical component of the objective circumstances of the offence.[27]
[26](2002) 55 NSWLR 252.
[27]Ibid 284 [205] (Spigelman CJ with whom Mason P, Barr, Bell, and McClellan JJ agreed).
In the present case, the judge noted the statement of Neave JA in Oates that a non-custodial sentence could only be justified in a case where ‘the offender’s level of moral culpability is low’.[28]
[28]Oates (2007) 47 MVR 483, 487 [22]; see also [32] (Warren CJ) and [38] (Nettle JA).
The judge turned to consider the suitability of a CCO as a sentencing option. His Honour referred at length to the decision of this Court in Boulton v The Queen,[29] which he said had ‘changed the landscape of sentencing in this [S]tate’.[30] His Honour noted that Boulton had been decided after Oates and Neethling (and, of course, after the introduction of the CCO regime).
[29][2014] VSCA 342 (‘Boulton’).
[30]Reasons [50]. It should be pointed out that the Court in Boulton said that the introduction of the CCO as a sentencing option ‘dramatically changes the sentencing landscape’, at [113].
After describing the approach to CCOs set out in Boulton (which we discuss below), his Honour stated:
A CCO, it was said, would be punitive and would act as a general deterrent, as long as the courts sufficiently explain the reasons for that the CCO will be sufficient punishment for the offender of the particular offence. That decision [Boulton] also says that a CCO is likely to be a particularly important sentencing option in the case of a young offender and the reason needs [to be] to punish and insofar that [sic] both the community and offender are concerned. I have already made mention of that [youth as a consideration] and in cases such as this, I acknowledge that I have to give it lesser weight than I might otherwise have done.[31]
[31]Reasons [52].
The judge also considered this Court’s decision in Sherritt v The Queen,[32] and its application of Boulton. Recognising that some of the benefits of a CCO set out in Boulton (as applied in Sherritt) did not apply to SB’s circumstances, his Honour nonetheless observed that ‘the CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide’.[33]
[32][2015] VSCA 1 (‘Sherritt’).
[33]Reasons [56] where his Honour referred to what was said by Maxwell P in Sherritt. The judge also referred to McGrath v The Queen [2015] VSCA 176, noting that there had been a number of cases where custodial sentences had been transformed into CCO’s by the Court of Appeal, albeit with some term of imprisonment, and in circumstances where the person had already served some time in custody prior to the appeal.
The judge went on to say:
In the end, I think that the low moral culpability of what you did is sufficient despite the almost, indescribable as I have said, consequence, that a community correction order would fit within what is described in Boulton. It is with a degree of reluctance that I do that. However I have to look at this objectively and my objective decision [is] that that is sufficient in this situation.
The only thing I can do is to impose work hours which will be the maximum that is allowed to me. Which will [be] 500. I will impose a time on that community correction order, which in this situation is the maximum available to me, because of the head sentence for dangerous driving causing serious injury. I believe it to be the maximum but in any event, I would have done it in any event, five years. It will be with conviction, which is punishment enough.
You will, if you agree, also have the following conditions … You will have the condition of treatment and rehabilitation for mental health … You will also be subject to supervision. You will have people available to you and it is hoped that this process can be used to reintroduce you to a society which you have previously and now withdrawn from.[34]
[34]Reasons [59]–[61].
Not surprisingly, his Honour said that he had considered ‘with great anxiety’ whether a sentence of imprisonment was required.[35] He commented, both at the beginning and at the end of his sentencing remarks, that sentencing SB was ‘easily the most difficult sentencing consideration’ he had ever had to do.[36]
[35]Reasons [59].
[36]Reasons [1]. See also [59].
These are important observations. The judge is vastly experienced. Both throughout his career at the Bar and since his appointment to the Bench, he has dealt with literally many hundreds of criminal matters.
Director’s submissions
The Director submitted that, notwithstanding the obvious care and attention that the judge had brought to bear upon the sentencing task, his Honour had failed to have sufficient regard to the objective gravity of the offending. In that regard, the Director submitted that SB’s conduct in continuing to drive at high speed, in circumstances where literally moments before he had twice lost control of his vehicle, made this case a serious example of what is always a serious crime.
Moreover, the Director submitted that the horrific consequences of SB’s driving heightened still further the objective gravity of this offending. He submitted that on that basis alone, this offending should be regarded, objectively, as falling within the upper end of the scale for offending of this kind.
In his oral submissions before this Court, the Director readily acknowledged that SB suffered ‘cognitive limitations’. He further accepted that the prosecutor below had specifically conceded that there was a link between these limitations and the particular offending in this case. The transcript of what the prosecutor said on the plea reads as follows:
His Honour: On the face of it at least, he's going to be less capable of recognising the dangerousness of the scenario than might someone else, than might another young person, who has got the aggravating features that this young man doesn’t have.
[Prosecutor]: Yes. Well it may have contributed to the poor decisions.[37]
[37]Transcript of Plea, DPP v Borg, County Court of Victoria, CR-14-01838, Judge Smallwood, 23 September 2015, 46.
Despite that concession as to the link between SB’s cognitive disability and his continuing to drive in dangerous circumstances, the Director argued, initially at least, that the judge ought not to have characterised SB’s moral culpability as ‘low order’. But, when pressed by the Court as to whether he was submitting that the judge had fallen into specific error in characterising SB’s moral culpability in that way, the Director with his characteristic fairness accepted that he could not sustain that submission. As the Court pointed out, and the Director accepted, a finding as to reduced moral culpability is a finding of fact, which cannot be interfered with on appeal unless it is shown that the finding was not reasonably open on the evidence.[38]
[38]See Carroll v The Queen [2011] VSCA 150 [16]–[18] (Maxwell P, with whom Buchanan JA agreed).
The Director ultimately argued the appeal on the basis that, even given that finding, nothing short of a term of actual imprisonment could be justified. The Director based that submission on the following factors:
·this was not a case of momentary inattention, but rather of a course of dangerous driving lasting at least some minutes;
·the consequences of SB’s offending were utterly catastrophic;
·although in his sentencing remarks the judge acknowledged that general deterrence, denunciation and punishment were all pivotal sentencing considerations, he did not afford these matters adequate weight;
·the five year CCO did not adequately reflect the maximum penalties for these offences (10 years and five years’ imprisonment respectively);
·excessive weight was given to the mitigating factors that were present including, in particular, the finding that this was a case of low order moral culpability; and
·the failure to impose a term of imprisonment would ‘[shock] … the public conscience’[39] and undermine public confidence in the ability of courts to play their part in deterring the commission of crime.
[39]The Director referred, in the written submissions, to DPP v Scott (2003) 6 VR 217, 225 (Vincent JA). It ought to be understood that the use of a term such as ‘shock the public conscience’ has been deprecated by this Court, and other intermediate appellate courts throughout Australia.
In oral submissions, and in response to questions from the Court, the Director acknowledged that this was not a case that called for a lengthy term of imprisonment. He did so by accepting that the appropriate disposition, given all the circumstances, would have been a combined term of imprisonment and a CCO. By accepting that proposition, the Director at least tacitly acknowledged that a sentence of less than two years’ imprisonment (coupled with a CCO) would have been appropriate.[40] He further acknowledged that, if this appeal were to succeed, a sentence of that order would be the highest that could legitimately be imposed.
[40]The reason for this is that it is not possible to attach a CCO to a term of imprisonment that exceeds two years. See Sentencing Act 1991 s 44. See also Debono v The Queen [2016] VSCA 16.
Respondent’s submissions
SB contended that the Director had not made out his submission that this sentence was wholly outside the range of sentences reasonably available to the judge below. Counsel referred to the well-known passage in Director of Public Prosecutions v Karazisis:[41]
As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[42]
[41](2010) 31 VR 634 (‘Karazisis’).
[42]Ibid 662–663 [127] (Ashley, Redlich, Weinberg JJA) (citations omitted).
It was further submitted that, even if it were accepted that this was a case of high objective gravity, the judge below had been required to balance against that conclusion the low level of moral culpability that attached to SB by reason of his cognitive disability.
It was submitted on behalf of SB that his autism, and other cognitive impairments, had clearly contributed to the offending. That was so irrespective of whether or not he was suffering from sleep deprivation at the time. This meant that his moral culpability was significantly reduced.
Although the case had not, on the plea, been put specifically on the basis of R v Verdins,[43] it was submitted that this Court could, and should, so view it. Indeed, it was submitted that there was compelling evidence to suggest that a separate limb of Verdins (the sixth Verdins principle) was also relevant so far as SB was concerned. The various reports made it clear that SB would find any term of imprisonment significantly more burdensome than would a person without his various difficulties.
[43](2007) 16 VR 269 (‘Verdins’).
It was submitted that, although the sentence imposed might fairly be regarded as lenient, it could not be viewed as manifestly inadequate. It was clearly established by Boulton that a CCO, and particularly one of five years’ duration, involving 500 hours of community work, was itself punitive. It was submitted that, in the highly unusual circumstances of this case, a humane disposition was reasonably open.
Finally, and in the alternative, it was submitted that even were this Court to conclude that the sentencing discretion had miscarried because nothing short of a term of imprisonment could reasonably have sufficed, the appeal should nonetheless be dismissed in the exercise of the residual discretion.[44]
[44]Karazisis (2010) 31 VR 634, 657–660.
In support of that last submission, the following matters were called in aid:
·the delay in dealing with SB’s case, resulting from the laying of what were said to be inappropriate charges of culpable driving, and the Crown’s refusal to accept an early plea to the lesser charges of dangerous driving causing death and serious injury;
·the result of that delay being that SB lost the opportunity of receiving a Youth Justice Centre order;
·the fact that SB had, for some months, been complying with the obligations of the CCO, and the particular hardship associated with now imposing a term of imprisonment;
·the fact that the Director was no longer seeking a lengthy custodial term, but rather one that could fairly be described as of moderate length only; and
·that additional material placed before this Court indicated that SB’s rehabilitation was progressing well, and that there would be little to be gained, from his perspective or that of the community, in now incarcerating him in an adult prison, where he would find conditions so particularly burdensome.
The expert evidence
Counsel for SB relied on a joint expert report, which was headed ‘Hot Tub – Re: Stephen Borg.’ It was produced by four practitioners: Mr Martin Jackson (Clinical Neuropsychologist), Professor Matthew Naughton (Respiratory and Sleep Disorders Physician), Associate Professor Peter Kempster (Consultant Neurologist), and Mr David Pyman (Psychologist). On the plea, the report was accepted by both parties as stating the agreed position of the experts.
The experts had been retained by SB’s solicitors and the Office of Public Prosecutions respectively. We were informed that, following the initial filing of their individual reports, the judge who was to preside at the trial of the original culpable driving charges had directed the experts to confer, and to prepare a statement for the Court of the matters on which they could reach agreement. That procedure is now available under paragraph 10.2 of Practice Note No 2 – Expert Evidence in Criminal Trials.[45]
[45]Supreme Court of Victoria, Practice Note No 2 of 2014 – Expert Evidence in Criminal Trials, 25 June 2014. That Practice Note makes clear that it applies to criminal trials both in the Supreme and County Courts.
The report is in the following terms:
AGREED ISSUES
Issue 1 – Does he have a neurological condition?
•it was agreed that all tests have been normal (MRI, EEG, sleep study), so that he does not currently have a diagnosable or diagnosed neurological condition
•however, the possibility of a condition such as epilepsy cannot be completely ruled out
Issue 2 – What is his cognitive status?
•It was accepted that the neuropsychological assessment clearly indicates that he does not have a Mild Intellectual Disability and although he has a number of skills in the Low Average to Average range, he has severe impairments (<2%) in aspects of working memory, sequencing processing speed and higher level attention (multiple task processing)
Issue 3 – What is his behavioural/emotional status?
•Both the Psychologist and Clinical Neuropsychologist were strongly of the opinion that his developmental history, behavioural and emotional history and clinical presentation were indicative of high functioning Autism Spectrum Disorder (ASD), previously known as Asperger’s Syndrome
Issue 4 – Did he fall asleep at the wheel?
•It was agreed that the simplest explanation would be that he simply fell asleep at the wheel and that this occurred in the context of working two shift jobs for a week with little break between the jobs
•the above opinion was supported by witnesses allegedly seeing him swerving across the middle line a couple of times before the accident, although it is also reported that his eyes were open at the time of the accident
•it was also noted that young men are no good at monitoring their fatigue levels generally
Issue 5 – Are there other factors that may have contributed to him running off the road other than simply falling asleep?
•Both the Psychologist and Clinical neuropsychologist were of the opinion that his cognitive and behavioural/emotional conditions were likely to [have] contributed to the accident whether he was tired or not
•He was out of routine (the second job was new), he was on a road he wasn’t used to and his cognitive and behavioural impairments would impact on his ability to monitor what was happening and to react appropriately if there was danger
•The above would be exacerbated if he was significantly fatigued
Issue 6 – Where to from here?
•He should not drive for 12 months in case he did have a seizure
•Before resuming driving he should have an on-road assessment by an Occupational Therapist looking particularly at his driving in non-familiar situations (area and speed etc.), as this is where he is most likely to have problems.
The fact that the experts were able to reach agreement in this way was of great significance. Following the receipt of the joint statement, the Crown finally agreed to drop the culpable driving charges and accept the plea to the lesser charges, which SB had offered much earlier.
As we have said, the parties were content for the judge to proceed on the basis of the joint statement. By way of background only, we note that the opinions of two of the individual experts can be summarised as follows:
·Mr Jackson reported that SB obtained an IQ of 83 (which is in the low average range, and above the mild intellectual disability range); that he does not have widespread cognitive defects, but that his primary cognitive problems include verbal speed of processing, working memory, sequencing, and multiple task processing; that he may satisfy the criteria for a diagnosis of Autism Spectrum Disorder; that he has trouble focussing on more than one thing at a time and may appear not to be concentrating; that people with limited processing capacity can take some time to realise that something is out of the ordinary and to react; that he has very poor reading ability; and that it was highly unlikely, due to the Autism Spectrum Disorder traits and cognitive problems, that he would notice road signs.
·Mr Pyman reported that as an individual presenting with autism, SB is likely to have great difficulty regulating his cognitive function and focussing on details around him; that his levels of fatigue and autistic functioning are likely to have combined to reduce his self-awareness (his conscious mind can be overwhelmed, resulting in ‘zon[ing] out’); that when combined, SB’s distracted state and reduced skill level meant that his brain did not direct attention back to driving at the critical time; and that his inability to respond to signs of threat or danger may cause difficulty in a prison environment.
A separate report was prepared by Dr Richard Eisenmajer, Clinical Psychologist, who confirmed that SB’s presentation was consistent with a diagnosis of Autism Spectrum Disorder; that he is particularly vulnerable and naive; and that he would struggle in a prison environment. Other post-collision reports that were tendered included those from Box Hill Hospital Sleep Laboratory; Dr Shanthi Weerasiri, Consultant Psychiatrist; Associate Professor Peter Kempster, Consultant Neurologist; and Lakshmi Shesan, Occupational Therapist.
Analysis and conclusion
The offence of dangerous driving causing death has since 2008 carried a maximum sentence of ten years’ imprisonment, twice the maximum that previously prevailed. The doubling of the maximum penalty reflects the seriousness with which this offence is viewed.
At first blush, it is difficult to see how any sentence other than one of immediate imprisonment could possibly meet the needs of general deterrence, adequate punishment, and denunciation, in respect of conduct as objectively grave as that of SB. His driving resulted in the deaths of two entirely innocent individuals, one of them a child. To compound the matter, it resulted also in another child’s loss of quality of life. In effect, SB has brought about the destruction of an entire family.
The general principles that govern sentencing for the offence of dangerous driving causing death are well-established.
In Neethling,[46] this Court dealt with a Director’s appeal against a total effective sentence of 12 months’ imprisonment that was ordered to be served by way of an intensive corrections order. The offender in that case was aged 18 at the time of the offending. The collision in question resulted in one death and three sets of serious injuries, none of which were comparable to the paraplegia resulting from SB’s driving in the present case.
[46](2009) 22 VR 466.
In that case, the offender had been travelling at just over 80 kilometres per hour in a 70 kilometre per hour zone. He had crossed over double white lines to overtake another vehicle, which resulted in a head-on crash. The maximum penalty for dangerous driving causing death was, at that time, five years’ imprisonment.
In allowing the Director’s appeal against sentence, the Court recognised that there were significant mitigating factors. These included an early plea of guilty and genuine remorse. Nonetheless, the Court observed, there is a premium upon human life and general deterrence is an important factor in sentencing for this offence. For that reason, youth was to be given less weight as a subjective matter than in other types of cases. Importantly, the Court added that, as had been said by the New South Wales Court of Criminal Appeal,[47] ‘a non-custodial sentence for this offence should be seen as exceptional.’[48]
[47]R v Jurisic (1998) 45 NSWLR 209 (‘Jurisic’).
[48]Neethling (2009) 22 VR 466, 472 [29] referring to Jurisic, 231.
To much the same effect was the earlier decision of this Court in Oates.[49] In that case, the Court emphasised that general deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury. It added that a person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment.[50]
[49](2007) 47 MVR 483.
[50]Ibid 486–487 [22] (Neave JA with whom Warren CJ and Nettle JA agreed).
The Court in Oates qualified that statement of principle by noting that any sentence which is imposed must take account of variations in the moral culpability of the person responsible, and that a custodial sentence will usually be appropriate for this offence except where the offender’s level of moral culpability is low.[51]
[51]Ibid.
There can be no doubt that, among the aggravating features of an offence of dangerous driving causing death, is the extent and nature of the injuries inflicted. In the present case, the facts speak for themselves. In addition to the deaths and serious injuries caused, SB by his actions put a number of other motorists at risk. Moreover, this was not a case of momentary inattention. It involved a continuing loss of control over a high speed vehicle, lasting some minutes.
In Neethling, the Court held that the sentence imposed was manifestly inadequate. In particular, the component of the overall sentence that related to the offence of dangerous driving causing death — nine months’ imprisonment — could not reasonably be justified, even allowing for Neethling’s early plea of guilty, genuine remorse, and good character. For the total effective sentence of 12 months’ imprisonment, which had been ordered to be served by way of an intensive corrections order, the Court substituted a sentence of two years and seven months’ imprisonment, to be served in a Youth Justice Centre.
The Court considered, but rejected, a submission on behalf of the offender that it should exercise its residual discretion to dismiss the appeal notwithstanding the inadequacy of the sentence imposed below. It did so notwithstanding that the offender had received a non-custodial sentence at first instance and that there had been a delay of six months between the sentence and the hearing of the appeal. Importantly for present purposes, the Court assessed the offender’s moral culpability as high.[52]
[52]Neethling (2009) 22 VR 466, 475 [44].
In Director of Public Prosecutions v Janson,[53] the offender had been sentenced to a total of three years’ imprisonment, wholly suspended, in respect of two counts of dangerous driving causing death, together with a community based order of 250 hours of unpaid community work, in respect of three counts of dangerous driving causing serious injury. The Crown appealed against that sentence, arguing that, inter alia, the judge had erred in failing to give full effect to the increase in maximum penalty for the offence of dangerous driving causing death.
[53](2011) 31 VR 222 (‘Janson’).
The offender had been driving a prime mover and attached refrigerated van trailer along the South Gippsland Highway. He went through a red light, travelling at about 70 kilometres per hour, and collided with a vehicle that had entered the intersection when the light turned green. The prime mover hit the other vehicle side on, with considerable force. There was no evidence to suggest that the offender was affected by alcohol or other drugs, or fatigue.
The sentencing judge characterised the offending as ‘at the low end of the dangerous driving scale’.[54] She observed that the offender had not consciously chosen to run the red light, but had simply not seen it. She regarded this as a matter involving ‘a very short period of inattention’.[55] The offender was racked with guilt and remorse, and had suffered from a major depressive disorder. In addition, it was said, his symptoms were likely to increase if he were incarcerated, thus calling in aid the sixth principle in Verdins.[56]
[54]Ibid 225 [11].
[55]Ibid.
[56](2007) 16 VR 269.
Nettle JA, who delivered the principal judgment, concluded that the sentencing judge had erred in characterising this offending as being at the ‘low end’ of the scale.[57] His Honour referred to the views expressed by this Court in Oates and Neethling, and emphasised that general deterrence was an important consideration in sentencing for all forms of dangerous driving causing death, including ‘lower level’ forms of the offence.[58]
[57]Janson (2011) 31 VR 222, 226 [17]. Kyrou AJA agreed with Nettle JA. Neave JA dissented — see 233 [50].
[58]Ibid 230 [35].
The Crown’s appeal against sentence in Janson was allowed. Again, the Court declined to exercise the residual discretion, while recognising that it would be harsh for the offender to be imprisoned after having originally been sentenced to a suspended term of imprisonment.[59] This consideration was viewed as warranting some moderation in the sentence.[60] The offender was then sentenced to a total effective sentence of four years’ imprisonment with a non-parole period of two years.
[59]Ibid 230–231 [39]–[41]. Neave JA dissented — see 233 [54].
[60]Ibid 231 [41].
In Board v The Queen,[61] the applicant had pleaded guilty to one charge of dangerous driving causing death and three charges of dangerous driving causing serious injury. He received a total effective sentence of four years’ imprisonment with a non-parole period of one year and six months. This Court rejected as not reasonably arguable a contention that this sentence was manifestly excessive.
[61][2013] VSCA 190 (‘Board’).
The facts of that case were, in some respects, not dissimilar to those in the present case. The applicant was driving a car in which his wife and mother-in-law were both passengers. The fatal accident occurred when his vehicle crossed the centre line into the path of an oncoming vehicle. His mother-in-law was killed. His wife sustained serious injuries, as did the two front seat passengers in the other car.
The collision occurred on a country road, in fine weather, with moderate traffic. The applicant was not affected by alcohol. There was a car travelling immediately behind that driven by the applicant. The driver of that car observed the applicant over a three kilometre stretch, twice veering onto the wrong side of the road and once onto the gravel on the left side of the road. He described the applicant’s driving as ‘erratic’. It seems that the applicant had told his wife, shortly before the collision, that he was tired and would look for somewhere to pull over. Accordingly, the applicant’s driving could not be characterised as a momentary lapse.
It was submitted on the plea that the applicant suffered from obstructive sleep apnoea, a condition that had not previously been diagnosed and of which he was unaware. This was said to reduce the applicant’s moral culpability for this offending. That submission was rejected.
Maxwell ACJ (with whom Buchanan JA agreed) concluded that the sentences imposed were well within the range reasonably open to the sentencing judge. His Honour summarised the applicable principles as follows:
1. The driver’s moral culpability must be taken into account, together with the ‘objective dangerousness’ of the driving.
2. A person who drives dangerously, knowing of a risk associated with his driving, will (other things being equal) be adjudged more blameworthy than one who drives in the same dangerous manner without that knowledge.
3. The Court’s assessment of the dangerousness of the driving will be informed by the extent of the risk which the driving created, as well as by the extent of potential harm should the risk materialise.
4.General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury. The importance of care in driving, given the risks associated with dangerous or careless driving, underpins the need for sentences to be imposed which will deter others from following a similar course of driving dangerously.[62]
[62]Ibid [34] (citations omitted).
His Honour went on to say:
Applying those principles, it can be seen that this was a very serious instance of this kind of offending. Driving while drowsy is a highly dangerous activity. As pointed out earlier, the effect of drowsiness is that the driver loses control of the vehicle, and an uncontrolled vehicle is likely to cause death or serious injury. The risk actually created is great, and the potential harm is likewise very great.
[The applicant’s] culpability was high, in my view, because he was fully aware of his own drowsiness and of the risk which that created, and was conscious that because of that risk he should stop driving without delay. There was apparently nothing to prevent him pulling over but he did not do so and he continued to drive with knowledge of the very grave risk that that created.[63]
[63]Ibid [35]–[36].
This Court has repeatedly reaffirmed the importance of comparable cases in the identification of a sentencing range applicable to the case at hand. These cases indicate that, in ordinary circumstances, the present respondent would have received a substantial term of imprisonment, given the high objective gravity of his offending.
But the circumstances of this case were out of the ordinary. Most importantly, SB suffers from high-functioning Autism Spectrum Disorder (previously known as Asperger’s Syndrome). The consensus of the expert witnesses, as set out in their joint statement, was that SB’s cognitive and behavioural/emotional conditions were likely to have contributed to the offending, whether he was sleep-deprived or not.
The judge recognised the particular difficulty associated with balancing the various relevant sentencing factors in this case. His Honour ultimately concluded that a merciful disposition was warranted. And, as Eames JA said in Director of Public Prosecutions (Vic) v Leach,[64] it is particularly important that the Court of Appeal
should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That, after all, may be a decision which redounds very much to the benefit of the community.[65]
[64](2003) 139 A Crim R 64.
[65]Ibid 74 [48].
As previously noted, the ground of manifest inadequacy is a stringent ground, difficult to make good. Any sentencing exercise involves a synthesis of competing considerations, and reasonable minds may differ on the appropriate sentence. There is no single correct sentence, and there is always room in sentencing for some measure of mercy.
As regards the need for both appropriate punishment and adequate denunciation, the following remarks of Spigelman CJ in Jurisic[66] are apposite:
It has long been accepted that denunciation of criminal conduct is a relevant factor in the sentencing process. In the course of such denunciation, courts do and should have regard to the moral sense of the community and to community expectations of appropriate punishment. Courts are, however, aware that the requirements of justice and the requirements of mercy are often in conflict, but that we live in a society which values both justice and mercy.[67]
[66](1998) 45 NSWLR 209.
[67]Ibid 221.
It is also necessary to recall what Vincent JA frequently described as ‘social rehabilitation’.[68] In DJK, his Honour said:
This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim’s perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.[69]
[68]DPP v DJK [2003] VSCA 109 (‘DJK’).
[69]Ibid [18].
In Neethling, the Court observed that, ‘those remarks apply with particular force to an offence of this devastating kind.’[70]
[70]Neethling (2009) 22 VR 466, 478 [58].
What Boulton decided
As noted earlier, the sentencing judge commented that the guideline judgment in Boulton[71] ‘changed the landscape of sentencing in this [S]tate’. It is important to emphasise that it was not the Court’s decision which had that effect. Rather, as the Court said in Boulton, it was the introduction of the CCO as a sentencing option which had ‘dramatically change[d] the sentencing landscape’.[72]
[71][2014] VSCA 342
[72]Ibid [113].
In seeking a guideline judgment, the Director had submitted that CCOs were not being used by sentencing courts in the way, or to the extent, that the legislature had intended. The Director submitted that sentencing courts needed as much guidance as possible about how a CCO could serve the various purposes for which sentences are imposed. Counsel for the then Attorney-General, Mr Clark, who had introduced the legislation creating the CCO regime, submitted that the CCO had ‘the robustness and flexibility to be imposed in a wide variety of circumstances.’[73]
[73]Ibid [116].
The guideline judgment explained why the advent of the CCO was such a dramatic change:
The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence.
The CCO option offers the court something which no term of imprisonment can offer, namely, the ability to impose a sentence which demands of the offender that he/she take personal responsibility for self-management and self-control and (depending on the conditions) that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places. The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide.
In short, the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her.[74]
[74]Ibid [113]–[115].
The Court pointed out that a CCO was ‘intrinsically punitive’ because of the mandatory conditions which must be complied with. Further, the Court said, the CCO was ‘capable … of being highly punitive’, depending on ‘the length of the order and the nature and extent of the conditions imposed’.[75] The most obviously punitive condition is that the offender undertake community work for a specified number of hours, but other conditions can significantly restrict the offender’s freedom of movement and association.
[75]Ibid [124].
At the same time the Court made clear that, whatever the conditions attached to a CCO, its punitive effect could never be equated to that of imprisonment, which
is uniquely punitive because of that feature which distinguishes it from all other forms of sanction, namely, the complete loss of liberty.[76]
[76]Ibid [104].
Because of the combined punitive and rehabilitative effect of a CCO, the Court said, sentencing courts should ‘re-examine the conventional wisdom about the types of offending which ordinarily attract a term of imprisonment’.[77] As the then Attorney-General had submitted, the CCO was
intended to be available in serious cases where an offender may be at risk of receiving an immediate custodial sentence, but the Court considers that immediate custody is not necessary to fulfil the statutory purposes of sentencing given the range of options provided by a CCO.[78]
[77]Ibid [103].
[78]Ibid [116].
The essential character of the sentencing court’s task remains unchanged. As the Court explained in McGrath v The Queen:[79]
[N]othing said in Boulton altered the principle of parsimony, which has always been a fundamental sentencing principle under the Sentencing Act 1991 (‘the Act’).
…
A sentencing judge has always been obliged to impose the least severe sentence necessary to achieve the purposes of sentencing. That obligation is enshrined in s 5(3) and (4) of the Act, which oblige the court not to impose a sentence of confinement unless it considers that ‘the purpose or purposes for which the sentence is imposed’ cannot be achieved by a sentence that does not involve confinement. Those provisions — which are of long standing — were recently supplemented by s 5(4C), which requires a court not to impose a sentence of confinement unless it considers that the relevant sentencing purposes cannot be achieved by a CCO with conditions attached.
The judge’s obligation is, as it has always been, to give adequate consideration to whether a sentencing option other than a substantial immediate custodial term of imprisonment will be appropriate. The option of a CCO must be amongst the alternative dispositions to be considered. In Boulton, the Court pointed out that in an appropriate case a CCO can achieve all of the purposes of sentencing, and can do so in cases which might previously have been thought to require a sentence of imprisonment.
…
Plainly enough, the availability of the option of a CCO does not mean that the imposition of a custodial sentence is presumptively erroneous.[80]
[79][2015] VSCA 176 (‘McGrath’).
[80]Ibid [30]–[32] (citations omitted).
The Court in McGrath endorsed what was said in Hutchinson v The Queen,[81] where Priest JA (with the concurrence of Ashley JA) said:
Acknowledging that a CCO might be appropriate ‘even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment’, it should not be thought that Boulton offers a ‘Get Out of Jail Free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed. One of the purposes for which a sentence may be imposed is, of course, ‘to punish the offender to an extent and in a manner which is just in all of the circumstances’. There will be cases — indeed, many cases — where, having regard to the seriousness of the offending, a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all of the circumstances, is just.[82]
[81][2015] VSCA 115.
[82]McGrath [2015] VSCA 176 [53].
It is against that background that the following statement by the Court in Boulton must be understood:
It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[83]
[83]Boulton [2014] VSCA 342 [131].
Conclusion
In our view, it was not reasonably open to the judge in this case to have imposed a CCO without any period of incarceration. The objective gravity of this offending was simply too great to allow for such a disposition. We acknowledge the great care with which the judge approached the sentencing task, and make full allowance for the breadth of the discretion afforded to a sentencing judge. But we have concluded that this was a case which demanded at least some period of actual imprisonment.
Of course, what made his Honour’s task particularly difficult is that this was an offence of high objective gravity but the offender’s moral culpability was ‘of a low order’. Ultimately, however, even accepting all of the mitigating factors that were present, SB must take a measure of responsibility for his actions. He had clear and repeated warning of the fact that he was not properly in control of his vehicle. He chose nevertheless to continue driving. His decision to do so may have been affected by his reduced capacity to react appropriately, brought about by reason of his cognitive disorder, but that does not absolve him of responsibility for what was, in the circumstances, highly negligent behaviour, resulting in tragic consequences.
SB’s conduct merited severe condemnation. His low moral culpability allowed for some measure of leniency, but not to the point of imposing what, for an offence of this gravity, was a wholly inadequate sentence.
In his oral submissions, the Director acknowledged that a CCO might have been appropriate had it been coupled with a moderate term of imprisonment. Necessarily, as previously indicated, he was implicitly speaking of a term of less than two years. That submission, in that form, seems to us to have been entirely reasonable.
The residual discretion
The fact that the Director has made good his contention that this was a case that required a period of actual incarceration does not, of course, determine the fate of this appeal. The question arises as to whether — as was submitted on behalf of SB — the appeal should nonetheless be dismissed in the exercise of this Court’s residual discretion.
Not without some hesitation, we accept that submission.
The principles governing the exercise of the residual discretion must depend on the circumstances of each case. Some of the factors relevant to the exercise of the discretion were addressed in Karazisis,[84] but of course each case will turn on its own particular facts and circumstances.
[84](2010) 31 VR 634, 657–660. See also R v Hopper (2014) 241 A Crim R 228.
Among the matters that may legitimately be taken into account are the fact that the imposition of a relatively short, actual custodial period would not justify the interruption of SB’s rehabilitation, and reintegration into society. It is no easy thing to imprison a young man who has received a non-custodial sentence and has satisfactorily been performing his obligations under the CCO for some months.
Were these the only matters to be taken into account, however, we would not have exercised the residual discretion in SB’s favour. There is one peculiar feature of this case which tilts the balance in SB’s favour. That is the manner in which the prosecution of this matter was conducted.
As noted earlier, the judge was critical of the Crown for having initially brought charges of culpable driving causing death. In his Honour’s view, those charges could never have been sustained. He was just as critical of the Crown for having persisted with those charges for as long as it did, thereby depriving SB of the legitimate chance of receiving a Youth Justice Centre order.
Of course, the judge went even further and suggested that SB would have had a reasonable chance of acquittal on the lesser charges of dangerous driving causing death and serious injury. That is perhaps one step too far. There was, however, considerable force in his Honour’s criticism of the decision to bring charges of culpable driving, and of the Crown’s refusal to accept an early plea to the current offences. Had the Crown taken a more realistic view of this case from the start, a Youth Justice Centre order could have been made early on, and the entire trauma associated with the Crown appeal could have been avoided.
It is in these highly unusual circumstances that we propose to dismiss this appeal. However, two matters should be emphasised.
First, our conclusion should not be taken as suggesting in any way that the taking of two lives, and the effective destruction of another, could legitimately be regarded as ‘low order offending’. To the contrary, absent the mitigating factors present here, nothing less than a term of imprisonment of some years’ duration would have been appropriate.
Secondly, the Court is fully conscious of the fact that nothing we say will allay the anger and hurt of the members of the Hutchings family, or undo the devastation which this offending caused. Our task, which is sometimes a particularly difficult one, is to apply the law as we understand it to the facts of the particular case before us. We have set out the relevant legal principles, and the manner in which we are obliged to apply them, but we are acutely conscious that there are only losers in cases such as this.
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