DPP v Hill

[2012] VSCA 144

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0305

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
	v
PATRICK THOMAS HILL	Respondent

---

JUDGES	NEAVE, OSBORN JJA and KING AJA
WHERE HELD	GEELONG
DATE OF HEARING	29 May 2012
DATE OF JUDGMENT	29 June 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 144
JUDGMENT APPEALED FROM	DPP v Hill (Unreported, County Court of Victoria, 18 November 2011, Judge McInerney)

---

CRIMINAL LAW − Crown appeal against sentence − Respondent convicted of two charges of culpable driving causing death, one charge of reckless conduct endangering life and two charges of reckless conduct placing persons in danger of serious injury − Sentence of three years in a youth justice centre − Whether sentence manifestly inadequate − Whether judge erred in failing to cumulate sentences imposed on each culpable driving charge − Appeal allowed − Respondent re-sentenced.

---

Appearances	Counsel	Solicitors
For the Appellant	Mr J R Champion SC with Ms D I Piekusis	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson QC with Mr A L Hands	O’Keefe Lawyers

NEAVE JA:
OSBORN JA:
KING AJA:

Introduction

1. The respondent, Patrick Thomas Hill, was found guilty by a County Court jury of two charges of culpable driving causing death (charges 1 and 2), one charge of reckless conduct endangering life (charge 3) and two charges of reckless conduct placing persons in danger of serious injury (charges 5 and 6).  He was 18 years old when the offences were committed and 19 years old when he was sentenced.

1. On 18 November 2011, following a plea hearing, he was sentenced as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1	Culpable driving causing death Crimes Act 1958 s 318	20 years’ imprisonment and/or a level 3 fine Crimes Act 1958 s 318	3 years’ confinement in a youth justice centre	Head sentence
2	Culpable driving causing death Crimes Act 1958 s 318	20 years’ imprisonment and/or a level 3 fine Crimes Act 1958 s 318	3 years’ confinement in a youth justice centre	Concurrent
3	Reckless conduct endangering life Crimes Act 1958 s 22	10 years’ imprisonment Crimes Act 1958 s 22	1 year’s confinement in a youth justice centre	Concurrent
5	Reckless conduct placing persons in danger of serious injury Crimes Act 1958 s 23	5 years’ imprisonment Crimes Act 1958 s 23	6 months’ confinement in a youth justice centre	Concurrent
6	Reckless conduct placing persons in danger of serious injury Crimes Act 1958 s 23	5 years’ imprisonment Crimes Act 1958 s 23	6 months’ confinement in a youth justice centre	Concurrent

This amounted to a total effective sentence of three years, which the judge ordered to be served in a youth justice centre.  A non-parole period was not declared and no pre-sentence detention had been served.  The respondent was disqualified from holding a driver licence for a period of two years. 

1. The Director of Public Prosecutions (‘Director’) now appeals against the sentence imposed on the basis that it is manifestly inadequate. 

Circumstances of the offending and the offender

1. During the late afternoon on 27 June 2010, the respondent asked Brittnee Tait and Emma Thuckle to go for a drive with him around Casterton.  Ms Thuckle was then seated in the front passenger seat and Ms Tait in the back passenger seat of the Holden Commodore station wagon. 

1. The respondent drove west along Murray Street towards McKinlay Street.  He was familiar with the intersection of the two streets and was aware that there was a give way sign at the intersection, but failed to apply the brakes in time to give way.  His vehicle collided with another vehicle, causing the deaths of Margaret Witham and Donald Witham.  The respondent’s two passengers were also injured and minor injuries were suffered by a passenger who was in the car with the Withams.  Fortunately, each of these injured passengers have recovered from their injuries.

1. The expert evidence was that when the respondent braked prior to the collision, his car was travelling at between 97 and 102 kilometres per hour.  He was in a 50 kilometre zone at the time.  In his record of interview, the respondent said he had ‘not slowed down much’ before he entered the intersection. 

1. The respondent also admitted he had been driving fast, ‘cutting laps’ and ‘sort of showing off’ prior to the collision.  At the hearing of the appeal, counsel were asked what was meant by the expression ‘cutting laps’.  While counsel for the respondent was unable to assist the Court, the Director submitted that it meant that the respondent had driven repeatedly around the same area at some speed.  

1. During the trial, the prosecution relied on the high speed at which the respondent’s car was travelling, and his failure to keep a proper look out and to give way at the intersection, in support of the two culpable driving charges. 

1. Ms Thuckle gave evidence that the respondent had said ‘fuck it’ and accelerated through the give way intersection.  Both Ms Thuckle and Ms Tait said that the respondent had accelerated rather than braked, immediately prior to the intersection. 

1. In his reasons, the learned sentencing judge referred to expert evidence that skid marks leading up to the scene of the collision indicated that there was ‘significant braking prior to the collision’.[1]  On that basis, his Honour considered that the jury could not have accepted Ms Thuckle’s evidence that the respondent said ‘fuck it’ and deliberately accelerated through the intersection.  His Honour said that if that comment had, in fact, been made by the respondent, and an acceleration was felt by both witnesses, this must have been ‘significantly further back down Murray Road’.[2]  The judge, accordingly, sentenced the respondent on the basis that there was no ’flagrant decision’ on his behalf to accelerate through the intersection.  That conclusion was not challenged by either the Director or the respondent on appeal.  

   [1]DPP v Hill (Unreported, County Court of Victoria, 18 November 2011, Judge McInerney) (‘Reasons’) [12].

   [2]Ibid [12].

1. The car driven by the respondent was roadworthy and he was not affected by alcohol or any drugs.[3]  However, he was in breach of the conditions of his P1 probationary licence, which restricted him to having only one passenger between the ages of 16 and 23 years. 

   [3]Ibid [14].

His Honour’s sentencing reasons

1. In his reasons, the learned sentencing judge accepted that there were no aggravating factors with respect to the two culpable driving charges,[4] and found the objective culpability of the respondent for these charges to be in the ‘mid to high level range’.[5] 

   [4]Ibid [17].

   [5]Ibid [16].

1. In relation to the three other charges, the judge assessed the respondent’s culpability as ‘mid level’, on the basis that the only factor relied upon by the Crown was the high speed at which the car was driven.[6] 

   [6]Ibid.

1. The judge noted that the respondent was aged 18 years when the offences occurred, and was 19 years old at the date of sentence.[7]  He had no prior convictions, was working as an apprentice plumber and was described as ‘a person who is held in high regard in the community’.[8]

   [7]Ibid [61].

   [8]Ibid [62]-[64].

1. His Honour accepted that the respondent was genuinely remorseful, and had offered to plead guilty to two charges of dangerous driving causing death (which was ultimately rejected by the prosecution).[9]

   [9]Ibid [65]-[66].

1. His Honour referred to a report prepared by psychiatrist, Dr Barrie Kenny, who described the respondent as an honest and responsible person, who did not appear to have ‘significant problems with his mental, psychological or emotional functioning’ and who would cope with whatever response the Court imposed on him.[10] 

   [10]Ibid [74]-[75].

1. His Honour referred to a pre‑sentence report prepared by Ms Lisa Crispe for the Department of Human Services for the purpose of assessing the respondent’s suitability for a youth justice centre.  In that report, Ms Crispe noted that the respondent has a ‘highly supportive family’ and had displayed remorse for his offending.[11]  She concluded that the respondent had reasonable prospects for rehabilitation, and considered that he would be vulnerable in the adult prison system.[12] Ms Crispe’s recommendation was that the respondent was suitable for a youth justice centre order under s 32 of the Sentencing Act 1991.[13] 

   [11]Ibid [77].

   [12]Ibid [78]-[79].

   [13]Ibid [80].

1. The judge referred to a number of cases which provided an indication of current sentencing practices for the offence of culpable driving and referred to the importance of general deterrence and denunciation in sentencing offenders for this offence.[14]  

   [14]Ibid [42].

1. His Honour referred to the emphasis which is given to rehabilitation in sentencing young offenders,[15] but noted that the offender’s youth had to be given less weight ‘because of the tendency of young drivers to drive dangerously, and the need for a strong message to be given to that cohort of the population.’[16]

   [15]See, eg, R v Mills [1998] 4 VR 235.

   [16]Reasons [45].

1. In these circumstances, the judge considered that a total effective sentence of three years’ confinement to be served in a youth justice centre:[17]

appropriately reflects the seriousness of these offences and at the same time will reflect the solicitude of the law for young first offenders, such being grounded in the public interest, youthful rehabilitation and the principles expounded…in DPP v Tokava.[18]

[17]Ibid [85].

[18][2006] VSCA 156, [21].

Grounds of appeal

1. The Director of Public Prosecutions appeals against sentence on the following two grounds:

1.That the sentences imposed on Counts 1 and 2 are manifestly inadequate in all of the circumstances.

Particulars

In imposing a sentence of three years confinement in a youth justice centre on each count, the sentencing judge –

(a)failed to sufficiently punish the offender to an extent which is just in all of the circumstances;

(b)failed to sufficiently deter the offender or other persons from committing an offence of the same or a similar character;

(c)failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged; 

(d)failed to protect the community from the offender;

(e)failed to have sufficient regard to the maximum penalty prescribed for the offence; 

(f)failed to have sufficient regard to the nature and gravity of the offence;

(g)failed to have sufficient regard to the offender’s culpability and degree of responsibility for the offence; 

(h)failed to have sufficient regard to the impact of the offence on the victim;

(i)failed to have sufficient regard to the need for general deterrence; 

(j)failed to have sufficient regard to relevant case law, particularly DPP v Whittaker[19] and DPP v Johnstone;[20]

[19](2002) 5 VR 508.

[20](2006) 16 VR 75.

(k)failed to give weight to his assessment that the culpability of the offender was at a ‘mid to high’ range;

(l)failed to have sufficient regard to current sentencing practices for culpable driving causing death;

(m)failed to have sufficient regard to aggravating features of the offending, and in particular –

·that the offender was travelling at approximately double the speed limit;

·that the offender was familiar with the location and the fact that the intersection was governed by a give way sign; and

·that the offender had been driving in an erratic manner prior to the collision.

(n)gave too much weight to mitigating factors concerning the offender, and in particular –

·the allegation that the offender was remorseful;

·the offender’s youth and his prospects for rehabilitation;

·the likely impact of confinement on the offender; 

·the offender’s family support and good education; and

·the admissions made at the scene.

(o)erred in failing to first determine an appropriate sentence for the offending in light of all of the aggravating and mitigating features including, in particular, the plea of not guilty;

(p)erred in finding that the offender had taken ‘full responsibility’ for the offence.  The offender stated in the record of interview that he was travelling at ’65 to 70 kilometres per hour’.  Further the offender pleaded not guilty to all charges. 

2.The sentencing judge’s failure to cumulate the sentences on Counts 1 and 2.

Particulars

In failing to wholly or partially cumulate the sentences on Counts 1 and 2 the sentencing judge:

(a)       failed to reflect the deaths of two separate individuals;

(b)failed to reflect the gravity of the offending and its consequences.

Director’s appeals ― general principles

1. Because the respondent was sentenced after the commencement date of the Criminal Procedure Act 2009,[21] Part 6.3, Division 3 of that Act applies to this Crown appeal against sentence.

   [21]Clause 10(4) of Schedule 4 of the Criminal Procedure Act 2009 provides that ‘Divisions 1, 2 and 3 of Part 6.3 apply to an appeal where the sentence is imposed on or after the commencement day.’  The commencement day was 1 January 2010.

1. Section 289(2) and s 290(3) of that Act exclude the application of the principle of double jeopardy when this Court decides whether a Crown appeal against sentence should be allowed because of sentencing error and, if so, re-sentences the respondent.[22]  Further, in DPP v Karazisis,[23] all members of this Court agreed that ‘[t]he notion that Crown appeals should be “rare and exceptional” no longer applies as a sentencing principle to which this Court must have regard’.[24]

   [22]DPP v Karazisis (2010) 206 A Crim R 14 (‘Karazisis’) 17 [1] , 20 [13] (Warren CJ and Maxwell P), 30 [52],[53] (Ashley, Redlich and Weinberg JJA). In that case, there was a difference of view between the majority (Ashley, Redlich and Weinberg JJ) and the minority (Warren CJ and Maxwell P) on the effect of the removal of double jeopardy on the Director’s discretion to initiate an appeal against sentence. The majority held that the principle continued to apply to the Director’s discretion and held that in exercising the discretion, the Director was constrained by the double jeopardy principle: 31 [57]-[61]. By contrast, Warren CJ and Maxwell P considered that double jeopardy no longer had any part to play in the exercise of the Director’s discretion: 21−3, [19]-[26]. That difference of view is not relevant to this appeal.

   [23](2010) 206 A Crim R 14.

   [24]Ibid 42 [120].

1. In Karazisis, it was also held that, except to the extent that double jeopardy had been removed as a relevant consideration by s 290, the other constraints applicable to Crown appeals laid down in cases such as R v Clarke[25] and DPP v Bright[26] continued to apply.  In Clarke, the principles relevant to Crown appeals (now excluding double jeopardy) were articulated by Charles JA (Winneke P and Hayne JA agreeing) as follows:[27]

2. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle…; (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons…; (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience…; (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing…

3. A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive.  It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact.

…

5. An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process.  In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance. 

[25][1996] 2 VR 520 (‘Clarke’).

[26](2006) 163 A Crim R 538.

[27][1996] 2 VR 520, 522. Passages relating to double jeopardy have been omitted from this quotation, as they are no longer relevant when the Court is considering a Crown appeal.

1. It was argued by counsel for the respondent that the recent decision of the High Court in Green v The Queen[28] further limited the purposes of Crown appeals against sentence.  Although Green was concerned with s 5D of the Criminal Appeal Act 1912 (NSW), counsel submitted that it has a similar operation to s 289 of the Criminal Procedure Act 2009.  The respondent relied on passages in Green in which French CJ, Crennan and Kiefel JJ said that:

The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (Crown appeals) under s 5D of the Criminal Appeal Act 1912 (NSW) is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”. That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient.[29]

and that:

A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is ‘to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons’. That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.[30]

[28]Green v The Queen (2011) 283 ALR 1 (‘Green’). The question in Green was whether the New South Wales Court of Criminal Appeal had erred by increasing the sentence of two co-offenders, thus creating a disparity between the sentences imposed on them following a Crown appeal and the sentence imposed on a co-offender against which the Crown had not appealed.

[29]Ibid 3 [1].

[30]Ibid 13 [36] (French CJ, Crennan and Kiefel JJ). Heydon and Bell JJ who delivered separate judgments dissenting in the result did not express a different view, although Bell J referred with approval to the proposition that Crown appeals ‘should be brought as a rarity to establish a matter of principle including, where appropriate, to redress manifest inadequacy in sentencing standards’: 32, [112]. In Karazisis, it was suggested that relevant factors in exercising the discretion include delay, parity, the totality principle, the rehabilitation of the offender and fault on the part of the Crown: 39−42 [104]–[115].

1. Counsel submitted that the effect of Green was to place further limits on the purpose of Crown appeals than those articulated in Clarke.

1. We would reject that submission.  Nothing in Green contradicts the approach taken by this Court in Karazisis, which was cited in the judgment of French CJ, Crennan and Kiefel JJ.[31]  Green, like Karazisis, held that the statutory removal of double jeopardy in Crown appeals against sentence did not remove the residual discretion of the Court to decline to interfere with a manifestly inadequate sentence on grounds other than double jeopardy.  However, Green did not otherwise modify the principles in Clarke or further limit the role of the Court in Crown appeals.

   [31]Ibid 8, fn 28. See also the reference at 13, [37] to the statement in R v Borkowski (2009) 195 A Crim R 1 about the purposes of Crown appeals.

Submissions on appeal

1. The Director submitted that the judge had correctly characterised the culpability of the respondent for charges 1 and 2 as ‘mid to high level’.  The speed at which the respondent was travelling immediately before braking was double the authorised speed limit for the road, the respondent was ‘cutting laps’ and ’showing off’ to his two passengers, he had been licensed for only three months and had two passengers in the motor vehicle when he was only permitted to have one passenger. 

1. Further, although the respondent was familiar with the intersection, he failed to keep a proper lookout and did not give way.  Although the respondent’s culpability was not aggravated by his consumption of alcohol or drugs, the absence of these factors did not reduce his objective culpability.

1. The Director submitted that although his Honour had acknowledged the primacy of general deterrence and denunciation in offences of this kind, he had failed to give those factors the weight that the authorities required.  Further, his Honour had placed far too great a weight on mitigatory factors and had not adequately balanced these factors against the seriousness of the offending, and the prevalence of this type of offending among young people.

1. The sentence was imposed after a contested trial, so the respondent was not entitled to a reduction in sentence for the utilitarian value of a guilty plea and whilst the respondent was remorseful, he had not accepted that he was travelling at the speed indicated by the expert evidence.

1. In relation to the Crown submission that the sentences imposed on charges 1 and 2 were manifestly inadequate, the respondent submitted that mere ‘manifest inadequacy’ was not enough to warrant appellate intervention because the inadequacy was not ‘clear and egregious’.  Nor was it so disproportionate to the seriousness of the crime as to shock the public conscience and ‘undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes.’[32] 

   [32]Everett v The Queen (1994) 181 CLR 295, 306 (McHugh J), as cited in DPP v Bright (2006) 163 A Crim R 538, 542 [10] (Redlich JA).

1. The respondent further relied upon the Court’s residual discretion to dismiss a Crown appeal against sentence, even if error or manifest inadequacy had been demonstrated.[33]  The respondent’s counsel relied on the respondent’s vulnerability if he were confined in an adult prison, on his good prospects of rehabilitation as indicated in the pre‑sentence report and on the fact that he had been serving his sentence at Malmsbury Youth Justice Centre since 18 November 2011.  

   [33]Karazisis (2010) 206 A Crim R 14, 39 (Ashley, Redlich and Weinberg JJA).

1. Counsel also submitted that the Crown had not adequately assisted the sentencing judge by calling for an immediate term of imprisonment (and thereby implying that detention in a youth justice centre was not appropriate) and not providing the judge with an appropriate sentencing range.  It was argued that, in effect, a sentence of one year’s imprisonment on each charge of culpable driving, wholly concurrent, would have been within the boundaries of the prosecutor’s sentencing submission.  These factors in combination were said to have enlivened the Court’s discretion. 

1. The respondent submitted that, although the sentence could be regarded as merciful or lenient, it was not outside the range reasonably open to the sentencing judge and the sentence was certainly not unprecedented.  Reference was made to R v Khuat,[34] in which a young offender was sentenced by a County Court judge to three years’ detention in a youth training centre following his plea of guilty to two counts of culpable driving. 

   [34]R v Khuat, referred to in R v Lam [2006] VSCA 162, [2]−[7] (Ashley, Redlich and Bell JJ).

1. In addition, the respondent’s counsel referred to sentencing statistics which showed that during the five year period between 2005-06 to 2009-10, 12 people out of the 105 sentenced for the principal offence of culpable driving causing death received a youth justice centre order.[35]

   [35]Sentencing Advisory Council, Sentencing Snapshot, Sentencing trends in the higher courts in Victoria 2005-06 to 2009-10: Culpable driving causing death, Table 1 (‘Sentencing Statistics’).  Prior to 23 April 2007, this was known as a ‘youth training centre order’.

1. It was submitted that his Honour, a most experienced judge, had been faced with a difficult sentencing issue requiring him to balance the fact that the respondent was a young offender with the fact that the offences had had tragic and appalling consequences.  The sentence imposed was said to be well within the scope of the judge’s  sentencing discretion. 

1. In relation to Ground 2, the respondent conceded that in culpable driving cases where there are multiple fatalities, a practice has developed of ordering some degree of cumulation to demonstrate that the death of another person was not just a ‘meaningless statistic’.[36] 

   [36]DPP v Solomon [2002] VSCA 106, [19] (Winneke P).

1. Nevertheless, it was submitted that it was open to the judge to order that the sentences be served concurrently because the double fatality arose from a single course of driving by the respondent and to ensure that the respondent’s youth was adequately taken into account in sentencing him.

Conclusion

1. The Crown referred to a large number of cases in support of its submission that the sentences imposed for the two culpable driving charges were manifestly inadequate.  These authorities show that culpable driving has consistently been treated as a very serious offence.  As Vincent JA observed in R v Withers:[37]  

There is no need to recite yet again the many expressions of the seriousness with which the crime of culpable driving is viewed by this Court.  They can be found in such cases as Wareham, Soloman, O’Connor and Scott.  The offence is now regarded as a species of involuntary manslaughter and in this context it must be borne in mind that the legislature has fixed a maximum penalty of imprisonment for 20 years, the same as that available for manslaughter… Time and time again the Court has emphasised the importance of general deterrence as a sentencing consideration in cases of this type.  Hopefully, as a consequence of the stance taken, as set out in the authorities to which I have referred, there will be increased understanding on the part of those who may be tempted to adopt the kind of culpably irresponsible behaviour that resulted in the death of the victim in this case, that it will simply not be tolerated by the community and will be likely to result in the imposition of very substantial terms of imprisonment.  General deterrence is a powerful sentencing consideration in relation to this type of behaviour.[38]

[37][2003] VSCA 176.

[38]Ibid [15] (citations omitted).

1. In R v Franklin,[39] Warren CJ said that:[40]

Cases of culpable driving continue to come too frequently before the courts. What is so striking about these cases is that one moment in time can have such devastating consequences.  As already observed, culpable driving is punishable by 20 years’ imprisonment.  Such a severe maximum penalty reflects the gravity of the offence and the culpability of the perpetrator.

As noted by the Court of Appeal in R v Gany,[41]

Serious driving offences frequently involve offenders who are of generally good character and who have excellent prospects for reformation.  No-one likes sending such people to gaol but there has been much publicity about the consequences for those who choose to drive their motor vehicles in a criminally negligent or reckless manner causing serious injury or endangering other members of the public.  This Court has said on numerous occasions, frequently when dealing with offences of culpable driving and negligently causing injury, that those who put lives at risk through grossly negligent driving can expect to receive heavy penalties influenced by the sentencing principle of general deterrence.  In such circumstances, sound prospects of rehabilitation will not lead to any significant amelioration of the prominence of general deterrence in the sentencing process.  Denunciation and general deterrence must be at the forefront of the sentencing synthesis.

[39][2009] VSCA 77 (‘Franklin’) (citations omitted).

[40]Ibid [12]−[13].

[41](2006) 163 A Crim R 322.

1. Her Honour went on to say that:

When imposing sentence and ordering cumulation,

where multiple deaths ensue, due regard must be paid to the principles of totality and to the fact that the multiple deaths arose from a single course of driving conduct.

So long as the cumulation does not offend the principle of totality it is …properly within the exercise of a sound discretion to recognise the fact that the culpable driving has caused multiple deaths by cumulating a sensible portion of the sentence imposed for one offence upon the sentence imposed for the other.[42]

[42]Franklin [2009] VSCA 77, [24] quoting DPP (Vic) v Solomon [2002] VSCA 106 (citations omitted).

As I observed in Johnstone,

The courts have…recognised that the circumstances of culpable driving will vary and courts should take account of the individual circumstances of each case.  With respect to cumulation, it is important that each death be adequately recognised, in both the overall sentence and the non-parole period. 

…

In Johnstone, I analysed the sentences imposed in relevant cases involving multiple victims.  I referred to cases involving two deaths which attracted total effective sentences ranging between six years and six months’ imprisonment and nine years’ imprisonment.  In a case involving three deaths, a total effective sentence of 12 years’ imprisonment had been imposed.

Each of the considerations to which I have referred applies in the case of multiple deaths or serious injuries.  The maximum term available is greater subject always to orders for cumulation not offending the principle of totality.  The correct approach is to cumulate a ‘sensible portion’.  General deterrence is of paramount importance.

…

The nature of imprisonment and its impact on many offenders in culpable driving cases may often be relevant.  Frequently, the offenders are from a good background and are meaningful contributors to the community.  They are often young, stable, employed and lack any substantial relevant prior offending, or any prior offending at all.  The individuals through a brief, often inexplicable error, destroy the lives of others and ruin their own.  Everyone is damaged.  Ultimately, the offender ends up in prison with all its deprivation and hardship.  This factor is a critical aspect of general deterrence.  One foolish mistake results in a stern sentence of imprisonment.[43]

[43]Ibid, [24]-[32] (citations omitted).

1. In R v Tran,[44] Callaway JA examined the issue of youth and culpable driving and referred to two examples dealt with by the same court in the same week.[45] 

   [44](2002) 4 VR 457.

   [45]Ibid 461−2 [12]−[14] (citations omitted).

In R v Sherpa, the applicant, who was 20 at the time of the offence, pleaded guilty to one count of culpable driving causing death.  The form of culpability was negligence.  There were mitigating factors in addition to his youth which led this court to reduce a sentence of seven years imprisonment with a non-parole period of five years’ to a sentence of five years’ imprisonment with a non-parole period of three years.  The following was said at [11]:

General deterrence must usually be emphasised in the punishment of this offence and there is correspondingly less scope than in the case of some other crimes for leniency on account of an offender's youth.  That does not mean that there is no scope for youth and concomitant prospects of rehabilitation to influence the disposition.  Even if an immediate custodial sentence is warranted, as it almost always is, those factors may still have a bearing on the kind of sentence to be imposed (in particular the choice between imprisonment and youth training where the latter is a realistic option), the length of the sentence and the time that must necessarily be served.  But it is not to be forgotten that a life has been lost.  [Emphasis added.]

The appellant in R v Toombs was 17 at the time of the offences to which he pleaded guilty.  One of them was culpable driving causing death, in which the relevant form of culpability was recklessness.  The others included theft of a motor vehicle and recklessly engaging in conduct which placed three persons in danger of serious injury.  Despite his youth, this court affirmed a sentence of six years’ imprisonment on the count of culpable driving causing death.  The directions for cumulation were varied, resulting in a total effective sentence of seven years' imprisonment with a non-parole period of four and a half years.  O’Bryan AJA, who delivered the leading judgment, applied the passage from R v Sherpa that I have set out above.

O’Bryan AJA also referred to the first two of the three general propositions accepted by Batt JA in R v Mills, where the offender was convicted of recklessly causing serious injury by striking the victim in the face with a beer glass.  As Batt JA observed in R v Giles, those propositions cannot be applied without qualification to cases of a very different nature.  A fortnight later in R v Bell his Honour made the same point at [14]:

[I]t seems necessary to state again that the general propositions accepted in R v Mills...are just that ─ general propositions.  They are, as their terms show, not of universal or automatic application.  True it is that they may apply not infrequently, but each case depends upon its own circumstances, including, it is to be noted, the circumstances of the offence as well as those of the offender.

The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective.  It is not difficult to cite cases where other objectives have had to prevail.  It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicised is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.

1. Numerous appellate decisions have considered sentences imposed on young offenders with a good family background, unblemished work records and no prior convictions, who have been convicted of culpable driving.[46]  Such cases have emphasised that mitigatory factors of this kind do not ordinarily outweigh the important emphasis which must be placed on deterrence and denunciation in sentences for offending of this nature.

   [46]See, eg, DPP v Rongonui (2007) 17 VR 571; R v Cody (1997) 25 MVR 325; R v Williamson (2009) 21 VR 330.

1. As this Court recognised in DPP v Neethling,[47] driving is an ‘adult responsibility’.  That responsibility involves the necessity to make adult decisions and choices, and an awareness that a failure to do so will result in the same consequences that apply to mature adults.  Those who have the privilege of holding a drivers licence must ensure that they make decisions carefully and responsibly, because the failure to do so may have catastrophic consequences, including the death of others.

   [47](2009) 22 VR 466, 475 [43] (Maxwell P, Vincent JA and Hargrave AJA).

1. The sentencing statistics relied upon by the respondent do not persuade us that this appeal should be dismissed.  Such statistics can be a valuable yardstick in indicating whether a sentence is manifestly inadequate or excessive, and in ensuring consistency in sentencing.[48]  However, the fact that some young persons were sentenced to youth justice centre orders over the period 2005‑06 to 2009-10 is of little assistance because the statistics do not indicate the age of these offenders, the circumstances of their offending, whether a guilty plea was entered, and the number of deaths caused by the culpable driving.  Whilst there were six youth justice centre orders made in 2005-06 and three made in 2006-07 and 2007-08, no such orders were made in 2008‑09 or 2009-10, although these figures are not sufficient to determine whether this indicates a trend of imposing increased sentences for this offence. 

   [48]Hili v The Queen (2010) 242 CLR 520.

1. We also note that for those receiving a term of imprisonment for culpable driving causing death, the median length of imprisonment was five years and six months’ imprisonment and the median total effective term of imprisonment was six years’ imprisonment.[49]  These statistics are, of course, subject to the same limitations as those relied upon by the respondent, but provide a broader indication of current sentencing practices for this offence. 

   [49]Sentencing Statistics, Figures 6 and 10.

1. We agree with the learned sentencing judge’s view that the culpable driving offences demonstrated mid to high level objective culpability.  The respondent, who had only held his licence for a very short time, drove at high speeds for some time prior to the collision, and approached an intersection which he was aware was governed by a give way sign, at a speed at which he was unable to stop.  He made a conscious decision to travel through a rural urban area at almost double the speed limit, whilst approaching an intersection controlled by a give way sign.

1. Although strong mitigatory factors were present in this case, we consider that the sentence imposed by his Honour indicates that he must have given insufficient weight to the powerful considerations of general deterrence, specific deterrence and denunciation, which apply to culpable driving.

1. While rehabilitation of a young offender is a very important consideration in sentencing, the authorities discussed above demonstrate that it must sometimes give way to other sentencing considerations, particularly general deterrence and denunciation. In DPP v Lawrence,[50] a sentencing decision relating to recklessly causing serious injury involving ‘glassing’, the approach to sentencing youthful offenders was described by Batt JA (with whom Winneke P and Nettle JA agreed) as follows:

youth and rehabilitation must be subjugated to other considerations.  They must...take a “back seat” to specific and general deterrence... This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation must be emphasised.[51]

[50](2004) 10 VR 125.

[51]Ibid 132 [22], cited with approval in Winch v The Queen (2010) 27 VR 658, 667 [44].

1. Unfortunately, the offence of culpable driving is one which is frequently committed by young drivers.  If general deterrence is to be meaningful, it must be directed towards this class of offenders and cannot be regarded as irrelevant because of their youth.

1. In all the circumstances of this case, the sentences imposed upon the two charges of culpable driving were manifestly inadequate.  The sentence of three years detention in a youth justice centre on each charge of culpable driving, to be served concurrently, could not be reasonably justified in the circumstances of this case, even taking into account the respondent’s good character, youth and remorse. 

1. We also consider that the sentences imposed did not adequately reflect the fact that two persons died as a result of the respondent’s driving.  It would be a rare case in which more than one person is killed as the result of culpable driving which will not require some degree of cumulation.  This is not such a case.  

1. Nor do we consider that the circumstances relied upon by the respondent are sufficient to justify the exercise of the discretion of this Court not to intervene on a Crown appeal, even where manifest inadequacy has been demonstrated.  Although the Crown did not put forward a range of sentences during the plea hearing, the prosecution called for an immediate term of imprisonment and submitted that a youth justice centre order would not be appropriate.  She also submitted that appropriate orders for cumulation in respect of the culpable driving offences could not have been made within the term of a youth justice centre order.  

1. We would accept that submission. In the circumstances, the sentence imposed upon the respondent cannot be allowed to stand.  Given all of the circumstances outlined in this case, there was no reasonable justification for the imposition of a youth justice centre order.  In a case such as this, that sentencing option was simply not available.

1. We would resentence the respondent to four years’ imprisonment on charge 1 and four years’ imprisonment on charge 2.  The sentences imposed below on charges 3, 4 and 5 remain unchanged.  We would order that two years of the sentence imposed on charge 2 be served cumulatively upon charge 1, but otherwise, all sentences should be served concurrently.  This amounts to a total effective sentence of six years’ imprisonment.  In the circumstances of the respondent ― in particular, his youth and prospects of rehabilitation ― we would fix a non‑parole period of three years and six months’ imprisonment.

1. Having regard to the respondent’s youth and vulnerability, we make a recommendation to the Adult Parole Board to make an order, pursuant to s 471 of the Children, Youth and Families Act 2005, directing that the respondent be transferred to serve part or all of his sentence in a youth justice centre.  To that end, relevant materials should be provided to the Adult Parole Board as soon as possible to enable it to consider whether such an order should be made.  We note that a similar recommendation was made by this Court in DPP v Chambers,[52] where Nettle JA noted that, of course, such a recommendation is not binding on the Adult Parole Board.[53]

   [52][2006] VSCA 189.

   [53]Ibid [33].

---