DPP v Huby
[2019] VSCA 106
•17 May 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0237
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| THOMAS CALLUM HUBY | Respondent |
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| JUDGES: | PRIEST, McLEISH and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 May 2019 |
| DATE OF ORDERS: | 13 May 2019 |
| DATE OF REASONS: | 17 May 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 106 |
| JUDGMENT APPEALED FROM: | DPP v Huby [2018] VCC 1621 (Judge Gaynor) |
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CRIMINAL LAW – Director’s appeal against inadequacy of sentence – Culpable driving causing death – Death of respondent’s own child – Plea of guilty – Sentence 5 years’ imprisonment, non-parole period 12 months – Disproportionality between head sentence and non-parole period – Whether non-parole period manifestly inadequate – Whether open to the Court to exercise residual discretion – Construction of ss 289 and 290 Criminal Procedure Act 2009 considered – R v VZ (1998) 7 VR 693; R v Leesley (2001) 33 MVR 495; R v De Montero (2009) 25 VR 694; DPP v Avci (2008) 21 VR 310; R v Tsiaras [1996] 1 VR 398; R v Bullen [2005] VSCA 206; R v Satalich (2004) 41 MVR 435; DPP v Miller (2005) 42 MVR 411; R v Campbell [2005] VSCA 225; DPP v King (2008) 50 MVR 517; Chaplin v The Queen (2010) 55 MVR 591; Leddin v The Queen [2014] VSCA 155 considered – Lower level of culpability of offending – Non-parole period not manifestly inadequate when considered separate from issue of disproportionality – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms F Dalziel QC with Ms J Warren | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr J McLoughlin with Ms A Wong | Victoria Legal Aid |
PRIEST JA
MCLEISH JA
WEINBERG JA:
On 13 May 2019, this Court heard an appeal brought by the Director of Public Prosecutions against a sentence imposed on a charge of culpable driving causing death. At the conclusion of oral argument, the Court ordered that the appeal be dismissed. It indicated that reasons for that decision would be published in due course. These are those reasons.
Introduction
On 26 September 2018 the respondent, now aged 27, pleaded guilty in the County Court, at Ballarat, to a single charge of culpable driving causing death. He was sentenced on 3 October 2018 as follows:
Charges on Indictment Offence Maximum Sentence Cumulation 1 Culpable driving causing death
[contrary to s 318(1) of the Crimes Act 1958]
20 years 5 years Nil Total Effective Sentence: 5 years’ imprisonment Non-Parole Period: 12 months (1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: Nil Other relevant orders:
All Victorian licences and/or permits held by the respondent be cancelled and that he be disqualified from obtaining any such licence or permit for a period of 30 months from 3 October 2018.
S6AAA Statement: 7 year’s imprisonment, with a non-parole period of 5 years. Background facts
On Saturday, 23 April 2016, at about 2.35 pm, the respondent was driving a Nissan Micra in an easterly direction along Remembrance Drive, in a suburb on the fringes of Ballarat. At a point near the intersection with Draffins Road, his vehicle left the road and collided with a tree. Tragically, his daughter, Isabella, then aged four, died as a result of this accident.
Earlier that day the respondent, accompanied by his partner, Kathryn, and their two daughters, Isabella and Monique, had been to Ballarat. The Nissan Micra belonged to his mother. After he dropped his partner and Monique off at their home in Beaufort (which is west of Ballarat) the respondent (together with his other daughter, Isabella) drove back towards Ballarat, in order to return the car.
The travel time between Beaufort, and the actual scene of the collision was said to be about 24 minutes. Remembrance Drive runs generally east-west. There is provision for a single lane of traffic to travel in either direction. The road has a bitumen surface, which on the day in question, was in good repair. The east-west lanes were divided by solid, and broken, white painted lines. These lines allowed vehicles travelling east along Remembrance Drive to overtake when it was safe to do so.
On the north and south sides of Remembrance Drive, the lanes were edged by solid white painted lines. These had raised humps, commonly described as ‘ripple strips’, or ‘rumble strips’. There was a bitumen shoulder that abutted grass verges. On each side of the road, on the grass verges, there was a line of evenly spaced, substantially sized, trees.
The collision between the Nissan Micra and the tree occurred on a flat, straight stretch of road, about 150 metres east of Draffins Road. The speed limit along that section of road was 100 kilometres per hour. At the time of the accident, visibility was excellent. It was broad daylight, the road was dry, and traffic was light.
A witness who was also travelling east along Remembrance Drive, stated that on about three occasions shortly before the crash, he checked his driver’s side rear view mirror. Each time he did this, he saw the Nissan Micra moving marginally to the right, and then returning into its correct lane. On each occasion, the white lines were broken, which meant that overtaking was permitted.
The witness said that shortly before the crash, he saw the Nissan Micra, which was at that stage, immediately behind his vehicle, cross the broken white line, and then move back into the left lane. Soon afterwards, he heard a loud bang. When he checked his rear view mirror, he saw the Nissan Micra stationary, in the centre of the road.
The respondent’s vehicle had collided head-on with a large tree situated on the northern side of the road. The front of the vehicle was extensively damaged. The respondent managed to extricate himself, and removed his daughter from the rear passenger seat. Other drivers stopped and provided assistance. Police and Emergency Workers were called. The respondent was taken to the Ballarat Base Hospital with chest and neck injuries, and back pain.
At about 4.05 pm, a sample of the respondent’s blood was taken. Half an hour or so later, while still at the hospital, he was told by an attending doctor that his daughter had died in the crash. According to that doctor, he became uncontrollably distressed. He said ‘I didn’t mean to fall asleep’. The blood sample was eventually found to have contained small quantities of cannabis and methylamphetamine.
Detectives from the Motor Collision Unit attended the scene of the accident. They gathered evidence, took photographs and made measurements. Inspection of the Nissan Micra revealed no mechanical issues that might have caused or contributed in any way to the collision.
An expert reconstructionist concluded that, when the Nissan Micra left the road, it must have been travelling at about 90 kilometres per hour. That was within the speed limit. Because there was no evidence of any pre-impact braking, or evasive steering, the expert concluded that the driver must have been asleep, unconscious, or distracted when the car left the road. He noted that the vehicle would have travelled for about 2.5 seconds between leaving the road, and colliding with the tree. He said that typically, most drivers have a perception and reaction time of about 1.5 seconds. This meant that upon becoming aware of what was happening, a driver who was merely distracted would most likely have been able to react, and avoid the collision. It was likely, therefore, that the respondent was either asleep, or unconscious when the crash occurred.
On the same day as the blood sample was taken, the respondent took part in a record of interview. He told police that in the days leading up to the crash, he had been fatigued due to lack of sleep, brought about by having to attend to his daughter who had been waking regularly during the night for some weeks.
As far as drugs were concerned, the respondent admitted having used cannabis in the days leading up to the crash. He also denied having used methylamphetamine. He claimed that two days before the accident, he had entered a room where various people were smoking ‘ice’. He said that he had been exposed to that drug for about 10 minutes, and proffered this as a possible explanation for the small quantities of that drug found in his blood.
A prosecution expert, Associate Professor Morris Odell, a senior forensic physician at the Victorian Institute of Forensic Medicine, prepared a report. In that report, he expressed doubts as to the respondent’s claim that the measured blood level of methylamphetamine could have been brought about passively, in the way that he described.
Notwithstanding that expert opinion, the judge ultimately found (and the prosecution ultimately agreed during the course of the plea) that there was nothing to suggest that these small quantities of drugs had aggravated the respondent’s fatigue, or contributed significantly to his having fallen asleep, and therefore, to the crash.[1]
[1]DPP v Huby [2018] VCC 1621 (‘Reasons’) [7].
The judge also found that the respondent’s driving shortly before the crash did not indicate that he was aware of the extent of his fatigue, and the need to pull off the road.[2]
[2]Ibid [16].
Ground of appeal
The Director’s sole ground of appeal is as follows:
The non-parole period is manifestly inadequate
Particulars
a) The non-parole period gives excessive weight to matters in mitigation; and
b) The non-parole period gives insufficient weight to the gravity of the offending and general deterrence.
The Director’s ground of appeal does not allege specific error. Rather, it asserts that the non-parole period, only, is manifestly inadequate.
The length of the non-parole period imposed by the judge certainly invites scrutiny. On a head sentence of 5 years’ imprisonment, a non-parole period of 12 months representing a mere 20% of the imposed maximum, is highly unusual, if not unprecedented in this State. In those circumstances, it is unfortunate that her Honour did not, as will be seen, provide specific reasons for adopting such an unusual course.
Sentencing remarks
The judge noted that the respondent offered to plead guilty to the lesser charge of dangerous driving causing death very soon after he was charged with this offence.[3] The prosecution had rejected that offer.
[3]Ibid [6].
Ultimately, and after a substantial delay (amounting to more than two years from the date of the accident), the respondent elected to plead guilty to the charge of culpable driving. He did so at what was described as a contested plea hearing. At the time, there was a live issue as to whether the drugs that were found in his blood had contributed to any degree to the fatigue from which he was suffering when the accident occurred.
The judge noted that the prosecution had accepted that the offer to plead to the lesser offence of dangerous driving causing death should be regarded as having been made at a very early stage.[4] The prosecution had also accepted that this could therefore properly result in the plea to culpable driving being treated as having been offered as an early plea.
[4]Ibid [7].
Turning to the respondent’s personal circumstances, the judge observed that he was aged only 24 at the time of the accident. He was an only child, and his parents had separated when he was very young. He had had little or no contact with his father. He had been brought up by his mother and grandfather, travelling throughout Australia with them in a mobile home. He had begun to use cannabis at about the age of 13.
The respondent had had difficulty with mainstream schooling, but managed to go as far as Year 11. He had worked as an apprentice for a spray painter for some two and a half years, and thereafter had undertaken various labouring jobs. In particular, he had done casual labouring work for the same employer for about 10 years.
The respondent had been together with his partner for a number of years, and this had been his only significant relationship. She remained fully supportive of him. They had three daughters, Isabella, born in 2012, Monique, in 2014, and a third child, Rebecca, in 2018.
Her Honour said that she had received a number of references describing the respondent’s devotion to his children, and family generally. She said that it was clear that he was a ‘particularly devoted father’ who had a ‘very special relationship’ with both Isabella and Monique.[5]
[5]Ibid [15].
The respondent’s mother had lived with his partner and himself. She had suffered a series of strokes over the previous two years. At the time of the plea, she was in hospital undergoing a life threatening operation to relieve blocked arteries in her neck. By the time the judge came to sentence the respondent, his mother had recovered from the operation, and was able to be in court to support him. So too were his partner and her parents.
The judge stated:
The accident occurred because, as was outlined, you had been to Kmart with the family and you were simply returning the car to your mother. Isabella had been suffering night terrors and you were the only one who could settle her. Catherine [sic] was also dealing with Monique, who was then age two and also a bad sleeper. You had had about two and a half to three hours' sleep per night for the last three nights. So this is not a situation where knowing that you were sleep deprived you were undertaking a massive drive in the country. To all intents and purposes I am satisfied that this was an innocuous car journey by you, that is simply to return the car to your mother.[6]
[6]Ibid [16].
Significantly, her Honour continued:
As I have said, the issue on the plea hearing was whether your sleep deprived condition was aggravated by drug use. All experts called upon agreed that your lack of sleep alone was sufficient to have caused an accident. You have been a chronic, long term marijuana user but no expert could say whether that marijuana and the small amount of methamphetamine in your system aggravated the situation. The prosecution agreed with my finding that the evidence could not prove this aggravating factor beyond reasonable doubt. Ultimately the situation is that the negligence underlying the culpable driving is based on driving whilst sleep deprived.
As a result of my finding, the facts [sic] scenario underlying this offending is one which could have been covered under the lesser charge of dangerous driving causing death. The difference between the two charges is that there is a maximum penalty of 20 years' imprisonment for culpable driving, whilst there is a maximum penalty only of ten years for dangerous driving causing death.
Your counsel, however, told me you simply did not have the heart to pursue the matter to trial. You are distraught at the loss of your daughter and the part that you have played in her death…[7]
[7]Ibid [17]–[19] (emphasis added).
The judge referred to a report prepared by a clinical psychologist, Dr Rory Wyatt, who had seen the respondent on a number of occasions after the accident. He diagnosed him as suffering from post-traumatic stress disorder, a condition that he said was difficult to treat. The respondent was suffering from recurrent nightmares, loss of appetite, extreme sadness, very high anxiety with panic attacks, hyper-arousal, daily suicidal ideation and significant emotional disturbance. Dr Wyatt was of opinion that the respondent required psychiatric intervention. He also proffered the view that the respondent would suffer a significant deterioration of his mental health if he were to be incarcerated.
In relation to remorse, the judge found that the respondent was riddled with self-blame, shame and guilt. Dr Wyatt had concluded that this would ‘plague [the respondent] for the rest of his life’.[8]
[8]Ibid [22].
The judge noted that the respondent’s already difficult situation had been made worse by two factors: first, the grave illness of his mother; and secondly, media reports which had led to intense hostility throughout the small-town community in which the respondent lived. He had been abused personally, and on social media. He had suffered death threats, comments about his children, and had been pointed out even in Ballarat as that ‘expletive’, who ‘killed his kids’. The judge accepted that this was an extraordinarily cruel situation as far as he was concerned, and amounted to extra-curial punishment.
Her Honour went on to say that a number of references had been tendered attesting to the respondent’s devotion to his children. In particular, there was a reference from a Child Protection Services case manager, Toni Davis, who wrote in her report that she had spent a number of sessions with the respondent, his partner, and their daughter, Monique. She noted that Monique constantly sought out the respondent’s attention, and that she found comfort in his presence. She said that, in her opinion, incarceration of the respondent would have a strong adverse effect on Monique. It would heighten both her grief and loss since the respondent was her primary support person.
In addition, a maternal health nurse, Marita Dyer, described the family as exceptionally strong and united in the face of adversity. She noted that the respondent had admitted himself to a residential withdrawal unit, in order to deal with his cannabis problem. By the time of the plea, he had completely ceased cannabis use.
The judge found that the ‘early plea of guilty’, as she described it, was indicative of remorse. She noted that the prosecution had conceded that the respondent had ‘very good prospects of rehabilitation’.[9] She regarded that concession as appropriate.
[9]Ibid [28].
The judge also accepted that by reason of his mental condition, and concerns about his family, the respondent would find prison more burdensome than would an ordinary prisoner.
Despite all these mitigating factors, which she recognised as powerful, the judge said that she felt constrained to give effect to the principle of general deterrence by imposing a term of immediate imprisonment.
Nonetheless, her Honour went on to explain that she proposed to deal with the respondent in an unusual manner. She said:
However, I am going to impose a sentence I would not ordinarily impose in cases of this kind. This is an unusual case. Although you pleaded guilty to culpable driving, the circumstances of your offending, as I ultimately found them to be with the concurrence of the prosecution as to the state of the evidence led as to the inconclusive role drugs played in this tragedy, means this is a case which could comfortably have been dealt with [by] the lesser charge, as I have said, of dangerous driving causing death, which has half the maximum penalty applicable to culpable driving causing death.
In the circumstances it is my view that yours is a case which falls at the very lowest end of the scale of seriousness applicable to the charge of culpable driving causing death. In sentencing you I take into account: first your early plea of guilty; second, your abiding and deep remorse for your offending; third, your very good prospects of rehabilitation. You have only one minor prior conviction and that is for a driving offence in 2011 for which you were dealt with in the Magistrates' Court by way of a very minor penalty. I do not regard it as relevant to the sentencing exercise before me.
You have taken appropriate and successful steps to attend to your cannabis addiction and in the more than two and a half years since this accident you have lived a completely law abiding life with your partner under the most difficult of circumstances. She continues to support you, as does her family.
Four, your mental health difficulties, which include a post-traumatic stress disorder arising directly from the accident means that I am satisfied you will find a prison sentence considerably more difficult than the ordinary prisoner and that there is a significant chance the symptoms of your post-traumatic disorder will return and worsen in the prison environment. Five, I also find, as I have said, that you are a devoted father who is important to your children and that you will suffer greater difficulties in gaol than would the ordinary prisoner by being unable to support, in particular, your daughter, Monique, who, according to expert opinion, is particularly reliant upon you.
Six, I find there has been particular extra curial punishment in this case. By extra curial I mean punishment which you have endured additional to any this court might impose. The loss of a loved relative is not necessarily unusual in cases of this kind, but added to this has been the trauma that you have experienced as a result of personal and social media abuse and threats that you and your family have had to endure over the last two and a half years, and which appears to have been, as I have said, of the cruellest kind. I am satisfied that the tragic events including the accident itself and subsequent events have left you a shattered man.
I have also had recourse to a number of similar cases decided by these courts. Overall this is a most tragic case where I am satisfied a loving and devoted family man has done what he would have considered to be the unthinkable, been a cause of his daughter’s death…[10]
[10]Ibid [30]–[35] (emphasis added).
Her Honour then sentenced the respondent to 5 years’ imprisonment with a non-parole period of 12 months.
Director’s submissions
In the written case filed on behalf of the Director, it was submitted that the fact that the non-parole period was only 20 per cent of the length of the head sentence itself demonstrated that the judge’s sentencing discretion had miscarried. It was submitted that her Honour must have given excessive weight to matters in mitigation, and insufficient weight to the gravity of the offending. She must have undervalued the importance of general deterrence.
It was submitted that the non-parole period is the minimum period that justice required to be imposed.[11] Although an offender’s prospects for rehabilitation were an important factor in fixing an appropriate non-parole period, the minimum term must have a penal element. A non-parole period that is unduly short may undermine the objective of, in this case, general deterrence.
[11]Power v The Queen (1974) 131 CLR 623, 627-9 (per Barwick CJ, Menzies, Stephen and Mason JJ); Bugmy v The Queen (1990) 169 CLR 525, 536, 538 (per Dawson, Toohey and Gaudron JJ).
It was submitted that the mitigating factors, though weighty, did not (even in combination) justify the fixing of such an unusually low non-parole period. In other words, although there were powerful factors in mitigation which warranted considerable leniency, these factors did not justify a non-parole period of only 12 months.
The Director submitted that although this particular offence was certainly at the lower end of seriousness for the offence of culpable driving, there had been justification for persisting with that charge, rather than accepting the respondent’s offer to plead guilty to the lesser offence of dangerous driving causing death. Prior to the plea, the prosecution sought to rely upon evidence that the respondent had had very little sleep in the three days leading up to the accident.
It was submitted that, based upon the evidence of Professor Matthew Naughton, an expert in sleep deprivation, the judge could have found that the respondent had disregarded warnings of fatigue. That would be a conclusion supported by and drawn from the description of the Nissan Micra’s movements shortly before the accident. That was so, based upon the respondent’s having sought, on several occasions, to overtake the vehicle immediately in front of him, although it was acknowledged that he had only veered out of his correct lane by about a foot or so, and had only done so at parts of the road where overtaking was permitted.
Finally, it was submitted that the judge’s comments regarding how, in her view, the respondent’s conduct could properly have been assessed as amounting to the lesser offence of dangerous driving causing death, rather than culpable driving, were both a distraction, and involved taking into account an irrelevant consideration. The judge’s approach stood in sharp contrast to s 318(2A) of the Crimes Act 1958, which made it clear that negligence, in the sense required for culpable driving, would be established if a person drove a motor vehicle when fatigued to such an extent that he knew, or ought to have known, that there was an appreciable risk of falling asleep.
The Director acknowledged that there was nothing wrong with the head sentence of 5 years’ imprisonment imposed in this case. Neither the Director nor the respondent challenged that sentence.
In oral argument, it was submitted that the extraordinarily short non-parole period fixed in this case, when compared with the head sentence of 5 years’ imprisonment, meant that the judge must have given insufficient weight to the penal aspect of the non-parole period, or to the need to not undermine the sentencing objectives sought to be achieved by the head sentence itself.
Having submitted that the non-parole period was manifestly inadequate, it was said in oral argument that a finding to that effect by this Court would not have the effect of reopening the entire sentencing discretion. That was because, despite the language of s 290 of the Criminal Procedure Act 2009, the challenge to the sentence imposed below was specifically confined to the non-parole period. It was submitted that this Court would not have power, under the provisions of that Act, to overcome the difficulties associated with the ratio between the head sentence and the non-parole period by, for example, reducing the head sentence, rather than increasing the non-parole period.
Respondent’s submissions
It was submitted on behalf of the respondent that the ground of manifest inadequacy is, of course, a stringent one, difficult to make good. It was not contended by the Director that there was any such inadequacy in relation to the head sentence. Rather, the complaint was confined to the 12 month non-parole period.
It was said that one problem for the appellant was the lack of comparable cases involving only fatigue as the basis for culpability. It was noted that there were even fewer such cases where an offender had caused the death of his or her own child. The respondent submitted that the cases relied upon by the Director had involved far more serious offending.
It was submitted that the non-parole period, whilst perhaps lenient, was not plainly unreasonable or unjust.
Insofar as the appellant referred to a normal ratio between the head sentence and the non-parole period, it was said that this figure was simply a consideration, and not a determinative or controlling factor in sentencing. In this case, the 20 per cent ratio, though highly unusual, did not itself bespeak error.
The respondent referred to R v VZ[12] where Callaway JA (with whom Phillips CJ and Batt JA relevantly agreed) had this to say, about a total effective sentence of 8 years with a non-parole period of 6 years and 6 months:
[12]R v VZ (1998) 7 VR 693, 697 [13].
… That does not inevitably betoken error … but a failure to give reasons invites scrutiny if the non-parole period is unusual either by comparison with other cases or having regard to the facts of the instant case or the course of the plea …
In looking at the facts for itself the court is to be guided by principle. In particular, the High Court has repeatedly affirmed that the purpose of fixing a non-parole period is:
... to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.
…
I put to one side cases where a non-parole period is inappropriate. In other cases, it is apparent from the authorities to which I have just referred that a non-parole period cannot be fixed unthinkingly by some such method as taking two years, or one-third or one-quarter, off the head sentence. All the relevant factors have to be taken into account. They are many and varied. I mention only three of them, because they bear on this case. The first is that a non-parole period has a penal element. The second is that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period. The third, which requires no citation of authority, is that a prisoner’s prospects of rehabilitation are almost always a significant consideration …[13]
[13]Ibid 697–698 [13]–[15] (citations omitted). See also, Callaway JA’s observations regarding non-parole periods in DPP v Josefski (2005) 13 VR 85, 94–95.
Drawing upon Callaway JA’s statement of principle, the respondent submitted that even if this Court were to conclude that there was an error in the unusual nature of the ratio between the non-parole period and head sentence in the present case, the Court’s powers would not be limited simply to increasing the non-parole period. It would be open, pursuant to s 290 of the Criminal Procedure Act 2009, to correct the error by decreasing the head sentence so that a more usual, and appropriate ratio between them was achieved.
The respondent also pointed out that should manifest inadequacy be established, the Court still had a residual discretion not to interfere. Although the written case did not spell out any particular reasons for adopting that course, the respondent filed a lengthy supplementary submission seeking to invoke the discretion, if necessary to avoid an increase in the non-parole period.
The balance of the respondent’s written case, in its original form, simply emphasised the mitigating factors that were present, balanced against the gravity of the offending which, it was submitted, was at the absolute lowest level of cases involving momentary inattention while driving. It was noted that the prosecution had essentially conceded the appropriateness of that characterisation on the plea.
The respondent also submitted that the Director’s reliance, in the written case filed on her behalf, upon Professor Naughton’s report regarding the respondent’s having ostensibly disregarded warnings as to his fatigue, shortly before the collision, flew in the face of the judge’s express rejection of that report. Instead, her Honour preferred the view that a driver who is fatigued has diminished capacity to judge whether he or she should be driving, and sentenced the respondent on that basis. The prosecutor on the plea had not raised any objection to her Honour proceeding in that way.
Analysis
In oral submissions before this Court, senior counsel for the Director made it clear that it was not her position that this was a case involving specific error which thereby vitiated the exercise of the sentencing discretion. Rather, the Director’s submission was that the non-parole period of 12 months, viewed alone, was manifestly inadequate, and should therefore be increased.
Nonetheless, senior counsel argued that the gap between a head sentence of 5 years’ imprisonment (which was acknowledged to be unimpeachable) and a non-parole period of 12 months, strongly suggested that the minimum term was far too light. It also had the effect of undermining the objective of general deterrence associated with the head sentence.
The Court drew counsel’s attention to the relevant provisions of the Criminal Procedure Act 2009 which govern appeals against inadequacy of sentence. In particular, it referred to the following provisions of that Act:
289 — Determination of Crown appeal
(1) On an appeal under section 287, the Court of Appeal must allow the appeal if the DPP satisfies the court that—
(a) there is an error in the sentence first imposed; and
(b) a different sentence should be imposed.
…
(3) In any other case, the Court of Appeal must dismiss an appeal under section 287.
290 — Orders etc. on successful appeal
(1) If the Court of Appeal allows an appeal under section 287, it must set aside the sentence imposed by the originating court and impose the sentence, whether more or less severe, that it considers appropriate.
…
The question posed by the Court was whether, assuming the Director was correct in arguing that there was an error in the sentence first imposed in this case, and that a different sentence should be imposed, it would be open to impose a sentence ‘less severe’, within the meaning of s 290(1) than the 5 year head sentence that the judge below had fixed. In other words, any problem associated with undue disparity between the head sentence and the non-parole period could be cured by reducing the head sentence, assuming that were thought appropriate in all the circumstances of this case.
Senior counsel for the Director at once rejected the proposition that this section could be used in that way. She submitted that because the Crown’s appeal had been brought against the non-parole period only, which of course fell within the definition of ‘sentence’ contained within s 3 of the Act, there was no power in this Court to reduce the head sentence, that not being the sentence under challenge pursuant to ss 287 and 289(1). In essence, she submitted that the word ‘sentence’ should bear the same meaning in s 287, s 289(1), and s 290(1).
It is unnecessary for this Court now to determine that construction issue. For one thing, we did not hear full argument on the point. For another, there were ample reasons why the Director’s appeal should, in any event, fail.
The starting point must be whether the non-parole period of 12 months’ imprisonment, viewed in isolation, was manifestly inadequate. In our opinion, the Director has failed to make good that contention.
It would be hard to imagine an offence of culpable driving which could be viewed as being very much lower on the scale of objective gravity than this case. On the findings made by the sentencing judge, the respondent dozed off while driving within the speed limit, unaffected by alcohol or drugs, and with no prior warnings of his excessive fatigue alerting him to the need to pull over to the side of the road. In truth, this was a case of little more than ‘momentary inattention’ brought about by sleep deprivation.
The mitigating factors that were present made this a wholly extraordinary case. It called for a significant measure of leniency, even putting to one side the relevance of mercy in the exercise of this sentencing discretion. It would be hard to imagine a more powerful case for mercy than presented itself here.
When senior counsel was asked directly whether the Director’s position was that anyone being sentenced for culpable driving, no matter what the objective gravity of the offence, and no matter how powerful the mitigating factors present, would have to receive a non-parole period significantly exceeding the 12 months fixed in this case, she very properly disavowed any such proposition. At the same time, she could point to no aggravating features in the present case, and did not seek to challenge the mitigating factors identified by the sentencing judge as warranting an unusually lenient disposition.
The problem with this case lies in the fact that the head sentence of 5 years does not sit well with the non-parole period of 12 months. The discrepancy between the two aspects of the sentence imposed calls out for some explanation, and in reality, no proper explanation was afforded by the judge in her sentencing remarks.
If it be the case that this Court cannot invoke s 290(1) because the Director confined her attack upon the sentence to the non-parole period, that should not result in the need to overcome an error in the sentencing discretion which results in an unjust outcome for this respondent. To make the point abundantly plain, we do not condone the structure of the sentence imposed below. It is hard to conceive of any circumstances in which a disparity of the kind that her Honour produced between the head sentence and the non-parole period can be justified. We are persuaded that there was, for that reason, a structural error in the way in which the respondent was sentenced. It does not follow that there was, relevantly, an error in the non-parole period, if that component of the sentence is considered separately from the head sentence.
When pressed with the proposition that the head sentence in this case was, at the very least, severe, senior counsel for the Director disagreed. She submitted that 5 years was entirely appropriate, and that a longer non-parole period should have been fixed in conformity with the need to avoid undermining that aspect of the sentence.
It may be accepted that a very short non-parole period relative to the head sentence will invite scrutiny. Such a non-parole period may be justified by special factors.
For example, in R v Tsiaras[14] this Court held that a sentence of 3 years’ imprisonment with a non-parole period of only 12 months was manifestly excessive, and should be replaced by a sentence of 18 months with a non-parole period of 6 months. Of course, Tsiaras was a special case, involving psychiatric illness, short of mental impairment. Nonetheless, the Court saw no difficulty in having the non-parole period fixed as only one third of the head sentence.
[14][1996] 1 VR 398.
Similarly, in R v Bullen,[15] a case involving a juvenile offender, this Court allowed an appeal against sentence, resentencing the offender to a term of 2 years’ imprisonment with a non-parole period of only 8 months. Once again, the Court saw no difficulty in a 1 to 3 ratio between the non-parole period and the head sentence.
[15][2005] VSCA 206.
The Director submitted that error in the sentence first imposed having been established (meaning error in the non-parole period), a different ‘sentence’ should now be imposed. Further, the head sentence would be quarantined from any downward adjustment, even if this Court were of the view that a lesser head sentence would be appropriate.
That submission finds support in the fact that the respondent did not seek leave to challenge his head sentence, though he did allude to the possibility that this Court might cure the defect associated with the ratio between the two aspects of the sentence by reducing the 5 year term rather than increasing the 12 month non-parole period.
Nonetheless, there is some support in the authorities for the proposition that there can be an adjustment to the head sentence, even where the appeal is brought solely against the non-parole period.
In DPP v Avci,[16] the respondent had been sentenced to a total effective sentence of 16 years’ imprisonment for seven counts of rape, two counts of indecent assault, three counts of robbery and one count of aggravated burglary. The sentencing judge fixed a non-parole period of 9 years’ imprisonment. The Director appealed against the non-parole period only, claiming that it was manifestly inadequate. No complaint was made about any of the individual sentences, or about the total effective sentence.
[16](2008) 21 VR 310.
Ultimately, the Court concluded that the non-parole period was inadequate, and substituted a non-parole period of 11 years. Maxwell P, with whom Buchanan and Redlich JJA agreed, observed:
… Although the factors that weigh heavily in fixing a head sentence will generally be weighted differently in the context of a non-parole period, the latter has an important punitive aspect.
The quashing of the non-parole period means that the sentencing discretion is re-opened. There having been no challenge to the head sentences or the total effective sentence, they should be reimposed. …[17]
[17]Ibid, 324 [53]–[54] (citations omitted; emphasis added).
President Maxwell plainly considered that the quashing of the non-parole period meant that the whole of the sentencing discretion was re-opened. Given that the individual sentences and total effective sentence had not been challenged, however, it was proper, in the particular circumstances of that case, to re-impose them.
However, his Honour does not seem to have foreclosed the possibility (in appropriate circumstances) of the Court’s intervention with respect to individual sentences or the non-parole period once the sentencing discretion has been re-opened because of an error relating solely to the non-parole period.
The Director’s submission that the term of 5 year’s imprisonment imposed upon the respondent by way of head sentence was in no way a severe disposition cannot be accepted.
In R v Leesley,[18] the 29 year old applicant drove at more than 100 kilometres per hour in a 60 kilometre per hour zone, mounted the kerb and struck a pole, killing the mother of his premature, new-born baby daughter. He had used cannabis before the accident, but had subsequently desisted from using drugs. At first instance, he was sentenced to 5 years’ imprisonment for culpable driving causing death, with a non-parole period of 2 years and 6 months. On appeal, the Court reduced the sentence to one of 4 years’ imprisonment, with a non-parole period of 18 months.
[18](2001) 33 MVR 495 (‘Leesley’).
Acting Chief Justice Winneke made it clear in a number of cases decided at about the same time as Leesley that culpable driving causing death is a species of involuntary manslaughter. But his Honour also made it clear that there will be exceptional cases where the principle of general deterrence will be moderated by factors personal to an offender. He observed:
There can be no doubt that principles of general deterrence must always play a significant role in the imposition of punishment for the offence of culpable driving. That has been stated so often by this Court that it cannot be gainsaid. It is reflected in the incremental increases which parliament has made to the maximum penalty for the offence over recent years, themselves reflecting the community view that those who drive motor vehicles on our roads must, by appropriate punishment, be deterred from doing so irresponsibly and without regard for the lives and safety of others. But, as is the case of other crimes of involuntary manslaughter, there will be exceptional cases where the impact of principles of general deterrence in the sentencing process can and will be moderated by other purposes governing the sentencing process such as demonstrated remorse, rehabilitation, and other factors, personal to the offender established by the evidence. It is, of course, a truism to say that the criminal law exists for the protection of the community and that courts must be sensitive to contemporary attitudes of the community in which they are administering criminal justice. But, in exceptional cases, the protection of the community may be better served by extending leniency where such leniency is warranted …[19]
[19]Ibid, 499 [13] (Ormiston and Buchanan JJA concurring).
His Honour went on to observe:
However and notwithstanding what I have said, in cases of culpable driving due to speed and inadvertence, the courts in this state have not infrequently punished those crimes by sentences of 5 years or less. It is true that, with the gradual increase in the maximum penalty, the sentences imposed for culpable driving have themselves been increasing — and rightly so. Indeed, depending upon the circumstances, sentences of 6 years imprisonment and more have been not infrequently imposed. Statistics are, as we have frequently said, of limited use because each case must ultimately depend upon its own facts. But I do not think it can be said that, in imposing a head sentence of 5 years in this case, his Honour was imposing a sentence less than that which would ordinarily be imposed for an offence of the nature of the one with which his Honour was dealing.[20]
[20]Ibid, 499–500 [14] (Ormiston and Buchanan JJA concurring).
Of course, Leesley was decided in a time when sentences for culpable driving causing death were, on the whole, somewhat lower than those that are commonly imposed today. Nonetheless, it is obvious that the offending in that case was, objectively speaking, far more grave than that in the present case.
In addition, the offender in Leesley had a number of prior convictions for, inter alia, speeding and careless driving. Indeed, two of the former were convictions for exceeding the speed limit by 50 kilometres per hour or more. In addition, the Court observed that, for reasons that were not specifically articulated, the appellant was ‘not fit to drive’.[21]
[21]Ibid 496 [5].
The decision of this Court in R v Satalich,[22] a case involving driver fatigue, was to much the same effect. On a Sunday morning, the applicant, aged in her late thirties, fell asleep at the wheel of her car. She lost control of the vehicle, which veered across the road and struck three cyclists riding in the opposite direction. She was sentenced to a term of 4 years and 3 months’ imprisonment on the charge of culpable driving, and a further 6 months on other charges. A non-parole period of 2 years and 3 months was fixed. On appeal, this Court did not disturb the sentence on the charge of culpable driving, or the total effective sentence of 4 years and 9 months’ imprisonment, but reduced the non-parole period to 1 year and 10 months. In the circumstances of that case, Batt JA (with whom Warren CJ and Eames JA agreed) said:
Since the offence of culpable driving is a species of involuntary manslaughter, it can be constituted by conduct of widely varying culpability. The appellant’s conduct, as I have been at pains to identify it, is, to my mind, relatively low on the scale of culpability.[23]
[22](2004) 41 MVR 435.
[23]Ibid, 442 [20].
Once again, it can fairly be said that the moral culpability of the offender in Satalich was significantly greater than that of the respondent in the present case. She was dealt with not just for culpable driving, but also negligently causing serious injury. She had been up all night at an all-night dance party, and had used MDMA earlier that morning.
There are other examples of offenders convicted of culpable driving having received more lenient sentences than that imposed upon this respondent. In DPP v Miller,[24] a 41 year old American tourist who was fatigued and in excess of the regulated blood alcohol concentration, drove onto the wrong side of the road. The vehicle collided with a cyclist, who was killed. He was sentenced to 3 years’ imprisonment with a non-parole period of 1 year and 7 months. On an appeal by the Director, this Court did not disturb the respondent’s sentence.
[24](2005) 42 MVR 411.
In R v Campbell,[25] the 22 year old applicant had consumed drugs and alcohol, and drove too fast around a bend, dislodging a passenger riding in the boot of the applicant’s car, causing fatal injuries. The applicant was sentenced to 4 years and 6 months’ imprisonment on the count of culpable driving, with 3 months cumulative on a charge of reckless conduct endangering serious injury. A non-parole period of 2 years and 3 months was fixed. On appeal, this Court substituted a total effective sentence of 4 years and 6 months’ imprisonment, with a non-parole period of 2 years.
[25][2005] VSCA 225.
In DPP v King,[26] the 21 year old applicant drove recklessly, at high speed, with a high blood alcohol reading. His vehicle collided head-on with another car, killing his passenger who was his friend. He himself was badly injured. On charges of culpable driving causing death and reckless conduct placing others in danger of serious injury, he was sentenced to a total of 3 years and 10 months’ imprisonment with a non-parole period of 1 year and 9 months. An appeal by the Director was dismissed.
[26](2008) 50 MVR 517.
In R v De Montero,[27] a young respondent rode his motor cycle at very high speed and collided with a car at an intersection, killing an occupant of that vehicle. The respondent also suffered very severe injuries. He was convicted of culpable driving. An appeal by the Director against a wholly suspended sentence of 3 years’ imprisonment was dismissed. The Court observed:
… This was not in our view an appeal which had any prospect of success. The sentencing judge did not make any finding as to the speed at which the applicant was travelling immediately prior to the collision. But even if the speed of the motorcycle had been as great as that contended for by the prosecution, the driving did not fall within the range of the more serious examples of culpable driving which come before the court. The sentencing judge in a careful examination of all of the factors relevant to sentence considered that there were compelling mitigatory circumstances which warranted the compassionate course he followed. We agree.[28]
[27](2009) 25 VR 694 (‘De Montero’).
[28]Ibid 721–722 [104].
Putting to one side the serious injuries sustained by the respondent in De Montero, the objective gravity of the offending in that case was significantly greater than that established in the present case. Yet a wholly suspended term of imprisonment was held to be within range.
In Chaplin v The Queen,[29] the applicant drove at high speed, and under the influence of alcohol. His car hit a pole, killing his best friend who was a passenger. In a revenge attack, the deceased’s father murdered the applicant’s mother, and injured his father and brother. An application for leave to appeal against sentence was dismissed. A sentence of 4 years’ imprisonment, with a non-parole period of 18 months, was held to be within range.
[29](2010) 55 MVR 591.
In Leddinv The Queen,[30] a 19 year old driver who was suffering from fatigue struck a cyclist. As in the present case, there were no aggravating features of speed, alcohol or drugs. He was sentenced to 4 years and 3 months’ imprisonment on the count of culpable driving. A non-parole period of 2 years and 3 months was fixed. The sentence was held to be within range.
[30][2014] VSCA 155.
Even a brief perusal of the cases set out above indicates that the head sentence of 5 years imposed in this case was severe. As was suggested during the course of oral submissions, that sentence might even be regarded as excessive, in the unusual circumstances of this case.
If one ignores the disproportionality between the head sentence and the non-parole period, the minimum term does not seem to us to be manifestly inadequate. If the non-parole period is in error, it is essentially because its disproportionality to the head sentence could have the effect of undermining the general deterrence objective of the head sentence. To succeed in establishing manifest inadequacy, it must first be accepted that the head sentence itself was correct. If so, and if the comparison between the head sentence and the non-parole period reveals unacceptable disproportionality, the Court cannot avoid forming a view as to whether it is the head sentence or the non-parole period that is in error.
Yet there is no challenge to the head sentence, so the Court is in a difficult position. Certainly, to increase the minimum term to avoid a structural error would be akin to permitting the ‘tail to wag the dog’.
In the end, we are not persuaded that the non-parole period of 12 months’ imprisonment was wholly outside the range reasonably available to the sentencing judge. Even if we were so satisfied, we would have to consider whether the residual discretion, to dismiss this appeal, should be exercised.
In that regard, the lengthy delay that occurred between the commission of the offence and sentencing the respondent was, in part at least, the product of the Crown’s position regarding drug use as being a contributing factor to the accident. It was not until the plea itself, which was of course, a contested plea, that the prosecution resiled from its position that drugs had played a role in the respondent’s having fallen asleep moments before the crash. Ultimately, the prosecutor recognised that the Crown could not make good that proposition, and specifically desisted from pressing it.
Contrary to the Director’s position before this Court, the delay that resulted from that persistence was not confined to the final five months after the plea was entered. The drug question was clearly the chief sticking point in the negotiations for far longer than that. Indeed, it can fairly be said that had the prosecution desisted from reliance upon the evidence of Associate Professor Odell at an earlier stage, and not pressed the theory, ultimately rejected, that the respondent had received warning signs of his impending falling asleep, it is highly unlikely that this matter would have ever proceeded as a case of culpable driving. The very experienced sentencing judge fully recognised that fact, though she did not fall into the error, as asserted by the Director, of sentencing the respondent for an offence other than culpable driving. The sentence of 5 years’ imprisonment makes that abundantly clear.
Once there is a proper basis for the exercise of the residual discretion, the onus shifts to the Crown to demonstrate why that discretion should not be exercised.[31] In support of the respondent’s case that the residual discretion should, if necessary, be exercised, a body of evidence was submitted to this Court.[32] That evidence, together with the delay referred to above, demonstrated clearly why, in the present case, the onus has not been discharged.
[31]CMB v Attorney-General (NSW) (2015) 256 CLR 346; DPP v Zhuang (2015) 250 A Crim R 282 [47]–[50].
[32]This Court was referred to reports and letters provided by the maternal health nurse, Marita Dyer; the respondent’s general practitioner, Dr Phyo Kyaw; and the respondent’s partner; Kathryn Brown.
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