DPP v Janson
[2011] VSCA 19
•4 February 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2010 0231
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT ANTHONY JANSON |
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| JUDGES | NETTLE and NEAVE JJA and KYROU AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 3 February 2011 |
| DATE OF JUDGMENT | 4 February 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 19 |
| JUDGMENT APPEALED FROM | DPP v Janson, (Unreported, County Court of Victoria, Judge Hampel, 23 June 2010) |
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CRIMINAL LAW – Sentencing – Director’s appeal – Dangerous driving causing death (2 counts) and dangerous driving causing serious injury (3 counts) – Respondent in control of large prime mover and trailer – Entered intersection against traffic lights at 70 kph – Failing to keep proper lookout ahead for between 10 and 11 seconds – Whether sentence of three years wholly suspended for three years and a Community Based order of 250 hours over a two year period manifestly inadequate – Whether appropriate case for exercise of discretion not to re-sentence – Whether recent Parliamentary increase in maximum sentencing penalty taken wholly into account – Sentence manifestly inadequate – Resentenced to a total effective sentence of four years’ imprisonment with a non-parole period of two years.
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| Appearances: | Counsel | Solicitors |
| For the Crown | Mr J W Rapke QC, DPP with Mrs C M Quin | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr O P Holdenson QC with Mr E J Delany | Tony Hargreaves & Partners |
NETTLE JA:
On 23 June 2010, the respondent, Brett Anthony Janson, was sentenced by a judge of the County Court on two counts of dangerous driving causing death, to which he pleaded guilty, to a total sentence of three years’ imprisonment, wholly suspended for three years, and on three counts of dangerous driving causing serious injury, to which he also pleaded guilty, to a community based order with a condition of 250 hours unpaid community work over two years. The judge further ordered that the respondent’s driving licence be cancelled and that he be disqualified from obtaining a licence for two years.
The Crown now appeals against the sentence on grounds that the judge erred in failing to give full effect to the increase in maximum penalty for dangerous driving causing death (from five to ten years’ imprisonment) which was effected by s 5 of the Crimes Amendment (Child Homicide) Act 2008; erred in characterising the respondent’s offences of dangerous driving causing death as being at the low end of the dangerous driving scale, and his offences of dangerous driving causing serious injury as being at the low level of the culpability hierarchy; erred in approaching the matter on the basis that general deterrence carried less weight in sentencing in this case than it does generally in sentencing for offences of culpable driving causing death or negligently causing serious injury; erred in her perception of current sentencing practices; and imposed a sentence which was in all the circumstances manifestly inadequate.
Circumstances of the offending
The facts appear from the judge’s sentencing remarks. On 26 March 2008, Nejmie Mustafovski was driving south west along Lynbrook Boulevard in Lynbrook in a Ford Festiva saloon. In the car with her were her daughter, Lerita, her son, Lyton and her nephews, Liron and Jeton Kulafovski. The children were aged, eleven, ten, nine and six years, respectively.
Nejmie Mustafovski stopped the car in accordance with a red traffic light facing in her direction at the intersection of Lynbrook Boulevard and South Gippsland Highway and, when the lights turned to green, she started to drive through the intersection.
The respondent was driving a Kenworth prime mover and attached refrigerated van trailer north west along the South Gippsland Highway perpendicular to the direction of travel of Nejmie Mustafovksi’s car. As Nejmie Mustafovksi’s car entered the intersection, the respondent drove his Kenworth prime mover and trailer, against the red light showing in his direction, into the intersection. He was travelling at a speed of approximately 70 kph.
The Kenworth prime mover hit the Ford Festiva side on, subjecting the two children seated on the near side of the car to the full force of the collision. One of them, Jeton Kulafovski was killed instantly and the other, Lyton Mustafovski, died in hospital a short time later. Nejmie Mustafovski suffered a fractured right wrist, which required the insertion of pins, and internal bruising and scratching to both legs. Lerita Mustafovski and Liron Kulafovski both suffered torn spleens and fractures. Lerita suffered a pubic fracture and Liron suffered cervical, pelvic and leg fractures. Liron also sustained facial lacerations.
Earlier that day, the respondent had driven the prime mover and a load of goods from Bairnsdale to Melbourne, in accordance with his usual practice. After delivering the goods, he set out for home in the prime mover with the trailer still attached. On this occasion, however, he deviated from his ordinary route to pick up his wife from a plant nursery on the South Gippsland Highway at Lynbrook. As events transpired, the respondent missed the nursery and drove past it. He then made a u-turn, pulled up and telephoned his wife for directions. Then, in accordance with her directions, he drove back to find the nursery. He was travelling in the left lane of the highway at approximately 70 kph in an 80 kph zone.
Evidently, he was so concentrating on finding the nursery that he failed to see that the traffic lights ahead of him had changed. Expert evidence established, however, that the lights facing in his direction changed from green to amber between 9.8 and 10.8 seconds, and from amber to red, more than 6.3 seconds, before he reacted. The skid marks made by his vehicle, when ultimately he applied the brakes, did not begin until the start of the intersection, by which time Nejme Mustafovski’s car had proceeded approximately 30 metres into the intersection. The respondent admitted to police that he did not see the lights or react and brake until he saw the car.
In his record of interview, the respondent stated that he was not familiar with the area; it was three to four months since he had last been to the nursery; he was looking for a fence or sign marks for the nursery; he thought he was travelling at about 50 kph because he was looking for something; he had noticed the intersection and was aware that most intersections in that area were controlled by traffic lights, but he was not paying attention to the lights in front of him and did not see them; it was not until he was five metres from Nejme Mustafovski’s car that he realised there was going to be an impact; and, when he did see Nejme Mustafovski’s car, he saw that the lights he had passed through had changed to red.
There was no evidence to suggest that the respondent was affected by alcohol or other drugs or fatigue.
The basis on which the respondent was sentenced
The judge found, and sentenced the respondent on the basis, that his driving was ‘at the low end of the dangerous driving scale’. Her Honour stated that she took that view of the matter because the respondent was travelling under the speed limit in the left lane; fatigue was not a factor, and nor was alcohol or drugs; the respondent did not consciously choose to run the red light, the fact was that he simply did not see it; and thus the accident came about, the judge said, as the result of what her Honour called a ‘very short period of inattention’ when the respondent was ‘distracted by looking for a turnoff on a relatively unfamiliar stretch of highway’.
The judge also took into account that the accident had a profound effect on the respondent leaving him consumed with guilt and remorse and suffering severe depression which had continued over two years after the accident up to the time of sentencing, despite counselling and medication.
In that connection, the judge accepted uncontested psychological and psychiatric evidence that the respondent was suffering from a major depressive disorder, moderate in severity, was in need of long term psychological support to address his guilt and assist in rebuilding his life, and that his symptoms were likely to increase if he were incarcerated. On that basis, the judge found, and the Crown accepted, that the sixth principle in Verdins[1] applied. The judge further noted that the severity of the respondent’s depression was such that he had given up his work as a truck driver and attempted to go back to work as a carpenter, at which he had worked in the past, but found it difficult to concentrate or work at the previous level. Her Honour accepted that the respondent was filled with deep-seated, genuine remorse.
[1]R v Verdins (2007) 16 VR 269, 276 [32].
Finally, the judge observed that the Sentencing Act1991 had been amended only days before the accident so as to increase the maximum penalty for dangerous driving causing death, from five years’ imprisonment to 10 years’ imprisonment, and her Honour stated that she regarded that as being a factor which should be taken into account in determining the sentence to be imposed.
The grounds of appeal
It is convenient to deal with the grounds of appeal in the order in which they were argued.
Ground 2 – Characterisation of the offending
Under Ground 2 it was contended that the judge erred in characterising the offending as being at the ‘low end of the dangerous driving scale’.[2] The Director submitted that, having regard to the respondent’s considerable experience as a professional truck driver (the evidence was that he had been a professional driver for about 20 years), the period of approximately 10 to 11 seconds during which the respondent did not pay attention to the road, the inherent danger to others of so driving a prime mover and trailer of the kind in question, and the nature and extent of injuries thereby inflicted, it was not open to the judge to conclude that the offending was at the ‘low end’ of the scale.
[2]Sentencing remarks, [40].
I accept that contention. The judge found that the period of between 9.8 and 10.8 seconds for which the respondent did not pay attention to the road was ‘a very short period of inattention’. With respect, it cannot rationally be so described in relation to the control of a vehicle of the weight and size of a Kenworth prime mover and trailer travelling on a major road in a built-up area in the known vicinity of controlled intersections at a speed of approximately 70 kph. At that speed, the vehicle would have covered approximately 195 metres without the respondent paying any attention to the traffic or conditions around him.
As I see it, any reasonable driver in the position of the respondent would be bound to realise that to drive such a vehicle in that manner involved a serious breach of the proper management or control of the vehicle, that it was potentially dangerous to others who, as members of the public, might at the time be upon or in the vicinity of the roadway, and that it created a considerable risk of serious injury or death to members of the public which significantly exceeded the risk ordinarily associated with being on or near a highway.[3]
[3]R v De Montero (2009) 198 A Crim R 68, 93 [80].
In the circumstances of this case, the respondent’s lapse of attention of some 10 seconds’ duration amounted to a most remarkable failure to keep a proper lookout, and the nature and gravity of the respondent’s offending are to be assessed accordingly.
It follows, in my view, that Ground 2 is made out.
Ground 4 – Inadequate weight to maximum penalty
In her sentencing remarks the judge said that the fact that the increase in the maximum penalty for dangerous driving causing death had increased from five years’ imprisonment to 10 years’ imprisonment had taken effect only days before these offences were committed ‘must have an effect on the manner in which I consider the existing sentencing range or the previous sentencing range’. Although her Honour said that she accepted that she was bound to sentence the respondent ‘in accordance with that new maximum’ and that, as a matter of principle, ‘once a sentence is increased, that is a reflection of Parliamentary will and it should immediately be given effect to’, her Honour then went on to say that:
On the other hand, I am also conscious of the fact that in the case of DPP v Angel [2010] VCC 0582 (Unreported, Judge Parsons, 25 May 2010), which occurred at about the same time, again only days after the penalty was doubled, the Crown there acknowledged that the fact that the penalty had been increased only days before was a factor that should be taken into account in assessing the relevant penalty. In my view, although it is not necessarily right to put it in terms of principle that in all cases one should make allowance for an easing-in period, it is also my view important that there be a consistency of approach when one is looking at such a significant change over such a short period and where the Crown had made a concession in respect of Mr Angel. It would be an unfair disparity, in my view, if I were to treat you differently from the way the Crown said Mr Angel should be treated, so far as taking into account the very recent amendment to increase the penalty. It is more for the purpose of consistency and to avoid what to me is an obvious sense of injustice that I adopt the approach advocated by the Crown in Angel rather than the approach advocated by [the prosecutor] here.[4]
…
I consider that, having regard to the sentencing practices in accordance with s 5 of the Sentencing Act 1991, and notwithstanding what I have said about the significance of the increase in penalty, it is instructive to look in general terms, therefore, at the sentencing range applicable immediately prior to your offending.[5]
[4]Sentencing remarks, [79].
[5]Ibid [81].
Under cover of Ground 4, the Director submitted that the approach so adopted by the judge was plainly erroneous. In his submission, her Honour was bound to give full effect to the new maximum penalty, without the benefit of any phasing-in period, and thus to sentence the respondent in accordance with the new maximum penalty as opposed to the sentencing practices applicable under the former lesser maximum penalty regime.
I accept that contention. Despite the concessions made by the Crown in Angel, it was wrong to sentence the offender otherwise than in accordance with the new maximum penalty regime.[6] In effect, the judge in this case repeated the error. Her Honour was bound by law to sentence the offender in accordance with the new maximum penalty regime,[7] even though the sentence properly imposed in accordance with the new maximum was virtually bound to be greater than the sentence in Angel. It is true that justice requires parity in sentencing. But, even in the broadest sense,[8] ‘parity’ means parity as between sentences imposed in accordance with law. Justice does not require or authorise the application of wrong principle in order to achieve parity in one case with a sentence imposed on the basis of wrong principle in another.
[6]Markarian v The Queen (2005) 228 CLR 357, 372 [30]–[31]; R v AB (No 2) (2008) 18 VR 391, 403–4 [40] and 405 [46]–[48]; DPP v CPD (2009) 22 VR 533, 551 [76].
[7]R v Slattery (1996) 90 A Crim R 519, 524 (Hunt CJ at CL).
[8]As opposed to parity between co-offenders.
It follows in my view that Ground 4 is also made out.
Ground 5 – Current sentencing practices
In Angel, the Crown conceded that a wholly suspended sentence of three years’ imprisonment was within the sentencing range. In this case, the Crown contended before the judge below that the sentencing range was between six and eight years’ imprisonment. In her sentencing remarks, the judge said that she struggled to see how one could sufficiently distinguish the circumstances of Angel from the circumstances of this case to accept the Crown’s contention that the sentencing range in this case was between six and eight years’ imprisonment. As her Honour put it:
It is troubling, very troubling, for a sentencing judge to see what I take to be such a significant and irreconcilable disparity between two cases, and such a marked degree of inconsistency from the Crown in these two cases.[9]
[9]Sentencing remarks, [98].
The complaint made under Ground 5 is that the judge erred in treating Angel as in any way comparable to this case. The Director submitted that the facts in Angel, and thus the nature and gravity of the offending there, were so very different to this case as to make the two cases eminently distinguishable.
I agree. In Angel the offender was driving with his wife, daughter and two sons in the family car. He entered an uncontrolled railway intersection without seeing warning signs and rumble strips on the road. His vehicle collided with a train crossing the intersection, after he had braked to a speed of 5 kph. The impact killed his wife and daughter and left him to care for his two sons. Hardship was a relevant sentencing consideration. As the Director submitted in this case, the sentence was on the very edge of the range.
In my view, the nature and gravity of the offending in this case was of a considerably higher order. On the evidence, the respondent diverted his attention from the road for approximately 10 seconds at a speed of 70 kph in an area where he knew there to be controlled intersections, and in that period would have travelled almost 200 metres. His vehicle was of a weight and travelling at a speed, and driven in circumstances which, coupled with his inattention to the road created a serious risk of death or serious injury. The risk of death or serious injury resulting from the offender’s momentary lapse of concentration in Angel was on any view very much less and his culpability was accordingly less than the respondent’s. Further, as was earlier observed, the approach advocated by the Crown in Angel was erroneously based on sentencing practices applicable under the former sentencing regime. It was not an appropriate comparator.
Ground 3 – The role of general deterrence
In her sentencing remarks, the judge said that general deterrence was a less important sentencing consideration in this case than it is generally for cases of culpable driving or negligently causing serious injury, because, her Honour said:
we are not speaking about conscious choices to imperil people, we are not speaking about negligence of such a degree falling short of the standard of care expected of someone in the circumstance that the criminal law rather than the civil law should be invoked, we are talking about a level of culpability which is driving at a speed or in a manner which is dangerous to the public in all of the circumstances. In the circumstances of this case, by the moments or the very short period of inattention in the way that I have already described it.[10]
[10]Sentencing remarks, [84].
In support of Ground 6, the Director contended that so to reason was erroneous, not only because the period of inattention was not ‘very short’ but also because the judge’s reasoning ran counter to the views expressed by this court in DPP v Oates[11] and in DPP v Neethling,[12] that general deterrence is an important consideration in sentencing for all forms of dangerous driving causing death, including ‘lower level’ forms of the offence.
[11](2007) 47 MVR 483, 487 [22]and 485 [25] (Neave JA) (Warren CJ and Nettle JA agreeing).
[12](2009) 22 VR 466, 472 [30] and [31] (Maxwell P, Vincent JA and Hargrave AJA).
Counsel for the respondent submitted to the contrary that there was no error. He contended that it was open to the judge to characterise the nature and gravity of the offending as her Honour did and to conclude on that basis that general deterrence was not as an important a sentencing consideration than it might be in a case of dangerous driving causing death the result of a deliberate decision to break the road laws. Counsel relied on the decision in Oates in support of that contention.
It may be that the judge intended to convey no more than that there are cases, such as Oates, where, in all the circumstances of the case, the offender’s low level of moral culpability implies that general deterrence is not as important in sentencing as it might be in an otherwise comparable case involving a high level of moral culpability. If so, I see no error in that part of her Honour’s reasoning.
On the other hand, if her Honour intended to convey that there is some sort of hierarchy under which intentional offences of dangerous driving causing death warrant greater general deterrence than unintentional offences of that kind, I consider that her Honour’s reasoning would have been in error.
The need for general deterrence of any particular type of offending is informed by the prevalence of that kind of offending. From time to time, different views have been expressed as to the sort of evidence if any which is required to establish prevalence and thus the need for general deterrence. Arguably, the better view, which was expressed tentatively by Callaway JA in R v Downie and Dandy,[13] is that prevalence is something of which the court may take judicial notice without need of strict proof:
… all that is required is that a court should be sure that an offence is prevalent before weighting the instinctive synthesis in favour of general deterrence and giving less weight to mitigatory factors, as explained in such cases as R. v Peterson [1984] W.A.R. 329 at 332…
[13][1998] 2 VR 517, 522 [9]; cf R v Lim and Ko [1998] VSCA 54.
But there was no suggestion in this case that offences of dangerous driving causing death resulting from deliberate decisions to flout the road laws are any more prevalent than offences of dangerous driving causing death the result of unthinking negligence of the kind here exhibited. Nor does there appear to be any basis in the evidence or otherwise for the judge to be sure that they are. It follows, in my view, it would not have been open to treat general deterrence as less important simply because the offences were the consequence of unthinking negligence. Subject to proportionality and other relevant considerations, general deterrence is an important sentencing consideration in all cases of dangerous driving causing death.[14]
[14]R v Brooks [2000] VSCA 188 [21] (Callaway JA).
Ground 1 – Manifest inadequacy
Finally, under Ground 1 it was contended that the sentence was manifestly inadequate in failing to have sufficient regard to the maximum penalty; as a result, failing to punish the respondent to an extent which is just in all the circumstances; and failing to express adequate denunciation and provide adequate deterrence against similar offending.
Counsel for the respondent contended to the contrary that when regard is had to the mitigatory considerations which operated in favour of the respondent, it may be seen that the sentence is not manifestly inadequate. Those considerations, he said, included that the respondent indicated his intention to plead guilty at an early stage to all five offences;[15] the respondent’s genuine remorse, good character and lack of prior offences, contributions to the community and good prospects of rehabilitation; the fact that he suffered from moderate depression the result of the collision, and that it was likely to be aggravated by imprisonment; and the fact that prison would be more burdensome for the respondent than for other prisoners.
[15]He was initially charged with two counts of culpable driving. Shortly after a contested committal hearing, he offered to plead guilty to the five charges of which he was ultimately convicted.
In my view, the sentences imposed on the two counts of dangerous driving causing death, and thus the total effective sentence, are manifestly inadequate. Given the nature and gravity of the offending and the maximum penalty of ten years’ imprisonment applicable in respect of each offence, I consider that a wholly suspended sentence of only three years’ imprisonment for the two offences is so disproportionate to the seriousness of the crimes as to shock the public conscience. It reflects the several errors made in the sentencing process to which I have already referred.
Disposition of the appeal
The question then is whether this court should intervene. The Director submitted that the sentence was so inadequate that it should be set aside and the respondent re-sentenced, although not necessarily within the range which the Crown had previously proposed. Counsel for the respondent submitted to the contrary that, even if the sentence were manifestly inadequate, there was not here the ‘something more’ which is necessary to warrant appellate intervention on a Crown appeal and in any event, given that the respondent was sentenced on 23 June 2010 to a sentence which included a community based order, which he has not breached, it would be crushing to re-sentence him to an immediate term of imprisonment and be likely to impede his rehabilitation.
In this case I consider that appellate intervention is warranted. In my view, the inadequacy of the sentences imposed on the counts of dangerous driving causing death is so ‘clear and egregious’ as to ‘undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes’.[16] That is the ‘something more’ which warrants intervention.[17]
[16]DPP v Bright (2006) 163 A Crim R 538, 542 [10]; R v Clarke [1996] 2 VR 520, 522.
[17]Ibid.
I accept that it is harsh for the respondent to have been sentenced in the first place to a suspended term of imprisonment and now to be imprisoned, and that the issue is complicated by the fact that since being sentenced he has completed the unpaid work condition of the community based order imposed in respect of the other offences. There is also evidence before this court that the respondent’s health and circumstances are, in some respects, worse now than when he was sentenced. Those considerations require some mitigation of the penalty to be imposed. But there remains a need for just punishment and, in this appeal, I am precluded from taking into account the element of double jeopardy involved in the respondent being sentenced again.[18]
[18]Criminal Procedure Act 2009, s 289(2).
Re-sentencing
Bearing in mind the sentencing considerations to which I have referred, including in particular the mitigatory effects of the respondent’s psychological condition and the hardship of being re-sentenced to immediate imprisonment following the imposition of a suspended term of imprisonment, I propose imposing a lesser sentence on each of the counts of dangerous driving causing death than would otherwise be the case. Similarly, in view of the extent to which the community based order has already been completed, I propose re-sentencing the respondent on the remaining charges to lesser sentences less than would otherwise be appropriate, and that they be served concurrently with the sentences to be imposed on the other counts. I do so not to avoid double jeopardy but to avoid double punishment.
In the result, I would set aside the sentences passed below and, in lieu thereof, re-sentence the respondent as follows:
· On count 1 (dangerous driving causing death) to two years and six months’ imprisonment.
· On count 2 (dangerous driving causing death) to two years and six months’ imprisonment.
· On count 3 (dangerous driving causing serious injury) to 12 months’ imprisonment.
· On count 4 (dangerous driving causing serious injury) to 12 months’ imprisonment.
· On count 5 (dangerous driving causing serious injury) to 12 months’ imprisonment.
I would order that 18 months of the sentence imposed on count 2 be served cumulatively on the sentence imposed on count 1, making a total effective sentence of four years’ imprisonment.
In view of the respondent’s psychological condition and good prospects of rehabilitation I would set a shorter than usual non-parole period of two years.
Finally, for the purposes of s 6AAA of the Sentencing Act 1991, I would declare that, but for the respondent’s plea of guilty, I would have imposed individual
sentences on each of counts 1 and 2 of three years and six months’ imprisonment, and on each of counts 3, 4 and 5, of 18 months’ imprisonment, and would have ordered that two years of the sentence imposed on count 2 and six months of each of the sentences imposed on counts 3, 4 and 5 be served cumulatively on each other and on the sentence imposed on count 1. That would have made for a total effective sentence of seven years’ imprisonment, and I would have set a non-parole period of four years.
NEAVE JA:
I agree with Nettle JA, for the reasons he gives, that grounds 1, 4 and 5 are made out. So far as ground 2 is concerned, the Crown submitted that her Honour mischaracterised the 10 second period during which the respondent paid insufficient attention to his driving as ‘a very short period of inattention’. It was submitted that the size and weight of the truck, the fact that the respondent admitted he did not see the traffic lights turn to amber and then red, and the distance travelled by the truck during that 10 second period placed the respondent’s conduct in the mid range of culpability.
In Director of Public Prosecutions v Neethling,[19] this Court referred with approval to the factors relevant to the seriousness of a particular offence of dangerous driving set out by the New South Wales Court of Appeal in R v Jurisic[20] and then revised in R v Whyte.[21] These were as follows:
[19](2009) 22 VR 466 (‘Neethling’).
[20]R v Jurisic (1998) 45 NSWLR 209.
[21]R v Whyte (2002) 55 NSWLR 252.
i. Extent and nature of the injuries inflicted.
ii. Number of people put at risk.
iii. Degree of speed.
iv.Degree of intoxication or of substance abuse.
v. Erratic [or aggressive] driving.
vi. Competitive driving or showing off.
vii. Length of the journey during which others were exposed to risk.
viii. Ignoring of warnings.
ix. Escaping police pursuit.
x. Degree of sleep deprivation.
xi. Failing to stop.[22]
[22]Neethling (2009) 22 VR 466, 473.
There is no doubt that the respondent ought to have seen the amber light well before the intersection and should have begun to brake. He should also have been aware that a collision between his Kenworth prime mover and another vehicle crossing the intersection with the green light was likely to have disastrous consequences for the occupants of that other vehicle. A large number of people were put at risk by the respondent’s failure to stop at the red light and the consequences of his dangerous driving were devastating. However none of the other factors regarded in Neethling as relevant to the seriousness of the offence were present.
The respondent was not driving aggressively or competitively or exceeding the speed limit when the accident occurred. He did not deliberately run the red light, and was not affected by lack of sleep or by alcohol and drugs. In my view it was open to her Honour to take the view that the respondent’s moral culpability for dangerous driving was at the lower end of the scale for this offence.
So far as ground 3 is concerned, Nettle JA has referred to an apparent ambiguity in her Honour’s remarks on general deterrence. I would reject the submission that her Honour’s remarks meant that general deterrence must always be given lesser weight in sentencing an offender for dangerous driving causing death or serious injury than in cases where the offender is convicted of culpable driving or negligently causing serious injury. In my opinion the remarks related solely to the weight to be given to general deterrence in the particular circumstances of this case and were consistent with the view expressed by this Court in Director of Public Prosecutions v Oates.[23]
[23][2007] VSCA 59, [21]–[25].
Since error has been established, the question is whether different sentences should be passed. The respondent’s life has been irreparably changed as a result of the accident. He has given up truck driving and his marriage has broken down because of his psychological condition arising out of the accident. He continues to suffer from considerable guilt and remorse and has become socially isolated. However, as he has himself recognised, the painful effect of the accident on him is much less significant than its effects on the bereaved victims’ families, who will suffer grief as a result of the loss of their children for the rest of their lives.
In considering whether the respondent should be re-sentenced, weight must be given to just punishment, denunciation of the respondent’s dangerous driving and general deterrence. However the respondent has served eight months of his suspended sentences and has completed the unpaid work requirements of his community based order. There is no doubt that he is deeply remorseful and that he has excellent prospects of rehabilitation. His depression will make imprisonment more burdensome for him than for a person not suffering from that condition and may be exacerbated by him serving a gaol term. Little would be gained by requiring the respondent to serve a period in custody.
In these particular circumstances, I consider that, although the sentences imposed on the counts of dangerous driving causing death and the total effective sentence were manifestly inadequate, the Court should exercise its discretion not to interfere with those sentences. For that reason I would dismiss the appeal. The view I have taken is not relevant to the sentences which should be imposed for similar offending in the future.
KYROU AJA:
I agree with Nettle JA.
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