DPP v Neethling
[2009] VSCA 116
•1 June 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 884 of 2008
| Director of Public Prosecutions |
| v |
| Josua FRitz Neethling |
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JUDGES: | MAXWELL P, VINCENT JA and HARGRAVE AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 November 2008 | |
DATE OF JUDGMENT: | 1 June 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 116 | |
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CRIMINAL LAW – APPEAL - SENTENCE – Director’s appeal – Dangerous driving causing death; dangerous driving causing serious injury – Total effective sentence of 15 months, to be served by way of an intensive corrections order – Whether manifestly inadequate – Offender on probationary driving licence – Licence held for 12 days – Overtaking in adverse weather conditions – Excessive speed – Crossed over double lines – Whether lack of experience reduced moral culpability – Young offender – Importance of general deterrence – Sentencing as social rehabilitation – Appeal allowed – Sentence failed to reflect high culpability and high degree of dangerousness – Resentenced to two years and seven months’ detention, to be served in a Youth Justice Centre – Reduced for double jeopardy and because of time served under intensive corrections order – R v Jurisic (1998) 45 NSWLR 209; R v Whyte and Ors (2002) 55 NSWLR 252 applied – Crimes Act 1958 (Vic) s 319.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr I D Hill QC with Ms S Leighfield | Whyte Just and Moore |
Maxwell P
VINCENT JA
hargrave aja:
On the evening of 30 April 2007, Josua Neethling was driving his father’s Ford Falcon. He was 18 years old. It was dark and raining lightly, and the road was wet.
Mr Neethling had had his driver’s licence for only 12 days. The Falcon was a ‘high-powered motor car’, as his counsel later told the sentencing judge. He had never driven in the wet before. He had done almost no unsupervised driving since getting his licence.
Mr Neethling pulled out to overtake a car in front of him, accelerating hard as he did so. As he later told police, the car ‘kicked into a lower gear and ‘cos it was wet, it just started slipping.’ Almost immediately, he saw an oncoming car. In his own words:
I braked and in order to avoid a head-on collision, I swerved to the right and the Holden Barina struck our vehicle … on the left rear passenger door. It was all over pretty quickly.
In the minutes before, Mr Neethling had accelerated ‘heavily’ to catch up with the vehicle travelling ahead of him. The driver of that vehicle, Lynette Ruseler, had her cruise control set at about 70 kilometres per hour, which was the speed limit. She noticed a car come up behind her, travelling faster than she was. She later estimated its speed to have been 90 kilometres per hour. As Ms Ruseler checked her rear vision mirror, the vehicle behind her moved to her right, with the evident intention of overtaking. She said later that she had thought that this was ‘a silly thing to do, as the driver would have to cross double lines’.
When Mr Neethling pulled out to overtake Ms Ruseler’s vehicle, he did indeed cross over double lines, but only after first having crossed over a right turning lane. The oncoming car was travelling correctly in its own lane. (The diagram attached to this judgment depicts the scene.) Mr Neethling told police that he had ‘checked to see if there were any oncoming traffic. In my judgment, it was safe to pass’. He apparently did not see the double lines which, of course, made it unlawful to overtake on that stretch of road.
Reconstruction of the collision showed that Mr Neethling was driving at a speed of not less than 82 kilometres per hour. The vehicle was in a roadworthy condition and no mechanical fault caused or contributed to the collision.
The rear seat passenger, Kate Golding, was also 18. She sustained multiple severe injuries from which she died that evening. Natasha Romano, aged 16, was in the front seat. She sustained serious injuries.
The driver of the oncoming vehicle, Chloe Bakker, was also 18 years old. She sustained serious injuries and was hospitalised. Her front seat passenger was her partner, Luke Pettigrew. He was airlifted to Melbourne with life-threatening injuries. He was 19 years old.
Mr Neethling pleaded guilty, at the earliest opportunity, to one count of dangerous driving causing death and three counts of dangerous driving causing serious injury. The maximum penalty for each offence at the time they were committed was five years’ imprisonment.[1] On 16 October 2008, he was sentenced in the County Court as follows:
[1]As from March 2008, the maximum penalty for dangerous driving causing death was increased to 10 years’ imprisonment.
| COUNT | OFFENCE | SENTENCE | CUMULATION |
| 1. | Dangerous driving causing death | 9 months | Base |
| 2. | Dangerous driving causing serious injury | 5 months | 1 month |
| 3. | Dangerous driving causing serious injury | 5 months | 1 month |
| 4. | Dangerous driving causing serious injury | 5 months | 1 month |
| Total effective sentence: 12 months’ imprisonment It was directed that the sentence be served by way of an intensive corrections order with special conditions. The judge ordered that the respondent’s licence be cancelled and he be disqualified from obtaining any such licence for a period of two years. | |||
The Director of Public Prosecutions has appealed under s 567A of the Crimes Act 1958 (Vic) on two grounds, namely that:
(a) in imposing sentence, the judge erred in moderating general deterrence because of Mr Neethling’s youth; and
(b) the individual sentences and the total effective sentence were manifestly inadequate in the circumstances.
For reasons which follow, we would allow the appeal on both grounds, and resentence Mr Neethling as set out in paragraph [69] below.
The effects of the collision
The injuries
In his reasons, the sentencing judge gave a detailed account of the injuries sustained by the four victims of the collision, and the longer term effects on them and their families.[2] What follows is a slightly abbreviated version of that account.
[2]Reasons [10]–[14].
Kate Golding suffered multiple injuries, including a right haemothorax, a 12 cm by 3 cm deep injury to her neck, fractured ribs, a fracture to the base of her skull and extensive bleeding. She died as a result of these injuries in the Emergency Department of the Alfred Hospital that night.
Natasha Romano suffered abrasions to her head and neck, injuries to her left hip, tenderness to her collarbone, abdomen and back, internal bleeding and loss of sensation to her left side. She was hospitalised for eight days, and required rehabilitation to use her left side of the body.
Luke Pettigrew suffered multiple serious injuries, including severe head injuries and severe orthopaedic injuries and severe chest and abdominal injuries. He sustained a full thickness forehead laceration and a fractured sinus, multiple fractures to his wrist, ankles, toes, ribs and sternum, and severe injuries to his liver and penis. He was in the Alfred Hospital for ten days undergoing numerous surgical procedures before spending 11 days at Geelong Hospital. He was confined to a wheelchair and spent nearly two months at the Grace McKellar Rehabilitation Centre. Thereafter he has required continual physiotherapy and further surgery in Melbourne. He has lost the normal use of his left wrist and fingers. He continues to experience pain.
Chloe Bakker also sustained multiple severe injuries. They included a fracture to her left eye socket, a fracture to her right leg between the hip and the knee, a fracture to her right foot, a left lung pneumothorax, bruising to both lungs, a fracture to her right kneecap, a fracture of her toes on the left foot and multiple lacerations. She was hospitalised for three weeks before spending another two months at Grace McKellar Rehabilitation Centre. She underwent extensive surgical intervention and subsequent rehabilitation.
Victim impact statements
Chloe Bakker outlined her extensive injuries and the pain of rehabilitation. She described the ongoing effects of her injuries, including how her left knee still failed to function properly. She is now unable to play sport. She continues to experience ‘extreme ankle pain’, which prevents her from being on her feet for long periods and from being able to walk long distances. Ms Bakker has endured great emotional stress seeing her partner, Luke Pettigrew, suffer physically and emotionally, and endure the loss of his chosen career as a motor mechanic after he had completed four years as an apprentice. She says:
Me and Luke didn’t ask for this to happen to us, but it is a constint [sic] reminder everyday experiencing pain and having daily struggles as a result of the accident.
We don’t want to be reminded everyday of what happen [sic], but we are.
Chloe Bakker’s mother set out the horror she experienced of rushing to a hospital emergency department and finding her child ‘broken and swollen and bruised’ and extremely distressed. Mrs Bakker suffers nightmares, depression and despair and takes medication to help her.
Luke Pettigrew identified his extensive injuries and steps to rehabilitation. As already noted, the injury to his wrist means he cannot work at his trade as a motor mechanic. He suffers pain, nightmares and emotional trauma. He sees a psychologist for assistance. The judge said: ‘[I]t is clear from my observation of him in court that he is quite understandably angry and emotional about what happened to him and his fiancée Chloe’. Luke’s mother described the horror of her son’s injuries and hospitalisation. The judge said her experience was ‘every parent’s nightmare’. She now feels ‘sad, angry and frustrated’ that Luke is no longer able to work as a motor mechanic.
Linda Golding described ‘the disbelief, the pain the horror that my little girl that I love so very much … [w]as gone’. She has been unable to sleep, has nightmares and is medicated with antidepressants. She says: ‘I still wait for Kate to walk in the door and I wait for her to ring.’ Ian Golding says he will never get over the loss of his daughter. He will just have to manage his life around that loss. He says:
No-one can fully comprehend the devastating effect losing a child can [have] …
I have never met Josua Neethling but I know I will see him, I will look at him knowing he is the main reason my daughter was killed. For his couple of seconds of stupidity which I can assume he would take back at any time, he has not only shattered and devastated my life but all of Kate’s family and friends.
Mr Golding said: ‘[T]here is a need for some sort of justice so we can all put this behind us,’ though he acknowledged that nothing the sentencing court could do would bring back his daughter.
Mr Neethling’s personal circumstances and remorse
Mr Neethling himself suffered significant injuries in the accident. He fractured two vertebrae and experienced considerable post- traumatic stress and shock. He was hospitalised for a week before attending Grace McKellar Hospital for outpatient rehabilitation treatment.
Mr Neethling was in year 12 at the time of the accident. He managed to complete the year, passed his VCE and obtained a place at Victoria University where he intends to study business. He has deferred his university place because of the criminal proceedings against him.
There was strong evidence on the plea of Mr Neethling’s remorse, which the judge summarised as follows:
Your brother Ryk who is some ten years older than you, also gave evidence upon your plea. He outlined your family situation and deposed as to the closeness of your family and the support the family gives you. He described the dreadful impact your offending has had to your own family and the strong remorse you have expressed for your conduct.
Your counsel Mr Meredith tendered a folder of material upon your plea, Exhibit 1. That contains inter alia a report from psychologist Peter Billings, who states that you are guilty and ashamed by your offending. You have both physical and psychological legacies from the collision but you are genuinely remorseful for your conduct. You understand the damage your crimes have caused to many people.
References from five of your teachers of last year can be found at tabs three to six of Exhibit 1. You were described as articulate, intelligent, caring and compassionate. You are said to be of high moral character and a young man of conscience. You have suffered anguish at your conduct and have accepted responsibility for that conduct and its consequences.
Other references deposed to your integrity and dedication to your church. Your past employers describe you as personable and genuine and you continue to carry out your work tasks at personally challenging times. You are said to be hard working and loyal.
Natasha Romano and her mother Samantha provided references that attested to the sadness, guilt and remorse you have expressed since the collision and those statements are echoed in the reference tendered by your sister.[3]
[3]Reasons [26]–[30].
His Honour also accepted that Mr Neethling’s plea of guilty demonstrated genuine remorse and acceptance by him of responsibility for his conduct.[4]
[4]Reasons [41].
Sentencing for dangerous driving causing death
Following a request by the Court, senior counsel for the Director provided helpful material explaining the genesis of the offence of dangerous driving causing death. The offence was created in Victoria in 2004.[5] The Attorney-General said at the time that the new offence would ‘fill a gap’ between two existing offences, namely:
[5]For a short period during 1966-67 s 318(1A) of the Crimes Act 1958 (Vic) provided that, where a person’s reckless or dangerous driving resulted in the death or bodily injury of another person, the driver was liable to a maximum of five years’ imprisonment or a $1,000 fine or both. That offence was removed from the Crimes Act when the offence of culpable driving causing death was introduced in 1967. See generally, Department of Justice (Victoria), Culpable and Dangerous Driving Laws (Discussion Paper) (January 2004).
(a) culpable driving causing death, which carries a maximum penalty of 20 years’ imprisonment (and a minimum licence disqualification period of two years); and
(b) dangerous driving, which carries a maximum penalty of two years’ imprisonment (and a minimum licence disqualification period of six months).
To establish this offence, the Minister said, the prosecution
will not be required to prove criminal negligence, which is required to prove culpable driving causing death. Rather, … the prosecution will have to prove that the accused drove at a speed or in a manner dangerous to the public having regard to all the circumstances of the case, and by doing so, caused the death of or serious injury to another person.[6]
[6]Victoria, Parliamentary Debates, Legislative Assembly, 3 June 2004, 1798.
The offence of dangerous driving causing death has existed in New South Wales since 1994.[7] The maximum penalty for the offence in New South Wales is 10 years’ imprisonment. There is a separate offence of aggravated dangerous driving causing death, which carries a maximum of 14 years’ imprisonment. These offences replaced the offence of culpable driving.
[7]Crimes Act 1900 (NSW) s 52A.
The New South Wales Court of Criminal Appeal has, on two separate occasions, found it necessary to publish a guideline judgment on sentencing for dangerous driving causing death. In the first of these cases, R v Jurisic[8] (‘Jurisic’), the Court of Criminal Appeal cited with approval what had been said by Hunt CJ at CL in R v Musumeci[9] (‘Musumeci’), a judgment which Spigelman CJ described as ‘in many respects … a guideline judgment, although not called such.’[10]
[8](1998) 45 NSWLR 209.
[9][1997] (Unreported, Hunt CJ at CL, McInerney and Hulme JJ, New South Wales Court of Criminal Appeal, 30 October 1997).
[10]45 NSWLR 209, 228.
In Musumeci, Hunt CJ said:
This Court has held that a number of considerations which had to be taken into account when sentencing for culpable driving must also be taken into account when sentencing for this new offence of dangerous driving [causing death]:
1. The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness.
2. The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life.
3. Such is the need for public deterrence in this type of case, the youth of any offender is given less weight as a subjective matter than in other types of cases.
4. The courts must tread warily in showing leniency for good character in such cases.
5. So far as youthful offenders of good character who are guilty of dangerous driving, therefore, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances.
…
7. The statement made by this Court in relation to the previous offence of culpable driving - that it cannot be said that a full time custodial sentence is required in every case - continues to apply in relation to the new offence of dangerous driving [causing death]. As that offence is committed even though the offender has had no more than a momentary or casual lapse of attention, there must always be room for a non-custodial sentence (although that does not mean that a non-custodial sentence is ordinarily appropriate in such a case), but the case in which a sentence other than one involving full time custody is appropriate must be rarer for this new offence.[11]
[11][1997] (Unreported, Hunt CJ at CL, McInerney and Hulme JJ, New South Wales Court of Criminal Appeal, 30 October 1997), 4 - 5.
In our respectful view, these propositions apply with equal force to the offence with which we are presently concerned. Importantly, as the New South Wales Court of Criminal Appeal said in Jurisic, a non-custodial sentence for this offence should be seen as exceptional. [12]
[12](1998) 45 NSWLR 209, 231[E].
The guideline judgment in Jurisic was reviewed and revised by the New South Wales Court of Criminal Appeal in R v Whyte and Ors[13] (‘Whyte’). The decision in Whyte was followed by this Court in DPP v Oates[14] (‘Oates’). In that case, Neave JA (with whom Warren CJ agreed) enunciated the following principles, which reflect what was said in Musumeci, Jurisic and Whyte:
[13](2002) 55 NSWLR 252.
[14](2007) 47 MVR 483, 487 [22], [25] (Neave JA) 488 [31], [33] (Warren CJ), 489 [38] (Nettle JA).
1. General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.[15]
[15]Ibid [22].
2. A person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment. [16]
[16]Ibid.
3. The sentence which is imposed must take account of variations in the moral culpability of the person responsible.[17]
4. A custodial sentence will usually be appropriate for this offence, except in cases where the offender’s level of moral culpability is low.[18]
[17]Ibid [21].
[18]Ibid [22].
The New South Wales Criminal Court of Appeal has identified a series of factors which may aggravate the seriousness of a particular offence of dangerous driving causing death. The list of aggravating features, first propounded in Jurisic and then revised in Whyte, is as follows:
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.[19]
[19]55 NSWLR 252, 286 [216]-[217].
Consistently with the decision of this Court in Oates, we proceed on the basis that the propositions set out in paragraphs [28]–[31] above govern the approach to sentencing in Victoria for the offence of dangerous driving causing death.
The relevance of moral culpability
As noted in Oates, the New South Wales Court of Criminal Appeal in Whyte said that
in determining the appropriateness of full time custody and the length thereof, the sentencing judge must give close attention to the degree of moral culpability involved. This is a critical component of the objective circumstances of the offence.[20]
Earlier, in Musumeci, Hunt CJ had made clear that the sentencing court must give consideration to the driver’s state of mind as well as to ‘the objective gravity of the dangerous manner in which he drove’.[21]
[20]Ibid [205].
[21][1997] (Unreported, Hunt CJ at CL, McInerney and Hulme JJ, New South Wales Court of Criminal Appeal, 30 October 1997), 6.
In this appeal, the primary submission on behalf of Mr Neethling was that the seriousness of the particular offence depended upon – and only upon – the ‘objective dangerousness’ of the driving. This was said to be so because the offence of dangerous driving causing death was only committed if death was the result of ‘driving in a manner that was dangerous to the public’. Accordingly, counsel argued, the question was: how dangerous was the manner of driving? The culpability of the particular driver was irrelevant. It followed, according to this argument, that the list of aggravating factors identified in Whyte had no bearing on sentencing for this offence. The alternative submission was that, if moral culpability was a relevant factor, this was a case of low moral culpability.
So far as ‘objective dangerousness’ was concerned, it was submitted for Mr Neethling that this was ‘not very dangerous’ driving. This was said to be so because:
·it was not ‘gross speeding’;
·the driver in front of him (Ms Ruseler) had not seen the oncoming car either;
·the line markings were confusing because of the right turning lane;
·the dangerous driving lasted only a short period of time; and
·Mr Neethling had made an ‘instantaneous decision’.
As Vincent JA pointed out in the hearing, however, the assessment of objective dangerousness had also to take into account the important facts that the road was wet and the visibility was poor. Senior counsel for Mr Neethling accepted that the degree of dangerousness had to be assessed by reference to all the circumstances, including the driving conditions, but maintained that, as an instance of dangerous driving, this was at the ‘lower to middle’ point of the scale of dangerousness.
In our view, each element of this submission must be rejected. For reasons which follow, we consider that:
(a) the driver’s moral culpability must be taken into account in sentencing for this offence;
(b) on a proper assessment, Mr Neethling’s culpability for this offence was high; and
(c) on a proper assessment, Mr Neethling’s driving of the vehicle was, in the circumstances, very dangerous.
Little need be said on the first of these points. That the moral culpability of the driver is centrally important to the sentencing task is clearly established by the appellate authorities to which we have referred. As noted earlier, it is the degree of moral culpability which will be a key factor in determining whether, exceptionally, a non-custodial sentence is available as a sentencing option.
The mere fact that the offence is proved by establishing that the manner of driving was dangerous does not render the driver’s moral culpability irrelevant. The example given in Court was that of a husband driving at high speed – and hence dangerously – in order to take his pregnant wife to hospital. As senior counsel properly conceded, those circumstances would inevitably affect the assessment of the driver’s culpability and, hence, the determination of the appropriate sentence. The position is no different from, for example, the offence of manslaughter by unlawful and dangerous act. Proof of objective dangerousness suffices (together with proof of illegality) to establish the offence, but the sentence to be imposed will depend to a significant degree on the moral culpability of the offender for the act in question.
As to Mr Neethling’s own culpability, defence counsel on the plea emphasised his inexperience as a mitigating factor. When the judge referred to his deliberate decision to overtake, his counsel agreed that it was deliberate, but said:
Against that, licence for 12 days; clear lack of judgment by someone who is inexperienced, as distinct, for example, from someone who had been driving for a fair length of time and done something like this.
In our view, Mr Neethling’s youth and inexperience cannot be said to have reduced his culpability for what occurred. He elected to drive a powerful car at high speed – well over the speed limit – when he had virtually no experience of driving unsupervised. He elected to drive at high speed in conditions which, quite obviously, made driving difficult – and dangerous. It takes little experience to know that poor visibility and wet roads significantly heighten the risk to all road users. Mr Neethling chose to speed even though he had had no experience of driving in such conditions.[22]
[22]He told police that he had never driven in the wet.
Worse still, Mr Neethling embarked on a very dangerous manoeuvre – overtaking at high speed in conditions of poor visibility. By his own admission, he had no idea how the car would respond in such conditions if he accelerated sharply.[23] It was, moreover, an unlawful manoeuvre in that he crossed over double lines. The fact that he did not see the oncoming car until it was almost upon him demonstrates just how poor the visibility was. The fact that he did not see the double lines demonstrates that he simply did not take sufficient care. The photographs tendered to the Court show the double lines very clearly. The headlights on Mr Neethling’s vehicle were on, so the double lines would have been clearly visible. As he would have known, having recently completed his licence test, it was his obligation not to overtake unless he had first established that the line markings on the road permitted him to do so.
[23]He told police that he had never felt the car slip like that before.
The newly-licensed driver well knows that he/she is on probation, on trial. Quite obviously, driving unsupervised is fundamentally different from the supervised driving which the learner driver undertakes. For the first time, the new driver must confront unexpected situations, and make quick decisions without assistance. That is an adult responsibility, and it must be discharged accordingly. The new driver must realise that his/her inexperience creates risks for himself/herself, for passengers, and for other road users.
These are all self-evident propositions. We have little doubt that they represents the universal view within our community. And they illustrate, without further explanation, why Mr Neethling’s culpability must be viewed as high. He took a completely unnecessary risk, and in so doing put others unnecessarily at risk. In the language of Spigelman CJ, he ‘abandoned his responsibility’ – to his passengers and to other road users – with catastrophic results.[24]
[24]R v Jurisic (1998) 45 NSWLR 209, 231[D]; R v Whyte (2002) 55 NSWLR 252, [223].
In the course of argument on the plea, the sentencing judge said to counsel for Mr Neethling: ‘This one is at the top end of the range of this offence … [Y]our client’s offending is more towards the top than the bottom.’ His Honour contrasted the circumstances of the present case with those in Oates and referred to the statement by Neave JA in that case that there had been ‘no suggestion the [offender] deliberately engaged in conduct which endangered others.’ The present case was different, his Honour said: ‘[T]his is deliberately engaging in conduct which endangered others. It’s as simple as that; he did; he deliberately chose to overtake in the way he did.’ Defence counsel agreed that this was so.
In our view, his Honour’s assessment – although expressed only in argument – was entirely correct, for the reasons which he gave. When he came to sentence Mr Neethling, however, he expressed this rather different view:
Your dangerous driving was in my view, lower to mid-range for offences of this type. Although you were exceeding the speed limit, you were not grossly in excess of 70 kilometres per hour. You made an instant appalling decision to overtake a vehicle you believed had pulled to the left to allow you to pass. You claim not to have been aware of the existence of the double lines and although I accept that this may be true, you should have been so aware. Your rush, your inexperience and your sheer stupidity resulted in this catastrophe. You had absolutely no foresight of risk for your actions.[25]
[25]Reasons [49].
As senior counsel for the Director submitted, his Honour was right the first time. With respect, we think that the view he expressed in the reasons for sentence understated the seriousness of what had occurred, for the reasons we have given. Moreover, this was not, according to the evidence, ‘an instant appalling decision to overtake’. Mr Neethling told police that he had made the decision to overtake when he was at least 200 metres, and perhaps as much as 400 metres, from the car in front of him. He felt he had given himself enough time to assess the situation.
Even if it had been an instantaneous decision, that would not have mitigated Mr Neethling’s culpability for it. This was not a case of Mr Neethling being forced, by the unexpected action of some other driver or a pedestrian, to make an instant decision. He acted entirely of his own volition. There was no emergency and, in particular, no need to overtake.
Overtaking on an undivided road always has an element of danger, since it involves the driver moving into the lane used by traffic travelling in the opposite direction. When a vehicle is travelling at a steady speed and at a safe distance behind the car in front, the risk may be relatively low. But the decision to overtake –involving a change of lane and a sudden increase in speed – converts the situation into one of high risk. And overtaking becomes much more dangerous when the conditions are as bad as they were here. With poor visibility and a slippery road, the chances of something going wrong are greatly increased. The fact that Mr Neethling was driving significantly over the legal speed limit and was crossing double lines (which prohibited overtaking) made it more dangerous still. To adapt what Doyle CJ said in R v Peake[26] (another case where overtaking caused death): ‘In attempting to overtake when he did, [Mr Neethling] created a significant risk of a serious accident.’
[26](2002) 37 MVR 354, 356 [16].
Of the aggravating factors listed earlier, those of particular relevance in this case are, in our view, the following:
(i) extent and nature of the injuries inflicted;
(ii) the number of people put at risk;
(iii) degree of speed; and
(v) aggressive driving.
We include the last of these because of the description by Mr Neethling’s front seat passenger, Natasha Romano, of his having ‘accelerated heavily’ to catch up with the vehicle in front of him.
The significance of Mr Neethling being a youthful offender
Unsurprisingly, defence counsel on the plea – and again on the appeal – emphasised the importance of Mr Neethling’s age as a sentencing consideration. He was 19 when sentenced. The judge said:
Sentencing you represents an extremely challenging task for the court. On the one hand your driving was appalling and the consequences tragic and heart-rending. General deterrence represents an extremely important sentencing consideration.
…
On the other hand you are extremely young, still really a boy. You clearly had no idea of what your responsibilities were as a driver. Like many young men I suspect you saw yourself as “bullet proof”. Well, you were not and your conduct has taken one life and ruined many others, including your own.[27]
[27]Reasons [31], [ 33].
His Honour said that he took Mr Neethling’s youth into account in sentencing:
Significantly you were only 18, a young offender and not only does that fact moderate general deterrence and make rehabilitation a more significant sentencing factor, but it has real relevance to the crimes you committed on 30 April of last year. You had only been licensed for two weeks. You were inexperienced and driving a powerful car and you were simply stupid. It is impossible to put an old head on young shoulders. Because you were young I am required to give weight to your prospects for rehabilitation. You are a well respected young man of good character and, one who has accepted responsibility for the collision and has exhibited genuine remorse and contrition.
You have matured considerably and your prospects for the future must be regarded as excellent. You have spent the last six nights in gaol whilst I deliberated on this matter. I could only imagine how traumatic you would have found that time in adult custody. The law does not allow me to remand you to a Youth Justice Centre. I have abridged the time I proposed to take in sentencing you because I am of the view that any further time in adult custody would be detrimental to your prospects for rehabilitation.[28]
[28]Reasons [43], [44].
It has long been accepted that, as a general rule, rehabilitation should be a primary – if not the principal – concern in sentencing a young offender.[29] It is equally well-established, however, that this principle has sometimes to give way to other sentencing considerations.[30] It was submitted for the Director that the present was such a case. We respectfully agree.
[29]R v Mills (1998) 4 VR 235, 241 – 242.
[30]See the discussion in DPP v McCloy [2006] VSCA 99, [56]–[62] (Ashley JA).
It was contended for the Director that, in cases such as this, general deterrence was of primary importance:
[T]here is widespread community alarm at very serious motor vehicle accidents involving young drivers. It is appropriate that deterrence be used to encourage young drivers not to drive dangerously.
We accept this submission, which accords with the authorities referred to earlier. As Spigelman CJ said in Whyte, the ‘frequently recurring case’ of dangerous driving causing death is one involving a young offender, of good character and with no or limited prior convictions, and showing genuine remorse.[31] That description fits Mr Neethling perfectly.
[31]R v Whyte (2002) 55 NSWLR 252, [204].
Unsurprisingly, experience in Victoria mirrors that in New South Wales. It is precisely because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight. In the present case, the victims were themselves young people. The importance of general deterrence is to try and prevent the very kind of damage which occurred here.
Sentencing and social rehabilitation
The rationale of the criminal law is to minimise the damage occasioned by anti-social behaviour, by limiting the occasions on which it occurs, by reinforcing the values of the community, by vindicating the rights of victims and by rehabilitating offenders. The sentencing function enables the courts, on behalf of the community, to state with crystal clarity that conduct of the particular kind will not be tolerated.
Sentencing performs an important function of social rehabilitation. As Vincent JA said in Director of Public Prosecutions v DJK:[32]
This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.
[32][2003] VSCA 109 [18].
In our view, those remarks apply with particular force to an offence of this devastating kind. Similar concerns appear to have informed the statement of Hunt CJ at CL in Musumeci, that ‘the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances.’[33] Similar sentiments were expressed by Spigelman CJ in Jurisic:
It has long been accepted that denunciation of criminal conduct is a relevant factor in the sentencing process. In the course of such denunciation, courts do and should have regard to the moral sense of the community and to community expectations of appropriate punishment. Courts are, however, aware that the requirements of justice and the requirements of mercy are often in conflict, but that we live in a society which values both justice and mercy.[34]
[33][1997] (Unreported, Hunt CJ at CL, McInerney and Hulme JJ, New South Wales Court of Criminal Appeal, 30 October 1997), 5.
[34](1998) 45 NSWLR 209, 221.
The sentencing judge pointed out on the plea the importance of ‘giving the members of the community the sense of justice’ referred to by Mr Golding in his victim impact statement.[35] Unfortunately, in our view, the sentence imposed did not meet that important need.
[35]See [20] above.
As noted earlier, the total effective sentence of 12 months’ imprisonment was directed to be served by way of an intensive corrections order, with special conditions. Following an inquiry by the Court, we were told that Mr Neethling’s obligations under that order comprised:
·attending every Friday at the Office of Corrections, and working from 9:30 to 5:30 under the direction of a Corrections Officer, engaged in tasks such as the removal of graffiti;
·work every Saturday from 9:30 to 3:30, doing maintenance and cleaning of primary schools in Footscray;
·a half hour appointment with a counsellor on Mondays;
·signing on at the Corrections Office on Thursdays.
As Vincent JA commented during the hearing, the inconvenience to which these conditions subject Mr Neethling might be regarded as relatively light, when measured against the conduct for which he was sentenced. Although Mr Neethling is treated as serving a term of imprisonment, it is quite plain from this account that his position is fundamentally different from that of a person in custody.
On the plea, the prosecutor told the judge that his instructions were ‘an immediate custodial term but some suspended’. Following an enquiry from the judge, the prosecutor said that detention in a Youth Justice Centre – which could not be for a period longer than three years – would be within the available range.
The judge sought, and obtained, pursuant to s 96(3) of the Sentencing Act 1991 (Vic) (‘Sentencing Act’), a pre-sentence report on Mr Neethling’s suitability for a Youth Justice Centre order. The report confirmed that he was suitable and that he would ‘access all of the services, programs and supports offered within the Youth Justice system.’ The report recommended, however, that a community–based disposition would best serve Mr Neethling’s
current health and psychological needs, while assisting him to be a productive member of society. A custodial sentence may be detrimental to Mr Neethling, given his close and supportive relationship with his family and peers and his current offer to begin a university degree.
The report also recorded that Mr Neethling had ‘articulated an understanding that the Court may impose a custodial sentence in relation to the offences to provide a “deterrent to other young people” in the community.’
Conclusion
In our view, for the reasons given, the sentence imposed was manifestly inadequate. The sentence of nine months for the offence of dangerous driving causing death could not be reasonably justified in the circumstances, even allowing for Mr Neethling’s early plea of guilty, genuine remorse and good character. Likewise, in our view, the sentence of five months on each of the counts of dangerous driving causing serious injury failed to reflect either the seriousness of the injuries caused or the dangerousness of the driving. The same may be said of the cumulation of only one month on each of those counts.
There is, of course, a discretion in this Court not to intervene on a Crown appeal, even where manifest inadequacy is established. One consideration which may enliven that discretion is that the respondent – the sentenced person – received a non-custodial sentence at first instance. There is another consideration applicable here, namely that some six months has elapsed since the appeal was heard. Mr Neethling has had to live with the uncertainty of his position during that period.
In the circumstances, however, the sentence imposed on Mr Neethling cannot be allowed to stand. Given the circumstances as we have described them, there was no reasonable justification for a non-custodial sentence. In a case of high moral culpability, as this was, that sentencing option was simply not available.
We would therefore set aside the sentence imposed below, and resentence Mr Neethling as set out below. As invariably occurs when a Crown appeal succeeds, the sentence has been reduced to take account of the fact that Mr Neethling has been exposed to a form of double jeopardy. That is, sentence having been passed on him once, he has had to live with the uncertainty consequent upon the Director’s challenge to the sentence and, with it, the possibility that he would be resentenced to a custodial term.
There is another, quite unusual, circumstance which has obliged us to reduce the sentence below that which we would otherwise have imposed. Ordinarily, when a Director’s appeal succeeds and a sentence is increased, time served under the original sentence up to the date of this Court’s judgment is counted as pre-sentence detention for the purposes of s 18 of the Sentencing Act. But Mr Neethling has not been in custody, and s 18(2)(ba) makes clear that time spent under an intensive correction order may not be taken into account in calculating pre-sentence detention. Section 35(1) likewise confines the calculation of pre-sentence detention to periods when the person was ‘held in custody’.
Since, however, Mr Neethling has, for some 8 months, been subject to the restrictions imposed by the intensive correction order, that is a matter we have taken into account in determining the appropriate resentencing.
Resentencing
| COUNT | OFFENCE | SENTENCE | CUMULATION |
| 1. | Dangerous driving causing death | 2 years | Base |
| 2. | Dangerous driving causing serious injury | 12 months | 3 months |
| 3. | Dangerous driving causing serious injury | 12 months | 3 months |
| 4. | Dangerous driving causing serious injury | 8 months | 1 month |
| Total effective sentence: 2 years 7 months | |||
It was common ground on the appeal that this Court could rely for the purposes of s 32 of the Sentencing Act on the pre-sentence report which the judge had obtained. We share his Honour’s view that Mr Neethling’s prospects of rehabilitation are good. On that basis, we will direct that he serve his sentence in a Youth Justice Centre. He should be disqualified from obtaining a driver’s licence for a period of two years and seven months.
In accordance with s 6AAA of the Sentencing Act, we state that, if it had not been for Mr Neethling’s pleas of guilty, the total effective sentence would have been longer by one year.
APPENDIX A
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