Driscoll v The Queen

[2013] VSCA 366

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0129

JOHN GARY DRISCOLL	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, COGHLAN JA and DIXON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 August 2013
DATE OF JUDGMENT	13 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 366
JUDGMENT APPEALED FROM	DPP v Driscoll (Unreported, County Court of Victoria, 12 May 2011, Judge Taft)

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CRIMINAL LAW – Appeal – Sentence – Negligently causing serious injury (4 counts), unlicensed driving, unregistered vehicle – Total effective sentence 5 years, non-parole period 3 years 3 months – New evidence – Ill-health – Sentencing judge assumed appellant would have pain-relieving surgery – Surgery not available – Pain more severe than judge contemplated – Whether sentence should be reduced – Serious offending – High blood alcohol content – Serious injuries – Sentence reduction necessary to avoid miscarriage of justice – Appeal allowed – Non-parole period reduced to 2 years 9 months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
COGHLAN JA
DIXON AJA:

1. The appellant (now aged 42) pleaded guilty to four charges of negligently causing serious injury, and to summary charges of unlicensed driving, fraudulent use of a numberplate, fraudulent use of a registration label, and use of an unregistered motor vehicle.  He was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Negligently causing serious injury [Crimes Act 1958 (Vic) s 24]	10 y [Crimes Act 1958 (Vic) s 24]	3 y 3 m	Base
2	Negligently causing serious injury	10 y	3 y 3 m	6 m
3	Negligently causing serious injury	10 y	3 y 3 m	6 m
4	Negligently causing serious injury	10 y	3 y 3 m	6 m
Uplifted summary charge 22	Unlicensed driving [Road Safety Act 1986 (Vic) s 18(1)(a)]	25 penalty units or no more than 3 m [Road Safety Act 1986 (Vic) s 18(1)(a)]	Aggregate term of 4 m (for summary offences 22, 24 and 25)	3 m of the aggregate term is cumulative upon above sentence
Uplifted summary charge 23	Using an unregistered motor vehicle [Road Safety Act 1986 (Vic) s 7(1)(a)]	25 penalty units for a first offence or 30 penalty units for a second or subsequent offence [Road Safety Act 1986 (Vic) s 7(1)(a)]	Convicted and fined $200
Uplifted summary charge 24	Fraudulent use of a registration label [Road Safety Act 1986 (Vic) s 72(1)]	10 penalty units or 2 m [Road Safety Act 1986 (Vic) s 72(1)]	Aggregate term of 4 m (for summary offences 22, 24 and 25)
Uplifted summary charge 25	Fraudulent use of a number plate [Road Safety Act 1986 (Vic) s 72(1A)]	60 penalty units or 6 m [Road Safety Act 1986 (Vic) s 72(1A)	Aggregate term of 4 months (for summary offences 22, 24 and 25)
Total Effective Sentence:		5 y
Non-Parole Period:		3 y 3 m
Pre-sentence Detention Declared:		N/A
6AAA Statement:		6 y 6 m, with a non parole period of 4 y 9 m
Other orders: Cancellation of driver’s licence Disqualification from applying for another licence for no less than 7 y

1. Maxwell P and Priest JA granted leave to appeal on the following grounds:

1.Fresh evidence of the appellant’s health difficulties whilst in prison requires him to be resentenced by the Court of Appeal.

2.        The sentencing judge erred in neglecting to take into account delay or erred by failing to give sufficient weight to delay.

1. For reasons which follow, we would uphold the first of these grounds and resentence the appellant.  It is unnecessary to consider the second ground.  The total effective sentence of five years will be reimposed but the non-parole period will be reduced to two years and nine months.

Circumstances of the offending

1. Early one afternoon in May 2009, Mr Driscoll was driving an unregistered car with incorrect registration plates and registration label.  He was himself unlicensed, having been disqualified for four years in August 2005 for driving whilst disqualified and exceeding the prescribed concentration of alcohol.

1. He lost control of his car at a roundabout, veered onto the wrong side of the road and collided head-on with another car travelling in the opposite direction.  There were four occupants of that car, each of whom sustained serious injuries.

1. Nora Barakat was 80 years of age at the time.  She suffered fractures to her right wrist, left ulna, right femoral shaft, left proximal femur and to her T11 and T12 vertebrae.  She was hospitalised for several months and required extensive rehabilitation.  Ms Barakat stated in her victim impact statement: 

Due to the accident I was unconscious, then went into a coma for a couple of months, waking up in hospital not knowing who I was, where I was nor what had happened!  Being re-introduced to my family … I have no memory of what happened, just the pain and suffering till this day.  Still walking on the frame.

1. Natasha Mounif was the driver of the other car.  She sustained a whiplash injury to her cervical spine, lumbosacral musculoligamentous strain and soft tissue injury to her chest and right ankle.  Her victim impact statement revealed that she suffered severe neck, ankle, middle and lower back pain, requiring three months of physiotherapy and hydrotherapy.  She had been forced to employ another person to do her job running a family business.

1. Susan Chmait suffered a number of serious injuries including a comminuted oblique fracture of one ankle and major surgery to the other ankle.  She sustained an avulsion injury to the elbow and a nasal injury.  She states:

As a result of my injuries I have suffered greatly in my role as a wife, mother and a business woman.  I am a mother of seven children who could not cope with the ordeal that changed their social and day to day way of life.

Ms Chmait has suffered from depression and pain and suffering.

1. The final victim was Suzy Sleit.  She was a back-seat passenger in the other vehicle.  She was treated in hospital for a lacerated liver, a fractured left clavicle and extensive bruising and abrasions to the chest and abdomen.  She has suffered enduring pain.  In a lengthy victim impact statement, the consequences of the appellant’s driving upon Ms Sleit were graphically expressed: 

This constant battle with pain has taken its toll on me and on my family.  This is my life since the car accident — doctors, physiotherapists, chemists to change my medications as nothing seems to help me to cope with the pain.  I am frustrated at all I am no longer able to do — or that I need to do as the mother I want to be, and used to be able to be, for my children.  Constant pain affects my ability to respond with patience and care to the demands of my young family.  I can no longer play the way I used to with my children or be involved in the special family activities we enjoyed together, such as cooking special treats in the kitchen, making special preparations on birthdays, even just dressing my children or doing their hair to get them ready for school in the mornings.

The impact of my injuries also extends to my very sense of self-worth and my ability to feel good about myself as a woman.  I can no longer do the things that make a woman feel good about herself, I cannot wear heels.  I cannot wash or colour my own hair and had, in fact, to cut it so short so that I was better able to manage it.  I cannot do simple things, like paint my nails!

1. Ninety minutes after the accident, Mr Driscoll had a blood alcohol reading of 0.253 per cent.  The sentencing judge said:

That you drove when banned from driving is bad enough.  That you drove with such a high blood alcohol reading is a seriously aggravating feature of your conduct.[1]

[1]Reasons for judgment (Unreported, County Court of Victoria, 12 May 2011, Judge Taft) [11] (‘Reasons’).

1. Mr Driscoll was himself seriously injured in the accident.  He suffered a series of fractures and was hospitalised for several weeks.

1. The prosecution submitted that the appropriate sentencing range was between four-and-a-half and six years’ imprisonment for the head sentence, and between two-and-a-half and four years for the non-parole period.  The sentencing judge accepted that submission, saying:

In my view, the objective gravity of your offending is substantial.  The injuries that you have sustained cannot displace or obscure the great harm you have caused to four blameless citizens.[2]

[2]Ibid [22].

New evidence on appellant’s state of ill-health

1. The sentencing judge took into account information provided on the plea regarding Mr Driscoll’s injuries and the pain from which he continued to suffer.  As will appear, the information supplied to this Court in connection with the appeal demonstrates that Mr Driscoll’s condition has deteriorated since the time of sentence. In particular, his experience of pain is now markedly worse than the sentencing judge could have anticipated.

1. There is long-established authority in this Court that new evidence of this kind, showing the true significance of a matter considered on the plea, reopens the sentencing discretion.[3]  This is an exception to the principles governing sentence appeals, as it allows for the sentencing discretion to be reopened in the absence of demonstrated error at first instance.  The ‘new evidence’ exception is founded on the principle that the sentence may need to be reduced in the light of the new information in order to avoid a miscarriage of justice.

   [3]R v Eliasen (1991) 53 A Crim R 391; R v WEF [1998] 2 VR 385; R v Nguyen [2006] VSCA 184, [36]–[37].

1. At the time of sentence, the judge was satisfied that Mr Driscoll:

(a)       had severe pain at the right hip, which required constant opiates;

(b)      had been assessed as requiring a hip replacement;

(c)       suffered from ‘extremely severe’ symptoms of depression, anxiety and stress, and reported thoughts of suicide;  and

(d)      was ‘essentially housebound’ and required pain relief and anti-depressants on a daily basis.

1. His Honour said:

I accept that your physical injuries and the reduced possibilities of post-operative rehabilitation within a prison environment, together with your serious depression, will cause your sentence to weigh more heavily upon you than a person in good physical and mental health.[4]

As appears from his Honour’s reference to ‘post-operative rehabilitation’, the common assumption at the time of the plea was that Mr Driscoll would be having hip replacement surgery in the near future and that there would, as a result, be some significant reduction of his pain.  Defence counsel told the judge that Mr Driscoll was due to attend the Alfred Hospital the following week for a ‘pre-admission clinic’ and that this indicated the operation ‘may be soon’.  Counsel said that the operation had been categorised as ‘semi-urgent’, meaning that it should occur within 90 days. 

[4]Reasons, [21].

1. Counsel pointed out that, even after the operation, Mr Driscoll would remain on crutches for some time.  It was submitted that imprisonment would be ‘very burdensome’ for him, because of the

cumulative effect of a number of factors.  There are the physical injuries accompanied by pain;  the use of crutches;  the fact that any post-operative rehabilitation will occur within a prison environment and not in the comfort of his home, and not with the care of close friends.

1. The common assumption proved to be unfounded.  The hip replacement surgery did not take place.  Mr Driscoll was subsequently seen by an orthopaedic surgeon who concluded that a total hip replacement was required but that it was not appropriate at that time, given that the hip replacement prosthesis would last only five to 10 years.  The surgeon advised that analgesia would be ‘the mainstay of [Mr Driscoll’s] treatment at the moment’.

1. A separate medical report obtained on behalf of Mr Driscoll confirmed that hip joint replacement was a procedure ‘designed to improve function and reduce pain’.  That surgeon’s view was that surgery would improve Mr Driscoll’s quality of life.

1. In an affidavit filed in support of the appeal, Mr Driscoll said that, for the first five months of his imprisonment, he was ‘in serious pain most of the time as I didn’t have access to the level of medication that I had outside of prison’.  He was then put on methadone for pain relief but, as was pointed out by his counsel on the appeal, the methadone is administered only once each day, at 2:00pm.  Its analgesic effect is said to last only six to eight hours, with the result that Mr Driscoll goes much of the day without proper pain relief.  The notes kept in the Justice Health file confirm that Mr Driscoll has had ongoing difficulties with pain management and has been regularly reporting to the health authorities that the medication he is receiving is inadequate.

1. As indicated earlier, we are satisfied that Mr Driscoll’s pain is more severe, and will last for much longer, than the sentencing judge could have anticipated.  The sentencing decision was made in the expectation that, in the relatively near future, Mr Driscoll would have hip replacement surgery and that there was likely to be a significant improvement in his pain experience.  As we have explained, that has not occurred.  The ‘true significance’ of Mr Driscoll’s condition is therefore quite different.[5]

   [5]Cf R v McLachlan (2004) 8 VR 403, 407-8 [11]–[13].

Should a different sentence be imposed?

1. Senior counsel for the Director submitted that the sentence imposed was moderate, given the seriousness of the offending, and that the sentencing judge must therefore have already factored in a very significant discount on account of Mr Driscoll’s physical and mental ill-health.  According to the submission, no further sentencing discount could reasonably be justified, even if the Court were satisfied that Mr Driscoll’s condition was worse than the judge had anticipated.

1. This was, on any view, very serious offending.  As counsel for the Director pointed out, Mr Driscoll had a very high blood alcohol reading;  his driving was grossly negligent;  and the injuries caused were serious indeed.  Moreover, Mr Driscoll had relevant prior convictions, which bore upon specific deterrence and community protection.

1. We are nevertheless satisfied that, had the information available to this Court been available to the sentencing judge, a lower non-parole period would in all likelihood have been fixed.  It would be unjust for the sentence to remain unchanged, in our view, given the very significant change of circumstances that has occurred since the plea, and the serious adverse impact on Mr Driscoll.

1. There was debate on the appeal about the appropriate sentencing range for this offending.  It is unnecessary for the disposition of the appeal for us to explore that issue.  Our decision to reimpose the head sentence of five years reflects our view that that sentence was wholly appropriate in the circumstances.  Whether a more severe sentence would have been within the available range is a question which does not arise.

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