Gorladenchearau v The Queen
[2011] VSCA 432
•16 December 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0894
| PRASAD GORLADENCHEARAU | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | MAXWELL P, ASHLEY JA & ROSS AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 August 2011 | |
DATE OF JUDGMENT: | 16 December 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 432 | |
JUDGMENT APPEALED FROM: | R v Gorladenchearau (Unreported, County Court of Victoria, Judge Gullaci, 17 July 2009) | |
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CRIMINAL LAW – Appeal – Sentence – Driving offences – Negligently causing serious injury – Gravity of offending assessed by reference to culpability and harm – Culpability a function of degree of risk and extent of likely harm – Relevance of effect on victim– Increase to maximum penalty – Review of current sentencing practice – Sentence manifestly excessive in light of recent sentencing practice – Whether current sentencing practice adequately reflects increase in maximum penalty – Appeal allowed – Appellant resentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce | Slade & Parsons |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
This appeal principally concerns sentencing for the offence of negligently causing serious injury (‘NCSI’), contrary to s 24 of the Crimes Act 1958 (Vic) (‘Act’). The maximum penalty for NCSI was doubled in early 2008, from 5 years’ imprisonment to 10 years’ imprisonment,[1] following a recommendation to that effect by the Sentencing Advisory Council (‘SAC’).[2]
[1]By the Crimes Amendment (Child Homicide) Act 2008 (Vic), which also doubled the maximum penalty for dangerous driving causing death, from 5 years’ imprisonment to 10 years’ imprisonment.
[2]Sentencing Advisory Council, Maximum Penalty For Negligently Causing Serious Injury, (2007) (‘SAC Report’).
The appellant pleaded guilty to two counts of NCSI. These were driving related offences, as is almost invariably the case when a charge of NCSI is laid.[3] The appellant also pleaded guilty to two counts of recklessly engaging in conduct which placed another person in danger of serious injury, contrary to s 23 of the Act. The maximum penalty for that offence is 5 years’ imprisonment. He was sentenced as set out in the table below:
[3]The SAC’s review of NCSI offences prosecuted in the County Court in the period 2000–01 to 2005–06 showed that 95.8 per cent were driving related: SAC Report p 32.
Count Offence Maximum penalty Sentence Cumulation 1 Negligent driving causing serious injury (Crimes Act 1958 (Vic), s 24) 10y 5y Base 2 Negligent driving causing serious injury (Crimes Act 1958 (Vic), s 24) 10y 3y 12m 3 Reckless conduct endangering serious injury (Crimes Act 1958 (Vic), s 23) 5y 12m 3m 4 Reckless conduct endangering serious injury (Crimes Act 1958 (Vic), s 23) 5y 12m 3m Summary charge Driving without licence 3m $500 Total effective sentence: 6y 6m Non-parole period: 4y Section 6AAA Statement: 8y with a non-parole period of 5y 6m Other orders:
Licence cancelled and disqualified for period of 4y from the date of sentence
The circumstances of the offending
On 23 August 2008, at approximately 2:30 am, the appellant was driving a 1990 Nissan Skyline west along the Princes Highway (Dandenong Road), approaching Springvale Road. He had one passenger. He was travelling at approximately 88 kph in an 80 kph zone. The appellant drove through a red light at the intersection of Princes Highway and Springvale Road. He applied the emergency brakes, which caused the vehicle to skid and the tyres to lock.
A 1997 Mitsubishi Lancer was travelling south on Springvale Road, towards the intersection with the Princes Highway. There were three people in the car, the driver, Emma Borg, and two passengers, Joel Wykes and Claire Phillips.
As the appellant’s car entered the intersection, it collided with the Lancer. Immediately before the collision, the appellant’s car was travelling at between 62 and 66 kph and the Lancer at between 31 and 42 kph. The Lancer spun around and the front of the vehicle hit a light pole on a traffic island, with sufficient force to break the light pole.
All three occupants of the Lancer were injured. Joel Wykes sustained a small haematoma and some abrasions. Emma Borg sustained a fractured eye socket, a closed head injury and loss of consciousness and some bruising. The most seriously injured of the three was Claire Phillips, who sustained a closed head injury causing traumatic brain damage.
A sample of blood taken from the appellant indicated a blood alcohol concentration of 0.13 per cent. The appellant did not have a Victorian driver’s licence. The prescribed concentration of alcohol was therefore zero.
Uncontested evidence called by the prosecution from an expert in accident reconstruction showed that the appellant’s vehicle was over 270 metres from the intersection when the traffic light turned to red. At least 13.1 seconds had elapsed between the time the light changed to red and the time when the appellant’s car collided with the Lancer.
There was also unchallenged evidence that the appellant’s blood alcohol concentration of 0.13 per cent would have adversely affected his ability to drive a motor vehicle and that he would have been ‘incapable of having proper control’ of the vehicle.
Victim impact
Claire Phillips sustained what Professor Stephen Davis, a neurologist, described as ‘extremely severe brain injuries’. According to Professor Davis’ report, Ms Phillips is reliant on attendant care and confined essentially to the home. She has very limited mobility and no capacity for work or domestic tasks. She was previously a State softball champion and played competitive baseball, but is unable to pursue these activities. Professor Davis said her neurological prognosis was ‘poor … in that she will always require a significant degree of supervision in routine daily activities and is unemployable.’
Victim impact statements were provided by each of Ms Phillips’ parents and by her brother. They were read out on the plea. In his sentencing reasons, the judge said:
The primary victim in this case, Claire Phillips, was and no doubt in the eyes of her family, still is, a beautiful and then independent young woman, who had her life destroyed your criminal conduct.
As her mother said in her moving victim impact statement, ‘Claire didn’t lose her life at about 2.30 am on Saturday 23 August 2008, but the life she had was, indeed, lost, as was mine.’
You, by your criminal conduct, have shattered the life, dreams and expectations of a young woman forever. Hers is a life sentence.
You have also destroyed the emotional, physical and financial lives of her parents and severely affected her brother. The victim impact statements of Brian Phillips, Pamela Phillips and Stuart Phillips, movingly, starkly and vividly, set out the nightmare which is now their day to day existence.
I heard those statements been read by the prosecutor, and I have re-read them.[4]
His Honour added:
It is hard for the court to appreciate fully, and understand the depth, width of their despair, loss and the fact that they face a future dominated by their love, concern, uncertainty and fear for their child and sister, Claire Phillips.
The other victims should not be forgotten. Emma Borg, the driver of the other vehicle, apart from the physical injuries that she suffered, is still paying for the car that you destroyed. She suffers nightmares and she has lost a role model and a person that she regarded as her sister.[5]
[4]R v Gorladenchearau (Unreported, County Court of Victoria, Judge Gullaci, 17 July 2009), [52]‑[56] (‘Reasons’).
[5]Ibid [57]–[58].
His Honour then continued as follows, in a passage which has given rise to two grounds of appeal:
You, in the future, will have an opportunity to pick up the pieces of your life. You, by your criminal conduct, have denied that opportunity to Claire Phillips. In my view, your moral culpability is at the highest level.
I turn to matters of significance.
1. The following aggravating features.
A.That you drove a motor vehicle after drinking significant alcohol in order to achieve the reading that you had at the time.
B.That you [were] incapable of having proper control of your vehicle as a result of the alcohol ingestion.
C. That you were speeding through the intersection.
D. That you drove through a red light.
E.The impact of your criminal offending on all the victims, but in particular Claire Phillips.
F. That you were not licensed to drive at the time.
2.Matters personal to you including (a) that you have no prior convictions, (b) that you have good prospects for rehabilitation, (c) that you are genuinely remorseful, and the impact of the accident on you, personally, (d) your age.
3. The importance of general deterrence.
4.That all the offences occurred in the one course of conduct and the principle of totality must be applied in the circumstances of your case.[6]
[6]Ibid [59]–[63] (emphasis added).
Driving-related offences
The Act contains a variety of offences which can be charged when driving causes death or injury (or creates a risk of death or injury). Some are driving-specific offences, others not. Following the 2008 increases in the maximum penalties for NCSI and dangerous driving causing death, the hierarchy of offences is as follows:
DRIVING OFFENCES[7] Crimes Act section Offence Maximum Section 318
Culpable driving causing death (CDCD)
(s 318(2)(b): gross negligence)20y
Section 319(1) Dangerous driving causing death (DDCD) 10y Section 24 Negligently causing serious injury (NCSI) 10y Section 319(2) Dangerous driving causing serious injury (DDSI) 5y Section 23 Recklessly creating a danger of serious injury (RDSI) 5y [7]It appears that driving charges are rarely, if ever, laid under s 22 (recklessly engaging in conduct that places another person in danger of death). The charge of recklessly causing serious injury under s 17 appears only to be used where the vehicle is deliberately used in such a way as to cause injury: see, for example, DPP v Massey [2008] VSCA 254, [6]; cf R v Cropley (2009) 52 MVR 167.
The offences under ss 318 and 319 of the Act are driving-specific offences, while those under ss 23 and 24 are not.
Importantly, the SAC in its 2007 Report on NCSI decided against recommending a new offence of ‘culpable driving causing serious injury’, recommending instead a doubling of the maximum penalty for NCSI. The SAC Report said:
While we note the strong support for introducing a new offence, we believe the original rationale for creating separate driving-related offences for conduct covered by other broader offences no longer applies. The offence of culpable driving causing death was introduced at a time when driving-related harm and the level of culpability involved on the part of drivers was less widely recognised, and juries were reluctant to categorise this conduct as manslaughter. Some 40 years later, we believe there is widespread community acceptance of the seriousness of driving-related offending and, on this basis, no need to separate this behaviour from other contexts in which serious injury may result.
The Council is particularly concerned that creating such an offence would risk producing a false dichotomy between driving and non-driving related instances of NCSI. It may also act as a precedent for the creation of further offences to address specific circumstances of offending and contexts in which offending behaviour occurs, leading to an unnecessary proliferation in the number of offences.
The Council believes that the serious nature of the injuries that can potentially fall within the scope of NCSI, regardless of the circumstances in which they are committed, justifies an increase in the maximum penalty in order to provide for the worst examples of that offence. We recommend, therefore, that the maximum penalty for NCSI be increased to ten years.[8]
[8]SAC Report p 46; see also Law Reform Commission of Victoria, Death Caused By Dangerous Driving, Report No 45 (1992) 10–11.
Whether the current amalgam of driving-specific and generic offences should be maintained is a question which warrants further attention in the light of those views.
Assessing the gravity of driving-related NCSI: culpability and harm
As the SAC Report noted, the offence of NCSI is made out when it is proved (or admitted) that:
·a person did or omitted to do something;
·that act or omission was culpably negligent; and
·that act or omission caused serious injury to another person.
In order for the prosecution to establish that the accused was culpably negligent, it must establish that the:
act or omission [took] place in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that grievous bodily injury would follow, that the act or omission merits punishment under the criminal law.[9]
This is the same level of negligence as is required to be established for CDCD, where the head of culpability alleged is negligence.[10]
[9]R v Shields [1981] VR 717. The Full Court adapted the test for negligently causing serious injury from the test applicable for negligent manslaughter as defined in Nydam v The Queen [1997] VR 430, 444–5. See also DPP (Vic) v Gany (2006) 163 A Crim R 322, 330–31 [28] (Chernov, Vincent and Redlich JJA).
[10]Section 318(2)(b).
As the SAC noted, this formulation can be contrasted with the civil standard of negligence. In Andrews’ case, it was held that ‘simple lack of care such as will constitute civil liability is not enough’.[11] In R v Wright,[12] Callaway JA (with whom Phillips CJ and Charles JA agreed) endorsed the following further statement from Andrews’ case:
[T]he facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.[13]
The prosecution also has to prove that the negligent driving was the ‘operating and substantial cause’[14] of the victim’s serious injury.
[11]Andrews v DPP [1937] AC 576, 583 (Lord Atkin) as cited in Nydam v The Queen [1977] VR 430, 442.
[12][1999] 3 VR 355.
[13]Ibid 359, citing Andrews v DPP [1937] AC 576, 582-3.
[14]R v Bingapore (1975) 11 SASR 469, 480; R v Hallett [1969] SASR 141; R v Bristow [1960] SASR 210; Re Evans (No 2) [1976] VR 523; R v Smith [1959] 2 All ER 193. See further Bernadette McSherry and Simon Bronitt, Principles of Criminal Law (Thomson, 2nd ed, 2005) 163–172 for a discussion of the tests for causation.
Because the level of negligence required to be established for NCSI is the same as that for CDCD (where the head of culpability alleged is negligence), the key difference between the two offences is whether the victim dies or is seriously injured. Central to the SAC’s decision to recommend an increase in the maximum for NCSI was the widely-expressed concern that the maximum of 5 years did not enable sentencing for the offence to reflect ‘community concern about the devastating consequences of culpably negligent driving’[15] or, more particularly, the severity of some of the resulting injuries.
[15]SAC Report, 29.
The Council said:
In our view the disparity between the maximum penalty for culpable driving causing death (20 years’ imprisonment) and NCSI (5 years’ imprisonment) cannot be justified. As a number of submissions recognised, the injuries to a victim resulting from this offence can be extremely serious and debilitating, including severe and permanent brain injury, quadriplegia/paraplegia and loss of limbs. The ongoing and substantial impact these types of injuries are likely to have on a victim should not be underestimated.[16]
Part of the justification for the increases in the maximum penalty for culpable driving is that it reflects a particular attitude or community concern about the circumstances in which it occurs. The same justification exists in relation to offences of NCSI where it arises out of the use of a motor car. A number of judges who have criticised the maximum penalty for NCSI have referred to the similarity in circumstances between culpable driving causing death and that particular class of offences of NCSI. A person’s culpably negligent driving may cause the death of one person and the serious injury of another. In a case where the serious injury is at the top end of the range, it is inconsistent that the offender should be liable to a maximum penalty of 20 years in relation to the offending against the deceased victim and only five years in relation to the seriously injured victim.[17]
[16]SAC Report, 41.
[17]SAC Report, 43.
The same concern, about the need to recognise degree of harm caused, was expressed by the then Attorney-General when introducing the Bill to double the maximum penalty:
[T]he concern with negligently causing serious injury is that the statutory maximum is too low. The [Victorian Sentencing Advisory Council] has recommended that the maximum penalty be increased from five years to 10 years’ imprisonment. This will recognise the harm caused by the offender more adequately than the existing maximum penalty.
Many of the most serious negligently causing serious injury offences are connected with motor vehicle collisions. …
The bill increases the maximum penalty … to 10 years. This places greater emphasis on the harm caused by the offence, in line with the Government’s continuing comment to road safety.[18]
[18]Victoria, Parliamentary Debates, Legislative Assembly, 6 December 2007, 4414 (Rob Hulls, Attorney-General)
The present case
The objective gravity of the present offending was, accordingly, to be assessed by reference to both the degree of negligence and the seriousness of the injury caused. As to the first, I consider that the appellant’s negligence was of a very high degree. The objective features of his driving demonstrated a very great falling short of the standard of care required.
As has already been described:
·the appellant was not licensed to drive in Victoria. As he must have known, he should not have been on the road at all;
·the appellant was driving with a blood alcohol concentration of 0.13 per cent. (As noted earlier, the prescribed concentration for an unlicensed driver is zero);
·his state of intoxication was such that he was not in a position to maintain proper control of his vehicle, as he must have realised;
·so great was his lack of attention that, although the traffic light changed to red when his car was more than 270 metres away from the intersection, he still drove through the red light; and
·he was driving at 10 per cent above the applicable speed limit.
As appears from the illuminating analysis in the SAC Report,[19] negligent driving sits above dangerous driving in the ‘culpability hierarchy’. Since both types of driving create danger to others,[20] the factors which bear on the objective dangerousness of the driving are, nonetheless, helpful in assessing the culpability of the driving where the charge laid is NCSI.
[19]Pages 14–15.
[20]McBride v The Queen (1966) 115 CLR 44, 49-50 ; Jiminez v The Queen (1992) 173 CLR 572, 579.
As this Court pointed out in R v Towle,[21] the sentencing court’s assessment of the dangerousness of a person’s driving is informed by the extent of the risk which it created. The extent of the risk includes both the likelihood that something will go wrong, and the extent of the harm which will result if it does. What was said by this Court in R v De Montero[22] is pertinent:
The degree of risk or danger arising from the driving informs the characterisation of the driving. That is to say, the degree of turpitude of the driving will vary according to the gravity of the risk created by the driving.[23] Thus Wells J in Pope v Hall[24] considered that the combination of the following two factors determined how dangerous the driving was:
the degree of risk that something untoward will happen, and the degree of risk that if something untoward does happen, the damage caused will be more, rather than less serious.[25]
In short, ‘dangerousness of driving is informed by the degree of risk of harm being caused and the extent of potential harm.’[26]
[21](2009) 54 MVR 543, 563 [66].
[22](2009) 198 A Crim R 68, 87 [55].
[23]R v Seymour [1983] 2 AC 493, 506–7 (Lord Roskill).
[24](1982) 30 SASR 78.
[25]Ibid 79. Pope v Hall was applied in Firth v Prestwood (1987) 44 SASR 427; Owen v Connellan (1991) 53 A Crim R 236; Senior v Police [2005] SASC 88.
[26]R v De Montero (2009) 198 A Crim R 68, 89 [63].
Objectively, the appellant’s driving – over the speed limit and well over the permitted blood alcohol limit – created a high risk of harm. The risk was that, in his intoxicated condition and at excessive speed, the appellant would not (be able to) keep a proper look out, and would be unable to deal safely with any sudden eventuality. The magnitude of that risk was revealed by his complete failure to see the red light as he approached it, over a distance of almost 300 metres.
As to the extent of the potential harm, the appellant’s inability to maintain a proper lookout meant that, when he was approaching any intersection, it was likely that if the risk eventuated, very grave harm would be caused. Both these matters – the degree of risk and the extent of likely harm – made the appellant’s driving extremely dangerous, whether he realised it or not.[27]
[27]McBride v The Queen (1966) 115 CLR 44, 50.
As to the victim impact, permanent brain damage is, of course, at the highest end of the scale of serious injury. It is not an exaggeration to say that the primary victim’s life has been destroyed by the appellant’s negligent driving. The combination of very high culpability and extreme harm means that – as a matter of objective gravity – this was a very bad instance of the offence, perhaps amongst the worst that might be encountered.
Ground 2: moral culpability
As noted earlier, complaint is made about his Honour’s finding that the appellant’s ‘moral culpability is at the highest level’. The submission for the appellant was that, even taking into account his blood alcohol reading and excessive speed
it was not open to say that the appellant’s moral culpability was at the highest level. Such category of case usually involves evidence of severely reckless or high handed driving, or, at the least, suggestions that the driver has driven in such manner before (namely, has a poor driving record) and/or has been warned against driving or driving errantly on the occasion in question but has continued on nevertheless. This was not such a case.
For the reasons I have already given, I would reject this submission. Counsel for the appellant conceded in the course of argument that his client’s culpability was ‘at a very high level’. The difference is one of emphasis, and these matters cannot be weighed to a nicety. In my view, the conclusion that the appellant’s moral culpability was at the highest level was well open to his Honour in the circumstances of the case.
As appears from the extract from the sentencing reasons set out above, his Honour’s statement about the appellant’s moral culpability appeared immediately after the description of the impact of the offending on the victims. The submission for the appellant was that this juxtaposition revealed error, in that his Honour must have impermissibly taken into account the extent of the injuries caused in assessing moral culpability.
I do not accept this submission either. First, it seems to me to be equally likely that the statement about culpability was made by way of introduction to the list of aggravating factors which immediately followed it. Given the pressures on sentencing judges, in both the delivery and the revision of sentencing reasons, I would hesitate before attaching too much significance to the location of a paragraph break. Secondly, and in any event, his Honour’s finding on culpability was fully warranted by the appellant’s negligence, irrespective of its catastrophic impact.
Ground 3: effect upon the victim
On this ground, it is contended that the judge
erred by placing excessive weight upon the effect of the appellant’s offending upon the victims of the offences.
Axiomatically, a complaint about the weight given to a particular sentencing consideration is not a ground of appeal. As this Court has explained in Director of Public Prosecutions (Vic) v Terrick[28] and again in Scerriv The Queen,[29] the bringing together of relevant considerations in a sentencing decision does not involve – could not involve – the attribution of quantitative significance to individual qualitative factors.[30] The only way in which this Court can evaluate a complaint about the weight given to a particular consideration is as a particular of the manifest excess ground. Under that ground, the Court will examine the sentence actually imposed, and ask whether it was reasonably open to the judge to impose that sentence if appropriate weight were given to all relevant factors.[31]
[28](2009) 24 VR 457, 459–60 [5].
[29][2010] VSCA 287, [22]–[24], [30].
[30]See also Mamonitis v The Queen [2011] VSCA 370, [8].
[31]Clarkson v The Queen [2011] VSCA 157, [89].
The appellant’s written submission made particular complaint about the judge’s having drawn a comparison between the respective positions of the appellant and of the principal victim. His Honour said:
You, in the future, will have an opportunity to pick up the pieces of your life. You, by your criminal conduct, have denied that opportunity to Claire Phillips. In my view, your moral culpability is at the highest level.[32]
[32]Reasons, [59].
The submission for the appellant conceded that the judge was entitled – indeed, as a matter of law, bound[33] – to take into account the effect on the victim(s). Nevertheless, it was said:
the comparative difference in the effect upon the appellant and Ms Phillips was not a proper point of significance in itself in the imposition of sentence.
[33]Sentencing Act 1991 (Vic) s 5(2)(daa).
In my view, that complaint is without substance. There was indeed a stark contrast between the position of the appellant, who suffered no injury in the collision, and that of Ms Phillips, as the appellant’s counsel properly acknowledged. There could be no objection to the making of the comparison, in my view. It was simply a way of highlighting the gravity of the consequences for the principal victim.
Ground 1: manifest excess
It was submitted for the appellant that the total effective sentence, the individual sentences (in particular, those imposed on the two counts of NCSI) and the non-parole periods were all manifestly excessive. Reliance was placed on the following matters, which had to be taken into account in mitigation:
(a) the early pleas of guilty;
(b) the appellant’s relative youth (25 at the time of the offending);
(c) his good work and educational history;
(d) his ‘marked psychological reaction’ since the accident, which has resulted in a diagnosis of post-traumatic stress disorder;
(e) his intense regret and self-reproach;
(f) his lack of prior convictions and good prospects of rehabilitation;
(g) the isolation that he will suffer in prison given that his family is in India; and
(h) the impact of imprisonment on his ability to continue study and, perhaps, to obtain Australian citizenship.
The submission for the Crown was that the sentences imposed were within the range reasonably open to the judge. It was said that, having regard to the increase in the maximum penalty, the objective gravity of the offence and the injuries caused, it was reasonably open to the judge to impose the sentences which he did.
For reasons which follow, I have concluded that the sentence of 5 years’ imprisonment imposed on count 1 was outside the range open to the judge in the circumstances of this case. It follows that the appeal must be allowed and the appellant resentenced.
Sentencing practice following the increase in the maximum penalty
The increased maximum of 10 years’ imprisonment applies to NCSI offences committed after 18 March 2008. It was not until June 2010, however, that this Court first had occasion to examine a sentence imposed for an offence of driving-related NCSI to which the new maximum applied.[34] Since then, three other appeals have been decided which concern sentences imposed for driving-related NCSI under the new maximum.[35] In each of those cases, the driver had also been sentenced for the more serious offence of CDCD, and it was the sentence on that count to which most attention was directed on the appeal.
[34]Pollard v The Queen [2010] VSCA 156 (‘Pollard’).
[35]Mok v The Queen [2011] VSCA 38 (‘Mok’); Brayshaw v The Queen [2011] VSCA 233 (‘Brayshaw’); and Shields v The Queen [2011] VSCA 386 (‘Shields’).
This is the first occasion on which submissions have been addressed to the significance of the increase in the maximum penalty for NCSI. The sentencing judge did not have the benefit of any such submissions. Nor, at the date of sentence, had there been any appellate consideration of sentences for NCSI under the new maximum.
These decisions are, nonetheless, directly relevant to a consideration of the range reasonably available to the sentencing judge in the circumstances of this case. That is so because cases of driving-related NCSI have a shocking similarity. The critical features recur: speed, inattention, intoxication (alcohol or drugs) and (often) prior convictions for driving offences. As a result, they form a class of cases – as do cases of CDCD,[36] and cases of glassing as a species of recklessly causing serious injury[37] – where sentencing comparisons are more readily drawn than in relation to other offences, such as manslaughter, which are characterised by an infinite variation of circumstances. As the present appeal illustrates, the ready comparability of cases means that sentencing disparities are more starkly exposed.
[36]DPP v Johnstone (2006) 16 VR 75, 80 [18], 85-6 [34] (Appendix 1 to the judgment of Warren CJ).
[37]Winch v The Queen (2010) 27 VR 658, 664 [32].
I shall deal with the four NCSI appeals in chronological order. In Pollard, the defendant had a blood alcohol concentration of 0.181 per cent and was travelling at ‘considerable speed’ when the collision occurred. He had no prior convictions. The victim suffered serious injuries to both legs, has continuing pain and some limitation of movement. The Court dismissed an appeal against a sentence of 3 years and 6 months for NCSI, saying:
These were both serious examples of the relevant offending. The combination of a high blood alcohol reading, and driving at considerable speed in an emergency lane, leading to a collision with a well-lit truck that was clearly visible, establishes a high degree of negligence on the part of the appellant. … Deterrence, both general and specific, as well as denunciation of the appellant’s conduct must be of primary importance in sentencing for these offences.
In addition, [the victim’s] injuries were obviously serious, and likely to leave him permanently affected. The legislature, having … increased the maximum penalty for negligently causing serious injury from five years to ten years, has made its views regarding conduct of this kind abundantly clear. Those who cause serious injury to others through driving whilst intoxicated must surely, by now, expect to be punished severely.[38]
[38]Pollard [2010] VSCA 156, [32]–[33].
In Mok,[39] the driver had a blood alcohol reading of between 0.180 and 0.195 per cent. (Because he had a recent prior conviction for drink driving, the applicable limit was zero.) At the time of the collision, he was travelling at 125 kph in a 60 kph zone. In addition to the prior conviction for drink driving, he had had his licence suspended for exceeding the speed limit by 30 kph. The victim suffered a severe closed head injury. At the date of sentence she had not been able to undertake complex tasks such as driving or returning to work.
[39]Mok [2011] VSCA 38.
The driver was sentenced to 4 years’ imprisonment on the count of NCSI (and to 7 years’ imprisonment on one count of CDCD). On appeal, the NCSI sentence was reduced to 3 years and 6 months, and the CDCD sentence to 6 years and 6 months. The forgiveness of the victims’ families, and his sincere remorse, were viewed as signification considerations.
In Brayshaw,[40] the driver had been travelling at 122 kph in a 70 kph zone. He was drug-affected at the time. He was only on the road, however, because of an urgent request from friends of his who ‘wanted help to escape from a situation which was awkward, if not dangerous’. He had prior convictions ‘for drink driving and other traffic offences’. His appeal against a sentence of 2 years for NCSI (and a sentence of 8 years for CDCD) was dismissed.
[40]Brayshaw [2011] VSCA 233.
Finally, in Shields[41] (decided only a matter of weeks ago), the driver had a blood alcohol concentration of 0.221 per cent. He was travelling at 77 kph in a 60 kph zone. He had two prior convictions for drink driving and a further prior conviction for driving at a dangerous speed, for each of which his licence had been cancelled. The victim suffered ‘very severe traumatic brain damage’. It was likely that ‘some of his physical and cognitive deficits’ would be permanent. On appeal, the sentence of 5 years’ imprisonment for NCSI was reduced to 4 years. (A sentence of 10 years for CDCD was reduced to 8 years.) The Court emphasised the importance of current sentencing practice, and consistency in sentencing, in determining the applicable range.[42]
[41]Shields [2011] VSCA 386.
[42]Ibid [18]–[19], [42]–[45].
Unconstrained by these appeal decisions, I would not have interfered with the sentence imposed. Although the sentence imposed on count 1 represented 50 per cent of the new maximum, it was in my opinion justified having regard to:
(a) the very high degree of negligence;
(b) the catastrophic injury sustained by Ms Phillips; and
(c) the recognised importance of general deterrence in sentencing for offences of this character.[43]
[43]See DPP (Vic) v Gany (2006) 163 A Crim R 322, 333–4 [35].
It seems to me that the injuries which Ms Phillips sustained make this a case of precisely the kind which the Sentencing Advisory Council – and the Attorney-General – referred to as justifying the doubling of the maximum. Notwithstanding the appellant’s lack of prior convictions, I consider that the sentence was open.
As senior counsel for the Director pointed out, sentences well above 50 per cent of the maximum were not uncommon before the maximum was increased. In Director of Public Prosecutions (Vic) v Albert,[44] this Court referred to three decisions in which sentences of 3 years and 6 months’ imprisonment, imposed at a time when the maximum penalty was 5 years, were upheld.[45] Such a sentence represented 70 per cent of the applicable maximum. In each of those cases, the driver had a very bad driving record, unlike the present appellant, but parity of reasoning would suggest that sentences of above 5 years will be called for when such cases arise under the new maximum.
[44][2010] VSCA 75.
[45]R v Brown (2003) 39 MVR 293; R v Fackovec [2007] VSCA 93; R v Healey (2008) 186 A Crim R 433.
The recent decisions cannot, of course, be ignored. On the contrary, they bring into play the critically important principle of consistency of sentencing, that is, the foundational requirement of the rule of law that like cases be treated alike.[46] Having regard, in particular, to the decisions in Mok[47] and Shields,[48] the sentence of 5 years’ imprisonment on count 1 cannot be reasonably justified, in my view.
[46]See Hasan v The Queen [2010] VSCA 352, [48]–[49]; and see Green v The Queen [2011] HCA 49, [28]-[32] (French CJ, Crennan and Kiefel JJ).
[47]Mok [2011] VSCA 38.
[48]Shields [2011] VSCA 386.
In Mok, both the speed and the level of intoxication far exceeded those in the present case, and the driver had a recent prior conviction for drink driving. As already noted, his sentence on the NCSI count was reduced from 4 years to 3 years and 6 months. In Shields, while the speeding was comparable to that in the present case, the level of intoxication was far greater and the driver had two prior convictions for drink driving and one for driving at a dangerous speed. The sentence was reduced from 5 years to 4. The injury caused, though not quite as grave as in the present case, was nevertheless very serious.
In those circumstances, in my view, there is an unjustifiable disparity between the sentence imposed on the appellant on count 1 and the sentences for NCSI imposed on those offenders. As the High Court recently affirmed, unjustifiable disparity is an infringement of the equal justice norm.[49] I would therefore allow the appeal, and re-sentence the appellant on count 1 to 4 years’ imprisonment. I would re-impose the same sentences on the other counts, and would make orders for cumulation as follows:
[49]Green v The Queen [2011] HCA 49, [32].
Count Offence Maximum penalty Sentence Cumulation 1 Negligent driving causing serious injury
(Crimes Act 1958 (Vic), s 24)10y 4y Base 2 Negligent driving causing serious injury
(Crimes Act 1958 (Vic), s 24)10y 3y 6m 3 Reckless conduct endangering serious injury (Crimes Act 1958 (Vic), s 23) 5y 1y 3m 4 Reckless conduct endangering serious injury (Crimes Act 1958 (Vic), s 23) 5y 1y 3m Summary charge Driving without licence 3m $500 Total effective sentence: 5y Non parole period: 3y Section 6AAA Statement: 7y with a non-parole period of 5y Other orders:
Licence cancelled and disqualified for period of 4y from the date of sentence
In Mok v The Queen,[50] a case concerning a sentence for non-driving NCSI, Nettle JA said:
In the future it may be appropriate for this Court to consider whether sentencing practices for [NCSI] in cases involving injury to children adequately reflect the increase in the maximum penalty.
It follows from what I have said about the sentence on count 1 that similar consideration may also be necessary in relation to sentencing for driving-related NCSI.
ASHLEY JA
[50][2011] VSCA 247, [36].
ROSS AJA:
We agree with Maxwell P, whose reasons we have had the advantage of reading in draft, that grounds 2 and 3 should be rejected.
Respecting ground 2, we consider that it was open to the judge, having regard to all relevant circumstances, to characterise the appellant’s moral culpability as being of the highest order; a matter of importance to, but not decisive of, the sentence which should be imposed.
Respecting ground 3, consideration of the entirety of the sentencing disposition does not allow a conclusion that the judge overweighted the impact of what the appellant did upon his victims.
We next agree with the President that the appellant’s complaint of manifest excess is made out in respect of the sentence passed on count 1, but not in respect of any of the other sentences, or (save with respect to part cumulation of the sentence on count 2 on the sentence on count 1) the orders for cumulation.[51] It must be recognised that the appellant’s driving was extremely bad, that it was contributed to by alcohol abuse, and that he was an unlicensed driver at the time. Again, his offending conduct caused grave injury to one of his victims. Those circumstances told much in favour of a stern sentence. Even so, the appellant was able to call in aid a considerable number of mitigating circumstances. Further, so far as any current sentencing practice is discernible with respect to the offence with its now increased maximum penalty, the sentence which the judge imposed on count 1 appears out of kilter.
[51]This conclusion meets the totality complaint argued under cover of ground 4.
We have approached consideration of manifest excess on the footing that the Crown was well-entitled to prefer counts against the appellant alleging breach of s 24 of the Crimes Act 1958, notwithstanding that the circumstances might conceivably have been characterised as a very bad case of an offence against s 319(1A) of that Act – that is, of driving in a manner dangerous to the public and causing serious injury. Having regard to the described difference in the culpability involved in the two offences,[52] we accept that it would have been inappropriate to charge the appellant under the latter provision. Consistently with what we have just said, we agree with the submission of senior counsel for the Crown that, had any of the victims died, a prosecution would have appropriately been brought against the appellant under s 318 of the Crimes Act, rather than under s 319(1) of that Act.[53]
[52]In the case of s 24, see the analysis of its legislative predecessor in R v Shields [1981] VR 717. In the case of s 319(1) – it applies also to s 319(1A) – see R v De Montero; DPP v De Montero (2009) 25 VR 694.
[53]Although the latter would have been a statutory alternative.
The significance of the prosecutor’s exercise of discretion to prefer charges against s 24 – charges to which the appellant pleaded guilty – is, of course, that the appellant was exposed to a maximum penalty on each of counts 1 and 2 which was double that had offences been charged against s 319(1A). If it could have been said that charges under s 319(1A) would have been appropriate or, a fortiori, more appropriate than charges under s 24, it would have been relevant for sentencing purposes to have kept in mind the maximum penalty under s 319(1A).[54] But, as we have said, that is not this case.
[54]Compare R v McEachran (2006) 15 VR 615, 635-638 [49]-[56] (Redlich JA).
We agree with the orders proposed by the President.
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