Gray v The Queen
[2021] VSCA 322
•24 November 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0097
| MATTHEW GRAY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | McLEISH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 24 November 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 322 |
| JUDGMENT APPEALED FROM: | [2021] VCC 896 (Judge Tinney) |
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CRIMINAL LAW – Leave to appeal – Sentence – One charge of dangerous driving causing death – Related summary offence – Applicant driving truck failed to give way at intersection, colliding with cyclist – Sentence of 4 years and 2 months’ imprisonment – Non-parole period of 2 years and 6 months – Whether sentence manifestly excessive – Whether judge erred in assessing gravity of offending and moral culpability – Leave to appeal refused.
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| Written submissions: | Counsel | Solicitors |
| For the Applicant | Mr J Lowy | Docherty Legal |
| For the Respondent | Mr D Glynn | Ms A Hogan, Solicitor for Public Prosecutions |
McLEISH JA:
On 23 June 2021, the applicant pleaded guilty before a judge of the County Court to one charge of dangerous driving causing death,[1] and one related summary charge of driving a vehicle while exceeding the prescribed concentration of drugs.[2]
[1]Crimes Act 1958 s 319(1).
[2]Road Safety Act 1986 s 49(1)(bb).
On 2 July 2021, the judge sentenced him as follows:
Charge on indictment K11489040
Offence
Maximum
Sentence
Cumulation
1
Dangerous driving causing death
10 years
4 years and 2 months
–
Related summary offence
Charge 3
Driving a vehicle while exceeding prescribed concentration of drugs
12 penalty units
$750
N/A
Total effective sentence:
4 years and 2 months
Non-parole period:
2 years and 6 months
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
211 days
6AAA statement:
5 years and 6 months’ imprisonment with a non-parole period of 3 years and 4 months
Other relevant orders:
Licence cancellation and disqualification for 18 months from release date
The applicant seeks leave to appeal against sentence on two proposed grounds: first, that the sentence is manifestly excessive; and secondly, that the judge erred in assessing the objective gravity of the offending and the applicant’s moral culpability.
For the reasons that follow, leave to appeal will be refused.
Circumstances of offending
At the time of the offending, the applicant was 41 years old, working as a waste collection driver. In the early morning of 7 June 2019, he commenced his shift. At around noon, he was driving south on Woodward Road, Golden Gully, when he approached the intersection with Hattam Street.
The applicant was familiar with the route. There was a give way sign at the intersection. It was a fine day and the applicant had clear visibility westward along Hattam Street.
The applicant slowed his truck to a speed he believed to have been around 15 to 20 kilometres per hour as he approached the intersection, but did not stop. As he entered the intersection, Michael Keating was approaching the intersection from the west. Mr Keating was riding a red bicycle and wearing a ‘high-visibility’ fluorescent yellow shirt. He was 18 years old. The applicant did not see him.
As the applicant proceeded through the intersection, the front right-hand side of his truck struck Mr Keating and he was killed instantly (charge 1 — dangerous driving causing death).
The previous night, the applicant had consumed a small amount of methylamphetamine at home. After the accident, he provided a blood sample to police, which revealed a methylamphetamine level of 0.09mg/L (summary charge 3 — driving a vehicle while exceeding prescribed concentration of drugs). It was not suggested that the presence of the methylamphetamine contributed to the dangerous driving.
Judge’s reasons
The judge described the offending as neither at the lower nor the highest end of the range of seriousness for what is always, by its nature, a serious offence.[3] He rejected the applicant’s submission that it was ‘lower end’ offending. The applicant entered the intersection, which was familiar to him, at speed and without conducting an appropriate check for oncoming traffic. The judge accepted that the applicant wrongly believed the intersection was clear. But given the applicant’s driving experience, the fine conditions, ample visibility, and Mr Keating’s high-visibility clothing, any appropriate check would have revealed that Mr Keating was approaching the intersection with right of way.[4] The judge accepted that possible aggravating features were absent, while noting that the assessment of seriousness is not a matter of the subtraction of potential aggravating factors.[5]
[3]DPP v Gray [2021] VCC 906, [78] (‘Sentencing Remarks’).
[4]Ibid [74].
[5]Ibid [69].
The judge described the ‘profound’ impact of the offending. The loss to Mr Keating’s family and friends was devastating. He described their ‘deep sense of loss and grief’.[6] He paraphrased in some detail the contents of their victim impact statements.
[6]Ibid [16].
The judge then set out the applicant’s personal circumstances. He had intermittent drug issues over a number of years, including one relatively minor previous drug conviction more than two decades earlier, which did not inform the sentencing task. The applicant had been a licensed driver for many decades, with little relevant traffic history. He had made productive use of his time in custody, including by abstaining from drugs. He had lost his job and his driving licence as a result of the offending, and was unable while imprisoned to care for his mother, who has breast cancer and chronic kidney disease, and his stepfather, who has dementia.
The judge then referred to six further matters in mitigation.
First, the applicant pleaded guilty, even though he did so ‘relatively late’, after a short contested committal and shortly after he was first shown CCTV footage of the incident. The judge attributed heightened utilitarian value to the plea because of pandemic-related backlogs.[7]
[7]Ibid [43]–[49]; Worboyes v The Queen [2021] VSCA 169.
Secondly, the judge accepted that the applicant demonstrated actual remorse, shown both by his plea, as well as a letter of apology.[8]
[8]Sentencing Remarks [50].
Thirdly, the judge accepted that the applicant’s term of imprisonment would involve a greater burden than usual, by reason of pandemic-related limits on visits and programs, as well as the applicant’s anxiety from his inability to continue to care and assist his mother and stepfather.[9]
[9]Ibid [54].
Fourthly, the judge accepted that the fifth limb of R v Verdins[10] was engaged, and gave it ‘some modest weight’.[11] He referred to a report prepared by Ms Carla Lechner, a clinical psychologist. She described the applicant as presenting with major depressive disorder and post-traumatic stress disorder. She described the applicant as having suffered dysthymia (a persistent depressive disorder) for much of his life, progressing to significant depression some years before the incident. However, she accepted that, at least to some extent, his present symptoms of major depressive disorder were also reactive to the incident. She opined that imprisonment would be more difficult for the applicant than otherwise because of these disorders.
[10](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
[11]Sentencing Remarks [55]–[56].
Fifthly, the judge took into account, although only to a very limited extent, the delay between the offending and sentence.[12]
[12]Ibid [57].
Sixthly, the judge assessed the applicant’s prospects of rehabilitation as ‘at least reasonable’. In this regard, he noted the applicant’s limited prior criminal history, productive use of his time in custody, and remorse. He also referred to Ms Lechner’s report, in which she described the applicant as presenting a low risk of reoffending, and enjoying a ‘positive prognosis’ for rehabilitation.[13]
[13]Ibid [59]–[60].
Finally, the judge referred to current sentencing practices. He referred to several decisions of this Court, including:
(a) Stephens, where this Court upheld a base sentence of 3 years and 3 months for a charge of dangerous driving causing death, but signalled the need for an uplift in sentences for mid-to-upper range offending.[14] In that case, the appellant’s moral culpability was regarded as ‘very high’;[15]
[14]Stephens v The Queen (2016) 50 VR 740, 748 [33] (Redlich, Santamaria and Beach JJA) (‘Stephens’).
[15]Ibid 747 [29].
(b) Weybury, where this Court allowed a Director’s sentence appeal, resentencing the respondent to a base sentence of 4 years and 6 months’ imprisonment for a charge of dangerous driving causing death. In that case, the Court considered the respondent’s moral culpability to be high, and the dangerousness of the driving to be a ‘very serious example’ of the offence;[16]
(c) Pan, where this Court allowed a sentence appeal, resentencing the appellant to 2 years’ imprisonment on a charge of dangerous driving causing death. In that case, which also involved a failure to give way, the appellant’s moral culpability was moderated by the existence of a contributing cause, namely, the flawed design of the intersection;[17] and
(d) Singh, where this Court allowed a sentence appeal, resentencing an appellant who enjoyed ‘powerful and unusual mitigating features’ to a sentence of 3 years’ imprisonment for a single charge of dangerous driving causing death.[18]
[16]DPP v Weybury [2018] VSCA 120, [33] (Maxwell P and Hargrave JA) (‘Weybury’).
[17]Pan v The Queen [2020] VSCA 42 (‘Pan’).
[18]Singh v The Queen [2021] VSCA 161, [65] (Kyrou and McLeish JJA) (‘Singh’).
The judge considered that, in the circumstances of the case, punishment, denunciation and general deterrence were especially important sentencing principles. On the other hand, the judge accepted that both specific deterrence and community protection should be significantly moderated.[19]
[19]Sentencing Remarks [79]–[83].
Proposed grounds of appeal
The two proposed grounds of appeal are:
1. The sentence was manifestly excessive.
2. The judge erred in assessing the objective gravity of the offending and the applicant’s moral culpability.
It is convenient to deal with the second ground first.
Proposed ground 2 — mischaracterisation of seriousness and moral culpability
The applicant submitted that the judge erred by characterising his moral culpability as not falling at the lower end of the range of seriousness. The applicant submitted that his moral culpability should properly have been characterised as ‘lower end’, given that, for example, he was not driving erratically, speeding, or driving in a ‘hoonish manner’, and the offending conduct occurred within a very brief window of time.
The respondent contended that the judge’s characterisation of the seriousness of the offending was plainly correct. As the judge recognised, identifying the absence of possible aggravating features (which may have justified a more serious charge) is not the proper approach to assessing seriousness. The judge correctly assessed the degree and seriousness of risk in all the circumstances, including that the applicant:
(e) was an experienced truck driver;
(f) was driving a large truck;
(g) encountered but ignored a warning sign and then a give way sign;
(h) proceeded through an intersection at which he was obliged to give way without doing so;
(i) proceeded through that intersection at a speed too great in the circumstances; and
(j) failed (despite favourable conditions) to see an approaching cyclist riding in an orthodox manner and wearing high visibility clothing.
In my view, this proposed ground does not constitute a ground of specific error. The applicant does not allege that the sentence was based on an incorrect finding of fact, which could vitiate the sentencing discretion. He takes issue with the characterisation which the judge gave to the facts, and the designation of a ‘level’ of seriousness of the offending or the ‘range’ within which it fell, which is no more than a step, albeit a significant one, in the judge’s reasoning.[20] Even if an appellate court formed a view different to that of the sentencing judge about the level of seriousness of the offending, this would not amount to appealable error. It would reflect instead a different assessment of the weight to be placed on the seriousness of the offending, with implications for moral culpability, as part of the overall sentencing synthesis. Such a different assessment does not, of itself, vitiate the sentencing discretion.[21] It is therefore appropriate to consider the contention that the judge misconceived the seriousness of the offence as part of the manifest excess argument.[22]
[20]See Weybury [2018] VSCA 120, [33]–[34] (Maxwell P and Hargrave JA).
[21]See Alexander (a pseudonym) v The Queen [2021] VSCA 217, [36] (Kyrou and McLeish JJA).
[22]Ibid [35]–[38].
Proposed ground 1 — manifest excess
The applicant submitted that the total effective sentence and non-parole period were each manifestly excessive. It was submitted that the judge insufficiently accounted for the matters in mitigation, in particular: (a) the applicant’s guilty plea; (b) the applicant’s remorse; (c) the application of Verdins principles; (d) delay; (e) the added burden of incarceration on the applicant, including because of his parents’ poor health; and (f) the applicant’s favourable subjective factors, including his lack of relevant prior convictions, low risk of reoffending, and rehabilitation prospects.
By way of elaboration it was submitted (although not as grounds of specific error) that the judge had erred by:
(k) diminishing the value of the guilty plea by mischaracterising it as ‘relatively late’, when the matter resolved very shortly after the prosecution retreated from putting its case on the basis that the applicant offended while fatigued and drug-affected; and
(l) giving insufficient weight to the fifth limb of Verdins and failing to give any weight to the sixth limb.
Ultimately, it was submitted that the applicant’s sentence was outside the available range, whose contours were said to be suggested by the decisions in Stephens, Weybury and Pan.
The respondent contended that the matters raised by the applicant were not only considered by the judge, but resolved favourably to the applicant in accordance with his submissions on the plea. The judge accepted the applicant’s submissions as to the plea of guilty, delay, remorse, the increased burden of imprisonment, and the applicant’s prospects of rehabilitation.
As to the specific challenges raised, the respondent contended that the manifest excess ground did not permit challenging these findings. In any case, the respondent submitted that:
(m) the judge was entitled to describe the timing of the plea as ‘relatively late’, even allowing for the prosecution’s own late amendment of the basis on which it put its case. The plea was entered nearly a year after charges were laid, after a contested committal, case conference, and pre-trial argument; and
(n) the judge was entitled to give modest weight to the fifth Verdins limb while giving none to the sixth limb. In respect of the sixth limb, the evidence of Ms Lechner was, as the judge recognised, speculative, and the application of that limb was, it was conceded on the plea, ‘a little more nebulous’.
As to the comparable cases identified by the applicant, the respondent accepted their relevance but submitted that they showed that the sentence imposed was not outside the available range. Stephens identified the need for a future sentencing uplift for the offence. Weybury was a successful Director’s appeal where the individual sentence for the offence was increased to a longer term than that presently in issue, 4 years and 6 months. Pan was a lower sentence but the appellant’s moral culpability was there reduced by the presence of a significant additional causal contributor to the collision.
The ground of manifest excess requires an appellant to show that the sentence was wholly outside the range of sentencing options available; that is, that it was not reasonably open to the sentencing judge.[23] It must be shown that something has gone ‘obviously, plainly or badly wrong’ in the exercise of the sentencing discretion, without necessarily identifying what that something is.[24]
[23]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
[24]Ayol v The Queen [2014] VSCA 151, [30] (Maxwell P); Nicholls v The Queen [2016] VSCA 300, [31] (Redlich and McLeish JJA and Beale AJA); Till v The Queen [2018] VSCA 122, [45] (Maxwell P, Tate and Niall JJA); Osman v The Queen [2021] VSCA 176, [97] (Priest, T Forrest and Emerton JJA).
In my opinion, it is not open to reach that conclusion in the present case. The offence of dangerous driving causing death was committed in broad daylight and driving conditions ‘could not have been better’;[25] the applicant was familiar with the intersection and Mr Keating was wearing a high visibility vest. The applicant failed to give way after having obviously failed to check properly for traffic approaching the intersection from his right. This was well open to being characterised as exceeding the lower level of seriousness for this offence.
[25]Sentencing Remarks [74].
The mitigating factors upon which the applicant could draw, while significant, were unremarkable in offences of this kind.[26] The plea of guilty attracted greater weight as a result of the current pandemic, which has heightened the utilitarian benefit associated with guilty pleas, but the plea was not an early one, the matter having progressed through a two day committal hearing; the plea could rightly have been characterised as belated. To some extent, that appears to have been attributable to argument as to the role of fatigue or methylamphetamine in the offending, but that does not explain the applicant’s denial (including in his defence response on 28 September 2020[27]) that his driving was dangerous. Cases of this kind naturally evoke remorse on the part of the offender, who will often have little or no relevant prior criminal history and enjoy good prospects of rehabilitation. The applicant was entitled to have all these matters taken into account in his favour, but none of them causes his circumstances to stand grossly apart from those of others in comparable cases. The same can be said of the applicant’s reliance on the fifth limb of Verdins; the evidentiary support for the sixth limb was rightly described on the plea as nebulous.
[26]Cf Singh v The Queen [2021] VSCA 161.
[27]Sentencing Remarks [45].
Inevitably, minds may differ as to whether a different sentence may have been more appropriate for this offending; that is the nature of the sentencing discretion.[28] In that context, the authorities to which the parties referred are no more than a guide.[29] But the present sentence sits with them readily enough. The lower sentence imposed in Stephens, where the offender’s moral culpability was very high, would have been substantially greater had sentencing standards at the time been adequate.[30] The offending in Weybury was aggravated in various ways not found here,[31] but the sentence was somewhat greater than that imposed on the applicant. The much lower sentence in Pan was substantially attributable to the poor design of the ‘especially dangerous’ intersection.[32] In Singh, where a 3 year sentence was imposed, the offender could point to ‘powerful and unusual’ mitigating features which, again, distinguish this case.[33]
[28]Pearce v The Queen (1998) 194 CLR 610, 624 [46] (McHugh, Hayne and Callinan JJ); Bugmy v The Queen (2013) 249 CLR 571, 588 [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[29]DPP v Dalgliesh (2017) 262 CLR 428, 445 [50]–[52] (Kiefel CJ, Bell and Keane JJ); R v Pham (2015) 256 CLR 550, 560 [29] (French CJ, Keane and Nettle JJ).
[30]Stephens (2016) 50 VR 740, 750–1 [40]–[42] (Redlich, Santamaria and Beach JJA).
[31]Weybury [2018] VSCA 120, [25] (Maxwell P and Hargrave JA).
[32]Pan [2020] VSCA 42, [1] (Emerton JA), [91] (Croucher AJA).
[33]Singh [2021] VSCA 161, [42]–[44], [56], [65] (Kyrou and McLeish JJA).
Having regard to all the above matters, including these other cases, it is not reasonably arguable that the sentence of 4 years and 2 months’ imprisonment was outside the available range, or that, in order for the judge to have arrived at that sentence, something must have gone ‘obviously, plainly or badly wrong’ in the exercise of his discretion.
Leave to appeal is therefore refused.
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