Hall v The King

Case [2024] VSCA 255

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2023 0216
REBECCA JANE HALL Applicant
v
THE KING Respondent

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JUDGES: PRIEST, TAYLOR and T FORREST JJA
WHERE HELD: Melbourne
DATE OF HEARING: 28 October 2024
DATE OF JUDGMENT: 31 October 2024
MEDIUM NEUTRAL CITATION: [2024] VSCA 255
JUDGMENT APPEALED FROM: DPP v Hall, Rebecca Jane [2023] VCC (Judge Chettle)

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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing death – Failure to keep a proper lookout because distracted by use of Instagram on mobile phone – Applicant of otherwise exemplary character – Early plea – Genuine remorse – Characterisation of offence as ‘mid‑level’ – Emphasis on general deterrence – Sentence of 3 years and 4 months’ imprisonment with non‑parole period of 2 years – Whether sentence manifestly excessive – Leave to appeal refused.

Sentencing Act 1991, ss 5(2H) and 5(2HC).

DPP v Neethling (2009) 22 VR 466; DPP v Johnstone (2006) 16 VR 75, referred to; DPP v Karazisis (2010) 31 VR 634, applied.

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Counsel
Applicant: Mr OP Holdenson KC
Respondent: Mr JCJ McWilliams with Ms B Goding

Solicitors
Applicant: Schembri + McCluskys
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA
T FORREST JA:

  1. On 27 October 2023 the applicant pleaded guilty to one charge of dangerous driving causing death. Following a plea hearing she was sentenced, on 3 November 2023, as follows.

Charge on Indictment

Offence

Max Penalty

Sentence

Cumulation
1 Dangerous driving causing death (contrary to s 319(1) of the Crimes Act 1958) 10 years’ imprisonment 3 years and 4 months’ imprisonment N/A
Total Effective Sentence: 3 years and 4 months’ imprisonment
Non-Parole Period: 2 years
Pre-sentence Detention Declared: 7 days
Section 6AAA Statement: 5 years and 6 months’ imprisonment with a non‑parole period of 3 years and 6 months

Other Relevant Orders: All Victorian licences and/or permits held by the offender to be cancelled and the offender to be disqualified from obtaining any such licence or permit for a period of 2 years from 3 November 2023.

Forfeiture order (personal phone).

  1. The applicant now seeks leave to appeal against sentence on the single proposed ground that the sentence imposed was manifestly excessive.

  2. For the reasons that follow, leave to appeal should be refused.

    Factual background

  3. On 25 January 2022 the applicant was driving a Ford Ranger utility on the Murray Valley Highway. The highway is a two‑way undivided road with a speed limit of 100 kmph. The car immediately in front of the applicant’s vehicle was a Mitsubishi Triton utility driven by Christine Stewart. Ms Ebony Papageorge was her front seat passenger. As Ms Stewart approached the intersection with Farley Road, she applied the brakes and indicated to turn right. As Ms Stewart commenced the right hand turn, the utility driven by the applicant collided with the rear driver side of Ms Stewart’s vehicle.

  4. Ms Stewart’s utility was pushed forward and rotated multiple times before coming to rest on its roof about 27.8 metres…

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Hall v The King [2024] VSCA 255
Case
[2024] VSCA 255
Decision Date

CaseChat Overview and Summary

In the matter of Hall v The King, the applicant was convicted of dangerous driving causing death, a serious charge arising from a tragic collision on the Murray Valley Highway on 25 January 2022. The applicant was driving a Ford Ranger utility when she collided with the rear of a Mitsubishi Triton utility, driven by Christine Stewart, who died from head injuries at the scene. The applicant's passenger, Ebony Papageorge, suffered minor injuries. The applicant was found to be distracted by her mobile phone, specifically Instagram, at the time of the collision, leading to the fatal incident.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. The applicant argued that the sentence of three years and four months’ imprisonment, with a non-parole period of two years, was unreasonable and unjust. The court had to consider the principles of sentencing for dangerous driving causing death, particularly the need for general deterrence and the importance of moral culpability.

The court rejected the applicant's argument, finding that the sentence was well within the range of sentencing options available to the judge. The court noted that the use of a mobile phone while driving, especially at high speeds, significantly elevates the moral culpability of the offender. The judge correctly classified the offence as mid-level, given the circumstances and the nature of the distraction. The court emphasised that general deterrence must be given considerable weight, and the sentence imposed was appropriate to reflect the seriousness of the offence and the need to protect the community. The court found no basis to interfere with the sentence imposed by the trial judge.

Accordingly, leave to appeal was refused. The sentence of three years and four months’ imprisonment, with a non-parole period of two years, was affirmed as appropriate and within the sound exercise of the trial judge's sentencing discretion.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, leave to appeal should be refused.Factual background On 25 January 2022 the applicant was driving a Ford Ranger utility on the Murray Valley Highway. The highway is a two‑way undivided road with a speed limit of 100 kmph. The car immediately in front of the applicant’s vehicle was a Mitsubishi Triton utility driven by Christine Stewart. Ms Ebony Papageorge was her front seat passenger. As Ms Stewart approached the intersection with Farley Road, she applied the brakes and indicated to turn right. As Ms Stewart commenced the right hand turn, the utility driven by the applicant collided with the rear driver side of Ms Stewart’s vehicle. Ms Stewart’s utility was pushed forward and rotated multiple times before coming to rest on its roof about 27.8 metres from the point of impact. The applicant’s utility came to a controlled stop about 106 metres away. At the time of impact, Ms Stewart was driving at no more than 10 kmph. The applicant was driving at 93 kmph. The applicant did not brake in advance of the collision, but steered to the left about 0.2 seconds or five metres from impact. Ms Stewart died of head injuries at the scene. Ms Papageorge suffered minor injuries and was transported to hospital. At the scene the applicant was observed to be very distressed. She told one witness that she was reaching down to get her water bottle at the time of the collision. She also approached Ms Papageorge and said that she was sorry and just did not see them. No drugs or alcohol were detected in the applicant’s system. Later analysis of the applicant’s mobile phone data and infotainment system of her vehicle indicated that in the minute prior to the collision she had sent a text message to her husband and both opened and closed Instagram. When interviewed by police the applicant stated that she had previously been speaking on the telephone – hands free – but was not on the phone when the collision happened. She said that the phone was attached to a magnetic phone holder and that she used buttons on the steering wheel to hang up phone calls. The applicant also said that at the time of impact she was reaching for her water bottle and did not realise that the car in front was stopping. Sentencing Reasons The judge commenced his sentencing reasons[1] by summarising the offending.[2] The ‘clear’ reason for the failure of the applicant to keep a proper lookout was found to be her distraction by her mobile phone resulting in the applicant not properly watching the road ahead to observe that Ms Stewart was slowing down. [1]DPP v Hall, Rebecca Jane [2023] VCC (‘Reasons’).[2]Reasons, [3]–[7]. The claims made by the applicant on her plea that she had no recollection of using the phone improperly or at all in the seconds before the collision and had no explanation for how the Instagram app had been opened and closed were rejected by the judge.[3] Addressing the applicant, the judge said:It is not a matter of momentary inadvertence but is inextricably linked to your use of your mobile phone, whilst travelling at about 100 kilometres per hour. The involvement of your mobile phone significantly elevates your moral culpability for this crime. Every driver knows that it is illegal and dangerous to use a mobile phone whilst driving. To send a text message and check Instagram, is infinitely more dangerous than having a handsfree conversation as you had been a few minutes earlier.[4][3]Reasons, [8]–[9].[4]Reasons, [8].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In short, the respondent submits that the sentence imposed was well within the range available to the judge in the sound exercise of his sentencing discretion. Consideration In DPP v Neethling[18] this Court approved the following propositions in relation to sentencing for dangerous driving causing death, formulated by Neave JA in DPP v Oates:[19](1)General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.(2)A person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment.(3)The sentence which is imposed must take account of variations in the moral culpability of the person responsible. [18][2009] VSCA 116; (2009) 22 VR 466, 472 [30] (‘Neethling’).[19][2007] VSCA 59; (2007) 47 MVR 483 (Warren CJ, Neave and Nettle JJA). A fourth principle — that a custodial sentence will usually be appropriate except where the offender’s level of moral culpability is low — has been overtaken by s 5(2H) of the Act.[20] That section requires a court to impose a custodial sentence[21] unless one of four exceptions is established. [20]See paragraph (eb) of the definition of ‘category 2 offence’ in s 3(1). [21]Other than a sentence of imprisonment imposed in addition to making a community correction order. The rejection by the judge of the applicant’s submission that she satisfied the exceptions in ss 5(2H)(c)(ii) and 5(2H)(e) is not challenged in this Court. Rather, the applicant argues that the sentence imposed was manifestly excessive. That argument cannot be accepted. As has been stated many times, in the absence of demonstrating a specific error on the part of the sentencing judge, an applicant who contends manifest excess must demonstrate that the sentence imposed was unreasonable or plainly unjust. The sentence must be demonstrated to be ‘wholly outside the range of sentencing options available to the sentencing judge’.[22] That is, the sentence was not reasonably open to the court to impose it.[23] [22]R v Boaza [1999] VSCA 126, [42] (Winneke P).[23]DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA). To the extent that such labels are helpful, in our view the judge was correct to find that this was a mid‑level example of the offence of dangerous driving causing death. While the factual circumstances did not involve any of the features like excessive speed, erratic driving, fatigue and intoxication specifically identified as aggravating of the offence in Neethling[24] — that list being drawn from the 2002 decision of the New South Wales Court of Criminal Appeal in R vWhyte[25] — and often seen in other cases, the absence of any of them does not mean that the judge erred in characterising the offence as mid‑level. [24]Neethling, [31]. [25][2002] NSWCCA 343; 55 NSWLR 252, 286 [216]–[217] (Spigelman CJ, Mason P, Barr, Bell and McClellan JJ). In 2006 this Court in DPP v Johnstone[26] recognised that use of a mobile telephone whilst driving may be a similarly aggravating factor. In relation to offences of culpable driving, Warren CJ said:It is a fundamental principle of driving a vehicle that the driver will remain attentive, alert and focussed on where he or she is travelling. To deliberately divert attention to the viewing of text messages is a serious breach of acceptable driving behaviour. In my view, the culpable element in this matter lay in the viewing of the text messages by the respondent when driving at a high speed, in distracting circumstances. The driver’s attention given to the text message and the use of the mobile telephone was the circumstance that made the respondent more likely to have an accident.…Driving a vehicle in the community involves responsibility. In certain circumstances, the lack of attention to the driving environment - the use of a mobile telephone combined with other factors such as speed and lack of focus - may be as serious as driving under the influence of drugs or alcohol or driving at excessive speeds or erratically. Each case will need to be judged on its own circumstances. As observed in R v. Scott[27] there is not much distinction between fatigue and lack of judgment induced by alcohol and fatigue and lack of judgment produced by lack of sleep.In the present case, there was an accumulation of factors that placed the particular case towards the higher end of culpable driving. The accumulated factors were, as the Crown put its case: driving a vehicle overloaded; unrestrained passengers behaving in a distracting manner at night on a dark road; using a mobile telephone; removing one hand from the driving wheel to use the mobile telephone; reading the text message; the driver taking his eyes off the road for a significant period of three to four seconds while driving at 90 to 100 kilometres per hour; paying insufficient attention and hence failing to see a bend in the road and an approaching pole; and trying to send or delete the text message on the mobile telephone. The behaviour was so serious and dangerous that it warranted a severe penalty. In my view the use of the mobile telephone in the manner operated by the respondent in the prevailing circumstances was a serious aggravating feature of the offending.[28][26][2006] VSCA 281; (2006) 16 VR 75 (Warren CJ, Maxwell P and Buchannan JA) (‘Johnstone’). [27][2003] VSCA 55; (2003) 39 MVR 166 (Winneke P, Phillips and Buchanan JJA). [28]Johnstone, [14], [20]–[21] (Warren CJ, Maxwell P and Buchannan JA agreeing).