Ian Bouch v The Queen

[2016] VSCA 298

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0060

IAN BOUCH	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE AND CONVICTION (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGES:	WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 November 2016
DATE OF JUDGMENT:	28 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 298
JUDGMENT APPEALED FROM:	DPP v Bouch (Unreported, County Court of Victoria, Judge Chettle, 1 March 2016)

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CRIMINAL LAW – Application for leave to appeal against sentence – Culpable driving causing death (7y 6m) – Negligently causing serious injury (2y 6m) – Serious example of culpable driving – Total effective sentence 8y 6m – Non-parole period 6y – Leave refused.

CRIMINAL LAW – Application for leave to appeal against conviction – Culpable driving causing death – Whether evidence regarding the wearing of seatbelts by the victims’ was relevant – Whether reference to ‘merited criminal punishment’ in charge to jury on culpable driving causing death remains appropriate – R v De’Zilwa (2002) 5 VR 408 cf King v The Queen (2012) 245 CLR 588 – Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Dempsey	Balmer & Associates
For the Respondent	Mr D A Trapnell QC	Mr John Cain, Solicitor for Public Prosecutions

WHELAN JA:

1. On 24 February 2016 the applicant was found guilty after a trial in the County Court on one charge of culpable driving causing death and one charge of negligently causing serious injury.  After a plea hearing on 26 February 2016 the applicant was sentenced as follows on 1 March 2016:

Charge	Offence	Maximum	Sentence	Cumulation
1.	Culpable driving [Crimes Act 1958 s 318(1)]	20 years [Crimes Act 1958 s 318(1)]	7 years 6 months	Base
2.	Negligently causing serious injury [Crimes Act 1958 s 24]	10 years [Crimes Act 1958 s 24]	2 years 6 months	12 months
Total effective sentence		8 years and 6 months’ imprisonment
Non-parole period		6 years imprisonment
Pre-sentence detention declared		7 days
Other Orders:        Forensic sample order pursuant to s 464ZF of the Crimes Act 1958; cancellation of licence; and disqualification from obtaining a licence for 10 years.

1. The applicant has applied for leave to appeal against his conviction and has also applied for leave to appeal against the sentence.  Written cases were filed and an oral hearing was conducted on 15 November 2016. 

1. At the conclusion of the oral hearing, I indicated that leave to appeal sentence would be refused for reasons to be delivered later.  I reserved my decision on the application for leave to appeal conviction.

The relevant driving

1. On 27 May 2014 the applicant was driving his vehicle along Hopkins Road, Truganina.  Anisa Rage was driving along the same road in her vehicle with her four children and her sister.  There was a third vehicle, a tipper truck, following both vehicles. 

1. Ms Rage was driving below the 70 kilometre per hour speed limit.  The applicant drove his vehicle up to the rear of Ms Rage’s vehicle at a fast rate of speed.  He undertook a manoeuvre usually referred to as ‘tailgating’ while flashing his lights and blowing his horn.  He was aware of the tipper truck behind him. 

1. At an intersection the applicant used a slip lane to overtake Ms Rage’s vehicle on the left hand side.  At this point she was travelling at about 60 kilometres per hour.  The applicant accelerated to pass her and then cut back in front of her.  He was yelling at her and making aggressive gestures. 

1. The applicant then suddenly, deliberately, and without any justification, applied his brakes causing his vehicle to come to a complete stop.  Ms Rage reacted immediately and was able to stop her vehicle just short of a collision with the applicant’s car.  Unfortunately the driver of the tipper truck was not able to stop and he collided with the rear of Ms Rage’s vehicle which was then pushed into the applicant’s vehicle.  One of the children in Ms Rage’s vehicle sustained a serious injury (a broken arm).  Another child sustained very serious injuries and died some days later in the Royal Children’s Hospital. 

1. The applicant’s conduct immediately after the collision was discreditable.  He was aggressive towards Ms Rage and made false accusations against her.  He abused the truck driver.  When interviewed by police the next day he lied about the circumstances of the collision.  He has relevant prior convictions. 

Reasons for refusing leave to appeal sentence

1. The sentencing judge characterised the applicant’s conduct as a serious example of the offence of causing death by culpable driving.  The applicant conceded in both his written case and in the course of the oral hearing that if that characterisation was correct then the sentence appeal was bound to fail.  As I indicated in the course of the oral hearing, in my view the sentencing judge’s characterisation of the conduct was clearly correct.  The applicant deliberately created an emergency for Ms Rage as a form of punishment because he believed she was driving too slowly.  This was a shocking example of what is sometimes described as ‘road rage’.  It fully merited the sentencing judge’s characterisation of it. 

Leave to appeal conviction — proposed grounds

1. There are two proposed grounds on the application for leave to appeal conviction.  They are:

(1)The trial judge erred in excluding evidence regarding the wearing of seatbelts by the deceased and the victim.

(2)The trial judge’s directions to the jury did not adequately discriminate between the offences of culpable driving by gross criminal negligence and dangerous driving causing death.

1. The applicant had pleaded guilty before the jury to an alternative to the culpable driving charge, being dangerous driving causing death.

Proposed ground 1 — exclusion of seatbelt evidence

1. There was available evidence suggesting that the injured children were either not wearing seatbelts or were wearing seatbelts in a manner which did not adequately restrain them at the time of the collision. 

1. Before the trial judge the applicant contended that an issue the jury needed to determine was whether the applicant’s driving was grossly negligent, and, in that context, whether his driving involved ‘a high risk of death or serious injury’.  It was submitted that the evidence concerning the seatbelts was relevant to the jury’s assessment of that risk. 

1. The trial judge ruled that the evidence concerning the seatbelts was irrelevant.  The applicant’s written case suggests that the trial judge ruled that the death was also irrelevant when assessing the relevant risk and that he directed the jury accordingly.  At one point in the course of argument in the absence of the jury the judge did say the death was irrelevant in this context.[1]  But the direction he gave to the jury in that respect was that the death was not ‘determinative’ of that issue.[2] 

   [1]Transcript of Proceedings (23 February 2016) 116.

   [2]Ibid 222.

1. It is submitted on behalf of the applicant that the trial judge’s ruling was incorrect and that the seatbelt evidence was relevant and admissible.  In my view this ground is arguable.

Proposed ground 2 — discrimination between alternative offences

1. In relation to the elements of the offence of culpable driving, the trial judge directed the jury[3] in accordance with this Court’s judgment in R v De’Zilwa[4] and with the model charge in the Victorian Criminal Charge Book (‘the charge book’).[5]

   [3]Ibid 220–2.

   [4](2002) 5 VR 408 (‘De’Zilwa’).

   [5]Judicial College of Victoria, Victorian Criminal Charge Book, Part 7 — Victorian Offences, ‘7.2.8.2 Charge: Culpable Driving Causing Death’.  The charge book uses the term ‘deserves’ rather than ‘merits’.

1. In De’Zilwa it was held that juries should be directed that they are required to find that the driving involved such a great falling short of the standard of care which a reasonable person would have exercised, and which involved such a high risk of death or really serious injury, that it ‘merited criminal punishment’.[6]

   [6](2002) 5 VR 408, 423 [46].

1. The reference to ‘merited criminal punishment’ has its origin in the law of manslaughter by criminal negligence.[7]

   [7]Nydam v The Queen [1977] VR 430, 445.

1. There is an issue as to whether the formulation referring to ‘merited criminal punishment’ remains appropriate, given the existence of the offence of dangerous driving causing death.  This issue was referred to by the High Court in King v The Queen.[8]  The High Court was not required to determine the issue in that case but one of the judges (Heydon J) expressed the view that juries should not be directed in those terms,[9] another indicated that the expression did not aid the jury and was likely to mislead it (Bell J),[10] and the remaining three judges (French CJ, Crennan and Kiefel JJ) suggested that the continued use of that formulation was ‘questionable’.[11] 

   [8](2012) 245 CLR 588 (‘King’).

   [9]Ibid 616 [69].

   [10]Ibid 621 [83].

   [11]Ibid 608 [45], 610 [49].

1. The charge book contains a ‘warning’ about the judgments in King, without suggesting how what was said there is to be accommodated with De’Zilwa.

1. At the trial counsel for the applicant raised the issue, expressly referring to King.  He suggested a direction which did not use the contentious expression, while saying to the judge at the same time that he considered that the judge was bound to use the De’Zilwa formulation.  He appeared to foreshadow the potential consideration of the issue on appeal (‘it’s potentially an issue for down the track’).[12]

   [12]Transcript of Proceedings (23 February 2016) 169–173.

1. On the oral hearing senior counsel for the respondent suggested that the De’Zilwa formulation had been endorsed by this Court since King and he forwarded a supplementary submission referring to a number of authorities in this Court and in the High Court.[13]  Having reviewed those authorities, it seems to me that the most that can be said is that potential opportunities to reformulate the direction have not been taken up.

   [13]Dunkley-Price v The Queen [2015] VSCA 310; Gill v The Queen [2016] VSCA 261; Swan v The Queen [2013] VSCA 226; Rawiri v The Queen [2013] VSCA 130; Pasznyk v The Queen (2014) 43 VR 169; Burns v The Queen (2012) 246 CLR 334; Patel v The Queen (2012) 247 CLR 531.

1. This proposed ground of appeal is arguable. 

Miscarriage of justice

1. The respondent submitted that even if either potential ground was arguable, which was contested, leave to appeal should be refused because conviction was inevitable on the basis of the admitted facts.  Exhibit D in the trial, headed ‘Admissions of Fact’, was handed up by senior counsel for the respondent during the course of the oral hearing.

Conclusion

1. My conclusion is that the two grounds proposed in relation to the convictions are arguable and I would grant leave to appeal.  It is neither necessary nor desirable to canvass the respective arguments any further than I have done.

1. I do not reject the respondent’s argument that conviction was inevitable on the agreed facts.  Given that there are arguable grounds of appeal, in my view that is an issue which ought to be determined (if it arises) on a full hearing and not on a leave application.