James William John Carroll v The Queen
[2017] VSCA 62
•27 March 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0005
| JAMES WILLIAM JOHN CARROLL | Applicant |
| v | |
| THE QUEEN | Respondent |
---
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
---
| JUDGES: | SANTAMARIA JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 27 March 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 62 |
| JUDGMENT APPEALED FROM: | DPP v Carroll [2016] VCC 1919 (Judge Ryan) |
---
CRIMINAL LAW – Application for leave to appeal against sentence – Dangerous driving causing death – Driving motor vehicle – Sentence 3y 6m – Whether manifestly excessive – Objective gravity of offending – Excessive speed – Failing to stop at traffic control signal – High moral culpability despite fear of being assaulted by another driver – Whether insufficient regard given to youth and prospects of rehabilitation – Leave refused.
---
| APPEARANCES: | Counsel | Solicitors |
| No appearances |
SANTAMARIA JA:
The applicant, now aged 22, was charged with dangerous driving causing death contrary to s 319(1) of the Crimes Act 1958.
The applicant was convicted by plea of guilty on 2 December 2016 and was sentenced on 9 December 2016 as follows:
Charge
Offence
Maximum
Sentence
1
Dangerous driving causing death [s 319(1) Crimes Act 1958]
10 years’ imprisonment [s 319(1) Crimes Act 1958]
3 years and 6 months’ imprisonment
Total Effective Sentence:
3 years and 6 months’ imprisonment
Non-Parole Period:
2 years’ imprisonment
Pre-sentence detention declaration:
7 days
Section 6AAA statement:
Total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years’ imprisonment
Other relevant orders:
Licence disqualification for 2 years from 9 December 2016; Forensic Sample Order
The applicant now seeks leave to appeal his sentence.
Circumstances of offending
On 26 October 2014 at approximately 2.54 pm, a two-vehicle collision occurred at the intersection of Coburns Road and Barries Road in Melton. The collision occurred when the vehicle driven by the applicant entered the intersection against a red traffic light and collided into the driver side of the car being driven by David Smith. Mr Smith sustained fatal chest injuries as a result of the collision and died at the scene.
In the lead up to the collision, the applicant was being pursued by a known associate, Troy Moody, with whom he had just had a verbal altercation.
The initial verbal altercation took place between the applicant and Mr Moody at the intersection of Black Dog Drive and Coburns Road, which is approximately 950 metres south of the Barries Road intersection. As a consequence of the initial exchange between the parties, Mr Moody began pursuing the applicant north along Coburns Road. The applicant was alone in his vehicle, whilst Mr Moody had a passenger.
At the Western Freeway westbound exit ramp both cars stopped at a red traffic light. Mr Moody got out of his car and ran towards the applicant’s car. Once the traffic light turned green, the applicant drove away. Mr Moody ran back to his car and continued to pursue the applicant. Both cars were speeding.
The applicant was seen weaving in and out of the flow of the traffic and each manoeuvre was mirrored by Mr Moody.
As the applicant approached the intersection of Coburns Road and Barries Road, Mr Moody continued to pursue him. The traffic lights at this intersection were red. The applicant travelled into the right hand turn lane of Coburns Road that was free of traffic in order to overtake cars stopped in the right hand lane of Coburns Road. Mr Moody did not follow the applicant and came to a stop behind the stationary traffic on Coburns Road. The applicant then continued through the intersection and there collided with a vehicle driven by Mr Smith which had entered the intersection from the west in accordance with a green light.
The applicant was estimated to have been driving at approximately 67 kilometres per hour at the time of the collision. At the time, the speed limit in the area was 40 kilometres per hour owing to the area being a road construction zone.
A preliminary breath test was conducted on the applicant at the collision scene and returned a negative result.
The applicant was interviewed by police at around 6.50 pm on the day of the collision. He maintained that up to the moment he entered the intersection he believed that Mr Moody was still pursuing him. He said that he felt frightened as soon as he saw Mr Moody driving behind him and further that ‘he had a pole in his hand so … anything could have happened.’ He also said that at the time he entered the intersection, he believed the traffic light was amber.
Towards the end of the interview, the applicant expressed remorse about the fact that ‘someone [had] died today because of my actions.’
Personal circumstances of the applicant
The applicant was aged 20 at the time of the offending. He was aged 22 at the time of sentence. He lives at home with his mother and father who support him.
At the time of the offence, he had one prior criminal conviction which had resulted in a 3 month licence suspension.
At the time of the plea in mitigation, the applicant was undergoing a 2 year community correction order which was imposed at Sunshine Magistrates’ Court on the 24 June 2015. This order related to a range of offending behaviour, however none involved driving matters.
The applicant is a qualified roof tiler. He completed his apprenticeship at 18. At the time of the plea in mitigation, he was not gainfully employed.
He is currently seeing a social worker, Mr Leigh Cowley on a regular basis. Mr Cowley has observed of the applicant that he ‘showed genuine remorse for the accident and the impact it has had on the deceased’s family.’
The applicant has a history of substance abuse. He first smoked cannabis at 13. He progressed towards methamphetamine use by the time he was 17. He is not currently using methamphetamine. He remains a regular cannabis user. Neither drug played any role in the commission of the offence.
The applicant’s mental health has been precarious since the collision. The clinical psychologist Mr Stephen Gault observed that, prior to the accident, the applicant had never received treatment from a psychologist or psychiatrist.
Sentencing remarks
The sentencing judge closely examined the evidence, including the footage of a dash cam on another car and concluded:
As to the issue of the existence of a weapon held by Moody, the quality of the dash cam footage is unable to resolve this issue. On balance, I am prepared to find that Moody was armed with a trolley pole. Further, it is plain that Moody’s conduct was aggressive and directed towards you, both when he was out of his car and whilst he was driving it.[1]
[1]DPP v Carroll [2016] VCC 1919 (‘Sentencing remarks’) [11].
The sentencing judge assessed the circumstances of the incident as follows:
Objectively speaking, your driving is at the higher end of the type of driving that is seen as the foundation for a charge of dangerous driving causing death, in that you were driving at 27 kilometres or so above the speed limit for the area, you entered an intersection against a red light and did so by driving past stationary traffic in the right hand lane of Coburns Road whilst travelling in the right hand turn lane. You did so in traffic conditions that could be described as between moderate and heavy. However, your belief that you were being pursued was well founded. Your fear was based in fact, although the actual threat that you faced, in my view, was not of the kind that you perceived. These matters, however, cannot be judged to a nicety and this is particularly so when viewed in hindsight.
Of concern is your assertion to the police at interview that Moody cut you off at the intersection of Black Dog Drive and Coburns Road because I accept the evidence of the taxi driver, Mr Kerridge that both cars were stationary at that intersection facing east and you and Moody were arguing.
Your level of fear and what it caused you to do mitigates of your conduct because it reduces your moral culpability. However, whilst it tempers the objective circumstances of your driving, it does so only to a small degree.[2]
[2]Ibid [15]–[17].
The sentencing judge considered the victim impact statements of the deceased’s mother and his two brothers. He also considered the report of Stephen Gault, psychologist, dated 17 November 2016 that dealt with the applicant’s personal history and his long history of substance abuse. There was no evidence of cognitive impairment or of any psychiatric condition that would increase the burden of imprisonment on the applicant.[3]
[3]Sentencing remarks [25].
The sentencing judge concluded his remarks as follows:
Dangerous driving causing death is a serious offence and is punishable by ten years’ imprisonment. The objective circumstances of your offending are at the upper end of the range. These circumstances, however, are mitigated to some extent by Moody’s conduct and your reaction to it. Despite that, the application of the principles of general deterrence, denunciation and just punishment must be at the forefront of the exercise of my sentencing discretion despite your relative youth which normally places rehabilitation as the most important sentencing factor in the sentencing exercise. However, young men often fall to be sentenced for offending of this kind and as a consequence rehabilitation as a sentencing factor takes less prominence in the sentencing exercise than it otherwise would.
You are a young man. You pleaded guilty at the earliest opportunity and are entitled to the benefits that flow from that plea, being that it has utilitarian value and that it is some evidence of your remorse. You have expressed remorse for your offending conduct to your counsellor and your referees. You have a supportive family. However, your history of drug abuse and your criminal record, together with your poor performance whilst undergoing a community correction order, compel me to regard your prospects of rehabilitation as guarded.[4]
[4]Ibid [30]–[31].
Grounds of appeal
The application for leave to appeal contains the following proposed grounds of appeal:
1The learned sentencing Judge erred in his assessment of the objective gravity of the offending;
2The learned sentencing Judge failed to give sufficient weight to the applicant’s reduced moral culpability for the offending;
3The learned sentencing Judge erred in his assessment of the applicant’s prospects of rehabilitation, and placed too much weight on his history of drug abuse and criminal record;
4The head sentence and non-parole period on charge 1 is manifestly excessive in all the circumstances.
Applicant’s submissions
The applicant submitted that the objective circumstances of the driving arose ‘due to a somewhat unusual scenario’. He referred to his genuine fear of Mr Moody at the time of the accident. Accepting that his driving posed a risk to other drivers, he said that his speed was not excessive as ‘the normal limit was 60 km per hour’. There was no evidence of alcohol or, he said, of ‘hooning’. He submitted that the sentencing judge had erred in his assessment that the objective circumstances of the offending were at the ‘upper end of the range.’
The applicant submitted that the sentencing judge failed to give sufficient weight to the applicant’s reduced moral culpability for the offending. The applicant was fearful of Mr Moody; he believed that he was threatened by him. He drove through the red light ‘because he feared for his safety’. Accepting that his driving was risky, the applicant said that at the time he took the risk, ‘his ability to rationally assess that risk was obscured by his fear. This, in turn, must reduce his moral culpability.’
The applicant submitted that the sentencing judge erred in his assessment of the applicant’s prospects of rehabilitation, and placed too much weight on his history of drug abuse and criminal record. The applicant said that the judge regarded his prospects of rehabilitation as guarded due to his history of drug abuse, criminal record and poor performance whilst undergoing a community correction order. The applicant said that drugs had played no part in the offending behaviour. His offending prior to the incident had not involved driving matters. The evidence of Mr Gault was that the applicant was making positive steps towards his rehabilitation and that an ‘optimal path of rehabilitation for [the applicant] would be a graduated return to work, continued counselling with Mr Cowley, possible reengagement with alcohol and drug services to assist him in maintaining his abstinence from methamphetamine and reducing his marijuana usage.’ The applicant said that he had no significant criminal history. Mr Cowley assessed his risks of reoffending as low.
Finally, the applicant submitted that the head sentence and the non-parole period were manifestly excessive. In this respect he referred particularly to the genuine fear he was in at the time of the incident that affected his ability to think rationally about the risks he was creating.
Decision
In order to establish the proposed ground of manifest excess it will be necessary for the applicant to establish that the sentence imposed is wholly outside the range of sentencing options available. He will need to be able to demonstrate that something has gone obviously, plainly or badly wrong. Manifest excess is a stringent ground which is difficult to make good.
It cannot be reasonably argued that the sentencing judge erred in his assessment of the objective gravity of the offending. He took into account (a) the state of the traffic, (b) the fact that the applicant was travelling well above the speed limit, (c) the fact that the applicant manoeuvred his vehicle to get past cars that had stopped at a red traffic control signal and (d) the fact that he himself entered an intersection ignoring that traffic signal.
The sentencing judge took into account the moral culpability of the applicant. The transcript of the sentencing hearing reveals that this was a matter at the forefront of the judge’s consideration. Moreover, as the reasons extracted above show, the sentencing judge accepted that the applicant was in fear when he entered the intersection. He accepted that the applicant’s belief that he was ‘being pursued was well founded’ but doubted that the true threat was as the applicant feared. He said that these things ‘cannot be judged to a nicety and this is particularly so when viewed in hindsight.’ However, as the judge pointed out, whatever threat Mr Moody offered, the applicant was inside his car and that circumstance afforded him a measure of protection.[5] The conclusion that moral culpability tempered the objective gravity of the applicant’s offending ‘only to a small degree’ was open to the judge. It cannot be reasonably argued that the judge failed to take into account the moral culpability of the applicant.
[5]Sentencing remarks [14].
Nor do I think that it is reasonably arguable that the sentencing judge erred in his assessment of the applicant’s prospects of rehabilitation, and placed too much weight on his history of drug abuse and criminal record. The sentencing judge provided a straightforward account of the applicant’s drug and alcohol use. He accepted that the applicant was remorseful and that he had pleaded guilty at the earliest opportunity. He also recognised that the applicant had progressed in his rehabilitation. He recognised that, by reason of the applicant’s youth, rehabilitation would normally be ‘the most important sentencing factor’.[6] However, those considerations gave way to the need for ‘general deterrence, denunciation and just punishment’.[7] As the judge pointed out, ‘young men often fall to be sentenced for offending of this kind and as a consequence rehabilitation as a sentencing factor takes less prominence in the sentencing exercise than it otherwise would’.[8]
[6]Sentencing remarks [30].
[7]Ibid.
[8]Ibid. See Harrison v The Queen (2015) 74 MVR 58, 74–5 [70].
The total effective sentence was 42 months; the non-parole period 24 months. It is not reasonably arguable that the non-parole period is not within range.
Conclusion
For the above reasons, the application for leave to appeal is dismissed.
- - -
2