Martin Fox v The Queen

[2020] VSCA 3

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0231

MARTIN FOX	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 November 2019
DATE OF JUDGMENT:	30 January 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 3
JUDGMENT APPEALED FROM:	[2017] VCC 1986 (Judge Carmody)

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CRIMINAL LAW – Appeal – Sentence – Negligently causing serious injury by driving – Driving whilst disqualified – Applicant reversed while victim leaning into car, then drove vehicle forward over victim’s leg – Victim sustained fractured femur and ankle – Sentence 3 years and 9 months’ imprisonment – Whether manifestly excessive – Whether judge erred in assessing offence seriousness – Whether in ‘mid to upper range’ – Whether injuries ‘very serious’ – Whether sentence for driving whilst disqualified constituted double punishment – Very serious offence – No error – Leave to appeal refused – Harrison v The Queen (2015) 49 VR 619; [2015] VSCA 349 applied – Crimes Act 1958 s 15.

WORDS AND PHRASES – ‘Serious injury’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C M Randazzo SC	Giorgianni & Liang Lawyers
For the Respondent	Mr J C J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P

BEACH JA:

Summary

1. This Court is regularly called on to review sentences imposed for negligently causing serious injury (‘NCSI’) by driving.[1]  Such cases invariably concern negligent driving on a highway.  As Maxwell P said in Gorladenchearau v The Queen:

cases of driving-related NCSI have a shocking similarity.  The critical features recur:  speed, inattention, intoxication (alcohol or drugs) … .[2]

[1]See, eg, Gorladenchearau v The Queen (2011) 34 VR 149; [2011] VSCA 432 and Harrison v The Queen (2015) 49 VR 619; [2015] VSCA 349 (‘Harrison’).

[2](2011) 34 VR 149, 160 [43]; [2011] VSCA 432.

1. The present case was entirely different.  The applicant’s vehicle was in a stationary position, at the side of the road, when he put it in motion.  The victim (‘RP’), with whom the applicant was having a verbal altercation, was leaning through the front passenger window of the vehicle.  The applicant reversed, causing RP to fall over and fracture his left ankle.  The applicant then drove forward, running over RP’s leg and fracturing his femur. 

1. The applicant subsequently pleaded guilty to one charge of NCSI, and was sentenced to 3 years and 9 months’ imprisonment.  He pleaded guilty to several other charges arising out of the incident, including driving while disqualified (his 11^th such conviction).  The total effective sentence was 4 years and 9 months’ imprisonment, with a non-parole period of 3 years and 6 months.

1. The applicant now contends that the sentence imposed was manifestly excessive.  His principal attack is on the NCSI sentence.  He contends that the judge was wrong to characterise that offence as being in the ‘mid to upper range’ of seriousness.  The offence should, it is submitted, have been characterised as being at ‘the lower end of the scale’, given that it did not involve speed, intoxication, sleep deprivation or premeditation. 

1. For reasons which follow, we would refuse leave to appeal.  In our view, the judge was correct to regard this as a very serious example of NCSI by driving.  The absence of those factors which affect a person’s control of a vehicle on a highway was irrelevant.  The objective gravity of the offence rested on what the judge accurately described as RP’s ‘proximity’ to the applicant’s vehicle.  The applicant was fully aware of the risks associated with moving the vehicle, given RP’s position.  As will appear, there was no need for him to move it at all.  Moreover, RP’s injuries were correctly characterised as very serious.

Factual background[3]

[3]Paragraphs 6 to 17 are taken from DPP v Fox [2017] VCC 1986 [4]–[15] (‘Reasons’).

1. On the evening of 20 May 2016, RP attended the Traralgon RSL along with his partner, his mother-in-law and his son, who is autistic.  The group had dinner and some alcoholic drinks.  At 10:30 pm the applicant arrived at the Traralgon RSL and joined RP and his family.

1. At 11:30 pm, the applicant left the Traralgon RSL with RP and his family members.  The applicant drove them all to his home, where he stopped the car and went inside.  He told the group that he would be back shortly to drive them home.

1. Twenty minutes elapsed and the applicant had still not returned to the car.  RP approached the front door of the house where he argued with the applicant.  There was some pushing and shoving between the two of them.  RP and his family then began walking back to the Traralgon RSL, in order to get a taxi to take them home.

1. The applicant got into his car and set out after RP and his family.  It was submitted on the plea that he had followed the group in order to honour his promise to drive RP’s son home.  The trial judge did not accept this explanation.

1. When the applicant saw RP, he stopped the car on the road near to where RP was.  RP approached the applicant’s car and they spoke to each other, which quickly led to the resumption of the altercation.  RP was standing on the road and leaning into the front passenger window of the car.  (In his record of interview, the applicant alleged that RP attempted to hit him while leaning into the window.)

1. While RP was still leaning into the car, the applicant reversed his car, causing RP to fall over on the road and fracture his left ankle.  The applicant then drove forward, which resulted in the wheels of the car running over RP’s left femur and causing a fracture to his leg.  (Charge 1 – negligently causing serious injury).

1. The applicant made no attempt to check on the victim or call police to report the collision.  In his record of interview, the applicant said that, after he had driven over RP, he observed him on the ground in his rear view mirror.  He said that he then got out of the car and ‘started abusing’ RP, before getting back into the car and driving home. 

1. There being no police present at the scene of the accident, the applicant was obliged — but failed — to report in person the full details of the accident to the most accessible police station (Summary charge 10 – fail to report to police station).  He drove back to his home, parked the car and went inside.  At the time of driving, the applicant’s licence had been cancelled and he was disqualified from driving. (Summary charge 12 – drive whilst disqualified).

1. In the early hours of Saturday 21 May 2016, police attended the scene of the accident and observed RP lying on the footpath.  A short time later, an ambulance attended and conveyed him to the Latrobe Regional Hospital for further medical assessment and treatment.

1. Shortly after the incident, police attended the applicant’s home.  They observed the vehicle which the applicant had been driving parked in the rear of the yard.  The police officers knocked on the door, in an attempt to speak to the applicant, but he did not answer.

1. After approximately 20 minutes of trying to engage with the applicant, police forced entry through the rear door of the premises.  The applicant’s carer (‘T’) and two American pit bull terrier dogs stood between the applicant and the police.  T was obstructing police by her actions and verbal abuse.

1. T was removed from the premises by the police.  The applicant was holding the two dogs, who were barking aggressively.  Police deployed OC spray to neutralise the dogs.  The applicant reacted aggressively to this action and police deployed OC spray to subdue him.  The applicant resisted the instruction of the police to turn around and be handcuffed.  Three police officers were required to place handcuffs on him.  (Charge 2 – resisting an emergency worker in the due execution of duty).

1. The applicant was sentenced as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1	Negligently causing serious injury[4]	10 years	3 years 9 months	Base
2	Resisting an emergency worker on duty[5]	5 years	12 months	6 months
Related Summary Matters
10	Failure to report full particulars of accident[6]	Not less than 4 months and not more than 2 years[7]	6 months	2 months
12	Drive whilst disqualified[8]	2 years	9 months	4 months
Total Effective Sentence:		4 years and 9 months
Non-Parole Period:		3 years and 6 months
Pre-sentence detention declaration:		394 days
6AAA Declaration		6 years and 3 months with a non-parole period of 4 years and 6 months
Licence Disqualification		All licences cancelled. Disqualified for 4 years on charge 1. Disqualified for 8 years on charge 10.

[4]Contrary to s 24 of the Crimes Act 1958.

[5]Contrary to s 31(1)(b) of the Crimes Act 1958.

[6]Contrary to s 61(1)(e) and 61(4)(a) of the Road Safety Act 1986. 

[7]The penalty for a subsequent offence, as the offence was in this case.

[8]Contrary to s 30(1) of the Road Safety Act 1986.

Assessing the seriousness of the NCSI offence

1. The judge’s assessment of the seriousness of the NCSI offence was in these terms:

The objective gravity of the charge of negligently causing serious injury by driving is to be assessed by reference to the degree of negligence involved and the seriousness of the injury caused by that driving.  In your case you were aware of the close proximity of [RP] to your vehicle when you reversed in order to get him away from you.  The action of reversing when [RP] was so close to your vehicle was a high level of negligence. When that car movement is followed by a forward movement, which results in running over [RP’s] leg, [it] compounds the level of negligence.  [RP] was close to your vehicle and on the ground when you drove forward over him.

It was put on your behalf that you had to get away from [RP] and in the agony of the moment made these movements with your car.  I reject that submission.  You could have got out of the car, as you did after you ran over and injured him to abuse him, and removed yourself from any perceived danger from [RP].

Whilst I accept that there is no speed or breach of traffic lights or alcohol involved in your driving, the driving you did engage in on this occasion was negligent driving in the mid to upper range for this offence.

In this case, the injuries to [RP] were less serious than the worst of injuries imaginable.  But nonetheless, they were very serious.  In cases where the driving is in the upper range or toward the upper-end range of negligence, it is not appropriate to finesse or distinguish between levels of serious injury.[9]

[9]Reasons [34]–[37].

1. As noted earlier, the principal ground of appeal was that the judge here erred in stating that the offence fell in the ‘mid to upper range’ of seriousness.  It was said that his Honour had paid insufficient regard to the absence of what were said to be ‘the more common factors demonstrating high end negligence’, namely, drug or alcohol use, sleep deprivation and speed.  Reliance was placed on the decision of this Court in Miller v The Queen,[10] where a complaint in those terms was upheld.  That was, however, in a quite different context, where the Court was comparing two instances of the typical ‘NCSI by driving’ case and identifying material differences between them.[11]

   [10][2012] VSCA 265.

   [11]Ibid [48].

1. As we said earlier, the gravity of this offence was unaffected by the absence of factors which can affect a person’s ability to drive.  This was not a case where negligent driving on a highway created a risk of injury to some other person, which unfortunately eventuated.  Rather, the risk was present, specific, and immediately obvious to the applicant, because part of RP’s body was already inside the stationary vehicle when he made the decision to reverse.  Issues of speed, intoxication and sleep deprivation simply did not arise.  

1. The applicant’s submission sought to characterise the decision to reverse as a ‘spontaneous response’ to aggressive and hostile conduct by RP.  On the plea, it was contended that the decision to move the car was made in the heat of the moment, in order to ‘get away’ from RP.  That submission was correctly rejected, in our view.  First, it was the applicant himself who had initiated the renewed contact with RP, by driving after him as he walked back to the RSL.  Secondly, there was nothing in the prosecution opening, on the basis of which the plea was conducted, to suggest that RP was in any way threatening the applicant.[12]  Thirdly, on his own account, the applicant got out of his car when he saw in the rear view mirror that RP was on the ground, and started abusing RP before getting back into the car and driving home.

   [12]As noted earlier, in his record of interview, the applicant alleged that RP attempted to hit him while leaning into the window of the car.

1. As his Honour said, there was no need for the applicant to move his car either backwards or forwards.  Even if he felt threatened, as he claimed, he could simply have got out of the car, through the driver’s door, and walked away.

1. Ground 2 complains that the judge erred in his assessment of the seriousness of the injuries.  As recorded in the reasons, RP sustained a fractured left femur, fractured left ankle, two large grazes on the top and side of his forehead, a large bruise on the left side of his stomach and extensive swelling on the upper-left thigh.  He had been due to start a new job in the days immediately after the incident but was unable to work for a period of three months.  He was also unable to assist his partner with the care of his son. 

1. As pointed out in the respondent’s submission, the applicant by his plea of guilty accepted that the injuries were ‘substantial and protracted’, within the definition of ‘serious injury’ in s 15 of the Crimes Act 1958.  In our view, a fractured femur — which required the insertion of a rod and pins to secure it — is properly described as a ‘very serious’ injury.  The judge was also right to have regard to what was said in Harrison, as follows:

We would wish, in passing, to advise against the common practice of drawing detailed distinctions between the precise injuries suffered in different cases.  Sentencing judges are often asked to compare injuries which are plainly extremely serious and enduring with other very serious and enduring injuries, and place them in some hierarchy of severity.[13] 

[13](2015) 49 VR 619, 635 [68]; [2015] VSCA 349.

1. Ground 3 attacked the judge’s finding with respect to the applicant’s reason for driving after RP and his family.  On the plea, it was put on the applicant’s behalf that he had done so so that he could honour his promise to take RP’s disabled son home.  His Honour had expressed scepticism when that submission was put on the plea and, in his sentencing reasons, he rejected it.

1. There was, of course, no sworn evidence from the applicant.  In our view, it was well open to his Honour to reject this explanation.  There is nothing in the sentencing reasons to support the applicant’s contention that his Honour somehow imputed ‘a more sinister motive’ to the applicant.

Driving while disqualified

1. As appears from the table set out above, the judge sentenced the applicant to 9 months’ imprisonment on the charge of driving whilst disqualified, and ordered that 4 months of that sentence be cumulated on the head sentence.  He noted that the conviction on that charge represented the 11^th occasion on which the applicant had been found guilty of driving whilst disqualified or suspended. 

1. The relevant part of the sentencing reasons was in these terms:

In summary Charge 12 you have 10 relevant prior convictions.  I have not factored the consequences of this offence into the sentence for Charge 1 [negligently causing serious injury].  To do so would result in double punishment.  I have sentenced you for driving whilst disqualified, together with the appropriate cumulation to reflect general and specific deterrence in your case.[14]

[14]Reasons [40].

1. The complaint under ground 4 is that, notwithstanding what his Honour said, he had taken into account the fact of disqualification in assessing the degree of negligence involved in the NCSI offence and that, as a result, there had been double punishment.  There is nothing in this ground, in our view.  His Honour made no mention of the applicant’s disqualification in his consideration of the degree of negligence involved in the driving.  As the reasons make clear, his Honour was astute to avoid double punishment.

Manifest excess

1. The final complaint (under ground 6) is that the total effective sentence is manifestly excessive.  In our view, for the reasons already given, the sentences imposed for NCSI and for driving while disqualified were well open to the sentencing judge in the circumstances of the case. 

1. The sentence of 3 years and 9 months on the NCSI charge was moderate in the circumstances, given what was said in Harrison about the need for higher sentences for offences of NCSI by driving.[15]  As this Court has made clear, nothing said by the High Court in Director of Public Prosecutions v Dalgliesh[16] affects the continuing force of those statements.[17]

   [15](2015) 49 VR 619, 650 [140]; [2015] VSCA 349.

   [16](2017) 262 CLR 428; [2017] HCA 41.

   [17]See DPP v Barry [2017] VSCA 344, [45]. See also Papachristodoulou v The Queen [2017] VSCA 284, [29]–[33].

1. His Honour was very much alive to the applicant’s personal difficulties associated with the very serious industrial injury which he sustained as a teenager.  There were, on the other hand, very significant issues of specific deterrence and community protection. 

1. As his Honour noted, the applicant had prior convictions for intentionally cause injury, recklessly cause serious injury, intentionally cause serious injury and kidnapping.  He also had three prior convictions for reckless conduct endangering serious injury.  On the most recent occasion, he had driven his car at a police officer who had tried to intercept him.  He was sentenced to 2 years’ imprisonment, with a non-parole period of 18 months.  Moreover, the applicant had just been released from prison when he committed the offences with which we are concerned.  As a result, his Honour found, the applicant’s prospects of rehabilitation were poor.

1. This ground also fails.  The application for leave to appeal must therefore be refused. 

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