McGrath v The Queen
[2018] VSCA 134
•25 May 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0083
| CHRISTOPHER McGRATH |
| v |
| THE QUEEN |
---
| JUDGES: | OSBORN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 April 2018 |
| DATE OF JUDGMENT: | 25 May 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 134 |
| JUDGMENT APPEALED FROM: | R v McGrath (Unreported, County Court of Victoria, Judge Chettle, 4 April 2017) |
---
CRIMINAL LAW – Appeal against sentence – Culpable driving causing death – Causing serious injury negligently – Appellant intoxicated at time of offending – Total effective sentence eight years and nine months’ imprisonment with a non-parole period of six years – Whether sentencing hearing miscarried because judge refused application to adjourn to obtain comprehensive neuropsychological testing – Procedural fairness required adjournment – Need for just punishment, denunciation, general deterrence, specific deterrence and protection of community – No lesser sentence imposed – Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P Smallwood with Mr J Connolly | Grigor Lawyers |
| For the Respondent | Mr B Sonnet | Mr John Cain, Solicitor for Public Prosecutions |
OSBORN JA
PRIEST JA:
On 3 April 2017, the appellant appeared before his Honour Judge Chettle in the County Court at Wodonga for the purposes of a plea hearing with respect to charges of culpable driving and causing serious injury negligently.
On 4 April 2017, the appellant was as sentenced as follows:
| Charge | Offence | Maximum Penalty | Sentence | Cumulation |
| 1 | Culpable driving | 20 years | 7 years 6 months | Base |
| 2 | Causing serious injury negligently | 10 years | 2 years 6 months | 1 year 3 months |
| Total Effective Sentence | 8 years 9 months’ imprisonment | |||
| Non-Parole Period Fixed | 6 years’ imprisonment | |||
| Pre-Sentence Detention | 3 days | |||
| 6AAA Statement | 11 years’ imprisonment, with a non-parole period of 8 years 3 months | |||
| Other Orders | Licence cancelled and disqualified from driving for 10 years; forensic sample order made | |||
On 16 November 2017, an application for leave to appeal was granted by Beach JA on the following grounds:
Ground 1: fresh evidence in the form of a neuropsychological report authored by Martin Jackson dated 8 September 2017, illuminates the relevance of the applicant’s cognitive functioning to the sentencing task.[1]
Ground 2: the sentencing discretion miscarried as a result of the sentencing judge having refused the applicant’s application to adjourn the plea hearing.[2]
[1]Particulars omitted.
[2]Particulars omitted.
In our opinion, the sentencing hearing in this matter miscarried because the sentencing judge refused the appellant’s application to adjourn it in circumstances where procedural fairness required an adjournment.
In particular, the appellant’s counsel sought an adjournment on the basis that comprehensive neuropsychological testing of the appellant was relevant to the sentencing task. The judge refused that request and did so in part on the basis that such testing would delay finalisation of the matter in circumstances where he was shortly to retire.
The judge postulated that any potential prejudice to the appellant could be avoided by assuming that his cognitive function was at the lower level of average functioning. Subsequently he sentenced the appellant accepting the view of Mr Jeffrey Cummins, a clinical and forensic psychologist, that the appellant was probably within the lower level of average, possibly borderline intellectual functioning. A neuropsychological report subsequently obtained demonstrates that this assumption was not adequate to prevent prejudice to the appellant.
In the circumstances an error in the sentence has been established.[3] Nevertheless, for the reasons we shall explain we are not satisfied that a different sentence should be imposed. Accordingly, the appeal must be dismissed.[4]
[3]Criminal Procedure Act 2009, s 281(a).
[4]Criminal Procedure Act, ss 281(1)(b) and (2).
It is convenient to deal in turn with the circumstances of the offending, the appellant’s complaints relating to procedural fairness, the background material relating to the appellant personally, the grounds of appeal, and the appropriate sentence.
The circumstances of the offending
The appellant is now aged 28. At about 4:40 am on 13 January 2016 he was driving a white Ford Falcon sedan in an easterly direction on Gooramadda Road, Gooramadda, towards a service station at Barnawartha. The appellant’s vehicle was travelling at a speed between 137 kmph and 147 kmph. The road was within a 100 kilometre per hour speed zone and consisted of a single bitumen carriageway with one lane of traffic for each direction.
The appellant lost control of the Ford sedan on a section of the road with a slight crest and a slight curve to the right. His vehicle skidded under braking onto the wrong side of the road for a distance of some 52.3 metres before colliding head on with a Proton Jumbuck utility travelling west. At the point of collision, the appellant’s vehicle was travelling at between 89 and 103 kph.
The Proton was driven by Mr Andrew Watkin a 41 year old man who was alone in his vehicle, travelling to his place of employment. As a result of the collision, Mr Watkin died immediately.
The appellant also had a passenger in his car, Mr Samuel Petrie. Mr Petrie was 23 years of age and the appellant’s friend.
As a result of the collision, Mr Petrie suffered serious injuries, including a fractured ulna, a collapsed lung, a broken ankle, a broken wrist and a fractured kneecap.
The appellant suffered a broken clavicle and a mild to moderate brain injury. He was taken to Albury Hospital where a blood sample taken from him at 6:20 am subsequently demonstrated that he had a blood alcohol reading of .083 grams of alcohol per 100 ml of blood.
Prior to the collision, the appellant and Mr Petrie had been drinking alcohol. In the early hours of the morning, the appellant and Mr Petrie went out in the appellant’s partner’s motor vehicle looking for cigarette papers. They drove first to a river and sat in the car for a short time, before travelling to Rutherglen but found the shops shut. They then headed towards a service station at Barnawartha.
Witnesses who attended the collision scene after the event described the appellant as appearing affected by alcohol.
The appellant had a prior criminal history. On 21 September 2007, he was before the Albury Children’s Court on a charge of driving whilst unlicensed and received a fine. On 11 January 2011, he was convicted at the Albury Local Court (Howlong) on a charge of driving with a middle range of prescribed concentration of alcohol and on a charge of driving a vehicle whilst unlicensed. He was fined and disqualified from obtaining a licence for 12 months.
On 4 September 2014, the appellant was again before the Local Court at Albury and was convicted on charges of driving under the influence of alcohol and driving whilst his licence was expired for two years or more. Again he was fined and was disqualified for 12 months. This period of disqualification was current at the time of the collision on 13 January 2016. The offending now in issue occurred only six months after the driving under the influence conviction.
The appellant also had other convictions which the sentencing judge did not regard as relevant. They related principally to property offences and we take a like view.
Victim impact statements were tendered on the sentencing hearing from members of Mr Watkin’s family. Statements from his mother, two of his sisters, his brother, his stepfather and his stepfather’s wife eloquently expressed the grief and tragic loss they have suffered as a result of the appellant’s driving.
The charge of culpable driving was particularised on the indictment as having been committed as a result of the appellant having driven:
(a) negligently; or
(b) whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle.
The prosecution relied on the evidence as to speed, the appellant’s blood alcohol concentration and the fact that the car he was driving travelled onto the wrong side of the road prior to the collision. The sentencing judge assessed the appellant’s driving as representing an upper level example of the offence of culpable driving causing death, and an upper level example of the offence of negligently causing serious injury.[5]
[5]R v McGrath (Unreported, County Court of Victoria, Judge Chettle, 4 April 2017) [54].
The plea hearing
On the plea hearing, counsel for the appellant handed up a comprehensive written summary of his submissions. The summary included reference to the fact the accused was at the lower end of the below average range in terms of intellectual functioning and foreshadowed a submission that his condition required further neuropsychological assessment.
The material tendered on the plea on behalf of the appellant included reports from Ms Robyne Slade (a clinical psychologist), Dr Suzette Sowden (a clinical and forensic psychologist), and Mr Jeffrey Cummins (a clinical and forensic psychologist). Mr Cummins’ report dated 31 March 2017 was handed to the judge at the commencement of the plea and included the following statement:
On the basis of my assessment of Mr McGrath it is my opinion that it would be inappropriate for Mr McGrath to be sentenced until the Court was provided with the results of comprehensive neuropsychological testing.
The report further stated:
In my opinion Mr McGrath is a relatively immature 27 year old man who has a dependent personality style and has difficulty processing information and is most likely functioning at the lower end of the below average range in terms of intellectual functioning. In my opinion Mr McGrath should be neuropsychologically assessed and I would then be prepared to provide an addendum report concerning his current situation and prognosis.
Relying on the opinions expressed by Mr Cummins, counsel for the appellant applied to the sentencing judge for an adjournment at the outset of the plea hearing. The judge rejected the application saying:
I’m not going to adjourn the matter, Mr Purcell [counsel for the appellant]. At the end of this time, if I need a neuropsychological report I’ll consider adjourning sentencing but at this stage I’m going to go on with the hearing.
As Beach JA concluded, on the leave application, his Honour’s decision to go on with the plea hearing, was a discretionary decision that was open to him in all circumstances.[6]
[6]McGrath v The Queen (Unreported, Victorian Court of Appeal, Beach JA, 16 November 2017) [6].
The plea then proceeded to a point where Mr Purcell said:
Now, we’ve talked about the report of Mr Cummins and he comes to the conclusion that his low functioning, the lower end of below average in terms of intellectual functioning, but I’ll ask your Honour, if that can be further explored and we’re hoping that it can be.
The following discussion then ensued:
HIS HONOUR: I understand that that is the case and it’s consistent with his educational level and how you tell me he was going in school.
MR PURCELL: Well, yes.
HIS HONOUR: It’s consistent with the dumb decisions he made on that night.
MR PURCELL: Perhaps, Your Honour, yes.
HIS HONOUR: You know, there's about six or seven of them.
MR PURCELL: Yes, and certainly it's hoped that before he is sentenced that he can - Mr Jackson can attend upon him and assess him so that we can have a definitive - put a definitive ‑ ‑ ‑
HIS HONOUR: It’s not going to happen because, as you know, I am retiring, and so that will take some time. I am going to proceed on the basis that he is at the bottom end of intellectual - the low average end of intellectual functioning.
MR PURCELL: Yes, as Your Honour pleases.
HIS HONOUR: I’ll accept on that basis ‑ ‑ ‑
MR PURCELL: Yes.
HIS HONOUR: ‑ ‑ ‑ and, of course, make allowance for that.
MR PURCELL: Yes, Your Honour.
HIS HONOUR: All that Jackson’s report would do is confirm that I'd acted on that basis.
MR PURCELL: Yes.
HIS HONOUR: So I don’t see that he’s prejudiced by my failing to get a report. If you want to for any future proceedings, that’s up to you.
It can be seen that having initially indicated that he would consider adjourning the plea if he was persuaded that he needed a neuropsychological report, his Honour came to the conclusion that he did not need to do so if he proceeded on the basis stated above and that an actuating factor in reaching this conclusion was the prospect that he would not otherwise be able to complete the sentencing hearing because of his forthcoming retirement.
Towards the end of the plea hearing there was further discussion about obtaining a report from Associate Professor Ian Baguley, a rehabilitation specialist, whose opinion was incidentally referred to in the report of Ms Slade. A report from Associate Professor Baguley was obtained the same day and was ultimately referred to at [31] of the sentencing judge’s reasons. This sequence of events demonstrates that the judge was prepared to receive additional specialist reports from the defence provided they could be furnished to him on the day of the hearing.
Subsequent to the imposition of sentence, the appellant was assessed by Mr Martin Jackson, a clinical neuropsychologist. Mr Jackson noted:
Mr McGrath has a history of substance use including alcohol, cannabis, speed and ecstasy. He is reported to have potentially suffered a traumatic brain injury in the motor vehicle accident on 13 January 2016, which is the accident that led to the charges and his prison sentence. He also received injuries in a workplace accident in 2012. He has experienced mental health problems (anxiety and adjustment disorder) since the motor vehicle accident of January 2016, although it is noted that he also had a period of Major Depression just prior to this. He was also noted to have learning difficulties at school. He has an offending history going back to 2007 (when aged 17).
Mr Jackson took a full history relating to the appellant’s education and occupation history, medical history, psychiatric history, personal/social history, and offending history. He also noted the contents of reports from Ms Slade, Associate Professor Baguley, and Dr Sowden. He recorded the appellant’s current presentation and then set out the results of neuropsychological examination. He recorded that he administered the following tests:
Wechsler Test of Adult Reading (WTAR)
Wide Range Achievement Test 3rd Edition (WRAT-3) - Reading
Wechsler Adult Intelligence Scale 4th Edition (WAIS-4)
Wechsler Memory Scale 3rd Edition (WMS-3) – Logical Memory
Rey Auditory Verbal Learning Test
Trail Making Test
Rey Figure
Controlled Oral Word Association Test
Rey 15 Item Test
Colour Form Sort
Test of Memory Malingering (TOMM)
The following descriptive terms relate to the corresponding standard scores and percentiles:
DESCRIPTOR STANDARD SCORE (SS) PERCENTILE (%) Very Superior 130 and above 98 and above Superior 120 — 129 91 — 97 High Average 110 — 119 75 — 90 Average 90 — 109 25 — 74 Low Average 80 — 89 10 — 24 Borderline 70 — 79 3 — 9 Extremely Low 69 and below 2 and below
Mr Jackson went on to estimate the appellant’s premorbid intelligence as being of Borderline (at best) standard. He formed this estimate on the basis of the appellant’s education and occupation history, as well as his performance on tests that ‘hold up well’ to the effects of brain injury and mental health conditions (tests relating to vocabulary, reading and general knowledge).
Mr Jackson also amplified his findings with respect to general intelligence, attention/concentration/working memory, new learning and memory, language skills, and executive functions.
In relation to behavioural/emotional factors, he recorded the following observations:
As mentioned previously, Mr McGrath reported that he had been diagnosed with depression and placed on an antidepressant just prior to the motor-vehicle accident. However, his mood deteriorated significantly following the motor-vehicle accident, as he had killed somebody and he was upset by the way he had been portrayed in the media by the police. He became depressed and anxious and was referred for psychological counselling from two psychologists (one for his WorkCover injury and one for the motor-vehicle accident), whom he saw regularly over the next 15 months. He stated that following the accident, he has tried to improve himself by ceasing alcohol and cannabis use, as well as trying to undertake further study and work as a volunteer helping people. However, his mood deteriorated again after he received a lengthy sentence at Court in April 2017. His mood deteriorated again following the birth of his child a couple of months ago, whilst he was in prison. He reports ongoing issues with his mood in that he gets emotional and upset.
Clinically, Mr McGrath presented with clear signs of depression in that his mood was lowered and he showed a restricted range of emotional affect. It was also noted that he became quite upset and teary when talking about the accident, his incarceration, and the birth of his child. He also demonstrated a significant level of anxiety and stress in that there was a level of restlessness and motoric agitation at times. Whilst he acknowledges that he deserves a period of imprisonment because of his actions, he felt that he has been unfairly dealt an excessive sentence. He stated that he was having ‘bad thoughts’, but he would not elaborate on these (even though pressed several times). I am concerned that he may be having some suicidal ideation.
Mr Jackson ultimately summarised the results of his neuropsychological assessment as follows.
1.Mr McGrath is a man of estimated Borderline (at best) premorbid abilities on the basis of his education and occupation history, as well as his performances on tests that ‘hold up well’ to the effects of brain injury and mental health conditions (vocabulary, reading, and general knowledge).
2.His verbal intellectual abilities (vocabulary, general knowledge, and verbal abstract reasoning) were in the Extremely Low to Borderline range, with a strength in his vocabulary. His perceptual intellectual abilities (attention to visual detail, construction, and visual logical thinking) varied from the Extremely Low to Low Average range, with a strength in his construction skills.
3.Processing speed was generally in the Extremely Low range, apart from one Borderline performance (visual matching). He was slow on tasks with a higher working memory load. Furthermore, he showed significant impairment of high level attention (multiple task processing), on which he was slow and made an error.
4.His immediate memory span and sequencing span were in the Extremely Low range, whilst his working memory span was Borderline.
5.He was initially completely overwhelmed on tests of new learning and memory and even with multiple repetition, struggled to learn beyond his immediate memory span (Extremely Low). On tasks where information had been repeated or he had ample time to process it, he showed no significant loss of information after a delay (scores varied from the Extremely Low to Average range), although tasks where information had been presented only once in a short period of time, he showed total loss of information after a delay. He showed limited benefit from cues and prompts, with his recognition memory being in the Extremely Low range.
6.The majority of Mr McGrath’s language skills were in the Borderline range, including his vocabulary, reading of regular words (Grade 4 primary school level, letter fluency and category fluency). Reading of irregular words was Extremely Low.
7.Mr McGrath demonstrated an executive strength (Low Average) in the area of planning and organisation. In contrast, letter fluency and mental arithmetic were in the Borderline range and he could only do single-stage basic calculations. Furthermore, verbal abstract reasoning and visual logical thinking were in the Extremely Low range, with his responses being quite concrete. Despite this, he did demonstrate basic concept formation and flexibility. There was no evidence of a disorder of impulse control.
8.Mr McGrath reports that he had become depressed just before his motor-vehicle accident, but that his mood had deteriorated following the accident and then had deteriorated further following his incarceration and the birth of his child whilst in custody. He received a large number of sessions with two psychologists from the time of the accident to his incarceration. He reports being very remorseful for his actions in the accident and has tried to improve himself following this. Clinically, he presented with clear signs of significant depression and anxiety and was very upset when talking about the accident and its consequences, including his long prison sentence, etc. There were also clear signs of anxiety. Formal questionnaires of mood were not given due to his poor literacy skills.
9.Mr McGrath presented with appropriate test taking behaviour and he passed three tests sensitive to reduced effort. Therefore, his neuropsychological profile is considered to be valid and reliable.
Overall, Mr McGrath is a man of estimated Borderline (at best) premorbid abilities, who demonstrated a personal strength (Low Average) in his planning and organisation skills and his memory of a complex figure (Average). These were isolated performances.
Performances in the Borderline range included:
•Most language skills (vocabulary, reading of regular words, letter fluency and category fluency);
• Processing speed on one basic task;
• Working memory span;
• Some executive skills (mental arithmetic and letter fluency);
• Basic concept formation and flexibility
In contrast, the majority of his performances were in the Extremely Low range including:
• Basic processing speed;
• Multiple task processing (additionally slow and an error);
• Immediate memory span and sequencing span;
• Reading of irregular words;
• New learning and memory on the majority of tasks;
• Delayed recognition memory;
•Some executive skills (verbal abstract reasoning and visual logical thinking)
It is also noted that Mr McGrath presents with clear signs of significant depression, anxiety, and stress and that he has a lowered mood, a reduced range of emotional affect, signs of being upset, and signs of being stressed and distressed.
There is no evidence that he is trying to exaggerate his symptomatology.
In response to specific questions, Mr Jackson expressed the opinion that the appellant’s current level of intellectual performance is much lower than it would have been at the date of offending.
It is clear that Mr McGrath has always been of low cognitive ability, but he is certainly performing much lower than would be expected on the basis of his estimated premorbid abilities. However, it is also clear that he has significant (probably severe) ongoing depression and anxiety. It is well-known that the primary cognitive impairments of depression and anxiety are slowed processing speed and impairment of high level attention and working memory, which then have an impact on new learning and memory (generally overwhelmed, but usually remembering what they do learn). Furthermore, there can be some impairment of executive skills. Therefore, Mr McGrath’s current cognitive profile can be explained by ongoing severe depression and anxiety. It is unlikely that he has ongoing effects from an acquired brain injury from any source.
In turn, Mr Jackson expressed the following opinion with respect to the question whether the appellant’s intellectual deficits had any impact on his offending:
It is likely that Mr McGrath’s cognitive abilities at the time of the offending were of a better level than they are at the moment. This is because I am of the opinion that his current cognitive impairments can be accounted for by his significant mental health issues. I note that whilst he was probably depressed at the time of the accident, his mental health condition has deteriorated since that time.
The cognitive skill or difficulty most likely to have had an impact on his offending behaviour, is his poor abstract and logical thinking and his difficulties in terms of predicting the possible outcomes of his behaviour. Mr McGrath’s concrete thinking means that he is not likely to have considered the potential consequences of going out driving at 04:30 in the morning to get a packet of cigarettes when he had been drinking that night. This would certainly not be considered to be a new problem, given that he has two other previous drink driving charges. I also note that it is highly likely given his low level of cognitive functioning that he will have trouble predicting what his potential blood alcohol level might be after a period of drinking. I do note that this is somewhat speculative, as I did not specifically ask him about this; I am deducing this from his cognitive profile.
In respect of the prospects of rehabilitation, Mr Jackson stated:
Mr McGrath does have reasonable prospects of rehabilitation, but the first thing that needs to be treated is his mental health condition. I note that the supplied documentation from his two treating psychologists indicated that he had improved significantly with treatment from the time of the accident to the time of his incarceration some 15 months later. He had been abstinent from alcohol for about a year after the accident and ceased Marijuana in early 2017. He had enrolled in a course and had been doing volunteer work in the community. He was clearly making an effort. However, the long prison sentence and the birth of his child whilst he is in custody I believe has resulted in a significant deterioration in his mental health. Not until this is effectively treated, will he be able to get back on the path of rehabilitation.
Even though Mr McGrath is a man of at best Borderline abilities, he does have the capacity to learn and remember under appropriate conditions (lots of time to process information, multiple repetitions, etc.). Furthermore, he does have good basic planning and organisation skills, as well as intact basic concept formation and flexibility. Therefore, he does have the capacity to learn and change his behaviour under the right conditions.
Mr Jackson expressed the further opinions that the appellant’s mental health deteriorated following the driving collision but then improved with intensive treatment (55 sessions over 15 months) and community support. His mental state has deteriorated again following imprisonment. In Mr Jackson’s view, there may currently be a risk of self-harm.
Lastly, Mr Jackson recommended that in addition to treatment for his mental health problems the appellant receive counselling with respect to substance abuse. He expressed the opinion:
It is clear that his use of substances has been the main reason for his offending behaviour in the past.
Analysis
Beach JA granted leave to appeal on two grounds, the first being that the fresh evidence constituted by the report of Mr Jackson illuminated the relevance of the appellant’s cognitive function with the sentencing task. And the second being that the sentencing discretion miscarried as a result of the sentencing judge having refused the appellant’s application to adjourn the plea hearing.
Upon the hearing of the appeal, counsel for the appellant submitted that ground 1 was in effect intended to support ground 2.
Further, as the matter was argued, the central submission made on behalf of the appellant was that he did not receive a fair hearing because the sentencing judge refused him the opportunity to obtain and adduce relevant evidence.
In this regard we note that the request for an adjournment was on its face a reasonable one. The appellant pleaded guilty at a committal hearing on 2 March 2017. The plea was listed five weeks later. During the intervening period the appellant obtained a significant body of plea material including reports from Ms Slade and Dr Sowden. He was also assessed by Mr Cummins and obtained a report from him. Mr Cummins’ report provided a reasoned basis for obtaining a further report from a neuropsychologist. Further, the potential relevance of such a report was demonstrated by the plea material as a whole.
The written case for the respondent on appeal contended that the report of Mr Jackson did not add materially to the information available to the sentencing judge or demonstrate that he had sentenced on an erroneous basis. These submissions were not pursued by counsel for the respondent on the hearing of the appeal and in our view he was correct not to do so.
First, Mr Jackson assessed the appellant’s intellectual function at a lower level than that assumed by the judge. Secondly, Mr Jackson’s report materially amplified the implications of the appellant’s relatively low level of intellectual function.
It follows that the effect of the adjournment was to exclude relevant evidence which would otherwise have been adduced on behalf of the appellant.
Further, the decision to reject the opinion of Mr Cummins that a neuropsychological report was appropriate and to refuse an adjournment was made for reasons which do not withstand scrutiny.
First, the sentencing judge stated in terms that an adjournment would not be granted because he was shortly to retire. This consideration could not override the obligation to provide a fair hearing of the plea. Secondly, his Honour expressed the view that any prejudice to the appellant would be avoided if he simply assumed that the appellant was at the lower end of the average range of intellectual function. This assumption was arbitrary and has been demonstrated to be inadequate by the report of Mr Jackson.
In the circumstances, we are satisfied that material error occurred in the sentencing process and ground 2 of appeal is made out.
The legal principles underpinning our conclusion may be summarised as follows:
(1)The judge had a general discretionary power to adjourn pursuant to s 331 of the Criminal Procedure Act 2009.
(2)The judge was not confined to considering the interests of the appellant. He was entitled to consider the interests of justice having regard to all relevant circumstances.[7]
[7]R v Cox [1960] VR 665, 667.
(3)There was a legitimate public interest in seeking to expedite the finalisation of the plea hearing in order to reduce the stress and distress which it could be expected to cause to the family of Mr Watkin.
(4)There was however no issue of delay or other discrediting conduct on the part of the appellant. In HG v The Queen,[8] Hayne J said:
[8](1999) 197 CLR 414, 453 [136].
If a witness whom the accused wishes to call to give evidence is not available, and if (as was the case here) there is no suggestion that the accused is seeking simply to delay the trial, a trial judge would ordinarily not refuse the adjournment sought.
(5)In the present case, the application was properly made upon the basis of evidence and not mere assertion.[9]
(6)The sentencing judge was bound to consider the potential prejudice to the appellant’s case. The question was whether sufficient evidence had been shown to demonstrate that a neuropsychological report might be material and its unavailability, when considered with the other relevant circumstances, provided sufficient ground for an adjournment.[10]
(7)The impending retirement of the judge raised a potentially relevant case management issue, but it could not prevail over the injustice of shutting the appellant out from adducing relevant evidence which might materially assist his case.
(8)The general principle governing appellate interference with a refusal to adjourn was stated by Kaye J in Onus v Sealey:[11]
It is well established that the decision, whether to accede to or to refuse an application for an adjournment, is an exercise of a judicial discretion. Appellate courts rarely interfere with a trial judge’s exercise of that discretion. However, where the result of a refusal of an adjournment might be to prevent a party from presenting his or her case as fully as necessary and within the limits of the law, then an appellate court will interfere with a trial judge’s exercise of his discretion. Such an intervention by an appellate court occurs where it is necessary to prevent an injustice to one or other of the parties caused by the failure of the lower court to grant the adjournment; see McColl v Lehmann; Maxwell v Keun; Walker v Walker; Bloch v Bloch; Queensland v JL Holdings Pty Ltd.
(9) To similar effect Gummow J observed in HG v The Queen:[12]
The fundamental question is whether, as the Full Court of the Supreme Court of Victoria explained in R v Jones with reference to the proviso to section 568 of the Crimes Act 1958 (Vic), the denial of the adjournment meant that the accused was not given a full opportunity to present his defence, a ‘basic standard required for a proper administration of justice’.
[9]R v Jones [1971] VR 72, 78.
[10]HG v The Queen (1999) 197 CLR 414, 449 [118] (Gummow J).
[11](2004) 149 A Crim R 227, 237 [32]. See also Naidu v The Queen (2011) 31 VR 212, 218 [29] (Maxwell P, Weinberg JA and Ross AJA); AJP v The Queen [2010] VSCA 224 [16] (Nettle, Harper and Hansen JJA).
[12](1999) 197 CLR 414, 450 [126].
In the present case, we are satisfied the refusal to adjourn denied the appellant a full and fair opportunity to present his plea in mitigation in accordance with the principles we have set out above.
Neither party to the appeal invited us to remit the matter for re-sentence before the County Court. In these circumstances we must consider whether this Court should impose a lesser sentence than that imposed by the sentencing judge.[13]
Matters relevance to resentence
[13]Criminal Procedure Act 2009, ss 281(1) and (2).
We agree with the sentencing judge’s assessment of the relative gravity of the offending as involving upper level examples of the offences in issue. There is no discord between the sentences imposed and the objective seriousness of the appellant’s conduct.
The appellant drove at high speed after drinking, lost control of his vehicle and skidded over a considerable distance on the wrong side of the road, killing an innocent member of the public driving in an oncoming direction, and seriously injuring his own passenger. Furthermore, the appellant’s culpable driving occurred when he had a history of prior offending for driving under the influence of alcohol, at a time when he was disqualified from driving in New South Wales and when he was the subject of a 0.00 blood alcohol requirement as the holder of a learners permit in Victoria.
We turn then to his personal circumstances which were summarised by the sentencing judge as follows:
Your personal history, (is) set out in the report of psychologist, Jeffrey Cummins, which is at Tab 3 of Exhibit 1. Your parents separated when you were an infant and you were raised by your mother. You have Aboriginal heritage through her lineage and you remained living with her in Howlong until you moved out to live with your partner, Christine. You two were together for some three years.
At the time of your offending, you were living in Albury. Your father and his new family also lived in Albury and your mother was single, living in Howlong. Both your parents remain supportive of you.
You were educated to mid-Year 9 level, leaving at the age of 14 and a half. You were not a good student, consistent with Mr Cummins’ view that you are cognitively at the lower end of the below average range, possibly at borderline range.
After leaving school, you commenced a bricklayer’s apprenticeship, apparently, before working with a shed construction company, then doing carpentry and painting work. Your bricklaying work stopped when you fractured your left ankle. You found work with Lay Engineering in Howlong and you worked with them for some four and a half years.
In 2012, you suffered a workplace injury to your neck. You were in receipt of WorkCover payments for some months, prior to the offending for which I am to sentence you. Apparently you still receive WorkCover payments and in relation to the work sustained rotator cuff injury. In addition you suffer neck and back pain.
You have residual problems with the clavicle you fractured in the collision on 13 January last year. You require surgery to fix that problem. You told Mr Cummins that you had issues with binge drinking alcohol prior to the collision, but have now ceased drinking and have obtained assistance from Alcoholics Anonymous.
You have attended a psychologist, Dr Suzette Sowden, since early-2016, in relation to your WorkCover claim and psychologist, Robyne Slade, via the TAC, subsequent to the January 16 collision.
Mr Cummins is of the view that you are remorseful for your offending and have good victim empathy. I observed you to be quite distressed in court when the prosecutor read the victim impact statements yesterday. Mr Cummins is also of the view that you are emotionally vulnerable, immature, severely depressed and extremely anxious. I accept that these conditions will make your time in custody more onerous for you than it would for others without your psychological issues.
…
Exhibit 4, a report tendered this morning from Dr Baguley, helps resolve any brain injury-related issues. That report concludes, at the last paragraph, bearing in mind it was written on 11 February last year:
‘To summarise, Chris has experienced a mild to moderate traumatic brain injury in the motor vehicle accident. This is complicated his previous workplace issues and added new acute disability, on top of pre-existent ones. The motor vehicle accident has decreased his capacity to return to work at the present time and it is grossly inappropriate to push him for this in his present condition. Research has shown that the majority of people with mild to moderate traumatic brain injuries have full recovery from their early symptoms, except in situations where there are significant ongoing stressors. I have reassured Chris that his current post-traumatic brain injury symptoms are not dangerous and that he should expect a good outcome’.
…
In the report of Robyne Slade, part of Exhibit 1, Tab 5, she reports on behalf of the Transport Accident Commission. Mr McGrath has been seen by the writer on 29 occasions in total:
‘Mr McGrath has been diligent in keeping his appointments and motivated to attend to the content of the clinical psychology consultations’.
…
In conclusion, Ms Slade states:
‘Mr McGrath had shown improvement in his mood and functioning during the time of clinical psychology to the present. He has demonstrated accurate empathy and genuine remorse for his actions’.
Dr Suzette Sowden reports:
‘Mr McGrath moved from Albury/Wodonga to Melbourne in approximately October 2016, in order to reside with his current partner, who was employed as a house supervisor with children protection and residential. He and his partner are having their first child, who is expected to be born in June 2017. Mr McGrath’s mental health conditions, including his major depressive disorder, along with his adjustment disorder with anxiety and his trauma symptoms, appear to have been exacerbated by his current situation in relation to the legal processes and possible consequences arising from the motor vehicle accident on 13 January 2016. I am of the opinion, at the time of the incident on 13 January 2016, Mr McGrath’s insight and judgment had been adversely affected by his depression and pain arising from his workplace injury and the apparent manner in which he had been treated by his employer. In addition, Mr McGrath’s recent response to the SB5 ABIQ test daiquiri, suggests that he has low intelligence, rendering vulnerable to adverse social influences. It is considered that Mr McGrath’s apparent low intelligence is a risk factor for him in managing his life. He does need ongoing treatment for his major depressive disorder and his adjustment disorder, with anxiety and trauma symptoms. He has committed to treatment and has attended 26 sessions this year since 11 January last year. He has attended therapy in both Albury and South Yarra. Mr McGrath has been observed to be remorseful for what happened and to have victim empathy’.
To these matters must be added the conclusions of Mr Jackson which we have set out above.
Should a lesser sentence be imposed?
We accept (as did the sentencing judge) that the appellant must be given credit for his pleas of guilty and that he has expressed genuine remorse for his offending.
Again, like the sentencing judge, we would regard his prospects of rehabilitation as somewhat guarded given his prior criminal history. In particular, it is clear that he has trouble behaving responsibly after drinking alcohol.
On the other hand, we accept that the appellant himself suffered a mild to moderate brain injury in the collision which has had adverse consequences for him personally.
Further, we accept that the appellant’s mental health conditions and relatively low level of intelligence will render his time in custody materially more difficult and burdensome than would ordinarily be the case.
On the other hand, we are not persuaded that the evidence as a whole or that of Mr Jackson in particular, should be regarded as demonstrating his low intellectual ability reduces the appellant’s moral culpability or renders him an inappropriate vehicle for general or specific deterrence.
First, Mr Jackson’s report makes clear that the appellant’s present level of intellectual functioning is materially less than it is likely to have been at the time of offending. We do not accept that at the time of offending he was intellectually disabled or functioning at such a low level as to be regarded as being in an equivalent position to the prisoner in Muldrock v The Queen.[14]
[14](2011) 244 CLR 120.
Secondly, despite his relatively low underlying intelligence the appellant was able to function satisfactorily as a workman in the building and construction industries over a number of years. As such he must have demonstrated some practical capacity to reason consequentially in the use of tools and machinery. Further, Mr Jackson records an executive strength in the areas of planning and organisation and noted the appellant did demonstrate basic concept formation and flexibility. On the evidence, there is no reason to doubt that the appellant was capable of driving a motor vehicle safely when sober.
Thirdly, at the time of the offending the appellant must have been aware that he should not drink and drive yet he did so. It is plain that on this occasion as on prior occasions the offending occurred in the context of use of alcohol and that the appellant’s underlying decision making capability was materially reduced as a consequence of this factor. We accept Mr Jackson’s opinion that the appellant’s use of substances has been the main reason for his offending in the past. If this is so his intellectual limitations cannot be said to materially reduce his culpability. The offending occurred as a result of the appellant’s drinking and his incapacity for reasoning consequentially when affected by alcohol.
Fourthly, insofar as the appellant’s underlying capacity to reason consequentially is below average, that deficiency will give rise to a correlative ongoing risk of repeat offending. In turn, that risk gives rise to a need for protection of the community.[15]
[15]Veen v The Queen (No 2) (1988) 77 ALR 385.
Insofar as general deterrence is concerned the appellant was, like many who commit offences of the type in question, an immature man affected by alcohol, driving at excessive speed. These characteristics give rise to a need for the Court to send a clear message by way of general deterrence of similar behaviour. That message must be that no matter who is driving a car the community will not tolerate driving by a person under the influence of alcohol or driving at excessive speed. The tragic consequences of the appellant’s behaviour graphically demonstrate the need for ongoing deterrence of similar conduct.
Insofar as specific deterrence is concerned, Mr Jackson’s report confirms that the appellant does have a capacity to learn new behaviours in appropriate conditions. This conclusion supports the view that specific deterrence has a real role to play in this case.
Whilst the individual sentences imposed in the County Court of 7 years and 6 months' imprisonment for culpable driving and 2 years and 6 months’ imprisonment for negligently causing serious injury were stern from the appellant’s point of view, as was the total effective sentence of 8 years and 9 months’ imprisonment, we are not persuaded that lesser sentences should be imposed by this Court having regard to the gravity of the offending and the appellant’s prior record. In our view, the requirements that the sentence reflect the need for just punishment, denunciation, general deterrence, specific deterrence and protection of the community mean that despite the matters advanced on behalf of the appellant no lesser sentence should be imposed.
Accordingly, the appeal must be dismissed.
11
2
0