Papachristodoulou v The Queen
[2017] VSCA 284
•9 October 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0060
| ERIC PAPACHRISTODOULOU | Applicant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE JA and T FORREST AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 October 2017 |
| DATE OF JUDGMENT: | 9 October 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 284 Revision Date: 9 October 2017 |
| JUDGMENT APPEALED FROM: | [2017] VCC 216 (Judge Campton) |
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CRIMINAL LAW – Appeal – Sentence – Negligently causing serious injury (two charges) – Reckless conduct endangering persons – Driving motor vehicle – Sentence of four years and nine months’ imprisonment – Non-parole period of two years and nine months – Whether sentence manifestly excessive – Early guilty plea – Genuine remorse – Youthful and immature offender – Good character – General deterrence, specific deterrence and denunciation important – Leave to appeal refused - Harrison v The Queen; Rigogiannis v The Queen (2015) 49 VR 619.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr T Kassimatis QC with Ms S Seoud | James Harris Lawyers |
| For the Crown | Ms D Mandie | Office of Public Prosecutions |
KAYE JA
T FORREST AJA:
The applicant pleaded guilty, before a judge in the County Court, to two charges of negligently causing serious injury, and one charge of reckless conduct endangering persons. He was sentenced to a total effective term of 4 years and 9 months’ imprisonment with a non-parole period of 2 years and 9 months’ imprisonment.[1] The applicant seeks leave to appeal on the ground that the individual sentences on the two charges of negligently causing serious injury, the orders for cumulation between those charges, and the non-parole period fixed, are each manifestly excessive.
[1]DPP v Papachristodoulou [2017] VCC 216 (‘Reasons’).
The sentence, imposed on the applicant, was constituted as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1.
Negligently causing serious injury
10 years
3 years, 9 months
Base
2.
Negligently causing serious injury
10 years
3 years
9 months
3.
Reckless conduct endangering persons
5 years
12 months
3 months
Total effective sentence
4 years, 9 months’ imprisonment
Non-parole period
2 years, 9 months
Section 6AAA declaration
Total effective sentence: 6 years, 9 months
Non-parole period: 4 years, 6 months
The offending by the applicant occurred at Doncaster on 31 October 2015. The applicant was then 24 years of age. On that day, he was driving a Holden utility vehicle, with a friend, Bobbie Michalopoulous, as his passenger. While the applicant was driving south on Blackburn Road towards Doncaster Road, he was observed by another motorist, Anthony McDonald, who was driving behind the applicant’s vehicle, to deliberately cause the back end of his Holden utility to drift from side to side and to ‘fishtail’, causing the tyres to spin on the surface of the road on three separate occasions. As a result, on each occasion, the rear end of the Holden utility crossed the boundary line of the lane in which the vehicle was travelling, and Mr McDonald could hear the wheels of the applicant’s vehicle spinning and the engine revving.
The applicant then turned his vehicle left into Doncaster Road, and travelled east in the middle lane of it. As he drove towards the crest of a hill, he again deliberately caused the vehicle to ‘fishtail’, so that the back end of the vehicle swung out across all three lanes. The applicant then performed that manoeuvre on five further occasions as he approached the crest of the hill. Each swing was observed to put the applicant’s vehicle on a 45 degree angle to the direction in which he was travelling. On each manoeuvre, the applicant revved his engine in order to control the vehicle.
As a result of the fishtailing of the vehicle over the crest of the hill, the applicant lost control of his vehicle. It slid across the eastbound lanes of Doncaster Road, over the median strip in the highway, and onto the closest westbound lane, so that it was directly in the path of a Toyota Camry vehicle driven by Mr Jason Huang. Mr Huang’s wife, Ms Chin Ru Chao, was a front seat passenger in the vehicle. The front passenger side of the Holden utility struck the front driver side of Mr Huang’s vehicle. The force of the impact pushed the Toyota Camry backwards, causing significant damage to both vehicles. In addition, a third vehicle lightly collided with the back of Mr Huang’s vehicle, but it caused minimal damage, and its driver was not injured.
After the collision, bystanders assisted to remove Mr Huang and his wife from their vehicle, and the applicant and his passenger also provided assistance. Investigations, that were carried out after the collision, revealed that 2.5 seconds before the impact, the applicant’s Holden utility had been travelling at 105 kph. The applicable speed limit was 70 kph. The applicant had applied the brakes in his vehicle before the collision, and it skidded for at least 22 metres, reducing the speed of the vehicle on impact to 59 kph.
As a result of the collision, Ms Chao sustained very extensive and serious injuries. They included a small perforation and tear in her bowel that was potentially life threatening, together with a fracture of the vertebra at L5 level, rib fractures, extensive bruising of and bleeding into her abdomen, swelling in the liver, a completely torn abdominal muscle from the insertion to the pubic bone, and significant bruising to her chest. In addition, she suffered memory loss in relation to the collision. Ms Chao was conveyed to the Box Hill Hospital, where she underwent an emergency laparotomy and small bowel resection. She was then taken to the Austin Hospital, where she underwent an L 4-L 5 posterior decompression and fusion. Ms Chao remained at the hospital for approximately 10 days. After her discharge home, she was unable to perform cleaning tasks to her house or attend to her children. She continued to experience tiredness and had difficulty standing for protracted periods of time. Ms Chao was required to undergo a course of physiotherapy for at least six months.
The injuries to Mr Jason Huang were also serious, but less extensive. He was conveyed by ambulance to the Royal Melbourne Hospital Emergency Department. His injuries included fractures in his lumbar spine, fractured ribs, tenderness to his chest, bruising to his hips, and memory loss in relation to the collision. He remained in hospital for one night before being discharged home. Mr Huang was required to spend three weeks off work, and he continued to suffer from limitation of movement and recurrent chest pain.
The applicant attended at Forest Hill Police Station on 6 March 2016, where he was arrested and participated in a recorded interview. In the course of the interview, he stated that on the day of the accident it was wet, and while he was driving up the hill, he went to change gears. As he did so the car ‘flipped’, and as he tried to turn it away from oncoming traffic, it went the other way and he lost control of it. The applicant denied that he had been ‘fishtailing’ on Blackburn Road or on Doncaster Road, and he said ‘I wasn’t doing anything out of the ordinary, just driving’. He said that his driving was ‘just slow and normal’.
The proceeding
The applicant was charged, on count 1 on the indictment, with negligently causing serious injury to Ms Chin Ru Chao, on count 2, with negligently causing serious injury to Mr Jason Huang, and on count 3, with recklessly engaging in conduct by driving a motor vehicle in a manner that placed, or may have placed, his passenger Bobbie Michalopoulous in danger of serious injury. He pleaded guilty to those charges at the committal hearing at the Melbourne Magistrates’ Court on 10 October 2016.
On the subsequent hearing of the plea, he contested the evidence of the witness, Mr McDonald, as to the amount of ‘swings’ performed by his vehicle in Blackburn Road. Mr McDonald and the applicant’s passenger, Mr Michalopoulous, both gave evidence relating to that issue. The judge preferred the evidence of Mr McDonald, and was satisfied that the applicant had performed three swings of the vehicle as it was travelling along Blackburn Road.
The plea
The applicant had one previous matter, a traffic infringement notice in 2009 for exceeding the speed limit by 45 kilometres or more. For that offence the applicant’s licence was suspended for 12 months. He had no other previous convictions.
The applicant was raised in Donvale. He attended East Doncaster Secondary College to Year 10 level. After leaving school, he completed a plumbing apprenticeship, and subsequently he completed an additional qualification in roof plumbing. At the time of the plea, he had been employed by Acrobat Roofing for nine years. In addition, he had commenced his own plumbing business in which he worked on weekends.
On the plea, the applicant’s mother gave evidence as to feelings of guilt and remorse experienced by the applicant since the accident. She stated that the applicant had become withdrawn, that he stayed home with his family more often, that he was more careful on the road, and that he felt very guilty that he had ‘put somebody in hospital’. Her evidence, as to the applicant’s remorse, and as to his more mature outlook since the accident, was supported by a number of testimonials provided by his employer and three close friends. Those references also spoke in positive terms as to the applicant’s character, his commitment to his trade, and the care with which he ordinarily drove a motor vehicle. In addition, the applicant had paid $30,000, from his own funds, to Mr Huang to compensate him for the damage to his motor vehicle, for which he did not have insurance cover.
In support of the plea, counsel tendered a report of Ms Pamela Matthews, a forensic psychologist, who examined the applicant on 27 September 2016. Ms Matthews assessed that the applicant’s risk of offending was estimated to be ‘very low’. She found that he presented as being very genuinely regretful and sorry for the injuries that he had caused to Ms Chao and Mr Huang. Ms Matthews considered that the applicant suffered from low level post-traumatic stress disorder as a result of the accident, and that a term of imprisonment would adversely affect his symptoms, so as to make any time in custody more onerous for him than for his age matched peers. Ms Matthews also expressed the view that the applicant’s youth, and his lack of worldly experience, would render him socially and emotionally vulnerable in a prison context.
Counsel also relied on the applicant’s early plea of guilty, and on the assistance that he readily gave to Mr Huang and Ms Chao immediately after the accident. Counsel submitted that the offending by the applicant was not ‘at the top of the scale’ for offences of that nature, as it did not involve the consumption of alcohol or drugs, and that it was not attended with any other aggravating features that can occur in such cases. Counsel urged the sentencing judge to have the applicant assessed for a community corrections order, which, it was submitted, would be appropriate in the circumstances of the case.
In response, counsel for the prosecution submitted that a community corrections order would not be within the appropriate sentencing range, because of the conduct of the applicant in deliberately causing the Holden utility to fishtail, and continuing to drive at a fast speed until he lost control. Counsel submitted that, notwithstanding the absence of the involvement of drugs or alcohol in the applicant’s driving, nevertheless the offending by the applicant fell ‘within the upper end level of the midrange’ of negligently causing serious injury, due to the manner in which the applicant was driving the vehicle, and the serious injuries occasioned to Ms Chao and Mr Huang.
In that respect, counsel referred to the views, expressed by this Court in Harrison v The Queen; Rigogiannis v The Queen,[2] as to sentences in cases involving intentionally causing serious injury as a result of the driving by an offender of a motor vehicle. He submitted that those views had the effect that a disposition, involving the imposition of a community corrections order alone, or in combination, would be outside the appropriate range of sentences available for the applicant’s offending. Counsel also referred to the observations by the Court in Harrison, that the offence of negligently causing serious injury by driving, is frequently committed by young offenders, who are otherwise of good character and have a limited criminal history.
[2](2015) 49 VR 619 (‘Harrison’).
Reasons for sentence
In her reasons for sentence, the judge indicated that she would give the applicant a discount on his sentence for his plea of guilty, and her Honour accepted that the applicant was genuinely remorseful. She also accepted that the applicant was otherwise a young man of good character, who had excellent prospects of rehabilitation. The judge accepted the opinion of Ms Matthews that a period of imprisonment would be likely to adversely affect his mild post-traumatic stress disorder, and that his youth and lack of worldly experience would make him socially and emotionally vulnerable in a prison setting.[3]
[3]Reasons [29].
On the other hand, the judge noted that offences of negligently causing serious injury by driving are often committed by young offenders of otherwise good character, so that general deterrence is an important sentencing consideration in such a case.[4] The judge considered that the applicant’s driving was a ‘serious example of offending at the high end of the mid-range of negligently causing serious injury by driving’. Her Honour noted that the driving involved conduct that was both intentional and prolonged. The fact that he deliberately lost control of his vehicle by his negligent driving was exacerbated by the excessive speed at which he was driving. Her Honour considered that the applicant’s driving ‘presented a considerable departure from the standard of care of a reasonable person’. In addition, it caused serious injuries to both Mr Huang and, in particular, to Ms Chao, whose injuries were very serious.[5]
[4]Reasons [30]–[31].
[5]Ibid, [32].
Submissions
In support of the ground of appeal, it was submitted on behalf of the applicant that the sentences imposed on charges 1 and 2 are more consistent with sentences for the offence of dangerous driving causing death, or sentences for the offence of negligently causing serious injury, where the offending as at the ‘higher end’ of the scale of that offence. Counsel submitted that the applicant’s offending fell within the mid-range of such offences, and that there were important mitigating circumstances, which included: the early plea of guilty; the assistance rendered by the applicant to the victims at the time of the accident; the applicant’s strong feelings of remorse for the injuries that he had caused to the victims; the applicant’s age and immaturity at the time of the collision; the applicant had sustained his own injuries and he had suffered a post-traumatic stress condition, which is likely to be exacerbated if he were sentenced to a term of imprisonment; and the applicant had no criminal history except for the infringement notice, was otherwise a man of good character with a stable history, and had excellent prospects of rehabilitation. It was submitted that, if appropriate weight were given to each of those factors, the sentences imposed on charges 1 and 2 were beyond the permissible range.
In particular, counsel placed emphasis on the youth and immaturity of the applicant at the time of the offence, which, it was submitted, mitigated the gravity of the offending, and had the effect that the rehabilitation of the applicant was more important than general deterrence. Counsel submitted that, notwithstanding that in cases such as this the weight to be given to an offender’s youth must be tempered by the requirements of general deterrence and denunciation, nevertheless it remained a factor of importance in the sentencing synthesis. In addition, counsel placed some emphasis on the evidence that the applicant suffered post-traumatic stress disorder which would be exacerbated by a term of imprisonment, and which would make a sentence of imprisonment more burdensome on him.
In response, counsel for the respondent submitted that the sentences imposed on the applicant did not indicate that the judge had failed to have adequate regard to the youth of the applicant. Rather, the judge expressly took into account the applicant’s youth and lack of worldly experience, and recognised that, as such, the applicant would be vulnerable in the context of a prison environment. Counsel contended that the relatively low non-parole period (which constituted 58% of the total effective sentence) reflected a recognition by the judge of the relevance and effect of the applicant’s youth and his prospects for rehabilitation. Nevertheless, it was pointed out that, because of the tendency of young drivers to drive in a negligent or dangerous way, the concept of general deterrence must be regarded as of significant importance in a case such as this. It was further contended that the conduct of the applicant after the collision did not add to the mitigating factors, since the applicant did no more than that which was required of him as a matter of law.
Counsel for the respondent submitted that the decision of the Court in Harrison had the effect that sentences for offending in the ‘mid-range’ need to undergo an uplift, in order to maintain an appropriate relativity with sentences that were to be imposed in the upper range of the offence. In particular, in the present case, it was emphasised that there were aspects of the offending in this case which were very serious, including the deliberate conduct of the applicant in causing the back wheels of his vehicle to swing out on a number of occasions, the fact that he performed a number of swings on approach to the crest of the hill before the accident, that he was exceeding the speed limit considerably at the time of the accident, and that Ms Chao suffered very extensive and serious injuries. In those circumstances, it was submitted, the sentences imposed by the judge are not wholly outside the range of appropriate sentencing options available to the judge.
Analysis and conclusions
In order to succeed on the proposed ground of appeal, that the sentences imposed on the applicant were manifestly excessive, the applicant must demonstrate that the sentences were ‘wholly outside the range of sentencing options available’ to the judge.[6] The determination of the appropriate sentence, in any case, is the product of the exercise of a judicial discretion, involving the application of established principles to the facts of the case, in the instinctive synthesis that is the essence of the sentencing process. Accordingly, judicial minds might, and frequently do, reasonably differ as to the appropriate sentence which should be imposed in any particular case. Thus, it is not sufficient for the applicant to persuade this Court that it would, or might, have imposed a lower or different sentence than that determined by the sentencing judge. Rather, as we have mentioned, the sentences imposed on the applicant must be demonstrated to be wholly outside the range of sentences available to the judge. That is, the sentences must be demonstrated to be so excessive as to bespeak error by the judge in the exercise of the sentencing discretion, notwithstanding that no specific error can be identified in the reasons for sentence given by the judge.[7]
[6]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[7]House v The King (1936) 55 CLR 499, 505.
In this application, some emphasis was placed, in argument, on current sentencing practices for the offence to which the applicant pleaded guilty, negligently causing serious injury. In particular, as we have noted, counsel submitted that, based on sentencing practices, the applicant’s sentences on charges 1 and 2 are more consistent with those which might have been imposed if he had pleaded guilty to dangerous driving causing death, or to negligently causing serious injury, at the higher end of the scale of such offences.
The principles, relating to the use of comparable cases, have been developed and discussed during the last two decades in a number of decisions of the High Court[8] and of this Court.[9] In Lieu v The Queen,[10] this Court outlined the relevant principles in terms that will suffice for the purposes of this application:
Ordinarily, comparable cases are relevant to indicate or reveal the sentencing range for the offence which is under consideration. In that way, an analysis of comparable cases is directed to promoting consistency of sentences. However, ultimately, the consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentences. Rather, the process is directed to achieving consistency in the application of relevant legal principles. For that reason, so-called ‘comparable cases’ are not precedents. In the context of sentencing, no two cases can be alike. The factors that inform the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly in determining the sentence that is ultimately the product of the instinctive synthesis of the sentencing judge. Nevertheless, reviewed as a whole, ‘comparable cases’ may assist by revealing a possible range or pattern of previous sentences. However, the cases, to which we have referred, caution that examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by those cases, is necessarily correct, or that the upper or lower limits of those sentences are correct.[11]
[8]See for eg Hili v The Queen (2010) 242 CLR 520, 534 [44], 535 [48]–[49]; Green v The Queen (2011) 244 CLR 462; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; R v Pham (2015) 325 ALR 400, 405–6 [26]–[28].
[9]Hudson v The Queen (2010) 30 VR 610, 617–618 [28]–[32]; Hasan v The Queen [2010] 31 VR 352 [52].
[10][2016] VSCA 277.
[11]Ibid [46].
In its recent decision in Harrison,[12] this Court[13] took the opportunity to review and consider current sentencing practices for the offence of negligently causing serious injury arising from the use of a motor vehicle by the offender. In each of the two cases that were before the Court, the offender’s conduct involved a high degree of negligence in the driving of his vehicle, and was accompanied by a high blood alcohol level. As such, in both cases, the Court concluded that the offending by each appellant came within the ‘upper range of seriousness’ for this category of offending, although it fell short of the worst imaginable case.[14] The Court’s review of current sentencing practices for cases falling within that category indicated that no sentence longer than 4 years of imprisonment had been imposed for such cases,[15] and indeed it appeared that sentences for negligently causing serious injury by driving — including, but not limited to, cases in that upper range of seriousness — had remained ‘clustered’ at or around a range of three to four years.[16] The Court considered that that current sentencing practice failed to reflect the objective seriousness of cases of negligently causing serious injury by driving that fell into the upper bracket of such offences, and that ordinarily sentences of six years to seven years, for such offending, would have been ‘well within range’.[17] The Court stated:
Sentencing courts should no longer consider themselves constrained by existing sentencing practice for offences of NCSI by driving which fall within the upper range of seriousness (as exemplified by the cases under appeal). The sentences imposed in the cases to which we have referred should not be viewed as setting any limit on the sentence that may be imposed in such a case. In particular, sentencing courts should not treat four years as a ceiling for this offence. Sentences for mid-range and lower-end instances of NCSI by driving will also need to increase, in order to maintain appropriate sentencing relativities.[18]
[12](2015) 49 VR 619.
[13]Maxwell P, Redlich and Tate JJA.
[14]Harrison (2015) 49 VR 619 [3].
[15]Ibid [102]–[105].
[16]Ibid.
[17]Ibid [139]–[141].
[18]Ibid [140].
As counsel for the respondent has pointed out, a number of subsequent decisions, of this Court, have reflected the views so expressed in Harrison, so that the Court has upheld sentences that were higher than those imposed on the applicant.
In Da Costa v The Queen,[19] the applicant, who was affected by the consumption of methylamphetamine, drove erratically at high speed on Dandenong Road, crossing through a major intersection against a red light, and continuing at high speed before colliding with and fatally injuring two pedestrians while traversing a further red light. The applicant pleaded guilty to three charges of culpable driving, three charges of negligently causing serious injury, and one charge of reckless conduct endangering life. On the charges of negligently causing serious injury, he was sentenced, respectively, to imprisonment for terms of 5 years, 3 years and 4 years. As a mitigating circumstance, he faced a material risk of deportation. Unsurprisingly, the Court considered that the applicant’s moral culpability in that case was ‘extremely high’, and that it was comfortably at the highest end of offending. Accordingly, the Court rejected the submission that the sentences imposed on the applicant, including those for negligently causing serious injury, were manifestly excessive.
[19][2016] VSCA 49.
In Halket v The Queen,[20] the applicant pleaded guilty to two counts of negligently causing serious injury by driving, for which he was sentenced to terms of 6 years’ imprisonment and 4 years and 6 months’ imprisonment respectively, with a total effective sentence of 7 years and 6 months’ imprisonment. The Court endorsed the assessment by the sentencing judge that the applicant’s negligence was ‘very high although not the worst imaginable case’. The applicant, who was sleep deprived, and had consumed methylamphetamine, drove his truck on the wrong side of the road, failed to give way to a truck approaching on his right, wove in and out of lanes on a major highway, drove into oncoming lanes, and failed to stop at a red light. Based on the views expressed in Harrison, the Court considered that the sentence of 6 years’ imprisonment, on the more serious of the two charges, was ‘within range’.[21]
[20][2016] VSCA 221.
[21]Ibid [37].
In Sadiq v The Queen,[22] the applicant pleaded guilty to reckless conduct endangering life, for which he was sentenced to 4 years and 6 months’ imprisonment. In that case the applicant drove erratically, at high speeds and under the influence of methylamphetamine, over a significant distance on major arterial roads, culminating in the applicant entering an intersection against a red light and colliding with a vehicle. Whelan JA, refusing leave to appeal, concluded that in light of the decision in Harrison, it could not be reasonably argued that the sentence of 4 years and 6 months’ imprisonment imposed on the applicant was manifestly excessive.
[22][2016] VSCA 294.
Those three decisions, of course, do not constitute ‘precedents’ in respect of the sentence under consideration in this case. However, they do reflect a trend whereby this Court has applied the views expressed in Harrison, in respect of current sentencing practices for cases that fall within the upper range of gravity for negligently causing serious injury by driving. It follows that, contrary to the submission by counsel for the applicant, the sentences, imposed on the applicant on charges 1 and 2, are not consistent with sentences that might be imposed in respect of offending in the ‘upper’ category of such cases, but, rather, are materially lower than such sentences.
In the present case, the applicant does not take issue with the characterisation by the judge, of the applicant’s driving, as ‘a serious example of offending at the high end of the mid-range of negligently causing serious injury by driving’. In our view, that description of the applicant’s driving was appropriate. In general, an assessment of the seriousness of such an offence is made by reference both to the degree of departure by the offender from the standard of reasonable care expected of an ordinary driver, and by the seriousness of the injuries occasioned by the driving.[23] In turn, an evaluation of the degree of departure by the offender from the requisite standard of care is informed by a variety of factors, including the degree of risk and potential harm involved in the manner of driving by the offender[24] and the foreseeability of the risk created by the offender’s driving.[25]
[23]Gorladenchearau v The Queen (2011) 34 VR 149, 156 [22]; Harrison (2015) 49 VR 619 [44].
[24]R v De Montero (2009) 25 VR 694, 710 [55]; R v Towle [2009] VSCA 280 [66].
[25]Stephens v The Queen [2016] VSCA 121 [27].
Based on those principles, the assessment by the judge, of the applicant’s driving as falling within the upper end of the mid-range of seriousness of such offences, was wholly justified. On any view, the departure by the applicant from the standard of care, that might reasonably have been expected of him, was substantial. His driving involved a significant degree of risk of serious injury to other users of the road. In light of the speed at which he was driving, particularly on approaching the crest of the hill on Doncaster Road, the applicant’s driving exposed any person, with whom he collided, to the risk of very grave injury. In the present case, the injuries sustained by Ms Chao were particularly serious, and, at one stage, life threatening to her. The applicant’s offending was not a matter of momentary inattention or lapse, but, rather, was a result of deliberate conduct engaged in by him, over a period of time, and over some distance, on a public roadway.
The applicant has relied on a number of mitigating circumstances in support of the argument that, notwithstanding the serious nature of the offending, the sentence imposed on him was manifestly excessive. In particular, some reliance has been placed on the youth of the applicant, and on the evidence that he was at that time quite immature for his years. In general, it is accepted that the youth of an offender may be an important mitigating circumstance in determining a sentence to be imposed on that offender. In particular, an offender’s youth may be relevant to the assessment of the offender’s moral culpability, as the law accepts that the immaturity of youth may be a significant factor contributing to the involvement of a young offender in the criminal conduct for which that offender is to be sentenced. In addition, the law regards the rehabilitation of young offenders as an important consideration, both in the interests of the offender, but also in the interests of society.[26]
[26]DPP v SJK & GAS [2002] VSCA 131, [61] (Phillips CJ, Chernov and Vincent JJA); R v Mills [1998] 4 VR 235, 241 (Batt JA).
However, the weight to be given to the youth of an offender, as a mitigating circumstance, generally is reduced where the offence committed by the offender is serious, and particularly where the offence is of a kind commonly committed by offenders who are young and immature. In such cases, it is recognised that the youth of the offender, while still relevant as a mitigating circumstance, must to a material degree give way to the requirements of general deterrence, specific deterrence and denunciation.[27]
[27]DPP v Lawrence (2004) 10 VR 125, 132 [22] (Batt JA), 133 [25] (Winneke P); Azzopardi v The Queen (2011) 35 VR 43, 57 [44] (Redlich JA); DPP (Cth) v MHK (a pseudonym) [2017] VSCA 157, [57]–[60] (Warren CJ, Weinberg and Kaye JJA).
In Harrison, the applicant, who was 23 years of age, argued that the sentencing judge gave insufficient weight to his personal circumstances including his youth and other matters. The court gave short shrift to that proposition, stating:
As is clear from the cases referred to above, however, [the applicant’s] personal circumstances are not remarkable for offences of this kind, which frequently involve offenders of similar age and character to [the applicant].[28]
[28]Harrison (2015) 49 VR 619 [70].
In the present case, the applicant was 24 years of age at the date of the offending. The psychologist Ms Matthews considered that, notwithstanding the applicant’s age, he remained ‘in the late stages of adolescence’. In her reasons for sentence, the judge accepted, as a mitigating circumstance, that the applicant’s youth and lack of world experience would make him socially and emotionally vulnerable in prison, and that the applicant was otherwise a young man of good character with excellent prospects of rehabilitation.[29] However, consistent with the observations in Harrison, the judge also noted that offences of negligently causing serious injury by driving are often committed by young offenders who are otherwise of good character, and who have good prospects of rehabilitation. Her Honour, further, correctly noted that general deterrence is an important sentencing consideration in such a case, so that other young men be deterred from driving their vehicles in the manner in which the applicant drove at the time of the offending.[30]
[29]Reasons [29].
[30]Ibid [31].
In our view the approach by the judge was appropriate, and in conformity with principle.
As mentioned, counsel for the applicant submitted that one of the mitigating factors in the case was that the applicant had remained at the scene and rendered assistance to Ms Chao and Mr Huang. That submission must be rejected. The actions of the applicant, in remaining at the scene of the accident, and in rendering assistance to the occupants of the other vehicle who were injured as a result of the collision, constituted no more than the fulfilment by him of his legal obligations as prescribed by the Road Safety Act 1986.[31] As noted in the course of oral submission, the fact that the applicant complied with his legal obligations in that way is not a mitigating factor, but, rather, has the effect that what might otherwise have been an aggravating factor in the sentencing process is absent from this case.
[31]Road Safety Act 1986 ss 61, 61A.
As outlined by counsel for the applicant, and accepted by the judge, the applicant did have important mitigating circumstances which were to be given appropriate weight in the determination of his sentence. They included that he had pleaded guilty at the earliest opportunity, he had experienced sincere remorse for the injury and the collision he had caused, he was young and of good character with excellent prospects for rehabilitation, he had no relevant criminal history save for a minor matter, and jail was likely to be more burdensome on him because of his post-traumatic stress condition and his immature personality.
However, as we have noted, the conduct by the applicant, in this case, was a particularly serious example of the offence of negligently causing serious injury by driving. While, as accepted by the judge, it might not have come within the highest category of gravity of such offences, nevertheless it involved a number of serious features, to which we have already referred, which clearly supported the characterisation by the judge of it as falling within the ‘higher end of the mid-range’ of such offences.
The kind of negligent driving indulged in by the applicant in this case quite commonly involves offenders of a similar age and profile. The applicant deliberately drove his vehicle in a manner that significantly departed from the standard of care that might reasonably have been expected by him. He did so, intentionally, over a period of time, and over some distance. The deliberate fishtailing of the vehicle, on some six occasions, as it approached the crest of the hill in Doncaster Road, in circumstances when the surface of the road was wet, simply courted disaster. The streets and roads of this State are not intended to be used by persons who, for their own amusement, engage in high speed driving, or driving in a manner which, whilst it might be entertaining to them, puts other members of the public at risk of serious injury. The function of the law, and of sentencing, in such cases, is to ensure that persons who use the roadway must be fully conscious that if they drive their vehicles in the manner in which the applicant did in this case, they will face stern punishment. It is in that way that the law, and the applicable sentencing principles, operate to protect ordinary users of the roadway, and, hopefully, to ensure that such persons do not sustain serious injuries of the kind occasioned to Ms Chao and Mr Huang, due to the high spirited and wanton carelessness that characterised the applicant’s driving in this case.
In those circumstances, as the authorities make plain, the principles of general deterrence, specific deterrence and denunciation are of substantial weight in the sentencing process in cases such as this. The judge, in her reasons, acknowledged, and gave weight to, the important mitigating circumstances relied on both in the plea, and in this application. Notwithstanding the force of those considerations, we consider that the requirements of general deterrence, specific deterrence and denunciation were such that the sentences imposed on the applicant on charges 1 and 2, the orders for cumulation, and the non-parole period, while high, could not be regarded as being manifestly excessive in accordance with the principles that we have outlined above. We are satisfied that, taking into account the mitigating factors relied on on behalf of the applicant, the sentences on those charges were within the range of sentences available to the judge.
It follows that the application for leave to appeal against sentence should be refused.
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