Pasznyk v The Queen

[2014] VSCA 87

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0175

JASON PAUL PASZNYK	Appellant
	v
THE QUEEN	Respondent

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JUDGES	NETTLE, REDLICH and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	6 May 2014
DATE OF JUDGMENT	8 May 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 87
JUDGMENT APPEALED FROM	R v Pasznyk (Unreported, County Court of Victoria, Judge Mulally, 13 February 2012)

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CRIMINAL LAW – Appeal – Sentence – Appellant convicted of culpable driving causing death by driving recklessly – Whether culpable driving by driving recklessly is a more serious form of the offence than other forms – Driving with a high blood alcohol reading at high speed – High moral culpability – Multiple prior convictions for drink-driving, speeding and other driving offences – Guilty plea – Sentence of 10 years and 6 months' imprisonment with a non-parole period of 8 years not manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C T Farrington	Robert Stary Lawyers
For the Crown	Mr G J C Silbert QC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

1. This is an appeal by leave against a total effective sentence of 10 years and six months’ imprisonment with a non-parole period of eight years imposed on the appellant on pleading guilty to one charge of culpable driving causing death and one charge of driving a motor vehicle while disqualified.  It is contended that the sentence is manifestly excessive.

1. As the sentencing judge observed, the subject offences were extremely bad examples of this kind of offending.  After drinking ‘Jim Beam’ bourbon and cola for more than four hours on the afternoon of 17 May 2010, and with a consequent blood alcohol concentration of .203 per cent (or, in other words, more than four times the legal limit) the applicant upon his own admission got into his car and drove while disqualified, recklessly at breakneck speeds of between 122 and 130 kph along the Melton-Gisborne Road until eventually he ploughed into the back of the deceased’s car travelling in front of him in the same direction at a speed of no more than 70 kph.  Such was the force of the impact that the deceased’s car exploded upon impact and the deceased was killed.

1. Regrettably, the appellant was anything but a first-time offender.  As the sentencing judge recorded, he has an appalling history of driving offences, including prior convictions for exceeding the blood alcohol limit, refusing to undergo a breath test, driving at more than 30 kph over the speed limit, driving dangerously and carelessly, failing to stop at the scene of an accident, driving while disqualified and driving unlicensed.  He also has convictions for violence, including intentionally causing serious injury, assault and resisting police and drunkenness and damage to property.

1. I need say no more of the effect of the subject offending on the victim than that, through no fault of his own, he has been deprived of what were likely to be the majority and best years of his life.  Nor do I pause to rehearse the misery and despair which these pointless, profligate crimes have brought upon the

deceased’s’ young family and parents.  It all appears in distressing detail in the judge’s carefully structured sentencing remarks.  I observe, too, that I intend no disrespect to counsel for the appellant that I find it unnecessary to say more of his submissions on current sentencing practices, sentencing statistics, the appellant’s plea of guilty, his remorse and the engagement of Verdins[1] principles than that I have taken them all into account.

[1]R v Verdins (2007) 16 VR 269.

1. In my view, the nature and gravity of these crimes and the very high level of the appellant’s moral culpability demanded condign punishment and, therefore, despite what has been said and whatever else might properly be said in mitigation of penalty, the sentence is not excessive.

Conclusion

1. I would dismiss the appeal.

REDLICH JA:

1. I agree with Nettle and Priest JJA that the appeal must be dismissed for the reasons that they give.

PRIEST JA:

Plea and sentence

1. Culpable driving causing death may be committed four ways:  by driving recklessly;[2]  negligently;[3]  or under the influence of alcohol,[4] or drug,[5] to such an

extent as to be incapable of having proper control over a motor vehicle.  Although there are four forms of the offence, a single maximum penalty is prescribed.[6]

[2]Crimes Act 1958, s 318(2)(a).

[3]Crimes Act 1958, s 318(2)(b).

[4]Crimes Act 1958, s 318(2)(c).

[5]Crimes Act 1958, s 318(2)(d).

[6]Section 318(1) provides: ‘(1) Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum) or a level 3 fine or both’.

1. On 8 February 2012 the appellant pleaded guilty in the County Court to an indictment charging culpable driving as follows:

   CHARGE 1    The Director of Public prosecutions charges that JASON PAUL PASZNYK at KURUNJANG in Victoria on the 17^th day of May 2010 by the culpable driving of a motor vehicle caused the death of MICHAEL McMAHON in that JASON PAUL PASZNYK drove the vehicle —

   (a)       recklessly;  or

   (b) whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the said motor vehicle.

   Statement of Offence — Culpable Driving Causing Death contrary to s.381(1)[7] of the Crimes Act 1958.

   [7]The correct section is s 318(1) of the Crimes Act 1958.

2. It was unnecessary and potentially confusing in the circumstances to particularise the offence as having been committed both recklessly and whilst under the influence of alcohol to the requisite extent,[8] since the prosecution case was one of recklessness.  So much was made plain when the prosecutor opened that ‘the case is put on the basis of recklessness, namely speed and Your Honour will also see alcohol as well’.  Defence counsel conceded that ‘there is no issue taken in relation to the manner in which the case has been opened’;  and, when questioned by the judge, agreed that the appellant had intended to plead guilty to culpable driving by recklessness.  Moreover, the judge sentenced on the basis that he was faced with culpable driving by recklessness (although he also remarked that the prosecution alleged that the applicant ‘drove while under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle’, and that the  ‘circumstances of this case plainly bear out this form of culpability’).  Thus, although the charge particularised two forms of culpability, the parties and the judge seem to have proceeded on the basis that the present was a case of driving recklessly, the influence of alcohol being relevant to that form of culpability.[9]

   [8]Had both forms of culpability been charged on a trial, the jury would have been required to be satisfied unanimously that one of the forms of culpability had been made out:  R v Beach (1994) 75 A Crim R 447.

   [9]See Crimes Act 1958, s 318(3).

3. There is one related aspect, however, which requires further analysis.  In discussion with the prosecutor the judge observed that by ‘pleading’ recklessness explicitly, the prosecution was alleging the offence in ‘the highest form’.  The prosecutor agreed that this was so.  (He also submitted that ‘this is in the worst category of case that this court would deal with in relation to the single occupant death’.)  It seems to me that what the judge was endeavouring to convey, however, was that the offence of culpable driving by driving recklessly was a more serious form of the offence than, for example, by driving negligently.  That impression is borne out by his Honour’s sentencing remarks:[10]

   … The maximum term for the offence is a Level 3 fine and/or Level 3 imprisonment, which in practical terms means the maximum is 20 years’ imprisonment.  That maximum term applies to all forms of culpable driving.  However, in assessing the seriousness of your crime, I take into account that in your case the form of culpable driving which you pleaded guilty to was the most serious form.  You acknowledge that your driving was more than negligent it was reckless. …

   [10]Emphasis added.

4. I will later return to the significance of the judge’s characterisation of the offence.

5. On 13 February 2012 the appellant was sentenced to be imprisoned for 10 years and six (6) months, upon which a non-parole period of eight (8) years’ imprisonment was fixed.[11] Pursuant to s 6AAA of the Sentencing Act1991, the judge declared that, but for the plea of guilty, he would have sentenced the appellant to be imprisoned for 13 years with a non-parole period of 10 years and six (6) months.

   [11]The applicant was also sentenced to be imprisoned for two (2) months on a summary charge of unlicensed driving.  He was ordered to be disqualified from obtaining a driving license until five (5) years after release on parole.

   Ground of appeal

6. Ashley JA granted leave to appeal on 4 December 2013.  The sole ground upon which leave was granted is that the total effective sentence and non-parole period are manifestly excessive.  It is argued that is so by reference to current sentencing practices; and on the basis that insufficient weight was afforded to the appellant’s early guilty plea and remorse, and the appellant’s mental and physical health following the commission of the offence.

   The circumstances of the offence

7. On Monday 17 May 2010 at approximately 8.50pm, on Melton-Gisborne Road, Kurunjang, a vehicle driven by the appellant ran into the rear of a vehicle being driven by the victim, Michael McMahon.  As a result of the collision, the petrol tank of Mr McMahon’s vehicle ruptured, and it caught fire.  Mr McMahon and the vehicle were incinerated.  The appellant suffered serious foot injuries.  Speed and alcohol were factors precipitating the collision.

8. Earlier in the day the appellant went to a friend’s house in Kurunjang, to help the friend do some work.  After working, at around 4.30 to 5.00pm the appellant began drinking alcohol with his friend and his friend’s wife.  The appellant drank ‘Jim Beam’ bourbon and cola through the afternoon and early evening, which he mixed himself.  At about 7.00pm the three had dinner.  The appellant continued to drink alcohol, until he left his friend’s house at about 8.45pm.  Ignoring pleas that he take a taxi and not drive, the appellant drove from the Croxton Drive home of his friends out onto the Melton-Gisborne Road, and then in a southerly direction towards Melbourne.

9. As he drove, the appellant accelerated to a high speed.  Shortly before the appellant left Croxton Drive, the victim also drove out onto the Melton-Gisborne Road and proceeded to travel in a southerly direction.  His vehicle was in front of the appellant’s and travelling at a speed well below the speed limit, 70 kilometres per hour.

10. The appellant had travelled only a short distance along the Melton-Gisborne Road when he drove at high speed directly into the rear of the victim’s vehicle without braking, causing an impact of intense force which caused the fuel tank of the victim’s vehicle to rupture and ignite.

11. Mr McMahon’s vehicle was forced across the roadway onto the opposite lanes and grassed shoulder, and eventually came to rest on a constructed parking bay attached to the western service road of the Melton-Gisborne Road.  His vehicle had erupted in flames.  He was unable to escape from the inferno and perished from the effects of the fire.

12. After the impact, the appellant’s vehicle continued straight ahead and rolled slowly along the southbound lane of the Melton-Gisborne Road before rolling across the opposing lane, eventually coming to rest beyond the burning victim’s vehicle on the western shoulder of the road.  The appellant was helped from his vehicle.  He was treated by ambulance officers at the scene and taken to the Royal Melbourne Hospital for treatment.  A blood sample taken from him at the hospital revealed on analysis a blood alcohol concentration of .203 grams of alcohol per 100 millilitres of blood.

13. Doctor Maurice O'Dell, a forensic physician from the Victorian Institute of Forensic Medicine, furnished an opinion as to the ability of the accused to control the motor vehicle at the time of the collision.  He stated — unsurprisingly — that at a blood alcohol concentration in the vicinity of .203, the appellant ‘would have been absolutely incapable of having proper control of a motor vehicle’. 

14. Accident reconstruction by qualified police showed that the speed of the appellant’s vehicle at the point of impact was in the range of 122 to 130 kilometres per hour, and that the speed of the victim’s vehicle was in the range of 38 to 46 kilometres per hour. 

15. As I have said, the road where the collision took place had a maximum speed of 70 kilometres per hour (which was clearly sign posted and visible to traffic).  The road was sealed, in good condition and essentially flat.  A single broken white line divided the north and southbound lanes.  There were gravel shoulders and residential properties on either side of the road.  At the time of the collision the weather was dry.  Visibility was good.

16. When interviewed by police on 29 July 2010, the appellant made admissions to driving at the time of collision, but otherwise predominantly elected to provide no comment responses to questions by investigators concerning the circumstances of the collision.

17. At the time of the offending, the appellant was aged 40 years.  He was an unlicensed driver, and had been unlicensed since 2004 (having previously held only a probationary driver’s license).

18. The victim, Michael McMahon, was aged 38 at the time of his death.  He left a partner, Rhiannon, and a young daughter, Dakota.  His partner was pregnant with their second child, Corbin, at the time of his death.  At the time of the collision the victim had just left home and was on his way to work in Geelong.

    The appellant’s submissions

19. Asked to address whether the reckless form of culpable driving is more serious than the negligent form, the appellant’s counsel submitted that s 318 ‘does not distinguish between the bases for culpability in terms of penalty’. There is one offence for which a single maximum penalty is prescribed ‘irrelevant of which form is alleged’. Citing Ibbs,[12] it was submitted that to simply assert that the reckless form of culpable driving is, as a matter of law, more serious than the other forms (in particular, the negligent form) is to ignore a fundamental aspect of sentencing process; that is, that each case must be determined on its own particular facts.

    [12]Ibbs v The Queen (1987) 163 CLR 447.

20. It was sought to make good the claim of manifest excess by drawing attention to current sentencing practices.  The appellant also argued that insufficient weight was given to his early plea of guilty and remorse, and to his mental and physical health following the commission of these offences.  It was submitted that the combination of these factors leads to the conclusion that the sentence imposed was wholly outside the range of sentences open to the sentencing judge.

21. Extensive reference was made to sentencing statistics published by the Sentencing Advisory Council relating to the offence of culpable driving for the years 2007–08 and 2011–12.  Those statistics showed that the maximum term of imprisonment imposed for an individual count over the surveyed period was 10 years and six (6) months (the same sentence as imposed on the appellant).  The median sentence was five (5) years and two (2) months.  Other statistics by the Sentencing Advisory Council for the offence between 2003–04 and 2007–08 indicated that the maximum term of imprisonment imposed on an individual count over the surveyed period was eight (8) years and six (6) months, while the median length of imprisonment imposed on individual count over the period was five (5) years and six (6) months.  One sentence imposed on an individual count of culpable driving between 1998–99 and 2003–04 exceeded 10 years’ imprisonment.  In that case, where the offender had a prior conviction for culpable driving, a sentence of 12 years and three (3) months’ imprisonment was imposed.[13]

    [13]R v Brown (2003) 39 MVR 293; [2003] VSCA 153.

22. It was submitted that these sentencing statistics, ‘being reflective of current sentencing practices’, suggest that the sentencing judge erred.  Acknowledging that it is often said that sentencing statistics, and the comparison of recent sentences, are of limited assistance, the appellant submitted that the sentence imposed was not merely ‘stern’ in comparison to others, ‘but rather a disposition which on the relevant facts is virtually unprecedented’.  There was ‘nothing so egregious in this case which warranted a departure of current sentencing practices’.  The sentence ‘in the current circumstances is an unjustifiable departure which is plainly manifestly excessive’.

23. The appellant’s counsel  also submitted that the appellant had entered a plea of guilty prior to a contested committal hearing and without any witness having to give evidence.  Although the judge accepted that that the plea of guilty was evidence of remorse, and that there was other evidence of remorse;  and although the judge said that remorse went to the applicant’s credit and operated to mitigate the penalty;  the judge’s ‘comments are incongruous with the sentence imposed’.  Further, it was submitted that ‘scant regard’ was afforded to the appellant’s plea of guilty alone.  Despite the judge saying that ‘in simple terms your sentence is shorter than it would have been had you pleaded not guilty and been found guilty by a jury’, it was submitted that ‘these comments are incongruous with the sentence imposed’.  It is difficult to conclude that the sentence has been reduced, so it was argued, ‘where it is one of the highest individual sentences for the charge of culpable driving causing death imposed in this State’.

24. Finally, reference was made to the appellant’s ongoing chronic depressive condition;  the symptoms that he had consistent with Post Traumatic Stress Disorder; and an injury sustained in the collision serious enough to keep the appellant in hospital for five weeks, and which required skin grafts.  It was submitted that the judge paid insufficient regard to these matters, and ‘doing so imposed a sentence which was in all the circumstances manifestly excessive’.

    The respondent’s submissions

25. Dealing with an invitation from the Court to address specifically the issue whether the reckless form of culpable driving is more serious than the negligent form, the respondent submitted that s 318 of the Crimes Act 1958 creates one offence which may be proved by any one of the four forms of culpability set out in s.318(2).[14]  Although it may be assumed that recklessness — which involves a conscious and unjustifiable disregard of a substantial risk (that is, ‘an act of commission’) — sits higher on the hierarchy of blame than negligence — which is a failure unjustifiably and to a gross degree to observe a standard of care (that is, ‘an act of omission’) — it is, so it was submitted, ‘entirely hypothetical to postulate general rules’ as to the relative culpability as between the reckless and negligent forms of the offence.  Thus, the respondent argued, a situation might well be imagined where an offence at the very lower end of recklessness may be objectively less serious than an offence at the very high end of gross negligence.  The respondent added, however, that such a situation does not arise in the present case and is irrelevant to the sole ground of appeal with which the Court is presented.

    [14]R v Horvath [1972] VR 533, 537.

1. Properly analysed, the respondent submitted, current sentencing practices do not suggest that the appellant’s sentence is excessive.  On the contrary, so it was argued, when considered in accordance with principle and in light of the assortment of serious aggravating features of his offending, the appellant’s sentence conforms with those practices. 

2. The sentencing judge observed in discussion with counsel that, in order to determine the appropriate range, he needed to ‘drill down into the circumstances of this offender committing this crime,’ and then ensure that the sentence he was to impose did not breach ‘the bedrock principle of consistency’.  There was a deal of discussion concerning the gravity of the appellant’s offending, with reference to sentences in culpable driving cases which had been considered by this Court.   It was pointed out that the prosecution characterised the appellant’s offence as being in ‘the worst class of case’ for culpable driving involving the death of a single occupant, and the appellant’s counsel acknowledged that his offending was at the ‘upper echelon’ or ‘upper end’ of such cases.

3. The respondent submitted that in considering the objective gravity of the applicant’s conduct, the judge reached the conclusion that this was ‘an extremely bad example’ of culpable driving causing death.  His Honour then observed that few past cases involved ‘such a dreadful array of serious features’, and went on to enumerate those features.  Thus, the appellant:

   ·was reckless rather than negligent in his disregard for the risks his driving created;

   ·had a very high blood alcohol reading, .203;

   ·was driving at an ‘almost homicidal’ speed of between 52 and 60 kilometres per hour over the applicable speed limit;

   ·had a complete incapacity, while driving at this speed, to properly control his vehicle;

   ·had an appalling history of driving offences;

   ·was unlicensed;  and

   ·decided to drive in spite of his friends’ suggestion that he take a taxi home.

4. The respondent further pointed out that, as he was bound to do, the sentencing judge also had regard to the profound impact of the victim’s death on his family.

5. Thus, so it was put, it was to be expected that the appellant’s sentence ‘would fall at the very top end of the spectrum of sentences previously imposed for the offence of culpable driving.’  No error has been shown in the sentencing judge’s observation that this offence was marked with an extremely rare constellation of serious aggravating features.

6. It was further submitted that the applicant’s disregard for the safety of others was demonstrated not only by his exceedingly dangerous driving on the night in question, but by his deplorable record of driving offences.  This record includes, among many other motor traffic offences:

   ·four convictions for exceeding the prescribed concentration of alcohol while driving;[15]

   ·one conviction for refusing a breath test;

   ·one conviction for driving in a manner dangerous;

   ·one conviction for careless driving;  and

   ·two convictions for exceeding the speed limit by 30 kilometres per hour or more.

   [15]These include blood alcohol concentrations of .115, .174 and .139.

7. Given the applicant’s failure to respond to short custodial terms, suspended sentences, community based dispositions and fines for past offences, the respondent argued that the sentencing judge was correct to emphasise the need to deter him from further offending.

8. The respondent argued that it is important to bear in mind that the concept of a ‘range’, which is commonly invoked in appeals based on manifest excess, refers to the spectrum of sentences available in a sound exercise of the sentencing discretion, which is not defined by statistics.  Further, statistics do not of themselves establish a sentencing practice.  When used as a yardstick, statistics and other serious cases of culpable driving indicate that the appellant’s sentence was consistent with current practices.  Indeed, so it put, sentences in the order of that imposed on the appellant have been imposed before in respect of single counts of culpable driving causing death.  But even if the appellant’s sentence was thought to be out of step with current sentencing practices, that would not of itself afford a reason for this Court to interfere with the sentence. 

9. It was submitted finally that the sentencing judge paid proper regard to the appellant’s physical injuries, and to his mental health, but they were not such as to call for a substantial reduction in his sentence.  As the sentencing judge said, deterrence, denunciation, punishment and protection of the community were ‘the weighty matters’ in the sentencing exercise.

   Is the reckless form of culpable driving more serious than other forms?

10. Most commonly the form of culpable driving charged is by driving negligently. Sometimes, when alcohol or drugs are a prominent feature of the offending, driving whilst under the influence to the requisite extent is also particularised in the indictment. This course is consistent with s 318(3) of the Crimes Act 1958, which provides that an indictment for the offence ‘shall specify which form of culpability within the meaning of subsection (2) is charged but evidence of the whole of the circumstances shall be admissible on the trial on the indictment’.  But where, on a trial before a jury, more than one form of culpable driving is included in the indictment, the jury must be directed that before convicting they must be unanimous as to the form of culpability.  It is not sufficient, for example, for some jurors to be satisfied of negligence, while others are satisfied of being under the influence.[16]

    [16]See n 8 above.

11. It is moderately uncommon for culpable driving by driving recklessly to be charged.  That fact has, I think, been the source of some of the difficulty attending this case.

12. Section 318(2) of the Crimes Act 1958 sets out the four forms of culpable driving:[17]

    (2) For the purposes of subsection (1) a person drives a motor vehicle culpably if he drives the motor vehicle—

    (a)recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving;  or

    (b)negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case;  or

    (c)whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle;  or

    (d)whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle.

    [17]Emphasis added.

13. As I have observed,[18] in assessing the seriousness of the appellant’s crime, the judge purported to take into account that ‘the form of culpable driving which [he] pleaded guilty to was the most serious form’, since his driving ‘was more than negligent it was reckless’. It is thus tolerably plain that the judge was of the opinion that the form of culpability spelled out in s 318(2)(a), driving ‘recklessly’, was a more serious form of the offence than driving negligently (or whilst under the influence of alcohol or a drug to the requisite degree).

    [18]Above [11].

14. In McGrath,[19] Callaway JA, having expressed the view that the ‘state of mind in s 318(2)(a) is the same as for reckless murder’,[20] went on to observe:[21]

    Just as there is a wide variety of manslaughters, so there is a wide variety of conduct constituting an offence against s 318. The worst class of case would almost certainly involve the first kind of culpability described in s 318(2)(a), namely a conscious and unjustifiable disregard of a substantial risk of causing death. I mention that because the maximum penalty prescribed for the offence is reserved for the worst type of case falling within s 318, not the worst type of case falling within s 318(2)(b), (c) or (d), as the case may be: see and compare Ibbs v R. (1987) 163 CLR 447 at 451-452.

    [19]R v McGrath [1999] VSCA 197.

    [20]Ibid [15].

    [21]Ibid [16].

15. With very great respect, the view expressed by Callaway JA in McGrath that the state of mind for the reckless form of culpable driving is the same as for reckless murder cannot be accepted. Section 318(2)(a) requires a conscious and unjustifiable disregard of ‘a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result’ from the relevant driving.  By way of contrast, the crime of reckless murder requires knowledge of the probability that death or really serious bodily injury will result from the impugned act or acts.  So much was made clear by the High Court in Crabbe,[22] where the Court (Gibbs CJ, Brennan, Wilson, Deane and Dawson) said:

    [I]t should now be regarded as settled law in Australia, if no statutory provision affects the position, that a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results.

    [22]R v Crabbe (1985) 156 CLR 464, 469.

16. The Court in Crabbe was concerned to emphasise that, for the purposes of reckless murder, the accused must know that death or really serious bodily injury[23] was the probable or likely consequence of his or her act, and to draw a distinction between what is probable or likely on the one hand and what is only possible on the other.[24] Section 318(2)(a), however, requires disregard of a risk (albeit substantial) that death or really serious bodily injury may result.  Hence, quite plainly, the state of mind necessary for the reckless form of culpable driving is not the same as for reckless murder.

    [23]The expressions ‘really serious injury’ and ‘grievous bodily harm’ are interchangeable: R v Rohdes (1984) 14 A Crim R 124; R v TY (2006) 12 VR 557; R v Schaeffer (2005) 13 VR 337; R v Barnett (2007) 16 VR 240.

    [24]Boughey v The Queen (1986) 161 CLR 10, 20 (Mason, Wilson and Deane JJ).

17. Callaway JA’s opinion that the state of mind in s 318(2)(a) is the same as for reckless murder was challenged by counsel in Toombs,[25] but the Court (Ormiston and Callaway JJA, and O’Bryan AJA) found it unnecessary to decide the issue.  O’Bryan AJA noted — and seemingly endorsed — a concession made by counsel in effect that reckless culpable driving is a more serious form of the offence than the negligent form:[26]

    In my opinion, this is not a suitable case for the court to deliver a definitive judgment about the meaning and effect of the words in s.318(2)(a). This is an appeal against sentence not against the judge's charge to a jury. It is unnecessary to consider further the opinion of Callaway JA in McGrath for another reason.  The trial judge sentenced the appellant upon the basis of involuntary manslaughter not reckless murder. … [Counsel] conceded that by the plea of guilty to reckless culpable driving the appellant pleaded to the most serious form of culpable driving.  Negligent culpable driving, [Counsel] conceded, is a less serious form of culpable driving than reckless culpable driving, hence the sentencing judge's observation that the appellant’s driving had to be regarded ‘as in the worst case bracket’ was apposite if he meant a worst case of culpable driving.  Nothing further needs to be said about this submission.

    [25]R v Toombs (2001) 34 MVR 509; [2001] VSCA 144, [1] (Ormiston JA); [2] (Callaway JA); [33]-[34] (O’Bryan AJA).

    [26]Ibid [34].

18. Clark[27] was a Director’s appeal where, in an attempt to commit suicide, the respondent had driven at very high speed in a suburban street, and collided with two cars, killing the driver of one and badly injuring the driver of the other.  The respondent pleaded guilty to the reckless form of culpable driving and to causing serious injury by dangerous driving.  Individual sentences of six (6) years’ and two (2) years’ imprisonment respectively were imposed;  and, with some cumulation, a total effective sentence of seven (7) years’ imprisonment was imposed, upon which a non-parole period of five (5) years was fixed.  The Court (Ashley and Mandie JJA, and Hansen AJA) dismissed the appeal.  Citing the passage from Toombs set out above, Hansen AJA said:[28]

    … the appellant pleaded guilty to the more serious form of culpable driving, that is to say ‘reckless’ culpable driving under s 318(2)(a) of the Crimes Act 1958 on the basis that he consciously and unjustifiably disregarded a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving, as opposed to negligent culpable driving …

    [27]DPP v Clark [2010] VSCA 64.

    [28]Ibid [14].

1. It is plain, however, that the Court was not asked to, and did not, analyse whether the reckless form of the offence is indeed a more serious form than the others. 

1. Birnie[29] involved ‘one of the worst and most callous examples of death by culpable driving arising out of negligence as defined’.[30] Trying to make his escape after having snatched a bag from an elderly woman in a car park, the applicant knocked the woman down with his car and reversed over her, causing her death. He pleaded guilty to culpable driving by negligence under s 318(2)(b), but the judge sentenced on the basis that the charge was one of reckless driving under s 318(2)(a). The Court of Appeal substituted a sentence of nine (9) years’ imprisonment for one of nine (9) years and six (6) months on the individual count of culpable driving, ‘essentially because of the apparent misconception of the sentencing judge as to the nature of the offence with which the applicant had been charged’. Ormiston JA remarked that the original sentence ‘may well have been appropriate for a count of causing death by culpable driving based on an allegation of driving recklessly, but this application has to be resolved upon the basis that the foundation of the charge to which the applicant pleaded was the lesser allegation of negligent driving, as defined’.[31]  His Honour had earlier observed:[32]

   Although the learned sentencing judge in this case correctly referred to culpable driving contrary to para (b) as ‘a species of involuntary manslaughter’ which must be treated as such, he unfortunately went on to describe the present circumstances as exhibiting a ‘conscious and unjustifiable disregard of the substantial risk of causing death’ which he had already classified, by reference to another judgment of Callaway JA[33] as ‘the worst class of case.’  It seems therefore, as counsel conceded, that he had concentrated too much on the apparent recklessness of the applicant and had seemingly forgotten that the charge was one which essentially was based on gross negligence as proscribed by para (b).  Consequently there can be little doubt that his Honour sentenced on an incorrect basis.  By accepting that concession, however, I should not be taken as expressing the view that all cases of culpability based on reckless driving are worse than all cases of culpability based on gross negligence for, although the mental element is clearly different, there may be factual elements which will render the criminality of a case of causing death by grossly negligent driving worse than that of some cases of causing death by reckless culpable driving. In other words, there may well be some overlap between the two classes of case, forgetting for the present those covered by paragraphs (c) and (d),[34] and the legislature has not chosen to impose different maximum penalties for the various classes of causing death by culpable driving.

   [29]R v Birnie (2002) 5 VR 426.

   [30]Ibid 434 [19] (Ormiston JA).

   [31]Ibid 438 [32].

   [32]Ibid 431 [11] (emphasis added).

   [33]R v Wright [1999] 3 VR 355.

   [34]Which refer to the causing of death by reason of driving under the influence of drink and drugs respectively.

2. Gany[35] was not a case of culpable driving, but involved four charges of negligently causing serious injury under s 22 of the Crimes Act 1958, and one charge of reckless conduct endangering persons under s 23.  When comparing the elements of the two (non-fatal) offences, the Court (Chernov, Vincent and Redlich JJA) — citing Birnie and Toombs — observed[36] that, ‘Because the mental element is different, reckless conduct would generally be viewed as more culpable than that which is negligent but that will not always be so’.

   [35]DPP v Gany (2006) 163 A Crim R 322; [2006] VSCA 48.

   [36]Ibid 331 [29].

3. Lam[37] was a case where two drivers, Lam and Khuat, had an impromptu race in suburban streets. Khuat lost control of his vehicle at high speed and in the resulting collision two passengers in his vehicle were killed. He pleaded guilty to two charges of culpable driving by negligence, whereas Lam pleaded guilty to one count of recklessly placing another person in danger of death under s 22 of the Crimes Act 1958.  Ashley JA (with whom Redlich JA and Bell AJA agreed) said:[38]

   That there is a difference in the mental element of the offences with which Khuat and the appellant were charged is not in doubt. It was emphasised by the fact that the Crown relied upon the gross negligence described in s 318(2)(b) of the Act in proof of the offence of culpable driving laid against Khuat, and not reckless driving as described in s 318(2)(a).

   It was, in my view, permissible for the learned judge to treat the element of recklessness within s 22 as importing a greater culpability than the element of gross negligence which was pertinent to the charge laid against Khuat. In a somewhat different context, this Court recently observed that reckless conduct would generally be viewed as more culpable that that which is criminally negligent, although that will not always be so.[39]

   [37]The Queen v Lam (2006) 46 MVR 207; [2006] VSCA 162.

   [38]Ibid [28]-[29].

   [39]DPP v Gany [2006] VSCA 148, [28]-[29], citing R v Toombs, (citation, n 6), (Callaway JA [2] and O’Bryan AJA [34]) and R v Birnie [2002] VSCA 155; (2002) 5 VR 426, 431, (Ormiston JA [11]).

4. More recently, in Towle,[40] the applicant had been charged with six counts of culpable driving by negligence and four counts of negligently causing serious injury, but was found guilty of alternative charges of dangerous driving causing death and dangerous driving causing serious injury.  He was also acquitted of two counts of reckless conduct endangering serious injury.  The applicant argued that he was sentenced on a basis that was inconsistent with the acquittals on the charges of culpable driving and reckless endangerment.  Maxwell P pointed to the distinction ‘between conscious disregard of a known risk on the one hand and a failure to take sufficient care to avoid or eliminate a known risk on the other’.  The legal concept of recklessness is defined by conscious disregard of risk, whereas negligence is defined by failure to take sufficient care. [41]  He then observed:[42]

   The culpable driving provisions themselves illustrate this distinction. The first of the four categories of culpable driving — ‘reckless culpable driving’, in s 318(2)(a) — is defined as ‘conscious and unjustifiable disregard’ of a substantial risk of death or infliction of grievous bodily harm. By contrast, the second category — ‘negligent culpable driving’, in s 318(2)(a) — is framed in the language of negligence. That offence is committed where a driver ‘fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case’. More than once, this Court has expressed the view that reckless culpable driving involves greater culpability than negligent culpable driving.[43] Consciously disregarding a risk is — generally — more serious than gross negligence.

   [40]R v Towle (2009) 54 MVR 543; [2009] VSCA 280.

   [41]Ibid [31].

   [42]Ibid [32].

   [43]R v McGrath [1999] VSCA 197, [16] (Callaway JA, with whom Batt and Chernov JJA agreed);  R v Toombs [2001] VSCA 144; (2001) 34 MVR 509, 509 (Callaway JA), 513-14 (O’Bryan AJA); Gany [2006] VSCA 148; (2006) 163 A Crim R 322, 331; R v Lam (2006) VSCA 162, [28]–[29].

1. In my view, the correct position is that s 318 of the Crimes Act 1958 creates a single offence which may, by virtue of s 318(2), be committed in one of four ways.[44]  I draw support from the fact that, despite Parliament having increased the maximum penalty for the offence in 1992 from seven years’ imprisonment to 15 years, and in 1997 from 15 years to 20 years, the legislature has not sought to differentiate the maximum available penalty as between the four forms of the offence.  That is a powerful indication that there is no statutory hierarchy of seriousness between the manifestations of the offence, with the reckless form sitting at the apex.  The correct position is, in my view, that for sentencing purposes the objective seriousness of each case — whether it be  culpable driving by recklessness, negligence or another form — must be adjudged according to the factual circumstances peculiar to it, including the offender’s state of mind.  But duly acknowledging the different mental element attending the reckless form and the negligent form, it is not correct to say that all cases of the reckless form of the offence are of a species worse than cases involving the negligent form.  I agree with the view expressed by Ormiston JA in Birnie,[45] that although the mental element is clearly different, there may be factual elements which will render the criminality of a case of causing death by grossly negligent driving worse than that of some cases of causing death by reckless culpable driving.

   [44]R v Horvath [1972] VR 533, 537 (Winneke CJ, Little and Stephen JJ). Although another aspect of Horvath (relating to the jury directions necessary for negligent culpable driving) was overruled in R v De’Zylwa (2002) 5 VR 408 (Ormiston and Charles JJA, and O’Bryan AJA), other decided aspects remain undoubted. See also King v The Queen (2012) 245 CLR 588.

   [45]At [53] above.

2. Ibbs[46] buttresses the view I have expressed. That case concerned s 324D of the Western Australian Criminal Code, which created an offence of sexual penetration without consent.  The section created the same maximum penalty for the offence (14 years’ imprisonment) which, by virtue of s 324F, could be committed in several ways, including penetrating the vagina or anus of another person with a part of the body or an object;  introducing the penis into the mouth of another;  to engage in cunnilingus;  and so on.  Following conviction for an offence under the section, Ibbs appealed against sentence to the Western Australian Court of Criminal Appeal, the majority of which apparently ‘adopted as a sentencing principle the proposition that, “divorced from the circumstances”, each kind of sexual penetration as defined in s 324F is neither more nor less heinous than another’.[47]  The High Court (Mason CJ, Wilson, Brennan, Toohey and Gaudron JJ) held that such a proposition could not be accepted.  The Court said:[48]

   … The maximum penalty prescribed for the offence of sexual assault is reserved for the worst type of case falling within s. 324D … The maximum penalty is not prescribed as an appropriate penalty for the worst type of case falling within each of the respective categories of sexual penetration described in s. 324F. The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case.  In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined. …

   [46]Ibbs v The Queen (1987) 163 CLR 447.

   [47]Ibid 451.

   [48]Ibid 451-2 (emphasis added).

3. For these reasons the judge was in error to take into account that the form of culpable driving which the appellant pleaded guilty to ‘was the most serious form’.[49]  The error was, however, given the previous state of the authorities, and the manner in which the parties approached the matter, understandable.

   [49]See [11] above.

4. I turn to the main issue in the case, whether the sentence is manifestly excessive.

   Is the sentence manifestly excessive?

5. It may readily be acknowledged that a sentence in the order of 10 years’ imprisonment for a single fatality is somewhat unusual and therefore provokes scrutiny.

6. The highest individual sentence of which I am aware for culpable driving was imposed in Brown.[50] In that case the applicant pleaded guilty to culpable driving causing death and negligently causing serious injury. The form of culpability was that in s 318(2)(c), namely being under the influence of alcohol to such an extent as to be incapable of having proper control over a motor vehicle. A sentence of 12 years and three (3) months’ imprisonment was imposed for culpable driving, and three (3) years and six (6) months for negligently causing serious injury. With orders for cumulation, a total effective sentence of 14 years’ imprisonment was imposed, upon which a non-parole period of 10 years and three (3) months was fixed. The applicant, unlicensed, and with a blood alcohol concentration of .171, failed to stop at a Stop sign, entered an intersection at some speed and collided with a vehicle that had right of way, killing the passenger in that vehicle and badly injuring the driver. What set that case apart, however, was that the applicant had a prior conviction for causing death by culpable driving, for which he had been imprisoned.

   [50]R v Brown (2003) 39 MVR 293; [2003] VSCA 153.

7. Coldrey J imposed a sentence of 10 years’ imprisonment, with a non-parole period of seven (7) years, on a single count of culpable driving in Eades.[51]  The prisoner, after an altercation with another, deliberately ran down a bystander with his vehicle and then reversed over him.  Rather than culpable driving, the charge would have been murder, save that the prosecution could not prove that the initial deliberate impact was the cause of death, and could not prove that the reversing was a conscious and voluntary act done with the intention to kill or cause really serious injury.  The form of culpability was recklessness.

   [51]R v Eades [2001] VSC 407.

8. Usually, however, sentences in excess of 10 years have only been imposed for culpable driving where there have been multiple deaths, or where serious injuries have also been caused.[52]  And sentences of between nine and 10 years have been imposed for multiple deaths, or where there have been other serious offences committed at the same time.[53]

   [52]R v Tran (2002) 4 VR 457 (10/7) (two deaths, serious injuries); DPP v Church (2005) 42 MVR 420; [2005] VSCA 8 (12/9) (three deaths); R v Ioane [2006] VSCA 84 (12/9) (two deaths, serious injuries); Shields v R [2011] VSCA 386 (10/7) (one death, serious injuries).

   [53]DPP v Solomon (2002) 36 MVR 425; [2002] VSCA 106 (9/6) (two deaths, alcohol and cannabis intoxication, erratic driving); R v Stockdale (2002) 37 MVR 397; [2002] VSCA 202 (9/7) (one death, injuries, reckless endangerment, alcohol intoxication, erratic driving); R v Kennedy (2006) 45 MVR 208; [2006] VSCA 77 (9/7) (one death, injuries, alcohol intoxication, high speed); R v Cowden (2006) 47 MVR 128; (2006) 166 A Crim R 318; [2006] VSCA 220 (9/6½) (two deaths, alcohol intoxication, high speed); R v Williamson (2009) 21 VR 330 (9/6½) (one death, injuries, alcohol intoxication, high speed); R v Franklin (2009) 52 MVR 544; [2009] VSCA 77 (9y9m/5½) (two deaths, injuries, alcohol intoxication); Brayshaw v R (2011) 59 MVR 149; [2011] VSCA 233 (9/6½) (one death, injuries, drug intoxication, high speed).

9. That the appellant’s offending represents an extremely serious example of a serious offence cannot be gainsaid.  It is, however, unhelpful to endeavour to classify it, as did the prosecutor before the sentencing judge, as ‘the worst case situation’, in ‘the worst class of case’ or ‘in the worst category of case that this court would deal with in relation to the single occupant death’, since, sadly, it is always possible to imagine worse cases.  The two features of this case which, objectively, render this a serious example of the offence, are very high speed coupled with a very high blood alcohol concentration.  It is an unhappy fact, however, that high speed and high blood alcohol concentrations are common features of the offence of culpable driving.

10. By his plea the appellant admitted that he consciously and unjustifiably disregarded a substantial risk that the death of, or the infliction of serious injury to, another or others might result from his driving.  Although the reckless form of the offence is not as a matter of law to be regarded as more serious than other forms of culpable driving, that does not carry with it the concomitant that an offender’s state of mind is irrelevant to the sentencing task.  An offender’s state of mind is one of the factors to be considered in a constellation of factors relating to the circumstances of the offence in assessing the objective seriousness of the offence.  In the circumstances, however, given the state of impairment to judgment naturally to be expected following the ingestion of the volume of alcohol that the appellant must have consumed, his state of mind may not add greatly to the objective seriousness of the offence epitomised by driving at between 50 and 60 kilometres over the speed limit at four times the prescribed concentration of alcohol, although it remains relevant.

11. A factor of singular importance in this case is that the appellant’s moral culpability is very high.  The appellant in this case cannot call in aid — as can so many others convicted of culpable driving — an unblemished character.  Culpable driving is an offence frequently committed by people of otherwise good character,[54] so that the offending in such cases truly might be described as an aberration.  The appellant cannot claim that driving under the influence of considerable amounts of alcohol, or at high speed, or dangerously or carelessly, were activities that were foreign to him.  His poor driving record puts the lie to any such suggestion.  (The appellant also has many convictions for violence, including intentionally causing serious injury, assault and resisting police, and for damaging property and other offences involving drunkenness.)  Although no principle of sentencing dictates that more severe sentences be meted out to those who repeat criminal behavior, and the appellant cannot be punished again for his earlier offending, his prior convictions for alcohol-related and other serious driving offences demonstrate that the appellant’s moral culpability is high; that his prospects of rehabilitation are poor; that he has propensity to commit serious driving offences, and thus the community’s need for protection is enhanced; and that, as a factor in sentencing, specific deterrence is of increased importance.[55] 

    [54]R v O’Connor [1999] VSCA 55, [19].

    [55]R v O’Brien and Gloster [1997] 2 VR 714.

12. It would be fatuous to suggest that any person in the community in the present day did not understand the very great risk to life and limb posed by people driving whilst intoxicated.  In this case the appellant had previously been detected and punished for drink-driving on four occasions; yet, undoubtedly cognizant of the risks to road users and pedestrians posed by such conduct, he drove his vehicle on the evening of 17 May 2010 whilst grossly intoxicated and after he had been entreated by friends not to drive.  Moreover, the dangers of excessive speed are well-known to everyone in the community.  The appellant had been detected and punished on at least two occasions for driving at 30 kilometres or more over the speed limit; yet, cognizant of the risks posed by such conduct, he drove at breakneck speed whilst utterly incapable of exercising any proper control over his vehicle.  Previous sanctions aimed at discouraging drink-driving and speeding had not prevented his dangerous conduct.  Undeterred by previous punishments, and heedless of ubiquitous warnings and road-safety messages directed to the hazards of drink-driving and speeding, the appellant took the risk of driving whilst intoxicated and at speed.

13. Michael McMahon, who was entirely innocent of any wrongdoing, had his life snuffed out as a consequence of the appellant’s appalling driving.  The victim impact statements of Mr McMahon’s partner, Rhiannon Beckwith, and of his mother, make for sad reading.  Many lives have been blighted by the appellant’s offending, and two children have been left without a father.  These consequences are the direct result of the appellant’s recidivist and reckless conduct.  The impact on the victims must be taken into account and given appropriate weight. 

14. In mitigation the appellant was able to rely on his plea of guilty, which was entered prior to a contested committal and which obviated the need for any witness having to give evidence.  The judge accepted that that the plea of guilty was evidence of remorse (and that there was other evidence of remorse), and said that ‘in simple terms your sentence is shorter than it would have been had you pleaded not guilty and been found guilty by a jury’.

15. In reliance upon Verdins,[56] the appellant submitted that the appellant’s ongoing chronic depressive condition, and the symptoms that he had consistent with post-traumatic stress disorder, were paid insufficient regard by the judge, leading to a sentence which is manifestly excessive.  The sentencing judge, however, considered that there was too little about the appellant’s ‘problems’ and how he would fare in prison for the judge ‘to allow it to be a factor in mitigation’.  On the material put before him, in my view this finding was available to the judge.

    [56]R v Verdins (2007) 16 VR 269.

16. Reliance was also placed upon the appellant having spent five weeks weeks in hospital for necessary skin grafts.  The judge noted that the appellant’s physical injuries have ‘significantly curtailed’ his capacity to resume labouring work, and that his injuries ‘will remain as a practical reminder’ to him of what he did.  It was proper to take the appellant’s injuries into account as a matter going in mitigation,[57] but in the circumstances I do not regard this factor as operating to significantly mitigate the sentence imposed.

    [57]R v Barci (1994) 76 A Crim R 103; Howton v The Queen (2012) 62 MVR 207; [2012] VSCA 281.

17. As against the matters pressed in mitigation, the appellant’s moral culpability is, as I have said, very high.  I regard his prospects of rehabilitation as poor.  In my view there is a need to impose just punishment which is fitting to the appellant’s egregious conduct.  He needs to be deterred from similar conduct, as do others who might be minded to emulate his behaviour.  His conduct is worthy of marked denunciation.  Protection of the community demands significant punishment.

18. Were it not for the appellant’s antecedents, I would have been minded to say that the sentence passed in this case paid insufficient regard to current sentencing practices.  Emphasising once more, however, that the appellant is not to be punished again for his prior convictions, in my opinion they do set this case apart from most other cases of culpable driving.  The appellant’s circumstances are different from many (if not most) of those convicted of culpable driving.  He had been warned by previous sanctions not to repeat his behavior, yet he was heedless of those warnings (on this occasion with fatal consequences).

19. In the end, having regard to the relevant features of the offence and to those factors going in aggravation and mitigation, and further paying due heed to current sentencing practices, although I regard the sentence as stern I have concluded that it is not outside the range of those properly open in the proper exercise of the sentencing discretion.  The sentence is not, in my opinion, manifestly excessive. 

    Conclusion

20. I would dismiss the appeal.

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