Peter Buckley v The Queen
[2022] VSCA 152
•4 August 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0125 |
| PETER BUCKLEY | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | BEACH and McLEISH JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 August 2022 |
| DATE OF JUDGMENT: | 4 August 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 152 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1184 (Judge Quin) |
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CRIMINAL LAW – Appeal – Sentence – One charge of culpable driving causing death – Four charges of negligently causing serious injury – Total effective sentence of 11 years’ imprisonment – Non-parole period of 9 years’ imprisonment – Whether sentence manifestly excessive – Whether non-parole period manifestly excessive – Appeal allowed in respect of non-parole period.
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| Counsel | |||
| Appellant: | Mr M Turner | ||
| Respondent: | Ms K Hamill | ||
Solicitors | |||
| Appellant: | HBH Legal | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA
McLEISH JA:
On 3 June 2021, in the County Court, the appellant was convicted of one charge of culpable driving causing death,[1] and four charges of negligently causing serious injury.[2] Culpable driving is a standard sentence offence within the meaning of the Sentencing Act 1991. The standard sentence for culpable driving is eight years’ imprisonment. On 17 August 2021, the judge sentenced the appellant as follows:
[1]Contrary to Crimes Act 1958 s 318(1).
[2]Contrary to Crimes Act s 24.
| Charge on indictment J130223471 | Offence | Maximum | Sentence | Cumulation |
| 1 | Culpable driving causing death | 20 years’ imprisonment | 9 years’ imprisonment | Base |
| 3 | Negligently causing serious injury | 10 years’ imprisonment | 2 years’ imprisonment | 6 months |
| 4 | Negligently causing serious injury | 10 years’ imprisonment | 2 years’ imprisonment | 6 months |
| 5 | Negligently causing serious injury | 10 years’ imprisonment | 2 years’ imprisonment | 6 months |
| 6 | Negligently causing serious injury | 10 years’ imprisonment | 2 years’ imprisonment | 6 months |
| Total effective sentence | 11 years’ imprisonment | |||
| Non-parole period | 9 years | |||
| Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991 | 345 days | |||
| Other relevant orders | Licence cancellation and 6 years’ disqualification. | |||
The appellant was granted leave to appeal on two grounds: that the non-parole period is manifestly excessive (ground 1); and that the sentence was manifestly excessive (ground 2).
For the reasons that follow, ground 1 alone will be upheld and the appeal allowed accordingly.
Circumstances of offending
At the time of the offending, the appellant was 59 years’ old, and employed as a truck driver by a logging company.
On 14 March 2018, he reported to the company’s depot in Mount Gambier in the early hours of the morning. After performing preliminary checks, he departed the depot, driving a prime mover and two trailers with which he was familiar. The prime mover and trailer combination were in good working order.
He collected two loads of logs. The first load was collected from a forest near Robe, the next from a forest near Lucindale in South Australia. Travelling toward Portland on the Portland-Nelson road, the appellant was observed driving erratically, making sudden swerves and transgressing the centre dividing lane. Some oncoming vehicles were required to steer onto the shoulder of the road to avoid a collision.
As the appellant approached Portland in the early afternoon, the speed limit decreased from 100 km/h, first to 80 km/h, then, as roadworks approached, to 60 km/h and then 40 km/h. Road signage indicated the reduction in speed limits, announced that there were roadworks ahead, and warned drivers to ‘prepare to stop’. The road leading up to the road works was flat, and the roadworks were clearly visible from the signage reducing the speed limit.
Where the roadworks began, there was a stopping point. Three vehicles waited there: a tip truck driven by Mr Donald Risk, a sedan driven by Mr Robert Davie, and a station wagon driven by Mr James Driver and carrying his partner, Ms Juliet Milner, as well as his brother and sister-in-law, Mr Marcel Driver and Mrs Mary Driver.
The appellant braked briefly in the vicinity of the first road sign indicating a reduction in the speed limit. But he slowed only to approximately 60 km/h and did not brake again as he approached the cars waiting at the stopping point. He was, by then, experiencing a seizure and no longer in control of his vehicle.
The appellant’s prime mover struck the rear of the station wagon driven by Mr Driver, pushing it into the rear of Mr Davie’s sedan, and pushing both of those cars into the tip truck, which was pushed off the road. While the damage to the tip truck was comparatively moderate, the station wagon and sedan sustained extensive frontal and rear damage.
Mrs Driver was seated in the right rear passenger seat of the station wagon. She suffered multiple injuries in the collision and died at the scene (charge 1 – culpable driving causing death). Her husband, Mr Marcel Driver, was seated beside her. He suffered serious injuries, including a fractured rib and spine, cuts and bruises. He was airlifted to Royal Melbourne Hospital (charge 3 – negligently causing serious injury). So too was Ms Milner, who was seated in the front passenger seat. She suffered injuries including a spinal ligament injury requiring surgery (charge 4 – negligently causing serious injury). Mr James Driver, who was behind the wheel, also suffered serious injuries, and was airlifted to the Alfred Hospital (charge 5 – negligently causing serious injury).
Mr Davie, the driver of the sedan, also suffered serious injuries, including fractures, a lacerated liver and kidney and lung injuries (charge 6 – negligently causing serious injury).
After the impact, the appellant’s vehicle, which had sustained minor frontal damage, continued along the road before coming to a stop some 160 metres later. The appellant exited the vehicle and appeared to be confused, unable to recognise or recall what had occurred.
The appellant had for some time suffered from ‘turns’ or ‘déjà vu’ episodes. These episodes were a particular form of seizure which, when sufficiently progressed, can cause lack of awareness, confusion and disorientation. These episodes commenced some decades earlier, following a head injury sustained in a serious assault. From 2001, these episodes were managed by the appellant taking a prescribed course of sodium valporate. When he followed the prescribed doses, the episodes abated.
In recent years, the prescribed dose was 900mg, twice daily. This dosage kept the appellant’s sodium valporate levels within a therapeutic range. These levels were checked as part of an annual review conducted by a neurologist. Participating in these reviews was a condition of the appellant maintaining his accreditation to drive heavy vehicles. The appellant’s neurologist had, in recent reviews, emphasised to him the importance of keeping his levels within this range by maintaining the prescribed dosage. Recent reviews had showed the appellant’s sodium valporate levels to be within that range.
But at the time of the offending, the appellant’s sodium valporate levels were not within the therapeutic range; they were considerably lower. In fact, in recent years the appellant had not taken the prescribed dosage on a regular basis, and the ‘turns’ had returned. Significantly, in late 2016, the accused lost his job as a driver for another company after driving his truck off the road and into a bog. He lacked any memory of having done so. There were other ‘turns’ in the period between that incident and the collision. In the months leading up to the collision, these ‘turns’ were occurring with increasing frequency and severity.
In the years preceding the collision, the appellant did not disclose these episodes or his non-compliance with his medical regimen to his neurologist, employer or the responsible regulator. He understood that if he did so, his licence would likely be cancelled, preventing him from working as a truck driver.
Sentencing reasons
After setting out the circumstances of the offending, the judge addressed the impact on the victims. The judge acknowledged the grief endured by the family of Mrs Driver, and the ongoing emotional and physical toll experienced by the surviving victims.
The judge noted that the offence of culpable driving causing death is a very serious offence, and the offence of negligently causing serious injury a serious offence. She assessed the appellant’s moral culpability as high, because:
(a)the appellant was aware for many months that he had issues which affected his ability to safely drive;
(b)despite being subject to a regulatory regime that required him to disclose these issues, he did not do so;
(c)he continued to drive a very large vehicle, exposing other road users to a risk of collision, which, if realised, would likely result in death or serious injury; and
(d)that risk of collision was realised in a ‘devastating incident’ involving ‘dire consequences’ for a significant number of victims.[3]
[3]DPP v Buckley [2021] VCC 1184, [44], [48] (‘Reasons’).
The judge referred to a report prepared by a forensic psychologist, Ms Gina Cidoni. The judge noted Ms Cidoni’s opinion that the appellant suffered from post-traumatic stress disorder, caused by an accident in 2011 in which the appellant was involved but not at fault;[4] and that he had developed a major depressive disorder.[5]
[4]Ibid [33]-[34].
[5]Ibid [34].
The judge referred to the following mitigatory factors in the appellant’s favour:
(a)the appellant’s lack of relevant prior criminal history;[6]
[6]The judge, however, noted a number of traffic infringements, as well as a subsequent conviction for driving under suspension in South Australia, for which the appellant received a suspended sentence: Reasons [36].
(b)that a custodial sentence would be more burdensome because of:
(i) the appellant’s post-traumatic stress disorder and major depressive disorder, which may further deteriorate in a custodial setting;[7] and
[7]Reasons [37].
(ii) the ongoing pandemic, and the reduced freedoms in custody, including the reduced availability of visits and programs;[8]
(c)the appellant’s remorse, which the judge accepted was genuine;
(d)the appellant’s unaccepted offer to plead guilty to a number of lesser charges, which, while it did not avoid the need for a trial, limited the time and witness evidence required and so had utility;[9] and
(e)the appellant’s prospects of rehabilitation, which were enhanced by the availability of family support.
[8]Ibid [38].
[9]Ibid [40].
In the course of dealing with the appellant’s personal circumstances, the judge rejected a submission that prison would be more burdensome because the appellant feared he would die, like his father, at a relatively young age, and therefore while he remained in custody. The judge considered this submission unsupported by any medical evidence.[10]
[10]Ibid [37].
The judge referred to the standard sentence for the primary offence. In the circumstances of the case, she explained, the sentencing objectives of general deterrence, denunciation and just punishment assumed particular prominence, as well as, to a lesser extent, specific deterrence and community protection.[11]
[11]Ibid [49].
After observing that the offence of culpable driving is a very serious offence, and that negligently causing serious injury ‘in the circumstances of a devastating incident involving a number of victims [was] also serious’, the judge said:
The regulatory requirements under which you were operating were to provide a mechanism for protection of other road users to ensure that those who have the control of vehicles like the prime mover are responsible and honest in their disclosure of their capacity and health. You were not in this instance and there were dire consequences.[12]
[12]Ibid [48].
Ultimately, the judge sentenced the appellant as outlined above, concluding:
A term of imprisonment is the only option for the court in this case. The only issue is the head sentence and non-parole period. It was not submitted under s 11A that the non-parole period should be anything other than that in the statutory formula.[13]
We interpolate that her Honour’s reference to the ‘statutory formula’ was a reference to the minimum non-parole period required by s 11A of the Sentencing Act to be fixed in respect of a standard sentence offence.
[13]Ibid [50].
Grounds of appeal
Leave was granted in respect of two grounds of appeal, as follows:
1. The judge erred by imposing a non-parole period that was outside of the statutory provisions to a manifestly excessive degree.
2.The judge erred by handing down a sentence that was manifestly excessive.
Ground 2 – excessive sentence
Ground 2 asserts that the sentence imposed upon the appellant is manifestly excessive. It is convenient to deal with this ground before dealing with the more particular ground concerning the excessiveness or otherwise of the non-parole period.
The appellant submitted that the sentence imposed by the judge was manifestly excessive having regard to his age; his remorse; his complex post-traumatic stress disorder and his major depressive disorder as identified by Ms Cidoni; his lack of criminal history; and his prospects for rehabilitation. The appellant contended that, despite her Honour’s reasons setting out the various matters in mitigation relied upon by the appellant, the total effective sentence and non-parole period did not reflect that her Honour had given sufficient weight to the matters the appellant relied upon.
In relation to his age, the appellant noted that he was 62 at the time of sentencing, and that he would be 71 when he became eligible for parole. We interpolate that, because of the amount of pre-sentence detention served by the appellant, he will in fact be 70 when he becomes eligible for parole under the sentence imposed by the judge.
In relation to remorse, the appellant noted that towards the end of his record of interview he was seen to be ‘physically and emotionally ridden with grief when confronted with the gravity of what had happened to Mary Driver’. Moreover, in Ms Cidoni’s report it was ‘clearly indicated that the appellant has struggled to cope with the fact that he caused the loss of life’.
In relation to the appellant’s post-traumatic stress and major depressive disorders, the appellant noted that the judge accepted that these were caused by a previous collision in which two people were killed, which collision was not the fault of the appellant.
Ground 2 –analysis
As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[14] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[15]
[14]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[15]Ibid.
In our view the judge was plainly correct in her categorisation of the seriousness of the appellant’s offending. Putting the non-parole period to one side (which we will deal with when we come to ground 1), we do not agree that any of the individual sentences, the orders for cumulation or the total effective sentence were outside the range of sentencing options available to the judge. The appellant’s moral culpability for his offending was, as the judge said, high. A sentence of 11 years for this offending, notwithstanding all of the matters in mitigation relied upon by the appellant, was well open. The appellant’s submissions to the contrary must be rejected.
Ground 1 – excessive non-parole period
In addition to the matters relied upon in relation to ground 2 as set out above, the appellant submitted that the non-parole period of nine years, amounting to some 81 per cent of the total effective sentence, was manifestly excessive. That proportion conspicuously exceeds the minimum of 60 per cent prescribed by s 11A(4)(c) of the Sentencing Act and, what was contended by the appellant to be, ‘the usual range of 60 to 75 per cent’. No explanation for imposing a lengthier non-parole period than that set out in s 11A was provided by the judge, and the sorts of features which might have justified doing so were absent in the present case. Specifically, it was said, the appellant does not present a risk to the community given that he will be unable to drive once he completes his sentence, is not a persistent or unrepentant offender, and has not committed multiple grave offences.
The respondent contended that the non-parole period was reasonably open and the fact that it exceeded both the percentage referred to in s 11A and the so-called ‘usual range’ of 60 to 75 per cent was not significant. The ‘usual range’ is descriptive rather than prescriptive. Non-parole periods that are outside the ‘usual range’ are entirely permissible provided they are reasonably open in the circumstances of the case. Whatever limited utility the ‘usual range’ might have is further reduced where, as here, a non-parole period is to be set in respect of serious crimes for which a total effective sentence exceeding ten years is to be imposed.[16] In such cases, longer non-parole periods may be more appropriate, as adherence to the ‘usual range’ would tend to produce, on the one hand, ‘inordinately long parole periods’ and, on the other hand, non-parole periods insufficiently long to reflect the gravity of the offending.[17] Indeed, non-parole periods exceeding 75 per cent of the total effective sentence are not uncommon, including in culpable driving cases.[18]
[16]Romero v The Queen (2011) 32 VR 486, 493 [25] (Redlich JA, Buchanan and Mandie JJA agreeing at 494 [28] and [29]) (‘Romero’); Kumova v The Queen (2012) 37 VR 538, 542–3 [14], 544 [19] (‘Kumova’).
[17]Kumova (2012) 37 VR 538, 544 [19] (Nettle JA, Redlich and Osborn JJA relevantly agreeing at 545 [25]).
[18]See DPP v Cochrane [2020] VCC 1924, where the non-parole period was 80 per cent of the total effective sentence of 10 years, and DPP v Panayides [2019] VCC 1849, where the non-parole period was just under 80 per cent of the total effective sentence of 11 years.
In the present case, it was said that the length of the total effective sentence, and the gravity of the appellant’s offending left a non-parole period exceeding 80 per cent of the total effective sentence available to the judge. In particular, the respondent emphasised the judge’s assessment of the appellant’s moral culpability as very serious offending, described at [19] above. Given the appellant’s high level of culpability for such serious offending, a robust non-parole period was, it was said, required to adequately address all sentencing purposes. The 9 year non-parole period imposed ensured that the principles of deterrence, denunciation, community protection and just punishment were adequately vindicated, while a parole period of two years provides enough time to supervise the appellant’s rehabilitation and reintegration into the community.
Ground 1 – analysis
While the non-parole period (like the head sentence) must reflect the objective gravity of the offending, as has been said before, the non-parole period should constitute the minimum period of imprisonment that justice requires be served in any case.[19] In fixing a non-parole period, punishment is mitigated in favour of rehabilitation. The benefit of the minimum term is for the purpose of the offender’s rehabilitation.[20]
[19]Kumova (2012) 37 VR 538, 545 [27].
[20]Ibid.
While in the present case we are of the view that there was nothing manifestly excessive about the head sentence imposed by the judge, we have come to a different conclusion with respect to the non-parole period. In our view, when regard is had to all of the circumstances of the offending and the offender, the non-parole period is wholly outside (above) the permissible range. Not only is the absolute length of the non-parole period too long (manifestly excessive) in all the circumstances, it fails to give effect to the appellant’s prospects of rehabilitation, and thus to appropriately mitigate the appellant’s punishment.[21] While the judge did not expressly set out any finding as to the appellant’s prospects of rehabilitation, we note that on the plea the applicant submitted that his prospects were ‘promising’, and that the prosecutor told the judge that he had no issue with that description.
[21]See Kumova (2012) 37 VR 538 546 [28].
To the extent that the appellant submitted that the judge erred in fixing a non-parole period that was in excess of the minimum set out in s 11A(4)(c) of the Sentencing Act, that submission must be rejected. Section 11A(4) provides minimum non-parole periods except where a court considers that it is in the interests of justice to impose a period lower than the relevant minimum provided in the section. The provision does not apply any corresponding limit on the imposition of a non-parole period above the specified minimum. The mere imposition of a non-parole period in excess of the minimum prescribed in s 11A(4) therefore cannot (without more) constitute error.
Similarly, to the extent that the appellant submitted that the judge erred in fixing a non-parole period that was in excess of some so-called ‘usual non-parole period’, that submission must equally be rejected. One starts with the proposition that a non-parole period which, as a proportion of the head sentence, is unusually high may, in the absence of some explanation, invite appellate scrutiny.[22] The question of whether manifest excess or some other error is found then needs to be evaluated in all of the relevant circumstances of the case.
[22]See Romero (2011) 32 VR 486, 493 [25].
Little was said by either party on the plea about the fixing of an appropriate non-parole period. The prosecutor told the judge that the non-parole period to be imposed had to be at least 60 per cent of the total effective sentence. The applicant’s counsel on the plea made no submission to the contrary, and certainly did not submit that some amount less than 60 per cent should be fixed. Equally, the prosecutor did not advance any specific submission as to why an amount in excess of 60 per cent should be fixed. Apart from saying that no party submitted that the non-parole period ‘should be anything other than that in the statutory formula’,[23] the judge did not advance any specific reason for fixing a non-parole period which was well in excess of the statutory minimum. We do not suggest that her Honour’s failure to give an express reason for imposing such a relatively high non-parole period which was close in length to the head sentence involved error in itself,[24] just that the absence of any express reason leaves us with the task of having to consider the issue by reference to the whole of the facts and circumstances of the offender and the offending as disclosed in her Honour’s reasons.
[23]Reasons [50].
[24]See Romero (2011) 32 VR 486, 492-3 [24].
Having undertaken the above task, we have concluded that the non-parole period fixed by the judge was in all the circumstances manifestly excessive: it did not give effect to the appellant’s prospects for rehabilitation.[25] Accordingly, we would set aside the non-parole period and fix a new non-parole period of seven years and nine months.
[25]See Kumova (2012) 37 VR 538, 546 [28].
Conclusion
We will make orders allowing the appeal on ground 1, setting aside the non-parole period imposed in the County Court, and fixing a new non-parole period of seven years and nine months.
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