R v Colbert

[2017] SASCFC 29

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v COLBERT

[2017] SASCFC 29

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Parker and The Honourable Justice Doyle)

12 April 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

The appellant's trucking company owned a 14 tonne Mitsubishi Tautliner truck.  To the appellant's knowledge, the brakes on that truck were not functioning properly.  On 5 March 2014 an employee driver of that truck was involved in a "near miss".  On 7 March 2014 another employee driver of that truck had a fatal accident.

Following a trial by jury, the appellant was convicted of the offences of endangering life (count 1) and manslaughter (count 2), committed on 5 and 7 March 2014. The sentencing judge adopted notional starting points of five years imprisonment for count 1, and nine years imprisonment for count 2. Utilising s 18A of the Criminal Law (Sentencing) Act 1988, and having regard to the fact that the two offences occurred relatively close in time, and considerations of totality, the sentencing judge imposed a total head sentence of 12 years imprisonment. His Honour fixed a non-parole period of eight years and 11 months imprisonment. His Honour then reduced the head sentence and non-parole period by 18 months on account of time spent in custody and on home detention bail.

The appellant appeals against his sentence on the grounds that the sentence is manifestly excessive; that the sentencing judge failed to afford adequate weight to the appellant’s physical and mental health issues; and that the sentencing judge erred in attaching excessive weight to the appellant’s 1996 convictions for rape.

Held per Doyle J (Vanstone and Parker JJ agreeing), dismissing the appeal:

1.       The sentence was not manifestly excessive, and no error has otherwise been established.

House v The King (1936) 55 CLR 499; R v Copeland (No 2) (2010) 108 SASR 398; R v Lutze (2014) 121 SASR 144; Lawler v The Queen (2007) 169 A Crim R 415, considered.

R v COLBERT
[2017] SASCFC 29

Court of Criminal Appeal:       Vanstone, Parker and Doyle JJ

1. VANSTONE J:     I would dismiss the appeal.  I agree with the reasons of Doyle J.

2. PARKER J:          I agree with the reasons of Doyle J. I would dismiss the appeal.

3. DOYLE J:             This is an appeal against sentence.

4. Following a trial by jury, the appellant was convicted of the offences of endangering life (count 1) and manslaughter (count 2), committed on 5 and 7 March 2014. 

5. At the time of the offending the appellant was the owner of Colbert Transport Pty Ltd, a trucking company that owned 11 rigid trucks, including the 14 tonne Mitsubishi Tautliner truck involved in the offending.  The appellant had taken ownership of the trucking business from a Mr Sellars on 6 January 2014.  Prior to that he had been a driver for Mr Sellers’ business, and had regularly driven the relevant truck.  The appellant had been on notice that the truck’s brakes were not working properly both before and after taking ownership of the trucking business.  

6. On 5 March 2014, the appellant’s driver employee, Mr Bonham, was involved in a “near miss” incident while attempting to apply the brakes of the truck to stop at an intersection in Lonsdale.  By its verdict on count 1, the jury was satisfied that the appellant permitted Mr Bonham to drive the truck on that day knowing that its braking system was defective and knowing that, as a result, there was a real and substantial risk to Mr Bonham’s life in driving the truck.

7. On 7 March 2014, another of the appellant’s driver employees, Mr Brimson, attempted to apply the brakes on Main South Road in Happy Valley.  The brakes failed.  Mr Brimson swerved to the left side of the road to avoid traffic, and collided with the support column of a road sign.  Mr Brimson died as a result of the injuries sustained in the collision.  By its verdict on count 2, the jury was satisfied that the appellant permitted Mr Brimson to drive the truck on that day, having failed to exercise reasonable care to ensure that the truck’s braking system was properly maintained so that it could be driven safely.  The jury was further satisfied that the appellant’s conduct involved such a great falling short of the standard of care that a reasonable person would have exercised, and involved such a high risk that death or serious bodily harm would follow, that it merited criminal punishment.

8. The maximum penalty for endangering life is 15 years imprisonment.  For manslaughter it is life imprisonment.

9. The sentencing judge adopted notional starting points of five years imprisonment for count 1, and nine years imprisonment for count 2. Utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA), and having regard to the fact that the two offences occurred relatively close in time, and considerations of totality, the sentencing judge imposed a total head sentence of 12 years imprisonment. His Honour fixed a non-parole period of eight years and 11 months imprisonment. He then reduced the head sentence and non-parole period by 18 months on account of time spent in custody and on home detention bail.

   The appeal

10. The appellant relies upon three grounds of appeal, namely:

    1.   the sentence is manifestly excessive;

    2.   the sentencing judge failed to place any adequate weight on the appellant’s physical and mental health issues; and

    3.   the sentencing judge erred in placing excessive weight on the appellant’s 1996 convictions for rape.

11. The circumstances in which an appellate court may interfere with the exercise of a sentencing discretion are well established.  The Court may interfere with a discretionary decision on appeal once it is demonstrated that the sentencing judge acted upon a wrong principle; mistook the facts; took into account irrelevant or extraneous considerations; or failed to take into account relevant considerations.  The Court may also interfere where, notwithstanding that a particular error is not readily identifiable, a sentence is manifestly unreasonable or plainly wrong such that the failure to exercise properly the sentencing power can be inferred.[1]

    [1]    House v The King (1936) 55 CLR 499 at 504-505; R v Copeland (No 2) (2010) 108 SASR 398 at 410.

12. Strictly speaking, grounds 2 and 3 do not allege error in the sense required by House v The King.  An allegation that the sentencing judge attached too much or too little weight to a particular sentencing consideration is at most a particular of, or submission in support of, an allegation of manifest error in the sentence ultimately imposed.[2] 

    [2]    R v Lutze (2014) 121 SASR 144 at [47].

13. To the extent that the appellant’s submissions in this appeal went as far as contending that the sentencing judge failed to have regard at all to a relevant consideration (the appellant’s physical and mental health), or that the sentencing judge erred in having regard to an irrelevant consideration (the appellant’s 1996 rape convictions), I address these matters below.

    Circumstances of the offending

14. The following is a summary of the sentencing judge’s findings as to the defective braking system of the Mitsubishi truck, the lack of steps taken to address the defects, and the appellant’s knowledge of these matters. 

15. By the time the appellant acquired the business on 6 January 2014, the brakes of the truck were already badly adjusted, resulting in the braking system operating inefficiently even when the system had adequate air pressure.  This finding was based on the evidence of three drivers of the truck (Mr Dahlhelm, Mr Bonham and Mr Johns) in relation to the difficulties they experienced with the truck’s brakes in the second half of 2013.  It was also supported by the expert evidence of a Mr McDonald to the effect that, in his opinion, the brakes had been poorly adjusted for several weeks prior to 7 March 2014.

16. The appellant’s evidence was that when he was driving the truck in the period prior to 6 January 2014, he had not experienced difficulties with the brakes, explaining that he was very light on the brakes, and generally relied upon the gears and exhaust brakes to slow the truck.  He did not notice drops in air pressure a great deal when he was driving the truck.  Further, he said that in November 2013, when the truck was running “rough”, it was taken to a mechanic, Mr Farrelly, who found an air leak in the brakes.  The appellant said that after the work done by Mr Farrelly, the air pressure was maintained really well.  

17. Although not rejecting the appellant’s evidence, the sentencing judge found that by 6 January 2014 the appellant had been warned by each of Mr Dahlhelm, Mr Bonham and Mr Johns that there were problems with the truck’s brakes.  While the appellant may have believed that the problem reported to him by Mr Dahlhelm and Mr Bonham might have been caused or exacerbated by the air leak subsequently addressed by Mr Farrelly in November 2013, this did not explain the problem reported to the appellant by Mr Johns in late December 2013. 

18. Putting the work done by Mr Farrelly in November 2013 to one side, the appellant, as the primary driver of the truck over the period, knew that there had been no check, service or repair of the braking system of the truck between mid 2013 (when Mr Bohman reported the problem to the appellant) and 6 January 2014.  While the appellant had no responsibility for the brakes prior to taking over the business on 6 January 2014, his earlier acquired knowledge was relevant to his culpability in respect of the 5 and 7 March 2014 offending.

19. The sentencing judge accepted that the appellant’s motivation for taking over the trucking business was so that the employees could keep their jobs, rather than the prospect of significant financial benefit.  However, having decided to take over the business, the appellant assumed responsibility for his employees and their safety. 

20. In January and February 2014, after the appellant had taken over the trucking business, employee drivers continued to experience similar difficulties with the truck’s brakes, and reported them to the appellant.  In January 2014, Mr Johns told the appellant that when he applied the truck’s brakes while driving down Grand Junction Road, the truck did not pull up properly, and the brakes felt “spongy” and had run out of air.  In February 2014, Mr Fuller told the appellant that he had found that when he applied the brakes, the truck did not pull up properly and that the brakes were constantly losing air. 

21. Despite his knowledge of the above, the appellant, as owner of the trucking business, did nothing between 6 January and 7 March 2014 to check, service or repair the truck’s brakes. 

22. By February 2014, Mr Bonham had become the principal driver of the truck.  On 5 March 2014, Mr Bonham was involved in the “near miss” incident mentioned at the outset of these reasons.  Immediately following this incident, Mr Bonham telephoned the appellant and told him in no uncertain terms that he needed to fix the truck’s brakes.  Further, when he returned to the depot later that day he said, in the presence of the appellant and another employee, that he had been in a “near miss” because there were no brakes on the truck, and that the brakes were “fucked” and needed to be fixed. 

23. Two days later, and despite no steps having been taken to check, service or repair the brakes, Mr Brimson was tasked to drive the truck.  Tragically, Mr Brimson was killed in a collision that occurred when the truck’s brakes failed.

    The appellant’s personal circumstances

24. The appellant was 57 years of age at the date of sentencing.  He left school after completing year 11, and has since that time worked primarily as a truck driver.  The appellant has lost contact with his mother, and is estranged from his father and siblings.  He has had a handful of significant relationships, although none has lasted.  When he was about 50 years of age, the appellant learned he had a 25 year daughter and a grandson.  He has had limited contact with them since.

25. The sentencing judge had regard to a psychological report obtained from Dr Lim in August 2015.  In that report, Dr Lim expressed the opinion that the appellant met the diagnostic criteria for a narcissistic personality disorder with paranoid traits.  She expressed the opinion that the appellant’s decisions made in the period leading up to 7 March 2014 were driven by a misplaced sense of arrogance and self-confidence, while minimising the concerns of others in relation to the vehicles under the appellant’s ownership.

26. The sentencing judge accepted that the appellant was sorry and regretful that Mr Brimson was killed.  However, his Honour added that he had not seen any evidence that the appellant was truly remorseful.  He said that the appellant’s statements to Dr Lim did not demonstrate true remorse, and that her reports suggested that the appellant may in any event lack a capacity to feel remorse, at least at a deep level.

27. The sentencing judge observed that it was, in the circumstances, difficult to assess the appellant’s prospects of rehabilitation.  In this context, the sentencing judge mentioned two offences of rape, one of attempted rape, and one of gross indecency, all of which were committed by the appellant in late 1996, and resulted in a significant sentence of imprisonment being imposed in February 1998.  The sentencing judge observed that while those rape offences appeared superficially to have little in common with the offences committed in March 2014, they did evidence a lack of regard for the interests of others that was consistent with the tentative diagnosis expressed by Dr Lim.  The sentencing judge concluded that he could only assess the appellant’s prospects for rehabilitation as fair.

    Ground 2: the appellant’s physical and mental health

28. The appellant complains that the sentencing judge did not have adequate regard to the appellant’s age and general physical and mental health.  The appellant emphasised that he suffers from angina and ischaemic heart disease, and that his physical health issues were referred to by Dr Lim and alluded to in the course of sentencing submissions.  The appellant also complains that in addition to not expressly referring to the physical health of the appellant, the sentencing judge appeared to have no regard to Dr Lim’s reference to other factors that should have warranted some leniency, namely stress, past major depressive disorders and an elevated risk of acting on self-harming ideation. 

29. I do not accept these criticisms of the sentencing judge’s approach.  His Honour made express reference to the appellant’s age and the ultimate opinions expressed by Dr Lim in her report.  His Honour clearly had regard to these matters, and bearing in mind the nature of sentencing remarks, I do not consider that his Honour was required to address the matters complained of in any more detail than he did. 

30. While his Honour did not make express reference to the appellant’s physical health issues, and the particular aspects of his mental health issues mentioned above, these were matters addressed by Dr Lim and hence to which it can be assumed from his Honour’s reference to that report that he had regard.  These matters were, in any event, not of great significance in the scheme of things.  The only reference made at the time of the sentencing remarks to the appellant’s physical health was reference to the Court proceedings having “taken their toll” on the appellant, and that he suffers from angina and is “not the healthiest man”.  It is not surprising that the sentencing judge did not consider it necessary that these matters be recounted in his sentencing remarks.

31. In summary, the appellant has not established that the sentencing judge failed to have regard to the appellant’s physical or mental health, and so has not established error in the sense required by the principles of appellate restraint in House v The King.

    Ground 3: the appellant’s convictions for rape

32. The appellant complains that the sentencing judge erred in placing excessive weight on the offences committed by the appellant in 1996.  The appellant emphasises the remoteness in time and difference in nature of these offences, contending that they were hardly relevant in the context of the present offending. 

33. When the relevant aspects of the sentencing remarks are considered in the context of those remarks as a whole, it is clear that the sentencing judge considered the rape convictions to be relevant in the context of the appellant’s personal history and psychological profile. 

34. I do not consider that the sentencing judge erred in treating the rape convictions as relevant in the manner described.  Those offences were relevant in that they were consistent with Dr Lim’s tentative diagnosis of a narcissistic personality disorder.  In that way, they were relevant to the appellant’s prospects of rehabilitation.  Those convictions were also relevant in depriving the appellant of any claim of good character that might have otherwise have entitled him to a greater degree of leniency. 

35. It thus cannot be said that the sentencing judge erred in having regard to the appellant’s convictions for rape.  They were relevant considerations.  What weight he attached to them was a matter for the sentencing judge, and not a matter productive of error in the sense required by House v The King.

    Ground 1: manifest excess

36. The appellant also complains that the sentence imposed was manifestly excessive. 

37. The appellant emphasises that he did not intend that any harm be caused to either Mr Bonham or Mr Brimson.  While that is a relevant consideration in assessing the appellant’s culpability, his offending was nevertheless very serious.  It occurred against the background that the appellant had known for several months that there was a significant problem with the truck’s brakes and that nothing had been done about this (apart from the work by Mr Farrelly in November 2013).  The appellant’s conduct involved ignoring an obvious and significant risk to the safety of his employee drivers of the truck, and indeed other road users.

38. I am conscious that comparison with sentences imposed in other cases is generally of limited assistance.  However, of some assistance in the present context is the decision of the New South Wales Court of Criminal Appeal in Lawler v The Queen.[3]  In that case, the offending was broadly comparable, albeit the defendant was the driver of a truck that killed another motorist.  The defendant pleaded guilty to one count of manslaughter and two counts of causing grievous bodily harm by dangerous driving.  He was sentenced to an effective sentence of 10 years and eight months imprisonment with a non-parole period of eight years for manslaughter, together with two years and 18 months for the two dangerous driving offences (which sentences were ordered to be served concurrently with the manslaughter sentence). 

    [3]    Lawler v The Queen (2007) 169 A Crim R 415.

39. An appeal contending manifest excess in the sentences imposed was dismissed, with the Court noting the high degree of criminality in the defendant’s conduct, and the importance of general deterrence.  As Price J explained:[4]

    Heavily laden vehicles compete daily with non-commercial traffic on busy roads.  The consequences of driving an unsafe heavy vehicle can be horrendous as is demonstrated by the mass destruction in this case.  The sentence should plainly indicate to an operator of a heavy vehicle that safety cannot be sacrificed for financial reasons. 

    [4]    Lawler v The Queen (2007) 169 A Crim R 415 at [42].

1. Similar considerations are relevant in the present case.  The significant risk to road users’ safety and lives associated with driving heavy vehicles in an unsafe condition means that general deterrence must weigh heavily in the sentencing process. 

2. In all the circumstances, a lengthy sentence of imprisonment was appropriate.  There was nothing in the appellant’s personal circumstances, including the matters that were the focus of ground of appeal 2, that suggests that the sentence imposed was excessive.  I am not otherwise satisfied that the sentence imposed was outside the range of sentences that the sentencing judge might appropriately have imposed.

3. I would dismiss the appeal.