R v Cropley
[2009] VSCA 32
•2 March 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 802 of 2007
| THE QUEEN |
| v |
| DANIEL KRISTIAN CROPLEY |
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JUDGES: | BUCHANAN and VINCENT JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 March 2009 | |
DATE OF JUDGMENT: | 2 March 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 32 | |
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Criminal law – Sentence – Road rage – Recklessly causing serious injury – Remorse affected by offender contesting mental element of offences – Delay in sentencing – Total effective sentence of four years’ imprisonment with a minimum term of two years and six months not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G J C Silbert SC with Ms A Hassan | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr C B Boyce | Victoria Legal Aid |
BUCHANAN JA:
After a trial in the County Court, the appellant was convicted on two counts of recklessly causing serious injury (counts 2 and 4) and four counts of reckless conduct endangering persons (counts 5 to 8). After a plea, the appellant was sentenced to be imprisoned for a term of two years on each of counts 2 and 4 and for a term of 12 months on each of counts 5 to 8. With a measure of cumulation, a total effective sentence of four years' imprisonment was produced. A minimum term of two years and six months' imprisonment was fixed before the appellant was to be eligible for parole.
The convictions arose from an episode of road rage. At about 12.30 p.m. on 30 December 2004, the appellant was driving his motor car on Beach Road, Sandringham. A motorcycle rider with a pillion passenger turned into the appellant's lane, causing the appellant to slow down. The appellant became angry. When he caught up with the motorbike at an intersection, he told the rider that he had cut off the appellant twice. The motorcycle rider denied having done so. The appellant followed the motorcycle to the next set of lights. The motorcycle was at the head of a line of cars. The appellant overtook the line of cars on the incorrect side of the road and pulled in front of the line of traffic next to the motorcycle. When the motorcycle and the appellant drove off from the intersection, the appellant, still angry, verbally abused the motorcycle rider. Further along the road, the motorcycle stopped for another red light. The motorcycle rider asked the appellant what the matter was, and the appellant said that he had cut off the appellant twice. The motorcycle rider calmly asked the appellant if he wanted to pull over and discuss the matter. The appellant replied with abuse, accusing the motorcycle rider of 'driving like a fucking lunatic'. The appellant was angry, agitated and upset. When the lights changed, the motorcycle accelerated away in an attempt to escape. The appellant chased the motorcycle, reaching a speed of 80 kilometres an hour, in a 60-kilometre per hour zone. The appellant's car passed the motorcycle, veered into the right-hand lane in front of the motorcycle and braked violently, causing the car to skid across the middle of the road. The motorcycle rider was unable to avoid the appellant's car and crashed into it. The appellant's car spun into the centre of the road, crossed the centre line and struck another vehicle travelling in the opposite direction.
As a result of the accident, the motorcycle rider and his pillion passenger suffered serious injuries. The motorcycle rider sustained a broken toe, severe bruising to his leg, abrasions, broken teeth and soft tissue damage to his chin. The pillion passenger sustained fractures to a collarbone, wrist, fibula and tooth, bruising to her hip and waist, and soft tissue damage. A plate and screws were inserted in her shoulder. A doctor reported that she was struggling to come to terms with the scars caused by her injuries, which she perceived to be disfiguring.
Three of the four occupants of the oncoming car with which the appellant's car collided sustained soft tissue injuries.
When the appellant was interviewed by the police, he described his attitude to motorcycle riders as follows:
I get sick of how cyclists and particularly guys on motorbikes treat people in cars. They don't give a shit. They seem to think, 'Well, look, I drive in whatever unsafe manner I like. If anyone hits me, it's their fault.' You know, 'I'm a cyclist, I can't be at fault,' and this is what shits me, and this guy was another one of these, and yeah, I reacted in the wrong way.
The appellant told the police that when he caught up with the motorcycle he intended to abuse the rider, saying: 'I was going to have a yell at him.' He described the collision with the motorcyclist by saying that he came 'flying up the left hand side of him', stuck his head out of the window, 'jumped on the brakes and I started bloody yelling and now I realise the car's skidding. It started drifting over in his lane' and 'that's when I'm bloody watching him instead of watching where I was going. The car skidded and I hadn't noticed it.' He said: 'I was mad and I hit the brakes too hard. I overreacted to a situation and that I regret. I regret my actions.' The appellant agreed that he had been driving in a dangerous manner.
The appellant is 35 years old. He had several prior convictions for speeding, two prior convictions for driving while his licence was suspended, and two previous convictions for driving an unregistered vehicle. The appellant's licence had been suspended on six occasions for between one and six months.
The appellant was the eldest of seven children. His family suffered from the actions of his father, who was a violent, heavy drinker. The appellant's father attacked him and other family members. On one occasion both arms of the appellant were broken. It appears that the appellant's schooling was disturbed as a result of his upbringing. He eventually finished school in year 11. The appellant has been engaged in regular and productive employment, having been employed as a sales assistant, an electronics engineer, a production manager, an electronics supervisor, a senior field engineer, a forklift driver, and a quality assurance coordinator. In 2005 the appellant moved to Queensland. He sought counselling in respect of his anger and attended sessions with a psychologist. The appellant's mother told the sentencing judge that the events giving rise to the convictions in question affected the appellant deeply. He no longer owned a car, travelling by bicycle and public transport. Family and friends provided references to the court, speaking highly of the appellant's character.
The appellant has been given leave to appeal against his sentence by a single judge of this Court. The grounds of appeal are as follows:
The learned sentencing judge erred in his characterisation of the concept of “recklessness” that was referable to the offences in respect of which the appellant was sentenced.
2.The learned sentencing judge erred by failing properly to characterise the act or acts that caused serious injury and/or placed others in danger of serious injury.
3.The learned sentencing judge erred in his treatment of the appellant’s remorse by considering it relevant that the appellant had rejected an offer by the prosecution to plead guilty to the offences in respect of which the appellant was sentenced.
4.The learned sentencing judge erred in his treatment of the remorse that was experienced by the appellant.
5.The learned sentencing judge erred by failing properly to take into account the delay that had ensued between the commission of the offences and the date of sentence.
6.The learned sentencing judge erred by failing properly to take into account the appellant’s rehabilitation completed since the commission of the offences.
7.The individual sentences, total effective sentence and non-parole period are manifestly excessive.
Pursuant to the first two grounds, counsel for the appellant submitted that the sentencing judge erred in his description of the facts constituting recklessness on the part of the appellant. His Honour said:
In respect of counts 2 and 4, the factual matters constituting recklessness are as follows: (a) driving your car along St Kilda Street at about 80 kilometres per hour in a 60-kilometre zone and immediately prior to the collision; (b) driving in that way while under stress and in an agitated, emotional and angry state of mind directed at the motorbike rider, demonstrated by your overreacting to the perceived slight of the motorcycle cutting you off twice some significant distance down the road, you having stopped at least two previous intersections to berate the rider, by your driving on to the incorrect side of the road to get closer to the motorbike at Grosvenor Street, possibly going through the red light there to chase the motorbike, and by your abuse of the rider at least once at Bay Street, which included giving him the one finger gesture; (c) by chasing the bike from Bay Street and driving so fast that you passed it rather than draw level with it; (d) with your head out of the open driver's window, turned to the right looking at the motorbike, intending to yell further abuse at the rider, thereby not keeping a proper lookout at where you were driving; (e) then braking too hard and suddenly knowing or believing from its previous behaviour that the car was likely to veer further right in those circumstances into the path of the motorbike and thereby losing full control of the vehicle.
His Honour treated the same facts as constituting recklessness for the purposes of counts 5 to 8, with this addition:
Knowing that a resulting collision with the motorbike and/or veering further into the path of oncoming traffic would or might lead to another collision which would endanger the wellbeing of other road users.
It was submitted on behalf of the appellant that the sentencing judge punished the appellant as if acts which he enumerated constituted acts in respect of which the appellant was criminally liable.
The sentencing judge was required to take into account the acts constituting the offences in their material context. In my opinion, all the acts described by the sentencing judge were material in that they threw light upon the offences of which the appellant had been convicted. Although many of the circumstances described by his Honour did not constitute recklessness, they remained relevant, and it does not appear that the appellant was punished for those acts as if they constituted additional offences. I think grounds 1 and 2 have not been established.
As to remorse, the sentencing judge did say that he accepted that expressions of regret and sorrow said by the appellant were true, but coupled this statement with a reference to the fact that the appellant wished to advance a case of accident. He said:
Whilst I accept that those expressions of regret and sorrow are true, I should note that on the second day of trial and before jury empanelment the Crown indicated that it would accept pleas of guilty to the counts upon which you were ultimately convicted by the jury. Your counsel took time to take instructions from you as to this matter, but then announced that you were not prepared to adopt this course. In taking that view, entitled as you were to do so, you played for high stakes in seeking acquittals upon the counts on which you now stand to be sentenced, there being what I consider to have been an overwhelming case of recklessness against you. Moreover, despite the verdicts, your counsel has indicated on the plea that you do not accept that you were acting recklessly as I have explained that concept. Such an approach belies a lack of remorse on your part for this offending.
I take his Honour to have meant that the appellant's reservation belied remorse.
It was submitted on behalf of the appellant that in assessing remorse, the sentencing judge ascribed too much weight to the fact that the appellant had contested the mental element of the crimes. As long as the appellant admitted that he was at fault and brought about the injuries, it was said that it was not so significant that he had achieved that result with a more culpable state of mind than he was prepared to admit. It was submitted that the sentencing judge had erred in saying that, by failing to accept that he was acting recklessly, his approach belied remorse on his part.
In my opinion, the position maintained by the appellant did not fully acknowledge his moral responsibility. He did admit that his actions caused the injuries, but he contested the element that he brought about that result with foresight of injury as a probable consequence of his actions. The sentencing judge was entitled to conclude that the appellant's reservation affected his assumption of responsibility. In my view, his Honour's reference in paragraphs 97 and 109 of his sentencing remarks to 'your lack of remorse', when read in the context of the sentencing remarks as a whole, meant that his Honour viewed remorse as being diminished in this case.
As to grounds 5 and 6, almost three years elapsed between the commission of the offences and sentence. In the meantime, the appellant had worked consistently, given up driving motor vehicles and had sought treatment for his aggressive tendencies. No further offences have been committed by the appellant. The sentencing judge acknowledged that there was a twelve-month delay between the commission of the offences and the appellant being charged, and that the delay was not due to any fault on the part of the appellant. His Honour said that undue delay and disposition of a charge should work in favour of the offender, and he acknowledged that delay was a relevant matter, particularly when the appellant had made efforts towards rehabilitation. The sentencing judge did take into account delay, and grounds 5 and 6 in the end depend upon whether they contribute to a conclusion that the sentence was manifestly excessive.
There were a number of factors upon which the appellant could rely in mitigation, including delay, the extent to which he had achieved a measure of rehabilitation, the abuse he had suffered as a child, and his remorse. Nevertheless, in my view the conduct of the appellant constituted a serious example of the offences of which the appellant was convicted. General deterrence and denunciation are of particular importance when the lives of persons going about their lawful business are put at risk by others who have lost control of their tempers because of a real or imagined slight. Having regard to his prior convictions, I consider specific deterrence was also relevant in this case. In my opinion, the sentence imposed upon the appellant was within the range of sentences available for this offending by this offender.
For the foregoing reasons, I would dismiss the appeal.
VINCENT JA:
I agree.
BUCHANAN JA:
The order of the Court is that the appeal is dismissed.
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