R v Czarny
[1999] VSCA 192
•15 November 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 8 of 1999
| THE QUEEN |
| v |
| PAUL JOHN CZARNY |
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JUDGES: | PHILLIPS, C.J., ORMISTON and CALLAWAY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 November 1999 | |
DATE OF JUDGMENT: | 15 November 1999 | |
MEDIA NEUTRAL CITATION: | [1999] VSCA 192 | |
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Criminal law - Appeal against sentence for culpable driving – Offence committed when applicant’s licence had been recently cancelled for alcohol-related driving offence – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. C.J. Ryan | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. J.P. Dickinson | Slades & Parsons |
PHILLIPS, C.J.:
The applicant, who is aged 28, pleaded guilty in the County Court at Melbourne on 19 January last to a count of culpable driving of a motor car causing death. It was specified that he thus drove negligently. This offence, which carried a maximum penalty of 15 years' imprisonment or a fine of up to 1,800 penalty units or both, was committed at Balaclava on 4 March 1997. The deceased was a pedestrian.
The applicant admitted a previous conviction in August 1995 for exceeding the speed limit, for which he was fined $220 and his licence suspended for a month, and for driving a motor vehicle with more than the prescribed concentration of alcohol in his blood on 18 January 1997, for which he was fined $420, his licence cancelled and he was disqualified for 12 months from obtaining another licence; this offence was committed on 20 December 1996.
After hearing a plea for leniency which included viva voce evidence and exhibits on behalf of the applicant and exhibits on behalf of the Crown, the learned judge on 22 January last sentenced the applicant to be imprisoned for five years. His Honour fixed a non-parole period of two years and nine months and made a declaration as to pre-sentence detention. The applicant's licence was cancelled and he was disqualified from obtaining another licence for a period of two-and-a-half years. The applicant later lodged a notice of application for leave to appeal against sentence pleading the following grounds.
"1. The sentence imposed is manifestly excessive.
2.The learned sentencing judge failed to give sufficient weight to the mitigatory circumstances of the matter, inter alia, the fact of the deceased walking at night on the roadway wearing dark clothing.
3. The learned sentencing judge failed to give sufficient weight to the matters put in mitigation which were personal to the applicant's circumstances, inter alia, (i) his remorse, (ii) the plea of guilty, (iii) his relative youth, (iv) his difficult personal history, (v) his efforts at rehabilitation and in particular his seeking of psychological treatment to deal with the underlying psychological factors which significantly contributed to his behaviour on the night of the death.
4.The learned sentencing judge erred in placing the applicant's criminality and moral culpability at 'the high end'.
5. The learned sentencing judge gave too much weight to the principle of general deterrence."
It is now necessary to set out in summary form the facts of this matter.
The deceased was a young woman of 17. On the evening of Sunday 2 March 1997 she was walking with her sister in a street in Balaclava called The Avenue. They were walking on the actual roadway close to vehicles parked along the southerly kerb. It was said they walked thus because the deceased had a fear of cats and both were concerned about being accosted. It was dusk and still light. The sister thought the street lights were not operating. The deceased was dressed in a dark blue blouse and skirt. The sister became conscious that the deceased was aware of a car approaching from behind. The sister walked between two parked cars but the deceased remained on the roadway walking beside the cars. The sister saw the car briefly before it struck the deceased. It then appeared very close to her and the sister saw no sign of braking. The car's headlights were on. The vehicle collided with the deceased who was thrown forward on to the bonnet of the applicant's car. She was carried some distance along The Avenue before being thrown to the roadway, coming to rest approximately 24 metres east of the point of impact. Her rest position was very close to the parked cars. There were no tyre marks indicating braking or evasive action.
As a result of the impact the deceased suffered a compound fracture of her lower right leg and serious head, neck, chest and abdominal injuries. She was treated by a doctor at the accident scene and then transported to the Alfred Trauma Centre in a critical condition. She underwent emergency surgery but died in the early hours of 4 March without recovering consciousness.
There was an evidentiary dispute as to the behaviour of the applicant immediately after the collision. I note that his Honour the sentencing judge does not appear to have made any adverse finding to the applicant arising out of this dispute. The applicant was not injured in the collision and he undertook both a preliminary and a formal breath test at the St Kilda Police Station. The latter, conducted at 10.13 p.m., showed the applicant's blood alcohol concentration was 0.193 percent. Evidence from a forensic medical officer was to the effect that at the time of the collision the applicant's concentration could have been between 0.161 percent and 0.218 percent. When interviewed by the police on Sunday 2 March and the following day, the applicant stated that he did not see the deceased until a split second before the collision. He perceived the street to be a narrow one and said he was travelling at approximately 60 kilometres an hour with his headlights operating on high beam. He was unable to explain his failure to see the deceased or her sister. Upon inspection, no fault was found in the applicant's vehicle.
I now turn to the arguments of counsel. Mr Dickinson for the applicant began his submissions by indicating that consideration of ground 1 would involve matters pertinent to grounds 2 to 5. He then turned to ground 2 which, it will be recalled, alleged the judge failed to give sufficient weight to mitigatory circumstances, namely, that the deceased was walking at night on the roadway wearing dark clothing. Mr Dickinson submitted that in the circumstances a driver would not ordinarily have expected to have found a pedestrian on the roadway where the deceased had been standing. He referred to the evidence that her clothing was dark blue, and that it was dusk at the time of the impact and that she was on the actual roadway. Counsel contended that although the judge had mentioned each of these matters in his reasons for sentence, "very little" weight had been in fact given to them so that his Honour's remarks could be properly perceived as "merely a recitation of background". Counsel said the roadway surface was 10.6 metres from kerb to kerb and he pointed out that in his record of interview the applicant said in effect that the deceased came from nowhere. There was, he pointed out, no allegation of what he called excessive speed or the commission of other road traffic offences.
As to ground 4, which alleged error in the judge by placing the applicant's objective criminality and moral culpability at "the high end", Mr Dickinson drew attention to the following passage in the reasons for sentence:
"I find the objective criminality involved in this case is at the higher end as is the moral culpability aggravated by the prior offence." (p.53)
Counsel allowed that the prior conviction was relevant to the aspect of the applicant's moral culpability and he also acknowledged that the judge had stated that he accepted that the prior conviction could not aggravate the crime itself. But, counsel submitted, the learned judge gave too much weight to the prior conviction, thus putting, erroneously, the case of the applicant "at the higher end". His Honour, he submitted, had selected "the wrong range" and this process could be detected from discussion upon the plea. Counsel further submitted that this classification could not survive due consideration of matters personal to the applicant. There was evidence from the social worker, Mr Patterson, that the applicant's personal problems were relevant to his driving and drinking (see pp.36/37). The judge accepted this evidence (see p.54). These matters were adumbrated in a long report by Mr Patterson, Exhibit 3, which report apparently particularly assisted the judge (see p.54).
In his development of ground 3 Mr Dickinson listed a number of matters as to which he submitted the judge had not given sufficient weight. They were the applicant's remorse, his plea of guilty, his relative youth, his personal history and his efforts at rehabilitation. These matters, it was contended, should have dictated a lesser sentence than that imposed.
Counsel then turned to ground 5, submitting that the learned judge had given too much weight to the aspect of general deterrence. His Honour, he contended, had allowed this consideration to "overwhelm" other matters. As to ground 1, counsel allowed that its resolution did not ordinarily admit of much argument, but called in aid the matters he had previously developed touching the other grounds.
Mr Ryan for the Crown submitted that the objective nature of the offending was indeed "at the higher end". He contended that the sentence imposed is to the order of a third of the maximum available. As to the circumstances of the offence, Mr Ryan pointed out that the applicant had chosen earlier that day to drive to a sporting event and then to a hotel where he had spent some six hours drinking. Mr Ryan submitted that the clothes and other circumstances of the deceased were in truth not mitigating factors. The deceased was, he submitted, entitled to stand where she did in safety. He also argued that the non-parole period fixed adequately reflected matters personal to the applicant.
I now turn to my conclusions.
I turn first to ground 2. It cannot be said that his Honour overlooked the clothing the deceased was wearing, her position on the roadway at impact and the lighting conditions. He specifically mentioned each one of them and indeed mentioned her position on the roadway twice. Having noted these matters, it was for the judge to give to them such weight as he thought fit. I would not uphold the submission that a driver would not expect to encounter, on this particular roadway, a pedestrian in the position of the deceased. It was not late in the evening and I should have thought the presence of pedestrians entering or leaving the many parked vehicles, or standing in their vicinity, would be in no way unusual. Further, the actual words used by his Honour in my opinion dispose of the submission that he was merely reciting some background. In my opinion there is no substance in this ground.
Nor is there any substance in ground 3. As to the matters listed as being relevant, his Honour specifically mentioned the applicant's remorse (p.54), his plea of guilty (p.55), his relative youth (p.54), his personal history (pp.54 and 55) and his efforts at rehabilitation (p.56). I have looked to the face of the sentence for evidence that his Honour insufficiently took these matters into account. I have to say that I have been unable to find such evidence.
As to ground 5, as was conceded in argument, there plainly was a place for general deterrence in the sentence to be imposed on the applicant. Again, I have looked to the face of the sentence for evidence that his Honour allowed this consideration to overwhelm other matters. Again, I have to say that I have been unable to find such evidence.
In consideration of ground 1, it is necessary to identify the relevant circumstances and then look to the face of the sentence in order to determine if it is manifestly excessive. To succeed on this ground, it is for the applicant to show that the sentence imposed fell altogether outside the range of those properly available to the learned judge. I am unpersuaded that it did. Prominent among my reasons for this view are the seriousness of the actual offence, the maximum penalty provided by Parliament and the relevance of the applicant's prior conviction and its proximity to the instant offending.
I now turn to ground 4. With respect, in my opinion, it is unfortunate that his Honour, in the passage cited, used the expression "at the higher end" and that he used it in the multiple way that he did. A consequent sentence which truly reflected that phrase may well have led to appellate intervention. On the other hand, one needs but a bald recitation of the more essential facts to show that the applicant's conduct, after due allowance was made for matters in his favour, plainly warranted a severe sentence. With a blood alcohol reading of approximately three times the permissible limit, and as a driver whose licence had been recently cancelled for an offence involving driving with an excessive concentration of alcohol in his blood, the applicant so drove his vehicle on a suburban street that it collided with a pedestrian lawfully standing on what was, for him, the wrong side of the road.
It follows that in my opinion all grounds fail, and that this application should be dismissed.
ORMISTON, J.A.:
I agree.
CALLAWAY, J.A.:
I agree with the learned Chief Justice, for the reasons his Honour has given, that the sentence was not manifestly excessive and that grounds 1 to 3 and 5 are not made out. At one stage I was attracted by Mr Dickinson's submission that the passage in the sentencing remarks that his Honour has read in connexion with ground 4 betokened specific error; but that passage must be understood against the background of the plea and it is put in perspective by the sentence actually imposed.
PHILLIPS, C.J.:
The order of the Court is that the application for leave to appeal against sentence stands dismissed.
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