R v Grogan
[2003] VSCA 110
•12 August 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 289 of 2002
| THE QUEEN |
| v. |
| MARCUS KANE GROGAN |
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JUDGES: | VINCENT and EAMES, JJ.A. and ASHLEY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 August 2003 | |
DATE OF JUDGMENT: | 12 August 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 110 | |
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Criminal law – Culpable driving – Appeal against sentence – Finding that appellant bore high moral culpability for offence – Whether failure to take into account psychologist’s report as bearing upon that finding – Whether inconsistent findings – No specific error demonstrated having regard to way in which plea was conducted – Sentence of 6 years' imprisonment with 4 year non-parole period not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs S.E. Pullen | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr O.P. Holdenson, Q.C. | Valos Black & Associates |
VINCENT, J.A.:
I will call on Ashley, A.J.A. to deliver the first judgment.
ASHLEY, A.J.A.:
The Appeal
The appellant, Marcus Grogan, appeals against sentence imposed upon him in the County Court at Geelong on 25 October 2002. On a count of culpable driving, the maximum penalty for which is 20 years' imprisonment, he was sentenced to imprisonment for a term of six years with a non-parole period of four years.
The circumstances of the offence shortly described
The offence, to which the appellant pleaded guilty, was committed in the early afternoon of 6 March 2002 at an intersection in North Shore, a suburb of Geelong. A motor vehicle driven west along Seabreeze Parade by the appellant collided with a motor vehicle driven south along Seabeach Parade by the victim, Karen Poneder. The appellant was driving his vehicle at what was a high speed in the circumstances. The speed limit in the area was 60 kilometres per hour. The speed of the appellant’s vehicle as it approached the intersection was estimated by witnesses at between 70 and 90 kilometres per hour; and by an investigating police officer at between 91 and 115 kilometres per hour. The appellant’s vehicle passed through a stop sign. The victim’s vehicle was on the right. There was evidence that the appellant applied the brakes to his vehicle very shortly before it entered the intersection; but that their effect was minimal by the time of impact. The collision forced Mrs Poneder’s vehicle into the path of an oncoming truck. She died almost immediately.
Not long before the accident the appellant’s vehicle had travelled along Seabreeze Parade in the opposite direction. The appellant was on his way to a job appointment but had lost his bearings. He was given directions by workers at the Pivot works. That caused him to turn his vehicle around, and set off at a hot pace. That was the precursor to him driving into the intersection as he did. The appellant believed, as he said, that he was running late for the job interview. According to his prospective employer no particular time had been fixed for the interview. But that does not gainsay the appellant’s stated belief.
No question of the use of alcohol or drugs was said to be relevant to the sentencing process. According to the Crown on the plea, it was simply the case that the appellant’s driving “bordered on lunacy”.
The Appellant’s prior offences
The appellant admitted eight convictions (some did not involve court appearances but took effect as convictions under Part 7 of the Road Safety Act 1986) between 24 January 1994 and 13 October 1999. Six of the convictions were for road traffic offences. The appellant was born on 23 February 1976. At the time of his first conviction for a road traffic offence, then, he was just under 18 years of age. That conviction was on a charge of driving at a speed in excess of the speed limit. His driver’s licence or permit was suspended for a period of one month. Thereafter, on four occasions, his licence or permit was suspended: upon convictions in April and July 1994 for careless driving; and upon conviction in October 1996 and July 1998 for driving at a speed in excess of the speed limit. All of the prior vehicular offences, it appears, concerned the use of a motor bike.
The plea shortly described
Counsel made an expansive plea on the appellant’s behalf before the learned sentencing judge. I must describe some of its features later in these reasons. For present purposes it is enough to note that, submissions aside, written and oral evidence was adduced in support of the plea: from a treating general practitioner and a consultant psychologist; and from persons with whom the appellant was acquainted at a family and social level.
The conclusions of the sentencing judge
The learned sentencing judge expressed a number of conclusions, and made observations, that are pertinent to this appeal. I set out some of them verbatim; and others in the third person. Thus:
•“This fatal high-speed collision was unquestionably the result of your grossly negligent driving towards the intersection. The … observations of witnesses suggest that to attribute a speed in excess of 80 kilometres per hour as you crossed the intersection in defiance of a stop sign may well be conservative.”
•“To drive a vehicle in suburban Geelong in this manner was an outrage and you bear a high moral culpability for this unfortunate woman’s death.”
•“Your driving record and your appalling driving conduct on this occasion suggest to me that you have been unwilling or indifferent to heed [public warnings about the dangers of bad driving] and acknowledge your obligations to other road users. This was serious criminal conduct … ”
•“The members of the deceased’s family have filed victim impact statements and one could not but be moved by their contents … I have taken their relevant contents into account in the sentencing process.”
•The plea of guilty “has spared the community the expense and unpleasantness of a trial and this plea entitles you to a sentencing discount”.
•“I accept that you are remorseful … “
•Counsel’s submissions with respect to the appellant’s “troublesome childhood and adolescence” were generally confirmed by written testimonials and by the report of the psychologist.
•It was the opinion of the consultant psychologist that “much of [the appellant’s] life has had him bereft of the capacity to plan and think logically or to behave appropriately. … he has been compelled impulsively and recklessly, a pattern established early in life and one contributing with perilous consequences” to the fatal collision.
•“The background material provided to the court which contained references to delinquent behaviour is important material to consider in the sentencing process. … ”
•The evidence given by character witnesses and contained in exhibits “suggests that your involvement in this proceeding has in some ways brought about an alteration and an improvement in your behaviour and attitude”.
•The court was bound nonetheless to take into account general and specific deterrence, and in the appellant’s case the issue of specific deterrence weighed having regard to his driving record.
•The appellant’s driving “was outrageous … an affront to the community”.
The grounds of appeal
There are six grounds of appeal. The last five were added by order on 19 June this year. The grounds are as follows:
“(a)The sentence imposed is manifestly excessive in that the learned sentencing judge:-
(i)gave excessive weight to the principle of general deterrence;
(ii)gave insufficient weight to the appellant’s plea of guilty;
(iii)gave insufficient weight to matters personal to the appellant including:-
(a) as (sic) demonstrations of remorse;
(b) his disturbed upbringing;
(c) his age;
(d) his prospects of rehabilitation.
2.The learned sentencing judge erred in the exercise of his discretion in that he failed to give any, or sufficient, weight to the content of the Report prepared by Mr Sigmund Burzynski, Psychologist, dated 21 October 2002 and tendered into evidence on the plea as part of Exhibit 1 (“the Report”).
3.The learned sentencing judge erred in the exercise of his discretion in determining that the appellant “[bore] a high moral culpability …” (see Reasons for Sentence at p.41.5).
4.The learned sentencing judge erred in the exercise of his discretion in finding that the appellant “[had] been unwilling or indifferent to heed these warnings … “ (see Reasons for Sentence at p.41.7).
5.The learned sentencing judge erred in the exercise of his discretion in taking into account the content of the Report for the limited (or sole) purpose of explaining the appellant’s previous delinquent behaviour.
6.The learned sentencing judge erred in the exercise of his discretion in that he failed to take into account the content of the Report as explaining the conduct of the appellant which was the subject of the one count specified on the presentment.”
Resolution of the appeal
Counsel for the appellant argued grounds 2-6 and (a)(ii) together. They involved, he submitted, a single point: that is, that the sentencing judge misunderstood and misapplied the report of Mr Burzynski, the psychologist. He put the matter in a number of ways. I summarise them as follows:
First, Mr Burzkynski concluded that the appellant’s driving on the fatal occasion was contributed to by the long-standing psychological disorders from which, according to his diagnosis, the appellant suffered. The judge accepted that conclusion. It bore upon the appellant’s moral culpability for the offence. His Honour nevertheless concluded that the appellant bore a high moral culpability for the offence. The two findings were inconsistent.
Second, the judge explained his conclusion that the appellant bore a high moral responsibility for the offence by referring to two matters which he said showed the appellant to have been unheeding of many public warnings about the dangers of bad driving – the appellant’s failure to learn from his past driving offences and his outrageous driving on the occasion of the offence. The first of those matters was explained by the conclusion of Mr Burzynski to which I referred a moment ago. The second could not stand with acceptance of that conclusion.
Third, the use to which Mr Burzynski’s conclusion was in fact put was limited. It went to explain the appellant’s past delinquent behaviour; to show that he was not irredeemable, a matter bearing upon the importance of specific deterrence and prospect of rehabilitation in the particular case.
In my opinion it is correct to say that although in terms the learned sentencing judge did not accept the conclusion upon which counsel relied – I set it out earlier when summarising his Honour’s sentencing remarks – he did accept that portion of the report of which it formed a part. That acceptance is implicit by its appearance in his Honour’s sentencing remarks and by various references to Mr Burzynski’s report in surrounding portions of those remarks.
I next accept the submission that his Honour put Mr Burzynski’s report, and particularly the passage therein containing the conclusion relied upon by the appellant, to the use contended for by appellant’s counsel; and that he did not make use of that conclusion when finding that the appellant’s moral culpability was high.
Had his Honour been directed to the possible relevance of Mr Burzynski’s report upon the issue of moral culpability it may be that he would have modified his finding that the appellant’s culpability was high. I say “may be” because his Honour would not have been obliged to accept the critical conclusion, which invaded his area of decision-making. It might well be the case, had the matter been ventilated, that the prosecutor would have wished to refer his Honour to other material – for example, the appellant’s record of interview – as bearing upon the reliability of the psychologist’s conclusion. Moreover, the conclusion was premised upon the existence of a condition to which the appellant’s general practitioner, who had attended the appellant over a period of many years, did not subscribe. A report from that doctor, also introduced on the plea, referred inter alia to his counselling the appellant in 1997 for “depression and difficulties with anger”. Again, it would have been for his Honour, had Mr Burzynski’s conclusion been relied upon as bearing upon moral culpability, to have assessed the degree to which (assuming they played some part) the psychological disorders diagnosed by Mr Burzynski had in fact contributed to the fatal occurrence; and so the extent to which the appellant’s moral culpability might be accounted the less.
In fact, however, the plea did not make use of Mr Burzynski’s report, and in particular the conclusion highlighted by counsel for the appellant, as bearing upon the issue of moral culpability. The report, indeed, was tendered without any specific comment at all; as was the report of the general practitioner, Dr Axtens. There was no analysis of what the reports said, where they coincided and where they did not. It was never submitted that Mr Burzynski’s report bore upon the issue of moral culpability, as explaining wholly or partly the manner in which the appellant drove on the fatal occasion, or as showing that the appellant was disabled from learning from past offences and convictions. Had the latter proposition been advanced, I add, I cannot see that Mr Burzynski’s report would have supported it; but that is another matter.
The way in which the plea was advanced took as its starting point the following statement by counsel:
“ … he is deeply and dreadfully sorry for his actions and wishes to apologise to the family that the grief that he has caused them and he accepts total responsibility for that.”[1]
Counsel did not quibble with the judge’s characterisation of his client’s conduct as “outrageous driving behaviour”. The only explanation which he offered for the conduct itself was that the appellant “would appear to have been concentrating on where he was going rather than where he was … [H]e was anxious to get to [his appointment], being late … in his own mind.” When the judge put to him that this made not the slightest difference, counsel did not demur.
[1]T 13.
From the starting point which I described a moment ago, counsel submitted that the prior offences had been “part and parcel of a lot of [the appellant’s] difficulties in life”, and that the present situation was “the tragedy of … a troubled young man who has committed this offence”. The burden of the plea was that the appellant had led a troubled life. He had encountered many difficulties. He came from a family in which two older siblings had died, and so he had been treated differently from the outset by his parents. In his adolescence a close friend had died in a motor bike accident. Later a family member with whom he was close had died. He had endured the separation of his parents. He had understandably been a difficult child and young man. His past offending was to be seen in that context. All this was explicable. He was not irredeemable. The fatal accident had produced severe, genuine remorse; and a change in the appellant’s ways. He had spent the year and a half since the fatal collision trying to make amends for what he had done. He therefore had genuine prospects for rehabilitation. The thrust of his plea, counsel said, was that his Honour should:
“impose the minimum period that your Honour can impose in the circumstances for actual time that Mr Grogan be required to serve.”
All that counsel said with respect to the treating general practitioner and Mr Burzynski was that “during the course of his recovery process” the appellant had consulted the former, who had provided a report; and that he had also been referred to the latter, who had in turn provided a report.
In all, it is crystal clear that, probably for good reason as counsel perceived it, the plea dwelt upon acceptance of complete responsibility for the offending conduct, the plea of guilty, a troubled background, a change in behaviour, and extreme remorse. It is hardly surprising that his Honour treated the material which was tendered as bearing upon the relevance of general and specific deterrence and the prospects for rehabilitation in the particular case.
Notwithstanding his Honour’s reference to the conclusion expressed by Mr Burzynski upon which counsel for the appellant here relied, I am not persuaded that, as the matter was presented to him, his Honour misunderstood or misapplied
Mr Burzynski’s report. Further, for reasons which I have outlined it cannot be predicted that his Honour’s positive conclusion about the appellant’s moral culpability was likely to have been any different if the plea had been differently presented.
I reject, then, grounds 2-6 and (a)(i); for in my opinion there was no specific error. That takes me to ground (a)(ii) and (iii), by which the appellant contends that the sentence was manifestly excessive in that the sentencing judge gave insufficient weight to the plea of guilty and to matters personal to the appellant. This ground was pursued on the footing that the head sentence, or at least the non-parole period, was manifestly excessive.
The case is not one in which it could be said that his Honour evidently did not recognise the significance of the plea of guilty, the appellant’s remorse, the change in the appellant since the fatal collision, or the appellant’s personal circumstances – about the last of which it is clear indeed that there had been serious, long-term problems. His Honour specifically adverted to all those matters. The argument for the appellant was that his Honour could not have accorded them the weight they deserved in passing the sentence which he did; and that, looked at overall, the sentence was manifestly excessive.
I am not persuaded, although I acknowledge the significance in the particular case of the various matters adverted to by counsel, that either the head sentence or the non-parole period was outside the available range. That conclusion, a matter of impression founded upon a consideration of the many matters which were relevant to the imposition of sentence, admits of no elaboration.
It follows that, in my opinion, the appeal should be dismissed.
VINCENT, J.A.:
I agree.
EAMES, J.A.:
I also agree.
VINCENT, J.A.:
The order of the Court is that the appeal is dismissed.
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