R v Howarth
[2000] VSCA 94
•29 May 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 22 of 1999
| THE QUEEN |
| v |
| DAMIAN ROBERT HOWARTH |
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JUDGES: | BROOKING, CHARLES and BATT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 May 2000 | |
DATE OF JUDGMENT: | 29 May 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 94 | |
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CRIMINAL LAW – Sentence – Culpable driving causing death – Driving under the influence of alcohol – "Blameworthy" behaviour of victim not a mitigating factor – Youth of offender.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. C.G. Hillman | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. H.M. Symon | Vaccaro's |
BROOKING, J. A.:
On Saturday 30 May 1998, not long before midnight, Damian Robert Howarth drove a van into the rear of a truck parked in Mitchell Street, Wodonga, killing his passenger, Jason Breewel. The truck was properly parked at the kerb. It was a white vehicle. The street was lit; the weather was fine; the visibility was good; the roadway was about ten metres wide. There was nothing to suggest any evasive action on Howarth’s part. He told the police that he could not explain how he came to hit the truck and that he did not even remember being in Mitchell Street. The headlights on the van had failed several hours before the collision, according to Howarth; certainly the van was being driven without headlights burning some hours before the collision. (One could suspect that the lights were not working when the van was first taken out on the road that day, but the matter remains in the realm of suspicion.) The inference in all the circumstances is that the driver did not see the truck he ran into. He pleaded guilty to a count of culpable driving causing death – driving under the influence of alcohol was the variety alleged – and on 12 February 1999 was sentenced to five years’ imprisonment with a non-parole period of three years six months. Now he asks for leave to appeal against sentence on these four grounds:
“1. The sentence imposed is manifestly excessive.
2.The Learned Sentencing Judge erred in failing to take into account that the victim was involved in a joint enterprise with the Applicant at the time of his death.
3.The Learned Sentencing Judge failed to attach sufficient weight to the youth and prospects of rehabilitation of the Applicant.
4.The Learned Sentencing Judge imposed a non-parole period which was, having regard to the head sentence, and the Applicant’s youth excessive having regard to the evidence before him.”
By the time of the commission of this offence the maximum penalty had been increased to 20 years’ imprisonment.
In oral argument on behalf of the applicant, only the non-parole period was criticised. In the circumstances of the present case it is to undertake a difficult task to seek to persuade the Court that, while the head sentence should stand, the non-parole period should be reduced.
The applicant was 19 at the time of the collision. The further presentment alleged only that a number of offences of dishonesty had been found proved by the Children's Court in November 1995, resulting in a probation order. The applicant held a probationary driver’s licence, a condition of which confined him to driving automatic vehicles. The van he was driving had a manual gear change. He had bought the van about a fortnight before the collision and driven every day during the intervening period. Far more significant than the breach of the licence condition about automatic vehicles was the circumstance that, as the holder of a probationary licence, the applicant was allowed to drive only with a zero blood alcohol content. Moreover, on or about 22 April 1998, that is, a little more than a month before the fatal accident, he had been convicted of exceeding the speed limit by more than 50 kms per hour and as a result his probationary licence had, as he knew, been suspended for six months as from about 22 May. He did not hand in the suspended licence and continued to drive the van every day. He was, and had for a long time been, a heavy drinker. Mr Cummins, the psychologist, whose report was put in evidence by the applicant on the plea, referred to his longstanding drinking problem and said it was possible that at the time of the accident he was properly to be classified as a chronic alcoholic.
At the time of the incident the applicant was, and had for some time been, in employment. He worked nightshift and, having worked on the Friday night, went to bed. He got up at about 1.30 p.m. the following day, the day of the collision, and spent the next ten hours or thereabouts drinking and driving with his best friend, the victim. For part of the time Breewel drove. In his interview with the police the applicant admitted that he was very drunk by the time of the collision, ultimately saying that during the day he had probably drunk about a dozen stubbies and about three full size bottles of beer. The accident occurred at about 11.40 p.m. and a blood sample taken at about 1 a.m. the following day gave a blood alcohol reading of 0.207%. The applicant said that his passenger, the deceased, was as drunk as he was, and there is no reason to doubt that both men were very much affected by drink.
At 8.05 p.m. on the day of the accident police intercepted the applicant while he was driving the van. They did this because of complaints from members of the public about the way the van had been driven and its lack of headlights. The applicant and his passenger, Breewel, were both taken to the Wodonga police station, where the applicant recorded a blood alcohol reading of 0.16%. He was charged with a blood alcohol level offence and also with the offence of breaching conditions of his probationary licence, and those charges were served on him together with a notice of suspension of his licence, the police at that stage not being aware that the licence had been suspended some ten days earlier in consequence of his speeding conviction. The police had earlier asked him for the keys to his van and received the reply that he had no keys and was driving without them. In fact at this stage the passenger had the keys in his possession and chose to conceal them.
Knowing that his licence had been suspended for six months from about 22 May, that he had just been charged with a blood alcohol offence and an offence of breaching the conditions of his probationary licence, and that he had a blood alcohol level of 0.16%, and having just received notice of suspension of his already suspended licence, and knowing that even if his licence had not been suspended it would have allowed him to drive only with a zero blood alcohol level, and knowing that the headlights on the van were not working, the applicant nevertheless returned from the police station to his van, in company with his passenger, and carried on as before, driving the van and drinking. They drove to a hotel and bought a “slab” of beer, drinking some of it.
In the light of the facts thus far mentioned, it is not in the least surprising that the judge put to the applicant’s counsel, during the plea, that the case was a very bad one of culpable driving and it is not in the least surprising that counsel accepted that description as accurate.
On the plea the judge had before him a number of victim impact statements from members of the deceased’s family. He had the report of Mr Cummins already mentioned, which refers in strong terms to the applicant’s remorse. He had character references from the applicant’s father and grandfather. Mention was made in the psychologist’s report and on the hearing of the plea of the fact that the applicant lived in his parents’ home with a young woman with whom he was in a relationship and who was pregnant. The judge was told that the applicant had pleaded guilty at a very early stage and co-operated with the police, that, having killed his best friend, he was extremely remorseful and that he had stopped drinking. Much reliance was placed on his youth. The support from his family was mentioned. Passing reference was made by the applicant’s counsel on the plea to what he described as a joint enterprise between the deceased and the prisoner in which “both of them have made a decision to continue on this escapade”. The second ground of appeal complains of the judge’s failure to take that matter into account. In the course of his careful reasons for sentence the judge said, “I do not think the circumstance that he, the deceased, was also drunk and a willing passenger in your motor vehicle, lessens your criminality”.
The submissions put to us on the applicant's behalf were substantially the same as those made on the plea. The judge refers to them in his reasons for sentence. I put to one side for the moment the "joint enterprise" argument. Leaving aside the "joint enterprise" matter, I do not think that anything has been or could be said by way of suggesting that the circumstances of the offence were not such as to make it an extremely bad case, and I am far from satisfied that the judge, after having regard to what had been properly said on behalf of the offender, arrived at a sentence that was manifestly excessive, either as to the head term or as to the non-parole period. I have a clear view that the sentence cannot be characterised as manifestly excessive. If anything, it was merciful.
I should mention that before us reliance was placed on what was said by the Court of Appeal in R. v. Wheatley[1]:
“The other guideline, which judges and lawyers follow, and which we sitting in this Court also follow, is a whole line of decided cases in the Court of Appeal (Criminal Division) which indicate that where there is a young man who, broadly speaking, is not to be criticised for any major breach of the traffic laws, it really does not do any good to sentence him to a lengthy period of imprisonment. As this Court has said over and over again, he has to live for the rest of his days with the stigma that he has killed another; he has it on his conscience; it is something he can never forget. The younger the man the longer he will have it on his conscience.
…
Yet whether it does any good to keep a young man in prison for month after month is, in the view of many experienced judges and those associated with the administration of prisons, very debatable.”
[1](1984) 4 Cr.App.R.(S.) 371 at 373.
It seems to be implicit in the first of these passages that in the view of the Court the appellant was not to be criticised for any major breach of the traffic laws. Yet the Court had earlier said that the first reaction of any member of the Court, looking at the facts of the case, would be that it was, as the trial judge said, about as bad a case as could be imagined and the worst in his personal experience. The insobriety of the appellant, and the manner of his driving, both some time before and just before the collision, are dealt with in the immediately ensuing part of the judgment and I need not summarise them here. The Court reduced a sentence of three years’ imprisonment to two years, suspending twelve months of it. It was not possible to order that a sentence be partially suspended if the sentence exceeded two years. The Court remarked that it was quite probable that most judges might very well have felt impelled to impose a three year sentence. If I may say so with great respect, the Court’s reasons for decision give the impression that, in order to be able to pass a suspended sentence, the Court imposed a sentence of two years’ imprisonment notwithstanding that it considered a sentence of three years’ imprisonment to be appropriate. This may be permissible in England, but it would not be done in this State: Sentencing Act 1991, s.27(3). It is moreover to be noted that the maximum penalty for the offence with which the Court was concerned was five years’ imprisonment, which is in great contrast with the maximum of twenty years provided by law here. I do not think that in all the circumstances the observations made by the Court in Wheatley and relied on here can avail the applicant. It is clear that the view taken in Victoria is that it may be appropriate “to keep a young man in prison for month after month” in passing sentence for culpable driving. In R. v. Taylor[2] this Court refused to interfere where a man aged 20 at the time of the collision had been sentenced to six years’ imprisonment for culpable driving and one year and six months respectively on two counts of negligently causing serious injury, with a total effective sentence of seven years and a non-parole period (described as merciful) of three-and-a-half years. The proper approach to the youth of the offender in sentencing for offences of this kind has received a good deal of attention from the Court of Criminal Appeal of New South Wales: see, for example, MacIntyre[3]; Savka[4]; Slattery[5]; R. v. Jurisic[6]. What was said by this Court in R v. Wright[7] should be borne in mind, but there the offender was only 17 at the time of the offence. The offender in Wheatley was about 20 when he committed the offence.
[2][1999] VSCA 206.
[3](1988) 38 A.Crim.R. 135 at 139.
[4](1996) 88 A.Crim.R. 393 at 396.
[5](1996) 90 A.Crim.R. 519 at 522-4.
[6](1998) 45 N.S.W.L.R. 209 at 228.
[7][1999] VSCA 145.
I come now to the matter I have thus far put to one side, that of “joint enterprise”. No authority was cited to or by the judge on the relevancy of the victim's role. Before us, counsel for the applicant relied on what had been said in two decisions, in neither of which could the victim have been regarded as engaged in a “joint enterprise” or “escapade” with the offender. The first was R. v. Kalanj[8], a decision of the Court of Criminal Appeal of New South Wales, in which Ireland, J., delivering the leading judgment, said at 510:
“… an innocent person lost his life in circumstances where the respondent by undertaking a long journey affected by alcohol to the degree established in evidence, showed not only wanton disregard for the lives and safety of other road users, but absolute contempt for the law and the leniency previously extended to him by imposition of a community service order which was still in force at the time of the offence.
The starting point in considering the propriety of sentence in a case such as this is the taking of a human life in circumstances where the victim is blameless and entirely unassociated with the conduct of the offender and the events which led the offender to commit the offence.”
Gleeson, C.J. agreed with the reasons for judgment of Ireland, J. and Bruce, J., having read those reasons in draft, expressed no disagreement with any part of them.
[8](1997) 98 A.Crim.R. 505.
The second case relied on by the applicant is R. v. McGrath[9], an extempore decision, in which Callaway, J.A., with whose reasons Batt and Chernov, JJ.A. agreed, said this at [18]:
“The victim was blameless and entirely unassociated with the conduct of the offender and the events which led him to commit the offence: compare Director of Public Prosecutions v. Kalanj[10].”
[9][1999] VSCA 197.
[10](1997) 98 A.Crim.R. 505 at 510.
The description “blameless and entirely unassociated with the conduct of the offender and the events which led him to commit the offence” could not be applied to the present victim. He had been in the applicant’s company from when the applicant woke up until the time of the collision. He had spent the day drinking and driving with him. He knew the headlights on the van were not working. He knew his companion had been apprehended a few hours before the collision, found to have a blood alcohol level of 0.16%, charged with an offence accordingly and had a suspended licence, and he assisted or encouraged the applicant to continue to drive notwithstanding his apprehension by concealing the keys to the van from the police. He returned with the applicant to the van from the police station and they bought more beer and continued to drink, just as the applicant continued to drive. While I do not wish to say anything that might unnecessarily distress the family of the deceased, it must be said that the applicant can argue with some force that the victim closely associated himself with the offending behaviour.
Decided cases yield a good deal of material. Sometimes there is only a phrase. Where more than this appears, then almost without exception there is no reference to authority or discussion of principle. Often there is only a very short passage in an extempore decision. I cannot help feeling that a close analysis of the words used may at times not be warranted. Where the other judges express agreement with the principal judgment given by one member of an appellate court, this agreement may not be intended to extend to the particular passage, especially where the decision is extempore: Broome v. Cassell & Co. Ltd.[11]
[11][1972] AC 1027 at 1087 per Lord Reid.
In dealing with sentences passed in culpable driving or similar cases, appellate courts often describe the victim as “innocent”. Here are some examples:
· “Innocent victim” – Sweeney[12]
[12][1996] 2 Cr.App.R.(S.) 148 at 150.
· “Carload of innocent people”–R. v.Hicks[13]
[13](1987) 45 S.A.S.R. 270 at 279 per White, J.
· “Innocent pedestrian” – Walton[14]
[14][1996] 2 Cr.App.R.(S.) 220 at 223.
· “Innocent road user” – R. v. Cody[15], Punch v. The Queen[16]
[15](1997) 25 M.V.R. 325 at 329 per Batt, J.A.
[16](1993) 9 W.A.R. 486 at 500 per Murray, J. and at 501 per Anderson, J.
· “Two quite innocent road users” – R. v. Calder; Ex parte Attorney-General[17]
[17][1987] 1 Qd.R. 348 at 357 per McPherson, J.
· “Two totally innocent people” – Collins[18]
· "Totally innocent party" – Collocott[19]
· “Innocent passersby”– McKennav. The Queen[20]
· “Innocent passenger” – Lowe[21]
· “Innocent third party” – R. v. Scholes[22]
· "Wholly innocent occupants" – Unwin[23]
· “Wholly innocent lady” – Groves[24]
· “Wholly innocent driver” – Friend[25]
· “A young innocent life” – Moon & Moon[26].
[18][1997] 2 Cr.App.R. (S.) 302 at 305.
[19][1997] EWCA 2774.
[20](1992) 7 W.A.R. 455 at 469 per Ipp, J.
[21][1997] 2 Cr.App.R. (S.) 324 at 325.
[22][1999] 1 VR 337 at 346 per Tadgell, J.A.
[23][1997] EWCA 2187.
[24](1995) 16 Cr.App.R.(S.) 768 at 770.
[25][1998] 1 Cr.App.R. (S.) 163 at 164.
[26][1997] 2 Cr.App.R. (S.) 44 at 46.
Sometimes the reference to the innocence of the victim is coupled with a verb or noun that may be regarded as pejorative:
· “Mounting the pavement and mowing down an innocent member of the public” – Attorney-General’s Reference No. 42 of 1994 (Kevin Norman Vickers)[27]
· “The life of an innocent victim has been snuffed out” – R. v. Cody[28]
· “Destruction of innocent life” – Punchv. The Queen[29].
[27](1995) 16 Cr.App.R.(S.) 742 at 745.
[28](1997) 25 M.V.R. 325 at 331 per Winneke, P.
[29](1993) 9 W.A.R. 486 at 501 per Murray, J.
At times the reference to the victim’s innocence is accompanied by mention of the exercise of care or something of that kind:
· “An innocent person who did no wrong in her use of the road” – R. v. McGrath[30]
· “Entirely innocent pedestrians behaving with all proper care” – R. v. Taylor[31].
[30][1999] VSCA 197 at [27] per Chernov, J.A.
[31][1999] VSCA 206 at [12] per Brooking, J.A.
A remark of Batt, J.A. might or might not be thought to reflect a view relevant to the matter now under consideration:
“Parliament has provided a very heavy maximum penalty for this offence and the community is entitled to expect the Courts to give effect to parliament’s will as the offence is one in which death is caused of persons who are, or who are almost always, entirely innocent”. – R. v. Cody.[32]
[32](1997) 25 M.V.R. 325 at 330.
Then there is what was said in the leading judgment in a decision of the Court of Criminal Appeal of New South Wales:
“There are, however features of his judgment, apart from the actual penalty imposed, which indicate that his Honour may has [sic] misled himself at least to some degree. He made reference to the fact that the passenger had apparently not had a fastened seat belt on at the time of the accident and that she had entered the vehicle with a driver affected by alcohol and it seems clear that his Honour took that into account as a mitigating factor.
So far as the facts of this case are concerned, there is no explanation at all as to the circumstances which resulted in the passenger (the deceased) giving up the wheel to the respondent and in the absence of any such explanation care must be taken not to impute blame or lack of concern for her safety to the passenger when there is no evidence upon which to form such a conclusion. We simply do not know how it came about that she was not driving and why she did not have her seat belt properly fastened, if that were the case.” – MacIntyre.[33]
[33](1988) 38 A.Crim.R. 135 at 137-8 per Lee, C.J. at C.L.
All that this passage does in terms is state that on the evidence blame or lack of concern for her own safety could not be attributed to the passenger. It is not clear that his Honour was by implication accepting that, if attribution had been possible, that would have been a mitigating circumstance.
It may be that in describing the victim as innocent judges have intended to do no more than emphasise how dangerous the offender’s driving in fact was. Another possibility is that they have been mindful of what was said in victim impact statements forming part of the material and wished to convey to the family and friends of the deceased a consciousness of their grief: compare R. v. Miller[34]. A third possibility is that judges have intended to convey that in their view the victim’s “innocence”, or lack of it, can, at least in some circumstances, be itself a relevant matter in sentencing for offences of this kind. What if in the present case the applicant had killed not only his passenger but also an “innocent” person in the stationary vehicle with which he had collided? Would one offence have been worse than the other? A hypothetical situation of this kind was discussed by Tadgell, J.A. in R. v. True[35], where in fact the two victims, Hill and Baulch were both “innocent” and the former was a passenger in the offender’s car, while the latter was the driver of the other vehicle. Tadgell, J.A., dealing with the matter of cumulation, said this:
“In the present case, however, it seems to me that a degree of cumulation of the sentences that this Court must now impose on counts 4 and 5 is appropriate. The respondent was charged with having driven a motor car with gross negligence. When two people are killed in the circumstances in which Mr Hill and Mr Baulch were killed, travelling in two different vehicles, there may very well be a different duty owed by the offending driver to each of the people who lose their lives. If a different duty is not owed, then at least it seems to me that the breach of the duty owed to each of those persons may differ. It may very well be that, in a case in which two people are killed by one who is guilty of offences against s.318, and killed in the same accident, different penalties might be awarded, in respect of each of the offences because different degrees of criminality attach to each. I am not saying that in this case different penalties ought to have been imposed, as perhaps they might have been if, for example, Mr Hill had encouraged the respondent in his conduct rather than seeking to dissuade him from it. This was, however, a case in which the sentences for counts 4 and 5 ought, in my opinion, to have reflected the circumstance that the respondent was guilty of a breach of duty to his passenger and guilty of a breach of a different kind owed to another user of the road.” – R. v. True.[36] (My emphasis.)
[34][1995] 2 V.R. 348 at 354-5.
[35](1999) 29 M.V.R. 151 at 155.
[36][1997] VSCA 8 at 19.
There is a positive statement to be found in one case in which a speeding car got out of control, mounted the footpath and struck and killed a pedestrian: Singh.[37] In a short, extempore judgment the Court of Appeal remarked:
"As so often, there are both mitigating and aggravating circumstances surrounding this offence. By definition, the aggravating circumstance is that a perfectly innocent person has lost their life and relatives are bereaved. Secondly, perhaps most important is the fact that the appellant was found to be over twice the legal limit. There is the question of his speed, the disregarding of warnings from his passenger. It should also be said that shortly after the accident in a moment of panic the appellant ran away although, to his credit, he did return shortly afterwards."
[37][1998] EWCA 3672.
The second sentence in this passage contains an unequivocal statement. I would, however, respectfully ask what was intended to be conveyed by the words "by definition" and also raise the question whether, where an element of the offence is the causing of death, it is clear beyond argument ("by definition" ?) that the fact that relatives are bereaved is an aggravating circumstance.
I do not think it possible to derive anything for present purposes by implication from the last sentence in the following passage from the judgment of King, C.J.:
“This is clearly a bad instance of the crime of causing death by dangerous driving. The appellant became intoxicated as a result of a deliberate course of drinking extending over a period of some hours. Deprived of inhibitions, control and judgment by his intoxication, he drove at an excessive speed. The loss of control of the vehicle may have been caused in part by the defective condition of the vehicle of which he must be taken to have been unaware. Nevertheless his driving was grossly culpable and resulted in the death of the unfortunate passenger whose judgment as to the respondent’s condition may have been impaired by his own ingestion of alcohol.” – R. v. Johnston.[38]
[38](1985) 38 S.A.S.R. 582 at 583.
Something said in the South Australian case of MacKereth[39] should be cited. It is contained in the leading judgment, given by King, C.J., and will be found set out in D.P.P. v. Stone[40] at 299:
“Parliament has prescribed severe penalties for these offences and they have been increased as recently as 1986. It is always distressing to see a person of hitherto good character facing a sentence of imprisonment, but the fact is that in this case the appellant’s driving when he had had too much drink to be able to exercise effective control of the vehicle has caused the death of an innocent member of the public who was not associated with his activities or his drinking in any way and injury to the deceased’s person’s wife. It has also caused injury to the two passengers in his own vehicle.”
The member of the public there mentioned was presumably the driver of or a passenger in the vehicle with which the offender’s car collided.
[39](1991) 12 M.V.R. 463.
[40](1994) 63 S.A.S.R. 297 (another decision of the Court of Criminal Appeal).
There is an interesting passage in the judgment of the Court of Appeal in Clarke-Sutton[41]:
“This case is so far as we know unique. There are of course many reported cases where passengers, one or more of whom may be killed in the ensuing accident, join in urging on the defendant driver to greater speeds or other follies. Such persons can in a sense be willing participants in dangerous driving but this fact may count for little, if any, by way of mitigation.”
[41](1995) 16 Crim.App.R.(S.) 937 at 940.
The Court does not here take up a clear position on whether conduct of the kind mentioned can ever be a mitigating factor. Perhaps the Court should be taken as expressing the opinion that such conduct, if it is capable of being treated as a mitigating factor, will not, or will not ordinarily (the use of “may” should be noted), be given much weight. As regards the facts in Clarke-Sutton, which the Court had described as possibly unique, the case was described as one of “urban surfing”. The appellant, having spent an evening with friends at a restaurant and at a nightclub, had later, in the small hours, driven a car while two of his friends “rode” on the bonnet. (Whether they were standing or sitting is not clear.) All three had set out on a trip with the intention of engaging in “urban surfing”. One of the two surfers, at a time when the car was travelling at 20-25 m.p.h. along a quiet country lane in Worcester, lost his balance, fell from the bonnet, struck his head and died. The passengers had been urging the appellant to drive faster, so as to make the activity more exciting, but he had continued to drive at the same speed. The Court of Appeal reduced the sentence, saying, immediately after the short passage I have already cited:
“However, no valid comparison can in our judgment be made between such cases and the present. The distinguishing feature of the instant case is that the manner in which the appellant was driving was not in itself dangerous. He was proceeding at a very modest speed and was, on the only available evidence, resisting the urging of others, including Mr Green, to go faster. The danger was that two young men were sitting on the bonnet, indeed one was standing, in a position of imminent danger, on a vehicle travelling at that speed on a meandering country lane. The reality of this case it seems to us is that these high spirited young men, some of whom were presumably to an extent disinhibited by alcohol but we do not think drunk, agreed to indulge in an activity which they all must have known was, as the learned judge said, highly dangerous but which they had found exciting. Plainly they should not have done so, first because their conduct involved breaking the law in relation to road traffic, and also because of the great risk to those on the bonnet and possibly to other road users that they might have encountered. However, these are not the only and perhaps not the most significant considerations that have to be borne in mind. The sentence should also reflect the culpability of the appellant’s conduct. We consider on the facts of this unusual case that the public perception of the appellant’s conduct and the public view of his blameworthiness would rightly give weight to the fact that these three young men were willingly indulging in what they wrongly but genuinely must have regard as an exciting and stimulating activity, and of course appreciating the risk, particularly to themselves: that that risk existed was, we suppose one of the reasons for their doing what they did. Of course they would have appreciated, had they thought about it, the folly of their conduct, and of course that was the aggravating feature of the case against the appellant.”
That was a highly unusual case, and one of which it could be said that the driving of the appellant became dangerous only by reason of the conduct of the deceased and the third man in riding on the bonnet in the highly dangerous game which the three had agreed should be played.
Strangely, on the day after the Court of Appeal described the essential facts in Clarke-Sutton as unique a similar incident occurred at a party held at Tumbi Umbi on the central north coast of New South Wales.[42] There was no pre-arranged plan to “surf”, but it may be inferred that the driver of the car and his three passengers were all content that the passengers should travel on the bonnet, or at least that the driver and the victim were. The driver, much affected by drink, returned to his parked car from the party, evidently intending to go and buy some more liquor. He found three young people sitting or lying on the bonnet, one of them, who was shortly to be killed, being in the middle of the three. The victim was laughing as the car moved off, from which I would infer that he was a willing participant in the foolhardy affair. The car was driven into a nature reserve and collided with a steel pole, and two of the three passengers were thrown off the bonnet, while the third was caught between the bonnet and the pole and fatally injured. The Court comprised Gleeson, C.J. and Sully and McInerney, JJ. The leading judgment was delivered by Sully, J. No reference is made to the conduct of the victim as bearing on the matter of sentence.
[42]R v. Williams (unreported, Court of Criminal Appeal, New South Wales, 17 December 1996).
An important decision for present purposes is R. v. Errington[43], where the Court of Criminal Appeal of New South Wales allowed a Crown appeal and increased the sentence in a case of aggravated dangerous driving causing grievous bodily harm. The respondent had been drinking heavily before he set off by car with his de facto wife as a passenger, lost control of the car and had a collision in which the wife’s forearm was severed. In the course of his reasons Dunford, J. remarked at 348:
“Another matter which his Honour took into account in mitigation was what he described as the situation of the victim in that, because she had been drinking heavily and travelled apparently willingly in a vehicle driven by someone she must have known was grossly intoxicated and did nothing to dissuade him from driving, she was not an entirely innocent victim, but was in a sense partly responsible for her own misfortune.
In my view, this consideration is misconceived, erroneous in law and totally irrelevant. Not only can contributory negligence or anything akin to it, by whatever name it is called, have no place in the criminal law, but it cannot in my view be a mitigating factor. S52A is designed to protect, not only passengers in the offender’s motor vehicle, but other road users as well; and the fact that the person injured was also affected by alcohol and did not dissuade the offender from driving, in my view, cannot go to mitigation.”
[43](1999) 29 M.V.R. 344.
There may be difficulty in squaring this approach with that suggested by the dictum in Kalanj.
In R. v. Hays[44], a motor cyclist and his pillion passenger had spent several hours drinking together before the motor cycle, ridden at great speed, was pursued by police. It crashed in the course of the chase and the passenger perished. There was some evidence, in the form of out-of-court statements by the motor cyclist, that he had been urged by his passenger to try to evade the police and to keep going. Crockett, J. said this at 565:
“It was said also that the judge was in error in failing to find that the applicant’s culpable driving was contributed to by the urgings of the deceased. There was, as I have indicated, some evidence to the effect that the applicant was encouraged in what he did by some remarks of his pillion passenger. The judge seems to have attached little mitigatory weight to that particular aspect of the matter by concluding that he was not satisfied that there was a great deal of substance in the point. He was, of course, reaching a conclusion about a matter of fact and it cannot, I think, be said that his Honour was unable to reach the conclusion that he did, or that in making the observation that appears in his reasons for sentence he was acting perversely.”
[44](1992) 15 M.V.R. 563.
In Howell[45] the appellant, in the inside lane, was racing another car, driven by a man named Long in the outside lane. The cars were speeding alongside each other and Long, being unable to get into the inside lane, ran into a third car travelling in the same direction and in the outside lane, the driver of which had seen the two racing cars gaining on him but had been unable to get out of their way, since they occupied both lanes. Long and his passenger were both killed and the appellant was charged with two counts of dangerous driving causing death. Having observed, at 450, that Long was as much to blame as the appellant, and probably more, the Court noted without comment, at 451, counsel’s submission that Long’s major contribution to the accident pointed towards leniency. It is implicit in the judgment that the appellant was charged in respect of his own driving, not as having encouraged Long to drive dangerously (Giorgianni v. R[46]; Bruce v. Williams[47]), and this was necessarily so as regards the count concerning Long’s death.
[45][1999] 1 Cr.App.R. (S.) 449.
[46](1985) 156 CLR 473.
[47](1989) 46 A.Crim.R. 122.
Another example of racing is Attorney-General's Reference No. 46 of 1998[48] It is not a case in which the offender's car, in racing against another, ran into a third vehicle or a pedestrian. Nor is it, like Howell, a case of two cars racing side by side, whose speed and position on the roadway combine to cause one of them (whose driver is killed in the accident) to collide with a third car, which does not contribute to the collision. It may be said that in Howell the fatal accident was the product of the activities of the two competitors and that the quality of the offender's driving could only be considered by looking at what they both did. But Attorney-General's Reference No. 46 of 1998 is unusual. Two cars were racing each other at great speed on a single lane carriageway, a Ford driven by the offender, Atkins, and a Vauxhall driven by the victim. The Vauxhall was in the lead by about 30 yards when it entered a bend on the wrong side of the road and narrowly avoided colliding with a correctly driven oncoming car by veering to the left. The Vauxhall got out of control and rolled over, and the victim, not wearing a seatbelt, was thrown out. Following a trial, Atkins was convicted of causing the death by dangerous driving, the victim being, of course, his competitor in the race. The Attorney-General succeeded in having the sentence increased. In the course of its reasons the Court said this:
"As aggravating features of this offence the Attorney-General draws attention to the competitive driving in which the offender and the deceased had engaged, and to the grossly excessive speed at which the vehicles had been travelling. He points out that the lives of others had been put at risk, including members of the offender's own family, and he draws attention to the offender's failure to remain at the scene following the accident. On the other hand, he accepts that the offender is a man of effectively good character, who is remorseful, who has a good work record and is a valued member of the community. He acknowledges that this is not a case in which there was any evidence of alcohol – indeed that possibility was excluded by testing. It is also tragically plain that the conduct of the deceased did contribute significantly to the accident and it is another tragic element that he was not wearing a seat-belt.
Despite those mitigating features the Attorney-General submits that the sentence in this case was unduly lenient … ".
[48][1998] EWCA 3851.
It is not entirely clear that the sentence beginning "It is also tragically plain" was intended to record a submission about additional mitigating factors as opposed to a passing observation of counsel. It is even possible that the sentence was an interpolated passing comment made by the Court itself. But if the Court is to be taken as having noted without adverse criticism a concession that it was a mitigating circumstance that the conduct of the deceased contributed to the accident and that he was not wearing a seatbelt, one cannot get much from the failure of the Court to suggest that the concession might be erroneous, especially when the Court was increasing the sentence. It is, moreover, arguable that in any event despite the factual differences this case and Howell are in principle cases of the same kind, in the sense that the quality of the driving of Atkins could not be assessed without considering also what his competitor actually did.
Collins[49] concerned a police car chasing a stolen car at high speed and going through an intersection against the traffic lights, colliding with another car. The driver of that other car and the observer in the police car were both killed. The observer, like the police driver, was a very experienced officer, and there was nothing to suggest that he had counselled caution. He had told headquarters by telephone shortly before the collision that it was safe to continue the chase. No argument seems to have been advanced about his role. The Court, at 305, described the victims as “two totally innocent people”.
[49][1997] 2 Cr.App.R. (S.) 302.
Many cases could be cited where the offender was affected by liquor and the passenger victim had been in his company for some time while he was drinking and either must have realised that the driver was intoxicated or failed to do so only because of his or her own intoxication. It is highly unusual to find any suggestion in such cases that the victim’s “complicity” bears on penalty. (In some of these cases the victim also failed to wear a seat belt in circumstances in which that failure probably contributed to the death.) I give only seven examples, the last three of which are also cases of no seat belt being worn: R. v. Williams[50]; R v. Wright[51]; Nunn[52]; Attorney-General’s Reference No.48 of 1996 (Paul Swain)[53]; Attorney-General’s Reference No.50 of 1996 (Williams)[54]; Attorney-General’s Reference No.16 of 1998[55]; Roche[56]. In none of these seven cases is there any reference to the victim’s “complicity” or anything of that kind. Elsewhere in these reasons I mention specifically the very few cases I am aware of in which such a reference can be found.
[50][1992] 1 V.R. 374.
[51][1999]VSCA 145.
[52][1996] 2 Cr.App.R. (S.) 136.
[53][1997] 2 Cr.App.R. (S.) 76.
[54][1997] 2 Cr.App.R. (S.) 252.
[55][1999] 1 Cr.App.R. (S.) 149.
[56][1998] EWCA 4622
Guideline judgments on offences of this kind in England and New South Wales, while of course not purporting to deal with all considerations bearing on sentence, do not in fact refer to the “innocence” or “participation” of the victim, or anything of that kind: Jurisic[57] (where the English guideline judgments are conveniently collected).
[57](1998) 45 N.S.W.L.R. 209.
The only decisions relied on in argument before us on the present point were Kalanj and McGrath. I have mentioned a good many others. No doubt there are, in the vast number of sentencing decisions which help fill our shelves and the data bases, other examples, not merely of “innocent victims”, for they are plentiful, but also of dicta which express an opinion on the point. The applicant relies on Kalanj and McGrath and submits that it is a mitigating circumstance that the victim is not “blameless and entirely unassociated with the conduct of the offender and the events which led the offender to commit the offence”. The Crown submits that the true view is that it is an aggravating circumstance that the victim does answer the description in inverted commas or alternatively some such description as “entirely innocent.”
I need not consider the difficult question whether the words which immediately follow “blameless” in Kalanj (“and entirely unassociated”) are epexegetical; compare R. v. Challoner[58]. If they are not, the question what is meant by “blameless” arises; presumably a passenger whose failure to wear a seat belt or crash-helmet contributes to the death is not blameless. Victims who are not “innocent” in the Kalanj sense (“blameless and entirely unassociated ...”) will usually be passengers in the offender’s vehicle although they may, for example, be spectators or drivers at drag races held in suburban streets. If they are passengers, the case will often be one of drunk driving (although the unusual case of Collins, the police driver, already mentioned, should be borne in mind). What kind or degree of participation or encouragement is necessary for a passenger not to merit the “blameless and entirely unassociated ...” description is not clear. If the words of the description are to be taken literally (“blameless and entirely unassociated with the conduct of the offender and the events which led the offender to commit the offence”), the net of blame may be cast very wide. Is any degree of blameworthiness or association (assuming them to be different things) enough? What of the passenger who accepts a lift from an obviously intoxicated driver but then repeatedly cautions him to drive slowly and with great care? Are principles or rules to be laid down to guide the sentencer? Are we to have a jurisprudence of innocence and blameworthiness, as judges determine what is or is not a mitigating, or an aggravating, circumstance in this regard on a case-by-case basis?
[58][2000] VSCA 32 at [46]-[48].
Are we to say, for example, that the victim’s “blameworthiness” or “complicity” or “participation” is not a mitigating circumstance but that the victim’s innocence aggravates the offence? I should have thought that in the majority of cases of culpable driving – perhaps the great majority - the victim is “entirely innocent”. If this is so, would it not seem strange that one particular aggravating circumstance should be present in the majority, or the great majority, of cases of the offence?
As I said earlier, to call the victim innocent in a driving case may be only to emphasise how bad the driving is, as when an out of control car intrudes into a living room or flies through the air and lands on the nature strip. Section 5(2) of the Sentencing Act 1991 makes relevant the offender’s “previous character” but the “personal circumstances” of any victim of the offence. True it is that according to Fox and Freiberg on Sentencing, 1st ed., p.456, the age, conduct, character, antecedents and status of the victim of a crime, as well as the effect of the crime on the victim, are relevant in sentencing. The authority cited is R. v. Webb[59], a decision given 30 years ago, which at 153 describes a rape victim as “a woman of good repute, an ordinary decent housewife”. The passage in the first edition of Fox and Freiberg was cited in Economedes[60] in relation to the reference of consequences to a victim and is reproduced in the second edition at p.257. But judges do not usually pass moral judgments on the victims of crime for the purpose of arriving at a sentence. The conduct of a victim may be relevant when one is assessing the criminality of the conduct of the offender. So if the victim of an attack has provoked his assailant, the sentence may be moderated: Okutgen[61]. But this is not because the victim is regarded as less worthy of the law’s protection as one who is not “perfectly innocent.” It is because “the sentencing discretion may be tempered by an understanding of the reasons which led to the committing of serious criminal behaviour”- R. v. Aboujaber[62]. If an intoxicated and reluctant motorist has been prevailed upon to drive by the importunities of boon companions, that may perhaps be regarded as a slight mitigating circumstance if the motorist later kills one of them as a passenger, but that is not because the deceased is not as worthy of the law’s protection as an innocent person, but because the conduct of the offender in driving while intoxicated may perhaps be regarded as slightly less blameworthy because an initial reluctance to drive was overcome by pressure from others. The point that a reluctant person had been persuaded by a passenger to drive would be available, for what it was worth, even if the victim was a third person.
[59][1971] V.R. 147.
[60](1990) 58 A.Crim.R. 466 at 468.
[61](1982) 8 A.Crim.R. 262.
[62]Court of Appeal, 9 October 1997, at 10 per Ormiston, J.A.
What could be the basis in principle of the recognition of “blameworthiness” or “complicity” as something the presence or absence of which in a culpable driving victim bears on the sentence to be passed? Once one puts to one side the use (plainly legitimate) that may be made in an appropriate case of the conduct of the victim as bearing on how bad the offender’s driving was or as possibly serving to mitigate in some small way the conduct of the offender in choosing to drive (as by a passenger’s importuning a reluctant motorist to drive while intoxicated or to drive a vehicle known to be unroadworthy), what is left? Only, it seems to me, the character of the victim: the victim has been reckless as to his or her own safety, and so is unworthy, and that makes the killing less serious; or, the victim has not been reckless and so is worthy, and that makes the killing more serious. The victim has behaved in an unworthy way and so is an unworthy victim; or on the other hand the victim is a worthy one. Whether the seriousness of the offence is being judged from the standpoint of the harmfulness of the conduct or the “culpability” of the offender (in the sense in which Professor Ashworth uses the expression: Sentencing and Criminal Justice, 2nd ed., pp. 94, 119, 130 and 133-4), proponents of the Kalanj approach must, I think, ultimately fall back on the view that it is worse to kill a worthy person than an unworthy one, so that the harm done by the offender is greater, or the offender’s “culpability” is greater, where the victim is a worthy person. This does not seem to me to be the law’s approach in cases of murder or manslaughter. In cases of culpable driving the victim’s own behaviour, while on occasions very anti-social and highly reprehensible, could never, as it seems to me, be properly regarded as reducing the harm done by the killing or the “culpability” of the offender by showing the victim to be less worthy than others of the law’s protection. And if “blameless” in Kalanj is not explained by the immediately following words, so that a passenger whose death is contributed to by failure to wear a seat belt or crash‑helmet is not “blameless”, then the idea that such a person is not worthy of the law’s full protection seems to me even more difficult to accept.
The judge was right in declining to treat the conduct of the victim, Breewel, as relevant in sentencing. But I should add that if, contrary to my view, that conduct was a relevant matter, I would still have been for dismissing this application. For I would not have thought that a different sentence should have been passed even taking that matter into account.
The application must fail.
CHARLES, J. A.:
I have had the considerable advantage of reading in draft the reasons prepared by Brooking, J.A. I agree with his Honour that this application must fail for the reasons he gives.
I was at first attracted to the argument that the fact that the deceased was a willing passenger in the applicant's vehicle, and had been drinking with him during the day, was a factor relevant to the applicant's criminality in culpable driving; in much the same way as judges have in the past referred to the blamelessness of the victim as somehow increasing the culpability of someone accused of this offence. But, after reading what Brooking, J.A. has said on these issues, particularly at [42] to [45], I am persuaded to accept the view that the degree of blameworthiness of the victim of an offence of culpable driving is not a factor relevant to the seriousness of the offence.
BATT, J. A.:
I have had the considerable advantage of reading in draft the reasons for judgment of Brooking, J.A. I concur in them. In particular, having reflected on the question with the benefit of his Honour’s researches, I agree that the victim’s innocence or blameworthiness is not an aggravating or mitigating factor in sentencing for the offence of culpable driving causing death.
I would comment briefly on two factors relied on in mitigation, youthfulness at the time of offending and rehabilitation, achieved and prospective. Although ordinarily courts strive to avoid imprisoning young offenders, especially for long periods, this offence is so serious and general deterrence so important a sentencing purpose in respect of it that youthfulness is ordinarily of much reduced significance.
Examination of the evidence of rehabilitation relied on here shows it, in my opinion, not to be strong.
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