R v Satalich
[2004] VSCA 132
•5 August 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 213 of 2003
| THE QUEEN |
| v. |
| LYNETTE SATALICH |
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JUDGES: | WARREN, C.J., BATT and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 June 2004 | |
DATE OF JUDGMENT: | 5 August 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 132 | |
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CRIMINAL LAW – Sentencing – Culpable driving – By negligence – Negligently causing serious injury – Sleep deprivation – Driver fell asleep – Erroneous view of R. v. Scott [2003] VSCA 55 – Re-sentenced to total effective sentence of 4 years with non-parole period of one year and 10 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Elston | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr J.H. Kennan, S.C. | Brendan Wilkinson |
WARREN, C.J.:
I agree with the reasons that I have had the benefit of reading in advance as stated by Batt, J.A. that the appeal against sentence should be allowed and the appellant be re-sentenced. I agree with the re-sentencing of the appellant as proposed by his Honour save that I would have imposed a slightly lesser minimum term in all the circumstances. However, it is unnecessary for me to express my view on that aspect.
BATT, J.A.:
On 22 July 2003 the appellant, Lynette Satalich, who was born on 30 March 1966, pleaded guilty in the County Court at Melbourne to one count each of culpable driving causing death (count 1), negligently causing serious injury (count 2) and possession of a drug of dependence, namely, cannabis (count 3). The particular form of culpable driving pleaded was driving negligently as defined or explained in paragraph (b) of s.318(2) of the Crimes Act 1958, and the conduct alleged to be negligent in count 2 was driving. The maximum custodial penalty for the first two offences was imprisonment for 20 years and 5 years respectively, and the maximum penalty applicable to possession of cannabis in the circumstances of this case was a fine of $500. The appellant had no prior convictions.
The Crown case was that the appellant drove her car at a time when she knew or ought to have known that there was a significant risk of falling asleep at the wheel and thereby losing control of the car, or, to adopt and adapt the language of the President in R. v. Franks[1], that at a time proximate to the collision the appellant drove and continued to drive her car when she was aware, or should have been aware, that her condition was such that there was a real risk that she would fall asleep or lose control of her vehicle so as to endanger others and that, in doing so, her conduct represented such a departure from the standard of care expected of the prudent driver as to amount to a gross negligence.
[1][1999] 1 V.R. 518 at 531. Legislation substantially embodying the President’s formulation as a form of negligent culpable driving has been introduced into the Parliament but not yet passed: Crimes (Dangerous Driving) Bill 2004.
After the prosecutor had opened the facts of the offences, his Honour heard a plea in mitigation of penalty. Eight witnesses were called on behalf of the appellant. A police sergeant testified to the appellant’s co-operative attitude to the investigation and her genuine sorrow for what she had done. Five friends, neighbours and associates testified as to her character and as to the effect of the collision upon her. The essence of their evidence was that the appellant had been of previous good, if not outstanding, character with a happy and bubbly personality, and that she had been active within the community and an exemplary mother to her son, who was then 10 years of age. (The appellant had separated from her husband, the boy’s father, in 1994.) But she had been devastated by the fatal collision, becoming withdrawn and tearful and losing much weight. It had been all-consuming. The appellant’s partner of some eight years, Nicola Emmett, who had been her front-seat passenger at the time of the collision, testified that as a result of psychological difficulties flowing from the collision they had separated. Dr Lester Walton, a psychiatrist, besides furnishing a report, gave evidence that the appellant had a diagnosable depressive disorder which, he said in his report, was a direct consequence of her involvement in the collision. She had all the features of a clinical depression such as sleep disturbance, lowering of mood, severe nutritional neglect and weight loss. By July 2003 she had lost 11 kgs. She was being treated with antidepressant drugs and sleeping medications and was undergoing counselling. The medication would be available in prison, but the opportunities for counselling prisoners were quite limited. From very shortly after the collision the appellant received counselling from, and was a regular participant in the driver’s support group conducted by, the Road Trauma Support Team (Vic.) Inc., an organisation providing free counselling and support to anyone in Victoria affected by a road trauma. A psychologist with that organisation reported that the appellant struggled with strong feelings of guilt, grief and remorse and was considered to be someone who took responsibility for her actions.
The appellant’s counsel on the plea sought a suspended sentence of imprisonment. That was opposed by the prosecutor, who submitted that general deterrence was extremely important and required an immediate custodial sentence, save in very exceptional cases of which the present was not one. He acknowledged that the need for special deterrence was very limited indeed and that there were mitigating factors such as the early plea of guilty, obvious remorse, lack of prior convictions, a dependent child and health. The last-mentioned prompted the judge to say that the effect of the accident on the appellant was a form of punishment which was capable of recognition.
On 25 July 2003 his Honour sentenced the appellant to imprisonment for four years and three months on count 1 and one year and three months on count 2. He directed that six months of the latter sentence be served cumulatively on the sentence on count 1, so that the total effective sentence was imprisonment for four years and nine months. He fixed a non-parole period of two years and three months, stating that such was his confidence in the appellant’s eventual rehabilitation, and his acceptance of her genuine need of psychiatric and other help, and the desirability of that being provided in appropriate circumstances and surroundings, that he considered he should fix a non-parole period that was somewhat shorter than might otherwise be appropriate. On count 3 he imposed a fine of $100. He further ordered that any driving licence held by the appellant be cancelled and that she be disqualified from obtaining such a licence for a period of three years. He also made a declaration as to pre-sentence detention.
The appellant appeals, by leave of a single Judge of Appeal, on the grounds that the sentencing judge placed too much weight on the importance of public denunciation (ground 1) and on general deterrence and getting the message through to the community of the perils of driving whilst knowingly aware of tiredness (ground 2) and gave too little weight to the plea of guilty (ground 3) and the appellant’s remorse (ground 4) and that the sentence was therefore manifestly excessive in all the circumstances of the offences and of the appellant (ground 5). Ground 2 was treated during argument as extending to include a contention that the sentencing judge had misunderstood a passage in the judgment of the President in R. v. Scott[2].
[2][2003] VSCA 55 at the end of para.[24].
Before the grounds of appeal can be considered it is necessary to state briefly the facts of the offences. It will be helpful, I consider, also to summarise his Honour’s sentencing remarks.
At 9.25 a.m. on Sunday, 28 January 2001 the appellant was driving her station wagon home southwards along The Esplanade, Brighton, after an all-night dance party in Docklands, when she fell asleep at the wheel and, veering across the road, her car struck three cyclists riding in the opposite direction, that is, towards the city, killing one and very seriously wounding another. The speed of her vehicle at the time of the collision was estimated by a collision reconstruction expert at around 44-45 kph. She indicated to the ambulance officer at the scene of the collision that she thought that she had fallen asleep at the wheel. When interviewed by police on the afternoon of the same day she stated the following. She had had only between one hour and two hours sleep during the preceding 24 hours. She had arrived at the party at about midnight and left between 8.30 a.m. and 9 a.m. She had danced for about half the time she was there, at least four hours. She left because she felt “physically” tired and wanted to go home. She thought she was more physically tired than sleepy tired. She said in one answer, though overall she was not very clear or strong on the point, that she had not thought she was too tired to drive.
A marijuana cigarette was found in a bag belonging to the appellant that was in the vehicle, and that gave rise to count 3. Since the consumption of alcohol or illicit drugs formed no part of the Crown case, it is unnecessary to summarise such evidence on those topics as was before his Honour
There was medical evidence, though this was scarcely necessary, that the appellant’s sleep deprivation during the preceding 24 hours would have increased the likelihood of her falling asleep during the relatively monotonous period of driving after being physically active earlier at the party. However, the MDMA (or Ecstasy) tablet she had taken shortly after midnight and the stage of her circadian rhythm at which the collision occurred might have tended in the opposite direction. There was other medical evidence about the effect upon the appellant’s driving of the MDMA which she had ingested, but it is unnecessary to consider this having regard to the very specific and limited way in which the Crown case on counts 1 and 2 was presented.
In sentencing the appellant the judge stated that, serious as the matter undoubtedly was, there were some mitigating factors. First and foremost was the plea of guilty, with its utilitarian benefits. Further, the appellant intimated as early as possible her intention to plead guilty. In the circumstances his Honour accepted that the plea indicated true remorse and indeed, after hearing the evidence called on the plea, he accepted that her feelings of remorse were and remained profound as well as genuine. She had no prior convictions and was a person of previous good character. His Honour accepted Dr Walton’s diagnosis of depression and his opinion that its genesis lay in the collision and the appellant’s reaction to it. He accepted that she had suffered significantly in the aftermath of it. She had been profoundly affected, indeed at times almost overwhelmed by the enormity of the consequences of her actions. She had been in no further trouble since the collision and he was satisfied that the chances of her rehabilitation were excellent, although it was clear that she would require help, including psychiatric help, for some time yet. His Honour accepted that prior to this matter the appellant’s general reputation within the community was good and also that she had made significant contributions to the community.[3]
[3]Compare Sentencing Act 1991, s.6(b) and (c).
However, his Honour continued, as well as those matters personal to the appellant, he had also to apply other sentencing considerations, particularly general deterrence, which was of considerable importance in a case of this nature. He then stated:
“Driving when unfit as a result of sleep deprivation has been described by the Court of Appeal as little different in terms of culpability from driving whilst highly intoxicated. Motorists are constantly warned by road-side signs, and in other ways, of the extreme danger of driving whilst drowsy. It must be made clear to the community generally that to do so will not be tolerated …”.
His Honour said that special deterrence was of little relevance given his views on the subject of the appellant’s rehabilitation, but he was called upon to manifest the community’s denunciation of her conduct and generally to impose a just punishment. Counts 1 and 2, count 1 in particular, were without doubt most serious offences. The Court of Appeal and the Parliament had made it clear that those who commit crimes of that type deserved condign punishment. In all the circumstances he had no alternative but to impose a custodial sentence. He then proceeded to impose the sentence stated earlier.
In support of the final ground of appeal, that the sentence was manifestly excessive, the appellant sought to rely on an affidavit sworn by her mother on 10 June 2004 dealing with the appellant’s son Jacob. The affidavit showed that Jacob had just turned 12; that his mother (the appellant) and father were divorced; that the father, who had fortnightly access, lived in Sunbury whilst the appellant and Jacob lived in Chelsea Heights until her imprisonment; that Jacob then lived with his maternal grandparents in Queenscliff for a few months; that about one month after the appellant was imprisoned the deponent found Jacob lying on the road outside her house at 9.30 p.m., deliberately in a position that made him vulnerable to being run over by passing traffic; that the grandparents rented a flat in the Chelsea Heights area in order that Jacob would not have to move schools, but he decided that he would rather live with his father and accordingly in late September 2003 moved to Sunbury and changed schools; and that Jacob is not coping well, having become unsettled, refusing to go to school and being required to attend a counsellor. I might add that the deponent and her husband, as concerned grandparents, were present throughout the hearing of the appeal.
It was submitted for the appellant that the affidavit should be admitted because it threw a different light on the circumstances existing at the time of the sentence. While it was understood at that time that imprisonment would result in a separation of mother and child, the nature of the hardship could now, it was submitted, be seen differently in the light of the evidence. That circumstance added to the burden of the sentence on the appellant. Reception of the affidavit was opposed on behalf of the respondent on the ground that the evidence related to events occurring after sentence, and reliance was placed on R. v. Babic[4]. In my opinion, as in R. v. Holland[5] and on the basis of the authorities there cited and of R. v. WEF[6], the affidavit is admissible on this appeal to show the true significance of facts in existence at the time of sentencing and adverted to, albeit briefly, before and by the sentencing judge. However, whilst it may be reasonable to assume that the appellant has been informed of the facts deposed to by her mother, the affidavit, contrary to the submission for the appellant, does not show that the burden of the sentence on the appellant has thereby been increased. Though some increase might be inferred if the assumption mentioned is made, a substantial increase in burden needs to be established. Nor does the affidavit show the exceptional circumstances necessary for hardship to members of a prisoner’s family, and in particular a child, to be taken into account. This is not a case like R. v. Leesley[7], where there was no parent available to care for the child[8]. Nor is it a case of a very young child. Nor is it a case where both parents are required to care for a handicapped child, as in R. v. Maslen[9]. It may be that the affidavit could be rejected in the exercise of discretion because it does not help to make out any ground of appeal. However, if, as I shall hold later, the appellant falls to be re-sentenced, the affidavit may be relied on as part of the background material.
[4][1998] 2 V.R. 79 at 80-81. It was also submitted that the affidavit contained non-expert opinion evidence, presumably as to the child’s not coping and becoming unsettled. The better view, however, I consider, is that the deponent was stating facts compendiously.
[5](2002) 134 A.Crim.R. 451 at 452, para.[2].
[6][1998] 2 V.R. 385 at 388-389.
[7](2001) 33 M.V.R. 495.
[8]Though even that may be insufficient: R. v. Holland, where grandparents were available.
[9](1995) 79 A.Crim.R. 199 at 208-209.
It is now possible to consider the grounds of appeal. The appellant’s attack upon the sentence was confined, as I understood it, to the sentence imposed on count 1: no challenge was made to the sentence imposed on count 2 or the direction for cumulation of six months of that sentence. It is clear from the use of the word “therefore” in ground 5 that the preceding grounds are relied on as particulars of the ground that the sentence was manifestly excessive. Grounds 2, 3 and 4 were, however, also argued as independent grounds. A challenge to the weight given to a particular sentencing factor, whether as being excessive or insufficient, where the factor has indeed been taken into account, is, as the cases show, not easy to make out. Here, in my opinion, to read his Honour’s sentencing remarks summarised earlier is to see that grounds 3 and 4 must fail as separate, independent, grounds.
As to the remaining grounds, grounds 1 (which was not pressed), 2 and 5, I find it necessary to deal only with ground 2 and then only so far as it is taken as extending to his Honour’s understanding or interpretation of R. v. Scott. It was on the basis that the facts of this case are dissimilar from those in Scott and that the decision in the latter case must have influenced the sentencing judge’s selection of a fair sentence in the present case that the single Judge of Appeal granted leave to appeal. In Scott the sentencing judge had said that the offender’s driving demonstrated a total disregard for the safety of other users of the road and that he was satisfied that the offender’s drowsiness and fatigue, coupled with inexperience, inattention and excessive speed on a narrow winding road, combined to cause the accident. That was a case where the offender had sideswiped one vehicle but had continued and on a bend one to two kilometres further on had veered across the road into a motor cycle, killing the rider and grievously injuring the pillion passenger. In support of a contention that imprisonment for six years on the culpable driving count was manifestly excessive counsel for the offender had submitted that it was not a case where the driving was influenced by drugs or alcohol. In response the President stated[10]:
“That much may be acknowledged; but whether the grossly negligent driving is the product of fatigue and lack of judgment induced by alcohol, or fatigue and lack of judgment produced by lack of sleep does not appear to me to be a matter of much distinction. The applicant’s driving was, as the judge said, quite appalling. I do not regard the sentence of six years as manifestly excessive.”
Having considered the matter for myself, I have come to the conclusion that, although the President used the present tense in the critical sentence, he was speaking only of that case and, in particular, “the grossly negligent driving” was “[t]he applicant’s driving” referred to in the next sentence as being “quite appalling”. In other words, his Honour was not enunciating a general proposition. Rather, he was saying that in that case it was the manner or standard of driving, irrespective of what caused the driving to be of that manner or standard, which was decisive in the assessment of penalty. Moreover, that was not a case where the driver had fallen asleep, but one where he had driven while he was, to his knowledge, drowsy. For these reasons, I consider that the facts of Scott and this case are different and, more importantly, that the President did not in the former lay down the proposition that the sentencing judge in the present case attributed to the Court of Appeal[11], namely, that driving when unfit as a result of sleep deprivation is little different in terms of culpability from driving whilst highly intoxicated.
[10]At the end of para.[24].
[11]Although counsel for the respondent stated that he did not accept that the sentencing judge was referring to Scott he accepted that there was no Court of Appeal decision containing a passage similar to his Honour’s proposition other than Scott. That case had been cited to his Honour and none of the other cases cited to him appears to contain any similar statement. I am satisfied that the sentencing judge was basing himself on Scott.
After anxious consideration I cannot be satisfied that his Honour’s error was immaterial; for, although he was, in my view, undoubtedly entitled, indeed bound, to give prominence to general deterrence as a sentencing consideration, he may well have been led by his error to give it more weight than it merited in the particular circumstances of this case. Those circumstances appear from the facts stated earlier together with the summary of his Honour’s enumeration of the mitigating factors.
Since there was, in my view, specific error in the sentencing, the sentencing discretion falls to be re-exercised by this Court. This must be done, in the case of count 1, in a setting of a maximum penalty of 20 years’ imprisonment and without ever forgetting that a life has been lost. It must be also done on the hypothesis, flowing from the plea of guilty, that the appellant was grossly negligent in driving when she had, or ought to have had, the knowledge asserted in the formulation of the Crown case that has already been mentioned. Neither alcohol nor illicit drugs formed part of the case the Crown put either here or in Scott. In both cases the form of culpable driving was the same, namely, driving negligently, and that requires the degree of departure from the standard of the reasonable person to be “gross”. The observation of Winneke, P. a little earlier in the same paragraph in Scott as has already been referred to[12] is, therefore, in my opinion, applicable to the culpable driving the subject of this appeal. His Honour said that “those who put lives at risk through grossly negligent driving can expect to receive heavy penalties influenced by the sentencing principle of general deterrence”. Further, in R. v. O’Connor[13] his Honour said:
“If there is still a residual opinion existing in this community that the offence of culpable driving is not to be treated like other criminal offences because it is ‘a tragedy for all concerned’ … then, in my view, the time has come for such views to be dispelled. … The offence is a species of involuntary manslaughter, and it must be treated as such.”
It must be realised that in a case such as the present the offending conduct for which the driver is to be punished is, not the driving that occurred after she fell asleep as that was not conscious conduct, but the driving and continuing to drive up to the point of falling asleep when all the while she was aware or should have been aware that her fatigued condition was such that there was a real risk that she would fall asleep and lose control. As is obvious, that involves a continuing course of proscribed conduct, as may occur where the gross negligence consists in the manner of driving.
[12]Para.[24].
[13][1999] VSCA 55 at para.[19].
I have found the exercise of the sentencing discretion by no means easy. For some time I did not think that a different sentence should have been passed and was for dismissing the appeal.[14] But in the end I have concluded otherwise. Whilst general deterrence, in my view, remains the principal sentencing purpose, it is appropriate in arriving at the sentence on count 1 and the non-parole period for it to be moderated a little having regard to the nature of the appellant’s negligent driving and to the concatenation of mitigating factors referred to earlier, particularly the appellant’s prospects of rehabilitation. By the nature of the appellant’s negligent driving I mean to refer to the last two sentences of the immediately preceding paragraph of these reasons and also, and more specifically, to the fact, as, in the absence of a direct finding by the sentencing judge, I would find it to be or at any rate could not find it beyond reasonable doubt to be other than, that, although the appellant knew that she was “physically” tired and knew she had had little sleep in the preceding 24 hours, she did not realise she was “sleepy” tired,[15] so that the case was one of constructive knowledge (“ought to have known”), rather than actual knowledge, of the significant risk.[16] Since the offence of culpable driving is a species of involuntary manslaughter, it can be constituted by conduct of widely varying culpability. The appellant’s conduct, as I have been at pains to identify it, is, to my mind, relatively low on the scale of culpability. In all the circumstances I would allow the appeal and sentence the appellant to be imprisoned for a term of three years and six months on count 1. I would impose the same sentence on count 2 as his Honour did and make the same direction for cumulation as he did, so that the total effective sentence would be imprisonment for four years. Substantially maintaining the ratio adopted by his Honour, I would fix a non-parole period of one
year and ten months. I would affirm the order for cancellation and disqualification and the sentence on count 3.
EAMES, J.A.:
[14]Crimes Act, s.568(4).
[15]The interviewing police member himself drew the distinction and it accords with common experience.
[16]The sentencing judge spoke only of actual knowledge (“appreciated by you at the time”) when stating how the Crown case was put and proceeded to sentence on that basis. As Mr. Kennan pointed out, that did not accord with the prosecutor’s opening, though no ground of appeal raises the point. In so far as his Honour found actual knowledge, he must have done so on the basis of the appellant’s answers in interview. Since that depends only on assessing and interpreting the printed word, there is no inhibition on this Court from making a different finding.
For the reasons stated by Batt, J.A., I agree that the appeal against sentence should be allowed and the appellant be re-sentenced as proposed by his Honour.
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