R v Scholes

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 83 of 1998

THE QUEEN

GRANT ASHLEY SCHOLES

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JUDGES:	TADGELL, CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 July 1998
DATE OF JUDGMENT:	21 August 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 17

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CRIMINAL LAW - Culpable driving causing death - Sentence - Crown appeal - Relevance of offender's prior criminal history and conduct after offence - R. v. Newman & Turnbull [1997] 1 V.R. 146 distinguished - Sentence of 6 years' imprisonment inadequate - Sentence of 8 years' imprisonment substituted - Crimes Act 1958, s.318(1), (2)(b).

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APPEARANCES:	Counsel	Solicitors
For the Crown - Applicant	Mr G.R. Flatman Q.C.,	Mr P.C. Wood, Solicitor for
D.P.P. and Miss A.B.J.	Public Prosecutions
Kwong
For the Respondent	Mr L.H. Webb and	Ian Polak
Mr P.M. O'Shannessy

TADGELL, J. A.:

The Director of Public Prosecutions complains that a sentence passed on the respondent, Grant Ashley Scholes, in the County Court on 27 March last was inadequate. Hence this appeal pursuant to s.567A of the Crimes Act 1958. The respondent pleaded guilty to offences committed by him on 10 May 1997. There were two indictable counts of causing death by culpably driving negligently, contrary to s.318(1) of the Crimes Act, and two summary offences: one of driving a motor car while disqualified from doing so and one of driving when his blood-alcohol concentration exceeded the prescribed limit, which was for the respondent 0.00 per cent: Road Safety Act 1986, s.52. Following a plea in mitigation the learned County Court judge sentenced the respondent to be imprisoned for five years and nine months on each of the indictable offences, for three months on the offence of driving while disqualified, to be served wholly cumulatively upon the sentence for the indictable offences, and for one month on the other summary offence. The total effective sentence, therefore, was one of six years’ imprisonment; and the judge directed that the respondent serve a minimum of four years before becoming eligible for release on parole. The respondent's licences to drive motor vehicles were cancelled - evidently by reason only of statutory requirement for, as will appear, he held none - and he was disqualified for ten years from obtaining another such licence. There was a declaration of 308 days’ pre-sentence detention.
The appellant now relies, naturally enough, upon the extreme seriousness of the conduct of the respondent that gave rise to the four offences for which he was sentenced on 27 March but sets particular store also, as a measure of the gravity with which the two offences of culpable driving should be regarded, on the respondent's conduct immediately after he committed them, and on his prior criminal history. The appeal is in that respect unusual. It will be convenient, therefore, before relating in any detail the elements of the offences on 10 May, 1997, to speak of some relevant preceding events and circumstances.
The respondent was born on 1 November 1971. Almost ever since he was old enough to hold a licence to drive a motor vehicle he has been in trouble with the law about his driving. On 18 August 1990, before he turned 19, he was convicted of exceeding the speed limit by 50 kms. an hour or more. For that offence he was fined $300 and his licence was suspended for six months. On the day after that conviction and suspension the respondent drove a motor car which collided with a pedestrian, killing her. The incident was an ugly one. According to the description given to the sentencing judge in the present case, the respondent drove at a speed estimated at between 100 and 130 kms. an hour against a red traffic light in a zone where the lawful speed was restricted to 60 kms. an hour. The victim, a young woman crossing at the traffic light while walking her dog, suffered injuries from which she instantly died. Long skid marks led to the point of impact. The respondent fled. He tore the wires from the base of the steering wheel and smashed a side window in order to create an impression that someone had broken into the car, then left it at a railway station, travelled home by train and taxi and went to bed. Later he reported the car stolen. Some days later again he gave himself up to the police. The respondent ultimately pleaded guilty to three offences arising out of that incident: culpable driving causing death, failing to stop after an accident and failing to render assistance after an accident. Pending his arraignment for those offences he was granted bail. While on bail the respondent committed a number of further offences associated with another motor accident he had had: driving a motor car while having a blood alcohol concentration exceeding .05 per cent, being an unlicensed driver, failing to stop after the accident, three counts of assault (apparently upon persons who had pursued and tried to reason with him after the accident), resisting a member of the police force in the lawful execution of duty and one count of damaging property. For reasons unexplained the respondent was not dealt with until 25 March 1994 for the charges arising out of the fatal accident that occurred in August 1990. He was then sentenced to imprisonment for three and-a-half years on the count of culpable driving and for six months on each of the other charges, there being a total effective sentence of four years with a minimum term of two and-a-half years; all his licences to drive a motor vehicle were cancelled and he was disqualified from obtaining another licence for five years. It was not until after his conviction and sentence for the 1990 offences that the respondent was dealt with for the offences he had committed while on bail, which produced fines and further licence disqualification.
The respondent was released on parole in about January 1997 and obtained work as a ceramic tiler. While in prison he had met Lisa-Jane Swainston-Dwyer, who was evidently there as a TAFE instructor in cookery. She was a married woman aged 29 years with a son but separated from her husband, and upon the respondent's release he took up with her as his girlfriend. He lived at a unit in Ringwood with one of his brothers, Brett Anthony Scholes, and - intermittently it seems - with Mrs Swainston- Dwyer. On Saturday, 10 May 1998, in the afternoon, the respondent consumed 6 or 7 stubbies of full-strength beer and some spirits. He was with his brother, who evidently on that day smoked some cannabis, but it does not appear whether the respondent joined him in that. During the afternoon Brett Scholes borrowed from a garage near their father's house at Croydon (apparently without consulting him) a yellow 1974 model Corolla coupe that their father had on approval or loan from a secondhand dealer preparatory to deciding whether to buy it. The Corolla was brought to the Ringwood unit and, at about 6.45 p.m., the two brothers, Mrs Swainston-Dwyer and her son, Thomas, aged about four, set out to travel in it to a drive-in cinema at Coburg. She sat in the front passenger seat, Brett Scholes in the seat immediately behind her and Thomas, in pyjamas and dressing gown, in a booster seat immediately behind the respondent, who drove. It does not very satisfactorily appear from the material why one of the other two adults, each of whom was licensed, did not drive instead of the respondent who, because of his disqualification, was not. It was asserted by counsel for the respondent on the plea that Brett Scholes was "pretty stoned" - whether as a result of ingesting cannabis or alcohol, or both, was left unclear - but there is no suggestion that Mrs Swainston-Dwyer was not capable of driving on the night.
At about 7 p.m. the respondent was driving the Corolla in a westerly direction along Stintons Road, Park Orchards, an outer-eastern suburb in what might fairly be called a semi-rural area. Traffic was reasonably light and the weather was clear, fine and dry. Darkness had fallen. The vehicle went out of control at high speed and collided on its wrong side of the road with an on-coming Toyota Landcruiser four- wheeled drive vehicle, about 70 yards west of the intersection of Stintons Road and Nioka Court, with the tragic consequences that gave rise to the offences now under consideration.
The learned judge carefully described the happening of the accident in some detail. Although I need not do more than summarise the salient features, I shall respectfully adopt in full his Honour's description of the terrain:
"Stintons Road is winding and undulating. In the vicinity of the collision, it is about six metres of bitumen, with gravel edges and table drains. The southern edge descends sharply into the table drain. There is about one and a half metres of edge and table drain between the bitumen edge and a sharp 2-3 metre high embankment. The drain is open, except at Nioka Court, where it runs underground. Nioka Court enters Stintons Road at the apex of a gradual curve preceded and succeeded by short straight sections of road. The western section is followed by a moderate bend to the south; the eastern section is followed by a similar bend to the north. The road between these bends follows a significant downhill gradient from east to west. There is a broken white line in the centre of the road and continuous lines marking both edges of the bitumen.
The road is easily negotiated at the relevant speed limit of 70 km per hour, but there is not much room for a vehicle which has got into trouble and there is plenty of scope for a careless driver to get into trouble."
I add to his Honour's account of the geography only the information that the bitumen surface of the road was, according to one witness, in "very good condition" and, according to another, "generally in reasonable condition", and that there was street lighting at Nioka Court, which enters Stintons Road from the south, but that otherwise the artificial lighting was indifferent save for that provided by the vehicles themselves.
As the respondent, travelling in the Corolla westerly and downhill along Stintons Road, approached the intersection with Nioka Court he overtook another car travelling in the same direction driven by Mr A.F. Devonport-Smee. This required the Corolla to cross wholly to the eastbound (northern) of the two lanes. Devonport-Smee, who was driving at about the legal limit of 70 kms. an hour, estimated the respondent's speed at 85-90 kms. an hour. A passenger in Devonport-Smee's car - Mr K.J. Risely, a 50-year-old towing service proprietor and himself an experienced driver - described the Corolla's course thus -
"The main thing that drew my attention to this vehicle was the noise the engine was making. ... It was like it was racing, dropping down a gear and revving the engine. It struck me as a driving manoeuvre you would expect to see on the race track, not a road."
Having overtaken the other vehicle, the respondent moved the Corolla sharply back to the southern side of Stinsons Road by which time, as the judge observed, he must have been entering what was for him the right hand curve with its apex at Nioka Court. Mr W.R. Randall, approaching in the Toyota Landcruiser from the opposite direction, first observed the Corolla at about this point, travelling at a speed he thought was too fast and drifting towards the southern gravel edge. According to Randall the Corolla appeared to correct its line of travel but suddenly went out of control, its rear end slewing to its left. This move may have either caused or been caused by contact of the rear wheels with the gravel. According to Devonport-Smee, who observed the incident from a distance of about 80 to 100 metres to the East, the Corolla rotated clockwise and swerved across the road at an angle of about 45 degrees to its direction of travel and thus to the point of collision in the east-bound carriageway. By the time of the collision Randall had slowed his vehicle to about 40 kms. an hour by braking hard and had moved it somewhat to his right with a view to passing to the passenger-side of the Corolla. As it was, the left front of the Landcruiser - notably the bull-bar - and most of the passenger side of the Corolla collided with great force. A highly qualified expert in accident appreciation estimated that at the intersection of Nioka Court, where yaw marks from the Corolla's tyres first appeared on the surface of Stinsons Road, it was travelling at a speed between 90 and 107 kms. per hour.
While the damage to the Landcruiser was relatively minor and its occupants were uninjured, the Corolla was rendered fit only for scrap. The near-side of the passenger compartment was stove in - virtually demolished, so that the single near-side door could be manually removed by rescuers - but the driver's side was undamaged. Both of the passengers seated on the near-side of the vehicle received fatal injuries. Mrs Swainston-Dwyer's major injury was a massive compound fracture of the left zygoma, probably inflicted by the corner of the Landcruiser's bull-bar, on which her blood was found. She died within a few minutes. Brett Scholes was taken by air ambulance to the Alfred Hospital where he died a few hours after the accident.
Immediately after the collision Randall reversed his vehicle about five metres away from the Corolla and Devonport-Smee brought his to a stop six to eight metres from it. The latter, on walking over to the damaged near-side of the Corolla, saw Mrs Swainston-Dwyer sitting in the front passenger seat, obviously very badly injured and bleeding copiously from her head wound. She was in extremis. Brett Scholes appeared to be trapped in the rear passenger seat and very badly injured, slumped over against the child seated behind the driver's seat who, not seriously hurt, was the only occupant making any noise. The respondent had left the Corolla through the driver's door, as Devonport-Smee observed just before he stopped his own car. Devonport- Smee, Risely and Mr D.J. Dawson, the last being another motorist who had by then arrived at the scene, all saw the respondent man-handle Mrs Swainston-Dwyer. He leant into the Corolla from the driver's side and dragged her towards him bodily, forcefully and roughly, by her arm, leg and head, using both hands around her neck and jaw, from the passenger's side bucket seat, and arranged her in the driver's bucket seat. In doing so he became covered in her blood. Devonport-Smee said in his statement -
"It was only when I saw him arranging her body into the driver's seat that I realised that he was not trying to help her, he was trying to make it look like she had been driving the car at the time of the accident. This had all happened very quickly after the accident. From the time I saw him first grab her arm to the time he got her over into the driver's seat, only about 10 to 15 seconds went by. He was really in a hurry and he was very rough with her. All during this the little boy was crying ...".
Statements of other witnesses corroborated this account, no part of which was ever challenged by or on behalf of the respondent. Having acted in that way, the respondent volunteered to several bystanders at the scene of the accident the information that his girlfriend had been driving the Corolla. According to one of them he said, after someone asked whether he had been drinking: "My brother and I have had a few drinks and that's why she was driving". There was evidence that after the arrival of police the respondent, having asked to be taken to speak with the small boy, Thomas, said to him words to the effect that "Mummy had a bad crash", to which the child replied to the effect "No, you had the crash". In reply to a question from a police officer at the scene asking for his account of the accident the respondent said -
"... I just can't believe this. I've just got out of Pentridge for Culpable Drive. I'm still on parole. Lisa just seemed to take the bend too fast and lost control. It all happened in slow motion. I couldn't do anything to help her. How is my brother?"
Upon being interviewed at the Doncaster police station later on 10 May, the respondent continued to assert that Mrs Swainston-Dwyer had been driving the Corolla; and he positively denied both that he had driven the car before the accident and had moved her after it. He claimed to have been in the front passenger seat. A test at about 9.15 p.m. revealed that he had a blood alcohol concentration of .078 per cent.
The respondent was eventually allowed to go home on 10 May but was re- interviewed by police on 17 May. He then answered "No comment" to a series of questions he was asked about his part in the happening of the collision, after which he was arrested and charged with the offences on which he was later arraigned and some other offences (including that of attempting to pervert the course of justice) which were ultimately withdrawn.
The respondent's pretence that Mrs Swainston-Dwyer had been driving the Corolla was of course never sustainable, as his plea of guilty ultimately acknowledged. Even leaving aside the observations of the various witnesses at the scene who saw the front-seat substitution, and the riposte of the boy Thomas, Mrs Swainston-Dwyer could almost certainly not have suffered the massive injury to the left side of her head had she not been seated in the front near-side passenger's seat; and the respondent could not have escaped injury (as he substantially did) had he occupied that seat.
The respondent offered the police no account of or explanation for the accident, save for the falsehoods to which I have referred, and he gave no evidence on his plea. His father, Mr K.F.D. Scholes, gave some evidence on the plea that the accelerator of the Corolla tended to get "stuck" when pressed flat to the floor, that "the shockers were spongy" and that the respondent had told him some days after the accident that "he couldn't stop the car". According to the learned judge's sentencing remarks there was also some evidence (presumably in depositions) from a mechanic accustomed to servicing the vehicle that the accelerator cable required regular lubrication in order to induce it to return fully to the idle position. The judge found himself unable to accept the evidence of Scholes senior about the accelerator and regarded the mechanic's evidence as unrelated to the problem which Scholes purported to describe. These findings were not challenged for the respondent before us. His Honour did accept that the shock absorbers of the Corolla were worn and may have reduced to some extent the finer capacity to control the vehicle; but he did not accept that such a failure of fine control of the vehicle was the cause of the collision.
The judge found that the respondent had determined to overtake another vehicle on a section of the road in which, in order to do so, he had to travel both significantly faster than the speed limit and, having regard to the width of the road and the table drain, at a speed faster than any sensible driver would have thought safe. His Honour observed, with justification as I should respectfully think, that "The manoeuvre bears all the hallmarks of an impatient driver arrogantly disregardful of ordinary standards of safety on the road." Towards the end of his sentencing remarks the learned judge also characterised the respondent's driving as inherently dangerous and undertaken with gross negligence, but he was disposed not to find it to be "high in the scale of offences of culpable driving". His Honour went on to explain his classification thus -
"All too often, upon our roads, has this kind of collision occurred through momentary inattention and incompetent lack of control. The seriously incriminating factors in the prisoner's case were his arrogant decision to overtake, the speed necessary to perform that manoeuvre and its inherent dangers and his state of mild intoxication. In the result, one has an offence in the median scale of such offences, aggravated by its presence in a history of similar disregard of the safety of others and mitigated by a plea of guilty and the awareness that he has killed others who were close to him."

With due respect to the very experienced judge, I have some difficulty in accepting the classification of the respondent's driving as not "high in the scale of offences of culpable driving". It may be accepted that the kind of collision in which the respondent was concerned - one between two motor vehicles travelling in opposing directions - is not uncommon, and that it not uncommonly occurs through momentary inattention and lack of control arising from incompetence. It might be thought that the respondent did lose control of the Corolla because of his incompetence; but there is no indication that the collision was attributable to his momentary inattention: rather, it appears to have been the product of a piece of calculatedly furious driving. Viewing it in that way, and merely as an example of appalling motor car-driving, I should be loath to say that it was no more than in the mid-range of gravity. Moreover, if the learned judge intended to classify this example of the offence of culpable driving as one "in the median scale", by reference simply to the manner of the driving, before applying to it all relevant aggravating and mitigating circumstances, I respectfully reject the validity of the classification. The manner of the driving does not necessarily govern the seriousness of the offence.
There was much debate before us as to whether and to what extent the respondent's prior convictions and his conduct immediately after the accident on 10 May 1997 were properly to be considered upon the question of sentence. It was contended for the respondent that he did not fall to be sentenced on his record, for he had already received punishment for his previous convictions. That was unquestionably so. The Crown submitted, however, that in a case like this the previous criminal history of the respondent was of peculiar relevance for sentencing purposes and that the judge gave insufficient attention to it. As to the respondent's conduct immediately after the accident the judge, though stigmatising it as disgraceful, observed that there was no evidence that it contributed to Mrs Swainston-Dwyer's death. His Honour concluded that, in the absence of such evidence, that conduct did not "form such part of the circumstances of the offence of culpable driving as to be aggravatory of it". The learned judge decided that he was therefore not entitled to take the respondent's post-accident conduct into account for the purpose of imposing sentence for that offence. The appellant contended that that decision was erroneous while the respondent espoused it. Some guidance in the dispute is afforded by a consideration of the nature and raison d'être of the offence which s.318 of the Crimes Act creates, as revealed by its history.
Before the enactment of the Crimes (Driving Offences) Act 1967 there was no criminal offence of causing death by the culpable driving of a motor vehicle. In those days an unintending killer by dangerous driving, if not convicted of manslaughter, was unlikely to be awarded a substantial custodial sentence for any other offence to which his dangerous driving might have given rise. Some sentencing judges then took the view that to cause a death by dangerous driving not amounting to manslaughter did not make the dangerous driving any more or less dangerous; and that it was wrong for a court to measure a man's culpability by the amount of damage he did: see the note by Professor A.L. Goodhart in (1964) 80 L.Q.R. 19-20. For a series of reasons those views are not now open to a sentencing judge. One reason is that a proliferation of motor vehicles and of anti-social conduct by their drivers and of consequential road carnage led to the establishment, by the 1967 legislation I have mentioned, of the offence of causing death by culpable driving: s.318 of the Crimes Act. The enactment was neither more nor less than a recognition of a social necessity to seek to deter, by criminal sanction, unnecessary and avoidable killings by motor vehicle drivers. It used to be argued that the idea of deterrence was not applicable to wrongs - for example incidents of negligence - because, since the wrongdoer did not intend to commit the wrong, neither he nor others could be deterred from it for the future. To that argument Professor Goodhart, in his short note in the Law Quarterly Review, supra, contended that -
"The answer is that most negligence is due, not to absence of mind, but to insufficient care, and that the degree of care can be consciously increased by means of the penal law."
That simple contention prevailed in Victoria and elsewhere and it is a matter of history that initially, in 1967, the maximum penal sanction for an infringement of s.318(1) was seven years' imprisonment, with the possible addition of a fine up to $1,000. The legislation was regarded as "successful" in the sense that convictions for offences of causing death by driving a motor vehicle very substantially increased; and over the years, as the offence of culpable driving became understood, a high proportion of persons charged with the offence pleaded guilty: Victorian Law Reform Commission Report No. 45, Death Caused by Dangerous Driving (March 1992); Parliamentary Debates (Hansard), vol. 407, 1643-4 (21 May 1992). By comparison, as is well known, convictions before 1967 for manslaughter by a motorist were proportionately few. The effect of s.318, in association with other legislation and initiatives, is said to have brought a welcome but nevertheless insufficient reduction in the road toll: Hansard, ibid. By the Sentencing Act 1991 the maximum penalty for an infringement of s.318(1) was increased to 10 years' imprisonment, with a possible fine of $120,000; and by the same legislation the maximum penalty for manslaughter was increased to 15 years' imprisonment with or without a fine: Crimes Act 1958, s.5. Then, within a year, by the Crimes (Culpable Driving) Act 1992 there was an increase of the maximum term of imprisonment for a breach of s.318 to the same as that for manslaughter - 15 years - and of the maximum fine to $180,000. The justification claimed for equating the maximum term of imprisonment for the offence of manslaughter and an offence under s.318(1) is unclear. It was in the teeth of the recommendations of the Victorian Law Reform Commission Report No. 45. The Attorney-General, Mr J.H. Kennan, in his second- reading speech in the Legislative Assembly, is recorded in Hansard as follows -
"The argument that the offence of culpable driving has been successful because it has given juries an understanding of the type of offence people may be convicted of is compelling and is a factor in the Government's decision to increase the maximum penalty so that it is the same as for manslaughter.
...
... the Government has decided [scil. contrary to the V.L.R.C. Report No. 45] to retain the existing offence but to increase the maximum penalty to 15 years, the same penalty as for manslaughter. Sections 318(2)(A) and (B) of the Crimes Act are substantially based on the definitions of reckless murder [sic] and gross negligence manslaughter. Drivers who meet that level of culpability should be subject to the same maximum penalty as for manslaughter."
The logic of the last sentence might be thought to be elusive; and the reference to "reckless murder" may have been a slip; but if it was a slip it was repeated in the second-reading speech in the Legislative Council (Hansard, vol. 406, p.657) although, as reported, that speech, by the Minister for Health, was in other respects markedly different from the Attorney-General's second-reading speech in the Assembly. If it was not a slip, the understanding upon which the Bill was debated - and received bi- partisan support - was perhaps ill-informed or at best inaccurate. However all that may be, the equation of the maximum custodial penalties for manslaughter and a breach of s.318(1) was clearly by design: when by the Sentencing and Other Acts Amendment Act 1997 (which commenced on 1 September 1997 and is therefore not applicable in the present case) the maximum term of imprisonment for manslaughter was increased to 20 years, the same maximum term was specified for a breach of s.318(1), and the maximum fine for the breach was increased to $240,000.
Although there was, following the 1967 legislation which introduced the new s.318, an increase in the proportion of convictions of those responsible for causing death by driving, the question of sentence under that provision has always produced particular difficulty. In R. v. Baker, unreported, 10 April 1980, Lush, J., speaking in effect for the Court of Criminal Appeal, observed -
"The definition of the offence constituted by s.318 makes the task of assessing an individual offence or sentence one which has its own difficulties. The difficulties which I have in mind arise from the fact that the offence does not depend on the subjective intention or the subjective attitude of the alleged offender. Culpability depends on objective fact regardless of the state of mind of the offender. Relevantly to this charge, it may be found in conduct which is negligent in the sense defined in s.318(2)(b), that is a failure unjustifiably and to a gross degree to observe the proper standard of care. Culpability in sub-paragraph (c) of that sub- section may also lie in driving while under the influence of alcohol to such an extent as to be incapable of having proper control: again a matter to be objectively assessed. It follows that there can be cases in which the offence created by the section is committed in circumstances in which it must be reckoned a gross offence but in which it is impossible to detect any of the quality usually described as moral turpitude in the offender."
The difficulty of which Lush, J. spoke 18 years ago persists: indeed, I suspect that it has been increased by the legislature's equation of the maximum custodial sentence for the offence with that for manslaughter. As recently as 30 July this year, in R. v. Taafe (unreported), it was observed in this Court that "Notwithstanding that there are numerous cases dealing with culpable driving, it is not easy to establish any clear guidelines for sentence in cases of this nature": per Charles, J.A., at 24-5. Despite the substantial increases in the prescribed maximum custodial penalty over the last seven years (from seven years' imprisonment to ten, then to 15 and now to 20 years' imprisonment) it remains true of the offence of causing death by culpable driving, as Young, C.J. remarked in R. v. Bortolazzo (unreported, C.C.A., 3 December 1986), that -
"... like nearly all offences, the circumstances in which it is committed vary enormously from one case to the next. It should not be assumed that there is no case of culpable driving causing death which cannot be dealt with by a non-custodial sentence."
While a custodial sentence has often been imposed for a breach of s.318(1), the task of sentencing for it remains, it is hardly necessary to say, a most anxious and exacting one. It is especially so in the case, for example, of a clear and shocking example of appalling driving causing the death of an innocent third party where there are nevertheless strong mitigating circumstances. Often the deceased is an innocent stranger; but often, too, a close relation or friend whose death is itself a punishment to the offender; and very often the offender is young, exuberant, inexperienced and to some extent intoxicated by alcohol or some other drug, but a first offender who has - or had - a bright future. Here the notorious "instinctive synthesis" of the sentencing technique, spoken of in R. v. Williscroft [1975] V.R. 292, at 300, must play a pre-eminent role. The learned sentencing judge in this case understandably found his sentencing task in that respect to be one of difficulty, as he explained in his very frank and useful report to this Court made pursuant to r.2.27 of Chapter VI of the Rules of Court.
Negligent driving (as defined in s.s.(2)(b) of s.318 of the Crimes Act) is of course a necessary ingredient of the offences against s.s.(1) of which the respondent was accused. The nature and the degree of departure of the accused from an acceptable standard of driving behaviour, the extent of the accused's contribution to the cause of death of the deceased and the extent to which the behaviour was unjustified are all potentially relevant. The gravamen of the offence - the ingredient that bears most heavily on a person accused of it - is, however, the driving in association with the taking of human life: cf. R. v. MacIntyre (1988) 38 A.Crim.R. 135, 139, per Lee, C.J. at C.L. In R. v. Slattery (1996) 90 A. Crim. R. 519, at 522 Hunt, C.J. at C.L. emphasised that ingredient in the crime of dangerous driving occasioning death by saying "So significant is the loss of life that, where there is more than one human life taken, it is not obligatory for the judge to impose concurrent sentences". The same view has been taken in Victoria: R. v. Penn, C.C.A., unreported, 9 May 1994. The offence created by s.318 is essentially one against public safety: R. v. Woolnough, unreported, Court of Criminal Appeal, 4 June 1981, per McGarvie, J. at 13; R. v. Thompson (1975) 11 S.A.S.R. 217, 222. Given the genesis of the offence, and its purpose to deter by criminal sanction unnecessary and avoidable killing by motor vehicle drivers, the attitude of a driver to his infringement of s.318 may be distinctly relevant to an assessment of the relative seriousness of the infringement. Hence, although the offence of causing death by culpably driving negligently contrary to s.318(1) requires no specific intent, the attitude of the accused to the episode of the driving and to the associated death, and to the law which places a value on human life may, in my opinion, all be relevant to an appraisal of the individual offence to which the combination of the driving and the death have given rise.
The respondent, whom it fell to the learned judge to sentence on 27 March, had then already been convicted of and sentenced for an offence of causing death by culpable driving. It cannot be supposed that, having pleaded guilty to the 1990 offence, having been sentenced for it and having been released on parole, he had not known exactly why he was sentenced to imprisonment and what was required of him after his release in his attitude to the law. In this case the respondent's attitude to his infringement was potentially relevant at two levels: his attitude on 10 May 1997 to his driving a motor car up to the time of the accident and his attitude immediately after that accident to its result.
The respondent's very act of driving on 10 May, while he was at large on parole in relation to his prior sentence for an infringement of s.318, and while he was unlicensed and shortly after he had been drinking alcohol, is properly to be regarded in the light of the prior conviction. To use the words of the majority judgment in Veen v. The Queen (No. 2) (1988) 164 C.L.R. 465, at 477-8, the antecedent criminal history is relevant "to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law". See also Crimes Act 1958, s.37B(1). The learned judge did characterise the respondent's history of offending as revealing "a contumelious and persistent disregard of the law, particularly the law defining the rights and obligations of users of the highway". His Honour said that the respondent's criminal history was aggravatory of the offences committed on 10 March but did not indicate in his sentencing remarks the particular effect that he was disposed to give to the aggravation for the purpose of sentencing. Some light is thrown on this, perhaps, by the judge's report to this Court in which he said -
"... whilst it was appropriate to consider the commission of the offence as aggravated by the fact that it was a second offence of the same crime, and further aggravated by the fact that it was committed on parole, I considered that I needed to be careful to avoid sentencing the prisoner in effect for his prior conviction or for his breach of parole."
It appears to me that the respondent's second offence against s.318, when examined in the light of the first, bears on all the matters exemplified by Charles, J.A. in R. v. O'Brien [1997] 2 V.R. 714, at 718, in reliance on the majority judgment in Veen, ibid: moral culpability, prospects of rehabilitation, dangerous propensity, the community's need for protection and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence. The learned judge did not expressly advert in the present case to many of these factors. It is therefore not easy to discern what weight, if any, he gave to them, but of course he is not to be criticised for that. The matter of the respondent's reform was referred to by his Honour, who found reason to believe that the prospects of it were good and that they should be given scope. There was, however, very little in the plea material to support that view save the respondent's comparative youth. It might be thought that such material as there was tended the other way. The evidence of Dr L.A. Walton, a consultant psychiatrist who was called by counsel for the respondent on the plea, was that the respondent does have an opportunity for ongoing education within the prison but that he has refused it "... partly because of the connection with his deceased girlfriend and that it is a painful reminder for him on the one hand and also he doesn't wish to embarrass her friends and colleagues by his presence". That is not to say, I suppose, that the respondent will not ultimately change his mind on the question; and in any event his Honour may have said what he did about the prospects of reform only in order to justify his proper rejection of the respondent's request, made through his counsel, that he receive a sentence not subject to parole. Whether that is so or not, it seems to me doubtful that the several other sentencing considerations that are raised by the respondent's criminal history are properly reflected in the sentence. It not infrequently happens that a bad episode of culpable driving causes more than one death. In such a case a further dimension is added to the sentencing difficulty in deciding whether or not sentences should be concurrent: e.g., R. v. Woolnough, supra; R. v.Penn, supra; and cf. R. v. Daley [1984] 1 W.L.R. 1047, at 1055-6; R. v. Wilkins (1988) 38 A.Crim.R. 445, at 449; R. v. Pettipher (1989) 11 Cr. App. R. (S) 321. It must be said, however, that a second offence of culpable driving by negligence, separated from the first by a substantial custodial sentence, appears to be exceptional: we were referred to no other example. I should assume that it is exceptional largely because killing a human being by culpably negligent driving, and being sent to prison for it, should be, to anyone of otherwise normal susceptibility, an experience sufficiently harrowing and chastening to deter repetition: the community expectation should be that a person who commits that offence, and is sternly dealt with for it, will learn a lesson to last a lifetime. That the respondent did not learn such a lesson - or if he did was unable to apply it - goes far, I should think, both to demonstrate his increased and very high moral culpability for his second offence and to diminish his prospects of rehabilitation, to mention only two of the catalogue of matters to which the majority judgment in Veen and Charles, J.A. in O'Brien refer in the passages I have mentioned.
In his report to the court the learned sentencing judge said -
"... it also seemed to me that some consistency of sentence ought to be maintained between that imposed for the Respondent's prior offence of culpable driving and this one. The prior offence apparently involved driving at high speed through a red light and killing a pedestrian. That conduct, on its face, seemed to me to involve the kind of wilful disregard which was absent from this offence. This consideration of consistency needed, I thought, to be weighed in the same scales as those holding the Respondent's prior conviction and breach of parole. A greater sentence could be justified on these latter grounds but not upon a comparison of the offences."
This passage appears again, by reference to the manner of driving, unwarrantably to under-value the offences of 10 May and to overlook the increased moral culpability for the offences by reference to matters other than the manner of driving.

The use to be made of the respondent's conduct immediately after the accident, both at the scene and at the Doncaster police station, as an indication of his attitude to his indictable offences and their consequences, is in my opinion not essentially different from the use to be made of his relevant pre-accident conduct, including his criminal history. It will be recalled that the learned judge regarded himself as disentitled, in the absence of evidence that the manhandling of Mrs Swainston-Dwyer contributed to her death, to take it into account for the purpose of sentencing. Nevertheless it is not entirely clear that his Honour did disregard it altogether for, in the course of argument, he suggested that the conduct could point to "a failure of remorse". The appellant submitted that, even so, the respondent's post-accident conduct carries a wider signification. Clearly enough the moving of Mrs Swainston-Dwyer from one front seat in the Corolla to the other was not an ingredient of the offence charged under s.318: it was not on any view of it, I should think, part of the driving of the Corolla. Even, therefore, had there been evidence that the manhandling had contributed to her death, I do not see how it could have been treated as part of the circumstances of the commission of the offence. It does not follow, however, that the learned judge was not entitled to take that and the respondent's subsequent conduct into account for the purpose of sentence or that, if he did take it into account, he was constrained to refer to it only on the matter of remorse. The conduct in question was, in my opinion useful at least to illuminate the respondent's moral culpability for the offence of causing the death of Mrs Swainston-Dwyer by negligently culpable driving. It did so just as, for example, the respondent's act of getting into the Corolla and driving it showed an indifference to the law and a contumelious infraction of it. For the respondent it was submitted that such a use of his conduct in the sentencing process would be impermissible because it would be tantamount to sentencing him for conduct constituting a separate offence of which he had not been convicted, namely attempting to pervert the course of justice. He had in fact been charged with two counts of that offence but they were withdrawn. The decision of this Court in R. v. Newman & Turnbull [1997] 1 V.R. 146 was cited in support of the submission.
It is trite that, generally speaking, a sentence imposed on an offender should take account of all the circumstances of the offence: e.g. R. v. De Simoni (1981) 147 C.L.R. 383, at 389, per Gibbs, C.J. Having recognised the general principle, the learned Chief Justice went on to say that it is subject to a more fundamental and important principle, that no-one should be punished for an offence of which he has not been convicted. His Honour went on to define the combined effect of the two principles: "... a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence". In R. v. Medcraft (1992) 60 A.Crim.R. 181, at 185, the Victorian Court of Criminal Appeal explained that by "a more serious offence" Gibbs, C.J. in that dictum had meant a different and more serious offence than that for which the prisoner is being sentenced. Medcraft is one of a number of cases, of which R. v. Newman & Turnbull is a striking recent example, in which the courts of this State have given effect to what is really a rule deriving from the combined effect of the two principles that were noticed by Gibbs, C.J. The offence of attempting to pervert the course of justice - a misdemeanour at common law - is no doubt a "different offence", for the purpose of the rule in question, than an offence under s.318 of the Crimes Act; and it may very well fall to be classified for that purpose as a "more serious offence" than an offence under s.318: until the insertion of a new s.320 of the Crimes Act 1958 by s.56 of the Sentencing and Other Acts (Amendment) Act 1997 the punishment for the common law offence of attempting to pervert the course of justice was not fixed and was unlimited. By reason of that provision it is now fixed at a maximum of 25 years: but see s.321B(1)(b). Whether or not the common law offence is to be regarded as "more serious" in a relevant sense, it would hardly be fair to take account of uncharged conduct amounting to that offence when sentencing for an offence against s.318(1): cf. R. v. Teremoana (1990) 54 S.A.S.R. 30, at 36-8, per Cox, J., quoted with approval and applied in R. v. Medcraft, supra, at 185-8. If, therefore, the respondent's post-accident conduct would have warranted a conviction for the common law offence, I should be prepared to say that the rule exemplified by R. v. Newman & Turnbull ought to apply. The short answer to the point relied on for the respondent, however, as I see it, is that his post-accident conduct would not have warranted a conviction for the offence of attempting to pervert the course of justice. To reiterate, the conduct in question consisted of the respondent's moving the moribund Mrs Swainston-Dwyer from the front passenger's seat to the driver's seat of the Corolla with a view to making her out to have been the driver; volunteering to bystanders and implying to the child, Thomas, that she had been the driver; and later on the same night making false statements to the same effect to the police. Investigations by police officers of actual or suspected crimes are not part of "the course of justice" for the purpose of the common law crime concerned with perverting the course of justice. The High Court unanimously so decided in R. v. Rogerson (1992) 174 C.L.R. 268. As Mason, J. put it at 276, "... police investigations do not themselves form part of the course of justice. The course of justice begins with the filing or issue of process invoking the jurisdiction of a court or judicial tribunal or the taking of a step that marks the commencement of criminal proceedings": see also at 280 per Brennan and Toohey, JJ., 293-4 per Deane, J. and 302 per McHugh, J. It would appear that a mere false statement to a police officer in the course of an investigation of an actual or suspected crime cannot, without more, constitute the offence of attempting to pervert the course of justice: Rogerson, at 299, per McHugh, J. An act which has a tendency to deflect police from prosecuting an offence, if done with intent to achieve that result, can amount to the offence: Rogerson, at 278, per Mason, C.J. It is fanciful to suppose, in the circumstances of this case, that any of the respondent's post-accident conduct could have had that tendency: it amounted, I should think, to no more than a vain and pathetic attempt by the respondent to avoid reality. The post-accident conduct was, however, eloquent of the respondent's attitude to his offences and, inasmuch as he persisted in attributing the driving to Mrs Swainston-Dwyer, of his attitude to her death. The story he told amounted to an assertion that she had caused her own demise. This, in my opinion, went beyond an indication of a want of remorse: in the sentencing synthesis it bore on most of the matters to which the respondent's pre- accident driving and criminal history were relevant.
The matters of mitigation on which the respondent could rely were sparse. His plea of guilty fell to be given its due weight, as did his comparative youth. There were, so far as I can see, no other matters personal to him on which reliance was placed in support of the plea save for the wretched predicament in which his conduct had placed him. His father spoke of the respondent's deep-seated self-loathing following the death of his two passengers. Dr Walton deposed that the respondent had been diagnosed as having a reactive depression which was continuing, producing concern in the gaol of his risk of suicide. The only other relevant comment by Dr Walton that I can detect was that, on two occasions when he had seen the respondent, he made "statements accompanied by obvious distress which seemed to indicate remorse". Apart from this, the evidence of Dr Walton was by way of being remarkable for what it did not say rather than for what it did. A young man in such an abject state excites concern and perhaps a degree of pity but, as against that, there has been no word of explanation for the fact of the respondent's driving on 10 May last year, let alone the manner of it. It is therefore very difficult to find circumstances of mitigation apart from those I have mentioned.
The sentences for each of the two offences against s.318(1), to be served concurrently, were in my opinion inadequate. I do not need to say that they were manifestly inadequate, as the appellant contends, for I have pointed to a number of matters which in my opinion reveal sentencing error and justify the setting aside of the sentences and re-sentencing by this Court. I propose that that be done. I am mindful, as the learned judge evidently was, that the weight to be given to the prior criminal history cannot be allowed to lead to the imposition of a penalty disproportionate to the instant offences. The offences against s.318 were, however, heinous to a very high degree, especially that associated with the rebarbative conduct towards Mrs Swainston- Dwyer. The sharp increases in the maximum custodial penalty prescribed by the Parliament for breach of s.318 - 15 years' imprisonment at the relevant time - must be taken by the courts, despite the second-reading speeches to which I have referred, as reflecting community attitudes to the seriousness of the offence. The courts are required to give appropriate recognition to the expressed legislative intention: R. v. Slattery, supra, at 524. I do not consider that the sentences imposed in the County Court gave such recognition. Because of the status of this proceeding as a Crown appeal, due allowance is to be made as a matter of humanity for the respondent's now being re- submitted to the ordeal of sentencing. But for that, I would regard him as deserving of an appreciably higher sentence than that which I now propose. In the circumstances I would not disagree with the learned judge that the sentences for the two offences against s.318 should be concurrently served. The sentences should, however, recognise that the respondent on 10 May 1997 caused two deaths - not one - unwarrantably, needlessly, selfishly and without explanation. I propose that for each of the offences of causing death by culpably negligent driving the respondent serve a term of imprisonment of eight years. I would reimpose the sentences of three months' and one month's imprisonment respectively for the two summary offences, but make no order for cumulation. The total effective sentence that I propose is therefore of eight years' imprisonment. I propose that the respondent serve six years' imprisonment before being eligible for release on parole.

CHARLES, J. A.:

Having had the advantage of reading the reasons for judgment of Tadgell, J.A., I agree that the Director's appeal should be allowed, and the respondent re-sentenced, in accordance with the terms proposed, and for the reasons given, by his Honour.

BUCHANAN, J. A.:

I agree that the appeal should be allowed for the reasons stated by Tadgell, J.A., and that the respondent be re-sentenced as his Honour proposes.

[1998] VSCA 17

21 August 1998