R. v. Taylor
[1999] VSCA 206
•30 November 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 134 of 1999
THE QUEEN
v
DAVID STEWART TAYLOR
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JUDGES: BROOKING, PHILLIPS and BUCHANAN, JJ.A. WHERE HELD: MELBOURNE DATE OF HEARING: 30 November 1999 DATE OF JUDGMENT: 30 November 1999 MEDIA NEUTRAL CITATION: [1999] VSCA 206 ---
CRIMINAL LAW – Sentence – Culpable driving – Negligently causing serious injury – Maximum penalty for negligently causing serious injury too low – Total seven years' imprisonment with non-parole period of three-and-a-half years not manifestly excessive.
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APPEARANCES: Counsel Solicitors For the Crown Ms M. Sexton P.C. Wood, Solicitor for
Public ProsecutionsFor the Applicant Mr O.P. Holdenson, Q.C. Kenna Croxford & Co. BROOKING, J.A.:
David Stewart Taylor was aged 20 when, on 31 December 1997, he drove a car which collided with three pedestrians at Sorrento, killing one and injuring the other two. He was charged with culpable driving and two counts of negligently causing serious injury, and with the summary offence of refusing to take a breath test. After pleading guilty he was, on 15 June 1999, sentenced to six years' imprisonment for culpable driving (count 1) and to imprisonment for one year and six months respectively on the other driving counts (counts 2 and 3). He was fined $1,000 for the summary offence. The sentence of one year was directed to be served cumulatively upon that of six years, giving a total effective sentence of seven years, and a non-parole period of three-and-a-half years was fixed. He was disqualified from obtaining a driver's licence for five years. The endorsement on the presentment and the quadruplicate incorrectly recorded the disqualification as one for four years. We were told by the Crown that the County Court will be asked to correct this.
Now leave to appeal is sought against the sentences imposed for the indictable offences, the notice alleging that the total effective sentence is manifestly excessive and that no or no sufficient weight was given to the applicant's plea of guilty, the principle of totality, his previous good character and his prospects of rehabilitation.
The maximum penalty for culpable driving was 20 years' imprisonment and that for negligently causing serious injury five years' imprisonment. The judge remarked that the maximum of five years was surprisingly low, echoing, we were told by the Crown what had been said by other members of his court. I agree that the maximum of five years is too low.
The accident took place at about 7.20 p.m. on 31 December 1997 near the corner of Bowen Road and Newton Avenue, Sorrento. The applicant had spent the afternoon with friends in the Portsea area, spending much of the time on a large cabin cruiser, where a good deal of alcohol was drunk. Some time after 6 p.m. a large group left the boat and at the pier separated into smaller groups which went their respective ways. The applicant had the use of his mother's yellow Mazda car and he and three other young men got into it. He had been driving for only about six months and held a probationary driver's licence and so was not allowed to drive a car while he had any alcohol in his blood. The group of four included a "designated driver", who had not been drinking, and he drove the car from the Portsea pier to Constitution Hill Road, Sorrento where, for some reason which was never disclosed, the car was stopped and the applicant took the driver's place. Constitution Hill Road runs out of the main street of Sorrento township, the Continental Hotel being on the corner. It may be regarded as running east and west. Beyond the intersection of Coppin Road it becomes Newton Avenue. Further to the east is Bowen Road which, like Coppin Road, intersects with Newton Avenue and runs down to the beach. Newton Avenue had a bitumen surface of 6.4 metres, which narrowed to 4.4 metres immediately to the east of Bowen Road. The speed limit in Newton Avenue was 60 kilometres per hour. In the area with which we are concerned there were no paved footpaths, merely a nature strip. Constitution Hill Road runs down hill as it reaches Coppin Road and, on the other side of the intersection, Newton Avenue runs down hill and has a right hand bend, after which the road rises to a crest not far from Bowen Road and then runs down hill to Bowen Road and again down hill on the far side of the intersection. At the time of the accident the applicant's yellow Mazda had crossed over Coppin Road into Newton Avenue, negotiated - after a fashion - the right hand bend in Newton Avenue and crossed over Bowen Road. The three pedestrians were struck a short distance to the east of the intersection, on the nature strip on the north side of Newton Avenue.
The applicant refused to answer any questions about the accident and gave no evidence on the plea. His three passengers were regarded by the Crown as unreliable witnesses. In the result there is no account of the accident or the events immediately leading up to it from any occupant of the car. But, as might be expected, there were many people in the general vicinity of the accident, some on foot and some in vehicles, for it was, as I have said, about 7.20 p.m. on New Year's Eve. The weather was fine. The judge accepted the version of how the accident had occurred put forward by the Crown. In the account which follows I draw on the evidence of a number of witnesses, some of whom were on foot and some in cars. They all tell of the frightening speed and course of the Mazda from the time it was seen approaching Coppin Road until the accident occurred a very short time later. Where in my composite account I give impressions rather than estimates, this reflects the evidence of some of the witnesses. A pedestrian who saw the car cross Coppin Road gained the impression that the driver was going as fast as he could. His companion said that the car crossed Coppin Road at about 60 to 70 kilometres per hour, without slowing at all, and then accelerated, and that the engine was revving wildly. There were numerous pedestrians on or near the road and the driver showed no regard for them. As the car negotiated the bend to the right in Newton Avenue it was still accelerating and its back end slipped sideways, evidently because of its excessive speed: there was no other apparent reason. The car disappeared from the view of those two witnesses, but almost immediately afterwards it came into the view of the driver of a car who, having been travelling north, had turned out of Bowen Road into Newton Avenue so as to travel west. He saw the Mazda after it had negotiated with difficulty and danger the bend to the right and then travelled a short distance up hill so as to reach the crest from which Newton Avenue ran down hill to the intersection of Bowen Road. This witness was driving slowly because of the presence of numerous pedestrians. The Mazda came over the crest out of control. The car was travelling sideways and at an angle of 15 degrees to the road. Its front was heading towards the offside rear of his car. He himself was travelling at only about 20 kilometres per hour and braked and pulled heavily to the left. The Mazda pulled to its left and a collision was narrowly averted. The Mazda was still travelling at a frighteningly high speed. In pulling to his left to avoid a collision the Mazda driver appeared to have over-corrected and the car travelled in a left arc through the intersection. The driver of another car, in Bowen Road, described the Mazda as a flash of yellow, as out of control and as travelling at an angle of 10 degrees to the centre line. The driver of another car, again in Bowen Road, described the Mazda as travelling very fast and as becoming airborne as it entered the intersection of Bowen Road and remaining airborne for some distance. According to another witness, the Mazda not only became airborne but did not hit the ground until it reached the nature strip on the far side of the intersection. Police tests were said to show that the Mazda's speed at impact was over 65 kilometres per hour. Yet another witness described the Mazda as entering the intersection of Bowen Road with three quarters of the vehicle on the wrong side of the road.
The judge accepted the Crown case, which was that the Mazda had been out of control from the time it rounded the bend in Newton Avenue until the time of the accident. As the Mazda approached Bowen Road, out of control, two young girls, both aged 18, were walking east along the nature strip on the north side of Newton Avenue. The car struck one of them and then, as the judge said, ploughed on through the grassed area for another few metres, striking an 18-year-old man and an 18-year-old woman who were standing behind the boot of the young woman's car, which was parked on the grass about six metres from Bowen Road and well clear - about one-and-a-half to two metres north - of the bitumen edge of the road.
The applicant was given a preliminary breath test. We do not know what the reading was: the Crown did not rely on it below as evidence of the blood alcohol level. Asked to take a breathalyser test, the applicant replied, "Take it away. I won't blow into that thing. Forget it." He added, "You won't get anything from me." His manner was belligerent. This was not long after his speeding car had struck three pedestrians, throwing them into the air. No doubt it may be said that it was the drink that was responsible for his belligerent manner, but that is two-edged. Too much significance should not be attached to this - and the judge indeed made a clear finding of remorse - but the applicant's early reaction does not seem to have been one of profound concern for the victims. As regards his state of intoxication, he was observed on several occasions at the police station with his head down on the desk, "nodding off". On the plea it was submitted that his youth and inexperience must have affected his ability to appreciate the effect of the alcohol on him as he spent that afternoon drinking. But about 18 months before the accident he had described himself to a psychiatrist as having difficulties "particularly when he was drunk". And about six months after the accident he described himself as drinking very little and as "showing an ability to refuse it". Another psychiatrist, brought in for forensic purposes, said that the applicant had been introduced to alcohol at the age of 17, that there had been "a pattern of weekend intake with friends, not infrequently he becoming intoxicated" and that according to the applicant he routinely avoided driving. The explanation given on the plea of a conviction sustained twelve months before the accident was that he had been drunk at the time. Against this background it was impossible to take the view that what happened on New Year's Eve was the result of an encounter with alcohol by a young man who was not used to it.
The principal victim, an only child, was an 18-year-old student, crushed between the applicant's car and her own and dying a few hours into the new year. The second victim (the subject of count 2) was her boyfriend, of the same age. He too was crushed between the two cars, but he survived, suffering a severe brain injury, compound fractures of the right tibia and fibula and a fractured left ankle. Although he survived, he was close to death. He has never been able to carry on with his apprenticeship as an electrician. He has become virtually unemployable and this will be so for the rest of his days. He cannot engage in the sporting and other activities which made up his life. He cannot remain standing for any substantial time. As the judge said, his whole life, future and independence have been devastated. The third victim, also 18, suffered a head injury, rendering her unconscious, and other injuries. She has apparently made a good physical recovery.
I have said that there was no version of events put before the judge by the applicant. An attempt was made on his behalf on the plea to persuade the judge that, notwithstanding that it was accepted that another vehicle travelling south and passing through the intersection along Bowen Road was being driven with proper care and never presented any danger to the applicant's car, he had mistakenly, because of the effect of alcohol, believed that there was a danger of collision and swerved to his left on entering the intersection to avert what he mistakenly believed was a danger of collision. But the judge rejected this suggestion and accepted the Crown's version of the cause of the accident - that the applicant's car was out of control.
The applicant was 20 at the time of these offences. He had the prior conviction I have mentioned, which the judge rightly disregarded. He had pleaded guilty at the first opportunity - at the committal mention. I need not, I think, summarise the reports from psychiatrists and a psychologist, the testimonials and the oral evidence placed before the judge. They have been discussed in argument. The judge found that there was remorse and also found that the applicant had attempted suicide.
Before us, Mr Holdenson submitted that insufficient weight was given by the judge to a number of matters and especially to the applicant's plea of guilty, his youth, his remorse and his suffering since the accident, his prospects of rehabilitation and the absence of any significant previous convictions. He said that his principal submission was that a total effective sentence of seven years was plainly too long, in view of the early plea of guilty and clear remorse. But the judge was obviously well aware of all the mitigating personal circumstances and took them into account. Mr Holdenson relied on the applicant's youth and submitted that the requirements of general deterrence ought to have been moderated by the youth of the offender and the importance of rehabilitation. But these offences are, unfortunately, often committed by young men. General deterrence must be emphasised. It was argued that the judge ignored the applicant's prospects of rehabilitation in fixing upon the head sentences and had regard to it only in determining the non-parole period. This would be a remarkable error. I see nothing at all to suggest it in the reasons for sentence and the judge's report reinforces the view that the suggested error was not made.
I cannot regard the sentence of six years' imprisonment for culpable driving as manifestly excessive. The available maximum was 20 years and, as has been said in the past, the progressive increase in the maximum shows Parliament's determination to do what it can to cope with death on the roads. This is apparently the first application for leave to appeal against a sentence passed under the regime of the 20- year maximum. The victims here were not passengers who had been willing to travel with an obviously intoxicated driver. They were all of them entirely innocent pedestrians behaving with all proper care, killed or injured by a car that had got out of control while being driven with an entire disregard for the safety of others by an intoxicated driver. The fundamental cause of this accident was liquor, which made the driver, by way of showing off, drive much too fast in a way which ignored the danger to the numerous other persons who were using the highway in cars or on foot. This is a bad case. I do not think that the sentence of six years' imprisonment should in all the circumstances of this case be viewed as remarkable.
The sentence of one year's imprisonment for gravely injuring the young man can be criticised only for its leniency. The judge, as I have said, rightly pointed out that the maximum penalty of five years' imprisonment for negligently causing serious injury is itself inadequate. With an available maximum of five years, I would have expected a much longer sentence than one year in the case of the young man and a longer sentence than six months in the case of the young woman. The decision to cumulate the whole of the sentence of one year upon the sentence for culpable driving was relied on by Mr Holdenson. I would myself have passed a much longer sentence on the more serious of the injury counts and made it cumulative as to one year, but I do not think that we should adjust the sentences in this way. I think that the course taken with regard to cumulation was one open to the judge. There are no rigid rules here. The judge was entitled to approach the matter broadly and to tailor his sentence by ordering total cumulation in respect of the short sentence of one year passed on count 2 and no cumulation in respect of the even shorter sentence passed on count 3.
The non-parole period is in my view a merciful one.
I think that this application must fail.
PHILLIPS, J.A.:
I agree.
BUCHANAN, J.A.:
I also agree.
BROOKING, J.A.:
The application is dismissed.
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