R v Toombs
[2001] VSCA 144
•26 September 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 354 of 2000
THE QUEEN
v.
DALE JOHN TOOMBS
---
JUDGES:
ORMISTON and CALLAWAY, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:
MELBOURNE
DATE OF HEARING:
23-24 August 2001
DATE OF JUDGMENT:
26 September 2001
MEDIUM NEUTRAL CITATION:
[2001] VSCA 144
---
Criminal law – Sentencing – Reckless culpable driving and other driving charges – Plea of guilty – Youthful offender with substantial criminal record – Cumulation – Sentences not manifestly excessive.
---
APPEARANCES: Counsel Solicitors For the Crown Ms R. Carlin K. Robertson, Solicitor for Public Prosecutions
For the Appellant Mr R.J. Bourke Clarebrough Pica ORMISTON, J.A.:
1 In this matter I have had the benefit of reading the judgment of O’Bryan, A.J.A. in draft form and, for the reasons he has stated, I consider that the appeal should be allowed to the limited extent stated in those reasons.
CALLAWAY, J.A.:
2 I also agree with O’Bryan, A.J.A. It is not to be thought that a sentence of seven years' imprisonment, every day of which may have to be served, would be imposed on a 17 year-old other than in the most exceptional circumstances, but the circumstances here are of that character and the relevant form of culpability[1] is recklessness, not negligence. The judge below sentenced the appellant as for involuntary manslaughter. Mr Bourke properly conceded that the form of culpability in s.318(2)(a) is markedly more serious than that in s.318(2)(b). In those circumstances I agree with O’Bryan, A.J.A. that no occasion arises to give further consideration to the relevant passage in R. v. McGrath[2]. I simply record, without taking the matter further, that the opinion there expressed was based on a number of considerations, including but not limited to the words “substantial risk” in s.318(2)(a) and the explanation of reckless murder at common law in Boughey v. R.[3].
[1]Crimes Act 1958, s.318(2) and (3).
[2][1999] VSCA 197 at [15]; see also [16], [24] and [26].
[3](1986) 161 C.L.R. 10.
O’BRYAN, A.J.A.:
3 The appellant pleaded guilty in the County Court on 14 November 2000 to five counts in a presentment. Count 1 was theft of a motor vehicle at Rosanna on 18 July 2000. Counts 2, 3 and 4 were recklessly engaging in conduct, namely the dangerous manner in which he drove a motor car which placed three named individuals in danger of serious injury. Two of those individuals were members of the Police Force performing their duty in a marked police car. The third individual
was a private citizen driving a private vehicle. Count 5 was reckless culpable driving at Rosanna causing the death of a female driver. Counts 2 to 5 were committed on 18 July 2000. Count 5 pleaded paras.(a) and (d) of s.318(2) of the Crimes Act 1958. Because part of the case for the appellant focused upon the significance of “recklessly” in paragraph (a) of s.318(2), I shall refer to the words of sub-s.(2).
"(2)A person drives a motor vehicle culpably if he drives the vehicle -
(a)recklessly, that is to say, if he consciously and justifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily injury upon another person may result from his driving; or
(b)negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would
have observed in all the circumstances of the case; or
(c)whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle; or
(d)whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle."
4 Counsel for the appellant informed the sentencing court that the appellant wished to have taken into account four summary charges.
1. Failing to stop after an accident causing injury.
2. Failing to stop after an accident causing damage.
3. Driving in a dangerous manner.
4. Driving whilst unlicensed.
5 The third charge specified that the appellant at Watsonia, Yallambie and Rosanna on 18 July 2000 drove a motor car in a manner that was dangerous to the public having regard to all the circumstances of the case.
6 The third charge did not specify which road or roads in Watsonia, Yallambie and Rosanna and in what manner the appellant drove dangerously.
7 After plea by counsel the sentencing judge imposed sentences as follows:
Count 1, 12 months' imprisonment.
On each of Counts 2, 3 and 4, 18 months' imprisonment.
Count 5, six years' imprisonment.
Charge 1, three months' imprisonment.
Charge 2, 14 days imprisonment.
Charge 3, 12 months' imprisonment.
Charge 4, three months' imprisonment.
8 Orders for cumulation were made to the sentence on Count 5 as follows: Six months of the sentence imposed on Count 1, six months of the sentence imposed on Count 2 and six months of the sentence imposed on charge 3.
9 The cumulation orders produced a head sentence of seven and a half years. A non-parole period of five years was fixed.
10 The sentence was ordered to be served concurrently with a sentence of four months being served in a youth training centre which was imposed on 8 September 2000.
11 The appellant was disqualified from obtaining a licence for a total effective period of five years.
12 The appellant admitted 41 prior offences from five court appearances, all of which were in the Children's Court. He had completed a parole order on 18 April 2000, three months before the offences for which he was before the County Court occurred.
13 The appellant's date of birth is 9 December 1982. He was, therefore, 17 years and seven months when the driving offences were committed and almost 18 when he was sentenced in the County Court.
14 An application for leave to appeal was filed which contained one ground: That the sentence was manifestly excessive.
15 On 9 March 2001 Ormiston, J.A. granted the appellant leave to appeal after counsel foreshadowed additional grounds of appeal.
16 On 3 August 2001 the Registrar gave leave to the appellant to amend his ground of appeal by substituting three new grounds.
17 The first new ground stated that the sentence is manifestly excessive in totality and
· in respect of Count 5 and
· in respect of Counts 2, 3 and 4.
18 The second new ground stated that the sentencing judge erred in ordering cumulation of six months in respect of Count 2 and six months in respect of charge 3.
19 The third new ground stated that the sentencing judge erred in failing to have proper regard to the youth of the applicant, to rehabilitation and in regarding specific and general deterrence as being of paramount importance in sentencing the appellant.
20 The sentencing judge's description of the circumstances in his sentencing remarks requires more detail in this court to explain more fully the conduct of the applicant in relation to all the offences and where the conduct took place. For this purpose I shall use the summary of evidence compiled by the Solicitor for Public Prosecutions with agreed corrections made by Mr Bourke, counsel for the appellant.
21 On 18 July 2000 the driving offences were committed in the metropolitan suburbs of Watsonia, Yallambie and Rosanna. The applicant was on a methadone program for a heroin habit. During the early afternoon on 18 July he went to a chemist in Brunswick for methadone but did not receive his usual dose. At 1.30 p.m. he stole a motor car parked earlier at Rosanna railway station. At 3.15 p.m. he was observed by a witness to be affected by drugs or alcohol.
22 At about 4.15 p.m. a police car in which two senior constables were travelling observed the appellant's car in Elder Street, Watsonia. Believing that the driver was not wearing a seat belt the police car turned around intending to intercept the car. The car proceeded to turn into the Greensborough bypass travelling southerly. The siren in the police car was activated but the appellant took no notice and at Yallambie Road turned left driving through a red light in doing so. The car travelled at 60 to 70 kilometres per hour along Yallambie Road and made a circuit of a residential block still travelling at about 60 to 70 kilometres per hour before re-entering Yallambie Road and again travelling easterly. A second police vehicle then observed the car overtake two or three civilian vehicles and a police car that had moved into the appellant's lane and were travelling towards him. The appellant drove on the wrong side of Yallambie Road as he overtook the cars before driving into a dead-end street known as Corandirk Place and then up a private driveway. The first police car had taken up a position from which it was 30 to 40 metres away. The two police members thought they could speak to the driver but the driver reversed out of the driveway causing his car to collide with the police car. The appellant then reversed to the opposite kerb to a position at right angles to the police car then changed direction and drove directly at the police car. The driver of the police car drove his car forward into a tree to avoid a further collision. His female colleague suffered a minor injury and her name features in Count 2.
23 Upon re-entering Yallambie Road the appellant's car collided with the rear of a car being driven south along Yallambie Road by a private citizen whose name features in Count 4. The damage to the private car was relatively minor.
24 The appellant did not stop after the collision but continued south at a speed of 60 to 70 kilometres per hour. The second police car took up the pursuit. When the appellant's car reached Lower Plenty Road it turned right. At this stage the police car was instructed to pull back. The appellant's car accelerated to 90 kilometres per hour in a 70 kilometres per hour zone. At Martins Lane the car went through a red light. Cars were stationary at the lights and the appellant's car struck a bus stop sign and weaved its way through the intersection. A police motor cycle now followed the car along Lower Plenty Road. Passing the Greensborough highway and in a 60 kilometres per hour zone the appellant accelerated to 100 kilometres per hour. The car went through a red light at 100 kilometres per hour at the intersection of Rosanna Road. The policeman on the motorcycle saw the car fishtail and appear to be out of control.
25 The deceased was driving her car in the right-hand lane of the two eastbound lanes of Lower Plenty Road at a slow speed. Shortly after crossing Rosanna Road the appellant's car swerved violently to the right, crossed the centre line and struck the deceased's car head on in the driver's front corner.
26 The collision occurred at 4.25 p.m. when the appellant's car was wholly on the wrong side of the road travelling at a high speed and the deceased's car was wholly on the correct side of the road travelling at a moderate speed. The appellant had driven about 9 kilometres after his vehicle came to the attention of the police and about 2.7 kilometres of the journey was in Lower Plenty Road. The episode occupied about ten minutes.
27 The deceased died some few hours later. The appellant who suffered significant injuries admitted that the car was stolen and that he had consumed during the day "heroin, alcohol, pills, speed, everything." Later he said he had not used heroin that day but was on a methadone program. A blood sample showed a variety of drugs and medications sufficient to impair his driving skills.
28 The details of the pursuit and the collision showed an appalling and reckless disregard for the safety of the public by a young man under the influence of drugs to an extent that he could not properly control the car he was driving.
29 A victim impact statement made by a 58 year old son of the deceased revealed the extent of the harm done to him by the loss of his mother. The son was born with cerebral palsy which had rendered him unable to move his limbs or to speak. The deceased had been his primary care giver since birth. The death of the deceased has caused him enormous grief and loss which is most understandable and tragic.
30 Counsel invited the sentencing judge to receive a psychological report from Bernard Healey. The report revealed that the appellant had left home at age 15 after he became addicted to heroin at age 14. He left school during Year 9 and since then his life had focused on drugs and criminal pursuits, no doubt to feed his drug habit. Intellectual testing revealed average capacity. Personality testing was indicative of depression. His physique is that of an undernourished male of his age.
31 A report from a juvenile justice case worker detailed the appellant's history with the juvenile justice system and family history. When the report was written, 14/11/2000, the appellant was deemed suitable by the Department of Human Services for a further period of detention in a youth training centre. In fact, he was detained in a youth training centre at this time.
32 Counsel invited the sentencing judge to impose a three year term in a youth training centre, the maximum permitted by s.32 of the Sentencing Act 1991. Counsel for the Crown submitted that a more substantial term of imprisonment was required even if it had to be served in an adult prison.
33 The sentencing judge said that he took into account the age of the appellant and his plea of guilty. He considered that the driving of the appellant had to be regarded in the worst case bracket and referred to two decisions in this court: R v McGrath[4] and R v. Wright[5]. In McGrath Callaway, J.A. expressed the opinion that the state of mind described in s.318(2)(a) is the same as for reckless murder. Mr Bourke for the appellant was conscious of the implications of that opinion in terms of moral culpability and he argued that it was wrong. Further, he submitted that the appellant by his plea had only admitted the minimal elements of reckless culpable driving, namely foreseeability of grievous bodily harm resulting from his driving. The argument presented by Mr Bourke was directed to the moral culpability of the appellant because he had disregarded the risk of harm in relation to the culpable driving. Mr Bourke asked the court to rule that Callaway, J.A. was wrong in McGrath in equating the state of mind for reckless culpable driving with the state of mind for reckless murder.
[4][1999] VSCA 197.
[5][1999] 3 V.R. 355.
34 In my opinion, this is not a suitable case for the court to deliver a definitive judgment about the meaning and effect of the words in s.318(2)(a). This is an appeal against sentence not against the judge's charge to a jury. It is unnecessary to consider further the opinion of Callaway, J.A. in McGrath for another reason. The trial judge sentenced the appellant upon the basis of involuntary manslaughter not reckless murder. The sentence of six years clearly reflects that the sentencing judge did not impose a sentence in the range appropriate for reckless murder. It would have been quite inappropriate to do so in the circumstances of the offender and the offence. Mr Bourke conceded that by the plea of guilty to reckless culpable driving the appellant pleaded to the most serious form of culpable driving. Negligent culpable driving, Mr Bourke conceded, is a less serious form of culpable driving than reckless culpable driving, hence the sentencing judge's observation that the appellant's driving had to be regarded "as in the worst case bracket" was apposite if he meant a worst case of culpable driving. Nothing further needs to be said about this submission.
Ground 1: Sentence manifestly excessive.
35 Mr Bourke argued ground 1 first. He placed particular reliance upon the plea of guilty at the earliest opportunity, remorse, extreme youth, immaturity and personal circumstances which included drug dependency from an early age. Mr Bourke submitted that the sentence in totality was "crushing". The sentencing judge did take into consideration all of the matters to which Mr Bourke referred. The point of Mr Bourke's submission is that the sentencing judge must have given insufficient weight to the age of the offender, to his plea of guilty and prospects of rehabilitation to arrive at the head sentence of six years. His Honour was fully aware of all of these matters and said so. The youth of an offender is normally a compelling factor calling for a less severe penalty than might be appropriate for an older and more mature offender. However, the benefit for youth is constrained, in my opinion, when the offender has a bad criminal record and less prospects for rehabilitation than is normally the case in a young person. When the crimes are serious, as they are in the present case, considerations of general and personal deterrence and protection of society can reduce leniency for the offender's youth.
36 In R v. Sherpa[6] this court dealt with an appeal by a youthful offender of good character who had been sentenced on a single count of negligent culpable driving. The offender had killed a pedestrian in the city when he drove a vehicle into a taxi not at high speed but whilst under the influence of alcohol. The court reduced the sentence from seven and a half years to five years. Callaway, J.A. said[7]:
"General deterrence must usually be emphasised in the punishment of this offence and there is correspondingly less scope than in the case of some other crimes for leniency on account of an offender's youth. That does not mean that there is no scope for youth and concomitant prospects of rehabilitation to influence the disposition. Even if an immediate custodial sentence is warranted, as it almost always is, those factors may still have a bearing on the kind of sentence to be imposed (in particular the choice between imprisonment and youth training where the latter is a realistic option), the length of the sentence and the time that must necessarily be served. But it is not to be forgotten that a life has been lost."
Ground 2: Cumulation
[6][2001] VSCA 145.
[7]At [9].
37 Mr Bourke submitted that orders for cumulation were erroneous because the effect was to impose double punishment and produce a sentence which was excessive in its totality. I am of the opinion that cumulation was appropriate for Count 1, theft, and for Count 2, one of three reckless conduct endangering a life counts. The theft occurred on the same day as the culpable driving but, apart from its use for that purpose, was otherwise unconnected with the driving which resulted in a death. Whilst it may be considered as an aggravating circumstance, it was quite appropriate to add something to the head sentence for the theft.
38 The reckless endangerment of three persons occurred some kilometres further back from the place of the fatal collision and in circumstances which called for separate sentences and some cumulation. Mr Bourke did not argue that the sentences selected for Counts 1 to 4 were excessive, his argument was that cumulation orders were wrong because they produced a manifestly excessive head sentence. The thrust of the argument was that His Honour took all that conduct into account in fixing six years for culpable driving. The sentencing remarks condensed into a few lines the whole of the unlawful conduct of the offender on 18 July.
39 Save as to the cumulation order on charge 3, I am unpersuaded that His Honour fell into error. He fixed upon six years as the appropriate sentence for culpable driving and imposed sentences for the offences which occurred earlier in time and some distance away from where the fatal collision occurred. The following passage in the sentencing remarks looked at the whole picture: "A stolen car, a drug affected driver, an unlicensed driver, and erratic driving injuring two police officers and threatening other road users with death and/or serious injury, excessive speed and eventually colliding head-on with the deceased's vehicle whilst travelling at 106 kilometres per hour in a 60 zone and whilst being totally on the incorrect side of the roadway. It is difficult to imagine more serious breaches of the road laws and more dangerous driving than that performed by this prisoner". The sentencing judge was required to sentence on five counts and did so imposing sentences within his discretion and making moderate cumulation orders in respect of Counts 1 and 2.
40 Cumulation on charge 3, dangerous driving, should be viewed differently in my opinion. The charge appears to relate to the whole episode because it does not specify streets and in the passage cited the sentencing judge did not draw any distinction between dangerous driving in Yallambie Road and dangerous driving in Lower Plenty Road. Ms Carlin valiantly tried to identify a point on the journey where dangerous driving for the purposes of charge 3 began and where it ended. She argued that dangerous driving took place before Martins Lane was reached and was concerned with the driving commencing at Yallambie Road when the appellant's vehicle went through a red light and the overtaking incident on the wrong side of the road. She eliminated the Corandirk Place incident because it featured in Counts 2, 3 and 4. The dangerous driving for the purposes of charge 3 ended at Martins Lane, Ms Carlin submitted.
41 This is a very unsatisfactory explanation of where the dangerous driving commenced and ended for the purposes of charge 3. Twenty seconds driving beyond Martins Lane and 1.1 kilometres in distance the fatal collision occurred. The sentencing remarks do not draw any distinction between dangerous driving and reckless culpable driving; the two forms of driving are run together. No doubt the appellant did at times along the route drive dangerously and he pleaded guilty to the charge. However, an order for cumulation on charge 3 was not appropriate, in my opinion, in the circumstances outlined. I consider that the sentence imposed on charge 3 should be served concurrently with the sentence on Count 5.
Ground 3: Youth, rehabilitation and deterrence
42 Mr Bourke made a strong submission in support of ground 3, youth, rehabilitation and specific and general deterrence. He referred the court to statements of principle in a number of authorities. In particular he cited R v. Mills[8], where Batt, J.A. applied the following general propositions:
"iYouth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
iiIn the case of a youthful offender rehabilitation is usually far more important than general deterrence."
[8][1998] 4 V.R. 235 at 241.
43 The appellant is not a first offender. He had a bad criminal record for a 17 year old and his prospects for rehabilitation were poor on account of his drug habit. The evidence did not show any intention on his part to overcome his drug habit and lifestyle. No doubt some of his criminal history was directly related to his drug habit.
44 The sentencing judge was acutely aware of the problems created by a term of imprisonment, but in my opinion he had little option. The youth factor was much less relevant than it was in the authorities cited including the recent decision in R v Sherpa.
45 A further aspect of ground 3 was that the learned sentencing judge failed to have proper regard to the youth and immaturity of the appellant. Mr Bourke argued that His Honour had no regard to immaturity and bearing upon moral culpability because His Honour said nothing about immaturity in his sentencing remarks. This was unnecessary, however, because His Honour was well aware of the applicant's age and his immaturity as described by Mr Healey. Mr Bourke contended that panic and irrational reaction on the part of the appellant were the consequence of youth and immaturity and bore on moral culpability. In my opinion, the sentencing judge may be presumed to know that youth is a primary consideration in a sentencing court touching moral culpability. The sentencing judge said:
"In considering my sentencing decision, I am particularly cognizant of the youth of the prisoner and that sentencing such a young man to a term of imprisonment must be regarded as a matter of last resort."
Later, he added:
"I also take into account the significant potential consequences of sentencing such a young and vulnerable man to a term of imprisonment in an adult prison."
46 His Honour was justifiably entitled to be pessimistic about the appellant's prospects for rehabilitation particularly on account of his past record and drug habit for these matters were both relevant and significant.
47 The third aspect of ground 3 is that the sentencing judge erred in saying that general and specific deterrence were of paramount importance in this case. In using those words His Honour did not ignore youth and rehabilitation. In context, he meant that because the appellant had a bad record and diminished prospects of rehabilitation until he overcame his drug habit, general and specific deterrence were of paramount importance.
48 Ms Carlin submitted that the total sentence and the individual sentences are not manifestly excessive in the circumstances. She supported all the cumulation orders but I have indicated that I disagree with her submission in respect of charge 3 for the reasons given.
49 No doubt counsel for the appellant in the court below had an expectation that a term of incarceration in a youth training centre was the upper limit, but the learned judge below took a different view based upon principles of general and personal deterrence, the bad record of the appellant, his uncontrolled drug addiction and poor prospects of rehabilitation. All of these matters weighed heavily against a short sentence in a youth training centre. It has not been demonstrated that the sentence on Count 5 is manifestly excessive, or that cumulation of 12 months produced a manifestly excessive sentence in toto. The road toll in this State is a matter of serious concern to law-abiding members of the community. Their concern is heightened when the toll is increased by a young driver affected by drugs driving in a reckless manner taking the life of an innocent driver. Because the circumstances of culpable driving can vary so much it is impossible to fix a tariff for the offence, as I consider Mr Bourke would like the court to do. This case called for severe punishment, a sentence at the higher end of the scale. Parliament has fixed a maximum sentence of 20 years. The sentencing judge chose six years in his discretion, far below the maximum, and well within the sentencing discretion. The sentences imposed on Counts 1, 2, 3 and 4 were not excessive in my opinion and the cumulation orders in respect of Counts 1 and 2 were appropriate, for theft of the car was a separate offence, as was the reckless conduct which placed a police member in danger of serious injury.
50 For these reasons, I consider that the appeal should be allowed but only to the extent that the cumulation order in respect of the dangerous driving charge should be set aside and an order made that the sentence imposed on charge 3 be served concurrently with the sentence imposed on Count 5. The consequence will be that the total effective sentence is reduced to seven years.
51 I propose that the non-parole period fixed in the court below, five years, be reduced by six months to four and a and a half years. A gap of 2.5 years between the total effective sentence fixed today and the non-parole period is appropriate in the circumstances.
9