R v Tran
[2002] VSCA 52
•17 April 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 115 of 2001
| THE QUEEN |
| v. |
| ELIZABETH ANH TRAN |
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JUDGES: | CALLAWAY, BUCHANAN and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 March 2002 | |
DATE OF JUDGMENT: | 17 April 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 52 | |
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Criminal law – Sentencing – Culpable driving causing death – Negligently causing serious injury – Possession of heroin – Whether total effective sentence of 10 years' imprisonment with non-parole period of seven years manifestly excessive –Youth – Early pleas of guilty – Differences in injuries sustained by victims – Whether those differences need be reflected in sentences imposed – Complicity of one of the victims – R. v. Howarth (2000) 1 V.R. 593 – Disqualification from obtaining driver licence – Crimes Act 1958, s.318 – Sentencing Act 1991, ss.5, 89.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr P.C. Priest, Q.C. Mr M.J. Croucher | Michael J. Gleeson & Associates |
CALLAWAY, J.A.:
Introduction
The appellant, who was born on 1st November 1979, pleaded guilty in the County Court to two counts of culpable driving causing death (counts 1 and 2), four counts of negligently causing serious injury (counts 3, 4, 5 and 6) and one count of possession of a drug of dependence, namely heroin (count 7). The maximum custodial penalty for the first of those three offences is 20 years' imprisonment; the maximum custodial penalty for the other two offences is five years' imprisonment. The forms of culpability[1] specified in counts 1 and 2 were those in s.318(2)(b) and (d) of the Crimes Act 1958, i.e. negligence of the same degree as that required to support a charge of manslaughter[2] and being under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle. The appellant had no previous convictions as such, but she had appeared in the Children’s Court and the Magistrates' Court on four occasions between January 1997 and August 2000, on each of which charges were found proven. They related to trafficking in and possession of heroin, failing to answer an undertaking of bail and theft.
[1]Crimes Act 1958, s.318(2) and (3).
[2]R. v. Shields [1981] V.R. 717 at 724, R. v. Franks (No.1) [1999] 1 V.R. 518 at [5]
and R. v. Wright [1999] 3 V.R. 355 at [9].
The learned sentencing judge heard a plea for leniency on behalf of the appellant and reserved his decision. On 10th May 2001 his Honour sentenced her to five years' imprisonment on each of counts 1 and 2, two years' imprisonment on each of counts 3, 4, 5 and 6 and six months’ imprisonment on count 7. He directed that two years of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1 and that nine months of each of the sentences imposed on counts 3, 4, 5 and 6 be served cumulatively upon each other and upon the sentences imposed on counts 1 and 2, making a total effective sentence of ten years' imprisonment. A non-parole period of seven years was fixed and a declaration made regarding 243 days’ pre-sentence detention. It was ordered that all licences held by the appellant under the Road Safety Act 1986 be cancelled and that she be disqualified from obtaining a licence for 15 years. Leave to appeal against sentence was granted on 20th July 2001.
The grounds of appeal, as substituted by order of the Registrar made on 15th March 2002, read:
“1A. In all the circumstances –
(a)the individual sentence of imprisonment on each count;
(b)the total effective sentence; and
(c)the non-parole period;
are manifestly excessive.
1B.The orders made for cumulation resulted in a total effective sentence and non-parole period which are –
(a)crushing; and
(b)manifestly excessive.
1C.In fixing the total effective sentence of imprisonment and non-parole period the sentencing judge failed to give sufficient weight to the principle of totality.
2A.The sentencing judge erred in that he gave too much weight to -
(a)general deterrence;
(b)specific deterrence;
(c)punishment;
(d)denunciation; and
(e)community protection.
2B.So far as the appellant’s prior convictions[3] are concerned, the sentencing judge erred in that he –
[3]This refers to the findings of guilt: see Crimes Act 1958, s.376(4).
(a)gave them too much weight; and
(b)found that they bore on the need for specific deterrence.
2C.The sentencing judge erred in that he gave insufficient weight to the appellant’s –
(a)youth;
(b)prospects of rehabilitation;
(c)remorse; and
(d)early plea of guilty.
3.In fixing the sentence on count 3, the sentencing judge failed to give any, or any sufficient, weight to the blameworthy conduct of Tam Nguyen.
4.The period of disqualification from obtaining a driver’s licence –
(a)is manifestly excessive;
(b)bears insufficient relationship to the sentences of imprisonment; and
(c)pays insufficient heed to the need for, and prospects of, rehabilitation.”
Before turning to counsel’s submissions I shall say something briefly about the circumstances of the offences.[4] At about 8.30 p.m. on 9th September 2000 the appellant attended with her partner, Tam Nguyen, at the Epping Police Station. The purpose of their doing so was for Nguyen to comply with one of the conditions on which he had been released on bail for an unrelated matter. After stopping at a Kentucky Fried Chicken establishment, the appellant drove off in a southerly direction along High Street, Thomastown. She was under the influence of heroin and on the previous day she had used methylamphetamine. Both substances were later detected in her blood. The appellant had both drugs in her possession in the vehicle, the possession of heroin being the foundation of count 7.
[4]I have relied on the judge’s findings, which are not challenged. There are minor inconsistencies with the Crown summary of evidence.
At about 9.10 p.m. two uniformed police members observed that the vehicle the appellant was driving was travelling at approximately 10 to 15 kilometres per hour in excess of the speed limit. They kept the vehicle under surveillance and, during that period, ascertained by the use of their radio that the vehicle had been stolen. The appellant stopped at an intersection and, after the lights turned green, accelerated to approximately 80 to 85 kilometres per hour. At that stage the police activated the flashing lights of their vehicle to indicate their intention to intercept the appellant. She accelerated again to an estimated speed of 100 kilometres per hour.
In the wet conditions that prevailed the police decided that it was too dangerous to engage in a pursuit and the flashing lights of the police vehicle were turned off, but the vehicle driven by the appellant was kept under observation. It was seen to approach the multiple intersection of High Street, Cheddar Road and Spring Street, Reservoir. Several south-bound vehicles had stopped in High Street in obedience to traffic control signals operating at the intersection. They included a car driven by Lisa Teohaere and a small white Nissan Pulsar driven by Tony Lisolajski. There were three lanes of south-bound traffic. Teohaere’s vehicle was in the centre lane and the Nissan Pulsar was in the left-hand lane.
The appellant’s vehicle was seen to approach the rear of the two cars at a very fast speed. Teohaere described the appellant as “flying”. The appellant’s vehicle was in the right-hand lane for south-bound traffic but she changed to the left-hand lane as she approached the intersection. There was no reduction of speed. Her vehicle came into violent collision with the rear of the Nissan Pulsar, which was propelled forward, became temporarily airborne, spun in a shower of sparks and burst into flames, coming to rest against a pole in the central traffic island at the intersection. By that stage it was burning fiercely. The appellant’s speed at the time of impact was expertly calculated at 115 kilometres per hour.
Toni Lisolajski and two of his four passengers, Antonio Gullaci and Mende Aleksoski, were seriously injured. His other two passengers, Anthony Jaman and Daniel Diliberto, were killed. The former died instantly; the latter died shortly after admission to the Alfred Hospital. The appellant’s own passenger, Tam Nguyen, was also injured. It was common ground that his injuries were the most serious of the four victims of counts 3, 4, 5 and 6 and that Mende Aleksoski’s injuries, though undoubtedly serious and including spinal injury, were not of the same severity as those of the others. The six victims were aged between 19 and 22.
Grounds 1A, 1B, 1C, 2A, 2B and 2C
Mr Priest argued these grounds together. His principal submission was that the directions for cumulation had resulted in a total effective sentence and non-parole period which were manifestly excessive having regard to pertinent factors, of which the most important were the appellant’s youth and her pleas of guilty at an early stage of the proceedings. Subsidiary submissions were directed to the fact that the same sentence was imposed on each of counts 3, 4, 5 and 6 and to the issues of remorse and specific deterrence.
Counsel began his submissions by saying that ten years' imprisonment was the highest total effective sentence ever passed in this State for multiple culpable driving and injury counts.[5] By way of comparison, we were taken to other cases. I can understand the reasons why that was done, but the sentences imposed on the individual counts were clearly within the range. It is not difficult to point to recent sentences of six years' imprisonment or longer for bad cases of negligent or drug affected culpable driving causing death[6] . There were six victims, two of whom lost their lives and four of whom were seriously injured. As counsel’s primary submission rightly recognizes, the crucial issue is totality in the light of the appellant’s youth and her early pleas of guilty.
[5]A sentence of ten years’ imprisonment with a non-parole period of seven years was passed on a single count of reckless culpable driving in R. v. Eades [2001] VSC 407. Mr Priest very properly drew that case to our attention.
[6]Compare R. v. Leesley [2001] VSCA 90 at [14].
Much has been written on both those subjects regarded as circumstances of mitigation. So far as youth and culpable driving are concerned, it is sufficient to refer to two cases that were heard in the same week last year by a court identically constituted.[7] They state the principle and illustrate what might be called “the supremacy of the facts”.
[7]Ormiston and Callaway, JJ.A. and O’Bryan, A.J.A.
In R. v. Sherpa[8] the applicant, who was 20 at the time of the offence, pleaded guilty to one count of culpable driving causing death. The form of culpability was negligence. There were mitigating factors in addition to his youth which led this Court to reduce a sentence of seven years' imprisonment with a non-parole period of five years’ to a sentence of five years' imprisonment with a non-parole period of three years. The following was said at [11]:
“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.” (Emphasis added.)
[8][2001] VSCA 145.
The appellant in R. v. Toombs[9] was 17 at the time of the offences to which he pleaded guilty. One of them was culpable driving causing death, in which the relevant form of culpability was recklessness.[10] The others included theft of a motor vehicle and recklessly engaging in conduct which placed three persons in danger of serious injury. Despite his youth, this Court affirmed a sentence of six years' imprisonment on the count of culpable driving causing death. The directions for cumulation were varied, resulting in a total effective sentence of seven years' imprisonment with a non-parole period of four-and-a-half years. O’Bryan, A.J.A., who delivered the leading judgment, applied the passage from R. v. Sherpa that I have set out above.[11]
[9][2001] VSCA 144.
[10]Crimes Act 1958, s.318(2)(a).
[11][2001] VSCA 144 at [35]-[36].
O’Bryan, A.J.A. also referred[12] to the first two of the three general propositions accepted by Batt, J.A. in R. v. Mills[13], where the offender was convicted of recklessly causing serious injury by striking the victim in the face with a beer glass. As Batt, J.A. observed in R. v. Giles[14], those propositions cannot be applied without qualification to cases of a very different nature. A fortnight later in R. v. Bell[15] his Honour made the same point at [14]:
“[I]t seems necessary to state again that the general propositions accepted in R. v. Mills [1998] 4 V.R. 235 at 241 are just that – general propositions. They are, as their terms show, not of universal or automatic application. True it is that they may apply not infrequently, but each case depends upon its own circumstances, including, it is to be noted, the circumstances of the offence as well as those of the offender.”
The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence[16], but the word I have italicized is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.[17]
[12]At [42].
[13][1998] 4 V.R. 235 at 241.
[14][1999] VSCA 208 at [20].
[15][1999] VSCA 223.
[16]The second proposition in R. v. Mills at 241, which is well supported by the authorities cited, including R. v. Misokka (unreported, Court of Appeal, 9th November 1995) at 6-7 and 10-11.
[17]In R. v. Bell at [14] Batt, J.A. concluded, “The case is therefore one where, subject to any particular considerations, besides rehabilitation general deterrence and specific deterrence must bulk large in informing a sound discretionary determination.”
This is an example of such a case. An offender with previous findings of guilt of trafficking in and possession of heroin, driving in a criminally negligent fashion and under the influence of heroin to such an extent as to be incapable of having proper control of her vehicle, killed two young men and seriously injured four others. There were no exceptional mitigating factors and a lenient sentence was, for all practical purposes, out of the question. Subject to consideration of Mr Priest’s other submissions, the quite moderate sentences that were passed on the individual counts and the equally moderate directions for cumulation that were given took full account of the appellant’s youth and prospects of rehabilitation. The non-parole period gave emphasis to the latter, as his Honour expressly recognized in his sentencing remarks.
So far as the appellant’s early pleas of guilty are concerned, I accept Mr Priest’s submission that those facing charges must be able to see that there is a real discount to be had in return for a plea of guilty. Otherwise, the submission proceeded, accused persons will be minded to contest a trial even in the face of overwhelming prosecution cases, with corresponding expense to the community and trauma to victims and their families. But I do not accept his further submission that the appellant cannot see from the sentence imposed upon her that her pleas of guilty have been acknowledged in any meaningful way.
I assume in favour of the appellant that, even if her early pleas of guilty are to be taken into account because they show a willingness to facilitate the course of justice,[18] it is still necessary to value that willingness and that, for the purpose of doing so, the considerations that have been taken into account for a long time continue to be relevant.[19] On that assumption she was entitled to a substantial discount, but I think it was given. A comparison with other recent sentences shows that she would have been punished much more severely on counts 1 and 2, to say nothing of the other counts, if her pleas had not been a factor operating in mitigation. The same is true of the total effective sentence. It is to be borne firmly in mind that this was a bad case. Had there been no facilitation of the course of justice, with all that that would have implied for the victims and their families and the appellant’s own claim to remorse, a sentence of ten years' imprisonment would not have done justice.
[18]Cameron v. R. (2002) 76 A.L.J.R. 382 at [11]-[15].
[19]See, for example, Siganto v. R. (1998) 194 C.L.R. 656 at [22] and the cases cited in R. v. Duncan [1998] 3 V.R. 208 at 215-216 and by McHugh and Kirby, JJ. in Cameron v. R. at [39]-[42] and [65]-[68].
Mr Priest’s three subsidiary submissions advanced under these grounds may be dealt with more shortly. A sentence of two years' imprisonment was passed on each of the counts of serious injury but, it was said, the sentence on count 3 did not reflect the victim’s complicity in the negligent driving and the sentence on count 6 did not reflect the fact that the victim’s injuries were not of the same severity as the others’. That was the count involving Mende Aleksoski. I shall deal with the first branch of that submission when I come to consider ground 3. The other branch assumes that a difference in injuries has to be reflected in a difference in sentence in every case[20]. Sentencing is not an exact science. Not only was it unnecessary here, but it might also have been considered unseemly, to have discriminated between the four badly injured victims of counts 3, 4, 5 and 6.[21]
[20]Section 5(2)(db) of the Sentencing Act requires only that regard be had to the injuries.
[21]On a different view, the argument shows only that the sentences on other counts could have been more severe. If so, even if the alleged error affected the whole synthesis, it did not prejudice the appellant.
There was evidence of insight into her offending and remorse on the part of the appellant, but the judge referred to insight or remorse four times in the course of the sentencing remarks and expressly took them into account. There is no reason to doubt that, like the appellant’s early pleas of guilty, remorse was given the weight it deserved in the circumstances of the case.
His Honour said that specific deterrence was a significant factor because the appellant was a multiple offender for drug-related offences and had to be deterred from driving when she was under the influence of drugs of dependence. I can detect no error in that statement. I do not accept that specific deterrence was given undue weight. It follows that I would not uphold any of these grounds.[22]
[22]Similarly, I do not accept that his Honour was overwhelmed by the tragedy that had befallen the victims: see R. v. Boxtel [1994] 2 V.R. 98 at 103-104 and compare R. v. Coulston [1997] 2 V.R. 446 at 463.
Ground 3
In support of this ground Mr Priest asked us to re-visit the submission that the Crown had made in R. v. Howarth[23]. Tam Nguyen, the victim of count 3, was complicit in the appellant’s negligent driving but, counsel said, the same sentence had been imposed as on counts 4, 5 and 6. It was submitted that, even if the complicity of a victim is not a circumstance of mitigation, it must as a matter of analysis be the absence of a circumstance of aggravation, albeit one that is commonly present.[24] It is offensive to both principle and logic, the submission proceeded, to suggest that an offence involving harm to entirely innocent bystanders is as serious as one where a complicit companion is injured. Reference was also made to s.5(2)(da) of the Sentencing Act 1991.
[23](2000) 1 V.R. 593.
[24]In this judgment, as in R. v. Howarth, “circumstance of mitigation” and “circumstance of aggravation” are used in their conventional senses and not in the broader sense (proposed use for or against the offender) that determines the standard of proof of a disputed issue of fact. Thus an offer to assist the authorities is a circumstance of mitigation, but a refusal is not a circumstance of aggravation, just the absence of a factor that would have assisted the offender. The submission was that the innocence of the victim is a circumstance of aggravation, but complicity is not a circumstance of mitigation, just the absence of a factor that operates against the offender in the majority of cases of culpable driving and cognate offences. To put the matter simply, something that lengthened the sentences in otherwise comparable cases is absent.
R. v. Howarth
Counsel accepted that R. v. Howarth was correctly decided so far as the sentence affirmed in that case is concerned. He also accepted, in oral argument, that the complicity of a victim is not a circumstance of mitigation. But he submitted that the further observations in that case, to the effect that the complicity of a victim is not even the absence of a circumstance of aggravation, were wrong. Mr Priest’s submission was the same submission that the Crown had made in R. v. Howarth.[25] Mr McArdle understandably concentrated on the proposition that, even if the further observations were wrong, that should not affect the outcome in the present case.
[25]See [28] below.
In responding to those submissions, I shall refer first to two decisions of this Court that preceded R. v. Howarth. Next I shall consider that case and whether the Court, as presently constituted, is free to depart from what I have called “the further observations”. Then I shall relate my conclusions to the facts of this case.
In R. v. Wright[26] two boys aged 17 stole a car and took it for a joyride. One of them was killed. Wright pleaded guilty to the count of theft but not guilty to the count of culpable driving causing death. He was convicted on both counts and sentenced to a partly suspended term of imprisonment. He sought leave to appeal against both conviction and sentence. The former application was refused but the latter was granted and the appeal allowed. This Court[27] held that it was clearly inappropriate for him to have been confined in an adult prison and that that error reopened the discretion.[28] Expressly taking into account the circumstances of the offences as well as those of the offender, we substituted a sentence of two years’ detention in a youth training centre.[29]
[26][1999] 3 V.R. 355.
[27]Phillips, C.J., Charles and Callaway, JJ.A.
[28]At [3] and [40].
[29]At [41].
R. v. McGrath[30] was a very different case. A young man affected by alcohol killed a cyclist. I delivered the leading judgment, in which Batt and Chernov, JJ.A. concurred. The first 14 paragraphs set the scene. The next three paragraphs were directed to the significance of the maximum custodial penalty that is now available and its being the same as that for manslaughter. The reasons for the decision appeared in [18]-[21]. The first of those paragraphs read:
“The present applicant was 25, not 17 as in R. v. Wright. The victim was blameless and entirely unassociated with the conduct of the offender and the events which led him to commit the offence: compare Director of Public Prosecutions v. Kalanj (1997) 98 A.Crim.R.505 at 510. The applicant was driving at 90 kilometres per hour coming up and over a stretch of road known by him to be dangerous. Importantly, to my mind, he did not see the deceased until he was upon her. His alcohol consumption had been well over the legal limit. There is no standard sentence. I would not give currency to the idea that five years' imprisonment is a standard sentence. Every case depends on its own facts; but, in a case such as I have just described, general deterrence is of paramount importance.”
[30][1999] VSCA 197.
Whether or not R. v. McGrath was correctly decided, and I believe it was, it is clear that the first two sentences of [18] constituted part of the ratio decidendi: our reasons for dismissing the application included the fact that, in contrast with R. v. Wright, the victim was blameless and entirely unassociated with the conduct of the offender and the events which led him to commit the offence.[31] The reference to Director of Public Prosecutions v. Kalanj is to the judgment of Ireland, J., with whom Gleeson, C.J. and Bruce, J. concurred.[32] His Honour said, “The starting point in considering the propriety of sentence in a case such as this is the taking of a human life in circumstances where the victim is blameless and entirely unassociated with the conduct of the offender and the events which led the offender to commit the offence.”
[31]Both the other members of the Court expressly agreed in the reasons I had given and Chernov, J.A. expressly referred to innocence: see [24], [26] and [27].
[32]Gleeson, C.J. expressly agreed in Ireland, J.’s reasons; Bruce, J. did so by implication. Cf. R. v. Howarth at [13].
In R. v. Howarth the applicant drove his van into the rear of a parked truck, killing his passenger, who was his best friend. For ten hours before the collision the applicant and the passenger had been drinking and driving, with each of them driving at different times. In the course of giving his reasons for sentencing the applicant to five years' imprisonment with a non-parole period of three-and-a-half years, the learned sentencing judge said, “I do not think the circumstance that he, the deceased, was also drunk and a willing passenger in your motor vehicle lessens your criminality.” One of the grounds of appeal was that his Honour erred in failing to take into account that the victim was involved in a joint enterprise with the applicant at the time of his death. Brooking, J.A., who delivered the leading judgment[33], accepted that it could be argued with some force that the victim closely associated himself with the offending conduct.[34]
[33]Charles and Batt, JJ.A. concurred. See [33] below.
[34]At [15].
Counsel for the applicant submitted that it was a circumstance of mitigation that the victim was not “blameless and entirely unassociated with the conduct of the offender and the events which led the offender to commit the offence”. The Crown submitted that the true view was that it is a circumstance of aggravation that the victim does answer that description or alternatively some such description as “entirely innocent”.[35] Brooking, J.A. held that, even if the conduct of the victim was a relevant matter, no different sentence should have been passed,[36] but in a long and detailed discussion rejected not only the submission that had been made on behalf of the applicant but also the Crown’s submission. It is the rejection of the latter submission and the reasons given for it which constitute “the further observations” to which I earlier referred. In my opinion Mr Priest was right to accept that the complicity of the victim is not a circumstance of mitigation.
[35]At [41].
[36]At [46].
Not only appellate courts but also sentencing judges constantly refer, in their judgments and in sentencing remarks, to the “innocence” of the victim of culpable driving and cognate offences. It is, as I have said, a factor that is commonly present. Brooking, J.A. gave a large number of examples taken from appellate decisions, but the frequency of such epithets in sentencing remarks may be even more significant. In that context they are plainly part of the instinctive synthesis and not simply background information. Whatever else they may do, they express and contribute to the weight to be given to denunciation as a sentencing objective.[37] The innocence of the victim is treated as a circumstance of aggravation. If that were not permissible, appeals would be frequent and they would be allowed. Sentencing practice therefore, as well as the language of appellate courts, supports Mr Priest’s submission to the extent of showing that absence of complicity, commonly called “innocence”, may legitimately be taken into account in aggravation.
[37]Sentencing Act 1991, s.5(1)(d).
Next, it is important to understand that none of the decisions cited in R. v. Howarth is contrary to the submission that the Crown made, which Mr Priest repeated before us. Moreover, once it is accepted that the complicity of the victim cannot be a circumstance of mitigation, many of those authorities support counsel’s submission for, if it is proper to factor the victim’s innocence into the synthesis but complicity is not a circumstance of mitigation, that can only be because innocence is a circumstance of aggravation. The decision of the New South Wales Court of Criminal Appeal in R. v. Errington[38], to which particular reference was made[39], did no more than repudiate the proposition that complicity can be a mitigating factor.[40]
[38](1999) 29 M.V.R. 344.
[39]At [32]-[33].
[40]That appears from the language used but, in any event, Director of Public Prosecutions v. Kalanj was decided by the same Court two years earlier and it would have been surprising if Dunford, J. had intended to depart from that decision without comment.
Three main reasons were given in R. v. Howarth for rejecting the view that the complicity of the victim is the absence of a circumstance of aggravation. One reason was that it would seem strange that a circumstance of aggravation should be present “in the majority, or the great majority, of cases of the offence”[41]. There is, with respect, room for debate as to whether the frequency of a factor is conceptually related to its character as a circumstance of aggravation; but, however that may be as a matter of principle, as a matter of practice the fact that a circumstance is present more often than not does not preclude its being a circumstance of either aggravation or mitigation. The great majority of offenders plead guilty, but that does not mean that a plea of guilty is not a circumstance of mitigation.
[41]At [43].
The second and third reasons are best considered together. The second was that the proponents of the Kalanj approach must ultimately “fall back on the view that it is worse to kill a worthy person than an unworthy one, so that the harm done by the offender is greater, or the offender’s ‘culpability’ is greater, where the victim is a worthy person”. The third reason was that that view, and by implication the submission that we are considering, is not the law’s approach in cases of murder or manslaughter.[42] The second reason misapprehends the relevance of complicity. It does not import a distinction between the worthiness of victims but the weight to be given to sentencing objectives. It would not, for example, have been in accordance with community values or expectations to have denounced Wright’s conduct to the same extent as McGrath’s. The third reason, as Vincent, J.A. observed in the course of the hearing, does not accord with sentencing practice. More than one example could be given. It is sufficient to refer to manslaughter by unlawful and dangerous act committed by armed robbers who kill an innocent bystander as opposed to one of their own number.
[42]At [45].
I am deeply conscious of the respect due to a judgment of Brooking, J.A., all the more so when it was concurred in by two other members of the Court, but I am convinced that the further observations were wrong and that it is our duty to say so. We are asked to do so by specialist senior counsel in a case where the issue arises on the facts.[43] The observations were inconsistent with the ratio of R. v. McGrath and it would be very difficult to defend the length of the sentence imposed by this Court in R. v. Wright if they are correct.[44] They are not supported by the authorities cited and the reasons that were given are flawed. It is unnecessary to decide whether the observations were obiter or per incuriam or whether there is a difference in that regard between the leading judgment and the concurring judgments. Even on the strictest view of stare decisis, they are not binding. [45]
[43]See [35]-[36] below. There is no relevant distinction, for present purposes, between culpable driving causing death and negligently causing serious injury by means of a motor vehicle. R. v. Errington, for example, was an injury case.
[44]See [24] above.
[45]Young v. Bristol Aeroplane Co. Ltd [1944] K.B. 718. For that reason R. v. Franklin [2002] VSCA 37 takes the matter no further.
The correct view is that the complicity of a victim constitutes the absence of a circumstance of aggravation, albeit a circumstance of aggravation that is commonly present.[46] Not too much attention is to be paid to labels. When it is said that a victim is “innocent”, that means only that he or she was not complicit. [47] It is a matter for the judge, within the limits of a sound discretion, to decide what weight (if any) to attribute to the victim’s complicity.[48] In a case like R. v. Wright it may be important that a circumstance of aggravation was absent. In a case like the present, as we shall see, although it is proper to take the victim’s complicity into account, it is not determinative. Similarly, not too much should be read into the labelling of innocence as a circumstance of aggravation. Conceptually it is so, but its significance depends on the facts of the particular case.[49] This judgment is not intended to introduce a new straightjacket, but rather to free judges from an inflexible prohibition against their considering, in any case at all, the complicity or otherwise of the victim.
[46]See fn. 24 above, especially the last sentence.
[47]The concerns expressed in R. v. Howarth at [42] are to be addressed by common sense, as so many similar concerns are in sentencing practice. Compare Pearce v. R. (1998) 194 C.L.R. 610 at [39] and [42].
[48]For that reason it is not to be inferred that the cases cited by Brooking, J.A. in R. v. Howarth at [39] were wrongly decided or that a failure to mention complicity, or innocence for that matter, automatically betokens error.
[49]For example, a young mother who had killed her “innocent” child would not ordinarily attract the same denunciation as a drunken driver who had killed a pedestrian.
Count 3
The first point to be decided is whether Tam Nguyen, the victim of count 3, was complicit in the appellant’s culpable driving. That he was is apparent from the appellant’s record of interview. After she had described the police car’s lights flashing, she was asked the following questions and gave the following answers:
“103You looked in the rear vision mirror and what did you do then?
I said to Sun, ‘What do we do?’ and then he said, ‘Pull over,’ and then when I went to go pull over, he said, ‘Now, just – just go, drive it’.
104Mm’m. And what did you do then?
I didn’t know what to do, and I said, ‘Honey, what do you want me to do?’ and he goes, ‘Just drive,’ you know?
105Yeah.
And then so I went and ‘cos I was scared for him, you know.
106Why would you be scared for him?
‘Cos I didn’t want him to get in trouble.
107Okay. So, when you say ‘drive it’, what did you then?
I – I stepped on it.
108You stepped on it, did you? When you say you stepped on it, what do you mean by that?
.Full gas, I think.”
Two questions and answers at the end of the interview are, if anything, even clearer:
“266Just pe-, I just want to ask you, the police put the blue lights on, right. But, the decision for you to travel at that speed was your decision, is that right?
And Sunny.
267Sun’s decision, and you did what he told you.
Mm.”
“Sun” and “Sunny” are Nguyen.
The next point is whether the further observations in R. v. Howarth affected the judge’s instinctive synthesis. It is clear that they did. At the outset of the plea, his Honour asked the prosecutor whether it would be contended that any difference should be made between Nguyen, “being a fugitive from justice on the one hand, and the innocent people in the other vehicle on the other”. In response, he was referred to R. v. Howarth. In the second of two reports to this Court[50] his Honour said, “I gave such weight to the blameworthy conduct of Nguyen as I considered appropriate”. The sentencing discretion is reopened, at least as regards the sentence imposed on count 3[51], because what the judge considered appropriate was necessarily conditioned by the statements in R. v. Howarth. It matters not that his Honour would probably have imposed the same sentence. His consideration of an issue that we know from the report that he did consider was affected. It is arguable, too, as Mr Priest submitted, that his compliance with s.5(2)(da) of the Sentencing Act was compromised, but that need not be decided.
[50]Supreme Court (Criminal Procedure) Rules 1998, r.2.27.
[51]If, which I do not decide, the whole sentencing discretion is reopened by the judge’s having been constrained by R. v. Howarth on one count, I should have no hesitation in holding that all the sentences and directions for cumulation should be affirmed for the reasons his Honour gave in the course of his careful and balanced sentencing remarks.
Accordingly we are obliged to consider the matter for ourselves but, having done so, I would affirm the sentence of two years' imprisonment and the direction that nine months of it be served cumulatively. In the first place, Nguyen was much more seriously injured than the victims of counts 4, 5 and 6. In addition to physical deficits, he has suffered profound brain injury. A circumstance of aggravation was absent, in the sense that he was complicit, but another was present in the sense that the criminal law has regard to the effects of an offender’s conduct. But secondly, and more importantly, just as it was inappropriate to differentiate in relation to the victim of count 6, so it is inappropriate here to differentiate in relation to Nguyen. That is one of the reasons why this case is a good vehicle to reconsider the further observations in R. v. Howarth. This Court’s imposition of the same sentence will serve to emphasize the supremacy of the facts and the error of mechanically applying general propositions as if they dictated the result.
Ground 4
It will be recalled that the appellant’s licences held under the Road Safety Act were cancelled and she was disqualified from obtaining a licence for 15 years. The judge said that he had given the question of disqualification careful consideration and that it was arguable that an even longer term of disqualification could have been imposed. The period he had chosen was, his Honour acknowledged, a substantial period but it was one which he considered to be just and in accordance with current sentencing practice. In my respectful opinion, that is the only element of the disposition that was at fault.
The topic is dealt with thus in the Victorian Sentencing Manual (2nd edition) at [41.603]:
“In determining the actual period of disqualification a sentencer should have regard to the factors specified by Crockett J in George 21/9/1989 CCA Vic:
... the Court should have regard to two separate considerations. They are first the need for the period of cancellation itself to serve its part as a punitive element in the context of the total punishment imposed, and secondly, the need to provide protection to the public from the dangers of possible future lawless motor vehicle driving by the offender. Those two considerations have each to be given such weight as the Court considers is appropriate bearing in mind it is their combined effect which will determine the ultimate length of the disqualification.
The period of disqualification should bear some relationship to the period of imprisonment imposed. In the same case, Crockett J continued:
...the length of the period of disqualification necessarily had to bear a relationship to the period in custody required to be served by the offender. It was said that obviously the longer the period of custody the less would be the effective deprivation for a given period of the benefit of a driver’s licence by that offender, and conversely, of course, the shorter the period of custody to be served the longer would be the degree of deprivation.
Considerations of personal hardship are also relevant to the period of disqualification imposed. In George, Crockett J further adverted to:
... the need to examine the degree of dependency, particularly economic dependency, of the offender on the possession of a driver’s licence.
The Court of Criminal Appeal quoted these passages with approval in Boeyen (1990) 50 A Crim R 482.
In fixing the period of disqualification the sentencer should have regard to its effect on the offender’s rehabilitation and whether the period fixed would be counter-productive. In Tantrum (1989) 11 Cr App R (S) 348, Gatehouse J said at 349:
Normally the disqualification should not inhibit too much the rehabilitation of the offender. Very long disqualifications tend to do just that and to cause further crimes to be committed.”[52]
Reference is then made to the judgment of Batt, J.A. in R. v. Bazley.[53]
[52]See also R. v. Lefebure [2000] 112 A.Crim.R. 41 at [7]-[8].
[53]Unreported, Court of Appeal, 21st August 1997 at 9.
In applying those principles I would emphasize, in this case, the importance
of facilitating the appellant’s rehabilitation[54]. It will be a decision for the Parole Board whether she is released prior to the completion of the head sentence but, if the appellant is released on parole, she should be enabled to apply for the licence that she will undoubtedly need if she is to find employment and be reintegrated into the community. I would make a finding, pursuant to s.89(1) of the Sentencing Act, that the offences the subject of counts 1 to 6 were committed while the appellant was under the influence of a drug which contributed to the offences. That finding will attract the provisions of s.89(3A)-(3E), including the requirement that she obtain an assessment report about her use of drugs from an accredited agency at least 12 months before applying to the Magistrates' Court.[55] Taking that matter and the length of the head sentence and the non-parole period into account, for the period of disqualification fixed by the judge I would substitute the period beginning on 10th May 2001[56] and ending 18 months after the appellant is first released from custody, whether on parole or on the expiration of her sentence.
BUCHANAN, J.A.:
[54]Compare R. v. Bazley at 6-7 and 8-9 and R. v. Bell at [18]-[19] and [24].
[55]It would be undesirable for that assessment to be made immediately upon her release.
[56]R. v. Jennings [1999] 1 V.R. 352 at [59].
Although the sentencing judge’s statement that he “gave such weight to the blameworthy conduct of Nguyen as I considered appropriate” is somewhat Delphic, I am inclined to think that he applied the statements in R. v. Howarth[57] as he was invited to do by the prosecutor. I agree with Callaway, J.A. that thereby the sentencing discretion is reopened, for the association or absence of association between the victim and the offender’s conduct is not a matter to be completely disregarded in sentencing the offender. I agree with Callaway, J.A. that the sentence of imprisonment imposed on the appellant should be affirmed. I also agree that the period during which the appellant is to be disqualified from obtaining a driving licence should be altered as his Honour proposes.
VINCENT, J.A.:
[57](2000) 1 V.R. 593.
I agree for the reasons advanced by Callaway, J.A., that the appeal should be disposed of in the manner proposed by him.
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