Rawiri v The Queen

[2013] VSCA 130

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0181

ANDREI RAWIRI	Appellant
	V
THE QUEEN	Respondent

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JUDGES	REDLICH, WEINBERG AND COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	7 March 2013
DATE OF JUDGMENT	29 May 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 130
JUDGMENT APPEALED FROM	DPP v Rawiri (Unreported, County Court of Victoria, Judge Tinney, 27 July 2012

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CRIMINAL LAW — Appeal — Sentence — Dangerous driving causing injury — Total effective sentence of 3 Years 9 months’ imprisonment — Non-parole period of 22 months —Erroneously sentenced on basis that negligence was an element of the offence — Appeal allowed — Total effective sentence of 3 years — Non-parole period of 15 months fixed — King v The Queen (2012) 245 CLR 588 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

1. For the reasons given by Coghlan JA, the appellant was sentenced on an inappropriate basis and should be re-sentenced as his Honour proposes.

WEINBERG JA:

1. I agree with Coghlan JA.

COGHLAN JA:

1. On 26 April 2012, the appellant pleaded guilty to four charges of dangerous driving causing serious injury, and a single uplifted summary charge of dangerous driving.  Following a plea, he was sentenced on 27 July 2012 as follows:

charge on indictment	offence	maximum	sentence	cumulation
1	Dangerous driving causing serious injury [Crimes Act 1958 (Vic) s 319(1A)]	5 years [Crimes Act 1958 (Vic) s 319(1A)]	30 months	Base
2	Dangerous driving causing serious injury [Crimes Act 1958 (Vic) s 319(1A)]	5 years [Crimes Act 1958 (Vic) s 319(1A)]	18 months	3 months
3	Dangerous driving causing serious injury [Crimes Act 1958 (Vic) s 319(1A)]	5 years [Crimes Act 1958 (Vic) s 319(1A)]	2 years	5 months
4	Dangerous driving causing serious injury [Crimes Act 1958 (Vic) s 319(1A)]	5 years [Crimes Act 1958 (Vic) s 319(1A)]	2 years	5 months
summary charge	Dangerous driving [Road Safety Act 1986 (Vic) s 64(1)]	2 years [Road Safety Act 1986 (Vic) s 64(2)]	10 months	2 months
Total Effective Sentence:		3 years and 9 months’ imprisonment
Non-Parole Period:		22 months
Pre-sentence Detention Declared:		11 days

6AAA Statement:

6 years’ imprisonment with a non-parole period of 4 years

Other orders:

Charges 1, 2, 3 and 4 – Order that all Victorian licences and/or permits held by the offender be cancelled and that the offender be disqualified from obtaining any such licence or permit for a period of 18 months commencing from the date of first release, whether at the expiration of this sentence or upon release pursuant to an order from the parole board.

Summary Charge – With conviction order that all Victorian licences and/or permits held by the offender be cancelled and that the offender be disqualified from obtaining any such licence or permit for a period of 6 months from 27 July 2012.

Charges 1, 2, 3 and 4 – The court found that this offence was committed whilst under the influence of a drug which contributed to this offence.

1. On 23 November 2012, Tate JA granted leave to appeal on the following grounds:

1.The total effective sentence, the individual sentences, the non-parole period and the order for cumulation are each manifestly excessive.

2.The sentencing judge erred by imposing a period of disqualification directed to commence upon release from custody.

1. At the hearing before this court, Mr McLoughlin, who appeared on behalf of the appellant, made application to add two additional grounds:

3.The learned sentencing Judge erred in importing considerations of negligence in sentencing the appellant.

4.The learned sentencing Judge erred in treating the overloading of the appellant’s vehicle and the fact of some passengers being unrestrained as either aggravating the offence of dangerous driving causing serious injury or as an element of the dangerousness of the driving.

1. In the Registrar’s Neutral Summary the circumstances of the offending are set out  as follows:

The charges arose out of an incident which occurred on 14 October 2007.  The applicant had taken ecstasy at some time prior to the incident.  At about 11 am on that date, he was driving along a straight section of road in a five‑seater car with his wife as passenger, who was not wearing a seatbelt, and five of his six children (some of whom were infants) in the car, many of whom were not wearing seatbelts.  He was not affected by alcohol, nor was he speeding.  The weather and visibility were good.  The appellant drifted onto the wrong side of the road, then straightened up.  He drifted onto the wrong side of the road again - striking several cars and causing others to swerve to avoid impact - before ultimately crashing head on into a car being driven by Mr Attwood, who was travelling on the correct side of the road at about 90 or 95 kilometres an hour within the 100 kilometre per hour speed limit.  Mr Attwood was seriously injured.  He was the victim of charge 1.  Three of the appellant’s family members suffered serious injury and were victims of charges 2, 3 and 4.

It was conceded by the appellant that his conduct in driving whilst in a state that caused him to fall asleep whilst in control of a vehicle, or alternatively, by losing control of his vehicle and causing it to cross the white line in the middle of the road, constituted dangerous driving.[1]

[1]See Appellant’s Written Case para [12]; Transcript of Plea Proceedings, DPP (Vic) v Rawiri (Judge Tinney, County Court of Victoria, 16 July 2012) (‘Plea’) 27.

1. It is useful to add the following details also taken from the summary.

The appellant himself suffered serious injuries and was taken to hospital.  He provided a sample of blood for analysis, which revealed MDMA (ecstasy).  He was ultimately discharged from hospital three days later.  In about November 2007, the appellant moved from Victoria to the ACT.  He was interviewed by police on 10 October 2008 but had no recollection of how the crash occurred.  Shortly after the interview, the appellant was charged with a large number of offences and it was apparently intended that he be tried in the Magistrates’ Court.  Ultimately, however the matter went to a contested committal and, in December 2010, the appellant was committed for trial in the County Court.  He ultimately entered pleas of guilty to the charges in the table above.    

1. The appellant was sentenced after the High Court had handed down its decision in King v The Queen.[2]  For present purposes the importance of that case is that the majority decided that negligence is not an element of dangerous driving, which is a statutory offence, and not one based on a breach of duty of care, but rather focuses on the manner of driving that gives rise to the risk of harm that is potentially dangerous to others.[3]  The Court specifically overruled R v De Montero (‘De Montero’).[4]

   [2](2012) 245 CLR 588

   [3]Ibid 605 [38] (French CJ, Kiefel and Crennan JJ).

   [4](2009) 25 VR 694.

1. It should be said from the outset that the manner in which the prosecution had framed its case of dangerous driving causing serious injury was somewhat artificial. 

1. On the facts, the appellant had ‘driven’ onto the wrong side of the road.  It was suggested that he had done so because he had, on the previous evening, consumed ecstasy.  It seemed to be conceded on the plea that the appellant did not know that taking ecstasy might have caused him, at a later stage, to become suddenly drowsy.  It does not seem to have been the case that the appellant had shown any other signs of drowsiness until almost immediately before the collision. 

1. In addition, it was said that the appellant had failed to ensure that all of the passengers in his vehicle were properly secured.  Indeed, as previously noted, there were insufficient seatbelts available to enable all of the passengers to be safely secured.

1. Apart from the moment that his car veered into the wrong lane, and the fact that the passengers were inadequately protected, the appellant’s driving was unremarkable.  So too had been his general behaviour leading up to the collision.  For example, the family had stopped at a service station not very long before the events in question, without the appellant having behaved in an untoward manner. 

1. The appellant fell to be sentenced for dangerous driving.  The particular danger that formed the basis of this offence was his having set out to drive at a stage when there was a realistic risk that he might fall asleep because of the rebound effect of the ecstasy which he had previously consumed.  I would also regard the appellant’s failure to ensure that his passengers were properly secured as an aspect of the risk that he wrongfully assumed.

1. Although the prosecutor put the case on an alternative basis, namely that the appellant had driven onto the wrong side of the road, there was a real question as to whether or not he was asleep at the moment his car veered into the wrong lane.  If so, he would not have been ‘driving’.[5]  A case based on negligence, in similar circumstances, would focus upon the proposition that a person should not have driven because he or she was aware that it was likely that he or she might fall asleep.

   [5]Jiminez v The Queen (1992) 173 CLR 572.

1. In De Montero, this Court had framed a series of propositions applicable to the crime of dangerous driving causing death:[6]

   [6]De Montero (2009) 25 VR 694, 716 [80] (Ashley, Redlich and Weinberg JJA).

It must be made clear to the jury, in appropriate language, that before they can convict of dangerous driving, they must be satisfied:

1. That the accused was driving in a manner that involved a serious breach of the proper management or control of his vehicle on the roadway such as to merit criminal punishment.[7] It must involve conduct more blameworthy than a mere lack of reasonable care that could render a driver liable to damages in civil law.

2.  That the breach must be so serious as to be in reality, and not just speculatively, potentially dangerous to others who, as members of the public, may at the time be upon or in the vicinity of the roadway.

3.  That the manner of driving created a considerable risk of serious injury or death to members of the public.[8]

4.  That the risk so created significantly exceeded that which is ordinarily associated with being on or near a highway.

5.  That in determining whether the manner of driving was ‘dangerous’ the test is an objective one. Would a reasonable driver[9] in the circumstances of the accused have realised that the manner of driving involved a breach of the kind discussed in paras 1 and 2, and also gave rise to the risk identified in paras 3 and 4.[10]

[7]A momentary lack of attention would not be sufficient, of itself, to constitute such driving.

[8]We have replaced the phrase ‘real and appreciable’ which appears in some cases with the word ‘considerable’ which we think will be more readily understood by the jury. The word ‘real’ adds nothing if the risk is considerable.

[9]We have used the ‘reasonable person’ rather than ‘ordinary person’ because it is employed in the case of culpable driving: see R v De’Zilwa.  But we see no difference of substance between the two concepts.

[10](2009) 25 VR 694, 716 [80] (Ashley, Redlich and Weinberg JJA) (citations in original).

1. It seems to me that his Honour had in mind De Montero when he said a number of things in his sentencing remarks.  The following paragraphs demonstrate his approach:[11]

   [11]DPP (Vic) v Rawiri (Unreported, Judge Tinney, County Court of Victoria, 27 July 2012), [134] – [142]

Your counsel did not suggest that this offence could be viewed as at the lowest level of dangerous driving causing serious injury offences.  He was right.

You were driving a vehicle on a straight section of road, a section of road where there should simply be no accidents.  You were significantly affected by ecstasy and there were a number of people in your car, greatly exceeding the number that should have been present.

You had a duty in relation to your own passengers; your family, as well as

a duty to the other road users. 

The offence of dangerous driving causing serious injury is undoubtedly

a serious offence.  Clearly enough you were driving in a manner involving such a serious breach of the proper management or control of your car, as to be deserving of criminal punishment.  Hence the plea to dangerous driving causing serious injury.

You were involved in a failure to properly manage or control your vehicle, and it created a real risk of death or serious injury.  So much again is clear from your plea.

But yours was not some momentary inattention, or response to some difficult driving predicament.  You should not have even been behind the wheel in your state.  You have crossed entirely onto the wrong side of the road, gone back to the correct side, then gone back to the wrong side again.

You were entirely in the wrong lane, occupying the lane reserved for oncoming traffic, driving at pace towards vehicles travelling at pace in a 100 km zone, with what undoubtedly was a high risk of death or serious injury been occasioned in those circumstances.

It is clear from the authorities in this area that I am entitled to take into account the variations in the culpability of the person responsible for the commission of the crime.  See the cases of Neethling, Jansen and Oates.

The dangerousness was brought about by your driving in the condition you were in.  You were significantly affected by drugs.  You should not have been at the wheel.  Your driving was dangerous and though your culpability clearly was not at the highest level, nor was it at the lowest.

1. His Honour’s language was plainly the language of De Montero, a case which no longer represents good law and was not good law at the time of sentence.

1. I would grant leave to add ground 3.

1. It would also follow that having regard to the passages set out above, the appellant was sentenced on an erroneous basis. 

1. The appellant therefore falls to be sentenced on the basis that he drove his vehicle at a time when it was objectively likely that he would fall asleep.  I would include as an aspect of ‘dangerousness’ the way in which he failed to ensure that his passengers were safely secured in the vehicle.

1. Apart from the matters adverted to above, I accept the findings that his Honour arrived at in passing sentence.

1. It should be noted that the consequences of the dangerous driving were very serious.  These matters cannot be disregarded, in particular, the very serious injuries to Mr Attwood.

1. I would re-sentence the appellant as follows:

charge on indictment	offence	maximum	sentence	cumulation
1	Dangerous driving causing serious injury [Crimes Act 1958 (Vic) s 319(1A)]	5 years [Crimes Act 1958 (Vic) s 319(1A)]	24 months	Base
2	Dangerous driving causing serious injury [Crimes Act 1958 (Vic) s 319(1A)]	5 years [Crimes Act 1958 (Vic) s 319(1A)]	18 months	3 months
3	Dangerous driving causing serious injury [Crimes Act 1958 (Vic) s 319(1A)]	5 years [Crimes Act 1958 (Vic) s 319(1A)]	18 months	4 months
4	Dangerous driving causing serious injury [Crimes Act 1958 (Vic) s 319(1A)]	5 years [Crimes Act 1958 (Vic) s 319(1A)]	18 months	4 months
summary charge	Dangerous driving [Road Safety Act 1986 (Vic) s 64(1)]	2 years [Road Safety Act 1986 (Vic) s 64(2)]	6 months	1 month
Total Effective Sentence:		3 years
Non-Parole Period:		15 months
6AAA		4 years’ imprisonment with a non-parole period of 2 years 3 months.

1. I agree with the sentencing judge that the period of disqualification from obtaining a licence should be for a minimum of 18 months.  There is some strength in the argument that when dealing with periods of disqualification, such periods might be rendered nugatory if they are allowed to expire during the course of a term of imprisonment.  On the other hand, it is important to recognise the value of being able to drive as part of the rehabilitative process.

1. I am satisfied that the public interest would best be served by a period of disqualification of 18 months on each charge and on the summary offence.  That period should commence from 31 October 2012.  I intend that this period of disqualification would enable the appellant to be able to drive some six months after the earliest possible date of release on parole.

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