Rodi v The Queen
[2011] VSCA 48
•3 March 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2010 0150
| DAMIAN RODI | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | ASHLEY and HARPER JJA and HARGRAVE AJA | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 14 February 2011 | ||
DATE OF JUDGMENT: | 3 March 2011 | ||
MEDIUM NEUTRAL CITATION: | [2011] VSCA 48 | ||
JUDGMENT APPEALED FROM: | (Unreported, County Court of Victoria, Judge Lewitan, 14 May 2010) | ||
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CRIMINAL LAW – Conviction – Dangerous driving causing death and dangerous driving causing serious injury – Applicant’s vehicle not subject to collision – Whether verdict unsafe and unsatisfactory – Whether open to jury to conclude that applicant and driver of the other car drove in dangerous manner by racing at excessive speed – Whether open to jury to conclude that applicant’s driving was cause of collision and of resulting death and injuries – Whether open to jury to be satisfied beyond reasonable doubt of alternative case based on concert – Application for leave to appeal against conviction refused.
CRIMINAL LAW – Sentence – Whether total effective sentence of three years and three months imprisonment with non-parole period of 18 months manifestly excessive – Whether inadequate weight given to applicant’s youth (18 at time of offence and 21 at time of sentence) and delay, and excessive weight to general deterrence – In all the circumstances of the offence and the offender, sentence appropriate – Appeal allowed in respect of commencing date of licence cancellation and disqualification.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr L C Carter | Victoria Legal Aid |
| For the Crown | Mr D A Trapnell, SC | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
Damian Rodi was found guilty by a jury in the County Court on a count of dangerous driving causing death and three counts of dangerous driving causing serious injury. On 2 March 2010 he was convicted and sentenced to two years and six months’ imprisonment on the first count, and to nine months’ imprisonment on each of the other counts. With cumulation, the total effective sentence was three years and three months’ imprisonment. The judge fixed a non-parole period of 18 months’ imprisonment. She further cancelled the applicant’s driving licence, and disqualified him from obtaining a licence for a period of 18 months after his release from imprisonment.
The events giving rise to Rodi’s conviction took place on the evening of 10 February 2007. In consequence of those events, Rodi, a man then aged 18, and a man named Jarrod Rooke were each presented on a count of culpable driving and on three counts of negligently causing serious injury. Each of them was acquitted on those counts, but was convicted on the alternative counts to which I have just referred.
Now Rodi seeks leave to appeal against conviction and, if he fails to overturn his conviction, then against sentence. In a separate proceeding, Rooke seeks leave to appeal against sentence. [1]
[1]Rooke was sentenced to three years’ imprisonment on count 1, and to 12 months’ imprisonment on each of counts 2–4. With cumulation, the total effective sentence was 48 months’ imprisonment. The judge fixed a non-parole period of 24 months’ imprisonment. She ordered that his driving licence be cancelled, and that he be disqualified from obtaining a licence for 24 months from the time of his release from imprisonment.
Grounds
Concerning his conviction, Rodi relies upon a single ground:
The verdicts are unreasonable and unable to be supported by the evidence.
Concerning his sentence application, Rodi relies upon these grounds:
1.The individual sentences, total effective sentence and non-parole period are manifestly excessive and inappropriate.
2.The learned sentencing judge erred by giving inadequate weight to the applicant’s youth, and too much weight to general deterrence (sentence at [43]-[44] and [55]).
3.The learned sentencing judge gave inadequate weight to the delay of over three years between offence and sentence (sentence at [45]-[47]).
4.The licence disqualification order pursuant to section 89 of the Sentencing Act is manifestly excessive.
The Circumstances generally described
At about 9.30pm on Saturday 10 February 2007 a Mitsubishi Lancer driven by Rooke, a man then aged 24, collided with a taxi driven by Wilhemus Guelen at the intersection of Ferntree Gully Road and View Mount Road, Wheelers Hill. View Mount Road is to the east of Springvale Road, and to the west of Jells Road.
There were three teenage passengers in Rooke’s vehicle. One of them was Mitchell Cairnduff, a young man aged only 15. He suffered fatal injuries. Myung Kim and Elliott Burns, Rooke’s other passengers, suffered serious injuries. Alistair Grevis-James, a passenger in the taxi, also suffered serious injuries.
Immediately before the collision, the vehicle driven by Rooke was travelling east in Ferntree Gully Road at a fast speed. According to the unchallenged evidence of the expert police accident investigator, its speed was between 114-126kph. The applicable speed limit was 80kph.
The taxi had been travelling west in Ferntree Gully Road, and immediately before the collision was making a right hand turn across the face of east bound traffic in order to enter View Mount Road. That road intersects with Ferntree Gully Road to the north. The police accident investigator estimated the taxi’s speed at time of impact to be a little under 30kph.
There was no evidence of braking by either vehicle prior to the collision.
The collision took place in the kerbside (or north) lane of Ferntree Gully Road – the road having three east bound lanes in that vicinity. The front of Rooke’s vehicle struck the front passenger side of the taxi.
The roadway was dry at the time. It was dark, but the road was well-lit.
Both to the east and west of View Mount Road, Ferntree Gully Road is straight for a considerable distance. There is a dip in Ferntree Gully Road which ends about 150 metre west of its intersection with View Mount Road. So Rooke’s vehicle had to pass through that dip on its way to the intersection where the collision occurred.
The taxi driver gave evidence that he saw the headlights of two vehicles approaching the intersection, travelling east, as he began to turn right. They were the headlights of the vehicle driven by Rooke, and of a Mazda RX7 driven by the applicant, who had one passenger in his car, a young man named Munga Robbie.
It was very soon thereafter that Guelen realised that what should have been a safe turn was going to end in a collision; and it did.
Although the applicant’s car did not collide with the taxi, on the Crown case it was intimately involved in the happening of the collision. That was because the collision occurred in circumstances where Rooke and the applicant were drag-racing; or alternatively because the applicant had acted in concert with Rooke in committing the various offences.
The first way that the case was put was not based upon principles of complicity, but upon primary liability of the applicant – that is, that his culpable (or dangerous) driving was a legally sufficient cause of death and injury. This may be compared with the way in which the Crown put its case in Guthridge v The Queen.[2] It was not argued for the applicant, below or in this Court, that the Crown could not advance its case in such a way. Nor does Guthridge, which was considered by this Court strictly having regard to the way in which the Crown had there put its case,[3] stand in the way of the Crown so advancing its case.
[2][2010] VSCA 132.
[3]Ibid [5]. The remarks at [112] must be so understood. The observations at [113]-[114] would seem to be applicable either in a case in which the accused was said to be liable as a principal in his or her own right; or in an aiding and abetting setting.
The conviction application
According to the applicant’s submission, the evidence did not justify the jury being satisfied beyond reasonable doubt that the applicant –
(a) was driving dangerously by drag-racing with Rooke at the time of the collision; or
(b) had acted in concert with Rooke by agreeing to drive in a dangerous or culpable manner; or
(c) caused the death or injuries.
The test for this Court’s consideration whether a verdict was unsafe or unsatisfactory was stated in M v The Queen[4] in three passages which the High Court restated in The Queen v Nguyen.[5] The question is whether, ‘not disregard[ing] or discount[ing] the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses’, but ‘pay[ing] full regard to those considerations’, the court considers that ‘upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’. A reasonable doubt experienced by the court – unless the jury’s advantage in seeing and hearing the evidence is capable of resolving that doubt – is a doubt which a reasonable jury ought to have experienced. Emphasising that the question is whether it was open to the jury to be satisfied of guilt to the criminal standard, in Libke v The Queen[6] Hayne J (with whom Gleeson CJ and Heydon J agreed) observed that it involves consideration whether the jury must, rather than might, have entertained a reasonable doubt.[7] It is that consideration which must factor in allowance for the jury’s constitutional role and advantages.[8]
[4](1994) 181 CLR 487, 492-495.
[5][2010] HCA 38.
[6](2007) 230 CLR 559.
[7]Ibid 596-597 [113].
[8]The analysis by Maxwell P in R v Klamo (2008) 18 VR 644, 653-654, [38]-[40] encapsulates the proper approach.
In my opinion, for the reasons which follow, it was certainly open to the jury to be satisfied to the criminal standard that the applicant was guilty of the offences of which it found him guilty. It was open to it to conclude that, at the critical time, the applicant and Rooke were driving in a dangerous manner by racing at excessive speed – colloquially, ‘drag racing’. It was open to it to conclude that the applicant’s driving was a cause of the collision and of the resulting death and injuries. Further, in my opinion, it was open to the jury to be satisfied beyond a reasonable doubt of the alternative Crown case founded on concert. In all, the evidence was very far from being such as to give rise to reasonable doubt of guilt.
The relevant evidence was principally evidence as to the behaviour of the two vehicles between the intersection of Ferntree Gully Road and Watsons Road and the point of collision. But it also included evidence of conversations between the applicant and occupants of Rooke’s vehicle at the intersections of Springvale Road and Ferntree Gully Road, and Ferntree Gully Road and Watsons Road, and evidence of the behaviour of the two vehicles between the first and second of those intersections.
I should mention some uncontroversial matters. It was common ground, or else not in issue on the evidence, that – (1) the occupants of the two vehicles were known to each other; (2) the vehicles had travelled north, but independently, along Springvale Road to Ferntree Gully Road, there moving into right-turning lanes and temporarily stopping; (3) conversation first took place between occupants in the vehicles at that intersection; (4) the distance from Springvale Road to Watsons Road, along Ferntree Gully Road, is about 500 metres; (5) the two vehicles stopped (at a red light) at the intersection of Ferntree Gully Road and Watsons Road; (6) further conversation between occupants of the vehicles took place whilst the vehicles were stopped at that intersection; and (7) the distance from Watsons Road to the point of collision, along Ferntree Gully Road, is about 500 metres.
The conversations
Evidence of conversations was given by the applicant’s passenger, Munga Robbie, by Elliott Burns (a passenger in Rooke’s vehicle), and by Mark Maxwell and his daughter Cassandra Maxwell. Mr Maxwell was the driver of a vehicle which travelled north along Springvale Road and turned right into Ferntree Gully Road. He stopped at the same intersections, and at the same time, as the vehicles driven by the applicant and Rooke. The applicant also mentioned conversations in a record of interview which was admitted into evidence.
Munga Robbie gave evidence that at the Springvale Road intersection the applicant had a conversation with Rooke. The applicant had said that Rooke’s car was nice, and asked was it quick. A little later, when stopped at the Watson’s Road intersection, ‘maybe’ there had been conversation between occupants of the cars, but he did not recall what was said.
Mark Maxwell gave evidence that he first noticed the two vehicles at the intersection of Springvale Road and Ferntree Gully Road, where they had stopped for a red light. He heard conversation between the occupants, but not what was being said.
He next observed the vehicles at the intersection of Ferntree Gully Road and Watson’s Road, where again they were stopped for a red light. They were side by side. He noticed a young man leaning out of Rooke’s vehicle and yelling or talking very loudly to the applicant.
Cassandra Maxwell, aged 13 at the time of the collision, was a passenger in her father’s car. She gave evidence that there was conversation between occupants of the Lancer and the RX7 when those vehicles were stopped at the Watsons Road intersection.
According to Elliott Burns, the applicant asked Rooke about the latter’s new car when at the Springvale Road intersection. He could not remember what was said after that.
The applicant stated in a record of interview, made on the night of the collision, that he had seen Rooke’s car at the Springvale Road intersection. He had said ‘Hi, when’d you get the Evo?’ ‘Evo’ is apparently a word used to describe the particular kind of Lancer. Rooke had replied that he had just bought it. I interpolate that, according to the applicant, the ‘Evo’s the fastest street car you can buy’. At that intersection, he had also asked Rooke ‘How does she run?’ Rooke had replied that ‘She runs good’, and had ‘floored’ his vehicle when the lights turned green.
The applicant further stated that when he arrived at the Watsons Road intersection, after Rooke, he said to Rooke that ‘it was quick’. He denied racing, saying that his vehicle was ‘not quick’, ‘very sluggish’, and that ‘110 per cent, it will not keep up with an Evo, it wouldn’t even get near it, slightly’.
From Springvale Road to Watsons Road
According to Robbie, Rooke’s vehicle took off ‘pretty quick’ from the Springvale Road lights; yet the applicant’s car arrived at the Watsons Road intersection first. Mr Maxwell made no observations of anything out of the ordinary in the behaviour of the two vehicles in that period. Burns gave evidence that Rooke’s car ‘took off quickly – not like flat out but … quickly’.[9] According to the applicant, Rooke ‘floored’ his car, and arrived first at the Watsons Road intersection.
[9]This, by reason of his injuries, was effectively Mr Burns’ last recollection of events.
From Watsons Road to the point of collision
Mr Maxwell said that when the lights turned to green, he moved off. A short time later, the RX7 driven by the applicant accelerated past him. He estimated the speed of his vehicle to have been about 70kph at that stage, and the speed of the RX 7 to have been ‘a lot more’ than that, ‘by the rate he was accelerating’. It was ‘pretty much like I was standing still’. It was going really quickly. Then the Lancer driven by Rooke passed him, accelerating even more quickly. His vehicle was travelling at about 80kph by that stage. He agreed that he was ‘perturbed’ when each of the vehicles went past him. In his depositions, he had used the terms ‘a bit scared’ (in relation to the RX 7) and ‘really … scare[d]’ (in relation to the Lancer).
He saw the collision. Just prior to the impact, the Lancer and the RX7 were in his opinion travelling ‘exceedingly fast’, ‘definitely well over 100Ks an hour’, he thought. A little later in his evidence, he estimated the Lancer’s speed at ‘120 kilometres an hour plus’.
On his account, the RX7 had passed the taxi by the time that it turned right and was struck by Rooke’s Lancer; but he also said that his focus, for a period, was on the Lancer and the taxi.
The driver of the Lancer, he said, had apparently tried to swerve around the back, then the front, of the taxi shortly before impact.
Counsel for the applicant relied upon so much of Mr Maxwell’s evidence as asserted that at time of collision the applicant’s RX7 was well in front of Rooke’s Lancer. He submitted that this was not compatible with the other evidence. That is so. But it did not gainsay the balance of his evidence, both as to the conversations between the occupants of the two vehicles, and the actions of the vehicles after leaving the Watsons Road intersection.
Cassandra Maxwell gave evidence that she heard the engines of the two vehicles revving quite hard as the lights turned green at the Watsons Road intersection. She said those vehicles then ‘shot forward’. They were ‘very very fast’. The Mazda (RX 7) shot ahead of the Lancer. The Lancer was going very fast just prior to the collision, which she saw. She did not see the RX7 at the time of the collision.
The witness was cross-examined to show that she had identified the applicant’s vehicle as a Mazda because she had discussed the accident with her father – as she said, ‘naturally’. She agreed also that she could not remember whether she heard one engine, or two, revving before the two vehicles moved off. She further agreed that in a statement made to the police in February 2007 she had referred to the Mazda, then the Lancer, going past her father’s vehicle.[10] Finally, she agreed that her father’s vehicle was sufficiently close to the collision for her to have seen matters such as sparks flying everywhere.
[10]It is not clear that, in her evidence, she adopted the truth of that account of events. It coincided with the sequence of which her father gave evidence.
Munga Robbie stated that the applicant’s car ‘took off first’. Rodi ‘pretty much thrashed his car first’. He was ‘speeding a bit first’. He ‘gave it some gas’. Travelling towards View Mount Road, its speed was ‘probably 80 or 90’; but he ‘wasn’t looking at his speeder’(sic). Not far from the place where the accident occurred, Rooke’s car overtook the applicant’s vehicle, travelling ‘pretty fast’, and then moved to its left. When it moved left, there was ‘a little bit of distance’ between the two vehicles – later he agreed that there was ‘more than a little bit’. He saw the taxi pull out ‘in the last second’, and saw Rooke’s unsuccessful attempt to avoid the collision.[11] Initially, he stated that he ‘wouldn’t have a clue in metres’ as to the distance which the applicant’s car was behind Rooke’s car when the collision occurred. A little later he said that the applicant’s car was ‘probably about two or three metres’ behind at that time. But in cross-examination, he stated that ‘I just can’t remember how far apart the cars were’.
[11]He said that Rooke ‘cut in front of us and then tried swerving around the taxi instead of going around the taxi’.
Wilhemus Guelen, the taxi driver, gave evidence of travelling west along Ferntree Gully road, taking his passengers to a local shopping centre. He decided to turn right into View Mount Road so as to avoid several sets of traffic lights. He slowed and moved into the turning lane. Looking east, initially he did not see anything. He began his turn, travelling at a very low speed. Then, ‘[p]robably just as I commenced to turn as I got into the first lane I saw two sets of headlights in the distance’. They ‘both appeared at the same time’ and ‘looked … to be very close together’. ‘… a second or two later, [he] could see they were extremely close so obviously they were going very fast’. They were ‘still very much together’. Then the Lancer ‘tried to get around in front of [the taxi] but … he swerved into the third lane and hit me’. At that time, the other car was ‘very close’.
In cross-examination, the witness agreed that the best angle for observing the relative position of the two vehicles would have been side-on. He agreed also that shortly after the collision he had said he thought that there was another car involved in the collision, that he thought more than one car had hit his vehicle, and that he thought they were involved possibly in drag-racing.
There was other cross-examination. The presence of the ‘dip’ in Ferntree Gully Road, to the west of its intersection with View Mount Road, was mentioned. It was put to the witness, in effect, that if the two vehicles were in the dip before he actually saw their headlights, he should have been able to see the headlights’ glare – this acting as a warning not to attempt the turn. Perhaps this cross-examination also bore upon the witness’s account of the apparently excessive speed of the two vehicles.
Sergeant Peter Bellion, the expert accident investigator, gave evidence to which I should refer. He said that – (1) the Lancer was a powerful vehicle which, when new, could reach 120kph in 11.5 seconds. In 400 metres it could reach a speed of 139kph; (2) the RX7 was less powerful. When new, it could achieve a speed of 129kph in 400 metres. It would take longer to reach 100kph than the Lancer; (3) from the time that a vehicle travelling at 120kph came out of the dip, there would be 4.5 seconds to point of collision. But if the vehicle had been travelling at 80kph, the time to point of collision would be 6.75 seconds. At the taxi’s estimated speed, the collision would not have occurred if the Lancer had been travelling at 80kph over that 150 metres.
The applicant denied drag-racing. Speaking of the Watsons Road intersection, he said that -
It’s gone green, he’s hammered it, like, the speed of that car – how- quick it is, is just unbelievable.
He said also that -
So he took off, then the light went green, I took off. He’s floored it. I don’t know how fast he was going, at least over 100k, I was sitting on 80, then a taxi pulled out. He smacked straight into it, like, he tried to swerve’.
When the collision occurred –
There was a whole dust cloud … and I’ve gone through that … .
Asked how far back his vehicle was at the time of the collision, he replied –
At least 50 metres away. At least … if not more.
Conclusion
The evidence that Rooke and the applicant were racing their vehicles at the time of the collision was, in my view, overwhelming. The jury was entitled to approach the matter this way: (1) there was conversation at the Springvale Road intersection between the applicant and Rooke; (2) accepting that nothing was said explicitly about racing, it led to Rooke accelerating very fast from that intersection, leaving the applicant’s vehicle in his wake; (3) then the red light at Watsons Road brought the vehicles together. There was more conversation. When the lights turned green, a race developed in earnest. The applicant’s vehicle ‘got the drop on’ Rooke’s vehicle, but was reeled in by the more powerful Lancer, which reached a speed of around 120kph in not further than 500 metres; (4) Mr Maxwell’s admission that he was scared by the manner and speed at which the RX 7 and then the Lancer passed his vehicle was a true indication of their manner of travel; (5) Mr Maxwell and his daughter were wrong in saying that the RX7 stayed ahead of the Lancer, but that did not detract from the general reliability of their evidence. In the moments before, and at the time of the collision, their attention was understandably focussed on the Lancer and the taxi; (6) Mr Guelen’s evidence supported the conclusion (which he himself expressed on the night of the collision) that the two vehicles were racing, even allowing that he probably placed them too close together at the time of the collision. His impression that they were travelling side by side, and that they were travelling very fast, was reliable; (7) a deal of evidence put the two vehicles either quite close, or at any rate not more than 50 or so metres apart, at time of collision. Given the unchallenged speed of Rooke’s vehicle, it was indicative of racing that the two vehicles were so close after 500 metres; (8) the applicant’s statement that he drove through the dust cloud created by the collision also supported a conclusion that the two vehicles were still not far apart at that time – and thus that racing was still in train.
Applicant’s counsel submitted, as I noted earlier, that the evidence did not justify the jury being satisfied to the criminal standard that his client was drag-racing with Rooke when the collision occurred, or that his client had acted in concert with Rooke as alleged by the Crown.
I do not doubt that the evidence to which I have referred left it open to the jury to find that the Crown had made out its case on the alternative basis. The gist of the submissions for the applicant was that an agreement could not properly be inferred. I do not agree. Acceptance that nothing was said explicitly about racing at either intersection does not mean, having regard to the conversations and the events which ensued, that it was not open to the jury to infer the making of an agreement of the nature alleged. That is so notwithstanding that it required an inference adverse to the applicant.
The third aspect of counsel’s argument on the unsafe or unsatisfactory ground raised the issue of causation. In written submissions, counsel argued that Mr Guelen had failed to yield right of way; and had admitted with hindsight that it was not safe for him to have entered the intersection. According to the submission, Mr Guelen’s driving raised a reasonable doubt whether the applicant’s driving was a substantial and operative cause of the collision. Counsel cited Royall v The Queen.[12]
[12](1991) 172 CLR 378.
That causation argument was advanced at trial. It was not founded on drawing a distinction between Rooke and the applicant in the event that they had been drag-racing when the collision occurred. That is, it was not founded upon there having been collision between Rooke’s vehicle and the taxi, but not between the applicant’s vehicle and the taxi. Rather, it focussed on Mr Guelen’s driving. In that connection, it seemed to disregard the principle that, in law, there may be more than one cause of death, and that criminal liability may attach although the accused’s act was not the sole, or even the ‘main’ or ‘most substantial’ cause of death.[13] So, even if Mr Guelen did commit a traffic violation – something which was unlikely in light of Sergeant Bellion’s evidence – still less if his conduct could have amounted merely to contributory negligence in a common law setting, as the case was argued it was open to the jury to have found causation established to the criminal standard against the applicant.
[13]Paraphrasing Brooking JA in R v Franklin (2001) 3 VR 9, [54]-[56].
In this Court, belatedly, counsel for the applicant sought to raise a different causation point. He argued that it was not open to the jury to have excluded the possibility that Rooke’s unsuccessful evasive manoeuvre broke the chain of causation. Counsel’s argument was that Rooke should have swerved behind the taxi, thereby missing it. Because, driving very fast, he had taken the ‘wrong option’, the jury could not exclude there having been an act by Rooke which was ‘voluntary and independent of the conduct of the applicant or as part of his participation in a race and in response to the conduct of the applicant’.[14] Accepting that this proposition had not been advanced below, and that no exception had been taken to the judge’s charge on the causation issue, counsel argued that the matter could nonetheless be ventilated under the unsafe or unsatisfactory ground.
[14]Guthridge v The Queen [2010] VSCA 132, [115].
Had the point been raised, the judge might well have concluded that, in law, the circumstance relied upon was incapable of constituting an intervening act. But if, as a matter of prudence, the judge had left the issue for the jury’s consideration, I consider that it would have had no prospect of success. It was open to the jury to conclude that the applicant’s car was not very far behind Rooke’s car when the collision occurred, that both were still racing, and that Rooke was faced with an emergency which was intimately connected with the speed of his vehicle. In the desperation of the moment, Rooke acted in a particular way. For the jury to find that the Crown had not excluded the possibility that this act broke the chain of causation[15] would have required it to abandon reality. Further, Sergeant Bellion’s evidence tended very strongly to a conclusion that collision was inevitable at the speed at which Rooke’s vehicle was travelling, regardless of what attempt at evasion Rooke might have made. In the circumstances, it is unnecessary to consider whether the applicant should be permitted to rely upon the particular point.
[15]Assuming that such an onus would have rested on the Crown.
The sentence application
Grounds 1-3
Submissions
These grounds may be considered together. The applicant’s submission that the individual sentences, the total effective sentence resulting from orders for cumulation, and the non-parole period were all manifestly excessive relies in part upon the argument that the judge gave inadequate weight to the applicant’s youth and delay, and excessive weight to general deterrence.
Counsel for the applicant submitted that –
(1) the applicant was 18 at time of offending and 21 at time of sentence;
(2) the applicant had no prior convictions;
(3) there has been a delay of more than three years between offending and sentence. In consequence, the applicant had become ineligible for a Youth Justice Centre Order;
(4) the applicant had experienced great grief and distress over the death of Mitchell Cairnduff;
(5) the applicant had attempted to assist injured persons at the scene;
(6) the applicant had co-operated with the police;
(7) the applicant had experienced very difficult family circumstances, and had assumed responsibility for the care of two younger siblings;
(8) the applicant had a strong education and work record;
(9) there was evidence of the applicant’s good character;
(10) because of some psychological sequalae of the incident, general and specific deterrence needed to be given moderated application;
(11) the applicant had good prospects of rehabilitation.
All the circumstances identified by counsel were either the subject of findings in his client’s favour, or were else uncontentious.
Counsel particularly focused upon what he claimed was the failure by the judge to give primacy to prospects of rehabilitation in the case of a youthful offender.[16] Counsel acknowledged that in a particular case other sentencing objectives may be ‘at least equally important;[17] but he argued that the judge had erred by allowing ‘the principles in Mills to be eclipsed by punitive considerations’. Tran had been a culpable driving case, which involved ‘far more serious offending’.
[16]Citing R v Mills [1994] 4 VR 235, 241 and DPP v McCloy [2006] VSCA 99.
[17]R v Tran (2002) 4 VR 457, 462 [14] (Callaway JA).
Counsel’s second area of particular focus was upon delay, and its effect in depriving the applicant of the chance of a Youth Justice Centre Order. The judge had not treated the delay as ‘a powerful mitigating factor’,[18] which required ‘a quite undue degree of leniency being extended’.[19] Counsel submitted that the judge’s failure to treat delay as a ‘powerful mitigating factor’ constituted specific error. But if that was not so, then it was a particular of manifest excess.
[18]R v Merrett, Piggott and Ferrari (2007) 14 VR 392, 400 [35].
[19]R v Todd [1982] 2 NSWLR 517, 520.
Counsel submitted that the application should be granted, the appeal allowed, and the applicant re-sentenced to a term which permitted suspension of the balance of the term imposed.
In the event of re-sentencing, he relied upon a reference which showed that, since being granted bail pending appeal, the applicant had got his job back. He also stated that the applicant has resumed living with his two younger siblings.
Counsel for the Crown submitted that the judge had, on the face of it, taken all the matters relied upon by the applicant into account. The circumstances, in all, had not made it inappropriate for the applicant to sentence the applicant as she had done. Immediate custody is the usual and appropriate course in cases of dangerous driving causing death.[20] The judge had taken the applicant’s youth into account, also a moderated need for general deterrence. As to delay, the judge had applied what Callaway JA said in R v MWH.[21]
[20]Counsel cited DPP v Neethling [2009] VSCA 116.
[21][2001] VSCA 196 [18].
Counsel further argued that the applicant had, in respect of the individual sentences and the orders for cumulation, been treated ‘very leniently’. Had the cumulation been any less, the injured victims would have been treated as ‘meaningless statistics’.
Again, counsel submitted, had the applicant been aged under 21 when sentenced, the judge would still have had to arrive at an overall sentence of less than three years for the option of Youth Justice Centre detention – which is still an imprisonment – to be available. Further, unless the overall sentence had been less than three years, total or partial suspension would have been unavailable. The judge could not sensibly have imposed a lesser overall sentence than she did.
Resolution, grounds 1-3
Because the applicant was presented on a count of culpable driving, his trial must have been heard in the County Court, not in the Children’s Court. So considerations which might have been urged if the situation was otherwise[22] are not in point. But had sentence been passed in the County Court before he was 21, a Youth Justice Centre order might have been made.[23] The maximum period of detention that could have been ordered was three years.[24] So also, if the judge had imposed a sentence not exceeding three years’ imprisonment, an order for total or partial suspension might have been made.
[22]R v Pham [2003] VSCA 207 [10], [12] (Vincent JA); and see the discussion of similar issues in a setting of legislative change by Eames JA in R v Angelopoulos [2005] VSCA 258 [49]-[56].
[23]Sentencing Act 1991, ss 3 (definition of ‘young offender’) and 32.
[24]Sentencing Act, s 32(3)(b) and (4).
The applicant, by reason of delay, did lose the chance of the judge making a Youth Justice Centre order. It has been recognised that this is one consequence of delay to which regard may be had in passing sentence.[25] The judge acknowledged its relevance. It was implicit in the argument for the applicant that, had he been sentenced before he was aged 21, all other considerations being equal the judge would have imposed a sentence upon him of less than three years’ detention or imprisonment (if it was the former, it would have kept the applicant out of mainstream prison where, according to the psychologist Mr Crewdson, he was likely to have difficulties, at least because of his size); and that the judge should have accorded the applicant, although he was aged 21, the sentencing advantage – the potential for whole or part suspension – which such a disposition would have permitted. But, despite the relevance of the matter, as acknowledged by the judge, I do not accept that, had the applicant been aged under 21 at time of sentence, it would have been appropriate to impose, in all the circumstances of the offence and the offender, sentences totalling, with cumulation, less than three years’ imprisonment. Moreover, there is a difficulty – if not a fallacy – in seeking to isolate, in the context of manifest excess, just one in a considerable number of often competing sentencing considerations.
[25]See R v Nutter (Court of Appeal, Supreme Court of Victoria, 8 November 1995) R v Lowe (Court of Appeal, Supreme Court of Victoria, 13 November 1995), R v Better [2003] VSCA 71 [12] (Buchanan JA) and R v Berry & Wenitong (2007) 17 VR 153, 189 [25] (Redlich JA).
Nor do I accept the submission that the judge was guilty of specific error in her treatment of delay. Her Honour recognised the importance of the effects of delay. Here, as I have already noted, she identified as one effect the fact that the applicant had become ineligible for a ‘Juvenile Justice based sentencing disposition’. Further, whilst her Honour did not specifically mention it in the context of delay, she recognised that in the period of delay the applicant had assisted his siblings, been in stable employment, and had been in no further trouble. All this bore upon the applicant’s prospects of rehabilitation, which the judge described as ‘reasonably good’, and which she stated that she took into account in his favour. Again, the judge accepted the evidence of the psychologist that the delay ‘has had considerable effect upon [the applicant] in [the applicant’s] transition to adulthood’.
So, I consider, in different ways the judge did advert to and, according to her reasons, allow for the various effects of delay in the applicant’s favour. The fact that she did not use a particular formula of words when explaining what weight she had given to delay, or what effect it had had upon sentence, does not persuade me that she fell into error in either of the ways suggested. Neither does any aspect of the sentence which she imposed imply error.
Next, I reject the submission that the judge gave insufficient weight to the applicant’s youth and excessive weight to general deterrence. I do not accept that what was said by Callaway JA in Tran[26] was not applicable where the applicant’s dangerous driving was a legally sufficient cause of a young man’s death and of serious injury to three other young men. The applicant’s offending was objectively very serious, and of a kind which made general deterrence (even if moderated to an extent by Verdins’ considerations) of great importance. The argument for the applicant that this was not such a bad case because the applicant was not affected by alcohol or other drugs, and had not driven through a red light, only made the point that a case of very bad driving – involving much more than momentary inattention - could have been worse.
[26]R v Tran (2002) 4 VR 457, 462 [14].
There were a considerable number of points to be made in mitigation. The applicant’s youth, and delay, to each of which I have made specific reference, were two of them. The others were also identified by the judge, and are collected at [56] above. In those circumstances, the question is whether any aspect of the sentences imposed exceeded the bounds of the sentencing discretion vested in the judge. I am quite unpersuaded that there was any such transgression. The individual sentences were unremarkable. Any lesser sentences on counts 2, 3 and 4 would have been derisory. Cumulation of a part of each of those sentences was also entirely appropriate, for the reasons described by Maxwell P in R v Towle.[27] What was cumulated was in each instance a very modest part of a very modest sentence. Finally, the non-parole period was in my opinion appropriately low, reflecting the different weighting of the circumstances of mitigation.
[27][2009] VSCA 280 [92]-[99].
Ground 4
Submissions
Applicant’s counsel submitted that the order for disqualification gave inadequate weight to the public interest in the applicant’s continued rehabilitation after release, including resumption of employment. The order was unnecessary in light of the applicant’s otherwise unblemished record. He cited R v Lefebure[28] and R v Tran.[29]
[28](2000) 112 A Crim R 41, 44 [7]-[8] (Tadgell JA).
[29](2002) 4 VR 457, 469-470 [38]-[40].
Counsel for the Crown submitted that there was no evidence that the applicant’s rehabilitation would be hindered by a period of disqualification commencing from date of release. The order itself, commencing from that time, was not inappropriate. He referred to R v Kalwig,[30] where Weinberg JA, sitting at first instance, made an order of that kind.
[30][2009] VSC 373.
Resolution, ground 4
By operation of s 89(1)(d) Sentencing Act 1991 the judge was bound to cancel the applicant’s licence, and disqualify him from holding a licence for a period of not less than 18 months. By operation of s 89(1A) such an order commences on the day it is made, ‘or on such later day as the court specifies in the order’. There was thus no technical error in the judge making the order which she did.
There is a considerable jurisprudence which bears on the factors which will bear upon the making of such an order. They were discussed by Tadgell JA in Lefebure, and by Callaway JA in Tran. They need not be rehearsed, other than to say that, broadly, both punishment and circumstances of mitigation are relevant.
The judge did not indicate in the present case what motivated the order which she made. In Lefebure, Tadgell JA considered that such silence was indicative of error. There is a point beyond which one cannot go in seeking to uphold a judge’s finding which is unsupported by some expressed reasons – which is not to say that an order of the kind now under consideration could not be cross-referenced to matters otherwise bearing upon sentence.
In the present case, the absence of reasons, together with the order made, has persuaded me that the judge did err. It was one thing to require the applicant to undergo a period of licence disqualification after release. To so order would give emphasis to its punitive function. It may also be said that the period of disqualification was the minimum period prescribed by the statute. But the effect of the order was to impose that minimum period entirely from date of release, and that in a case of a man whose driving and other record, both before and after the commission of the instant offences, was blameless.
In my opinion, there would be appropriate recognition of the punitive function of a disqualification order, and also proper recognition of the applicant’s good prospects of rehabilitation, and of the need to enhance those prospects in the case of a young man, if an order was made which (although one cannot be certain) would be likely to yield disqualification from obtaining a licence for a period of six months after release.
Bearing in mind the fact that the applicant had served about 6 months’ imprisonment before being granted appeal bail, that the non-parole period of his sentence is 18 months’ imprisonment and that the judge made a declaration of 73 days pre-sentence detention, I propose that a disqualification order for an 18 months’ period be made as from 1 January 2011.[31]
[31]The matter was not argued, but my provisional view is that for this Court to make such an order would not infringe s 89(1A) of the Sentencing Act 1991, which by reference to s 89(1) appears to be directed to a first instance sentencing judge.
Orders
I would refuse the application for leave to appeal against conviction. I would grant leave to appeal against sentence, and grant the appeal only so as to make a different order in respect of licence cancellation and disqualification.
HARPER JA:
I agree with Ashley JA.
HARGRAVE AJA:
I agree with Ashley JA.
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