Rooke v The Queen
[2011] VSCA 49
•3 March 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2010 0168
| JARROD EMMANUEL ROOKE | |
| 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 49 | |
JUDGMENT APPEALED FROM: | (Unreported, County Court of Victoria, Judge Lewitan, 12 May 2010 | |
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CRIMINAL LAW – Sentence – Total effective sentence of four years imprisonment with non-parole period of 24 months for dangerous driving causing death and dangerous driving causing serious injury – Youthful offender – Whether sentence manifestly excessive – Whether insufficient weight given to applicant’s remorse, plea of guilty, injuries, delay, mental conditions and reasonably good prospect of rehabilitation – Parity – Appellate intervention not excited – Appeal allowed in respect of commencing date of licence cancellation and disqualification.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Glynn | Galbally & O’Bryan |
| For the Crown | Mr D A Trapnell, SC | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
Jarrod Rooke was found guilty on a count of dangerous driving causing death and on three counts of dangerous driving causing serious injury. On 14 May 2010, he was sentenced on the first count to three years’ imprisonment. On each other count, he was sentenced to 12 months’ imprisonment. Four months of each of the sentences on counts 2-4 were directed to be served cumulatively on the sentence on count 1. The total effective sentence was thus four years’ imprisonment. The judge fixed a non-parole period of 24 months. She cancelled Rooke’s driving licence, and disqualified him from obtaining a further licence for a period of 24 months after his release from imprisonment.
Now Rooke seeks leave to appeal against sentence. He relies upon the following grounds.
1. That the learned sentencing judge erred in imposing:
(a) individual sentences;
(b) a total effective sentence; and
(c) a minimum term
which were manifestly excessive.
2. That the learned sentencing judge gave insufficient weight to:
(a) the applicant’s remorse;
(b) the applicant’s offer to plead guilty;
(c) the injuries suffered by the applicant;
(d) the effect on the applicant of delay;
(e)the anxiety, depression and post traumatic stress disorder suffered by the applicant which attracted the application of the Verdins principles;
(f)the applicant’s good prospects of rehabilitation.
3.That the learned sentencing judge erred by imposing on the Applicant:
(a) individual sentences;
(b) a head sentence;
(c) a minimum term; and
(d)a proportion of the head sentence to be served before being eligible for parole; and
(e) a period of driver’s licence disqualification
that were all greater than that imposed upon the co-offender, and has thereby infringed the principle of parity.
4.That the learned sentencing judge erred by failing to take into account the contribution to the collision made by the taxi driver, thereby overstating the Applicant’s culpability in relation to the collision.
5.That the learned sentencing judge erred by sentencing the Applicant on the basis that he was engaged in racing or competitive driving with the co-accused at the time of the collision.
6.That the learned sentencing judge erred by imposing a period of disqualification from obtaining a driver’s licence which was excessive.
Circumstances of offending
The events which led up to and culminated in the death of one young man and in three other young men suffering serious injuries are described in my reasons for judgment in the case of a second offender, Rodi.[1] I need not repeat what I there said.
[1]Rodi v The Queen [2011] VSCA 48, particularly [6]-[15] and [21]-[47].
The applicant’s personal circumstances
The applicant, born on 22 June 1982, was aged 24 at time of offending and 27 (nearly 28) at time of sentence.
Brought up by his maternal grandmother, he left school before completing VCE and entered the workforce.
Before the collision on 10 February 2007, he had a good work record in unskilled employment.
He suffered serious injuries in the collision. Of this circumstance, more later. For present purposes it should be noted that, according to the judge’s finding, it would be difficult for him to work as a labourer because of his injuries. So he had begun training as a chef, and by time of sentence had nearly qualified. His employer was impressed by his work ethic.
The applicant went to trial. But the judge found that he was remorseful. He had consistently expressed remorse to a psychologist. He had prepared a letter of apology, and in December 2009 he had offered to plead guilty (though he could not recall the accident) to dangerous driving causing death and to an (inappropriate) rolled-up count of dangerous driving causing serious injury. At trial, he had not challenged the evidence as to the speed of his vehicle, and his demeanour and conduct had been ‘impeccable’.
There was evidence that the applicant showed himself to be a man who assisted others. Specifically, he assisted his grandmother, who had a serious heart condition, with medication, shopping, cleaning and gardening.
Further bearing upon prospects of rehabilitation, there was evidence that the applicant had joined a church after the collision; and that he attended each weekend.
Another matter going in favour of the applicant having good prospects of rehabilitation was that he had no drug or alcohol problems.
I mentioned a little earlier the fact that the applicant suffered injuries in the collision. The judge summarised the position this way:
74You were admitted to the emergency department of the Royal Melbourne Hospital on the night of the accident at 11 pm. You were discharged from the rehabilitation unit on 19 April 2007. Reports by Dr. Li (Royal Melbourne Hospital) and your treating doctor, Dr. Clements, were tendered on your behalf. Dr. Clements stated that you sustained the following injuries as a result of the motor vehicle accident:
1.Fractured right patella with associated penetrating knee wound and posterior cruciate ligament injury, ruptured ACL ligament.
2.Dislocated right hip and associated fracture of the right acetabulum.
3.Blunt abdominal trauma requiring splenectomy and repair of a transverse colon tear.
4.Fractured right ulnar styloid (injury to your wrist). You may require further surgery to the wrist.
75You have to take antibiotics daily and you still have ongoing matters relating to your colon.
76You also sustained facial laceration under your chin area. You have permanent scarring on your abdomen and permanent scarring on both legs.
77In his report dated 30 November 2009 Mr. Brendan J Dooley, orthopaedic surgeon, stated that you have steadily improved and although complaining of residual aching and slight stiffness in your right wrist and of general weakness and aching throughout your right leg, you returned to your studies in July 2008 and qualified in the chef’s school to undertake 30 hours of work a week as part of the practical requirement of your course.
As with Rodi, there was considerable delay between offending and sentence. The judge found that the delay had ‘served to exacerbate your anxiety about what has occurred’. She referred to several reported incidents which were also likely to have heightened the applicant’s anxiety. She concluded that ‘as a result of these matters hanging over your head, for a long period of time you have modified your behaviour’.
Thus far I have referred to personal circumstances running in the applicant’s favour. But that was not the whole picture. The applicant admitted prior convictions. One of them was for driving at a speed 30kph in excess of the applicable limit.[2] Another was for driving at a speed 45kph in excess of the applicable limit. Those offences were committed in April 2002 and March 2003, and were dealt with by the issue of Traffic Infringement Notices. On each occasion, the speeding offence was of such magnitude as to lead to loss of licence - on the second occasion, for a 12 months period. Whilst the offending was not proximate to the date of present offending, the judge described it as ‘highly relevant’ to her sentencing task; and I agree.
[2]On this occasion, the applicant also drove whilst his blood alcohol level exceeded the prescribed limit.
The judge’s findings and conclusions
In the course of describing the applicant’s personal circumstances, I have touched on a number of findings which the judge made. Save perhaps for the emphasis which her Honour placed on the applicant’s prior convictions, they were not contentious.
Other than that, the judge implicitly found, and it is complained of by ground 5, that the applicant was racing with Rodi on the occasion which ended in the happening of the collision. This is a matter to which I will return.
The judge also found that: (1) the moral culpability of the applicant and Rodi was high. This was not a case of momentary inattention; (2) Victim Impact Statements showed that the relatives of the young man who was killed in the collision had ‘suffered considerably’; (3) the applicant’s chances of rehabilitation were ‘reasonably good’; (4) the applicant suffered from post traumatic stress disorder and prolonged depression as a result of his prolonged recovery. In accordance with the principles propounded in R v Verdins[3] the weight to be given to general and specific deterrence should be sensibly moderated. Further, the burden of imprisonment would be greater than for a man in normal health.
[3](2007) 16 VR 269.
Her Honour stated that: (1) general deterrence was of ‘considerable importance in a case such as this’;[4] (2) protection of the community, denunciation of the applicant’s conduct, and just punishment were other relevant sentencing considerations; (3) as I have already noted, delay was relevant. It had served to exacerbate the applicant’s anxiety. In the interim, the applicant had modified his behaviour; (4) on the issue of parity – (a) implicitly, there was no marked differentiation between the applicant and Rodi in the circumstances surrounding the commission of the offence; (b) the applicant could call remorse in aid, whereas Rodi could not do so; (c) the applicant had suffered serious injuries which should be taken into account in sentencing him.[5] To the extent that pain and suffering would continue, it was in itself some punishment for the applicant’s criminal conduct; (d) the applicant had relevant prior convictions, whereas Rodi had none; (e) the delay was ‘highly significant’ in Rodi’s case, because ‘he might well have been considered for a disposition in the juvenile justice system had the matter been heard earlier’; (f) the applicant was not a young offender; but he had been youthful at time of offending.
[4]Citing R v Towle [2009] VSCA 280 [75] (Maxwell P).
[5]The judge had been referred to R v Barci and Asling (1994) 76 A Crim R 103, 110-111 in that connection.
Ground 5
Counsel for the applicant argued this ground first. He submitted that the judge had sentenced his client on the basis that the two drivers were racing their vehicles at the critical time. If Rodi’s conviction appeal succeeded, then the applicant should be sentenced on the basis of driving very fast on a Saturday night on a well-lit road on which there was little traffic. Whilst the applicant’s conduct would then be accounted deliberate, it would simply be a speeding case, in which the applicant’s culpability would not be high, though not necessarily low.
As argued, the ground falls away in light of the Court’s determination on Rodi’s conviction application.
It could have been argued that the jury’s verdict did not necessarily imply a finding that the vehicles had been racing, because the Crown case had been put in alternate ways. But the judge was invited by the Crown on the plea to find that the vehicles had been racing, and implicitly she made such a finding. In light of the evidence which I discussed in Rodi’s conviction application, the judge was entitled to so conclude to the criminal standard. So another way in which ground 5 might have been advanced would have yielded no different outcome.
Ground 4
Counsel for the applicant next argued ground 4. He submitted that the judge erred by failing to consider, or else under-weighing, the contribution made by the taxi driver to the collision. The taxi driver had the opportunity of seeing the applicant’s vehicle, or the glare of its lights, over a considerable distance. He had failed to give way. Counsel submitted that the judge had said nothing about the matter when concluding that the applicant’s moral culpability was high, although she did mention the matter in the context of the extent of the applicant’s remorse. Counsel referred to and relied upon DPP v Martinez.[6]
[6][2008] VSCA 165.
In my opinion, this ground should be rejected. The judge was evidently aware of the submission for the applicant, put on the plea, that the conduct of the taxi driver could properly be taken ‘into account to an appropriate degree’, for she mentioned it in her sentencing remarks. On the other hand, as counsel submitted, she did not refer to it in the context of an assessment of the applicant’s moral culpability.
In Martinez, Mandie JA, in explaining why the driving of the prisoner was ‘at the lower end of the range of seriousness’ referred both to the fairly innocuous driving of the prisoner and the fact that ‘some aspects of the driving of the [other vehicle] … contributed to the collision’.[7] Accepting the relevance of the second of those circumstances in that case, it bears no resemblance to the circumstances here under consideration. The applicant was driving his vehicle at between 114-126kph on a road with an 80kph speed limit. The taxi driver was executing a turn at less than 30kph. The evidence of the police accident investigator showed that the taxi driver could have made a turn without incident had not the speed of the applicant’s vehicle, in the 150 metres or so from the eastern end of the dip in Ferntree Gully Road to the point of collision, been so excessive. I doubt that there was any breach of traffic regulations by the taxi driver. But if there was, it was technical rather than substantive.
[7]Ibid [28].
In the event, I do not consider that the ‘contribution’ by the taxi driver to the collision was of any consequence in assessing the applicant’s moral culpability. If the judge did put it to one side, she did not err in doing so. If she gave it little weight, still less did she err. In the course of argument, she observed that Martinez (she had been the sentencing judge in that matter) was ‘very different’. That was a justified observation.
Grounds 1 and 2
These grounds were argued together, the matters raised by ground 2 really being particulars of the contention of manifest excess raised by ground 1.
Applicant’s counsel submitted that:
2.The sentence was a relatively high one for these offences, considering prevailing sentencing standards and the maximum penalties which were applicable. A sentence of 3 years imprisonment for the count of dangerous driving causing death is at close to the top of prevailing sentences for that offence, at least of those which are governed by the 5 year maximum penalty. While the individual sentences on the other counts could not be described as excessive, the degree of cumulation on the already high base has produced a total effective sentence which was very heavy. The minimum term was low in proportion to the head sentence, but was nevertheless too high given that the head sentence should have been lower.
3.A sentence of this length may be justifiable in certain instances of this type of offending, but in this case there were a large number of powerful mitigating factors, which are set out above. Once regard it had to those matters, the sentence is revealed as manifestly excessive.
4.The mitigatory matters which were found by the sentencing judge to be present include just about every kind of mitigatory matter possible. While the judge has recognised them, the sentence by its very length demonstrates that they were given insufficient weight. The judge has apparently concluded that their effect is to a large extent displaced by the needs of general deterrence and punishment.
5.While tragic consequences flowed from the Applicant’s conduct, those consequences were unintended and unforeseen. The duration of his dangerous driving was brief. He was not found to have been grossly negligent. The effect of the accident upon him was profound. His prospects of rehabilitation back into the community are good.
The sentence on count 1 was a quite heavy one. The applicant was acquitted of culpable driving, and that did bear on the quality of the applicant’s driving which the jury found established. But it was a bad case of dangerous driving causing death. The speed at which the applicant drove his vehicle, at night and on a major road, was grossly excessive. Moreover, he was not ‘just speeding’. He was taking part in a race. Further, the race was not a spur of the moment thing. Its gestation, though not its commencement, had been at the intersection of Springvale Road and Ferntree Gully Road.
Certainly there were weighty matters which the applicant could call in aid in mitigation. The judge identified them. But all things considered, I am not persuaded that the sentence – though stern in the context of a maximum penalty then applicable of five years’ imprisonment – was manifestly excessive.
Still less can that be said in the case of the sentences passed on counts 2-4.
Orders for cumulation were entirely appropriate. They were moderate both individually and in their overall effect.
The non-parole period was 50 per cent of the total-effective sentence. That is a quite low proportion, and is compatible with the submission made for the applicant on the plea that the judge should fix a lower than usual minimum period. In the event, there is no room for legitimate complaint about the non-parole period which the judge fixed.
Ground 3
Counsel for the applicant submitted that there was no proper basis for differentiating between the applicant and Rodi in the sentences imposed. Their culpability was identical, there were some common features in mitigation, and some features in mitigation which were discrete. The prosecutor had submitted that the various considerations essentially balanced out, and that the same sentence should be passed upon each offender. The judge had erred by imposing disparate sentences, the more so in the case of the respective non-parole periods (the applicant’s being 50 per cent of the total effective sentence, and that of Rodi being 46 per cent).
If it be assumed that the finding of Rodi’s guilt was not based upon him having acted in concert with the applicant, but rather upon the two of them having engaged in a race, still something akin to the so-called parity question was enlivened.[8] The essential question is whether the applicant should have a justifiable sense of grievance when comparing the sentence passed on Rodi with the sentence passed upon him.[9]
[8]Farrugia v The Queen [2011] VSCA 24. On the assumption that the applicant and Rodi were racing their vehicles, and absent concert, that is regardless whether the situation was an instance of what was called in Jimmy v R (2010) 269ALR 115 ‘a common criminal enterprise’. In Victoria, that description does not mark out the boundary of application of parity considerations: Farrugia [26]-[27].
[9]The principles and their rationale were recently re-stated, succinctly, by Redlich and Weinberg JJA in Kelly v The Queen [2011] VSCA 10, [5]-[7].
In my opinion, notwithstanding the prosecutor’s submission below, it was proper for the judge to differentiate between the applicant and Rodi in the sentences which she passed. Sentencing is not an arithmetic process, and in sentencing two offenders to whom parity considerations apply, but whose entire circumstances will never be identical, a judge will understandably attach particular weight to particular matters. That explains why a difference in sentences does not always, or often, excite appellate intervention.
In this case, it appears that the judge was particularly animated to pass somewhat higher sentences upon the applicant than upon Rodi because of the applicant’s prior convictions and because of Rodi’s youth and the impact of delay in depriving him of the possibility of a juvenile justice disposition. These were relevant considerations, and a proper basis for discrimination. In my view, the applicant could not have a justifiable sense of grievance by reason of any aspect of the sentencing disparity.
Ground 6
Relevant provisions and jurisprudence are noted in my reasons in Rodi,[10] and I will not repeat them. I am persuaded, particularly having regard to the fact that the judge gave no reasons for the licence disqualification order as would explain the length or commencing date of the disqualification, and having also regard to the strong evidence of rehabilitation, that the judge erred in the order which she made.
[10][2011] VSCA 48, [72]-[74].
There was definitely reason, particularly in light of the applicant’s past record of relevant offending, for the obligatory licence disqualification order to have a practical punitive impact. That could be achieved if the period of disqualification extended beyond the date of release from imprisonment. But there was good evidence that the applicant had changed his ways for the better after February 2007, and his rehabilitation was to be encouraged. As a chef, he might be expected to work irregular hours; and use of a motor vehicle, if not obligatory, would be likely to be most useful.
The applicant was sentenced on 14 May 2010. So he has been imprisoned for about nine and a half months since sentence. The judge made a declaration of 73 days pre-sentence detention. The non-parole period fixed by the judge was two years’ imprisonment. Whilst it will be a matter for the Parole Board, the Court was not informed of any circumstance which makes it improbable that he will then be released. I would impose licence cancellation and disqualification from obtaining a licence for a period of 24 months commencing on the day that the Court delivers judgment. That would mean, all things being equal, that the applicant would be disqualified from obtaining a licence for a period of about 12 months after his release. I consider that such a disposition would best accommodate the competing considerations which bear upon the period of disqualification.
HARPER JA:
I agree with the conclusions reached by the learned presiding judge and with the reasons upon which they are based. I wish only to add a short comment of my own.
As his Honour has noted, paragraph 5 of the applicant’s submissions included a reference to the fact that the tragic consequences which flowed from the applicant’s conduct were unintended and unforeseen. This, however, is not and cannot be a mitigating circumstance. Were the consequences intended and foreseen, a crime of an altogether different magnitude would have been committed. Nevertheless, the failure to foresee that driving at a speed upwards of 34kph above the speed limit at night on a major road across numerous intersections might result in death and injury to others, is in itself conduct which warrants severe punishment. In fixing that punishment the Courts must bear in mind that, for some, one means of encouraging foresight is the threat of a term of imprisonment.
HARGRAVE AJA
I agree with Ashley JA.
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