Rowe v the Queen
[2013] VSCA 140
•12 June 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0256
| MATTHEW ROWE |
| v |
| THE QUEEN |
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| JUDGES | BUCHANAN, NEAVE and OSBORN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 21 May 2013 |
| DATE OF JUDGMENT | 12 June 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 140 |
| JUDGMENT APPEALED FROM | Unreported, County Court of Victoria at Bendigo, Judge Pilgrim, Date of Sentence 19 October 2012 |
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CRIMINAL LAW — Sentencing — Dangerous driving causing death — Appeal against sentence of 3 years and 6 months’ imprisonment with a non-parole period of 2 years — Licence cancelled and disqualified from obtaining licence for two years — Passenger killed — Lower end of the range of criminality — Driving a roadworthy vehicle — Not affected by alcohol or drugs — Trial judge impermissibly influenced by the sentence imposed in another case — Trial judge erred by reasoning from the sentencing range supplied by the Crown in another case – Disagreement in expert evidence about the speed at which the car was travelling — Appeal allowed — Sentence decreased to 2 years and 6 months with a non-parole period of 20 months — R v McCraw [2012] VCC 1621.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr P J Smallwood | Victoria Legal Aid (Bendigo) |
| For the Respondent | Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Neave JA.
NEAVE JA:
This is an appeal against sentence by Mr Matthew Rowe, (‘Rowe’) who was found not guilty by a County Court jury of culpable driving, but guilty on the alternative verdict of dangerous driving causing death, following a ten day trial.[1] On 19 October 2012, a County Court judge sentenced Mr Rowe to 3 years and 6 months’ imprisonment with a non-parole period of 2 years. His Honour also ordered that Mr Rowe’s driver’s licence be cancelled and disqualified him from obtaining such a licence for two years from 19 October 2012.[2]
[1]DPP (Vic) v Rowe [2012] VCC 1675 (‘Reasons’). Leave to appeal was granted in Rowe v The Queen (Supreme Court of Victoria, Court of Appeal, Priest JA, 11 April 2013) (‘Rowe v The Queen’).
[2]Reasons, [44].
Circumstances of the offending and the offender.
On 4 July 2009, the appellant and the deceased, Mr Heath Tootell, were at a barbeque at a house in the Swan Hill area. At approximately 8:20 pm, the appellant and Mr Tootell got into the appellant’s utility and drove to help a friend, Mr Joel Alexander, who could not find the house where the barbecue was being held.
The appellant drove down the driveway onto Monash Drive, a bitumen road with gravel shoulders. After driving only 900 metres the vehicle began to slip sideways. It is not entirely clear why this occurred. The yawing may have commenced when the vehicle became unsettled as the result of driving over a bump, and the appellant attempted to correct the steering.[3] As Mr Rowe lost control of the vehicle, it slid on to the gravel shoulder, ploughed through a stand of eucalypts, and hit a dirt mound. It then flipped end-over to rest on its nose, partially supported by
the irrigation shed which halted its passage. Mr Tootell, who was not wearing a seatbelt, suffered a fatal head injury and died instantly.[4] When neighbours heard the crash and went to the scene, they saw the appellant walking down the road covered with blood and in a dazed condition. The appellant suffered an injury to his jaw, which requires a permanent plate and screws, but has otherwise made a full recovery. He was interviewed by the police about two months after the accident, but could remember little or nothing about it.
[3]Transcript of Proceedings DPP v Matthew James Rowe (County Court Criminal Jurisdiction, Bendigo, Pilgrim J, 1 – 9 October 2012) (‘Transcript’), 315.
[4]Rowe v The Queen [4]–[5].
The Crown case against Mr Rowe on the culpable driving charge was that he was driving the car at an excessive speed. The defence case was that it could not be established beyond reasonable doubt that he was the driver. Alternatively, even if he was the driver, it could not be established that the nature of his driving justified his conviction for culpable driving (or driving dangerously.)
The Crown relied on the evidence of a neighbour, Ms Walker, who at the trial confirmed the statement she had made to the police after the accident that:
As the car accelerated heavily I was listening and thinking to myself, slow down you guys. I was thinking it over and over as the car went past my house, but it just kept gaining a lot of speed.[5]
Shortly afterwards she had heard the crash.
[5]Transcript 60. In her statement to police, Ms Walker said the car was travelling about 150 kph. She refused to repeat that statement at the trial and said that the speed had been suggested to her by the police.
Mr Dallas Free, who was the works manager for the Swan Hill Council also gave evidence at the trial. Mr Free said at the time of the accident the road ‘was in need of repair’ and that a pipe under the road had increased the elevation of the road surface by about 300 millimetres. The council had later ‘cut a bit back’ to reduce the size of the hump.[6] In cross-examination Mr Free said that before it had been resurfaced, he had driven along Monash Drive on many occasions at a speed of about 80 to 100 kilometres per hour (‘kph’). He said he had never had any trouble doing so.[7] He also agreed with defence counsel that the road was easily and safely navigable at 100 kph.
[6]Transcript 450.
[7]Transcript 463.
The Crown called a number of expert witnesses. Dr Thomas Gibson, who has a PhD in bio-medical engineering, gave evidence that Rowe was the driver of the car. Based on the injuries suffered by Rowe and Tootell, and police descriptions and photographs of the scene, he calculated the speed at the time it crashed, at between 40 to 50 kph.[8]
[8]Transcript 227.
The Crown relied mainly on the evidence of Mr Glen Urquhart, who has civil engineering qualifications and extensive experience in the reconstruction of traffic accidents in his previous role as a Senior Constable in the Major Collision Investigation Unit. Mr Urquhart visited the scene of the accident on two occasions to observe debris and tyre marks and measure relevant distances. Using an equation which calculates the speed of a yawing vehicle from the curved path in which it travels[9] he estimated that at the point when the car began yawing it was travelling at 160kph. In his evidence-in-chief, Mr Urquhart also referred to an alternative method of estimating the speed of a vehicle, which calculates previous speed by reference to the energy of a collision. He said that he preferred the yawing speed calculation method and that the loss of energy calculation formula was likely to produce inaccurate results where there was loss of energy caused by a number of events prior to the vehicle stopping, as was the case here.
[9]Transcript 261
Mr Urquhart was critical of the evidence of the expert witness called by the defence, Dr Shane Richardson, who had estimated the speed based on the energy loss method, because Mr Urquhart considered that the energy loss caused by the vehicle hitting trees and then the dirt mound could not be taken into account accurately in calculating the speed before the car hit the bump in the road.[10] In cross-examination he rejected the assertion that the position of the scrape marks on the road was more consistent with a vehicle which was travelling at 90 to 116 kph, which had become unsettled when it came into contact with the bump in the road.[11]
[10]Transcript 271. He also said that Dr Richardson had not taken account of the energy loss caused when the dirt was gouged out of the mound which the car hit before it finally stopped and when the car hit the shed.
[11]Transcript 311.
Defence counsel emphasised the significance of the bump or undulation in the bitumen, suggesting that the change in road surface, rather than excessive speed, may have played a major role in the car leaving the road. Dr Shane Richardson, a mechanical engineer with a PhD in structural engineering who has experience in assessing handling and roll-over of vehicles, was called as an expert witness for the defence. In his opinion evidence, which was based on access to scene photographs and statements, Dr Richardson criticised Mr Urquhart’s conclusion that a mark on the road was a yaw mark and said that the bump in the road and the dirt mound may have affected Mr Urquhart’s calculation.[12] He originally estimated that the car was travelling at between 95 kph and 100 kph, when it moved off the road.[13] However in response to Mr Urquhart’s criticism that he had not taken sufficient account of other factors which might have slowed down the utility before it crashed, he modified his estimate of the upper limit to 116 kph.[14] The speed limit along Monash Drive is 100 kph.[15]
[12]Transcript 500-501, 528.
[13]Rowe v The Queen [6].
[14]Transcript 514.
[15]Respondent’s submissions [2].
The appellant, who was 22 years’ old at the time of the offending, has a partner, Ms Jaylee Morrison, and two children. He was supported in court by his family and a former employer, Mr Edward Wildberger, who flew from Western Australia to give evidence for him at the plea hearing. Mr Wildberger said that the appellant was a, ‘terrific young man to have in [his] business.’[16] The appellant also relied on a number of other favourable references. The judge accepted that he was deeply remorseful for Mr Tootell’s death. The appellant returned a zero blood-alcohol content when he was tested after the accident, and was not under the influence of drugs.
[16]Rowe v The Queen [7].
Grounds of appeal
On 11 April 2013, Priest JA granted leave to appeal on the following grounds:
1. The sentencing judge erred by:
a. having regard to an irrelevant consideration, namely the sentencing range provided by the Crown in another case (R v McCraw);
b. taking another sentence (R v MCraw) into account to an impermissible extent;
c. failing to afford procedural fairness to the appellant, by having regard to the sentencing range provided by the Crown in another case (R v MCraw) and the sentence imposed in that case when the appellant did not know all of the relevant details in that case;
2. The sentencing judge erred in finding that it was not known what evidence, in relation to the speed that the appellant was travelling, the jury accepted;
3. The sentence imposed, and the non-parole period fixed, are each manifestly excessive.[17]
[17]Rowe v The Queen.
Ground 1
During the plea hearing the prosecutor submitted that the appropriate sentencing range was between two to three years, with a non-parole period of 18 months to two years. His Honour then remarked that the range was ‘significantly different from the last matter’ and referred to R v McCraw,[18] a case heard a few days earlier. When counsel for the Crown said he had obtained instructions from the Chief Crown Prosecutor as to the range, the judge asked counsel whether the Chief Crown prosecutor was aware of the range relied upon in the other case. His Honour said that the range put in McCraw was three and a half to five years with a non-parole period of two and a quarter to four years, and that the instructions as to range in the two cases were inconsistent.
[18][2012] VCC 1621 (‘McCraw’).
In his sentencing reasons the judge again referred to McCraw, noting however that when Mr McCraw was tested some hours after the accident he had a high blood-alcohol reading of .097, that his speed at impact was only a fraction over 69 kilometres per hour and that, unlike the appellant, he was entitled to some credit for pleading guilty. He said that he was ‘flabbergasted’[19] when counsel proposed a different range from that relied on by the prosecutor in McCraw and that the facts in Rowe were ‘somewhat parallel’[20] with those in the former case:
On Monday, of this very week, as you highly probably know I sentenced Brandon McCraw for the offence of dangerous driving causing death. Four days later I am now to sentence Matthew Rowe for the same offence.
In Brandon McCraw’s case … I sought from the prosecution, what is the prosecutor’s view as to the appropriate sentencing range? The prosecutor, Mr Jones, revealed his instructions. His instructions were that the appropriate sentence in the case of Mr McCraw was of three and a half years to five year maximum. We call that as a head sentence with a non-parole period of two and a quarter years to four years.
Mr McCraw, I must recognise, when committing the offence of dangerous driving causing death had a blood alcohol reading of .097. The alleged speed of the impact was estimated at a fraction over 69 kilometres per hour. I suppose, in fairness, I should also say his passenger, like your passenger had had a day out and incredibly they both had very similar [blood alcohol] readings of approximately .15.
It was also the expert evidence of the doctor, called Dr O’Dell, that Mr McCraw’s blood alcohol reading may have been significantly higher at the time of the impact as distinct from the time when the blood sample was taken because he, like you, was taken to hospital and it was then that the blood sample was taken some hours later.
Mr McCraw pleaded guilty. He is to get a discount for pleading guilty and, as I saw it, I did discount his sentence. I also, as I have spelled out to you, mentioned all those other principles where you must get credit such as delay and youth and things of that nature.
In this case, that is Mr Rowe’s case, I again sought from the prosecution what the range was as instructed by those that instruct Mr Jones and I was astounded - I mean astounded - when told by the prosecutor that the appropriate range was two to three years. Not three and a half to five and the non-parole period was 18 months to two years, significantly different, and you are not being criticised for it you pleaded not guilty. He gets the credit for pleading guilty. You do not.[21]
[19]Reasons, [34].
[20]Ibid.
[21]Ibid, [28]–[33].
The appellant argues that the sentencing trial judge was impermissibly influenced by the sentence imposed in the case of R v McCraw. Although it was not inappropriate for his Honour to challenge the prosecutor about the appropriate sentencing range, both the discussion during the plea and his Honour’s sentencing reasons showed that he had treated the sentencing range put forward by the prosecutor in McCraw as a major, if not a decisive, factor in determining the sentence range applicable to the appellant. This was the case despite his Honour’s reference to other sentencing considerations relevant to Mr Rowe, including his plea of not guilty (compared with McCraw who pleaded guilty), his comparative youth and the delay between the offence and imposition of sentence. He submitted that it was a sentencing error to treat sentences imposed in other cases as determinative of the sentence that is to be imposed in a particular case.
The appellant also argues that because the reasons in R v McCraw were not available to the appellant’s counsel prior to the plea hearing and counsel was not aware of all the factors taken into account in sentencing McCraw, the appellant was denied procedural fairness.
The respondent submits that the statements by his Honour about R v McCraw were merely observations which were intended to evoke a Crown response to the judge’s questions about the appropriate range. By his remarks during the plea hearing and in his sentencing reasons the judge simply intended to highlight the inadequacy of the Crown’s sentencing range.[22] In its written submission the respondent noted that his Honour prefaces his remarks about R v McCraw with the words ‘I intend to make a comment,’[23] and that he was not going to go back over Mr McCraw’s case but ‘I just make this very brief observation.’[24]
[22]Respondent’s submissions [4.2].
[23]Reasons [28].
[24]Reasons [34].
The respondent also submits that the sentencing judge did not treat the sentence imposed in McCraw as determinative of the sentence which should be imposed on the appellant. Although his Honour had referred to that case in his sentencing reasons he had also referred to a number of other factors which he had taken into account, including hardship to the appellant,[25] as well as the effect of the delay of more than three years between the commission of the offence and the imposition of sentence.[26] The respondent argues that there was no breach of procedural fairness because his Honour simply relied upon knowledge of sentences for the same or similar offences derived from his experience as a sentencing judge.[27] In any case the appellant’s counsel had said during the plea hearing that he was aware of the sentence imposed in McCraw.
[25]DPP (Vic) v Rowe [2012] VCC [15]-[16] (‘Rowe’). I note that the judge may also have erred by taking account of hardship to the appellant’s family and young children in the absence of exceptional circumstances.
[26]Rowe [2012] VCC [17]-[21].
[27]R v Williscroft, Weston, Woodley & Robinson [1975] VR 292, 301.
Finally, it was submitted that even if his Honour had erred in the manner alleged in ground 1, the Court should dismiss the appeal under s 281 of the Criminal Procedure Act 2009 because it could not be satisfied that a different sentence should be passed on the appellant. Counsel relied on a table prepared by the Crown setting out the sentences imposed for this offence following the increase of the maximum sentence to 10 years. The table showed that the vast majority of people charged with this offence pleaded guilty and received sentences in the range of 12 to 42 months. By contrast Mr Rowe had not pleaded guilty and the trial had been prolonged because he had argued that it could not be established that he was the driver, as well as challenging the Crown case that he was driving at a very high speed. The sentence imposed was entirely appropriate having regard to the fact that he pleaded not guilty and the seriousness of the offending.
Conclusion on ground 1
In my opinion, ground 1 is made out. While the judge would not have erred if, at the plea hearing, he had simply told counsel for the Crown that he did not accept the proffered sentencing range, his Honour’s sentencing reasons suggest that he treated McCraw as the starting point for determining the sentence he should impose. Indeed, his Honour appears to have amplified his error in this present case by reasoning from the Crown range in McCraw and not merely the sentence. As Priest JA remarked in his leave reasons, sentences are not precedents. Their proper use was explained by this Court in Hudson v The Queen[28] as follows:
Sentences imposed in ‘like’ cases provide some indication of the range that is open in the proper exercise of the discretion.[29] They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the ‘instinctive reaction’ when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of ‘current sentencing practices’ which is one factor that the court must consider under s 5(2) of the Sentencing Act 1991. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.
‘Like’ cases can only, at best, provide a general guide or impression as to the appropriate range of sentences.[30] In that context it has been said on many occasions that ‘comparable cases’ can only provide limited assistance to this court.[31]
[28](2010) 30 VR 610.
[29]Hili v R (2010) 242 CLR 520 536–7, [53]–[54]; R v Shepherd (2003) 142 A Crim R 101 105, [17].
[30]Jimmy v R (2010) 77 NSWLR 540 574, [137].
[31]R v Price (Unreported, Court of Criminal Appeal, 14 April 1987); Director of Public Prosecutions v Maynard [2009] VSCA 129 [35]–[36]; Director of Public Prosecutions v Moore [2009] VSCA 264 [13]; WCB v R [2010] VSCA 230 [63].
I would reject the Crown’s submission that, even if his Honour erred by relying too heavily on the sentence in McCraw, the appeal should fail because no different sentence should be imposed on the appellant. During the hearing of the appeal the prosecutor handed up a table of sentences compiled by the Crown which were imposed in 2012 for the offence of dangerous driving causing death. Such tables must, of course, be used with caution, as they do not indicate the particular circumstances of the offending or of the offender in each of cases included. However, even with that qualification the table provides little support for the Crown’s contention. The Crown submission that the mean sentence for a person who pleaded not guilty to this offence in 2012 was 45 months is meaningless, because only three sentences (one of which was the sentence imposed in Rowe) related to offenders who pleaded not guilty. Since ground 1 is made out, the appellant must be re-sentenced.
Ground 2
In his sentencing reasons the judge referred to the different estimates of speed made by Mr Urquhart and Dr Richardson, described them as inconsistent and said that because he had not been in the jury room it was not possible to know which of this evidence the jury had accepted. Later in his reasons his Honour said that:
I would not be surprised if they accepted the evidence of [Ms Walker].b She was not as specific. She avoided, as you heard, trying to identify a specific speed.[32]
[32]Reasons [43].
The appellant argues that the judge was required to make a finding as to the approximate speed at which the appellant was travelling and had erred by failing to do so. He submits that because the jury found him not guilty of culpable driving, the jury must have rejected the evidence of Mr Urquhart.[33] Accordingly, his Honour was required to disregard the evidence of Mr Urquhart when sentencing the appellant, and to sentence him on the basis that the vehicle was travelling at a speed between 90 kph and 116 kph, so that the offending was at the lower end of the scale of culpability.
[33]Appellant’s submissions [25].
The respondent submits that the judge was not required to determine the precise speed at which the appellant was driving, because the jury were clearly satisfied beyond reasonable doubt that he was travelling in excess of the safe or usual speed for the conditions of the road. The jury verdict of not guilty on the culpable driving charge did not mean that the judge had to reject Mr Urquhart’s evidence. This was because the jury might have brought in a merciful verdict of guilty on the lesser offence, rather than convicting the appellant of culpable driving.
Further, the respondent submits that the jury might have found Rowe guilty because they accepted the evidence of Ms Walker - that she heard the car accelerate, and the evidence of Mr Free - that a vehicle driving at the speed limit would not encounter any difficulties because of the undulating surface of the road. The jury could also have considered that the car was travelling at an excessive speed because Mr Richardson had accepted that the distance between the point where scrape marks were left and the crash site was 90 metres and the car had knocked down a number of trees before it crashed.[34]
[34]Transcript 543.
Conclusion on ground 2
In my opinion ground 2 fails. Because the expert evidence was replete with technicalities, the jury might well have found it impossible to decide whether to accept Dr Richardson or Mr Urquhart’s evidence about the speed at which the utility was travelling when it left the road. Nevertheless, it was open to the jury to find the appellant guilty of dangerous driving causing death on the basis of their own experience of having to modify driving speed to take account of road conditions and the other evidence on which the Crown relied. Consequently, his Honour did not err in sentencing the appellant on the basis that the jury must have found he was travelling at an excessive speed, without making any finding as to which of the experts’ evidence should be accepted.
Ground 3
Because ground 1 is made out this ground only requires brief discussion. The appellant submits that the offence should be regarded as falling at the lower end of the range of criminality because he was driving a roadworthy vehicle, was not affected by alcohol or drugs and was not fatigued. Nor was there any evidence that he was showing off, driving aggressively or racing another vehicle. Further, the appellant was entitled to rely on strong mitigating factors, including his youth at the time of offending (he was 22), his remorse, his sustained employment history and good prospects of rehabilitation and the long delay between commission of the offence and sentencing. Having regard to those factors, the sentence imposed fell well outside the range of sentences which could be imposed in the reasonable exercise of the sentencing discretion.
The Crown argued that the offence fell into the low to mid range of criminality. Although evidence of hardship to an offender’s family can only be taken into account as a mitigating factor when that hardship is exceptional,[35] the judge had incorrectly treated hardship to the appellant’s family as a mitigating factor. In addition, the judge had failed to take account of the fact that the appellant had a conviction for speeding, driving without a licence, in addition to the conviction that the Crown had conceded should not be taken into account because it arose out of circumstances where the appellant was responding to an emergency.
[35]Markovic v R (2010) 30 VR 589.
The prosecutor submitted that the sentencing range put to the judge below was lenient, and that the sentence actually imposed could not possibly be said to fall outside the range of his Honour’s discretion.
It is trite in law that the ground of manifest excess is difficult to make out. If it were necessary to determine the matter, I would reject ground 3. The maximum term of imprisonment which can be imposed for this offence is ten years. I would accept the Crown submission that this offence falls into the low to mid-range category of offending. The appellant cannot claim the benefit of having pleaded guilty to the offence, although he must be given credit for his remorse.
Re-sentencing
In re-sentencing the appellant I have had regard to the seriousness of the offence, the principle of general deterrence, the need to give some emphasis to
specific deterrence because of the appellant’s prior breaches of road traffic laws and the range which the Crown put forward at the plea hearing. I have also taken account of the mitigating factors to which the judge referred, other than hardship to the appellant’s family. I would re-sentence him to a head sentence of two years and six months and fix a non-parole period of 20 months. I would not alter the period of licence disqualification imposed by his Honour, which will run from the date of the original sentence.
Pursuant to s 18 of the Sentencing Act 1991, pre-sentence detention has been calculated at 237 days.
OSBORN JA:
I agree with the reasons of Neave JA and with the orders she proposes.
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