Scott v The Queen

[2013] VSCA 347

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0088

NATHAN AARON SCOTT

Applicant

v

THE QUEEN

Respondent

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JUDGES	WEINBERG, PRIEST and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 October 2013
DATE OF JUDGMENT	3 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 347
JUDGMENT APPEALED FROM	R v Scott [2012] VSC 514 (Beach J)

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CRIMINAL LAW – Appeal – Sentence – Manslaughter – Failing to stop after an accident – 9 years’ imprisonment – Non-parole period of 6 years fixed – Whether sentence manifestly excessive – Serious offending – All mitigating features taken into account – Sentence not outside the range – Leave to appeal refused – No point of principle.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr A Barrie	C Marshall & Associates
For the Respondent	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

1. I agree, for the reasons given by Coghlan JA, that leave to appeal should be refused. 

PRIEST JA:

1. I agree with Coghlan JA.

COGHLAN JA:

1. The applicant has elected to review a decision on the part of the Registrar to refuse an extension of time within which to make application for leave to appeal against sentence.  The respondent does not oppose the extension of time.

Factual background

1. On 19 October 2012 the applicant pleaded guilty in the Supreme Court at Shepparton to the charges set out below.  He was sentenced on 7 November 2012 as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Manslaughter [Common Law]	20 years’ imprisonment [s. 5 of the Crimes Act 1958]	8 years 6 months	BASE
2	Failing to stop after an accident [s. 61(1)(a) of the Road Safety Act 1986]	10 years’ imprisonment [s. 61(3) of the Road Safety Act 1986]	12 months	6 months
Total Effective Sentence:		9 years’ imprisonment
Non-Parole Period		6 years’ imprisonment
Pre-sentence Detention:		258 days
6AAA Statement		11 years’ imprisonment with a non-parole period of 8 years.
Other relevant orders: Pursuant to s. 89 of the Sentencing Act 1991 and s. 61(6)(a) of the Road Safety Act 1986, the prisoner’s licence was cancelled and he was disqualified from obtaining a driver’s licence for a period of four years commencing 12 months before the expiration of the non-parole period. Pursuant to s. 464ZFB(1) of the Crimes Act 1958 – Retention of a forensic sample.

1. It was not until 21 May 2013, more than six months after the applicant was sentenced, that he filed his application for an extension of time and his notice of appeal.  The one and only proposed ground of appeal is as follows:

The sentence imposed by the learned sentencing judge is manifestly excessive in that he failed to take into account, or properly take into account :

(a)       the youth of the applicant;

(b)       the mental state of the applicant at the time of the offence;

(c)       the deprived background of the applicant;

(d)      the assault upon the applicant before the offence and the circumstances surrounding the offence; and

(e)       the applicant’s prospects of rehabilitation.

1. It is fair to say that counsel, who appeared on behalf of the applicant before this Court, relied primarily upon particulars (a), (b) and (c).  He accepted that particulars (d) and (e) did not add significantly to his case.

1. As indicated, the respondent did not oppose an extension of time.  The matter then proceeded as if it were an application for leave to appeal.

1. Had it not been for the respondent’s willingness to concede that there should be an extension of time, there would have been a real issue as to whether that extension should be granted.  This was a case where the delay between sentence and the filing of the appropriate papers was substantial.  A period of more than six months, against a time limit of 28 days in which to lodge the relevant initiating process in this Court is not a matter to be treated lightly.  That is particularly so where the reasons advanced for the delay were less than compelling and, in particular, there was no explanation whatever for the delay between late February 2013 and the filing of the relevant papers in May of this year.

1. It is true that the fault was not that of the applicant.  It appears that the position taken by the Director is that when he is not adversely affected by delay, and the delay is not the fault of the applicant, he will not oppose leave.  No doubt he takes that position as a matter of fairness.

1. It seems to me, however, that the community and, in particular, victims are entitled to finality.  It must be very difficult for those against whom offences have been committed to be told that there is a 28 day time limit on appeals, which then passes, and then to be told perhaps months later that there will in fact be an appeal.

1. I would not quibble with the Director’s view that, ordinarily, he will not oppose extensions of time.  However, it seems to me that the time has come for him to reconsider his stance, at least in cases of significant delay.

1. It should be noted that many appeals to this Court (probably too many) are brought out of time.  In most cases, the Registrar grants the extension sought.  In this case, however, he declined to do because of the lengthy period which had elapsed, and because of the paucity of the explanation offered.

1. It seems common for appeal papers to pass through many hands before they are finally lodged.  However, by the time these papers have been examined for perhaps the third or fourth time, it should be understood that even though the 28 time period has already elapsed, the matter must be attended to with particular urgency. 

1. Of course, a case that is truly meritorious will not normally be dismissed simply because the application has been brought out of time.  Nonetheless, the longer the delay, the stronger the prospects of success will have to be if time is to be extended.

The offending

1. On 18 March 2011, the applicant spent the day with friends driving around Shepparton and planned to have some dinner and drinks that night to celebrate his birthday which was the following day.  One of the applicant’s friends, Turvey, was designated as being the driver for the night.  The occupants of the car spent the night driving around Shepparton, stopping here and there to talk to various people, and consuming alcohol (except for Turvey).  At some point during the evening, the applicant became aware of a party that was occurring in Shepparton and wanted to visit one of his friends who was there.  He and his friends arrived at the party and shortly thereafter the host of the party came out and told the applicant he was not welcome.  An altercation ensued between the two men until the applicant and the other passengers got back in the car and drove off.  The applicant, who was described as being angry and making threats, told Turvey to pull over so that he could get into the driver’s seat.  Having gotten into the driver’s seat, the applicant drove back to the house party.  By now there were a number of people standing out on the street.  The applicant  drove past the house once and then after having turned around, drove back towards the house on the wrong side of the road and hit the victim (Charge 1) and narrowly missing several others.  The victim died in the early morning of 19 March.  The applicant then drove the car home (Charge 2).  Once back at his home, pressure was put on the passenger Croxford to tell the police that she was the driver of the car and as such she was arrested.  Two days later it was discovered that the applicant was the driver and he was arrested and interviewed.

Ground of appeal

1. Counsel who appeared for the applicant readily acknowledged that the sentence of 8 years and 6 months imposed on his client for the offence of manslaughter was not dissimilar to other sentences imposed in like circumstances.[1]  It was also acknowledged that the learned sentencing judge had referred specifically to each of the matters identified as having mitigating effect in the particulars.  Nonetheless it was submitted that insufficient weight had been given to the three main particulars set out in (a), (b) and (c) so as to render the sentence manifestly excessive.

   [1]Reference was made to both Borthwick v The Queen [2012] VSCA 180 and Saleh v The Queen [2012] VSCA 210.

1. In my opinion, the sentence could fairly be described as high, but not remarkably so.  This was a case of motor car manslaughter involving a young driver.  The question of deterrence, both general and specific, sensibly moderated by other relevant considerations, had to be given great weight.

1. The first matter pressed on the application was the applicant’s youth.  He is now 21 years of age, and was one day shy of his 19^th birthday at the time of the offending.  Youth is always an important consideration in sentencing.  In general, rehabilitation will be a much more important consideration for the young than it will be for a hardened offender.  However, as was said by Redlich JA in Azzopardi v The Queen: [2] 

The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced.  As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth.  But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.[3]

[2](2011) A Crim R 369.

[3]Ibid [44].

1. The learned sentencing judge was very much alive to the importance of youth.  He said in his sentencing remarks:[4]

In the case of a youthful offender like you, rehabilitation is usually said to be more important than general deterrence because punishment may in fact lead to further offending.  It is correctly said that the incarceration of a young person in the adult prison system, carrying as it does a real potential to cause damage of a kind for which both the offender and the community may pay dearly in the long term, should not be ordered unless the Court is satisfied that the powerful factors which have been accepted by the legislature and the courts as requiring and justifying the existence of a separate youth correctional system have been very clearly displaced in importance in favour of the adoption of a more punitive approach.[5]  That said, in the circumstances of this case, the primacy of rehabilitation as a sentencing consideration must be moderated by the need for the Court to express the community’s denunciation of your criminal conduct and to deter you and others from engaging in similar conduct in the future.[6]

[4]Sentencing reasons [26].

[5]R v Misokka [1995] VSC 215 (Vincent AJA).

[6]Cf DPP v Neethling (2009) 22 VR 466, 477 [53]-[54].

1. That passage fully accords with legal principle, and demonstrates no error.

1. Although the applicant had no prior convictions as such, he did have a criminal history.  In August 2009 he had been involved in an episode which was very similar, in many respects, to the events before this Court except for the fact that no unfortunate pedestrian had been struck and killed.  The applicant had consumed alcohol on that occasion and his response to a minor ‘assault’ had been one of uncontrolled rage.

1. On 2 February 2010 the applicant appeared before the Shepparton Children’s Court charged with driving in a manner dangerous, unlicensed driving, unlawful assault and wilful damage, and exceed the prescribed concentration of alcohol within three hours of driving a vehicle.  He was released without conviction, on probation, until 31 December 2010.  It was a condition of that probation that he attend the Cool Heads Program, and that he also attend an anger management program as directed by his probation officer.

1. The present offences were committed within about three and a half months of that period of probation having expired.

1. The next particular upon which counsel relied, the mental state of the applicant, loomed large on the plea.  Dr Anthony Cidoni, a forensic psychiatrist, gave evidence.  His report was tendered, as well as a report by Dr Michelle Wauchope, forensic psychologist.

1. It was the opinion of both experts that the applicant had psychiatric and psychological deficits.  He suffered from mental illness and was of relatively low intellect.  He suffers from dysthymic disorder, alcohol dependence and has some symptoms of post traumatic stress disorder.

1. Doctor Cidoni regarded the assault on the applicant as being relevant to the increase of his anxiety which had contributed to the offending.  In that sense, this particular is inextricably linked to particular (d).

1. It is fair to say that after Dr Cidoni had been cross-examined, particularly in relation to the applicant’s response having been driven by anxiety and alcohol, his evidence was open to question, particularly, as to the causal link between those matters and the applicant’s offending.

1. It should be noted that neither of the experts, in their reports, said anything about the earlier incident.  When Dr Cidoni was cross-examined about that incident, he was not particularly forthcoming in relation to it.

1. In his sentencing remarks, the sentencing judge dealt with Dr Cidoni’s evidence in some detail.[7]  His Honour said:

While I accept that the medical conditions diagnosed by Dr Cidoni reduce your moral culpability to some extent, and that these conditions could mean that a sentence of imprisonment will weigh more heavily on you than it would on a person with normal mental health, the conditions described by Dr Cidoni are by no means at the most serious end of the spectrum.  They are matters to be weighed in the synthesis, but only to the extent of their established severity.  As was rightly conceded by your counsel, the considerations of general deterrence, specific deterrence and denunciation are also relevant in this case.[8]

[7]Sentencing reasons [17]-[21].

[8]Sentencing reasons [28] (citation omitted).

1. His Honour dealt with this aspect of the case appropriately.

1. The next question was whether the sentencing judge had given sufficient weight to the applicant’s ‘deprived/difficult background’.  The High Court has recently considered that question in two separate cases.[9]  For present purposes it is sufficient to say that the Court confirmed, in each of those cases, that disadvantaged background is a relevant sentencing consideration in all cases where it is established.

   [9]Bugmy v The Queen [2013] HCA 37; Munda v Western Australia [2013] HCA 38.

1. In this case the sentencing judge accepted that the applicant had come from a dysfunctional background.  In putting the matter in the way that he did, his Honour included it as part of the personal circumstances of the applicant, indicating that it was one of the many features he had taken into account.

1. The applicant’s dysfunctional background also formed part of the material referred to by Dr Cidoni and Dr Wauchope which led them to their particular conclusions.  It was therefore to that extent also taken into account.  Many sentencing considerations do not exist in isolation.  This is such a case.

1. The final matter addressed in argument concerned the applicant’s prospects of rehabilitation.  The sentencing judge made qualified findings regarding that issue.  Dr Cidoni’s opinion was very favourable findings to the applicant.  However, his Honour concluded:

Further, while you might be said to have some prospects of rehabilitation, nothing in the material suggests that these are any greater than anyone else with your past history might have.[10]

[10]Sentencing reasons [20].

1. Doctor Cidoni conceded that the applicant’s prospects of rehabilitation were dependent upon his ability to deal with his mental illness, and to refrain from the excessive use of alcohol.  It was open to the sentencing judge to arrive the conclusion that he did in respect of rehabilitation.

1. It was submitted that when all mitigatory factors were looked at together, the sentencing judge was obliged to have imposed a much lower sentence, and that it followed that this sentence was manifestly excessive. 

1. Counsel who appeared for the applicant argued the case with commendable succinctness, but said everything that could be put on the applicant’s behalf.  He could not have done more for his client. 

1. This was very serious offending.  It cannot be said that there are sufficient features in favour of the applicant to treat this sentence as wholly outside the range applicable, as is clearly demonstrated in the recent cases.[11]

   [11]Borthwick v The Queen [2012] VSCA 180 and Saleh v The Queen [2012] VSCA 210

1. I might have taken a different view had it not been for the similarity between what the applicant did in this case, and his earlier offending, also involving the driving of a motor car in an entirely reckless manner.  It is also important to note that, on the occasion of this offending, the applicant’s friends did everything in their power to prevent him from driving.  His conduct went well beyond what might have been described as an ‘anxiety’ response, and resulted in tragic consequences.

1. I would refuse leave to appeal.

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