Sharma v The Queen
[2017] VSCA 63
•27 March 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0008
| AJAY SHARMA | Applicant |
| v | |
| THE QUEEN | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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| JUDGES: | SANTAMARIA JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 27 March 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 63 |
| JUDGMENT APPEALED FROM: | DPP v Sharma (Unreported, County Court of Victoria, Judge Gucciardo, 14 December 2016) |
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CRIMINAL LAW – Application for leave to appeal against sentence – Two charges of dangerous driving causing death – Driving motor vehicle – Sentence 2y 6m – Whether manifestly excessive – Low moral culpability but high objective gravity – Serious example of offence – Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances |
SANTAMARIA JA:
The applicant, now aged 32, pleaded guilty on 21 November 2016 to two charges of dangerous driving causing death contrary to s 319(1) of the Crimes Act 1958.
The applicant was sentenced on 14 December 2016 as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1
Dangerous driving causing death [s 319(1) Crimes Act 1958]
10 years’ imprisonment [s 319(1) Crimes Act 1958]
2 years’ imprisonment
Base
2
Dangerous driving causing death
10 years’ imprisonment
2 years’ imprisonment
6 months
Total Effective Sentence:
2 years and 6 months’ imprisonment
Non-Parole Period:
12 months
Pre-sentence detention declaration:
23 days
Section 6AAA statement:
Total effective sentence of 3 years and 6 months’ imprisonment with a non-parole period of 2 years
Other relevant orders:
Licence disqualification for 18 months from date of expiration of non-parole period; Forensic Sample Order
The applicant now seeks leave to appeal his sentence.
Circumstances of offending
On 23 July 2014 at approximately 5.10pm, the applicant was driving a car along Sunbury Road between the main entrance to Melbourne Airport and the intersection of Sunbury Road and Oaklands Road.
The road at that location was sealed and in good condition, it had one lane in each direction and was separated by continuous double white lines. The speed zone for that stretch of road was 100 kilometres per hour. The weather was dry and visibility was good. That part of Sunbury Road in which the collision occurred is a relatively straight section of road whichever, however, has the beginning of a long sweeping curve to the left.
After passing Gate 2 to the airport and before reaching the intersection with Oaklands Road, the applicant drove across the double white lines in the centre of the road so that his car was entirely on the wrong side of the road and proceeded into the path of oncoming traffic.
The applicant’s car first ‘side-swiped’ a Ford station wagon which spun out of control before stopping some distance south. The driver of that car was not injured. The applicant then continued travelling on the wrong side of the road with a slight movement towards the centre of the road, causing the driver of an oncoming Nissan Pulsar to swerve off the road to avoid a collision. The applicant’s vehicle then collided head on with a white Hyundai sedan. The two occupants of the Hyundai, Mark Rowe and Henry Bryce, were fatally injured in the collision.
A reconstruction of the collision found that none of the vehicles involved were travelling at an excessive speed. No mechanical fault was found with the applicant’s vehicle that would have caused or contributed to the collision.
Personal circumstances of the applicant
The applicant was 32. He was born in Bangalore, India. He had one sister and no other siblings. His father was a bank official. The family valued education. After secondary school, the applicant attended pre university studies in sciences and completed a computer science diploma. In 2007, he came to Australia on a student visa. He completed a course in information technology and business analysis at Swinburne University. He did so having received financial help from his uncle.
While studying, the applicant worked part time. His father repaid a loan that had been made to him. He was employed as a research assistant at Melbourne University. In 2012, he went back to India to marry his wife. The applicant returned to Australia with his wife and, eventually, he was employed as a service desk analyst at Treasury Wine Estates. He was working there until remanded.
At the time of the offending, the applicant’s wife was seven months pregnant with their first child. She had found the early months of her pregnancy, difficult. As a result of the offences, the applicant lost his employment and his financial situation became precarious. His wife returned to India for a period. In April 2015, the family returned to Australia and rented a home in Oak Park. The applicant returned to work in IT at Dialogue Information Technology.
In August 2015, the applicant’s father was admitted to hospital in a critical condition and, in early September, he died.
The applicant was himself severely injured in the incident and remained in rehabilitation until August 2014.
Sentencing remarks
The sentencing judge referred to King v The Queen[1] where the majority said s 319 of the Crimes Act1958 is capable of encompassing a range of driving behaviours some of which, apart from their tragic consequences, may attract considerably less condemnation than others.[2] The offence occurs where there is some serious breach of the proper conduct of a vehicle so as to be, in reality and not speculatively, potentially dangerous to others. He said that the driving must cause some risk to the public over and above that ordinarily associated with the driving of a motor vehicle, including driving by a person who may on occasion drive with less than due care and attention.[3] The applicant had contended that his moral culpability was low: there was no evidence of speed, drugs or alcohol. His car had been serviced and was safe. The judge said:
However, although I accept that the absence of these factors tends to suggest low moral culpability, moral culpability in respect of criminal conduct doesn’t fall to be assessed simply by identifying aggravating features that could have been present and asserting the case under consideration cannot be regarded as serious or very serious because of the absence of these factors.
Both the dangerousness and the moral culpability fall to be assessed by reference to all the conduct and circumstances of the specific case, including your circumstances.
In terms of the latter aspect there is nothing objectively about your circumstances which aggravate the offence, in the sense that you had neither ignored warnings as to your driving nor had particular knowledge as to your state which made the risk associated with driving more blameworthy on this occasion. However there are some considerations which, in my view are pertinent here and which I consider relevant to whether this offending falls within the low middle range of offending or low range.[4]
[1](2012) 245 CLR 588.
[2]DPP v Sharma (Unreported, County Court of Victoria, Judge Gucciardo, 14 December 2016) (‘Sentencing remarks’) [17].
[3]Sentencing remarks [19].
[4]Ibid [25]–[27].
The judge held that the considerations that affect the assessment were (a) the applicant was only an ‘occasional driver’ who drove infrequently and (b) inexplicably he had driven ‘over double lines entirely onto the wrong side of the road, at a busy time of traffic, during that dusk period which often creates some issues of visibility and you seriously endangered six lives, including your own and two men died’.[5]
[5]Ibid [28].
While accepting that the applicant’s conduct was of low culpability, there was culpability none the less and that culpability had:
contributed to the creation of a situation of high objective gravity. Driving at the speed I mentioned, in the circumstances I have described and driving on to or drifting on to the wrong side of the road way, so as to be entirely on the wrong side of the road, on the opposite lane, whether the movement or the manoeuvre was fast or slow and irrespective of whether it was made by momentary inattention or caused by sleep or what was called in the case of Borg ‘zoning out’, was extremely dangerous and has resulted in a catastrophe where two men have lost their lives.[6]
[6]Ibid [30].
The sentencing judge said that specific deterrence ‘plays but a small role in this sentence’.[7] However, he added:
However the other principles of sentencing must be had regard to, not only for rehabilitation but in the context of driving and dangerousness on the road, must adequately address general deterrence, denunciation and just punishment. Such principles in this context, aid community protection by sending a message to the community that the legislature has placed a premium upon human life and the taking of life by driving a car dangerously is to be regard[ed] as a crime of some seriousness and that in such case, leniency for good character must be tempered.
This is echoed in the often quoted passage about social rehabilitation pronounced by Justice Vincent in … DPP v DJK. This function and underlying concern of the criminal law, in my view, is a valid and worthy objective achieved in this case by the imposition of a period of imprisonment reflective of factors in favour of mitigation of penalty but capable of being perceived by the community as being a just indication and an appropriate recognition, that despite uncertainties and cognisant of the relatively low level of moral culpability involved, the real significance of what has occurred as a consequence of the commission of a criminal offence has been recognised.
As was said in Jurisic, the requirement of justice and the requirements of mercy are often in conflict but we live in a society which values both justice and mercy.[8]
[7]Ibid [31].
[8]Ibid [32]–[34].
The judge took into account (a) the personal circumstances of the applicant described above, (b) the isolation to which his incarceration would subject his wife and (c) testimonials from acquaintances of the applicant and victim impact statements from the families of the two deceased men. He concluded his remarks as follows:
I have also considered the impact of Stephens v The Queen … and the Court’s conclusion that there is a need for a gradual increase in the sentence to be imposed in cases like these which fall within or above the mid category of seriousness. In my view your case falls within, albeit at the lower end of, the mid category of seriousness.
The review confirms to my mind that notwithstanding the significant mitigatory factors that may be prayed in aid, the objective seriousness of this offending and its consequences mandate a term of imprisonment. I have considered a combination disposition and sought a suitability assessment. However having considered this matter, finally I am of the view that there is little supervisory, rehabilitative or punitive work for a community corrections order to do, following your incarceration for a period which, to my mind is proportionate and meets the standard of parsimony to be applied.[9]
[9]Ibid [43]–[44].
Grounds of appeal
The application for leave to appeal contains the following proposed grounds of appeal:
1The learned Judge erred in categorising the Applicant’s offending as falling within the lower end of the mid category of seriousness justifying a gradual increase in current sentencing practices; and
2That sentence imposed was manifestly excessive in view of the Applicant’s moral culpability.
Applicant’s submissions
The applicant objected to the judge’s assessment of the offending as falling ‘within, albeit at the lower end of, the mid category of seriousness’. He referred to Stephens v The Queen[10] where this Court said:
In accordance with this Court’s responsibility to provide principled guidance to courts having the duty of sentencing and to ensure that appropriate sentencing standards are maintained, we consider it is timely that we address the question raised by the Director. Notwithstanding that the appeal will be dismissed, this prisoner’s appeal enables the Court to express the view that the adequacy of sentencing standards for this category of seriousness of the offence are inadequate. We have concluded that, particularly in light of the course followed in Harrison, we should state for the benefit of sentencing courts in future cases, that there is a need for a gradual increase in the sentences to be imposed for cases of dangerous driving causing death which fall within or above the mid-category of seriousness.[11]
[10](2016) 76 MVR 90 (‘Stephens’).
[11]Ibid 99 [33] (citations omitted).
The applicant said his offending was to be distinguished sharply from that considered in Stephens. In that case, the offending involved the appellant driving a buggy with his stepson seated in the passenger seat and his 9-year-old daughter sitting unrestrained between the stepson’s legs. While doing a lap of his paddock, the appellant attempted a ‘burn out’, during which his daughter was thrown from the vehicle and the buggy came to partially rest upon her. She died at the scene. In the present case, the applicant submitted that his conduct was of such low moral culpability that it should not have been assessed as the judge did.
The applicant accepted that the ground of manifest excess was difficult to make out. He referred to Director of Public Prosecutions v Neethling[12] where this Court set out the principles relevant to the sentencing of persons convicted of dangerous driving causing death.[13] The applicant referred to the Sentencing Advisory Council ‘Major Driving Offences: Current Sentencing Practices’ (‘the Report’) which examined current sentencing practices for the period 2006–07 and 2012–13 utilising cluster analysis, identifying groups of cases with common characteristics. Finally, he provided a list of cases said to be comparable and identified the sentences imposed in those cases.[14]
[12](2009) 22 VR 466, 472 (‘Neethling’).
[13]Ibid 472–3 [30]. He also referred to King v The Queen (2012) 245 CLR 588, 609 [47] (French CJ, Crennan and Kiefel JJ) and Boulton v The Queen (2014) 46 VR 308, 338 [131].
[14]That list is detailed and helpful. It is attached to these reasons.
Analysis
In King v The Queen,[15] French CJ, Crennan and Kiefel JJ said:
The ordinary meaning of ‘dangerous’ is ‘[f]raught with or causing danger; involving risk; perilous; hazardous; unsafe’. It describes, when applied to driving, a manner or speed of driving which gives rise to a risk to others, including motorists, cyclists, pedestrians and the driver's own passengers. Having regard to the ordinary meaning of the word, its context in s 319 and the purpose of s 319, as explained in the Second Reading Speech, negligence is not a necessary element of dangerous driving causing death or serious injury. Negligence may and, in many if not most cases will, underlie dangerous driving. But a person may drive with care and skill and yet drive dangerously. It is not appropriate to treat dangerousness as covering an interval in the range of negligent driving which is of lesser degree than driving which is ‘grossly negligent’ within the meaning of s 318(2)(b) of the Crimes Act. The offence created by s 319 nevertheless takes its place in a coherent hierarchy of offences relating to death or serious injury arising out of motor vehicle accidents. It is not necessary to that coherence that the terms of the section be embellished by reading into them a requirement for proof of some species of criminal negligence.[16]
[15](2012) 245 CLR 588.
[16]Ibid 605 [38] (citations omitted).
Bell J said:
The statute makes it an offence to drive a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances of the case. Driving a motor vehicle is an inherently dangerous activity. However, as Jiminez makes clear, the prohibition on driving in a manner dangerous to the public has never been an absolute one in this country. Thus, as is explained in that case, the liability of a driver who falls asleep at the wheel depends upon whether she ought to have known that she was running a real risk of falling asleep at the wheel.[17]
[17]Ibid 623 [90] (emphasis in original) (citations omitted).
In Neethling,[18] this Court described the principles that should inform sentencing in cases of dangerous driving causing death. In particular, the Court said:
[18](2009) 22 VR 466.
The New South Wales Court of Criminal Appeal has, on two separate occasions, found it necessary to publish a guideline judgment on sentencing for dangerous driving causing death. In the first of these cases, R v Jurisic (‘Jurisic’), the Court of Criminal Appeal cited with approval what had been said by Hunt CJ at CL in R v Musumeci (‘Musumeci’), a judgment which Spigelman CJ described as ‘in many respects ... a guideline judgment, although not called such’.
In Musumeci, Hunt CJ said:
This Court has held that a number of considerations which had to be taken into account when sentencing for culpable driving must also be taken into account when sentencing for this new offence of dangerous driving [causing death]:
1.The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness.
2.The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life.
3.Such is the need for public deterrence in this type of case, the youth of any offender is given less weight as a subjective matter than in other types of cases.
4.The courts must tread warily in showing leniency for good character in such cases.
5.So far as youthful offenders of good character who are guilty of dangerous driving, therefore, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances.
...
7.The statement made by this Court in relation to the previous offence of culpable driving – that it cannot be said that a full time custodial sentence is required in every case – continues to apply in relation to the new offence of dangerous driving [causing death]. As that offence is committed even though the offender has had no more than a momentary or casual lapse of attention, there must always be room for a non-custodial sentence (although that does not mean that a non-custodial sentence is ordinarily appropriate in such a case), but the case in which a sentence other than one involving full time custody is appropriate must be rarer for this new offence.
In our respectful view, these propositions apply with equal force to the offence with which we are presently concerned. Importantly, as the New South Wales Court of Criminal Appeal said in Jurisic, a non-custodial sentence for this offence should be seen as exceptional.
The guideline judgment in Jurisic was reviewed and revised by the New South Wales Court of Criminal Appeal in R v Whyte (‘Whyte’). The decision in Whyte was followed by this Court in Director of Public Prosecution v Oates (‘Oates’). In that case, Neave JA (with whom Warren CJ agreed) enunciated the following principles, which reflect what was said in Musumeci, Jurisic and Whyte:
1.General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.
2. A person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment.
3. The sentence which is imposed must take account of variations in the moral culpability of the person responsible.
4. A custodial sentence will usually be appropriate for this offence, except in cases where the offender’s level of moral culpability is low.
The New South Wales Criminal Court of Appeal has identified a series of factors which may aggravate the seriousness of a particular offence of dangerous driving causing death. The list of aggravating features, first propounded in Jurisic and then revised in Whyte, is as follows:
i. Extent and nature of the injuries inflicted.
ii. Number of people put at risk.
iii. Degree of speed.
iv. Degree of intoxication or of substance abuse.
v. Erratic [or aggressive] driving.
vi. Competitive driving or showing off.
vii.Length of the journey during which others were exposed to risk.
viii. Ignoring of warnings.
ix. Escaping police pursuit.
x. Degree of sleep deprivation.
xi. Failing to stop.
Consistently with the decision of this Court in Oates, we proceed on the basis that the propositions set out in [28]–[31] above govern the approach to sentencing in Victoria for the offence of dangerous driving causing death.[19]
[19]Ibid 471–473 [27]–[32] (emphasis in original) (citations omitted).
The applicant pleaded guilty to both charges of dangerous driving causing death. Necessarily, his actions gave rise to a risk to others. Even though the exact circumstances of his conduct remain unexplained, there must have been a failure to pay proper attention when driving.
In my opinion, it is not reasonably arguable that the judge wrongly evaluated the seriousness of the offending in the present case. He clearly recognised that the moral culpability of the applicant was low. But, he considered the offending to be of ‘high objective gravity’.[20] The movement onto the wrong side of the road ‘so as to be entirely on the wrong side of the road, on the opposite lane’ was ‘extremely dangerous’ and led to the deaths of two people.[21] In my opinion, the trial judge correctly evaluated the gravity of the offending. The offending here was a serious example of the offence, and should be punished accordingly. Moreover, the decision in Stephens[22] should not be confined as applying to cases of dangerous driving causing death which fall within or above the mid-category of seriousness as if that were a quasi-statutory category. In the present case, the judge was correct to give emphasis in his sentencing to matters of general deterrence and denunciation. He attempted to align the punishment with the real significance of what had occurred as a consequence of the offending.[23]
[20]Sentencing remarks [30].
[21]Ibid.
[22](2016) 76 MVR 90.
[23]Sentencing remarks [33].
In order to establish the proposed ground of manifest excess it will be necessary for the applicant to establish that the sentence imposed is wholly outside the range of sentencing options available. He will need to be able to demonstrate that something has gone obviously, plainly or badly wrong. Manifest excess is a stringent ground which is difficult to make good.
In my opinion, it is not reasonably arguable that the sentence is wholly outside the range. In imposing sentence, the judge took into account all relevant factors that were favourable to the applicant. As already indicated, there are matters other than low moral culpability that need to be considered in sentencing for the offence to which the applicant has pleaded guilty.
Conclusion
For the above reasons, the application for leave to appeal is refused.
APPENDIX ‘A’ – TABLE OF CASES DECIDED BETWEEN 2015-2016 FROM THE COUNTY COURT AND COURT OF APPEAL FOR THE OFFENCE OF DANGEROUS DRIVING CAUSING DEATH
| Case | Dangerous Driving Causing Death | TES/ NPP | Plea | Relevant factors |
| CCO ONLY | ||||
| DPP v [2015] | CCO – 2.5y | CCO – 2.5y | G (Committal Mention) | Circumstances: The offender failed to give way at an intersection and collided with a motorcycle – killing the driver. Speed was not a factor in the collision. Both drivers attempted to brake but collision could not be avoided. Relevant factors: Momentary inattention. No drugs, alcohol, speed or erratic driving. Early plea. Low moral culpability. Background: Male; 25 years of age. One prior conviction from the Children’s Court – driving unregistered dirt bike and drove away from police – non-conviction good behaviour bond. Difficult childhood involving abuse. Suffered from anxiety and depression prior to collision and diagnosed with PTSD following the collision. Working as a diesel mechanic for the CFA. Strong evidence of remorse. Conditions: 250 hours unpaid community work. Mental health assessment and treatment. |
| DPP v Nicolakopoulos [2015] VCC 1498 | CCO – 3y | CCO – 3y | G | Circumstances: Offender was driving a work truck along Church Street, Richmond. As the truck approached traffic lights he failed to apply his brakes quickly enough and swerved to the left to avoid a vehicle. The offender pulled his truck to the left, mounted the footpath and collided with a 14 year old girl who was on the footpath. She died from her injuries. Relevant factors: Busy road - the truck narrowly missed two other pedestrians. Momentary loss of concentration on a busy road - no other sources of aggravation. No drugs, alcohol, speed or erratic driving. Background: Male; 39 years of age. No prior convictions. Good character and work history. Offender was married with two very young children. Evidence of remorse. Conditions: 250 hours unpaid community work. Mental health assessment and treatment. Offender programs. |
| DPP v Warrick [2016] VCC 1134 | CCO – 3y | CCO – 3y | G (Committal Hearing) | Circumstances: Offender was driving a utility approaching a rural intersection. It was late in the day and the sun was low. Evidence showed the offender’s view was obscured by trees to a degree but the approaching traffic was visible. The offender slowed his vehicle but failed to give way. The front of the offender’s car clipped the driver’s side of the deceased car at the back door; causing it to spin and roll. Relevant factors: No drugs, alcohol, speed or erratic driving. DPP and defence agreed moral culpability at “lowest end of the range” (as set out in R v Neethling [2009] VSCA 116) as there was a complete absence of aggravating features. Background: Male; 70 years of age. No prior convictions. Good character and work history including community and volunteer work. Evidence of remorse and a diagnoses of depression and anxiety (falling short of PTSD). Conditions: 200 hours unpaid community work. Supervision. Offender programs. |
| DPP v Munday [2016] VCC 1244 | CCO – 4y | CCO – 4y | G | Circumstances: The offender attended a New Year’s Eve party at the deceased’s rural property at Kyabram. In the early morning, the offender and the deceased began to ride trail bikes on a road near the property. The bikes did not have lights and both men were not wearing helmets. There was no street lighting. Both men had alcohol in their systems. A witness saw sparks fly on the road and found both men injured 15m from each other. The offender could not recall exactly what occurred. The bikes were not damaged consistent with a collision, but it seems that both men tried to avoid a collision but swerved in the same direction. The deceased suffered a fatal head injury. Relevant factors: Risky behaviour - offender was not licenced to drive bike, wore no helmet and rode on an unlit road without headlights. Deceased was the only person put at risk. Offender was intoxicated (but not severely). No evidence of bad driving or showing off. Low-range category of seriousness. Background: Male; 37 years of age. No prior convictions. Good character and work history. Engaged with 4 children. Offender was a close friend of the deceased and remained in contact with the family. Evidence of remorse. Conditions: 350 hours unpaid community work. Assessment and treatment for drugs and alcohol. Offender programs. |
| DPP v Demel [2015] VCC 1735 | CCO – 4y | CCO – 4y | G (during Trial) | Circumstances: The offender was driving her car in a side street. The offender failed to give way as she turned onto Frawley Road and collided with the front driver’s side corner of the deceased’s vehicle. The deceased was elderly and suffered multiple injuries that led to various infections. He passed away 10 days later. Relevant Factors: Busy intersection. Offender did not stop or slow once entering Frawley Road. Offender undertook a wide left hand turn onto the wrong side of the road. No drugs, alcohol, speed or previous erratic driving. Not a momentary lapse of concentration – level of seriousness above that. Background: Female; 53 years of age. Migrated from Sri Lanka to Australia in 1984. Married with two children and two grandchildren. No prior convictions. Good character and work history including hospital work and involvement in church. Evidence of remorse and attendance to a road safety program. Conditions: 400 hours unpaid community work. Offender programs. |
| DPP v Crockett [2015] VCC 1857 | CCO – 4y | CCO- 4y | G | Circumstances: Offender was driving along the Metropolitan Ring Road with his wife in the front passenger seat, when he suffered an epileptic fit and lost control of his vehicle. The vehicle left the carriageway and travelled across a major freeway intersection, colliding with two vehicles. The driver of one of the vehicles was killed (adult male – age not known). The offender’s wife was also killed. Charges 1 and 2 – Dangerous Driving Causing Death Relevant factors: Busy road. Erratic driving for 1-1.5 kms. Offender was neglectful in medical regime and was not taking prescription medication as required. No drugs, alcohol or speed. Background: Male; 64 years of age. No prior convictions. Good character and work history. Offender drove frequently for work without incident for 30 years. Developed epilepsy in the 1970s. Wife suffered from dementia and offender was her full-time carer. Conditions: 250 hours unpaid community work. |
| DPP v Borg Appealed by DPP – DPP v Borg [2016] VSCA 53 | CCO – 5y | CCO – 5y | G | Circumstances: Offender utility vehicle along the highway at about the speed limit of 100 km/hr. D’s vehicle crossed double white lines and collided head-on with a car travelling at about 86 km/h in the other direction. D had not consumed alcohol or drugs, and was not using his mobile phone , though he had become fatigued shortly before the collision. The car was carrying a family – the mother and her 5 year old daughter were killed. The father and son suffered serious injuries. Charges 1 and 2 – Dangerous Driving Causing Death and Charges 3 and 4 Dangerous Driving Causing Serious Injury Relevant factors: Fatigue. Warning that offender was not in control of vehicle. Not a momentary lapse – continuing lack of control, at high speed lasting some minutes. No drugs, alcohol or speed. Low moral culpability but high objective gravity. Background: Male; 20 years of age. No prior convictions. Evidence of remorse and good character. Speech issues. Psychological problems. Autistic. IQ assessed recently at 83 (assessed at 67 when a child). particularly vulnerable in prison environment. Suffering reactive depression, adjustment disorder and anxiety at time of sentence Appeal: The Court of Appeal held that it was not reasonably open to the sentencing Judge to impose a CCO without any period of incarceration but the Court exercised its residual discretion not to interfere with the sentence. |
| IMPRISONMENT + CCO | ||||
| DPP v Dennis [2016] VCC 435 | 6m + CCO 4y | 6m + CCO 4y | G (at Trial) | Circumstances: Offender was working as a delivery driver in Mansfield and was driving behind two vehicles. Both vehicles ahead of the offender overtook a cyclist however the offender failed to see the cyclist and collided with him – causing fatal injuries. Relevant Factors: Momentary inattention (Cyclist would have been visible for at least 5 seconds - must have been significant lapse in attention). No drugs, alcohol, speed or erratic driving. Lower end of the scale of seriousness. Background: Male; (age not known). Some prior convictions – only traffic fines. Married with two children (both with learning difficulties). Good character and work history. Evidence of PTSD and OCD. Verdins not argued but accepted term of imprisonment would be more difficult. Conditions: 400 hours unpaid community work. Assessment and treatment for mental health |
| DPP v Roussety [2015] VCC 933 | 8m + | 8m + | G (before Trial) | Circumstances: The offender was driving a van in Oakleigh with a friend in the passenger seat. As the offender approached the end of an overpass he swerved right, into the centre median strip, hitting the kerb and collided with a light pole. The passenger was not wearing a seat belt, was ejected from the vehicle and died at the scene from head injuries. Relevant Factors: Speed (11km/hr over the speed limit) and more than momentary inattention. Driving towards the lower end of seriousness. Background: Male; 31 years of age. Relevant prior convictions for driving (including speeding), violent offences and Breach CCO. Major depressive disorder and features of PTSD – engage in counselling since collision. Verdins 5 and 6 applied but not significantly. History of drug and alcohol use (but not detected at time of collision) Conditions: 300 hours unpaid community work. Supervision. Assessment and treatment for mental health, drugs and alcohol. Offender programs. |
| DPP v De Jong [2016] VCC 424 | 12m | 15m + CCO 4y | G | Circumstances: Offender was driving from Leongatha to Mirboo North. The offender failed to negotiate a left-hand bend and collided head on with an oncoming vehicle which also collided with a third vehicle. The driver of the oncoming vehicle died at the scene and the rear-seat passenger (daughter of the deceased) was seriously injured (Charge 2 – Dangerous Driving Causing Serious Injury). Other people injured but no charge other than Charge 3 – Reckless Conduct Endangering Death. Relevant Factors: Longer than momentary lapse of concentration - Bend had clear signage and appeared offender was not open about cause of collision. Phone activity prior to collision but not taken into account that phone was being used at time. No drugs or alcohol. Moral culpability not low. Background: Male; 20 years of age. Very relevant and recent driving priors – including subsequent matters. Diagnosis of ADHD and PTSD post collision (Verdins applied). Evidence of good character including recent work history and volunteer work. Young offender. Conditions: Supervision. |
| DPP v Brown [2016] VCC 877 | 18m + CCO – 2y | 18m + CCO – 2y | G | Circumstances: Offender was racing friends on motorcycles in Mildura. Participated in more than one race and insisted that race occurred. The offender and deceased were riding at high speed, close to each other when they approached a bend. The deceased failed to brake in time, lost control ad was flung from the bike into a bollard receiving fatal injuries. Relevant Factors: Speed (45km/hr over speed limit) during race, erratic and competitive driving. Many pedestrians in area put at risk through race. No drugs or alcohol. Moral culpability moderate to high. Background: Male; 19 years old. No prior convictions. Good prospects of rehabilitation. Good work history since leaving school. Diagnosis of PTSD and depression. Strong family support. Friend of the deceased. Conditions: 300 hours unpaid community work. Attendance at programs, such as road trauma awareness, as recommended by the Office of Corrections. |
| DPP v Sismanoglou DPP v Sismanoglou | 21 months + CCO 2y | 21 months + CCO 2y | G | Circumstances: Offender was driving car with unroadworthy tyres that were in very poor condition and evidence that he was aware of this. About 1km before collision the offender stopped at a red light and when he accelerated it caused the vehicle to ‘fishtail’. The vehicle moved 30-40m before he could regain control. After the next set of lights, offender attempted a dangerous manoeuvre to overtake – again the car ‘fishtailed’ and he collided with the passenger side of a nearby car which spun and collided with a tree. The driver the of the vehicle died 10 months later from her injuries and two other passengers had serious injuries (Charges 2-3 – Dangerous Driving Causing Serious Injury) Relevant Factors: Prior erratic and competitive driving 1km before collision. Driving roadworthy vehicle in poor conditions. Medium traffic and other drivers in the immediate vicinity. Warning about quality if car and risk of fishtailing. No evidence of drugs or alcohol. Potential for harm and objective risk were high. Significant moral culpability. Background: Male; 18 years of age. Probationary licence. Strong family support and evidence of good character including volunteer work and part time work. Engaged in counselling for anxiety – No Verdins. Low risk of re-offending. Conditions: 250 hours unpaid community work. Assessment and Treatment for mental health. Attendance at programs, such as road trauma awareness, as recommended by the Office of Corrections. |
| IMPRISONMENT | ||||
| Sarikaya v R [2015] VSCA 236 | 2y | 5y / 3y 6m | NG | Circumstances: Offender reversed his car out of driveway and struck a 89 year old female pedestrian walking on the footpath with a walking frame. She fell and suffered a severe head injury. The offender left the scene immediately and attempted to conceal the fact that he had driven the car (Charge 2 – Failure to stop after an accident and Charge 3 – Failure to render assistance after an accident). Relevant Factors: Short period of risk to others. No speed, drugs, alcohol or erratic driving before offence. Charge 1 sentence was towards lower end of scale but the overall sentence increased due to Failing to Stop/Render assistance. Background: Male; 33 years of age. Prior convictions including driving offences. Complex medical and psychological history. Bipolar disorder. Back injury. History of drug use. |
| DPP v Dong Thanh Do [2015] VCC 90 | 2y 2m | 4 y 2 m / 2 y 3 m | NG | Circumstances: Offender was driving van with seven passengers and failed to stop at a stop sign at a rural intersection and collided with another vehicle. One of the passengers suffered fatal injuries and the others received serious injuries. Offender suffered brain injury. (1 x Dangerous Driving Causing Death, 6 x Dangerous Driving Causing Serious Injury) Relevant Factors: Not a momentary lapse. No drugs, alcohol, fatigue, erratic driving or speed. Moral culpability between middle and low. Background: Male, 41 years. Arrived in Australia 2001 from Vietnam. Gained citizenship. Evidence of good character and family support. Offender injured in collision. |
| DPP v Jason Coomber [2015] VCC 182 | 2y 6m | 2y 6m / 15m | G (first day of trial) | Circumstances: Offender driving in rural area. Lost control of car, crossed onto the wrong side of the road and collided with a tree – killing his front seat passenger. No evidence of braking. Estimated speed 62-82 km/hr. Additional charge of Possess Firearm as Prohibited person/ Relevant Factors: Drugs in system (low level - methamphetamine, amphetamine and GHB). No alcohol. Fatigue – had not slept for 2 nights. Momentary lapse in concentration but moral culpability is high due to these additional factors. Background: Male; 33 years old. Prior convictions including driving offences. Good work history. Long term partner. History of drug use and family trauma. Sleep disorder but not at time of collision. |
| DPP v Khallouf [2015] VCC 408 | 2y 6 m | 3y/ 21m | NG | Circumstances: Offender driving on Lygon Street Brunswick and collided with two parked vehicles. A pedestrian was struck by one of the parked vehicles and he suffered fatal injuries. The offender left the scene. PG to an additional charge of Attempt to Pervert the Course of Justice by making wife make a false statement that car was stolen and Possess Drug of Dependence (ecstasy pill), Drive Whilst Suspended, Fraudulently using number plates and Possess Dangerous and Controlled weapons. Relevant Factors: Momentary inattention or misjudgement. Light to medium traffic and pedestrians in area. No speed, drugs or alcohol. Moral culpability to lower end of the scale. Background: Male; 42 years of age. Relevant criminal convictions including past terms of imprisonment. Suspended Licence at time. |
| DPP v Winfield [2015] VCC 1723 | 2 y 6m | 2 y 6m with 15m suspended for 15 m | G (before Trial) | Circumstances: Offender and deceased engaged in drag race through Geelong North. Offender had two passengers. As both cars approached an intersection the deceased lost control of his vehicle and collided with a tree. He died upon impact. The two cars did not collide at all. Relevant Factors: Alcohol in offender’s system (.096-.115). Aggressive and competitive driving for some kilometres. Not momentary inattention. Poor road conditions. High risk to other drivers. Speed prior to collision. Moral culpability is mid-range. Background: Male; 33 years of age. Prior convictions including driving offences. Evidence of good character and work history. |
| DPP v Sahlan [2015] VCC 522 | 2y 9m | 2 y 9m / 12m | G | Circumstances: Offender struck a pedestrian at a well-marked pedestrian crossing controlled by traffic lights. Light was red for 7 seconds. Relevant Factors: Not a momentary lapse. Some evidence of careless and inattentive driving - Offender observed prior to collision to turn without indicating. No speed, drugs or alcohol. Background: Male; 46 years of age. No prior convictions. Malaysian background. Moved in Australia in 2012 with wife and daughter. Evidence of PTSD and anxiety. |
| DPP v Stephens Appealed – Stephens v R | 3y 3m | 3 y 3m / 2 y 3 m | G | Circumstances: Offender driving buggy on rural property with young children on board – 9y and 11y. Offender attempted to do a burn out and buggy rolled over. Offender’s daughter (who was not secured in the vehicle) was thrown from the buggy which flipped and landed on her. She suffered fatal injuries. His son was not injured. Charge 2 – Reckless Conduct Endangering Life (son). Relevant Factors: Serious offending. Vehicle had several warning signs. Dangerous manoeuvres and risk taking. Very high level of moral culpability. Background: Male; 38 years of age. No prior convictions. Evidence of good character and work history. Considerable anxiety and remorse. Symptoms of PTSD. Prospects of rehabilitation excellent. |
| DPP v Tam Chi Nguyen [2015] VCC 1179 | 3y 4m | 3y 6m / 2 y | G (before Trial) | Circumstances: Offender was intoxicated and drove two passengers through Sunshine. At various stages in a short period the offender lost control of his vehicle, - hitting a traffic sign, crossing into oncoming traffic, colliding with car (minor damage). The offender’s car spun out of control. The passenger door opened and his front seat passenger fell from the car, hitting his head. The offender then drove into a nearby the car park without stopping immediately (Charge 2 – Failing to Stop). Relevant Factors: Alcohol present (.105-.139). Not a momentary lapse of concentration. Offending was protracted and offender persevered in driving/ Major driving thoroughfare- considerable risk to a number of people. No breach of speed limit or deliberate risk-taking. High end of medium range of moral culpability – bordering on low end of high range. Background: Male; 29 years of age. No prior criminal history. Moved to Australia in 2011 - Vietnamese background. Good work history. Young son. Likely to be deported after sentence served. Evidence of Adjustment Disorder with mixed Anxiety and depressed mood. |
| DPP v Galea [2016] VCC 1269 | 4y | 4y 4 m / 2 y 6 m | NG | Circumstances: Offender was driving a stolen vehicle and was escaping police pursuit when he lost control of the vehicle doing a right hand turn. The vehicle collided with two trees. One passenger was unrestrained and suffered fatal injuries. Other charges: Theft of Motor Vehicle, Failing to Render Assistance, Theft, Criminal Damage Relevant Factors: Escaping police. Speed prior to collision but not during the pursuit. Erratic driving. Serious example of charge. Background: Male; 23 years of age. Criminal history including recent matters. Issues with drug use as a teenager. Injured in a car accident 2 years earlier. Borderline intellect. |
| DPP v Ristovski [2016] VCC 1226 | 6 y 3 m | 7 y / 4 y 9 m | G | Circumstances: Offender was driving erratically, competitively and at extremely high speed with two passengers over the course of an evening. After dropping one passenger off, the offender continued driving the offender lost control after a roundabout before colliding with a tree (at 82 km/hr). Front seat passenger died. Charge 2 – Reckless Conduct Endanger Serious Injury (2nd passenger not in car at time of collision). Relevant Factors: Evidence of drugs, alcohol, speed, erratic driving, competitive driving/showing off (burn outs), risk taking, long period of erratic driving. Drug and alcohol use at time. Moral culpability was high given all circumstances. Overall seriousness within high range. Background: Male; 28 years of age. Some minor criminal convictions and subsequent convictions including a breached CCO. Childhood diagnosis of ADHD. Possible adult diagnosis of schizophrenia. Mild acquired brain injury due to drug use.. Chequered employment history. Long standing issues with drugs and alcohol but has since stopped using. Evidence of remorse. Deceased was girlfriend at the time. Has undergone counselling and treatment. |
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