Spanjol v The Queen
[2016] VSCA 317
•14 December 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0073
| JOSIP SPANJOL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, REDLICH and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 July 2016 |
| DATE OF JUDGMENT: | 14 December 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 317 |
| JUDGMENT APPEALED FROM: | [2015] VCC 1907 (Judge Dean) |
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CRIMINAL LAW – Appeal – Sentence – Negligently causing serious injury by driving – Offence seriousness – Victim was passenger – Whether victim’s knowledge of driver’s intoxication affects driver’s culpability – Driver’s responsibility for negligent driving unaffected – Whether victim’s failure to wear seatbelt contributed to injury – Not shown that failure to wear seatbelt made injuries more serious – Sentenced to three years’ imprisonment, non-parole period 18 months – Appeal dismissed – R v Tran (2002) 4 VR 457; R v Howarth (2000) 1 VR 593; R v Cowden (2006) 47 MVR 128; DPP v Johnstone (2006) 16 VR 75; R v Franklin (2002) 36 MVR 190; DPP v Walden (2003) 39 MVR 451, considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Ginsbourg | Stary Norton Halphen Criminal Lawyers |
| For the Respondent | Mr B F Kissane QC | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
REDLICH JA
McLEISH JA:
Summary
The applicant pleaded guilty to one charge of negligently causing serious injury (by driving) (‘NCSI by driving’).[1] The victim was his then girlfriend, who was a passenger in the car. (We will refer to her as ‘T’.) The applicant was sentenced to three years’ imprisonment, with a non-parole period of 18 months.[2] He now seeks leave to appeal against the sentence.
[1]See Harrison v The Queen (2015) 74 MVR 58, 62 [1] (‘Harrison’).
[2]DPP v Spanjol [2015] VCC 1907 (‘Reasons’).
The sole ground of appeal rests on a contention that T contributed to her own injuries by failing to take sufficient care for her own safety, and that the sentence should have been reduced accordingly. T’s failure to take care was said to be evidenced by two aspects of her conduct, namely, that she —
(a) chose to travel as a passenger in the car which the applicant was driving, despite knowing that he was drunk; and
(b) did not wear her seatbelt.
T’s decision to travel with the applicant was said to have constituted a contribution to the negligent driving itself. That is, by getting into the car with the applicant when she knew that he had been drinking, T had ‘affirmed if not encouraged’ his decision to drive. The failure to wear a seatbelt was said to have made T’s injuries more serious than they would otherwise have been. According to the applicant’s submission, the judge should have concluded that T’s contribution to the seriousness of her injuries reduced both the objective seriousness of the offence and his moral culpability.
For the reasons which follow, we reject these submissions. As will appear, there is an unresolved conflict between two decisions of this Court on the question whether the conduct of the victim in cases such as this is relevant for sentencing purposes. The decisions in question are R v Tran[3] and R v Howarth.[4] The applicant urged the Court to follow Tran and decline to follow Howarth. In our view, the fact that the conflict between those decisions remains unresolved enables us to decide these questions afresh.
[3](2002) 4 VR 457 (‘Tran’).
[4](2000) 1 VR 593 (‘Howarth’).
Our conclusions as to the law may be summarised as follows:
(1)In a case of NCSI by driving, the finding of guilt (or plea of guilty) establishes that the offender’s driving was criminally negligent and that the negligent driving caused the victim’s serious injury.
(2)The sentencing court will treat as its starting point that the offender was solely responsible for the manner of his driving and that the manner of his driving was the sole cause of the serious injury. But the evidence may support a qualification of one or both of these propositions.
(3)As to responsibility for the negligent driving, the offender may be able to establish that some other person (whether or not the victim) and/or some external circumstance was partly responsible for the manner of the driving.
(4)As to the causal link with the serious injury, the offender may be able to establish that there was an additional factor, outside the offender’s control, which was also a material cause of the serious injury.
(5)The language of ‘complicity’ should be avoided in this context. ‘Complicity’ is a technical term, with a well-defined meaning. It connotes the attribution of criminal responsibility to a co-offender. No such question arises in either of the circumstances under consideration.
(6)Instead, the language of ‘reduced responsibility’ should be used to describe the first kind of qualification and the language of ‘other contributing causes’ to describe the second kind of qualification.
In the present case, T’s alleged knowledge of the applicant’s intoxication was not capable of reducing his responsibility for the negligent driving. Her getting into the car, knowing of his intoxication, could not be said to have made any difference to the manner of his driving. The offender was solely responsible for his negligent driving and his moral culpability is unaffected.
As to the causing of the injuries, the evidence did not establish that T’s failure to wear a seatbelt was a contributing cause. That is, it was not shown that that omission made her injuries worse than they would otherwise have been. Even if the omission had been causative, the applicant was also responsible for it, since he was under a legal obligation to ensure that his passenger’s seatbelt was done up. That being so, little if any weight would need to have been given to T’s failure.
Circumstances of the offending
On the night of 21 March 2014, the applicant and T were at the applicant’s home drinking alcohol. The applicant proposed that he would drive either to the home of T or to that of T’s cousin, and T agreed to accompany him. It was found by the sentencing judge, and is not in dispute, that when the applicant chose to drive he must have known that he was significantly intoxicated.
At 1:15 am on 22 March 2014, the applicant was driving — with T as a passenger in the front seat — at between 79 and 85 kilometres an hour in a 70 kilometre zone. He lost control of the vehicle and oversteered the car to the right. The car commenced a yaw to the right, rotating in a clockwise direction, and collided with a tree on the median strip. The point of impact was the passenger side of the car. As a result of the collision, T was ejected from the vehicle through the side window of the passenger door and landed some 12 metres away.
Two witnesses in another car saw the applicant’s car against the tree in the aftermath of the collision. The driver of that vehicle, DM, saw the applicant standing next to the door on the driver’s side of the car. DM went to offer assistance.
At about that time, the applicant’s car ignited in flames. DM saw T lying on the ground unconscious. He heard the applicant saying words to the effect of, ‘Baby, I’m sorry. I didn’t mean it.’ He noticed that the applicant was unsteady on his feet, that his speech was slurred and that he smelled of alcohol. His passenger saw the applicant pulling T off the road and heard him say, ‘It’s okay, baby. I’m sorry.’
A number of other motorists stopped at the scene to assist the applicant and T. Some of them stated that the applicant appeared to be intoxicated. The applicant told some witnesses that T had been driving and that she had consumed alcohol.
Analysis of a blood sample taken from the applicant not long after the accident revealed a blood alcohol concentration of 0.16 per cent. An expert opinion provided by the Victorian Institute of Forensic Medicine concluded that, at the time of driving, his blood alcohol concentration would have been between 0.178 per cent and 0.195 per cent.
At the time of the accident, the applicant was wearing his seatbelt. He suffered minor injuries. T suffered multiple serious injuries, including a traumatic brain injury, multiple fractures requiring multiple surgical procedures, lacerations, and bleeding in her lungs. Her injuries were life-threatening and she was hospitalised for 19 days. Following that period, she was transferred to a rehabilitation centre. Five months after the incident, she continued to have trouble walking. She has ongoing cognitive and behavioural difficulties due to the traumatic brain injury.
The prosecution opening did not disclose that T was not wearing a seatbelt at the relevant time. Defence counsel contended that that must have been the case, given the circumstances of the injury, in particular that T was thrown some 12 metres from the applicant’s car through the side window, when the applicant had only suffered minor injuries while wearing a seatbelt. The prosecution did not submit to the contrary. The judge accepted the inference contended for by the applicant and sentenced him on that basis.
Before turning to the two matters which the applicant contends were not taken adequately into account, it is instructive to review the authorities.
The authorities
As noted earlier, the two principal authorities on the relevance, for sentencing purposes, of the conduct of the victim of a driving offence are Tran[5] and Howarth.[6] In 2000, in Howarth, the Court held that ‘the degree of blameworthiness of the victim of an offence of culpable driving is not a factor relevant to the seriousness of the offence’.[7] In contrast, in 2002 in Tran, the Court declined to follow Howarth, holding that ‘the complicity of a victim constitutes the absence of a circumstance of aggravation’[8] and thus requires a reduction in sentence. Subsequent decisions of this Court have not settled the conflict between these two decisions.
[5](2002) 4 VR 457.
[6](2000) 1 VR 593.
[7]Ibid 606–608 [42]–[45], [49], [50].
[8](2002) 4 VR 457, 467 [34].
The applicant relies principally upon Tran, and then R v Cowden[9] and Director of Public Prosecutions v Johnstone,[10] to support his contention that a victim’s failure to take care for their personal safety is a form of ‘complicity’ which does require a reduction in the sentence. He submits that the reasoning in Howarth should not be followed. In contrast, the respondent submits that the same conclusion would be reached in the present case on either approach.
[9](2006) 47 MVR 128 (‘Cowden’).
[10](2006) 16 VR 75 (‘Johnstone’).
For the reasons that follow, we have concluded that a victim’s willingness to travel in a vehicle, knowing that the driver may be affected by the consumption of alcohol or drugs, is not of itself relevant to sentencing for this offence. That is, such a circumstance cannot — without more — constitute either a factor in mitigation or the absence of a circumstance of aggravation.
In Howarth,[11] the offender pleaded guilty to a single count of culpable driving causing death. He had driven his van into the rear of a parked truck, killing his passenger. For 10 hours before the collision, the offender and the passenger had been drinking and driving, with each of them driving at different times. The sentencing judge said in the course of his remarks: ‘I do not think the circumstance that he, the deceased, was also drunk and a willing passenger in your motor vehicle lessens your criminality.’ One ground of appeal was that the judge erred in failing to take into account that the passenger ‘was involved in a joint enterprise’ with the driver at the time of his death.
[11](2000) 1 VR 593.
Brooking JA, with whom Charles and Batt JJA agreed, considered that the degree of blameworthiness of the victim in the offence of culpable driving was not a factor relevant to the seriousness of the offence. His Honour cited many cases where the driver was affected by liquor and the passenger victim had been in his company for some time while he was drinking and either must have realised that the driver was intoxicated or failed to do so only because of his or her own intoxication.
Brooking JA observed:
It is highly unusual to find any suggestion in such cases that the victim’s ‘complicity’ bears on penalty. (In some of these cases the victim also failed to wear a seatbelt in circumstances in which that failure probably contributed to the death.) I give only seven examples, the last three of which are also cases of no seatbelt being worn: R v Williams; R v Wright; Nunn; Attorney-General’s Reference No 48 of 1996 (Paul Swain); Attorney-General’s Reference No 50 of 1996 (Williams); Attorney-General’s Reference No 16 of 1998; Roche. In none of these seven cases is there any reference to the victim’s ‘complicity’ or anything of that kind. Elsewhere in these reasons I mention specifically the very few cases I am aware of in which such a reference can be found.[12]
[12]Ibid 605 [39] (citations omitted).
It was not in issue that the conduct of a victim might be relevant when the court was assessing the offender’s culpability. Brooking JA considered that, if an intoxicated and reluctant motorist had been prevailed upon to drive in a particular way by his companions, that might be regarded as a ‘slight mitigating circumstance’.[13] In such a case, his Honour said, the conduct of the offender in driving while intoxicated ‘may perhaps be regarded as slightly less blameworthy because an initial reluctance to drive was overcome by pressure from others’.[14]
[13]Ibid 606 [44]
[14]Ibid.
Brooking JA drew a clear distinction between conduct of that kind — which ‘[bore upon] how bad the offender’s driving was’[15] or which encouraged a reluctant motorist to drive while intoxicated — and conduct that was ‘unassociated’[16] with the driver’s conduct, such as recklessness by the victim as to his or her own safety. While the former might, the latter could not reduce the culpability of the driver. For that reason, his Honour concluded, the judge had been right to treat the conduct of the victim as irrelevant in sentencing.[17]
[15]Ibid 607 [45].
[16]Ibid 606 [42].
[17]Howarth (2000) 1 VR 593, 606–608 [44]–[46].
In March 2002, in R v Franklin,[18] the Court applied Howarth in holding that knowledge by a passenger that the driver had been drinking was ‘not a relevant consideration’. Franklin had been convicted of culpable driving causing death and negligently causing serious injury. He argued in mitigation of his sentence that the Court was entitled to consider the fact that the deceased and the two injured victims were willing passengers. They were ‘well aware of the fact that [he] had been drinking substantially before they all got into the car’.[19] Charles JA, who had been a member of the Court in Howarth, rejected the argument. The victim’s knowledge of the driver’s intoxication was not a relevant consideration, his Honour said, for the reasons given in Howarth.[20]
[18](2002) 36 MVR 190 (‘Franklin’).
[19]Ibid 194 [17].
[20]Ibid.
A month later, however, in Tran,[21] a differently constituted Court held that Howarth was wrongly decided and should not be followed. In that case, the appellant had pleaded guilty to two counts of culpable driving causing death, four counts of negligently causing serious injury and one count of possession of a drug of dependence. The appellant had a passenger in the car who was seriously injured as a consequence of the negligent driving (charge 3). It was accepted that the victim had been complicit in the appellant’s negligent driving because he had urged the appellant to drive away at full speed after the police had indicated that the appellant should pull over. The relevant issue, for present purposes, was whether the sentencing judge had failed to make an allowance for the fact that one of the victims was not entirely blameless and unassociated with the conduct of the offender.
[21](2002) 4 VR 457.
Callaway JA (with whom Buchanan and Vincent JJA agreed) set out what he described as ‘the correct view’, namely that ‘innocence’ of the victim was to be treated as a circumstance of aggravation and that the ‘complicity’ of the victim constituted ‘the absence of a circumstance of aggravation, albeit a circumstance of aggravation that is commonly present.’[22] Importantly, Callaway JA made clear that when it was said that a victim was ‘innocent’, that meant only that he or she was not complicit. Nothing said by Callaway JA bore upon the proposition stated by Brooking JA that recklessness by the victim as to his or her own safety could not reduce the culpability of the driver. Callaway JA also emphasised that not too much should be read into the labelling of innocence as a circumstance of aggravation, its significance depending on the facts of the particular case.[23]
[22]Ibid 467 [34].
[23]Ibid.
The following year, in Director of Public Prosecutions v Walden,[24] the Court took the law to be as stated in Tran. The offender in that case had been sentenced for reckless conduct endangering persons and culpable driving causing death. On the Crown’s appeal against the sentence, the offender argued that the victim’s ‘complicity’ in the offending was relevant to sentencing. The victim was said to have been complicit because he:
·had been present when the car had been stolen;
·had been with the driver prior to the fatal journey, during which period they had both used amphetamines and marijuana;
·was a willing passenger in the car for the fatal journey; and
·was the recipient of a mobile phone call concerning the presence of a police car in proximity to the car in which he was a passenger. The receipt of that call had prompted the offender to drive his vehicle erratically, so as to prevent the police car from overtaking it.
[24](2003) 39 MVR 451 (‘Walden’).
Applying Tran, the Court said:
A victim’s complicity is not a circumstance of mitigation but constitutes the absence of a circumstance of aggravation; and it is for the sentencing judge, within the limits of a sound discretion, to decide what weight (if any) to attribute to the victim’s complicity.[25]
Accepting that the victim ‘had willingly entered the vehicle though knowing that the driver had been using drugs’, the Court nevertheless declined to hold that the victim had thereby encouraged the offender to embark upon the course of driving which culminated in his death.[26]
[25]Ibid 459-460 [47] (Ashley AJA, with whom Phillips CJ and Vincent JA agreed).
[26]Ibid 460 [48]–[49].
The issue arose again in 2006, in Cowden,[27] a decision upon which the applicant places particular reliance. The offender in that case had pleaded guilty to two counts of culpable driving and one count of NCSI by driving. The collision the subject of the charges occurred while the offender was driving erratically, lost control of the car and crashed into a wooden power pole on a nature strip.
[27](2006) 47 MVR 128.
Earlier in the day, one of the three victims had assisted the offender to change the tyres of the vehicle, with a view to going ‘drifting’ later that day and doing ‘burn-outs’. That victim later told friends that he was going ‘drifting’ with the driver. The driver and the first victim had joined friends, including the other two victims, at a hotel, where the group proceeded to drink heavily. It was found that the victims chose to remain in the offender’s vehicle, aware of the way in which he was prone to drive, when other members of the group of friends refused to get back in the vehicle. The offender appealed against his sentence in part on the ground that the judge erred in failing to treat the complicity of the victims as a mitigatory factor.
After setting out the circumstances, and summarising the conclusions, in Howarth and Tran, the Court (Warren CJ, Nettle and Redlich JJA) observed that there was a contrast in the reasoning employed in the two cases:
[I]f this matter were to be decided in accordance with the reasoning in Howarth, the complicity of the victims, in encouraging the appellant to drive fast and to drift the car, could be seen as a minor mitigatory consideration, whereas their recklessness in subjecting themselves to the dangers of travelling with the appellant would not be treated as a mitigatory consideration.
…
[I]f the matter is to be decided in accordance with the reasoning in Tran, the ‘complicity’ of the victims in encouraging the appellant to drive fast and to drift the car is to be treated as ‘the absence of a circumstance of aggravation’. The victims’ recklessness in subjecting themselves to the dangers of travelling with the appellant, though not specifically addressed in Tran, may be viewed as ‘complicity’ and thus also as ‘the absence of a circumstance of aggravation’. But it is up to the judge ‘within the limits of a sound discretion, to decide what weight (if any) to attribute to the ... complicity’.[28]
[28]Cowden (2006) 47 MVR 128, 132-133 [21]–[23] (emphasis added).
Importantly for present purposes, it was unnecessary for the Court in Cowden to decide between the competing approaches. The same result would be produced, the Court said, whichever approach was adopted.[29] The Court emphasised that the driver bore principal responsibility for his actions:
We reject the contention that the victims’ ‘complicity’ was of more than ‘little weight’. Even assuming in favour of the appellant that the victims positively encouraged the appellant to take the corner into Wellington Road at the speed which he did and to ‘drift’ the car through the corner as he attempted to do (and there was no direct evidence of that), the judge was right to say that it was the appellant who was driving and must bear principal responsibility for his actions. As driver of the vehicle, the appellant was responsible for his passengers’ safety and therefore, as a matter of responsibility, he was bound to repudiate any suggestion by his passengers that he drive the vehicle dangerously or otherwise unlawfully.
It may be that the conduct of the victims bore upon how bad the appellant’s driving was. It may be that it served to mitigate in some small way the appellant’s conduct in driving as he did (or at least to cause to be absent to some extent a circumstance of aggravation constituted of innocence which otherwise would ordinarily be present). The judge, however, was right and certainly within the limits of sound discretionary judgement in holding that little if any weight should be attributed to the victims’ complicity.
…
Counsel for the appellant emphasised the facts that the victims had been with the appellant drinking at the hotel earlier in the evening, and that the victims, Ms Fox and Mr Stephens, had chosen to remain in the car knowing the way in which the appellant was prone to drive when others of the group had refused to get back in, and that the victim Mr Kinna had helped the appellant earlier in the day to change the tyres with a view to ‘drifting’ later that day, and that Mr Kinna told friends who delivered him to the collection point that he was going ‘drifting’ with the appellant. In counsel’s submission, all of those matters were factors which bore upon the victims’ complicity and should have been accorded significant weight in mitigation of penalty.
We do not agree. If the matter is approached in accordance with the analysis in Howarth, each of those matters is of a kind which Brooking, JA might have characterised as bearing on the character of the victims — their recklessness as to their own safety — which his Honour said should not be treated as a mitigatory consideration. If the matter is approached in accordance with the analysis in Tran, none of those matters rises any higher than the absence of circumstances of aggravation, and thus is to be given such weight as the sentencing judge thinks fit within the limits of a sound discretion. We see no error in the sentencing judge’s approach to this question. Whichever analysis is adopted, none of these matters required His Honour to assign them greater weight than he did.[30]
[29]Ibid 133 [25], 134 [32].
[30]Ibid 134-135 [28]–[32].
The last decision to be mentioned is Johnstone.[31] In that case, the offender was convicted on two counts of culpable driving and one count of negligently causing serious injury. The collision occurred while the offender was driving at a speed of around 90–100 kilometres per hour. He failed to negotiate a sweeping left hand bend on the road and struck a utility pole on the opposite side of the roadway. The vehicle carried six passengers, a number of whom were unrestrained by seatbelts. Two were killed, and one seriously injured.
[31](2006) 16 VR 75.
Prior to the collision, the passengers in the back seat, including the victims, were laughing and playing around. The offender had told them to settle down. One of the passengers passed him a mobile telephone with a message on the screen, to read as he drove along. In the course of reading, then deleting, the message, the offender lost control of the car and caused the collision. In answer to an appeal by the Director, he contended that the behaviour of the victims was calculated to distract his driving.
Warren CJ (with whom Maxwell P and Buchanan JA agreed) referred to the observation in Cowden about complicity of the victims, including the fact that recklessness of the victims in subjecting themselves to the dangers of travelling with the appellant could be seen as ‘complicity’ and therefore as ‘the absence of a circumstance of aggravation’.[32] Her Honour doubted, however, whether the conduct of the victims in Johnstone could be regarded as complicity. She concluded, citing Cowden, that as conduct by a victim who urged the driver to drive as he did was properly to be regarded as having very little weight, lesser conduct by the victims should be seen as de minimis.[33]
[32]Ibid 82 [24].
[33]Ibid 83 [26].
Analysis of authorities
The above authorities make clear that there is an unresolved conflict between the decisions of this Court in Howarth and Tran on the question whether a victim’s conduct is relevant to sentencing for offences such as these. The applicant urged the
Court to follow Tran and decline to follow Howarth. In our view, as stated earlier, the unresolved conflict between those decisions enables us to decide these questions afresh, starting from first principles.
In a case of NCSI by driving, the finding of guilt (or plea of guilty) establishes that the offender’s driving was criminally negligent and that the negligent driving caused the victim’s serious injury. And the sentencing court will treat as its starting point the following two propositions:
(c) the offender was solely responsible for the manner of his driving (the first proposition); and
(d) the manner of his driving was the sole cause of the serious injury (the second proposition).
The first proposition reflects the fact that the driver is ordinarily the sole controller of the speed and direction of the vehicle and of the manner of driving. The second proposition reflects the causal link on which the offence rests.
The question which then arises is whether conduct by the person who suffers the resulting serious injury is capable of qualifying either of these propositions. As to the first proposition, we respectfully adopt the analysis of Brooking JA in Howarth. In our view, it is proper to view as relevant to the offender’s responsibility (and moral culpability) conduct of the victim which bears
on how bad the offender’s driving was or [on] the conduct of the offender in choosing to drive (as by a passenger’s importuning a reluctant driver to drive while intoxicated or to drive a vehicle known to be unroadworthy).[34]
As Brooking JA said, mitigation of the latter kind would be available even if the victim were a third person.[35]
[34]Howarth (2000) 1 VR 593, 607 [45].
[35]Ibid 607 [44].
Thus, some other person in the vehicle (whether or not ultimately a victim) may persuade or coerce the offender to drive faster or more dangerously than he would otherwise have done. If there was evidence to satisfy the judge that, because of this other influence, the driving was materially worse than it would otherwise have been, it should follow that the offender’s moral culpability — as distinct from legal responsibility — for the negligent driving is to that extent reduced.
The first proposition is thus qualified when the evidence shows that the offender was not solely responsible for his conduct, either in deciding to drive in the first place or in the manner of the driving. At the same time, it becomes clear why the passenger/victim’s awareness of the offender’s intoxication (or fatigue) cannot — without more — qualify the offender’s responsibility for the driving. Ex hypothesi, nothing done (or omitted to be done) by the victim contributed to the offender’s conduct.
More fundamentally, to treat the victim’s knowledge of the offender’s unfitness to drive as relevant is to confuse the offender’s criminal liability for the negligent driving (and the question of appropriate punishment) with any civil liability which the offender might have to the victim for the serious injury caused. In that different legal context, the victim’s knowledge is likely to be directly relevant to the defence of contributory negligence.[36]
[36]See eg, Joslyn v Berryman (2004) 214 CLR 552.
In Tran,[37] in explaining why Howarth should not be followed, Callaway JA expressed the view that it would not have been ‘in accordance with community values or expectations’ for the Court to have denounced equally the conduct of two equally negligent drivers in the following, different, circumstances:
(e) in R v Wright,[38] two boys aged 17 stole a car and took it for a joyride. One of them was killed;
(f) in R v McGrath,[39] a young man killed a cyclist. As Callaway JA pointed out, the Court of Appeal had described the victim in that case as ‘blameless and entirely unassociated with the conduct of the offender and the events which led him to commit the offence’.[40]
[37](2002) 4 VR 457, 467 [32].
[38][1999] 3 VR 355.
[39][1999] VSCA 197.
[40]Ibid [18] (emphasis added).
The distinction which his Honour here drew, in our respectful view, does not involve any difference in principle from what we have said. In the first case, the passenger/victim evidently contributed to the offender’s conduct, both in the stealing of the car and in the manner of driving. In the second, there was no such contribution.
As to the second proposition set out at [38] above, which is concerned with causation, the offender may be able to establish that there was an additional factor — outside the offender’s control — which was also a material cause of the serious injuries. An example would be where the passenger, though wearing a seatbelt, was leaning far out of the passenger window, making himself much more vulnerable to injury than he would have been if he had sat in his seat in the usual way. Again, assuming that there was sufficient evidence to establish that this conduct resulted in the injuries being materially worse than they would otherwise have been, that circumstance should also ordinarily result in a reduction of penalty.
If the sentencing judge is satisfied that one or both of the propositions is qualified, so as to result in some reduction in penalty, the reduction would be the same, regardless of whether the approach taken in Howarth (a circumstance of mitigation) or Tran (an absence of a circumstance in aggravation) was adopted. This was clearly illustrated in Cowden. Therefore, it seems unhelpful to describe conduct in those ways. Rather, it should be acknowledged that, where one or both of the qualifications is satisfactorily made out on the evidence, there may be some form of reduction in penalty within the sound limits of the sentencing judge’s discretion.
In our view, the language of ‘complicity’ is best avoided in this context. ‘Complicity’ is a technical term, with a well-defined meaning. It connotes the attribution of criminal responsibility to a co-offender. No such question arises in either of the circumstances under consideration. Instead, the language of ‘reduced responsibility’ should be used to describe the first kind of qualification. The language of ‘other contributing causes’ should be used to describe the second.
We turn now to the present case and the two matters which, the applicant contends, ought to have resulted in some reduction of his sentence.
Victim’s contribution to the applicant’s negligent driving
The applicant contends that the judge should have declined to follow Howarth, in which the complicity of the victim was held to be no more than a minor mitigatory matter. He argues that the conflict between Howarth and Tran, as to whether the victim’s complicity should be treated as a mitigating factor or the absence of a circumstance of aggravation, was not adequately resolved by Cowden and Johnstone, although in both of those cases it affected the sentence that should be imposed. In line with the analysis above, this contention seeks to qualify the first proposition, to establish the applicant’s ‘reduced responsibility’.
The respondent contends that the passive acquiescence of the victim as a willing passenger is insufficient to amount to ‘complicity’ (or, adopting our proposed terminology, to justify a finding of reduced responsibility). It argues that the circumstances in the present case must be distinguished from the more active conduct of the victims in the cases relied upon by the applicant. It relies on what was said in Cowden and Johnstone as to primary responsibility for the offending remaining with the driver of the vehicle.
The agreed facts opened by the prosecutor on the plea did not suggest that T was aware of the applicant’s state of intoxication. On the plea, defence counsel submitted that T had contributed to her injuries in part because she had chosen to get in the car with someone she knew to be intoxicated. He argued that, because T had been drinking with the applicant, and because the applicant’s condition was immediately apparent to witnesses after the accident, it should be inferred that she knew the applicant’s state of intoxication before they commenced their journey. The prosecutor submitted that, in order to establish ‘complicity’, it was necessary to establish more than that she was a willing passenger. Further, he submitted, there was no evidence of T’s awareness of the applicant’s state.
The judge did not address this issue in his sentencing reasons, and made no finding that T was aware of the applicant’s state of intoxication. The applicant now submits that the inference was inescapable. He relies on the evidence showing that he and T had been drinking during the evening prior to the accident; his blood alcohol concentration at the time of the offending; and the reports of witnesses in the immediate aftermath to the accident as to his apparent intoxication, given his bloodshot eyes, slurred speech and general demeanour.
It was entirely appropriate for defence counsel to have raised the issue of T’s conduct as a matter relevant to sentence, given the state of the authorities (to which his Honour was referred). In our respectful view, the sentencing judge was obliged to rule on this submission. However, in accordance with the principles we have set out, the fact of T’s awareness of the applicant’s intoxication, even if established, was not relevant to sentence.
For completeness we should express our view that, in any event, it would not have been open to his Honour to conclude on the balance of probabilities that T was aware of the applicant’s state of intoxication when she consented to being driven by him. The evidence was silent as to T’s observations of the applicant in the period leading up to their departure from the applicant’s home or her belief as to his state of intoxication.
Victim’s contribution to the severity of her injuries
It was accepted by the respondent on the plea, and on appeal, that it should be inferred that T was not wearing a seatbelt at the time of the collision. On the plea, the judge indicated a preliminary view that, regardless of whether T was wearing a seatbelt, as the driver the applicant bore a responsibility for checking that she had done so. Defence counsel, though accepting that the driver had a responsibility to ensure that a passenger did so, maintained that the judge should take into account that T had placed herself at risk by not doing so. That, it was said, affected the degree of responsibility that the applicant bore for the severity of her injuries.
In his sentencing remarks, the judge said:
[The applicant’s] counsel submitted that as she was not wearing a seatbelt, she contributed herself to her injuries. In doing so, he relied on R v Tran. He submitted that she was, in effect, not an innocent victim and for that reason, there was, in your case, an absence of a not uncommon circumstance of aggravation.
In my opinion, the fact that the victim was not wearing a seatbelt, is a matter that is to be accorded little weight in this case. The significant and operative cause of T’s serious injuries was you driving your vehicle at excessive speed whilst highly intoxicated.[41]
[41]Reasons [16]–[17] (citations omitted).
The applicant submits that the injuries T sustained were caused by blunt force trauma as a result of not having worn a seatbelt and being ejected from his car. As the applicant wore a seatbelt, he contrasts T’s serious injuries with the minor injuries he suffered. He submits that T’s failure to wear a seatbelt ‘contributed’ causally to the offending or was an instance of recklessness as to her safety which should have been given some weight, relying upon Tran. It was in substance submitted that T was not blameless for the consequences that followed upon the applicant’s driving and that the judge was in error in not affording that fact more weight.
The respondent submits that, since the cabin of the vehicle was engulfed in flames very shortly after the collision, it cannot be said that T’s injuries were more serious because she did not wear a seatbelt. It also reiterates the submission that T’s conduct did not amount to complicity in causing her injuries. In the alternative, it argues that even if some weight had to be given to T’s contribution to the seriousness of the injuries, no different sentence should have been passed.
The applicant’s submission must be rejected. It must, of course, be accepted that wearing a seatbelt is a preventative measure which is likely to reduce the injuries which would otherwise be suffered by a person involved in a car accident. And as a passenger travelling in a car, T was required to buckle her seatbelt pursuant to s 265(2)(c) of the Road Safety Road Rules 2009 (‘Rules’).
The failure to wear a seatbelt resulted in T being ejected from the car. At least some of her injuries were produced as a consequence of being flung out of the vehicle. T’s failure to buckle her seatbelt undoubtedly contributed to some of the particular injuries she sustained. But the circumstances of the collision do not permit the conclusion, on the balance of probabilities, that T would have sustained less severe injuries had her seatbelt been fastened and had she remained in the car.
The fact that the applicant suffered minor injuries does not advance his argument, as it was the passenger side door and near side of the vehicle which absorbed the impact with the tree, causing it to fall over. Not only did the car ignite in flames very shortly after the collision but it is clear that T would have sustained serious injuries upon collision, given the point of impact. T could not have exited the vehicle from her side of the vehicle even if she had been in a condition to do so. It is mere conjecture whether she would have suffered less severe injuries had she been able to be removed from the vehicle before it caught fire. Accordingly, we are not satisfied that T’s conduct can be shown to have made a material contribution to the seriousness of her injuries.
If, contrary to that view, T’s failure to wear a seatbelt could be said to have materially increased the seriousness of her injuries, the applicant would also have to assume responsibility for that failing. Section 265(3) of the Rules made him responsible as the driver of the vehicle for ensuring that the passenger was wearing her seatbelt. That concurrent legal duty is but one aspect of a driver’s general responsibility to ensure his or her passengers’ safety.[42]
[42]See Cowden (2006) 47 MVR 128, 134 [28]; Johnstone (2006) 16 VR 74, 84 [28].
There is no indication in the agreed facts that the applicant sought to discharge that duty. In his record of interview, the applicant stated that he had not been aware of whether T had been wearing a seatbelt, although it was well within his control to ensure that she did so. Given that there was a concurrent responsibility by driver and passenger to ensure that the passenger wears their seatbelt, little if any weight would need to have been given to T’s failure.
If, contrary to our view, the judge was obliged to give greater weight to T’s failure to wear a seatbelt, we do not consider that a different sentence should be passed. The applicant’s conduct in driving the vehicle when his blood alcohol concentration was between 0.178 per cent and 0.195 per cent posed a very great danger to other users of the road, including T. He was a trained security officer, and would have been alive to the dangers of excessive alcohol consumption.
General deterrence looms large in the sentencing calculus for offending of this nature.[43] Specific deterrence also assumed importance, given that the applicant had previously been disqualified for driving whilst exceeding the prescribed alcohol limit. The applicant has a high degree of moral culpability for his decision to drive under those circumstances. The injuries sustained by T due to the collision were traumatic, and her quality of life has been very considerably worsened. Her victim impact statement reflects the physical and psychological adversity she has experienced — and, in all probability, will continue to experience — as a result of the applicant’s offending.
[43]See DPP v Gany (2006) 163 A Crim R 322, 333–4 [35].
The applicant pleaded guilty, and was sentenced, prior to the decision of this Court in Harrison,[44] in which it was found that sentencing practices for the offence of NCSI by driving were unduly low and needed to be uplifted. He was sentenced in accordance with sentencing practices prior to Harrison. As was stated in Harrison, up to that time the vast majority of cases of this order of seriousness involved sentences of at least three years’ imprisonment.[45] Thus this sentence is well within the appropriate range of sentences. Had error been established, we would not have been persuaded to impose a less severe sentence than three years, with a non-parole period of 18 months.
[44](2015) 74 MVR 58.
[45]Ibid 80 [102], [105].
We would grant leave to appeal but would dismiss the appeal.
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