Stephens v The Queen
[2016] VSCA 121
•30 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0234
| RICKY OLIVER STEPHENS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH, SANTAMARIA and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 May 2016 |
| DATE OF JUDGMENT: | 30 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 121 |
| JUDGMENT APPEALED FROM: | DPP v Stephens (Unreported, County Court of Victoria, Judge Maidment, 30 October 2015) |
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CRIMINAL LAW – Sentence – Dangerous driving causing death – Four wheel all terrain buggy – Lack of protection of passengers – Whether appellant’s moral culpability was ‘very high’ – Moral culpability and dangerousness assessed by reference to all of the conduct and circumstances of specific case and offender – R v Whyte (2002) 55 NSWLR 252, R v Jurisic (1998) 45 NSWLR 209, discussed – Knowledge of risk by driver – Warning as to safety ignored – Exceeding passenger limit – Driving in a deliberately dangerous manner – No error in judge’s finding that moral culpability was very high – Sentence of 3 years and 3 months for dangerous driving causing death, 1 year and 6 months for reckless conduct endangering life, with total effective sentence of 3 years and 9 months – Assertion that Community Correction Order was correct disposition rejected – Appeal dismissed.
CRIMINAL LAW – Current sentencing practice – Dangerous driving causing death – Relationship with offence of negligently causing serious injury by driving – Harrison v The Queen [2015] VSCA 349, considered – Increase in maximum penalty from 5 years to 10 years – Failure by courts to give proper effect to increased maximum term as a ‘yard stick’ – Inappropriately narrow range of sentences imposed – Warning that sentencing practice should be uplifted for mid category seriousness of the offence – Poyner v The Queen (1986) 66 ALR 264; Ashdown v The Queen (2011) 37 VR 341, applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D D Gurvich QC with Mr P J Smallwood | James Dowsley & Associates |
| For the Respondent | Ms F L Dalziel | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA
SANTAMARIA JA
BEACH JA:
Introduction
On 26 October 2015, the appellant pleaded guilty in the County Court to one charge of dangerous driving causing death (charge 1) and one charge of reckless conduct endangering life (charge 2). The maximum term of imprisonment for each of these charges is 10 years.
On 30 October 2015, the appellant was sentenced to a term of imprisonment of 3 years and 3 months in respect of charge 1 and 1 year and 6 months in respect of charge 2. The judge ordered that 6 months of the sentence on charge 2 be served cumulatively on the sentence imposed on charge 1, making a total effective sentence of 3 years and 9 months’ imprisonment. The judge fixed a minimum non-parole period of 2 years and 3 months.
On 4 March 2016, this Court gave the appellant leave to appeal against his sentence on the following grounds:
1.The learned sentencing judge erred by finding that the appellant’s moral culpability was ‘very high’.
2.The sentences imposed on charges 1 and 2, the order for cumulation, the total effective sentence and the non-parole period fixed are all manifestly excessive.[1]
[1]Stephens v The Queen (Unreported, Court of Appeal, Redlich JA, 4 March 2016).
The appellant acknowledged on the leave application that his driving was impetuous and involved a serious degree of irresponsible behaviour so as to place it in the mid category of seriousness of this offence. That said, the appellant submitted on the leave application and appeal that each sentence was excessive because each sentence is manifestly too long, and the wrong type of sentence has been imposed.
On the leave application the appellant submitted that based upon current sentencing practice a community correction order (‘CCO’) was not only within the range of sentences open to the judge but should have been the sentencing disposition adopted. In his written case, the appellant relied on the 2015 Sentencing Advisory Council’s (SAC) report, ‘Major Driving Offences: Current Sentencing Practices’ (‘the Report’).[2] He drew attention to the high percentage of cases cited in the Report that did not attract a term of imprisonment. The appellant filed a schedule of some 19 cases drawn from the SAC report in which no term of imprisonment was imposed. He relied further upon the following observation in the Report:
Given that the maximum penalty for dangerous driving causing death is among the lowest prescribed for homicide offences, it may be a form of homicide considered suitable for a CCO, depending on the objective gravity of the conduct and the personal circumstances of the offender in the particular case.[3]
[2]Sentencing Advisory Council, ‘Major Driving Offences: Current Sentencing Practice’ (Report, Sentencing Advisory Council, June 2015).
[3]Ibid 45 [5.33] (citations omitted).
Following the granting of leave, the respondent filed further written submissions inviting this Court to express its opinion as to the adequacy of current sentencing practices for the offence of dangerous driving causing death and (if the Court was of the view that current sentencing practices for this offence were inadequate) inviting us to indicate that current sentencing practices should be uplifted.
In response to these submissions, the appellant advised the Court that he no longer sought to rely on ground 2. The appellant then submitted that the appeal now fell to be determined by this Court’s consideration as to whether the sentencing judge erred in concluding that the appellant’s moral culpability was ‘very high’. The appellant, although maintaining that a CCO was the appropriate disposition, advised the Court that he did not wish to make any submission regarding the adequacy of current sentencing practices.
Circumstances of the offending
The charges to which the appellant pleaded guilty arose out of an episode of driving that occurred on 6 September 2013. Earlier that day, the appellant had purchased a left-hand drive Arctic Cat Wildcat X 4-wheel all-terrain vehicle (‘the buggy’). The buggy was fitted with driver and passenger bucket seats with lap sash seat belts for the driver and the passenger. At the time of purchase, the appellant was given a DVD concerning safety issues with the buggy. However, the appellant never watched the DVD.
The appellant took the buggy, on the back of a truck, to his property. Having arrived home, he unloaded the buggy from the rear of the truck. He then took his 11 year old stepson and nine year old daughter for a ride in the buggy. The appellant and his stepson wore the lap sash seat belts applicable to their respective seats. The appellant’s daughter sat between the appellant’s stepson’s legs (there being no seat fitted for her), and she was entirely unrestrained in the buggy.
The appellant then drove the buggy down the driveway of his property and then along a road for about 700 metres before reaching a dead end. He then performed a U-turn to the left under acceleration leaving a spray of loose gravel and tyre yaw marks in the gravel surface where the buggy had slipped to the side.
The appellant then returned along the road to his property and entered the driveway. He then turned immediately to the left into a paddock. He drove once around the paddock, going over a large mound of dirt, before doing a second lap of the paddock and going over the mound of dirt a second time. As he exited the mound the second time, he accelerated while steering first to the left and then to the right in an attempt to do a ‘burn out’. During the course of the buggy yawing to the right, it rolled over. As a result, the appellant’s daughter was thrown through the open roll cage and onto the grass. The buggy continued to roll over. The buggy struck, and came partially to rest upon, the appellant’s daughter. All possible steps were taken to revive and save the appellant’s daughter. However, she died at the scene. Charge 1 relates to the death of the appellant’s daughter. Charge 2 relates to the appellant’s actions in endangering the life of his stepson.
At the time the buggy was purchased, the salesman told the appellant on a number of occasions that what he was buying was not a toy but was a high performance off road racing buggy. The buggy had a number of safety labels on it which warned of the risk of death or serious injury, including:
Warning: improper use of off highway vehicles can cause severe injury or death. Drive responsibly. Avoid loss of control and rollovers, avoid abrupt manoeuvres, sideways sliding, skidding or fishtailing, and never do donuts. Slow down before entering a turn. Avoid hard acceleration when turning, even from a stop. Plan for hills and rough terrain, ruts and other changes in the traction and terrain. Avoid paved surfaces, avoid side hilling, that is riding across slopes.
And:
Rollovers have caused severe injuries and death, even on flat, open areas. Make sure all doors are fully latched, locate and read operator’s manual, follow all instructions and warnings.
And:
Do your part to prevent injuries. Do not allow careless or reckless driving. Make sure the operators are 16 or older with a valid driver’s licence. Do not let people drive or ride after using alcohol or drugs. Do not allow operation on public roads unless designated for off highway vehicle access. Collision with cars and trucks can occur. Do not exceed seating capacity, that is, one passenger.
Expert examination following the incident showed that the buggy had only travelled 4.1 kilometres at the time of the incident. A mechanical inspection, including a road test, found the buggy to be safe and in good mechanical condition. There was no mechanical fault revealed which could have caused or contributed to the incident.
Observations within the paddock supported the appellant’s account to police that the buggy had been deliberately driven in a manner so as to lose traction or control, leading to the eventual rollover. A reconstruction of events performed after the incident indicated that the minimum speed of the buggy at the point where it commenced to roll was 34 kph. When asked by the police about the speed of the vehicle when it came off the mound for the second time, the appellant said ‘I don’t know, probably 60 … I couldn’t exactly tell because as I say, it’s the first time I’m driving it and not really having any feel of it to tell you the truth’.
The sentencing judge’s reasons
The judge commenced his reasons for sentence with a detailed description of the appellant’s offending.[4] The judge noted that the appellant had no prior convictions, and was 38 years of age at the time of the offending. The judge set out the appellant’s relevant personal circumstances, and referred to evidence that showed the appellant to be a strongly committed family man, engaged in community pursuits to the benefit of others, who was ‘in very many respects a model citizen’.[5] In the appellant’s favour, the judge took into account the obvious distress which the appellant has felt, the undoubted grief that the appellant suffers and the appellant’s excellent prospects of rehabilitation.[6]
[4]DPP v Stephens (Unreported, County Court of Victoria, Judge Maidment, 30 October 2015) [1]–[42] (‘Reasons’).
[5]Reasons [47].
[6]Ibid [54], [56] and [59].
On the plea, the appellant’s counsel had submitted that the judge should regard the appellant’s offending conduct as not at the high end of the scale, but rather towards the lower end of the scale because of the absence of a number of factors that are often regarded as aggravating features (for example, alcohol). The judge did not accept that submission. He accepted the prosecutor’s submission that the offences committed by the appellant were serious examples of serious offences.[7]
[7]Ibid [57].
The judge then said that the degree of moral culpability for offending of the kind engaged in by the appellant was a significant consideration in determining an appropriate sentence. There can be no issue with that proposition. Having stated that proposition, the judge then concluded that the appellant’s moral culpability was of ‘a very high level’.[8] It is that proposition that is at the heart of the appellant’s complaint on this appeal.
[8]Ibid [73].
Analysis
Dangerous driving causing death is an offence contrary to s 319(1) of the Crimes Act 1958. That section provides:
A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of another person is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).
In King v The Queen,[9] the majority[10] of the High Court said of s 319:
There is no doubt that s 319 is capable of encompassing a range of driving behaviours some of which, apart from their tragic consequences, may attract considerably less condemnation than others. The legislature has imposed maximum penalties which, in effect, authorise a range of dispositions capable of encompassing the variety of circumstances in which offences may be committed against s 319. That variety must be reflected in the sentences which are imposed. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen: ‘Equal justice requires identity of outcomes in cases that are relevantly identical, it requires different outcomes in cases that are different in some relevant respect.’[11]
[9](2012) 245 CLR 588 (‘King’).
[10]French CJ, Crennan and Kiefel JJ.
[11]King (2012) 245 CLR 588, 609 [47] (citation omitted) (emphasis in Wong v The Queen).
Driving will be dangerous 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.’[12] The driving must have some feature which subjects the public ‘to some risk 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.’[13] A Court’s assessment of the dangerousness of the driving will be informed by the extent of the risk which the driving created, as well as by the extent of potential harm should the risk materialise.[14]
[12]McBride v The Queen (1966) 115 CLR 44, 72 (Barwick CJ); King (2012) 245 CLR 588, 607–8 [46]
[13]Jiminez v The Queen (1992) 173 CLR 572, 579; King (2012) 245 CLR 588, 607–8 [46].
[14]Board v The Queen [2013] VSCA 190 [34] (Maxwell P, with whom Buchanan JA agreed).
Dangerous driving thus encompasses a very wide range of conduct. But it has been said on a number of occasions that dangerous driving causing death or serious injury is likely to receive a significant term of imprisonment.[15] That statement of principle was qualified in Director of Public Prosecutions v Oates,[16] by noting that any sentence which is imposed must take account of variations in the moral culpability of the person responsible, and that a custodial sentence will usually be appropriate for this offence except where the offender’s level of moral culpability is low.[17]
[15]R v Jurisic (1998) 45 NSWLR 209; DPP v Neethling (2009) 22 VR 466, 472 [29] (‘Neething’); DPP v Oates (2007) 47 MVR 483.
[16](2007) 47 MVR 483.
[17]Ibid 486 [22] (Neave JA with whom Warren CJ and Nettle JA agreed).
Section 5(2)(d) Sentencing Act 1991 requires the sentencing judge to consider ‘the offender’s culpability and degree of responsibility for the offence’.
The appellant submitted that the sentencing judge was wrong, and that it was not open to his Honour, to conclude that the appellant’s moral culpability was high or very high in this case. In support of that submission, the appellant relied upon a number of factors set out by Spigelman CJ in R v Whyte[18] which it was said have been held to be relevant in determining the seriousness of particular offences of dangerous driving causing death. The matters enumerated by the Chief justice were aggravating factors established in the authorities which were listed for the purpose of the guideline judgment in R v Jurisic[19] and revised in Whyte as follows:
[18](2002) 55 NSWLR 252 (‘Whyte’).
[19](1998) 45 NSWLR 209.
(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 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.[20]
[20]Whyte (2002) 55 NSWLR 252, 286 [216]–[217]. See further, Neethling (2009) 22 VR 466, 473 [31].
In submitting that it was not open to the sentencing judge to conclude that the appellant’s moral culpability was of a high level, counsel for the appellant pointed to the absence of a number of features that have been held to be aggravating, as identified in Whyte. For example, it was correctly noted by counsel for the appellant that neither alcohol nor drugs were involved (factor (iv)), nor was there any sleep deprivation (factor (x)). Similarly, it might be noted that there was no element of escaping from police pursuit or failure to stop after the incident (factors (ix) and (xi)).
However, the factors identified in Whyte (and subsequently adopted by this Court in Neethling as being relevant) do not constitute some mere checklist nor are they intended to be exhaustive. For example, matters such as the experience of the driver, his familiarity with the vehicle being driven, the terrain over which the vehicle is being driven and the degree of protection afforded to passengers are not matters listed.
Moral culpability in respect of criminal conduct does not fall to be assessed simply by identifying aggravating features that could have been present and then asserting that the case under consideration cannot be regarded as serious or very serious because of the absence of some of those factors. Both the dangerousness and moral culpability fall to be assessed by reference to all of the conduct and circumstances of the specific case, including the circumstances of the offender.
Offending by a person who has knowledge of the risks associated with particular driving, will ordinarily be adjudged more blameworthy than offending by one who is without that knowledge. The degree to which particular consequences of the offender’s acts were, or should have been, foreseen by him or her will inform the question of moral culpability.[21]
[21]R v Van Boxtel [1994] 2 VR 98, 103–4.
In the present case, having received abundant warnings as to the dangers associated with reckless or improper use of the buggy, the appellant chose to exceed the passenger limit and place a nine year old child in an unrestrained position, without her own seat, in the buggy. As was accepted on the appeal, he proceeded to test the vehicle by driving it in a manner calculated to cause the buggy to lose traction, and thus lose control. All of this was done deliberately. The appellant exposed the deceased and his stepson to a high risk of injury which might properly be described as breathtaking. We have examined the photographs of the buggy and the paddock that were taken following the incident. They more than underscore the grave and serious risk to which the appellant chose to expose the deceased.
In the circumstances of the present case, it matters little that it can be said that there was no alcohol, no drugs or no fatigue. It also matters little that the speed of the buggy (at least 34 kph) might be described as moderate (or even slow) by reference to the driving of a motor vehicle on a bitumen surface. Plainly, the speed was excessive for the driving of this vehicle on this surface at the time of this incident. We see no error in the judge’s conclusion that the appellant’s moral culpability in this case was of a very high level. Far from being a conclusion that was not reasonably open, we think the conclusion was correct. It is also to be remembered that moral culpability fell to be assessed by the judge by reference to the offence to which the appellant pleaded guilty (dangerous driving causing death), not by reference to the spectrum of offending that might be encompassed in some more serious charge such as culpable driving causing death.
For the reasons we have given, the appellant’s complaint in relation to the judge’s finding must be rejected.
As we have said, ground 2, which asserted manifest excess, was abandoned. On the basis that ground 1 might have been made out, the appellant made only the briefest oral submission to the effect that current sentencing practice supported the submission that a less severe sentence should be imposed, namely a CCO.[22] We should for sake of completeness express our opinion that, even if we had concluded that the judge had erred as to the appellant’s degree of moral culpability, taking into account all of the circumstances, including the affidavit of the appellant furnished on the appeal, we would not have imposed a different sentence. We reject the contention that a CCO would have been an appropriate disposition in the circumstances of this case.
[22]Criminal Procedure Act 2009 s 281(1)(b).
What we have said so far is sufficient to dispose of the sole ground of appeal. The respondent, in answer to the appellant’s contention, not only submitted that under existing sentencing standards, a sentence that did not involve a term of imprisonment for mid-category of seriousness offending for the offence of dangerous driving causing death involving a high degree of moral culpability was not open, but further submitted that current sentencing practices for that category of seriousness of the offence are inadequate.
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.[23] We have concluded that, particularly in light of the course followed in Harrison v The Queen,[24] 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.[25]
[23]Poyner v The Queen (1986) 66 ALR 264; R v D (1997) 69 SASR 413; R v Pidoto [2006] VSCA 185 [95]; Winch v The Queen (2010) 27 VR 658; Hampton v The Queen [2010] NSWCCA 278; Ashdown v The Queen (2011) 37 VR 341, 409–410 [202]–[208]; DPP v Daing [2016] VSCA 58 [47]; DPP v CJA [2013] VSCA 18; Anderson v The Queen [2013] VSCA 138; Hogarth v The Queen (2012) 37 VR 658; Harrison v The Queen [2015] VSCA 349.
[24][2015] VSCA 349 (‘Harrison’).
[25]Hampton v The Queen [2010] NSWCCA 278 [17]–[18]; Poyner v The Queen (1986) 66 ALR 264; R v D (1997) 69 SASR 413; Ashdown v The Queen (2011) 37 VR 341, 409-411 [202]–[208]; Winch v R [2010] VSCA 141; Hogarth v R (2012) 37 VR 658; Harrison v R [2015] VSCA 349.
Current sentencing practices
In Harrison,[26] this Court examined current sentencing practices for the offence of negligently causing serious injury, particularly in the context of the driving of a motor vehicle. In the hierarchy of driving offences, negligently causing serious injury by driving has been held to sit above dangerous driving causing serious injury and below dangerous driving causing death.[27]
[26][2015] VSCA 349 (‘Harrison’).
[27]See Gorladenchearau v The Queen (2011) 34 VR 149, 153 [13] (‘Gorladenchearau’); Harrison [2015] VSCA 349 [2].
The maximum penalty for dangerous driving causing death is, as we have said, 10 years’ imprisonment. It was increased from five years’ imprisonment in 2008 as was the maximum penalty for negligently causing serious injury. So far as the offences of dangerous driving causing death and negligently causing serious injury in a case involving driving are concerned, plainly death is a more serious consequence than serious injury. However, the conduct of an offender that might be held to be capable of constituting negligence in negligently causing serious injury may be, and often is, more serious than the conduct relied upon to support the element of dangerous driving. Parliament’s enactment of the same maximum penalty for each offence suggests that in many circumstances, the conduct under either offence may properly be regarded as of similar seriousness.
The Sentencing Advisory Council’s publication ‘Major Driving Offences Current Sentencing Practices’ published in June 2015 shows that current sentencing practices for the offences of dangerous driving causing death and negligently
causing serious injury (in a driving context) are very similar.[28] In Harrison, this Court concluded that, for the offence of negligently causing serious injury by driving, current sentencing for those offences at the upper end of seriousness was inadequate and needed to be uplifted. Further, as the Court said in Harrison, such a change would have a flow on effect on sentencing for mid-range and low-range instances of negligently causing serious injury by driving.
[28]For example, the median total effective sentence of imprisonment for offending involving the offence of dangerous driving causing death is 3 years and 3 months, whereas it is 3 years, 1 month and 15 days for offending involving negligently causing serious injury (where driving related).
In Harrison, the Court noted the Sentencing Advisory Council’s conclusion that despite the doubling of the maximum penalty for negligently causing serious injury in driving cases (from 5 years to 10 years’ imprisonment), the median sentence had only increased, by 25 per cent, from 2 years, to 2 years and 6 months. The same report shows that for the offence of dangerous driving causing death, the doubling of the maximum penalty (again from 5 years to 10 years’ imprisonment) produced an increase in the median sentence of a mere 6 months being 20 per cent, from 2 years and 6 months, to 3 years. Of course, as has been said before, the determination or calculation of the median sentence imposed for any particular offence says little (if anything) about the appropriateness of any specific sentence in any individual case.
The report also shows that the increase in the maximum for dangerous driving causing death has resulted in a 10 month increase in the longest sentence imposed. Since the report which covered sentences until 2013, only three offenders have received a sentence of 4 years, and one a sentence of 5 years. For cases falling into this upper category of seriousness the range was 2 years 4 months to 3 years prior to the increase in the maximum and subsequent to the increase the most common sentence was 3 years with some above and some below that figure. There is considerable force in the submission that the dearth of cases in excess of five years since the increased maximum bespeaks a failure by the courts to give proper effect to the maximum term of imprisonment as a ‘yard stick’.[29] The tables of cases produced by the Director also demonstrate, that as a consequence of the low sentences fixed for the upper category of offending, an artificially low ceiling exists for mid category offending.
[29]DPP v Aydin [2005] VSCA 222 [22].
The Director, while acknowledging the dangers of bare statistics, pointed out that when the maximum was 5 years, the longest sentence imposed was 70 per cent of the maximum and the median 50 per cent of the maximum. Now under the 10 year maximum, the longest sentence is 50 per cent of the maximum and the median 30 per cent of the maximum.
In Harrison, the Court concluded that the current sentencing practice for negligently causing serious injury involving driving at the upper end of that offence was inadequate. In so concluding, the Court said:
First, sentences imposed for offences in the upper range of seriousness disclose an inadequate response to the increase in the maximum penalty. There has been an inappropriately narrow range of sentences imposed in cases comparable to those the subject of these appeals.
The increase in the maximum necessarily implies that there should be some increase in the sentences actually imposed. As the courts have not hitherto responded to the legislative command to increase sentences, judges should no longer remain fettered by the previous pattern of sentencing. They must give effect to Parliament’s decision to increase the maximum penalty, which provides an indication as to the seriousness with which it should be viewed.[30]
Secondly, current practice fails to reflect the objective seriousness of this category of NCSI by driving. The sentences imposed in the comparable cases are not commensurate with the objective gravity of the offences, as informed by the degree of negligence involved and the consequences for victims.[31]
[30]AB [No 2] v The Queen (2008) 18 VR 391, 403–4 [40]. See also Markarian v The Queen (2005) 228 CLR 357, 372 [31].
[31]Harrison [2015] VSCA 349 [137]–[139] (footnote in original).
The Court’s reasoning in Harrison, in relation to negligently causing serious injury in the context of driving, has equal force with respect to the sentencing of offenders for the offence of dangerous driving causing death. There has been an inappropriately narrow range of sentences imposed, for the commission of the offence of dangerous driving causing death, to date. Further, the sentences imposed since the doubling of the maximum penalty for this offence (like those imposed for negligently causing serious injury) do not give effect to the decision of Parliament to increase the penalty.
The respondent submitted to us that, for the same reasons given the Court in Harrison, the relevantly identical current sentencing practice for serious examples of dangerous driving causing death is inadequate and needs to be uplifted. We agree.
As we have said, an examination of the Sentencing Advisory Council’s report shows that largely identical sentences are being given for negligently causing serious injury by driving and dangerous driving causing death. To the extent that there should be (as was held in Harrison) an uplifting of current sentencing practices for negligently causing serious injury by driving, there should be a similar uplifting of current sentencing practices for dangerous driving causing death.[32] To do so will also facilitate the Sentencing Advisory Council’s objective of maintaining a logical consistency between sentences for dangerous driving causing death and negligently causing serious injury, as discussed in its report of 2007,[33] in which it recommended there be an increase in the maximum penalty for both offences to 10 years.
[32]See further, DPP v Sismanoglou [2016] VSCA 87 [45]–[46].
[33]Sentencing Advisory Council ‘Maximum Penalty for Negligently Causing Serious Injury: Report’ (Report, Sentencing Advisory Council, October 2007) 3 [1.5].
Conclusion
The appellant’s appeal must be dismissed.
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