Stewart v The Queen
[2018] VSCA 55
•8 March 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0150
| REBEKAH EMILY STEWART | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG and COGHLAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 January 2018 |
| DATE OF JUDGMENT: | 8 March 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 55 |
| JUDGMENT APPEALED FROM: | DPP v Stewart [2017] VCC 390 (Judge McInerney) |
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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing serious injury, failure to stop after accident and two related summary offences – Total effective sentence of six years’ imprisonment with non-parole period of four years – Whether sentence manifestly excessive – Very serious examples of offending – Relevant criminal history – Relevance of time spent in residential rehabilitation facility while on bail prior to sentence – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R F Edney | Doogue + George |
| For the Crown | Mr B F Kissane QC | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG JA
COGHLAN JA:
Overview
On 25 March 2016, the appellant, then aged 23, drove her motor car on to the incorrect side of the road and collided with a cyclist, Christian Ashby, thereby inflicting catastrophic injuries upon him. She was affected by ‘ice’ (methylamphetamine) at the time.
On 29 March 2017, the appellant pleaded guilty in the County Court to a charge of dangerous driving causing serious injury (Charge 1), failing to stop after an accident (Charge 2) and two related summary offences of driving whilst disqualified and using an unregistered motor vehicle (Charges 5 and 6). A plea hearing was conducted. On 3 April 2017, she was sentenced to be imprisoned for six years, with a non-parole period of four years, as follows:
Charge Offence Maximum Sentence Cumulation 1 Dangerous driving causing serious injury
[Crimes Act 1958 s 319(1A)]
5 years 3 years and 6 months 2 years 2 Fail to stop after accident
[Road Safety Act 1986 s 30(1)]
10 years 4 years Base Related Summary Offences 5 Drive whilst disqualified
[Road Safety Act 1986 s 30(1)]
2 years or 240 penalty units 4 months Nil 6 Use unregistered motor vehicle
[Road Safety Act 1986 s 7(1)(a)]
25 penalty units $1000 fine N/A Total Effective Sentence 6 years’ imprisonment Non-Parole Period 4 years Pre-Sentence detention 43 days 6AAA Statement 8 years’ imprisonment, non-parole period of 5 years and 4 months. Other relevant orders On Charge 1: Disqualified from obtaining any licence or permit for a period of 18 months from 3 April 2017.
On Charge 2: Disqualified from obtaining any licence or permit for a period of 8 years from 3 April 2017.
On 27 September 2017, Priest JA granted leave to appeal on the following ground:
The sentences imposed on the charges of dangerous driving causing serious injury and fail to stop after a motor vehicle accident, the order for cumulation, non‐parole period and total effective sentence:
(i) are manifestly excessive; and
(ii) outside the range of sentences reasonably open in the circumstances of the offence and the offender; and
(iii) inconsistent with current sentencing practices for dangerous driving causing serious injury and fail to stop after a motor vehicle accident; and
(iv) resulted in a total effective sentence and non‐parole period that was manifestly excessive.
In substance, the appellant contends that the total effective sentence is manifestly excessive. Sub-paragraphs (ii) and (iii) in the ground of appeal are, in effect, particulars. There is no allegation of specific error.
Circumstances of offending
The circumstances of the offending are set out in the Prosecution Opening which was tendered at the plea hearing on 29 March 2017:
On 25 March 2016, Good Friday, Christian ASHBY, a resident of Alfredton, a suburb within the City of Ballarat, left home at about 4.45 am on his bicycle. He is a keen and very active triathlete and trained regularly in all three disciplines. On this morning he cycled the short distance to Wendouree Parade, Lake Wendouree and started his training program, riding around the lake, a circuit of about 6 kilometres. At this time of the morning, being Good Friday, there were few vehicles on the road.
At 6.22 am he was riding along the east bound lane of Wendouree Parade on the southern side of the lake in the vicinity of 215 Wendouree Parade. He was travelling along a straight stretch of road, approaching a left hand curve in the road. At the same time, a silver-coloured Mitsubishi Lancer sedan, being driven by [the appellant] was travelling west. She had entered the same curve, which swept to the right, and exited onto the straight section of road outside number 215. Her car was travelling west on the incorrect side of the road and wholly within the east bound lane. The Lancer driven by [the appellant] then collided head on into Christian ASHBY as he rode his bicycle in the opposite direction.
The force of the impact crushed the front of the bicycle and threw ASHBY into the air. He landed heavily on the northern edge of the east-bound lane of Wendouree Parade, sustaining life threatening injuries from the collision. [The appellant] only applied emergency braking on colliding with the bicycle and after skidding a short distance, accelerated away from the collision, leaving Ashby on the road. [The appellant] then drove to an industrial estate before gaining assistance to conceal the car. She then actively avoided authorities until her arrest on 31 March 2016.
Christian ASHBY was 36 years of age, married and the father of two young children, 6 and 3 years at the time of the collision. He was professionally employed as a Podiatrist and was an active, healthy and fit man. He was a keen triathlete and a member of a local club. He was a regular competitor and renowned for his hard training regime.
[The appellant] was 23 years of age at the time of the collision. She was unemployed and at the time of the collision her Victorian P2 Driver Licence had been cancelled and she had been disqualified from obtaining any licence or permit for a period of two years, from 18 June 2015.
The vehicle driven by the accused was a silver coloured Mitsubishi Lancer sedan, it was fitted with a ‘body kit’ and rear boot lid spoiler. It was last registered in Queensland as (Qld) 184 TQK. This registration had expired and been cancelled.
At about 4.45 am the victim left his home address in Alfredton and rode his ‘Cervelo’ time trial bicycle to Wendouree Parade, Lake Wendouree. The bicycle was white in colour and he was wearing a light coloured cycling top and yellow helmet to which a bright LED headlamp was attached. This lamp was on and working effectively at the time of the collision. The victim started his training program, riding in an anticlockwise direction around the lake. When riding along the southern side of the lake he was travelling east.
At about 6 am the accused was observed in Barkly Street, Mount Pleasant east of the intersection with Cobden Street by the witness, Ryan TAYLOR. She was standing by the front passenger’s side of the silver Lancer. The vehicle was stopped on the wrong side of the road, hard up against the kerb. TAYLOR stopped to help jump start the vehicle and the accused told him that she was late for work. He noticed that she was heavily made-up, bare-foot and appeared dressed in going-out attire. The accused sped off after the car was started.
The accused travelled through Ballarat to the Lake Wendouree area. At about 6:22 am a security camera on the private residence at 217 Wendouree Parade, Lake Wendouree, captures the victim cycling west along the road, he is clearly visible due to a very bright head lamp that was attached to his helmet. The footage shows him ride past the front of the property and just as he is about to leave the field of vision of the camera, the headlight of the Lancer appears suddenly from the right of the images, travelling west. The Lancer then collides head on with the victim and his bicycle.
On colliding with the car, the victim was ejected forward over the handle bars of the bike as they ran up the driver’s side of the car’s bonnet. The victim then struck the top of the windscreen and roof on the driver’s side of the car. The windscreen shattered and was pushed inwards. The roof immediately above the top of the windscreen was crushed downwards and the force of the impact propelled the victim into the air rotating a number of times before landing on the northern edge of the east-bound lane.
Shortly before colliding with the victim and his bicycle, the accused braked, leaving two parallel tyre skid marks of 5.2 and 5.3 metres. The front tyre of the bicycle left a short .35 metre scuff mark on the road. This mark was created at or within a very close proximity to the point where the bicycle was struck. After this short sharp braking, the accused accelerated and drove away from the scene. She did not make any attempt to stop.
Graeme SANDWITH was riding in the area when he heard a loud bang, ‘like someone hitting a rubbish bin with their car’. As he rode between Sturt Street and Wendouree Parade he saw the accused’s vehicle speeding away from the scene of the collision. SANDWITH rode to Wendouree Parade where he turned and headed east on his ride around Lake Wendouree. After riding approximately 50 metres, he observed a red flashing light that he thought had fallen off another bike. As he got nearer to it he then observed a headlight on the grass, north of the road and then saw the victim, narrowly missing him as he passed. The victim was lying across the bicycle lane on the northern side of the road with his legs protruding into the-east bound lane. SANDWITH stopped and called for help.
Prior to the collision Angela GUY was running around the lake. When she was about 500 metres from Parker Street heading west, the Lancer passed her and appeared to be speeding. She then heard a screech of brakes and an impact ahead of her. She then saw the Lancer take off and turn left at the Hamilton Street roundabout. She then came across the scene and saw the victim laying on the road.
A group of ladies running around the lake also heard the collision, followed by the sound of the Lancer speeding away from the scene. One of them, Tamarra RIPPER noted the time as 6:22 am
Another lady, Naomi IRVIN, had seen the victim riding with a bright head light on approximately 25 minutes before the collision. She knows the victim and has seen him many times before training around the lake. She was driving her car at the time en-route to meet the group to go for their run, and stated that he was easily seen.
After driving away from the collision scene, [the appellant] turned into Hamilton Street, and then onto Sturt Street to head west. She drove to Dyson Drive in Alfredton, where she turned left and headed south. Just north of the intersection of Dyson Drive and Cuthberts Road, Katie RUSKA and Zachory TARSOLY observed the Lancer. Both describe seeing the car coming towards them with no lights on. TARSOLY was sufficiently concerned that he flashed the headlight of his car on three occasions to get the driver of the Lancer to put the vehicles headlights on. When the Lancer was close by they saw the damaged windscreen.
Corey VLUGEL was also travelling north on Dyson Drive, and was south of Cuthberts Road, between that intersection and the Ballarat-Carngham Road. His attention was drawn to the Lancer due to the lack of headlights and he too observed the damage to the windscreen as it passed by.
A short time later, the Lancer was captured on the external security cameras of a company premises at the intersection of Kennedy Drive and Paddys Drive in the Icon Industrial Estate in Delacombe. At about 6.40 am the footage captured the Lancer turning left from Icon Drive, onto Paddys Drive with its headlights off. [The appellant] drove slowly across at an angle across Paddys Drive before briefly flashing the vehicle’s high beams to gain a view of the vacant block at Lot 34 Paddys Drive. She then mounted the kerb and headed to the very back, south east corner of the block where she dumped the car.
Just after 7 am the accused arrived at 12 Weabra Court, Delacombe, which was the home of Michelle SCOTT. At this time Michelle was asleep, but her son Trevor and their neighbour Bradley WILSON were awake. The accused informed Trevor SCOTT and WILSON that she had hit a kangaroo and needed help to get the car. She said it belonged to a friend and that she wanted to protect it further. …
WILSON then borrowed his mother’s, Joan SUMMONS’ car, a silver coloured Holden VX model sedan, and drove Trevor SCOTT and the accused back to Paddys Drive. Again, the events and movements were captured on a number of security camera systems along Paddys Drive. A number of people also witnessed the return trip to the accused’s vehicle. The vehicle was then collected and driven to the Delacombe address. A number of witnesses observed the badly damaged vehicle speeding and travelling erratically during the journey.
The accused, with the assistance of SCOTT and WILSON, pushed the Lancer into the back yard. The accused took a number of photographs of the windscreen of the car, before it was partially covered with a blue plastic tarpaulin and a blanket that WILSON had in his backyard. The windscreen was partially pulled out of the window frame, across to the passenger’s side of the car and the bonnet was removed.
On becoming aware of the collision, the SCOTTs spoke to and messaged the accused, telling her to remove the car from number 11 and also to go to the Police.
On 28 March 2016, Police attended at both 11 Weabra and 12 Weabra Court Delacombe. They located and recovered the Lancer and the vehicle’s bonnet from the rear yard of number 11.
On 31 March 2016, Police tracked the accused to 62B Second Avenue, Altona North, where she was arrested. Upon her arrest, Police located a small red note book and SIM card as well as two micro SD cards. Contained on the SD card they found a number of images taken of the Lancer in the rear yard of 11 Weabra Court depicting the damage to the windscreen.[1]
[1]Emphasis in original.
Mr Ashby’s injuries were catastrophic. They included multiple fractures to his ribs, hips and spine; damage to his right kidney which required its removal; severe traumatic brain injury; fractures to every bone in his left hand; punctures to both his lungs; bruising to the liver; ruptured urethra; nerve damage; and post-traumatic amnesia which lasted 36 days.
Mr Ashby underwent 12 operations to try and repair the damage to his kidneys, leg, left hand, spine and hip. He was left with permanent scarring. His left hand is permanently deformed. He will never be able to run or jog again and can no longer do anything that requires fine motor skills. He is in constant chronic pain and requires ongoing and consistent medical and rehabilitative treatment.
In this case, the appellant’s driving-related criminal history is relevant:
(a) On 30 September 2012, she received a traffic infringement notice for exceeding the prescribed concentration of alcohol.
(b) On 5 February 2014, she was convicted of failing an oral fluid drug test. She was fined $500 and suspended from driving for three months.
(c) On 18 June 2015, at the Melbourne Magistrates’ Court, she was convicted of:
(i) two charges of driving whilst authorisation suspended and sentenced to 42 days’ imprisonment wholly suspended for 18 months;
(ii) one charge of careless driving and fined $600 and suspended from driving for three months; and
(iii) one charge of careless driving, one charge of failing to give her name and address, one charge of driving whilst authorisation suspended and one charge of failing to give information as to driver. For those offences, she was fined an aggregate of $1,500 and disqualified from obtaining a licence for two years.
There is no information before this Court about the circumstances of the offending that was dealt with by the Magistrates’ Court on 18 June 2015, but, at least in relation the last set of charges, it appears that the appellant had left the scene without exchanging names and addresses. As at the time of this offending, she was driving whilst disqualified and whilst on a suspended sentence. The car that she was driving was also unregistered.
On the appeal, the appellant submitted that there were powerful features of the plea, particularly those going to the appellant’s rehabilitation, such that the sentences were manifestly excessive in ways set out in the ground of appeal. In the Written Case for the appellant, the following matters are set out:
On the plea the [appellant] could properly call in aid the following weighty matters in mitigation:
(a) Plea of guilty;
(b) Palpable remorse and disbelief as to her actions;
(c) Positive finding of fact by the sentencing judge that the appellant had made a genuine apology to the victim;
(d) Active assistance to the curial process by admission through counsel to the use of ice on the night of the accident and awareness that an accident had occurred;
(e) Problematic lifestyle — and negative peer associations — at the time of the offence;
(f) Youthful offender of 24 years of age;
(g) No indictable prior convictions;
(h) First term of imprisonment;
(i) Substantial efforts expended to her own rehabilitation;
(j) 5 months in a residential rehabilitation center [sic] as an inpatient;
(k) Further treatment as an outpatient at the same residential rehabilitation center [sic];
(l) Thirty four (34) sessions of psychological treatment and counselling with Mr Michael Crewdson, Clinical & Forensic Psychologist;
(m) Drug free for 10 months;
(n) Impressive array of character references;
(o) Strong family support;
(p) No further offending or other pending matters;
(q) Complete fidelity to onerous bail conditions.
Particular emphasis was placed upon the fact that the appellant was very remorseful and her rehabilitation was very advanced by the time of the plea. It was also submitted that the appellant had been released on bail in May 2016 on very onerous conditions and successfully completed the residential program which she had undergone as one of her conditions of bail.
In addition, the appellant submitted that an analysis of recent relevant cases showed that this sentence was outside the range of available sentences having regard to current sentencing practices. Counsel relied on Wassef v The Queen,[2] Tokay v The Queen[3] and several other cases,[4] where, it was submitted, the total effective sentence imposed in respect of equivalent or more serious offences in each of those cases was lower than that imposed in this case.
[2][2011] VSCA 30.
[3][2014] VSCA 172.
[4]Tang v The Queen [2013] VSCA 31; Sarikaya v The Queen [2015] VSCA 236; Duy Thai Nguyen v The Queen [2014] VSCA 53; Stephens v The Queen [2016] VSCA 121; Miller v The Queen [2012] VSCA 265; Veerman v The Queen [2012] VSCA 194.
The appellant also submitted that the order for cumulation between the sentences imposed on Charge 1 and Charge 2 was excessive.
The respondent relied upon and adopted what his Honour had said about the appellant’s driving in the sentencing remarks:
The dangerousness of her driving is demonstrated as follows:
•Firstly, by driving a car while affected by drugs, which was admitted by her counsel in this plea.
•Secondly, being fully on the wrong side of the road at the point of collision at a proximate point of 215 Wendouree Parade.
•Thirdly, by failing to keep a proper lookout.
•Fourthly, for failing to see the approaching bike. Exhibit F, which is the CCTV footage, albeit limited, provides both a confronting and dramatic demonstration of what happened on that morning. Mr Ashby approaches the collision scene with his headlight lighting the roadway, and the light on his helmet clearly visible.
•Fifthly, there is no evidence that Ms Stewart’s lights were not operating. She was last seen, before the accident, in Mount Pleasant with her lights on ... A person who saw that car in Wendouree Parade, before the accident, that is Angela Guy, … and then, after the accident, Mr Miles …, does not suggest the lights were off. Indeed the CCTV footage, exhibit F, demonstrates her lights were on ….[5]
His Honour went on to say:
Whatever the precise cause, the consequences of this criminality were horrific.[6]
[5]DPP v Stewart [2017] VCC 390 [9] (‘Reasons’).
[6]Ibid [10]; see above [6]–[7].
The respondent also pointed to the appellant’s criminal history, as set out earlier in [8] and [9].
The respondent submitted that the appellant should not have been given credit for participation in the residential rehabilitation program. The respondent further noted that it is neither the subject of a separate ground of appeal nor a particular of the present ground.
Current sentencing practices and seriousness of offending
‘Current sentencing practices’ is one of a number of matters to which a court is to have regard in sentencing an offender.[7] In recent times, the High Court has emphasised that it is not the predominant consideration in sentencing, but is one of the considerations that form part of the instinctive synthesis.[8] The extent to which a particular factor set out in s 5(2) of the Sentencing Act 1991 will influence the final sentence is a matter of judgment.
[7]Sentencing Act 1991 s 5(2)(b).
[8]R v Kilic (2016) 259 CLR 256; DPP v Dalgliesh (a pseudonym) [2017] HCA 41.
All of the cases referred to on appeal were provided to the learned sentencing judge and were referred to by him in his sentencing remarks. It is true to say that in a number of cases referred to by the appellant, lower sentences had been imposed for offences contrary to the same or similar provisions. It is, however, important to look at each case on its own facts. In this case, the learned sentencing judge characterised the offending as follows:
This is clearly a most serious example of this offence, and I assess the objective culpability at the level of between mid-range to high.[9]
[9]Reasons [21].
It seems likely that, in that paragraph, his Honour was referring to Charge 1 (dangerous driving causing serious injury) because he had just dealt with the victim impact material.
In relation to Charge 2 (failing to stop after an accident), his Honour said:
This also is a most serious example of this particular crime. On the second charge, I assess the culpability as being at the higher end of the range of mid to serious.[10]
[10]Ibid [28].
His Honour’s characterisation of the objective gravity of the offending was reasonable and his assessment of the appellant’s culpability was, if anything, favourable to the appellant.
The criminality in this offending is two-fold. First, Charge 1, the circumstances of which are clear, was complete once the collision had occurred. Secondly, the offending in Charge 2 involved a separate, although fleeting, decision not to stop and leave the scene in circumstances where there was no reason to assume that assistance to the victim was at hand. Indeed, given the time and place at which Mr Ashby was struck, it was not likely that assistance would be readily available.
Cumulation
For the reasons given earlier, the identifiable separate criminality involved in each offence merited significant cumulation. The question then remains whether or not, as a feature of manifest excess, the period of cumulation would help make the ground good. These were very serious examples of both offences. The victim impact material was moving. The principles of general deterrence and just punishment were important in this case, and the need for general deterrence was heightened by the prevalence of offending of this kind as seen in the cases referred to. Although the need for specific deterrence was reduced by the efforts that the appellant had made towards rehabilitation, her previous driving record meant that there was still some role for specific deterrence.
Residential program
The Court of Appeal recently decided in Akoka v The Queen[11] that the punitive nature of rehabilitation undertaken in a residential facility may be a factor to be taken into account in the exercise of the sentencing discretion.
[11][2017] VSCA 214 (‘Akoka’).
Akoka was decided after the plea and sentence in this case. It was not put to the learned sentencing judge that he should have dealt with the appellant’s participation in the residential program in the way that the issue was dealt with in Akoka. Although it is fair to say that part of the material put on the plea showed what the appellant had done as part of her residential program, it was, to a large degree, directed towards showing what the appellant had done in furtherance of her rehabilitation. Emphasis was placed on the completion of the residential program and the appellant’s continuing treatment. A letter setting out the details of the appellant’s participation in the Refocus Program was tendered on the plea and Mr Peter Daley, the manager of the Refocus Programs, gave evidence. In his reasons for sentence, his Honour noted those matters and appears to have taken them into account.
The Court of Appeal in Akoka held that the extent to which this factor will affect a sentence requires a careful analysis of what was actually involved in the program which was undertaken, with particular reference to the extent that the appellant’s freedom was restricted. In this case, it appears that the appellant was required to live at the premises and undergo the programs provided. There were no other details given about the requirements of the program, whether punitive in nature or otherwise. In this case, it is not possible to say to what extent the appellant’s attendance at the residential program might have been taken into account even if his Honour had been asked to do so.
Conclusion
The ground of manifest excess can only be made good if the sentences imposed are wholly outside the range of sentences open to his Honour. We are not satisfied that the individual sentences, the order for cumulation or the total effective sentence is outside the available range.
The appeal is dismissed.
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