Vernon Board v The Queen
[2013] VSCA 91
•19 April 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0024
| VERNON BOARD | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG JA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 19 April 2013 |
| DATE OF JUDGMENT | 19 April 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 91 |
| JUDGMENT APPEALED FROM | DPP v Board (Unreported, County Court of Victoria, Judge Hampel, 20 December 2012 |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
(DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE
CRIMINAL PROCEDURE ACT 2009)
CRIMINAL LAW — Application for leave to appeal against sentence — Plea of guilty to one count of dangerous driving causing death and three counts of dangerous driving causing serious injury — Applicant veered onto wrong side of road resulting in head on collision with vehicle travelling in opposite direction — Applicant aware that he was tired and observed to be driving erratically leading up to collision — 97 year old passenger in applicant’s vehicle died as a result of collision — Applicant’s wife as well as two occupants of other vehicle sustained serious injury — Total effective sentence of four years’ imprisonment with non-parole period of 18 months — Whether sentencing judge proceeded upon erroneous basis that applicant had fallen asleep at the wheel — Whether sentencing judge failed properly to assess relevance of age of deceased — Whether sentencing judge treated DPP v Janson (2011) 31 VR 222 as a quantitative precedent on sentence — Whether sentence manifestly excessive — No grounds reasonably arguable — Leave to appeal against sentence refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis | Balmer & Associates |
| For the Crown | Ms F Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
The applicant, Vernon Board, pleaded guilty in the County Court at Melbourne on 17 December 2012 to various driving offences arising from an incident that occurred on 23 October 2011. He was sentenced for those offences on 20 December 2012. He now seeks leave to appeal against sentence, and applies for bail pending any appeal.
The individual sentences, and the offences for which they were imposed, were as follows:
·charge 1 (dangerous driving causing death): two years and six months’ imprisonment;
·charge 2 (dangerous driving causing serious injury): 18 months’ imprisonment;
·charge 3 (dangerous driving causing serious injury): 18 months’ imprisonment;
·charge 4 (dangerous driving causing serious injury): 18 months’ imprisonment.
Six months each of the sentences imposed on charges 2-4 were ordered to be served cumulatively upon the sentence imposed on charge 1, resulting in a total effective sentence of four years’ imprisonment. A non-parole period of 18 months was fixed.
Circumstances of the offending
The circumstances of the offending were set out in the Crown’s ‘Summary of Prosecution Opening’, which was tendered on the plea.
In the afternoon of 23 October 2011, the applicant, then aged 71, was driving a 2006 silver Holden Commodore sedan northwards towards Mt Evelyn along Monbulk Road, Monbulk. The vehicle was unroadworthy at the time owing to insufficient tread depth on both rear tyres, but was otherwise mechanically safe.
Also in that vehicle were the applicant’s mother-in-law, Ethel Lord, then aged 97, and Elva Board, the applicant’s wife. Mrs Lord was seated in the left rear passenger seat of the vehicle, and Mrs Board was in the front passenger seat.
At approximately 4:00pm, the Holden Commodore crossed onto the southbound lane of Monbulk Road. It was involved in a head-on collision with a 2004 gold Nissan X-Trail which had been travelling south.
Mrs Lord received fatal injuries as a result of the collision (charge 1). She died at the scene. Mrs Board suffered breaks to her sternum, ribs and to her left foot (charge 2). She also suffered fractures to her neck and was conveyed to the Alfred Hospital for treatment.
The Nissan X-Trail was being driven by Steven Helmore. He was travelling with his partner, Michelle Adins, and their two children, aged 2 and 11. Mr Helmore suffered a broken right leg, several broken ribs and bruising (charge 3). Ms Adins sustained a fractured sternum, a broken left toe, deep lacerations to the forehead and right arm, a torn right forearm muscle and bruising to the chest and torso (charge 4). The two children suffered bruising and abrasions, but their injuries were described as ‘not serious’.
The applicant himself suffered severe bruising to the right ankle, and was conveyed to the Royal Melbourne Hospital for treatment.
A blood test conducted after the incident showed no trace of alcohol or drugs in the applicant’s system.
The tread depth on the rear tyres did not contribute to the incident.
As to how the collision came about, the Prosecution Opening recounted that a witness, Mr Cameron Walter, who had been travelling directly behind the applicant’s vehicle for some time, saw it twice veer onto the incorrect side of the road, and once veer onto the gravel on the left side of the road. Mr Walter described the applicant’s driving as ‘erratic’.
As to the incident itself, Mr Walter said:
I noticed that the Commodore was veering from side to side within its lane. These movements were gentle and inconsistent. I was approaching the left hand bend. I remember the Commodore just going straight ahead at this bend. It didn’t appear that the Commodore slowed at all as my distance behind it didn’t appear to change. The Commodore didn’t take any evasive action and it was like it just didn’t turn. The Commodore went most of the way into the right hand lane but my attention was drawn to a small gold coloured 4WD coming the opposite direction. Both of the cars then collided head on but on a slight angle and in the right hand lane.[1]
[1]Prosecution Opening, [21].
The applicant’s wife told police that the applicant had mentioned to her that he was tired, and that he would look for somewhere to pull over. However, that could not safely be done as there were double lines and bends in the road. She added that his driving appeared to her to be normal leading up to the point of the collision.
The driver of the Nissan X-Trail, Mr Helmore, told police that he had seen the Commodore travelling slowly, and had initially thought that it was turning right into a driveway. He anticipated that it would stop before entering his lane, but it did not. He did not see the Commodore indicate, and noted that the front wheels of the Commodore were pointing straight. He said that the applicant did not seem to take, or even try to take, any evasive action.
At the time of the collision the weather was fine. The road was dry and there was no impairment to visibility. Traffic flow was described as having been light.
Proposed grounds of appeal
The applicant seeks leave to appeal on the following grounds:
1AThe sentencing discretion miscarried as a result of the Judge’s having sentenced the applicant on the basis that he had fallen asleep at the wheel. In particular, the judge erred and thus impermissibly aggravated the applicant’s offending, in circumstances where:
(a)the prosecutor did not open or allege that the applicant had fallen asleep at the wheel; and
(b)counsel for the applicant took no issue with that part of the Prosecution Opening, and did not submit nor concede that his client had fallen asleep at the wheel.
1B The sentencing judge erred by imposing sentence on the Applicant:
(a) on a basis not advanced by either party on the plea;
(b)without raising with counsel for the applicant the judge’s proposed adverse finding or otherwise availing counsel of the opportunity to make submissions directed at addressing the proposed finding; and
(c)as a consequence of (a) and (b), by depriving the applicant procedural fairness on a material question of fact.
2. The sentencing judge erred by:
(a) treating as an aggravating feature of the Applicant’s offending on charge 1 the fact that his 97 year old mother-in-law and victim was ‘elderly and frail’ or
(b)alternatively, treating the advanced age of the Applicant’s mother-in-law and victim of charge 1 as irrelevant.
3.The sentencing discretion miscarried because in its exercise the Judge improperly steered by the circumstances of, and the sentences imposed by the Court of Appeal in, DPP v Janson (2011) 31 VR 222. In particular, the judge erred by:
(a)expressly or impliedly regarding Janson as a ‘benchmark’ which was determinative, or near-determinative, of the sentence imposed; and
(b)undertaking a comparative analysis inimical to the instinctive synthesis and at odds with the Court of Appeal’s judgment in Hudson v R [2010] VSCA 332
4.In all the circumstances, the individual terms of imprisonment, the orders for cumulation and the non-parole period fixed, are manifestly excessive.
The applicant’s submissions
Mr Kassimatis, who appeared on behalf of the applicant, noted in his Written Case that there was no assertion in the Prosecution Opening that the applicant had fallen asleep at the wheel. Rather, the opening stated that the accused travelled across the centre dividing line of the road ‘for an unknown reason’.[2]
[2]Citing Prosecution Opening [23].
In support of his contentions, Mr Kassimatis highlighted the following statement in the judge’s sentencing remarks:
The force of a car no longer under the control of a driver who has gone to sleep has the potential to cause enormous harm and injury to other road users and that is exactly what happened here.[3]
[3]DPP v Board (Unreported, County Court of Victoria, Judge Hampel, 20 December 2012) (‘Sentencing Remarks’) [63].
That passage, it was submitted, demonstrated that her Honour had impermissibly sentenced the applicant on a basis not alleged in the Prosecution Opening. Further, the passage was said to go against the judge’s recognition, as expressed during the course of the plea hearing, and as set out in the applicant’s Written Case, that:
he knew he was tired at the time and the driving as witnessed by others was clearly by someone struggling to stay awake and who was drifting as a result.
Mr Kassimatis also noted that there was no evidentiary basis for a conclusion that the applicant had fallen asleep at the wheel. Further, her Honour had not given counsel who appeared below an opportunity to be heard on the matter prior to finding, contrary to how the matter had been opened, that the applicant had fallen asleep at the wheel.
By departing from the facts alleged in the Prosecution Opening, without notice to the applicant, it was submitted that the sentencing judge had impermissibly sentenced the applicant on the basis that his moral culpability was greater than had been alleged.
As to ground 2, Mr Kassimatis highlighted the fact that Mrs Lord, the victim of charge 1, was aged 97 when she died. While noting that her age was ‘neither a mitigating nor an aggravating feature’, he submitted that it was nevertheless not irrelevant in assessing the objective gravity of the offending, and, in particular, the consequences that flowed from the applicant’s conduct.
Mr Kassimatis drew attention to the sentencing judge’s remarks on this point, as follows:
Relevant aggravating features here are, first, the number of victims: one person killed and three seriously injured. Ms Lord, [the applicant’s] mother-in-law, was elderly and frail. Although her remaining years may have been few, her life is no less valuable because she had already lived much of it.[4]
[4]Sentencing Remarks [20].
Mr Kassimatis submitted first that the fact that Mrs Lord was ‘elderly and frail’ could not properly have been regarded as an aggravating factor, and that her Honour had erred in so doing.
Next, Mr Kassimatis submitted that Mrs Lord’s age was not, in fact, irrelevant to the exercise of discretion. He added that the law ‘does not invariably equate … the loss of a life near its natural end with the loss of (say) the life of a child or of a person in the prime of their youth’. He submitted that the sentencing judge, in approaching the matter as she did, ‘failed properly to synthesise the very advanced age of [Mrs Lord] in assessing the gravity and consequences of the applicant’s offending’.
Ground 3, as indicated, concerns her Honour’s treatment of this Court’s decision in DPP v Janson.[5] In short, Mr Kassimatis submitted that it is plain from her Honour’s sentencing remarks that she treated Janson as ‘the determinative factor informing the sentences imposed’. The sentence her Honour arrived at was said to have been reached by an analysis of the extent to which the applicant’s case accorded with, or departed from, the particular facts in Janson.
[5](2011) 31 VR 222 (‘Janson’).
The principal passage of the sentence upon which Mr Kassimatis relied was as follows:
I consider Janson must guide me in determining the appropriate sentences here. That is, first, that an individual sentence for dangerous driving causing serious injury or causing death of two years, six months, for dangerousness above the lower end of the scale was lower than would be appropriate if sentencing at first instance, even if there were evidence of psychological suffering of the extent experienced by Mr Janson.[6]
[6] Sentencing Remarks [35]. See also [41]-[47].
This passage was said to betray a ‘mechanistic analysis’ that looked only to the facts and the sentence imposed in Janson, and applied them to the applicant’s case. It was said to represent an abandonment of the principle that sentences are not precedents. In short, it was submitted that Janson had been treated as a ‘benchmark’ which was determinative, or near-determinative, of the sentence that her Honour in fact imposed.
Ground 4 asserts that the individual sentences, orders for cumulation and the non-parole period fixed are manifestly excessive. This ground was not the subject of any oral elaboration. Mr Kassimatis did, however, in his Written Case, highlight the applicant’s previous good character. He also submitted that the features of the applicant’s offending did not ‘necessarily compel his immediate incarceration’.
The Crown’s submissions in response
Ms Dalziel, who appeared on behalf of the Crown, was content to rely upon the Crown’s Written Case, without any oral elaboration.
The Crown’s written submission on ground 1 was succinct. It submitted that the sentencing judge had not sentenced the applicant on the basis that he had fallen asleep at the wheel. Her Honour made a number of references in her sentencing remarks to the applicant’s tiredness leading up to the accident. Some examples are as follows:
You were aware that you were tired and must be taken to have made a conscious choice to continue driving.[7]
I have already referred to the fact that you knew you were tired, and that your driving had been erratic for some distance, up to three kilometres. Despite the number of times you drifted and recovered you did not stop when you could have, but chose to keep driving.[8]
[a]lthough you were tired, it is clear that there was no warning or indication to you that you were tired or sleep deprived until the time of the driving itself.[9]
We must make it clear to people who drive that if they are tired they must stop, that it is not sufficient to say I am nearly there, I will keep on going, or to say I think it will be all right. You imperil yourself and others. We must make that message very clear that people must take responsibility for stopping in such circumstances, no matter what inconvenience might be caused.[10]
[7]Ibid [15].
[8]Ibid [24].
[9]Ibid [25].
[10]Ibid [70].
The Crown submitted that these passages clearly reflected the way in which the case had been put on the plea. They demonstrated that her Honour had not sentenced the applicant on the basis that he had fallen asleep.
In relation to ground 2, the Crown submitted that, properly understood, the sentencing judge had not, in her sentencing remarks, treated the age of the deceased as an aggravating feature. Her Honour’s reference to Mrs Lord being ‘elderly and frail’ was simply a description of her personal characteristics. Merely stating those characteristics did not amount to a conclusion that they were an aggravating feature.
As to the balance of the applicant’s submission on this ground, the Crown argued that the personal circumstances of a victim could be relevant in a number of ways. So far as the present case was concerned, Mrs Lord’s advanced age was a factor that had assisted her daughter, the applicant’s wife, to come to terms with her death. This was said to accord with the approach taken by Callaway JA in R v Tran[11] when considering the relevance of the complicity of a victim in the sentencing exercise, his Honour said that the relevance of complicity
[d]oes not import a distinction between the worthiness of victims, but the weight to be given to sentencing objectives.[12]
[11](2002) 4 VR 457.
[12]Ibid 467.
As to ground 3, the Crown submitted that the sentencing judge was entitled to ‘contrast the circumstances of the collision in this matter with other cases, in order to assist with her finding as to the level of culpability’. Janson was a relevant Court of Appeal decision, and it was proper for her Honour to have given it careful consideration. She had not treated Janson as in any way setting a lower limit, or base, on the available sentencing range. So much was said to be evident from her statement that she would be ‘guide[d]’ by Janson.[13]
[13]Sentencing Remarks [35].
In respect of the applicant’s manifest excess ground, the Crown noted that the sentencing judge had ‘carefully weighed the various sentencing factors and principles’.[14] The sentence imposed, it was submitted, could not reasonably be argued to be outside the range properly available.
[14]The Crown also noted that the prosecution had submitted on the plea that the bottom of the range for the total effective sentence was three and a half years.
Conclusion
Dangerous driving causing death and its lesser counterpart, dangerous driving causing serious injury, are both offences that can present real difficulties for trial judges. The offender is often a person who, apart from a momentary lapse, has led an entirely blameless life. Yet, that lapse has led to tragic consequences, sometimes, as in this case, to those closest to the accused.
The death of a person through dangerous driving must always be viewed seriously. Plainly, the courts must ensure that sentences for this offence meet the needs of deterrence, both general and specific, as well as all other relevant sentencing considerations.
The present case evokes some sympathy. The applicant is obviously a decent man who has, nonetheless, on this occasion, brought about, through his own wrongdoing, death to his mother-in-law and serious injury to his wife and two entirely innocent individuals.
The question before this Court is whether it can reasonably be argued that the sentence imposed in this case was, in some way, affected by material error.
As I have indicated, the applicant seeks to rely upon four grounds.
Dealing first with ground 1, I have concluded that it is without merit. It is based upon an assumption that cannot, upon careful analysis, be maintained. It is true that the sentencing judge referred, in one brief sentence, embedded within her sentencing remarks, to ‘the force of a car no longer under the control of a driver who has gone to sleep’. Almost immediately afterwards, she added, ‘that is exactly what happened here’. If I thought that there was any realistic possibility that her Honour had mistaken the entire nature of the prosecution case, and sentenced the applicant upon the false basis that he had fallen asleep when his car veered into the path of the other vehicle, I would unhesitatingly grant leave.
However, when the sentencing remarks are read as a whole, it is impossible to arrive at that conclusion. As the Crown submitted, there are repeated references to the applicant having been ‘tired’, and to his having driven erratically as a result. I regard the reference to ‘sleep’, in the sentence upon which Mr Kassimatis based this argument, as at worst nothing more than a careless use of language. I would accordingly refuse leave in relation to ground 1.
In relation to ground 2, it is fair to say that her Honour did refer to relevant aggravating features, first among which was the number of victims. It is also true that she went on to say that Mrs Lord was ‘elderly and frail’, and noted that she may have had few ‘remaining years’ to live.
The purpose of that observation, when read in context, was to provide detail as to the first aggravating feature identified by her Honour, namely the number of victims. Salient details of each victim were identified and their injuries were set out over the course of the following paragraphs. It is not suggested that her Honour treated those details as aggravating features. Nor, in my opinion, did she treat Mrs Lord’s age as such.
In support of that conclusion, I note that her Honour referred at the commencement of paragraph [23] of sentencing remarks to what she termed the ‘next’ aggravating feature, namely that there were others, and not merely the victims, put at risk. That, too, suggests that the reference to Mrs Lord’s age may have been nothing more than a fuller description of who she was, rather than being, on its own, an aggravating factor.
The sentencing judge did, however, in noting Mrs Lord’s age, implicitly recognise that the effect upon the applicant’s wife of her mother’s death might be somewhat lessened because she knew that her mother had lived a very long life. I note also that Mrs Board had said as much in her victim impact statement.
Even if I am wrong about that, and her Honour did erroneously treat Mrs Lord’s age as an aggravating feature of the offending, that error did not, in my opinion, constitute a material irregularity. I think it highly unlikely that it had any effect upon the exercise of her Honour’s sentencing discretion.
I note also Mr Kassimatis’ submission in oral argument this morning to the effect that Mrs Lord’s age in some way reduced the objective gravity of this offending. That submission was supported by an argument to the effect that those who murder young children are generally regarded by the courts as more culpable than those who murder adults.
No doubt there are cases where the age of a child victim has been viewed as rendering the offence in question particularly heinous. It is nonetheless a dangerous and potentially pernicious doctrine to suggest that the death of an elderly person as a result of an act of dangerous driving should be viewed as objectively less serious than the death of someone younger, and with a full life ahead of them. In my opinion, proposed ground 2 is not reasonably arguable.
As to ground 3, it is true that the a large portion of her Honour’s sentencing remarks was taken up by a detailed recitation of the facts of Janson and the principles there set out. There is no indication, however, that her Honour treated that case as a binding precedent, at least in any quantitative sense. I do not accept the submission that she viewed the sentence imposed in Janson as setting a ‘baseline’ below which she could not go. Indeed, the Crown’s concession that it might be open to her Honour, in this case, to impose a merciful sentence that would not exceed three years in total, would run directly counter to any such notion.
As a decision of this Court bearing upon the proper approach to sentencing for these offences, Janson had to be taken into account. The treatment of aggravating and mitigating features in that case, where it disclosed a matter of principle, had to be followed by her Honour.
The sentencing judge indicated that she was ‘guide[d]’ by Janson. There is no reason to doubt that she was, and no criticism can be levelled at her for approaching the matter in that way. Further, her Honour was, of course, entitled to have specific regard to the sentence imposed in that case as part of her overall consideration of current sentencing practices.[15] In any event, she made a broad distinction between Janson and this case, noting that Janson was not a case of ‘unthinking negligence’.[16] Further, she plainly considered each of the matters which had been raised on the applicant’s behalf, and brought an independent mind to assessing them. Ground 3 is not reasonably arguable.
[15]Sentencing Act 1991 s 5(2)(b).
[16]Sentencing Remarks [15].
Finally, there is no merit in ground 4. It must be remembered that the applicant’s offending cannot be described as falling within the lower range of offending of this kind, and Mr Kassimatis very properly acknowledged that this was so. On any view, the applicant had significant warning that he was tired, and that he should pull over. As the sentencing judge noted, he must have made a conscious decision to keep driving. The result was that his car veered onto the wrong side of the road, into the path of oncoming traffic. Not only was one person killed, but three others suffered serious injury.
Notwithstanding the powerful mitigating factors present in this case, and the clear and helpful exposition by Mr Kassimatis of the submissions in support of the applicant, the sentence imposed by the sentencing judge was, in my opinion, within range.
For these reasons, leave to appeal will be refused. In those circumstances, the application for bail will be dismissed.
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