Bell v The Queen [2016] VSCA 203

THE JUDGMENT OF THE COURT WAS DELIVERED BY McLEISH JA:

1 On 21 April 2016 the applicant was sentenced on three charges of dangerous driving causing serious injury contrary to s 319(1A) of the Crimes Act 1958. The judge imposed an aggregate sentence of 22 months' imprisonment with a five year community correction order ('CCO'). The sentence followed a plea of guilty to those charges, along with other charges which are not relevant for present purposes, in respect of which monetary fines were imposed.

2 No non-parole period was specified in respect of the sentence imposed. The judge recorded under s 6AAA of the Sentencing Act 1991 ('Sentencing Act') that, but for the plea of guilty, she would have imposed a total effective sentence of five years' imprisonment with a non-parole period of three years.

3 The applicant seeks leave to appeal on the single ground that the sentence imposed was manifestly excessive.

4 The three charges of dangerous driving causing serious injury arose from a single incident which took place in Geelong in the early hours of Friday 14 December 2012. The applicant was aged 23 at the time and was the holder of a Victorian driver licence that had been suspended. The three passengers in the motor vehicle which the applicant was driving suffered the serious injuries which gave rise to the charges. Each of the passengers was aged 22 at the time of the incident. The passenger in the front seat was Mitchell Cassidy, whose mother owned the motor vehicle (a Holden Commodore). In the back seat were Jack Parnell and Jacob McDonald.

5 The applicant had been drinking prior to the collision, firstly with Mr Cassidy and Mr Parnell at the Norlane Hotel since approximately 5:00 pm the previous afternoon and then at other locations including the Eureka nightclub. On leaving the nightclub, the group offered Mr McDonald a lift home.

6 At approximately 4:45 am, the applicant drove the vehicle at a fast rate of speed from the Eureka nightclub, through the intersection of Little Malop and Fenwick Streets, before crashing into a metal barrier and chain mesh fence at the end of Little Malop Street. This caused the vehicle to become airborne. It struck the footbridge over some railway tracks and collided with a brick wall on the opposite side of the railway line, before falling approximately six metres to ground level, where it came to rest on its passenger side.

7 Little Malop Street is a single lane two-way bitumen surfaced road running in a general east-west direction and divided by broken white lines. Railway lines run through the street, meaning that there are two dead-end streets on either side of those lines. At the scene of the collision, the road surface was in good condition. The road was signposted as a 50 km/h zone and was lit. The road was dry at the time of the collision.

8 During the incident, the vehicle knocked over a signal box, causing a train to stop short of a nearby tunnel and its driver to call for clearance before proceeding. An employee of V-Line was in the vicinity of the accident scene and was asked to find out why the railway signal for the train was not working. When he walked to the signal box he saw the vehicle lying on its passenger side.

9 The V-Line employee saw the applicant pull himself out of the driver's side front window and jump down onto the gravel before walking up the tracks a little way and falling onto the side of the embankment. Thereafter, station workers provided assistance.

10 The applicant told both the station workers and ambulance officers who subsequently attended that he had not been the driver of the vehicle. He told police that he did not remember anything except that he had not been the driver.

11 Mr Parnell and Mr McDonald were removed from the rear passenger area and Mr Cassidy was removed from the front passenger seat where he was found sitting.

12 An inspection of the vehicle did not reveal any mechanical fault which would have caused or contributed to the collision. It was accepted at the plea hearing that it was not possible to ascertain definitively at what speed the vehicle had been travelling. The lower of the options posed by the expert who conducted a collision reconstruction was that when the vehicle collided with the wall it was travelling at 68 kilometres per hour and that it had previously been travelling at 78 kilometres per hour.

13 The applicant's blood alcohol reading at the time of the collision was 0.063 g/210 L, with readings of 0.03 mg/L of methylamphetamine and 0.06 mg/L of alprazolam. The level of methylamphetamine was low, suggesting that the drug had either been used in a small amount or had been used some time prior to the collision. There was evidence that alcohol, when used in conjunction with alprazolam, causes drowsiness, fatigue and impaired coordination. The combined effect of all the drugs was likely to have prevented the proper control of a motor vehicle.

14 As a consequence of the collision, Mr Cassidy suffered serious injuries including fractured vertebrae, spinal bones and ribs, bruising and puncturing of the left lung and two large cuts to the side of his head. He was diagnosed with an acquired brain injury after the collision. Mr Cassidy had a significant past history including a previous closed head injury, and epilepsy commencing at the age of 15. The sentencing judge accepted that he had been left with a moderate brain injury attributed to the collision but that the head injury had not exacerbated his pre-existing epilepsy. His mother filed a victim impact statement, which said he was no longer able to pursue his former employment or social life and had become a very withdrawn person.

15 Mr Parnell, who appeared at the plea hearing in support of the applicant, suffered a left-sided temporal haematoma requiring an urgent burr hole drainage and later a formal left temporal craniotomy, and evacuation of extradural haematoma and pulmonary contusion. He did not provide a victim impact statement.

16 Mr McDonald suffered bruising of the right forehead, a laceration through the ear, a fractured neck bone, severe bruising of the lungs and air laceration to the liver with bleeding. He has required plastic surgery and ophthalmic review. He also declined to make a victim impact statement.

17 The sentencing judge accepted that each of the three injured men had suffered greatly as a consequence of the incident.

18 The applicant was arrested on 23 December 2012. During a subsequent interview, he cooperated with police and gave them information about what he could remember. He said that he could not recall the collision or events shortly prior to it and had no recollection of driving the vehicle that night or climbing out of the window after the collision. He agreed with the police that, if he had been driving, he was drug- and alcohol-affected.

19 The applicant was not charged with the indictable offences until 17 March 2014. He was initially charged with three charges of negligently causing serious injury, carrying a maximum term of imprisonment of ten rather than the five year maximum for dangerous driving causing serious injury. Following a committal held on 19 November 2014, the applicant was committed to stand trial. On 13 January 2016, he offered to plead guilty to three charges of dangerous driving causing serious injury but this offer was rejected by the prosecution. A judge then gave a sentence indication on 19 January 2016 in respect of the charges of negligently causing serious injury. Subsequently, a fresh indictment was prepared containing the charges to which the applicant ultimately pleaded guilty.

20 The sentencing judge recited the circumstances of the offending and the nature of the injuries suffered by the three passengers in the vehicle. She referred to the prior criminal history of the applicant. In particular, on 12 May 2006, he was fined without conviction for unlicensed driving, using an unregistered motor vehicle and stating a false name. His past criminal history related primarily to dishonesty offences and offences of violence, including assaulting police, resisting arrest and escaping lawful custody. He had been given good behaviour bonds, fines, youth supervision orders, youth justice centre orders, a youth attendance order and a wholly suspended sentence.

21 There was material before the sentencing judge showing the effect which the collision had on the applicant himself. Apart from physical injuries consisting mainly of bruising and abrasions, he had become socially withdrawn and suffered difficulties with depression and anxiety. His mother gave evidence of having discovered him in an attempt to commit suicide. The applicant's father had died aged 56 approximately one year earlier and the applicant was still grieving his death.

22 The applicant's long-term partner of 10 years remained supportive of him. He remained close to his mother and three siblings. He had completed year 11 and was regarded as being of average IQ.

23 After the applicant left school he worked intermittently with his father on the wharves and obtained full-time employment at around the age of 18. He became an experienced lagger, working on construction sites. As a result of the injuries he received in the collision, he did not work for two years, during which time he underwent two operations for a right rotator cuff injury. He resumed work approximately one year before sentencing, becoming a fly-in fly-out worker in Karratha and on Barrow Island where he undertook lagging work on offshore gas plants.

24 A review by Jeffrey Cummins, clinical and forensic psychologist, indicated that the applicant was experiencing genuine remorse concerning the offending behaviour and presented as being moderately depressed and mildly anxious. Mr Cummins was of the opinion that at the time of the offending, the applicant was suffering from an alcohol use disorder in the form of intermittent binge drinking. As part of the consequences of the collision, he said that the applicant had developed an adjustment disorder with mixed anxiety and depressed mood with features of traumatisation. The sentencing judge had regard to the opinion of Mr Cummins that the applicant would most probably deteriorate if he were to be incarcerated and that he would benefit from receiving mental health treatment with a focus on residual symptoms of grief in relation to his father's death and the collision-related adjustment disorder.

25 The sentencing judge regarded the matter as an unusual one, in that there had been a genuine issue as to whether or not the applicant could be shown to have been driving at the time of the collision. She accepted that by his plea of guilty he accepted that he was driving and took responsibility for the result. The judge accepted that the applicant was genuinely remorseful and found that he had been cooperative with police and made appropriate admissions. She took into account that he was relatively young and had never experienced any time in an adult custody setting.

26 The sentencing judge noted that there had been a long delay in the resolution of the matter and that the applicant had used the time productively by completing his own treatment and rehabilitation for the injuries he had suffered and by undertaking productive employment. No other charges had been laid and no other matters were pending in the three years and three months since the collision.

27 Counsel for the applicant submitted on the plea that a CCO of a lengthy duration was appropriate. Counsel accepted that denunciation and general deterrence were important considerations in sentencing for the offence of dangerous driving causing serious injury. The Crown submitted that some form of immediate custody was required on the basis that this was a serious example of the offence, having regard to the combination of speed, alcohol and drugs and the fact that three people had been seriously injured. The Crown submitted that it was a 'high-end example' of the offence. The Crown conceded that a CCO in combination with a term of imprisonment to be served would be appropriate in all the circumstances.

28 The sentencing judge said that general deterrence, denunciation and punishment were pivotal sentencing considerations for offending of this nature. She held that the present case was 'a very serious instance of this kind of offending'. She considered the applicant's culpability to be high because he was aware of the fact that he had been drinking and taking drugs prior to driving.

29 The judge balanced into the sentencing exercise the real progress that she found the applicant had been making after the commission of the offence and during the ensuing delay, which she held was in no way attributable to any fault on his part. She held that the applicant had taken very real steps towards rehabilitation and that it was appropriate to impose a combined term of imprisonment and CCO.

30 The sentencing judge held that the applicant had expressed appropriate remorse about the harm that had flowed from his offending to each of the three victims and that he had dramatically changed his lifestyle so that he was working productively as a contributing member of the community. She described the applicant's rehabilitation prospects as excellent. The judge expressed the opinion that the disposition she had proposed was very much to the applicant's benefit and also that of the community. However, she was of the opinion that the objective gravity of the offending was 'far too great' to allow for a CCO without any punitive incarceration.

31 The conditions which the sentencing judge imposed as part of the CCO were that the applicant be under the supervision of a community corrections officer for a period of five years, that he undergo assessment and treatment (including testing) for drug and alcohol abuse or dependency as directed, and that he participate as directed in programs and courses addressing factors relating to his offending behaviour.

32 In his written case, the applicant relied on four particulars of manifest excess. First, he referred to the delay between the offending and sentencing, none of which was attributable to the applicant. He pointed to the fact that he had obtained fulltime employment and ceased being a recreational drug user during that period. In oral submissions, counsel relied on the dual aspects of delay: the rehabilitation which the applicant had achieved as a result of the delay and the impact on him of the matter having been hanging over his head for an extended period.[1]

33 Secondly, reference was made to the plea of guilty and the finding of the judge that the applicant was genuinely remorseful. That remorse was demonstrated in the psychological report, the evidence of the applicant's mother, and the fact that the applicant had apologised directly to the victims. As mentioned, one of the victims had attended the plea hearing in support of the applicant. Another had attended without offering support. None of the victims had made victim impact statements. Further, the applicant had accepted responsibility for his offending despite having no memory of having committed the offence.

34 Thirdly, the applicant relied on the finding of the judge that his prospects of rehabilitation were excellent and that he had made progress since the offending. The lengthy delay had afforded the applicant the opportunity to demonstrate a change of attitude and behaviour, and to lead an otherwise productive life. It was submitted that the term of imprisonment imposed had the very real possibility of affecting that progress.

35 Finally, reliance was placed on the maximum penalty for the offence of dangerous driving causing serious injury, namely five years. It was submitted that the term of imprisonment of 22 months coupled with a CCO of five years was a significant penalty in contrast to the maximum penalty of five years' imprisonment, and that in all the circumstances it must be seen as excessive.

36 In oral submissions, counsel for the applicant submitted that either or both of the components of the sentence should be reduced. In addition to the arguments in the written case, counsel submitted that the disposition was counterproductive because the period of imprisonment risked jeopardising the rehabilitative objectives of the CCO. Although 'every day' of a CCO is punitive in nature,[2] the conditions which had been imposed in the present case reduced the punitive potential of the CCO, meaning that in order to satisfy the need for punishment the judge had imposed too long a prison sentence. Counsel submitted that it was 'an odd choice' to provide for a lengthy CCO without any substantively punitive conditions.

37 Counsel also submitted that the judge had, in effect, breached the principle of parsimony.[3] A lower term of imprisonment could have been achieved by ensuring that the CCO was more onerous. It was submitted that it was incumbent on the sentencing judge to consider whether any aspect of punishment could be achieved by a CCO rather than by incarceration. In particular, the objectives of the lengthy CCO would be better achieved if a more onerous condition, such as a work requirement, were imposed rather than the 22 months' imprisonment beforehand.

38 Senior counsel for the Crown submitted that the sentence that had been imposed was lenient, while being within the range of available sentences. It was submitted that the judge was correct to treat the case as a very serious example of the offence of dangerous driving causing serious injury. Senior counsel submitted that the judge had imposed the lowest period of incarceration possible in light of the offending. He suggested that the length of the CCO was supported by an opinion that had been expressed by the community corrections assessment reporter that the applicant was at a high risk of reoffending. It was understandable that the judge had attempted to establish a regime where the applicant was not 'set up to fail'. It made perfect sense to provide for a sufficient directly punitive component of 22 months to be followed by a period directed principally at the rehabilitation of the applicant.

39 In relation to the submission as to parsimony, senior counsel for the Crown submitted that, if the principle for which the applicant contended were accepted, then every CCO imposed in combination with a term of imprisonment would need to include conditions requiring work or other onerous obligations in order to make them sufficiently punitive. Not only did the Sentencing Act not allow this result, it would also run contrary to the policy underlying the provisions for CCOs.

40 For the reasons that follow, the applicant's submissions should not be accepted.

41 First, manifest excess is a ground that is difficult to establish. 'It must be shown that something has gone obviously, plainly or badly wrong. The sentence imposed must be wholly outside the range of sentencing options available'.[4]

42 Secondly, the sentence which was imposed in this case was an aggregate sentence. The submissions of the applicant proceeded partly on the basis that the term of imprisonment, even without taking account of the CCO, was nearly half of the maximum sentence for the offence of dangerous driving causing serious injury. However, in light of the fact that this was an aggregate sentence for three separate charges for that offence, strictly speaking the maximum sentence that could have been imposed was not 5 but 15 years' imprisonment.[5] The same total effective sentence might have been achieved without resort to the provision for the imposition of aggregate sentences; for example, individual sentences could have been imposed in respect of each charge, with some allowance for cumulation of those sentences. Had that course been taken, the sentence imposed on each individual charge would plainly have been markedly less than 22 months. It is therefore not helpful to compare the term of imprisonment imposed by way of aggregate sentence with the maximum sentence for a single offence of dangerous driving causing serious injury.

43 Thirdly, in our opinion it cannot be said that the manner in which the judge treated the matters relevant to sentencing suggests that anything went 'obviously, plainly or badly wrong'. To the contrary, the judge took careful account of the relevance of the delay in this case, the applicant's remorse and his prospects of rehabilitation. The CCO was plainly directed principally at the further rehabilitation of the applicant and the judge attached a period of imprisonment principally in order to achieve the sentencing objectives of general deterrence, denunciation and punishment. In our opinion the sentence was, if anything, lenient.

44 In that regard, we do not accept that the sentence lacked logic or was counterproductive. The sentencing judge placed considerable emphasis on the progress which the applicant had made since the offending and his excellent prospects of rehabilitation. At the same time, she was bound to treat the need for general deterrence, denunciation and punishment as significant sentencing considerations. This was, as the sentencing judge held, a very serious instance of this kind of offending and the moral culpability of the applicant was high. Senior counsel for the Crown rightly characterised it as a case of appalling driving, involving alcohol, drugs and speed. The applicant had previously been convicted of driving without a licence and his licence was suspended at the time of the offending. Had the judge not imposed a CCO, an appreciably longer sentence of imprisonment would have been appropriate. Instead, as the sentencing judge explained, the ultimate disposition was intended to balance the requirements of punishment, general deterrence and rehabilitation.

45 The emphasis of the CCO in the present case on rehabilitation should not distract from the fact that, to an extent, every CCO has a punitive element which operates for each day that the CCO is in force.[6] Counsel for the applicant accepted as much. But the fact that the CCO in the present case was, as the applicant submitted, much less onerous than a CCO with other conditions might be, does not suggest that the overall sentence was counterproductive in the manner the applicant contends. There was, with respect, good sense in imposing a relatively short term of imprisonment followed by a CCO of significant length with an emphasis on the rehabilitation of the applicant. An extended period of supervision was desirable, among other things, to help to avoid the risk of reoffending. In any event, even if the criticism of the logic underlying the CCO made by counsel for the applicant were to be accepted, this would not bespeak manifest excess. Rather, it would indicate a different sentencing disposition that was within the available range of options available to the sentencing judge.

46 Finally, we do not consider that the sentencing judge contravened the principle of parsimony. To the contrary, the judge appears to have striven to fix the shortest period of imprisonment that was available to her under the Sentencing Act.

47 The principle of parsimony is enshrined in s 5(3) of the Sentencing Act, which provides that '[a] court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed'.[7] Subsections (4)-(7) of s 5 expand upon that general principle. By constraining the discretion of sentencing courts to impose particular sanctions where another sanction would be of sufficient severity, those subsections create a loose hierarchy of sentencing options. So, a court must not impose a sentence of imprisonment unless it considers that the purposes for which the sentence is imposed cannot be achieved by any other sentence (subs (4)); nor may it impose a sentence of imprisonment where the purpose of that sentence can be achieved by a drug treatment order (subs (4B)) or a CCO to which at least one of the conditions in ss 48F-48J is attached (subs (4C)); a drug treatment order must not be imposed where a CCO is sufficient (subs (5)); a CCO must not be imposed where a fine is sufficient (subs (6)); and a fine must not be imposed where a dismissal, discharge or adjournment is sufficient (subs (7)).

48 However, this loose hierarchy does not entail that there is a single least severe sentence which must be imposed. As the Court explained in Greatorex v The Queen:[8]

The principle of parsimony is applied in every case in which punitive sentencing purposes require the imposition of a custodial term. Just as in fixing a head sentence and non-parole period, there is no single identifiable term of imprisonment in a combined sentence above which the principle will be infringed. Reasonable minds will differ as to the maximum term of imprisonment that can be imposed in conjunction with a CCO before the term of imprisonment will become 'more severe than that which is necessary' to satisfy the relevant sentencing principles that require a custodial term.

49 The applicant contended for a particular application of the principle of parsimony, to the effect that the length of imprisonment imposed must be reduced to the extent that the purposes for which the sentence is imposed can be achieved instead by a CCO with an unpaid community work condition attached. For the reasons that follow, that argument should be rejected.

50 The Sentencing Act provides for CCOs to include a wide range of conditions. As the Court explained in Boulton:[9]

The availability of the combination sentence option adds to the flexibility of the CCO regime. It means that, even in cases of objectively grave criminal conduct, the court may conclude that all of the purposes of the sentence can be served by a short term of imprisonment coupled with a CCO of lengthy duration, with conditions tailored to the offender's circumstances and the causes of the offending.

51 Section 36(1) provides that the purpose of a CCO is to provide for a community-based sentence that may be used for a wide range of offending behaviours while having regard to and addressing the circumstances of the offender. Section 36(2) suggests that a CCO may be imposed where a wholly suspended sentence may previously have been appropriate.

52 The CCO regime is therefore intended to provide a flexible sentencing alternative which can be adapted to suit the circumstances of the particular case. This does not sit comfortably with the adoption of the prescriptive rule advanced by the applicant.

53 The applicant's submission finds some support in s 5(3) of the Sentencing Act, because imposition of an unpaid community work condition is less severe than a sentence of imprisonment. However, there is a clear indication in the Sentencing Act that there is no general requirement to impose an unpaid community work condition, in preference to a term of imprisonment, where that would achieve the purposes of the sentence. Section 5(4C), as mentioned, requires a court not to impose a sentence of imprisonment unless the court considers that the purposes of the sentence could not be achieved by a CCO to which conditions as to non-association (s 48F), residence restriction or exclusion (s 48G), place or area exclusion (s 48H), curfew (s 48I) or alcohol exclusion (s 48J) are attached.[10] The absence of reference to an unpaid community work condition (s 48C) from those conditions specified in s 5(4C) tells against the applicant's argument.

54 Instead, the relevant overriding principle for present purposes, of which s 5(4C) reflects one aspect, is that imprisonment is a sentence of last resort. So, s 5(4) provides that a sentence of imprisonment must not be imposed unless the court considers that the purposes for which the sentence is imposed cannot be achieved by any other sentence.

55 Bearing in mind that reasonable minds will differ as to the term of imprisonment that should be imposed in conjunction with a CCO, the principle of parsimony is only infringed so as to produce a manifestly excessive sentence if the term of imprisonment, considered in conjunction with the CCO, falls clearly beyond the range of dispositions available within a sound exercise of the sentencing discretion.[11]

56 In our opinion it cannot be said, having regard to the overall sentence, that it revealed a departure from the principle of parsimony. As mentioned, the sentencing judge considered that a CCO alone would not be appropriate. In other words, the purposes of the sentence could not be achieved without imposing a term of imprisonment. Relevantly, those purposes included general deterrence, denunciation and punishment. It is clear from her characterisation of the sentence as being for the benefit of the applicant that the judge then strove to impose the lowest term of imprisonment that would achieve those purposes. The term of imprisonment which the judge imposed in conjunction with the CCO was well within the range of sentencing options properly available.

57 In the circumstances, the application for leave to appeal should be refused.

[1] See Cockerell v The Queen [2001] VSCA 239; (2001) 126 A Crim R 444, 447 [10] (Chernov JA); Merrett v The Queen [2007] VSCA 1; (2007) 14 VR 392, 400 [35]-[36] (Maxwell P; Chernov JA and Habersberger AJA agreeing).

[2] Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308, 340 [138], 342 [155], 378 (Maxwell P, Nettle, Neave, Redlich and Osborn JJA) ('Boulton').

[3] This argument was advanced as a particular of manifest excess.

[4] Binse v The Queen [2016] VSCA 145 [57] (Whelan, Beach and McLeish JJA).

[5] See s 9(2) of the Sentencing Act.

[7] See R v Piacentino [2007] VSCA 49; (2007) 15 VR 501, 511 [47] (Eames JA; Buchanan, Vincent, Nettle and Redlich JJA agreeing).

[8] [2016] VSCA 136 [29] (Redlich, Santamaria and Beach JJA) (citations omitted) ('Greatorex').

[9] [2014] VSCA 342; (2014) 46 VR 308, 340 [141] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA). See also Greatorex [2016] VSCA 136 [32]-[33].

[10] See Boulton [2014] VSCA 342; (2014) 46 VR 308, 336-7 [117]-[121] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA). The applicant did not suggest that such conditions could meet the purposes of the present sentence.

[11] Melnikas v The Queen [2016] VSCA 112 [62] (Redlich, Santamaria and Beach JJA); Greatorex [2016] VSCA 136 [29]-[30], [33] (Redlich, Santamaria and Beach JJA).