Bell v The Queen [2018] VSCA 281

1 I agree with Ashley JA. For the reasons given by his Honour, I joined in the orders made on 31 October 2018 (set out at [3] below).

2 Arron Bell (conveniently, 'the appellant') pleaded guilty to a charge of dangerous driving causing death. The offence was committed on 16 January 2017. The appellant was then aged 26. There was a plea hearing on 2 July this year. On 17 July the judge sentenced the appellant to nine months' imprisonment, together with a community correction order for a period of two years. There being no period of pre-sentence detention, the appellant's earliest release date was to be 16 April 2019.

3 On 31 October 2018, this Court made orders granting leave to appeal, allowing the appeal, setting aside the sentence imposed below, and in lieu thereof sentencing the appellant to a community correction order for a period of two years. It said that reasons would later be published. These are my reasons for joining in those orders.

4 The appellant sought leave to appeal against sentence, and, if leave was granted, that his appeal be allowed. He relied upon the following grounds:

1. The learned sentencing judge erred in finding that the objective gravity of the offence, and the [appellant's] moral culpability, were 'mid-range'.
2. The learned sentencing judge denied the appellant procedural fairness by:

(a) Not informing counsel that he proposed to find the objective gravity of the offence as 'mid-range' and to reject the joint submission of prosecution and defence that the offence was brought about by momentary inattention and that the [appellant's] moral culpability was low; and

(b) Discussing the facts of the case with the prosecution on two occasions, both in the absence of the [appellant] and his legal representatives.

1. The sentence is manifestly excessive.
2. A combination or aggregation of defects have led to a miscarriage of justice.

1. The fatal collision occurred at the intersection of Warby Street and Ryley Street in Wangaratta. Warby Street runs more or less north-south and there is a lane in each direction. Ryley Street runs more or less east-west and there are two lanes in each direction.

6 At the time of offending, the appellant was driving a tray van belonging to his employer. He was on the way to work. Leading up to the fatal collision, he had been driving north along Warby Street, Wangaratta, and approaching the intersection of Warby Street with Ryley Street. It was the appellant's intention to turn right at the intersection into Ryley Street.

7 On 16 January 2017, as now, the intersection was controlled by traffic lights. For traffic travelling on Warby Street, there were dedicated right turn arrows, which illuminated for a short period before the lights for traffic on Warby Street became solid green. So long as the lights remained green, traffic on Warby Street was still permitted to turn right. That is, the right turn arrow did not become red.

8 There were also dedicated pedestrian lights, which were activated by pushing a button.

9 The accident occurred a little before 8:00am. The day was fine, visibility was good, the road was dry and in good condition, and traffic was light - which is not to say that there was no other traffic of relevance to the happening of the collision.

10 The victim of the collision, Mrs Roberta Brown, had walked south along the eastern footpath of Warby Street. She had pressed the button to activate the pedestrian lights, so as to permit her to cross Ryley Street. There had then elapsed a period of 21 seconds before the pedestrian light turned green in her favour. When the light did turn green - it happened when the right turn green arrow went off - she had stepped onto the roadway, still travelling south.

11 The fatal collision occurred when the appellant's vehicle, executing the intended right hand turn at quite a slow speed, collided with Mrs Brown. At the time, the green right hand turn arrow had gone off. But, as already explained, there was no bar to the turn being executed.

12 At the time of the collision, Mrs Brown had reached the right hand lane for traffic travelling east in Ryley Street. That is, she had crossed the northern shoulder of that road and the kerb-side lane for east-bound traffic.

13 The appellant simply did not see Mrs Brown until it was too late to take any evasive action.

14 According to a police accident investigator, the appellant had 3.8 seconds perception and response time to detect and react to the presence of the victim. Of this, more later.

15 The sentencing judge observed that offences of this type, by which he meant the offence of dangerous driving causing death, requires consideration of denunciation, general deterrence, specific deterrence and punishment.

16 The judge stated that the fundamental reason for Mrs Brown's death was the appellant's failure to keep a proper lookout. He accepted that the victim's death 'came about by way of momentary inattention' of the appellant, but that this involved a 'serious breach of his obligation as a driver, which placed the public at risk'.

17 His Honour accepted that the appellant's culpability was not aggravated by circumstances such as have been described in authorities to which he referred;[1] but stated, by reference to authorities including Director of Public Prosecutions v Oates[2] and Director of Public Prosecutions v Neethling,[3] that general deterrence is an important consideration in sentencing for all forms of this crime, including 'lower level forms of the offence'.

18 His Honour observed that Janson 'is actually quite analogous'. That was a case, I interpolate, in which the driver of a semitrailer with an attached refrigerated van failed to see a red light, drove through an intersection and collided with a vehicle crossing the intersection with a green light, in consequence of which two people were killed and three others were seriously injured.

19 Returning to his analysis of the gravity of the offending, the judge said that there was here 'a potentially serious breach of [the appellant's] obligation to keep a proper lookout. The victim was at the pedestrian crossing for twenty-one seconds.... The van ... was indeed a large van, with a [bull bar]'.

...even if [the appellant] had not seen Mrs Brown while she was stationary, on the analysis provided, he had an additional 3.8 seconds to observe her after a 4WD and a trailer drove past her. That is, prior to the impact occurring. One of course cannot be precise because of the limitations of the CCTV, as to how long [the appellant's] van had been at the intersection before turning. As I have said, the CCTV does not show the van being driven by [the appellant] until 1.28 seconds before the collision.

As I have said, there appears to be no explanation as to why [the appellant] did not see Mrs Brown waiting at the pedestrian crossing. Hence while I accept the dangerousness here was momentary inattention, it must be classified as a momentary inattention for a period of somewhere between 3.8 seconds and 21 seconds. In those circumstances, given the state of the weather, and visibility, I do not accept that the moral culpability is as low as was submitted by [appellant's counsel], or that the objective gravity of the offence is at the lower end. I find, both as to the objective gravity and culpability that the proper manner in which to assess this offending is mid-range.

22 That led on to his Honour observing that his finding as to objective gravity and culpability did not necessarily mean that a community correction order was inapplicable. In this case, however, notwithstanding powerful circumstances in mitigation, he concluded:

The consideration of this sentence has been exquisite. I take into account ... all of what your counsel has put to me. However, I have, unfortunately for you, decided that the maximum penalty prescribed and your dangerous driving which caused the death of Mrs Brown, are such that I do not consider that a community correction order alone would be an appropriate sentence to pass upon you.

... that it is appropriate in all the circumstances to hand down a sentence which is as merciful as can be.

24 I have referred to circumstances of mitigation. There was evidence before the judge, and his Honour accepted that the appellant -

• Was immediately distraught at what he had done.
• Had pleaded guilty at an early time.
• Was truly remorseful for his offending.
• Had suffered post-traumatic stress disorder in consequence of his offending, for which he was receiving psychological counselling.
• Had overcome adversity in his young life. He could properly be described as a man of high character with a good reputation, who came before the Court with no prior offences.
• Was of excellent character and had a good working record.

25 With respect to the matter last-mentioned, a number of testimonials, including a letter from his employer (who attended court to support him) were tendered. The employer's letter indicated that the appellant was a person responsible beyond his years, had shown evidence of high responsibility, and, irrespective of the decision the Court made, would always have a job there.

26 I should mention one other aspect of the judge's sentencing remarks at this stage. His Honour refused to make an order for the taking of a forensic sample. He said:

I find there is no possibility of [the appellant] being involved in any further criminality and no risk of recidivism.

Tautology aside, no stronger finding could have been made as to the appellant's prospects of rehabilitation.

27 As will appear, I concluded that Grounds 1 and 3 were made out. I deal with those Grounds below, and also with Ground 3, which merits comment. It is unnecessary to deal with Ground 4.

28 The appellant contended by ground 1 that the judge made an erroneous finding of fact. In support of that ground counsel submitted that:

(1) The finding that the objective gravity of the offence and the appellant's moral culpability were both mid-range was not open on the evidence. That was because:

(a) The judge mistook the evidence as to the length of the period of inattention being 'somewhere between' 3.8 and 21 seconds. The longer period was the time elapse between when Mrs Brown pressed the pedestrian call button and when the pedestrian light turned green. The appellant's vehicle was not stationary in that period, waiting for the lights to turn green, but rather approaching the intersection from the south. The situation was not static, but dynamic.

(b) Contrary to what the judge said in his sentencing remarks, the facts of the matter were by no means analogous to those considered in Janson. There, the respondent drove a Kenworth prime mover and trailer through an intersection, against a red light, at a speed of approximately 70 km/h, the prime mover colliding with a vehicle which was travelling through the intersection with a green light, two people being killed in consequence, and three others being seriously injured. Expert evidence showed that the lights facing the respondent's vehicle changed to amber about 10 seconds before the respondent reacted, and from amber to red more than 6 seconds before such reaction.

(c) The judge had insufficient regard to the absence of factors relevant to measuring the seriousness of this offence. Counsel referred to Neethling,[4] where this Court adopted a list of circumstances which may, if present, aggravate the seriousness of a particular instance of the offence.

(2) The parties agreed before the judge that this was a case of momentary inattention and that the appellant's moral culpability was low.

• The judge was entitled not to accept the parties' characterisation of the gravity of the offending.
• The judge had made no error in finding that the objective gravity of the offence, and the appellant's moral culpability, were 'mid-range'. His Honour had said that it was incomprehensible that the appellant had not seen Mrs Brown. There had been so much time to see her. What had been involved was a failure to keep a proper lookout.
• There was no error in the judge referring to the period of the appellant's inattention being 'somewhere between 3.8 seconds and 21 seconds'. The judge had stated that even if the appellant did not see Mrs Brown whilst she was stationary, he had an additional 3.8 seconds to observe her after other vehicles had passed by. So it was literally correct to say that the period of inattention was 'somewhere between' the shorter and longer periods. In any event, the judge had categorised the period of inattention as 'momentary', this indicating that he viewed the period as being 3.8 seconds or thereabouts. Even so, notwithstanding this, the appellant's failure to see Mrs Brown had been rightly described by the judge as 'incomprehensible', this 'objectively push[ing] the culpability up to the mid-range'.
• The judge did not err in finding the facts in the instant case analogous to those considered in Janson. All that his Honour had done in referring to Janson was demonstrate that even in cases where there is a 'short period of inattention' there may still be a 'serious breach of proper management and control of the vehicle, which creates a considerable risk to members of the public'.

30 In my opinion, the appellant made out this Ground. There was no warrant for the judge treating the appellant's offending as other than 'lower level', this reducing both his moral culpability and the objective gravity of his offending. The following considerations are in point.

31 Counsel for the appellant below submitted that this case was one of momentary inattention, one of comparatively lesser moral culpability, it being a matter of momentary inattention that had disastrous consequences. A non-custodial disposition would be appropriate in all the circumstances.

32 The prosecution opening, which was placed before the judge, said this:

The prosecution submits that the dangerousness in this case is constituted by momentary inattention and that a non-custodial disposition is open.

33 The prosecutor orally submitted that the offending would 'fall at the lower end' and reiterated that a non-custodial disposition would be open.

34 The fact that both counsel for the appellant and the prosecutor characterised the offending as being at the lower end of the scale, this bearing upon moral culpability and the objective gravity of the offence, did not straightjacket the judge. It is notable, however, that, seized of all the facts, the prosecution made and adhered to that characterisation. It is indisputable that the Director of Public Prosecutions, for more than a decade, has been alert to bring to this Court instances of allegedly inadequate sentences imposed for this offence. It cannot be that this was some unconsidered frolic by the prosecutor.

35 The question must be asked: what explanation was there for the judge departing from the prosecution's declared position? In my view, the explanation is this.

36 First, the judge evidently attached considerable significance to the length of time which he understood the appellant could have seen Mrs Brown, something which the appellant failed to do. I consider, with respect, that his Honour misapprehended the real effect of the time sequence described in the investigating police officer's report.

37 Second, this led his Honour to wrongly consider that the circumstances of this case were analogous to those in Janson.

38 As to the first of those matters, appellant's counsel correctly submitted that the period of 21 seconds represented the period when, Mrs Brown having pressed the pedestrian crossing button, she was stationary at the north-east corner of the intersection before moving off to cross Ryley Street. But for all of that time the appellant's vehicle was travelling along Warby Street towards the intersection. There was no evidence at all that the appellant's vehicle stopped at the intersection before entering it. The appellant's record of interview was entirely to the contrary. On his account, not in any way controverted, he approached the intersection, the green arrow displayed, and at about the time his vehicle entered the intersection, slowing so as to make the right hand turn, the lights turned solid green. The judge's observation that 'one of course cannot be precise ...as to how long [the appellant's] van had been at the intersection before entering' misunderstood the material which was before him. It was understandable, on this mistaken view of the facts, that his Honour would attach significance to the 21 second period. It opened up the prospect of there having been a potentially significant period when the van was stationary, during which time the appellant might properly have looked for the presence of relevant pedestrians. On the true facts of the case, it is unremarkable that, particularly with other vehicles in the vicinity, the appellant would not have been focussing upon the possible presence of a pedestrian on the north-east corner of the intersection.

39 Then, with respect to the period of 3.8 seconds to which the judge referred, the investigating police officer opined that Mrs Brown would have been visible to the appellant for a minimum of 3.8 seconds after another vehicle and trailer which was in the near vicinity had cleared the intersection. The gist of the officer's report was that if the appellant had then sighted Mrs Brown, travelling at what the investigator estimated was a speed of 17 kms per hour, an average driver would respond in 1.9 seconds and the 85th percentile would respond in 2.6 seconds. This meant that the appellant's reaction, seeing Mrs Brown immediately prior to impact, was something less than 2 seconds after the average driver would have responded to seeing her. Bearing in mind that the investigator also reported that Mrs Brown's journey across Ryley Street occupied about 4 seconds, and that the time elapsed from when the appellant's van was first sighted on a CCTV recording until impact was about 2 seconds, the period within which the fatal event transpired is shown to have been very brief.

40 In the event, although the judge accepted that the collision had been due to 'momentary inattention', the content of what his Honour encapsulated within that description was misconceived.

41 I turn to the judge's observation that Janson was 'actually quite analogous', which he employed to arrive at a conclusion, in effect, that the present case, like Janson, did not involve culpability at 'the lower end'. The facts in Janson, conveniently summarised at [28] above, were by no stretch analogous to the factual situation which arose in the present case. There was a linking circumstance of inattention, but it arose in very different contexts. Janson did not stand in favour of a conclusion that in this case the offending was mid-range. That is the more so when the true import of the time elapse material is understood.

42 Ground 1 is a contention of specific error. It being made out in my view provides a discrete basis upon which the appeal should be allowed and the appellant re-sentenced. But the matter was conducted in this Court very much on the footing that the error complained of by Ground 1 and the complaint of manifest excess raised by Ground 3 were intertwined, the former alleged error explaining the latter. For that reason, I have also considered the error in the context of Ground 3.

43 This ground alleged a want of procedural unfairness on two bases: first, that the judge made a finding that the objective gravity of the offence and the appellant's moral culpability was mid-range in the face of joint submissions by the parties to a different effect; and second because the judge had private communications with the prosecution in the absence of the appellant and his legal representatives.

44 According to the appellant's submissions, whilst it was open to the judge to reach his own conclusions as to the degree of objective gravity of the offending and the extent of the appellant's moral culpability, his Honour had denied procedural fairness by not putting the appellant's side on notice of his intention to depart from the common submission of the parties. Thereby the appellant had been precluded from advancing her further argument.

45 As to the second aspect of the ground, the appellant referred to the undoubted fact that the judge had raised with the prosecutor, in an informal way, the question whether the traffic lights sequence at the particular intersection had changed since the offending. The prosecutor having taken instructions from the informant, those instructions had been relayed back to the judge. None of this was known to the appellant's side until after completion of the plea. So, it was submitted, the judge had denied the appellant procedural fairness by discussing the facts of the matter with the prosecution on two occasions, the discussions bearing upon facts pertinent to sentencing the appellant.

46 For the respondent, it was submitted that the judge, in the course of argument, had made it clear enough to the appellant's side that characterisation of the objective gravity of the offending and the appellant's moral culpability were live issues. Further, whilst the prosecutor had stated that a community correction order, without more, would be an appropriate disposition of the matter, the prosecutor had also agreed with the judge that it was a matter for his Honour.

47 As to discussions between his Honour and the prosecutor, though conceding that any discussions or correspondence should take place in the presence of or with the knowledge of an accused, it was submitted that the conversations were limited and only contained information that was available in the hand-up brief, which was discussed during the plea hearing and was available to the judge.

48 In my opinion, there was nothing to the appellant's first complaint made under cover of Ground 2. The judge made it sufficiently clear during argument that he had not resolved upon a characterisation of the gravity of the appellant's offending or his moral culpability.

49 As to the second aspect of this Ground, the judge should not have had private communications with the prosecution. In the event that his Honour initiated discussion, this should have been immediately raised by the prosecution with the appellant's side.

50 That said, I do not accept the appellant's submission that any harm was done. All that happened was that the sequence of the lights at the intersection, including the lights applicable to pedestrians, was affirmed to have been, at the critical time, as was described in the hand-up brief. Any subsequent changes were beside the point. Had the appellant's side been put on notice of the communications, what was said in the hand-up brief could only have been reiterated by appellant's counsel.

51 In being common ground that a custodial sentence should ordinarily be imposed in instances of this offence, the question is whether, in the entire circumstances of this case, the judge imposed a manifestly excessive sentence when he imposed a sentence of immediate custody for nine months and then a community correction order for a two year period.

52 According to the appellant's submissions, the circumstances were properly characterised as involving a low order of gravity and moral culpability. In such a case, there is no imperative to impose a custodial sentence. Added to that, the appellant submitted, were the constellation of powerful mitigating circumstances upon which the appellant relied and which the judge in all respects accepted. This was, in all the circumstances, a case where a custodial sentence should not have been imposed, for which reason the sentence was manifestly excessive.

53 For the respondent, it was submitted that the sentence was not manifestly excessive. The appellant's moral culpability was not low. The judge was entitled to come to the conclusion that, despite the inattention being momentary, and despite strong mitigating circumstances, nonetheless there was a serious breach of proper management and control of the vehicle which created considerable risk to members of the public. In that event, a non-custodial sentence alone was not appropriate. Further, the judge, in determining the length of the custodial sentence, had stated that the sentence which was to be imposed was as merciful as it could be. This demonstrated that the judge had in fact considered everything which was put to him, most of which he had accepted.

54 In my opinion this ground was made out. As I have earlier concluded, the judge erred in characterising the objective gravity of the offending and the appellant's moral culpability in the way which he did. When the circumstances of the fatal incident were properly analysed, this was a true case of momentary inattention, where the appellant's moral culpability was low. In consequence, as explained in Neethling,[5] a disposition not involving immediate custody was open. That was so despite the serious nature of the offence, reflected in the maximum penalty, despite general deterrence being a principal sentencing consideration, despite Mrs Brown's death, and despite the understandable grief of Mrs Brown's widower and family.

55 When there was added to the circumstances of the fatal incident the great strength of matters relied upon in mitigation, I considered that this was one of those rare cases of the commission of this offence in which a sentence which imposed in part a custodial disposition was manifestly excessive. For that reason, I concluded that Ground 3 was made out.

[1] R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209 ('Jurisic'); R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 ('Whyte'); Director of Public Prosecutions v Janson [2011] VSCA 19; (2011) 31 VR 222, 232 [48] (Nettle JA) ('Janson').

[2] [2007] VSCA 59 ('Oates')

[3] [2009] VSCA 116; (2009) 22 VR 466 ('Neethling').

[4] (2009) 22 VR 467, 473 [31].

[5] [2009] VSCA 116; (2009) 22 VR 466, 471-473 [28]-[32].