Delzoppo v The Queen [2011] VSCA 141

2 The judge suspended 12 months of the head sentence for a period of three years. In consequence, the appellant must serve 18 months and 14 days' imprisonment before the period of the suspended sentence commences.

3 On 17 November 2010 I granted the appellant leave to appeal against sentence. As finally argued, counsel relied upon a single ground - that the sentence imposed for the principal offence was manifestly excessive.[1]

4 On 6 March 2008, at the intersection of Melrose Drive and Mickleham Road, a van driven by the appellant collided with the passenger side of another vehicle. The collision was minor. This incident gave rise to the charge of careless driving.

5 The appellant did not stop his vehicle as he should have done. That led to the charge of failing to stop after an accident.

6 The appellant then drove north in Mickleham Road. About one kilometre along, he drove through the intersection of Mickleham Road and International Drive, against a red light, at high speed - estimated to be approximately 100 kph. Quite apart from the disobedience to the traffic control signal, the applicable speed limit was 70 kph.

7 The appellant neither braked nor slowed his vehicle at the intersection. It collided with a vehicle which had been travelling south in Mickleham Road, and which was turning right, with a green arrow, into International Drive.

8 The appellant's vehicle stopped about 65 metres north of the intersection.

9 The force of the impact pushed the other vehicle about 40 metres from the intersection.

10 Both the other driver and the appellant were trapped in their respective vehicles.

11 The appellant's blood alcohol was later ascertained to be .132 grams of alcohol per 100 mils of blood. Thus the charge of exceeding the prescribed concentration.

12 The driver of the other vehicle suffered serious injuries, which had continuing effect upon her. The judge summarised the situation this way:

1. As a result of the collision, [the victim] sustained the following injuries:
   • fractured left scapula;
   • fractured left clavicle;
   • fractured right fibula;
   • laceration to the right ankle;
   • laceration to the left middle finger;
   • degloving injury to the right lower abdominal wall which involved transaction of the muscle;
   • traumatic tears to the small bowel requiring surgery and removal of approximately 30-centimetres of her small bowel;
   • small tear to the colon; and
   • a large haematoma over the lumbar spine.
2. [The victim] underwent surgery for the partial removal of her bowel. The degloving injury to her lower abdomen became infected and took about three months to completely heal. She developed extensive scarring. The keloid-type scarring on her abdomen has a considerable contour defect which is depicted in photographs tendered. Her ongoing effects include:
   • persistent low-back pain;
   • right-sided neck and shoulder pain;
   • pain in the right leg;
   • feeling of weak knees and lower abdominal discomfort, especially with periods.
3. In a statutory declaration sworn 19 March 2010, [the victim] describes, in a detailed account over five-and-a-half pages, the effect of the crash upon her. At the time of the collision, she was nineteen years of age and just setting out in her own hairdressing business which her parents assisted her in purchasing. She was then in a relationship with a young man, being a relationship which was then one year old. She describes herself at the time as -

'an attractive, fun-loving girl, who loved the beach, had lots of confidence and knew what I wanted out of life. I love fashion, and I was at a nice weight to be able to wear a bikini.'

1. She was trapped in her vehicle for some time after the collision and describes the injuries she suffered which required a two-week stay in hospital. Further, she describes the scarring from her sternum to her pubis as a rip 3-inches deep where the muscle was torn away from the bone in her lower abdomen from hip to hip caused by the seatbelt. She feels 'very lucky to be alive'. After discharge from hospital, she lay in a hospital bed at home for about two months and was attended to daily by a visiting nurse who changed her dressings and checked her wounds. She still suffers nightmares and has difficulty in her sleep and finds that she is now moody and angry. Her romantic relationship has ceased, though they still remain friends. She has put on 15 kilograms in weight and considers that her scars have totally disfigured her. She is fearful as to her future and the prospect of having children ways heavily upon her. Her career is over and the business had to be sold, causing loss which she feels responsible for, because her parents helped in the finance of the business.

13 The appellant also suffered serious injuries. The judge summarised the position as follows:

1. You, too, suffered serious injuries, including:
   • thoracic aorta transection;
   • fractures to three lumbar and one thoracic vertebra;
   • fractured right mandible;
   • fractured right radius and ulna;
   • fractured right femur;
   • fractured ankle;
   • fractured foot;
   • fractured toe;
   • fractured right clavicle;
   • fractured left ankle;
   • internal derangement of the right knee; and
   • a major scalp laceration.
2. You were released from The Royal Melbourne Hospital on 19 March 2008 and were admitted to the Dorset Rehabilitation Centre and discharged on 29 April 2008. A report from that Centre records that you had commenced a course of physiotherapy on 15 August of 2008.

14 The judge also noted that the appellant had not worked since the collision by reason of the injuries which he had sustained.

15 Medical material before his Honour showed that the appellant, in late 2009, was still receiving treatment for the painful sequelae of his injuries; and that he had recently undergone further surgery because of delayed healing of the fracture of his right femur.

16 The maximum penalty for the offence of driving in a manner dangerous causing serious injury was five years' imprisonment. The judge imposed a sentence of 30 months' imprisonment. He did so in circumstances where, despite the appellant's very bad driving which led to the collision, and despite the serious injuries caused to the victim, there were a number of matters running in the appellant's favour which bore upon sentence. They included - (a) the fact that he was fairly youthful - having been born on 18 December 1984; (b) the fact that he had little in the way of prior convictions; (c) the fact that he indicated his intention of pleading guilty at the earliest possible opportunity - particularly when he had no recollection of the collision; (d) the fact that there was considerable delay in the matter being brought to completion; (e) the fact that the appellant had not subsequently offended (which bore upon prospects of rehabilitation, though that matter seems not to have been much developed by counsel below); (f) the fact that the appellant had sustained severe injuries which had continuing impact; (g) his good work record before the collision; and (h) the continuing support of his family.

17 In his sentencing remarks, the judge referred to observations by this Court concerning the offence of dangerous driving causing injury; and he gave consideration, with appropriate caution, to instances of penalties imposed for the offence. He stated that:

1. ... it is clear that general deterrence and denunciation by the community through the Court imposing an appropriate punishment are the primary sentencing considerations. That is because, overwhelmingly, offences of this type involve persons of a similar age to yourself and the road toll places increasing emotional and financial burdens on the wider community and, of course, more so, the victims of such offending.

1. You have no prior convictions but the nature of your driving on this occasion calls upon the Court to impose a sentence which will include a substantial element of specific deterrence in order to deter you from committing a similar offence or offences in the future. Indeed, your moral culpability for these offences is very high. The count of careless driving involving the first collision may have been due to momentary inattention or your inexperience, but you failed to stop after it. You knew that you had consumed alcohol and it should have served as a wake-up call for you to stop; instead, you chose to drive on at high speed up to, it is estimated, 30 kilometres above the limit for a distance of about 1 kilometre until you ran a red light and collided with [the victim's] vehicle. In my opinion, these circumstances manifest a high-degree of moral culpability on your part. The Court of Appeal in DPP v Oates approved of the NSW Court of Appeal decision in R v Whyte 55 NSWR 252 and stated that:

'... the sentencing judge must give close attention to the degree of moral culpability involved. This is a critical component of the objective circumstances of the offence.'

1. In DPP v Oates, the offender's moral culpability was assessed as low, because the collision occurred due to inattention momentarily, there was no alcohol involved and the defendant did not exceed the speed limit.
2. I have considered your relative youth because, as a general rule, the courts recognize that rehabilitation should be the primary if not the principal consideration. Though as was recognized in DPP v Neethling, at paragraph 53:

'... It is equally well-established, however, that this principle has sometimes to give way to other sentencing considerations. ... .'

26. This is the case here for the reasons which I have already identified.

18 In this Court, counsel for the appellant particularly focused upon - (a) twin significance of his client's serious injuries - that is, as going to the burden of imprisonment, and as constituting a form of extra-curial punishment; (b) the delay in disposition of the matter, a circumstance made worse by the way in which it had gone forward in the Magistrates' Court; (c) the significance of a diagnosis that, as at September 2009, the appellant suffered from depression and anxiety; (d) the guilty plea; and (e) the other matters noted at [16] above. He argued that a head sentence of 50 per cent of the maximum penalty was impermissibly high.

19 It is unfortunate that the submissions articulated in this Court were not fully developed below; or, indeed, articulated in the same way.

20 The judge was told about the appellant's injuries; and about their continuing effect. His counsel submitted that -

You are able to take into account the injuries he sustained. There's a bit of argument about that on authorities, but as is pointed out in Oates you can take that into consideration ... as is evidenced in the assessment of Ms Lechner.

21 The reference to 'Oates' was a reference to DPP v Oates.[2] In that case there was evidence that the respondent had developed psychological sequelae in response to his offending - he had pleaded guilty to dangerous driving causing death and serious injury. The respondent was sentenced to a community based order. The Director's appeal failed. Neave JA gave the leading judgment. She stated, inter alia, that there were powerful mitigating factors, which included 'the psychological effects that the sight of the accident and [the respondent's] awareness of its consequences had upon him'.[3]

22 It seems that counsel in the present case was contending that the depression and anxiety diagnosed by Ms Lechner should operate as a mitigating circumstance. He asserted that '[the depression] would have to be referable to his injuries sustained and clearly the criminal proceedings'. But assuming that counsel did put his client's case in that way, it follows that it was not put - as it might have been - that the appellant's serious physical injuries and their probable permanent sequelae would (a) add to the burden of the appellant's imprisonment; and (b) constitute a form of extra-curial punishment.

23 The judge referred in his sentencing remarks to the appellant's physical injuries He did not say how, if at all, he considered them to be relevant. He cannot be blamed for that when the matter was so little developed. Moreover, the way in which argument was developed - whatever its lay attraction - was not directly supported by Ms Lechner's report.

24 Counsel on the plea also referred to delay. He noted that his client had attended the Magistrates' Court on a number of occasions, ready to be sentenced, but that the case had not proceeded. In time, it had been referred to the County Court. Counsel's point was that the impact of the delay had been exacerbated because on the occasions in question the appellant had gone to the Magistrates' Court expecting to be sentenced; but that nothing had happened.

25 It does appear that the appellant attended the Magistrates' Court on three occasions at least when he could have expected his matter to be dealt with, and sentence imposed. I should think that such a sequence of events was likely to have imposed an added strain beyond that which arises when a charge remains unresolved, and so hanging over the offender's head. So, I think, it is a circumstance which could heighten the burden of delay.

26 But that is not the way, as I read it, that the matter was put. Rather, counsel seemed to submit that the particular circumstances of the delay had played a causative role in the development of his client's depression and anxiety - a submission which was not directly supported by Ms Lechner's report. It was a circuitous way of making a simple point; and I am not surprised that, as it seems, the judge did not advert to it.

27 It was in the context of the appellant's injuries and delay that the appellant's depression and anxiety was mentioned below. None of the six propositions stated by this Court in R v Verdins[4] was called in aid. Indeed, counsel did not refer to Verdins at all.

28 The judge made no mention of the appellant's anxiety and depression. Again, as I see it, that is explicable because of the way in which counsel had developed his submissions.

29 It has often been said, and it is important to remember, that this Court is not to be used as a vehicle for running a different case to that which was run at trial, or on a plea. That is what has happened here. It is an unsatisfactory situation because in my view it was open to the appellant to argue below that - (a) the appellant's physical injuries should be brought to account as bearing on the burden of imprisonment and as constituting a form of extra-curial punishment; (b) the delay was particularly burdensome for the appellant because of what happened in the Magistrates' Court; and (c), less persuasively in my view, that the appellant's

depression and anxiety should attract opinion of several of the Verdins propositions.

30 Notwithstanding this Court's disinclination to permit a different case to be run on appeal, I have in fact considered whether, having regard to the way in which the matter was put before us, the appeal should be allowed. I have done so because the matters advanced were very obviously disclosed by the material which was before the judge.

31 I said, when granting leave to appeal, that it seemed to me that the manifest excess ground was reasonably arguable. But it is another thing to conclude that the ground should be upheld. After full argument, I am not persuaded that it should.

32 The circumstances of the offending were bad. The judge was correct to emphasise the need for general deterrence, denunciation and for specific deterrence. He was not wrong to describe the appellant's moral culpability for the offences as high. There were a number of substantial matters going in mitigation, included amongst which were the impacts of the appellant's injuries and of delay. But whilst I might well have imposed a lesser sentence had I been the sentencing judge, I am not persuaded that the circumstances in their entirety demanded a lesser sentence than that imposed by his Honour. Neither can it be concluded, I consider, that the period of part suspension must have been longer.

[1] Counsel for the appellant sought to rely, at the hearing, upon a ground that there was fresh evidence concerning the extent of the appellant's injuries, a matter going in mitigation of penalty. He sought to rely upon a medical report dated 16 December 2010. It emerged that the report had been in the hands of counsel previously engaged, who by a written outline of submissions dated 17 January 2011 had abandoned the ground. After argument, the Court ruled that the report could not be introduced, and the ground was not pursued. But it was made clear to counsel that he was not precluded from relying upon medical reports which were in evidence on the plea in his argument on the manifest excess ground.

[2] [2007] VSCA 59.

[4] [2007] VSCA 102; (2007) 16 VR 269, 276 [32].