DPP v Aparo [2011] VSCA 207

4 The total effective sentence imposed was six years' imprisonment. The Court ordered that the respondent serve a non-parole-period of three years' imprisonment. In addition the sentencing judge ordered that the respondent's licence be cancelled and that he be disqualified from obtaining a licence for four years.

5 The Director of Public Prosecutions has appealed against the sentence imposed, contending that it is manifestly inadequate. Before turning to the grounds of appeal I propose to set out the principles relevant to such appeals and then briefly

6 The respondent was sentenced on 17 November 2009 in respect of events that occurred in 2007. The Crown appeal was filed on 14 December 2009. These dates are significant because it means that the new provisions of the Criminal Procedure Act 2009 (Vic) (in ss 289 and 290), dealing with the issue of double jeopardy in relation to Crown appeals against sentence, do not apply to this proceeding.[1] Hence I propose to briefly canvass the approach taken prior to the introduction of the amendments.

7 Crown appeals against sentence have always been regarded as raising different considerations to those presented in appeals by convicted persons. It was thought that such appeals should only be brought in 'rare and exceptional' cases to establish some point of principle[2] and that 'manifest inadequacy alone' was insufficient 'to warrant appellate intervention'. As Redlich JA said in DPP v Bright:[3]

Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the sentence must be 'clear and egregious', the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and 'undermine public confidence in the ability of the courts to play their part in deterring the commission of crime'.[4]

8 In DPP v Karazisis; DPP v Bogtstra; DPP v Kontoklotsis[5] the Court observed that, conceptually, a Crown appeal has traditionally given rise to three separate questions which can be described as 'stages'. First, the Court considered the nature of the sentencing error in order to determine whether it satisfied the common law requirements, summarised in Clarke[6] and Bright,[7] which were intended to ensure that such appeals should be 'rare and exceptional', and did not unduly circumscribe the sentencing discretion.[8] Secondly, even if the error met those requirements, the Court would consider whether, for reasons of principle or because of discretionary considerations, it should decline to intervene because it did not consider that a different sentence should be imposed. For example, the Court would exercise what it regarded as an overriding, or residual, discretion not to intervene where it did not consider that there was a sufficient difference between the sentence imposed at first instance, and any sentence it regarded as appropriate.[9] Thirdly, if the Court did intervene, because it was a Crown appeal the Court would impose a lesser sentence than it would otherwise have imposed, which was generally toward the lower end of the appropriate range.[10]

9 I now propose to briefly set out the facts before turning to the Director's submissions.

10 At about 5.30pm on 24 October 2007 a motor vehicle collision occurred on the Diggers Rest - Coimadai Road, Toolern Vale, in which two people received fatal injuries and died at the scene.

11 On the day of the collision the respondent was driving a heavy vehicle, which he was licensed to drive. At the time he was employed by Hanson Construction Materials to transport sand from cement works and quarries and was driving a 2006 Ford Sterling tip truck and what is called a 'dog trailer'. The trailer had three axles, one at the front and two at the back with double wheels on each side.

12 After loading his truck and trailer with sand[11] the respondent drove to the Diggers Rest - Coimadai Road (the road). The relevant section of the road runs roughly east and west. The respondent was travelling east towards the Calder Freeway. Hanson trucks regularly use this road to minimise difficulty in negotiating traffic in the late afternoon. In the course of his employment with Hanson the respondent had driven this route a number of times and admitted in his record of interview with police after the accident that he had previously travelled this road, albeit not driving a truck, over 100 times.

13 There was an 80km/hour speed sign on the western end of the road which was replaced by a 60km/hour sign as the respondent travelled east. The speed signs were clearly visible.

14 The respondent continued east bound along the Diggers Rest - Coimadai Road approaching the Djerriwarrh Creek Bridge. He then began to negotiate a left hand curve and a steep incline.

15 Victim one (chronologically) was also on the Diggers Rest - Coimadai Road travelling west towards the bridge over Djerriwarrh Creek. He saw the respondent's truck crossing the bridge, in its correct lane, but the trailer: '... looked top heavy and started to have a bit of a lean on it. Then it started to slide out, just the trailer itself into my lane. He has forced me to move over and go along the barrier' (count 3).[12] Victim 1 estimated that the trailer got half to one metre on his side of the road.

16 After the Djerriwarrh Creek Bridge (the Bridge) the road starts a sweeping left hand bend and inclines up a hill. As the road began to curve to the left, the trailer began to slide out to the right. The speed of the vehicle caused the driver's side tyres of the tipper to move onto the incorrect side of the road. The trailer then tipped and rolled onto its right side, throwing the sand from the tipper body across and onto the southern side of the road. The trailer, which remained attached to the rear of the truck, began to slide on its side, and into the path of the oncoming traffic.

17 At about this time victims two and three were travelling west on the same road, towards the bridge as the trailer was sliding east bound within their lane. Their sedan collided with the tipper body causing extensive damage to the front of the car. Victims two and three received fatal injuries as a result of the collision and died at the scene (counts 1 and 2).

18 Victim four was also travelling west along the same road and she began the downhill descent towards the Bridge. She observed the tipper trailer coming towards her being pulled along on its side by the truck. She shut her eyes and braked. When her car stopped it had been hit by the trailer in the front and the truck was alongside her car. She suffered injury to her neck, knees, foot and chest and requires physiotherapy (count 4).

19 The respondent's vehicle was fitted with an Electronic Control Module ('ECM') which stores data about the truck's operation. After the accident data was extracted from the ECM about speed, braking, clutch and accelerator use, and engine mode in the period one minute before and 15 seconds after the truck rapidly decelerated about the time of the collision between the respondent's overturned trailer and the vehicle containing Victims two and three.

20 The sentencing judge deals with the ECM data and the expert evidence at [9], [10] and [22] to [27] of his reasons. The ECM data showed that as the respondent passed the 60km/hour speed sign the truck was travelling at 78.1km/hour. At 'minus 17 seconds' the truck was accelerating to build speed to climb the incline. At 'minus 10' the truck was in top gear (the 18th gear) and travelling at 99km/hour. At minus 0.02 seconds the truck was travelling at 78.1km/hour, the respondent then applied the brakes. The sentencing judge summarised the evidence in the following terms:

[27] ... It shows that from the commencement of the 60 kilometre per hour speed zone, your speed varied from 78.1 kilometres per hour to as high as 99 kilometres per hour and then down to 72 kilometres per hour at minus 0.01. The lack of significant braking shows that this was deliberate on your part as the jury found. When it is remembered that the missile you were driving was some 45.5 tonnes mass, and those figures were approaching the top governed speed of your truck at 100 kilometres per hour, it is difficult to see how the jury could have found otherwise than they did ...

21 The sentencing judge found that if the then designated speed limits were adhered to there was no significant danger in the use of the road[13] and his Honour attributed the collision to the excessive speed at which the respondent was travelling.[14]

22 In fixing sentence, the sentencing judge took into account the respondent's youth, remorse and unlikelihood of re-offending and[15] made reference to the relevant sentencing considerations in culpable driving cases:[16]

The authorities to which I have referred and many others in the State make it plain that general deterrence stands high in the sentencing principles to be applied in cases such as this. They also provide that notwithstanding that fatalities in such cases arise out of the one incident, due regard is to be paid to the fact that in cumulating sentences, it is necessary to avoid the impression that one death is less significant than another. The authorities cited and referred to demonstrated that significant periods of incarceration are generally the norm in sentences for these offences.

23 I now turn to consider the issues raised on the appeal.

24 The main ground of complaint in this appeal is one of manifest inadequacy.

25 Counsel for the Appellant did not cavil with the sentencing judge's statement of the facts, and did not point to any particular error in reasoning. Rather, it was submitted that having regard to the facts and circumstances overall, the individual sentences imposed on counts 1 and 2, the cumulation ordered in respect of the sentence imposed on count 2, and the total effective sentence and the non parole period were manifestly inadequate. It was submitted that a sentence of three years' imprisonment on count 1 was not open given the objective gravity of the offending. The same argument was advanced in respect of the sentence of two years' imprisonment on count 2. In addition, it was submitted that no explanation was provided as to why this sentence was lower than that imposed on count 1. It was submitted that in circumstances where both victims were killed travelling in the same vehicle, the discrepancy in the sentences bespoke error.

26 The essence of the appeal is the contention that the sentencing discretion miscarried as a result of too much weight being given to matters pressed in mitigation, and too little weight being given to the gravity of the relevant offences, the maximum penalties available and the importance of the sentencing purpose of general deterrence.

27 During the course of oral argument, and having regard in particular to the elapse of time that has occurred, no issue was taken with the non parole period determined by the sentencing judge. It was submitted that if the appeal were allowed the Court could exercise considerable flexibility in fixing the non-parole period and exercise mercy in that regard.

28 In support of the contention that the individual sentences imposed in respect of counts 1 and 2 were manifestly inadequate counsel for the Director relied on the fact that the median sentence for this offence was five years and six months' imprisonment. The median sentence was said to be the starting point. This submission should be rejected, for two reasons. First, it is wrong in principle to treat the median as the starting point in the sentencing task and by increments or decrements, increasing or reducing that sentence by reference to other factors. To do so is a form of two stage sentencing. Secondly, the median figure is apt to mislead.

29 The median sentence for this offence is derived from the June 2009 'Sentencing Snapshot for Culpable Driving Causing Death' (the Sentencing Snapshot) produced by the Sentencing Advisory Council.[17] The Sentencing Snapshot describes sentencing outcomes for the offence of culpable driving causing death in respect of the 126 persons sentenced for this offence in the County Court in the five year period between 2003/2004 to 2007/2008. It is true that of those sentenced to imprisonment the median term was five years and six months (meaning that half of the imprisonment terms were shorter than the five years and six months and half were longer). But reference to the median term does not advance the issue much and tends to mask the complexity of the sentencing outcomes. Two points may be made in this regard.

30 The first is that the terms of imprisonment imposed spanned a considerable range - from two years to eight years and six months. No doubt this is reflective of the range of different circumstances. As the Court observed in DPP v Johnstone: 'the circumstances of culpable driving will vary and courts should take account of the individual circumstances of each case'.[18]

31 The second point is that the median term referred to only deals with those cases in which a term of imprisonment was imposed. A term of imprisonment[19] was imposed in 98 of the 126 cases (78 per cent) determined in this five year period. In this context it is also relevant to note that sentences of imprisonment were most likely to be given to people aged 25 to 29 years (93 per cent or 28 of the 30 people in this age group).

32 Conversely, sentences of imprisonment were less common for those aged under 25 years (65 per cent or 41 of the 63 people in this age group). The respondent in the present matter was 22 years of age at the time he committed the offences.

33 For the reasons given the median sentence referred to is an uncertain guide to the appropriate sentence in this case. Such past sentences can, and should, provide guidance and stand as a yardstick against which to examine a sentence. But care must be taken in using what has been done in other cases. Consistency is not demonstrated by, and does not require, numerical equivalence. As the High Court recently observed in Hili v R:[20]

When it is said that the search is for 'reasonable consistency', what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression.[21]

34 In addition to the Sentencing Snapshot, Counsel for the appellant drew our attention to sentencing imposed in other culpable driving cases. I need only mention Counsel's reference to DPP v Johnstone[22] in this context. Counsel submitted that the objective gravity of the offending in the present case was greater than in Johnstone, yet a lower sentence was imposed.

35 But an analysis of the circumstances in Johnstone demonstrates the inherent difficulty in such a comparative exercise. In Johnstone the driver of a motor vehicle travelling at between 90 and 100km/hour and carrying six young passengers, some of whom were not wearing seat belts, ran off a roadway and struck a utility pole killing two of the passengers and severely injuring a third. Immediately before the collision the driver had allowed himself to be distracted by the boisterous behaviour of some of his passengers, and by attempting to read a text message on a mobile telephone which had been handed to him by one of the passengers. The driver was convicted of two counts of culpable driving causing death, for each of which he was sentenced to three years' imprisonment and one count of negligently causing serious injury for which the sentence was 18 months' imprisonment. After orders for cumulation the total effective sentence was four years and six months' imprisonment with a non parole period of two years and three months. At the time of sentence the driver was 22 years of age.

36 On a Director's appeal this Court held that an accumulation of factors placed that particular case towards the higher end of culpable driving, namely:

... driving a vehicle overloaded; unrestrained passengers behaving in a distracting manner at night on a dark road; using a mobile telephone; removing one hand from the driving wheel to use the mobile telephone; reading the text message; the driver taking his eyes off the road for a significant period of three to four seconds while driving at 90-100km/h; paying insufficient attention and hence failing to see a bend in the road and an approaching pole; and trying to send or delete the text message on the mobile telephone.[23]

37 This behaviour was said to be so serious and dangerous as to warrant a severe penalty and the sentences imposed were manifestly inadequate. Making allowance for double jeopardy the Court re-sentenced the respondent to four years' imprisonment on count 1, three years' on count 2 and two years' on count 3. Two years of the sentence on count 2 and nine months of the sentence on count 3 was to be served cumulatively on count 1, giving a total effective sentence of six years and nine months. The Court fixed a non-parole period of three years and nine months.

38 The circumstances of this case are quite different and lack the constellation of factors present in Johnstone. Having said that, this was undoubtedly a serious case of culpable driving. The fatal collision was caused by excessive speed and the vehicle was a heavy truck and trailer - characterised by the sentencing judge as 'the missile you were driving was some 45.5 tonnes mass'.

39 In the circumstances I accept that a sentence of three years' imprisonment on Count 1 and two years' imprisonment on count 2 (with 18 months accumulated) was manifestly inadequate. But for the fact that this is a Crown appeal to which double jeopardy attached, I would have considered a sentence of four years' imprisonment on both counts, and two years' on count 2 being cumulated on the sentence on count 1, to have been the appropriate outcome.

40 In this context, I agree with the appellant's submission that the approach adopted by his Honour is inconsistent with the preferred method for sentencing for multiple offences referred to in DPP v Grabovac.[24]

41 As indicated earlier, the Court may in its discretion decline to intervene even if the sentence imposed below is manifestly inadequate or otherwise affected by sentencing error. This is such a case. There are two particular factors present which bear on the question whether the Court should intervene.

42 The first is that delay in the hearing of the appeal is a factor. The appeal was lodged on 16 December 2009 and heard on 19 July 2011, a delay of over 18 months. This is a substantial delay and should be taken into account in determining the proper disposition of the appeal.

43 The second factor is the impact of double jeopardy in this case. In such circumstances the Court would usually impose a lesser sentence than it would otherwise have imposed, which is generally toward the lower end of the appropriate range. It is also relevant to note that the appellant's submission became, in substance, to increase the total effective sentence but not to alter the non parole period determined by the sentencing judge. That was not only having regard to the delay and double jeopardy concerns, but also to the various mitigatory factors including the respondent's age.

44 In combination these factors are of such strength that, notwithstanding that the sentence was manifestly inadequate, the Court should, in the exercise of its discretion, decline to intervene. Accordingly, I would dismiss the appeal.

[1] Clause 10(4) of Schedule 4 of the Criminal Procedure Act 2009 provides: 'Divisions 1, 2 and 3 apply to an appeal where the sentence is imposed on or after the commencement day'. The 'commencement day' was 1 January 2010 and ss 289-290 are in Part 6.3 of Division 3. See also DPP v Hardy [2011] VSCA 86, [17] (Buchanan JA) and [32] (Neave JA).

[2] R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522 ('Clarke') (Charles JA with whom Winneke P and Hayne JA agreed).

[3] [2006] VSCA 147; (2006) 163 A Crim R 538 ('Bright').

[5] [2010] VSCA 350 ('Karazisis').

[6] [1996] VICSC 30; (1996) 2 VR 520.

[7] [2006] VSCA 147; (2006) 163 A Crim R 538.

[8] R v Boxtel [1994] VicRp 54; [1994] 2 VR 98, 104 (Crockett and Hampel JJ); and DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 542-3 (Redlich JA).

[9] Allpass (1993) 72 A Crim R 561, 562 (Gleeson CJ, Hunt CJ at CL and McInerney J); and R v Boxtel [1994] VicRp 54; [1994] 2 VR 98, 104 (Crockett and Hampel JJ).

[10] Allpass (1993) 72 A Crim R 561, 562-3 (Gleeson CJ, Hunt CJ at CL and McInerney J); R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522 (Charles JA); Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321, 341 (Kirby J); and DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 542-3 (Redlich JA).

[11] The all up weight of the loaded truck and trailer was said to be 45 and a half tonnes.

[12] The barrier referred to was a metal barrier erected on the southern side but off the shoulder of the road and adjacent to where double lines commenced just on the eastern side of the bridge.

[13] Reasons for Sentence (17 November 2009, County Court of Victoria, Judge Campbell) ('Reasons for Sentence') [14].

[14] Reasons for Sentence [29] and [35].

[17] I note that in May 2011 the Sentencing Advisory Council released a subsequent 'Snapshot' describing the sentencing outcomes for this offence in the period 2005/2006 to 2009/2010. The median sentence of those sentenced to imprisonment in this period was also 5 years and 6 months' imprisonment.

[18] [2006] VSCA 281; (2006) 16 VR 75, 80 (Warren CJ).

[19] The Sentencing Snapshot refers to imprisonment as meaning an immediate custodial sentence and does not include a wholly suspended sentence.

[20] [2010] HCA 45; (2010) 85 ALJR 195.

[21] Ibid [49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[22] [2006] VSCA 281; (2006) 16 VR 75.

[24] [1998] 1 VR 664.