//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2006] VSCA 189
Court of Appeal (Vic)
2006-09-07
NETTLE and ASHLEY, JJ.A. and COLDREY, A.J.A.
Original judgment source is linked above.
CRIMINAL LAW - Sentencing - Culpable driving - Crown appeal - Whether head sentence of three years in a Youth Training Centre manifestly inadequate - Youthful offender - Re-sentenced to six years with a non-parole period of three and a half years.
1 This is an appeal by the Director of Public Prosecutions pursuant to s.567A of the Crimes , against sentences imposed by a judge of the County Court in respect of one count of culpable driving and one count of causing serious injury negligently, to which the respondent pleaded guilty.
2 At the time of the offences, on 23 October 2005, the respondent was 18 years of age, although he did not then hold a licence to drive, and he had previously been convicted before the Magistrates' Court at Geelong on 30 May 2005 of unlicensed driving, driving at a speed over the speed limit, causing injury recklessly and possessing a controlled weapon.
The facts
3 For some time before the offences the respondent had been unemployed and living with a group of teenage friends in a house in a suburb of Geelong. On the morning of the offences he woke at about 11 a.m. and after smoking several bongs of marijuana he, with three of his housemates, attended at the CentreLink office at about midday. From there they went to the Corio Village shopping centre, where they purchased three dozen cans of bourbon and cola and a quantity of marijuana, and then returned to the house at about 3 p.m. During the remainder of the afternoon the respondent smoked some 15 to 25 bongs of marijuana and drank the contents of six or seven of the cans of bourbon and cola.
4 Later in the evening, one of the respondent's housemates drove the respondent to the respondent's mother's home in another suburb of Geelong, so that the respondent could collect the respondent's Holden VK Commodore car. The respondent then drove back to the shared house, stopping on the way at a service station in North Geelong to buy petrol and cigarettes. Once back at the house, he
drank the contents of at least one more can of bourbon and cola and smoked several more bongs of marijuana.
5 Then, at about 10 p.m., he recalled that he had left the remote control for his car alarm at the service station and he determined to drive back to collect it. His housemates sought to discourage him from doing so, because they were concerned about the amount of alcohol he had consumed, but he drove back none the less. He took with him for the ride Courtney Mitchell, who was 15 years of age and sat in the front passenger seat, and Tamika Moyle, who was 16 years of age and sat in the rear seat behind her. He collected the remote control from the service station without mishap, and then began to drive back to the shared house, along Latrobe Terrace toward the intersection with Gordon Avenue.
6 As was later determined by expert analysis, the respondent was at that stage driving at a speed of at least 117 kilometres per hour in a 70-kph zone. Then, as he crested the railway overpass shortly before the intersection with Gordon Avenue, he saw that the traffic lights at the intersection were showing red in his direction and that other vehicles were standing stationary in each of the three nearside traffic lanes. With nowhere else to go, therefore, he applied his brakes and attempted to steer to the left around the stationary vehicles, but the wheels locked. He released the brakes momentarily and then re-applied them, but they locked again. From there the car skidded for approximately 98 metres, mounting the kerb and the nature strip, and then collided with a power pole where it came to rest.
7 Upon impact with the pole, Tamika Moyle, who was most probably not wearing a seatbelt, was thrown from the rear seat and propelled head first forward into the dashboard, causing her massive head injuries. At the same time, Courtney Mitchell, who was wearing a seatbelt, struck the dashboard and components of the car driven back into the cabin, and she sustained serious bodily injuries. The respondent, who had his seatbelt draped around him but not buckled, was thrown forward on to the steering column and suffered a burst bowel, punctured leg and some soft tissue injuries. Other nearby motorists scrambled to assist.
8 Tamika Moyle was taken by air ambulance to the Alfred Hospital, where she underwent repeated emergency neurosurgery, and then remained on life support in intensive care until she died from profound head injuries on 24 October 2005. Courtney Mitchell was taken to the Geelong Hospital where she was admitted and treated for a fractured pelvis, internal injuries, bruised ribs, numerous cuts and bruises and abrasions.
9 The respondent was pulled from the car, vomited on the pavement, and was then also taken to the Geelong Hospital where he was admitted and treated for a burst bowel, soft tissue injury to his shoulder, minor cuts and bruises and a fractured knuckle.
10 A blood sample taken from the respondent at hospital in accordance with s.56 of the Road Safety Act 1986 showed that he had a blood alcohol concentration of 0.103%, which is to say more than twice the legal limit for a full driving licence holder and a concentration of 0.010 ng per millilitre of tetrahydrocannabinol. In the expert opinion of Professor David Wells of the Victorian Institute of Forensic Medicine, the respondent's driving skills would have been significantly adversely affected by the combined effects of the alcohol and tetrahydrocannabinol.
11 Upon inspection of the respondent's car, it was found to be unregistered and unroadworthy due to insufficient suspension clearance and three bald tyres, of which one was worn through to the steel belt.
12 When the respondent was interviewed by police on 22 October 2005, he admitted that he was driving at the time of the accident and that he had consumed six or seven cans of bourbon and cola and smoked between 10 and 25 bongs of marijuana. He stated, however, that he did not believe that the alcohol or drugs had affected his ability to drive. Asked by investigating police why he said that, he answered:
"'Cos I was drink drivin' before, and I know I can, - I know I'm right. I know that alcohol does not affect me more than marijuana."
Asked then whether he believed that marijuana had any effect on his ability to drive the motor car at the time, he answered:
13 He admitted driving whilst unlicensed and that the car was unregistered and unroadworthy due to the condition of the tyres. He agreed that his speed was around 120 kilometres per hour as he approached the intersection, because, he said, he had not long before looked down at the speedometer and seen that it was showing 120 kilometres per hour, even though he knew that he was driving in a 70-kph zone. Asked by investigating police whether at any stage whilst he was driving back from the service station he considered that his driving was unsafe, he replied:
14 Pressed as to whether that possibility had crossed his mind, he answered that
"I'm a very safe driver with other people in the car, I think."
15 Asked then why he had taken the risk of coming over the overpass before the intersection at a speed of 120 kph, when he knew that the intersection was fitted with traffic lights and that he would not be able to see whether they were red or green until he was upon them, he answered:
"They're usually green, unless someone's comin' out of the servo or somethin'."
The sentence passed below
16 During the plea in mitigation before the judge below, considerable emphasis was placed on the respondent's youth and immaturity, his plea of guilty and what was said to be his genuine contrition and remorse, and upon the difficult circumstances of his upbringing. As the judge noticed in his sentencing remarks, the man whom the respondent had known as his father died when the respondent was approximately six years of age. Later the respondent saw one of his uncles dead after he committed suicide, and he also saw his mother assaulted by another of his uncles. The respondent left school after completing only part of year 11, and although he began a school-based carpentry apprenticeship, he dropped out of that course after injuring his leg. Then, at the age of 18 years, he inherited a sum of $15,000, left to him by his stepfather, and at about that time he moved out of his mother's home and began to live in the shared house. In no time at all he had squandered the legacy. He spent $6,000 of it in buying the car in which he committed the subject offences, $1,500 on a caravan and the remainder on parties, alcohol and drugs, in the space of only four to five weeks.
17 The judge below adjourned the plea hearing so that the respondent could be assessed for suitability for a youth training centre order, and the assessment was favourable. In a pre-sentence report dated 23 February 2006, it was stated that the respondent was very immature, but not difficult to manage within the Juvenile Justice Centre environment, that he was participating in programmes at the centre, and that his attitude and motivation for a change in lifestyle appeared to be strong. It was said that he had completed a number of TAFE programmes and had commenced woodworking classes, and that he was on the waiting list for a motor mechanics course and a forklift driver's licence course, and that he wished to study for the written component of the driver's licence test. In the opinion of both the co-ordinator of Juvenile Justice and the manager of Juvenile Justice, the respondent was suitable to serve any period of incarceration which he might receive in a youth training centre. In their view, the respondent's age and immaturity and the fact that this was to be his first custodial sentence meant that he would be particularly vulnerable in the adult prison system and that his long-term rehabilitation would be best promoted in the youth training centre regime.
18 In the result, the judge sentenced the respondent on the count of culpable driving to a sentence of three years in a youth training centre and on the count of negligently causing serious injury to two years in a youth training centre, thereby making for a total effective sentence of three years in a youth training centre, to be served cumulatively upon a sentence then being served for breach of a community-based order.
The Director's contentions
19 The Director contends that the individual sentences, the degree of cumulation and the total effective sentence are all manifestly inadequate. He submits that the judge failed to reflect adequately or at all the gravity of the offences generally, and in this particular case failed to take into account or at least to give sufficient weight to the need for general and specific deterrence; that he gave insufficient weight to the respondent's prior criminal history and the applicable maximum penalties, the effect of the offences on the victims and their families; and that he gave too much weight to factors going to mitigation.
20 Counsel for the Director emphasises the continuing importance of general deterrence against offences of culpable driving and, in this case, the need for specific deterrence, made plain, he said, by the respondent's repeated offending and by the lack of insight apparent in the record of interview. In counsel's submission, the grave circumstances of the respondent's offending dictate that he be sentenced to a substantial term of imprisonment and, despite the respondent's youth and immaturity, that a term of three years in a youth training centre is palpably short of the mark. As counsel would have it, it is indeed so plainly inadequate that it must be the consequence of the sentencing judge giving too much weight to factors going to mitigation and too little weight to the nature and gravity of the offences, the respondent's culpability, the death of the deceased, and the debilitating effects of the injuries inflicted upon the other victim and family members.
The respondent's submissions
21 On behalf of the respondent, it has been submitted to the contrary that the respondent's age was in this case central to the sentencing process, and that there is nothing so unusual about the sentence that was imposed as a consequence as to warrant appellate interference. It is evident, it is contended, that the sentencing judge well understood the gravity of the offences in issue, both in general and in terms of the need for specific deterrence, and that his Honour fashioned a sentencing order which accorded with the requirements of general and specific deterrence and just punishment, while at the same time giving full weight to the respondent's youth, immaturity and chances of rehabilitation. In any event, it is submitted for the respondent, the sentencing order was well within the range of sound discretionary judgment, or at least not so far below it that it is appropriate for this Court to interfere.
The sentence was manifestly inadequate
22 In my judgment the individual sentence imposed on the count of culpable driving and the total effective sentence were manifestly inadequate. In my view the nature and gravity of the respondent's offending, the undoubted need for general and specific deterrence, and the necessity for punishment proportionate to the effects of the crime upon the victims and their families, necessitated the imposition of a substantial term of imprisonment.
23 With great respect to his Honour, I recognise the difficulty of the task which he faced and the considerations which he took to militate in favour of a youth training centre order. There was a considerable amount of material before the judge in terms of a pre-sentencing report and psychological assessment which suggested that the respondent's best chances of rehabilitation lay in the youth training centre environment. There is, moreover, now additional material before this Court to not dissimilar effect. As it appears from that material, the respondent has now turned 19 years of age, but yet he remains immature and impressionable, and therefore easily led, and accordingly it is thought that he is best suited to the sort of structured environment which a youth training centre can provide.
24 But, be all that as it may, I am unable to accept that a head sentence of only three years' detention is near to adequate to reflect the nature and gravity of the offences in issue, given the respondent's previous criminal history; and, since a youth training centre order may not exceed three years in duration, it follows, in my view, that the sentence which was imposed was not within the range.
25 Culpable driving is a grave offence. As has been observed repeatedly in this Court, it is a species of involuntary manslaughter which falls to be punished as such.[2] Thus the maximum sentence for culpable driving is 20 years' imprisonment, which is the same as the maximum sentence for manslaughter. Society regards the taking of human life by acts of gross negligence as intolerable, and accordingly the community expects that offences of this kind will be visited with stern punishment.
26 In this case the offences were made worse by a succession of aggravating circumstances. The respondent drove while unlicensed and having already been punished for driving while unlicensed, indeed only a few months before the tragedy. His vehicle was to his knowledge unregistered and unroadworthy. He drove at massive speed in a built-up area, under the significant influence of alcohol and cannabis, and after ignoring the warnings of friends not to drive in that state of inebriation. He approached the intersection over the viaduct well knowing that the intersection was fitted with traffic lights that could not be seen until he was upon them, and yet, as he told police, not caring one way or the other what the consequences of that would be. He committed the offences while still undergoing the community-based order imposed for previous offences, and thus in breach of the order, and in consequence he destroyed one young life and he maimed another, and he has left the family of the deceased stricken with grief.
27 As the Director submits, the need for general deterrence of offences of this kind cannot be overstated. Equally, in this case, the need for specific deterrence is obvious. The fact that the respondent drove as he did, unlicensed and under the influence of alcohol and cannabis, and so shortly after being detected and convicted of driving while unlicensed, implies that he had learnt nothing from the previous experience. The lack of insight demonstrated in the course of his interview with police is breathtaking, and even now, according to the most recent assessments with which we have been provided, it remains limited.
28 So to say is not to exclude from consideration the respondent's youth or immaturity, or his deprived circumstances, or, of course, the fact that he pleaded guilty at the first opportunity and has shown a degree of improvement in attitude and maturity since his incarceration. Nor is it to understate the recalcitrance with which this Court should and does respond to Crown appeals against sentence, particularly in the case of young offenders. But, as authority makes plain, occasion may arise for the bringing of a Crown appeal when a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error of principle,[3] and in my view this is one of those cases.
29 Whereas sentences of less than five years for culpable driving were once not uncommon, today such a sentence is a relative rarity, except perhaps where one is concerned with a first-time offender and the death of the victim has been more the consequence of bad luck than out and out stupidity. Where, however, one is dealing with an offender with a history of relevant criminal conduct and aggravating circumstances, of the order of magnitude with which we are here concerned, it is to be expected that the sentence imposed will be substantially more.
30 It follows, in my view, that the appeal should be allowed and the sentence imposed below should be set aside.
Re-sentencing
31 In re-sentencing the respondent, I would have regard to the nature and gravity of the respondent's offending, the degree of his culpability, the need for general and specific deterrence, and the need for denunciation and for just punishment. As against that, however, must be balanced his early plea of guilty, such remorse as he appears now to have shown, his youth and immaturity, his personal circumstances, and of course the principle of double jeopardy as it applies to Crown appeals.
32 In the result, I would re-sentence the respondent on count 1, the count of culpable driving, to a term of imprisonment of five years, and on count 2 to a term of imprisonment of two years. I would order that one year of the sentence imposed on count 2 be served cumulatively on the sentence imposed on count 1, thereby making for a total effective sentence of six years' imprisonment. I would further order that the total effective sentence of six years be served cumulatively on the sentence to which the respondent is now subject, but, having regard to the material with which we have been provided and the chances of rehabilitation of the respondent, I would, pursuant to s.14 of the Sentencing Act 1991, set a non-parole period of three-and-a-half years in respect of all sentences which the respondent is to serve or complete.
33 I add that, although I consider that it is necessary to re-sentence the respondent to imprisonment for the reasons that I have given, I am persuaded by the materials put before us that it is plainly desirable that he be permitted to serve part, if not all, of the sentence in a youth training centre. If, therefore, the other members of the Court agree with the disposition of the appeal that I think to be appropriate, I would propose to have the relevant materials submitted to the Adult Parole Board to facilitate consideration by the Board of the exercise of its power under s.244 of the Children and Young Persons Act 1989. It goes without saying, of course, that this Court has no control or influence over the Board, and, in formulating the period of imprisonment to which the respondent is to be sentenced, I take no account of the course which the Board may choose to adopt. But I would be disposed to facilitate their consideration of the respondent's case so that, if their decision is that he be transferred to a youth training centre after he has been sentenced, it can be done without delay.
34 I agree with the learned presiding judge, for the reasons which his Honour has given, that this appeal should be allowed. I agree also that the respondent should be re-sentenced as his Honour has proposed. I should emphasise, and it needs to be understood, that the sentence which his Honour has proposed reflects the fact that where an appeal by the Director of Public Prosecutions is allowed, in accordance with authority, this Court adopts a conservative approach on re-sentencing.
35 I also agree that this matter should be disposed of in the manner determined by the learned presiding judge and for the reasons advanced by him.
36 The orders of the Court will be as follows:
1. The appeal against sentence is allowed.
2. The sentence passed below is set aside and the respondent is re-sentenced on count 1 to be imprisoned for a term of five years and on count 2 to be imprisoned for a term of two years, of which one year is to be served cumulatively on the sentence imposed on count 1.
3. The total effective sentence of six years is to be served cumulatively upon the sentences to which the respondent is now subject.
4. A period of three-and-a-half years is fixed as the non-parole period in respect of all sentences which the respondent is to serve or complete.
5. It is declared that 193 days of the sentence has already been served and it is ordered that the fact that the declaration has been made and its details be entered in the records of the Court.
6. The order that he be disqualified for a period of four years from obtaining a driver's licence be confirmed, from the date imposed by the judge below.
[1] On 27 February 2006.
[2] R. v. O'Connor [1999] VSCA 55 at [19], per Winneke, P.
[3] R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522.
DPP
Chambers [2006] VSCA 189