DPP v Church [2005] VSCA 8

5. Although only 22 years of age when these offences were committed, the respondent had amassed a significant number of convictions for driving offences in 10 court appearances between 4 April 2000 and 18 September 2002. They related to occasions on which he exceeded the applicable speed limit, failed to stop at red lights, drove a motor vehicle whilst disqualified and drove with what was described as a "low range prescribed concentration of alcohol". At the time of the commission of the offences with which we are here concerned, he held no licence to drive a motor vehicle in this state and was disqualified from driving in another. His blood alcohol level, measured within three hours of the offences, was recorded at 0.123 per cent.

8. After hearing a plea in mitigation of penalty in the course of which evidence was adduced on his behalf from his grandfather Rex Ryan, his mother Karen Elliot, and a report of the psychologist Mr Ian McCombie was tendered, the learned sentencing judge on 30 September 2004 imposed a sentence of five years imprisonment on each count. Her Honour directed that two years and six months of each of the sentences imposed on counts 2 and 3 be served cumulatively upon each other and upon count 1. This created a total effective sentence of 10 years imprisonment in respect of which a non-parole period of seven years was fixed.

11. The Director of Public Prosecutions has appealed against the individual sentences, the total effective sentence and the non-parole period imposed upon the respondent on the single ground that each is manifestly inadequate in the circumstances.

14. In support of this contention, reliance has been placed upon the assertions that it is apparent, from the sentence itself, that her Honour:

a) failed to adequately reflect the gravity of the offence of culpable driving generally and in this case in particular; b) failed to take sufficiently into account the importance of general deterrence as a sentencing consideration in such cases; c) failed to take into account or sufficiently to take into account the aspect of specific deterrence in the respondent's case; d) gave too much weight to factors going in mitigation of penalty in the circumstances; e) gave insufficient weight to the significance of the respondent's relevant prior criminal history; f) gave insufficient weight to the applicable maximum penalty for this offence, namely 20 years imprisonment; and g) gave insufficient weight to the effect of the respondent's conduct upon the victims' families.

19. The respondent and a young woman, named Skye Hogan, had decided to travel around the country with the objective of working and saving money for their future together. The respondent had been a close friend of one of the victims, Joshua Philips, since boyhood and it was decided that he would join them on their journey as they followed, what has been referred to as, the fruit picking trail. Eventually the three young people arrived at Cobram in Victoria where picking was in progress. The other two victims of the respondent's driving were also young people on working holidays. Paul Field had traveled to Australia from Scotland and Martin Smyth had come from Belfast for this purpose. They also found their way to Cobram to secure work as pickers.

22. As it had rained overnight there was no fruit picking done on Friday, 21 February 2003. The respondent and Skye Hogan spent the afternoon socializing and playing pool at the Barooga Hotel before returning at around 5 p.m. to the campsite at which other pickers were staying. The precise movements of the respondent after that time, and what if any alcohol he consumed during the day and early evening, are unclear on the material before the Court. However, the evidence indicated that he left the campsite for the evening at around 7 p.m. Ms Hogan, it appears, did not accompany him. He was seen by a former employer outside an hotel referred to as the "Top Hotel" in Cobram at around 8.30 p.m. when he appeared to be so affected by alcohol that he was unable to speak properly.

25. At approximately 9.30 p.m. he was observed to leave other licensed premises known as the Gas Works Bar in the company of Field, Smyth and Philip.

28. At around the same time, the respondent's red Commodore motor car was observed by witnesses to "do a wheelie" as it turned right into Williams Street, Cobram and to accelerate to an estimated speed of 60-70 kilometres per hour in a 50 kilometre per hour zone. In other words, the turn was executed in such a manner that the rear wheels of the car slid on the roadway as it went around the corner.

31. The four young men were subsequently seen by a number of people outside the Top Hotel approximately half an hour later. Witnesses who spoke to them formed the opinion that all four were drunk. The respondent told one of those persons that he was going to get his red VL and take it down the street to "do skids". He was cautioned in strong terms that he would be very foolish to do so as there were police about and he would be likely to be caught. Another witness, Carolyn Morris, advised him in equally strong language against using his car, saying: "You better not be fucking driving because you've been drinking. Don't drive, get a taxi." He rejected both of these pieces of advice and shortly afterwards was seen driving his vehicle. At approximately 10.30 p.m. the respondent and his three companions were refused entry to the Top Hotel by the manager due to their state of intoxication. They were staggering and pushing a shopping trolley into a roadside. Approximately 15 minutes later they were refused entry to the Gas Works Bar for the same reason.

34. Between 11.00 p.m. and 11.30 p.m. the respondent's vehicle was observed by numerous witnesses as it was driven around Cobram in an erratic and dangerous fashion. On a number of occasions, it executed a manoeuvre known as a "burn out", that is, the car was driven so as to cause the tyres on the vehicle to screech and scorch on the road surface. It was also seen "fish tailing" as it accelerated on the roadway. The vehicle was described as travelling at excessive and dangerous speeds through the streets of the town, sometimes not stopping or slowing down at "Stop" and "Give Way" signs. On one occasion, the respondent accelerated from a stationary position in a manner that caused the wheels of his car to spin. The vehicle then slid sideways towards a group of teenagers standing on the side of the road, forcing them to jump backwards to avoid being struck.

37. Unsurprisingly, the police received a number of reports from citizens who were concerned about this behavior, and a short time later two police members, who were engaged in breath-testing duties, observed it accelerate from a side street into Punt Road, Cobram, with its tyres scorching on the roadway as it passed their vehicle. They then activated the red and blue flashing lights on their car and attempted to intercept it. The respondent's vehicle was then turning into High Street, again with it's tyre rubber burning. It proceeded at high speed until it was driven onto the Murray Valley Highway, travelling in an easterly direction towards Yarrawonga. The respondent subsequently stated that he was aware of the presence of the police vehicle and it is apparent that he was concerned to avoid being stopped by them.

40. The police vehicle, a four wheel drive diesel powered type, attempted to follow but quickly fell behind. It travelled along the Murray Valley Highway at around 110 kilometres an hour as the respondent's car disappeared from view. The police members then turned off the flashing lights and made a request over the radio for any Yarrawonga unit available to keep a look out for it. However, after travelling a further seven kilometres, they came across the debris of tree branches strewn across the roadway on the eastern side of a gentle bend. They then located the wreckage of the vehicle.

43. The bodies of Paul Field and Joshua Philip were found in and near the car. Martin Symth was in the rear passenger seat. He was alive but had sustained what proved to be fatal injuries. The respondent, who had received only minor injuries, was still in the driver's seat.

46. The Murray Valley Highway in the vicinity of the collision was designated as a 100 kilometres per hour zone. The road travels through flat terrain and, up to the point where the collision occurred, is generally straight. The bend at which the car left the roadway was described as gentle and can be seen to be such in the photographs of the area provided to the Court. It should have presented no difficulty in negotiation for a vehicle proceeding within or even near the speed limit. At the time of the incident the road surface was dry and visibility was good. There has been no suggestion that any other vehicle was involved or that there was any other external factor which may have contributed to what happened.

49. The speed of the respondent's vehicle at the time of impact was calculated to be 169 kilometres per hour. The only explanation advanced by the respondent for his conduct, or with respect to the circumstances under which his car left the roadway, was that he was being pursued by the police who were 10 to 15 metres behind him. This explanation was false and was subsequently abandoned at the plea hearing.

52. There is no need to linger over the features of aggravation present in this case. They are many, and would be apparent to all save the most irresponsible. Individually considered, all are extremely serious. However, I consider that I should refer to the circumstance that the respondent appeared to have paid absolutely no regard to his history of prior driving offences, as his conduct on that night involved most of the behaviours that had previously brought him before the courts. He had clearly ignored the fact that he was both unlicensed in this state and disqualified from driving in another. He refused to heed advice given to him not to drive on that night as he was affected by alcohol and, for personal amusement alone, drove around the streets of Cobram and on the highway in an erratic and extraordinarily dangerous fashion. On any view of the matter, his level of personal culpability for the death of each of his three companions must be regarded as extremely high.

55. The sentencing judge referred to the respondent's conduct as "the worst" example of culpable driving that she had personally encountered. This was, in my view, a significant assessment in view of her Honour's substantial experience as a sentencing judge in the County Court. As counsel appearing for the respondent in the Court below, and counsel in this Court acknowledge, the conduct of their client constituted a very serious example of an offence that the legislature has set a maximum sentence of imprisonment for 20 years for it's commission.

58. There is no need to recite the principles upon which this Court must operate when considering an appeal by the Director of Public Prosecutions against sentence. They have been set out and applied in a substantial number of cases over recent years. It is sufficient to refer to their clear expression in the judgment of Charles, J.A. in R v. Clarke[1].

61. The Director has not asserted that the sentencing judge made any identifiable or specific error of commission or omission, but rather contends that when regard is had to the totality of the circumstances, including giving full weight to the considerations which would arguably operate in mitigation of penalty, the sentence, both in its total effect and individual components, can be seen to be so manifestly inadequate as to constitute error in principle.

64. In response, counsel for the respondent properly emphasized the extent and importance of the discretion reposed in a sentencing judge, and the fact that there has been no argument advanced that the judge in this case failed to have regard to any relevant sentencing consideration or principle. Indeed, I should add at this point that it is apparent from her Honour's carefully constructed sentencing remarks that she was mindful of all of the applicable principles and relevant factual matters relating to both the offence and the offender before her.

67. Accepting the extremely serious character and consequences of the respondent's offending, senior counsel acting on his behalf in this Court pointed to a number of factors which had to be and were appropriately taken into account by the sentencing judge in his client's favour. They included:

(a) his pleas of guilty; (b) his significant and genuine expressions of remorse and obvious sense of guilt; (c) the emotional problems which the respondent had experienced as a consequence of the deaths of his companions, and which were addressed by Mr McCombie in his report; (d) the difficulties which imprisonment would present for him in view of the fact that his family resided interstate; (e) the presence of prospects for his rehabilitation, bearing in mind his age, good work history, strong family and partner support, and his reduced consumption of alcohol after the commission of these offences.

71. Against that background, he argued, the individual sentences and the totally effective sentence imposed upon the respondent could not be properly viewed as manifestly inadequate, or at least inadequate to the extent that the intervention of this Court was required.

74. Finally counsel addressed the application of the principle of double jeopardy in the circumstances of this matter. He argued that even if the sentencing judge's disposition was regarded as manifestly inadequate, then what would otherwise be regarded as the appropriate disposition, properly moderated to reflect the application of that principle, the outcome would be little different.

77. I cannot accept these conclusions. Counsel appearing for the respondent in the Court below in the course of presenting her submissions described the respondent as "an accident waiting to happen". If by that expression she meant to convey that, well before the car that he was driving ran off the roadway, it must have been obvious to any sensible person that if the respondent continued to behave as he was doing, he would almost certainly cause death or serious injury to someone, then I agree. If, on the other hand, the expression was intended to suggest that what happened was an accident, then I certainly do not. It must be remembered that the three victims in this matter did not die in an accident, attributing to that word what I would regard as it's proper usage in its context, but as the direct consequence of the respondent's flagrant disregard of the law and their personal safety.

80. Culpable driving causing death is now viewed by the courts as a species of involuntary manslaughter and carries the same maximum penalty as the offence of manslaughter. It did not always do so, but the maximum applicable penalty has been raised on several occasions, as the terrible and irreversible consequences of its commission have become the subject of increasing concern and public awareness in this society.

83. There have been continuing endeavours made through highly publicised campaigns to ensure that motorists remain conscious of the need to exercise proper care on the roads, and to pay due regard to the safety of others. The risks involved in driving at excessive speeds or whilst affected by alcohol or drugs have been emphasised time and time again. Few, if any, I believe could claim to be unaware of these constantly repeated messages. The assumption can be safely made that the respondent was not one of that tiny group. As Tadgell, J.A. pointed out in R v. Scholes[2], the offence of culpable driving created by s.318 of the Crimes Act 1958 is essentially one against public safety and its purpose is to deter, by criminal sanction, the unnecessary and avoidable killing by motor vehicle drivers.

86. Deterrence being its principal objective, it follows that general deterrence and, where appropriate, specific deterrence must assume great significance as sentencing considerations in such cases, even to the extent of substantially reducing the weight

that can be given to factors that would otherwise operate powerfully in mitigation.

90. With respect to the issue of specific deterrence in this case, it is to be noted that the respondent was not deterred by his prior appearances for driving offences, periods of disqualification from driving, the fact that he had no licence in this state, the fact that he was cautioned not to drive because he was affected by alcohol, the warning given to him that he was likely to be intercepted by the police, or even actual police presence.

93. When regard is also had to the driving itself, then notwithstanding the significance of the matters advanced on his behalf, in my opinion, the individual sentences imposed in this case were each so manifestly inadequate and so failed to reflect the seriousness of his offending that the intervention of this Court is required. Accordingly I would allow this appeal and set aside the sentences imposed in the Court below. Moderating their sentences by reason and necessity to apply the principle of double jeopardy, I would substitute in lieu a sentence of six years imprisonment on each count.

96. I would order that three years of the sentences imposed on counts 2 and 3 be served cumulatively upon each other and upon count 1. This would create a total effective sentence of 12 years' imprisonment, and in respect of that sentence I would fix a non-parole period of nine years. I would also order that the respondent be disqualified from obtaining a driver's licence for a period of 10 years from 30 September 2004, that is, the date upon which sentence was imposed.

100. I agree with the learned presiding judge that the appeal should be allowed for the reasons that he gives and in the re-sentencing disposition that he proposes.

104. I agree and for the reasons stated by the learned presiding judge.

The sentences imposed in the Court below are set aside and in lieu thereof the respondent is re-sentenced as follows:

The Court directs that three years of the sentences imposed on counts 2 and 3 be served cumulatively upon each other and upon the sentence imposed on count 1. This creates a total effective sentence of 12 years' imprisonment in respect of which a non-parole period of nine years is fixed.

The Court declares the period of 136 days detention that the respondent has already undergone is to be reckoned as having been served under the sentence hereby imposed.

The Court directs that this declaration and it's details be entered in the records of the Court.

It is further ordered that the respondent be disqualified from obtaining a driver's licence in this state for a period of 10 years from 30 September 2004.

An indemnity certificate is granted to the respondent.

[1] [1996] VICSC 30; [1996] 2 V.R. 520 at 522.

[2] [1999] 2 V.R. 337 at 346.