DPP v Clark [2010] VSCA 64

2 The appellant pleaded guilty in the Supreme Court to one count of dangerous driving causing serious injury (Count 1) and one count of reckless culpable driving causing death (Count 2). The offences occurred on 20 September 2006 when the appellant was aged 31 years. The maximum penalties for the offences were five years' imprisonment and 20 years' imprisonment respectively. On 22 August 2008 the appellant was sentenced to two years' imprisonment on Count 1 and six years' imprisonment on Count 2, with one year of the sentence on Count 1 to be served cumulatively with the sentence on Count 2. The result was a total effective sentence of seven years' imprisonment with a non-parole period of five years. The judge also cancelled the appellant's drivers licence and disqualified him from obtaining another licence for a period five years. The judge stated that she would have imposed a sentence of eight years with a non-parole period of six years but for the appellant's plea of guilty.

3 The circumstances of the offending were described by the judge as follows:

1. On Wednesday 20 September 2006 you were in a troubled state. You were ruminating about the discovery of your father's abuse of your siblings and in these circumstances, whilst sitting in your car outside the Springvale Cemetery where the ashes of your late mother are interred, you decided to commit suicide. You undid your seatbelt and drove down Police Road at a speed observed by other road users to be in the vicinity of 150 kph. Your intention was to hit something solid on your side of the road and in that way, cause your death. Instead, you were seen to overtake two cars and then continue driving on the wrong side of the road. You collided in a head-on side-swipe fashion with the Toyota Camry being driven by Bopha Lisa Taing.

The force of the collision forced the Camry to rotate clockwise off the road and collide backwards through a brick fence. Ms Taing remained trapped in her car. When freed, she was conveyed by ambulance to the Alfred Hospital. She suffered a cervical spine injury at C5 C7, neck and facial abrasions and a haematoma, soft tissue tenderness to her chest wall and abrasions to her right wrist. This conduct forms the subject of Count 1 on the presentment, dangerous driving causing serious injury.

1. Your car, a Commodore, continued on and collided with a Holden Jackaroo four wheel drive station wagon. This car was being driven by Marilyn Hedrich. Her four month old son, Matthias, was seated in the child restraint in the back seat. The impact of the collision forced the Jackaroo backwards off the road, rotating clockwise and overturning as it did so. The car came to rest against a brick fence. There was massive impact damage to the front driver's side and Ms Hedrich was trapped inside and the baby suspended upside down. One of those who attended the scene removed the baby from the car. He was taken to the Royal Childrens Hospital for observation. He was uninjured. Ultimately Ms Hedrich was also freed from the car and conveyed by ambulance to the Royal Melbourne Hospital. She was found to have suffered a compound fracture of the right tibia and fibular, multiple fractures of the pelvis, a fracture to the base of the skull, left frontal contusions, subluxation of the spine at C5 and C6 and a deep laceration to the right cheek and chin. At the Royal Melbourne Hospital, Ms Hedrich underwent emergency surgery but died in the operating theatre at 2.08 a.m. on the following day. An autopsy later revealed further injury to her brain and fractured ribs. Cause of death was attributed to fat embolism within the pulmonary arteries and lungs. This forms the subject of Count 2 on the presentment, that of culpable driving causing death.
2. After colliding with Ms Hedrich's car, your car then struck the front driver's side of a Honda Civic sedan driving by Anna Nowacki. This car had been driving behind the Jackaroo. Ms Nowacki did not suffer any physical injuries although her vehicle sustained moderate damage.
3. As you were not wearing a seatbelt as you drove down Police Road, upon the second impact, you were ejected through the windscreen of your car. You were taken to the Alfred Hospital where you were treated for serious leg injuries, abdominal, chest and head injuries. You were hospitalised in the intensive care unit and later transferred to the Epworth Hospital to undergo intensive rehabilitation.
4. You were subsequently interviewed by the police on Friday 2 February 2007. You made frank admissions to the police and expressed your remorse for the loss of Ms Hedrich. You told the police that on 20 September you were not in a good state of mind. You went on to say that you had found out about your father and that as a result you did not want to be here, and so to quote you "I pulled out on the road. I never meant to harm another soul, I really didn't, and I unclicked my seat belt and I just wanted to hit something hard and solid on my side of the road, and unfortunately I've taken another lady's life because of my stupid actions, and that's all I can remember."
5. You admitted to the police that you knew you were over the speed limit, and this is consistent with the observations of other road users who described your speed at which you were driving as follows. "I would estimate that it was travelling at about 150 kilometres per hour, it was really thumping. You could hear the engine screaming. It was the fastest thing I've ever seen on a public road."
6. Senior Constable Glen Urquhart from the Major Collision Investigation Unit determined that at impact with the deceased's vehicle, the speed of your Commodore was between 127 kilometres per hour and 142 kilometres per hour.

4 The appellant now appeals against his sentence pursuant to leave. His sole ground of appeal is that in all the circumstances the total effective sentence and non-parole period are manifestly excessive. Particulars were provided to the effect that:

1. The sentence imposed on Count 2 was manifestly excessive;

3. That insufficient weight was given to three factors being:

(a) the mitigatory effect of the appellant's mental condition in the lead up to and at the time of the offence;

(b) the hardship the appellant would suffer in prison as a result of his physical and psychological infirmities;

(c) the permanent injuries suffered by the appellant in the course of the offence; and

4. That in all the circumstances a greater disparity between the head sentence and non-parole period was warranted.

5 Counsel submitted that the sentence on Count 2, the total effective sentence and non-parole period 'do not reflect the degree of mitigation which should have flowed from an appropriate reduction of moral culpability, specific deterrence, and in particular general deterrence, due to the appellant's mental state.' As to that, counsel emphasised the appellant's early plea of guilty, high level of remorse and that he 'was not rational' when he committed the offences. Counsel also referred to the mitigating factors mentioned in the particulars and, in essence, submitted that the sentence did not adequately reflect these factors. He submitted that the degree of cumulation was in the order one might expect in a case which did not attract such significant reduction in moral culpability. Further, he submitted that the judge 'appeared to accept that a longer than usual non-parole period was appropriate', but that the non-parole period actually imposed did not reflect this.

6 Counsel for the Crown submitted that no error was demonstrated in the exercise of the sentencing discretion, given the serious nature of the offending. The length of the sentence imposed was only explicable on the basis that the judge had taken into account and given full weight to all mitigating factors.

8 The starting point is R v. Abbott[1] where Maxwell P said:[2]

... the ground of manifest excess is not an occasion on which to re-argue the plea in mitigation. The ground of manifest excess will only succeed where it can be shown that the sentence was "wholly outside the range of sentencing options available" to the sentencing judge.

The "range" for this purpose is the range within which it would have been reasonable for a sentencing judge to sentence this appellant for this offence in these circumstances. It follows that the ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances. That is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.

9 In the present case, the appellant did not submit that the judge failed to take into account mitigating factors. Rather, it was submitted that the judge gave the mitigating factors insufficient weight.

10 In my view the judge's concise yet comprehensive sentencing remarks indicate that she was aware of and properly took into account all relevant mitigating factors.

11 As to the appellant's mental health, the judge accepted that the appellant 'was in a troubled state' at the time of the offending, that he was trying to commit suicide at the time, and that his conduct had to be 'placed in the context of your mental state then operating upon you'. The judge also noted and accepted the psychiatric report prepared by Dr Sullivan which detailed the appellant's history including his suffering sexual abuse as a child, his ongoing depression, substance abuse, acquired brain injury and ongoing risk of suicide. After setting out some key passages from the report the judge said:

1. I accept that at the time of your offending conduct your judgment was impaired in the way described by Dr Sullivan and accordingly the principles of Verdins and Tsiaras are here applicable. For these reasons I accept that your moral culpability for your offending is reduced, and that by reason of your depression, considerations of general and specific deterrence should be sensibly moderated in the sentencing process. However, such weight as is to be given to general deterrence, should reflect the fact that if other members of the community chose to use their vehicle on a public road way as a means of attempting to commit suicide, then they will suffer condign punishment.

12 The judge then described in detail the serious physical and emotional injuries suffered by the appellant as a result of the crash and accepted that these injuries would render prison more burdensome for the appellant.

13 The judge also accepted that the appellant was remorseful, had cooperated with the police, pleaded guilty at an early stage, and that his plea and conduct in the proceeding were indicative of genuine remorse, all of which entitled him to a discount in sentence.

14 As against these mitigating factors, however, was the nature and gravity of the offending which the judge correctly described as 'reckless driving of a very high order'. The judge also noted the maximum penalties for culpable driving (20 years) and dangerous driving causing injury (5 years), observed that they are clearly regarded by Parliament as serious offences, and concluded that the appellant's conduct in respect of both offences was 'a serious example of a serious offence'. That finding was plainly open and was not challenged on appeal. It is also to be noted that the appellant pleaded guilty to the more serious form of culpable driving, that is to say, 'reckless' culpable driving under s 318(2)(a) of the Crimes Act 1958 on the basis that he 'consciously and unjustifiably disregarded a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving, as opposed to negligent culpable driving; see R v Toombs.[3]

15 The judge also noted that the appellant had admitted prior convictions, but did not go into them in detail. It is to be noted that the appellant has an extensive criminal record comprising 70 prior convictions from 17 court appearances between May 1992 and November 2005. They include six convictions between May 1992 and September 1999 for driving while disqualified, and two convictions for speeding, one in February 1996 for exceeding the speed limit by 40 to 45 kilometres per hour, and the other in February 2003 for exceeding the speed limit by 30 to 35 kilometres per hour. On seven occasions between 1992 and 2003 the appellant had licences and permits to drive cancelled and on each occasion was disqualified from obtaining a licence for periods ranging from one month (in 2003) to two years (in 1997). And while many of these offences occurred when the appellant was relatively young, the fact remains that his driving record is appalling.

16 In my view, when all of these matters are weighed in the balance, the sentence imposed was plainly open to the judge. The principles in Verdins and Tsiaris did not require that general and specific deterrence be given minimal weight in fixing an appropriate sentence. The mere fact that the appellant was sentenced to a lengthy term of imprisonment does not mean that the judge failed to sensibly moderate specific and general deterrence, or that the sentence was manifestly excessive. On the contrary, a much sterner sentence might well have been imposed on the appellant.

17 I also consider that the order for cumulation was justified in the circumstances because, although the two offences arose from the one episode of driving, there were two sets of victims and the injuries to the driver in the first car were serious. And as to the relationship between the head sentence and the non-parole period, while the judge accepted that the appellant would benefit from a lengthy period on parole to

aid his rehabilitation, it does not follow that the judge was bound to fix a shorter than usual non-parole period. Given the length of the total effective sentence, the effect of the unremarkable non-parole period actually fixed is that the appellant will potentially have two years on parole which is a lengthy period on parole which can aid his rehabilitation. And while the judge might have fixed a shorter non-parole period, I consider that the one fixed was within the range and was appropriate to reflect the minimum term of imprisonment justified in the circumstances.

18 Finally, as to the discount for the guilty plea, it appears from the sentencing remarks that the appellant received a discount of one year (off the total effective sentence and non-parole period), which might seem somewhat modest in the circumstances. Nevertheless, it does not follow that the sentence actually imposed was outside the range.

20 I agree. I add this: Mr Sonnet submitted, for the Crown, and I agree, that the judge was faced with a very difficult sentencing task, and that in undertaking that task, her Honour took a most sensitive approach. As my brother Hansen has remarked, her Honour accepted that in the circumstances the appellant's moral culpability for offending was reduced and that there ought to be moderation of the importance of general and specific deterrence as sentencing considerations. So also her Honour took into account that by reason of the appellant's significant injuries he would find the time served in prison more difficult than would other offenders. I am not persuaded that the individual sentences, the order for cumulation or the non-parole period disclose any underweighing of the matters going in mitigation so as to yield a manifestly excessive sentence.

21 I agree with Hansen AJA and endorse his Honour's reasons. I would add that

in my opinion and recognising all of the mitigatory factors involved, but taking into account even on a moderated basis considerations of general deterrence and denunciation together with the factor of protection of the public, the submission that the sentence is manifestly excessive is not made out. In my opinion, in all the circumstances the cumulation and the total effective sentence were not excessive, let alone manifestly so. In my opinion, the non-parole period was not manifestly excessive. Indeed, I think it was appropriate in the light of all the factors involved including the appellant's criminal history.

22 I would add that I think that it is strongly arguable that the driving licence disqualification period was inadequate, having regard to the consideration of the protection of the public and notwithstanding the other relevant factors that might have been taken into account. However, as the question of re-sentencing does not arise, it is inappropriate to say anything further about that.

24 The order of the Court is that the appeal is dismissed.

[1] [2007] VSCA 32.

[3] [2001] VSCA 144, [34].