DPP v Clarke [2005] VSCA 2

7. Appeal by the Director of Public Prosecutions appeals, pursuant to s. 567A of the Crimes Act 1958, against the sentence imposed by a judge of the County Court on 21 July 2004 in respect of one count of culpable driving and two counts of negligently causing serious injury, to which the respondent pleaded guilty.

11. At the time of the offences the respondent was 22 years of age and had been licensed to drive and driving since turning 18 years of age. For the last 10 months he had also been keeping company with the deceased, Amanda Avery, who was a young woman of 16 years of age living with her father and stepmother.

14. On Good Friday 18 April 2003 the respondent spent time assisting the deceased at a working bee at the deceased's father's and step mother's home and at the end of the day he stayed on for a barbeque which was put on by the deceased's father. In the course of the barbeque he drank a number of scotch and cokes provided by the deceased's father and after the barbeque concluded he drove the deceased to the home of another young woman, Thalia Glennister, with whom was staying the deceased's young cousin, Laura Charles. While at Ms Glennister's home the respondent shared a bottle of white wine with the deceased and then at 10.20 p.m. he drove the three young women out to buy something to eat.

17. By that stage the respondent had a blood alcohol concentration of at least 0.150 (which is to say three times the legal limit for driving) and his driving was erratic. He misjudged the intersection of Wetherby Street and Walker Road and went sideways across it before continuing on to his house in Station Street, Carrum. He stopped there for a short while, apparently to collect something that he wanted, and then continued on towards the Seaford Station, still driving erratically but now at very high speed down Railway Parade, Seaford. He decelerated a little as the car approached the Seaford Station, but as the traffic lights ahead turned from red to green he accelerated hard again, this time to a speed of 158 kph (in a 60 kph zone), and then lost control of the car as it careered towards another carrying three other people. The respondent's car passed on its side and airborne to the rear of the other car, missing it narrowly, and then lifted up on two wheels and fishtailed to the point of collision with a pole before finally crashing into the fence of a kindergarten on the corner of McRae Street and Railway Parade.

20. Ambulance officers attending the scene found Amanda Avery dead and Lauren Charles with severe life threatening injuries, including a depressed skull fracture, a fracture of the C7 vertebrae, a fracture of the right femur, a fracture of the left femur and tibia and fibular, and internal injuries requiring exploratory surgery. Thalia Glennister was also found to have suffered lacerations and concussion requiring hospitalisation, but the respondent's injuries were minor.

23. After hearing a plea in mitigation the judge imposed a sentence on the count of culpable driving (Count 1) of four and a half years' imprisonment; on the count of negligently causing serious injury which related to Laura Charles (Count 2), of 12 months' imprisonment; and on the count of negligently causing serious injury which related to Thalia Glennister (Count 3), of 6 months' imprisonment. His Honour further ordered that six months of the sentence imposed on Count 2 be served cumulatively upon the sentence imposed on Count 1, producing a total effective sentence of five years, and directed that the respondent serve a minimum of two years and nine months before being eligible for parole. The respondent's licence was cancelled and he was disqualified from applying for another for the next four years.

27. The Director contends that the total effective sentence is manifestly inadequate in respect of both the individual sentences and the degree of cumulation. He submits that it does not adequately reflect the gravity of the offences generally, and in this case in particular, because of the respondent's exorbitant blood alcohol concentration, the extreme speed at which the respondent was driving in a built up area, the death of the deceased, and the effects of the debilitating injuries inflicted on the other victims The Director points to the need for general deterrence of offences of this kind and submits that the sentence imposed is inadequate for those purposes. He also relies upon the need for specific deterrence and submits that the sentence is inadequate for that purpose as well. He contends that the inadequacy of the sentence should be seen as the result of the 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 victims.

31. The respondent contends to the contrary that the sentencing judge addressed each and every one of the factors to which the Director refers and that there is nothing in the judge's sentencing remarks or in the sentence itself that suggests that insufficient or, in the case of mitigating features, excessive weight was accorded to those factors. Indeed, it is said on behalf of the respondent, it is hard to envisage sentencing remarks more apt to meet the particulars relied upon by the Director. Thus, it is contended on behalf of the respondent that, although the total effective sentence and the non-parole period may be thought of as being towards the lower end of the range, when regard is had to the mitigating factors to which the judge referred, the individual sentences of four and a half years, twelve months and six months and the total effective sentence of five years with a non-parole period of two years and nine months are not outside the range.

34. Reference is also made to the recent observations of Eames, J.A. in DPP v Leach[1] that it is only in very clear and rare cases of manifest inadequacy or error that a Director's appeal should be allowed and as to the importance of this court not devaluing or denying the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender might be grasped.

37. In the alternative it is said that the principle of double jeopardy as it applies to Crown appeals means that, even if this court considered that the sentence were inadequate in some respect, the appeal should be dismissed in the exercise of discretion, upon the basis that any sentence that might otherwise be viewed as appropriate would be so close to the sentence actually imposed that the court should decline to intervene.

41. In my opinion the sentences imposed on each count and the degree of cumulation ordered are manifestly inadequate. My reasons are as follows:

1. First, the starting point in this case, as in every case of culpable driving, is that the offence is a species of involuntary manslaughter, and it must be treated as such[2]. The community will not tolerate the taking of human life by acts of gross negligence of the sort that occurred in this case and it expects that those who commit such offences will be sternly punished.

2. Secondly, and whatever be the reasons for the respondent's conduct, his culpability was high. To drive while intoxicated would have been bad enough, but to drive at more than three times the legal blood alcohol concentration limit and at a speed of almost 160 kph (which is to say at a speed of almost 100 miles per hour) in a 60 kph zone was to make death and serious injury odds on probabilities.

3. Thirdly, despite that culpable driving is a tragedy for all concerned, including the parents and loved ones of victims and offenders alike, and despite that no amount of imprisonment or other punishment can turn the clock back to the way things might have been, the frightful consequences of culpable driving and the propensity of young people - particularly young men of otherwise good character - to commit the offence, demand that denunciation and general deterrence be at the forefront of the sentencing synthesis[3].

4. Fourthly, and for those reasons, it must be recognised that youth, an absence of prior offences, general good character and other mitigating considerations, cannot play the same role in sentencing for culpable driving as they may in other cases.

Judged according to those principles, a sentence of only four and a half years' imprisonment, for the sort culpable driving that was committed by the respondent, presents as grossly inadequate.

49. In this case there is then the further consideration that the offence of culpable driving and the offences of causing serious injury were separate offences, albeit arising out of the same substratum of facts, and thus that the sentences imposed on the counts of causing serious injury should have reflected the seriousness of those offences, standing alone. The maximum sentence for the offence of negligently causing serious injury is five years, and in this case the respondent's exorbitant blood alcohol concentration, extreme speed and the serious nature of the injuries inflicted on Ms Charles meant that the offence of causing serious injury comprised in Count 2 was at the serious end of the scale. In my opinion a sentence of only 12 months fell far short of being adequate (even if it were necessary to avoid double punishment by limiting the degree of cumulation). Similarly, in the case of Count 3, although Ms Glennister suffered lesser injuries than Ms Charles, the circumstances of the offence were just as grave and her injuries were considerable. I do not accept that a sentence of only six months may be regarded as adequate.

52. There is as well the question of cumulation. While a judge is not bound in every case of culpable driving to order cumulation of the sentences imposed in respect of multiple counts - as has been said, in the long run the question will often be whether the total effective sentence is manifestly inadequate to the circumstances of the case[4] - in this case the total effective sentence of only five years is indicative of a need for a greater degree of cumulation.

55. The final point is that, while a Director's appeal should be "a rarity"[5] and the principle of double jeopardy as it applies to sentencing appeals may constrain the extent to which this court will increase a sentence on appeal[6], and although there are cases where (because of the effects of the principle) the court may refuse to intervene in the exercise of discretion[7], it is proper for this court to intervene where it is necessary to establish and maintain adequate standards of punishment for crime, or in order to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and sometimes to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience[8]. In my opinion this is one such case.

58. I do no doubt that the learned judge faced a difficult sentencing task, in respect of which of course the sentencing discretion was his alone. As one might expect of his Honour, it is also plain that he was alive to the nature of the difficulties. As his Honour rightly observed in his sentencing remarks, the sentence to be imposed had to reflect the community's denunciation of the respondent's conduct and yet at the same time allow for the respondent's relative youth, lack of prior convictions, general good character, genuine remorse and prospects of rehabilitation. Furthermore, if I may say so with respect, his Honour's sentencing remarks reflect a considered and painstaking approach to the factors urged in favour of and against the respondent and a clearly expressed path of reasoning from his Honour's perception of the significance of those factors to his Honour's sentencing disposition. In that sense counsel for the respondent are correct in their contention that it is difficult to envisage sentencing remarks more apt to meet the Director's particulars. This is not a case of specific error.

61. But all that having been said, and notwithstanding the breadth of his Honour's sentencing discretion, the sentence was in my opinion manifestly inadequate and this court should intervene.

65. I have referred already to the nature and circumstances of the offences and to the degree of the respondent's culpability. The former are grave and the latter is high. It is necessary also to mention the mitigating considerations which were urged in his favour and which are explained in detail in the learned sentencing judge's sentencing remarks. They included:

* A lack of prior convictions apart from a minor conviction that the sentencing judge considered to be irrelevant;

* The respondent's positive good character, remorse and good prospects of rehabilitation.

* The fact that the deceased's mother has forgiven him for the deceased's death and has urged that the court act mercifully.

73. Taking those considerations into account, and attributing to them the weight dictated by the principles to which I have referred, I have concluded that the sentence to be imposed on Count 1 should be six years' imprisonment; that the sentence to be imposed on Count 2 should be two years' imprisonment; and that the sentence to be imposed on Count 3 should be one year's imprisonment. I would

order that nine months of the sentence imposed on Count 2 and three months of the sentence imposed on Count 3 be cumulated upon each other and upon the sentence imposed on Count 1, making for a total effective sentence of seven years' imprisonment, and I would further order that the respondent serve not less than four of those years before being eligible for parole. But for the fact that this is a Crown appeal, the sentence would be higher. I calculate the number of days of pre-sentence detention as being 197 and therefore, subject to anything counsel may say, there should be a declaration to that effect. Finally, I would order that the respondent's driving licence be cancelled and that he be disqualified from applying for another for a period of four years.

79. I agree that this appeal should be allowed. I do so for the reasons advanced by Nettle, J.A. I also agree with the disposition proposed by him.

83. I agree, and for the reasons stated by Nettle, J.A.

87. The order of the Court is that the appeal is allowed. The sentences imposed in the court below are set aside and in lieu thereof the respondent is re-sentenced as follows:

The Court orders that nine months of the sentence imposed on count 2 and three months of the sentence imposed on count 3 be served cumulatively upon each other and upon the sentence imposed on count 1. This would create a total effective sentence of seven years' imprisonment, in respect of which the Court fixes a non-parole period of four years.

The Court declares that the period of 197 days' detention that the respondent has already undergone is to be reckoned as having been served under the sentence hereby imposed. We also confirm the order that the respondent's driving licence be cancelled from 18 April 2003 and that he be disqualified from applying for a period of four years from that date. The Court directs that this declaration and its details be entered in the records of the Court.

A certificate pursuant to the Appeal Costs Act will be granted to the respondent.

[1] [2003] VSCA 96; (2003) 139 A.Crim.R. 64 at [48] and[50] -[51].

[2] R v O'Connor [1999] VSCA 55 at [19], per Winneke, P.

[3] R v Cody (1997) 25 M.V.R. 325, BC9703006 at 10; R v Mc Grath [1999] VSCA 197 at [18] ; DPP v Caldarera [2003] VSCA 140 at [9] - [13]; DPP v Scott [2003] VSCA 25; (2003) 6 V.R. 217 at 223; cf. R v Scholes [1998] VSCA 17; [1999] 1 V.R. 337 at 346[18].

[4] DPP v Whittaker [2002] VSCA 162; (2002) 5 VR 508 at 515 [31].

[5] Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227 at 234; Everett v The Queen [1994] HCA 49; (1994) 181 C.L.R. 295 at 299 and 306; R v Boxtel [1994] VicRp 54; [1994] 2 V.R. 98 at 104; R v Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522.

[6] Griffiths v The Queen [1989] HCA 39; (1989) 167 C.L.R. 372 at 383.

[8] R v Ozenkowski (1982) 30 S.A.S.R. 212 at 212- 3; R v Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522.