DPP v Coleman [2001] VSCA 59

2. I will invite Tadgell, J.A. to give the first judgment in this appeal.

6. In this appeal the Crown alleges inadequacy of sentences imposed on the respondent, Ronald Sydney Coleman, in the County Court on 4 December last year. After a five-day trial the respondent was convicted by a jury on 27 October last of the following crimes, to which he had pleaded not guilty: one count of common assault (count 2); one count of recklessly causing serious injury (count 3); one count of failing to stop after an accident (count 6); one count of failing to render assistance after an accident (count 7).

9. Following a plea in mitigation the respondent was sentenced to three months' imprisonment on count 2, to four years' imprisonment on count 3, to one year's imprisonment on count 6 and to one year's imprisonment on count 7. There was no order for cumulation, so the total effective sentence was one of four years' imprisonment. A minimum term of two years nine months was fixed. A period of 323 days of pre-sentence detention was declared. Any driver licence or permit held by the respondent was cancelled and he was disqualified for two years from obtaining another. An order for taking an intimate sample was made pursuant to s.464ZF(2) of the Crimes Act 1958.

12. After conviction the respondent, who was born on 15 December 1973, admitted 101 previous offences - 92 convictions and 9 findings of guilt without conviction - in 17 court appearances from April 1991, when he was aged 17 years and 4 months, down to July 1998, when he was aged 24 years and 7 months. The prior offences included the following: intentionally damaging property (11 counts); unlawfully damaging property of the Public Transport Corporation (40 counts);

possession of an article with intent to damage property (6 counts); theft (18 counts); handling stolen goods (1 count); robbery (one count); going equipped to steal (1 count); possession of property suspected of being stolen (1 count); failing to answer bail (5 counts); cultivating or possessing or using cannabis (5 counts); unlawful assault (1 count); breach of a community-based order; various street offences; and one count of manslaughter. These previous offences and their nature and the penalties imposed for them are to be noted in evaluating the sentences for the offences the subject of the present appeal. In particular, it is to be observed that the present offences were committed while the respondent was on parole from 15 March 1998 in relation to his sentence of five years' imprisonment for manslaughter imposed in the Supreme Court on 9 February 1996. That last, as we were told, involved a violent episode of affray culminating in homicide with a knife.

16. The present offences were committed on Monday 17 January 2000 in bizarre circumstances which I can shortly summarise. On that day, at approximately half-past four in the afternoon, the respondent drove his motor car, a Datsun sedan, north along Gladesville Boulevard, Patterson Lakes, at high speed. The photographs which were put in evidence show Gladesville Boulevard to be a spacious tree-lined suburban street with houses along either side. It runs north and south and has two carriageways of ample width and on either side of them is a parking lane or bicycle lane of, it would appear, about the width of an average motor car and a half. On either side of those parking or bicycle lanes is a concrete kerb, then a nature strip, then a concrete footpath alongside the fence line of the houses which border the east and west sides of the street.

19. At the time in question two vehicles travelling south, that is to say in the direction opposite to that in which the respondent was travelling in his car, were waiting to execute a right-hand turn westerly into the driveway of 164 Gladesville Boulevard. These were being driven by Peter Lion and his son Benjamin Lion, who had followed each other in convoy to their house at No.164. The two men were, it should be noted, strangers to the respondent. Peter Lion was at the time about to turn into his driveway when he saw the respondent approaching in his vehicle from the south at high speed. Benjamin Lion, Peter Lion's younger son, tooted the horn of his vehicle as the respondent's car went past, attempting to get him to slow down. Peter and Benjamin Lion turned their vehicles into their driveway after the respondent's vehicle had passed. Peter Lion estimated that the respondent was travelling at approximately 80 to 100 kilometres per hour in a 60-kilometres-per-hour zone. The respondent's vehicle skidded to a halt and completed what was described as a "screeching U-turn" a short distance north of No.164. Peter Lion noticed smoke from the tyres as a result of the braking. The respondent then drove back and stopped shortly south of No.164, parked on the opposite side of the road, that is to say on the eastern side, and got out of his car. He then crossed the road to the driveway of No.164, where Peter and Benjamin Lion were standing. The respondent was abusive and swore at them about the tooting of the car horn. The respondent was at that stage carrying a piece of wood in his hand that he had taken out of his car. Having been an exhibit at the trial, it was produced to us and it had the appearance of a piece of broom handle, something between a foot and fifteen inches in length. The respondent yelled words to the effect (excluding expletives) "Who do you think you are, the police?" He walked up to Peter Lion, punched him in the face, causing a laceration to the inside of his lower lip, and struck him on the arm with the wooden baton. A fight then developed between the respondent and Peter and Benjamin Lion. During the fracas the respondent beat his chest with his hands and issued a threat that he would return and "totally demolish the place" and them as well. The respondent was also punched and held to the ground for a time by the Lions, particularly, I think, by Benjamin Lion, before he broke free and went back to his car, leaving the wooden baton behind. He continued to abuse and swear at Peter and Benjamin Lion, who described him in evidence as having acted throughout in an hysterical manner. Upon returning to his car the respondent drove away in a southerly direction and parked a short distance along the road on the side.

22. At about this time the elder son of Peter Lion, Christopher, almost 21 years old, arrived home in his car, which was a blue Suzuki four-wheeled drive vehicle. This he parked at the end of the driveway of No.164, adjacent to the nature strip. Upon alighting he asked his father what was going on. Before any reply could be given to him, the respondent, who had in the meanwhile executed what was described again as a "screeching U-turn", travelled back northerly towards No.164 and deliberately swerved from the main carriageway, partially at least in the parking lane, and struck Christopher Lion with his vehicle. There was some debate before us as to the exact place where Christopher Lion was standing when struck. Benjamin Lion in his evidence had Christopher standing with one foot on or near the house number which was painted on the kerb in black figures on a white ground and the other on the nature strip. Peter Lion, on the other hand, in his evidence conceded in cross-examination that Christopher might have been standing further out into the parking lane than Benjamin Lion in his evidence placed him. At all events, Christopher did not see the car driven by the respondent when it swerved into the parking lane for he had his back to it. The vehicle was estimated to be travelling, by some witnesses, at between 60 and 70 kilometres per hour and, by another, at about 50 kilometres an hour, at the point of impact.

25. The collision precipitated Christopher Lion into the air and on to the near-side windscreen pillar of the respondent's vehicle. He came to rest on the edge of the road, probably in the gutter, after his head had struck the gutter. The respondent made no attempt to stop and accelerated away at high speed. Mrs Lion, in the house, had in the meantime called the police on account of the fracas, who intercepted the respondent a few hundred yards north of the scene in Gladesville Boulevard while he was driving his vehicle away.

28. The respondent was interviewed at the Chelsea Criminal Investigation Unit later in the day, where he stated that he had stopped his car after hearing the car horn sound as he drove past. He admitted that he then got out of his car and was involved in a fight with Peter and Benjamin Lion. He denied being armed with a piece of wood and asserted that he was acting in self-defence. He stated that he left the scene and then, believing that he was being motioned to stop by Christopher Lion, swerved into the parking lane to stop but ultimately decided not to stop and swerved out of the parking lane, unfortunately striking the victim in the way. He stated that he "half expected" Christopher to jump out of the way. The respondent stated that for his own safety he did not stop and assist after the collision.

31. Christopher Lion was treated at the scene by MICA ambulance officers, who formed the impression that the injuries he suffered were possibly life threatening. He was stabilised and then flown by air ambulance to the Alfred Hospital, where he underwent emergency surgery for serious closed head injuries. His skull had been broken in two places. He remained in intensive care in a coma for several weeks, during which period his condition was critical. When his condition improved slightly he was moved to a high dependency care ward but without having regained consciousness. He came out of his coma after some two months but was partially paralysed down the right side of his body. He showed no signs of recognising his family members and was unable to speak on account of a tracheotomy. On 4 May 2000, that is to say some three-and-a-half months after the traumatic incident, Christopher Lion underwent further surgery for re-attachment of parts of his skull that had been medically removed in order to reduce swelling of his brain. He spent some eight-and-a-half months in hospital recuperating from his trauma, which left him with permanent brain injury. The injuries have affected short-term memory, speech and general cognition skills. It is said that he will require daily support for the long term.

34. So much is to describe only summarily the relevant events of 17 January last year and to catalogue their consequences in a largely clinical fashion. The summary, however, cannot begin to describe the devastating catastrophe which has been wrought by the respondent upon Christopher Lion and upon his family and, in a certain sense, upon the community at large, which has been deprived of his services as a citizen of the kind he would have been capable of giving. Some impression of these matters can be derived from the victim impact statements that have been made by Christopher's father. I shall take a little time, unusually, to read some excerpts from those. Peter Lion has said that the incident in which Christopher was involved has really ruined their family life. After the accident the family, he says, endured 27 days of intensive care, looking after Christopher. On the first four nights he had to be revived with noradrenalin as his heart kept stopping. "By the fourth night", he says, "we prayed to God to take him, as Chris needed to be free. We could not bear to see him trussed up like this, even his eyes were taped over." Then " ... night after night for two months we hardly slept or ate as we talked to each other through the day's events. We would get to the hospital at 9 a.m., leave at 11 a.m., go home or work and then go back at about 5 p.m. and stay till about 9.30 p.m. This was our routine for two months ..." "Our lives have been changed forever. We cannot leave Chris alone as he gets depressed. We have shut out the world, even our families, as we are sick of the questions. We have become a bit reclusive". "We worry about what will happen to Chris when we're gone. He will need emotional support for the rest of his life. Even as he gets older he may have to live in a residential accommodation situation. We hold grave fears for his future, but on the opposite side, he may improve slightly with time ... Luckily we have a strong marriage and we are able to cope as long as we can get time for ourselves."

37. The respondent gave no evidence at his trial and called no other witnesses, and he gave no evidence upon his plea. There was, therefore, no rational or other explanation by him or on his behalf of what it was that motivated his conduct in driving his vehicle towards Christopher Lion. Clearly enough, however, it was a deliberate act, and that was not gainsaid by his counsel. A taxi driver who claimed to have witnessed the incident described the respondent's vehicle as making a "very sharp veer" to the left towards the kerb. On any view the driving was of a most erratic kind. The respondent's police interview provided no sensible reason for the behaviour, even if it did give some explanation of his initial contretemps with Peter and Benjamin Lion after the sounding of Benjamin Lion's motor car's horn.

40. The learned sentencing judge was moved in his sentencing remarks to characterise the respondent's offences as "serious" and as resulting from "wanton, reckless conduct", and his Honour referred briefly to the effect on Christopher Lion and his family. One cannot but agree with this description, so far as it goes, but it scarcely brings home the outrageous and rebarbative nature of the respondent's behaviour. He engaged in actions of social irresponsibility of an extremely high order by displaying an astonishing disregard for the welfare of others and an utter indifference to the results - most grievous as it turned out - that might be produced. In the absence of rational explanation for what the respondent did to Christopher Lion, and paying attention to the respondent's antecedents, I cannot help but think that it was conduct that stemmed from a marked lack of self-discipline and a degree of self-indulgence that completely disregarded the welfare of other members of the community, producing as it did the tragic and needless ruination of a young life. How am I driven to make these stark and pointed comments, and why? I shall explain how and why.

43. The public community relies upon the courts to try to teach, by the solemn procedures of the criminal law, certain minimum standards of morality and behaviour. The courts act as an agency for the expression of public indignation and condemnation. They do so as a force intended to operate to produce cohesion within a civilised society. I am quite sure that this Court would be in serious dereliction of its duty if it did not take the very grave view of the respondent's conduct that I have expressed of it. In my opinion this was an atrocious case of recklessly causing serious injury by the sheer and unpardonable abuse of a motor car. Let it therefore be widely known and clearly understood that there is no room in our society for road rage. Nor is there room for a person who, when he climbs aboard a motor car, insulates himself from the world behind a screen of metal and glass and behaves as he likes with arrogance and selfishness. The unceasing proliferation of motor vehicles in our society and on our roads demands that those using them take a correspondingly increasing degree of care in doing so. The respondent, instead of taking care, not only scorned the notion that he should do so but used his own motor car in effect as a weapon. He could hardly have acted in a more potentially lethal manner towards Christopher Lion had he used a firearm to maim or attempt to kill him. I go so far as to say that it would not have been surprising to see the respondent charged with a far more serious offence than that levelled against him by way of count 3.

46. It is trite, but in this case I take leave to mention it, that the Sentencing Act 1991, by s.5(2AC)(2), requires the court in sentencing an offender to have regard, amongst other things, to the nature and gravity of the offence, the offender's culpability and degree of responsibility for the offence, the personal circumstances of any victim of the offence - and here the victims were not only Christopher Lion but members of his family - and the offender's previous character. The court must also take account of the presence of any aggravating factor as well as any mitigating factor and any other relevant circumstances.

49. In this case the grounds of appeal were two: first, that the sentence imposed on each count, the total effective sentence and the non-parole period were manifestly inadequate; secondly, that the order of the learned sentencing judge for total concurrency of the sentences imposed in relation to counts 2, 3, 6 and 7 was inappropriate.

52. There are some particulars of ground 1 that were objected to on behalf of the respondent, namely the particular that the offence charged by count 3 was a particularly serious example of that offence with respect both to the degree of recklessness and the seriousness of the injuries suffered, and also the allegation that the judge gave insufficient weight to the need to protect the community. Mr Holdenson, for the respondent, said that it was not sensible to talk about degrees of recklessness in this connection, just as it was not appropriate to talk about degrees of negligence or degrees of intention. Although it is commonly said that it is not useful to talk about degrees of negligence in the civil context, it seems to me that it is entirely appropriate to speak of a degree of recklessness in a context such as this when one is deciding what penalty should be awarded for the conduct in question. As I have indicated, this was, in my opinion, a very bad case of its kind, showing a high degree of recklessness on the part of the respondent.

55. It is also said that the Crown ought not to be heard to complain on this appeal of the judge's failure to give sufficient weight to the need to protect the community. This, it was submitted, was so because upon the plea the prosecutor had not mentioned the need to protect the community, and that therefore, this Court should not countenance the alleged shortcoming of the sentence upon that footing. Mr Holdenson referred to The Director of Public Prosecutions v. Bulfin[1] as supporting his submission. Reference to that decision at pp.180-190, far from supporting the submission, in my opinion refutes it. Certainly it is acknowledged in Bulfin's decision, and in other cases referred to in the judgment of the learned President, that it is not open to the Crown to adopt one attitude upon a plea and seek to adopt an opposing attitude upon a Crown appeal. That is not a surprising notion. The Crown ought not to be allowed to blow hot and cold, once in the plea and once upon an appeal; nor should the Crown be allowed to withdraw concessions made upon the plea for the purpose of putting an opposite position upon appeal; nor, indeed, should the Crown be entitled to withdraw concurrences expressed in the course of plea for the purpose of putting a different position on appeal. Simply, however, to say nothing on the plea of the need in sentencing the prisoner to protect the community does not offend those principles at all. It was as plain as it could possibly be to everyone, I should have thought, upon the plea that one of the cardinal necessities in sentencing this man was to protect the community by giving effect to the principle of general deterrence. The judge had no need to be reminded of that, and the prosecutor had no need to say it. It is, I think, open to the Crown upon this appeal to complain that the sentence imposed did not pay sufficient heed to the undoubted need to protect the community against conduct of the kind in which the respondent engaged.

58. As to the degree of recklessness, assuming it was to be taken into consideration - and in my opinion it is - Mr Holdenson sought to characterise it as small. It is said by him to be the product of a split second's inadvertent conduct. One might take the view that Christopher Lion had the misfortune in a split second, and the respondent had the misfortune in a split second, to converge, causing this grievous incident. On any view, however, as I have sought to say, the driving was exceedingly erratic and the respondent's vehicle very sharply veered to its left shortly before the collision. One is really driven to the conclusion that the respondent used his vehicle for the purpose of assault, at least to instil fear into the members of the Lion family who were standing outside their house, if not to carry out, or to scare them into the belief that he would carry out, his earlier expressed threat of demolition. That, it seems to me, is a cardinal aspect of the case and in my opinion it renders count 3 a very grave example of its kind.

61. There can be no doubt in a case like this that the principle of general deterrence is of primary importance. I refer only in that connection to the statement of Callaway, J.A. in R. v. Brooks[2]. His Honour said:

"General deterrence is usually a matter of primary importance in driving offences that result in death or serious injury. ... General deterrence is, of course, subject to proportionality and other factors are by no means excluded. In exceptional cases they may even predominate, but in most cases the need to deter others limits the leniency that might otherwise be extended and diminishes the weight to be accorded even to rehabilitation achieved and in prospect."

Those sentiments have particular application here. Indeed, in that connection, the present is a paradigm case. It is, in my opinion, necessary, as I hope what I have said will have conveyed, to send out a strong message that conduct such as that in which the respondent engaged is intolerable in a civilised community and will be dealt with condignly by the courts.

66. I have no doubt that the sentence on count 3 was manifestly inadequate. Its inadequacy leaps from the page when all the circumstances are considered. I would allow the appeal on that ground alone.

69. I am of opinion also that a measure of cumulation was called for in the sentences that were passed. Mr Holdenson sought to characterise the conduct of the respondent as a single incident, albeit multi-faceted. I disagree with that. There was debate whether there should, for the purposes of sentencing, be two or three incidents discernible on the day: one, the assault on Peter and Benjamin Lion by the respondent; two, the recklessly causing serious injury; three, the failure to stop and render assistance. In the view I take of the case there were, on any view, at least two discrete incidents which were deserving of individual condemnation and punishment. If this were not a Crown appeal I should be inclined to order some accumulation in respect of counts 6 and 7, but, as it is, I think justice will be served by ordering a measure of cumulation in respect of counts 2 and 3.

72. Reference was made to a number of matters personal to the respondent which should affect the sentence to be imposed upon a re-sentencing by this Court. Among these were his emotional and physical abuse as a child, his disadvantaged childhood and upbringing, his endeavour while serving his term of imprisonment for manslaughter to improve himself and his skills and, subsequent to his release from prison, his obtaining a measure of useful employment. It was said that he therefore has good prospects of rehabilitation. This I should not doubt. After all, he is a man of only some 27 years of age now. I must, however, bear in mind what was said in Brooks's Case as to the necessity to deal with a case like this condignly, that is to say, appropriately. As it is, I would propose that the sentences below be set aside and that the respondent be re-sentenced as follows. First, since I consider that the sentence imposed below on count 2 was inadequate, although not necessarily manifestly so, I would increase it to one of 12 months' imprisonment. The manifestly inadequate sentence on count 3 should in my opinion be increased to one of six years' imprisonment. I would re-impose the sentences of 12 months' imprisonment for each of counts 6 and 7. I would further propose that six months of the sentence on count 2 be served cumulatively upon the sentence on count 3. That would produce a total effective sentence so far of six-and-a-half years.

75. The question arises whether s.16(3B) of the Sentencing Act 1991 should be allowed to apply so that the outstanding imprisonment which the respondent must

serve in respect of the manslaughter conviction should be served cumulatively upon the sentence that I would propose. We are told that he is not due for release in respect of the manslaughter sentence until 25 September 2002. If that sentence and the sentences I now propose were to be served cumulatively upon one another, the result is likely to be a crushing sentence. Having regard to that, and particularly in view of the fact that this is a Crown appeal, I would propose that this Court direct that the sentences that I propose be served concurrently with any other sentence which the respondent is to serve. I would propose a minimum term of 4½ years' imprisonment.

80. I agree, for the reasons given by Tadgell, J.A., that this appeal should be allowed, that the sentences below be quashed and that there be substituted for those sentences the sentences which Tadgell, J.A. has proposed. I simply note that for my own part, and indeed for the Court's part, those sentences have been moderated from what they otherwise would have been had it not been for the fact that this is a Crown appeal and that the respondent is standing for sentence a second time. To that extent he is doubly jeopardised.

89. The formal orders of the Court will be as follows:

The sentences imposed by the County Court are quashed and in lieu thereof this Court imposes the following sentences -

on counts 6 and 7 - one year on each of those counts.

We order that six months of the sentence which we impose upon count 2 be served cumulatively on the sentence which we impose on count 3. The total effective sentence will therefore be one of six years and six months. We order that the respondent serve a minimum period of four years and six months before becoming eligible for parole.

Otherwise we will confirm the orders made by the learned sentencing judge regarding cancellation of the respondent's licence and the period of disqualification from obtaining another licence, namely the period of two years.

We direct that the sentences which we have imposed be served concurrently with any sentence of imprisonment currently being served by the respondent.

We declare pursuant to s.18 of the Sentencing Act 1991 that the time already served pursuant to this sentence is 472 days, which includes the time served between the date of the original sentence and today's date, and we order that the fact of this declaration and its details be entered in the records of the Court.

We will grant to the respondent a certificate pursuant to the Appeal Costs Act.

[2] [2000] VSCA 188 at [21].