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[2006] VSCA 281
Court of Appeal (Vic)
2006-12-15
WARREN, C.J., MAXWELL, P. and BUCHANAN, J.A.
Original judgment source is linked above.
CRIMINAL LAW - Crown appeal - Culpable driving - Respondent reading mobile phone - Respondent not travelling at excessive speed - Two passengers dead - One passenger seriously injured - Total effective sentence of four years and six months with non-parole period of two years and three months manifestly inadequate - Appeal allowed - Respondent re-sentenced to total effective sentence of six years and nine months with non-parole period of three years and three months.
1 The respondent, Marcus Stephen Johnstone, was convicted after trial in the County Court at Warrnambool on two counts of culpable driving and one count of negligently causing serious injury. A total effective sentence of four years and six months imprisonment was imposed and a non-parole period of two years and three months was fixed. The Director of Public Prosecutions appeals the sentences pursuant to s 567A of the on the ground of manifest inadequacy.
2 The circumstances of the offending arose from a single vehicle collision that occurred when the respondent was driving a 1993 VR Commodore sedan. The respondent failed to negotiate a sweeping left hand bend on the Cobden - Warrnambool Road and struck a utility pole on the opposite side of the roadway. As a result of the collision, Stephanie McCoy-Brassington, aged 13 years, and Emily Compton, aged 14 years, who were rear seat passengers in the vehicle, died instantly. Another passenger, Jessica McCosh, aged 15 years, also a rear seat passenger, was seriously injured.
3 The roadway approaching the point of collision was a sealed bitumen surface with a single lane provided for traffic travelling in the opposite direction. The speed limit was 100 kilometres per hour with an advisory speed sign of 70 kilometres per hour. The advisory speed sign was displayed to traffic travelling in the direction of the respondent's vehicle when approaching the left hand curve. At the time of the collision it was dark, the road surface was dry and visibility was good. A total of seven individuals were in the vehicle at the time of the collision and a number were unrestrained by seatbelts. Arrangements had been made to pick up some of the passengers from Camperdown. The drive then involved travelling from Camperdown to Warrnambool via Cobden. During the drive the passengers in the back seat, Jessica McCosh, Stephanie McCoy-Brassington, Carl Stankovic - the owner of the car - and Emily Compton were laughing, joking and generally playing around. Their behaviour was distracting the respondent and he warned them to settle down. By the time the vehicle had reached Cobden it was dark. Several mobile telephones were in the vehicle and one was used to pass a text message to the respondent to read as he drove along. The mobile telephone was used by Carl Stankovic to type a message for the respondent. The essence of the message was to ask if the respondent wanted Stankovic to set him up with one of the girls travelling in the rear of the vehicle. Having typed the message, the mobile telephone was passed to the respondent who placed it on his lap. The respondent described that the mobile telephone was passed to him about seven hundred metres from the turn off from Cobden as they travelled on the Cobden-Warrnambool Road. He estimated that at this point, his speed was between 90 to 100 kilometres per hour. Having been handed the mobile telephone, the respondent said the text message read, "Remember how you said you liked Steph earlier? Would you like me to ask her if she wants to go out with you?" The respondent said that in order to read the message he had to take his eyes off the road for three to four seconds at a time.
4 At trial the surviving occupants of the vehicle gave evidence. They confirmed the behaviour of the rear seat passengers on the drive out of Cobden to the effect that it had proved generally distracting to the respondent who had told them to settle down. In relation to the evidence concerning the mobile telephone, one occupant, Alison Miller, said that Stankovic wrote something on the mobile telephone then passed the telephone to the respondent. She said the respondent held the mobile telephone in one hand while his other hand held the steering wheel. Miller said the respondent looked at the mobile telephone for a couple of seconds then looked up at the road. Jessica McCosh gave evidence that Stankovic passed the mobile telephone to the respondent and initially he did not want to take it but when Stankovic persisted the respondent took the mobile telephone. She said it looked as if the respondent was scrolling down or trying to erase the message. She described the respondent as looking up and then down at the mobile telephone and that it may have lasted a few minutes. An additional passenger, Kimberly Warner, said the respondent was typing or texting on the mobile telephone which he held in his left hand while his right hand was holding the steering wheel.
5 The respondent described his position immediately prior to the accident as being on his side of the road but that when he looked up from the phone he had already entered the corner and was starting to drift across the road. He said he saw signs coming and tried to over correct and reach the nearest driver's side, connected on that side and "then it was all over". He said when he looked up after that he saw the power pole coming and "that was the end of it". The respondent told the police later that he had been in the process of deleting the text message when he lost control of the vehicle after looking at the phone for three seconds at a time, before looking back to the road, because the message was lengthy.
6 Following an initial reticence, the respondent provided a full and frank record of interview to the police, in particular, about the circumstances that led to his distraction when driving. He described that he picked up passengers, including Stankovic, who ultimately passed the respondent the mobile telephone with the text message when the latter was driving. The respondent said he allowed so many passengers to board the vehicle because Stankovic was a forceful individual who had been drinking and he, the respondent, feared Stankovic would drive the girls if he refused. It was Stankovic who directed the passengers into the car in the first place. The respondent said that as they were driving, Stankovic was in the back seat tickling Stephanie Mc Coy-Brassington, harassing Jessica McCosh and opening the right hand rear passenger door and threatening to push Emily Compton out of the car. The respondent was familiar with the road, including the bend where the accident occurred. He admitted his concentration levels were not good at the time due to the activities in the car. He admitted that he nevertheless took the telephone from Stankovic because he was "not thinking". He said that he received the telephone and read Stankovic's text message. He was erasing the message by pushing a cancel button with left hand which was holding the phone at the base of the steering wheel. His right hand was at the top of the wheel. The respondent was looking directly down to the mobile phone. He admitted the message was lengthy and he was looking at the phone for about three seconds at a time and then looking up at the road. The message took up the full screen. The respondent lost control of the vehicle while deleting the message.
7 Stephanie McCoy-Brassington and Emily Compton died of injuries sustained in the collision and Jessica McCosh sustained serious injury and was hospitalised. The injuries she suffered included a contused right lung and associated traumatic cysts, fractured ribs, fracture of the liver, laceration of the right kidney and a fracture through the right inferior and superior pubic ramus with an associated fracture of the right sacral ale, a total of three fractures.
8 At trial the Crown case was that the respondent, by using the mobile telephone to read the message sent to him by Stankovic, drove the motor vehicle negligently in all the circumstances in that he failed unjustifiably and to a gross degree to observe the standard that a reasonable driver would have observed in driving the vehicle. The Crown also alleged that the respondent had admitted he was aware of the dangers posed by the use of the phone in those circumstances and chose to ignore them and, in consequence, negligently caused serious injury and death.
9 The Crown case put to the jury was there had been a chain of circumstances progressing from carelessness, by driving a vehicle overloaded with unrestrained passengers behaving in a distracting manner at night on a dark road, to negligence, being the decision to take the mobile telephone, removing one hand from the wheel and deciding to read the message, to gross negligence, being the decision to take his eyes off the road for a period of three to four seconds while driving at 90 to 100 kilometres per hour and paying insufficient attention when he looked up to appreciate the approaching changes in road direction.
10 At the time of sentence the respondent was aged 22. He lived with his mother and half sister. He had two other half sisters. He had grown up with his mother and step sisters at Mortlake, leaving school at year eleven. He did not have a father or father figure in his life. He had a good work record in a variety of employment, mostly as a farm hand or factory hand, and at the time of offending was employed by a dairy business in South Australia. The respondent's employers provided excellent written references to the Court. He had no prior relevant criminal history. At the time of the accident, he was mixing with persons described in a psychologist's report as "unhelpful acquaintances and associations". After the accident the respondent ceased to go out and became withdrawn. There was extensive evidence before the sentencing judge of the remorse of the respondent and the impact of events upon him psychologically, including an assessment of suicidal ideation and depression at the deaths of the two young girls, Stephanie McCoy-Brassington and Emily Compton, and the injuries to Jessica McCosh. The psychologist diagnosed the respondent as clinically depressed and struggling with personal guilt over his survival of the accident as against the victims. Clearly, the respondent demonstrated significant remorse for his conduct and its consequences.
11 The sentencing judge adverted to the range of mitigating factors, the need for deterrence and other relevant factors. Weighing all these matters up, her Honour said she imposed the sentences being a term of three years' imprisonment on Count 1, three years' imprisonment on Count 2 and eighteen months' imprisonment on Count 3. One year of the sentence imposed in respect of Count 2 and six months of the sentence imposed in respect of Count 3 was ordered to be served cumulatively upon each other and upon the head sentence, being Count 1.
12 On appeal, the submission for the Director focussed on the aggravating factors; the vehicle was overloaded with unrestrained passengers engaged in distracting behaviour; the failure to reduce speed when reading the text message; travelling too fast in the circumstances; the ages of the victims; and tolerance of diversion of attention to a point that was deliberate. In addition, the Director submitted that too much weight was given to mitigating factors, in particular, the youth of the respondent.
13 It was submitted for the respondent that circumstances did not exist such as to warrant interference with the sentence. In particular, reliance was placed on the absence of illegal speeding or prolonged bad driving, the absence of excessive levels of drugs and alcohol and the youth of the respondent. Further, emphasis was placed on the behaviour of the victims that was described as calculated to distract the respondent's driving.
14 Tragically, cases of culpable driving continue to come before the Courts. The profile and numbers of young drivers coming before this Court may indicate that the authorities responsible for educating the community as to the consequences of culpable driving are not succeeding.[1] This case is a troubling example, involving two deaths accompanied by injury to another, in circumstances of inexplicable and frightening driving. It is a fundamental principle of driving a vehicle that the driver will remain attentive, alert and focussed on where he or she is travelling. To deliberately divert attention to the viewing of text messages is a serious breach of acceptable driving behaviour. In my view, the culpable element in this matter lay in the viewing of the text messages by the respondent when driving at a high speed, in distracting circumstances. The driver's attention given to the text message and the use of the mobile telephone was the circumstance that made the respondent more likely to have an accident. From another perspective, it might be said that the respondent was already distracted to a certain level but that he consciously accepted another distraction that took his culpable circumstance or factor to another level.
15 Culpable driving constituted by negligence consists of driving involving "such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances, involving such a high risk that death or serious injury would result, that the driving merited criminal punishment".[2] The maximum penalty of 20 years' imprisonment for culpable driving reflects the gravity of the view taken by Parliament in relation to the offence of culpable driving. In turn, the courts have reflected the seriousness of the offence by the imposition of longer terms of imprisonment as "the community will not tolerate the taking of human life by acts of gross negligence".[3] The courts have also recognised that the circumstances of culpable driving will vary and courts should take account of the individual circumstances of each case. With respect to cumulation, it is important that each death be adequately recognised, in both the overall sentence and the non-parole period.
16 There are three issues relating to aggravation to be considered in this appeal: first, the question of the use of a mobile telephone whilst driving and its commensurate culpability; secondly, the involvement of multiple victims; and thirdly, the weight, if any, of the pre-collision conduct of the victims and other passengers.
17 Turning to the use of the mobile telephone, a case involving negligent driving and the use of a mobile telephone culminating in death does not appear to have come before the Victorian Court of Appeal before. I note, however, that consideration of cases of culpable driving not concerned with alcohol or drug use do not seem to have prompted special or different treatment by the Court of Appeal. In R v. Scott[4] Winneke P dealt with a 19 year old probationary driver suffering from fatigue who lost control of a vehicle and struck and killed a motorcyclist. No drugs or alcohol were involved. The President considered that grossly negligent driving, whether it was the product of fatigue and lack of judgment induced by alcohol, or fatigue and lack of judgment produced by lack of sleep, was not a matter of distinction.[5]
18 In many of the cases, alcohol - often combined with speed and dangerous and erratic pre-accident driving - has been a dominant aggravating factor.[6] In three particular cases that have come before the Court of Appeal, different aggravating features were present. In R v. Smith,[7] a 24 year old driver, overtaking in foggy conditions, caused the death of one passenger. No alcohol was involved. An application for leave to appeal against conviction and a sentence of five years' imprisonment with a non-parole period of three years was dismissed. In R v. McLachlan,[8] a 46 year old driver consumed alcohol and then drove his tray truck on the wrong side of the road and hit two cars killing one person and causing serious injury to another. An application for leave to appeal against a total effective sentence of four years and four months' imprisonment and a non-parole period of 18 months was dismissed. In R v. De'Zilwa[9] a 22 year old driver was distracted by the flicking of the car radio dial and was also in a state of undress whilst driving her boyfriend who was asleep in the front passenger seat. Although the vehicle was driven within the speed limit, and the driver said to be alert and cautious, the driver failed to give way at an intersection and struck another vehicle killing the other driver and seriously injuring a passenger. The Court held that where a person is charged with culpable driving the judge should direct the jury that it is required to find "that the driving of the accused involved such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances, and which involved such a high risk that death or serious injury would follow, that the driving causing death merited a criminal punishment."[10] In that case, the Court observed "...There was no deliberate or flagrant disregard of the law or of road signs or for the safety of others as is so often a feature of cases of culpable driving."[11]
19 Analysis by the Sentencing Council of Victoria[12] reveals that, during the period between 1998/99 and 2003/04, the average term of imprisonment imposed ranged from 4.1 years in 1999/2000 to 5.7 years in 2002/2003, an average increase of 1.6 years or 3 percent per year over that period. Of course, the change may be attributed to a pattern of increased penalties marked by decisions of the Court of Appeal, in particular, the remarks of Winneke, P. in R v O'Connor.[13] As recently observed by Ashley, .JA. in R v. Smith[14], the high water mark in sentencing an offender arose in R v. Ioane[15], where a sentence of 12 years' imprisonment with a non-parole period of nine years was imposed.
20 Driving a vehicle in the community involves responsibility. In certain circumstances, the lack of attention to the driving environment - the use of a mobile telephone combined with other factors such as speed and lack of focus - may be as serious as driving under the influence of drugs or alcohol or driving at excessive speeds or erratically. Each case will need to be judged on its own circumstances. As observed in R v. Scott[16] there is not much distinction between fatigue and lack of judgment induced by alcohol and fatigue and lack of judgment produced by lack of sleep.
21 In the present case, there was an accumulation of factors that placed the particular case towards the higher end of culpable driving. The accumulated factors were, as the Crown put its case: driving a vehicle overloaded; unrestrained passengers behaving in a distracting manner at night on a dark road; using a mobile telephone; removing one hand from the driving wheel to use the mobile telephone; reading the text message; the driver taking his eyes off the road for a significant period of three to four seconds while driving at 90 to 100 kilometres per hour; paying insufficient attention and hence failing to see a bend in the road and an approaching pole; and trying to send or delete the text message on the mobile telephone. The behaviour was so serious and dangerous that it warranted a severe penalty. In my view the use of the mobile telephone in the manner operated by the respondent in the prevailing circumstances was a serious aggravating feature of the offending.
22 Turning then to the second issue, the involvement of multiple victims, the Court of Appeal has held that no different principle is involved where the offences result in multiple deaths, save that the maximum penalties available are much greater subject to orders for cumulation not offending the principle of totality.[17] The appropriate approach is to cumulate a "sensible portion" of the sentence imposed for one offence upon the sentence imposed for the other.[18] In this case, the head sentence on count 1 of three years' imprisonment, combined with the order for cumulation of one year of the sentence imposed on count 2 and six months of the sentence imposed on count 3, was both outside the range and did not adequately reflect the involvement of multiple victims. In cases of serious offending generally, severe penalties have been imposed.[19] In R v. McGrath Callaway JA observed:[20]
"Just as there is a wide variety of manslaughters, so there is a wide variety of conduct constituting an offence against s.318. The worst class of case would almost certainly involve the first kind of culpability described in s.318 (2)(a), namely a conscious and unjustifiable disregard of a substantial risk of causing death. I mention that because the maximum penalty prescribed for the offence is reserved for the worst type of case falling within s.318, not the worst type of case falling within s.318 (2)(b), (c) or (d), as the case may be." (Citations omitted).
More recently, Callaway JA observed in DPP v. Ali Aydin and Helmut Kirsch[21] :
"It must always be remembered, however, that a maximum penalty is prescribed for the worst class, or one of a number of worst classes, of the offence in question. On some occasions, when Parliament increases the maximum penalty, that suggests that more severe penalties should be imposed not just for offences falling within the worst class but over a range (not necessarily the whole range) of cases. That is how the successive increases in the maximum penalty for culpable driving causing death have been understood. On other occasions, an increase in the maximum penalty means only that Parliament has thought of a worst class of case for which the previous maximum was inadequate. Moreover, special considerations apply to some offences."
Clearly the appropriate way to address the involvement of multiple victims in this case was through orders for cumulation. The orders made by the sentencing judge did not adequately reflect the involvement of multiple victims.
23 The remaining matter is the question of the pre-collision conduct of the victims and other passengers in the vehicle.
24 As observed in R v. Cowden[22] the complicity of the victims could be seen as a minor mitigatory consideration in accordance with R v. Howarth.[23] However, as again observed in Cowden, in R v. Tran[24] the complicity of victims is to be treated as "the absence of a circumstance of aggravation", and the recklessness of the victims in subjecting themselves to the dangers of travelling with the appellant could be seen as "complicity" and therefore as "the absence of a circumstance of aggravation". However, it is up to the judge, ultimately, to determine "within the limits of a sound discretion" as to the weight to attribute to such complicity.[25] In the circumstances of this case, the behaviour of the victims did not help matters. However, whether it could be put as high as complicity is another matter. The question was clarified in R v. Cowden, as follows:
"...Whether complicity is properly to be described as something which is capable of being a circumstance of mitigation (as it was in Howarth), or as the absence of a circumstance of aggravation (as it was in Tran) we think that the effect for present purposes is the same. Unless complicity is established, a sentencing judge is to proceed on the basis that the victim was not complicit and is to sentence the offender accordingly. Accordingly, if the offender seeks a reduction in penalty on the basis of a victim's complicity, it is incumbent on the offender to establish the victim's complicity on the balance of probabilities, just as it is incumbent upon an offender to establish any other mitigatory circumstance. What is more, as Callaway, JA said in Tran, it is then a matter for the sentencing judge within the limits of a sound discretion, to decide what weight (if any) to attribute to the victim's complicity."
25 In R v. Cowden the Court rejected a contention that the victims' complicity was of more than "little weight". The Court took the view that the sentencing judge was correct in saying that the driver must bear principal responsibility for the actions:
"As driver of the vehicle, the appellant was responsible for his passengers' safety and therefore, as a matter of responsibility, he was bound to repudiate any suggestion by his passengers that he drive the vehicle dangerously or otherwise unlawfully."[26]
26 In Cowden the victims had been drinking with the appellant at a hotel earlier in the evening and had chosen to remain in the appellant's vehicle, aware of the way in which he was prone to drive, when other members of the group of friends refused to get back in the vehicle. One of the victims had assisted the appellant earlier in the day to change the tyres of the vehicle with a view to "drifting" later that day and that victim told friends who delivered him to the collection point that he was going "drifting" with the appellant.[27] In considering a submission that the conduct of the victims was a factor that bore upon complicity and should have been accorded significant weight in mitigation of penalty, the Court of Appeal said:
"We do not agree. If the matter is approached in accordance with the analysis in Howarth each of those matters is of a kind which Brooking JA might have characterised as bearing on the character on the victims - their recklessness as to their own safety - which his Honour said should not be treated as a mitigatory consideration. If the matter is approached in accordance with the analysis in Tran, none of those matters rises any higher than the absence of circumstances of aggravation, and thus to be given such weight as the sentencing judge thinks fit within the limits of a sound discretion. Whichever analysis is adopted, none of those matters was as significant as the victims' urging of the appellant to drive as he did shortly before the collision, and since the latter was properly regarded as having very little weight, the former should be seen as de minimis."[28]
27 Here, in the record of interview, the applicant admitted receiving the mobile telephone from the rear seat of the vehicle; he was aware that only one passenger was wearing a seatbelt; he was aware that he was driving between 90 and 100 kilometres per hour when he lost control of the vehicle; he admitted loss of concentration, that there were too many people in the car and it was too loud. He admitted he had told the passengers numerous times to keep the noise down because it was distracting him but, even so, he accepted the mobile telephone when it was handed to him. He further admitted in the record of interview having been able to read a long sentence on the text message and that he had taken his eyes off the road reading the sentence "piece by piece". He admitted that when he finished reading the message, he was holding the "clear button" in order to "clear the message" and "that's when the accident occurred". The applicant also said that the passengers were trying to read over his shoulder to see the text message and that distracted him also.
28 As was held in Cowden, the driver must bear principal responsibility for his actions. In this case, the driver of the vehicle was responsible for the passengers' safety and was bound to repudiate any distraction by his passengers. In my view, the pre-collision conduct of the passengers should properly have been regarded as having very little weight. It was the respondent as driver who elected to continue to drive at speeds of 90 - 100 kilometres per hour, to receive the mobile telephone and to read the text message whilst driving at a high speed in distracting circumstances.
29 The sentencing judge properly took account of remorse and rehabilitation and the important factors of general and specific deterrence. However, when the sentence is considered in the context of the range of sentences imposed in other culpable driving cases since O'Connor it does not sufficiently reflect the seriousness of each of the offences in this case when consideration is given to the use of the mobile telephone in the overall circumstances and its commensurate culpability, the involvement of multiple victims and the paramount responsibility of the respondent as the driver of the vehicle.
30 The question to be considered is whether the total effective sentence is manifestly inadequate in the circumstances of the case. Here there was no factor of alcohol or drugs or patently wild and erratic driving. However, there were the factors of seriously negligent driving, by the assumption of the risk in accepting the mobile telephone from the rear passenger, and the attenuation of the risk by holding the telephone in a position to read the message with knowledge of diversion of concentration from the road whilst driving between 90-100 kilometres per hour. There was then the exacerbation of the risk by the reading of the message involving multiple periods of three seconds diversion of vision and concentration. The offences, involving as they did, multiple counts, warranted sentences and orders for cumulation reflective of their gravity. In this respect there was error and the respondent falls to be resentenced.
31 In so doing, allowance needs be made for the fact that the appeal is brought by the Director[29] which has exposed the appellant to a form of double jeopardy. In all the circumstances of this matter I would re-sentence the respondent to four years' imprisonment on count 1, three years' imprisonment on count 2 and two years' imprisonment on count 3. It is appropriate that orders be made for cumulation. I would order that two years of the sentence on count 2 and nine months of the sentence on count 3 be served cumulatively on count 1, giving a total effective sentence of six years and nine months. In the circumstances of the respondent - in particular, his youth and prospects of rehabilitation - I would fix a non-parole period of three years and three months.
32 Finally, being a Director's appeal raising a novel issue in culpable driving sentencing, I observe that this matter was of significance. Notwithstanding that significance the Court was largely left to conduct its own research of the relevant authorities and received limited assistance on the Director's side. This may have been due to the limited resources available to the Director. However, as Maxwell P observed in DPP v. Ross[30] it should not fall to the Court to do all the research and the Director ought be adequately resourced so that the Court receives full and helpful submissions.
33 It follows that I would allow the appeal and make orders accordingly.
In R v. McGrath [1999] VSCA 197, a 25 year old driver affected by alcohol struck and killed a cyclist; in R v. Sherpa [2001] VSCA 145, a 20 year old unlicensed driver struck and killed the driver of another vehicle; in R v. Guariglia [2001] VSCA 27, a 26 year old driver drove erratically onto a footpath killing two persons; in DPP v. Solomon [2002] VSCA 106, a 35 year old driver killed two persons; in R v. Caldarera [2003] VSCA 140, an 18 year old probationary driver affected by alcohol drove at high speeds and struck a pole killing two passengers and injuring two others; in DPP v. Clarke [2005] VSCA 2, a 22 year old driver affected by alcohol drove at excessive speeds, lost control killing one passenger; in DPP v. Church [2005] VSCA 8, a 22 year old unlicensed driver affected by alcohol drove through stop signs and red lights at an excessive speed and was pursued by police, before colliding with other vehicles resulting in two deaths; in R v. Rees [2005] VSCA 25, a 39 year old driver affected by sedatives and cannabis drove in an aggressive and dangerous manner, collided with another vehicle when overtaking and killed two passengers in that vehicle and injured others; in DPP v. Miller [2005] VSCA 7, a 41 year old visiting American citizen consumed alcohol and drove on the wrong side of the road, killing a motorcyclist. In R v. Campbell [2005] VSCA 225, a 22 year old driver drove whilst two persons rode on the boot of the car, one fell off and was killed. The driver refused a breath test. In R v. Kennedy [2006] VSCA 77, a 34 year old driver rolled his speeding vehicle after drinking and killed one of his children, a passenger; in R v. Ioane [2006] VSCA 84, a 25 year old driver, after drinking, drove at high speeds through a red light and collided with a vehicle killing two passengers from the other vehicle and injured others; in R v. Yusuf [2006] VSCA 178, a 20 year old unlicensed driver in an unregistered car, drove after drinking, ignoring the requests of passengers to slow down. The driver lost control and caused the death of one passenger and injured others in a collision. In DPP v. Chambers [2006] VSCA 189, an 18 year old unlicensed driver, after using marijuana and alcohol, drove two teenage friends in an unroadworthy vehicle at high speeds. The vehicle hit a power pole, killing one of the passengers and injuring the other. In R v. Cowden [2006] VSCA 220, an 18 year old driver, after drinking and driving erratically for some time caused the death of two passengers; in R v. Wooden [2006] VSCA 97, a 24 year old driver drove after using alcohol and cannabis causing the death of one passenger; in DPP v. Gany [2006] VSCA 148, a 33 year old with an excessive blood alcohol content crashed into a school causing serious injury to a number of children who were playing in the school ground; in R v Ciantar [2006] VSCA 263, a driver with a blood alcohol concentration of 0.260% killed a pedestrian.
See, for example, R v. McGrath (one count, five years' imprisonment with a non-parole period of two years and nine months); R v. Sherpa (one count, seven years' imprisonment with a non-parole period of five years reduced to five years' imprisonment with a non-parole period of three years; R v. Guariglia (two counts, six years for each count with a total effective sentence of nine years' imprisonment with a non parole period of five years and two months fixed); R v. De'Zilwa (one count of culpable driving causing death (resulting in three years' imprisonment) and one count of causing serious injury by negligently driving a motor vehicle that resulted in one year imprisonment with a total effective sentence of three years' imprisonment with a non parole period of six months). In DPP v. Solomon, for two counts, a total effective sentence of seven years with a non-parole period of four years was increased to nine years with a non-parole period of six years; R v. Scott, one count, a total effective sentence of seven years' imprisonment with a non parole period of five years, re-sentenced to a term of five and a half years' imprisonment with a non-parole period of three years; DPP v. Caldarera, two counts of culpable driving, based on gross negligence, two counts of negligently driving a motor car causing serious injury that resulted in total effective sentence of five years and six months' imprisonment with a non parole period of two years and six months. R v. McLachlan, one count, a total effective sentence of four years, four months' imprisonment and a non-parole period of eighteen months; DPP v. Clarke one count of culpable driving and other offences, a total effective sentence of seven years with a non-parole period of four years was reduced; DPP v. Church on appeal, the penalty was increased for three counts of culpable driving causing death (to a total effective sentence of 12 years' imprisonment with a non-parole period of nine years); R v. Rees, two counts of culpable driving seven years' imprisonment each, a total effective sentence of ten and half years with a non-parole period of seven years and four months, an appeal against sentence was dismissed; R v. Miller, one count of culpable driving, a total effective sentence of three years and three months' imprisonment with a non-parole period of one year seven months; R v. Campbell, one count of culpable driving, a total effective sentence of four years six months' imprisonment with a non-parole period of two years for actions when the driver drove two friends hanging off the back of the vehicle, where one fell off during the journey of approximately 150 metres; R v. Kennedy, one count of culpable driving (eight years' imprisonment) and one count negligently causing serious injury gave a total effective sentence of nine years' imprisonment with a non-parole period of seven years leaving the appeal application for a sentencing increase dismissed; R v. Ioane, two counts of culpable driving and other counts resulting in a sentence of seven years' imprisonment on each count and a total effective sentence of 12 years with a non-parole period of nine years reduced on appeal. The original sentence was thirteen years' imprisonment for two counts of culpable driving, two counts of negligent driving causing serious injury and one count of reckless conduct endangering life; R v. Smith, one count of culpable driving, a sentence of five years' imprisonment with a non-parole period of three years, an appeal against sentence was dismissed; R v. Yusuf, one count of culpable driving and one count of negligently causing serious injury was given a total effective sentence of seven years' imprisonment with a non parole period of four and half years; DPP v. Chambers, for one count of culpable driving a sentence of five years' imprisonment was imposed and for one count of negligently causing serious injury, a sentence of two years' imprisonment with a non parole period of three and half years was given. This case involved a young unlicensed driver who consumed marijuana and alcohol, drove and hit a pole causing the deaths of two young passengers. In R v. Wooden, for one
count of culpable driving, a sentence of seven years imprisonment with a non-parole period of five years, appeal allowed for reasons associated with the mental illness of the appellant resulting in a re-sentence to six and a half years imprisonment with a non-parole period of four years. In DPP v Gany [2006] VSCA 148, the offender pleaded guilty to four counts of negligently causing serious injury, one count of reckless conduct endangering persons and one summary charge of having a blood alcohol content which exceeded the prescribed limit. On appeal, he was sentenced to a total effective sentence of three years and six months' imprisonment. In R v Ciantar [2006] VSCA 263, the offender was guilty of one count of culpable driving, one count of failing to stop at a motor accident and one count of failing render assistance. An appeal against the total effective sentence of four years and one month with a non-parole period of 19 months was dismissed.
34 I have had the considerable advantage of reading in draft the reasons for judgment of the Chief Justice. I agree that, for the reasons which her Honour gives, the Director's appeal should be allowed and the respondent re-sentenced as her Honour proposes.
35 I wish to endorse in particular what her Honour says in paragraphs [21] and [22]. I respectfully agree that, in the circumstances of the case, the respondent's taking his eyes off the road, first to look at and then to operate the mobile phone, was a serious aggravating factor of the offending.
36 I agree that the appeal should be allowed for the reasons stated by the Chief Justice and that the respondent be resentenced as her Honour proposes.
[1] A profile of the cases before the Victorian Court of Appeal is set out in Appendix One.
[2] R v. Heron [2003] VSCA 76 [16]; R v. De' Zilwa [2002] VSCA 158.
[3] Winneke P, in R v O'Connor [1999] VSCA 55.
[4] [2003] VSCA 55 at 24.
[5] At [24].
[6] See Appendix One.
[10] Per Charles JA at [46]
[11] Ibid at [49].
[12] Sentencing Snapshot September 2005 No. 6 "Sentencing trends for culpable driving causing death in Victoria".
[14] Ibid at 15 fn 14.
[16] Ibid.
[17] See R v. Guariglia (2001) VSCA 27, [7].
[18] Ibid per Winneke P with whom Brooking and Charles JJA agreed.
[19] See Appendix Two.
[20] At para [16].
[22] Ibid at [21].
[23] [2000] VSCA 94; (2000) 1 VR 593.
[24] [2002] VSCA 52; (2002) 4 VR 457.
[25] R v. Cowden at [23].
[26] Ibid at [27].
[27] Ibid at [30].
[28] Ibid at [31].
[29] DPP v Clarke [2005] VSCA 2.
[30] [2006] VSCA 223 [22].
DPP
Johnstone [2006] VSCA 281
(2000) 1 VR 593
(2002) 4 VR 457