DPP v Martinez [2008] VSCA 165

2 I also joined in the dismissal of the appeal for the same reasons as those delivered by Mandie AJA.

3 This is an appeal, pursuant to s 567A of the Crimes Act 1958, by the Director of Public Prosecutions ('the Director') against the sentence imposed on the respondent by the County Court on 24 September 2007. At the conclusion of the hearing of the appeal, this Court dismissed the appeal and indicated that reasons would be delivered later. These are my reasons for joining in the dismissal of the appeal.

4 The respondent was charged with theft of a motor vehicle (to which he had pleaded guilty) and was convicted by the jury on two further counts arising out of his driving of the stolen vehicle, namely, one count of dangerous driving causing death (under s 319(1) of the Crimes Act) and one count of 'failing to render assistance' (under s 61(1)(b) of the Road Safety Act 1986).

5 The custodial aspects of the sentences imposed by the learned sentencing judge were as follows:

• On the count of theft (the maximum custodial sentence being 10 years' imprisonment), a term of imprisonment of 9 months;

• On the count of dangerous driving causing death (the maximum custodial sentence at that time being 5 years' imprisonment), a term of imprisonment of 12 months;
• On the count of failing to render assistance (the maximum custodial sentence being 10 years' imprisonment), a term of imprisonment of 18 months;
• It was directed that 6 months of each of the sentences imposed on the first two of the above counts be served cumulatively upon each other and upon the sentence imposed on the third above count.

6 The respondent thus received a total effective sentence of 2 years and 6 months and he was directed to serve a minimum term of 1 year and 8 months before becoming eligible for parole.

1. The sentences imposed in respect of [the three counts] were manifestly inadequate.
2. In fixing a term of imprisonment of 9 months in respect of [theft], a term of imprisonment of 12 months in respect of [dangerous driving causing death] and a term of imprisonment of 18 months in respect of [failing to render assistance], the sentencing Judge -

(a) failed to adequately reflect the gravity of the offence generally and in this case in particular;

(b) failed to sufficiently take into account the aspect of general deterrence;

(c) failed to sufficiently take into account the aspect of specific deterrence;

(d) gave too much weight to factors going to mitigation;

(e) failed to give sufficient weight to the adverse criminal history of the Respondent.

1. The total effective sentence and the non-parole period imposed .. were manifestly inadequate.
2. In fixing a total effective sentence of 2 years 6 months imprisonment and a non-parole period of 1 year 8 months

imprisonment, the sentencing Judge [here sub-paras (a) to (e) above were repeated].

8 Mr Holdenson, QC, who appeared for the Director, made it clear that the only ground of appeal was manifest inadequacy and that it was not contended that the reasons of the Judge otherwise disclosed any sentencing error.

9 The principles applicable, in considering a Crown appeal, are well accepted[1] and need not be set out here.

10 The relevant circumstances may be summarised as follows and, as such, principally may be drawn from the reasons for sentence of the learned sentencing judge.

11 In the early morning of 7 October 2005, the respondent, then aged 25 years, and a friend ('Vella'), together with two other persons ('Shirreff' and 'Corrie') decided to steal a car. The four of them were driven in Shirreff's vehicle from Mentone to Williamstown where they located a white 1986 Toyota Hilux 4WD vehicle ('the Hilux') which was parked on a property behind locked gates. The respondent squeezed between two gates and gained access to the unlocked Hilux. He started the engine with a spare key. Meanwhile, Vella used bolt cutters in order to open the gates. The respondent drove the Hilux out of the property and Vella got into the passenger seat. The respondent drove the Hilux for some 10 kilometres and, shortly prior to 4.30 am, came to be driving it in a westerly direction along Leakes Road, Truganina (in a semi-rural area near Hoppers Crossing) and was approaching an intersection with Palmers Road. It was dark and both the road and the intersection were unlit. There were trees and houses on the left side of Leakes Road that obscured the view of Palmers Road for a driver approaching the intersection from Leakes Road.

12 As the respondent came towards the intersection, he passed two very large red 'Reduce Speed' signs and, a little closer to the intersection, he passed smaller signs bearing a symbol indicating that he was approaching a give way sign. At the intersection, there was a give way sign.

13 The respondent drove through the intersection without stopping at the give way sign. At about 4.20 am, one William Verhey ('the deceased') had left home to travel to work on his motorcycle and approached the intersection travelling along Palmers Road in a northerly direction. At about 4.30 am, the deceased's motorcycle was involved in a collision with the respondent's vehicle - his motorcycle hit the passenger side door of the Hilux, and flew through the air after the impact. The deceased was thrown off the motorcycle, fell heavily on the road and died almost immediately from internal injuries. The respondent's passenger, Vella, was also injured. The Hilux slid into some water-filled barriers that were partly blocking ingress to Leakes Road on the other side of the intersection and the Hilux overturned.

14 The respondent got out of the Hilux, checked the deceased's pulse and found that there was none. The respondent then assisted Vella and dragged him away from the overturned Hilux. Shirreff and Corrie had arrived in their vehicle by this stage and they all assisted Vella into that vehicle. Apart from attempting unsuccessfully to flag down a passing vehicle, the respondent made no effort to contact any emergency services and the four men drove away leaving the deceased on the road. They travelled to Shirreff's house where he changed the battery in his car. They then travelled to Vella's house in Melton where Vella's wife called an ambulance for him.

15 At the time of the collision, the speed limit on Palmers Road was 40 kph and the speed limit on Leakes Road was 60 kph. Expert evidence was given at the trial that the estimated speed of the Hilux at the point of impact was 70 kph and the estimated speed of the motorcycle was 46-48 kph. Both vehicles were found to have their headlights in operation.

16 The respondent was apprehended and interviewed by the police the same day. The respondent said[2] that he was born on 21 July 1980 and obtained his driving licence at the age of 21. He admitted stealing the Hilux. He said that he was an experienced driver and was familiar with Toyota Hilux vehicles. He said that he was aware that an intersection was coming up and he saw the various signs. He slowed down approaching the intersection and then accelerated in second gear. He said that he did not see the motorcycle at all. He said that he checked the deceased at the scene to see if he had pulse, but he did not, so he knew that he was dead. He said that Vella started screaming and said that he could not feel his legs so he went over to help him. He said that he was in a bit of a panic and did not see any houses.

17 The learned sentencing judge said the facts in the case were very serious. The judge said the victims of the crimes had suffered considerably and the judge referred to the victim impact statements. The judge said that there were some mitigating factors including the early plea of guilty to the charge of theft and the respondent's expression of concern at the loss of life. The judge referred to the respondent's family and work history.

18 The judge referred to the respondent's very numerous prior convictions which included 13 convictions for theft of a motor vehicle and a conviction for exceeding the speed limit. The judge also referred to certain subsequent convictions. The judge referred to the respondent's counsel's submission that he had begun to mature and there was hope for rehabilitation and the judge accepted that there were some grounds for optimism for the respondent's rehabilitation.

19 The judge said that other matters had to be taken into account: deterrence, especially general deterrence, which was of considerable importance in such a case as this one, protection of the community, the likelihood of the respondent re-offending, and the necessity to manifest the community's denunciation of the respondent's conduct and generally to impose a just punishment.

20 The judge accepted the prosecutor's submission that the respondent's culpability was greater than that of Vella in relation to the theft of the Hilux.

21 The judge noted that the respondent's counsel had submitted that the motorcycle driver was partially responsible for the accident and that he was exceeding the speed limit at the time of the accident but the judge said 'the bottom line is that the jury has been satisfied that your driving was a substantial and operative cause of his death.'

22 The judge referred to the respondent's counsel's submission that the Court should impose a fine in relation to the charge of failing to render assistance, given that the respondent took his pulse and did not leave until he had checked whether he had a pulse and that there was nothing else the respondent could have done. The judge rejected those submissions, saying that the respondent was not a medical practitioner and could have called an ambulance and that, even if the deceased was dead, the respondent should not have left the scene of the accident without attempting to contact the relevant authorities.

23 The judge concluded that the offences were without doubt serious and went on to impose the sentences which are now the subject of appeal.

24 Mr Holdenson QC submitted that the sentences imposed, the total effective sentence, and the non-parole period were all manifestly inadequate. He submitted that the sentence of 9 months for theft was inadequate. He submitted that, having regard to the circumstances of the collision and to the respondent's prior convictions, the offence of dangerous driving called for a sentence particularly recognising the need for general deterrence and denunciation and that the sentence of 12 months imposed was inadequate and clearly and egregiously so. He submitted that the sentence of 18 months for failing to render assistance was also manifestly inadequate. The respondent had no medical experience and was not entitled to assume that the deceased was dead. Even if he was he should have notified the relevant authorities. Again, in the circumstances, and having regard to his prior convictions, the need for general deterrence and denunciation of the offence showed that the term of imprisonment imposed was manifestly inadequate.

25 Mr Croucher, of counsel for the respondent, submitted that the sentence imposed for the theft was firm and not inadequate. A term of imprisonment of 9 months with 6 months cumulation was within the range. He submitted that the sentence of 12 months for dangerous driving was comparable with other recent sentences, including some in similar circumstances, and appropriate having regard to the then maximum of 5 years' imprisonment. He submitted that the sentence of 18 months for failing to render assistance was appropriate in all the circumstances and that, while he should have tried to contact the relevant authorities, it was appropriate to take into account the facts that he was in a state of panic and that his passenger, Vella, was screaming in agony and himself requiring assistance. He submitted that the total effective sentence was not outside the range and that the non-parole period was orthodox. In the alternative, even if the sentence was manifestly inadequate, Mr Croucher submitted that, having regard to double jeopardy and to other factors including the age of the respondent, the psychological blow that would be caused by an increased sentence when he was at present eligible for parole early next year, the Court should exercise its over-arching discretion to dismiss the appeal.

26 In my opinion, neither the sentences imposed in this case, nor the total effective sentence nor the non-parole period were such as to shock the public conscience. They were not manifestly inadequate but, rather, were appropriate in the proper exercise of sentencing discretion. As is often said, the question of manifest inadequacy (or excessiveness) does not admit of much argument.

27 I consider that, in all the circumstances, the sentence imposed for the theft and the degree of cumulation, particularly having regard to the early plea of guilty, were both within range.

28 In relation to the sentence imposed for dangerous driving, the circumstances placed the offence at the lower end of the range of seriousness. The collision occurred in a semi-rural area in the early morning, there was no traffic, and the speed was not greatly in excess of the speed limit. There appeared to have been some aspects of the driving of the motorcycle that contributed to the collision. Of course, it cannot be overlooked that the jury found that the respondent drove the Hilux at a speed or in a manner that was dangerous to the public and in disregard of the various signs that he saw when approaching the intersection, with tragic consequences. However the judge recognised the seriousness of the offence in fixing the sentence and degree of cumulation and, in my view, neither was manifestly inadequate.

29 The judge rightly treated the failure to render assistance as the most serious of the three offences of which the respondent was convicted. The respondent's conduct in leaving the deceased on the road and departing the scene was appalling, as the sentencing judge recognised. However, I accept Mr Croucher's submission as to the mitigating circumstances that were also to be taken into account in fixing the term of imprisonment, namely, the respondent's state of panic and the need to come to the aid of his passenger. The sentence was not in my view manifestly inadequate.

30 Looking at the judge's construction of the total effective sentence and non-parole period, I am satisfied that it was not, having regard to the various factors mentioned above, manifestly inadequate. Had my view been otherwise, I consider that Mr Croucher's submissions as to the appropriate exercise of the Court's discretion on a Crown appeal would have been persuasive.

31 For the foregoing reasons, I considered that the appeal should be dismissed.

[1] See R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522; DPP v Johnston [2004] VSCA 150; (2004) 10 VR 85; DPP v Bulfin [1998] 4 VR 114 and DPP v Bright [2006] VSCA 147; (2007) 163 A Crim R 538.

[2] A summary of the respondent's record of interview (he did not give evidence) is conveniently to be found in the Judge's charge.