DPP v Miller [2005] VSCA 7

Court of Appeal (Vic)|2005-02-03|Before: VINCENT and NETTLE, J.A. and CUMMINS, A.J.A.

Criminal law - Sentencing - Director's appeal - Culpable driving causing death - Alcohol and fatigue - Exceptional circumstances - Respondent overseas national on short visit and for lawful purposes - Appeal dismissed.

This is a Director's appeal pursuant to s.567A Crimes Act 1958 from a sentence imposed in the County Court upon the respondent for one count of culpable driving causing death. The respondent pleaded guilty and was sentenced to imprisonment for the period of 3 years and three months, with an order that he serve a minimum term of imprisonment of 1 year and 7 months before becoming eligible for parole. The ground of the appeal is that the sentence was manifestly inadequate.

The offence of culpable driving occurred on the Great Ocean Road, Victoria some 5 kilometres west of Lavers Hill on 14 February 2004. The respondent was driving a motor car west when the vehicle proceeded across double lines wholly on to its wrong side of the road and hit a motorcyclist riding east on the correct side of the road. The rider died shortly afterwards. At the time of the collision the respondent's vehicle was travelling at approximately 87 kilometres an hour in a 100 k.p.h. zone, the respondent had a blood alcohol level of around .1%, and he was fatigued in circumstances to which I shall come. The respondent was a citizen of the United States, having arrived in Australia the previous day from Georgia, U.S.A. for lawful business purposes. He was 41 years of age. He is now 42. The deceased was also a citizen of the United States. He was an urban planner from Florida. He was 55 at the time of his death.

The sole ground of appeal is that the sentence imposed was manifestly inadequate. Particulars provided of that ground are:

In imposing a head sentence of 3 years and 3 months' imprisonment and in fixing a non-parole period of 19 months, the learned sentencing judge - (a) failed to adequately reflect the gravity of this offence generally and in this case in particular; (b) failed to take into account or sufficiently to take into account the aspect of general deterrence; (c) failed to take into account or sufficiently to take into account the aspect of specific deterrence; (d) gave too much weight to factors going to mitigation; (e) gave insufficient weight to the Respondent's relevant prior criminal history; (f) gave insufficient weight to the applicable maximum penalty for this offence (20 years' imprisonment); and (g) gave insufficient weight to the effects of the Respondent's offending upon the deceased's family."

A summary of the relevant proceedings is as follows.

On 15 February 2004 the respondent was charged with culpable driving causing death and a number of lesser charges. He was remanded in custody on that date. On 16 July 2004 at the Magistrates' Court at Melbourne the respondent was committed to stand trial on one charge of culpable driving. The respondent indicated an intention to plead guilty to that charge. The matter proceeded by way of hand-up brief.

On 4 October 2004 the respondent was presented in the County Court at Melbourne on the charge of culpable driving causing death and pleaded guilty. The count particularised both the negligence and the alcohol limbs of s.318 Crimes Act 1958. The respondent also pleaded guilty, pursuant to s.359AA Crimes Act 1958, to two summary offences, namely failing to keep to the left of dividing lines and refusing a preliminary breath test and was fined $200.00 and $400.00 respectively for those offences. Nothing further need be said about them. A s.18 Sentencing Act 1991 declaration as to 235 days' pre-sentence detention was made on the sentence of imprisonment.

The respondent admitted five prior convictions from five previous court appearances in the United States of America, including two prior convictions for driving under the influence of alcohol and one prior conviction for driving while intoxicated. I shall return to those matters in paragraph 22 below.

The fatal collision occurred at 6.35 pm on Saturday, 14 February 2004, on the Great Ocean Road, approximately 5 kilometres west of Lavers Hill. The respondent had arrived in Melbourne from the United States the previous day. He left Atlanta, Georgia at 9.55 am on Thursday, 12 February 2004, Australian Eastern Standard Time (AEST), and flew to San Francisco, where he arrived at 12.20 pm AEST. He departed from San Francisco at 2.20 pm AEST and arrived in Sydney at 7.45 am on Friday, 13 February 2004 (AEST). He left Sydney at 9.40 am and arrived in Melbourne at 11.10 am. The respondent was a project engineer and came to Melbourne for purposes of his business in that field.

A business associate, Mr John Shaw, met the respondent at the Melbourne Airport. The respondent hired a 2003 silver BMW sedan, and followed Mr Shaw to the Monte Villa Motor Inn, in Hoppers Crossing. After the respondent had checked in, Mr Shaw drove the respondent to business premises in Laverton, where the respondent was given a tour of the factory. After the tour, the respondent and Mr Shaw had lunch, during which the respondent consumed a stubby of light beer. After lunch the respondent returned to his motel room. He purchased six 375 ml bottles of Crown Lager full strength beer from the motel, and consumed a number of them in his room prior to meeting Mr Shaw that evening.

At approximately 7.30 pm, Mr Shaw met the respondent in the bar of the motel, where the respondent was drinking a stubby of Cascade full strength beer. Mr Shaw drove the rented BMW from the motel to Lygon Street, where he and the respondent ate dinner at a Japanese restaurant. During dinner, the respondent drank 3 or 4 stubbies of full strength beer. They left the restaurant at approximately 10.30 pm, and attended the Men's Gallery and Goldfingers in the city, where the respondent drank one full strength stubby of beer.

Mr Shaw drove the respondent back to his motel at Hoppers Crossing at around 1.00 am Saturday. Mr Shaw described the respondent at that time as follows:

"I would describe him as being pretty stuffed. He was affected by alcohol and tired as well. I was trying to give him directions for his trip along the Great Ocean Road and he appeared to be too tired to really take the information in. He told me he had a few Xanax tablets on the plane, which I believe are sleeping tablets, which may also have affected him."

The respondent had in fact slept for some 4 hours on the plane flight from the United States. At the motel the respondent did not drink further alcohol and went to bed. He awoke at about 9.00 am and ate breakfast. At 10.00 am he left the motel to drive along the Great Ocean Road in his rental vehicle. The respondent drove to Torquay, where he stopped for 5 minutes, then continued to Bells Beach, where he stopped for approximately 20 minutes. He continued driving towards Lorne, stopping briefly at several lookouts along the way. At 2.58 pm in Lorne, the respondent purchased a six pack of Boags Premium full strength beer from the Foodworks Supermarket. He continued driving towards Port Campbell, consuming at least four stubbies of beer along the way. The respondent stopped at several lookouts, and at approximately 6.00 pm was observed by Mr D. Lang at a lookout approximately 3 kilometres south-west of Lavers Hill. Mr Lang stated he observed the respondent admiring the view and drinking out of what appeared to be a stubby of beer. He said the respondent stayed for about two or three minutes and then got into a silver or grey late model sedan and left the car park. He stated:

"He drove off in a south-west direction. As he did this, he drove off with very quick acceleration which gave me the impression that the vehicle he was in was high powered. As he drove off, I observed he was driving on the right-hand side of the road and he was going around a bend at the time. The road here is divided by a white line, I think it is actually a double white line."

At 6.35 pm the respondent was travelling west along the Great Ocean Road, approximately five kilometres west of Lavers Hill. He was negotiating a sweeping right hand turn bend and driving on the wrong side of the road and over double lines when the respondent collided head on with the deceased, Mr Henry Skokowski, who was riding a 2001 Honda motorcycle. As a result of the collision, Mr Skokowski received fatal injuries. He died in the air ambulance on the way to the Austin Hospital.

At the time of the collision, Mr J.K. Vaughan was riding a motorcycle two to three car lengths behind the deceased, with his wife as a pillion passenger. Mr Vaughan stated:

"The next thing I saw was a car come around the bend and hit the rider in front of me. The car hit the motor bike in front of me and I saw flames blow up ahead from the collision. I had to dodge the car and the bike which was sliding towards us along the Armco railing. I didn't have much room and I had to travel over to the other side of the road, crossing the double white lines to avoid being hit by the car. The car was sliding against the Armco railing, with the motor bike in front of it. I didn't see the rider come off the bike, and I was too busy trying to get out of the way of the car ... The BMW which hit the motor bike rider was on the wrong side of the road and, in my opinion, the car was full width on our side of the road across the double lines. There was nothing that the motor bike rider could do to avoid the collision, because of the Armco railing along the road."

At about 7.20 pm Sergeant Hand of the Apollo Bay Police Station attended the scene of the collision. He conducted a preliminary breath test on the respondent, which revealed the presence of alcohol in his blood. At approximately 8.10 pm, the respondent was conveyed to the Port Campbell Police Station. During the 35 minute trip from the collision scene to the station, Sergeant Hand and Senior Constable Thompson observed the respondent sleeping in the back seat of the police car for the majority of the trip. Both police officers observed the respondent smelt strongly of intoxicating liquor, and appeared very weary and tired.

At 9.00 pm police commenced a tape recorded interview with the respondent. The respondent refused to undergo a breath analysis test. He was showing signs of extreme tiredness, and requested an opportunity to lie down, sleeping from about 9.45 pm until he was woken at midnight. He was then interviewed by police. He told them that he had never driven a right hand drive vehicle before Friday, 13 February 2004, and had previously driven in jurisdictions with left hand drive on only two previous occasions. He had come to Australia the previous day and had intended to stay for ten days. It was his first visit to Australia.

At 10.28 pm, police from the Major Collision Investigation Unit attended the scene of the collision. During an examination of the respondent's vehicle, police located two empty stubbies of James Boags Premium full strength beer under the front passenger seat, two full stubbies of Crown Lager full strength beer under the front driver's seat, and two empty stubbies of James Boags Premium full strength beer inside a plastic bag on the back passenger seat, along with the empty cardboard packaging of a six pack of James Boags stubbies. Police also located two bottles of prescription medicine in the boot of the car, one labelled "Antabuse" and the other labelled "Amoxicillin", both bearing the respondent's name. Antabuse is a drug used in the treatment of chronic alcoholism, to ensure an alcohol-free state in non-drinking alcoholics.

Dr Morris Odell, Senior Forensic Physician with the Victorian Institute of Forensic Medicine, analysed the evidence in this case, and provided an opinion. Dr Odell concluded as follows:

"1. [The respondent] was an alcoholic who was driving after having consumed alcohol ... 2. He had a blood alcohol concentration in the vicinity of 0.1 per cent at the time of the collision. 3. He was extremely tired as a result of `jet lag' and this was made worse by the effects of alcohol. 4. He was driving an unfamiliar route on what was, for him, the wrong side of the road. 5. His driving skills would have been adversely affected by the combined effects of the above factors at the time of the collision."

An examination of the scene revealed gouge marks in the bitumen surface of the eastbound lane of the Great Ocean Road, and a series of scrape marks on the Armco railing opposite the location of the gouge marks. Various items of debris were located in the eastbound lane. The location of the gouge marks, combined with the area of impact damage to the vehicles, placed the respondent's vehicle completely within the eastbound lane of traffic at the time of the collision. An accident reconstructionist, Senior Constable Urquart, concluded as follows:

"It is my opinion that at the time of the collision the BMW was travelling at a speed of about 87 kph on the incorrect side of the road when it collided head-on with the motorcycle. The speed of the motorcycle at impact was about 94 kph. It would appear that as the motorcycle had not significantly reduced speed or taken evasive steering action, that the rider of the motorcycle had not had sufficient time to perceive a danger and react to it."

Nothing adverse in the condition of the road caused or contributed to the collision. A post mechanical inspection of the respondent's and deceased's vehicles revealed both were in a roadworthy condition, and there were no mechanical faults in either vehicle that would have caused or contributed to the collision. At the time of the collision the weather was fine, the road was dry, it was daylight and the traffic was medium. The respondent was the holder of a full and current driver's licence in the State of Georgia in the United States of America.

The respondent had five prior convictions. They were driving under the influence of alcohol, in Georgia, U.S.A., in 1979 when the respondent was 17 years of age; driving under the influence of alcohol, in Georgia, U.S.A., in 1981 when he was 19 years of age; driving while intoxicated, in Florida, U.S.A., in 1987 when he was 25 years of age; following too close, in Georgia in 1989; and striking an unattended vehicle, in South Carolina in 1991. On the first two convictions the respondent's licence was suspended for 15 months and for 4 weeks respectively. On the third, the respondent was released on probation for one year with a condition that he attend "DWI School" and was fined $380.00. Thus the respondent's last alcohol-related driving conviction was some 17 years prior to the fatal collision on the Great Ocean Road. The respondent had legally been driving since he was 16 years of age.

The respondent was an alcoholic. He had a good work history and a loving family but had a history of excessive beer consumption. Not only did Dr Odell describe the respondent as an alcoholic, as stated above, but a distinguished psychologist whose report was tendered on behalf of the respondent on the plea, Mr I. Joblin, also described him as an alcoholic. The respondent had made a number of attempts to overcome his alcoholism, and had succeeded for substantial periods of time. He had undertaken treatment for his condition. He had been prescribed Antabuse medication.

On the plea, a highly impressive body of character evidence was called on behalf of the respondent. The mother of the respondent, who had attended from the United States, was called, numerous local witnesses were called, and a body of documentary reference material including course certificates in custody was tendered. The respondent's conduct and efforts in pre-sentence detention were exemplary. Mr Joblin's report also was tendered. The evidence unequivocally established that the respondent was a person otherwise of excellent character, was deeply and genuinely remorseful for his fatal actions, and was wholly committed to his reformation. The respondent had a wife and two children, aged 6 and 5, in Georgia, who were afflicted by his absence, as he was by his separation from them.

At the plea, on behalf of the prosecution a moving and impressive victim impact statement was tendered of the 27 year old daughter of the deceased, and which spoke of the distress and anguish of herself and her younger brother, aged 24. It concluded:

"Each and every day I ride an emotional rollercoaster. The pain I bear is like no other I have experienced before and I pray I never will again. I feel as though the most important and critical lifeline I had has been ripped away. It feels unfair and not right. My father was the closest person to me and now he is gone."

The deceased had been separated from his wife for many years.

There was a complex of factors affecting the driving of the respondent at the time of the fatal collision, notably alcohol[1], fatigue[2] and counterintuitive driving requirements. In its character both of negligence[3] and of alcohol consumption, as contemplated by s.318 Crimes Act 1958 and as particularised on the presentment to which the respondent pleaded guilty, the driving was culpable.

On behalf of the Director, in support of the ground of manifest inadequacy, Mr Ryan submitted that this was a serious case of culpable driving, involving as it did both negligence and intoxication as contemplated by s.318 and in combination with fatigue. It was pointed out that the respondent knew he had significant alcohol problems, was drinking during the drive along a hazardous road, knew he was fatigued and suffering from jet lag, and was inexperienced with a left hand traffic system and with right hand drive vehicles, all of which added to the culpability of his conduct. Further, the reasoning process of the learned sentencing Judge was criticised in that no mention was made of the principle, central to culpable driving sentences, of general deterrence[4]; and but passing reference to specific deterrence. It was submitted that the learned sentencing Judge gave too much weight to factors in mitigation including the positive character evidence[5], prospects of rehabilitation, and hardship upon the respondent of separation from his wife and children[6]. It was submitted that the Judge undervalued the significance of the respondent's prior convictions for alcohol-related driving offences. It was submitted that the Judge gave insufficient weight to the impact of the offence upon its victims. Finally, it was submitted that mathematically viewed the head sentence was only 16% of the maximum penalty prescribed for the offence of culpable driving causing death and the non-parole period was less than 50% of the sentence imposed.

Mr Tehan Q.C., who with Mr Brian Bourke appeared for the respondent, made contrary submissions, pointing to the lack of excessive speed, the circumstance that the respondent had driven more than half the length of the Great Ocean Road, had had a night's sleep, and had not commenced any consumption of alcohol until 3.00 pm; and as to the respondent, he was of excellent character and potential for rehabilitation, his alcohol-related prior convictions were very old, and an especial quality of punishment was visited upon him by his being separated from his wife and children of tender years who were half a world away. Significantly in that regard, Mr Tehan submitted that this was not a case of an offender entering the jurisdiction as part of criminal activity or for the purpose of criminal activity.

It is profitless to go to the learned Judge's sentencing remarks to elicit minutiae or lacunae. There was no obligation upon him to recite a litany of criteria. He addressed himself to the appropriate matters, either directly or by implication. No error of substance in reasoning has been shown. The question is: was the sentence imposed manifestly inadequate?

Given the low level of sentence imposed, it is undoubted that the learned sentencing Judge exercised mercy. In my view he was entirely right in doing so. While acknowledging in full measure the tragic death of the deceased and the affliction caused to his children, nonetheless this was a case which called for mercy. In that respect the question is: did mercy overshoot its mark?

The crime of culpable driving causing death has, as its terms display, terrible and irreversible consequences. Those consequences occurred in this case. The impressive victim impact statement gives eloquent and moving expression to them. Those consequences have been the subject of continuing and increasing public concern and rightly so. This Court has repeatedly stated the gravity of the crime and its consequences and rightly so[7]. Because of the nature, prevalence and consequences of the crime, this Court has repeatedly stated that factors personal to an offender ordinarily must to an extent give way to the principle of general deterrence and where applicable special deterrence. I apply those principles in this appeal.

Even so, I do not consider the sentence was manifestly inadequate. As to the driving, the speed was not excessive and the fatigue was not gross; as to the

respondent, his last conviction for alcohol-affected driving was 17 years previously and he had been driving for some 26 years; and most significantly, the quality of his incarceration is especially burdensome by his being wholly isolated from his wife and young children who remain in the United States, in circumstances in which he entered Australia for lawful purposes and for a short period. The sentence imposed, and the minimum term, are at the bottom of the range; but in my view in all the circumstances are justifiably so. Certainly in view of the principle of double jeopardy applicable to this appeal, intervention by this Court would be inappropriate.

In my opinion the sentence imposed upon this respondent was inadequate in the circumstances. He was driving in an unfamiliar situation that clearly called for vigilance and attention if he was to avoid the risk of death or serious injury to other road users. In breach, however, of his duty to them, he travelled a considerable distance whilst both fatigued and affected by alcohol. As a consequence he brought death to another traveller, tragedy to that unfortunate man's family, and created serious difficulties for his own. It is precisely because consequences of this kind can follow from the type of behaviour in which the respondent engaged, that the offence of culpable driving set out in s.318 of the Crimes Act 1958 has been enacted and why such a substantial maximum penalty has been set by the legislature.

However, when regard is had to the principles upon which this court must operate when considering an appeal by the Director of Public Prosecutions against sentence, including the principle of double jeopardy, and in view of the somewhat singular circumstances relating to the respondent himself, I have arrived at the view that intervention would not be appropriate.

38 Accordingly, I also would dismiss this appeal.

I regret to say that I too do not share Cummins, A.J.A.'s conclusion upon the question of manifest inadequacy. On any analysis the head sentence and non-parole period were towards the bottom of the scale of sentences likely to be imposed in cases of culpable driving and, in this case, given the circumstances of the respondent's offence and despite the sentencing judge's discretion to show mercy, I do not accept that so lenient a disposition was one that was properly open.

It would be otherwise were it not for the involvement of alcohol. I well understand that a man used to driving on the right hand side of the road could easily make the sort of fatal mistake that the respondent made in this case. So, if the respondent had not been affected by alcohol, the circumstances of his offending might have warranted a lenient sentence. But with all respect to those who think otherwise, I take the law now to be that any man who chooses to drive with a blood alcohol concentration of close to twice the legal limit, and kills someone in the process, is asking for serious punishment.[8] And when such a man is one who is used to driving on the right hand side of the road, and thus who has chosen to undertake, under the influence of alcohol, what for him must be the difficult counter-intuitive task of driving on the left hand side of the road, his culpability is undoubted.[9] In my judgement, offending of that kind will ordinarily warrant a stern sentence in order to demonstrate the court's denunciation and for the sake of general and specific deterrence.[10]

I am, however, in agreement with Cummins, A.J.A that the court should not intervene in this case, although my assent to that course is not so much due to the

constraints imposed by the principle of double jeopardy as it is based upon the court's residual discretion not to intervene (despite the manifest inadequacy of the sentence).[11]

It may not be enough to enliven that discretion that the respondent is a citizen of the United States of America now imprisoned far from his home, or even that he has young family in the United States that for all intents and purposes he cannot see so long as he is in gaol.[12] One cannot doubt, however, that the hardship which that imposes must be very considerable. It may also be insufficient that the respondent has since he was sentenced lived upon the expectation that he could be released after only nineteen months of detention in order to return to his family.[13] One cannot doubt, however, that he would be rendered a heavy psychological blow if that period were now increased. But when there is added to the equation that, as best one can tell, the existing sentence has a significant prospect of rehabilitating the respondent[14], I think there to be sufficient in total for the exercise of discretion in his favour.

In the end therefore, it is only because of what I regard as the very exceptional circumstances of this case that I would dismiss the appeal.

The order of the court is that the appeal is dismissed.

Your Honours, I seek a certificate under s. 15(1)(a) of the Appeals Costs Act.

[3] On wrong side of the road, see Guariglia (2001) V.S.C.A. 27; Toombs (2001) V.S.C.A. 144, and Stockdale (2002) V.S.C.A. 202.

[4] See Scott [2003] VSCA 25; (2003) 6 V.R. 217 and the authorities cited therein.

[7] See Scott, supra and the authorities cited therein.

[8] D.P.P. v Wareham [2002] VSCA 110; (2002) 5 V.R. 439 at 442 [11]; cf. DPP v Whittaker [2002] VSCA 162; (2002) 5 V.R. 508 at 513 [22].

[9] Compare the analysis of O'Bryan, A.J.A. in R v Caldwell [2004] VSCA 40; (2004) 8 V.R. 1 at 6 [31] - [34].

[10] R v Cody (1997) 25 M.V.R. 325, BC9703006 at 10; R v Mc Grath [1999] VSCA 197 at [18] ; D.P.P. 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].

[11] Holder v Johnston [1983] 3 N.S.W.L.R. 245 at 255-256; cf. R v Papazisis & Bird (1991) 51 A.Crim.R. 242 at 246-7; and see Fox & Frieberg, Sentencing, 2nd Ed. at [13.216].

[12] R v Edwards (1996) 90 A.Crim.R. 510 at 516 - 518; R v Day (1998) 100 A.Crim.R. 275 at 277; R v Kellisar [2001] VSCA 224 at [11].

[13] cf DPP(Com) v Trainor v Cahir [2000] VSCA 249 at [35].

[14] R v Sherpa [2001] VSCA 145; (2001) 34 M.V.R. 345 at 348 [12]; and see Rinaldi F., Crown Appeals Against Sentence (1984) 8 Crim.L.J. 1, Dismissals of Crown Appeals Despiet Inadequacy of Sentence (1983) 7 Crim L.J. 306, which are referred to in Fox & Frieberg, Sentencing, 2nd Ed at [13.216].

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