DPP v Oates [2007] VSCA 59

2 This is an appeal by the Director of Public Prosecutions against the sentences imposed on the respondent,[1] who pleaded guilty to one count of dangerous driving causing death and three counts of dangerous driving causing serious injury.

3 The respondent was aged 34 at the time he committed these offences and is now aged 36. On the evening of 25 February 2005 he was driving a 12-tonne truck on the Hume Freeway near Craigieburn, when he collided with a Toyota HiAce minivan. The circumstances of the collision are set out in the judge's sentencing remarks and the respondent's record of interview.

4 The minivan had stopped in the emergency lane on the left-hand side of the freeway because it had broken down. An interior light was on in the back of the van and its headlights and hazard lights were also on. Two of the victims were standing in front of the minivan when the respondent's truck collided with the van, and it was pushed into them. Mr Patel was killed and Mr Meta suffered a fractured collarbone and bruising. Mr Vias and Mr Shah were in the van when the collision occurred. Mr Shah was seriously injured. He suffered a closed head injury with cerebral haemorrhagic contusions, scalp laceration, post-traumatic amnesia and soft tissue injuries. Mr Vias had a broken right wrist and bruising to his body.

5 It is not clear why the respondent drove into the van. The respondent was driving in the left-hand lane within the speed limit, when his truck veered to the left and its cabin clipped the right hand rear corner of the van. According to witnesses, the truck drifted across the left-hand lane and into the emergency lane. The

respondent was not affected by alcohol at the time of the accident and it was not suggested that alcohol or drugs had in any way contributed to the collision.

6 In his police interview, the respondent was unable to explain why the accident had occurred. He said that he did not see the van before he clipped it, and that he thought its lights could not have been on.

7 The accident occurred at approximately 9.30 p.m. on February 25th, 2005. During the week before the accident occurred, the respondent had worked at his driving job for seven hours on Tuesday and for twelve hours on Wednesday. He had six or seven hours sleep on Wednesday night. On the morning of Thursday 24 February he had worked for about four hours in a hospital kitchen. Between Thursday night and Friday morning he had worked for about 13 hours. On the Thursday evening he picked up a load of tomatoes from Harston, near Shepparton and delivered them to the Footscray Market in Melbourne. He had collected a load of newspapers in Melbourne and driven back to Shepparton, dropping newspapers off at various points along the way. He had arrived at his home in Shepparton at around 7.30 a.m. on Friday morning. He had difficulty getting to sleep on Friday morning, but went to sleep at midday and had about five hours sleep before he began work at 6.30 p.m.

8 While the respondent was on the way to Melbourne, he was feeling "a bit tuckered" and decided to have a nap at a truck stop in Wallan before he resumed the trip. He said he had slept for about an hour. The accident occurred after he had resumed his trip.

9 In his police interview the respondent acknowledged that he may have been tired and that fatigue may have been a factor in the accident. He said he had been tired when he left home but then thought he would be all right if he had a rest at Wallan. He had not thought of ringing his employer to say he would take a longer rest because he "just thought I got my job to do". When asked by the police interviewer as to how he could have hit the van, he said,

"The only thing that happened that maybe I did have a nod, nodded, and drifted a bit to the left, um, that's always a possibility hey?"

10 The learned sentencing judge accepted that when Mr Oates resumed driving after his sleep in Wallan,

"[he] thought and believed that having rested [he was] safe to drive and [he was] not going to put [himself] or others at risk."

11 The learned sentencing judge said that the charges to which the respondent pleaded guilty reflected a lesser level of criminal and moral culpability than the more serious offences of culpable driving and reckless conduct endangering life. Her Honour accepted that the respondent was "truly and deeply remorseful," that he took responsibility for the consequences of the accident and that he had been deeply affected by them. Her Honour considered a report prepared by Ms Carla Lechner, a forensic psychologist, which set out the respondent's personal history and referred to the difficulties he had experienced throughout his youth. Ms Lechner's report said that since the accident he had had symptoms consistent with post-traumatic stress disorder and was haunted by memories of the scene of the accident. The respondent's self-care had deteriorated and his mood was both anxious and depressed.

12 Ms Lechner's report was confirmed by a report from Mr Oates' psychiatrist, Dr Colin Scott which said that since the accident the respondent had been an in-patient at the Melbourne Clinic on two occasions and that he continued to be under psychiatric and psychological care.

13 Her Honour noted that the respondent had been dealt with for traffic offences in 1991 and 1992, one of which was a conviction for exceeding a zero blood alcohol limit. He had not been convicted of any driving charges since that time. Mr Oates also had convictions for assaults and destruction of property, but these were dissimilar to the offences for which he was being sentenced. Her Honour took account of victim impact statements from Mr Patel's family and from Mr Shah. She noted the profound and lasting effect of the offences on the family of Mr Patel and on the three survivors, particularly Mr Shah.

14 Her Honour concluded that, having regard to the circumstances of the driving, the absence of aggravating features and the respondent's response to the accident, a term of imprisonment was not warranted. She referred to the observations of the Court of Appeal in R v Ash[2] as to the importance of recognising each offence separately.

15 Her Honour sentenced the respondent to a community-based order for two years on the count of dangerous driving causing death. On count 2 of dangerous driving causing serious injury (the injury to Mr Vias), her Honour sentenced the respondent to a community-based order for one year and she imposed a community-based order of the same length in relation to Mr Meta's injury. On count 4 of dangerous driving causing serious injury (the injury to Mr Shah), she sentenced the respondent to a community-based order for 18 months.

16 Her Honour ordered that the sentences imposed for each count were to be served concurrently, resulting in a maximum period of two years for the totality of the community-based orders.

17 The single ground of appeal was that the sentences imposed for each count were manifestly inadequate. In particular, it was said that in imposing community-based orders on each count, the sentencing judge had failed to adequately reflect the gravity of the offences generally and in this case, and had given too much weight to mitigating factors.

18 The principles which govern appeals against sentence by the Director of Public Prosecutions are well known. Although Director's appeals are now more common than was once the case, in DPP v Leach[3] Eames JA said that this should not

"detract from the continuing application of the principle that it is only in very clear and rare cases of manifest inadequacy or error that a Director's appeal should be allowed".[4]

19 Mrs Quin, who appeared with Mr McArdle for the Crown, contends that this is such a case. The offence of dangerous driving causing death or serious injury was introduced in 2004 and the maximum penalty for that offence is imprisonment for up to five years.[5] The Attorney-General's Second Reading Speech for the Bill which amended the previous legislation indicates that the offence was intended to "fill the gap" between culpable driving causing death, which is a species of manslaughter and carries a maximum penalty of 20 years' imprisonment, and dangerous driving, which carries a maximum penalty of two years' imprisonment.

20 Mrs Quin contended that, consistently with the purpose of introducing this offence, the sentences imposed for dangerous driving causing death or serious injury must give considerable weight to denunciation and general deterrence. In this case the conduct of the offender had resulted in the death of one person and the injury of three. The nature and gravity of the offence was such that a custodial sentence should have been imposed.

21 I note that the consequences of dangerous driving determine whether a person can be convicted of the offence of dangerous driving or of dangerous driving causing death or serious injury. The maximum term of imprisonment for a person convicted of dangerous driving, is two years, even in circumstances where the offender has a very high level of moral culpability. By contrast, the maximum term of imprisonment which may be imposed on a person who kills or seriously injures another person while driving dangerously is five years. This is the case even though a person convicted of this offence may be less morally culpable than a person who has driven dangerously, but has been fortunate enough to avoid harming someone else. It follows that the sentence which is imposed for dangerous driving which causes death or serious injury must take account of variations in the moral culpability of those who commit this offence.

22 In this case her Honour was faced with a difficult sentencing task. I accept Mrs Quin's submission that general deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury. Members of the public must recognise that a person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment. As the New South Wales Court of Criminal Appeal said in R v Whyte,[6] a custodial sentence will usually be appropriate for an offence of this kind, except in cases where the offender's level of moral culpability is low.

23 However, as her Honour recognised in her reasons, there is no suggestion here that the respondent deliberately engaged in conduct which endangered others. Nor was there any suggestion that he was grossly negligent or reckless or that he decided to go on driving having become aware of that he might kill or injure others. He was not affected by alcohol or drugs and he was driving within the speed limit. Mr Papas, who prosecuted, acknowledged that the cause of the accident was

"in all probability ... a momentary sleep, or perhaps a moment of inattention. And that's the dangerousness, rather than a fatigue that justifies a higher charge"

"[The respondent's] driving, and the driving for which [he] came to be sentenced was characterised by the Crown and accepted by Mr Holding on [his] behalf as a moment of inattention, maybe of tiredness and drifting off to sleep, a moment of dangerousness with devastating consequences."

25 It was accepted in R v Whyte[7] that the offender's moral culpability is reduced where the accident is caused by "momentary inattention or misjudgement." Even if it was caused by tiredness, Mr Oates' level of moral culpability was reduced by his conduct shortly before he collided with the victims' minivan. Although his work meant that he had had insufficient sleep in the days before the accident, he had slept for about five hours before he set out for Melbourne. The size of the respondent's truck did not require him to keep a log book and he did not tell his employer that he was too tired to work, but when he recognised that he felt tired he pulled over and slept for an hour before continuing his journey.

26 In my view, the particular circumstances of this case justified her Honour in imposing community-based orders. Despite the devastating consequences of the accident on the victims and their families, it was appropriate for her Honour to give considerable weight to matters which reduced Mr Oates' culpability. The sentences which she imposed also reflected the powerful mitigating factors which existed in this case, including Mr Oates' remorse, his acceptance of responsibility for the effects of his conduct, and the psychological effects that the sight of the accident and his awareness of its consequences has had upon him. The respondent continues to suffer flashbacks from the accident and has symptoms consistent with post-traumatic stress disorder.

27 For these reasons, I do not think that the sentences imposed by her Honour were manifestly inadequate.

28 Even if I were to take the view that her Honour erred and that the sentencing discretion should be re-opened, I would not impose a different sentence. This is a case, as I think Mrs Quin conceded, in which the double jeopardy principle should be given considerable weight. As Kirby J explained in R v Hayes,[8]

"If the sentence was "wrong" in the first place, it is upon the appeal that the only "true" sentence according to law is passed. But in a practical sense, there is a species of double jeopardy. The prisoner's liberty, pocket and reputation are put in jeopardy both before the sentencing judge and before the appellate court. In addition, the prisoner suffers the anxiety and stress caused by the situation of uncertainty arising from the delay in resolving his or her position (citations omitted)."[9]

29 This tragic accident occurred on 25 July 2005. The respondent was sentenced by her Honour in October 2006. We are hearing the matter five months later. Mr Oates has not been in custody during that period of time. The delay in resolving this matter is likely to have imposed an intolerable strain on Mr Oates and to have made it more difficult for him to recover from the post traumatic stress disorder which has affected him since the accident.

30 I would therefore dismiss the appeal.

31 For the Director it was conceded that the circumstances of this matter involved a low level of culpability. However, it was urged that the Court should place emphasis on the consequences, not the level of culpability, because the relevant statutory provision was created in order to fill the gap arising from the culpable driving and dangerous driving provisions. That said, as was argued by Mr Priest for the respondent, such an approach fails to take account of the history underlying the relevant statutory provisions. It was put for the Director that, because the circumstances of these types of offences can vary so much, there was no reason why this case could not be an appropriate vehicle to establish a position with respect to general deterrence, even though moral culpability was low. Conveniently, the relevant principles as adverted to by Neave JA in her reasons were dealt with in the New South Wales authority of R v Whyte.[10] I respectfully adopt the reasons for judgment stated by Spigelman CJ in that authority.

32 In the course of argument, Mr Priest highlighted the application of the provisions of s 5(1) of the Sentencing Act 1991. Drawing upon those five criteria, I make the following observations. Firstly, in this case, in my view, it would not be just to punish the respondent as sought by the Director. To do so would fail to take account of the relevant mitigating circumstances and the low level of culpability.

33 Secondly, as to deterrence, specific deterrence does not arise for the reasons described by the sentencing judge and as adverted to by Neave JA in her reasons. While general deterrence is important, the circumstances of this particular case, including the slight, short period of inattention or falling asleep by the respondent, lead to a different approach with respect to general deterrence, as was stated in Whyte and now by Neave JA in her reasons.

34 Thirdly, it is clear on the material, both before the sentencing judge and still before the Court, that the rehabilitation of the respondent would not be facilitated by a custodial sentence.

35 Fourthly, as to the matter of denunciation of conduct of this type, there can be no doubt that, arising from the parliamentary intent underlying the legislation and the statements set out by Neave JA, these types of offences are serious. Indeed, this Court has stated more than once in culpable driving cases the approach that should be taken to denouncing inappropriate driving conduct on the road.[11] To some extent, similar approaches can be applied to this type of offence.

36 Fifthly, there is the criterion of protecting the community from the offender. For the reasons stated by Neave JA, such circumstances do not arise here. As already observed, it was conceded for the Director that this matter involved the lower end of the spectrum of offences of this kind.

37 Having considered the matter and the arguments put before the Court, and applying the principles with respect to Director's appeals, in my view it could not be said that there was anything about the sentences imposed below that would shock the public. For the reasons stated by Neave JA, therefore, I would dismiss the appeal.

38 I agree with Neave JA and also with the Chief Justice. Like both of them, I consider that a custodial sentence will usually be appropriate for an offence of dangerous driving causing death unless the offender has a low level of moral culpability, as in the case of momentary attention or misjudgement.[12]

39 As Neave JA has demonstrated, however, this is an exceptional case of low level moral culpability, constituted of momentary inattention, which does not necessitate the imposition of a custodial sentence. Indeed, it was presented by the Crown below on the basis that -

"It's not being asserted that he [the accused] had an insight into his level of tiredness sufficient to put him up on a culpable driving, and the reason for that is, apart from anything else, as a matter of fairness, he did have a sleep some six hours before this driving stint ... It's been put at a lesser level than that. And that is in all probability it was a momentary sleep, or perhaps a moment of inattention. And that's the dangerousness, rather than a fatigue that justifies a higher charge."

40 As Mr Priest pointed out in his submissions, there are occasions where a sentence of imprisonment is sometimes a blunt and inappropriate instrument to achieve the ends mandated by s 5(1) of the Sentencing Act. In my view, this is one such case. The imposition of a community-based order was within the range, and I too, therefore, would dismiss the appeal.

41 The order of the Court is:

The appeal is dismissed.

A certificate is granted to the respondent under s 15 of the Appeal Costs Act 1998.

[1] Under Crimes Act 1958, s 567A.

[2] [2005] VSCA 43 at [22].

[3] (2003) A Crim R 64.

[4] [2003] VSCA 96; (2003) 139 A Crim R 64 at [48].

[5] Crimes (Dangerous Driving) Act 2004.

[6] [2002] NSWCCA 343; (2002) 55 NSWLR 252 at 286 at [214] per Spigelman CJ.

[7] Ibid.

[8] (1987) 29 A Crim R 452.

[9] (1987) 29 A Crim R 452 at 469.

[10] R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252.

[11] See eg R v Ciantar [2006] VSCA 263; DPP v Johnstone [2006] VSCA 281.

[12] R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252.