DPP v Scott [2003] VSCA 25

Court of Appeal (Vic)|2003-04-11|Before: PHILLIPS, C.J., VINCENT, J.A. and CUMMINS, A.J.A.

Criminal Law - Sentence - Crown Appeal - One count culpable driving causing death - One count causing serious injury negligently - Principles upon which Crown Appeals decided - Appellant with poor driving record - Evidence that appellant ignored passenger's repeated requests to drive reasonably - Whether sentence manifestly inadequate - Youth - Total effective sentence of four years and six months with a non-parole period of two years increased to five years and six months with a non-parole period of three years.

A little later in the opening the Prosecutor alluded to an aspect of Amanda Cameron's statement saying "It would seem that she has made a full recovery from those injuries" ("a fractured pelvis, a broken wrist and cuts and bruises").

During the presentation of the case for Jason Scott, his counsel remarked, "...After today, the family of Alisha (Longmore) will continue to feel her loss. The family of Jason Scott will continue to feel distress. Especially during the time that he will be in prison. Jason Scott will feel distress." Later, in this presentation, defence counsel tendered, on behalf of Scott, a bundle of documents. His Honour suspended proceedings while he read them. Then defence counsel tendered a number of character references for Scott and six certificates relating to his efforts at rehabilitation. His Honour suspended proceedings while he read these. Then, defence counsel tendered a report of a Dr Gill, a Psychiatrist, and a report of a Mr Dungey, a Psychologist. Again, his Honour suspended proceedings while he read them. All these documents contained material favourable to Jason Scott. Counsel for the defence supplemented these documents by calling a clergyman and Mr Dungey, together with a family friend, to give sworn evidence, the tenor of which was also favourable to Scott. In fact, apart from an objective description of the circumstances of the offence by the Crown Prosecutor, practically the whole of the sentencing proceedings was taken up by addressing the interests of the offender.

While it was both proper and necessary that such interests were given careful attention, it will be seen that the sentencing hearing of 24 June ended without any Victim Impact Statement being read - aloud or otherwise - or even summarised, save as I have set out above.

His Honour pronounced the sentence on 28 June, giving his reasons for it. Knowing as I do the way sentences are composed, I do not doubt that he read, and carefully read, the Victim Impact Statements in his Chambers. He never said that he had done so, but listeners to his reasons who knew of their content would have discerned some allusions, albeit brief, to it. His Honour gave summaries of the psychiatric and psychological reports concerning the respondent and the character references in his favour.

In the case of Amanda Cameron, the meagre references to her physical recovery (which tended to favour the offender) completely missed the whole thrust of the Victim Impact Statement. Referring to her injuries, her mother forcefully wrote, "These things heal, we hope for good, but it is the emotional trauma that is still constantly there for Amanda". Details of this were then given, "The void that Alisha's death has left in Mandy's life is immeasurable..." and then Leanne Cameron went on to generously acknowledge the sad lot of Alisha's parents.

I have detailed these matters, not in a spirit of personal criticism, but to illustrate my belief that, currently, too many sentencing proceedings give the appearance that the interests of victims and their loved ones are not being sufficiently addressed. My clear recollection is that when Victim Impact Statements were introduced into the Victorian criminal justice system in 1992, they were well received. Senior judges[1] and the media praised their introduction. Sentencing

judges invariably cited significant passages from them. In my opinion, this is no longer sufficiently occurring and it is time to reflect on this and return to the previous practice.

In recent times, I have suggested other reforms for sentencing hearings. These are, I believe, consistent with more general views on sentencing expressed by Vincent, J.A. in an address last year to the Law Institute of Victoria. I now repeat these suggestions. Consideration should be given to the development of a scheme under which:

* When guilt of an offence is established, the presiding judge may formally declare that any person the evidence shows to have suffered injury, loss or damage as a direct result of the offence, and who wishes to be so identified, is a victim in the proceeding and direct that this declaration be entered in the records of the court. This would do much to assure victims that the criminal justice system really cares about what happened to them and the results of it. I have the leave of the other members of this Court (Vincent, J.A. and Cummins, A.J.A. to say they agree with this suggestion).

* The Crown Prosecutor, upon a plea of guilty, is required to open the facts of the offence to the judge, even if the judge indicates that he or she has "read the papers". (I am pleased to say that the Director of Public Prosecutions has responded publicly to this suggestion and the Crown Prosecutors now regularly do this.)

* Where victims so desire, either the Crown Prosecutor or the judge may read aloud appropriate and admissible parts of their Victim Impact Statements during the proceedings.

At approximately 12.50 a.m. on 15 July 2000, the respondent was driving his white Holden Commodore sedan in a northerly direction along Nicholson Street, Carlton. He had previously been in St Kilda with friends and was driving three

female companions and a male cousin home for the evening. The car, which was equipped with a V8 motor, was travelling at a speed subsequently calculated to be in the vicinity of 106 kilometres per hour. This could only be regarded as dangerously fast when regard is had to the location and surrounding circumstances. One of the occupants of the car, Amanda Cameron, told the police that, as they were travelling along Nicholson Street, the respondent was making the car "bunny hop" in time with music that was playing on a CD in the vehicle. She stated, as the prosecutor subsequently informed the sentencing judge without dissent, that he was applying the brakes and accelerating in time with the beat of the music while waving his finger.

The respondent approached a tram safety zone situated in Nicholson Street, near its intersection with Owen Street. There were a number of cars, including at least one taxi, ahead of him, travelling in the same direction. The respondent attempted to negotiate a passage between these vehicles without reducing speed and lost control, causing the driver's side of his car to hit the steel barriers protecting the tram stop area and the car then to collide with a metal traffic light pole. The impact with this pole was received at the rear of the passenger side door. Its force was such that the pole was dislodged from its base. The vehicle continued to travel in a northerly direction until it came to rest facing west across both north-bound lanes in Nicholson Street.

Seated in the vehicle at the time of the collision, in addition to the respondent were four young people; Jeannie Cameron, who was in the front passenger seat, his cousin, Luke Reid, who was situated in the rear left seat, Amanda Cameron, who was in the rear middle seat, and the deceased, Alisha Longmore, who was seated behind the driver.

As a result of the collision, Ms Longmore, aged 18 years, suffered a massive open-head injury and died at the scene. The respondent was subsequently charged with culpable driving arising from her death (count 1). Amanda Cameron suffered a fractured pelvis and a broken wrist in addition to various cuts and bruises. The serious injuries suffered by her were the subject of a further charge being laid against the respondent of causing serious injury through his negligent driving (count 2). Although Luke Reid received injuries to his back, no charge was laid against the respondent in consequence.

At the time of the collision, traffic was light to moderate, visibility has been described as good to excellent, the road surface was dry and there were street lights operating in the vicinity. Nicholson Street at that particular location was subject to a 60 kilometre per hour speed limit. It was accepted by the learned sentencing judge that the respondent was not affected by the consumption of alcohol or drugs at the time, although one or more of his passengers may have been affected by alcohol or cannabis that had been consumed in the course of the evening. The respondent's car, on subsequent inspection by the police, was observed to be in a roadworthy condition and no fault that may have contributed to the accident was detected. In this context, it should however be mentioned that the respondent had earlier complained of what has been described as a "surging" problem. He told a witness that the car would hesitate before accelerating when he put his foot on the accelerator. It does not appear from the evidence that this was capable of inducing a loss of control when the vehicle was travelling in a straight line or that it could have contributed to the occurrence of the accident.

In due course, on 24 June 2002, the respondent was presented before the County Court at Melbourne and he pleaded guilty to one count of culpable driving causing death, an offence carrying a maximum penalty of 20 years' imprisonment. He also pleaded guilty to one count of negligently causing serious injury to a person, an offence punishable by a maximum sentence of imprisonment for five years. Both of these offences also carry monetary penalties.

With respect to his prior criminal history, the respondent admitted that he had been previously convicted at the Magistrates' Court at Echuca, on 15 April 1997, of failing to display P plates and driving a motor vehicle in excess of 100 kilometres per hour in a 100 kilometre per hour zone. He was fined the sum of $200 on each charge and his licence to drive a motor vehicle was suspended for one month. He also admitted having been convicted by way of a traffic infringement notice, issued at Ringwood on 26 March 2000, of driving a motor vehicle at a speed of more than 30 kilometres per hour in excess of the prescribed limit in a 60 kilometre per hour zone. He was again fined $200 and his licence to drive a motor vehicle was again suspended for one month.

After a plea in mitigation of penalty, on 28 June 2002 the respondent was sentenced to be imprisoned for four years on count 1 and to one year's imprisonment on count 2, six months of which was to be served cumulatively upon the sentence imposed on the other count. This created a total effective sentence of four years and six months, in respect of which a non-parole period of two years was fixed by his Honour. The respondent was also disqualified from holding a driver's licence for a period of three years.

The Director of Public Prosecutions has appealed against the individual sentences imposed, the total effective sentence, and the non-parole period fixed by his Honour, on the basis that each was manifestly inadequate in the circumstances. Particulars advanced in support of this contention assert that the learned sentencing judge:

(a) failed to adequately reflect the gravity of these offences 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 he aspect of specific deterrence;

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

(e) failed to give sufficient weight to the protection of the community; and

(f) failed to give sufficient weight to the respondent's prior convictions for speeding.

The principles upon which the appeals by the Director of Public Prosecutions are to be approached are now well understood by those who appear in this Court. However, in view of their significance to the conclusion at which I have arrived, I consider that I should set out again the frequently quoted passage in the judgment of Charles, J.A. in R. v. Clarke[2]:

"1. An appeal by the Crown should be brought only in 'the rare and exceptional case' (Everett at 299)[3] to establish some point of principle. The reason is that such appeals 'represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy' (Malvaso at 234)[4]. 2. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300) [5]; (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths at 310)[6]; (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see Osenkowski at 213); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306)[7]. 3. A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact (Allpass at 562-3)[8]. Allpass is also authority for the following propositions: 4. When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance. 5. An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance."

As I understand the submissions advanced in support of the appeal, at their heart lie the contentions that:

"The sentence of four years imposed for culpable driving is more akin to the type of sentence to be imposed prior to the increase in the maximum term for culpable driving to 20 years.'

"that the sentence of one year for the count of negligently causing serious injury is also manifestly inadequate. The injuries received by the victim were quite serious and a sentence of only 20% of the maximum was outside the range."

It is clear beyond dispute that the legislature, representing the community in this State, has expressed greatly increased concern about the needless loss of life which has too often resulted as a consequence of the culpable driving of motor vehicles, so that at the present time, very substantial maximum penalties have been fixed.[9] It is equally obvious that this view and the steps taken by the legislature to address the issue must be reflected in the sentences imposed upon those who commit this serious offence.

As I understand the submissions presented by the Director, it was not disputed that, absent the respondent's prior history of driving offences involving breaches of the speed limits, whilst a sentence of four years' imprisonment could be regarded as extremely lenient, it would be difficult, having regard to the principles applicable to a Director's appeal, to argue that it had to be regarded totally as out of the range available to a sentencing judge. Even then, it was submitted, a serious question could be seen to arise with respect to the length of the non-parole period fixed by him. However, when the offence was viewed against a background of earlier relevant offending and the fact that the applicant had, on two occasions during the night, been urged by Jeannie Cameron to drive sensibly, a significantly longer sentence was called for. In any event, it was said, the sentence imposed on the other count was clearly inadequate.

There is, in my opinion, a deal of force in these contentions. The features to which the Director drew attention were significant in the exercise of sentencing discretion and it was certainly appropriate for Mr Coghlan to place emphasis upon them in this Court. The applicant had demonstrated little respect for the constraints placed upon road users and which have been designed to reduce the risk of unnecessary injury and death in our community. He had not been deterred by the imposition of monetary penalties or even by the suspension of his driving licence. But, to my mind, of greater significance is his patent disregard of the repeated request by his companion to drive reasonably. I note with some surprise that his Honour made no reference to those requests in his sentencing remarks. Viewed against that background, the level of personal culpability of the applicant for the commission of the offences presently under consideration must be regarded as extremely high. Both general and specific deterrence assumed importance as relevant sentencing considerations.

Attributing full force to the matters raised on behalf of the applicant which included, inter alia_,_ his history of personal difficulties, an early plea of guilty, the presence of genuine sense of remorse and the undertaking of significant rehabilitative endeavours since the commission of these offences, in my opinion the individual sentences and the effective head sentence were all unduly lenient. This flowed through to the fixing of a non-parole period of shorter length than could, in my opinion, be properly regarded as appropriate in all the circumstances.

It does not follow, however, that I am of the view that this Court would in consequence be entitled to intervene. O'Bryan, A.J.A. stated in DPP v. Whittaker[10]:

"There is no standard sentence for a culpable driving offence. An appropriate penalty will depend upon the circumstances of the offending and the offender. In terms of the head sentence of four years on each count of culpable driving, I am not persuaded that Mr Hillman is correct in his submission that a sentence of four years is manifestly inadequate. I would accept that a sentence of four years' imprisonment for a culpable driving offence based upon gross negligence and without aggravating features is within the range available to a sentencing judge." [11]

A similar view was expressed by Winneke, P. in R. v. John Leesley[12]:

"However and notwithstanding what I have said, in cases of culpable driving due to speed and inadvertence, the courts in this State have not infrequently punished those crimes by sentences of 5 years or less[13]. It is true that, with the gradual increase in the maximum penalty, the sentences imposed for culpable driving have themselves been increasing - and rightly so. Indeed, depending upon the circumstances, sentences of 6 years' imprisonment and more have been not infrequently imposed. Statistics are, as we have frequently said, of limited use because each case must ultimately depend upon its own facts. But I do not think it can be said that, in imposing a head sentence of 5 years in this case, his Honour was imposing a sentence less than that which would ordinarily be imposed for an offence of the nature of the one with which his Honour was dealing."

In that matter, a sentence of four years' imprisonment with a non-parole period of 18 months was substituted for the sentence of five years' imprisonment with a non-parole period of two-and-a-half years imposed in the Court below. However, Winneke, P. was at pains to emphasize that:

"The circumstances of this case are quite unusual and make it one in which, I think, it can truly be said that the consequences have been tragic both to the family of the deceased and to the appellant and his kin."[14]

At other points in his judgment he referred to the situation as "exceptional"[15] and "unique"[16]. More generally, he stated:

" There can be no doubt that principles of general deterrence must always play a significant role in the imposition of punishment for the offence of culpable driving. That has been stated so often by this Court that it cannot be gainsaid. It is reflected in the incremental increases which Parliament has made to the maximum penalty for the offence over recent years, themselves reflecting the community view that those who drive motor vehicles on our roads must, by appropriate punishment, be deterred from doing so irresponsibly and without regard for the lives and safety of others. But, as is the case of other crimes of involuntary manslaughter, there will be exceptional cases where the impact of principles of general deterrence in the sentencing process can and will be moderated by other purposes governing the sentencing process such as demonstrated remorse, rehabilitation, and other factors, personal to the offender established by the evidence. It is, of course, a truism to say that the criminal law exists for the protection of the community and that courts must be sensitive to contemporary attitudes of the community in which they are administering criminal justice."[17]

Obviously, as the President pointed out, the view taken by the Court in other cases must be approached with a measure of care for a number of reasons, including the high probability that the factual circumstances upon which they were based may have been very different from those under consideration and they may not have been fully identified in the judge's sentencing reasons or Court of Appeal judgments.

When the issue of the possible manifest inadequacy of a sentence is considered the context of a Crown appeal, as Charles, J.A. made clear in the passage set out above, a number of important principles must be taken into account. Among other matters, regard must be had to the width of a sentencing judge's discretion and what has been regarded as the "rare and exceptional" character of a Crown appeal attracting, as it does, a form of double jeopardy. Obviously, the Court is not entitled to substitute its own opinion merely because the sentence imposed in the Court below is regarded as inadequate. Even when the other preconditions for intervention were found to be present, the Court would be constrained by reason of the necessity to have regard to the element of double jeopardy inherent in the process. Any substituted sentence would, in consequence, ordinarily be somewhat less than that which the Court considers should have been imposed in the Court below. This could, in some cases, militate powerfully against any intervention at all. These considerations have application to the individual sentences and total effective sentence imposed as well as the non-parole period fixed by the judge in the present case.

Applying them, I have concluded that the appeal should be allowed. In my opinion, the sentences imposed in the Court below simply did not reflect the seriousness of the actual conduct in which the respondent engaged to the extent that they would, to use the term employed in the authorities, shock the public conscience.

Bearing in mind that by reason of the presence of the element of double jeopardy, the sentence to be imposed should be somewhat less than that which should have been handed down in the Court below, I would propose:

(i) that in lieu of the sentence of four years' imprisonment imposed on count 1, a sentence of five years' imprisonment should be substituted;

(ii) that in lieu of the sentence of 12 months' imprisonment imposed on count 2, a sentence of 18 months' imprisonment should be substituted, the service of six months of which would be cumulative upon the sentence on count 1.

This would create an effective sentence of five years and six months' imprisonment in respect of which I would fix a non-parole period of three years.

CUMMINS, A.J.A.:

I agree with the disposition of this appeal proposed by Vincent, J.A. for the reasons stated by him and with the observations of the learned Chief Justice..

[1] Per Vincent, J.A. on several occasions particularly R. v. Beckett in 1998

[3] Everett v. R. [1994] HCA 49; (1994) 181 C.L.R. 295 at 299.

[4] Malvaso v. R. [1989] HCA 58; (1989) 168 C.L.R. 227 at 234.

[5] Everett v. R. [1994] HCA 49; (1994) 181 C.L.R. 295 at 300.

[6] Griffiths v R. [1977] HCA 44; (1977) 137 CLR 293 at 310.

[8] R. v Allpass (1993) 72 A.Crim.R. 561 at 562-3.

[9] This is apparent upon perusal of the maximum penalties fixed since the legislation was introduced. Section 318 of the Crimes Act 1958 has been amended by:

s.2(b) of the Crimes (Dangerous Driving) Act 1966, No. 7407, which imposed a term of imprisonment of not more than five years, or a fine of not more than $1000 or both;

s.3 of the Crimes (Driving Offences) Act 1967, No. 7645, which imposed a term of imprisonment of not more than seven years, or a fine of not more than $1000 or both;

s.119(1) of the Sentencing Act 1991, No. 49, Schedule 2, Item 61, which imposed a Level 5 term of imprisonment (10 years) or Level 5 fine or both;

s.3(1) of the Crimes (Culpable Driving) Act 1992, No. 13/1992, which imposed a Level 3 term of imprisonment (15 years) or Level 3 fine or both; and

s.60(1) of the Sentencing and Other Acts (Amendment) Act 1997, which currently imposes a Level 3 term of imprisonment (20 years maximum) or level 3 fine or both.

[11] It is to be observed that his Honour confined his remarks to a case where there were no aggravating features present.

[13] [The following footnote has been taken from the judgment.] See, for example, R. v. Franks [1998] VSCA 100; [1999] 1 V.R. 518 (a case where the conviction was ultimately quashed, but where the trial judge had imposed a sentence of 3 years); R. v. Howarth [2000] VSCA 94 (where this Court refused to interfere with a sentence of 5 years); R. v. Rudebeck [1999] VSCA 155 (3 years for a grossly fatigued truck driver); R. v. Yalim [2000] VSCA 64 (5 years on each count of culpable driving, but 1 year cumulated); R. v. Menzies [2001] VSCA 22 (where this Court reduced a sentence of 6 years to 4 years on the culpable driving charge).

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