DPP v Solomon [2002] VSCA 106

5. The respondent admitted nine prior convictions from four court appearances, the most recent of which was at the Magistrates' Court at Ringwood on 25 May 1999 when she was convicted, inter alia, of two charges of driving a motor vehicle whilst her licence was cancelled. When the instant offences were committed the respondent was unlicensed. She consented to the County Court dealing with an information laid in the Magistrates' Court of driving a motor vehicle without being the holder of a driver's licence and was fined $200. This appeal is not concerned with that conviction or penalty. She admitted previous instances of driving with an excessive alcohol limit in 1989 and exceeding the speed limit by more than 50 kilometres per hour in 1992. Since then she has never sought to regain her licence .

8. The maximum penalty for culpable driving was 20 years' imprisonment at the date when these offences occurred.

11. After hearing a plea for leniency, during which a nurse from Access Drug and Alcohol Service was called as a witness for the appellant and seven victim impact statements from the parents of the deceased and family members and friends were tendered, the sentencing judge on 4 March 2002 imposed the following sentences upon the respondent:

The judge ordered that twelve months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of seven years' imprisonment. A non-parole period of four years was fixed and a declaration was made pursuant to s.18 of the Sentencing Act 1991 that the respondent had spent 12 days in custody.

17. Subsequently, the Director of Public Prosecutions appealed against the sentences on the ground that the sentences were manifestly inadequate. The following particulars were provided:

"The learned sentencing judge erred in that he: (a) imposed sentences on counts 1 and 2 which are each manifestly inadequate. (b) failed to adequately reflect the seriousness of the offences generally and in this case in particular; (c) failed to take into account or sufficiently take into account the aspect of general deterrence; (d) failed to take into account or sufficiently take into account the aspect of specific deterrence; (e) gave too much weight to factors going to mitigation; (f) ordered insufficient accumulation as between sentences imposed on counts 1 and 2; (g) gave insufficient weight to the respondent's relevant prior convictions."

22. On 25 November 2000, in the late afternoon and in daylight, a two-vehicle collision occurred on Manchester Road at Mooroolbark about 20 metres south of Wynyard Drive. A Subaru sedan driven by the respondent in a northerly direction along Manchester Road lost control and collided with the south-bound Volkswagen being driven by Penelope Cooper. Her younger sister, Fay, as I have said, was seated directly behind Penelope. A number of witnesses using the roadway made observations of the Subaru being driven erratically. The Subaru was seen to be speeding and slowing, and then accelerating before going through a red traffic light, then hitting the median strip and careering out of control on to the eastern side of the roadway and into collision with the driver's side of the Volkswagen. One witness noted the Subaru going very fast, swaying from side to side.

25. After the collision the respondent was heard to use abusive language (to wit "You stupid fucking bitch") towards the Volkswagen's mortally wounded driver and was seen to be drinking from a can of alcohol and staggering about. The two badly injured sisters were taken to Maroondah Hospital but, unfortunately, died soon after their arrival. It is apparent that the respondent was so drunk that she could not recognise the state to which she had reduced the sisters in the Volkswagen.

28. Police at the scene observed the respondent to be slurring her words and affected by liquor. A breath test at the police station showed a blood alcohol concentration of .168 per cent at 6 p.m., more than three times the legal limit. When the respondent was seen at the police station by a doctor at 7 p.m. he formed the impression that she was drunk, and too drunk to be interviewed. A further test for drugs showed a reading of .01 micrograms per millilitre of tetrahydrocannabinol, resulting from the use of cannabis.

31. A forensic physician, Dr Odell, after allowing for post-collision drinking, opined - generously, as it seems to me, from the respondent's point of view - that the concentration of alcohol in the blood could have been no more than .105 per cent at the time of the collision. He stated, however, in a report that the presence of both alcohol and cannabis meant that the respondent would have been very adversely affected by the combined effects of alcohol and drugs at the time of the collision.

34. When the respondent was interviewed by police the following day she admitted to consuming three cans of Cougar bourbon and cola at her brother-in-law's home the previous afternoon, and that she had left the home after a quarrel with her then common law husband, to whom she is now married. She only recalled "a big bang" during the drive home.

37. Police forensic evidence indicated that prior to impact the Subaru was travelling at a speed of approximately 70 kilometres an hour and lost control as it was over-steered to the right.

40. Counsel for the respondent conceded before the trial judge that a custodial sentence was expected, but argued that the facts relating to the collision did not disclose what he called "a worst case scenario" for culpable driving. Before the judge he relied upon five mitigating factors:

(i) The respondent is the mother of four children, the youngest two in her custody, aged ten and four years.

(ii) The early plea of guilty.

(iii) The respondent had never before been in prison.

(iv) The events have caused her to become depressed.

(v) Her early childhood was one of deprivation, she having been abandoned by her own parents at birth and placed for adoption. At one stage of her life she spent twelve months in Winlaton in need of care.

46. A witness from Access Drug and Alcohol Service, Ms Harris, was consulted by the respondent after the collision seeking support and counselling for her alcohol problem. She found the respondent anxious and depressed. There were two reports tendered to the trial judge from the forensic psychologist, Mr Joblin.

49. In his sentencing remarks the judge said he was required to apply principles of deterrence. He considered, however, that the respondent's insight into the consequences of her actions would be sufficient deterrence for her, but general deterrence nevertheless was to loom large in culpable driving cases.

52. On this appeal the Director of Public Prosecutions, Mr Coghlan, submitted that, although the head sentence imposed on each of the counts was, as he said, "within the range", the total effective sentence imposed by his Honour, and the non-parole period, were, and could be seen to be, manifestly inadequate in all the circumstances. He submitted that in particular the judge had erred in failing to appropriately exercise his discretion as to cumulation. This in turn had led to an overall sentence which could be seen to be manifestly inadequate. The Director submitted that there were many aggravating circumstances associated with this offending. Here, it was submitted, the driving was extremely bad and accompanied by consumption of a cocktail of drink and drugs. The respondent, it was contended, had a poor driving record and permitted herself to snub regulations by continuing to drive without a licence. The Director also submitted that his Honour's findings undervalued the need for specific deterrence, having regard to the irresponsible attitude adopted by the respondent as to her driving habits over a very long period of time.

55. On behalf of the respondent, Mr Shwartz submitted that his Honour was entitled to compose a sentence which allowed a substantial period of supervision which effectively catered for aspects of specific deterrence. Having been suddenly taken from her family in the circumstances in which she has been is, so he submitted, in itself a deterrent for her. Mr Shwartz endorsed the Director's view that the head sentences imposed by his Honour were "within the range". He referred to the decision of Wells, J. of the South Australian Full Court in Attorney-General v. Tichy[1], emphasising the discretionary nature of cumulation orders, which do not lend themselves easily to appellate intervention. In the circumstances of this case, he submitted, the total effective sentence is still "within the range" available to the judge; certainly, he submits, not so far outside the range as to warrant interference, in the sense that it offends basic sentencing principles. He further submitted that the sentence itself, when viewed at large by right thinking members of the community, would be regarded as appropriately satisfying principles of general deterrence, particularly having regard to the personal circumstances of the respondent.

58. On reflection, I am well persuaded that the Director is correct in his submission that the sentencing discretion of the trial judge has miscarried in two significant respects: first, in concluding that there was no need for specific deterrence to figure in the composition of an appropriate penalty because what the respondent "has gone through so far with the court processes" and her "insight into the consequences of [her] actions" would be "sufficient specific deterrence"; and, secondly, in cumulating only one year of the sentence imposed on the second count as a consequence of the application of "principles of totality and cumulation".

61. Although one never ceases to be amazed at the variety of circumstances which offenders contrive for putting innocent lives in jeopardy upon our roads, the circumstances in which this respondent chose to enter her car and thereafter to drive it can only be described - as the judge described them - as "appalling" and as "an accident waiting to happen". For her own selfish reasons she determined to enter her car when she was, to coin a phrase, "in a paralytic state" and, knowing that she had no legal right to drive that car, chose to drive it at a busy time, in a most dangerous manner, along busy roads. It is apparent that her course of driving prejudiced several road users up to the point where the inevitable happened: and two innocent lives were lost. Not only do these circumstances appear to be consistent with her unenviable driving history, but they demonstrate a thorough disregard for the laws and customs which regulate - or are intended to regulate - the use of our roads. To drive a car on busy roads when you know you are not licensed to do so, and to do it when you are drunk, is to "thumb your nose" at the standards which our society expects of its drivers. The saturation publicity given to the consequences of this type of conduct and the overt action taken by governments to deter it by increasing the penalty to the point where the maximum now stands at 20 years, appear to have meant little or nothing to this respondent. The circumstances surrounding this offending, combined with the respondent's driving history, in my view, called for punishment which significantly reflected the purposes of both specific and general deterrence, if only to remind the respondent that the type of misconduct in which she engaged is no longer regarded by the community as a form of anti-social behaviour masquerading as a criminal offence. In truth the offence of culpable driving causing death is a species of "involuntary manslaughter" and is punishable as such. I venture to repeat what I said in R. v. O'Connor[2] more than three years ago:

"If there is still a residual opinion existing in this community that the offence of culpable driving is not to be treated like other criminal offences because it is "a tragedy for all concerned" ... then in my view the time has come for such views to be dispelled. Offences of culpable driving are commonly committed by persons who are of good character, but it must be understood that the community will not tolerate the taking of human life by acts of gross negligence of the sort that occurred in this case. The offence is a species of involuntary manslaughter, and it must be treated as such."

65. Furthermore, it seems to me that the cumulation of only one year of the sentence imposed on the second count upon the sentence imposed on the first count fails to signify the overall gravity of the respondent's conduct, tending to treat, as it does, the death of the younger victim as a meaningless statistic, when the victim impact statements eloquently demonstrate that, in essence, a generation of children was lost. It is true, as his Honour said, that in cases of this sort where multiple deaths ensue, due regard must be paid to the principles of totality and to the fact that the multiple deaths arose from a single course of driving conduct. But, in my opinion, it is pushing those principles too far to cumulate only one year of the sentence on the second count upon the six years imposed upon the first count. Even in cases where counts of culpable driving have been joined with counts of negligently causing serious injury, this Court has expressed concern that the minimal cumulation driven by the five-year maximum sentence for the latter offence tends to circumscribe appropriate punishment (cf. R. v. Taylor[3]; R. v. Guariglia[4]). As was said in Guariglia (at [21]), where cumulation of three years had been ordered:

"So long as the cumulation does not offend the principle of totality it is ... properly within the exercise of a sound discretion to recognise the fact that the culpable driving has caused multiple deaths by cumulating a sensible portion of the sentence imposed for one offence upon the sentence imposed for the other."

In this case, in my opinion, the judge has failed to do that. For the reasons stated, I am driven to the view that the total sentences imposed by the judge are manifestly inadequate to meet the seriousness of the offending of the respondent; and that that is so notwithstanding the respondent's plea of guilty and the other personal circumstances upon which the respondent so heavily relied in the court below and in this Court through Mr Shwartz. As I have already said, the offence of culpable driving is peculiar in the sense that it is a serious offence common to both men and women and is not infrequently committed by those who are otherwise of good character and who stand to suffer hardship upon conviction. In this respect, the respondent's hardship, including the deprivation of her children, must be kept in its proper perspective. They are matters proper to be taken into account in the exercise of the sentencing discretion, but not to the point where the gravity of the offending and the appropriate principles of sentencing are overlooked. That is, in my view, what has happened here and has led to a manifestly inadequate total effective sentence and non-parole period.

70. The appeal must therefore, in my opinion, be allowed. In re-exercising the sentencing discretion I am conscious of the restraints imposed upon the Court by virtue of the principles of double jeopardy. Those principles are so well known that no purpose is served by re-stating them at length here. They have been collected in such High Court authorities as Griffiths[5]; Malvaso[6]; Everett & Phillips[7]; and in this Court in DPP v. Whiteside & Dieber[8]; R. v. Clarke[9]; DPP v. Bulfin[10]. Mr Shwartz, in the course of his able submissions, has reminded us of those principles. Bearing in mind the restraints, it is nevertheless the obligation of this Court to do what it can do to maintain proper sentencing standards in this State. In all the circumstances I would, in re-sentencing, leave intact the sentences of six years imposed by the judge upon each count; but I would cumulate three years of the sentence imposed on the second count upon the sentence imposed on the first count. The total effective sentence would therefore be nine years' imprisonment. I would order the respondent to serve six years' imprisonment before becoming eligible for parole. I would also order that she be disqualified for a period of seven years dating from 4 March 2002 from obtaining any further licence to drive a motor vehicle.

82. The formal order of the Court is that the appeal is allowed.

The sentences imposed below are quashed and in lieu thereof the respondent is sentenced as follows.

On each of counts 1 and 2 a term of six years' imprisonment is imposed. The Court orders that three years of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1. The total effective sentence will therefore be one of nine years. The Court orders that the respondent serve six of those nine years before becoming eligible for parole.

The Court also orders that the respondent be disqualified for a period of seven years dating from 4 March 2002 from obtaining any licence to drive a motor vehicle.

Pursuant to s.18 of the Sentencing Act 1991 we declare that the respondent has already served 146 days of the sentence which this Court has imposed.

[1] (1982) 30 S.A.S.R. 84 at 93.

[2] [1999] VSCA 55 at [19].

[3] [1999] VSCA 206 at [13].

[4] [2001] VSCA 27 at [20].

[5] [1977] HCA 44; (1977) 137 C.L.R. 293.

[6] [1989] HCA 58; (1989) 168 C.L.R. 227.

[7] [1994] HCA 49; (1994) 181 C.L.R. 295.

[9] [1996] VICSC 30; [1996] 2 V.R. 520 at 522.

[10] [1998] 1 V.R. 155.