DPP v Towle [2008] VSC 101

3 Forty young persons bravely and with dignity gave evidence in this five week trial. They are persons to be proud of. There was great stress upon the adult witnesses also. Every witness from the Mildura area, teenager and adult alike, gave truthful and honest evidence before the court. Every one, without exception. The families and loved ones of the deceased and injured have been present throughout the trial. They have conducted themselves with most admirable dignity. On the plea numerous victim impact statements have been presented to the court. Most of them were formally read in open court.[1] I have read, and reread, every one of them. They are most moving and impressive documents. I also was most impressed by Ms Prowse, the mother of Shane and Abby Hirst, and by Mrs Calvi, the mother of Josephine Calvi, who gave evidence before me under their heavy burdens of loss.

4 At the trial you did not give evidence, Mr Towle, nor were any witnesses called on your behalf.

5 Beyond the courtroom, this case has been one of great emotion, and most understandably so. Within the courtroom, the trial proceeded by way of consideration and analysis, as it should. Sentencing also proceeds by consideration and analysis. They are the ways of the law.

6 The town of Red Cliffs lies some 20 kilometres south of Mildura. The hamlet of Cardross is to the west of Red Cliffs. Myall Street runs east-west between them. Boobook Avenue runs north-south and is the boundary between the town of Red Cliffs to the east and the hamlet of Cardross to the west. The area between Red Cliffs and Cardross is a rural area.

7 Myall Street is a bituminous roadway some 6 metres in width with gravel and grass verges. It is unlit at night and is a 100 kph zone. Travelling west to east (that is, from Cardross towards Red Cliffs) along Myall Street, before Boobook Avenue there are two bends and then a straight of some 300 metres to the intersection of Myall Street and Boobook Avenue, which is a cross intersection. There are no intersection signs facing traffic in either direction in Myall Street. There are stop signs facing traffic in Boobook Avenue. Travelling east, Myall Street deviates slightly to the south (right) at its western intersection with Boobook Avenue. These road conditions were so on 18 February 2006.

8 The night of Saturday, 18 February 2006 was a dry, clear, warm night in Cardross. In Myall Street, Cardross, on its south side one block west of its intersection with Boobook Avenue, a 16th birthday party was being held. Shortly after 9.30 p.m. you, Mr Towle, drove from your home at Nicholls Court, Red Cliffs the 3.8 kilometres west to your brother Darren's home at 573 Myall Street, Cardross. You drove there with your two young children, aged ten and four years, and with some blankets. In an act of irresponsibility, you had the four-year-old child on your lap throughout the journey. Your journey took you past the house of the birthday party. You saw the numerous children in that area. You arrived at your brother's house, which was 1.8 kilometres beyond the party house. You were at your brother's house but a few minutes and then commenced the return drive home, still with your youngest child on your lap. Before you did, your brother, referring to the numerous children outside the party house that he and his partner had seen as they drove past it shortly before you did, said "Did you spot the kids up there, Tom?". You replied that you had. Your brother then said "Take it easy on the way home". You did the opposite of the responsible injunction of your younger brother.

9 On the return trip east, having crossed an intersection with Dairtnunk Avenue and having negotiated the two curves in Myall Street, you drove at high speed along a straight stretch of Myall Street some 300 metres towards its intersection with Boobook Avenue. Your speed and lack of care and attention were such that you missed every visual cue until it was too late to retrieve the situation. You failed to observe the headlights of the Poulton vehicle on Myall Street facing you although Mrs Poulton, its driver, observed yours; you failed to observe its right-hand blinker operating; you failed to observe the numerous people beside the road, the persons, if any, on the north-east corner, the concrete pumping station on that corner, and the olive trees beyond the pumping station directly in line of sight of your headlights. You failed to see that the roadway deviated to the right. You did not even see that there was a corner, as you told Senior Constable Smith the next morning. Until it was too late.

10 You then sought to correct the situation that your speed and inattention had created by urgently steering to the right, thereby losing control of your vehicle 20 metres before the intersection and skidding off the roadway to your right 40 metres beyond the intersection. Off the roadway your vehicle struck a group of children who were to the side of the road. There had not been one child or adult on the roadway. Not one. It was your speed and lack of attention, Mr Towle, which caused these catastrophic consequences. There was no mechanical factor in the vehicle you were driving which caused the loss of control and no physical factor in the roadway either. These tragic deaths and injuries were caused by you and you alone.

11 On the evidence, and bearing in mind that adverse factual findings on sentence must be established beyond reasonable doubt and be consonant with the jury's verdicts, I am unable to conclude at what precise speed you drove your vehicle along that straight. Certainly it was above 100 kilometres per hour. Mrs McCarron's over-estimate of your speed at the earlier intersection of Dairtnunk Avenue - her evidence otherwise was entirely accurate - was a function of the reaction your driving caused her. However, there is a constancy of estimate of speed by the adult witnesses, some very experienced of speed, at the party house; and there is a constancy of evidence among adults and young persons alike that their attention was drawn to your approaching vehicle by its sound and its sight. Witnesses described both tyre noise and engine noise (the latter variously described as "screaming", "roaring", "revving" and "whistling"). Witness after witness described the appearance of your vehicle or its headlights as it approached the intersection as "flying" - this even though the area was a 100 kilometre per hour zone and the witnesses were accustomed to country speeds. Your vehicle was a loud vehicle, as Ms Rayson noted even at low speed; but mechanical examination two months before by the experienced roadworthy mechanic, Mr Endrizzi, established that it was not then excessively noisy; and after the events, external observation (without starting the engine) of the exhaust system by Senior Constable Ackland did not indicate a leaking system. In my findings of fact I take Ms Rayson's evidence into account, together with the fact that the witnesses' visual observation of the vehicle and its headlights was very brief and that the observations were at night. At the time you lost control of the vehicle, 20 metres before the intersection, your vehicle was travelling at between 98 and 108 kilometres per hour, as the evidence of Sergeant Bellion established. From the start of skid marks indicting your loss of control of the vehicle to the impact with the victims was some 60 metres continuous skidding in a curve to the right. Your vehicle was almost completely sideways as it came off the roadway to the right. It was travelling at approximately 75 kph when the front left side of your vehicle struck the victims off the roadway.

12 A most serious element of your criminal driving was not physical but psychological: you knew that there were, or were likely to be, numerous children in the area of the party house. You knew that they were, or were likely to be, a couple of kilometres (1.8 kilometres in fact) along Myall Street going east from your brother's house, because you had just traversed it going west. You knew they were, or were likely to be, not far from the two curves in Myall Street, because you had just been there. You had just been reminded of it by your younger brother. Your knowledge that there were, or were likely to be, numerous persons in the relevant area is an especially egregious element of your dangerous driving, Mr Towle.

13 This is not a case of unexpected circumstances. This is not a case of a momentary lapse of attention. This is a case of multi-faceted lack of attention at high speed at night and with knowledge of risk. And with terrible consequences.

14 The jury found you not guilty on all counts of culpable driving causing death (counts 1-6)[2] and of negligent driving causing serious injury (counts 7-10)[3], as well as the other counts, and found you guilty on the alternative counts to counts 1-10, namely dangerous driving causing death or serious injury.[4] It is for those dangerous driving offences that you are to be sentenced, Mr Towle. It is essential that the sentences, and the facts found in sentencing, are consistent with and faithful to the jury's verdicts. The proper construction of the jury's verdicts, in my view, is not that the jury were not satisfied of the constituent driving elements alleged of speed, inattention and knowledge, but that the jury characterised that driving - not the consequences, but the driving - not as gross criminal negligence[5], but as dangerous. I proceed on that basis.

15 I return briefly to complete the narrative. Upon surveying the scene, Mr Towle, you left your own little children, who themselves were traumatised, and disappeared for five hours. It was not you but the decency of the afflicted families that ensured your own children were properly cared for. Your story to your family that persons at the scene had baseball bats was false. The action of the 15-year-old Andrew Arden who threw a bottle in your direction was a spontaneous expression of frustration at the utter wantonness of your driving. His evidence was truthful and accurate and he was a decent young person. The verdicts of the jury on counts 11 and 12 (failing to stop and to render assistance) mean that the prosecution failed to exclude beyond reasonable doubt each element of necessity.

16 The scene you left behind was one of devastation. The numerous laypersons - adult and child alike - ambulance personnel and police officers who sought to help the injured and dying were truly heroic. I commend every one of them. So, too, Dr Turner and the staff at the Mildura Base Hospital. I commend Sergeant Cripps, the informant, who had the carriage of a very demanding and substantial case.

17 Mr Towle, you are now 36 years of age. You have a loyal and loving partner and family and five children. You and your family have conducted yourselves with propriety throughout these proceedings. You and your family have borne a heavy burden of the proceedings. During the trial your younger brother, Darren, gave evidence in difficult personal circumstances. His evidence was truthful and I was impressed by him. During the plea Mr Phillip Krakouer gave evidence on your behalf. I was most impressed by Mr Krakouer, and take into account the evidence he gave, and also the report of Ms Carla Lechner, psychologist, of 18 March 2008 exhibited before me. Your period in detention since your arrest on 19 February 2006 has been especially restrictive and burdensome, added to by the prospect and uncertainty of these proceedings and by the consciousness of your offer to plead guilty to the crimes of which ultimately you were convicted. Future incarceration is also likely to be more restrictive than usual.

18 Mr Towle, you had a bad record of disregard for the law and for the orders of the courts by your driving prior to this tragedy. However, you have shown following a previous period of imprisonment that you are capable of learning. You have remorse for these crimes, although at the committal on your instructions your senior counsel put to numerous witnesses that the group you struck were on the road, and at the trial your present senior counsel put to the jury the opposite; and that you were not guilty of any crime, including the crimes of which the jury found you guilty. I take centrally into account that through your solicitors you offered to plead guilty to the crimes of which the jury has found you guilty, not only before trial but before committal. I have observed you throughout these lengthy proceedings. I consider that you now have good prospects for rehabilitation.

19 I turn to the considerations of sentencing here applicable.

20 The primary principles of sentencing here relevant[6] are denunciation, punishment, general deterrence and reformation: denunciation, because the court and the community denounce your conduct and its devastating consequences; punishment, because you are to be punished for that conduct and its consequences; general deterrence, because the deterrence of others from criminal driving is an important function of sentencing in such cases; and reformation, because that is always important. In your case, for the reasons I have stated in paragraph 18, I consider that special deterrence is now of lesser significance and is subsumed in the element of reformation.

21 Given the evidence proved beyond reasonable doubt of the dangerous driving including knowledge, I consider that your driving on the fatal night falls within the worst category of dangerous driving. The sentences imposed on each count also reflect the mitigatory factors I have stated and particularly your preparedness to plead guilty before both committal and trial and your reformation. The sentences on the serious injury counts reflect that, serious though the injuries, especially psychological, are to Ms Carter and Mr Prowse-Thompson, the injuries sustained by Mr Medici and Mr Pezzaniti were even worse. When Marco Medici was admitted to the Alfred Hospital his heart had stopped. He has undergone 13 major operations as the result of the impact. He was unable to walk at all for nine months. He has permanent injuries. Nicholas Pezzaniti suffered numerous severe fractures and injuries. He has undergone six major operations. He has limitation in walking. Every one of the living victims has been deeply traumatised. The sentences also reflect that at common law, sentences for serious driving offences are steadily increasing, as they should.[7]

22 At the time of these offences, the maximum sentence for each of the offences was five years' imprisonment.[8] Mr Towle, on each count of dangerous driving causing death, counts 1-6, I sentence you to 3½ years' imprisonment. On the counts of dangerous driving causing serious injury, on each of counts 7 and 10 (Marco Medici and Nicholas Pezzaniti), I sentence you to two years' imprisonment; and on each of counts 8 and 9 (Renee Carter and Bradley Prowse-Thompson), I sentence you to one year's imprisonment.

23 By operation of law, those sentences are to be served concurrently unless I order otherwise. Therefore I turn to the question of cumulation of these sentences.

24 The three central facts - not the only facts, all of which I have reviewed above, but the three central facts - are that there was one limited course of driving, your knowledge of the presence or likelihood of numerous persons at the scene, and that there were six deaths and four sets of serious injuries. Your driving was one, limited, action: three hundred metres of speed, inattention and knowledge. It was not extensive in time or place. Further, because there was only one, limited, course of conduct - one action, as the authorities say - it would be wrong in law and in fact to double count or to double punish, let alone to count ten times or to punish ten times. But it would equally be wrong to fail to take into account on sentence, in particular when you knew of the presence or likely presence of numerous persons in the area, that your dangerous and criminal driving caused six deaths and four sets of serious injuries. It is therefore appropriate to direct an amount of cumulation of sentence on these counts.[9]

25 Keeping in mind as one must the different statutory schemes amongst the States and Territories as to service of sentence, Australian common law does not require that in the case of multiple similar offences arising from the one course of conduct, the total sentence must be no more than the maximum legislative penalty for one of the offences.[10] Of course, there should not be double-counting, or ten-fold counting, of the same thing, as I have said. But killing six persons and seriously injuring four others in the same course of conduct involves different criminality from killing or seriously injuring one person by that conduct. No court in Australia says otherwise. That is so both where intention is involved (not this case) and where knowledge of risk is involved (as here). There is no principle of law or of logic which requires that in the case of multiple offences arising from the one course of conduct, the total sentence must be no more than the maximum legislative penalty for one of them. To require that the total be no more than the maximum for one would indeed reduce human victims to mere numbers; or, in the words of the illustrious President in DPP v Solomon, to a "meaningless statistic".[11] Neither parliament nor the courts so reduce people. These victims were not and are not statistics; they were and are human beings, every one entitled to the full protection of the law. Where there are multiple counts arising from the one course of driving, it is not the statutory maximum penalty on any one count but the principle of totality which is the limiting factor upon the total sentence to be imposed.

26 I turn to the amount of cumulation of sentence that I should order.

27 As well as the mitigatory factors I have stated above, there are two modifying factors which especially apply to cumulation. The first, which I have already stated, is that all the offences were part of one action of driving. The second is the principle of totality. The principle of totality acknowledges that only one person will serve the sentences, that that person is a person and not a mathematical number, and that the total sentence must be appropriate and just, give proper measure to rehabilitation, and not be crushing. It is especially important to remember that the amount of cumulation ordered on a count is in no way a measure of that victim's death or injury.

28 The maximum penalty for each of the offences was at the time five years' imprisonment. The maximum penalty is now ten years' imprisonment for dangerous driving causing death and five years' imprisonment for dangerous driving causing serious injury.[12] It is the penalty at the time of the offences which must be applied. Further, the jury acquitted you of the charges laid of culpable driving causing death and negligent driving causing serious injury. The penalty for culpable driving was twenty years' imprisonment; for dangerous driving, five years' imprisonment. That is a very substantial difference which must be acted upon. However, the relationship of sentence on dangerous driving and on culpable driving is not a mere mathematical extrapolation; that is, a sentence on the one is not necessarily one quarter of the other, or vice versa. Nor do the principles of cumulation operate as a linear equation. Rather, the principle of totality operates so that the greater the number of counts upon which sentence is to be imposed the greater is the restricting effect of the principle of totality upon the amount of cumulation directed on each count.

29 Applying those principles, I sentence you, Mr Towle, as follows.

30 Pursuant to s.18 Sentencing Act 1991 I declare that you have served 771 days in pre-sentence detention and I so certify. That means that that period of time is deducted from the period of imprisonment I order today.

31 Pursuant to s.89(1)(d) Sentencing Act 1991 I order that all driver licences held by you are cancelled and that you are disqualified from obtaining any driver licence for a period of ten years from today.

32 As to cumulation of sentence, I order that one year of each of the terms of imprisonment imposed on counts 2, 3, 4, 5 and 6, and six months of each of the terms of imprisonment imposed on counts 7 and 10, and three months of each of the terms of imprisonment imposed on counts 8 and 9 be served cumulatively upon the sentence imposed on count 1 and upon each other, making a total effective sentence on all counts of 10 years' imprisonment. I direct that you serve a period of 7 years' imprisonment before being eligible for parole.

[1] s.95F(1) Sentencing Act 1991.

[2] s.318(1) Crimes Act 1958.

[3] s.24 Crimes Act 1958.

[4] s.319 Crimes Act 1958, introduced by s.6 Crimes (Dangerous Driving) Act 2004 and which commenced operation on 13 October 2004.

[5] s.318(2)(b) Crimes Act 1958. Expressed more fully, as stated in DPP v De'Zilwa [2002] VSCA 158; (2002) 5 VR 408 at [46] per Charles JA and in whose reasons Ormiston JA and O'Bryan AJA agreed:

"... the jury are required to find the driving of the accused involved such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances and which involved such a high risk that death or serious injury would follow, that the driving causing death merited criminal punishment."

I do not think that the final eight words of that passage now provide a useful discrimination from the statutory alternative introduced in 2004 by s.6 Crimes (Dangerous Driving) Act 2004 as to which the maximum penalty was five years' imprisonment and now is ten years' imprisonment for dangerous driving causing death (s.5 Crimes Amendment (Child Homicide) Act 2008). See also R v Scott [2003] VSCA 55; (2003) 141 ACrimR 323 at [18] per Winneke P and in whose reasons Phillips and Buchanan JJA agreed.

[6] DPP v Oates [2007] VSCA 59; (2007) 47 MVR 483 at [21] per Neave JA in whose reasons Warren CJ and Nettle JA agreed; R v Whyte & Ors [2002] NSWCCA 343; (2002) 55 NSWLR 252 at 286 per Spigelman CJ; R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209; R v Price [2004] NSWCCA 186 at [35]- [38]; and the authorities cited therein.

[7] See DPP v Chambers [2006] VSCA 189 at [29] per Nettle JA and in whose reasons Ashley JA and Coldrey AJA agreed; and more generally R v AB (No. 2) [2008] VSCA 39 at [40] per Warren CJ.

[8] s.319 Crimes Act 1958. As to sentences imposed, both in relation to culpable driving and to dangerous driving, and bearing in mind where arising the principles of double jeopardy and of Director's appeals, see R v Campbell [2005] VSCA 225, R v Chambers [2006] VSCA 189; (2006) 47 MVR 22, R v Brown [2003] VSCA 153; (2003) 39 MVR 293, R v Kennedy [2006] VSCA 77; (2006) 45 MVR 208, R v Church [2005] VSCA 8; (2005) 42 MVR 420, R v Tran [2002] VSCA 52; (2002) 4 VR 457 and R v Ioane [2006] VSCA 34 (relied upon by Mr Gamble) and DPP v Walden [2003] VSCA 139; (2003) 39 MVR 451, DPP v Calderera [2003] VSCA 140, R v Birnie [2002] VSCA 155; (2002) 5 VR 426, R v Ciantar [2006] VSCA 263; (2006) 16 VR 26, R v Scott [2003] VSCA 55; (2003) 141 ACrimR 323, R v Dickinson [2007] VSCA 111, R v Heron [2003] VSCA 76; (2003) 39 MVR 117 and R v Mitchell [2005] VSCA 304; (2005) 44 MVR 567 (relied upon by Mr Richter).

[9] DPP v Johnstone [2006] VSCA 281; (2006) 16 VR 75 at [15] and [22] per Warren CJ, and notably therein the criterion of 'sensible' in "sensible portion"; R v Guariglia [2001] VSCA 27; (2001) 33 MVR 543 at [20]- [22] per Winneke P; DPP v Whittaker [2002] VSCA 162; (2002) 5 VR 508; DPP v Solomon [2002] VSCA 106; (2002) 36 MVR 425 at [19] per Winneke P and in whose reasons Buchanan JA and O'Bryan AJA agreed; and DPP v Gany [2006] VSCA 148; (2006) 163 ACrimR 322 at 331-332. See also the observations of McLure JA in Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259 at [7] and [29].

[10] Pearce v R (1998) 194 CLR 610 at [40]-[42] per McHugh, Hayne and Callinan JJ; Johnson v R [2004] HCA 15; (2004) 205 ALR 346 at [33]; R v Musson [1997] 1 VR 656; R v Penn (1994) 19 MVR 367; AG v Woolnough, Victorian Court of Criminal Appeal, 4 June 1981; R v Wilkins (1988) 38 ACrimR 445 at 450 per Lee CJ at CL and with whom Carruthers J agreed, Allen J dissenting; Kay v The Queen [2004] WASCA 222; (2004) 147 ACrimR 401; and Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259. In Musson cited, Hedigan AJA (with whom Winneke P and Hayne JA agreed) stated "a machine gun may kill a dozen people"; in Wilkins cited, Lee CJ at CL stated "it seems extraordinary at the outset that it can be said that, whether you kill one or whether you kill fifty, the penalty is to be five years, provided you do it on the one occasion ...". Both Kay and Wilkins were matters where the total sentence imposed exceeded the statutory maximum for the one offence.

[12] s.5 Crimes Amendment (Child Homicide) Act 2008 which came into operation on 19 March 2008.