DPP v Trueman [2017] VSCA 24

1 On 11 March 2016 the respondent pleaded guilty to two charges of culpable driving, one charge of negligently causing serious injury and one charge of possession of a drug of dependence, as well as a summary charge of driving whilst disqualified. The charges arose out of an incident when the respondent crashed the car he was driving into a minibus killing two of its passengers and rendering a third passenger a quadriplegic. At the time, the respondent was driving on the wrong side of the road. He was drug affected.

2 On 27 June 2016, the respondent was sentenced as follows:

20 years and/or Level 3 Fine [Crimes Act 1958 s 318 (1)]

Negligently cause serious injury [Crimes Act 1958 s 24]

10 years [Crimes Act 1958 s 24]

Possess drug of dependence [D_rugs, Poisons & Controlled Substances Act 1981_ s 73]

1 year and/or 30 penalty units [Drugs, Poisons & Controlled Substances Act 1981 s 73(1)(b)]

Drive whilst dis-qualified [Road Safety Act 1986 s 30]

2 years and/or 240 penalty units [Road Safety Act 1986 s 30(1)]

15 years' imprisonment with a non-parole period of 10 years

Drivers' Licence disqualified for 10 years from 12 August 2015.

3 The Director of Public Prosecutions appeals on two grounds. The first ground is that the sentences imposed on the culpable driving and negligently causing serious injury charges are manifestly inadequate. The second ground reduces to a complaint that the sentencing judge did not apply Harrison & Rigogiannis v The Queen[1] ('Harrison') when imposing the sentence for the charge of negligently causing serious injury. The second ground is a particular of the manifestly inadequate ground and also a stand alone ground.

4 At approximately 9.41 am on 12 August 2015, the respondent was driving a white Holden Commodore on the wrong side of Eastern Road, Rosebud. He crashed the vehicle into a minibus from Ti-Tree Lodge Nursing Home. Two passengers, Ms Katharina Nenstiel (aged 88) and Ms Betty Fox (aged 90) were killed (Charges 1 and 2). Mr Alby Maxwell (aged 84) was seriously injured and rendered a quadriplegic (Charge 3).

5 The respondent admitted at the scene that he was the driver of the vehicle. He was treated by ambulance officers and during treatment police found him to be in possession of a glass ice pipe and a small plastic bag containing ice (Charge 4). The respondent's blood was later tested and found to contain 3.45mg/L of methylamphetamine and 0.97mg/L of amphetamine. Dr Morris Odell of the Victorian Institute of Forensic Medicine reported that this was an extremely high level of the drug to be found in a living person, and that he was not aware of any other Victorian cases with drug levels as high. The respondent did not dispute that he had a significant quantity of the drug in his system, or challenge the evidence about how affected he would have been. The respondent did not have any quality sleep in the days leading up to the collision.

6 The respondent was seen driving faster than the 100 kilometre per hour speed limit on the Mornington Peninsula Freeway and overtaking cars before the collision occurred. He was also seen losing control of his car during an overtaking manoeuvre and steering into the path of oncoming vehicles. Another witness described having to swerve onto the wrong side of the road to avoid being hit by the respondent's car. The bus driver of the Ti-Tree Lodge minibus described the respondent's driving as out of control, and said that he had attempted to avoid the collision by swerving to the right. Scrape marks on the respondent's vehicle indicated that the car had hit the gutter before colliding with the minibus.

7 At the time of the incident, the respondent was a disqualified driver. He had been disqualified from holding a driver's licence in the Broadmeadows Magistrates' Court on 25 June 2015 for a period of two years (Summary Charge 7).

8 The respondent was 23 years old at the time he committed the offences and 24 years old at the time of sentencing. He had a traumatic family history. His father was violent towards him and other members of the family. His mother and father separated before he was born. Between 1994 and 1995 the respondent, his mother and brother lived in hiding from his father.

9 When the respondent was aged four, his brother (aged six at the time) died from a complicated illness that had persisted for some time. His brother's death had a profound impact on the respondent, and he was diagnosed with childhood depression shortly after it. The respondent was cared for by other family members following his brother's death, and this resulted in him experiencing separation issues. The offences were committed by the respondent on the 19th anniversary of his brother's death. The respondent was driving to a cemetery on the Mornington Peninsula to place flowers on his brother's grave.

10 The respondent attended a number of different primary schools. He struggled with socially adjusting, and was bullied and ostracised for being homosexual and for having interests in music and the performing arts. The respondent was suspended from school on a number of occasions, and began self-harming by the time he was attending his fourth primary school.

11 The respondent developed further mental health difficulties during his time in secondary school. He continued to be bullied, was still self-harming, developed anorexia, and was starting to miss school. In year seven, the respondent was sent to Perth to live with his father who was aggressive and violent towards him. His mother moved to Perth to try to help the respondent stay at school, but her efforts were unsuccessful.

12 Around this time, the respondent started using marijuana and other drugs. He returned to Melbourne and his difficulties in his relationship with his mother intensified. He was placed in a residential care facility, where he attended school for several short periods before ultimately ending his school education during year 11. The respondent was placed with a foster family for a short period.

13 The respondent began a three year relationship with a man he had met through the internet and ultimately moved in with him. He had some employment throughout this time. He began, but did not finish, a hairdressing apprenticeship, worked part-time at a body piercing shop for a six month period, and worked casually in hospitality roles. The respondent also completed a full-time diploma in hospitality and commenced a Certificate in Pathology. In the lead up to the offending, he had renewed his interest in hairdressing and was completing a Certificate III in hairdressing.

14 After his relationship with his partner broke down, the respondent began feeling suicidal and self-harming again. He sought treatment in a residential health facility for his drug and alcohol problems for two months. The respondent started a new relationship after this period of treatment. Shortly before the date of the collision, his new partner informed him that he (the new partner) was HIV Positive. On the day of the offending, the respondent and his new partner fought as the respondent was concerned about visiting his brother's grave, and his partner believed he was not supporting him in his HIV diagnosis. The respondent tried to arrange for an acquaintance (who he knew through his use of drugs) to take him to his brother's gravesite. The respondent also found out at this time that his acquaintance had been having a relationship with his partner. It was in these circumstances that the respondent agreed with his suggestion 'Well you take yourself there' (to the gravesite). The respondent was driving the acquaintance's car at the time of the offence.

15 The respondent was seeking residential treatment for his drug addiction at the time of his offending but was not able to find a place in a facility. He is not able to remember much about the accident, but accepts that he was incapable of having proper control of a vehicle at the time.

16 During his interview with police on 14 August 2015, the respondent made no comment other than to say he was 'just so incredibly sorry.'

17 The respondent was taken into protective custody in Ararat Prison because of the nature of his offending (which had attracted some publicity) and because of his sexual orientation. He has had support from his mother and step-father while in prison, but his mother is not able to visit him in jail due to serious illness. The respondent has completed a number of therapeutic courses whilst in custody.

18 The respondent had prior convictions for unlicensed driving, driving in a dangerous manner and driving whilst disqualified, as well as numerous convictions related to drink driving. He was serving a Community Correction Order at the time of offending. The respondent had never previously been sentenced to a term of imprisonment.

19 The respondent entered a plea of guilty to the charges at a committal mention on 3 December 2015. His plea hearing took place on 11 March 2016 and he was sentenced on 27 June 2016.

20 The sentencing judge noted the maximum penalties for each offence.[3] He mentioned the respondent's prior convictions and specifically referred to the aggravating factor that not long before the day of the collision, the respondent had been convicted of driving whilst disqualified and with a blood alcohol content exceeding .05% percent for which he was placed on a two year Community Correction Order.[4]

21 The sentencing judge found the respondent's culpability to be high.[5] The judge referred to the terrible effect of the crimes on the victims and their families and noted that the community is aghast at the respondent's behaviour.[6] The judge went on to note that the community must be protected.[7]

22 The judge noted that the respondent had been in custody since 14 August 2015, had served a period of pre-sentence detention[8] and had entered an early plea of guilty.[9] The judge took into account the respondent's genuine remorse,[10] his relative youth,[11] the need for totality and avoiding a crushing sentence[12] and that he would have few visitors in prison, with his mother's ill health being of concern to him.[13]

23 The judge also took into account that the respondent's borderline personality disorder, depression and anxiety would make his time in prison more burdensome.[14] The judge rejected the respondent's submission that these conditions reduced his moral culpability for the offences.[15]

24 The judge referred to the sentencing considerations of denunciation, general and specific deterrence.[16] In regard to the last of these, the judge noted the respondent's previous convictions and that his prospects for rehabilitation were poor.[17]

25 When it came to current sentencing practices, the judge said that he had full regard to the latest Sentencing Advisory Council sentencing snapshot and similar culpable driving cases where there were multiple deaths.[18]

26 On 16 December 2015, the Court of Appeal handed down its decision in Harrison.[19] In that case, this Court urged a change in sentencing practices for more serious instances of the offence of negligently causing serious injury resulting from driving a vehicle. The Court observed that current sentences were inadequate and should be increased. The Court said:

Sentencing courts should no longer consider themselves constrained by existing sentencing practice for offences of [negligently causing serious injury] by driving which fall within the upper range of seriousness.... The sentences imposed in the cases to which we have referred should not be viewed as setting any limit on the sentence that may be imposed in such a case. In particular, sentencing courts should not treat four years as a ceiling for this offence. Sentences for mid-range and lower-end instances of [negligently causing serious injury] by driving will also need to increase, in order to maintain appropriate sentencing relativities.[20]

27 The respondent's matter was listed for a formal plea hearing on 11 March 2016. The sentencing judge accepted the respondent's submission that Harrison had no application because at the time the respondent indicated that he would plead guilty (the committal mention on 3 December 2015) that decision had not been handed down.[21]

28 The judge sentenced the respondent as set out in [2] above.

29 The Director notes that the maximum penalty for culpable driving is 20 years, and the maximum penalty for negligently causing serious injury is 10 years. The sentence imposed in relation to each of charges 1, 2 and 3 represents only 40 per cent of the maximum penalty. The Director submits that the sentences imposed do not reflect the serious nature and objective gravity of the offending. In particular, the Director points to what the judge said during the plea hearing. In this regard, the judge described the applicant's driving as being 'as bad as it gets.'

30 The Director submits that the objective gravity of the offending is high when regard is had to the following matters:

(a) in 2012, the respondent was disqualified from driving for four years (which meant that he was prohibited from driving at the time of the collision);

(b) about seven weeks before the collision, he was sentenced for driving whilst disqualified and exceeding the prescribed concentration of alcohol with the result that he was placed on a Community Correction Order for 24 months and was disqualified from obtaining a licence for two years;

(c) the respondent had little sleep in the days leading up to the collision, he had consumed methylamphetamine before driving and was under the influence of that drug;

(d) the respondent drove erratically causing other cars to take evasive action until he finally lost control of his vehicle and crossed onto the wrong side of the road colliding with the minibus; and

(e) two passengers in the minibus were killed, one passenger was seriously injured and other passengers sustained minor injuries.

31 The Director submitted that it is well established by the authorities that general deterrence is a significant sentencing consideration for offending of this nature,[22] and that specific deterrence also looms large in this case. The Director referred to the respondent's 'appalling' driving history, particularly his numerous court appearances and convictions related to drink driving. The Director contends that this history demonstrates defiance of court orders and complete disregard for other road users. The Director submits that the fact that the respondent was driving whilst disqualified and under the influence of methylamphetamine is 'dangerous and selfish conduct' which requires denunciation. The Director contends that the respondent voluntarily, consciously and deliberately ingested large quantities of drugs on the day of the offending and that his decision to drive a vehicle was not spontaneous. The Director notes that the respondent drove on the wrong side of the road for long periods of time, forcing other drivers to take evasive action. The Director highlights the devastating consequences of the respondent's offending, illustrated in five Victim Impact Statements which were tendered on the plea. The Director submits that the respondent's sentence was not in keeping with current sentencing practice, given the seriousness of the offences.

32 The Director submits that less weight should be placed on the respondent's history given the gravity of this offence and his offending history. The Director notes that the respondent has had family support, and has had the support and supervision of Juvenile Justice and various court ordered programs in the past, which have had 'little to no effect' on him.

33 The Director submits that greater weight should be placed on community protection, given that the respondent appears to have been resistant to treatment and unconcerned with court orders.[23] In the Director's submission, the respondent's mental health issues and drug dependency are not sufficient to reduce the weight given to just punishment, general and specific deterrence, denunciation and protection of the community. The Director submits that the only matter justifying some moderation of the sentence imposed is the hardship the respondent would suffer in custody as a result of his depression, his sexuality, and the ill health of his mother.

34 The Director contends that Harrison should have been applied in sentencing the respondent. The Director accepted that it is current sentencing practice at the time a plea is entered that must be taken into account by the sentencing judge. However, the Director submits that a finding of guilt occurs when on arraignment an accused enters a plea of guilty, or a jury delivers a verdict finding the accused guilty,[24] not when a plea is entered at a committal mention. The Director notes that the respondent was not bound by the plea entered at the committal hearing, and could have elected to change his plea because of the decision in Harrison. As such, the Director submits that the sentencing judge was not constrained by current sentencing practice for sentences imposed up until December 2015. He maintained that because the judge had rejected the prosecution's submission that Harrison applied and had then imposed a sentence of four years it followed that the judge had treated four years as the ceiling for any sentence he might impose. The Director accepts that ordinarily increases in sentences, after this Court has concluded that current sentencing practice for a particular offence or category of offence required correction, should be incremental, and cites in that connection this Court's recent decision in Nam Son Nguyen v The Queen.[25] The Director also accepts that, while Harrison ought to have been applied, the guilty plea at the committal, before Harrison, was a relevant factor in its application to this case.

35 The Director submits that in light of all of the above, the sentencing judge gave excessive weight to the personal circumstances of the respondent, and the individual sentences imposed are manifestly inadequate or, in the alternative, the orders for cumulation are manifestly inadequate.

36 The respondent submits that the sentencing remarks reveal a very thorough consideration of all matters relevant to the offending and the offender. He submits that these matters were appropriately balanced against the various mitigating factors. The respondent submits that in pleading guilty to the offences, he was entitled to proceed on the basis that he would be sentenced in accordance with current sentencing practice and that his sentences fell towards the top of the existing range. The respondent relies upon his guilty plea at the committal, which was before Harrison, and emphasises that the process of taking a plea at that stage is a formal one under s 144 of the Criminal Procedure Act. In this connection the respondent also relies upon passages from relevant authorities which address the role of current sentencing practice in the 'decision making process' of a guilty plea, as opposed to the formal entry of a plea on arraignment.[26]

37 The respondent contends that the Director has failed to demonstrate that his sentence is inconsistent with current sentencing practice. The respondent notes the stringency of the test for an appeal based on manifest inadequacy.[27]

38 The first point to note is that the judge dealt with all the relevant sentencing considerations. His reasons are detailed and careful. The Director can only succeed if the judge's sentence (either on an individual charge or the total effective sentence) was wholly outside the permissible range of sentencing options open to the judge. It is not for this Court to impose a longer sentence simply because we may have done so if we had been the sentencing court.

39 In our view, the sentences imposed and the total effective sentence are within the range of sentencing options that were open. As has been observed before, the primary purpose of Crown appeals is to correct errors of principle.[28] In this regard, Crown appeals serve a different purpose from appeals brought by offenders.

40 In this case, as appears from what we have set out above, all of the matters to which the Director points were carefully considered by the judge in turn. In particular, in relation to general and specific deterrence, the judge said this:

General deterrence: Appellate courts in all jurisdictions in this country have repeatedly said that the crime of culpable driving is very serious and that the sentencing court must be guided by principles of general deterrence. Put shortly, the sentence I impose must send a clear message to those who may offend as you have, that if convicted there will be a stern sentence imposed. Accordingly, any sentence I impose on you must send a clear message to those in the community who might be of the inclination to offend as you have, that if they do so and they are detected the punishment from the court will be condign. In cases such as this, application of the principle of general deterrence will be a very important factor in sentencing. Offending of the type that you have engaged in will not be tolerated in this society.

Secondly: specific deterrence is also an important objective in the sentencing disposition for you. You have many prior convictions for driving offences, as I have already set out. I regard your prospects for a full rehabilitation as poor. Whether you can rehabilitate yourself, as with so many other young offenders, depends upon whether you can rid yourself of drugs. The sentence I pass must reflect appropriate application of the principle of specific deterrence to try to ensure that you do not reoffend in this way. In this regard what his Honour Justice of Appeal Priest said in Pasznyk v DPP [2014] VSCA 87 at paragraph 74 is apt where his Honour said:

'Were it not for the appellant's antecedents, I would have been minded to say that the sentence passed in this case paid insufficient regard to current sentencing practices. Emphasising once more, however, that the appellant is not to be punished again for his prior convictions, in my opinion they do set this case apart from most other cases of culpable driving. The appellant's circumstances are different from many (if not most) of those convicted of culpable driving. He had been warned by previous sanctions not to repeat his behaviour, yet he was heedless of those warnings (on this occasion with fatal consequences).'[29]

41 One cannot take it from the sentences imposed, nor from the judge's reasons, that he failed to give proper weight, or gave excessive weight, to any of the relevant sentencing considerations in this case.

42 Both the Director and the respondent referred to a number of cases which they submit demonstrate current sentencing practice for culpable driving and negligently causing serious injury. Courts aim to ensure that there is consistency in sentencing and in the application of relevant sentencing principles. The examination of comparable cases may assist in achieving this objective. That does not mean that a sentence must fall between the lowest and highest sentences imposed in the past. Rather, past sentences 'may inform a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle.'[30]

43 In the present case, many of the authorities to which the Director and the respondent referred could not be described as comparable. Some referred to by the respondent were very old, going back nearly 20 years. Some were cases decided when the maximum penalty for culpable driving causing death was 15 rather than 20 years. Suffice to say that those cases that were comparable suggest that the sentences imposed in this case are not inconsistent and do not offend relevant sentencing principles.

44 In respect of the negligently causing serious injury sentence, Harrison was handed down at a time when the respondent could have chosen to change his plea, if he were so minded. He did not. In those circumstances, the judge's observations about the applicability of Harrison were not correct. But nothing turns on this for the following reasons. First, and as senior counsel for the Director accepted in oral submissions, if sentences are to be increased following Harrison, that ordinarily should only happen incrementally. Second, in the circumstances of this case, Harrison did not require that a longer sentence be imposed. Given the offender's age, his early plea of guilty, and the other mitigating factors to which the judge referred, we do not accept that it ought to be inferred that the judge had treated four years as a 'ceiling' for the sentence he was to impose. Third, as senior counsel for the Director acknowledged, if the judge had applied Harrison, the fact that the applicant had pleaded guilty before that decision was handed down would still have been a relevant consideration for sentencing. Fourth, even if the sentence were to be increased to say, five years, cumulation of one year in the circumstances of this case could not be said to be clearly inappropriate. If the cumulation were unchanged, the total effective sentence would remain the same. In the circumstances there is little practical room for this Court to interfere with the sentence imposed on that offence. Fifth, the issue raised in respect of the applicability of Harrison in this case is not of sufficient importance as a matter of principle to warrant intervention, since this judgment will rectify the error made below without any need for alteration of the sentence. Consequently, whether as a particular of the manifest excess ground or as a stand alone ground of specific error, the Director's submissions concerning Harrison must be rejected as a basis for allowing the appeal. We do not consider that any different sentence should be imposed.

[1] (2015) 74 MVR 58.

[2] DPP v Trueman [2016] VCC 883 ('Reasons').

[4] Reasons [6]-[7], [29]-[33], [77].

[19] (2015) 74 MVR 58.

[22] R v Withers (2003) MVR 178 [15], Brayshaw v The Queen [2011] VSCA 233 [9]-[10].

[24] Criminal Procedure Act 2009 s 253B.

[25] [2016] VSCA 198.

[26] The passages relied upon were: DPP v DDJ [2009] VSCA 115; (2009) 22 VR 444, [65]; Winch v The Queen (2010) 27 VR 688,[27] and Harrison at [49].

[27] DPP v Zhuang [2015] VSCA 96 [47].

[28] Cf Green v R (Matter No S146/2011) [2011] HCA 49; (2011) 244 CLR 462 [36]. See further Director of Public Prosecutions v Oksuz [2015] VSCA 316; Director of Public Prosecutions v Sismanoglou (2016) 75 MVR 395 [37].

[30] The Queen v Kilic [2016] HCA 48 [22].