DPP v Walden [2003] VSCA 139

Court of Appeal (Vic)|2003-09-12|Before: PHILLIPS, C.J., VINCENT, J.A. and ASHLEY, A.J.A.

Criminal Law - Sentence - Crown Appeal - Single counts of culpable driving, reckless conduct endangering persons and theft of motor vehicle - Charge of driving whilst unlicensed - Young offender with bad driving record - Short course of conduct giving rise to counts of culpable driving and reckless endangerment - No evidence that persons actually endangered - Matters in mitigation - Prospect of rehabilitation - Alleged complicity of deceased in offending conduct - Interruption of pre-sentence detention by imprisonment for earlier offence - Total effective sentence of 5 years and 6 months imprisonment with non-parole period of 2 years and 6 months increased to 6 years and 3 months with non-parole period of 3 years and 7 months - Fresh sentences discounted for double jeopardy.

I agree that this appeal should be allowed and the respondent re-sentenced as proposed by Ashley, A. J.A. I do so for the reasons advanced by him.

The respondent, David Walden, pleaded guilty in the County Court at Melbourne on 17 December 2002 to the following offences:

One count of reckless conduct endangering persons (Count 2).

He also admitted his guilt with respect to a summary offence of driving whilst unlicensed.

The maximum penalties for the various offences are as follows:

Count 1 (s. 72 Crimes Act 1958) 10 years imprisonment

Count 2 (s. 23 Crimes Act) 5 years imprisonment

Count 3 (s. 318 Crimes Act) 20 years imprisonment

Driving whilst unlicensed (s. 18(1)(a) Road Safety Act 1986) 3 months imprisonment and/or $2,500 fine.

On 11 March 2003 the respondent was sentenced as follows:

The judge cumulated 6 months of the sentence on Count 2 on the sentence imposed on Count 3. The total effective sentence was thus 5 years and 6 months. The judge fixed a non-parole period of 2 years and 6 months.

Now the Director appeals against the sentence which was imposed. The sole ground of appeal is that the individual sentences imposed, the total effective sentence and the non-parole period were each manifestly inadequate.

The various offences were connected in different ways with a single vehicle accident which occurred at about 1.43 am on Saturday 15 December 2001.

The vehicle in question was then being driven by the respondent, a man born on 27 September 1978 and so aged 23 years at the time.

The respondent was an unlicensed driver. Indeed he had never held a licence.

In the motor vehicle with the respondent, riding in the front passenger seat, was Aaron Stacey, a man aged 22. He died at the scene of the accident.

The motor vehicle, a Ford TX5 Turbo, had been stolen by the respondent on the day preceding the fatal incident (its theft was the subject-matter of Count 1).

Before setting out from Mr Stacey's Whittlesea home, their destination being a nightclub in Melbourne, the respondent and others including Mr Stacey had smoked marijuana. Earlier, the respondent had used amphetamines.

Whilst the respondent's vehicle was travelling along Plenty Road, Mernda, a police car came up behind it. The police car had its red and blue lights flashing, a circumstance which at the outset was unrelated to the respondent's vehicle. The situation altered, however, when the respondent, driving his vehicle erratically, would not let the police car overtake it.

Pursuit began. Thereafter the respondent drove his vehicle at very excessive speeds - by his account at up to 180 kph, and perhaps at a higher speed still. Twice he drove at high speed through intersections when traffic signals were red to traffic travelling in his direction. Eventually he lost control of his vehicle. It struck a tram pole in the centre median strip reserve, the impact causing it to shear in half. Shortly before the collision the police pursuit had ended. It had lasted 195 seconds, in which period the police vehicle had travelled 8.6 kilometres.

A police investigator calculated the speed of the respondent's vehicle to be about 125 kph when 34 metres before impact. The applicable speed limit was, as I understand it, 80 kph.

A sample of the respondent's blood was taken at the hospital to which he was taken following the collision. I pause to say that he did not sustain grave injuries. In the event, prohibited substances were found in the sample. According to a forensic medical practitioner the levels of methamphetamine and amphetamine that were detected would have profoundly degraded a person's driving skills.

The respondent admitted to not having slept for 48 hours before the fatal accident.

The respondent expressed remorse for the death of Mr Stacey very shortly after the incident. Later that day he made a frank statement of events.

When arraigned, the respondent admitted a catalogue of previous convictions at court appearances between 1995 and March 2001. Many of the convictions were for offences of dishonesty: burglary, theft, handling stolen goods, obtaining property by deception, being found at premises and being in possession of housebreaking implements. Other convictions were for offences as diverse as escaping from lawful custody, assault with a weapon, and failing to answer bail.

Particularly pertinent to the sentences passed on 11 March 2003, on the face of it, were the following convictions:

- driving a motor vehicle whilst unlicensed (2 charges)

- failing to stop a motor vehicle after an accident

- driving a motor vehicle in a manner dangerous to the public

- driving a motor vehicle whilst disqualified (3 charges)

- driving a motor vehicle whilst licence cancelled

- driving a motor vehicle whilst disqualified (3 charges)

On 23 July 1998 the respondent was also convicted of other offences. He was sentenced to an aggregate term of imprisonment of 12 months, 3 months of which was suspended. In 1999 he offended again, and was made to serve that part of the term of imprisonment which had been suspended.

On 28 March 2001 the respondent was also convicted of other offences. Sentence was by way of a combined custody and treatment order for a period of 12 months. Six months was to be served in custody and the balance in the community. There was a special condition to submit for alcohol and drug testing.

It follows from the sentence imposed on 28 March 2001 that the respondent had not long been released from custody at the time when he committed the offences now the subject of appeal. Moreover, he was still well within the overall period of the combined custody and treatment order. Indeed, in July 2002 he was brought up for breach and was sentenced to serve, in prison, the 6 months' treatment portion of that order.

I said a little earlier that, on the face of it, the offences of which the respondent was convicted on 22 September 1997, 23 July 1998 and 28 March 2001 were particularly pertinent to the sentences passed on 11 March 2003. So much can be gleaned from the description of those offences. Beyond that, so far as I can see, save for a fleeting reference in the prosecutor's reply[1], neither the prosecutor nor counsel for the respondent gave any assistance to the learned sentencing judge in that connection. I can understand why the respondent's counsel might have wished to say as little as possible about prior offences pertaining to her client's driving. I find it difficult to understand, however, why the prosecutor, for the state, should have left the sentencing judge partly uniformed. In my view it was unsatisfactory that he did so. Be that as may, his Honour noted the particular offences in short form in his sentencing remarks[2]. He described the combined custody and treatment order as having been "clearly... of little, if any, benefit". He said nothing, however, to indicate that he attached any importance to the particular convictions in sentencing the respondent.

As against the circumstances of the offences for which the respondent was to be sentenced and his criminal record, a number of matters were put in mitigation on the plea.

* First, that the respondent's childhood and adolescence had been very difficult. His parents had separated when he was very young. His mother had apparently remarried. The respondent's relationship with his stepfather had been marked by conflict. The respondent had left school at the end of Year 8, by which time, it seems, he was already himself an illegal drugs user. His father, an illegal drugs user, had died of AIDS when the respondent was aged approximately 17. A younger brother had died at age 15 of a drug overdose shortly after the respondent's release from prison in about September 2001.

* Second, that the respondent had made a frank and early confession, had pleaded guilty at the earliest opportunity, and had very considerable remorse; remorse evidently accepted by the mother of the late Mr Stacey in her victim impact statement which was before the court.

* Third, that the respondent had made efforts to rehabilitate himself whilst in gaol during 2002. In that connection a number of reports and certificates were tendered on the plea. They supported a conclusion that the respondent had taken positive steps to address his problem with illegal drug use; and to further his education and prospects for future employment. Also tendered was a letter written by the respondent to the sentencing judge, apparently in December 2002, which conveyed remorse, evidenced the respondent's apparent desire to turn over a new leaf, and described steps which he had taken to achieve that outcome.

* Fourth, that the respondent was receiving some support from his family - from his mother, an uncle, and two cousins. This was said to bear upon his prospects of continued rehabilitation.

The learned judge referred shortly in his sentencing remarks to the respondent's previous criminal history and to the failure of the sentencing order which involved combined custody and treatment. He then described the offences which were before him in a way which showed his clear grasp of their gravity. He found, moreover, that the respondent had been seriously affected by the use of illegal drugs at the time of his driving.

His Honour then turned to the credit side of the ledger. The respondent's youthful past had been:

"characterised by an absence of purpose, a family where criminality has been the norm and horrible outcomes the habits: not much going for you."

"chosen to accept every opportunity for rehabilitation, for self appraisal and self renewal. [He had] chosen to reconstruct a new life, putting aside the... garbage of the past."

He detailed the steps which the respondent had taken in that connection. He accepted that the respondent was truly remorseful. This was no mere mantra in the respondent's case.

He noted that the plea of guilty had been "instantaneous and realistic"; and that "weight is given to that".

He noted that Mr Stacey's mother had shown understanding of the respondent's position in the victim impact statement which she had made. She had encouraged him to turn away from his past life. She had shown him forgiveness. He noted also steps which the respondent had taken in the period between his arrest and plea to turn over a new leaf; and that the respondent's account of his attempts was supported by testimonials and certificates.

"In determining a suitable sentence I have given a significant measure of weight to the time you have already spent in custody and particularly the way that time has been used. You have, as I have already remarked, answered your own cry for help."

His Honour recognised, it seems, the insistence of the Court of Appeal that general deterrence is an important consideration in the sentencing process where the offence is one of culpable driving. But he questioned its effectiveness in light of countervailing influences: the availability of motor vehicles capable of achieving speeds far in excess of speed limits; and "images of power, aggression and sleek indifference" which prevailed in society.

His Honour recognised also, not without some implicit criticism, that the Court of Appeal has tended towards increased sentences in the case of the offence of culpable driving.

Finally, having regard to what he considered were matters which particularly told in mitigation - chief amongst which must have been the real prospect of rehabilitation in the case of a man who was still young - his Honour indicated that he proposed to impose a "longer parole period than might be normal".

According to the Director's argument, as amplified and in part modified by his oral submissions:

* Each of the sentence on Count 3, the total effective sentence and non-parole period was so low as to constitute error in principle.

* The sentence imposed on the charge of driving whilst unlicensed exceeded the maximum permissible sentence of three months.

* The impugned sentences[3] reflected an idiosyncratic view held by the learned sentencing judge about the offence of culpable driving: specifically, that vehicles are manufactured to travel at speeds vastly in excess of speed limits; and that the role of general deterrence is questionable in the case of the particular offence.

* The driving occurred in the course of an attempt to escape police pursuit. The speed attained by the respondent's vehicle was extreme.

* The respondent chose to drive notwithstanding that he had not slept for 48 hours and had consumed marijuana and amphetamines in the course of the day leading up to the commission of the offences.

* It was extraordinary that the learned sentencing judge should give so much weight to remorse and rehabilitation given the respondent's extensive criminal history, which included a number of relevant convictions.

* The sentence imposed for the offence of culpable driving, particularly, was subject to proper complaint. It was a lower than usual period of imprisonment in the case of a serious example of that offence committed by a man with relevant prior convictions.

* There should have been some cumulation of the sentence imposed on Count 1; as the learned sentencing judge had approached the task of imposing sentences on Counts 2 and 3, there should have been much more cumulation of the one sentence upon the other.

* None of the individual sentences was manifestly inadequate. In the case of Count 1 (theft of motor vehicle) the sentence was not even light, let alone manifestly inadequate. In the case of Count 2 (reckless endangerment), in all the circumstances a sentence of 3½ years gaol must be regarded as very firm. In the case of Count 3 (culpable driving), the allegation was of negligent driving, not driving whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle. That said, it was conceded that this was a serious example of culpable driving, involving a high speed police chase of a drug-affected and sleep-deprived driver in a stolen car; moreover, a man with prior convictions which were of importance. Nonetheless, in all the circumstances the sentence of five years' imprisonment, whilst in the lower range, could not be said to have been outside the range. Other considerations apart, it was relevant to consider the attitude of Mr Stacey's mother; and the circumstance that to an extent Mr Stacey was complicit in the respondent's offending.

* The total effective sentence, whilst in the lower range, was not manifestly inadequate. The six months' cumulation was open. The offending conduct was within a three minute episode. Moderate cumulation was open, particularly when regard was had to totality. Cumulation in respect of the sentence on Count 1 was not required. Again, the respondent had in fact been in custody between 15 December 2001 and the time of sentence, that is, 11 March 2003. Although this was a period of 15 months, the respondent was only entitled to 270 days pre-sentence detention. That was because in July 2002 he had been sentenced to serve in prison the community part of the combined custody and treatment order. In substance, the sentence imposed in the present case amounted to 6 years with a non-parole period of 3 years. The judge had taken that into account; and had been entitled to do so.

* The non-parole period was not so short as to be manifestly inadequate. The judge had evidently aimed to structure a sentence to foster the respondent's impressive attempts at rehabilitation. This was a critical time for the respondent. A heavy sentence may have crushed his resolve to reform.

* This could not be said to be "a very clear and rare case of manifest inadequacy"[4], and accordingly the Court should not interfere. Further, the Court should not interfere if the result of its interference would be simply to tinker with the sentences imposed of first instance.

* The comments of the learned sentencing judge which the Director now sought to characterise as idiosyncratic were not the subject of any specific ground of appeal. Further, whatever was said was of no significance because the judge had in fact recognised the asserted relevance of general deterrence; and had sentenced on that basis.

The key to resolution of this appeal lies, in my opinion, in the sentences imposed on Counts 2 and 3; and in the order for cumulation. It does not follow, I add, that the other sentences which his Honour imposed, or the non-parole period which he fixed, are unimpeachable. In my opinion that can only be said of the sentence imposed on Count 1. Of those other matters, more later.

I go to the subject-matter of Counts 2 and 3. The conduct which culminated in Mr Stacey's death took place over quite a short period of time; a few minutes. In broad, it involved a sleep-deprived and drug-affected young man driving a stolen, high powered motor car at extreme speeds and against traffic signals in an attempt to evade police pursuit.[5] It was, moreover, the behaviour of a man who had a very bad driving record. The respondent had multiple convictions for conduct endangering life and as well convictions for conduct endangering persons, for driving in a dangerous manner, for failing to stop and failing to render assistance after an accident, for careless driving, and for driving whilst disqualified. It is noteworthy that at the time when the offences were committed the respondent was serving, in the community, part of a combined custody and treatment order; that order deriving in part from conviction for driving offences of the kind which I mentioned a moment ago.

Putting to one side for the moment the relationship between the respondent's conduct and the offences encapsulated in Counts 2 and 3, it can be said that, absent mitigating factors, the criminality of that conduct was of a high order. It was such as to call for sentences which reflected denunciation. Considerations of general and specific deterrence must also have loomed large. Protection of the community, again, must have been in point, having regard not only to the offending conduct but to the fact that the respondent had previously offended in a generally similar manner.

There were, however, mitigating factors. The learned sentencing judge identified the following: the respondent's immediate confession, his genuine remorse, his plea of guilty at the first opportunity, his difficult formative years, his youth and his substantial efforts to rehabilitate himself in the period between the date of the fatal collision and the plea - efforts which were continuing and which his Honour evidently considered to have prospect of success.

In addition to the matters just mentioned, counsel for the respondent before this Court relied upon three further matters: The attitude revealed by Mr Stacey's mother, Mrs Fode, in her victim impact statement; the alleged circumstance that Mr Stacey had been somewhat complicit in the offending conduct; and the fact that because the respondent had been sentenced in July 2002 to serve the balance of the period of the combined custody and treatment order in prison, the amount of pre-sentence detention was the less and the true impact of the sentences was the greater.

It is convenient to address those three matters immediately. As to the first, the learned sentencing judge made the reference which I noted at [29]. In his report to this Court he referred to Sharon Patricia Wood.[6]

Counsel for the respondent did not submit that Mrs Fode's forgiveness, expressed in her victim impact statement, should stand in mitigation. He rather submitted that it was at least implicit in the statement that she would assist the respondent in his endeavours to rehabilitate himself; and that this should give the Court a greater level of satisfaction that the prospect of rehabilitation was of substance.

I accept that, conceptually, the substance of a victim impact statement might be used for the purpose which counsel outlined. It is a more difficult question whether a statement itself might be so used. Although s. 95A(1) of the Sentencing Act 1991 is broadly expressed, the authorised content of a victim impact statement is specified by s. 95B(1). A victim's affirmation that he or she intended to assist the offender's rehabilitation would seem to me to be outside the authorised content of such a statement. Even if that part of the statement was not ruled inadmissible, see s. 95B(2), I doubt that it would be right to permit the offender to rely upon the statement to make good the matter relied upon.

Beyond what I have said, it is unnecessary to go in the present case. I leave open, formally, the questions whether a victim's forgiveness of an offender - or, for that matter the converse - could be authorised content of a victim impact statement; and, if it was, whether it could bear upon sentence. My provisional answers to those questions would be "No" and "No"[7] - answers which would not deny, because they address a different issue, the social utility of victim impact statements described by Vincent JA in DPP v DJK[8].

What of the application of principle to the present case? Assuming that the substance of Mrs Fode's victim impact statement was before the Court, I doubt that it should be understood as counsel contended. But if that was wrong it would add little to the judges' conclusion, not attacked in this Court, that the respondent had embarked upon and was continuing with a programme of rehabilitation which had prospect of success.

I go to the second of the three additional matters raised by counsel for the respondent as bearing on sentence. There was material suggesting that Mr Stacey was to a degree complicit in the criminal conduct with which the respondent was charged and which led to Mr Stacey's death. So, there was material which suggested that:

* Mr Stacey had been present when the car the subject of Count 1 was stolen.

* He and the respondent had been together over a period preceding the fatal journey, in which period the two of them had used amphetamines - the level of those substances in his blood being greater than that detected in the case of the respondent; and marijuana.

* He was a willing passenger in the car when the fatal journey began.

* He was the recipient of a mobile phone call concerning the presence of the police car in proximity to the car in which he was a passenger, receipt of which call was the precursor to the pursuit.

Mr Stacey's alleged complicity in the offending conduct was not relied upon by counsel on the plea. Before this Court, counsel argued that it was a matter to be brought to account in deciding whether either or both of the individual sentences imposed on Counts 2 and 3, or the extent of cumulation, was manifestly inadequate.

The law may be taken to be as stated in R v Tran[9], which relevantly disapproved R v Howarth[10]. According to Tran, a victim's complicity is not a circumstance of mitigation but constitutes the absence of a circumstance of aggravation; and it is for the sentencing judge, within the limits of a sound exercise of discretion, to decide what weight (if any) to attribute to the victim's complicity.

In my opinion, so understanding principle, there was very little in the revealed circumstances as could assist the respondent with respect to the sentences imposed on Counts 2 and 3. It could be said that Mr Stacey willingly entered the vehicle though knowing that the driver had been using drugs. Beyond that, I would not go. In particular, I would not conclude that Mr Stacey encouraged the respondent to embark upon the course of driving which culminated in his death.[11]

I go to the third matter raised by counsel for the respondent. It is not clear what breach of the sentence imposed on March 2001 led to his being charged and in due course to his being convicted and imprisoned in July 2002. But let it be assumed that in some way it was connected with the events of 15 December 2001, as counsel for the respondent submitted was the case.

According to the submission for the respondent, the learned sentencing judge was apprised of the consequences of the July 2002 order for imprisonment and took it into account in fixing sentence, as he was entitled to do. There were, as I understood it, two aspects to that submission. First, that interposition of the sentence imposed in July 2002 meant that the true impact of the sentences now under appeal was that the respondent, who has been in custody since 15 December 2001, might potentially remain in custody for about six years from that date, his non-parole period being in substance three years from that date. Second, that interposition of the July 2002 sentence meant that each of the head sentence and the non-parole period was six months longer than would otherwise have been the case if the entire period in custody up to time of sentence had counted as pre-sentence detention.

It is clear that the learned sentencing judge was apprised of the sentence which was imposed in July 2002 - although I do not think it was submitted that the sentences which he imposed should be modified in consequence. It is also clear that in recounting the respondent's history of prior offending his Honour noted the sentence which was imposed in July 2002. But I do not accept counsel's submission that his Honour modified the sentences which he imposed by reason of the effect of the July 2002 sentence. The passage in his Honour's sentencing remarks[12] relied upon by counsel does not sensibly bear that meaning. Rather, his Honour was pointing out that the extended period of incarceration before sentence had been used by the respondent to further his rehabilitation.

Counsel may have submitted that, regardless whether the learned sentencing judge approached the circumstance of the July 2002 imprisonment in the manner contended for, this Court should so consider that circumstance when determining whether the impugned sentences were manifestly inadequate. Assuming that such a submission was made, at its highest the circumstance must be one which this Court might consider in that context, not one which it must consider; and in the particular context of this case I would accord it very little significance. The sentence imposed in July 2002 was for a discrete offence[13] constituted by breach of an earlier sentence. Although the circumstances envisaged by s. 18W(8)(b) of the Sentencing Act did not arise, the import of that provision is that a sentence for such an offence should ordinarily be served cumulatively. Again, s. 16(1) of the Sentencing Act did not operate to the respondent's advantage; whilst the assumed submission was founded on acceptance of the proposition that s. 18(1) of the Act required the 6 months imprisonment imposed in July 2002 not to be reckoned as time already served. It is not unfair, all in all, to describe the submission as being founded on a loose notion of totality; a notion the ready application of which may be doubted in the face of the detailed provisions of the Sentencing Act.

In the end, in my opinion, what I have described as the three further matters mentioned by counsel add at best very little to the respondent's case. The matters which stood in his favour in mitigation were essentially those to which I referred at [37].

I return to the conduct which grounded Counts 2 and 3. Had the respondent only been charged with culpable driving, then upon an assumption that the Crown had been able to rely upon the entirety of the driving, and as well as circumstances of aggravation as well as circumstances of mitigation, I consider that a head sentence of 5 years would have been wholly inadequate. In this case, however, the respondent was charged with a second offence - that is, reckless conduct endangering persons. It was that circumstance, I think, which led to the sentence, viewed globally, failing to reflect the gravity of the criminal conduct encapsulated in Counts 2 and 3. In my view a partial explanation of what went wrong can be discerned from examination of aspects of the plea hearing, specifically the way in which the prosecutor and counsel for the respondent addressed the interrelationship of the conduct encapsulated in those counts.

The plea hearing took place against the background that the respondent had been charged with and pleaded guilty to two offences arising out of the short period of conduct to which I have referred. It was not in debate that the Crown was entitled to present the respondent for two distinct offences[14]. It might well be, as the Director submitted before this Court, that the Crown considered this to be a necessary course in light of the line of authority exemplified by R v Newman and Turnbull[15]. But whether or not that be so, it was necessary for the learned sentencing judge to consider how the respondent should be punished for the discrete offences encapsulated by Counts 2 and 3 yet not offend the totality principle[16]. In undertaking that task his Honour was entitled to expect assistance at least from the prosecutor.

In the event, the prosecutor outlined circumstances antecedent to the commencement of the fatal journey, and the circumstances of the journey itself. He recounted the aftermath, including admissions made by the respondent. He did all this in thorough fashion. Then this exchange took place:

"Prosecutor: ... Count 2, your Honour, is put... "His Honour: I take it that is in relation to the driving, is it?" "Prosecutor: Yes. Leading up to the collision, your Honour, so the excessive speed going through the red lights and so forth but obviously I don't need to point that out to your Honour but just to make it clear."

That was all that was said by the prosecutor, so far as I can see, concerning the content of Count 2. But later on he said this:

"... what we say is he is in a stolen car, aggravating feature, he has never held a licence, aggravating feature. As an example of culpability, and there are grades of it, this is at the high end of it, it has to be when you look at the fact that he has got significant amounts of amphetamines in his system and he is prepared to drive to avoid detection at 180 kilometres an hour (indistinct) going through red lights and you have got an issue, Your Honour, in terms of some accumulation with Count 2 and Count 3 which is appropriate because it relates to separate conduct."

That submission was probably an invitation to the learned judge to punish the respondent's driving in the main by sentence upon Count 3; in which circumstance little cumulation would be necessary to reflect the overall criminality of the respondent's conduct. But it must be said, particularly having regard to the prosecutor's earlier brief description of the content of Count 2, and his failure to mark out the area of conduct constituting Count 3, that the submission last-noted was apt to mislead.

I turn to what counsel for the respondent said on the plea concerning the content of Counts 2 and 3. She made no submission as to how the offences of culpable driving and reckless endangerment ought be punished so as to reflect their discrete elements yet not offend the totality principle. On the other hand, she did make a submission which bore upon the reckless endangerment offence. She referred to a part of police officer's deposition. It said this:

"Even though the car was being driven at high speed, it did not cause any danger to other road users that I could see. When it went through red lights, the cars on the intersecting roads either saw it or stayed put..."

"... or there were no cars at those intersections. I was quite mindful of other road users' safety. We would have passed about six or seven other road users during the pursuit. None of those vehicles or their occupants were put in danger that I am aware of..."

I take the import of the submission to have been that the impugned conduct had created an endangerment that was more apparent than real.

All in all, the learned sentencing judge was not given much assistance as to how his sentence might properly deal with the respondent's conduct, split somewhat artificially as it was into two discrete offences in circumstances where the conduct relied upon in connection with those offences was (save for Mr Stacey's death) essentially the same; and where the conduct was not disclosed in fact to have endangered any particular person other than Mr Stacey.

It seems to me that his Honour did recognise the serious criminality of the conduct embraced by Counts 2 and 3. After all, he imposed individual sentences totalling 8 years and 6 months. But in disassembling the respondent's conduct for sentencing purposes, in a case where that was in practical terms at least very difficult, and then in reassembling it by way of cumulation, I consider that the sentencing process went awry, so that in the end it did not reflect the overall level of criminality which his Honour recognised was present.

I cannot but feel that things went wrong because, at least in part, his Honour did not have the extent of assistance that should have been given him. Be that as may, the consequence of the sentences imposed on Counts 2 and 3, including the order for cumulation, was that the total effective sentence which his Honour imposed was, in my opinion, manifestly inadequate. In retrospect, his Honour might have approached sentencing on Counts 2 and 3 in either one of two ways. He might have treated Count 3 as the vehicle for punishing the overall criminality of the respondent's conduct; in which case he might have simply recorded a conviction, perhaps with a small penalty, on Count 2. That, I think, would have been the best course. The alternative was to take the course which his Honour adopted, artificial though the exercise was in the particular case. Then there must have been substantial cumulation so that the effective sentence reflected the overall criminality of the respondent's conduct.

It follows from what I have said concerning the sentences imposed on Counts 2 and 3, and the cumulation ordered thereon, that the appeal should be allowed and the respondent re-sentenced. It is unnecessary in the circumstances to deal with each matter urged by the Director in support of the appeal.

In the re-sentencing, the question of the non-parole period is of legal and practical importance. I have already noted that the learned sentencing judge made a number of findings favourable to the respondent in that connection. Those findings should be brought to account in fixing a non-parole period on the re-sentencing. They should result in a lower than usual non-parole period for the respondent than might have been expected in the case of a young man with such a bad criminal history; a non-parole period which will give the respondent encouragement in the rehabilitation which his Honour was satisfied he had embarked upon. On the other hand, I do not accept that the non-parole period should be so small a fraction of the total effective sentence as was fixed by the learned sentencing judge. If I had not considered the total effective sentence which his Honour imposed to be manifestly inadequate, I would nonetheless have considered the non-parole period which he fixed to oblige that description.

I would allow the appeal and set aside the sentences imposed. I would re-sentence the respondent to 1 year's imprisonment on Count 1. Concerning Counts 2 and 3, I would take the first of the two approaches which I earlier suggested were available to the learned sentencing judge. I would sentence the respondent to 6 months imprisonment on Count 2 and to 6 years imprisonment on Count 3. I would cumulate 3 months of the sentence on Count 1 on the sentence imposed on Count 3. In my opinion, the distinct offence reflected by Count 1 makes it appropriate that there be some cumulation. For reasons earlier set out I would impose no cumulation as between Counts 2 and 3. I would re-sentence the respondent to 3 months imprisonment on the charge of driving whilst unlicensed. That is the maximum period of imprisonment available, but the respondent richly deserves it in light of his prior history of multiple like offences. The consequence of my proposals is that the total effective sentences would be 6 years and 3 months imprisonment. I would fix a non-parole period of 3 years and 7 months.

I should finally make this point. It must be understood that the fresh sentences which I propose intendedly reflect a discount for the form of double jeopardy to which a person is exposed when a Director's appeal succeeds. They set no tariff for use by a sentencing judge.

[3] Save in the case of the sentence for the summary offence.

[4] See DPP v Leach [2003] VSCA 96 at [48] and [49].

[5] Although the count of culpable driving was not framed by reference to s. 318(1)(d) of the Crimes Act, the fact that the respondent was in fact drug-affected was relevant as an aggravating factor.

[7] In my view those answers would be consistent with what was said in Wood at [76] per Murray J, and at [94], [95] and [99] per Miller J; although those remarks were made in the particular context of the Sentencing Act 1995 (WA).

[8] [2003] VSCA 109, at [17] - [18]; see also Eames JA at [30] - [31].

[11] That circumstance may be contrasted with the situation which arose in Tran.

[13] See Sentencing Act s. 18W.

[14] As to which see R v Bekhazi [2001] VSCA 178.

[16] Bekhazi at [8], [9], [14] and [15] per Winneke P; see also per Vincent JA at [23], [24] and R v Kursunlu [2001] VSCA 240 at [9] per Buchanan JA.

At a glance

Court

Decision date

Before

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Judgment (122 paragraphs)

Parties

Cases Cited (2)