DPP v Wareham [2002] VSCA 110

9. After a plea was made on behalf of the respondent, on 19 November 2001 she was convicted and sentenced to five years' imprisonment. A non-parole period of two years and six months was fixed and a declaration made that 13 days held in custody be reckoned as time already served pursuant to s.18(4) of the Sentencing Act 1991. The respondent's licence to drive was cancelled and she was disqualified from driving for five years effective from 19 November 2001. The maximum penalty for culpable driving was 20 years' imprisonment.

12. The Director of Public Prosecutions gave notice of appeal on one ground, namely, that the sentence of five years' imprisonment, the non-parole period of two years and six months and the period of licence disqualification are each manifestly inadequate. Particulars of the ground allege that the sentencing judge erred in that he -

(a) failed to adequately reflect the gravity of the offence generally and in this case in particular;

(b) failed to take into account or sufficiently to take into account the aspect of general deterrence;

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

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

(e) failed to give sufficient weight to the respondent's prior convictions for driving a motor vehicle whilst having a blood alcohol concentration exceeding .05%;

(f) failed to disqualify the respondent from driving for a period of time commensurate to the proven danger that she represents to the community.

Particular (f) was not pursued in oral argument by the Director.

19. On 28 November 1999, at about 2.14 a.m., a Hiace van taxi being driven by Paul Michael Winkler on the Belgrave/Hallam Road in a southerly direction entered the intersection of the Princes Highway and the Belgrave/Hallam Road at approximately 80 kilometres per hour. The speed limit was 80 kilometres per hour. The intersection was controlled by traffic lights and witnesses observed that the lights showed green for north-south traffic when the Hiace entered the intersection but turned from green to amber as the vehicle proceeded through the intersection. The respondent had been drinking and socialising in the Hallam Hotel from about 10 p.m. until she left the hotel around 2 a.m. with her companions. A discussion took place in the car park between the respondent and her companions in which she was counselled against driving, but she opted to drive and proceeded to drive her Mitsubishi vehicle from the hotel car park, located on the western side of the Belgrave/Hallam Road, about 85 metres south of the intersection, onto the Belgrave/Hallam Road, intending to make a right turn into the Princes Highway. She drove in a northerly direction at about 40 to 45 kilometres per hour and entered the intersection when the light showed green in her favour. A collision occurred between the Hiace and the Mitsubishi somewhere near the centre of the intersection after the Mitsubishi turned right. The Hiace was extensively damaged at the front and driver's side and the Mitsubishi was extensively damaged at the front and passenger side. It appeared to witnesses that the lights were showing amber to both drivers when the collision occurred. The driver of the Hiace died at the scene.

22. The respondent and her passengers were driven to the Dandenong Hospital for assessment. A blood sample taken from the respondent about two-and-a-half hours after the accident recorded a blood alcohol concentration of 0.161%. In the opinion of a forensic physician, the driving skills of the respondent would have been very severely adversely affected by the effects of such a level of alcohol. The deceased's blood was analysed and no alcohol was detected. The Crown alleged, and the judge accepted, that the collision was caused by the gross negligence of the respondent in making a right turn when it was unsafe to do so and that a contributory cause was the alcohol she had ingested. When interviewed by police on 2 May 2000, the respondent exercised her legal right not to answer questions about the incident.

26. A number of victim impact statements prepared by close family of the deceased were tendered to the judge. A number of reports were tendered, medical and otherwise, indicating that the parents and sister of the deceased had become depressed and their lives affected by the loss of the deceased. The deceased was aged 23 when he died. The judge accepted that the death of the deceased had caused stress to his parents and sister and necessitated counselling and support.

29. The respondent's personal circumstances were revealed to the court by her counsel and a number of witnesses were called to give evidence. The court was told that the respondent left home at age 16 or 17 and had a female child in 1987 at age 21. She separated from her partner in 1989, taking her daughter with her. She married and a female child was born of the union in 1990. She separated from her husband in 1999 and had cared for her two children until the time she was sentenced. It was likely that if a sentence of imprisonment was imposed the children would be separately cared for by the parents of the respondent and the father of the younger child. Witnesses described the respondent as a caring mother. It was submitted to the court that the separation of the children was "exceptional circumstances" that warranted the imposition of a lower sentence and, in particular, a short minimum term.

32. Mr Joblin, a forensic psychologist, made a report and gave evidence. He considered that the respondent had an alcohol problem for many years and needed a long-term coercive program designed towards total abstention. In September 2001, about one month after offering to plead guilty to the charge, the respondent became an active participant in a drug and alcohol program conducted by a voluntary group.

35. The judge said that he had regard to the early plea of guilty and to the respondent's evident genuine remorse. He also had regard to the two-year delay before the respondent faced the court for plea and sentencing, which he said was undue and so a matter to be taken into account (R. v. Miceli[1]). His Honour also said that he considered the previous convictions for exceeding .05 in 1985 and 1989 bore upon the respondent's moral culpability in the commission of the offence. He said he took into account the respondent's previous history in determining the weight to be attached to specific deterrence and protection of the community (R. v. O'Brien and Gloster[2]).

38. Mr Coghlan conceded in this Court that the delay of twelve months between the offence and the charge being laid was unusual and could be taken into account. However, as I have just indicated, the respondent did not take steps to overcome her alcohol problem until July 2001 when she saw Mr Joblin. For eighteen months after the offence she did nothing of a positive kind to deal with her problem. Mr Coghlan submitted that the sentence did not adequately reflect the gravity of the offence, given that the respondent was a person who had two prior convictions for driving with a blood alcohol level considerably in excess of the legal limit, and on the occasion in November 1999 was driving with a blood alcohol level more than three times above the legal limit. In these circumstances, he submitted, a custodial sentence of considerably more than 25% of the maximum was required for the purposes of specific and general deterrence and protection of the community. Mr Coghlan further submitted that, in increasing the maximum term for culpable driving several times, from seven years to 20 years, Parliament has indicated its intention that culpable driving is a very serious offence equated with manslaughter. I agree, and it seems to me that this view is reflected in decisions recently given in this Court: see R. v. Taylor[3], R. v. Guariglia[4] and R. v. Tran[5]. Culpable driving causing the death of an innocent victim is a pernicious crime tragically cutting short the life of the victim and causing grief to the family and friends of the deceased. When the death of a person is caused by gross negligence by a person whose brain is befuddled by alcohol, the offender should expect stern punishment save for exceptional circumstances.

41. Mr Coghlan submitted that the need for specific and general deterrence is not reflected in the sentence imposed upon the respondent, who has relevant convictions. In the present case, Mr Coghlan submitted, matters going in mitigation and personal to the respondent were given too much weight or were allowed to outweigh the circumstances of the offending and the respondent's history of alcohol abuse in relation to driving. This was particularly evident, he argued, in the judge fixing a short non-parole period of two years and six months. The judge should have viewed the prospects of rehabilitation with some caution, Mr Coghlan submitted, having regard to her long-term alcohol addiction and the lateness of her seeking help for her alcohol problem.

44. Mr Holdenson for the respondent submitted that the judge was entitled to give full effect to the plea of guilty, which was found to be accompanied by genuine remorse, making this case one inappropriate for intervention by the Court at the suit of the Director. He further submitted that the period of two years between the incident and sentencing was a relevant mitigating factor to be taken into account. Other matters such as the respondent's prospects of rehabilitation in terms of alcohol abuse, which she had taken steps to control after the incident, and the circumstances of her children being separated from her were taken into account by the judge and reflected in the minimum term fixed, Mr Holdenson argued.

47. Mr Holdenson mounted an argument that the circumstances of the accident did not reflect so badly on the respondent's driving because her speed was reasonable and she entered the intersection with the green light. The driving was not at the worst level for culpable driving, he submitted. I disagree with this analysis of the driving, for it totally ignores the important circumstances that the respondent should not have been driving at all due to her consumption of alcohol. The cause of the collision was the gross negligence of the respondent, whose driving skills were affected by alcohol, when she made a right-hand turn in an intersection into the path of another vehicle which had the right of way and was correctly positioned on the road.

50. The Director has challenged both the head sentence and the minimum term. It would be inappropriate for this Court to interfere with the judge's discretion in fixing the non-parole period unless at the same time a case for interfering with the head sentence is made out: see R. v. Boxtel[6]. The Director's principal argument was that the head sentence was manifestly inadequate because the respondent has a bad record in relation to driving whilst intoxicated.

53. For present purposes I would accept that a sentence of five years' imprisonment for a single-fatality culpable driving offence based upon gross negligence and without aggravating features would be within the range available to a sentencing judge. The particular circumstances might justify a greater or lesser sentence. There is no standard sentence, but general deterrence is of paramount importance for culpable driving: see R. v. McGrath[7]. The Director's argument is that if five years is within the range for a not very bad case of culpable driving, a considerably higher sentence is called for when the offender has a bad drink-driving record: such a person needs to be specifically deterred and the community protected.

56. I accept the argument of the Director that the standard of punishment for this class of crime should reflect past misconduct on the road of a serious kind. That is not to say that a person should be punished again for prior offending. In the present case the respondent by her past conduct had demonstrated an indifference to drinking and driving and the possible consequences of such conduct. It matters not that she did not understand her problem with alcohol until she saw Mr Joblin. The fact is that she was aware that twice she had been convicted for exceeding .05 whilst driving. She knew the consequences of driving whilst intoxicated, and on the night of the collision she knew she had been drinking over a four-hour period and that her companions were concerned about her taking the wheel of her car. Parliament has prescribed a rising scale of penalty for drink-driving. After the first conviction the penalty is higher by law. I wonder what more Parliament can do to register its concern about drink-driving and culpable driving. Courts must be mindful that the penalty for culpable driving is of concern not only to Parliament but also to the community as the road toll increases day by day, with alcohol induced impairment as a major contributing factor.

59. The sentencing judge noted that it was of concern that the respondent had two prior convictions for exceeding .05 but, because they occurred a considerable time earlier, was minded to impose a sentence within the range appropriate to an offender without prior convictions. In doing so, in my opinion, a manifestly inadequate head sentence was produced. The sentencing discretion miscarried because the sentence did not reflect the true gravity of the offending. The offending included the circumstances of driving a vehicle in a criminally culpable manner whilst under the influence of alcohol and the past history of twice driving with a blood alcohol concentration of .05 was a relevant matter for sentencing purposes. The sentencing judge referred to comments about the nature of the offence made by the President in R. v. O'Connor[8] and said in his sentencing remarks:

" A consideration of cases involving sentences for culpable driving causing death is of some assistance but, as I have said at the outset, and repeat, in the end each case has to be judged on its own particular circumstances. Weight does need to be given in the circumstances to specific deterrence and protection of the community, particularly having regard to your history of previously offending on two occasions with respect to exceeding .05. I repeat that you are not punished again for your prior offending. However, it is a matter that can be properly taken into account in determining the weight to be attached to specific deterrence and protection of the community. This has been made clear by the Court of Appeal, for example, in its decision in R. v. O'Brien & Gloster [1997] 2 V.R. 714. In sentencing emphasis needs to be given to general deterrence. General deterrence is regarded by the courts as being of special significance in serious driving offences such as the offence of culpable driving causing death."

This and other passages in the sentencing remarks show that the judge was aware of the relevant sentencing principles. His error lay, in my opinion, in not giving sufficient weight to the past record of the offender and the way it impacted upon the seriousness of the offending and the danger to the community. His Honour was obliged to have regard to the personal circumstances of the respondent as mitigating matters and did so. Those circumstances included the emotional hardship both to the respondent and her children, caused by long separation. It goes against natural inclination to separate parent from child, but weight must be given to community rights and expectations in regard to road safety. In the end, when his Honour identified important factors to be taken into account in determining the appropriate sentence, he did not accord enough weight to the circumstance that this was the third occasion on which the respondent had exceeded .05 and had caused now the loss of a young life.

64. The Court is required to re-sentence the respondent. It is contrary to principle for this Court to impose a sentence that would have been appropriate to impose in the court below. The principle of double jeopardy requires the Court now to impose a sentence that is somewhat less than the sentence it considers should have been imposed at first instance: see R. v. Clarke[9]. I propose to the Court that the sentence below be quashed and that a sentence of six years be imposed. A new non-parole period must be fixed. Fixing a non-parole period calls for the exercise of judicial discretion. There is no standard gap: it is the period the court considers the prisoner should serve before becoming eligible for release into the community. I propose that a non-parole period of four years should be fixed. The order made in the court below relating to cancellation of all licences held under the Road Safety Act 1986 will remain unchanged. The declaration pursuant to s.18(4) of the Sentencing Act will be that 252 days have already been spent in custody by the respondent and will be reckoned as time already served under the sentence.

71. For the reasons given by O'Bryan, A.J.A. I agree that the appeal should be allowed and I also agree in the orders which he proposes.

79. The formal orders of the Court will be that the appeal is allowed.

The sentence imposed by the court below is quashed and in substitution therefore this Court imposes a sentence of six years' imprisonment. We order that the respondent serve a period of four years' imprisonment before becoming eligible for parole.

We confirm the order made below that she be disqualified from obtaining a licence to drive a motor vehicle for five years dating from 19 March 2001.

Pursuant to s.18 of the Sentencing Act 1991 we declare the period of 252 days be reckoned as time served pursuant to the sentence we have imposed and we direct that the declaration and its details be entered in the records of this Court.

87. An indemnity certificate pursuant to s.15 of the Appeal Costs Act is granted to the respondent.

[1] [1997] VSC 22; [1998] 4 V.R. 588.

[2] [1997] 2 V.R. 714.

[3] [1999] VSCA 206.

[4] [2001] VSCA 27.

[5] [2002] VSCA 52.

[6] [1994] VicRp 54; [1994] 2 V.R. 98.

[7] [1999] VSCA 197.

[8] [1999] VSCA 55.

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