DPP v Whittaker [2002] VSCA 162

Court of Appeal (Vic)|2002-10-03|Before: WINNEKE, P., CALLAWAY, J.A. and O'BRYAN, A.J.A.

Criminal law - Sentencing - Culpable Driving causing two deaths and serious injury to two passengers - Total effective sentence manifestly inadequate resulting from failure to cumulate.

I invite O'Bryan, A.J.A. to give the first judgment in this appeal.

The respondent pleaded guilty to the four charges in the County Court and following a plea was sentenced on 20 March 2002 as follows:

Count 1, causing the death of Karin Lee Hubbard, four years' imprisonment.

Count 2, causing the death of Samantha Dwyer, four years' imprisonment.

Count 3, causing serious injury to Peter Miller, six months' imprisonment.

Count 4, causing serious injury to Bradley Miller, 18 months' imprisonment. No order was made for cumulation of the sentences. A minimum term of two-and-a-half years was fixed before the respondent could become eligible for parole. A declaration was made that 41 days had been spent in pre-sentence detention and was deemed to have already been served under the sentence. An order was made pursuant to s.28 of the Road Safety Act 1986 that all licences and permits to drive be cancelled and that the respondent be disqualified from obtaining a licence for a period of four years.

The Director of Public Prosecutions gave notice of appeal on 19 April 2002 on three grounds:

1. The sentences imposed in respect of counts 1 and 2 are manifestly inadequate.

In fixing the terms of imprisonment in respect of each of the grounds the sentencing judge -

(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 take into account the aspect of general and specific deterrence;

2. The total effective sentence of 4 years' imprisonment and the non-parole period of 2 years 6 months' imprisonment was manifestly inadequate.

In fixing the total effective sentence and the non-parole period the sentencing judge -

(a) failed to adequately reflect the gravity of the offending conduct generally and in this case in particular by failing to order partial cumulation as between each of the respective counts;

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

3. The sentencing judge erred in failing to order any cumulation of the sentence.

The respondent was aged 18 years at the time of the accident. He had three previous non-conviction orders from one court appearance for offences of dishonesty. At the committal mention on 15 November 2001 the respondent entered a plea of guilty. The plea hearing commenced on 7 February 2002 and resumed on 20 March after the court received a psychiatric report prepared for the court by Dr Katz.

The circumstances of the offences may be summarised quite briefly. The vehicle, owned and driven by the respondent, a Mitsubishi Colt sedan, was in a roadworthy condition before the collision. The respondent held a learner permit to drive a motor vehicle and a licensed driver was seated alongside him. L plates were displayed outside the vehicle. Travelling as passengers in the vehicle were: Karin Lee Hubbard, aged 29 years, in the front passenger seat. Karin was the mother of three children aged 11, 7 and 6 years. She died instantly; Samantha Dwyer, aged 31 years, in the centre of the rear seat. Samantha was the mother of a child aged one year. She died instantly; Bradley Miller, aged 26 years, in the rear seat behind the driver. He sustained fractured ribs, a collapsed lung and fractured right arm. His spleen was damaged and had to be removed; Peter Miller, aged 20 years, in the rear seat on the passenger side of the vehicle. He sustained a fractured upper left arm, bruising to the chest and hip and severe shock; and the respondent, who sustained serious injuries and was unconscious for four days. His injuries included fractures to the left leg, left arm, left ribs and nose and pulmonary contusions. A blood sample taken from him was found to contain no blood alcohol.

The Mitsubishi had been owned by the respondent for about three weeks before the accident and was used by him to drive without a licensed driver in the vehicle as an instructor on a number of occasions.

On the night of the accident the five occupants of the vehicle attended a Tupperware party before deciding to drive to Broadmeadows to buy some whisky. Peter Miller sat in the front passenger seat and was unlicensed. He later described the respondent's driving at that stage as "very fast over speed humps and I thought we almost got airborne, he was just showing off". After buying the whisky the group returned to the party. At 9 p.m. they decided to go for a drive in the respondent's car. Hubbard sat in the front passenger seat because she held a full driver-s licence. The respondent drove the car around Broadmeadows and Pascoe Vale for a time looking for a service station from which he intended to obtain petrol. The car arrived at a service station near the top of a hill in Gaffney Street, Pascoe Vale, but it was closed. On leaving the service station the respondent accelerated his vehicle in a westerly direction along Gaffney Street down the hill. Peter Miller later provided a description of the respondent's driving in the following terms:

"Darren [the respondent] started accelerating the car as soon as we left that service station and kept on accelerating all the way down the hill. Samantha was yelling at him to go faster. As we went down the hill we were really flying, going flat out down the hill. Darren's car was a T-bar automatic and it was revving right out as it went through the gears. The engine was revving really loudly and when I looked out the side window I could see trees going past really fast. From where I was sitting I couldn't see the speedo so I don't know how fast we were actually going, but I think the car was going as fast as it could because the engine was almost pinging by the time we got to the bottom of the hill. By pinging I mean that the engine was revving as fast as it could, and it was just about to blow up. As we went down the hill I also looked out through the front window and I could see the railway tracks coming at us pretty fast. The speed we were going down the hill was like the speed you do on a freeway. I was getting scared as we went down the hill and I told Darren to slow down. I had my seat belt on and was also hanging on to the strap on the roof above the door. When we went across the railway line we were on the wrong side of the road, but I don't know why we were there. I felt the car go up in the air when we crossed the railway line, and I looked out the window at the road and it looked further away than it should have been. That's when I knew we were totally airborne. Darren tried to turn the steering wheel but we were in the air and nothing happened. The car didn't turn. When the car came back down on the road Darren lost control of the car and we spun out and hit the brick wall."

Bradley Miller provided a similar description in which he estimated the car was travelling at 120 kilometres an hour and that the passengers asked the respondent to slow down. The distance travelled by the car from the service station at the top of the hill to the place of the accident was approximately one kilometre. Two witnesses located about half-way down the hill estimated that the vehicle was travelling between 120 and 130 kilometres an hour. The vehicle apparently became airborne when it hit the railway line at the bottom of the hill. It veered to the left and then to the right before hitting the brick fence of a nearby house. The vehicle was severely damaged as a result of the high-speed impact, and two of the occupants were killed instantly. A police engineer examined the scene and calculated that the pre-impact speed of the Mitsubishi was about 95 kilometres an hour, although its speed could have been between 95 and 101 using a different basis for the calculation.

The respondent declined to answer questions put to him by the police about the circumstances of the collision.

There can be no doubt that the respondent drove his vehicle down the Gaffney Street hill in a grossly negligent manner. Mr Hillman correctly submitted that the road cried out for caution and a moderate speed. High speed and inexperience were the principal causes of the accident. The accident tragically cut short the life of each female victim and left four children of tender ages motherless, causing grief to their families and friends. The two male victims who survived suffered much pain and shock and were treated in hospital, as was the respondent.

The circumstances of the accident reflected very badly on the respondent's driving and showed a wanton disregard by him for the safety of his four passengers and other road users. The inevitable consequence of putting a young, inexperienced driver behind the wheel of a powerful machine, motivated to impress his passengers, was a high-speed accident with the inevitable loss of life and personal injury. Such irresponsible conduct occurs all too frequently on our suburban and country roads. The courts have repeatedly said that specific and general deterrence are important factors in the sentencing process for culpable driving which causes death, for which a maximum penalty of 20 years' imprisonment was prescribed at the time. A maximum sentence of 5 years' imprisonment was prescribed for causing serious injury by negligently driving a motor vehicle.

During the plea a psychologist's report made by Mr Bruce was received by the court. Cognitive assessment showed that the respondent had an IQ of 91, which is in the low average range. His school record indicated poor employment potential, and that has been borne out since. His future employment prospects are not good and he might be helped by formal psychological management. He has problems with motivation and has demonstrated behavioural difficulties.

Dr Katz, a psychiatrist, reported to the court on 8 March 2002. Dr Katz noted a high level of arousal, distress, guilt and remorse regarding the events. The respondent informed the doctor that he only had a patchy recall of the circumstances involved in the accident. The respondent said he remembered driving at speed down the hill and next waking up in severe pain.

Dr Katz noted that the respondent had a most unhappy and somewhat traumatic childhood in relation to parental conflict, paternal alcoholism, likely maternal depression, truncated parenting secondary to parental marital separation and a hostile, punitive and rather unsupportive early home environment. The doctor was of the opinion that whether a custodial or non-custodial sentence was imposed by the court, the respondent would require some degree of ongoing supportive grief counselling to help him deal with the emotional consequences of the car accident.

I have only referred to the important remarks of the doctor. The trial judge would have had regard to the whole of the report before imposing the sentence he did, which in my opinion was a merciful sentence having regard to all the circumstances of the accident I earlier described.

The judge also had before him victim impact statements which revealed the terrible consequences for the children and relatives of the deceased victims on account of their deaths. His Honour described in detail the circumstances of the accident and observed:

"The picture that emerges from all the material before me is of a young man who cannot or will not conform to ordinary accepted standards of behaviour."

His Honour was aware that the sentence had to "deter behaviour so irresponsible as to put unnecessarily at risk the lives and bodies of those on the road". He also said he had to deter the respondent from repeating such behaviour.

Mr Hillman for the appellant submitted that the head sentence of four years imposed in respect of counts 1 and 2 is manifestly inadequate and does not adequately reflect the gravity of the offence, does not take into account sufficiently the aspects of general and specific deterrence and gave too much weight to factors going in mitigation.

Mr Hillman relied upon the very bad driving at high speed in a suburban street which descended steeply to an intersection and a railway crossing before flattening out. He said the manner of driving was deliberately fast, at first encouraged by one of the passengers, but shortly afterwards discouraged by words from all the passengers.

Mr Hillman submitted that general and specific deterrence has been said by this Court, time and again, to be a matter of particular importance in culpable driving cases[1]. It cannot be gainsaid that youthful drivers are very frequently involved in single-vehicle accidents in which passengers are killed or seriously injured and that the cause is speed alone or speed and alcohol. In the present case alcohol was not a factor, but speed was. The respondent drove his vehicle with no regard for the safety of himself, his four passengers and other road users. The youthful male driver often has the belief that he is indestructible. Parliament has imposed a high maximum level of imprisonment for culpable driving causing death, no doubt in the expectation that courts will impose upon offenders stern punishment, to deter drivers from acting in a grossly irresponsible manner on the roads, as did this respondent. There is also a hope that the road toll will be reduced as drivers realise the penalty for culpable driving is high.

The judge referred to the need for general and specific deterrence and it must be assumed that it was not overlooked by him. Mr Hillman submitted it was under-valued.

Mr Tehan for the respondent submitted that the head sentences imposed by his Honour were within range for culpable driving, particularly because of the mitigating circumstances, which included the respondent's age, the injuries he sustained in the collision, his personal background, his remorse and early plea of guilty.

There is no standard sentence for a culpable driving offence. An appropriate penalty will depend upon the circumstances of the offending and the offender. In terms of the head sentence of four years on each count of culpable driving, I am not persuaded that Mr Hillman is correct in his submission that a sentence of four years is manifestly inadequate. I would accept that a sentence of four years' imprisonment for a culpable driving offence based upon gross negligence and without aggravating features is within the range available to a sentencing judge. In my opinion, a higher sentence would have been justified in the circumstances, but the head sentence of four years was not per se manifestly inadequate. There must be a range available to a sentencing judge. Whilst the driving in the present case was very bad and was accompanied by an attitude of bravado, showmanship and aggression, it was not accompanied by consumption of alcohol. Accordingly, in my opinion, the head sentence imposed for culpable driving in this case does not demonstrate error in principle[2]. I would not uphold ground 1.

I turn next to consider together grounds 2 and 3, for they overlap. Essentially, these grounds attack the omission of the judge to order some cumulation in respect of counts 1 and 2 to reflect the gravity of the respondent's conduct. Mr Hillman submitted that significant cumulation should have been ordered and the principle of totality did not require that there be no cumulation between the counts. The judge did not explain why no cumulation order was made between the counts. It may be inferred that the judge did not do so because the respondent was still "a very young man and not an adult of mature years and judgment"[3]. Undoubtedly, the youth of an offender is generally a powerful consideration in terms of sentencing. However, a youth of 18 who is entitled to drive a motor car must accept adult responsibility for his actions behind the wheel of a lethal machine. The right to drive a motor car carries important community obligations and responsibilities. I repeat what was said in R. v. Sherpa by Callaway, J.A.[4] Speaking about culpable driving, his Honour said:

"General deterrence must usually be emphasised in the punishment of this offence and there is correspondingly less scope than in the case of some other crimes for leniency on account of an offender's youth. That does not mean that there is no scope for youth and concomitant prospects of rehabilitation to influence the disposition."

At the conclusion of the paragraph his Honour added:

"But it is not to be forgotten that a life has been lost."

In the present case two relatively young lives have been lost and four children deprived of their mothers. There is tension between the weight to be given to the youth of an offender and deterrence, but this kind of offence is prevalent and all too frequently the offender is a young person.

I agree with Mr Hillman that the omission to make a cumulation order of the sentence imposed on the second count upon the sentence imposed on the first count does not indicate to the public the overall gravity of the respondent's conduct and the deterrence factor. I repeat what the President said recently in Solomon[5], where cumulation of only one year was ordered in a double fatality culpable driving case:

"The sentence imposed fails to signify the overall gravity of the respondent's conduct, tending to treat, as it does, the death of the younger victim as a meaningless statistic ... ."

These words are apt for the present case. For "younger victim" I substitute, in the present case, the "rear seat victim". As the President said also in Solomon: where multiple deaths ensue, due regard must be paid to the principles of totality and to the fact that the multiple deaths arose from a single course of driving conduct. Speaking only for myself, I consider that some cumulation may be appropriate in every double fatality case unless there are special circumstances calling for a merciful outcome for the offender, in order to reflect both the seriousness of the offence and the need to deter motorists from driving irresponsibly and in a grossly negligent manner.

Mr Tehan, very properly, acknowledged in his written outline that sentencing cases for multiple driving counts and related offences tend towards a view that there be some cumulation of penalty. He also drew attention to s.16 of the Sentencing Act 1991 and the decision in R. v. Martini[6], which held that prima facie sentences are to be served concurrently. Mr Tehan submitted that the ultimate question here is whether the total effective sentence is "just and appropriate and consistent with the application of the totality principle". In a Director's appeal the ultimate question for the Court is whether the total effective sentence is manifestly inadequate. Inadequacy may result from inadequate head sentences or inadequate cumulation leaving the total effective sentence manifestly inadequate.

I am persuaded by Mr Hillman that the total effective sentence of four years for a double fatality and two counts of causing serious injury is manifestly inadequate. The sentencing discretion miscarried in my opinion because no cumulation order was made on the second count of culpable driving. The sentencing discretion is reopened because the total effective sentence is manifestly inadequate. I would therefore uphold grounds 2 and 3 of the notice of appeal.

In re-exercising the sentencing discretion regard must be had to the principle of double jeopardy[7]. I would propose that the head sentence imposed by the judge on each count should not be changed, but I would cumulate one year of the sentence imposed on count 2 upon the sentence imposed on count 1. The total effective sentence will now become five years. I would propose that a non-parole period of three-and-a-half years should be fixed before the respondent becomes eligible for parole. The disqualification order of four years will remain unchanged. A declaration will be made that 238 days has been spent in pre-sentence detention. The calculation is made upon the basis of 41 days' pre-sentence detention allowed by the sentencing judge and 206 days up to 3 October 2002.

29 I would allow the appeal for these reasons.

I agree that the appeal should be allowed substantially for the reasons given by O'Bryan, A.J.A., and I agree in the orders which his Honour proposes.

I would not suggest that in every case of culpable driving causing multiple deaths the judge will be bound to order cumulation. In the long run the question will often be whether the total effective sentence is manifestly inadequate to meet the circumstances of the case. In my view the total effective sentence in this case is manifestly inadequate, although the orders which the Court will substitute will reflect the fact that we are restrained, by principles of "double jeopardy", from imposing sentences which adequately reflect the seriousness of the offences.

I have the misfortune to differ from the other members of the Court. I would not myself have imposed four wholly concurrent sentences, but in my opinion the constraints of double jeopardy leave insufficient scope for appellate intervention in this case.

Moreover, and just as importantly, there must always be room for cases where the judge's sympathy, or inclination to show mercy, is legitimately engaged[8]. Their Honours do not deny that proposition. The difference between us is that I think that this was an example of such a case. I would dismiss the appeal.

The sentences imposed by the trial judge are set aside and in lieu thereof we impose the following sentences:

In respect of each of counts 1, 2, 3 and 4 on the presentment we impose the same sentences which his Honour imposed below.

We order that one year of the sentence imposed on count 2 be cumulated upon the sentence imposed on count 1. The total effective sentence will therefore be one of 5 years. We direct that the respondent serve a period of 3½ years before becoming eligible for parole.

The period of disqualification from driving a motor vehicle which his Honour ordered, namely, 4 years, will remain and will continue to run from 20 March 2002, that is, the date upon which his Honour imposed sentence.

Pursuant to s.18 of the Sentencing Act we declare that the respondent has served a period of 238 days pursuant to the sentence that we have imposed. We direct that the fact of that declaration being made and its details be entered in the records of the Court.

[1] R. v. O'Connor [1999] VSCA 55 at [19]; R. v. Brooks [2000] VSCA 188 at [21]; R. v. Sherpa [2001] VSCA 145; [2001] 34 M.V.R. 345 at 348; R. v. Guariglia [2001] VSCA 27 at [22]; R. v. Solomon [2002] VSCA 106 at [18].

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

[4] R. v. Sherpa [2001] VSCA 145 at [11].

[5] R. v. Solomon [2002] VSCA 106 at [19].

[7] See the cases listed in [20], R. v. Solomon (supra).

[8] See, for example, the observations of Charles, J.A. in R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 523, where his Honour emphasised what had been said by King, C.J. in R. v. Osenkowski (1982) 30 S.A.S.R. 212 at 212-213.

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