Halket v The Queen [2016] VSCA 221

1 The applicant pleaded guilty to two counts of negligently causing serious injury by driving ('NCSI by driving').[1] He was sentenced as follows:

• Licence cancelled and disqualified for 7y
• S464ZF Forensic Sample

2 In December 2015, in Harrison, this Court held that current sentencing practices for NCSI by driving were 'plainly inadequate' and that sentences for this offence needed to be increased.[3] The applicant pleaded guilty several months after that decision was handed down. Accordingly, it was common ground before the sentencing judge that she was not constrained by pre-Harrison sentencing practices.

3 There are two proposed grounds of appeal. The first is that the judge made a specific error in assessing the applicant's prospects of rehabilitation as 'guarded'. The second is that the sentence was manifestly excessive.

4 For reasons which follow, we are not persuaded that the sentence imposed was outside the range reasonably open to the judge in the circumstances of the case,[4] nor that there was any error with respect to the applicant's prospects of rehabilitation. The application for leave to appeal must therefore be refused.

5 The applicant was aged 47 when he committed these offences. He was a professional truck driver and he was familiar with the truck he was driving that day. He had just dropped a full load of clay from a construction site in Caulfield to the landfill in Henry Street, Oakleigh South. It was his second delivery of the day and he was travelling to collect a third load when he drove negligently and crashed his truck.

6 At about 10:45 am on 8 May 2015, the applicant was driving a heavy tip truck (the 'truck'), which had one forward steer axle and two rear fixed axles, with dual wheels on the rear axle. The truck was towing a topper trailer, with one forward steer axle and two rear fixed axles. The truck was unladen at the time of the collision and had a combined weight (truck and trailer) of almost 16 tonnes.

7 The second vehicle involved in the collision was a white Ford Territory. Inside that car were the victims, who were husband and wife. (For reasons of privacy, we will refer to them as 'Mr and Mrs Anderson'.)[5] Mr Anderson was driving and Mrs Anderson was seated in the front passenger seat. Both Mr and Mrs Anderson suffered injuries as a result of the collision.[6]

8 The third vehicle involved in the collision was a black Suzuki Swift hatchback. The fourth vehicle involved was a DAF prime mover, towing a semi-trailer.

9 A short time before the collision, the truck departed from the landfill site at Henry Street. This was about 2.4 kilometres from the scene of the collision. From there, the applicant turned onto Old Dandenong Road, after which he drove part of the truck onto the wrong side of the road and also failed to give way to a truck coming from the right. The applicant then drove along Old Dandenong Road towards Warrigal Road. As he did so, the vehicle was weaving in and out of the lane. Sometimes, the applicant drove into oncoming lanes while, at other times, he drove on the verge of the road.

10 At the intersection of Old Dandenong Road and Clarinda Road, the applicant failed to stop at a red light. A car which had entered the intersection had to stop to avoid colliding with the truck. Undeterred, the applicant continued to drive the truck in a similar manner.

11 He came to a divided section of the road near Warrigal Road, known as the South Road extension. The applicant drove along the right side of the road, next to the median strip, as he approached a right turn lane and a left turn lane. At that point, the truck was travelling at about 60 kilometres per hour (the applicable speed limit).

12 All of a sudden, the truck collided with the rear of the Ford Territory driven by Mr Anderson, which was stationary near the commencement of the left turn lane. The Ford had been stationary for about 60 seconds. The applicant did not slow or brake before hitting the Ford. Directly in front of the Ford was the Suzuki Swift and, in front of that car, the prime mover. The prime mover had stopped at the red light at the intersection of Warrigal Road and the South Road extension.

13 As a result of the collision, the Ford was pushed into the back of the Suzuki and then to the right side of the road, across the right turn lane. The Suzuki was also pushed to the right, colliding with the rear right corner of the prime mover in the process. After the initial collision with the Ford, the applicant's truck collided with the rear of the prime mover, where it eventually came to a stop.

14 On 17 July 2015, the applicant was arrested. He subsequently participated in a formal record of interview, in which he maintained that a sneezing fit was the sole cause of the collision. He also admitted to being a user of methylamphetamine or 'ice' and said that he had used it the previous weekend. Later in the interview, he admitted that he had used 'ice' the night before the collision.

15 Police obtained call charge records for the applicant's mobile telephone for the day of the collision, as well as for the preceding week. The records showed almost continuous use of the telephone, day and night, for telephone calls, text messaging and mobile data. In the week leading up to the collision, three hours was the longest period during which there was no overnight telephone use.

16 A mechanical inspection of the truck found it to be in good working order, with the brakes and brake lights working effectively. At the time of the collision, it was daylight, the road was dry and the weather was overcast. In addition, the volume of traffic was moderate and the visibility was good.

17 The sentencing judge assessed the applicant's negligence as 'very high, although not the worst imaginable case'. The applicant's submission was that this finding was not correct. The degree of negligence should have been assessed, it was submitted, as being 'closer to the mid-range'.

18 We do not agree. As the Crown's submission pointed out, the applicant was seen driving poorly for a total of 2.4 kilometres, which is a very considerable distance for sustained dangerous driving. The applicant was driving a large, heavy vehicle, at the maximum allowable speed, and his driving involved:

• driving on the wrong side of the road;
• failing to give way to a truck coming from his right;
• weaving in and out of lanes;
• driving into oncoming lanes, or onto the verge of the road; and
• failing to stop at a red light, forcing another vehicle to take evasive action.

19 As his counsel properly conceded in argument, the applicant must have been aware that he was not in a fit state to drive. He had numerous opportunities to pull over but chose to proceed despite the warning signs. The circumstances of the ultimate collision are themselves instructive. As we have noted, the victims' vehicle (the Ford) had been stationary for a full minute, waiting to turn, before the applicant's truck collided with it. The fact that, on the evidence, the applicant took no evasive action, and did not slow down or brake before the collision, indicates that he was not exercising adequate control of the vehicle in the period immediately preceding the collision.

20 In Board v The Queen,[7] a case concerned with dangerous driving causing death and serious injury, the Court pointed out how dangerous a vehicle becomes when, because of the effects of tiredness (or intoxication), the driver ceases to be in control of the vehicle. When that occurs, the vehicle is no longer subject to the driver's conscious will.

21 As illustrated by the decision in DPP v Oates[8], the Court's assessment of culpability in a case such as this will take into account:

• how the loss of control came about;
• whether the driver had forewarning of the dangers associated with the loss of control; and
• whether the driver took any steps to avert the risk.[9]

22 In this case, the loss of control came about because of two related factors. First, the applicant had used 'ice' the night before the collision and was therefore probably in a state of 'rebound' by the time of the collision. Secondly, the evidence showed that the applicant was severely sleep-deprived over the previous week, probably because of the hyper-stimulating effect of 'ice'. The applicant's counsel properly conceded that both of these were contributing factors.

23 The 'rebound' condition was described in an expert report by Associate Professor Odell of the Victorian Institute of Forensic Medicine, who said:

When drivers are in that state their concentration on the environment is impaired and the ability to exert control over tasks such as keeping the vehicle in the correct position within a lane is reduced. This is because the ability to respond quickly to changes in the road environment is affected by slowed responses and the occurrence of micro-sleeps which are short lapses into sleep (as evidenced by changes in brainwaves) that may last several seconds. During that time the driver is effectively unconscious and unable to respond to external stimuli.

A state of sleep deprivation and rebound fatigue from prior use of methyl-amphetamine could explain the observed driving behaviour and lack of response to traffic conditions including driving through a red light and failing to stop in a turning queue.

24 As we have said, the applicant must have been aware - not least because he had already been driving for some hours that morning - of his impaired functioning and his inability to control the vehicle properly. Tragically, he did nothing about it. Instead, he continued driving, exposing himself and other road users to grave risk. The degree of risk was, of course, greatly magnified because of the size and weight of the truck. That meant, quite simply, that any collision was almost certain to have very serious consequences for any occupant of the other vehicle.

25 The applicant's submission accepted that it was a very serious thing for the applicant to have decided to drive his heavy vehicle when he must have known that he was fatigued. Nevertheless, it was submitted, he should be viewed as being less culpable than an offender who 'wilfully and dangerously' disregards road laws. That being so, it was said, his moral culpability should be described as 'more towards the mid-range of seriousness'.

26 Once again, we disagree. For the reasons we have given, the applicant's conduct is properly to be regarded as involving a wilful and deliberate disregard of the fundamentals of road safety. The first, and most important, rule is that a person who is - or becomes - aware of his/her inability to control a vehicle properly should not begin - or continue - driving. The applicant's wilfulness is highlighted by his persistence in driving a heavy vehicle in a state of obvious impairment over such a distance. His culpability was properly to be judged as very high.

27 In addition to the degree of negligence, the seriousness of the injuries caused is also directly relevant to the assessment of offence gravity.[10] As the judge noted, it was conceded on the plea that the injuries sustained by Mrs Anderson 'were long lasting and debilitating, and fell at the high end of seriousness'. Mrs Anderson suffered a fractured vertebrae and partial paraplegia, a ruptured spleen and pain to her knee and shoulder.

28 In a moving victim impact statement, Mrs Anderson described how, because of her injuries, she had had to live at a rehabilitation centre for a number of months 'learning to live normally again'. She and her husband had then had a lot of difficulty in finding a suitable home for her to come home to, as she needed a wheelchair-friendly environment. Mrs Anderson was wheelchair-bound at the time of the sentence. At that stage, doctors were unable to determine whether this would continue for the rest of her life. As the judge said:

There is no doubt that the injuries sustained have been devastating to her, both physically and emotionally, [or that] her life has changed for the worse as a result of [the] offending.[11]

29 Mr Anderson's injuries were not as serious. He sustained an injury to his head, which resulted in him suffering from post-traumatic amnesia for eight days, along with upper and lower limb weakness. His victim impact statement spoke of the distress of separation from his wife during her time in the rehabilitation centre.

30 In our respectful view, the sentence differential between charges 1 and 2 properly reflected the significant difference in seriousness between the respective injuries caused.

31 The sentencing judge concluded that the applicant's prospects of rehabilitation were 'guarded'.[12] This was said to have constituted a specific error. Counsel for the applicant conceded that appellate intervention on this ground would only be justified if it were shown that the finding was not reasonably open.

32 The applicant's submission pointed out that he had previously had addictions to alcohol and later to heroin, which he had eventually overcome. According to the submission, if the applicant could be given 'the right intervention', his prospects of rehabilitation were 'in fact very good'.

33 In our view, it was well open to the judge to make the finding which she did. Her Honour noted, with concern, that although the applicant had long-standing dependency issues, he had never sought any formal assistance for drug or alcohol dependency.[13] Moreover, as the Crown pointed out, the applicant had been using Suboxone to address his heroin dependency and, at the time of sentence, had been doing so for approximately 10 years. It was obviously relevant that, while thus addressing his heroin addiction, the applicant had commenced using methylamphetamine in May 2014. That was a year before this accident occurred, by which time he was using the drug heavily.

34 The applicant also submitted that his history of driving offences 'could not be described as objectively serious'. We disagree. What the judge described as 'a very disturbing driving history' comprised:

• three offences of drink-driving over a period of three years;
• disobeying a traffic control signal; and
• in 2014, driving whilst his licence was suspended.

35 As her Honour said, this ongoing offending showed a disregard for driving rules. They are rules with which every member of the community must comply in order to ensure the safety of other road users. It was that very disregard of safety which on this occasion produced such tragic consequences.

36 The decision in Harrison concerned offences of NCSI by driving involving negligence 'at the upper end'.[14] This was just such a case, as the judge correctly found. Of course, the offending in this case had different features from the offending under consideration in Harrison. This was not a reckless young driver driving at high speed through suburban streets under the influence of alcohol. But, for the reasons we have given, the negligence was just as serious, and the culpability just as high.

37 The Court in Harrison expressed the view that, but for the constraints of the existing sentencing practice, a sentence of six or seven years for the individual offenders would have been 'well within range, given the seriousness of the offending'.[15] It follows, in our view, that the sentence of six years' imprisonment imposed on the more serious of these two charges was within range. The cumulation of one year and six months of the sentence imposed on the less serious charge was also within range, given that there needed to be adequate cumulation to reflect the separate criminality involved in the causing of serious injury to Mr Anderson.[16]

38 Accordingly, the application for leave to appeal against sentence must be refused.

[1] See Harrison v The Queen (2015) 74 MVR 58, 62 [1] ('Harrison').