Hutchinson v The Queen [2015] VSCA 115

1 I will ask Priest JA to deliver the first judgment.

2 Rather than being manifestly excessive, the sentence imposed in this case is, in my view, lenient. I would thus refuse this application for leave to appeal against sentence.

3 On 27 February 2015, the applicant pleaded guilty in the County Court to reckless conduct endangering serious injury[1] (charge 1), and recklessly causing injury[2] (charge 2). He also pleaded guilty to four summary charges, which included exceeding the prescribed concentration of alcohol within three hours of driving; being a learner driver without having an experienced person sitting beside him; and failing to display 'L' plates.

4 The judge sentenced him on 10 March 2015, to be imprisoned for five (5) months on the first charge, and to a community correction order of 18 months' duration - conditions of which required that he perform 200 hours' community work, and submit to an alcohol treatment condition - on the second charge. On the summary charges he was fined an aggregate of $800; and all driving licenses and permits were cancelled, with a disqualification period of two years.

5 This application for leave to appeal against sentence is limited to the sentence on the first charge only. The grounds of appeal are:

1. The sentence imposed on Charge 1 was manifestly excessive in that the circumstances did not require the imposition of a sentence of imprisonment rather than a Community Corrections Order (sic.); and
2. The learned sentencing judge erred in his consideration of whether it was necessary to impose a sentence of imprisonment in light of the decision of this court in Boulton & Ors v The Queen [2014] VSCA 342.

6 For present purposes, the judge's description of the offending, as set out in his reasons for sentence, is adequate:

[O]n Friday 20 December 2013, [the applicant] consumed a number of beers and a pre-mixed drink at [his] home before driving with [his] partner to a hotel in Preston. [The applicant] drank a number of pots of beer up until 5.15 p.m. at that hotel. [He] then drove away from the hotel, despite being told by [his] partner to take a taxi.

As [he] drove through Ivanhoe, [he] argued with [his] partner. At about 5.30 p.m., [he] drove erratically down Bond Street and turned right at a fast rate of speed into Fairview Street which is really a laneway. In Fairview Street, a nine year old, Nida Maqsoodi, was riding a plastic pedal cycle in company with her three year old sister. On the other side of the roadway, Mary Cahill was standing with her young grandson.

[The applicant] lost control of [his] Magna sedan, mounted the footpath area and collided with Nida Maqsoodi. She was knocked into the fence and her head wedged between the fence and the street sign. [The applicant's] vehicle veered back across the road, narrowly missing Ms Cahill and her grandson, before crashing into a fence, coming to a rest.

Nida sustained several injuries as a result of being struck by [the applicant's] car. They are set out in [the Summary of Prosecution Opening] and include tenderness to the spine, bruising, lacerations, a minor pelvic fracture and a lacerated liver. She was hospitalised for two days and, considering the circumstances, was lucky to escape the injuries as light as she did.

Charge 1, conduct endangering serious injury, related to those [he] placed in danger of serious injury: [the applicant's] wife, three year old Narlin Maqsoodi, Mrs Cahill and her grandson.

Charge 2, recklessly causing injury, relates to [the applicant] colliding with and injuring Nida Maqsoodi.

When [the applicant was] breath tested by police at 6.43 p.m., about 75 minutes after [the] collision, [he] returned a breath alcohol concentration of .136 grams of alcohol ... [The applicant] admitted driving as a person with a learner's permit but without an experienced driver beside [him], [the applicant's] wife did not hold a driver's licence, and [he] drove without L-plates. They are the summary charges to which [the applicant] pleaded guilty.

7 On the plea hearing, it was acknowledged that the applicant's conduct was appalling. But the applicant, counsel submitted, was cooperative with police, had made full admissions and had been frank and honest. At the scene, he had tried to help the injured child, but was told to stop by the child's father. Counsel submitted that the applicant had pleaded guilty at an early stage. The plea indicated his remorse, which he had also expressed to police shortly after the offending.

8 Counsel relied on good prospects of rehabilitation. Despite a difficult youth, the applicant was hard-working and had the care of his partner and child. He was generally of good character. It was submitted that a community correction order ('CCO') should be imposed (a course that the prosecution conceded was open).

9 In his reasons for sentence, the judge observed that the applicant had told police that he had twice failed his driving test. The judge said that the applicant drove even though he knew he was intoxicated, and thus 'consciously took the risk involved in driving [his] motor vehicle'. Further, the judge remarked that the applicant, it seemed, 'regularly drove without a licence'. Although he had no prior convictions, the judge noted that the applicant had a subsequent appearance at the Heidelberg Magistrates' Court on 21 January 2014 for driving offences for which he was fined $400. The only relevance of that, the judge said, was that the relevant offending had occurred in September 2013, when, not only was the applicant unlicensed, but he had been charged for driving without legal entitlement. The sentencing judge observed that the applicant knew that he should not have been driving, but ignored his legal obligations. Not only did he drive, but he 'drove erratically and dangerously under the influence of alcohol'.

10 With respect to the applicant's personal circumstances, the judge noted that he was aged 28 years of age, and was born in the Mallee. During his teenage years, the applicant lacked a male role model, his parents having separated when he was aged 13 years. At age 16, the applicant left home and went to live with an older half-brother in Ivanhoe. He attended Banksia Secondary School, but did not complete his VCE. In 2005, the applicant returned to Ouyen and completed an information technology course, but then found himself in the Mallee without a job and without friends. He then returned to Melbourne, and obtained work in Fairfield as a spray painter, where he remained until December 2013. At the time of sentence, the applicant was working for another company in Ringwood as a spray painter.

11 The applicant met his partner, Melissa Baxter, in August 2013. At the time of sentence, she and the applicant had a ten month old daughter, and Ms Baxter was pregnant with another child. Ms Baxter wrote a letter to the court, Exhibit 2, in which she spoke of the applicant's remorse. Indeed, the judge expressed the view that the applicant's early pleas of guilty were accompanied by 'genuine remorse'. The judge said that he took into account the applicant's remorse and co-operation with police.

12 Importantly, the judge took into account the applicant's lack of prior convictions and his prior good character. The judge thought him to be 'a hardworking man who has done well to overcome the disadvantages of a difficult childhood and youth'. The applicant had 'a solid work history', and provided for his partner, his daughter and his unborn child.

13 General deterrence was, the judge observed, significant. In order to deter others, to express curial denunciation and to properly punish the applicant's offending, a period of imprisonment had to be imposed. The presence of alcohol and erratic driving meant that the applicant's culpability 'must be seen as high'. People in the area 'were put at extreme risk' by his driving. Were it not for the applicant's demonstrated remorse and his personal circumstances, the judge remarked that the applicant would have received 'a substantially higher sentence' than the one imposed.

14 In this Court, counsel submitted that the judge was wrong to reject the prosecution's concession that a CCO was open. Counsel relied heavily on Boulton.[3] It was submitted in the written case that the following 'lukewarm language' in the judge's sentencing remarks 'reflect a failure by the learned Judge to embrace the proposition that the availability of CCO's (sic.) dramatically changes the sentencing landscape':

Driving cars under the influence of alcohol is the subject of an extensive publicity campaign. Everyone knows of the dangers that can occur when alcohol and motor cars are mixed and in your case, you should not have been driving at all. In my opinion, any sentence imposed for your offending that did not have a custodial component included would cause outrage to the fair minded members of the community. For these reasons, I am unable to accede to the submission of your counsel and reject the concession volunteered by the prosecution.

I have had full regard to what the Court of Appeal said in Boulton. Clearly, community corrections (sic.) orders can be used in situations where the court previously could have imposed a suspended term of imprisonment or an intensive corrections (sic.) order. Long duration community corrections (sic.) orders are designed to cater for more serious offences than the now-defunct community based orders. If the court feels that proportionality and suitability dictate that a community corrections (sic.) order is to be preferred to actual custody, then clearly such an order should be imposed.

It is also clear that a community corrections (sic.) order has a punitive aspect that will make such a disposition appropriate in some cases. But in my view, the imposition of a community corrections (sic.) order in your case would not give appropriate weight for principles of general deterrence, denunciation and just punishment.

15 Further, it was submitted that, if the sentencing judge's view 'that this offending was too serious for the imposition of a CCO prevails, it would imply that there would be hardly any serious driving offending which could be dealt with by imposition of a CCO', and 'this would be contrary to the approach of this Court in Boulton'. It was, so it was submitted, 'difficult to reconcile the conclusion reached by his Honour that the offending was too serious for a CCO with the decisions of this Court following Boulton'.[4]

16 In Boulton, the Court observed that a CCO may be suitable 'even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment', since a sentencing judge 'may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation'.[5] The Court said, however, that it was 'both undesirable and unnecessary to seek to impose in advance any outer limits on the availability of this sentencing option'. It was ventured that 'realising the full potential of CCOs' will require 'a re-examination of accepted views about offences for which imprisonment has been thought to be the only option', and that 'process of rethinking and re-evaluation will take some time'.[6]

17 Acknowledging that a CCO might be appropriate 'even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment', it should not be thought that Boulton offers a 'Get Out of Jail Free' card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed. One of the purposes for which a sentence may be imposed is, of course, 'to punish the offender to an extent and in a manner which is just in all of the circumstances'.[7] There will be cases - indeed, many cases - where, having regard to the seriousness of the offending, a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all of the circumstances, is just.[8] At the risk of again traversing well-trodden ground, it is axiomatic that in every case the sentence imposed must depend on its own facts, including the circumstances of the offending and the offender, and the circumstances of aggravation and mitigation.

18 Although, as I have mentioned, the Court in Boulton observed that a sentencing judge in a given case may find that, having regard to the gravity of the offending and the personal circumstances of the offender, a CCO is capable of satisfying the requirements of proportionality, parsimony, just punishment and rehabilitation, nothing in Boulton constrains a judge to impose a CCO where such a sentence would not be sufficient to reflect the objective seriousness of the offence and the circumstances of the offender. In my opinion, this was a case where a CCO - standing alone - would have been inadequate to satisfy the need to punish and denounce the applicant's conduct, and to provide a measure of general deterrence.

19 There were several serious features of the applicant's offending. In a statement to police, Ms Baxter said that she had been with the applicant at his work break-up at a hotel in Preston. Given his consumption of alcohol, Ms Baxter told the applicant repeatedly that they should go home by taxi; but the applicant - who had, in any event, no lawful right to be driving - refused to listen. On the trip home, during which Ms Baxter and the applicant argued, and the applicant was angry and upset, the applicant drove too fast, was swerving and was driving erratically. It was in the course of this appalling episode of driving that the applicant lost control and mounted the footpath, collided with nine year old Nida Maqsoodi and narrowly missed colliding with Ms Cahill and her grandson.

20 As a result of the collision, Nida Maqsoodi's head became wedged between a fence and a street sign. She suffered an undisplaced fracture of the pelvis and a torn liver. The victim impact statement by her mother, Farkhonda Maqsoodi (Exhibit B), sets out the ongoing emotional trauma suffered by Nida and other family members. Although the applicant was not charged with recklessly causing serious injury, nonetheless the physical injuries suffered by Nida are far from trivial.

21 The applicant's offending needed to be denounced in the strongest of terms. It cannot be gainsaid that his conduct in driving with a high blood alcohol concentration - after entreaties not to do so - was arrogant and disdainful of the law. His attitude to the safety of others was cavalier. He needed to be justly punished for his outrageous conduct.

22 Moreover, general deterrence was very important in the exercise of the sentencing discretion. People must know that it they drive with more than the legally acceptable concentration of blood alcohol, and in disobedience of the rules of the road, so that injury is caused to others, significant punishment will follow.

23 The judge was not unmindful of the mitigating features of the case, or of the need to foster the applicant's rehabilitation. He said:

To promote your rehabilitation and to give recognition of the weight to the factors urged by your counsel, I have reduced the term of imprisonment I would otherwise impose, and I propose to impose a community corrections (sic.) order commenced upon your release from custody. I have attempted to deter others from like offending, express community denunciation of your crimes, punish you and promote your future rehabilitation by the combination of sentences.

24 In my opinion, the sentence imposed by the judge was open in the proper exercise of the sentencing discretion. If any criticism could be advanced, it might be that the sentence was unduly lenient; but, in the circumstances, I need not consider that aspect any further. I have been unable to discern any error in the sentence first imposed which would lead me to the conclusion that leave to appeal ought to be granted.

25 Leave to appeal against sentence should be refused.

26 I agree with the reasons of my brother Priest and the order which his Honour proposes. The formal order of the Court is that the application for leave to appeal against sentence is refused.

[1] Crimes Act 1958, s 23. The maximum sentence is five years' imprisonment.

[2] Crimes Act 1958, s 18. The maximum sentence is five years' imprisonment.

[3] Boulton & Ors v The Queen [2104] VSCA 342 (Maxwell P, Nettle, Neave, Redlich and Osborn JJA) ('Boulton').

[4] Citing Sherritt v The Queen [2015] VSCA 1; McAleer v The Queen [2015] VSCA 4; Ellis v The Queen [2015] VSCA 21; Ahmad v The Queen [2015] VSCA 23; Marocchini v The Queen [2015] VSCA 29; Cole v The Queen [2015] VSCA 44; and Alam v The Queen [2015] VSCA 48.

[7] Sentencing Act 1991, s 5(1)(a).

[8] The sentencing judge, it should be noted, paid specific regard to s 5(4C) of the Sentencing Act 1991.