Leddin v The Queen [2014] VSCA 155

Court of Appeal (Vic)|2014-07-22|Before: Mr J, Whelan JA, Weinberg JA

CRIMINAL LAW - Culpable driving causing death - Application for leave to appeal against sentence - Young offender of good character - Absence of usual features of culpable driving - Sentence of 4 years 3 months with non-parole period of 2 years 3 months not manifestly excessive - Leave to appeal refused.

1 I will invite Whelan JA to deliver the first judgment.

2 On 4 December 2013 the applicant, who is now aged 22 years, pleaded guilty to one count of culpable driving causing death. The offence was committed in 2011 when the applicant had just turned 19.

3 Following a plea on 11 December 2013, the applicant was sentenced on 19 December 2013 to a term of imprisonment of 4 years 3 months. A nonparole period of 2 years 3 months was fixed.

4 The applicant now seeks leave to appeal from that sentence on the ground that the sentence and the nonparole period are manifestly excessive in the light of:

(a) the circumstances of the offence, in particular the low level of objective culpability in the range of circumstances comprehended by the offence;

(c) the applicant's youth, vulnerability in custody, immediate and substantial remorse, and previous excellent character and contributions to the community; and

(d) the unacceptable and onerous delay which occurred in finalisation of the prosecution.

5 The circumstances of the offence itself were as follows.

6 The applicant was driving a motor car which struck and killed a cyclist at around 11:00 am on 7 April 2011. The collision occurred on a straight stretch of road just outside Warrnambool. The road is a carriageway with a single lane in each direction. The speed limit is 100 kilometres per hour. The weather was fine and

visibility was good. Approximately 480 metres before the collision there was a large sign warning of the presence of cyclists on the road. The deceased was a 47yearold mother of four who was an experienced cyclist. She was wearing a pink high visibility top. After the collision, the applicant and his passenger performed CPR on the deceased but she had been killed instantly.

7 The applicant's passenger later told police that the cyclist had been travelling about 30 centimetres from the left kerb and that she had seen her from several hundred metres away.

8 The applicant spoke to the police at the scene and was formally interviewed three hours after the collision. He told the police that he had seen the sign warning of cyclists on the road and had vaguely seen the cyclist about 200 metres ahead on the road. His thoughts had then wandered. He began to day dream and lost concentration. He denied having fallen asleep.

9 The applicant's passenger told police that she had called out his name in a firm voice when they were about a hundred metres from the cyclist intending to warn him of the cyclist's presence.

10 When the car was about 20 metres behind the cyclist, the applicant called out but the impact occurred without any attempt on his part to divert around, or otherwise avoid, the cyclist.

11 It was not alleged that the applicant had been affected by drugs or alcohol, had been driving at an excessive speed, had otherwise been driving erratically or dangerously, or had been distracted by using a mobile phone or some other circumstance.

12 There was evidence of the possibility of fatigue. The applicant and his passenger had driven from Warrnambool to Geelong the previous day and had then got the train to Melbourne to see a show. After the show, they had gone out with friends and then returned to a hostel where they were staying. The applicant had between three and a half and five and a half hours sleep that night. He and his friend caught the train back to Geelong very early on the morning of the collision. The applicant had slept for some of the time on that train trip. They then drove to a town near Warrnambool where they stopped for ten minutes before continuing on to Warrnambool.

13 A police expert, Dr Morris O'Dell, suggested that, while the applicant may possibly have fallen asleep, on the evidence he could not give an unequivocal opinion as to whether sleep deprivation or excessive fatigue caused the collision as distinct from day dreaming, a lapse in concentration or some form of distraction.

14 The applicant was not charged with culpable driving until January 2013, approximately 21 months after the collision. The reason for this delay was unrelated to anything done by the applicant. The most significant cause of the delay was attempts by the prosecution to obtain additional expert evidence. That additional expert evidence was eventually ruled to be inadmissible.

15 This Court can only interfere with a sentence on the ground of manifest excess if the sentence is wholly outside the range of sentencing options available.

16 The devastating impact of death on the roads caused by this kind of offending is powerfully revealed by the victim impact statements in this case. A woman in the prime of her life, with a husband, children, friends and other family, has met with a traumatic death as a result of another's culpable negligence. She is dead and those close to her will suffer and grieve for many years to come, perhaps for the rest of their lives. It is because of the terrible consequences of this kind of offending that Parliament has fixed a maximum penalty of 20 years' imprisonment for the offence and the courts have sentenced some offenders to long terms of imprisonment.

17 The perceived seriousness of these kinds of offences has increased in recent years resulting in an increase in the severity of the sentences imposed. The sentence imposed here, 4 years 3 months with a nonparole period of 2 years 3 months, is by no means at the top of, or even in the middle of, the range for this offence.

18 As this Court explained in DPP v Neethling,[1] serious driving offences of this kind are often committed by young drivers. It is precisely because of the tendency of young drivers to commit these kinds of offences that youth must be given less weight in the context of offences of this kind than it is in other contexts.

19 The most recent published statistics reveal that the median sentence for this offence is 5 years 6 months' imprisonment.[2] Those statistics are now perhaps out of date.

20 A case would need to be truly exceptional before a conclusion could be reached that a sentence of 4 years 3 months, the sentence imposed here, is outside the range of sentencing options available. The applicant's counsel on the appeal accepted that that was the case.

21 The applicant's counsel submitted that this case was truly exceptional. He relied upon the applicant's guilty plea, his youth, his vulnerability, the excellent character evidence given on his behalf and his genuine remorse. They are all matters properly to be taken into account, and the sentencing judge in careful and detailed reasons revealed that he did take them into account. They are, however, all characteristics which offenders in this kind of offending often possess.

22 The features of this case upon which the applicant's counsel also relied and which I accept are potentially unusual, are the delay, which was considerable and entirely the result of actions by the Office of Public Prosecutions, and the absence of the usual kind of dangerous driving with which these kinds of offences are often associated, in particular speed, such as in Neethling, disobeying traffic control signs or signals, such as in DPP v Hill[3] and R v Sherpa,[4] intoxication, such as in Sherpa, and other contraventions of the road rules, such as crossing double lines of which Neethling is again an example.

23 The sentencing judge was fully aware of these aspects of the matter and did take them into account.

24 Counsel for the respondent on the appeal accepted that delay was an unusual feature of this case.

25 As to the circumstances of the driving, counsel for the respondent submitted that while what might be called the usual features of this kind of offending were absent, this was a case of real and significant culpability in terms of the driving. The applicant had a clear view of the cyclist, who was highly visible. He saw a sign warning him of the presence of cyclists. He did actually see the cyclist well before the collision. His passenger also saw the cyclist and called out to the applicant a hundred metres before the impact. Yet the applicant collided with the cyclist without taking any evasive action.

26 In my view there is force in counsel for the respondent's submission about the circumstances of the collision. The case is remarkable for the absence of many of the usual features of culpable driving such as speed or intoxication, but it is also remarkable for the failure to avoid a collision with an obvious cyclist notwithstanding the fact that the driver had been warned by a sign of the presence of cyclists, had been warned by his passenger of the presence of this cyclist and, indeed, had seen her himself.

27 Delay does remain an unusual feature of this case. The sentencing judge devoted considerable attention to that feature and took it into account in the applicant's favour, quite properly. One consequence of the delay is that a possible transfer of the applicant from the adult system to the youth system after sentence was precluded. But in my view this factor alone does not render a sentence which is already towards the lower end of the range manifestly excessive.

28 This case revealed the terrible twofold character of these tragedies. A wife and mother is dead, leaving a family distraught and with what could be a life sentence of grief. A young, law abiding person, who is of good character and not in

any sense a criminal, is condemned to spend time in gaol. He too may suffer life long consequences.

29 Notwithstanding the features of this case, all of which were considered and addressed in detail by the sentencing judge, and notwithstanding the matters very ably put on behalf of the applicant by counsel in this application for leave to appeal, I find myself unable to conclude that this sentence was wholly outside the sentencing options available.

30 In my view the application for leave to appeal should be dismissed.

33 The order of the Court will be that the application for leave to appeal is dismissed.

[4] [2001] VSCA 145 ('Sherpa').

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