Lee v The Queen [2021] VSCA 156

1 The applicant ('Ms Lee') pleaded guilty to one charge of dangerous driving causing serious injury and was sentenced to 6 months' imprisonment. She now seeks leave to appeal against sentence on two grounds: first, that the sentence was manifestly excessive; and, secondly, that the judge erred in finding that this was a 'serious example' of the offence.

2 The objective gravity of an offence of dangerous driving causing serious injury depends on both the degree of dangerousness of the driving and the seriousness of the injury caused.[1] In this case, as will appear, Ms Lee's driving was highly dangerous and the injuries she caused were extremely serious. Her moral culpability was high.

3 In the circumstances, the judge was right to describe the sentence of 6 months as merciful. His Honour clearly gave considerable weight to the mitigating factors relied on. As explained more fully below, neither ground of appeal is reasonably arguable, and leave to appeal must therefore be refused.

4 On 13 August 2019, at approximately 6:50 am, Ms Lee was driving her adult daughter to work. Driving in the far left lane of Springvale Road, she went past the intersection with Railway Parade and drove towards the intersection with O'Sullivan Road, where the lights were red.

5 Ms Lee did not see the red light and drove through a marked pedestrian crossing, just as pedestrians were crossing the road on a green walk signal. Her station wagon collided with two pedestrians who were on the crossing.

6 A reconstruction of the accident estimated that the traffic lights at the intersection had been red for 14.78 seconds prior to the collision. The judge found that Ms Lee was at least 151 metres away from the crossing when the lights turned red.[2] At the time of the collision the road was wet and the weather was overcast and drizzling. It was accepted that visibility was good and traffic was light on Springvale Road.[3]

7 Ms Lee's daughter said that, as soon as they went through the intersection at Railway Parade, she looked up and saw red lights. Realising that her mother did not seem to have seen them, she yelled 'red light'. She saw pedestrians crossing and yelled, 'Mum' but it was too late, and Ms Lee struck the two pedestrians.[4]

And I didn't actually see the lights, my - but my daughter said, 'Mum, the lights are red', and because the - the car behind me - and it was wet - I didn't want to stop 'cause - anyway, because of that - there were two pedestrians which I didn't see. My daughter yelled out - 'Mum, there's someone', and it was sort of too late. They hit the car, I felt it, my daughter saw it, I didn't.[5]

9 Relying on what Ms Lee had said in her record of interview, the applicant's counsel on the plea submitted that at the time of the collision Ms Lee 'was distracted' and thinking about 'her mother's medical appointment'. This was an appointment to which Ms Lee was due to take her elderly mother later in the morning.

10 The victim ('KT') was aged 47. He was walking with his son, aged 9, at the front of a group of pedestrians. The group waited for the green pedestrian light and proceeded to cross. The group crossed the first two lanes of Springvale Road. As KT and his son crossed the last section of the road, they were hit by Ms Lee's vehicle.

11 KT sustained extremely serious injuries, which required urgent restoration and maintenance of his compromised breathing and circulatory functions. He underwent emergency surgery to repair the artery in his chest. He required monitoring of neurological complications associated with his head injury and surgical treatment for some of his fractures. He developed significant post-operative complications while in the intensive care unit. The medical evidence was that KT's injuries were life threatening, substantial, and likely to be protracted.[6]

12 At the time of the offence, Ms Lee was 58 years old. The trial judge noted that there had been 'great tragedy' in her life. In 2000, her husband was killed in a workplace accident. At the time of his death, her children were aged 11 and two. Ms Lee experienced intense grief at the loss of her husband and contemplated suicide. In 2006, she commenced a new relationship. Her partner was subsequently diagnosed with liver failure and died in 2018. In 2019, Ms Lee left her job to become the full time carer for her mother. On 25 June 2020, her mother collapsed and passed away suddenly whilst in Ms Lee's care.

13 Mr Cummins, a forensic psychologist, found that Ms Lee presented with major depressive disorder with associated anxious distress. The condition was triggered by the collision, against a background of stress and trauma related to the successive bereavements. In Mr Cummins's opinion, her time in custody would be more onerous than for persons who did not have Ms Lee's documented medical history. Ms Lee's physical wellbeing was described as poor. She suffered from chronic osteoarthritis, osteoporosis, diverticulitis, and abdominal pain as well as generalised chronic pain.[7]

14 We deal first with proposed ground 2, which contends that the sentencing judge erred by finding that this was a 'serious example' of dangerous driving causing serious injury. According to the written case:

Seeking to classify a particular example of an offence as falling within a particular category can '... obscure the essential nature of the sentencing task'. Here, the sentencing judge concluded that this was a 'serious example' of the offence charged. That finding constituted an error for two reasons. First, the applicant was not put on notice that that finding was being contemplated (in circumstances where the prosecution's submission was that the offending fell '... in the medium range ...'). Second, that finding was not open given (i) the explanation for the offending and (ii) the absence of certain otherwise aggravating features.

15 There is nothing in the procedural fairness point. Apart from the fact that the risk of an adverse finding on offence seriousness is inherent in any plea hearing,[8] counsel for Ms Lee was put squarely on notice that the judge took a serious view of the offending.

16 As the respondent correctly points out, there was extensive debate on the plea about how the seriousness of the offence should be assessed:

COUNSEL: The submission I seek to make, though, is that given all the circumstances of the case is that it is not at the serious end, and that there is an absence of many features which are common in these cases, and that ultimately I would submit that the court should make a finding that it did fall at the lower end of the scale, or that it - - -

COUNSEL: Yes.

HIS HONOUR: I don't see how I can find it. I keep harping at it, I know. A bit like a dog with a bone, for which I apologise. We're talking about inattention for many, many seconds. We're not talking about - and this is not an implied criticism.

...

HIS HONOUR: I've read the authorities that you put in your outline. Most of them are dealing with momentary inattention. You're talking about the Bendigo truck driver of two seconds. You're talking about a woman who approaches a roundabout and slows down and looks into the roundabout, doesn't see a cyclist, and collides with the cyclist at a slow rate of speed.

COUNSEL: Yes.

HIS HONOUR: That's not this case.

COUNSEL: Yes, your Honour. I selected those cases to make the point that - none of the cases are on all fours.

HIS HONOUR: They can't be.

COUNSEL: I would accept that.

...

HIS HONOUR: One cannot describe the injuries suffered by the male victim in this case as being other than serious.

COUNSEL: No, your Honour.

HIS HONOUR: Indeed, extremely serious.

COUNSEL: Yes. However, the court is required to take into account the seriousness of the injury, and there are some of those decisions, much more serious outcomes.

HIS HONOUR: But they combine with momentary inattention.

17 Nor is there any substance in the contention that the finding of 'serious example' was not open. As noted earlier, the judge was required to assess both the dangerousness of the driving and the seriousness of the injuries which resulted. Unsurprisingly, no issue is taken with the judge's description of the injuries as 'extremely serious' and as having 'profoundly adversely affected' the victim's life.

18 There was, however, debate over the assessment of the dangerousness of Ms Lee's driving, and of her moral culpability. It is well established that the degree of dangerousness depends upon the extent of the risk which the driving creates and the extent of potential harm which would be caused should that risk materialise.[9] And, while proof of objective dangerousness suffices to establish the first element of the offence, the offender's moral culpability is - as always - a key sentencing consideration.[10]

19 The sentencing judge found that the offending was objectively serious:

The collision was not caused by momentary inattention and for reasons that are unknowable you failed to observe the red traffic control signals for 14.78 seconds or at least 151 metres of travel, and struck your victim and his son as they crossed on a pedestrian crossing with a green light applicable to them.[11]

...

The objective circumstances of your offending make it a serious example of the offence of dangerous driving causing serious injury. Whilst there is an absence of many if not all of the aggravating features that are from time to time referred to in the authorities, your inattention for a period of something in the order of 14 seconds, which ultimately brought about the collision and the injuries suffered by your victim, call for the application of the principle of general deterrence. I see little or no work to be done in your case by the application of specific deterrence. Your offending must be publicly denounced, and you must be justly punished.[12]

20 The first obligation of a driver is to pay attention to the road ahead, and to be aware of the movements of others who are on or near the road. The inherent dangerousness of a motor vehicle travelling at speed makes it imperative that the driver remain in control of the vehicle at all times. The obligation to maintain control is an obligation which each driver owes to each other road user and to those in the vicinity of the road.[13] Compliance with that obligation is essential to community safety.

21 Inattention by a driver at any time is dangerous. Prolonged inattention is highly dangerous, as the present case illustrates. As counsel for the respondent submitted, during the period of 14 seconds when she was 'distracted', Ms Lee was simply not in control of her vehicle. Her conscious mind was elsewhere.[14]

22 The risk to others which her driving created was very high. Given that she was driving in traffic, in a built-up area, her failure to be in control of her vehicle for that length of time meant that everyone in the vicinity was exposed to risk. And, if the risk materialised, the resulting harm was certain to be serious. When a car is being driven at 40 kilometres per hour and hits a pedestrian, serious injury or death is almost inevitable. Depending on the point of impact, a collision with another vehicle at that speed would also carry a real risk of serious injury.

23 As the prosecutor submitted on the plea, there was nothing in the circumstances of the offence which moderated Ms Lee's moral culpability. The explanation given - that she was distracted, thinking about her mother's medical appointment - tended rather to underline her high level of culpability. There was not the slightest justification for her failure to be in control of the vehicle.

24 As already mentioned, KT sustained extremely serious injuries. They comprised:

• right hemopneumothorax (collection of free air and blood in chest outside the lung);

• small subarachnoid haemorrhage and a parieto-occipital subdural haemorrhage (small intra-cranial bleeds);

• innominate artery avulsion from aortic arch (a major artery in the chest had torn);

• left vertebral artery injury (in neck) secondary to trauma that put KT at risk of stroke, and complex pelvis bone fractures;

• a minimally displaced left occipital condyle fracture (being a fracture in the back of KT's skull that extended to the joint between his skull and the first spinal vertebra);

• a fracture to the left elbow where pieces of bone had become detached;

• comminuted left scapular (shoulder blade) fracture; and

• comminuted left medial femoral condyle fracture (a fracture of the end of KT's thigh bone where the bone had broken into more than two pieces).[15]

25 The long-term impact has been profound. As the judge found, KT has been unable to work. He is anxious and depressed, can only walk slowly, is prone to falls, and his memory as well as his ability to concentrate has been reduced. In short, his Honour said, KT's 'life physically, mentally, and professionally has been profoundly adversely affected' by the collision.[16]

26 For these reasons, the judge was plainly correct to describe this as 'a serious example of the offence'.

27 It follows from what we have already said that the manifest excess ground must also fail. This was a very moderate sentence indeed, given the objective seriousness of the offending, Ms Lee's moral culpability and the importance of general deterrence and denunciation.

28 Counsel for Ms Lee provided the sentencing judge with a detailed written submission addressing a number of mitigating factors. Reliance was placed on:

(a) the fact that Ms Lee had no criminal record, had pleaded guilty at an early stage, and demonstrated remorse;

(b) the delay of 12 months between offending and charge;

(d) the hardship of imprisonment, given her physical and psychological state.

29 It was submitted that a community correction order ('CCO') could address all of the relevant sentencing considerations.

30 In this Court, it was submitted that a CCO 'should have been imposed'. That submission must be rejected. The judge gave very thorough and sympathetic consideration to all of the matters relied on in mitigation. That is apparent from his Honour's detailed and careful reasons. There is nothing to suggest that the discretion miscarried. On the contrary, having regard to the seriousness of the offending and the significance of general deterrence, it was well open to his Honour to conclude that a custodial term was 'the only appropriate disposition in all the circumstances'[17] and to describe the sentence of 6 months as 'merciful'.[18]

31 For these reasons, leave to appeal must be refused.

[1] See by way of analogy: Harrison v The Queen [2015] VSCA 349; (2015) 49 VR 619, 629 [44]; [2015] VSCA 349 (Maxwell P, Redlich and Tate JJA); Gorladenchearau v The Queen [2011] VSCA 432; (2011) 34 VR 149, 156 [22]; [2011] VSCA 432 (Maxwell P).

[2] DPP v Lee [2021] VCC 339, [13] ('Reasons').

[8] Humphries v The Queen [2010] VSCA 161, [10] (Maxwell P and Redlich JA).

[9] R v Towle [2009] VSCA 280, [66] (Maxwell P) ('Towle'); R v De Montero [2009] VSCA 255; (2009) 25 VR 694, 710 [55]; [2009] VSCA 255 (Ashley, Redlich and Weinberg JJA); Stephens v The Queen [2016] VSCA 121; (2016) 50 VR 740, 745 [20]; [2016] VSCA 121 (Redlich, Santamaria and Beach JJA); Woldesilassie v The Queen [2018] VSCA 285, [22] (Maxwell P and Kaye JA) ('Woldesilassie').

[10] DPP v Neethling [2009] VSCA 116; (2009) 22 VR 466, 474 [38]-[39]; [2009] VSCA 116 (Maxwell P, Vincent and Hargrave JJA).

[13] Towle [2009] VSCA 280, [57].

[14] Woldesilassie [2018] VSCA 285, [34].