Lennon v The Queen [2017] VSCA 85

1 On 20 May 2016 the applicant (now aged 22),[1] pleaded guilty to two charges of dangerous driving causing serious injury and one charge of reckless conduct endangering a person. Following a plea hearing the applicant was sentenced on 16 August 2016 as follows:

Dangerous driving causing serious injury [Crimes Act 1958 s 319(1)]

10 months combined with a two-year CCO with 200 hours of unpaid community work

Dangerous driving causing serious injury [Crimes Act 1958 s 319(1)]

Reckless conduct endanger person [Crimes Act 1958 s 23]

12 months' imprisonment and two-year CCO with 200 hours of unpaid community work

Other orders: Driver's licence cancelled, and disqualified from obtaining a licence for two years from the date of the applicant's release from prison.

2 The applicant seeks leave to appeal on nine grounds:

1) The learned sentencing judge erred by departing from the agreed summary of facts and making an adverse finding that the applicant was driving at a speed that was excessive in the conditions and failing to advise defence counsel that she intended to do so.

2) The learned sentencing judge sentenced the applicant on the basis of an error of fact, namely that a 50 metre skid mark had been observed at the scene when the skid mark was in fact 15.9 metres.

3) The learned sentencing judge erred in failing to find the applicant's moral culpability was low in relation to the offending in each of the charges.

4) The learned sentencing judge erred in finding that the prohibition on probationary licence holders from driving probationary prohibited vehicles applied to the applicant when driving on private property and treating that matter as an aggravating feature on sentence.

5) The learned sentencing judge erred in failing to have regard to current sentencing practices.

6) The learned sentencing judge erred by failing to take into account undue delay as a mitigating circumstance.

7) The learned sentencing judge erred in finding that the applicant was not genuinely remorseful.

8) The learned sentencing judge denied the applicant procedural fairness by advising defence counsel at the conclusion of the plea hearing that she was satisfied that the applicant had demonstrated remorse and then sentencing the applicant on the basis that she was not satisfied the applicant had demonstrated remorse.

9) That the sentences imposed on charges 1, 2 and 3 are each manifestly excessive.

3 On the afternoon of Saturday 8 March 2014, the applicant and a group of friends arrived at a 320 acre rural property co-owned by the applicant's step-father, intending to camp there over the Labour Day long weekend.

4 At approximately 7.00 pm that evening, some of the group decided to drive to the top of the property to get a signal on their mobile phones. The applicant drove one of the vehicles, an eight cylinder turbo-charged Toyota Landcruiser. The vehicle had a single bench seat, with capacity for the driver and two passengers, and a rear tray. At the time the offences took place, the detachable side panels of the tray were not fixed, leaving the tray open on all sides.

5 One of the victims, Ebony Dawson, sat in the rear tray with another friend. The other victim, Tarryn Rankin, asked the applicant if she could sit in the back tray. He responded in the affirmative. The applicant drove the vehicle with all three friends in the tray of the vehicle, facing the rear.

6 Approximately 100 metres from the top of the property, where the off-road track met a gravel road, the terrain became extremely rough. The vehicle began bouncing around and the victims sitting on the tray had nothing to hold on to. As the applicant accelerated around a corner, the two victims were thrown from the tray. Friends administered first aid and sought assistance.

7 An evidentiary breath test was conducted later that evening at 10.27 pm at Woods Point police station. The applicant at that time had a blood alcohol reading of 0.060. The applicant's blood alcohol content at the time of offence was estimated to be closer to 0.082.

8 Ebony Dawson (Charge 1) suffered a life-threatening head injury, fractures to her vertebrae, jaw and shoulder and lacerations, including to her face and internally to her liver. She was placed in an induced coma for a number of weeks. CT brain scan results indicated 'an extremely severe brain injury.' Although she can walk, talk and is independent in personal activities of daily living, she has suffered significant, permanent cognitive impairment. She will never be able to complete the childcare course she was undertaking or return to work in that field. She does not have the memory or sustained concentration to undertake what are described as complex tasks such as cooking without supervision or someone to help organise her. She will never regain full field-vision in her right eye. She can no longer drive. Her frontal lobe damage is such that she has much less emotional control and regulation, making it difficult to execute appropriate behaviour when necessary.

9 Tarryn Rankin (Charge 2) suffered a broken left ankle, a broken bone in her right foot and sustained numerous cuts, including a significant laceration to her head as well as extensive bruising. She has made a full recovery.

10 Mark McLaren (Charge 3) was not injured. He did fall from the vehicle's tray.

11 The defence sought a Community Correction Order (CCO) rather than a term of imprisonment having regard to the applicant's youth, plea of guilty, absence of prior convictions, remorse, good prospects for rehabilitation and his low level of moral culpability. The prosecution sought a term of imprisonment, alone or in combination with a CCO, in light of the objective gravity of the offending, which it submitted was in the mid-range.

Ground 8 (breach of procedural fairness on remorse)

12 The question of the applicant's remorse was a live issue on the plea.

13 In two interviews with police, the applicant denied knowledge of the presence of passengers on the tray of his vehicle. According to the report of his psychologist, Mr Williams, tendered on the plea by the defence, the applicant was 'adamant' that he did not know he had passengers on the tray when he began to drive up the hill. The applicant also indicated to the prosecution that this topic would be the subject of factual contest on the plea. However, at the outset of the plea hearing the applicant's counsel abandoned this position and accepted the prosecution opening as accurate.

14 The applicant had also told his psychologist that he lamented having to spend money on legal fees.

15 On the plea, the applicant's counsel submitted the applicant showed genuine remorse for his actions. Reliance was placed upon his written apologies to the victims and his cooperation with police following the offence. At one point defence counsel submitted that the applicant was 'completely remorseful'. In response to that submission the following exchange occurred:

HER HONOUR: There is still a level of minimising and of responsibility avoidance. That may be understandable in a young person who is probably going to struggle for the whole of his life to accept and take responsibility for the devastating consequences of this. So he's not to be punished for that but I don't accept the view that he is completely remorseful. He's still seeking to hive off some responsibility where he must

[DEFENCE COUNSEL]: Well he still says this, Your Honour, that he can't remember Tarryn asking to get on.

HER HONOUR: That may be so.

[DEFENCE COUNSEL]: That may be so.

HER HONOUR: But the point I'm making is I don't accept the characterisation of completely remorseful. There is some remorse

[DEFENCE COUNSEL]: That's

HER HONOUR: and it goes beyond just being sorry for himself, I accept that.

16 There was a further exchange later in the plea with respect to the weight to be given to remorse:

HER HONOUR: Therefore, I'm putting you on notice that I am concerned about what weight I can give it and giving you the opportunity to make submissions about it.

[DEFENCE COUNSEL]: Yes. Well, it should be taken into account and given the weight that it deserves, Your Honour. In my submission, it's relevant to this point - remorse. Subject to what Your Honour's finding are as to the authenticity of that. But he says straight out to this

HER HONOUR: And subject to what the Court of Appeal says in Barbaro and Zirilli about

[DEFENCE COUNSEL]: Absolutely, Your Honour.

HER HONOUR: repetition in a psychologist's report of statements of opinion.

[DEFENCE COUNSEL]: Well, to this man's credit, Your Honour, he has given you - he has given the court some insight into the - if you like - the vacillation of the feelings about the whole event.

17 When her Honour asked defence counsel whether she had anything to say in reply to the prosecution's submissions, the following exchange took place:

[DEFENCE COUNSEL]: Not by way of reply, Your Honour, but if I may, given Your Honour's, not necessarily misgivings, but perhaps doubt about the remorse of James Lennon, I - I would like to call his sister to give some evidence on this very issue, because I - I opened the whole plea by virtue of saying that this is genuine remorse and lest Your Honour think otherwise, I'd like you to take into account her observations.

HER HONOUR: I will, but let me make it clear what I said. I accept there is remorse

[DEFENCE COUNSEL]: Yes.

HER HONOUR: and it goes beyond feeling sorry for himself and the position he's in.

[DEFENCE COUNSEL]: Yes.

HER HONOUR: However, I also consider, particularly having regard to the account given to the psychologist, that there is still a level of minimising his responsibility and blame shifting.

[DEFENCE COUNSEL]: Yes. I understand.

18 The applicant's sister then testified. She said the applicant had experienced depression and remorse, and was subject to contempt from the local community. She said 'he hates himself every day' and he had told her 'I wish I couldn't be here anymore. I wish I could trade places with Ebony.' Her evidence was not challenged by the prosecution.

19 During the middle of her testimony the sentencing judge, while addressing an objection, indicated that the testimony of the applicant still did not address the concerns about the applicant having given an account to the psychologist which was at odds with the accepted summary in relation to his knowledge of the presence of passengers on the tray.

20 In her Honour's reasons for sentence she made the following remarks in relation to remorse:

I am not sure whether you are simply not well able to articulate empathy for the victims and express a genuine remorse....or whether your feelings of remorse have not gone beyond feeling sorry for yourself and the position you now find yourself in.[2]

...

I am not sure whether the way you have expressed yourself is simply an inability to articulate your true feelings or whether it is a reflection of the lack of remorse or empathy. [3]

...

However, I am not satisfied on the materials before me and having regard to your continued assertions up until the time of the presentation of the plea before me that your culpability was limited to your blood alcohol readings and your failing to check your rear-view mirror, that the plea of guilty is also evidence of genuine remorse in the sense that is described in Barbaro and Zirilli. [4]

21 The applicant contends that he was denied procedural fairness on the basis that the judge told defence counsel at the plea hearing that she was satisfied that the applicant had demonstrated remorse that went beyond feeling sorry for himself.

22 In our opinion, her Honour telegraphed in no uncertain terms that she was not inclined to accept the thrust of the defence submission that the applicant was 'completely remorseful'. However, it seems equally clear to us that her Honour foreshadowed at the plea that she would give him some credit for having shown some remorse. In her reasons for sentence, her Honour departed from this view, finding that the defence had failed to satisfy her that the applicant had shown any remorse. Indeed, counsel for the respondent in this Court conceded her Honour had changed her position on the issue. Ordinarily natural justice would require that such a departure would be drawn to the attention of the offender. The issue on this appeal was whether this apparent change in position would have made a difference.

23 The relevant principles were summarised by Redlich JA in Davey v The Queen[5]:

Procedural fairness must be upheld for its own sake as well as for its consequences. The concern is with the fairness of the procedure adopted rather than the fairness of the outcome.[6] Once procedural unfairness is established, it is no part of this Court's function to consider the likelihood of his Honour making a different finding or imposing a different sentence if the applicant had been given a further opportunity to make submissions or call further evidence. Relief from procedural unfairness should only be refused where a court can say that had such an opportunity been afforded, it could not have yielded a different result.[7] Given the psychiatric evidence that could have been called, no attempt was made by the Crown to suggest that such additional evidence could have made no difference.[8]

24 In Clark v Ryan & Anor[9] Habersberger AJA (with whom Warren CJ and Ashley JA agreed) stated:

The authorities establish that once a breach of procedural fairness is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome and that such a situation will be a rarity.[10]

25 The applicant submits that the sentencing judge's indication had the effect of truncating the evidence led by defence counsel on the subject. The applicant himself might have testified.

26 The respondent argued that the applicant must have fully appreciated that the issue of remorse was a live issue. He was given a full opportunity to address the issue. This was demonstrated by his decision to call further evidence from his sister, in response to the doubts which the sentencing judge had clearly expressed about remorse. The respondent argued there was nothing more the applicant could have realistically done, noting there were significant forensic difficulties involved in him testifying about his remorse (given his previous position with respect to his knowledge of the passengers on the tray of the vehicle).

27 We do not accept the respondent's argument. Defence counsel has a forensic choice as to whether the offender or other witnesses should be called. True enough, there were significant forensic difficulties involved in the applicant testifying. But this simply highlights the forensic dilemma in play - calling the applicant may well have placed in jeopardy her Honour's foreshadowed acceptance of some remorse. Had her Honour not given this indication, the complexion of the forensic judgment faced by the defence would have been different.

28 Further, a favourable finding on remorse - even if significantly qualified - is potentially an important sentencing consideration.[11] The weight which will be accorded to it, and any consequential reduction in the sentence, will of course vary.[12] But there is a difference between according some weight to remorse on the one hand (which is what her Honour indicated on the plea) and according no weight to it on the other (which was the position taken by her Honour in her reasons).

29 It is also not an answer to denial of procedural fairness on a plea to state that the sentence is one that fell within the appropriate range.[13] Nor is it an answer to say that it was open to her Honour to change her position on the issues.

30 We have concluded there was a breach of procedural fairness. This is not one of those rare cases in which the breach 'could not possibly have produced a different result'. For these reasons we would allow the appeal on ground 8. This has the effect of re-opening the sentencing discretion.

31 As the sentencing discretion is re-opened, strictly speaking it is not necessary to address the other grounds of appeal. Our comments will be limited to some passing observations so that the basis of re-sentencing is clear.

32 As to Ground 7, we do not need to resolve whether it was open to her Honour to decline to accept any degree of genuine remorse, as we are now required to reach our own view on the question of remorse.

33 Remorse cannot always be identified as an all or nothing concept. It is often measured in degrees. The weight to be attributed to it in the sentencing syntheses will depend upon an assessment of the level of genuine remorse demonstrated.[14]

34 While some of the evidence clearly discloses reasons to doubt that the applicant had a full appreciation of the wrongfulness of his offending, the evidence advanced at the plea does show that he had acquired a degree of insight into the wrongfulness of his actions. He has experienced some contrition. We will give the applicant some credit for remorse, consistent with the views expressed by the sentencing judge during the course of the plea hearing.

Ground 1 (excessive speed) and Ground 2 (skid mark)

35 As to Ground 1, the applicant argued that the judge fell into error by finding that the applicant was driving at an excessive speed for the conditions at the time of the offence. The agreed statement of facts set out the basis of the dangerousness of the driving as being 'constituted by the combination of the offender driving the vehicle whilst in excess of 0.00 (namely with an estimated blood alcohol concentration of 0.082) with three unrestrained passengers on the tray of the Landcruiser'. While her Honour correctly identified the basis for the dangerous driving in her reasons for sentence, the applicant pointed to her Honour's later observations in her reasons that the applicant 'had accelerated up the hill and was going too fast for the conditions'.

36 Self-evidently, excessive speed was not a basis of the dangerousness of the driving. Yet it is common ground that speed was a contextual feature to this offending. The speed at which the applicant was driving (50 to 60 km /hr) was opened by the prosecutor at the plea, as was the applicant's admission that he was 'going a bit quick'. The applicant's passengers were flung around on the back of the tray of vehicle, to the point where the two of them were thrown from the tray. As a matter of logic and common sense, the explanation for this lay in the fact that the vehicle was being driven too fast for the terrain. The speed was excessive, and relevant, in that limited sense. It is unsurprising that her Honour made some reference to it. Whether her Honour went beyond treating speed as a contextual feature does not need to be resolved. We make it clear that we will re-sentence upon the basis that it is a background fact only. It does not aggravate the offending.

37 We do not need to say much about Ground 2 (that her Honour erred in making a finding that there was a 50 metre skid mark). Even though the ground was brought upon basis that the skid mark was considerably less (15 metres), it now seems common ground that it was in fact 42 metres. The length of a skid mark is ordinarily relevant because it is used to assist in the calculation of the speed of the vehicle at the time of the accident. Once it is accepted, as we do, that speed is only to be taken into account as a background or contextual feature, and not as a basis for the dangerous driving, the length of the skid mark loses much of its significance in this sentencing exercise. It is of marginal contextual relevance. We will re-sentence on that basis.

38 As to Ground 3, it is asserted that the learned sentencing judge erred in failing to find the applicant's moral culpability was low. In this Court counsel for the applicant argued that the applicant's moral culpability was at 'at the lowest end of moral culpability'.

39 The applicant relied upon a number of factors to support his argument, including the fact that the applicant did not plan to drive up the hill that night, that the applicant's trip was only intended to be 800 metres (or a 1.6 kilometre return trip) and that the trip was on private property (which meant that ordinary road users were not exposed to the multitude of risks associated with driving on public roads). There was no evidence of lairising, and the applicant was driving normally until hitting the gravel path.

40 While her Honour did not explicitly classify the level of the applicant's moral culpability, we would infer that she at least found that the applicant's moral culpability was not at the lowest end of scale. We would agree with that assessment. In our opinion, the applicant's moral culpability - when assessed by reference to his driving - was in the low range but it is far from the lowest. The applicant possessed a probationary licence and should not have had any alcohol in his system at all. His blood alcohol reading was significantly above zero, and indeed well over the legal blood alcohol limit even for a fully licenced driver. He drove, while intoxicated, over rough terrain with knowledge that three unrestrained passengers were on the tray. We agree with the learned sentencing judge that the danger to the passengers on the applicant's tray should have been obvious. As the learned sentencing judge observed, this was not a case involving momentary inattention or a mere error of judgment.

41 Of course, the objective gravity of a particular instance of this offending is also to be assessed by reference to the seriousness of the injury caused, as well as to the degree of dangerous driving displayed.[15] The impairments from which Ebony Dawson suffers are profound and permanent.

42 Under Ground 4 complaint is made that her Honour erred by taking into account the fact that the applicant's vehicle was more powerful than his probationary licence conditions allowed. As a probationary licence holder, the applicant was prohibited from driving the vehicle in question on a public road for purposes other than his employment by reason of regulation 57 of the Road Safety (Drivers) Regulations 2009. The employment exemption did not apply. However, because the accident occurred on a private property the applicant was not at that time driving in breach of regulation 57. Regrettably, neither of the parties at the plea hearing was alive to this.

43 The question of illegality aside, the plea was conducted by both parties upon the basis that the applicant's knowledge of the power of the vehicle was relevant, to some degree, to the likelihood of a danger arising in the circumstances. Again, her Honour cannot, in the circumstances, be criticised for taking it into account in this general way.

44 As we will re-sentence the applicant, we do not need to resolve whether her Honour went further and sentenced upon the basis that the driving involved illegality. We will re-sentence upon the basis that there was no illegality attached to the driving of the vehicle on private property at the time of the accident. Further, we are of the view that the applicant's appreciation that he was driving a powerful vehicle is of limited significance to his offending. This case was not about the loss of control of a vehicle, let alone upon the basis that the offender misjudged or abused the power of the vehicle.

45 Complaint is made under Ground 6 that her Honour failed to take into account delay as a mitigating circumstance.

46 Had we been required to, we would not have concluded that she failed to take into account undue delay. While her Honour did not make explicit reference to delay in her reasons, the failure of a sentencing judge to make express reference to a matter does not necessarily vitiate the sentence, especially where, as here, the matter was not emphasised at the plea.[16]

47 In any event, we will take into account the delay when re-sentencing. Specifically, we will give weight (as did the sentencing judge) to the fact that the applicant maintained his good work history and clean record, during the period between his offending and the finalisation of proceedings against him. Likewise we will give weight (as did the sentencing judge) to the fact that he was 19 years of age at the time of his offending and was 22 years of age when he fell to be sentenced and that, because of the procedural delay, he lost an opportunity to be dealt with by way of a youth justice centre order.

Ground 9 (manifest excess) and Ground 5 (current sentencing practice)

48 As to Ground 9, had it been necessary we would not have found the sentences imposed on charges 1 and 2 (dangerous driving causing serious injury) to be manifestly excessive. We also see no basis to infer her that her Honour failed to consider current sentencing practices in relation to these charges (Ground 5).

49 For offences of this kind, a sentence involving immediate custody is generally to be expected.[17] The judge was also right to emphasise the need for general deterrence in sentencing for this kind of offence. Offences of this kind are frequently committed by young offenders, with otherwise good character, who have no criminal history and good prospects for rehabilitation. The applicant meets that description. It is because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight.[18]

50 We agree with the learned sentencing judge that only a sentence involving a component of imprisonment (to be immediately served) was appropriate, having regard to the nature of the driving, the number of victims (two) and the seriousness of the injuries sustained, particularly by Ebony Dawson.

51 The terms imposed were relatively modest in length.

52 The sentence of imprisonment imposed (3 months) for charge 3 is in a different category. It appears to us the sentence has been coloured by the gravity of the offending in charges 1 and 2 and, in that sense, involved an element of double punishment. Counsel for the respondent all but accepted this. In our opinion, when the gravity of this offending is assessed independently of charges 1 and 2, it can be dealt with by way of a conviction and fine.

53 We would allow the appeal and set aside the sentences imposed. We are exercising the sentencing discretion afresh.

54 In doing so we take into account, in the applicant's favour, some matters which were not given weight when he was originally sentenced. As we have said, we will give some weight to remorse. Further, on 6 October 2016 the applicant was granted bail pending the hearing of this appeal, having served a little under 2 months' imprisonment under the original sentence.[19] While the principle of double jeopardy does not strictly apply, returning him to prison will involve additional anguish.[20] We will make allowance for this.

55 Like the sentencing judge, we have decided that a sentence involving a term of imprisonment is required in relation to charges 1 and 2. The length of the terms will be lower than those imposed by her Honour, in recognition of the various matters outlined above.

57 In relation to charge 1, the applicant is sentenced to 7 months' imprisonment combined with a two-year CCO with 200 hours of unpaid community work. This will be the base sentence.

58 In relation to charge 2, the applicant is sentenced to 4 months' imprisonment. We direct 1 month of this sentence to be served cumulatively upon charge 1.

59 In relation to charge 3 the applicant is convicted and fined $1000.

60 That makes for a total effective sentence of 8 months' imprisonment, a two-year CCO with 200 hours of unpaid community work and a fine of $1000.

[1] The applicant's date of birth is 10 July 1994.

[2] DPP v Lennon (Unreported, County Court of Victoria, Judge Hampel, 16 August 2016), [35] ('Reasons').

[5] Davey v The Queen [2010] VSCA 346, [29].

[6] Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492, 512.

[7] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; R v Healey [2008] VSCA 132, [42].

[8] See the discussion in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 and Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492, 514-521.

[9] [2005] VSCA 311.

[11] Phillips v The Queen (2012) 37 VR 594, 614-5 [69]-[72]; Barbaro v The Queen [2010] VSCA 288; (2012) 226 A Crim R 354, 366-5 [39]-[41].

[13] Tan v The Queen [2011] VSCA 427; (2010) 216 A Crim R 535, 572 [145].

[14] Va v The Queen [2011] VSCA 426, [14]-[19].

[15] Harrison v The Queen (2015) 74 MVR 58, 69 [44].

[16] R v Arthars (2013) 39 VR 613, 617 [9].

[17] Stephens v The Queen (2016) 76 MVR 90, 96-7 [21]; Bell v The Queen [2016] VSCA 203, [27].

[18] DPP v Neethling [2009] VSCA 116; (2009) 22 VR 466, 472-3 [30]-[32], 477 [55]; Harrison v The Queen (2015) 74 MVR 58, 83 [115]-[117].

[19] In the matter of an application for Bail by James Brian Lennon [2016] VSCA 239.

[20] Arie Frieberg, Fox and Freiberg's Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014), 991.