Navaratnam v The Queen [2021] VSCA 26

1 The appellant pleaded guilty to a charge of reckless conduct endangering life[1] and a related summary offence of exceeding the prescribed concentration of alcohol within three hours of driving.[2]

2 A judge of the County Court imposed a total effective sentence of two years' imprisonment on the appellant, with a non-parole period of 12 months as set out in this table:

Exceed prescribed concentration of alcohol within 3 hours of driving

4 years' imprisonment with a non-parole period of 3 years

3 Other orders were made for the cancellation of the appellant's driver's licence and his disqualification from driving.

4 The appellant sought leave to appeal on the ground that:

The sentence imposed is manifestly excessive. The learned judge gave inadequate weight to the offender's suicidal ideation as a factor in mitigation of sentence.

5 The appellant was granted leave to appeal.[3]

6 For just over an hour very early on 18 February 2019, the appellant drove at high speed along major roads. This led to the appellant's conviction on the charge of reckless conduct endangering life. The sentencing judge described the events as follows:

At approximately 1.24 am on Monday 18 February 2019 [the appellant] sent two text messages to the same friend [Arul Sivanesan]. The first read, 'o free way 150kkm or .bmorr ..i Will not anyone'. The second simply said 'bye'.

At 1.26 am [the appellant's] Toyota Aurion sedan activated a traffic camera whilst [he was] driving south on the Western Ring Road, Ardeer towards the Western Freeway. [The appellant's] speed was 169 kph in a 100 kph zone. [The appellant] next activated a traffic camera at 1.39 am whilst [he was] driving in the opposite direction on the Western Ring Road Broadmeadows between the Tullamarine and Hume Freeways. [The appellant's] speed was 155 kph in a 100 kph zone. It is not known where [the appellant] turned around.

At 2.19 am police observed [the appellant] drive through a red light at the intersection of Plenty Road and University Drive, Mill Park at a speed they estimated to be 150 kph in a zone designated as 60 kph due to road works. [The appellant was] driving south on Plenty Road towards the Metropolitan Ring Road and only narrowly avoided other vehicles waiting at the intersection. It is not known how [the appellant] came to be on Plenty Road.

As [the appellant] approached the Tullamarine Freeway the speed limit on the Western Ring Road reduced to 40 kph due to night road works and the road swept to the left. At approximately 2.26 am [the appellant was] observed by other road users weaving through traffic at an excessive speed as [he] approached the left-hand bend. At that time Gerald Grear was driving ahead of [the appellant] in the far right lane. As he noticed the overhead flashing 40 kph signs he looked in his rear view mirror and saw [the appellant] approaching at a fast speed. [The appellant] attempted to change out of his lane, but in Mr Grear's words 'slammed' into the rear of his car pushing it forward into the centre concrete barrier before it rotated and collided into the concrete barrier again. Mr Grear's car came to rest approximately 110 meters southwest of the point of impact.

[The appellant's] car spun out of control before coming to rest against the centre concrete barrier approximately 147 metres southwest of the point of impact. [The appellant was] not wearing [his] seatbelt and [was] thrown around inside [his] car. Accident reconstruction determined [the appellant's] speed to be 217 kph immediately prior to impact.

A sample of [the appellant's] blood taken at 4.10 am was found to have 0.256 grams of alcohol per 100 millilitres of blood. As the holder of a full Victorian Driver's licence [the appellant was] required to have a blood alcohol concentration of less than 0.05 grams of alcohol per 100 millilitres of blood.[5]

7 The appellant and Mr Grear were taken to Royal Melbourne Hospital after the collision. The appellant was treated for head lacerations; fractures of the left upper arm; fractures of the ribs and vertebrae; a small pneumothorax; and post-traumatic amnesia. He spent ten days in hospital and one month in a rehabilitation facility. Mr Grear suffered lower back and neck pain. He was admitted and remained overnight at the hospital for observation.

8 On 14 June 2019, the appellant attended Mill Park Police Station and elected to make a 'no comment' interview. His driver's licence was suspended and he was charged and bailed.

9 Having set out how the offence was committed, the judge described the offending as very serious.[6] The judge accepted that there was less traffic because of the time the offence was committed but noted that there was still traffic.[7] The judge stated that the reason the applicant had been able to drive at the speeds which he did was because he was driving on major roads.[8] The offending took place over an hour.[9]

10 The judge observed that the concentration of alcohol in the appellant's system was high and he was clearly intoxicated.[10] The judge noted that the appellant was highly distressed at the time but was not actually attempting to kill himself. Rather, he was 'ruminating upon the idea'.[11] The judge said:

Such a state of mind may explain but in no way excuses your behaviour or lessens your culpability for exposing innocent people to risk of serious injury or death.[12]

11 The judge noted the diagnosis by Mr Patrick Newton, clinical and forensic psychologist, that the appellant suffered from chronic mild clinical depression and severe alcohol use disorder.[13] Mr Newton considered the appellant to be of average intelligence. He believed that the appellant's childhood experiences of conflict during Sri Lanka's civil war and social dislocation upon migrating to Australia left him 'vulnerable to anxiety and less able to cope with stressors'. Mr Newton noted that the appellant's depressive symptoms started in the context of marital difficulties in either 2010 or 2014, as did his heavy drinking.

12 The judge observed that Mr Newton considered that the appellant's depression would only have had a mild effect on his reasoning and decision-making, but that his consumption of a large quantity of alcohol 'would have greatly exacerbated the effects of [his] depression and led to significant impairment of [his] mental functioning'.[14] Mr Newton also said, however, that the appellant's prior experience with alcohol, including at emotionally upsetting times, meant that he was well aware of the potential effects of drinking in the way that he did on the night of the offending. Even taking into account the effects of alcohol, the judge said, Mr Newton had no doubt that the appellant was 'capable of forming the intention to commit the offending acts' and was 'well aware of the nature and likely consequences of [his] conduct'. Ultimately, the judge remarked:

I accept that in a general sense your difficult childhood and depression are relevant to your moral culpability. You are not to be treated the same as someone without those experiences or in perfect mental health. However, in light of Mr Newton's opinion, I do not consider those matters significantly reduce your culpability. Indeed, given your awareness of the effects of alcohol upon you and the fact you have previously received a traffic infringement notice ('TIN') for drink driving, I regard your moral culpability as high.[15]

13 The judge noted that one factor she must have regard to was current sentencing practices.[16] She observed that the offence of reckless conduct endangering life covers a wide variety of circumstances and that she had not located any directly comparable case.[17] The judge was of the view that cases to which she was referred were not sufficiently similar to the circumstances in this case to be of much assistance.[18]

14 The judge referred to the impact on Mr Grear.[19] The judge recognised that the appellant had pleaded guilty at an early stage and was remorseful.[20]

15 Next the judge outlined the appellant's personal circumstances,[21] first noting that he was born in Sri Lanka and had initially lived there with his mother and six siblings. During the civil war the appellant was exposed to serious conflict. He has memories of running from gunshots and witnessing extreme violence and suffering.

16 In 1990, when the appellant was about eight, his father sponsored him, and his mother and siblings, to migrate to Australia. The appellant learned English when he started attending school in Grade 2. He began a civil engineering degree in 2000. After two years, he left the course to pursue work. Later the appellant started a Masters' Degree in Banking and Finance, but left to work at a bank. He has, the judge noted, worked in sales and banking; run his own business; and assisted in his family's white goods business. At the time of sentencing, the appellant worked as a home-loan specialist with the Commonwealth Bank.

17 In 2010, the appellant married. His parents did not attend the wedding and he was estranged from them for several years. He began drinking more heavily after his marriage and was unable to sustain employment, thereby straining the relationship. He and his wife separated in 2014, exacerbating the appellant's depression and leading to attempts at suicide. The couple was attending marriage counselling in the hope of reconciliation and starting a family.

18 As to the appellant's prospects of rehabilitation, the judge said:

Your future is largely dependent on your ability to remain abstinent from alcohol. You are to be commended on your efforts at rehabilitation thus far even though they have come at a late stage. Whether you can remain alcohol free remains to be seen, however I think it likely that the consequences of your conduct on this night have been salutary. Overall, I consider your prospects of remaining crime free to be reasonably good.[22]

19 The judge referred to the effect of the current pandemic. She regarded the chance of contracting the virus in prison as speculative but accepted that 'the worry is an additional burden for prisoners'.[23] The judge also took into account that 'any term of imprisonment during the pandemic will be harder due to the suspension of visits to prisons, the curtailment of various programs and activities and the imposition of lockdowns'.[24]

20 Additionally, the judge took into account the extra-curial punishment suffered by the appellant. She observed:

I take into account as a mitigating factor the fact that in addition to any punishment that I impose you have suffered as a consequence of the injuries you sustained in the collision. You experienced extreme pain from your injuries and were prescribed opioid medication for some months. You weaned yourself off that medication but still suffer neck and back pain which affect your enjoyment of daily activities.[25]

21 Turning to the purposes of sentencing, the judge said:

In your case general deterrence, just punishment and denunciation loom large in the sentencing process. You displayed a serious disregard for the safety of other road users. People tempted to drive in a manner that endangers the public, for whatever reason and in whatever manner, must be dissuaded from doing so by the knowledge that if caught they will receive condign punishment.[26]

I accept that a community corrections order has a punitive element and that it can, in appropriate cases, achieve all the sentencing purposes, including denunciation and deterrence, however I consider your offending is just too serious for anything other than a term of imprisonment. Further, after careful consideration I believe that nothing other than a term of imprisonment involving a non-parole period is appropriate, notwithstanding your significant mitigating factors.

I accept that rehabilitation is also an important sentencing principle, indeed it is the best way to protect the community from you. However, the courts have repeatedly said that in cases of serious offending, rehabilitation may have to take a back seat to other considerations. To facilitate your continuing rehabilitation as best I can whilst imposing a sentence that satisfies the other sentencing principles I will impose a relatively short non-parole period.[27]

22 In the written case, the appellant's counsel submitted that although the appellant's driving was objectively serious the level of seriousness was less than other cases of its type because it was not pre-planned and the collision itself was not intended. There was a single victim who did not suffer life threatening injuries. It was submitted that the appellant's choice of major roads demonstrates insight into risk to others and that his purpose was self-harm, not harm to others. The appellant pleaded guilty at an early stage and expressed genuine remorse for his offending. He suffered physical injury as a result of his offending. He had engaged in a program of rehabilitation in the six months before the sentencing hearing. The offending took place in the context of a relationship breakdown with a background of hardship. Importantly, counsel submitted, the judge accepted that the appellant was 'considering death against a background of depression and misery'. Thus, it was submitted, 'the offending can be characterised as occurring during a process of suicidal ideation by someone with mental disorders (depression and alcoholism)'.

23 These factors, counsel submitted, 'entitled the appellant to a substantial reduction in the sentence imposed upon him'. But the judge's approach 'wrongly conflated mental impairment with the finding of fact that the appellant was in a state of suicidal ideation where decision making was with a focus on self-harm, not harm to others'. The proper application of principle, it was submitted, required the following approach:

(a) objective seriousness is reduced where the purpose is self-harm or death, not harm to others, and relevant insight is evidenced;

(b) levels of recklessness are reduced because reasoning in decision-making is impaired;

(c) intoxication is a relevant circumstance to the finding of suicidal ideation, not the objective gravity of the offence (as it might be with gratuitous drink driving);

(d) rehabilitation becomes a primary factor to reflect societal recognition of the value of life;

(e) the recognition of the value of life in this context requires the sentencing court to prioritise treatment away from incarceration, particularly if the underlying causes are treatable conditions; and

(f) if there is an available treatment program and the appellant is prepared to engage (or is engaging sufficiently) to reduce the risk to the community, the balance ought be in favour of treatment in the community, rather than a 'reduced custodial term'.

24 At the hearing, counsel elaborated on these submissions, contending that the appellant's offending called for 'moral sympathy' and that his significant efforts at rehabilitation, together with his real remorse, his good character and his family supports, called for a continuation of treatment through a community correction order.

25 The ground of manifest excess requires the appellant to show that the sentence imposed was wholly outside the permissible range of sentencing options available to the judge. It is not a ground of specific error. At the outset, we would note that although the appellant relies on the ground of manifest excess, his counsel did place significant emphasis on the contention that the judge gave inadequate weight to his suicidal ideation as a factor in the sentencing task. In this case, whether the matter is approached on the basis of specific error or manifest excess, the result is the same. Of course, that will not always be the case.

26 As part of his report, the clinical and forensic psychologist, Patrick Newton said:[28]

At the time of his offending, Mr Navaratnam's depressive disorder would have had a mild effect on his reasoning and decision making. While these effects would likely have been noticeable, in and of themselves they would not have caused severe impairment of his mental functioning.

When combined with the disinhibition, emotional impact and other effects of severe alcohol consumption, Mr Navaratnam's mental state deteriorated to the point where he became suicidal and where his decision making and other reasoning skills were significantly impaired. Such effects of severe alcohol intake were well known to Mr Navaratnam from past experiences. Even taking them into account, I do not consider that his ability to understand the nature and likely consequences of his actions was compromised or that he was no longer capable of forming the intention to commit the offending.

27 Having noted that the appellant did not rely on R v Verdins,[29] Priest JA in granting leave to appeal on the manifest excess ground said:

Mr Newton's opinions included, first, that the applicant's suicidal ideation was the product of his mental deterioration as an effect of severe alcohol consumption, in circumstances in which the applicant knew from past experience that he might suffer such effects; but, secondly, even taking the effects of the applicant's severe alcohol consumption into account, those effects did not compromise his ability to understand the nature and likely consequences of his actions. Plainly, so it seems to me, those opinions cannot avail the applicant. If the applicant's suicidal ideation arose from voluntary alcohol consumption - in circumstances in which he knew from past experience he was likely to suffer that effect - it is impossible to see how that could be said to provide any mitigation (even putting to one side Mr Newton's view that the applicant's capacity to understand the nature and likely consequences of his actions was not compromised).[30]

29 We do not accept the propositions set out in [23] above put forward by counsel for the appellant, based as they are on the implicit assumption that suicidal ideation falls within a discrete category for the purposes of sentencing. Taking those propositions in turn:

(a) Objective seriousness is assessed taking all of the facts and circumstances into account. While the primary purpose of self-harm or death by suicide will form part of the factual matrix, it does not follow that in and of itself it will lead to a reduction in the objective seriousness of the offending.

(b) Levels of recklessness may be reduced because reasoning in decision making is impaired. But it will depend upon the nature and severity of the condition. In this case, the level of impaired mental functioning was not such as to deprive the appellant of his ability to understand the nature and likely consequences of his actions.

(c) Intoxication appears to have led to the deterioration in the appellant's mental state to the point of suicidal ideation. His decision making and other reasoning skills were significantly impaired. The appellant knew this would be the effect of his drinking. This is in contrast to the position in Morrison v The Queen[31] (relied upon by counsel for the appellant). That case did not involve suicidal ideation. Moreover, although the appellant in that case had been an alcoholic for over 30 years, there was no suggestion that his drinking had previously led to violence and he would not have known from his own experience that his intoxication exposed others to danger.[32] Redlich JA said:

Because of the widespread use of alcohol, the effects on a person who becomes intoxicated are well known. As was stated in the joint reasons of this Court in Hasan v The Queen[33] circumstances must therefore be quite exceptional before intoxication at the time of offending can mitigate the offender's moral culpability. Save in very rare circumstances, an argument will not be countenanced that intoxication has mitigated the offence because the offender did not recognise that he might so behave. Where however the offender's long history of alcohol consumption has provided not the slightest indication that there was such a risk, the offender may discharge the heavy onus of showing that his offending conduct could not reasonably have been anticipated and was truly out of character.[34]

(d)-(f) Rehabilitation is always a consideration in sentencing. The role that it plays will vary from case to case, depending upon other sentencing considerations. Rehabilitation cannot swamp other considerations merely because the offender had thoughts of suicide. Treatment away from incarceration by a willing participant may serve the purposes of rehabilitation and protection of the community. However, when other considerations are taken into account as part of the process of instinctive synthesis, the result may be a custodial sentence.

30 As has been observed previously, the charge of reckless conduct endangering life covers a broad range of conduct.[35] The conduct may result in quite serious injury, none at all or something in between those two extremes. This can make the sentencing task difficult. For example, and as in this case, truly comparable cases are difficult to find. Quite different factual circumstances lead to different conclusions.

31 While the facts are distinguishable and the sentence imposed is of little assistance when considering current sentencing practices, the general observations made by this Court last year in Tedford v The Queen,[36] resonate. The applicant in that case was attempting to kill himself by driving his car in front of an approaching train. He was convicted on charges which included a charge of reckless conduct endangering persons of serious injury. In refusing leave to appeal, this Court said:

Those who selfishly disregard the risks they impose upon others to satisfy their own suicidal ends can expect to pay a substantial price if those ends are not achieved. In the present case, the applicant knew what he was doing, and made a deliberate decision to use a speeding train as a means of ending his life, regardless of the wider consequences. The principles of general deterrence must assume real weight in the sentencing mix.[37]

32 The same reasoning applies to those who, while not affirmatively intending to kill themselves, deliberately expose themselves to a risk of death while 'ruminating' about suicide. The approach advanced by counsel for the appellant is at odds with this reasoning.

33 Turning then to the question of manifest excess, we reiterate that, to allow the appeal, we would have to be satisfied that the sentence was wholly outside the available range. That a shorter term of imprisonment coupled with a community correction order may have been within range is not an answer to the question posed in this appeal. In our view, a sentence of two years' imprisonment with a non-parole period of 12 months was open as a sentencing option.

34 The appellant was driving at very high speeds along major roads. The fact that more traffic may have been on those roads had the offence been committed at a different time of day or in a built up area is beside the point. There was some traffic, they were major roads, the events took place over an hour or so and the speed was high, particularly at the time the appellant's car collided with Mr Grear's vehicle. The judge took into account all of the factors relevant to the sentencing task and gave each the weight she thought it deserved. Those matters included the objective seriousness of the offending, the mental health of the appellant, his remorse, early guilty plea and other matters in mitigation outlined earlier. In regard to rehabilitation, the judge said that it sometimes has to take a back seat to other considerations. There is nothing wrong with that reasoning. The judge then proceeded to impose a relatively short non-parole period of 12 months to facilitate the appellant's continued rehabilitation as best she could.

[1] Crimes Act 1958 s 22. The maximum penalty is 10 years' imprisonment.

[2] Road Safety Act 1986 s 49(1)(g). The maximum penalty was 120 penalty units or 12 months' imprisonment.

[3] Navaratnam v The Queen (Unreported, 8 October 2020, Priest JA) ('Leave Reasons').

[4] This section is drawn from the Summary of Prosecution Opening and from DPP v Navaratnam (Unreported, County Court of Victoria, Judge Carlin, 25 June 2020) ('Reasons').

[29] (2007) 16 VR 269; [2007] VSCA 102.

[31] [2012] VSCA 222 ('Morrison').

[32] Ibid [20] (Buchanan JA, Redlich JA agreeing at [25], T Forrest AJA agreeing at [26]).

[33] [2010] VSCA 352.

[34] Morrison [2012] VSCA 222, [25] (T Forrest AJA agreeing at [26]).

[35] DPP v Reid [2020] VSCA 247, [101] (Priest, T Forrest and Weinberg JJA).

[36] [2020] VSCA 71.

[37] Ibid [35] (Priest, Beach and T Forrest JJA).