Court of Appeal (Vic)|2010-06-18|Before: MAXWELL P and WEINBERG JA

Pollard v The Queen [2010] VSCA 156 (18 June 2010)

The Queen v Pollard (Unreported, County Court of Victoria, Judge Lawson, 24 November 2009)

1 The appellant, Amanda Maree Pollard, pleaded guilty in the County Court at Melbourne, on 24 November 2009, to one count of negligently causing serious injury contrary to s 24 of the Crimes Act 1958 (count 1), and one count of failing to render assistance after an accident contrary to s 61(1)(b) of the Road Safety Act 1986 (count 2). Each offence carried a maximum penalty of ten years' imprisonment.

2 The appellant was sentenced to three years' imprisonment on count 1, and 12 months' imprisonment on count 2. Six months of the sentence on count 2 was made cumulative upon count 1, making a total effective sentence of three years and six months. A non-parole period of 12 months was fixed.

3 Shortly after midnight on Friday 18 April 2008, the appellant drove her Toyota sedan in a northerly direction along Montague Street in South Melbourne, towards the Westgate Freeway. She had earlier that evening attended a work function, at which she had been drinking. Unlike what she normally did in such circumstances, she did not arrange for a taxi to take her home.

4 A traffic management truck, driven by Mr Kevin Serle, was parked on the entry ramp in the emergency left lane of the Westgate Freeway. Mr Serle had stopped to collect traffic management material and, in particular, a trailer-mounted arrow board. The truck had a roof-mounted arrow board directing traffic to the right of the truck, as well as two rotating yellow lights on its roof. In addition, the truck's normal headlights, as well as its hazard lights, were operating. Mr Serle was wearing a pair of white overalls with reflective tags, and an orange reflective vest.

5 As he alighted from his truck, Mr Serle noticed the appellant's vehicle heading at considerable speed directly towards his vehicle. Realising that the Toyota sedan was unlikely to stop, he took hold of the right hand side of his truck, and tried to pull himself as close to it as possible. However, the appellant's car struck both the rear of the truck, and Mr Serle. As a result, he sustained serious injury.

6 Following the collision, the appellant did not stop. She continued to drive for a distance of almost four kilometres. Eventually, she was intercepted by an emergency services vehicle. Her right hand indicator had been seen to be flashing continuously for no apparent reason. When first spoken to, her demeanour was described as 'vague'. She initially professed to have no idea why she had been stopped. Subsequently, when the police arrived and questioned her about the collision, her response was; 'did I hit something? I thought I did but I did not know what I hit'. She later registered a blood alcohol reading of 0.181 milligrams per 100 milligrams of blood, almost four times the legal limit. When formally interviewed by the police, she declined to answer questions.

7 As a result of the collision, Mr Serle suffered a number of serious injuries to both legs. The damage to his left leg included a ruptured lateral ligament that required surgery to be re-fixed to the bone, torn anterior and posterior cruciate ligaments, and injury to his medial ligament. Remnants of glass remained within the knee joint. It was accepted on the plea that it was possible that further surgery would be required to remove them.

8 As regards his right leg, Mr Serle suffered a torn medial ligament, a spiral fracture of the fibula, and multiple fractures of the tibia.

9 After the collision, Mr Serle was hospitalised for a period of four weeks. During that time he underwent six separate surgical procedures. In his victim impact statement, he said that he now experienced pain in both knees when walking, an inability to kneel or squat, and that he had difficulty in climbing stairs and hills. He found it difficult to get dressed, put on shoes and socks, and reach down to pick up objects. He said that he had also suffered mentally and emotionally as a consequence of his injuries. He experienced flashbacks, and was uncomfortable driving, or when walking near traffic. He was preoccupied with the thought that he might fall over and cause further damage to his knees.

10 Mr Serle said that he regarded his future health prospects as uncertain. He said that he could no longer undertake any work of a physically demanding nature, and that he was frustrated by the ongoing effect of his injuries. The sentencing judge concluded, on the basis of this material, that the collision had had a profound and lasting effect upon him.

11 The appellant was born in May 1974, and was aged 35 when she was sentenced. She had been a Business Development Manager with Bank West Financial Group for two and a half years, with responsibility for dealing with some 600 wholesale mortgage brokers, at the time the collision occurred. The evidence was that she had a habit of consuming alcohol to excess to deal with the ever increasing demands of her work, though it seems that she had had an alcohol problem going back to her youth. Her employment was terminated as a result of this incident.

12 The sentencing judge correctly described the appellant's family background as tragic. Her older brother suffered from mental illness. Her father had committed suicide when she was aged only three. Her mother had been killed in a car accident when the appellant was aged seven. She had been brought up by relatives who acted as guardians, and who cared for her brother and her. She had been sent to boarding school, and later placed with various foster families. She had begun drinking heavily from about the age of 16. It was no doubt to her credit that she was able to undertake TAFE studies in business administration and financial planning, and find responsible employment in senior managerial roles.

13 The appellant had one child, a son born in January 1996. She was his sole carer, having separated from his father when the boy was 18 months old. There was evidence on the plea that, over the preceding two years, her son had been having difficulties at school, and had required counselling. It seems that he had a close relationship with his mother.

14 The appellant relied heavily, during the course of her plea, on the fact that there was no one, apart from her, who could adequately care for her son. The boy's father lived in Victoria, but was an alcoholic, and a chronic drug user. The appellant's maternal grandmother was in her eighties and unable to look after the appellant's son. Her only other close relative, an aunt, had terminal cancer. At the time of the plea, the position was that a friend of the appellant had offered to care for the boy in the event that she was imprisoned.

15 There was some evidence, on the plea, that the appellant had finally come to appreciate the need to do something about her alcohol abuse. There was also evidence of remorse. A consultant psychologist expressed the opinion that the appellant was significantly depressed, though he accepted that her cognitive functioning was normal, and that her level of intelligence was above average.

16 By Notice of Appeal, filed on 18 March 2010, the appellant relied upon the following five grounds of appeal:

The learned sentencing judge erred in sentencing the appellant on the basis that the fact that the appellant had left the scene was an aggravating feature of the offence of negligently causing serious injury.
The learned sentencing judge erred in application of the discretion of mercy, that is, by failing to exercise the discretion in relation to both the head term and the non-parole period.
The learned sentencing judge erred in finding that the exceptional hardship in this case did not justify immediate release of the appellant.
The individual sentences, the total effective sentence and the non-parole period are manifestly excessive.
There is fresh and additional evidence relating to the welfare of the appellant's son which the Court should take into account.

17 In order to fully appreciate what lies behind ground 1, it is necessary to have regard to what her Honour said regarding the gravity of these offences. The appellant drew attention, in particular, to para 12 of her Honour's sentencing remarks:

In this case, the fact that your ability to control your vehicle was adversely affected by high levels of alcohol that you had consumed is a circumstance of aggravation. Further, despite being aware you had been in a collision you did not stop and that is another circumstance of aggravation. You did not offer any genuine reason for not stopping on the plea.[1]

18 The statement that a failure to stop was 'another circumstance of aggravation' must be considered in the light of para 11, which immediately preceded it. There, her Honour said:

As the Court of Appeal said in R v Omar Mohamed [2009] VSCA 158 at paragraph [27]: "This offence (there they were speaking of a failure to stop after an accident charge) will be aggravated when there is evidence showing that an accused had failed to stop because of matters connected with the quality of the driving or the state of the driver, see R v Harding [2008] VSCA 124, where previous convictions and delay in finding the driver and the steps taken to prevent apprehension."

19 It may also be useful to have regard to what her Honour said at paras 48 and 49:

The Crown submitted that in the particular circumstances of your case, exceptional hardship is not satisfied and that an immediate custodial sentence is warranted with a reduced non-parole period. The Crown put a range of 2-3 years for the head sentence and 10-14 months non-parole period. I consider the range is not reflective of current sentencing practice for offences of this nature where there are circumstances of aggravation such as demonstrated in this case.

Since 1989 there has been a concerted effort in this State by the Transport Accident Commission and Victoria Police to educate the public, in particular, the drivers of this state, not to drink and drive. The campaign has been thoroughly promoted in the mass media and the message has been consistent and hard hitting highlighting the tragic results of drink driving. A significant aim of the campaign has been to deter drink driving and to emphasise the real likelihood of being caught after committing an offence and the severe penalties that will follow a conviction. Drink drivers pose a real risk to themselves and other road users.

20 Before this Court, it was submitted on behalf of the appellant that her Honour's treatment of the failure to stop as a 'circumstance of aggravation' gave rise to sentencing error because the appellant was being punished, in any event, for having failed to render assistance. It was submitted that dealing with the failure to stop in this way infringed the basic principle that an offender should not be punished more heavily by reason of a circumstance of aggravation, where that very matter was also the subject of a separate charge. We were referred in that regard, to De Simoni v The Queen.[2]

21 The Crown took issue with that contention. It submitted that the principle in De Simoni was confined to cases where one charge only had been laid, and the Crown sought to rely on elements of an uncharged act as aggravation of the offence charged. That was not the case here. The Crown further submitted that, as both charges were before the Court, and each involved separate and distinct offending, it was proper that there be some cumulation between them. It was said to be axiomatic that the appellant's culpability in respect of count 1 was greater because she had failed to stop at the scene of the collision. It did not follow that she was being punished separately, and impermissibly, for failing to stop, and for failing to render assistance. It was submitted that, when viewed in context, her Honour's remark regarding the failure to stop in para 12, was unexceptionable, and entirely in accordance with orthodox principle.

22 In De Simoni, the appellant had pleaded guilty to an indictment which alleged the commission of an offence of robbery, the maximum penalty for which was 14 years. The particular provision under which he pleaded guilty made it an aggravated offence, punishable by life imprisonment, to commit robbery whilst armed, or in company with another, or to 'wound' or 'use any other personal violence'. The High Court held that, in circumstances where the accused had wounded his victim during the course of the robbery, the primary judge, when sentencing the accused, was entitled to take into account the fact that force had been used, but not the fact that there had been a wounding.

23 The principle underlying De Simoni was simply this. A judge, when imposing a sentence, cannot take into account as a circumstance of aggravation, a matter which would have warranted a conviction for a more serious offence. There are two aspects to that principle.

At common law the principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence if those circumstances could have been made the subject of a distinct charge appears to have been recognised as early as the 18th century.[3]

The general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted.[4]

26 It is well established that, where two offences substantially overlap, it is wrong to punish for each of them.[5] In our opinion, that principle was in no way infringed in this case. The offence of negligently causing serious injury is both conceptually and factually distinct from the offence of failing to render assistance after an accident. There is no reason why separate punishment should not be imposed for each of these offences. Indeed, it was not contended to the contrary.

27 The real question posed by ground 1 is whether, by referring to the appellant's failure to stop after the accident as a circumstance of aggravation (which, viewed in isolation, it clearly was), the appellant was twice punished for the same conduct.

28 Another way of approaching the issue is to ask whether, instead of being punished twice, once for the negligent causing of serious injury, and once for her failure to render assistance after an accident, the appellant was in fact punished for a third time, with the failing to stop having been treated as an aggravating circumstance in relation to count 1.

29 Whatever force there may be in the appellant's submissions with regard to this ground, it can at least be said that her conduct in failing to stop after the collision was both conceptually, and legally, separate from her having failed to render assistance. The elements of count 2 are by no means the same as the particular aggravating circumstance identified by her Honour in relation to count 1. There is clearly a difference between not stopping, and failing to render assistance. These are separate offences under s 61(1)(a) and (b) of the Road Safety Act 1986.[6] It goes without saying that a person may stop at the scene of an accident, but still fail to render assistance. The converse is also true.[7]

30 That said, there may, in a particular case, be a measure of overlap between a failure to stop after an accident, and a failure to render assistance. It was that very consideration that led Buchanan JA to grant leave to appeal against sentence in this matter.

31 In our view, even if the sentencing error identified in ground 1 were made out (and in this case, we are not persuaded that it was), no lesser sentence than that imposed on each count would be warranted.

32 These were both serious examples of the relevant offending. The combination of a high blood alcohol reading, and driving at considerable speed in an emergency lane, leading to a collision with a well-lit truck that was clearly visible, establishes a high degree of negligence on the part of the appellant. Her failure to stop and render assistance reflects callousness on her part, even making due allowance for her obvious inebriation. Deterrence, both general and specific, as well as denunciation of the appellant's conduct must be of primary importance in sentencing for these offences.

33 In addition, Mr Serle's injuries were obviously serious, and likely to leave him permanently affected. The legislature, having in 2005 increased the maximum penalty for negligently causing serious injury from five years to ten years, has made its views regarding conduct of this kind abundantly clear. Those who cause serious injury to others through driving whilst intoxicated must surely, by now, expect to be punished severely.

34 The remaining grounds of appeal are, in our opinion, without substance.

35 With regard to ground 2, there is no sentencing principle which holds that a judge who, having found third party hardship which is exceptional, and who therefore is disposed to accord mercy,[8] must do so in any rigid or formulaic way. There is nothing to suggest that such mercy cannot be accorded solely through a reduction in the non-parole period fixed.

36 It is noteworthy that, in R v Carmody,[9] a case in which this Court considered that some mercy should be shown to the appellant by reason of hardship to her son, the non-parole period only was reduced, and not the head sentence.

37 Likewise, in Burns v R,[10] Anderson J said:

[C]onsiderations of compassion arising out of the fact that the applicant has young children and is in poor health can and should operate upon the decision as to what is an appropriate non-parole period.'[11]

38 The observations of Batt JA, in R v Kasulaitis,[12] regarding the possibility that a person sentenced may have to serve every day of the head sentence are in no way inconsistent with this proposition.

39 As regards ground 3, the contention that, having found exceptional circumstances through the hardship that a term of imprisonment would inflict upon the appellant's son, it was not open to her Honour to do other than fix a non-custodial sentence (or, at the very least, a term of imprisonment that was wholly suspended), we can only say that we disagree. Such a sentence would in no way have achieved the object of deterrence which was, in our view, paramount in this case.

40 In relation to ground 4, for the reasons set out earlier, we do not regard either the sentence of three years on count 1, or the sentence of 12 months on count 2, as in any way excessive. Nor do we regard the total effective sentence of three years and six months as meeting that description. The non-parole period of 12 months was, in our view, merciful.

41 Regarding ground 5, there is nothing in the additional evidence relating to the present welfare of the appellant's son which would either warrant reception of that material, or justify taking any action upon it. Essentially, it discloses that the appellant's son could no longer remain with the friend whom the appellant had nominated as his carer during the course of the plea, but that another couple, one of whom was the assistant principal at a local primary school, had generously offered to take him in. According to the appellant, that arrangement could only be regarded as temporary. It appears, however, that the appellant's son is still with that couple, and is being well looked after. So far as we can see, the couple are prepared to have him continue to live with them for the time being.

42 The matter of the son's welfare was fully canvassed before her Honour on the plea. She plainly gave it considerable weight. The new evidence, upon which the appellant now seeks to rely, does not materially alter the position as outlined during the course of the plea.

43 For these reasons, the appeal should be dismissed.

[5] Pearce v The Queen (1998) 194 CLR 610, 623.

[6] In Guthridge v The Queen [2010] VSCA 132, the applicant was presented on counts of culpable driving, failing to stop a vehicle after an accident, and failing to render assistance after an accident. He was convicted of dangerous driving causing death, and both remaining counts. This Court saw no difficulty with that course and, importantly, raised no issue of double punishment.

[7] The driver of a vehicle involved in a collision might not stop at the scene, but could render assistance by telephoning emergency services.

[8] See Markovic v R; Pantelic v R [2010] VSCA 105 for a detailed discussion of mercy.

Pollard v The Queen [2010] VSCA 156

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Pollard v The Queen [2010] VSCA 156 (18 June 2010)

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