R v Birnie [2002] VSCA 155

R v Birnie [2002] VSCA 155 - VSCA 2002 case summary — Zoe

[8]

I deal first with the relatively simple facts surrounding the thefts, not because they are the more serious of the counts, but because two of them led to the grossly negligent driving resulting in the death by culpable driving count. The catalogue of thefts begins on the evening of 30 June 2000 when the applicant stole a Ford sedan from the car park of the Kilsyth Club on the corner of Canterbury and Colchester Roads, Kilsyth. Then, at about 12.45 p.m. the next day the applicant drove the stolen car into the underground car park of the Forest Hill Chase Shopping Centre in Forest Hill. A female shopper was trying to put her child into the rear seat of her own car, at the same time holding her bag in her left hand. The applicant snatched the bag from her and ran to the Ford car, driving off with the victim's bag. It was recovered later that day but $60 had been taken from it (count 2). It seems that the applicant must then have driven direct to the K-Mart Plaza Shopping Centre in Burwood, for shortly before 1 o'clock the same day the applicant stole a Holden Commodore car from the parking bay near the Burwood Highway (count 3). He then drove into the Burwood East Shopping Centre where the events leading to counts 4 and 5 took place, to which I shall return in a moment. From Burwood East the applicant drove the stolen Holden Commodore at a fast speed down Middleborough Road and, so it seems, eventually came to the car park of the Croydon Hotel in Whitehorse Road, Croydon. Later it was discovered that the Commodore had been left there. In that car park, however, the applicant then stole a white Ford station wagon from the hotel car park at some time after 2 p.m. (count 6). From there it seems that he drove to the Chirnside Park Shopping Centre where he must have arrived somewhere between 4 and 5 p.m. that afternoon. There he left the white Ford station wagon because he had decided to steal yet another car, a blue Holden Commodore station wagon which was parked in the next bay to the place where he left the Ford (count 7). His stealing spree continued early that night, somewhere between 7.40 and 9.15 p.m. It seems that he left the blue Holden Commodore station wagon in the street in Glen Waverley with its rear left window smashed. From there he went into the Glen Waverley Community Centre in Waverley Road and stole a silver Ford Fairlane sedan (count 8). The next day this car was found in Bonbeach about 780 metres from the caravan park where the applicant was living at the time.

[11]

At the plea hearing a number of other matters were referred to which are of relevance, although it is not practical to describe them all in this judgment. It appeared that at the time of the offences he had just turned 27 years of age, and at this present time he is now 29. His record shows that he has taken very little to heart from his earlier court appearances of which there had been 16 and as a result of which he had been sent either to youth training centre or to prison 14 times in the preceding ten years. Indeed, on his first appearance in court when he was only 17, he was convicted of 13 offences which resulted in a sentence of 15 months in a youth training centre. Over the years his 63 convictions (or findings of guilt) have included 21 charges of theft, three charges of burglary or attempted robbery, one charge of dangerous driving and 15 lesser driving offences, eight charges of causing injury or assault (including two for causing serious injury) and numerous drug offences. It appeared that he had become a drug addict over the years. After coming out of prison in November 1999, he had spent some seven months with a family friend one Ruby Bower, who managed valiantly to keep him off drugs for that period, but he had left her in mid-June 2000 to live in the caravan park at Carrum, and not long afterwards had engaged in this spate of offences. It was fairly said on his behalf that he had come from a disjointed family background, deserted by his mother at the age of 18 months, although regrettably this sort of background is not uncommon to offenders appearing in the courts. He had become a heroin addict and was then diagnosed with hepatitis C which had led to psychological difficulties. He is a person of both limited intelligence and consequently education. At the time of the offences he was living alone and unemployed, with a seeming need to feed his habit by criminal activities of the kind which took place on or about 1 July 2000. It might also be said in his favour that he had pleaded guilty at a relatively early stage and, as reported by Mr Healey, he had expressed some remorse for his conduct. It was said on his behalf that at least he had attempted rehabilitation on one occasion even though that had not extended much longer than seven months, so that it was contended that he is not beyond redemption.

[17]

Ground 4 complained that there was an error in the original sentence because the learned judge included as a relevant factor the commission of offences for which the applicant was neither charged nor convicted, being charges under s.61 of the Road Safety Act 1986 for failing to stop after an accident and for failing to render assistance. These were offences which were indictable and which carried a maximum of two years' imprisonment. The judge had drawn attention to the fact that the applicant, after striking and running over the elderly victim, "chose to drive on to avoid the consequences of his actions". Again he drew attention to the fact that the applicant had "callously exited the scene by driving in a very fast and dangerous manner", about which he said that this "cowardly desertion of the scene of the fatal accident fills me with complete contempt". Finally he pointed out that the applicant must have known that he had run over the elderly victim and caused her serious injuries but that he had driven on to avoid detection and "with callous disregard for her welfare". These descriptions were, if I may say so, very apt descriptions of the applicant, his driving and his attitude on the night. The question is now whether this Court can take those factors into account or whether, as apparently was originally the case, he should have been separately charged with offences under s.61. As to this latter point one may well see why it was that charges were originally laid, for the Crown, before proceeding to prosecute for culpable driving would have to be satisfied that they had sufficient evidence relating to the actual driving, but it could be confident that he had driven away without stopping to render assistance. More generally, however, it seems a very fine line in this case between what was involved in the actual driving by the applicant and what might properly be characterised as post-offence conduct which was capable of being separately charged. Cases such as The Queen v. De Simoni[8] and R. v. Newman and Turnbull[9], cited on behalf of the applicant as relevant to this issue, do not deny, indeed clearly accept, that a sentencing judge is bound to take into account all the circumstances relevant to the commission of the offence, but, where there are circumstances of aggravation which might have led to a more serious count or to a separate count, then it is not proper or fair to sentence on the basis of an offence for which the accused has not been charged. The suggested additional offences in the present case cannot be said to be charges involving any significant element of aggravation, indeed they are comparatively minor charges ordinarily heard in magistrates courts. If they had been charged in the present case, it is highly unlikely that any sentence imposed would be treated as other than concurrent, unless it can be said that subsequent events can never be looked at to explain, qualify or characterise the nature of the offending on the principal count. If the circumstances of the offending up to but not beyond the precise moment of injury (leading ultimately to death) were to display a relatively minor degree of culpability (and it is hard to think that in a proper count for death by culpable driving that could ever be the case), then later events might on some occasions call for a separate charge and not be capable of being used by the sentencing judge on the major count.

[18]

In this case, however, that is entirely unrealistic. The events all took place in a moment, as it were, and the nature of the applicant's driving and his crass, unfeeling callousness were clear from the moment he drove off. The later events referred to by the judge merely went to show that his purpose was plain and was consistent from that moment. Those events relevantly demonstrated the intention of the applicant at the time and his culpability in committing the charged offence of death by culpable driving. What he did as he drove out of the car park merely served to emphasise that from the outset he would brook no interference and would drive off regardless of the consequences, albeit that it was not a case of reckless culpable driving, as defined in the authorities. In other words, the best that could be said for him is that there was not established a "conscious ... disregard" of the risk of killing the elderly shopper. There was, nevertheless, in his driving a deliberate attempt to get out of the car park as fast as possible, at first by reversing out of the parking space and then by driving forward to find the exit, and he did that in a cowardly and callous way by ignoring the fact that he had struck the old woman and knocked her to the ground and proceeded backwards in a grossly negligent way in flagrant disregard of her well-being. All this, it must be inferred, arose because of his determination to drive away to avoid detection at least for the theft and for knocking the elderly victim to the ground. Those acts at least preceded the final contemptible act of driving over the woman while she lay there and it is presently irrelevant that his escape was also to avoid the consequences of the latter act, although I believe the law would be foolish to overlook that subsequent act in a case such as the present. Whether it also involved a "cowardly desertion" of the scene is not of direct consequence, having regard to the seriousness of the events themselves.

[20]

It is now necessary to turn to the question as to what is an appropriate sentence for the count of causing death by culpable driving, consisting in driving negligently in the sense defined in s.318(2)(b), namely where the offender has failed "unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case". It is in this case unnecessary to consider whether the learned judge erred in the manner described in ground 1 of the application, namely, by imposing a manifestly excessive sentence, for the Crown's concession means that his Honour was wrongly influenced, so it may fairly be inferred, by his conclusion that this was the kind of driving which would come within paragraph (a) of s.318(2) and thus came within the worst classes of case. In describing the relevant factors for present purposes counsel fairly conceded that it was a very serious example of this offence but he said that the penalty should be tempered by reference to the mitigating circumstances. Moreover he said that the present sentence was higher than any sentence ever imposed for this count, particularised in terms of driving negligently. He then indulged, if I may so describe it, in a comparative exercise with a number of other cases decided over the years. I confess that I have never found this a very satisfactory exercise for the purpose of determining ultimately what is the appropriate sentence in a particular case, for circumstances vary so much, as do the background and character of the offender, that is as hard to be confident that any of the comparative cases could be truly treated as on all fours with the instant case. One must observe that there are now so many factors which appellate courts have laid down as relevant to the sentencing process that it would be exceptionally hard to find any case where the same combination of facts occurred previously. Undoubtedly it was a high sentence, but there is no reason to think that it was beyond the range appropriate for a count based on para.(a). I accept, though, that a nine and a half year term may be a little high for a para.(b) offence committed in like circumstances, at least as it has been perceived up to the present time. One must, however, remember that the courts have been expressing, and in particular this Court has expressed on several occasions in the last year or so, emphatic views as to the need to take this offence seriously and to treat the offenders accordingly. It has been reiterated time and time again that the offence under this paragraph is considered to be a species of manslaughter: see in recent months the discussion in cases such as DPP v. Wareham[10] and DPP v. Solomon[11]. In the latter case[12] Winneke, P. reiterated that the offence "is a species of `involuntary manslaughter'", citing what he had said in R. v. O'Connor[13].

At a glance

Court

Decision date

Before

Source

Judgment (51 paragraphs)

Parties