R v Brooks [2000] VSCA 188

12. Three grounds of appeal were argued. They read:

"1. The sentences are manifestly excessive. 2. The learned sentencing judge erred in failing to take into account the applicant's co-operation with police, early plea of guilty and clear indication of remorse. 3. The learned sentencing judge erred in failing to take into account the evidence of the applicant's efforts to rehabilitate himself and his abstinence from drugs."

16. Before turning to counsel's submissions I shall say something briefly about the circumstances of the offences. On 23rd September 1999, at about two o'clock in the afternoon, the applicant parked his motor vehicle in Buckingham Avenue, Springvale. Although he was driving, his driver's licence was at that time suspended because of his accrual of demerit points. He left the vehicle, made a purchase of heroin for $50, returned to the car and injected some of the heroin into his left arm. He delayed driving off because almost immediately he experienced sharp pains in the head, but after about five minutes he decided that he would be able to drive.

19. He left the car park, turned right into Balmoral Avenue and then travelled approximately 20 metres before blacking out. His vehicle swerved sharply on to the right side of the road and mounted the kerb, where it ran into one Matthew Pownall, who was sitting on a bench. (The compensation order is in favour of the local council and relates to the bench.) Mr Pownall was thrown into a shop window and from there on to the ground. Following the impact the applicant's vehicle continued on, colliding with and carrying with it a parked motor scooter before coming to rest against a boat on a trailer, standing stationary before a level crossing in Springvale Road.

22. Police arrived at the scene almost at once and observed the applicant unconscious in the driver's seat. He was a bright blue colour and did not seem to be breathing but, when ambulance officers also arrived, they were able to resuscitate him by administering Narcan. Mr Pownall was lying on the ground in severe pain and was conveyed to hospital with a punctured lung, three broken ribs and four fractured vertebrae. At the time he made his victim impact statement on 2nd April 2000 he was still suffering almost daily back pain, could not work and was unable to live independently.

25. The applicant did not wish to go to hospital and was interviewed at the Springvale police station. He was co-operative and expressed remorse, as well as admitting that only two months earlier, on 20th July 1999, he had overdosed in a vehicle after using heroin and had been involved in a collision. The driver of the other vehicle was not injured but the applicant was in hospital for three days with minor head injuries and bruising.

28. Mr Tehan argued the case on behalf of the applicant with characteristic vigour and tenacity. In opening he contended that there were two identifiable errors in the sentencing process, being the errors assigned in grounds 2 and 3. Further, he contended, the sentence could be seen on its face to be manifestly excessive. He argued the grounds in the order that that opening indicated.

31. Under cover of ground 2, counsel referred first to the full admissions that the applicant had made to the police immediately after the accident, including his having admitted to the previous incident in July and to having his licence suspended. He pleaded guilty to the offences at the earliest possible opportunity as well as pleading guilty to the two summary offences. Secondly, Mr Tehan said, there was abundant evidence of the applicant's remorse, which was to be found in the record of interview, in his mother's account as mentioned to the judge in the course of the plea and in the evidence given by a psychologist, Mr Patrick Newton.

34. There is no doubt about the significance of these matters. So far as the plea of guilty is concerned, it is sufficient for present purposes to refer to the recent confirmation of the orthodox view to be found in the judgment of Gleeson, C.J., Gummow, Hayne and Callinan, JJ. in Siganto v. R.[1], especially at [22].

37. The complaint was that the judge had failed altogether to take into account the applicant's early plea and frank record of interview and had given insufficient weight to his remorse. In connection with the first branch of that submission reliance was placed on the decision of the Court of Criminal Appeal in R. v. Elvy[2]. There it was inferred from a judge's silence that he had not taken account of the offender's plea of guilty, but that inference was more easily drawn under the legislation then in force, because s.4 of the Penalties and Sentences Act 1985 expressly provided that, where a court reduced a sentence on account of a plea of guilty, the court was required to state that fact when passing sentence. There is no similar requirement in the Sentencing Act 1991. That is not to deny the applicability of some of the other observations made by Crockett, J., speaking for the Court in Elvy's Case. In particular, it is important that an offender who enters an early plea of guilty knows that that has been given proper weight in the sentencing process.

40. The question is not, however, whether the judge mentioned the plea or its timing or co-operation with the authorities. The question is whether the judge took them into account in an appropriate fashion. In the present case, as it happens, his Honour mentioned the plea of guilty three or four times in the course of the first few minutes of his sentencing remarks. I can well understand that he may have thought it wholly unnecessary to refer to the matter again, and I have every confidence that this very experienced judge took all those matters into account and gave them appropriate weight, the weight to which, as Mr Tehan rightly reminded us, they are entitled not only under s.5(2)(e) of the Sentencing Act but also at common law, and, if I may be permitted to say so, as a matter of common sense.

43. The other branch of the argument advanced under cover of ground 2 was that relating to remorse, where it was acknowledged that his Honour did refer to the matter but, it was said, had given it insufficient weight. What his Honour said was this:

"I also accept that you exhibit signs of remorse in relation to what happened as a result of the accident, that you have, in other words, a social conscience, and I accept the thrust of Mr Newton's report that basically you are unlikely to offend again in this fashion."

Mr Newton's report was very favourable, speaking as it did of the high measure of rehabilitation that the applicant had already achieved and the writer's belief that that would continue. Many a prisoner would be more than content with the measure of acceptance of his counsel's submissions evidenced by that passage from the sentencing remarks.

48. Turning to ground 3, Mr Tehan emphasised the strong evidence of rehabilitation that had been placed before the judge and led on the plea, particularly the evidence of Mr Newton, with whom the applicant had undergone counselling and treatment on a weekly basis for six months. (That had required him to travel from Rosebud, where he lives and works, to Carlton.) Mr Newton described him as an exemplary patient who had been able to develop effective strategies to remain abstinent from drugs for an extended period. An ongoing series of appointments had been made, contingent on the court's disposition. Urine analysis under the supervision of a Dr Molnar confirmed that the applicant was remaining free of drugs. Mr Newton assessed the risk of re-offending as small. That assessment, counsel contended, was supported by other considerations. The applicant is an intelligent young man with a supportive family who has never been out of work since leaving school and who has already advanced in his chosen career as a baker. But for his use of drugs and these offences, there is every reason to think that he is a man capable of making something of his life.

51. There was another aspect of the case to which counsel referred in developing his arguments under ground 3. The applicant had been a user of both marijuana and heroin. Since July 1999 he had been endeavouring to break himself of both habits. He had obtained professional counselling from a Ms Rogers in connection with his use of marijuana and was endeavouring to withdraw from heroin by his own unaided efforts. It was not surprising that he would underestimate the difficulty of doing so and overlook that, just as his tolerance had rapidly risen, so it would rapidly fall. He was therefore a man already on the road to recovery and, in that sense, there is a superficial resemblance between his circumstances and those of the applicant in R. v. Drinkwater[3]. But, quite apart from the fact that sentences are not precedents to be distinguished, Drinkwater was a wholly atypical armed robber. The circumstances of the applicant's offences are far from atypical.

54. The complaint made was that, in counsel's words, the judge had "only passingly mentioned" the applicant's prospects of rehabilitation. His Honour had referred to them, albeit briefly, on at least four occasions and it is not to be forgotten that he had expressly accepted the thrust of Mr Newton's report. What weighed with his Honour was not any scepticism about rehabilitation but another factor that he was bound to bear in mind. That appears clearly from the plea. Counsel for the applicant was addressing his Honour on this very topic of rehabilitation when the judge interrupted to say, in effect, that the difficulty of giving effect to the submission was the need for a deterrent sentence in serious driving offences. His Honour was not focussing his attention exclusively on culpable driving. He expressly referred to "culpable driving and related offences". An example that comes to mind and was probably present in his Honour's mind is negligently causing serious injury when that offence is committed with a motor vehicle. See and compare R. v. Taylor[4].

57. Turning to ground 3 Mr Tehan rightly stressed that it is the head sentence to which regard must be had in the first instance. A head sentence that is outside the range cannot be supported on the basis that there was nothing wrong with the non-parole period. So much is trite law for which no authority need be cited. It is another question again, however, whether a sentence of two years' imprisonment for recklessly causing serious injury by the use of a motor vehicle, in the circumstances with which we are concerned, is manifestly excessive.

60. Ms Pullen responded in detail to each of the points that had been advanced on behalf of the applicant, emphasising the class of offences to which counts 1 and 2 belong and referring to a number of cases. In reply, Mr Tehan addressed submissions regarding those cases, but I think counsel were at cross purposes. Ms Pullen had relied on them for statements of principle. Mr Tehan endeavoured to distinguish them on the facts. He also took us to the statistics in Fox and Freiberg, Sentencing, 2nd Ed. 1999, at pp.906-908, but the offence of recklessly causing serious injury may be committed in a wide variety of circumstances. Statistics always have to be received with caution; in the present case they are of little, if any, assistance, unsegregated as they are between driving and other offences.

63. As I have already indicated, I do not accept that his Honour failed altogether to take into account the factors mentioned in grounds 2 and 3. As pleaded, therefore, they would have to fail, but, important as it is that grounds of appeal should be expressed with substantial accuracy, a court of criminal appeal is not a court of pleading in the sense in which, for good reason, a civil court is. Reading the grounds more liberally and in conformity with the argument advanced by counsel, the question is whether his Honour gave those factors so little weight that appellate intervention would be justified. I am not persuaded that he did or that the sentence is manifestly excessive.

66. General deterrence is usually a matter of primary importance in driving offences that result in death or serious injury. That view is not confined to Victoria: see, for example, in New South Wales, Director of Public Prosecutions v. Savka[5]. General deterrence is, of course, subject to proportionality and other factors are by no means excluded. In exceptional cases they may even predominate, but in most cases the need to deter others limits the leniency that might otherwise be extended and diminishes the weight to be accorded even to rehabilitation achieved and in prospect. That is especially so in a case like the present, where there was actual foresight of serious injury to another person and not just criminal negligence, where the applicant was driving whilst his licence was suspended and where he should have been forewarned by the accident in July. In even simpler terms, stepping back from Mr Tehan's impassioned and very effective advocacy, this is a young man who injected himself with heroin, knew the risk he was running, drove off and seriously injured an innocent pedestrian.

69. I accept that he is genuinely remorseful and that, despite his use of drugs and his convictions for these offences, he is a man of promise who has a capacity to make something of himself. It is very unfortunate that the rehabilitation to which he is committed must be interrupted by a term of imprisonment, but I do not think it is open to us to say that the judge was bound to modify the impact of general deterrence more than he did.

72. For these reasons I would dismiss the application.

76. I agree with the conclusions of Callaway, J.A. and I would subscribe to his Honour's reasons for reaching them.

84. The order of the Court is that the application for leave to appeal against sentence stands dismissed.

[1] [1998] HCA 74; (1998) 194 C.L.R. 656

[3] [2000] VSCA 62

[4] [1999] VSCA 206; (1999) 30 M.V.R. 88