R v Brown [2003] VSCA 153

6. The applicant, who is now aged 36, pleaded guilty in the County Court to one count of culpable driving causing death (count 1) and one count of negligently causing serious injury (count 2). The form of culpability charged was that in s.318(2)(c) of the Crimes Act 1958, namely, being under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. The applicant's blood alcohol concentration was .171%, which is more than three times the legal limit. I shall refer to his previous convictions later in these reasons. The applicant consented to the court's dealing with three summary offences to which he pleaded guilty. They were driving a motor vehicle whilst having a blood alcohol concentration exceeding .05%, driving a motor vehicle whilst disqualified and failing to give right of way.

9. After hearing a plea for leniency on his behalf, the learned judge sentenced the applicant on 6th September 2002 to 12 years and three months' imprisonment on count 1 and three years and six months' imprisonment on count 2. A sentence of two months' imprisonment was imposed for the first summary offence and 15 months' imprisonment for the second summary offence. A fine of $400 was imposed for the third summary offence. His Honour directed that 21 months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of 14 years' imprisonment, in respect of which a non-parole period of 10 years and three months was fixed. The applicant was currently undergoing a straight sentence of 29 months, of which he had served nearly five months. His Honour directed that seven months of the sentence he imposed be served cumulatively upon that sentence. The practical effect was a sentence of 15 years' imprisonment with a non-parole period of 11 years and three months. The applicant has never held a driver licence. The judge disqualified him from obtaining a licence for life.

12. On 14th February 2003 O'Bryan, A.J.A. refused leave to appeal pursuant to s.582 of the Crimes Act. His Honour said that the sentence imposed was indeed severe but that the circumstances of the case and the criminal history of the applicant required a sentence at the higher end of the scale. The case was, he continued, one of the worst of its kind. The applicant, being dissatisfied with that decision, has elected to have his application determined by the Court of Appeal.

15. The sole ground of appeal set out in the notice of application for leave to appeal is that "[t]he total effective sentence is manifestly excessive". It was not drafted by counsel. We permitted Mr Kowalski to argue, under cover of that ground, not only that the total effective sentence was manifestly excessive but also that its principal component, the sentence imposed on count 1, was manifestly excessive in its own right. Such imprecise drafting is not, however, to be encouraged.

18. I cannot do better than adopt the judge's description of the circumstances of the offences. Addressing the applicant, his Honour said:

" I turn to the circumstances of the offences. They occurred at about 12.30 a.m. on Thursday 25 October 2001 when a motor vehicle driven by you collided with a motor vehicle driven by Carol Jancic and in which Margaret Loveday was a passenger at the intersection of the Narre Warren-Cranbourne Road and Pound Road, Narre Warren. Margaret Loveday was killed as a result of the collision and Carol Jancic seriously injured. The vehicle you were driving was a 1985 Jackaroo wagon owned by your partner, Christine Bingham. You were disqualified from holding a driver's licence at the time and have never held a driver's licence. On 24 October 2001 Christine Bingham drove the vehicle to the Bacchus Marsh area to purchase a dog. You accompanied her. Ms Bingham drove back from Bacchus Marsh and states that you drank two cans of light beer on the way. You called into your mother's home, which was at about 9.00 to 9.30 p.m. After staying there for about half an hour you went home. After arriving home Ms Bingham fed the children and put them to bed. She then started watching television and fell asleep on the couch. She states that before sitting down to watch television you asked if you and she could go down to the shops to get fish and chips to eat. As you did not mention it again she thought you had given up on the idea. Ms Bingham was woken at 3.50 a.m. by your mother, who told her that the police were looking for you, as there had been an accident. Ms Bingham then realised that you were not at home and that her car was gone. She went to the accident scene and states that if a person was driving along Pound Road towards Narre Warren-Cranbourne Road they would turn right onto the Narre Warren-Cranbourne Road to get to your house. Ms Bingham has no idea where you would have been prior to the collision. Narre Warren-Cranbourne Road runs north-south and Pound Road east-west. It is a T-intersection, with Pound Road terminating at Narre Warren-Cranbourne Road. There are two stop signs applicable to vehicles travelling east in Pound Road and the east and west bound lanes of Pound Road are divided by a raised concrete median strip. The two eastbound lanes at Pound Road are divided by a single white line, then a raised concrete traffic island, which allows for one lane of traffic to turn left and one lane of traffic to turn right into Narre Warren-Cranbourne Road. The speed limit of Narre Warren-Cranbourne Road and Pound Road at this location is 80 kilometres per hour. Carol Jancic and Margaret Loveday were driving north in Carol Jancic's Holden Commodore sedan along the Narre Warren-Cranbourne Road. They were out looking for Margaret Loveday's grandson who had gone missing from the place where he was staying. As their vehicle passed through the intersection with Pound Road it was struck by your vehicle which had come out of Pound Road to their left onto the Narre Warren-Cranbourne Road without stopping. The impact was a severe one, as the police photographs of the vehicles graphically reveal. The front of your vehicle collided with the passenger side of the Holden Commodore. As the front seat passenger, Margaret Loveday received the brunt of the impact and died at the scene. She was 58 years of age. Carol Jancic received serious injuries and was taken by ambulance to the Dandenong Hospital. She was later taken to the Alfred Hospital in a life-threatening condition. You were thrown out of your vehicle and were located some 20 to 30 metres from the vehicle. You were taken to the Dandenong Hospital. An eye-witness, Margaret Lindsay, states that your vehicle did not stop or appear to slow down at all. Sergeant Bellion, an expert in motor vehicle collision reconstruction and investigation, has investigated this collision. He states that the damage profiles of the vehicles, the physical evidence observed on the road, and the relative positions of the vehicles, indicate that your vehicle had come through the stop sign out of Pound Road travelling south-east. The front of your vehicle had collided into the passenger side of the Commodore, which would have been travelling north along the northbound lane of the Narre Warren-Cranbourne Road. Sergeant Bellion states that his analysis indicates that your vehicle came out of Pound Road at a speed of approximately 70 kilometres per hour. This indicates that your vehicle could not have stopped at the intersection. He estimates that the Commodore was travelling at a speed of approximately 45 kilometres per hour in a northerly direction at impact. Both vehicles would have had a good view of each other. The impact speed of the Commodore being considerably less than the speed limit of 80 kilometres per hour may indicate, Sergeant Bellion believes, that the Commodore driver had reacted to the impending threat of your vehicle. Both vehicles were examined by a motor engineer. No fault was found in either vehicle that caused or contributed to the collision. You had a blood sample taken from you at 1.45 a.m. on 25 October. Analysis revealed the presence of alcohol with a reading of 0.171 per cent. A number of Carlton Light and Bourbon and Cola cans were located in your vehicle. When asked by a police officer where you were going you replied, `Home. I don't even know why I was at that intersection, I don't know why I was there.' Margaret Loveday died from multiple injuries resulting from the collision. Much of the trauma was noted on the left side of her body. Carol Jancic, who is now aged 50, sustained multiple injuries. They included thoracic aortic dissection, requiring aortic repair via a thoracotomy; fracture of left femur; fracture of superior and inferior pubic rami on the left; fractured ribs, small liver laceration. Miss Jancic required urgent cardio-thoracic surgery for the ruptured aorta and orthopaedic intervention to repair the left leg. Miss Jancic was intubated in Intensive Care and stayed in there for eleven days. She subsequently required extensive rehabilitation and has set out the substantial effects that the collision and her injuries have had upon her in a victim impact statement that has been tendered and which is taken into account. She continues to suffer pain and disability and have rehabilitation. She is awaiting further surgery on her voice box where a nerve was paralysed."

His Honour then referred to the victim impact statements, which described the devastating impact Mrs Loveday's death has had on her family.

23. The applicant admitted 103 previous convictions from 23 court appearances between December 1982 and September 1999. They included a conviction for culpable driving, for which the applicant was sentenced to three years' imprisonment in May 1989. Blood alcohol readings the subject of previous convictions included readings of .110%, .165%, .200%, .193%, .130% and .100%. There were 15 offences of driving whilst unlicensed or disqualified and three offences of driving in a manner dangerous. Because of the importance of the applicant's record, I shall attach as a schedule to this judgment that part of the sentencing remarks in which the judge reviewed his previous convictions in detail.

26. His Honour correctly said that the applicant's history of driving offences over a period of some 17 years raised serious questions as to his prospects of rehabilitation and bore upon his culpability and the weight to be given to specific deterrence and the protection of the community. To take his previous convictions into account in those ways did not mean that the applicant was punished twice for the earlier offences.[1] I do not accept Mr Kowalski's submission that the judge fell into error in that regard or gave too much weight to the applicant's record. He is a man who has known for a long time that he has a severe alcohol problem. He is undeterred either by that knowledge or by the licensing provisions of the Road Safety Act 1986.[2] He has killed twice. It was open to his Honour to consider that the longest sentence consistent with proportionality and mitigating factors should be imposed to protect the community.

29. Counsel also submitted that, although this was not a case of recklessness as in R. v. Eades[3] or a multiple fatality as in R. v. Scholes[4], the judge had dealt with it as a worst case. The sentencing remarks do not bear that out and nor does the sentence. His Honour's view is correctly encapsulated in O'Bryan, A.J.A.'s description of the case as "one of the worst of its kind". Mr Kowalski conceded that all the mitigatory factors had been taken into account, but he submitted that it could be discerned from the result that they had been given insufficient weight. In particular, he emphasised the applicant's relatively early plea of guilty both as evidence of remorse and for its utilitarian value. Quite rightly, counsel did not argue that the sentence imposed on count 2 was outside the range. It was entirely appropriate, as was the measure of cumulation that his Honour directed. It is notorious that the maximum penalty for negligently causing serious injury is too low and is out of kilter with the maximum penalties for related offences. That does not mean that the maximum can be ignored, but it does not prevent the courts from "firming up" in appropriate cases in the sentences imposed for that offence.

32. Ms Pullen analysed the applicant's previous convictions and carefully reviewed the judge's sentencing remarks. She submitted that no error was disclosed and that the sentences were within the range, especially having regard to the 20-year maximum on count 1 and recent decisions of this Court. In my opinion that submission should be accepted.

35. The sentencing remarks were thorough and balanced and, if I may respectfully say so, of a very high standard. Neither a sentence of 12 years and three months' imprisonment on one count nor a total effective sentence of 14 or, on another view, 15 years' imprisonment is lightly imposed following a plea of guilty that evinces remorse. It is clear that his Honour did not lightly impose them. In the exceptional circumstances of this case he considered that they were justified by the combination of atrocious driving, alcohol and prior offending, including a previous conviction for culpable driving causing death. All the purposes of sentencing in s.5(1) of the Sentencing Act 1991 were relevant, especially the protection of the community from the offender. Although the applicant's prospects of rehabilitation are poor, rehabilitation was not forgotten. The way in which the judge approached the question of a non-parole period was a model. I agree with O'Bryan, A.J.A. that the sentence was indeed severe, but I also agree that it was not outside the range of a sound discretionary judgment.

You have an extensive history of offending. It is necessary to refer to it in some detail. At one time or another you have been sentenced to most dispositions available to a court, including terms of imprisonment. As I have said, you have never held a driver's licence. That history includes the following: In December 1982 you were convicted by the court at Deniliquin of aiding and abetting the driving of a motor vehicle whilst having a high range blood alcohol content. You were fined and disqualified from obtaining a licence for 12 months. In April 1984 you were convicted by the Magistrates' Court at Dandenong of a number of offences, including theft of a motor cycle, being an unlicensed driver, driving in a manner dangerous to the public, driving a motor vehicle whilst having a blood alcohol concentration exceeding .05, a reading of .110; driving an unregistered motor vehicle. The penalties included probation, fines and disqualification from obtaining a licence for a period of 18 months.

In May 1984 you were placed on probation by Warragul Magistrates' Court for offences of burglary and theft, with a special condition that you abstain from intoxicating liquor during the period of probation. In December 1984 you were convicted and fined by the Magistrates' Court at Pakenham for driving a motor vehicle whilst disqualified. In September 1985 you were convicted of offences including driving a motor vehicle whilst disqualified, driving a motor vehicle whilst having a blood alcohol concentration exceeding .05, fraudulently using a numberplate, stating a false name. You were sentenced to a total period of two months' imprisonment, to be served by way of an attendance centre order. You were disqualified from obtaining a licence for a period of two years. The pre-sentence report notes that the order contained an abstinence from alcohol condition.

In July 1986 in the Magistrates' Court at Rochester you were fined for exceeding the speed limit in a 100 kilometre per hour zone and your licence was suspended for a month. In November 1986 you were convicted at the Moe Magistrates' Court of nine charges of burglary, 13 charges of theft, two charges of damaging property intentionally, and three charges of driving whilst disqualified. You were sentenced to a total effective sentence of six months' imprisonment. In the same month you were sentenced to one month's imprisonment by the Dandenong Magistrates' Court for one charge of driving whilst disqualified.

In May 1987 you were fined by the Magistrates' Court at Dandenong for driving whilst exceeding .05, reading .165 per cent, and stating a false name and address. You were disqualified from obtaining a licence for a period of 20 months. In August 1987 you were sentenced to a total effective sentence of three months' imprisonment at the Dandenong Magistrates' Court for two charges of driving whilst disqualified. In April 1988 you were sentenced to three months' imprisonment and five years' disqualification from obtaining a licence for a charge of refusing a preliminary breath test. You were also sentenced on charges of being an unlicensed driver and exceeding the speed limit in a 60 kilometre per hour zone.

In August 1988 you were sentenced by the Magistrates' Court at Oakleigh for offences including driving whilst disqualified, driving in a manner dangerous, two charges of being an unlicensed driver, driving whilst exceeding .05, reading .200 per cent, driving whilst exceeding .05, with no reading specified, causing criminal damage, and driving an unroadworthy vehicle. You received a total effective sentence of 12 months' imprisonment and were disqualified from obtaining a licence for five years.

On 18 May 1989 you were sentenced by Judge Meagher of this court to a total effective sentence of three years three months' imprisonment, with a non-parole period of two years three months, for one count of culpable driving causing death and one count of theft. You were disqualified from obtaining a licence for a period of seven years. The sentencing remarks of Judge Meagher have been tendered. You pleaded guilty. The deceased was your cousin who was a passenger in a stolen vehicle driven by you that crashed. You had been drinking together. You had a blood alcohol reading of .193 per cent. A report from Mr Joblin was tendered. The judge described your driving record as shocking but also referred to mitigating factors. However, you have told both Dr Owens and Mr Joblin that your cousin was the driver and not you.

In November 1989 you received a total sentence of two years' imprisonment and licence disqualification for seven years for offences of driving whilst disqualified and exceeding .05, the reading being .193 per cent. On appeal a non-parole period of 18 months was fixed. You were released on pre-release on 11 July 1990. In a risk assessment compiled before release it was stated that you were considered to be a high risk offender and that your claims to have given up alcohol were yet to be fully tested and would continue to present problems in the future.

A report compiled two months after release stated that you had reported reliably for supervision but were less than reliable in attending for community work. Reference was made to your pregnant wife who had medical problems and the need for you to care for three other children. However, you were charged with further offences that occurred on the date of your release. You absconded to Darwin, Queensland and New South Wales. Your pre-release was cancelled on 2 November 1990 and a warrant issued. You returned to Victoria and were subsequently apprehended and returned to prison on 24 September 1991. You were re-released on parole on 17 March 1992, with an expiry date of 18 March 1993. You subsequently breached this parole by further offences and a Bench Warrant was issued when you failed to appear in the Melbourne Magistrates' Court on 28 April 1993. It would appear that no further action was taken in respect to this breach of parole.

In January 1996 you were fined by the Dandenong Magistrates' Court for exceeding .05, a reading of .130 per cent, and careless driving. You were disqualified from obtaining a licence for a period of 13 months. In February you were sentenced by the same court to nine months' imprisonment, to be served by intensive correction order, for offences including three charges of driving whilst disqualified, a charge of exceeding .05, and stating a false name and address. You were also disqualified from obtaining a licence for seven years.

The pre-sentence report sets out details of your progress on the order. It is stated that initially you attended with an attitude that you were not responsible for the offences you were charged with but had since identified problems and commenced discussion and addressing problem issues with a more positive attitude. It appears that you responded well to the order and the report on expiry noted that you had retained a very good attitude towards successful completion and received very good comments from your community work supervisors and readily complied with any requests and attended for all supervision appointments. It was noted that you had readily involved yourself in the local community and in community work and worked steadily towards gaining recognition in the hope of gaining permanent employment to enable you to settle in the community.

As a condition of your intensive correction order you were referred to Westernport Drug and Alcohol Services where you saw a counsellor. However, file notes give little indication as to the outcome of this session. The pre-sentence report states that you attended Alcoholics Anonymous meetings at Bendigo Prison but freely admit that when referred for counselling as a requirement of your intensive correction order and other conditional releases, you lied, minimised and denied excessive use.

In January 1997 you were fined by the Frankston Magistrates' Court for a charge of driving whilst disqualified. In September 1999 you were sentenced to a total of 23 months' imprisonment for offences including driving a motor vehicle whilst disqualified and driving in a manner dangerous. This sentence was wholly suspended for a period of two years. In September 1999 you were fined by the Melbourne Magistrates' Court for offences including theft and attempted theft.

59. I agree that the application should be dismissed and for the reasons which Callaway, J.A. has given. I add these comments of my own.

62. This was a case where, on any view, the sentencing judge was entitled to regard the applicant's offending as an appalling episode of grossly negligent driving. He was further entitled to impose a sentence for these offences which paid full regard to the woeful history of driving offences which the applicant had accumulated. In that context, his Honour was also entitled to regard the applicant's offending on this night as an exceptionally serious example of the crime which is prescribed by s.318 of the Crimes Act. Notwithstanding the able arguments of Mr Kowalski, I find myself unable to agree that a head sentence on that count of approximately 60% of the maximum sentence prescribed is properly described as incorporating "double punishment for past offending", as Mr Kowalski contended, or as being manifestly excessive. Nor can I agree that, in the special circumstances of this offending, so carefully described by his Honour, the cumulation of 21 months of the sentence imposed on count 2 or the total effective sentence which was thereby produced are manifestly excessive.

66. I also agree that this application should be refused. I do so for the reasons advanced by Callaway, J.A. I also desire to add a few comments of my own.

69. The characterisation by the learned sentencing judge of the applicant's conduct as being one of the worst examples of culpable driving that he had encountered in his substantial experience was, based on my own experience, both as a judge and Chairperson of the Adult Parole Board for many years, entirely justified. The applicant had, for something approaching 18 years, displayed an appalling disregard for the lives and wellbeing of other road users. This was demonstrated by repeated breaches of the laws and regulations designed to protect them. He was not deterred from acting in this fashion by orders for disqualification, fines, sentences of imprisonment, or even the fact that on one occasion, as a result of his driving, he caused the death of another. His level of criminality with respect to the offences presently under consideration, assessed against that background, must be regarded as being of the highest order.

72. 17 It was incumbent upon the sentencing judge, as he well recognised, to impose a sentence for the offence of culpable driving in this case which reflected the gravity, and which contained appropriate denunciation, of the applicant's conduct, as well as properly incorporating the principles of general and specific deterrence and protection of the public, all of which assumed significance in the particular case. The individual sentences imposed upon the applicant were stern, but in my view entirely appropriate in the singular circumstances of this matter.

76. The formal order of the Court is that the application is dismissed.

[1] See, for example, R. v. O'Brien and Gloster [1997] 2 V.R. 714 at 718-720 and Director of Public Prosecutions v. Wareham [2002] VSCA 110; [2002] 5 V.R. 439 at [16]- [18]. As to R. v. Hall (1994) 76 A.Crim.R. 454, referred to by Charles, J.A. in the first of those cases, see R. v. Rainford [2003] VSCA 49.

[2] Compare R. v. Currie (1988) 33 A.Crim.R. 7 at 9-10.

[3] [2001] VSC 407.

[4] [1998] VSCA 17; [1999] 1 V.R. 337.