R v Caldwell [2004] VSCA 40

15. The appellant is appealing (by leave) against sentences imposed in the County Court on 7 March 2003 following guilty pleas to two counts in a presentment and one summary offence.

Count 1: Culpable driving of a motor vehicle causing death of a male person at Bendigo on 23 December 2001 whilst under the influence of alcohol[1].

Count 2: Failing to immediately stop the vehicle after an accident occurred[2].

Summary charge: Driving with a blood alcohol level exceeding .05%[3].

21. 5 Following the plea, the sentencing judge imposed sentences as follows:

Count 1: Seven years and six months. All licences cancelled and disqualification from driving for a period of ten years.

Summary charge: Convicted. All licences cancelled and disqualification from driving for a period of five years.

The total effective custodial sentence was imprisonment for seven years and six months. A non-parole period of five years was fixed. I note that no order for disqualification was made as required by s.61(6) of the Road Safety Act.

28. The appellant admitted 33 convictions from three court appearances. No conviction for a driving offence was alleged.

31. The appellant appealed on the ground that the sentence imposed was manifestly excessive as to head sentence, non-parole period and licence disqualification period. Leave was granted by the Registrar of the Court of Appeal to add two further grounds:

"2. The judge erred in allowing the father of the victim to give oral evidence of the impact of the offence. 3. The judge erred in failing to reflect in the sentence the psychiatric illness of the appellant."

35. The facts may be briefly stated. On Saturday, 22 December 2001, at about 7.12 p.m., ambulance officers attended at the appellant's home in Bendigo and found her apparently asleep. In response to questions, she informed the officers that she had consumed two four-litre casks of white wine at 5 pm. and a considerable number of tablets. The ambulance brought her to the Bendigo hospital where she was admitted at about 7.42 pm. in a drowsy state. A blood sample taken in the hospital disclosed a blood alcohol concentration of 0.33%. The paracetamol level was sub-therapeutic. The appellant refused treatment, she asked to go home, and was discharged from the hospital into the care of her son Nathan at about 9.00 p.m. and taken home. Before she left hospital she signed a Refusal of Treatment Form which was witnessed by a nurse and attending doctor.

38. During the evening on two occasions the appellant left her home and complained to her neighbours about noise from a party almost next door. Observations made by a neighbour between 11.30 pm. and 12.30 am. indicated that the appellant appeared to be affected by drugs or alcohol. Her movements were slow and she had a "tottery walk".

41. At about 1.00 a.m. on the Sunday morning, the appellant received a telephone call from another son, Mark, to pick him up in the city area of Bendigo. Mark said that he asked his mother if she was "alright to drive" and she replied that she was. The appellant proceeded to Nathan's bedroom and asked him where the headlight switch was on his car. When Nathan asked why, the appellant said that she was going to pick up Mark and Nathan told her that she couldn't use his car. The appellant left the bedroom and Nathan went back to sleep. The appellant drove Nathan's vehicle to pick up her son Mark and was in McIvor Road when an accident happened.

44. The deceased male and two female friends were walking along the southern footpath of McIvor Road, arm in arm, the deceased being closest to the southern kerb when, at about 1.30 a.m., the appellant drove along McIvor Road in a westerly direction, the direction of travel of the pedestrians. The vehicle ran along the southern gutter, mounted the kerb and struck the deceased from behind. He was thrown a short distance onto the adjacent nature strip and died instantly. The appellant did not stop, but drove on along McIvor Road. About ten minutes later, she turned the car around and returned to the scene of the accident.

47. Witnesses at the scene observed that the appellant was vague, unsteady and smelt of alcohol. When the police arrived, the appellant was asked if she had been drinking and she replied "I keep on having these anxiety attacks all the time. I don't know, I thought I hit something so I came back." A blood alcohol test performed at the Bendigo Hospital at 2.50 am. on 23 December 2000 disclosed a blood alcohol concentration of 0.237 grams of alcohol per 100 millilitres of blood, a very high reading indeed.

50. Police forensic experts determined that the deceased man was on the footpath when he was struck by the car and that the vehicle was damaged on the nearside front corner and sustained a gaping hole in the windscreen. The vehicle's speed was estimated to be about 44 kilometres per hour which was below the applicable speed limit. A forensic expert opined that the 0.237% blood alcohol concentration would seriously affect the appellant's driving and that she would be unable to maintain proper control of a motor vehicle.

53. During the plea, the appellant's age was ascertained to be 45, so that she is now 46. The prosecutor called the deceased man's father, without objection, to supplement the victim impact statements made by family members. The father was sworn as a witness, and read a statement written by the victim's mother, his wife. The judge later commented that the evidence of Mr Frost added poignancy to the statement of his wife. As so often happens in this kind of case, the family of the victim suffer greatly from the loss of a young family member in circumstances such as happened here. The victim was a young man killed in the prime of life.

56. Ground 2 which asserted that the judge erred in allowing Mr Frost to give oral evidence was abandoned by counsel during the hearing. No objection to the oral evidence of Mr Frost was made on the plea by counsel for the prisoner and no cross-examination was conducted. The judge said he found the evidence helpful to his sentencing task. Four Victim Impact Statements were tendered on the plea.

59. On the plea a psychological assessment of the appellant made by Ian Joblin was tendered and read by the judge. The appellant's life was an unhappy one due to stress in her marriages and deprivation of her children. She was the victim of anxiety attacks and depression. She had no significant problems with alcohol until about 1998. When she became depressed she began to drink on a regular basis more and more heavily. Mr Joblin described the appellant as having "a fairly severe psychological disturbance". When she was in a depressive state she sometimes became seriously suicidal. She had a history of prescription drug overdoses and had attempted suicide several times. Mr Joblin considered that the alcohol and medication she consumed on the Saturday, a few hours before the accident, "made the whole concept of her being on the road at that time totally inappropriate".

62. The judge was made aware of the appellant's existing psychiatric state, and he knew of course that she had attempted to take her life about 12 hours before the accident. His Honour expressed the opinion that the appellant's culpable driving on the night of the accident "represented a grave example of a most serious offence".

66. Mr Shwartz, counsel for the appellant, argued that the sentence imposed on count 1 was far beyond the range of sentence appropriate in the circumstances of the case. He relied particularly upon the appellant's depressive state as an explanation for her conduct on the night of the accident.

69. Mr Shwartz submitted that the appellant suffered from "a fairly severe psychological disturbance" which led her to attempt suicide within 24 hours prior to the accident. He submitted that she did not take any alcohol after she returned from the hospital and before the accident. Consequently, she was "sobering up" between 9.00 pm. and 1.30 am. as indicated by her reducing blood level during this time. Mr Shwartz contended that on a true view of the appellant's condition her culpability was diminished. Further, he submitted, the judge omitted to give sufficient weight to the diagnosed pre-accident depressive condition. Had the judge properly taken into account lack of insight and the depressive condition he would have moderated specific and general deterrence in the sentence with the result that a lesser sentence would have been imposed on count 1.

72. I shall deal first with the "lack of insight" argument. The argument relied upon Mr Joblin's psychological assessment dated 20 November 2002. Mr Joblin noted that since the accident the appellant had continued psychiatric attention and agreed with her treating doctor that "her mental problems have been exacerbated since the fatal accident". Mr Joblin considered that the appellant's psychological state at the time of the offence was "seriously inappropriate". He added: "The combination of factors would dictate that she should not have been anywhere near a motor vehicle but I doubt that she had the insight to recognise that."

75. The judge did not accept that the appellant lacked insight before the accident. He noted that the appellant told Mr Joblin that upon returning home from the hospital she then went to bed and got up when Mark rang her seeking a lift home from a night club. Counsel appearing for the appellant in the court below (not Mr Shwartz) informed the judge that the appellant came home from the hospital and consumed some more alcohol and then went to bed, sleeping until 1.00 am. when Mark telephoned her.

78. This story was contradicted by the neighbours who saw the appellant twice between 11.00 pm. and 12.00 midnight and heard her complain about noise from an almost next-door party. The contradiction about her consuming more alcohol and what she told Mr Joblin was unresolved.

81. As to the insight issue the following matters are relevant and most of them were taken into consideration by the judge when he observed during the plea: "I, on the present state of the evidence, as I understand it, would not be prepared to accept that she had no insight". The relevant matters are these:

- The appellant signed a discharge form at the hospital and went home after refusing treatment.

- The appellant visited her neighbours on two occasions and spoke to them about noise, although intoxicated.

- The appellant told Mark that she was alright to drive.

- The appellant requested from Nathan information about the headlight switch in his car. This indicated awareness that she was unfamiliar with his car.

- The appellant was driving slowly along McIvor Road at the time of the accident indicating awareness of her difficulty in controlling the car.

- The appellant turned the car around and returned to the scene of the accident shortly after the accident indicating awareness that something untoward had occurred.

90. I am of the opinion, therefore, that the judge was justified on the evidence in making the finding he did on the insight issue. No error has been established.

93. His Honour was aware of the appellant's existing depressive illness and of her conduct on the afternoon before the accident. I do not accept that the judge had to ignore altogether, or even substantially, general and specific deterrence. Nor was he required to find that, on account of the appellant's depressive illness, she was less morally culpable for her conduct. The appellant's psychiatric condition was not a mental illness. Consequently, authorities such as R. v. Anderson[4] and R. v. Tsiaras[5] were not applicable.

96. Mr Shwartz also referred the court to R. v. Yaldiz[6]; R. v. Lewis[7]; R. v. Naismith[8]; and R. v. Cunliffe[9]. In Cunliffe the Court of Appeal was concerned with a sentence imposed for serious offences against a female complainant and whether it was manifestly excessive. On the plea there was evidence from which it could be concluded that the appellant's judgment had been impaired by depression. Phillips, J.A. delivered a judgment which was agreed in by Charles and Buchanan, JJ.A. His Honour said:

"The most that could be said here, is that, given the somewhat bizarre features of the appellant's offending, the appellant's judgment must have been astray at the time and that, if impaired through depression, that could serve as some explanation of the offending and should be brought to account, to some degree, in mitigation. That was how the judge put it in his sentencing remarks, and with respect I agree".

100. In the present case the judge said in his sentencing remarks that the principles of general deterrence, special deterrence and denunciation of such behaviour were relevant sentencing considerations. With respect I agree they were relevant. The depressive condition from which the appellant was suffering on the day before the accident provided an explanation for her conduct in attempting suicide by overdosing and taking an excessive quantity of alcohol. However, at the relevant time when she decided to drive Nathan's vehicle, she knew she was not in a fit state to drive a motor vehicle, but proceeded to do so nevertheless, with the horrific consequences that followed.

103. The judge did not deny the appellant's depression before the accident and he took into account that her condition had worsened since the accident on account of her remorse and sense of guilt.

106. In my opinion, error has not been established.

109. The next question to be answered is whether the head sentence of seven and a half years and the non-parole period of five years are manifestly excessive.

112. Culpable driving is akin to involuntary manslaughter for which the maximum penalty has been raised by Parliament to 20 years. Drunken driving on the State's roads has been the cause of many tragic fatal accidents. It cannot be gainsaid that condign punishment is usually called for to deter the offender and other persons from committing the same or a similar offence and to manifest the denunciation by the Court of the type of conduct in which the offender engaged.[10]

115. It is generally unhelpful to look at sentences imposed in other cases involving culpable driving whilst under the influence of alcohol. The cases which have been decided in the Court of Appeal reflect that sentences for culpable driving involving alcohol have increased over the past decade, probably in recognition of increases in the penalty prescribed by Parliament and having regard to the prevalence of such offences with tragic consequences to the victim's family and the need for the courts to denounce the conduct of offending motorists by severe punishment. I list some of the recent decisions to which reference was made by counsel during argument[11].

118. In my opinion the judge properly took into account the psychologist's opinion and gave it as much weight as it required. The fact remained that the offending was very serious and, notwithstanding the appellant's personal circumstances, the punishment imposed had to reflect that an offender who drives whilst under the influence of intoxicating liquor and kills an innocent victim will receive severe punishment.

121. As a general rule I am of the opinion that criminality of culpable driving of a motor vehicle which causes the death of someone whilst the driver is under the influence of alcohol increases with the level of alcohol detected in the blood above the legal limit.

124. The sentencing judge said that he had regard to all mitigating factors.

127. In my opinion, this was a very bad case of culpable driving calling for a severe sentence. I am not persuaded that the sentence of imprisonment imposed on count 1 is manifestly excessive. The sentence on Count 2 is within range[12]. A non-parole period of five years was not manifestly excessive.

131. Ground 1 is also concerned with the ten-year period of disqualification which accompanied count 1. Should the appellant be released after five years she will be unable to drive a motor car for five years. Should she be required to serve all of the head sentence, she will be unable to drive for two-and-a-half years. Mr Shwartz submitted that the licence disqualification of ten years was manifestly excessive because the punitive effect of the cancellation of the licence will continue for five years beyond the non-parole period and will affect the appellant's capacity to rehabilitate herself. In R. v. Tran[13] the Court of Appeal reduced a period of disqualification from obtaining a driver licence because it did not take adequate account of its effect on her rehabilitation.

134. No point was raised on the plea that the appellant's driver licence was important for work or for her rehabilitation. Many offenders need their licence on release from custody to enable them to return to work, others do not. The appellant is a disability pensioner and the evidence did not reveal whether she owned a motor car. On the night of the accident she was driving her son's car without his permission. The evidence of her being a heavy drinker and of prescription drug dependence, together with her depressive condition, suggested to the judge that she should not drive again. The judge noted that the assessment of Mr Joblin indicated he was of the opinion that the appellant was not fit to drive a car at the time, absent alcohol, due to her psychiatric state. Being mindful of the authorities to which Mr Shwartz referred the Court[14], in the circumstances I propose to the Court that the period of disqualification is excessive and ought to be reduced. The judge did not give reasons why he selected a ten year period of disqualification. Perhaps he was influenced by Mr Joblin's opinion and considered it unlikely that the appellant would ever obtain a licence again.

137. The sentence on Count 1 was accompanied by an order pursuant to s.89(1)(c) in Part 4 of the Sentencing Act 1991 that all driver licences and permits held by the appellant were cancelled and that she be disqualified from driving for a period of ten years. That the order was a sentence for the purposes of s.568(4) of the Crimes Act 1958 is clear from the definition of `sentence' in s.566 of the Crimes Act.[15]

140. In my opinion the sentencing discretion is re-opened as regards licences and a different sentence of disqualification from obtaining a driver licence should be passed. I propose that a new disqualification period be imposed ending two years after the appellant is released from custody, whether on parole or on the expiration of her sentence. The effect of this order will be that the period is reduced from 10 years to 7 years. The order proposed is in line with the order in Tran. A finding should be made and recorded that the offence of culpable driving was committed while the appellant was under the influence of alcohol which contributed to the offence.

143. I would allow the appeal to the extent indicated.

[1] Section 318(2)(c) Crimes Act 1958 - Maximum penalty 20 years' imprisonment. Section 89(1)(c) Sentencing Act 1991 - Minimum disqualification from obtaining licence for two years.

[2] Section 61(1)(a) Road Safety Act 1986 - Maximum penalty 2 years' imprisonment (s.61(3)). Section 61(6) Road Safety Act - Minimum disqualification from obtaining licence for two years.

[3] Section 49(1)(b) Road Safety Act 1986 - Maximum penalty for a first offence is a fine of not more than 12 penalty units (s.49(3)(a)). Section 50 (1A) (a) and Schedule 1 of the Road Safety Act - for a reading of .23 and not less than .24, minimum disqualification from obtaining licence for 23 months.

[4] R. v. Anderson [1981] VicRp 17; [1981] V.R. 155.

[5] R. v. Tsiaras [1996] VicRp 26; [1996] 1 V.R. 398.

[6] R. v. Yaldiz [1998] 2 V.R. 376.

[7] R. v. Lewis [1998] Court of Appeal Unreported No. 159/1997.

[8] R. v. Naismith [1998] Court of Appeal No. 75/1998 @ pages 3 & 4.

[9] R. v. Cunliffe [2000] V.S.C.A. 146 @ 11 & 12.

[10] Sentencing Act 1991, s.5(1)(d).

[11] DPP v. Wareham (2002) 5 V.R. 329; DPP v. Whittaker [2002] VSCA 162; (2002) 5 V.R. 508; R. v. Birnie [2002] VSCA 155; (2002) 5 V.R. 426 @ 433-434.

[12] R. v. Fairley [2004] VSCA 15 paras [7], [18]-[20]. A sentence of 18 months for Failing to Stop was reduced to 12 months; 6 months cumulative with a sentence for negligently causing serious injury.

[13] R. v. Tran [2002] VSCA 52; (2002) 4 V.R. 457 at [38]- [40].

[14] Especially R. v. Tran [2002] VSCA 52; (2002) 4 V.R. 457; R. v Teh [2003] VSCA 167; R. v. Birnie [2002] VSCA 155; (2002) 5 V.R. 426 @ 437.

[15] Sentence includes any order made under Parts 3, 4, and 5 of the Sentencing Act, 1991.