R v Campbell [2005] VSCA 225

"Basically, like you're thinking, didn't - wasn't too sure, I'd had a few problems with me door and I just said to 'em, "Just jump on the back"". It was only just down the road and I thought it was gonna be a quick thing, over and done with.

. . .

"If I thought about it, I would not - there's no way in the world, if I actually thought about it. Just said, "Jump on", they were on, they wanted to, they were - I (unable to decipher) I'm not their mums.

. . .

" . . . they were pretty keen to get on the back where, I'm not too - they were pretty keen to get on the back. They said, "Can we get on the back"" and I said, "whatever" and I said, "Yeah, get in the back, cos it is whatever and I couldn't be bothered opening doors and whatever. It was only down the road, as I said.

. . .

"It was meant to be a favour for a mate, dropping him off basically.

Q: So, basically, it was a matter of convenience of just getting them to sit on the back?

A: It was. As stupid as it was, it was."

9 As those passages demonstrate, the conduct of the appellant was extremely dangerous. By his own admissions his conduct deserved to be characterised, as it was by the judge, as being not merely stupid but also "lethal, grossly negligent and thoughtless". That said, I agree with Mr Carter that the findings on the matters discussed above, at [6], present the decision-making process as being more calculated than those answers suggest was the reality. The reduction in the grading of moral culpability may only be small, on that account, but to me it is not insignificant. The journey with the two men sitting on the boot was intended to be approximately 200 metres, and when the deceased fell off the vehicle there remained only about 50 metres to travel.

10 It was conceded by the prosecutor that whilst the speeding was excessive in the circumstances it was not of itself grossly excessive. Expert evidence before the judge placed the speed of the vehicle at the moment when the deceased was thrown off as being in the range of 39 to 50 kph. The appellant said that he was travelling at 40 kph "or a little bit more", and his Honour's finding that the range was between 40 and 50 kph was not inconsistent with his acceptance of the appellant's version. The appellant told police that he "wasn't flying - not with two mates on the back of the car. It was a stupid enough thing getting' on there"[2].

11 Whilst acknowledging the dangerousness and stupidity of the conduct of the appellant, as fully described in the reasons of Nettle, J.A., my evaluation of the moral blameworthiness of the conduct which led to the death in this case, when assessed against the many mitigating and aggravating factors in they case, places the offence at a slightly lower level in the range of culpable driving offences than, to me, would justify a sentence of four years and six month's imprisonment. In so concluding I give greater weight, I believe, to some of the relevant mitigating factors in the case than did the learned sentencing judge.

12 One factor which I consider merited greater weight for sentencing purposes than the sentencing judge allowed relates to the attitude of those closest to Owen Kane, the deceased young man. The appellant attended the funeral of the deceased and then, alone, attended the home of the bereaved family, where he answered all of their questions about the circumstances of the accident. The family members wrote to the appellant's mother and said that they regarded what occurred as having been "a terribly unlucky accident". They added:

"We were grateful that Jai was able to face us and could see that he was genuinely sorry. We didn't attend court seeking retribution, as Jai's punishment will not make us feel any better. We would prefer to know that he is able to continue his life positively and happily so that this tragedy isn't made worse. We would expect that Owen would feel the same".

13 Similar thoughts were expressed in a letter from the girlfriend of the deceased. She wrote:

" . . . I know that Owen would not want Jay (sic) to go to jail over this as it could have been the other way around as Owen was quite silly himself at times. It was a few friends being really stupid not knowing the consequences and something terrible happened and Jay happened to be driving".

14 The writer added that the appellant had shown a lot of remorse and had provided her with support. She concluded that she knew the appellant had to live with the death and said his sense of responsibility was punishment enough. She said that imprisonment of the appellant would not bring back Owen Kane, "only wreck another family." She closed: "Jay is a great guy with a big personality and is very passionate towards others".

15 It is the judge who must determine the appropriate sentence, not the victims, and that is so whether the victims are forgiving or vengeful. The judge will have all of the relevant facts before him or her when sentencing. It must also be kept in mind (although I do not suggest that it was so in this case) that surviving victims of such a tragedy may not be aware of all of the aggravating factors in a case at the time when they express their forgiveness of an offender. In imposing a sentence which has regard to the interests of the whole community a sentencing judge must have regard to a great many sentencing considerations, only one of which - but a very important one - is the impact of the death on the surviving victims of the offender's criminal conduct. Another relevant factor, of particular importance in such a case, is the need for general deterrence. As in all instances where sentences must be imposed in such cases the process of balancing competing factors is a complex one.

16 In this case the learned sentencing judge certainly gave weight to the statements of the family members of the deceased man. He summarised the two letters, said the statements expressed therein were admirable, and commended the lack of vindictiveness expressed by the authors. I consider, however, that the attitude of these victims towards the appellant merited greater weight than his Honour allowed. The merciful attitude of the victims of crime towards the offender is relevant to sentencing in many ways[3]. Among the considerations that factor might bear upon are the prospects of rehabilitation of the offender and the moderation of the need for general and specific deterrence. In my opinion, the force of the victims' statements in this case ought to have led to a greater moderation of the sentence than appears to have been allowed.

17 In my reasons for judgment in R v Skura[4], which were agreed to by Buchanan, J.A., I said this:

"Whilst judges must be careful that they do not allow the contents of a victim impact statement to unbalance the sentencing process so as to cause a miscarriage of the judicial sentencing discretion it is undoubtedly the case that consideration of victim impact statements in many instances would have the effect of producing a more severe sentence than a judge might, at first, have thought appropriate to the circumstances. If a victim impact statement can have that effect in encouraging a view of the case which would justify a more severe sentence, then in my view sentencing judges ought to give equally appropriate weight to a victim impact statement where the victim positively expresses support for the accused and argues for a more lenient sentence. I do not consider that the judge gave the statement appropriate weight in this case. In the passage of the sentencing reasons cited by Smith, A.J.A. the judge reflects undue reluctance, in my opinion, to give full weight to the victim's statement. As the sentencing judge rightly said, sentencing is not the function of the victims of crime, but of the state, through the judiciary. That said, it is by no means inconsistent with that principle for a sentencing judge to give full weight to a supportive victim impact statement, as was provided here."

18 The judgment of Nettle, J.A. appropriately identifies the factors of mitigation and aggravation in this case. Upon re-sentencing the question is what sentence is appropriate having regard to the maximum sentence of 20 years' imprisonment which the offence carries. In other words, I must ask myself the question, posed by all sentencing judges, as to where this case sits within the very broad sentencing range for culpable driving offences. The seriousness of the offence of culpable driving causing death has been emphasised in many decisions of this Court[5]. Nonetheless, in R v Leesley[6], which was decided in 2001, Winneke, P. observed that in culpable driving cases involving allegations of speed and inadvertence, sentences not exceeding five years had not infrequently been imposed by courts in this State[7]. In more recent years, too, there are instances of sentences of five years or less, in some of which there were additional features of aggravation apart from speed and inadvertence[8]. Statistics published recently by the Sentencing Advisory Council[9] indicate that in the period from 1998-1999 to 2003-2004 the average length of sentences of imprisonment for this offence was 4.9 years, but the Council also noted that there had been a steady increase in the average length of sentences in that time. Thus, in 1999-2000 sentences were on average 4.1 years but by 2002-2003 the average length was 5.7 years. Of course, those statistics include all cases of culpable driving causing death, embracing the whole range of criminal conduct which might constitute the offence.

19 There are limits to the use that may be made of such statistics. Every case has its own unique circumstances and in each of the cases in which sentences of five years or less have been imposed individual factors would have been called in aid in mitigation of sentence. Nonetheless, that material assists me in reaching my conclusion that although the sentence of four years and six months imprisonment imposed by the judge in this case was not outside the range open to his Honour, it would be open to impose a lesser sentence and, in the exercise of my own sentencing discretion I conclude that a sentence of four years imprisonment on count 1 would be appropriate.

20 I agree, therefore, that the appeal should be allowed, the sentences imposed below should be set aside and the appellant be re-sentenced. Given that I am in the minority as to the appropriate sentence on count 1 the orders of the Court on re-sentencing will be those proposed by Nettle, J.A.

21 This is an appeal by leave against a total effective sentence of four years and nine months imprisonment and a non-parole period of two years and 3 months imposed on the appellant in respect of one count of culpable driving (Count 1) and one count of reckless conduct endangering serious injury (Count 2).

22 The applicant was born on 1 July 1980 and was 22 years of age at the time of the offences. He is now 25 years of age. The offences occurred on the night of 30 October 2002. During the afternoon of that day the appellant drove his Torana coupe in the Upwey area to meet a friend, David Kilgariff. From there he drove with Kilgariff to the house of another friend, Aaron Charles, which was in Hazel Vale Road Tecoma. After some time, the appellant drove with others from Charles' address to an IGA Supermarket in Upwey, where the appellant and Kilgariff each bought a 750 ml bottle of Jack Daniels bourbon, and from there to the home of another friend, Vinny Town, in Emerald. There was another gathering of people at

that place and the appellant and Kilgariff there consumed marijuana and alcohol. Eventually, the appellant left that gathering with Kilgariff and two other friends and drove to a further meeting point at the rear of the IGA Supermarket in Upwey. On the way the appellant tended so much to turn around and talk to the rear seat passengers that Kilgariff at one point yelled at the appellant to concentrate on his driving. Once at the rear of the supermarket, however, the appellant and the others met a further group of people and decided that they would return to Aaron Charles' home. The appellant then drove Kilgariff and two other males back to Charles' home and left two further members of the group, Owen Kane and Stephen Ward, to walk there.

23 Later, on returning from Charles' home towards his own home, the appellant came upon Kane and Ward walking south along Fairy Dell Road, Tecoma and offered them a lift. But he pretended that the near side door was jammed shut or that it was too much of an effort to open it and he told them to sit on the boot. They did as he directed. They sat on the boot facing rearwards. Ward on the off side, and both resting their feet on the bumper bar. The time was then 10.45pm and appellant drove south along Fairy Dell Road.

24 Fairy Dell Road is a no-through bituminised road. It runs in a generally north-south direction. There is one lane each way with double white lines in the middle. It has a 50 kph speed limit and a steep descent which presents a number of tight bends to traffic travelling in a southerly direction. Shortly before the bends there is a 25 kph advisory speed sign. The appellant was driving at something in excess of 40 kph as he approached one of the bends, a sharp left-hand bend, which is followed by a sharp right-hand bend. Part way through the left-hand bend Kane and Ward slid across the boot and as they went through the right hand bend Kane lost his grip and slipped to his right off the boot, hit the pavement and came to rest on a grassed area outside 20 Fairy Dell Road.

25 Evidently, the appellant did not realise what had happened. Ward therefore beat heavily on the boot to attract the appellant's attention and the appellant eventually stopped between 50 and 70 metres down the road. Ward ran back and the appellant reversed the car back to where Kane was lying. He was unconscious and bleeding profusely from a serious head injury.

26 The appellant drove off, leaving Ward with Kane and others who had stopped to help. But he returned some time later with his father and the latter's partner in another car. By that time an ambulance had arrived and ambulance officers had begun treating Kane. Then an altercation followed between the appellant and Ward whereupon the appellant's father advised the appellant to leave, which he did. According to admissions the appellant later made to police, his father drove him back to his father's home.

27 Kane was transported by air ambulance to the Alfred Hospital where he died on 6 November 2002 as a result of traumatic brain injury suffered in the accident.

28 After being driven home, the appellant drove himself to Charles' house and told those there what had happened. Police ultimately attended in the early hours of the morning of 31 October 2002 and found him hiding. A search of his car, which was located outside the premises, revealed a partially consumed bottle of Jack Daniels bourbon, a bong suitable for smoking marijuana, a pair of scissors and a quantity of green vegetable matter.

29 The appellant was interviewed by police later on 31 October 2002. He refused to take a breath or blood test for alcohol. He agreed that he was the driver of the vehicle, then dry-retched and was ill during the interview. He admitted leaving the scene of the accident. But he said he did so to get his father because his father knew first aid. He appeared confused, however, and was evasive about whom he had been with and what he had done during the day. He said that he had one beer at 3.30 pm and a scotch or bourbon after he got home from the scene of the accident, but he said that he believed that Kane and Ward were both "pissed" when they got on the boot. He admitted that he was probably doing 40 kph through the corner "or a little bit more" and he agreed that it was not safe for Kane and Ward to be sitting on the boot. He stated that he jumped out of the car after reversing and saw Kane and realised that it was "pretty bloody serious." He admitted that he had been at the scene when the police arrived and that he had deliberately not spoken to them. He said that he was then driven to his father's home where he stayed for a while before going to Charles' house at approximately 2.00 am to 2.30 am. He admitted that he took a different route because he thought that the police might be around the next street and he did not want to run into them. He also admitted that the bong found in his car was for smoking marijuana, although he denied that he had smoked marijuana that day, and he also denied that the bottle of Jack Daniels was his. He told police that he had told Kane and Ward to sit on the boot because the near side door of the car was jammed. But he agreed that his actions were "pretty irresponsible." A later mechanical inspection of the car revealed that there was nothing wrong with the door.

30 As has been observed, the curve at which the accident occurred was marked with a 25 kph advisory speed sign. That speed was set below the critical speed of 50 to 57 kph at which a vehicle would be likely to begin to side-slip on the curve. Expert evidence established that the Torana was travelling at between 39 and 52 kph when Kane slipped off. Plainly, however, a person sitting on the boot would be likely to side slip at a lesser speed than the critical speed of 50 to 57 kph, because the friction between the person and the boot would be less than that between the tyres and the road surface.

31 On 6 September 2004 the appellant was presented before a judge in the County Court at Melbourne on one count of culpable driving (Count 1); one count of reckless conduct endangering serious injury (Count 2); one count of failing to stop after an accident ( Count 3); and one count of failing to render assistance (Count 4), and was remanded to reappear for plea on 29 October 2004.

32 On 29 October 2004 he appeared and pleaded guilty to the counts of culpable driving, reckless conduct endangering serious injury and failing to stop, and the Crown led no evidence on the count of failing to render assistance. He further admitted 16 findings of guilt including two prior convictions arising from six appearances in the Children's and Magistrates' Courts between 23 February 1996 and 8 November 2001. In turn they included unlicensed driving, driving a motor vehicle whilst license suspended, driving a motor vehicle in an unsafe condition, failing to comply with an undertaking order and driving whilst exceeding the prescribed blood alcohol concentration.

33 After hearing a plea in mitigation, on 8 November 2004 the judge imposed a sentence of four years and six months imprisonment on the count of culpable driving (Count 1), six months imprisonment on the count of reckless conduct endangering serious injury (Count 2) and a fine of $500 on the count of having failed to stop after an accident (Count 3). His Honour further ordered that three months of the sentence imposed on Count 2 be served cumulatively on the sentence imposed on Count 1, making for the total effective sentence of four years and nine months imprisonment, and imposed a non-parole period of two years and three months.

Appellant's contentions

34 The appellant contends that the judge failed to give sufficient weight to the appellant's youth and prospects of rehabilitation, his plea of guilty at what was said to be the earliest possible stage, his remorse, what were described as the extremely unusual circumstances of the offence, the fact that the negligence involved was said to be of a low level, and the understanding attitude of the deceased's family. Mr Carter submitted on the appellant's behalf that those factors were each and in combination powerful mitigatory considerations and that the weight of the sentence imposed was indicative that the judge must have overlooked or underestimated at least some of those mitigatory factors. It was further contended that the judge plainly gave too much weight to general deterrence and too little to the rehabilitation and well being of the appellant, and that in any event the sentence was manifestly excessive.

Youth and prospects of rehabilitation

35 I do not agree that the judge failed to give sufficient weight to the appellant's youth and prospects of rehabilitation or his remorse or his plea of guilty. The judge paid explicit attention to the appellant's relative youth and prospects of rehabilitation. His Honour also took into account that the appellant had since the offence begun to turn his life around and had shown genuine remorse. The judge described the appellant as having made genuine efforts to rehabilitate himself. As the judge observed, there was evidence that the appellant had disengaged from the party crowd with whom he had been associating and obtained a job and done well in it. But it was not the case that the appellant pleaded guilty at the first opportunity. I have already referred to the police interview and there was a contested committal hearing in February 2004. At the conclusion of that hearing the appellant pleaded not guilty. It was not until the time for trial that the plea was changed to guilty and, although the judge described that as pleading guilty at the first opportunity, it was only so in the limited sense that the plea came at the beginning of the hearing.

Unusual circumstances of the offence

36 Equally, I do not think that the judge gave too little weight to what were said to be the extremely unusual circumstances of the offences. It was submitted on behalf of the appellant that the Crown's attitude at the plea came close to conceding that the appellant's offending was towards the lower end of the scale, and that it was more a case of tragically bad luck than of out and out criminal negligence. That may be so. But it does not appear to me that the judge altogether accepted that approach. The judge observed that it was not disputed by the Crown that the offending was at the lower end of the criminal negligence scale. His Honour also observed, as it were in the appellant's favour, that the offence was committed without any swerving to and fro to dislodge the passengers from the boot, and with excessive but not grossly excessive speed, and in effect while doing friends a favour, albeit in an unfortunately dangerous and fatal manner. But the judge rightly identified as also being important that the appellant admitted to six prior court appearances including an appearance in February 2000 when the appellant was convicted before the Magistrates Court at Ringwood of offences of driving a motor vehicle whilst unlicensed, driving whilst exceeding the prescribed blood alcohol concentration limit and driving a vehicle on a footway, among other offences. As the judge observed, the appellant's antecedents tended to suggest a very casual approach to driving and the road rules. The appellant had been treated leniently in the past and apparently to no avail. There was a need for specific deterrence.

37 I agree with his Honour. The appellant had been drinking and smoking marijuana before the accident and while there is no evidence that it affected him - it will be remembered that he refused to take a breath or blood test - the fact that he was prepared to take the risk of driving in those circumstances with passengers who he knew were both affected by alcohol sitting on the boot reflects the very sort of insouciance that so often leads to death. As an adult of 22 years of age, and as an experienced driver, the appellant must be taken to have known that to drive at 40kph around a bend with two persons sitting on the boot was asking for disaster, and in point of fact the evidence is that he did know it. The judge had before him a psychological report dated 28 October 2004 from Elizabeth Warren who had seen the appellant on two occasions. The judge noted with concern the appellant's admissions, recorded in the report, in relation to the night concerned, that: "I was a bit stoned," and that: "I was two minutes from home, saw Owen and his mate, thought what have they done? I did a U-turn, they [ran] around to the car, jumped on the back. I'm no one's mum and dad. I was having fun and so were they too, did it in the past to see how long they can hang on. I did 20 kilometres to a dead end street, to an S bend hit 40 kilometres". As the judge put it, these were matters for concern which sadly reflected a misplaced conception of immortality. No doubt they also indicated that Kane and Ward were guilty of taking a foolish risk. But that did not provide the appellant with any sort of excuse for driving in such a dangerous manner in the circumstances. He was the one responsible for the safety of his passengers.

General deterrence

38 I am also not persuaded that the judge gave undue weight to general deterrence. His Honour based his approach upon what this court said in R v Scott[10] about the community's attitude to grossly negligent driving behaviour and that, because of the need to reflect that attitude in sentencing offenders, those who commit the offence of culpable driving must expect substantial punishment involving immediate incarceration. His Honour was right to do so. No doubt Scott was a very different case to this one, and it is true as Mr Carter submitted that the gravity of offending in Scott was of an altogether different order. But the relevance of Scott for present purposes, like the earlier authorities upon which it was based, is that it makes plain that a sentencing judge is to proceed in any case of culpable driving upon the basis that the community will not tolerate the taking of human life by acts of gross negligence and it expects that those who commit such offences will be sternly punished.[11] In the circumstances of this case, the judge was plainly right to conclude that requirements of general deterrence dictated a substantial gaol sentence.

39 Finally, while it goes without saying that an offence of culpable driving is as much a tragedy for the culprit and his family as it is for the deceased and his loved ones,[12] and while it cannot be denied that the appellant is still only relatively young, and may now have seen the errors of his ways (and that no amount of imprisonment or other punishment can put the pieces back together again), the fact remains that Kane is dead. No doubt it was of considerable importance that the deceased's family were forgiving.[13] Their response is admirable, and it is worthy of the highest praise. But it needs also to be borne steadily in mind that the principal victim in this case is the deceased. No amount of remorse or forgiveness can change that. The offence of which the appellant stands convicted is a species of involuntary manslaughter, and in my judgment it needs to be treated as such.[14]

Manifest excessiveness

40 The maximum sentence for the offence of culpable driving is 20 years imprisonment. In all the circumstances I consider that the sentence of four years and six months which was imposed was well within the range. Equally, I think that the sentence of six months imposed on the count of reckless conduct was well within the range. Upon reflection, however, I am persuaded by Mr Carter's submission that there was not a sufficient basis for ordering that any part of the sentence imposed on the latter count be served cumulatively on the sentence imposed on the count of culpable driving. In the circumstances of this case it seems to me that the two offences were so closely bound up that there was very little if any criminality involved in the offence of reckless conduct endangering serious injury which was not wholly encompassed in the offence of culpable driving. In my judgment the judge erred in ordering cumulation.[15]

Conclusion

41 In the result I would allow the appeal and set aside the sentences imposed on Counts 1 and 2. I would then resentence the appellant on the count of culpable driving (Count 1) to a term of imprisonment of four years and six months, and on the count of reckless conduct endangering serious injury (Count 2) to a term of imprisonment of six months (to be served concurrently), and I would further order that the appellant serve a period of not less than two years before being eligible for parole.

42 The other orders made by the learned sentencing judge should be confirmed.

43 I have had the benefit of reading in draft the reasons given by Eames and Nettle, JJ.A.. I gratefully adopt the analysis of facts and issues set out the reasons of Nettle, J.A., as expanded upon in several respects by Eames, J.A..

44 I agree with the other members of the Court, and for the reasons advanced by them, that the learned sentencing judge erred in deciding to cumulate three months of the sentence imposed on count 2 upon the sentence imposed on count 1. The sentencing discretion is thus reopened.

45 Sentencing in a case such as this one is not an easy task. Reasonable minds may differ as to what weight to place on the various aggravating and mitigating factors, and on the moral culpability of particular conduct. The learned sentencing judge's reasons demonstrate a careful and detailed consideration of all relevant sentencing factors.

46 For the reasons advanced by Nettle, J.A., I would not disturb the sentence imposed below on count 1. I agree with the orders proposed by his Honour.

[1] See DPP v Whittaker [2002] VSCA 162; (2002) 5 V.R. 508, at 513-5 [23]-[28], [31], and see [32]

[2] The complicity of a victim in events giving rise to such a charge is not a circumstance of mitigation, but does constitute the absence of a circumstance of aggravation: see R v Tran [2002] VSCA 52; (2002) 4 V.R. 457, at 467, per Callaway, J.A.

[3] See the discussion by Smith, A.J.A. in R v Skura [2004] VSCA 53, at [45]-[50].

[4] Skura, at [13], and see too Smith, A.J.A., at [45]-50], to the same effect.

[5] See, for example, R v O'Connor [1999] VSCA 55; DPP v Solomon [2002] VSCA 106; DPP v Walden [2003] VSCA 139.

[6] [2001] VSCA 90, at [14].

[7] The maximum penalty increased to 20 years imprisonment in September 1997.

[8] See for example R v Menzies [2001] VSCA 22; D.P.P v Miller [2005] VSCA 7; R v Satalich [2004] VSCA 132; R v McLachlan [2004] VSCA 87; D.P.P v Caldarera [2003] VSCA 140; D.P.P v Scott [2003] VSCA 25; (2003) 6 VR 217; (2002) 4 VR 457; D.P.P v Whittaker [2002] VSCA 162; (2002) 5 V.R. 508.

[9] Sentencing Advisory Council, "Sentencing Trends for Culpable Driving Causing Death in Victoria", September 2005, No.6.

[10] [2003] VSCA 55; [2003] 141 A. Crim. R. 323.

[11] R v O'Connor [1999] VSCA 55 at [19], per Winneke, P.

[12] R v Cody (1997) 25 M.V.R. 325, BC9703006 at [10]; R v Mc Grath [1999] VSCA 197 at [18]; DPP v Caldarera [2003] VSCA 140 at [9]- [13]; DPP v Scott [2003] VSCA 25; (2003) 6 V.R. 217 at 223; cf. R v Scholes [1998] VSCA 17; [1999] 1 V.R. 337 at 346[18].

[13] cf. R v Skura [2004] VSCA 53 at [13] and [48]-[50].

[14] R v O'Connor [1999] VSCA 55 at [19], per Winneke, P.

[15] cf. Pearce v The Queen (1998) 194 CLR 610 at p. 623; R v El Kotob (2003) 4 VR 546 at P. 548.