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.