R v Franklin [2002] VSCA 37

7. On 22 June 2001, the appellant pleaded guilty in the County Court to a presentment alleging one count of culpable driving and two counts of negligently causing serious injury, and to two related summary charges, driving whilst disqualified and driving a motor vehicle while exceeding the prescribed concentration of alcohol. The maximum penalties were, for culpable driving, 20 years, for negligently causing serious injury, 5 years, for a subsequent offence of driving while exceeding the prescribed blood alcohol concentration, three months, and for driving whilst disqualified, four months' imprisonment, respectively.

10. The appellant admitted eight prior convictions from four court appearances. Those relevant were a conviction on 24 November 1992 for careless driving; a conviction on 5 June 1993 for driving a motor vehicle while having a blood alcohol concentration exceeding .00% (the appellant was then the holder of a probationary licence and his reading was .049%); a conviction on 24 November 1994 for driving a motor vehicle whilst having a blood alcohol concentration exceeding .05% (the reading was .150% and the appellant was fined $1,000 and disqualified from obtaining a driver's licence for three years); and, most significantly, convictions on 7 July 1999 for driving a motor vehicle whilst having a blood alcohol concentration exceeding .05%, being an unlicensed driver, and driving an unregistered motor vehicle. On this occasion, his blood alcohol reading was .173%, and he was released on a community-based order for 12 months and disqualified from obtaining a driver's licence for 34 months.

13. On 26 June the judge sentenced the appellant to be imprisoned on the count of culpable driving for seven years, on the two counts of negligently causing serious injury in each case for three years, for driving while exceeding the prescribed blood alcohol concentration for six months, and for driving whilst disqualified for two months' imprisonment respectively, and made orders for cumulation of nine months in the case of each of the two counts of negligently causing serious injury. The total effective sentence became 8½ years, and the judge fixed a non-parole period of 6 years. The appellant was given leave to appeal under s.582 of the Crimes Act 1958 on 23 November 2001.

16. The circumstances of the offences were as follows. On 2 November 2000 the appellant and his then partner, Jennifer O'Dea, a friend, Darryl Youl, and his partner, Suzanne Tuaa, were drinking together at the Seaford Hotel on the Frankston-Dandenong Road. The four friends drank at the hotel for some little time and then got into Suzanne Tuaa's car, a Honda Civic. The appellant agreed to drive the car, and they left the hotel with the two men seated in the front and the two women in the rear of the car. As the judge put it in sentencing reasons:

"At about 8.20 p.m. on the evening of 2 November 2000, the prisoner's car approached the intersection of the Frankston-Dandenong Road and Klauer Street when, for some inexplicable reason, the prisoner's vehicle suddenly veered across the carriageway of the Dandenong-Frankston Road from the right-hand to the left-hand side, lost control and struck a light pole on the driver's side of the car, embedding the car around the pole. The deceased [Suzanne Tuaa] was seated behind the prisoner, and she died as a direct result of the injuries received by her when the car struck the pole. She was pronounced dead before she could be extracted from the wrecked vehicle. Both of the other [passengers] received serious injuries in this collision, which injuries are referred to in the deposition material. Comparatively speaking, the prisoner/driver received relatively minor injuries. The reason for this accident was entirely due to the driving of the prisoner and his loss of control due to his excessive consumption of alcohol."

20. The three survivors of the collision were admitted to hospital shortly afterwards. All three, as well as the deceased, were tested for blood alcohol. The appellant, tested at 9.15 p.m., was found to have a blood alcohol reading of .252%, and the other passengers and the deceased were also well over the .05% limit for driving a motor vehicle, confirming that all had been drinking heavily prior to commencing the journey.

23. During the plea, evidence was given by Richard Brownlee, a sign installer and the appellant's employer. The appellant had worked for Mr Brownlee more or less full-time for the previous two years, and before that on a casual basis for two more years. Mr Brownlee said the appellant was a valuable employee because he could think on the job, was punctual and safety-conscious. In the course of his evidence, Mr Brownlee said that prior to the accident the appellant would drive Mr Brownlee's truck from time to time. Evidence was given by Ms Phillipa McIndoe who had known the appellant for seven years and had shared a house with him in that time for about two years. Mr William Franklin, the appellant's father, gave evidence on the appellant's behalf. A psychological report from Mr Les Thornton was tendered in evidence, in which Mr Thornton described the appellant as a "basically good man who reports some symptoms of depression", and said that the appellant's prognosis was excellent if he was committed to controlling his drinking. Mr Thornton's view was that the appellant appears to be genuinely remorseful in relation to the accident and that he had learned from his experience and planned to monitor and control his drinking and to have individual counselling.

26. The appellant's plea focused on his early plea of guilty, the indication, supported by the psychological report, that he was a changed individual, and his good work history. Reliance was placed on the assistance he had given his mother, who suffered a stroke some years before. Counsel for the appellant accepted that a custodial sentence was inevitable, but submitted that any minimum term imposed should not be crushing and should be as low as justifiable. It was also submitted that the penalties in respect of counts 2 and 3 should be made totally or almost totally concurrent with any sentence imposed on count 1.

29. In response, the prosecutor relied on what were said to be the aggravating features of the case, namely, the appellant's prior convictions, which were said to indicate his persistent disregard of road traffic laws, that he was driving whilst disqualified, including driving work vehicles from time to time, as well as driving an unregistered vehicle.

32. The appeal is now brought on ten grounds, but it is sufficient to mention two only. Ground 9 claims that the judge erred in imposing a sentence of six months' imprisonment for the summary offence of driving whilst exceeding .05%, such sentence not being available under the provisions of the Road Safety Act 1986. The maximum penalty for a subsequent offence of this nature was indeed three months at the relevant time, and it is conceded by the Crown that this sentence was imposed in error. Ground 9 is thus made good.

"The learned sentencing judge erred in sentencing the appellant on the basis that he had engaged in a 'conscious and unjustifiable disregard of the substantial risk of causing death' (s.318(2)(a)), and that therefore the case was 'one of the worst examples of culpable driving', rather than on the basis alleged in the presentment, that is, that the appellant drove the motor vehicle whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the said motor vehicle (s.318(2)(c))."

39. During sentencing reasons, the judge quoted at some length from the judgment of Callaway, J.A. in R. v. McGrath[1], where reference was made to the wide variety of conduct constituting an offence against s.318 of the Crimes Act 1958. In the passages quoted, Callaway, J.A. said:

"The worst class of case would almost certainly involve the first kind of culpability described in s.318(2)(a), namely a conscious and unjustifiable disregard of a substantial risk of causing death. I mention that because the maximum penalty prescribed for the offence is reserved for the worst type of case falling within s.318, not the worst type of case falling within s.318(2)(b), (c) or (d), as the case may be. ..."

The sentencing judge then referred to the aggravating features of the present case relied on by the Crown and said that:

"They place this prisoner in a situation of being regarded as one of the worst examples of this class of culpable driving. Clearly, in my view, there has been a 'conscious and unjustifiable disregard of the substantial risk of causing death', in the words of Callaway, J.A. It is in these circumstances that I am now to pass sentence upon the prisoner."

45. The Director of Public Prosecutions in this Court conceded that Callaway, J.A. was clearly referring, in the passage above, to s.318(2)(a) as covering the worst class of culpable driving, but he submitted that the sentencing judge in the words used meant no more than that the circumstances of the appellant's offence placed it among the worst examples of "this class", that is, s.318(2)(c) of the Crimes Act, of culpable driving; and he submitted that the sentencing judge was quite entitled in all the circumstances so to describe the appellant's behaviour.

48. Notwithstanding Mr Coghlan's argument I think it is clear that the judge, with respect, misunderstood or misapplied what had been said in McGrath. The appellant was indeed charged under s.318(2)(c). The judge, having referred to the remarks of Callaway, J.A. which related specifically, as his Honour said, to s.318(2)(a) and to the worst type of case falling within s.318, then proceeded to sentence the appellant on the basis that this was the offence committed. It seems to me, again with respect, that the appellant was thus being dealt with for an offence with which he had not been charged and to which he had not pleaded guilty.

51. This ground was also, in my view, made out, and goes to the heart of the judge's sentencing reasons. The appeal must, therefore, succeed and the appellant now re-sentenced by this Court.

54. The appellant pleaded guilty and was entitled to a sentencing discount accordingly: Sentencing Act 1991, s.5(2)(e). The plea was some evidence of the appellant's remorse, which was also supported by the report of Mr Thornton and demonstrated the willingness of the appellant to "facilitate the course of justice": see Cameron v. R.[2] The appellant's family history is set out in Mr Thornton's report and in the evidence of his father.

57. In this Court, Mr Bourke, for the appellant, relied strongly on the evidence of the appellant's rehabilitation since the offence, supported by the evidence of his father and Ms McIndoe. The appellant has a good work record with, no doubt, a good employment future. Mr Bourke argued that a sentence of seven years' imprisonment on the count of culpable driving would be manifestly excessive and would not give proper weight to the appellant's rehabilitation since the accident, his early plea of guilty and cooperation with the police and his personal circumstances as reflected in Mr Thornton's report. He submitted that a sentence of three years on each of the counts of negligently causing serious injury would be excessive, the maximum sentence for this offence being only five years, and that the cumulation ordered by the sentencing judge - 18 months - had been crushing and manifestly excessive. Mr Bourke submitted that it was clear on the evidence that the conduct of the appellant since the accident had significantly changed. He submitted that since the accident he was not drinking as he had been prior to that event, that he had kept working and was living at home, looking after his mother. It was also submitted that the Court was entitled to look at the fact that the deceased and the other two injured victims were all willing passengers, well aware of the fact that the appellant had been drinking substantially before they all got into the car. This last is in my view not a relevant consideration, for the reasons given in R. v. Howarth[3].

60. 18 There were, however, a number of significant aggravating features properly emphasised by the Crown. The appellant clearly has a serious problem with alcohol. As the judge said, he had three prior convictions for exceeding permitted blood alcohol percentages, the last being the conviction on 7 July 1999, when he was disqualified for 34 months. He was a disqualified driver at the time of the offence. His blood alcohol reading, some five times the permissible limit, was very high indeed, particularly as the appellant was in fact obliged to have a .00 blood alcohol level. The appellant's drink driving history was properly referred to by the Director of Public Prosecutions as appalling, and the fact that he drove at all, after a day of drinking, made it a particularly serious example of an offence under s.318(2)(c). The appellant had clearly been driving, from time to time, the truck of his employer in the course of his employment, whilst disqualified, even if this was not necessarily shown to have been "continual and repeated", as the sentencing judge put it. Both general and specific deterrence are important considerations in the present case.

63. In all the circumstances, I propose that the appellant should be sentenced as follows: on count 1 (culpable driving) to six years and six months' imprisonment; on counts 2 and 3, in each case, to three years' imprisonment. On the two summary offences (exceeding .05% and driving whilst disqualified), I would sentence the appellant to three months and two months' imprisonment respectively. I would order that six months of the sentences on each of counts 2 and 3 be made cumulative upon each other and upon count 1, making a total effective sentence of seven-and-a-half years' imprisonment. I would fix a non-parole period of five years. I would vary the period of disqualification by reducing it to six-and-a-half years.

67. For the reasons given by Charles, J.A., I agree that this appeal should be allowed and that orders in substitution for sentences passed below be made as he proposes.

The appeal is allowed. The sentences imposed by the County Court on 26 June 2001 are quashed. In lieu thereof this Court imposes sentences as follows:

on the summary offence of driving with a blood alcohol concentration in excess of .05 - 3 months' imprisonment;

on the summary offence of driving whilst disqualified - 2 months' imprisonment.

The Court orders that 6 months of each of the sentences imposed on counts 2 and 3 be cumulated upon each other and upon the sentence imposed on count 1.

The total effective sentence will therefore be one of 7 years and 6 months' imprisonment. We fix a minimum period of 5 years as the period before which the appellant will not become eligible for parole.

All licences held by the appellant are cancelled. He is to be disqualified from obtaining any further licence for a period of 6½ years.

We declare pursuant to s.18 of the Sentencing Act that the appellant has already served 293 days of the sentence that we have imposed and we order that that declaration and its details be entered in the records of the Court.

[1] [1999] VSCA 197 at [15] and [16].

[2] [2002] HCA 6 at [13] to [14] per Gaudron, Gummow and Callinan, JJ.

[3] [2000] VSCA 94; [2000] 1 V.R. 593, per Brooking, J.A.