R v Franklin [2009] VSCA 77

SENTENCING - Culpable driving - Appeal against sentence as manifestly excessive - Whether sentence a crushing sentence -Totality - Sentencing Act 1991 s 5(3) - Whether excessive weight given to deterrence - Whether error in approach to cumulation.

1 On Saturday 27 May 2006, Brett Douglas Franklin worked in the morning in his air-conditioning business, as was his usual practice. In the afternoon, he rode his road-bike from Leongatha to Tarwin Lower to compete in a road race and returned to his home in Leongatha. All up he rode about 150 km. He went to his mother's house and had something to eat. He was due to attend the 21st birthday party of one of his apprentices at the Korumburra Football Club. He did not particularly want to attend, preferring to go to bed after his hard day's riding. His mother said he should go to the party, which he did.

2 Franklin drove to the football club in his red 2005 Holden Commodore SS V8 Ute, arriving at about 8.30 pm. There were approximately 150 people invited to the party. Free beer and wine was provided until about midnight and thereafter drinks could be purchased until 1.00 am. Spirits could be purchased throughout the night. Franklin was observed to drink at least four, possibly six, full strength pots of beer, followed later by at least three or possibly four cans of mixed spirit drinks. A number of people observed him to be drunk and unsteady on his feet, swaying, staggering and endeavouring to support himself. Franklin would shortly record an estimated blood/alcohol reading of between 0.117 and 0.182. The party finished at the football club at about 1.30 am. Franklin sought one lift home, unsuccessfully. He decided to drive himself home and was again observed in the carpark to be intoxicated and unsteady on his feet. A number of guests, both inside at the party and outside when Franklin was trying to open his car, told him he was too drunk to drive. Franklin ignored the advice and started his car.

3 Most guests left the party at the same time. There were quite a number of people milling about the carpark area and others were walking out of the carpark and along a road. It was dark and the road was wet from earlier rain.

4 Franklin drove to the gateway of the football ground and then turned right into Richard Street. Witness statements indicated that, as the appellant turned into Richard Street, he attempted to do a burn-out, slowed down considerably, then sped up again and fishtailed down the road. Many people were walking along the road on their way home or to another party and observed Franklin's driving. Within approximately the next 100 yards, he was observed continuing to drive in a 'hoon' like manner - revving the engine, spinning the wheels, fishtailing down the road, screeching to a halt and doing another burnout. He lost control of the car and struck a water drain. Having regained control, he fishtailed and sideslipped further until he again lost control at a speed greater than the legal limit of 50 kilometres per hour. At this point, he struck four pedestrians, two of whom died and two sustained very serious injuries.

5 Glenda May Thomson, aged 49 years at the time of the collision, died at the scene. Her sister, Michelle Dawn Hurst, aged 47 years, sustained life threatening injuries at the scene and died in hospital some days later. Tara Wells-Thomson, the daughter of Glenda May Thomson, the niece of Michelle Dawn Hurst and aged 24 years, sustained severe physical and psychological injuries. As to the physical injuries, she sustained severe fractures to both her left and right ankles, multiple soft tissue injuries involving both hands and she requires extensive ongoing treatment. She has difficulty walking and standing which has caused her to be unable to participate in any of her work or leisure activities and will impact upon her employment as a horticulturist. Her psychological injuries are detailed in the psychological assessment report. They are significant and extensive. Scott Edwards, the boyfriend of Tara Wells-Thomson, aged 29 years at the time of the collision, sustained a swollen jaw, an injury to his right forearm, grazing to his shin and ankles and a laceration to the inside of his mouth. Several victim impact statements by the family of the four victims were tendered to the sentencing judge. They detail the devastating and continuing impact of the collision and the loss of their loved ones.

6 As can be imagined, there was much yelling and screaming at the scene. Police would later locate jewellery, clothing and personal effects strewn over several metres, demonstrating the force of the impact. Franklin was uninjured in the collision. The damage to his vehicle was a smashed windscreen, damage to the bonnet, some of the panels and a tyre. He was observed getting out of the car at the scene and using a mobile phone, presumably as stated in his record of interview, attempting to contact emergency services. He then returned to his car, left the scene and drove to the carpark which he had exited only a short time earlier. In the record of interview, Franklin said he was shocked and confused and wanted to move the car out of the intersection. The damage to the windscreen was such that it was necessary for Franklin to wind down, and put his head out of, the driver's side window to see the road ahead. The damage to the vehicle indicates that it would not have moved easily or quickly. He remained in the vicinity of the carpark until the police arrived.

7 At the time of the collision, Franklin was 28 years old. At the plea on sentencing, several witnesses, whom the sentencing judge found to be impressive, gave evidence in support of Franklin, stating that he was a person of good character, from a respected family and he contributed to the community through sporting clubs. He had achieved much from an early age. Having completed his apprenticeship, he bought his own air-conditioning business and employed several staff. He had no significant criminal history, but admitted a prior speeding fine that he had incurred approximately six and a half years earlier, which had led to a disqualification of his licence. In relation to the collision, he made admissions to the police, demonstrated genuine remorse and pleaded guilty at the earliest opportunity, saving the victims the trauma and delay of a trial.

8 The sentencing judge accepted Franklin had no intention of drinking excessively on the night of the collision and that the physical activity he had undertaken during the day would have fatigued him and may have influenced his level of intoxication.

9 Franklin pleaded guilty in the County Court at Latrobe Valley to a total of four counts: two counts of culpable driving, contrary to s 318 of the Crimes Act 1958 (counts 1 and 2), each carrying a maximum penalty of 20 years; and two counts of negligently causing serious injury, contrary to s 24 of the Crimes Act 1958 (counts 3 and 4), each carrying a maximum penalty of 5 years.

10 On 27 February 2007, the appellant was sentenced to seven years' imprisonment for each of counts 1 and 2, two years and six months' imprisonment in relation to count 3, and nine months' imprisonment for count 4. Three years of count 2, nine months of count 3 and three months of count 4 were ordered to be cumulative upon count 1. This resulted in a total effective sentence of 11 years' imprisonment. A non-parole period of 7 years was imposed. Further, in relation to counts 1 and 2, the learned trial judge ordered that the appellant's driver's licence be cancelled and he be disqualified from driving for a period of eight years. The appellant was also fined $500 for the summary offence of driving a motor vehicle while exceeding the prescribed concentration of alcohol in the blood, contrary to s 49(1)(b) of the Road Safety Act 1986.

11 The appellant now appeals against sentence on the following grounds:

The individual sentences on counts 1 and 2, the orders for cumulation, the resulting total effective sentence and the non-parole period are manifestly excessive, crushing, and in breach of the totality principle and section 5(3) of the Sentencing Act 1991;

The learned trial judge erred in giving excessive weight to general deterrence;

The learned trial judge erred in his approach to cumulation; and

The learned trial judge erred with respect to his approach to the period of licence disqualification imposed.

12 Cases of culpable driving continue to come too frequently before the courts.[1] What is so striking about these cases is that one moment in time can have such devastating consequences. As already observed, culpable driving is punishable by 20 years' imprisonment. Such a severe maximum penalty reflects the gravity of the offence and the culpability of the perpetrator.

13 As noted by the Court of Appeal in R v Gany,[2]

Serious driving offences frequently involve offenders who are of generally good character and who have excellent prospects for reformation. No-one likes sending such people to gaol but there has been much publicity about the consequences for those who choose to drive their motor vehicles in a criminally negligent or reckless manner causing serious injury or endangering other members of the public. This Court has said on numerous occasions, frequently when dealing with offences of culpable driving and negligently causing injury, that those who put lives at risk through grossly negligent driving can expect to receive heavy penalties influenced by the sentencing principle of general deterrence. In such circumstances, sound prospects of rehabilitation will not lead to any significant amelioration of the prominence of general deterrence in the sentencing process. Denunciation and general deterrence must be at the forefront of the sentencing synthesis.[3]

14 On appeal, this Court is constrained by various principles, including that the sentencing discretion will not be reopened unless the sentence below is affected with some error.[4]

15 As said in Taylor,[5] an appellate court will:

look at the sentence imposed by the trial judge, and unless it appears that he has made a mistake as to the facts, or has acted on an erroneous principle of law, or has taken into account some matters which should not be taken into account, or has failed to take into account matters which should have been taken into account, or has clearly given insufficient weight, or excessive weight, to some matter taken into account, or unless the sentence is obviously - not merely arguably - too severe or too lenient, it will not interfere. [6]

16 In sentencing, previous cases provide only some guidance to the case at hand as each must be determined on its own facts. That said, the frequency with which these cases come before the courts leads to the drawing of comparisons of the sentences imposed.

17 The sentencing synthesis is the balancing of many factors and, as the sentencing judge in this case said, 'whatever sentence is imposed will almost certainly be regarded by the families of the deceased as too light and by the family of the accused as too high.'

18 In this case, the sentencing judge rightly considered the circumstances of the incident, the consequential fatalities and injuries and the personal circumstances of the accused.

19 His Honour made findings that the accused had been told by others not to drive and had a blood/alcohol level of three times the legal limit; and, that the accused drove irresponsibly and had lost control of the car on an occasion just prior to the fatal incident. His Honour found that the circumstances of the offending were not a 'momentary aberration' but that the accused had made 'more than one decision' during the course of the approximate 100 yards covered from when he commenced driving to the point of collision. His Honour summarised the incident as 'drunken hoon driving' and highlighted that the accused was 28 years old at the time, 'not 19'. His Honour emphasised the victim impact statements and that, as with any case such as this, the victims go beyond the immediate victims and their families and extend to the whole community.

20 His Honour further identified a substantial custodial sentence was inevitable, with general deterrence paramount, but also specific deterrence given a prior driving conviction.

21 The personal circumstances of the accused and the character witnesses on his behalf were taken into account. Rehabilitation was high and risk of reoffending was low. Whilst the sentence was to reflect the seriousness of the offending, the sentencing judge imposed a lower minimum term than he would have otherwise, given the character evidence.

22 Whilst it was not specifically highlighted in the sentencing judge's reasons, the sentence must also reflect that multiple victims were involved.

23 The individual sentences imposed on counts 1 and 2 reflect the gravity of the offences, Parliament's intention and the community's expectation that such offences be dealt with sternly. The imposition of a term of seven years on each count is not outside the range or incongruous with current sentencing practices.

where multiple deaths ensue, due regard must be paid to the principles of totality and to the fact that the multiple deaths arose from a single course of driving conduct.[7]

So long as the cumulation does not offend the principle of totality it is ...properly within the exercise of a sound discretion to recognise the fact that the culpable driving has caused multiple deaths by cumulating a sensible portion of the sentence imposed for one offence upon the sentence imposed for the other.[8]

The courts have ... recognised that the circumstances of culpable driving will vary and courts should take account of the individual circumstances of each case. With respect to cumulation, it is important that each death be adequately recognised, in both the overall sentence and the non-parole period.

26 The order for cumulation must also appropriately reflect the circumstances. As Winneke P said in R v Whittaker,[10]

I would not suggest that in every case of culpable driving causing multiple deaths the judge will be bound to order cumulation. In the long run the question will often be whether the total effective sentence is manifestly inadequate to meet the circumstances of the case. [11]

27 This statement is equally applicable to the consideration of whether the sentence is manifestly excessive.

28 In Johnstone,[12] I analysed the sentences imposed in relevant cases involving multiple victims. I referred to cases involving two deaths which attracted total effective sentences ranging between six years and six months' imprisonment and nine years' imprisonment.[13] In a case involving three deaths, a total effective sentence of 12 years' imprisonment had been imposed.[14]

29 Each of the considerations to which I have referred applies in the case of multiple deaths or serious injuries. The maximum term available is greater subject always to orders for cumulation not offending the principle of totality.[15] The correct approach is to cumulate a "sensible portion".[16] General deterrence is of paramount importance. I do not consider that the sentencing judge gave it excessive weight. Two people were killed and two were seriously injured, by a grossly negligent and intoxicated driver, in one collision.

30 In this case, I consider that the cumulation order did not give due weight to the principle of totality and resulted in a total effective sentence which was manifestly excessive. Eleven years' imprisonment, in the circumstances of this case, having regard to the age, history and background of the appellant is in my view a crushing sentence.

31 A crushing sentence 'connotes the destruction of any reasonable expectation of useful life after release'[17] and:

is generally conceived of as one that is imposed in such a way that it would provoke a feeling of helplessness in the applicant if and when he is released or as connoting the destruction of any reasonable expectation of useful life after release.[18]

32 In the circumstances, I consider that this was such a sentence. The nature of imprisonment and its impact on many offenders in culpable driving cases may often be relevant. Frequently, the offenders are from a good background and are meaningful contributors to the community. They are often young, stable, employed and lack any substantial relevant prior offending, or any prior offending at all. The individuals through a brief, often inexplicable error, destroy the lives of others and ruin their own. Everyone is damaged. Ultimately, the offender ends up in prison with all its deprivation and hardship. This factor is a critical aspect of general deterrence. One foolish mistake results in a stern sentence of imprisonment. However, adherence to general deterrence ought not result in a sentence that would be crushing[19] which I consider arises here. Hence, the sentencing discretion is re-opened.

33 It was acknowledged by counsel for the appellant that moderate cumulation for offences involving multiple victims can result in those victims or their families feeling that they are less important than the victim of the base count. It was submitted that a shift in the calculation of cumulation would assist in providing what counsel for the appellant referred to as 'victim equality'. It was submitted that a partial period of the sentence on the second count should be cumulated with a partial period of the head sentence, as opposed to with the full sentence as currently occurs. So, for example, in a culpable driving case with two fatalities, a sentence of five years may be imposed on each count. Then, rather than cumulating two years of the second count on the base count (making a total effective sentence of seven years), three and a half years of the second count would be cumulated on three and a half years of the base count, still resulting in a total effective sentence of seven years but with greater 'victim equality'. Whether such a course is permissible, I need not decide as it has not been the subject of full argument.

34 The appellant was disqualified from driving for eight years. Effectively, the disqualification will operate for 12 months after the appellant's earliest release. The principles and considerations surrounding licence disqualification are similar to those for other sentences.

35 In determining for how long a licence is to be cancelled, this Court has held:

the Court should have regard to two separate considerations. They are first the need for the period of cancellation itself to serve its part as a punitive element in the context of the total punishment imposed, and secondly, the need to provide protection to the public from the dangers of possible future lawless motor vehicle driving by the offender. Those two considerations have each to be given such weight as the Court considers is appropriate bearing in mind it is their combined effect which will determine the ultimate length of the disqualification.[20]

36 Imposing a disqualification period only for the period of imprisonment adds little to the punishment of the offender and nothing to the protection of the public, if it is determined that such protection is required. It is only after release that 'the disqualification will 'come home' to the offender'.[21] It will be a matter to be assessed in each case in accordance with sentencing principles including due consideration of the rehabilitation of the offender.[22] Given that disqualification is mandatory in culpable driving cases, the legislature must have intended for it to continue beyond the term of imprisonment where the sentencing court thought it appropriate.[23]

37 That said, the disqualification should not inhibit the offender's rehabilitation too greatly,[24] particularly where it is determined that there is no need to protect the public.[25] That rehabilitation is heavily dependent upon the offender's ability to obtain employment. When the appellant leaves prison, and due to the nature of his trade, he will doubtless need to have a driver's licence to gain employment which in turn would be important to his rehabilitation.

38 In this case, the appellant's licence was cancelled as a condition of his bail and as such it may be considered that this element to the punishment has to some extent been endured.

39 The sentencing judge found the appellant to be genuinely remorseful, with good prospects of rehabilitation and employment after imprisonment. I do not consider there is a high risk of re-offending. Therefore given the particular characteristics and circumstances of the appellant, the pre-sentence disqualification, the significant period of imprisonment and the importance of facilitating the appellant's rehabilitation, it may well be arguable that the appellant should be allowed to apply for his driver's licence upon release on parole. However, the question is whether error has been made out. In my view, no error is revealed. The sentencing judge was entitled to order as he did. I do not find this ground made out.

40 I would therefore allow the appeal and re-sentence the appellant as follows. As on the original sentence, on counts 1 and 2, I would impose 7 years' imprisonment. On count 3, I would impose 2 years and six months' imprisonment and on count 4, 9 months' imprisonment.

41 I would further order that two and a half years of count 2 and three months of count 3 be served cumulatively on count 1. The term imposed on count 4 would be served concurrently. This makes a total effective sentence of nine years and nine months' imprisonment. I would impose a non-parole period of five years' and six months.

42 For the reasons given by the Chief Justice, I would allow the appeal against sentence and re-sentence the appellant as her Honour proposes.

43 For the reasons given by the Chief Justice, I would allow the appeal against sentence and re-sentence the appellant as her Honour proposes.

[1] See Director of Public Prosecutions v Johnstone [2006] VSCA 281; (2006) 16 VR 75 ('Johnstone').

[2] [2006] VSCA 148; (2006) 163 ACrimR 322; See also R v O'Connor [1999] VSCA 55, [19].

[4] Griffiths v R [1977] HCA 44; (1977) 137 CLR 293, 309-310.

[5] R v Taylor and O'Meilly [1958] VicRp 46; [1958] VR 285; see also R v Thomas [1999] VSCA 204; Fernandez v DPP [2002] VSCA 115; (2002) 5 VR 374.

[7] DPP (Vic) v Solomon [2002] VSCA 106; (2002) 36 MVR 425, 429.

[8] Ibid, citing R v Guariglia [2001] VSCA 27; (2001) 33 MVR 543, [20].

[9] [2006] VSCA 281; (2006) 16 VR 75 [14]-[15].

[10] [2002] VSCA 162; (2002) 5 VR 508.

[12] [2006] VSCA 281; (2006) 16 VR 75, [22].

[14] DPP v Church [2005] VSCA 8.

[15] R v Guariglia (2001) VSCA 27, [7].

[17] R v Yates [1985] VicRp 3; [1985] VR 41.

[18] R v Beck [2005] VSCA 11, [19] (citations omitted).

[19] R v Yates [1985] VicRp 3; [1985] VR 41; R v Beck [2005] VSCA 11.

[20] R v George (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 21 September 1989, Crockett, O'Brian and Gray JJ).

[21] R v Birnie [2002] VSCA 155; (2002) 5 VR 426, [30].

[22] Sentencing Act 1991 ss 5, 89.

[23] Sentencing Act 1991 s 89; R v Wootton [2002] VSCA 165, [27].

[24] R v Tantrum (1989) 11 Cr App R (S) 348, 349; R v Tran [2002] VSCA 52; (2002) 4 VR 457.

[25] R v Bazley (Unreported, Supreme Court of Victoria, Court of Appeal, 21 August 1997, Phillips CJ, Batt JA and Vincent AJA).