R v Guariglia [2001] VSCA 27

11. The driving as described by some 17 people called to testify to it can I think only be described as appalling. It involved travelling at high speeds estimated at being in excess of 100 kilometres per hour, fast cornering, loud revving and fish-tailing, veering from lane to lane, driving on the incorrect side of the road and overtaking other vehicles on both left and right hand sides in complete disregard of road rules.

14. One witness gave evidence that she was crossing Lincoln Road and was in the centre when the applicant's car appeared some 160 metres away. She judged it safe to continue, but the applicant's car bore down on her at such speed that she had to jump out of its way to avoid being run down. The driving so described was of such a nature that it was inevitable that when confronted with a vehicle which had entered Lincoln Road from his right and was slowing down to make a left hand turn into Florence Street, the applicant had braked and swerved at the last moment, lost control of his car and ploughed into the two unfortunate pedestrians. The car ended up wedged in a hedge adjoining the footpath. Other cars coming towards the applicant's vehicle were forced to take evasive action to avoid colliding with it.

17. As the judge was later to observe to the applicant:

"In this day and age it is almost impossible to understand how anybody can drive a motor vehicle at the excessive speed and in the manner in which you drove in this built-up area".

21. In the face of this considerable body of evidence the applicant stood mute at his trial. In his record of interview with police he said he had suffered injuries in the accident and could remember nothing about it. Before sentence he admitted 162 prior convictions from six court appearances spanning a period from November 1988 to October 1993. In those prior convictions were included six for driving whilst disqualified, one for driving whilst unlicensed and one for driving in a manner dangerous to the public. In the face of the record his Honour was I think justified in saying when imposing sentence that:

"Your prior convictions against the road laws in my view show a flagrant disregard for the laws of this State. One might be forgiven for thinking that your conduct on this occasion as in the past demonstrates a contempt for the law and thoughts that such laws do not apply to you".

25. Having heard a plea in mitigation of penalty in the course of which character witnesses were called, his Honour imposed a sentence of six years in respect of each offence of culpable driving, and accumulated three years of the sentence imposed on Count 2 on the sentence imposed on Count 1. The total effective sentence was accordingly one of nine years. His Honour directed the applicant to serve a minimum term of five years and two months before becoming eligible for parole. He also directed that the licence of the applicant be cancelled and that he be disqualified from obtaining any further licence for a period of ten years.

28. It would seem tolerably clear from his sentencing remarks that in fixing the low non-parole period which he did, his Honour was influenced not only by mitigating factors personal to the applicant which had been placed before him on the plea, but had made a discount for four months' sentence which had been served by the applicant for unrelated offences whilst on remand for the culpable driving offences. In doing so, it would seem that his Honour was being unduly generous to the applicant[1].

31. The applicant initially applied for leave to appeal against both the convictions and the sentences. He has abandoned his application for leave to appeal against conviction and his application has thus been confined to the sentences imposed. The grounds upon which the application is made are twofold: (a) that the sentence imposed was manifestly excessive and (b) that the judge erred in ordering the extent of cumulation reflected in the total effective sentence. No complaint has been made about his Honour's orders for disqualification.

34. It became obvious in the course of argument that the real complaint of the applicant was that excessive cumulation had produced a total effective sentence which was manifestly excessive. Mr Mullaly, who appeared in this Court on the applicant's behalf, did not however shy away from a submission that the six years imposed on each count was itself manifestly excessive, contending that the circumstances which I have described were not a grave example of the crime of culpable driving. In its essence, however, his substantial argument was that the total sentence of nine years was disproportionate to the gravity of the offences of which the applicant had been convicted.

37. Whilst I agree that the total head sentence is a high one, I remain unpersuaded that in this case it was beyond the range available to the learned judge. The evidence accepted by the judge demonstrated a course of driving which was clearly outrageous and exhibited a wilful disregard for the safety of the public who were lawfully using the roads along which the applicant was driving. It was contended that the applicant's conduct did not fall within the upper ranges of culpability when compared with other cases of culpable driving and that at least to some extent the accident had been contributed to by the actions of the driver who had slowed down to enter Florence Street.

40. In support of these submissions Mr Mullaly submitted that it was not a case where alcohol or drugs or showing off were involved. None of these factors however can in my view conceal the ultimate truth that this was a very serious case of culpable driving emanating from the applicant's blatant disregard for the life and safety of others using the road. Although his Honour was prepared to accept that the presence of the car which had come out of Woolley Street and was turning into Florence Street had probably distracted the applicant, it was obvious, as he said, that the jury must have been satisfied beyond reasonable doubt that it was the applicant's conduct which was a substantial and operative cause of the accident.

43. The description of the driving given upon trial makes that conclusion self evident. In one sense the absence of an explanatory factor such as alcohol serves to make the course of conduct worse because it can only serve to confirm the view that the conduct was the product of a wilful disregard for the road laws and the safety of those using the highway. The driving of the applicant was remarkably similar to conduct which has been observed by this Court to exist in cases where drivers have been affected by substances consumed, and where sentences of six years' imprisonment have been imposed for a single count of culpable driving. I refer, for example, to Musson[2] and Taylor[3].

46. The individual sentences here imposed were less than one third of the maximum sentence available and having regard to the applicant's conduct were in my opinion well within the range open to his Honour, particularly having regard to the applicant's previous driving record and to the fact that comparable penalties imposed by courts for similar offences have come after pleas of guilty which are bound to attract a sentencing discount.

49. Accordingly, I would dismiss ground 1 of the application which was the basis of the submission that the sentences imposed on Counts 1 and 2 were manifestly excessive. As I have previously indicated, the essence of the submission made on this application was that the exercise of the judge's discretion in respect of cumulation had miscarried because by cumulating 50 per cent of the sentence upon Count 2 on the sentence imposed on Count 1 the total effective sentence thus produced, namely nine years, was manifestly excessive in the sense that it was disproportionate to the gravity of the offences of which the applicant had been convicted.

52. It is contended that the imposition of a term of nine years for the offence of culpable driving, notwithstanding that multiple deaths have occurred, is simply too much and is the highest penalty for culpable driving imposed in this State. It was submitted that in determining whether the total effective sentence was manifestly excessive the Court was entitled to have regard to sentences imposed in other culpable driving cases, in particular the case of Scholes[4] in which the Court on a Director's appeal had increased penalties of five years and nine months for each of two counts of culpable driving to eight years' imprisonment on each count and ordered those sentences to be served concurrently.

55. There can be no doubt that for its own reasons the case of Scholes was a very bad example of culpable driving by an accused who had a prior conviction for the same offence. However, as counsel recognises, comparisons between penalties imposed for this type of offence are rarely instructive because it is an offence which is shaped by conduct not easily to be compared. The sentences imposed upon Scholes were, for example, imposed when the maximum penalty available was 15 years. They were, as I have said, sentences imposed upon a Crown appeal which led the Court to note that but for the status of the proceeding the applicant would be regarded "as deserving an appreciably higher sentence" than the eight years proposed for each offence in that case and this even in the face of pleas of guilty.

58. Mr Mullaly submitted here that although his Honour was invested with a discretion to cumulate some portion of the sentence upon Count 2 upon the sentence imposed on Count 1, the degree of cumulation ordered demonstrated that there had been a failure to temper cumulation by reference to the fact that the deaths had resulted from the same acts or omissions constituting the relevant culpable driving. This failure so it was contended had produced a total head sentence which offended principles of totality and proportionality. Counsel referred us to passages in the decision of the Court of Criminal Appeal in Penn[5], and in the decision of this Court in Director of Public Prosecutions v. True[6], which counsel said supported the submission that the degree of cumulation ordered by the trial judge in this case was excessive.

61. Whilst I would agree with counsel that the judge must be careful to ensure that orders for cumulation do not produce a total sentence which infringes principles of totality, I am unable to agree that the judge's discretion is otherwise inhibited in the case of culpable driving causing multiple deaths or injury. In many cases which have come before this Court of which Musson and Taylor are examples, the same driving has caused death to one victim and injury to another, leading to sentences imposed for culpable driving causing death on the one hand and negligently causing serious injury on the other. Cumulation has been ordered of a portion of the sentence for the latter offence upon the sentence for the former, for the purpose of recognising that the two offences have been committed against two different victims. In such cases, as this Court has noted previously, cumulation has been constrained merely because of the inappropriately low maximum penalty prescribed by the legislature for the offence of negligently causing serious injury, a penalty which itself, I think, needs to be revised.

64. No different principle is involved, in my view, where the offences have resulted in multiple deaths, save that the maximum penalties available are much greater. So long as the cumulation does not offend the principle of totality it is, as I see it, 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.

67. In this case the cumulation has produced a total effective sentence of nine years. Whilst, as I have acknowledged, that is a high sentence it is not in my view a manifestly excessive one, having regard to the high degree of culpability of the applicant's driving, the need for both special and general deterrence to be reflected in the sentences and the absence of matters of mitigation capable of significantly influencing a reduction in the applicant's head sentence.

70. Much was made before the trial judge and, indeed, this Court of the fact that the applicant will be serving his sentence in protective custody because of matters in his criminal history which are totally unrelated to these offences. His Honour, as I see it, gave as much weight to those matters as they were entitled to receive. The head sentence which he ultimately imposed was, as he said, a stern one. However,

as he quite properly observed, it had to be so not only to deter the applicant, but others who might be tempted to engage in conduct similar to that exhibited by the applicant in this case.

74. I agree with respondent's counsel that the sentences imposed reflect no error in sentencing principle, nor are they beyond the range legitimately available to this experienced judge in the circumstances of this case. I would for those reasons dismiss the application.

86. The formal order of the Court is that the application for leave to appeal against sentence is dismissed.

[1] cf. R. v. Broad [1999] VSCA 149; [1999] 3 V.R. 31.

[2] [1997] 1 V.R. 656.

[3] [1999] VSCA 206.

[4] [1999] 1 V.R. 37.

[5] (1994) 19 M.V.R. 367 at 368-9.

[6] (1999) M.V.R. 151, [1999] VSCA 8 at [19].