R v Harding [2008] VSCA 124

1 I agree with Lasry AJA, for the reasons which his Honour gives, that the appeal should be allowed but only so as to impose a different sentence on count 2; and, in consequence, a different total effective sentence. I add this. His Honour is surely correct in saying that an accused person - and, in the event of an appeal, this Court - must not be left uncertain whether a potential sentencing fact was found at all, whether it was found to the appropriate standard, and what impact it had upon sentence. Considered by reference to that template, the judge's remarks which founded the first and second grounds of appeal just met the minimum requirement.

2 I have had the benefit of reading in draft the reasons of Lasry AJA. I agree with his Honour's proposed disposition, for the reasons he gives.

3 On 15 August 2007 the appellant pleaded guilty to one count of failing to stop after an accident contrary to s 61(1)(a) of the Road Safety Act 1986 (Vic)[1] and two counts of possession of a drug of dependence contrary to s 73(1) of the Drugs Poisons and Controlled Substances Act 1981 (Vic).[2] He admitted prior convictions. In addition, he pleaded guilty to two further counts of driving a motor vehicle while his licence was suspended and agreed that the matters be dealt with in the County Court.[3]

4 After hearing a plea in mitigation of sentence, the learned sentencing judge imposed sentence as follows:

Possession of a drug of dependence being amphetamine

5 In relation to the two counts of driving while the appellant's licence was suspended, the appellant was convicted and sentenced to six months' imprisonment on each.

6 The sentencing judge made the following orders in relation to cumulation: Count 1 was the base sentence and her Honour directed that one month on Count 2 and three months on each of the counts of driving whilst licence was suspended were to be served cumulatively upon the sentence for Count 1. That resulted in a total effective sentence of two years and seven months. Her Honour fixed a period of 20 months before the appellant was eligible for release on parole.

7 Her Honour also ordered that on Count 1 the appellant's licence was cancelled and he was disqualified from obtaining a licence for four years from the date of sentence.

8 At about 7.50 pm on Friday, 18 August 2006, the appellant was driving his Ford Falcon vehicle in High Street, Thornbury. The vehicle was owned by another person and was on loan to him. As at 18 August 2006, the appellant's licence had been suspended for the offence of exceeding the speed limit by 35 kmh or more but less than 40 kmh.

9 Travelling in a southerly direction in High Street, the appellant's vehicle struck a pedestrian, Michael Jones. The result of the collision from Mr Jones' point of view was that he suffered very substantial injuries. They included multiple facial and cranial fractures, a broken clavicle, two broken ribs, severe lacerations to the face and head, internal organ bruising, internal bleeding and abrasions over his body. He remained hospitalised for five days before his release. The sentencing judge was informed that Mr Jones still suffered the effects of that collision. In a victim impact statement filed with the Court, Mr Jones indicated that apart from the physical injuries, he suffered from emotional trauma and was inhibited both in relation to the playing of sport and other recreational and personal activities.

10 After the collision, the appellant left the scene of the accident in the damaged vehicle and drove immediately to a service station in Fairfield where he used a hammer to smash a hole in the windscreen so that he could see the road and then used a vacuum cleaner at the service station to remove broken glass from the interior of the vehicle. He then rang a windscreen replacement organisation and, using a false name and false registration number of the vehicle, requested that someone attend and repair the windscreen. That occurred. The appellant then in the following days attended at a spare parts establishment where he replaced parts of his vehicle which had been damaged in the impact with Mr Jones, including a windscreen wiper and a right-hand indicator assembly.

11 The appellant was arrested on Tuesday 22 August 2006 at premises at Lalor and when arrested was found to be in possession of a small amount of white powder which, upon analysis, was found to be amphetamine. In the Ford Falcon vehicle a plastic bag containing 27.7 grams of cannabis and a cigarette packet containing a further 0.9 of a gram of cannabis and a set of scales and a quantity of small bags was also located.

12 The appellant was interviewed on 22 August 2006 and admitted to driving the Ford Falcon on 18 August 2006 but claimed that he was unaware that he had struck a pedestrian. He said he believed he either collided with a car in front of him or struck an object on the back of a truck or that something had been thrown onto the windscreen of the vehicle. The only evidence about the amount of amphetamine in his possession also comes from the record of interview when he suggested the amount was about 2 grams. I will return to this topic shortly.

13 There are three grounds of appeal against the sentence:

(1) The learned sentencing judge erred in taking into account in sentencing the appellant on Count 1 the consequences of the injuries sustained by the pedestrian struck by the appellant's car.

(2) The learned sentencing judge erred in taking into account in sentencing the appellant on Count 1 her finding that it was highly likely that the appellant was under the influence of alcohol or drugs at the time of the accident.

(3) The learned sentencing judge imposed a sentence that was manifestly excessive.

Ground 1 - The Consequences of the Injuries Sustained by Mr Jones

14 Section 61 of the Road Safety Act 1986 (Vic) requires that:

(1) If owing to the presence of a motor vehicle an accident occurs whereby any person is injured or any property (including any animal) is damaged or destroyed, the driver of the motor vehicle -

(b) must immediately render such assistance as he or she can;

15 The section goes on to also require that that person must immediately render such assistance and must at the scene give his or her name and address and the name and address of the owner of the vehicle.

16 Section 61(3) provides:

(a) as a result of an accident involving a motor vehicle a person is killed or suffers serious injury; and

(b) the driver of the motor vehicle knows or ought reasonably to have known that the accident had occurred and had resulted in a person being killed or suffering serious injury; and

(c) the driver of the motor vehicle does not comply with the requirements of paragraph (a) or (b) of subsection (1) in relation to the accident -

the driver is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum) or a level 5 fine (1200 penalty units maximum).

17 This is not an absolute offence. The appropriate mental element is required to be proved for an offence under s 61(3) and that element is as described by s 61(3)(b).[4] Thus, by his plea of guilty the appellant admitted that an accident occurred in which he was involved and that he knew or ought to have known that the victim, Mr Jones, had suffered serious injury and that he failed to immediately stop the vehicle.

18 On 5 May 2005, in the Second Reading Speech in the Victorian Parliament in support of the Bill to increase the penalty for this offence from 2 years' to 10 years' imprisonment, the Hon Peter Batchelor, Minister for Transport, said:

The Victorian community has been rightfully concerned about recent cases where drivers have left the scene of an accident in which a person has been killed or seriously injured without rendering assistance. Failing to stop in these circumstances is a despicable and cowardly act. The Bracks government has listened to community concerns about this very serious issue, and as a result the penalties for drivers involved in an accident in which a person is killed or seriously injured who fail to stop and render assistance will be substantially increased.

The maximum penalty of 10 years jail is between the maximum penalties that apply to the offences of dangerous driving causing death or serious injury (5 years) and culpable driving causing death (20 years).

This will help to ensure that a person who suspects that he or she may be charged with one or other of these offences (for example because he or she is affected by alcohol or illegal drugs when the accident occurs) will no longer have an incentive to escape from the scene.

19 Counsel for the appellant submits that the sentencing judge impermissibly took into account the consequences for the victim with particular reference to his disabilities and continuing problems. Evidence was given about this during the plea and it is submitted that the continuing consequences appeared to be foremost in her Honour's mind.

20 In particular, the appellant relies on the following passage from the sentencing judge's reasons for sentence at paragraph 22:

There is a Victim Impact Statement in this matter. I have read that and take its contents into account. I accept that the victim suffered considerably in the manner described in that statement as a result of your actions. He refers to the physical injuries suffered which included a fractured skull, a large cut to his forehead and cuts to his eyebrow and cheek, ear, tongue, lips, arms, wrists and a fractured collarbone, that he had broken ribs and bruising to his right hand side back, and also swelling. He had a cut spleen, suffers with headaches, dizziness, short term memory loss and hearing loss, concentration loss also. He has also lost his bladder control. Since this collision he has suffered emotional trauma. He is fearful of other vehicles and being a passenger in a vehicle. He is unable to play the sports that he used to prior to the collision as he gets very tired easily. The accident has affected his personal life in a way described also in the Victim Impact Statement. He has difficulty controlling his emotions, becomes angry, irritable and moody. His life has slowed down and he is unable to do the things he used to do. He is unable to work, he has put on weight. He no longer feels motivated. He takes medication on a daily basis.

21 It is argued that it was significant that the appellant was not convicted of any offence in relation to the cause of the injuries to Mr Jones. However, the sentencing judge referred to the injuries suffered by Mr Jones when sentencing the appellant despite the fact that the consequences for the victim of the accident had no relevance to the sentence because they were not injuries which could be related to the driving away from the scene. Counsel relied on the judgment of this Court in R v Newman & Turnbull,[5] suggesting that by referring to the injuries suffered by the victim, Mr Jones, the principles for which that case stands had been breached. During the course of argument, counsel for the appellant agreed with Ashley JA that the essential point was that once the appellant had pleaded guilty to the offence there was no need to investigate further so far as the serious injury was concerned. Further, the only consequences which should be considered by the sentencing judge were the consequences of leaving the scene, or, indeed, failing to stop, because that is the charge he faced.

22 In my opinion, the principles in R v Newman & Turnbull do not readily apply given that in that case the prevailing principle was that '... a circumstance of aggravation which would have warranted a conviction for a more serious offence' cannot be taken into account.[6] The question here is whether the serious injury done to the victim could properly be taken into account in determining the sentence to be imposed on the appellant for this offence. Unlike R v Newman & Turnbull, and more like R v Sessions,[7] we are here concerned with the one act of the appellant. The question is whether the extent of the injuries is relevant in circumstances where the driving which caused them is not separately said to be criminal and the offence is simply (though significantly) a failure to stop the vehicle.

23 Counsel for the appellant referred us to the judgment of this Court in Josefski v Donnelly,[8] which was an appeal against orders for compensation made pursuant to s 85B of the Sentencing Act 1991 (Vic) in circumstances where the appellant had pleaded guilty to failing to stop his motor vehicle after it was involved in an accident that resulted in the death of James Donnelly, one count being that after the accident he did fail to render assistance to the said James Donnelly, and one count that he did, with his parents, agree to provide false information to the police in an attempt to pervert the course of justice. The point at issue in that case was the quantum of the orders, said to be so substantial as to be penal and being for an amount which did not take account of the financial circumstances of the appellant. In particular it had been argued by the appellant in that case that the compensation ordered was for an offence for which the appellant had not been convicted. In the course of rejecting that submission, this Court observed:[9]

True it is that the appellant's proven criminal culpability may have been no greater than that of a hit-run driver who leaves a victim with nothing worse than a broken leg. But, as has already been observed, the order for compensation was not to punish the appellant for the extent of his criminal liability. It was to compensate the respondents for the effects on them of the appellant's offences.

24 In my opinion that observation does not advance the appellant in this case very far at all. It is thoroughly artificial to suggest that the only injuries which could be taken in to account in sentencing an offender for this offence would be those which could be directly attributable to his failure to stop. Such a submission misconceives the purpose of the section and the stated intention in the Parliament. The object of the section is to force drivers to stop when particular events occur. If the particular event, as in this case, is a serious injury to a pedestrian, then the extent of the injuries is relevant to assessing the seriousness of the offence and the extent to which a failure to stop represents a failure to properly discharge the obligations of drivers in such a situation. However, there are limits. Given that the driving itself was not said to be criminal, it is my view that the post-accident consequences of the injuries are not relevant for the purposes of sentencing for this offence. Therefore, in her Honour's reasons for sentence, the portion of her remarks (quoted above) which commence with the words, 'Since this collision he has suffered emotional trauma ...' to the end of paragraph 22 would not be directly relevant to the sentence as they do not go to the culpability of the failure by the appellant to stop his vehicle. The question is whether her Honour has impermissibly used that information as a circumstance of aggravation. I do not consider that question can be resolved in favour of the appellant's argument simply by the fact that the evidence was referred to. Whilst there is some lack of clarity in the reasoning, in my view, her Honour was doing no more than reciting the narrative that was contained in the material which had been presented to her. Further, there is nothing to indicate that beyond that recitation she relied on those medical and personal consequences to increase the sentence.

25 The appellant also relied on the judgment of this Court in DPP v Josefski,[10] which concerned the same facts as Josefski v Donnelly (above) and dealt with the sentence that had been imposed. In that case the Director of Public Prosecutions appealed against a sentence of 27 months' imprisonment with a non-parole period of 10 months imposed in relation to counts of failing to stop after a fatal accident and render assistance and a subsequent conspiracy to pervert the course of justice.

26 In the course of the judgment of Maxwell P the following appears:[11]

One of the great difficulties of this case is that the anguish experienced by the family were the consequence of the tragic death of their son and brother. This was reflected in the victim impact statements. But, as the sentencing Judge said -

That death, and the loss which followed it, were not suffered as a direct result of the offences before me. To that extent I cannot take into account the material in the victim impact statements.

As noted above, one of the 'particulars' of manifest inadequacy relied on by the Director was that the sentencing judge -

gave insufficient weight to the effect of these offences upon the family members of the deceased person.

As I read the sentencing Judge's remarks, however, his Honour was acutely aware of the effect of the offending on the deceased's family:

[The victim impact statements] also deal with the consequences of your failure to stop and render assistance and of your conspiracy to prevent discovery and proof of the truth. Your behaviour in that regard and its consequences, which are a direct result of these offences, are relevant considerations. The pain and sense of loss suffered has been prolonged and intensified, as the father of the deceased says, and for some years. I do not detail the relevant material here but I have studied the victim impact statements and the effect of your offending in respect of the matters before me has been profound.

I have read the victim impact statements myself. His Honour's characterisation of their content seems to me, with respect, to be entirely accurate. The members of the victim's family have been profoundly affected by the respondent's conduct. I am satisfied that his Honour took those consequences into account, as he was bound to do, in arriving at his decision.

27 The facts of that case were significantly different from the facts before us but the observation of Maxwell P is not inconsistent with the views I have expressed above. In my opinion in paragraph 22 of her Honour's reasons (quoted above), to the extent that the observations go beyond that which was relevant for sentencing purposes, her Honour was simply relating the contents of the victim impact statement in a complete form. There is no indication in the reasons for sentence that her Honour was increasing the sentence imposed on the appellant as a result of those aspects of the injuries suffered by the victim which were beyond direct relevance and it does not appear to me that she has done so given the sentence actually imposed.

28 The Sentencing Act[12] makes provision for distinguishing between those parts of a Victim Impact Statement which are admissible for sentencing purposes and those which are not. Unfortunately, no categorisation of the contents occurred in this case but the view I have reached is that her Honour did not use this evidence impermissibly. This ground must fail.

29 In my opinion if, in a particular situation, a driver causes serious injury to a pedestrian and then leaves the scene of the accident contrary to s 61 of the Road Safety Act 1986 (Vic) because that person considers they are at risk of prosecution as a result of the consumption of alcohol or drugs, the attempt to avoid that risk significantly increases the culpability of the offending. So much is clear from the Second Reading Speech to which I have already referred.

30 The submissions on behalf of the appellant in relation to ground 2 were effectively that the sentencing judge made an error in finding that the appellant was highly likely to have been under the influence 'of something' at the time of the accident. The submission made on behalf of the appellant was that this issue was one which required proof beyond reasonable doubt for the purpose of coming to an adverse conclusion.[13] There is no question that that statement of the requirement for proof of aggravating circumstances is correct.

31 During the course of the plea the appellant gave evidence. That followed discussion between the sentencing judge and counsel about evidence suggesting he had been affected by alcohol or drugs. In his evidence he said that the amphetamine located in his possession by police was for personal use but that he did not use it on a daily basis. He said that he had been using amphetamine since he was 18 years of age, he then being 46 years. He said that the reason he did not stop after the accident was because he did not have a licence and he did not want to get out 'and make a scene and then be arrested by the police'. In particular, when asked by his own counsel whether he had been using drugs on the day of the incident he said, 'No. When the accident occurred I was straight, ...'. The appellant was cross-examined at some length by the prosecutor and his assertion that he had not taken drugs on the day of the incident was not the subject of any challenge.

32 There was also other evidence on this topic which was contained in the depositions to which her Honour referred. That evidence included a description of the telephone call from the appellant to the call taker at Windscreens O'Brien and a witness who observed the appellant apparently after the accident while he was purchasing food, cigarettes and asking for coins for the vacuum with which he cleaned out the vehicle, suggesting that he seemed very drunk at the time and that was concluded in part by the smell on the appellant's breath. Concluding the issue in her reasons, the sentencing judge made the following observations:

In your evidence, you stated you were not affected by any alcohol or drugs on the evening that you hit Mr Jones. I have grave difficulty accepting that. You were, at the time, a user of both amphetamines and cannabis, such being found on you on 22 August 2006 and you acknowledge that you used it in the day previously. There is also some inconsistency in the material about your use of alcohol. It is highly likely you were under the influence of something at the time you hit Mr Jones. Your driving after the accident further supports this conclusion.

33 As the Court observed in the course of submissions in this appeal, a question arises as to her Honour's purpose in including such a paragraph. With respect, she was in difficult territory because the impression is given that a conclusion has been reached adverse to the appellant about his use of alcohol or drugs at the relevant time without an indication that such a conclusion had been reached to the required standard of beyond reasonable doubt.

34 In submitting that the sentencing judge did not use those matters impermissibly in coming to a concluded view about the sentence to be imposed on the appellant, counsel for the Director relies on the fact that later in her sentencing reasons and dealing with a separate issue connected with whether or not the appellant's possession of cannabis and amphetamines was for his own personal use, her Honour observed:

You gave an explanation for having the scales and the plastic bags. I have grave suspicions regarding your account that these drugs were for your own personal use. However, in order to draw an adverse inference in relation to this, I need to be satisfied beyond reasonable doubt. I consider I am being generous, particularly considering the accoutrements found upon you on this occasion but I am prepared to accept the drugs were for your own personal use. (added emphasis)

35 That passage does indicate that the sentencing judge was aware of the standard of proof to be satisfied in order to draw inferences adverse to the appellant in relation to sentence. Be that as it may, in the former case her Honour has separately resolved an important issue adversely to the appellant and has not made it clear that the required standard of proof has been reached. If the conclusion of her Honour to which I have referred in paragraph [32] above had been followed by the words, '... however, although I have such suspicion, I am not satisfied beyond reasonable doubt that that was the case and I do not sentence you on the basis that you were so affected', then no problem could have arisen. An accused is entitled to know clearly on what factual basis he or she has been sentenced.

36 It is appropriate to refer to the judgment of this Court in R v Storey, where the Court identified as the relevant distinction that which is between facts adverse to the interests of the offender and facts favourable to the offender. The Court noted:[14]

Having regard to the matters of principle we have mentioned and to the numerous authorities both in this country and elsewhere to which we were referred we consider that the principles to be applied are those which we have earlier identified, namely the judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt but if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.

37 Still further in the judgment and of particular relevance to this case, the following was stated:[15]

It also follows from the considerations we have just mentioned that we are not to be taken as suggesting that in a case in which a judge does not have to make a finding on a matter which the parties have not expressly or implicitly accepted it will be necessary for the judge to do no more than state in substance that he or she is satisfied of the relevant fact. Nor are we to be taken as suggesting that some particular verbal formula should be adopted by the judge. Of course the judge will have to bear in mind, and apply, the principles which we have set out, but we are not to be taken as saying that the bare fact that the judge does not expressly refer to the relevant standard of proof in the course of sentencing remarks is itself evidence of sentencing error. (Added emphasis)

38 Ultimately, and with some hesitation, I have come to the view that this ground of appeal must fail primarily because, on a different topic, the sentencing judge demonstrated her awareness of the required standard of proof for circumstances of aggravation and because the sentence itself does not appear to reflect a conclusion reached by her beyond reasonable doubt, that the appellant had been affected by drugs or alcohol at the time of driving and failed to stop for that reason. However, I would add this. Not only for the benefit of this Court, but more importantly in fairness to those being sentenced, when an issue of fact has arisen which carries all the hallmarks of a circumstance of aggravation and is being resolved by the sentencing judge not in favour of the accused, that person is entitled to know that the required standard of proof has been met and whether the particular circumstance forms part of the basis for the sentence imposed. That has not occurred in this case.

39 This ground asserts generally that the sentencing judge imposed a sentence that was manifestly excessive. In particularising that ground in the outline of argument and before this Court, counsel for the appellant referred to a number of aspects of the sentence but did not, and could not, complain about the sentence on count 1. The first aspect referred to was the imposition by the sentencing judge of a sentence of four months' imprisonment on Count 2, being the count alleging the possession of a drug of dependence - amphetamine.

40 The sentence imposed was a sentence of four months' imprisonment in circumstances where the appellant had no prior convictions for drug offences, had pleaded guilty to the charge, and the quantity of amphetamine was very small.

41 The only evidence to which we were referred in relation to the quantum of amphetamine was that referred to in answer to Question 348 of the record of interview:

Question: How much would you say is in the bag, weight wise?

42 Counsel for the appellant submitted that the usual way of dealing with an offence of this kind in the Magistrates' Court was to treat the charge as a health issue and impose a small fine. That submission was not contradicted by counsel for the Director, who indeed appeared to accept that the sentence might be regarded as manifestly excessive.

43 It is also relevant to note that the appellant has 66 previous convictions from 33 court appearances. It is an appalling record. Apart from numerous offences of dishonesty, those offences have also included numerous traffic offences including driving whilst licence suspended or cancelled on two previous occasions.

44 However, none of those prior offences include drug offences and in my opinion four months' imprisonment for possession of a small amount of amphetamine is manifestly excessive and in relation to that aspect of the sentence of the appellant the appeal should be allowed.

45 The second portion of the submissions in relation to sentence concern the two summary charges of driving whilst suspended. In relation to those two charges he was sentenced to six months' imprisonment on each. In my view, given the prior history of the appellant, I do not regard these sentences as anything other than appropriate.

46 In my opinion, grounds 1 and 2 of the appeal must fail. Ground 3 should succeed but only relation to the sentence on count 2. In relation to that count, the sentence I would impose would be that the appellant be convicted and discharged. I would not otherwise alter the sentencing judge's orders for cumulation. That would result in a total effective sentence of two years and six months. I would not alter the period required to be served before eligibility for parole.

[1] The maximum penalty for this offence is 10 years' imprisonment.

[2] The maximum penalty for an offence under s 73(1)(a) is 5 penalty units, and the maximum penalty for an offence under s 73(1)(c) is 400 penalty units or 5 years' imprisonment or both.

[3] The offences were against s 30 of the Road Safety Act 1986 Act and the prescribed penalty for a subsequent offence, which this was, is imprisonment for not less than 1 month and not more than 2 years.

[4] See generally per Teague J in Robinson v Fisher (Unreported, Supreme Court of Victoria, 31 August 1993). There his Honour concluded that to establish an offence under the section as it then was, it was necessary to establish knowledge on the part of the driver that there had been an accident and a person had been injured or property had been damaged or destroyed. The section was amended in 2005 and gives statutory effect to that conclusion.

[6] See also R v De Simoni [1981] HCA 31; (1981) 147 CLR 383.

[7] [1998] 2 VR 304.

[8] [2007] VSCA 6.

[9] Ibid [26] (Nettle JA), with whom Buchanan and Vincent JJA agreed.

[10] [2005] VSCA 265; (2005) 158 A Crim R 185.

[12] Part 6, Division 1A.

[13] See R v Storey (1998) 1 VR 359.