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[2006] VSCA 84
Court of Appeal (Vic)
2006-04-20
WARREN C.J., CHARLES and CHERNOV JJ.A.
Original judgment source is linked above.
Criminal law - Appeal against sentence - Total effective sentence of 13 years' imprisonment imposed by trial judge - Culpable driving, reckless conduct endangering life and negligently causing serious injury - Whether sentencing judge adequately took into account guilty plea - Section 5(2)(e) of the Sentencing Act 1991 (Vic) - R v Hall (1994) 76 A.Crim.R. 454 - Whether sentence manifestly excessive - Aggravating factors - Prior driving related offences.
1 This is an appeal against the sentence imposed by a judge of the County Court for two counts of culpable driving; one count of reckless conduct endangering life; two counts of negligently causing serious injury; as well as the summary offences of driving whilst authorisation was suspended and having a blood alcohol level in excess of the prescribed concentration. The appellant pleaded guilty to all offences.
2 On the evening of 2 July 2004, the appellant drove to a friend's home at Dandenong. The appellant, together with the occupant of the Dandenong residence and another friend of the appellant, then drove to a hotel in Frankston. On the way, the three purchased and drank four small bottles of pre-mixed bourbon and coke. At the hotel, the appellant drank nine pints of full strength beer. The three later drove back to the Dandenong residence. The appellant did not drive either from or to the hotel in Frankston. He declined an offer to stay the night at his friend's house in Dandenong and decided to drive to his home in Hallam. He drove along the Princes Highway and as he did so, he travelled at very high speeds. Two separate groups of witnesses saw the appellant travelling between 100 to 140 kilometres per hour in an 80 kph zone. A reconstruction of the events subsequently showed that the appellant was driving at approximately 140 kph in an 80 kph zone.
3 Shortly after the sightings of the appellant, he passed through a red light and collided with a Nissan coupe in the process of executing a right-hand turn. Moments before the collision, the police, attending to other matters on the highway, saw the appellant drive past at between 120 and 140 kph in the 80 kph zone. The appellant sounded his horn and waved at the police and the group to which they were attending. The front of the appellant's vehicle struck the passenger rear side of the Nissan coupe. The car travelled eight metres from the point of impact and struck the on ramp to the freeway. The rear of the Nissan coupe was twisted around towards the front end of the vehicle and was effectively split in two.
4 Two passengers of the Nissan, Cassandra Sprie and Michael Sheridan, died at the scene. Ms Sprie was thrown from the Nissan. Mr Sheridan was seated in the back of that vehicle. Two other passengers, Kristoffer Stella and Katie Clark, received serious injuries. Mr Stella was thrown from the Nissan and was later airlifted to the Alfred Hospital where he was treated for lacerations (especially to the scalp), a fractured rib and other serious injuries. Ms Clark was also flown to the Alfred Hospital for treatment for her injuries. The severe physical effects of the accident on these people remain. The driver of the Nissan coupe, Brendon Cropley, received minor injuries.
5 The appellant was apprehended at the scene. He was initially aggressive and believed that the other car had driven through the green light. According to a blood alcohol test taken at the Dandenong Hospital, the appellant had a blood alcohol content of 0.202 percent, an hour and ten minutes after the collision. A later estimate revealed that the appellant's alcohol level at the time of the collision was between 0.198 percent and 0.225 percent. It was clear that the appellant was incapable of having proper control of a vehicle.
6 After release from the hospital, the appellant was arrested. During an interview with the police, the appellant remained under the misconception that he had travelled through a green light and that the other vehicle had caused the collision. However, during the course of the interview, the appellant admitted to the extent of his drinking and that he was aware that he was not fit to drive. The appellant further admitted to not being properly licensed to drive. The appellant admitted to 13 prior convictions. These include two prior convictions for exceeding the blood alcohol limit, two prior convictions for careless driving, and two prior convictions for exceeding the speed limit. The appellant has a history of driving without the requisite license.
7 Six weeks before the accident, on 16 May 2004, the appellant was intercepted in Hallam Road and charged with failing to wear a seatbelt, driving whilst authorisation was suspended, and not having an experienced driver seated in the car. The appellant was due to appear in the Magistrates' Court with respect to these matters on 8 July 2004 (five days after the collision). This matter was eventually dealt with on 4 November 2004 in the Magistrates' Court. Also on that occasion, the appellant was dealt with for theft of a motor car which he had been driving when pulled over for drink driving in June 2003. The appellant was fined $1250 together with costs; disqualified from obtaining a license for 18 months; and sentenced to a term of three months' imprisonment, wholly suspended for 12 months. Although these offences occurred prior to 3 July 2004, the convictions of the appellant did not accrue to him until after the day of the incident at hand on 3 July 2004. However, although they do not count as prior convictions, they may be considered. As noted by the sentencing judge, they demonstrate a contempt by the appellant for the law as it applies on our roads. Further, it illustrates an indifference for the safety of other road users.
8 The appellant is 27, married and the father of three children. He and his wife have intermittently separated during their marriage. While originally from Western Samoa, the appellant came here with his family in 1995 after a period in New Zealand. Having failed to finish an apprenticeship, the appellant initially went from job to job and suffered periods of unemployment. At the time of these events, the appellant was working with his father at a brake manufacturing company.
9 Attention was given on the plea to the appellant's personal circumstances. It is evident that the appellant has suffered from a drinking problem. Personal accounts of others before the sentencing judge speak of qualities such as the appellant's love for his children and his deep remorse since the incident. In prison, the appellant has undergone a course in alcohol management as well as vocational training. The appellant has been described as a model prisoner. The sentencing judge was "cautiously optimistic" as to the appellant's prospects for rehabilitation.
10 In the reasons, the sentencing judge observed that the offences were all "serious examples of serious offences" and stood at the higher end of offences of this kind. Her Honour noted:
"Counsel for the Crown observed that culpable driving cases do not come much worse than this. The Crown, in support of that submission, relied upon your negligence in driving at an excessive speed and going through a red light, that you were driving at a speed 60 kilometres over the speed limit, that you had a blood alcohol level four times that permitted to a licensed driver and that if you did have a permit, which you did not because it had been suspended in June 2003, you would have been obliged to have a zero alcohol level. Finally, that your driving resulted in a double fatality and serious injury of two others and placed the life of another in danger of death. Further, you were facing Court in five days' time in relation to other road traffic matters. I accept all of those matters and would add that at the time of this collision you had no authorisation to be driving at all and you had significant prior convictions; so that at the time of these present offences the Court can conclude that you were in the habit of conducting yourself with complete and utter disregard of your obligations under the Road Safety Act and to other road users and that your appalling conduct on this night could not be said to be an aberration on your part.
Accordingly, I view your conduct as a very bad example of culpable driving and negligently causing serious injury and your moral culpability as very high indeed. Any sentence I impose must also take into account the need to pass a sentence which will serve to punish you and act in denunciation of your conduct and also send a clear and unequivocal message to those who drink then drive in circumstances such as these, that such conduct is never to be tolerated and will be met with stern and condign punishment. Any sentence I impose must also give due weight to specific deterrence, which previous dispositions have utterly failed to do. Your prior convictions and antecedents suggest that specific deterrence needs to be given considerable weight even allowing for your genuine remorse and your cautious prospects for rehabilitation."
11 Her Honour said she took account of the appellant's plea of guilty, his remorse, the lifelong burden of guilt to be borne by the appellant, his youth and family circumstances, the support of family, friends and church group, and his abstinence from alcohol since the accident. The appellant was sentenced, as follows:
Count 1: culpable driving; seven years' imprisonment.
Count 2: culpable driving; seven years' imprisonment.
Count 3: reckless conduct endangering life; two years' imprisonment.
Count 4: negligently causing serious injury; two and half years' imprisonment.
Count 5: negligently causing serious injury; two and a half years' imprisonment.
12 Her Honour further ordered that three years of the sentence on Count 2 be served cumulatively with the sentence on Count 1; 15 months of the sentence on Count 4 be served cumulatively with the sentence imposed on Counts 1 and 2; 15 months of the sentence imposed on Count 5 be served cumulatively with the sentences imposed on Counts 1, 2 and 4; and six months of the sentence imposed in respect of Count 3 be served cumulatively with the sentences imposed on Counts 1, 2, 4 and 5; thereby being a total effective sentence of 13 years' imprisonment. In respect to the summary offences, the appellant was sentenced to three months' imprisonment for driving whilst authorisation was suspended, and three months' imprisonment for exceeding the prescribed concentration of alcohol. Those sentences on the summary offences were directed to be served concurrently with each other and concurrently with the sentences imposed with respect of the indictable matters. A non-parole period of ten years was fixed.
13 The appellant contended that the sentencing judge erred in three respects (the first two being stated as the one ground in the appellant's submissions):
1. Failing to give sufficient weight to the appellant's early pleas of guilty and his genuine remorse;
2. Sentencing on the basis that the pleas of guilty "do not ... outweigh the proper weight to be given to considerations of specific and general deterrence in cases such as these"; and because
- The individual sentences on counts 1, 2 and 3, the summary offences, the orders for cumulation, and the resulting total effective sentence and non-parole period were manifestly excessive and in breach of totality.
14 In support of its submissions, the appellant cited R v Hall.[1] In that case, Crockett and Southwell JJ stated:
"An approach to the question of taking account of a plea of guilty which proceeds on the basis that the mitigatory effect of his plea can be "cancelled out" or "outweighed by" an aggravating factor is, we think, impermissible..."
A plea of guilty is a mitigatory factor. Moreover, it is statutorily stated to be so. See s 4(1) of the Penalties and Sentences Act 1985 (Vic) replaced by s 5(2)(e) of the Sentencing Act 1991 (Vic). The latter provision (which is that now in force) states that:
"In sentencing an offender a court must have regard to --
(e) whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so."
Both provisions were obviously intended to act as an inducement to an offender to enter a plea, furthermore, an early plea, in return for a lesser penalty than otherwise might have been expected to have been passed: see Morton [1986] VicRp 82; [1986] VR 863 at 867; [1986] VicRp 82; (1986) 23 A Crim R 433 at 437. A court may (although such a case would be rare) elect to give no weight to such a plea. For instance a plea which is no evidence of remorse, is entered at the "eleventh hour" and is made in a case of overwhelming strength may attract no reduction in sentence. But it will not fail to do so because it is cancelled or outweighed by other considerations of an aggravating nature. A plea of guilty is a mitigating factor. It cannot cease to be so because there are aggravating features. A court's attitude towards the fact of a plea of guilty is expected to act as an encouragement to enter such a plea. The issue with which the court is to be concerned is what weight should be given to it in the circumstances. It is not a question as to whether the weight it has is to be cancelled out by other factors." [Emphasis added.]
15 In Rainford v R,[2] Callway, J.A. said of the above case:
"It related to a process of reasoning [at trial] that was flawed in two respects. One was the fallacy that a plea of guilty is less mitigatory the more serious the offence. The other was that the effect of that plea could be cancelled out or outweighed by an incommensurable circumstance of aggravation. As I said in R. v. Shoukan, "Two matters bearing on the exercise of a judge's discretion may both be important, but in different ways. Each of them has to be considered on its own merits." "
16 It was submitted for the appellant that when the sentencing judge took account of the plea of guilty and the saving of the cost and ordeal of a trial and then observed that: "These matters do not outweigh the proper weight to be given to considerations of specific and general deterrence in cases such as these", an error occurred analogous to the approach in R v. Hall. In any event, it was submitted, the reasons disclosed that less than full weight was given to the pleas of guilty and material error occurred. The words used by her Honour are strikingly similar to the expression used by the sentencing judge in Hall and in the circumstances demonstrate that her Honour took an impermissible approach to the weighting required to be given to a plea of guilty. Accordingly, ground 1 has been made good, and the sentencing discretion is re-opened.
17 It was further submitted for the appellant on the ground of manifest excess and breach of totality that the sentence of seven years on counts 1 and 2 and two years on count 3 were excessive. It was also submitted that the sentence of two years' imprisonment on count 3 was excessive, especially considered in the context of the sentences of two and a half years' imprisonment on each of count 4 and 5. In addition, it was submitted that the sentences on the summary offences, three months' imprisonment on each offence, involved the maximum or near maximum penalty that in turn did not reflect the pleas of guilty or that the conduct was part of the primary offending on counts 1, 2, 3, 4 and 5. Necessarily, it was argued, double punishment thereby occurred giving rise to error. Finally, it was submitted for the appellant that the total effective sentence and the non-parole period were "massive" in the circumstances of the appellant's pleas of guilty, his remorse, his family circumstances and his youth. The sentences, so it was argued, by virtue of the orders for cumulation, resulted in a sentence that was crushing and too long.
18 In re-sentencing the appellant, it must be said that this case involves one of the worst examples of culpable driving and related offences to come before the courts of this State. The gravity of the offences lay not only in the tragedies wreaked by the appellant. The gravity also lay in the contemptuous disregard of driving safety, such disregard being heightened by the speed of the appellant and his waving at the police seconds before the accident. These events occurred against a history of driving-related prior offences.
19 The maximum penalty of 20 years' imprisonment for culpable driving reflects the seriousness of the view taken by Parliament with respect to the offence of culpable driving. In turn, the courts have reflected the seriousness of the offence in the imposition of longer terms of imprisonment.[3] The words of Winneke, P, in R v O'Connor[4] remain apposite: "the community will not tolerate the taking of human life by acts of gross negligence".
20 The circumstances in which offences of culpable driving occur are inevitably varied and the courts should take into account the particular circumstances of the offending. With respect to cumulation, it is important that each death be adequately recognised in both the overall sentence and the non-parole period.[5]
21 The Crown relied upon the conduct of the appellant before the accident in acknowledging that the sentences were at the high end of the range because of the gravity of the offending combined with the appellant's record of prior offending. The Crown placed particular emphasis on the innocence of the victims, an aggravating factor recognised in R v. Tran.[6]
22 This was a case where full admissions and pleas of guilty had been made at a very early point in the investigation. It was one involving a relatively young man who will carry the burden of his actions for the rest of his life. However the parents and loved ones of the victims and those injured by the appellant's actions will endure loss and suffering for the rest of their lives. The aggravating aspects of the appellant's criminal behaviour have already been described and speak for themselves.
23 The appeal must therefore be allowed. In all the circumstances we consider that the same sentences should be imposed on each individual count. However, in re-sentencing we would make orders for cumulation differing somewhat from those ordered by the sentencing judge. We would order that three years of the sentence imposed on Count 2 and one year of each of the sentences imposed on Counts 4 and 5 be served cumulatively on the sentence imposed on Count 1, making a total effective sentence of 12 years' imprisonment. We would fix a non-parole period of 9 years.
[1] (1994) 76 A.Crim.R. 454 at 469-70.
[2] [2003] VSCA 49 at [18].
[3] The Sentencing Advisory Council has recorded that over the period between 1998 - 1999 and 2003 - 2004, the terms of imprisonment for this offence ranged from 1 to 12.3 years' imprisonment and that the average sentence was 4.9 years. Between 1998 - 1999 and 2003 - 2004 the average imprisonment sentence ranged from 4.1 years in 1999 - 2000 to 5.7 years in 2002 - 2003 representing an average increase of 1.6 years or 39 percent over this period.
[4] [1999] VSCA 55 at [19].
[5] DPP v Calderara [2003] VSCA 140 at [47].
[6] [2002] VSCA 52; (2002) 129 A.Crim.R. 214 at [29] per Callaway, J.A.
R
Ioane [2006] VSCA 84