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[2006] VSCA 77
Court of Appeal (Vic)
2006-04-05
BUCHANAN, VINCENT and NEAVE, JJ.A.
Original judgment source is linked above.
Criminal law - Culpable driving - Alcohol and excessive speed - Father caused death of one son and serious injury to another - Sentence of nine years' imprisonment with a minimum term of seven years' imprisonment not manifestly excessive.
Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
1 In the evening of Sunday 18 January 2004 the appellant drove his Holden Commodore station wagon down the Heyfield-Seaton Road, a narrow country road. Seated in the front passenger seat was his son Jyden, aged six years. In the rear seat was his other son, Brady, aged four years. The appellant was separated from his wife and had weekend access to his children. The appellant drove at a speed of at least 136 kilometres per hour. The speed limit was 100 kilometres per hour. The appellant was affected by alcohol. He had been drinking with friends at his house outside Cowwarr. When the appellant's friends left, he drove with his sons to a hotel in town and consumed two pots of beer.
2 The left-hand wheels of the appellant's car drifted off the bitumen to the gravel shoulder. The car went out of control, spun across the road, hit an embankment, became airborne and rolled over. The appellant's elder son was killed, trapped in the smashed car. His other son was thrown onto the road, suffering serious head and chest injuries. His treating doctor has said that he believes that Brady will make a complete physical recovery from these injuries, but will suffer significant psychological trauma from the death of his sibling.
3 The appellant was breathalysed at the scene of the accident, recording a blood alcohol concentration of 0.171 per cent. An analysis of the appellant's blood more than two hours later disclosed a blood alcohol concentration of .175 per cent.
4 The appellant was arraigned in the County Court and pleaded guilty to a presentment containing one count of culpable driving and one count of negligently causing serious injury. He also pleaded guilty to a summary charge of driving while his blood contained a concentration of alcohol in excess of the prescribed limit. After a plea the appellant was sentenced to be imprisoned for a term of eight years on the count of culpable driving and to a term of two years on the count of negligently causing injury. One year of the sentence imposed in respect of the latter count was ordered to be served cumulatively on the sentence imposed on the first count, producing a total effective sentence of nine years' imprisonment. The sentencing judge fixed a minimum term of seven years before the appellant was to be eligible for parole. The sentencing judge also ordered that any driver's licence held by the appellant be cancelled and that he be disqualified from obtaining a licence for three years from 18 August 2012 and was not to be licensed again save upon the order of a magistrate. On the summary charge the appellant was convicted and fined $500 and disqualified from holding a driver's licence for a period of 18 months.
5 The appellant has been granted leave by a judge of this Court to appeal against the sentence. The grounds of appeal are:
"1. The sentence imposed on count 1, the total effective sentence imposed and the non-parole period fixed are each and all manifestly excessive in all the circumstances.
2. The learned sentencing judge has erred in the exercise of his discretion in that he has failed to give any, or any sufficient, weight to the appellant's pleas of guilty, the circumstances in which the appellant pleaded guilty and the consequences of the appellant's pleas of guilty.
3. The learned sentencing judge has erred in the exercise of his discretion in the fixing of the non-parole period in that he has imposed a non-parole period which is 'unusually high' in respect of which no reasons were given and in respect of which there was no reason."
6 The first two grounds require examination of the appellant's personal circumstances.
7 He is now aged 36 years. In 1988 he was given a good behaviour bond for the offences of destroying public property and being drunk in a public place. In 1995 he was fined and his licence to drive a motor vehicle was disqualified for a period of six months for the offence of driving when the concentration of alcohol in his blood exceeded the prescribed limit. This was not alleged by the prosecutor to be a prior offence, and the sentencing judge said that he did not take it into account on that footing.
8 The appellant was brought up on a dairy farm. He left school at the end of year 11 and was apprenticed to a plumber. He completed his apprenticeship and worked as a plumber for a little over a year before gaining employment on oil rigs in Bass Strait and in the Congo. The sentencing judge found that the appellant was hardworking, reliable and responsible. He also found that the appellant had suffered considerably as a result of the death of one son and serious injury to the other son. Immediately after the accident the appellant was observed to be visibly distressed, repeating the words "I have killed my son". A psychologist in a report to the sentencing judge stated:
"I have seldom seen anyone so consumed by remorse and free of any attempted self-justification or excuse."
The sentencing judge accepted that the appellant was "deeply and genuinely remorseful". He said:
"Killing your own son will torment you forever."
9 Witnesses who gave evidence in the course of the plea described the appellant as caring, considerate and a loving father. His employer said that he was "respected and responsible". The sentencing judge found that the appellant's offending conduct was out of character. In addition to the mitigating factors I have mentioned, and of importance, were the appellant's pleas of guilty, which entitled him to a discount notwithstanding the strength of the Crown case.
10 The good character of the appellant, the revulsion he feels for his own conduct, his remorse and permanent loss are matters often encountered in cases of culpable driving. That is not to say that those matters are to be devalued. They remain powerful mitigating factors entitled to due weight.
11 The mitigating factors must, however, be viewed in the context of the circumstances of the offence, an offence in which general deterrence is of more than usual importance. The appellant drove at an excessive speed on a narrow road while the concentration of alcohol in his blood was more than three times the prescribed limit. The combination of speed and alcohol rendered the case apt to promote general deterrence. In addition, the victims of the appellant's conduct were children entrusted to the care of the appellant. The boys' mother in a victim impact statement said:
"The boys should have been safe with their dad; they were not."
The victim impact statements disclose that the mother and grandmother of the children were stricken by their fate. The offence of culpable driving is to be viewed as a species of involuntary manslaughter.[1] It carries the same maximum penalty as the offence of manslaughter. Its consequences are terrible and irreversible. As Tadgell, J.A. said in R. v. Scholes[2], the offence is essentially one against public safety. General deterrence is the principal objective in sentencing for the offence.[3]
12 I think the sentence can be described as stern, yet by reason of the circumstances of the offences I consider that it was within the range available to the sentencing judge. In my opinion the sentence was not manifestly excessive and did reflect the pleas of guilty, which the sentencing judge expressly took into account.
13 As to the non-parole period, counsel for the appellant submitted that it was unusually high. Counsel pointed to the facts that self-deterrence was not important in this case and that the appellant had a good prospect of rehabilitation. The non-parole period was high, but in my view was not so unusually high as to bespeak error.
14 The appellant's prospects of successful rehabilitation were by no means assured. The sentencing judge said that the appellant appeared to have a problem with alcohol and that he had not satisfactorily explained his conduct. In any event, in fixing a non-parole period a sentencing judge is not primarily concerned with the prisoner's prospects of rehabilitation: Bugmy v. R. [1990] HCA 18; (1990) 169 C.L.R. 525 at 530 per Mason, C.J. and McHugh, J. In the end, the minimum term is to be fixed because all the circumstances of the offence require that the offender serve no less than that term without the opportunity of parole: R. v. Robinson (1979) 22 S.A.S.R. 367 at 370 per King, C.J.
15 In the present case I am of the view that a minimum term of seven years was not more than the sentencing judge was bound to fix having regard to the circumstances of the offences and taking into account the appellant's personal circumstances and prospects of rehabilitation.
16 I would dismiss the appeal.
17 I agree, and would add only a short comment of my own.
18 These are, as Mr McArdle submitted, very serious examples of the offence of culpable driving and negligently causing serious injury. The level of the appellant's culpability for their commission must be regarded as high indeed. In this context, it is a significant circumstance of aggravation that he was, at the time in which he was engaged in the consumption of enough alcohol to result in a concentration in his blood of 0.17 per cent, entrusted with the care of his two children. It appears that he had been drinking during the afternoon at his home with some friends, who departed by approximately 5.45 p.m. He then decided to secure more alcohol and took the two children with him to make his purchase. On the journey he also consumed two pots of beer before returning home. The appellant then drove not only while severely affected by that alcohol, but at a grossly excessive speed and on a narrow road.
19 Notwithstanding the matters which have been advanced in mitigation, it was in my view well within the proper exercise of sentencing discretion for the sentencing judge to impose both the head sentence and the minimum term that he did.
21 The order of the Court is that the appeal is dismissed.
[1] See D.P.P. v. Clarke [2005] VSCA 2.
[2] [1998] VSCA 17; [1999] 1 V.R. 337 at 346.
[3] D.P.P. v. Church [2005] VSCA 8 at paragraphs [27] and [28].
R
Kennedy [2006] VSCA 77