R v Lam [2006] VSCA 162

1 On 7 April 2006, Khien Lam, the appellant, having earlier pleaded guilty to one count that without lawful excuse he recklessly engaged in conduct that placed another person in danger of death, contrary to s.22 of the Crimes Act 1958 ("the Act"), was sentenced to two years detention in a Youth Training Centre.[1] The maximum penalty for that offence is 10 years' imprisonment. Now he appeals by leave against the sentence passed upon him.

The circumstances of the offending

2 The offending conduct took place in the early hours of 5 October 2004. The circumstances can be shortly explained. The appellant was the driver of a motor vehicle at the time. Samuel Khuat, a friend, was the driver of another motor vehicle. The appellant and Khuat were then aged 18, and were probationary licence holders. There were three passengers in Khuat's vehicle, and two passengers in the appellant's vehicle. There was some material which showed that there were other road users in the general vicinity at the time.

3 The two vehicles travelled west along Dandenong Road, Windsor. They were observed travelling at high speed towards the intersection of Dandenong Road and Chapel Street. Then they were observed to stop - there are traffic lights at that intersection - before accelerating sharply. Then they travelled side by side, very close, and at high speed, along Queens Way - it is the continuation of Dandenong Road, and is a divided highway with three lanes on each side and a central tram line. The drivers were having, as the learned judge who later sentenced each of Khuat and the appellant found, an impromptu race; or at least were "pushing each other to see who could go faster or who would slow down first."

4 What next happened was that Khuat lost control of his motor vehicle. Whatever be the precise sequence of events thereafter, the certain fact is that Khuat's vehicle struck a (tramway) pole at a speed estimated at about 126 kph; and that two rear seat passengers were killed. The appellant, meanwhile, applied the brakes to his vehicle. Eventually it came to a stop. Its speed before braking was estimated as having been a minimum of 124 kph. The applicable speed limit was 70 kph.

5 Neither alcohol nor drugs played any part in the conduct of Khuat or the appellant. The whole episode of criminal conduct - according to the learned sentencing judge - took place over a period of some 20 seconds.

6 Khuat was charged with two counts of culpable driving. The form of the offence alleged against him was that constituted by negligent conduct of the quality described in s.318(2)(b) of the Act.

7 Khuat pleaded guilty to the charges brought against him. On 15 July 2005 he was sentenced to three years detention in a Youth Training Centre.

The Grounds of Appeal

8 Three grounds of appeal were argued, the third being added, without objection by the Crown, on the hearing of the appeal. Thus:

"1. The Learned Sentencing Judge erred in sentencing the appellant as if for the offence of culpable driving rather than for the offence to which he pleaded guilty.

3. The Learned Sentencing Judge failed to give sufficient weight to the principle of parity in sentencing."

Ground 1

9 In her written submissions, counsel for the appellant advanced three distinct contentions in support of this ground.

• First, that although the judge repeatedly said that she was not sentencing the appellant for causing the death of the two men who had been passengers in Khuat's vehicle, yet in fact she improperly took their deaths into account in sentencing him. In that connection, it was said, her Honour took into account the victim impact statement of the father of one of the men killed; this implying that she had treated those deaths as directly caused by the appellant's offending.

• Second, that the judge had improperly treated the offence for which the appellant was being sentenced as involving a higher level of culpability than the offence of culpable driving. She had done this by focussing upon the relevant mens rea - recklessness - and contrasting it with the grossly negligent conduct to which Khuat had pleaded guilty. Her Honour had failed to properly contrast the actus reus of culpable driving with the actus reus of conduct endangering life. She had also failed to give due consideration to the maximum penalties for the respective offences.

• Third, citing R v Toms,[2] that the judge had not sufficiently recognised that the necessary foresight is of the risk of death, rather than of death being a probable consequence of the impugned conduct.

10 In oral argument, counsel abandoned reliance upon the last-mentioned submission. In the ordinary course nothing more need be said about it. But counsel for the Crown submitted that in fact the learned judge had framed the relevant intent in a manner which was too favourable to the appellant. This was said to make it clear - although it was otherwise clear - that her Honour had not de facto sentenced the appellant as if for the offence of culpable driving.

11 I should briefly address the alleged misdirection. The elements of the offence created by s.23 of the Act, the language of which is that of s.22 save for reference to "serious injury" rather than "death", was considered recently in R v Wilson & Carman[3]. Batt JA, with whom Buchanan and Vincent JJ.A agreed, said this:

"Now, the elements of the offence of reckless conduct endangering a person are:- (1) that the accused engaged in the conduct alleged (here, the discharge of the rifle); (2) that, subjectively, the accused intended to engage in that conduct (that is, here, to discharge the firearm); (3) that, objectively, a reasonable person, in the position of the accused, engaging in the very conduct in which the accused engaged, would have realised that the conduct placed, or might place, the alleged victim in danger of serious injury, that is, under exposure to an appreciable risk of serious injury; (4) that, subjectively, the accused was reckless in that he foresaw that a probable consequence of the conduct was serious injury to the alleged victim or, it may be, the danger of serious injury to the alleged victim in the sense of exposure of the latter to an appreciable risk of serious injury, and displayed indifference as to whether or not that consequence should occur (that is, nevertheless went ahead and engaged in the conduct); and (5) that the accused had no lawful excuse for the conduct: R. v. Nuri; R. v. Campbell; Filmer v. Barclay; Mansfield v. Arnold; and Mutemeri v. Cheesman. For present purposes, it is unnecessary to explain the meaning of serious injury or, in relation to the fourth element, to decide whether it is serious injury or the danger of serious injury that must be foreseen as probable. I shall, however, proceed as if the second, and lesser, alternative is the correct one."[4]

12 One thing is clear: whether it be serious injury or the danger of serious injury - for "serious injury" one should substitute "death" in the case of s.22 - which must be foreseen in the context of proof of recklessness, his Honour spoke in terms of such consequence being foreseen as probable.

13 The question which formulation was correct was addressed, in the context of s.22, in R v Toms. Buchanan, JA, gave the leading judgment. He had been a member of the Court in Wilson & Carman. His Honour said nothing to detract from the requirement that proof of recklessness requires proof of foresight that a particular consequence is probable. He did say, however, that the foreseeable consequence was properly described as exposure to the risk of death rather than death. That is compatible with the "lesser alternative" described by Batt, JA - that is, that what must be foreseen is that a probable consequence of particular conduct is "the danger of [death] to the victim in the sense of exposure of [the victim] to an appreciable risk of [death]."

14 In the state of the authorities as described, counsel for the Crown fastened upon this passage in the sentencing remarks of the learned judge:

"It is for the dangerousness of what you did, the potential to kill or maim, and more importantly your acknowledgment, evidenced by your plea of guilty, that you appreciated at the time your conduct in driving in the manner in which you did could endanger life, and yet you did so regardless, which form the gravamen of the offence to which you have pleaded guilty."

15 Counsel submitted that it had been wrong for her Honour to speak of the appellant's plea of guilty evidencing his appreciation at the time of his impugned driving that his conduct "could endanger life". In fact, the appellant's plea of guilty evidenced acknowledgment that he had appreciated that his conduct "would" - or "would probably" - have the consequence of exposing the victims to an appreciable risk of death. The alleged error, counsel argued, could be seen in embryonic form in the judge's discussion with counsel on the plea hearing, where her Honour had referred to the appellant consciously turning his mind "to the possibility of the consequence".

16 I am not persuaded that her Honour misdirected herself. I think likely that she did no more than attempt to express, in contracted language, the complex notion of foresight that a probable consequence of impugned conduct was exposure of potential victims to an appreciable risk of death.

17 I return to the matters agitated by counsel for the appellant. As to the first of them, she did not contend that the tender of the victim impact statement, which counsel for the appellant on the plea hearing[5] did not oppose, had been impermissible. Rather, she argued, it showed that the judge had treated the deceased men as "victims" as that word is defined by s.3(1) of the Sentencing Act 1991; this implying the appellant had directly caused their deaths. So, counsel argued, there was clear evidence that the learned judge, despite many disclaimers in her sentencing remarks, had in fact sentenced the appellant as if for culpable driving.

18 I do not accept that submission. Her Honour's reference to the victim impact statement does not sit in isolation from her sentencing remarks generally. They show, in my opinion, a clear understanding of the essence of the offending conduct. Not only did her Honour repeatedly say that she was not sentencing the appellant for causing the deaths of the two men, she appropriately described the gist of the charge. Thus:

• "Your charge, of reckless conduct endangering life, is not one of causing deaths, but of endangering life. It is the speed, the racing, the driving so close that constitute the conduct endangering life."

• "You are not being sentenced for causing the deaths of the two young men but for this different charge. It is for the dangerousness of what you did, the potential to kill or maim."

• "Your conduct in driving in the manner you did, so fast, so close, racing, daring each other to keep going, not being prepared to be the first to slow down, imperilled your passengers, the occupants of Mr Khuat's car and all other road users and pedestrians in the vicinity. It was inexcusable and deserves to be condemned in the strongest of terms."

• "This is the type of case where the sentence must serve as a deterrent for any driver who contemplates accelerating so quickly, driving at such speed so far in excess of the speed limit, so close to another car and racing another."

19 Now, on a number of occasions in her sentencing remarks, including the point at which she referred to the victim impact statement, the judge referred to the deaths of the two young men. It was inevitable, in describing the circumstances of the affair, and in contrasting the offences with which Khuat and the appellant had been charged, that she should do so. I do not perceive that at any point she fell into the error of sentencing the appellant for an offence of which an element was those deaths. Rather, as it seems to me, she referred to the deaths to point up the fact that an allegation that particular conduct was such as to endanger life is not merely an hypothetical construct. So, having identified the offending conduct, in the first of the four passages which I cited a few moments ago, the learned judge added -

"That such conduct does endanger life was all too powerfully proved in this case by the fact that Mr Khuat lost control of his car as a result of driving in a similar matter at a similar speed whilst you were driving so perilously close to each other, and as a result Mr Khuat caused the death of two of your friends and his."

20 It is notable that her Honour there referred to Khuat causing the deaths of the two men. That is another contraindication that she sentenced the appellant upon a false basis.

21 This also should be said. The men killed were members of a wider class of persons put in danger of death. That wider class was said by her Honour to be made up of -

"[the Appellant's] passengers, the occupants of Mr Khuat's car and all other road users and pedestrians in the vicinity."[6]

The men who died were no less members of that class because in fact, they died. All of the class members were "victims" of the appellant's offending - as persons endangered.

22 When speaking of the victim impact statement, her Honour said that it -

". . . serves as a stark reminder of the devastation which is caused when deliberate risk-taking such as yours results in the risk materializing and causing death."

23 What her Honour was again highlighting, I consider, was that endangerment is not an hypothetical construct. It may resolve into the actuality of death; and with death in such circumstances comes misery for others. None of that was to say, because two men died, that the appellant was being punished as if he had caused those deaths.

24 Counsel for the Crown submitted that it had been open to the judge to treat the deaths of the two men as a circumstance aggravating the offence. He accepted, on the other hand, that it would be impermissible for a judge to rely, in sentencing a person, upon an aggravating circumstance which was an element of another offence; and which, considered together with the elements of the offence in respect of which the person was to be sentenced, would amount to the person being sentenced for the other offence. That would be akin, when sentencing a person, to including within the sentence a component for an offence with which that person had neither been charged nor convicted.[7]

25 Counsel for the appellant submitted, in effect, that the judge had crossed the notional line. Her Honour had taken the deaths of the two men into account in a way which meant, in effect, that she had sentenced the appellant for culpable driving of the reckless driving kind described in s.318(2)(a) of the Act.

26 There is a short answer to those submissions. In my opinion, the judge neither treated the deaths of the men as an aggravating circumstance of the s.22 offence, nor sentenced the appellant as if for culpable driving.

27 I turn to the second aspect of counsel's submissions upon the first ground. The gist of it was that the judge had mistaken the gravity of the offence by focussing upon its mental element, and by contrasting it with the mental element of the offence to which Khuat pleaded guilty.

28 That there is a difference in the mental element of the offences with which Khuat and the appellant were charged is not in doubt. It was emphasized by the fact that the Crown relied upon the gross negligence described in s.318(2)(b) of the Act in proof of the offence of culpable driving laid against Khuat, and not reckless driving as described in s.318(2)(a).

29 It was, in my view, permissible for the learned judge to treat the element of recklessness within s.22 as importing a greater culpability than the element of gross negligence which was pertinent to the charge laid against Khuat. In a somewhat different context, this Court recently observed that reckless conduct would generally be viewed as more culpable that that which is criminally negligent, although that will not always be so.[8]

30 Counsel for the appellant submitted that the judge had characterised Khuat's driving as simply negligent - that is, had not characterised it as grossly negligent in the language of s.318(2)(b) of the Act - and so had made a false comparison. Her Honour did refer to "culpable driving by negligence". But I reject the submission that she meant by that reference no more than civil negligence. It would sit neither with her description of pertinent negligence when earlier sentencing Khuat, nor with her remark that she had dealt with Khuat for more serious charges, albeit that his conduct had been negligent.

31 Given that the judge drew a permissible distinction between the mental element pertinent to the charges brought against Khuat and the charge laid against the appellant, it is not the case that that was the only mention which she made of respective culpability. On several occasions she referred to Khuat having caused the deaths of the two men. She referred also to the multiple charges brought against Khuat being more serious than the single charge laid against the appellant, and to the maximum penalty for the charge of reckless endangerment being only half the maximum penalty for the charge of culpable driving. In all, the judge did not treat the offence to which the appellant pleaded guilty as being more grave than the charges brought against Khuat. Rather, and properly, the obverse.

32 Ground 1, in the event, has not been made out.

Grounds 2 and 3

33 Counsel for the appellant submitted that the sentence imposed upon her client was manifestly excessive both when discretely considered, and when account was taken of the sentence imposed upon Khuat. The latter aspect of the submission called up the issue of parity.

34 I am unable to agree that the sentence was manifestly excessive when discretely considered. The judge took pertinent matters into account. The appellant was at time of sentence a young man of good character, without prior convictions, without other matters pending, who had pleaded guilty to the most serious of a number of charges originally brought against him, who had suffered some symptoms of post-offence psychiatric upset, who was remorseful, and who had prospect of rehabilitation. Again, in his favour, neither alcohol or other drugs had been involved in his offending conduct, nor was use of alcohol or other drugs a problem for the appellant more generally. Against those circumstances were to be set the appellant's commission of a serious offence - albeit involving conduct of short duration which was essentially unpremeditated - the importance of general deterrence in sentencing in such a case as this, and the place of punishment and condemnation in the sentencing process.

35 The judge carefully reviewed the available options, once having concluded that some form of custodial disposition was required. Her decision to order a period of detention in a Youth Training Centre was unexceptional. So also, in my opinion, was the period of detention which her Honour ordered the appellant to serve. I think that it was far from a case of manifest excess.

36 I turn to consider the sentence from the standpoint of alleged want of parity.

37 It was common ground that a submission based upon want of parity was available despite the appellant and Khuat having pleaded guilty to, and been sentenced for, different offences. At root, the argument for the appellant was that Khuat had by his grossly negligent conduct caused the deaths of two men. In the judge's view that had merited detention in a Youth Training Centre for three years. The appellant, on the other hand, had done no more than act so as to endanger life. Yet he had been sentenced to detention for two years in a Youth Training Centre. It

was submitted that the difference in the periods of detention was too little, and that there was impermissible want of parity;[9] whilst manifest excess in the sentence imposed upon the appellant was also demonstrated.

38 Attractively put though it was, I do not accept the submission. It failed to address the entirety of the circumstances which the judge, who was keenly aware of the parity issue, [10] brought into account. There was the quality of the appellant's offending conduct, which was "inexcusable and deserve(d) to be condemned in the strongest of terms." The appellant had recklessly exposed his passengers, the occupants of Khuat's car, and other road users and pedestrians in the vicinity to an appreciable risk of death. There was next the difference in the mental element accompanying the offences. There was also the very powerful evidence of remorse, acceptance of responsibility and rehabilitation present in Khuat's case; which was to be compared with lesser evidence of those redeeming features (as the judge found) in the appellant's case. Those matters had to be put into the mix, just as did the circumstances highlighted by appellant's counsel.

Order

39 In my opinion, the appeal should be dismissed.

40 For the reasons given by the learned presiding judge, I agree that the appeal should be dismissed.

[1] At the same time, the learned judge made ancillary orders also. They are not of present relevance.

[2] [2006] VSCA 101 at [6] and [7].

[3] [2005] VSCA 78.

[4] Ibid at [17].

[5] Not counsel who appeared on the appeal.

[6] An observation compatible with what was said by Winneke P in R v Bekhazi [2001] VSCA 178 at [8]; see also R v Toombs [2001] VSCA 144.

[7] As to which see R v Newman & Turnbull [1997] 1 VR 146 particularly at 150-152 per Winneke P.

[8] DPP v Gany [2006] VSCA 148 at [28]- [29], citing R v Toombs, (citation at Footnote 6) at [2] per Callaway JA and [34] per O'Bryan, AJA, and R v Birnie [2002] VSCA 155; (2002) 5 VR 426 at 431, [11] per Ormiston J.A.

[9] As to which, see R v Taudevin [1996] VICSC 7; [1996] 2 VR 402 at 404 per Callaway, J.A.

[10] As her Honour's sentencing remarks show.