R v Leesley [2001] VSCA 90

2. The appellant, who is now aged 31, pleaded guilty before the Chief Judge of the County Court on 25 September 2000 to one count of culpable driving by gross negligence (the maximum term for which is 20 years' imprisonment), one count of possessing a drug of dependence (heroin), one count of having in his possession cannabis and one count of having in his possession rivotril. Both cannabis and rivotril are also drugs of dependence.

5. On 28 September 2000, the Judge sentenced the appellant to five years' imprisonment on the culpable driving charge, and fined him $200 on the count of possessing cannabis, and $1,000 each on the count of possessing the other two drugs. His Honour ordered the appellant to serve 2½ years before becoming eligible for parole. The appellant had admitted a number of prior convictions which included convictions for, inter alia, speeding and careless driving. Two of the former were convictions for exceeding the speed limit by 50 kph or more. His Honour also cancelled the appellant's driver's licence and disqualified him from obtaining any further licence for a period of 4 years. I think I should also say that the appellant had not previously been sentenced to a term of imprisonment.

8. The appellant, pursuant to leave granted, appeals to this Court against the sentence imposed for the offence of culpable driving (count 1) and the term of the licence disqualification. The grounds of appeal argued were essentially as follows:

(a) the judge failed to give any or sufficient weight to family hardship;

(b) that his Honour gave too much weight to the appellant's prior convictions and wrongly used those convictions as going to moral culpability;

(c) that the judge gave too much or too little weight to remorse, the guilty pleas, prospects of rehabilitation, and general deterrence leading to a sentence which is manifestly excessive.

14. Before turning to the submissions made in respect of the grounds, it is desirable to briefly turn to the facts. They were the subject of an agreed statement before the sentencing judge:

17. On 26 January 1999 at 4.30 a.m. a turbo Nissan EXA motor vehicle driven by the appellant, in which his deceased partner, Tracey Ann Falkenburg, was seated as a front-seat passenger left the west bound carriageway of High Street in Ashburton at a speed estimated to be in excess of 100 kph and struck a pole. The roadway was dry, the weather clear. High Street, at that point was a dual carriageway divided by a median strip. There was a 60 kph speed limit. There were no witnesses, but from investigation it was clear that the vehicle, for no explained reason, had mounted the left hand kerb and hit the post. No explanation for this extraordinary driving was, or has been, proffered but, his Honour concluded that it was apparent from the appellant's aberrant behaviour at the police station following apprehension, he was in no fit condition to drive. As a result of the collision the passenger suffered gross injuries from which she died, although the appellant was substantially uninjured. His Honour was left in no doubt that, as the plea indicated, the driving leading to the collision and death of Ms. Falkenburg was grossly negligent. His Honour further observed that:

"Your previous convictions for exceeding the speed limit bear upon your moral culpability concerning your commission of this offence."

21. The circumstances of this case are quite unusual and make it one in which, I think, it can truly be said that the consequences have been tragic both to the family of the deceased and to the appellant and his kin. The consequences to the family were eloquently demonstrated in victim impact statements tendered to the judge. They are, as his Honour said, on-going. The consequences to the appellant are also productive of sympathy as was made apparent by a number of witnesses who gave evidence before the judge. The evidence indicated that, only some days before this accident occurred, Ms. Falkenburg had borne the appellant a baby daughter at the Mercy Hospital. The baby was several weeks premature. It seems that the child was left in the care of the hospital when Ms. Falkenburg was discharged. This was very shortly before the fatal accident occurred. Although the deceased, who was aged 26, and the appellant were not living as man and wife, there was evidence that they were planning to do so when the child was released into their care.

24. On the night before the collision occurred, it appears that the appellant and the deceased had visited the house of a friend. The appellant, who had been a regular user of cannabis, claimed to have "smoked a joint" at about 11.30 p.m. He had told the police after the accident that he "had a problem with marijuana" and that he was trying to wean himself off it. There was, however, no resolution of the issue of what had caused the motor vehicle to get out of control. The appellant declined to provide forensic samples. His mood swings at the police station were said to be noticeable. He said that he had been taking the rivotril as an aid to his efforts to "give up" marijuana. There was no evidence of the driving leading up to the point of impact. It may be, although it is little more than speculation, that his condition had induced sleep immediately before the car left the road.

27. One thing which was clear from the evidence given on the plea was the apparent transformation of the appellant from a person who had been, to coin a phrase, an unkempt and introverted "hippie", with little apparent interest in or time for others, into a polite, well groomed, and apparently responsible man who has taken the time to be interested in, and to care for, those around him. In particular he is devoted to his young daughter who was eventually released into his care. With the assistance of his parents, he has cared for the child's needs and has impressed medical staff and social workers alike with his commitment. In addition, perhaps because of his commitment, he has with the assistance of professional help, weaned himself from cannabis. He is no longer addicted to nor does he use any drug. Because the child's mother (the deceased) was infected with a strain of hepatitis, and because of the child's prematurity, care has been taken attending to her health. That care has been regularly provided by the Wheelers Hill Health Care Unit. The doctor who has personally undertaken that care observed in a letter produced in evidence (inter alia):

"During the time I have cared for Jaide I have observed [the appellant] to be a devoted and committed father. Although [the appellant's] parents are ever ready to support and assist him, [he] has taken his parenting role with great seriousness and a deep sense of responsibility."

In similar vein, the Staff Neonatalogist at the Mercy Hospital wrote a letter, outlining the potential problems which had arisen as the result of the child's premature birth, and the attention which needed to be taken to satisfy the medical staff that she was not affected by her mother's withdrawal from heroin use. The doctor noted that he had been "impressed by the caring interaction between [the appellant] and his daughter" and further noted that his paediatric colleague, Dr. Vanessa Gabriel, had observed that the appellant "had done a fantastic job looking after Jaide". The doctor concluded:

"I have always been impressed by John's commitment as a father, particularly given the tragic circumstances of Tracey's death and the incredible burden this has placed on John."

There were many testimonials from those who know the appellant and his family all conforming to the same theme; namely the close bond which had developed between this young child and the appellant and the commitment and devotion which he was contributing to her welfare and upbringing. Additionally there were six witnesses called before his Honour, each of whom testified to the changes which had developed in the appellant since the death of his partner, his devotion to the young girl and the bond which had developed between them. They spoke with one voice about the apparent cathartic effect which the death of the deceased and its consequences had had upon the appellant; in the sense that what had existed as an underlying decency had been brought to the fore as a consequence of the responsibilities which he had assumed. Again, these witnesses spoke of the love and affection which the appellant bore for his daughter to which the daughter was responding. These witnesses were speaking of events which had endured for nearly 2 years since the date of the death.

34. It was on the basis of this unchallenged material that counsel, who appeared for the appellant before the sentencing judge, whilst recognizing that a term of imprisonment had to be imposed, had submitted in the alternative that a term should be fixed which would allow it to be suspended or, at the least, would allow for a very early release date. It was put that the material which was before the judge should lead him to the view that the reclamation and rehabilitation of the appellant was so firmly entrenched and the hardship which would flow to the young child from the appellant's incarceration for a lengthy period so clearly established and exceptional, that a merciful sentence was called for.

37. There can be little doubt, from the judge's sentencing remarks, that he was prepared to accept the mitigating factors which had been put on the appellant's behalf. His Honour said:

"I accept that from, certainly shortly after the time of this accident, you have acted in a very different manner to your pre-accident behaviour. It is clear from the evidence that for most of the time from the accident, you have not only cared for your daughter but have done so in an exemplary manner. Additionally your personal rehabilitation has been strong, in that - during that time - you have overcome your addiction to marijuana and have been drug free. Further, your general demeanour, your general attitude to life and to others about you has been markedly improved whereas, before the accident, you were withdrawn, you were unpresentable in your personal care and appearance. Since that time, you have become far less withdrawn and have clothed yourself, groomed yourself and generally acted in a normal responsible manner."

41. It is also apparent that his Honour was prepared to act on the evidence which he had accepted to the point where he agreed that the head sentence of imprisonment to be imposed, which he said would otherwise be a lengthy one, should be lower than would normally be given and that the disparity between that sentence and the time when the appellant was to be eligible for release should be larger than normally would be the case. His Honour said:

"However, by reason of your reformation and rehabilitation and the mitigating factors, which I accept, I am satisfied that the head sentence should be less than would ordinarily be the case and, further, that the discrepancy between the head sentence and minimum term should be longer than would ordinarily be the case."

Nevertheless, his Honour took the view that, with a crime of this nature, considerations of punishment, and general and specific deterrence, were so important in the sentencing process that he could not accede to counsel's submission that the head sentence could be one which would allow for a suspension of that sentence. Hence, he imposed the sentence of 5 years' imprisonment and ordered the appellant to serve a minimum term of 2½ years before becoming eligible for parole.

46. During the course of this appeal, Mr. Priest who has appeared with Mr. D'Arcy for the appellant, has submitted that the error which is demonstrated in the exercise of his Honour's sentencing discretion is that the sentence actually imposed does not reflect what his Honour set out to achieve. In the first place, he submits, a sentence of 5 years' imprisonment does not reflect a reduction below what would ordinarily be imposed by way of a head sentence for an offence of culpable driving, based on negligence, which is due to sudden loss of control and unaccompanied or explained by evidence of a course of reckless behaviour or proven substance abuse. Further, it was submitted, that although the non-parole period fixed did show a "discrepancy" more than would ordinarily be expected for most crimes, it was not so unusual for a crime of this nature, and in this case did not take sufficient account of the hardship which was likely to flow to the child as a result of the lack of her sole and devoted parent. Thus, it was contended the judge had failed to give effect to the findings which he had made and had given too much weight in the sentencing process to aspects of deterrence and too little weight to the mitigating factors, personal to the appellant, which he had clearly accepted.

49. For my own part, I think that there is substance in these submissions. There can be no doubt that principles of general deterrence must always play a significant role in the imposition of punishment for the offence of culpable driving. That has been stated so often by this Court that it cannot be gainsaid. It is reflected in the incremental increases which Parliament has made to the maximum penalty for the offence over recent years, themselves reflecting the community view that those who drive motor vehicles on our roads must, by appropriate punishment, be deterred from doing so irresponsibly and without regard for the lives and safety of others. But, as is the case of other crimes of involuntary manslaughter, there will be exceptional cases where the impact of principles of general deterrence in the sentencing process can and will be moderated by other purposes governing the sentencing process such as demonstrated remorse, rehabilitation, and other factors, personal to the offender established by the evidence. It is, of course, a truism to say that the criminal law exists for the protection of the community and that courts must be sensitive to contemporary attitudes of the community in which they are administering criminal justice. But, in exceptional cases, the protection of the community may be better served by extending leniency where such leniency is warranted. There can be little doubt that the sentencing judge was alert to the principles to which I have adverted. The real issue is whether he gave vent to them in the discretion which he exercised. All offences of culpable driving are undoubtedly serious and this case was no exception. It was a case where excessive speed and inadvertence led to fatal consequences for a woman on the threshold of her life. I cannot accept Mr. Priest's submission that the judge was in error in concluding that past convictions for exceeding the speed limit, resulting in temporary loss of licence, bore upon the moral responsibility of the appellant in the commission of this offence. It clearly did because, even though such convictions were recorded several years before this fatal accident, it was clear that the appellant on this night had not heeded those warnings[1].

52. However and notwithstanding what I have said, in cases of culpable driving due to speed and inadvertence, the courts in this State have not infrequently punished those crimes by sentences of 5 years or less[2]. It is true that, with the gradual increase in the maximum penalty, the sentences imposed for culpable driving have themselves been increasing - and rightly so. Indeed, depending upon the circumstances, sentences of 6 years' imprisonment and more have been not infrequently imposed. Statistics are, as we have frequently said, of limited use because each case must ultimately depend upon its own facts. But I do not think it can be said that, in imposing a head sentence of 5 years in this case, his Honour was imposing a sentence less than that which would ordinarily be imposed for an offence of the nature of the one with which his Honour was dealing.

55. In fixing the minimum term, the sentencing judge was clearly influenced by the head sentence which he had fixed because he had already acknowledged that the discrepancy between the two would be longer than would ordinarily be the case. Counsel for the appellant submits that, in fixing the term which he did, his Honour has failed to give any, or sufficient, weight to the submission which had been made to him that the case was a "truly exceptional" one where incarceration would have significance, inter alia, for the welfare of the child who would be deprived of the support of both parents. In fixing what he regarded to be an appropriate minimum term, his Honour made no reference to this submission; nor did he specifically advert to the question whether the circumstances in which the child would be left should play any part in the disparity between the head sentence and minimum term. Counsel for the respondent submitted that his Honour's remarks in which he had expressly accepted the mitigating factors advanced on behalf of the appellant should be taken as implying that his Honour had the interests of the child in mind in fixing the minimum term which he did. Because a sentencing judge does not advert to particular submissions which have been made to him does not mean that he has overlooked them. Nevertheless, the circumstances in which the child would be left without parents was at the forefront of counsel's submissions both in respect of fixing a term which could be suspended or in fixing a minimum term which would lead to early release. It is, I think, surprising that his Honour did not specifically advert to the child's circumstances in fixing the minimum term. It was a factor worthy of discrete consideration because it was clear upon the material that, in the 21 months between the accident and the date of sentence, a very close bond had been

forged between the appellant and his daughter. It was open to be thought that a 2½ year absence of a devoted father from a child so young would, or might, have a significant effect upon the child's continued progress. However, it would I think be difficult to find, in the presence of the obvious support of the child's grand-parents, the kind of exceptional hardship which sometimes leads a court to order immediate release of the offender[3]. However the circumstances which were demonstrated by the evidence do suggest that it was a case where the Court, whilst not ordering immediate release, might have shown some mercy in fixing a date for release which would seek to ensure that the parent/child relationship already established would not be rendered meaningless. This is, as Tadgell, J.A. said in Carmody[4] a demonstration by the Court of mercy towards a young child without a parent, the law having "immemorially shown tenderness towards the very young, the very old and the sick".

59. I am, for the reasons stated, of the view that the error of which the appellant complains has been demonstrated and has resulted, in the unique circumstances of this case, to a sentence which is manifestly excessive. For my own part, I would substitute a sentence of 4 years and I would fix a minimum term of 18 months before the appellant becomes eligible for parole. I would also vary his Honour's orders of cancellation and disqualification of licences by ordering that he be disqualified from obtaining any further licences for a period of 2½ years from the date of the original sentence.

63. I agree, but I should emphasize that the sentences to be substituted are only justified by the truly unusual combination of circumstances recounted in the judgment of the Acting Chief Justice.

71. The formal order of the Court is that the appeal is allowed. The sentence imposed below on count 1 is set aside and in lieu thereof the appellant is sentenced as follows. On count 1, to a term of imprisonment for four years. The Court confirms the fines imposed by the learned sentencing judge on counts 2, 3 and 4. We direct that the appellant serve a minimum period of one year and six months before becoming eligible for parole. We further order in respect of count 1 that all driver's licences and permits held by the appellant under the Road Safety Act be cancelled and that he be disqualified from obtaining any such licence or permit for a period of two and a half years from the date of the original sentence.

We further declare, pursuant to s.18 of the Sentencing Act 1991, that the appellant has already served a period of 256 days pursuant to the sentences, including the period between the date of the original sentence and today's date, and we direct that the fact of this declaration and its details be entered in the record of the Court.

[1] cf. R. v. O'Brien & Anor. [1997] 2 V.R. 714 at 718 per Charles, J.A.; R. v. Veen (No.2) [1988] HCA 14; (1988) 164 C.L.R. 465 per Mason, C.J., Brennan, Dawson and Toohey, JJ. at 477-8.

[2] See, for example, R. v. Franks [1998] VSCA 100; [1999] 1 V.R. 518 (a case where the conviction was ultimately quashed, but where the trial judge had imposed a sentence of 3 years); R. v. Howarth [2000] VSCA 94 (where this Court refused to interfere with a sentence of 5 years); R. v. Rudebeck [1999] VSCA 155 (3 years for a grossly fatigued truck driver); R. v. Yalim [2000] VSCA 64 (5 years on each count of culpable driving, but 1 year cumulated); R. v. Menzies [2001] VSCA 22 (where this Court reduced a sentence of 6 years to 4 years on the culpable driving charge).

[3] cf. R. v. Maslen & Shaw (1995) 79 A.Crim.R. 199 at 209 per Hunt, C.J. at C.L.

[4] (1998) 100 A.Crim.R. 41 at 45.