R v McGrath [1999] VSCA 197

12. Before turning to counsel's submissions I shall say something briefly about the circumstances of the offence. The applicant was employed as a labourer and concreter by his cousin, Darren Unthank, who conducts a business of erecting steel sheds and garages. On the morning of 30th November 1996 they had been working on a site at Flinders. When rain interrupted work about midday the two men had lunch at the Flinders Hotel, where the applicant consumed three pots of full strength beer. They resumed work until about 3.30 or 4 p.m. and then went back to Mr Unthank's home at Bittern. In the course of the next few hours the applicant drank six 375-millilitre cans of full-strength beer. At some time between 8.30 and 8.45 p.m. he told his cousin that he had had enough, that he was tired and that he wanted to go home and watch television. He went out to his car and drove away.

15. In the meantime the deceased, Lauren Hatfield, had left home on her bicycle for an exercise ride. She was a member of the local State Emergency Service and known to be very conscious of personal safety. The bicycle was fitted with a headlight, a flashing red tail-light, numerous reflectors and reflector tape and she herself wore an orange-coloured safety vest emblazoned with reflective gold tape. She also wore a bicycle helmet. A motorist, Carol Baker, who was travelling along Coolart Road after 8.35 p.m., stated that she observed the flashing tail-light on the deceased's bicycle from a distance. She saw the deceased clearly and had plenty of time to move to one side and overtake her. At about 8.45 p.m. Mr Patrick Stephens was standing outside on his property in Coolart Road. He saw the deceased ride past about 25 metres from where he was standing. He stated that she was clearly visible and he recalled that it was still sufficiently light outside for cars to drive without headlights. Mr Unthank, by contrast, said that it was near enough to dusk.

18. At 8.55 p.m., in Coolart Road about 110 metres south of the intersection with Graydens Road, the applicant's motor vehicle collided with the rear of the deceased's bicycle. The impact buckled the rear wheel and frame and forced the rear wheel downwards, leaving a 1½-metre-long tyre skid mark on the road about 20 centimetres from the edge of the bitumen surface. The north-bound lane is approximately three metres wide at that point. The applicant's vehicle is 1.89 metres wide and the point of impact was to the front left corner of the vehicle. The applicant did not brake or deviate in path prior to the impact. The deceased was thrown back on to the windscreen and the roof of the applicant's vehicle. She was carried along for a distance before being thrown to the ground about 72 metres north of the initial point of impact. She suffered "both severe and widespread" injuries and died at the scene. The applicant stopped his vehicle some 200 metres past the point of impact and returned. Ms Kerri Hancock, who was present, said that by that time it was "just before dusk" but that it was still possible to see other traffic and pedestrians clearly and car headlights would not have improved visibility. The applicant had his lights on on low beam.

21. The police arrived a few minutes later. The applicant said, "I came up out of the dip and she was just in front of me. I had no chance to do anything."

A preliminary breath test indicated the presence of alcohol. The applicant was cautioned and taken to Hastings police station for an interview and for breath analysis. The latter, which was conducted at 10.28 p.m., revealed a blood concentration of 0.113 grams of alcohol per 100 millilitres of blood.

24. In the course of the interview the applicant stated that he came over the rise before the intersection with Graydens Road, that he was travelling at about 90 kilometres per hour and that he suddenly noticed a bicycle helmet and then his windscreen shattered. Photographs tendered at the plea depicted a gentle rise and showed that the deceased was just over the crest. A series of eight videotaped re-enactments conducted on 8th September 1997 under a variety of light conditions showed that the deceased would have been visible through the windscreen of a car at dusk at about 200 or 150 metres prior to the impact. Police calculations of the likely speed of the applicant's vehicle were consistent with his estimate of 90 kilometres per hour. The applicable speed limit was 100 kilometres per hour.

27. The applicant was then aged 25. He had no previous convictions and was, in all respects except over-indulgence in alcohol, hard working and of good character. The deceased was aged 28. The victim impact statements made by her mother, sister and brother are moving testimony to their grief and the loss that they have suffered. The deceased lived with her parents at Somers. They have had to sell their house and move to Woodend because the house held so many painful memories for them.

30. Mr Forrest argued the four grounds together, treating grounds 2, 3 and 4 as in effect particulars of ground 1.

33. So far as the applicant's criminal culpability was concerned, he submitted that the offence should be characterised as falling within the lower to middle part of the range of conduct giving rise to an offence against s.318(2)(b) or (c). He referred to the circumstances of the impact, as I have already done, and emphasised a number of other factors. There was, for example, no suggestion that the applicant engaged in erratic driving in the stretch of his journey home leading up to the accident or that he was visibly affected by his consumption of alcohol. Earlier in the evening his conduct had been observed to be unaffected and witnesses conceded that his appearance at the scene of the accident could well have been due to shock. True it is that he was not maintaining a proper lookout and that his speed, though within the limit, was unsafe, but he was not driving on the gravel verge and this was not, as in some recent cases, a head-on collision or other instance of driving on the wrong side of the road. The applicant's blood alcohol reading was substantially less than in a number of other comparable cases.

36. Counsel then turned to submissions regarding the sentence itself. The learned judge said that she had taken into account the sentencing objectives of just punishment, specific deterrence, denunciation and general deterrence. It was acknowledged that she had also had regard to mitigating factors, namely the applicant's good character, his relative youth, his absence of prior or subsequent convictions, his co-operation with the police including a frank record of interview, prospects of rehabilitation, remorse and his plea of guilty. Counsel submitted that the sentence, and in particular the head sentence, over-valued factors that could be said to favour condign punishment and under-valued factors weighing against it. In particular, he said, specific deterrence should have been given relatively little, if any, weight in the sentencing process. It was more difficult to criticise the non-parole period, but counsel correctly submitted that, if the discretion were re-opened, it would be the duty of this Court to fix whatever non-parole period it considered appropriate.

39. Counsel was right, in my opinion, thus to differentiate between the head sentence of five years' imprisonment and the non-parole period of two years and nine months, for the fixing of a non-parole period does not diminish the full impact of the head sentence. This Court and its predecessor have frequently said that the head sentence is to be calculated on the basis that the prisoner will serve the full measure of punishment. That common law principle is now reinforced by its declaration in s.5(2AA)(a) of the Sentencing Act 1991. I note, however, that counsel on the plea asked for, and achieved, a longer rather than shorter period of possible parole.

42. The Sentencing Act also requires a court to have regard to current sentencing practices. Mr Forrest submitted that a sentence of five years' imprisonment was not in conformity with current sentencing practices and provided the Court with raw statistics designed to support that submission. They appear to show that of 76 offenders sentenced between February 1997 and late October 1999, only 17 were punished with sentences of five years' imprisonment or longer and that the sentences imposed in some 40% of cases were between two and four years' imprisonment. There were, of course, lighter sentences and some sentences were suspended. Others, being youth training dispositions, reflected the special circumstances of young offenders. Statistics of that kind are of some assistance, but, as Miss Carlin submitted, they must be received with great caution. Not only were they what was properly conceded to be in "rough and ready" form, but a proper analysis would require attention to the salient facts of each case, including the question whether the offender was found guilty or pleaded guilty and, if the latter, at what stage.

45. A good deal of evidence was led on the plea to show that the applicant had taken serious steps towards rehabilitation. It was said that he still drinks a very moderate amount but not at all to excess and takes appropriate precautions such as arranging for someone else to drive him when he has consumed alcohol. There were also written testimonials. They included a certificate that he completed a drink-driver education programme on 22nd August 1998 and the assurance of continued employment in his cousin's firm leading to a foreman's position with his own crew.

48. Since 1992 the maximum custodial penalty for culpable driving causing death has been the same as that for manslaughter. At the time of the present offence it was 15 years' imprisonment. It is now 20 years' imprisonment. Parliament has thereby emphasised the gravity of an offence against s.318 of the Crimes Act. The negligence defined in s.318(2)(b) is of the same degree as that required to support a charge of manslaughter: see R. v. Shields [1981] V.R.717 at 724; R. v. Franks (No.1) [1998] VSCA 100 at [5] and R. v. Wright [1999] VSCA 145 at [9]. The state of mind described in s.318(2)(a) is the same as for reckless murder, but that need not invalidate the comparison of offences against s.318 with manslaughter. For there is also a form of manslaughter where the mens rea of murder is present, namely where that is so but the defence of provocation is not excluded.

51. Just as there is a wide variety of manslaughters, so there is a wide variety of conduct constituting an offence against s.318. The worst class of case would almost certainly involve the first kind of culpability described in s.318(2)(a), namely a conscious and unjustifiable disregard of a substantial risk of causing death. I mention that because the maximum penalty prescribed for the offence is reserved for the worst type of case falling within s.318, not the worst type of case falling within s.318(2)(b), (c) or (d), as the case may be: see and compare Ibbs v. R. (1987) 163 C.L.R.447 at 451-452.

54. It is nevertheless legitimate to compare the form of culpability with which we are concerned with involuntary manslaughter. In R. v. O'Connor [1999] VSCA 55 Winneke, P. said at [19]:

"If there is still a residual opinion existing in this community that the offence of culpable driving is not to be treated like other criminal offences because it is a 'tragedy for all concerned' ... then, in my view, the time has come for such views to be dispelled. Offences of culpable driving are commonly committed by persons who are of good character, but it must be understood that the community will not tolerate the taking of human life by acts of gross negligence of the sort that occurred in this case. The offence is a species of involuntary manslaughter, and it must be treated as such."

58. The present applicant was 25, not 17 as in R. v. Wright. The victim was blameless and entirely unassociated with the conduct of the offender and the events which led him to commit the offence: compare Director of Public Prosecutions v. Kalanj (1997) 98 A.Crim.R.505 at 510. The applicant was driving at 90 kilometres per hour coming up and over a stretch of road known by him to be dangerous. Importantly, to my mind, he did not see the deceased until he was upon her. His alcohol consumption had been well over the legal limit. There is no standard sentence. I would not give currency to the idea that five years' imprisonment is a standard sentence. Every case depends on its own facts; but, in a case such as I have just described, general deterrence is of paramount importance.

61. It cannot be said that insufficient weight was given to the applicant's plea of guilty in the circumstances that I mentioned at the beginning of this judgment. Indeed her Honour said that she would give him the maximum discount consistent with the stage of the proceedings at which the plea was entered: see s.5(2)(e) of the Sentencing Act.

64. That is not to say that the applicant does not feel genuine remorse. In addition, as I have already indicated, there was solid evidence of rehabilitation and there are grounds for optimism that the applicant has achieved a permanent change in his conduct, not least on account of his supportive family and the relationship he has formed with Miss Riding, who gave evidence on the plea. I accept that there is little need for specific deterrence, but I do not think that her Honour attached great weight to it: it is mentioned once, and in passing, in her sentencing remarks. I myself might have given less weight to the late plea of guilty and more weight to the rehabilitation that the applicant has achieved, but that is only a difference of emphasis. It does not impute error to the judge.

67. Having given anxious consideration to this case over the last few days and whilst listening to Mr Forrest's thoughtful and well-reasoned argument, I think that the sentence was very stern but I am not persuaded that it was manifestly excessive.

70. For these reasons I would dismiss the application.

75. This is another difficult application concerning sentence for the offence of culpable driving.

78. As R. v. Cody (1997) 25 M.V.R. 325 illustrates, each case of culpable driving is to be considered on its own facts. I would, nevertheless, agree with Mr Forrest that the applicant's driving seems to have been less culpable than that of the applicant in Cody. For that reason, amongst others, I too regard the present sentence as very stern indeed. Nevertheless, after close consideration and for the reasons given by Callaway, J.A., I am not persuaded that the sentence, and more particularly the head sentence, imposed on the applicant is manifestly excessive.

81. In view of an observation made to us by Mr Forrest concerning recent sentences for this offence, I would add that it would be anomalous if Cody, which emphasised that neither this Court nor its predecessor had set a tariff or laid down guidelines for sentences in culpable driving, should itself have come to be taken as doing that very thing.

86. I agree with the learned presiding judge that this application should be refused for the reasons given by him. This particular case gave me a great deal of concern, but in the end, I was persuaded that notwithstanding that the head sentence is very high, it is nevertheless within the range that was available to her Honour.

89. In my view, there are factors here which show that her Honour did not over-value the applicant's criminal culpability to the extent where the sentence imposed was manifestly excessive. The material shows that it was the large intake of alcohol and tiredness on the part of the applicant that were the principal factors that resulted in him virtually driving into the victim at a speed of 90 kilometres per hour, despite the fact that she was clearly visible to road users at a distance of 150 to 200 metres from the collision. The applicant thereby took the life of an innocent person who did no wrong in her use of the road. On the contrary, as the learned presiding judge has explained, she took all reasonable precautions in the form of her clothing and the lighting on her bicycle to be visible to other road users.

92. Having said that, however, the applicant's driving was not erratic or in breach of road laws and it has not been suggested that he was stupefied, as Mr Forrest put it, by alcohol. It is always difficult to evaluate a sentence by reference to those passed in other cases because each must depend on its own set of circumstances. Nevertheless, such a comparison is not entirely unhelpful in certain instances. In recent cases of this nature to which the other members of the Court referred and in which head sentences of five years were imposed, the conduct of the offender was, in many respects, significantly more culpable than that of the present applicant. This was one factor which caused me concern as to whether the sentence that was passed by her Honour was manifestly excessive. As I have said, in the end, although I formed the view that the head sentence of five years in this case is very high, it is within the range that was available to her Honour.