R v McLachlan [2004] VSCA 87

R v McLachlan [2004] VSCA 87 - VSCA 2004 case summary — Zoe

[10]

Before dealing with the material that the appellant seeks to file in support of his application to add ground 3 and his submissions on appeal, I shall describe briefly the circumstances of the offending, which are fully set out in the Crown summary and his Honour's sentencing remarks. On the afternoon of 14 September 2001, the appellant commenced drinking with a work colleague. First, he drank seven or eight cans of full strength beer. Later, between 4.30 p.m. and 5.30 p.m., he went to an hotel where the appellant drank three pots, and one full size bottle, of beer. After leaving the hotel at approximately 7 p.m. he drove his tray truck in a northerly direction along the Ballan/Geelong Road, Moorabool. The conditions were fine and dry and the road surface was bitumen and in good condition. Shortly prior to the collision, the appellant's vehicle straddled the white line in the middle of the 6.1 metres wide road; it then moved even further to the right. The driver of the oncoming car, an off-duty police officer, saw the appellant's oncoming vehicle, slowed down slightly and moved her car to her left in order to leave a greater distance between them. She expected that the appellant would see her and correct his trajectory along the road. He did not do so, however, and her vehicle was struck on the driver's side by the appellant's vehicle. Although the collision was only a "glancing blow", both the driver's side door-skins of the police officer's car were peeled back. Fortunately, she was able to come to a stop safely. The appellant's vehicle, however, continued on and, whilst travelling on the incorrect side of the road, hit two other oncoming cars. More specifically, the appellant's vehicle struck the first of the two oncoming cars, removing its driver's side front mudguard and wheel, bending back the driver's side doors and pushing the driver's side "A" pillar rearward. The driver of that car suffered immediate, severe trauma and serious injuries and died soon thereafter. The appellant's vehicle continued to rotate clockwise and its passenger's side front corner collided head on with the second of the two oncoming vehicles. Both vehicles rotated clockwise before coming to rest. The driver of the second of the two oncoming vehicles suffered a broken right femur, lacerations to her head and knees, tendon damage to her right ankle, a broken right hand and a laceration in her right forearm. At the appellant's trial, the driver deposed that her right leg was now two centimetres shorter as a result of the fracture, that she still suffered pain in her back and both her knees and that she continued to suffer from headaches. The appellant himself sustained spinal injuries resulting in his becoming a paraplegic.

[13]

The proposed new ground was argued first and, in that context, reliance was placed on the affidavit material that I have mentioned. In essence, the affidavits state the following. In his affidavit the appellant recounts the difficulties he says he has experienced while in prison due to his paraplegia. He says that of particular concern has been an incident which occurred on 21 October 2003 when he experienced a spasm, whilst he was transferring from his wheelchair to his bed, which caused the front castors of his chair to roll away and, as a result, he fell heavily on the floor. When he landed there was a very large "crack noise". He was assisted to his bed but was unable to tell whether he was hurt from the ribs down. He claims that after his fall he made a number of requests to attend a specialist at the spinal clinic in relation to that incident, but this was not arranged until 29 March 2004. It was only then that it was discovered that his right hip was broken by reason of the fall. He claims that the x-rays showed a significant break in his hip, and that now his right leg is much shorter than his left leg. It seems to be common ground, however, that even if the break in the appellant's hip had been diagnosed shortly after his fall, he could not have undergone surgery due to his medical condition. The appellant also says in his affidavit that the spasms from which he suffered at the time of sentence have increased in frequency and intensity since his fall. He claims that he is concerned that he may fall and injure himself again and that any injury may be severe because he cannot feel anything below his waist. He says that prison life is very hard and stressful for him as a paraplegic and that these events have added to his stress and fear. He also says that he has a continuing difficulty in adequately monitoring his pain levels through the taking of medication at the appropriate times because the prison authorities have imposed restrictions as to when his medicine is to be provided to him. These events, it was said, led to the appellant experiencing significant psychological stress and a deterioration in his general level of health.

[17]

In my view, however, the new material relating to the appellant's experience in prison was of a kind similar to that on which the applicant in Babic sought to rely in support of his application for leave to appeal against sentence. In that case, the applicant injured his back, after sentence, while working in a prison garden, and sought to rely on evidence of the injury to demonstrate that the burden of imprisonment will be more onerous on him than was appreciated at the time of sentence and that, therefore, a lower sentence should be imposed. The Court held that such evidence was inadmissible because it concerned an event which occurred after sentence on which reliance was sought to be placed for the purpose of showing that the sentence imposed has turned out to be excessive. Brooking, J.A. (with whom Winneke, P. and Ashley, A.J.A. agreed) distinguished[4] between evidence of events subsequent to sentence which threw light on circumstances which existed at the time of sentence - such as that in Eliasen[5] - and evidence of a subsequent event which, in itself, seeks to show that the sentence has turned out to be excessive. Material of the latter kind said his Honour, raised a matter for consideration by the Executive in the exercise of the prerogative of mercy, and not by an appellate court. The evidence on which the applicant now seeks to rely in this case does not throw light on, or explain, the circumstances that existed at the time of sentence. Rather, it does no more than show the working out of matters that were, in general terms, recognised and taken into account by his Honour at the time of sentence. For example, as Mr. Mullaly pointed out, the judge recognised that the appellant could suffer a fall whilst in prison and it would be surprising if his Honour did not also appreciate that if that were to occur, the appellant could suffer an injury as least as severe as he in fact sustained. In my view, the affidavit material which deals with the appellant's fall in prison does not reveal anything that has not already been contemplated by his Honour.

[27]

Ground 1 was argued last. Under cover of that ground it was submitted for the appellant that the sentence is plainly excessive and that the appropriate sentence in this case is one which wholly suspends any term of imprisonment that may be imposed. In support of this contention counsel submitted that, in light of the length of the sentence imposed, his Honour could not have given sufficient weight to the exceptional circumstances of this case notwithstanding that he said that he recognised their presence. It was said that, absent these circumstances, an appropriate custodial sentence would have been in the order of four years, and, if the mitigating circumstances present in this case were then taken into account, a significantly lower sentence would have resulted, which would have allowed for the suspension of any sentence of imprisonment. In support of the claim that a custodial sentence in the order of four years would have been appropriate in the absence of special mitigating circumstances, counsel pointed to R. v. Leesley[9], Director of Public Prosecutions v. Whittaker[10] and Director of Public Prosecutions v. Caldarera[11]. But reference to sentences imposed in other culpable driving cases can be of only limited use because, as has been said by this Court on numerous occasions, each case of culpable driving is to be considered on its own facts.[12] Without examining here the circumstances applicable to the cases to which counsel referred, it is sufficient to say that they are materially different from those which operate here. Moreover, although the head sentences in the last two cases were increased, respectively, to four years and five-and-a-half years' imprisonment, it must be borne in mind that they were appeals by the Director, so that the Court was constrained in the re-sentencing process by the principle of double jeopardy. In my view, these cases obviously do not provide a benchmark for the appropriate sentence for cases of culpable drink driving causing death. On the contrary, it is not uncommon for the head sentence in cases such as the present, where culpable driving results in death and injury, to be in the order of seven years' imprisonment.[13] I mention for completeness that, as Mr Hillman for the respondent submitted, the wholly suspended sentence sought by the appellant was almost out of the question, given the provisions of s.27 of the Sentencing Act 1991 and the fact that a sentence of three years' imprisonment or less would have plainly been inadequate.

[28]

The real question for present purposes, which does not admit of much argument, is whether the sentence is within the range of sentences reasonably available to his Honour given the seriousness of the offence and of the offending conduct, but having regard to the personal circumstances of the appellant, including mitigating factors, and the relevant sentencing principles. That the offence of culpable drink driving causing death through gross negligence is a very serious offence has been recognised in a number of cases. See, for example, the observations to this effect by Winneke, P., in R. v. O'Connor[14], Vincent, J.A. in R. v. Withers[15], and O'Bryan, A.J.A. in Wareham[16]. The gravity of the offence has also been recognised by Parliament. Since 1992 the maximum custodial sentence for culpable driving causing death has been the same as that for manslaughter.[17] The maximum sentence has been progressively increased and, as I have said, is now 20 years' imprisonment.[18] Furthermore, the circumstances of the offending were grave. The appellant had been drinking beer throughout the afternoon and, at the time of driving, had a blood alcohol content well in excess of the statutory limit. Further, he had two prior convictions for drink driving and he must have been aware of them. Notwithstanding that these previous offences were committed in 1976 and 1979, they are relevant to the present sentencing disposition and must be reflected in the sentence.[19] In addition, general deterrence and denunciation are important applicable sentencing principles. There were, of course, a number of important matters that went to mitigation and they were all noted and taken into account by the learned sentencing judge. Probably the most prominent of these factors were the appellant's paraplegia and the fact that imprisonment will be a particular burden to him by reason of his disability. No doubt it was principally because of those matters that the head sentence imposed on count 1 was relatively low (20% of the maximum available sentence), as was the sentence imposed on count 2. Moreover, the non-parole period is shorter than usual. In my view, this demonstrates that his Honour gave full weight to all matters of mitigation.

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Cases Cited (1)