R v McLachlan [2004] VSCA 87

7. On 26 September 2003, the appellant, David Craig McLachlan, who is now aged 47, was convicted by a jury in the County Court at Geelong, after a trial lasting five days, on one count of culpable driving causing death and one count of causing serious injury negligently. The maximum custodial sentences for the offences are, 20 years and five years, respectively. The appellant admitted a number of prior convictions, the most relevant of which are two offences of driving a motor vehicle with a blood alcohol content in excess of the prescribed limit, which occurred in 1976 and 1979, and one of speeding in 1989. After hearing a plea in mitigation, the learned sentencing judge sentenced the appellant to four years' imprisonment on count 1 and 12 months' imprisonment on count 2. His Honour directed that four months of the sentence imposed on count 2 be served cumulatively with that imposed on count 1, thus making a total effective sentence of four years and four months' imprisonment. A non-parole period of 18 months was fixed.

10. By notice dated 14 October 2003 the appellant sought leave to appeal against the sentence pursuant to s.582 of the Crimes Act 1958 and on 12 March 2004 a judge of this Court granted the leave sought. The grounds on which the appellant relies in support of his appeal are these. In his notice of 14 October 2003, the specified ground is that the sentence is manifestly excessive. By order of the Registrar made on 24 March 2004, however, a second ground was added, namely, that "the learned sentencing judge erred in giving weight to special or specific deterrence" when sentencing the appellant. Further, by notice filed on 26 April 2004 the appellant seeks leave to add yet another ground, which essentially claims that a less severe sentence should be substituted for the one imposed on the basis that his health "has deteriorated subsequent to the sentence and, in particular, events have occurred

(a) show the true significance of facts relating to [his] health and disability and the capacity of the authorities to manage his particular disability;

(b) make his sentence of imprisonment more burdensome than was envisaged;

(c ) reveal that imprisonment has had an adverse effect on his health;

(d) establish that risks to his health that were adverted to by the learned sentencing judge have now been materialised."

18. 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.

21. At the time of the collisions, all four cars were travelling at approximately the 100 k.p.h. speed limit, although it seems that the appellant was travelling slightly in excess of it. His blood alcohol content at the time of the accident was in excess of .086% and was possibly as high as .133%. At the hearing of the plea in mitigation, the appellant's counsel submitted that any period of imprisonment that the sentencing judge might impose should be wholly suspended because the circumstances here were exceptional, and in particular, the appellant's paraplegia, he said, will make serving any term of imprisonment by him unduly burdensome. Whilst his Honour agreed with the "thrust" of counsel's submissions that it was appropriate to apply mercy in the circumstances of this case, he said that he could not "accept that [the] effects [of counsel's submissions] warrant a sentence which either could be or should be, wholly suspended. It is proper however that the sentence otherwise appropriate, be considerably mitigated or discounted by these powerful factors in the special circumstances of this case."

24. At the outset of the hearing before us, Mr Mullaly for the appellant sought leave to file affidavit material in support of the proposed new ground, as well as ground 2. More particularly, counsel sought to file and rely on the affidavit of the appellant sworn 27 April 2004 and the two affidavits of his solicitor, John Charles Doria Butler, sworn, respectively, 26 and 27 April 2004. The Crown opposed this course. The Court gave counsel leave to argue the proposed ground 3 and, for that purpose, to refer to the affidavit material, but reserved the decision whether to give leave to add the new ground and to file the supporting affidavits until it handed down its decision in the matter.

28. 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.

31. The appellant also deposes in support of ground 2 that he will never seek to be re-licensed or drive a motor car again given his physical limitations and his medical conditions, particularly muscular spasms and involuntary seizures from which he suffers from time to time. The affidavits that were sworn by his solicitor deal essentially with the process that has to be pursued by a paraplegic in order to obtain a driver's licence, highlighting the difficulty that a person with that disability faces in seeking to obtain one. The affidavits also exhibit a report from the appellant's treating neurologist in respect of his ability to be re-licensed to drive a motor vehicle. It is convenient to mention at this point that this material, in my view, is not fresh evidence[1] and is, therefore, inadmissible.

34. It was submitted for the appellant that, although at the time of sentencing it was recognised that imprisonment would be a greater burden to him because of his disability, the extent of it was not then appreciated. The new material, it was said, explains the true extent of the difficulties caused to the appellant by the prison system. In that context it was also claimed that, although it was recognised at the time of sentencing that there was a risk that the appellant could fall whilst in prison, it was not appreciated that it could result in such a serious injury or that the prison system would be unable to diagnose the extent of it for some five months. Furthermore, said counsel, the material reveals the justification for the concern that existed at the time of sentencing as to the ability of the prison system to provide to the appellant the necessary medication in a timely manner.

37. It seems plain enough that evidence of an event occurring after sentence is not admissible if it is led merely to show that the sentence imposed is excessive, or, put another way, that the sentence turned out to be excessive.[2] But evidence of an event occurring subsequent to the sentence may be admitted, in the court's discretion, in order to avoid a miscarriage of justice, if it shows the true significance of a relevant circumstance that existed at the time of sentence, even though its existence was then not known.[3] It was argued for the appellant that the new material fell into the second category of evidence. Counsel submitted that it established the true impact of imprisonment on the appellant and shows that the sentence was unduly harsh on him and that he should be re-sentenced.

40. 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.

43. If, as the appellant claims, he did not receive timely treatment from the prison authorities for his injury that he sustained as a result of his fall, that is to be deplored, but that is a matter for the Executive and not for this Court, and the same applies to the administration of medication to the appellant by the prison authorities. Moreover, I consider that, overall, the inadequacy of medical treatment afforded to the appellant in the prison system, as claimed by him in his material, is not of such a degree as to destroy the underlying basis of the assumption made by the sentencing judge as to the medical treatment that the appellant would receive whilst in custody. I note that it was not suggested that the risk of the appellant suffering a fall whilst in prison was greater than outside prison.

46. I mention for completeness that Mr Mullaly sought to liken the alleged increased stress that was being experienced by the appellant in prison on account of his condition to the circumstances that prevailed in R. v. Nora Morgan. In that case evidence was admitted to establish the recurrence of cancer in the offender and that this had increased the level of stress suffered by her in the prison system. At the time of sentence, it had been assumed that the cancer had been successfully treated. In my view, however, there is no relevant parallel between the two cases. The evidence sought to be relied on here does not establish that the appellant's paraplegia has materially worsened in prison.

49. Consequently, I consider that the proposed evidence does not fall within that category of evidence that may be admitted by the Court in the exercise of its discretion in order to avoid a miscarriage of justice. Rather, as I have said, it is inadmissible. But even if it could be said that the material constitutes evidence of the kind contended for by Mr Mullaly, I consider that the Court should not admit it in the exercise of its discretion because, even taking account of that evidence, for reasons which become apparent when I consider ground 1, I would not regard the sentence as one that is manifestly excessive. In any event, as I have said, the possibility of the occurrence of the events revealed in the affidavits on which the appellant seeks to rely was fully appreciated by the learned sentencing judge and taken into account by him in constructing the sentence.

52. Consequently, I think that the proposed new ground would fail and, in the circumstances, I would not give the appellant leave to file the affidavit material to which I have referred or to add the new ground.

56. The next ground argued by counsel was ground 2. In that context, Mr Mullaly submitted that his Honour made a specific error when he said in the sentencing remarks that specific deterrence was a prominent sentencing factor in this case. Counsel contended that either no weight should have been given to this sentencing principle or that it should have been moderated to a significant degree. It was said that, from a realistic point of view, the appellant's prospects of driving a motor vehicle in the future were so minimal that it could not be sensibly said that he will or may re-offend. Thus, it was claimed, specific deterrence had almost no relevant part to play in the sentencing disposition. Mr Mullaly argued that, although the appellant's prior convictions for drink driving could be regarded as going to sentence, that did not justify treating specific deterrence as a relevant sentencing principle in this case.

59. There is much force in Mr Mullaly's argument that, from a common sense point of view, the appellant is unlikely to have the opportunity of re-offending and, therefore, specific deterrence ought to have been of only small relevance for sentencing purposes. But I consider that his Honour did not make the error contended for. In my view, the sentencing remarks, when read as a whole, make it fairly plain that he did not treat specific deterrence as a prominent sentencing factor when constructing the sentence.

62. I therefore turn to consider the relevant parts of his Honour's sentencing remarks. Near their outset, the judge referred to the appellant's prior convictions and said, by reference to Director of Public Prosecutions v. Wareham[6], that these matters "go to both specific deterrence and ... general deterrence". His Honour then made the impugned statement, namely, that specific deterrence (and denunciation and general deterrence) were prominent sentencing factors in this case. Given the judge's reference to Wareham, and having regard to what was said in that case as to the relevance of prior convictions of this kind, he must have considered, rightly I think, that the appellant's prior convictions should be reflected in the sentence. But the learned sentencing judge then went on to highlight the many mitigating factors that were relevant in this case, including the appellant's disability, the burden of serving any sentence of imprisonment, his personal circumstances, his remorse and the delay in having the proceeding resolved. His Honour then turned to what he obviously thought was the prominent sentencing principle, namely, general deterrence, and pointed out that in a case such as the present, this principle is always a "very weighty consideration" for sentencing purposes.[7] The judge, nevertheless, accepted the appellant's submissions that, notwithstanding the paramount importance of general deterrence in a culpable driving case, in the context of the special circumstances present here, it should not "overwhelm other [mitigating] considerations". His Honour then moderated to a significant extent the principle of general deterrence as was sought by the appellant, albeit not to the point where he considered that a wholly suspended sentence would be appropriate. That general deterrence was significantly moderated is reflected in a sentence that was imposed which, I consider, is a lenient one.

65. Given that the only sentencing principle of which the judge spoke when he came to construct the sentence was general deterrence, and given that he significantly moderated its operation, it seems obvious enough that his Honour did not treat specific deterrence as a prominent sentencing factor. The suggestion that the judge did so is contradicted by his explanation, which I have summarised, as to how he arrived at the sentence. But even if it be accepted that the judge's statement relatively early in his sentencing remarks that specific deterrence was a prominent sentencing factor was erroneous, given the balance of his sentencing remarks it is obvious that such error was not material to the sentencing disposition.[8]

68. In the circumstances, I consider that ground 2 must fail.

72. 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.

75. 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.

78. In the circumstances, I consider that the sentence is well within the range of sentences that was available to his Honour. Consequently, I think that ground 1

should fail. It follows from what I have said that I am of the view that the appeal should be dismissed.

84. For the reasons given by Chernov, J.A., I agree that leave to amend the grounds of appeal by adding proposed ground 3 and the application to submit further evidence should be denied. I further agree that the appeal should be dismissed.

88. I also agree that the application for leave to amend by adding further proposed ground 3 should be refused, and I agree that the appeal should be dismissed.

92. The formal orders of the Court are as follows:

The application made to amend the grounds of appeal by adding proposed ground 3 is dismissed.

[1] R. v. Nguyen [1998] 4 V.R. 394 at 400 per Kenny, J.A.

[2] R. v. Babic [1998] 2 V.R. 79 at 80, 82 per Brooking, J.A.

[3] See, for example, R. v. Eliasen (1991) 53 A.Crim.R. 391, R. v. Nora Morgan (1996) 87 A.Crim.R. 104, R. v. Babic at 80-82 (and the cases referred to there), R. v. WEF [1998] 2 V.R. 385 at 388-389 per the President and R. v. Rostom [1996] VicRp 60; [1996] 2 V.R. 97 at 99 per Charles, J.A. and R. v. Rawlings [2003] VSCA 157R at [15-17] per Batt, J.A.

[5] (1991) 53 A.Crim.R. 391.

[6] [2002] VSCA 110; (2002) 5 V.R. 439.

[7] See, for example, R. v. McGrath [1999] VSCA 197; Wareham at 443.

[8] See Kovacevic v. Mills (2000) 76 SASR 404 and R. v. Fox [2003] VSCA 138 at [17] per Chernov, J.A.

[9] [2001] VSC 90.

[10] [2002] VSCA 162; (2002) 5 V.R. 508.

[11] [2003] VSCA 140.

[12] See, for example, R. v. O'Connor [1999] VSCA 55 at [19] per Winneke, P., R. v. McGrath at [24] per Batt, J.A., and R. v. Cody (1997) 25 M.V.R. 325.

[13] See, for example, Wareham, Withers [2003] VSCA 176, R. v. Taylor [1999] VSCA 206.

[14] [1997] VSCA 55 at [19] per Winneke, P.

[17] See s.3(1) of the Crimes (Culpable Driving) Act 1992 (Act No.13 of 1992) which imposed a maximum penalty of 15 years' imprisonment. At that time, manslaughter also carried a maximum penalty of 15 years. See s.119(1) (Sch.2, item 3) of the Sentencing Act 1991 (Act No.49 of 1991).

[18] See s.60(1) (Sch. 1, item 3) of the Sentencing & Other Acts (Amendment) Act 1997 (Act No.48 of 1997).