R v Menzies [2001] VSCA 22

(1) That the sentence imposed was manifestly excessive.

(2) The learned sentencing judge erred in not treating the evidence of rehabilitation as relevant to the head sentence as well as the minimum period.

(3) The learned sentencing judge erred in that he gave no, or insufficient, weight to the issue of delay.

(4) The learned sentencing judge erred by placing disproportionate weight on the consumption of heroin by the appellant, thus sentencingon the basis that he was dealing with a significant drugs case.

(5) The learned sentencing judge erred in directing total cumulation of the sentences imposed on counts 1 and 2.

(6) The learned sentencing judge erred in giving insufficient weight to the matters put in mitigation, inter alia:

(a) Evidence of rehabilitation;

(b) The circumstances leading to the presence of both prescription and non-prescription drugs in the blood of the appellant.

15. The maximum sentences relevant to this appeal are 20 years for culpable driving and five years for negligently causing serious injury. The Court need not concern itself with the maximum for possessing a drug of dependence.

18. The appellant is currently 31 years of age. She attended Wantirna High School to Year 11. Thereafter she worked for five years with C.S. First Boston Stockbrokers. After she was retrenched, she did waitressing and secretarial work at Burnham Beeches. She ceased work upon becoming a mother.

21. Although the appellant had some previous convictions, predominantly for dishonesty, the sentencing judge expressly stated that they had no relevance for sentencing purposes.

24. The factual background of these offences may be summarised as follows. On the morning of Saturday 20 February 1999, the appellant went to Knox City Shopping Centre and there obtained some heroin. She injected some of this heroin into her arm using a syringe in an industrial area off Lewis Road in Wantirna. Both of her children, aged two and three, were with her in the car. After she had injected the heroin she then drove towards her de facto's residence in Cockatoo.

27. At about 1.40 p.m. the appellant was observed by a witness, Rodney Clarke, driving along the Burwood Highway in Ferntree Gully, near Dorset Road. He observed the appellant to be wandering across lanes and was concerned that she was driving as though she was asleep. He continued to observe the appellant drifting and wandering between lanes and at one stage needed to take evasive action to avoid a collision with her. Later, Mr Clarke observed the appellant driving along Lysterfield Road, again wandering out of her designated lane and drifting across to the wrong side of the road. The appellant then travelled into Wellington Road, and two motor cyclists needed to take evasive action to avoid collision.

30. In Wellington Road a Mr Allan Leggett observed the appellant driving on the incorrect side of the road as she approached him. Her vehicle drifted back on to the correct side of the road when passing Mr Leggett and consequently there was no accident. It was not long after this that the fatal head-on collision occurred. Mrs Annaliese Rogers, who was the driver of the car struck by the appellant, described observing the appellant's vehicle on the wrong side of the road heading directly towards her. It wandered further towards the kerb and initially she believed it was going to turn into a driveway. When the vehicle was about three cars' lengths away, Mrs Rogers realised that was not going to occur, and she attempted to swing to the right to steer around the appellant's vehicle. That vehicle, however, swung back towards the road centre, striking the near front passenger corner of Mrs Rogers' vehicle, pushing it sideways and backwards up against a railing.

33. Prior to the collision, the vehicle driven by the appellant had travelled across double lines dividing the carriageway. The carriageway itself was in good condition. An inspection of both vehicles revealed that neither had any mechanical fault which could have contributed to the accident.

36. When spoken to at the scene the appellant indicated that she had had heroin that morning. She was observed to have slurred speech, her eyes were rolling back in her head, and her eyelids drooping.

39. A search of the appellant's vehicle located a partially full syringe in the glovebox. Tests revealed this to contain heroin.

42. A sample of the appellant's blood was subsequently analysed and found to contain both heroin and prescription drugs. Dr Morris Odell, a forensic physician, expressed the opinion that the appellant's driving skills would have been adversely affected by the ingestion of the drugs found in her blood.

45. As a result of the collision, John Rogers, a front seat passenger in the car, was killed and his wife Annaliese Rogers, the driver of the vehicle, sustained a fractured left upper arm, fractured shoulder, numerous lacerations to her right knee and bruising.

48. A report dated 4 July 2000 from Mrs Rogers' orthopaedic surgeon, Mr T. Tran, indicated that, fortunately, she was making a good recovery from these injuries.

51. A rather succinct victim impact statement indicated that, apart from the physical injuries to which I have referred, Mrs Rogers suffered from nightmares and poor sleep and was emotional when alone.

54. The appellant suffered a fractured nose and bruising and her children suffered minor injuries as a result of the accident.

57. It ought to be stated immediately that this case presented an extremely difficult sentencing exercise for the learned sentencing judge. Given the nature of the driving, its genesis and its consequences, he was clearly entitled to impose an immediate custodial sentence and, in doing so, to give weight to the principle of general deterrence. His Honour was also faced with imposing a sentence which reflected the efforts of the appellant to rehabilitate herself.

60. Most of the grounds argued in the course of this appeal could be subsumed in ground 1, which was that the sentence was manifestly excessive. In arguing that this was so, Mr Dickinson, who appeared on behalf of the appellant in this Court, relied on a number of factors. In relation to the circumstances surrounding the driving itself, it was submitted that the ingestion of heroin had to be seen in the context of the appellant's efforts, prior to the day of the fatal collision, to rid herself of the heroin addiction. Apart from counselling sessions on 8 and 19 February at the Knox Community Health Service, the appellant had consulted a Dr Doug Utley of the Norwood Medi-Care Centre on 8 February 1999 requesting treatment for withdrawal from heroin. The doctor prescribed medication for her and described the appellant as much improved when he saw her on 15 February 1999.

63. In a record of interview conducted with police on 2 March 1999, the appellant described the prescription tablets she had taken on 20 February as including Diazapam, Panadol and Serepax. On that day, to counter the withdrawal symptoms she was experiencing, she had obtained and injected 10 millilitres of heroin, being an amount which she could normally handle. Her explanation as to what occurred thereafter was that the heroin must have, in effect, reacted with the prescription drugs.

66. The depositional material indicates that an analysis of blood taken from the appellant revealed the presence of both prescription drugs, being sedatives (and their metabolites) and heroin and its derivatives. The opinion of Dr Odell tended to confirm what the appellant had told investigating police. His stated opinion was:

(1) The observations made of Ms Menzies immediately after the collision were consistent with intoxication by a sedative drug, most likely to be heroin.

(2) The blood test results were consistent with recent use of heroin and Diazapam, both sedating drugs capable of adversely affecting driving skills.

(3) Her driving skills would have been adversely affected by the effects of these drugs at the time of the collision.

72. Accordingly, it was submitted by Mr Dickinson that this was a case which needed to be distinguished from that of a driver who deliberately injected himself or herself with heroin or consumed a large quantity of alcohol, in each case knowing in advance the probable effects of such ingestion upon the subsequent driving. Nor was this a case where the heroin had been taken "just for kicks".

75. I interpolate that it was common ground that the culpable driving of the appellant was as a result of the ingestion of drugs rather than driving embarked upon recklessly.

78. It was put that the sentencing judge, in his comments during the plea and sentencing remarks, focussed on the fact of the heroin injection rather than the circumstances surrounding it. Certainly, on my reading of the material, his Honour placed great weight on that aspect of the offence.

81. Reliance was also placed by Mr Dickinson on the factor of delay. The offences occurred on 20 February 1999. For reasons which remained unexplained, the appellant was not charged until 31 January 2000, almost one year later. Thereafter, on 10 April 2000, the appellant pleaded guilty at the committal mention of this matter. The plea was not heard until 13 July 2000 and sentence was handed down on the 28th of that month.

84. In developing this submission counsel referred the Court to such cases as R. v. Miceli[1], where, at p.591, Tadgell, J.A. had commented:

"There is no doubt that proper sentencing principles dictate that undue delay in the disposition of a charge should work in favour of a prisoner being sentenced. The remarks of Sir Laurence Street in R. v. Todd [1982] 2 N.S.W.L.R. 517 at 519 and 520 have not infrequently been adopted by this Court upon the point. Again, the remarks to a similar effect of the Court of Criminal Appeal in R. v. Kane [1974] VicRp 90; [1974] V.R. 759 at 767 have not infrequently been applied. Most particularly is the matter of delay between the commission of an offence and the imposition of a sentence to be taken into account when rehabilitation is a real prospect; and it is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to reorganising his life. This is what happened here. ... There is, in my opinion, no requirement that a delay should be inordinate before it deserves to be taken into account in accordance with the principles adopted in the cases I have mentioned."

89. In the instant case it was put that during the period of delay, including in particular the period during which no charge was preferred against the appellant, she set about rehabilitating herself in a remarkable fashion. It was submitted that this factor, which had been raised in the course of the plea, had not been adverted to in the judge's sentencing remarks. Undoubtedly this is so, but, in fairness to his Honour, it should be noted that it was not pressed by the counsel who conducted the appellant's plea.

92. It is, perhaps, unnecessary to detail the endeavours of the appellant to rehabilitate herself since the sentencing judge himself spoke of "the remarkable effort" that the appellant had made to rehabilitate herself since the date of the fatal accident.

95. During that period, the appellant had extricated herself from a long-term and violent relationship with her de facto, who was a drug trafficker; had fought and won a battle against her heroin addiction; had obtained suitable accommodation for her and her children and had stabilised the family life. The appellant had also reunited with her parents, who were supportive of her, and renewed her religious affiliations with the Roman Catholic Church. A plethora of material by way of character references and psychological and counselling reports attested not only to the appellant's past rehabilitative efforts but provided a favourable prognosis.

98. Apart from rehabilitation, counsel for the appellant relied upon her full co-operation with the investigating police; her plea of guilty at the earliest opportunity; her genuine remorse; her lack of any relevant prior convictions; and the difficulty a mother who was acknowledged to be devoted to her two young children would inevitably experience in her separation from them while serving a term of imprisonment.

101. On behalf of the respondent, Mr Hicks pointed out that virtually all these matters were the subject of comment by the sentencing judge. His Honour had noted the appellant's co-operation with the police, the early guilty plea and the lack of significant prior convictions. He also had regard to the concern the incarcerated appellant would have for her children's welfare. In terms of the issue of rehabilitation his Honour remarked:

"It appears that you have cleansed yourself of heroin. You have for many months been living down in the Mornington Peninsula. I have oral evidence from Mrs Moore as to your progress with St Vincent de Paul. You have also gone out yourself and sought help and counselling. I have read a number of reports from various agencies who give favourable testimony as to your efforts. I have also read the report of the consultant psychologist Dr Ball and your counsellor Ms Barbara Dixon from whom you are obtaining counselling. All these reports are favourable to you and I take all the written material and the oral evidence into account. I am satisfied that you are indeed remorseful for your conduct on this day. I also note that 11 days before this accident, you sought medical treatment from the Norwood Medical Centre to try and rid yourself of the heroin addiction and were in fact undergoing treatment. You had also been to a number of counselling sessions, even one day before. On this particular day [20 February 1999] you were apparently suffering heroin withdrawal which led you to go to Knox City to try and obtain some heroin where, it appears, it is freely available. Your efforts of obtaining treatment before this day indicates that you had a desire to try and rid yourself of the addiction."

106. It has been constantly said that the question of whether a sentence is manifestly excessive is not capable of much argument. In the present case it seems to me that the learned sentencing judge has failed to accord sufficient weight to the constellation of mitigatory factors to which I have referred and which were urged on the appellant's behalf, albeit that his Honour referred to almost all of them in his sentencing remarks. It is arguable that his Honour over-emphasised the injection of heroin and failed to place it in the context in which it occurred. Further, while rehabilitation may be said to be a common factor in offences of culpable driving, the disabilities overcome by the appellant in the present case and the circumstances in which that rehabilitation occurred, may be regarded as out of the ordinary, and it may be argued that the sentencing judge did not accord them sufficient weight. In any event, I have concluded that, regardless of whether any specific error can be

identified in the exercise of the sentencing discretion, the sentence imposed on the count of culpable driving is manifestly excessive.

110. That being my view, it is unnecessary to deal with the other grounds argued on behalf of the appellant.

113. I would propose that the appellant be re-sentenced on count 1 to a term of four years' imprisonment. I would not interfere with the sentence imposed on count 2 save that I would make six months of that sentence cumulative upon count 1. The sentence imposed on count 3 and the orders made relating to the appellant's licence should remain unaltered. This would result in a total effective sentence of four-and-a-half years. I would fix a term of two years before the appellant became eligible for parole.

121. In my opinion the appeal should be allowed, for the reasons stated by Coldrey, A.J.A., and the appellant should be re-sentenced as his Honour has proposed.

125. In the circumstances described by Coldrey, A.J.A., I consider that seven years' imprisonment is manifestly excessive. One cannot appeal against a total effective sentence as such[2], but that conclusion shows that there must be error either in the sentence imposed on count 1 or in the direction for cumulation or both. (There is no error in either of the sentences imposed on counts 2 and 3.) Accordingly, I agree with the other members of the Court that appellate intervention is warranted, but I cannot subscribe to the disposition their Honours propose, which in my opinion is

The sentences of imprisonment imposed below are quashed and in lieu thereof the appellant is sentenced as follows:

The Court directs that six months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of four-and-a-half years' imprisonment. A non-parole period of two years is fixed.

138. It is declared that the period of 246 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that such declaration was made and its details.

141. The orders for cancellation of licence and disqualification from obtaining a licence for three years are affirmed. The disqualifications are concurrent and have effect from 28 July 2000.

[2] R. v. Boucher [1995] VicRp 7; [1995] 1 V.R. 110 at 116