R v Merritt [2008] VSCA 238

2 The appellant Gregory Merritt appealed against sentence imposed upon him in the County Court at Ballarat. On a count of culpable driving (count 1) the maximum penalty for which is 20 years' imprisonment, he was sentenced to five years' imprisonment. On a count of recklessly engaging in conduct that placed another person in danger of death (count 2) the maximum penalty for which is ten years' imprisonment, he was sentenced to 14 months' imprisonment. Six months of the sentence imposed on count 2 was directed to be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of five years' and six months' imprisonment. A non-parole period of four years' imprisonment was fixed by the sentencing judge.

3 The offences of which the appellant was convicted, after trial by a jury, occurred on the Western Highway at Pykes Creek in Victoria on 28 June 2004 at approximately 2.30 pm. At that time there were road works being undertaken in the west bound lanes of the Western Highway a short distance to the west of Pykes Creek Reservoir. The appellant was driving a prime mover and an unladen semi-trailer in a westerly direction upon Western Highway. The evidence before the jury was that the vehicle driven by the defendant was travelling at approximately 90 - 100 kilometres per hour and was engaged in cruise control when it struck a trailer which was at that time being attached to a utility vehicle by two workers engaged in the road works. One of those workers suffered injuries from which he subsequently died. Count 1 related to this matter. The second worker managed to jump clear shortly before the collision occurred and was uninjured. Count 2 related to this matter.

4 The evidence before the jury was that approximately 700 metres to the east of the point of collision signs warning of road works were erected. Those road work signs contained a sign restricting speed from 110 kilometres an hour to 80 kilometres an hour. Approximately 300 metres from the point of impact the road work speed limit was further restricted by signs to 60 kilometres per hour. Approximately 100 metres to the east of the point of impact plastic bollards were set up upon the roadway so as to diverge the left lane into the right lane. The evidence was that the appellant's vehicle struck these bollards before colliding with the utility and trailer. A flashing arrow board was fixed to the trailer indicating that traffic was to diverge to the right. The force of the impact pushed the trailer and the utility approximately 60 metres to a point where it came to rest in a grass median strip. The prime mover and trailer came to rest approximately 90 metres west of the point of impact also in the median strip.

5 Immediately following the collision the appellant stated to witnesses that he did not see the deceased and his co-worker, or the utility and trailer, until immediately before the collision took place. He said that he must have fallen asleep. The appellant was interviewed by police soon thereafter. He said that he had not observed any signs warning of road work. He said that as he drove past Pykes Creek Reservoir he decided to put his sunglasses on because of glare. He turned his head to the passenger seat and looked for his sunglasses. He picked up his coat from the seat and felt in the pockets to see if his sunglasses were in there. He then found his sunglasses on the seat under his coat. He looked at his sunglasses and was about to put them on when he observed the utility in front of him. He applied his brakes and tried to steer around the utility but the collision nevertheless occurred.

6 In the course of the police interview the appellant was asked about his statement made at the scene that he had fallen asleep. He said that he had said that as his 'first instinct', but that after he thought about it he had concluded he did not fall asleep. It was submitted by the prosecution, and accepted by counsel for the appellant upon the plea, that the jury verdict was consistent with the jury having accepted that what the appellant told police in the course of the interview was the true circumstance under which the offences occurred. Accordingly the basis of the conviction for culpable driving was that the appellant had caused death by driving negligently by failing to a gross degree to observe a reasonable standard of care.

7 The appellant was aged 37 years at the date of the commission of the offences and 40 years at the date of sentencing. He is a married man with two teenage children. He was educated to year 10 level. He commenced employment in the transport industry at the age of 21 years and had driven trucks ever since. He had no relevant prior convictions although he had appeared at the Magistrate's Court in Ballarat in 1989 relating to a dishonesty offence and at the Magistrate's Court at Heidelberg in 1994 in relation to drug offences. He had no traffic convictions. The evidence established that the appellant was an experienced truck driver who had been in stable employment in the transport industry for many years prior to the commission of the offences.

8 There was evidence before his Honour that the events of 28 June 2004 had had a considerable effect upon the appellant. A medical report from his general practitioner was tendered before the sentencing judge. The appellant had attended upon his general practitioner three days after the death of the deceased complaining of severe nightmares, tearfulness and sleeplessness. He was diagnosed as suffering from severe reactive depression. The appellant ceased employment as a truck driver soon afterwards. The appellant had been treated by psychologists Dr Lorensini and Ms Long. He was diagnosed as suffering from post traumatic stress disorder as a result of the collision.

9 The sentencing judge expressed a number of conclusions in relation to the gravity of the offences. He stated that the criminal conduct did not involve a momentary lapse. He considered that the facts that -

• The appellant took his eyes off the road for 25 to 30 seconds whilst he 'fossicked' with his coat and located his sunglasses;

• He failed to see any of the road signs requiring speed reduction to 80 kilometres an hour and then 60 kilometres an hour, which signs were approximately 700 and 300 metres from the point of impact respectively;

• He drove over a distance of 100 metres striking bollards prior to the point of impact;

• His vehicle travelled in the left lane at a constant speed of 100 kilometres per hour immediately before the collision.

• The appellant failed to see the flashing arrow sign on the trailer;

• The appellant did not react in any way to avoid the accident until impact;

• The appellant was an experienced truck driver driving a large truck and trailer:

were relevant factors in his conclusion that the appellant's conduct was not at the lower end of culpable driving offences.

The judge set out his findings in favour of the appellant. He found that he had -

• His expressions of remorse for causing the death of the deceased were genuine;

• Specific deterrence was not a significant matter in the circumstances;

• The appellant had experienced a great deal of guilt and had suffered from post traumatic stress disorder which had impacted upon his quality of life, interpersonal relationships and had led to self-punishment.

10 Finally his Honour concluded that general deterrence was a primary consideration for sentencing in culpable driving cases. He gave consideration to the appropriate minimum term as follows:

This is the term the Court considers that you should serve before becoming eligible for parole. In determining that term I have taken into account all relevant matters as set out above and I have concluded that you will benefit from a period under the supervision of the Parole Board. You have a number of unresolved psychological issues and you will need supervision to ensure you reconnect with treating professionals who will be able to continue with counselling that you will receive whilst in prison.

12 In light of the findings made by the learned sentencing judge that the appellant -

(d) was a person of previously good character and reputation;

(e) had been employed in the transport industry for many years and had an unblemished driving record;

(f) was genuinely remorseful for causing the death of the victim;

(g) suffered post traumatic stress disorder as a result of causing the death of the victim;

(h) required ongoing psychological treatment to address the symptoms of that disorder;

(i) was not a person for whom specific deterrence was a significant sentencing matter;

(j) would benefit from a period of supervision by the Adult Parole Board: the non-parole period imposed by the learned sentencing judge is manifestly excessive.

13 The appellant does not appeal his head sentence.

14 On behalf of the appellant it is submitted that a non-parole period of four years amounts to approximately 73 per cent of the head sentence. Whilst counsel for the appellant concedes that there is no standard formula for the calculation of an appropriate minimum term it is submitted that the ratio of the minimum term to the head term is unusually high. It is argued that such a minimum term imposed as it was without the giving of reasons invites of the scrutiny of the Court.[1] It is submitted that the circumstances of this case whereby the sentencing judge made a number of positive findings in favour of the appellant and furthermore whereby he concluded that the appellant would benefit from a period under the supervision of the Parole Board called for a shorter non-parole period to be fixed. It is submitted that the non-parole period fixed reflects error and is manifestly excessive.

15 The respondent on the other hand submits that both the total effective sentence and the non-parole period fixed were well within the range of appropriate sentences to be fixed for such offending.

16 The relevant legal principles in relation to the fixing of a non-parole period are set out in R v V [2] and have been applied in a number of subsequent cases.[3]

17 As those cases make clear a non-parole period cannot be fixed by reference to some fixed percentage of a head sentence. All of the relevant factors need to be considered. When fixing the non-parole period the sentencing judge is required to '... determine that minimum period for which in his judgement, according to accepted principles of sentencing, the prisoner should be imprisoned'.[4]

18 In R v Morgan & Morgan[5] Jenkinson J (with whom Kaye J agreed) said:

The term of the sentence is the period which justice according to law prescribes, in the estimation of the sentencing judge, for the particular offence committed by the particular offender. The 'lesser term' or minimum term, is the period before the expiration of which release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify.

The use of the words 'particular offence' and 'particular offender' in the above passage emphasises the necessity for consideration of the particular circumstances of the case under consideration in fixing a non-parole period.

19 In the case before us it is submitted on behalf of the appellant that the non-parole period fixed by the sentencing judge amounted to 73 per cent of the head sentence and that the ratio of the minimum term to the head sentence is 'unusually high'. However, there is no 'usual' non-parole period. In R v Bolton and Barker[6] Callaway JA said:

As with the discount appropriate to a plea of guilty, there is no fixed ratio between a head sentence and a non-parole period. In the majority of cases the proportion is between two-thirds and three-quarters, but both shorter and longer periods are found.

20 In that case the Court of Appeal dismissed an appeal in respect of a total effective sentence of ten years and nine months' imprisonment with a non-parole period of seven years and six months. However, cases can be found where long non-parole periods have been reduced upon appeal. In Krasnov v Shlakht[7] the Court stated that a sentence of 16 years' imprisonment and a non-parole period of 14 years was 'longer than the period that might be fixed in other kinds of case in which a sentence of 16 years is imposed, and in that sense is unusual.'[8] The Court stated that of itself that was not a sufficient basis upon which it should interfere with the exercise of the very wide discretion conferred on a sentencing judge. However in that case no reasons were given by the sentencing judge for the fixing of the non-parole period in question, and of significance was the fact that the Court could not discern any good reason for fixing 'such a comparatively long non-parole period'.

21 In similar circumstances, the majority in R v VZ[9] reduced a non-parole period of six and-a-half years' imprisonment imposed in relation to a head sentence of eight years' imprisonment to five-and-a-half years' in respect of the same head sentence. It was considered that the non-parole period was out of the ordinary and there were no circumstances that could be discerned as justifying the fixing of such a period.

22 In DPP v Josefski, Callaway JA stated that R v VZ stood for the following propositions:

1. When a sentencing judge decides to fix a non-parole period that is unusual, reasons for taking that course should ordinarily be given.

2. A non-parole period may be unusual by comparison with other cases or having regard to the facts of the instant case or the course of the plea.

3. Where a non-parole period is unusual, a failure to give reasons does not inevitably betoken error but it invites appellate scrutiny.[10]

23 The use of the word 'unusual' in the above case does not however mean that there is a 'usual' non-parole period. In the light of the cases, it must mean that in circumstances whereby the non-parole period fixed is either a very high or a very low proportion of the head sentence, then appellate scrutiny may be invited.

24 In our view the classification by counsel in this case of a non-parole period of 73 per cent of the head sentence as being 'unusually high' is of little assistance. The issue to be considered is whether in all the circumstances of the case, and of the offender, the non-parole period is capable of reasonable explanation or not. Obviously in circumstances where a sentencing judge has fixed a very long period between the non-parole period and the head sentence, or has fixed a very short non-parole period an appeal court will be much assisted by reasons given by the sentencing judge for fixing the non-parole period in question. However as is clear from the authorities, the failure to give such reasons does not speak of error. The question to be determined is whether in all of the circumstances it was reasonably open to the sentencing judge to fix such a non-parole period.

25 In our opinion and although the sentencing judge did not give a specific reason for fixing a non-parole period of four years in circumstances whereby he fixed a head sentence of five years and six months, it is apparent that the non-parole period fixed by his Honour was reasonably open to be fixed by him in the proper exercise of his discretion. He set out in careful detail his conclusions as to the nature of the criminal conduct. In our view he was entitled to form the view that in the circumstances of this case the minimum term of imprisonment which justice required to be served by the appellant was four years and his reasons provide sufficient explanation as to why he decided to do so.

26 True it is that his Honour concluded that specific deterrence was not a significant matter in the circumstances.

27 True it is also that his Honour concluded that the appellant had good prospects of rehabilitation and that he required ongoing psychological treatment to address the symptoms of his post traumatic stress disorder.

28 However those matters did not in our view require his Honour to fix a longer period upon which the appellant might be eligible for parole than 18 months. Indeed it might well be argued that in circumstances whereby the appellant was a person who had engaged in employment all his life, and who was unlikely to commit further offences, that the necessity for supervision under parole was less necessary than might otherwise be the case in different circumstances and that such circumstances called for a relatively short gap between the minimum term required to serve the purposes of justice and the head term imposed. Of course both the head sentence and not merely the non-parole period must reflect mitigatory factors.[11]

29 As stated above no challenge was made to the length of the head term in all the circumstances of this case and appropriately so.

30 In our view the non-parole period fixed by his Honour was not manifestly excessive and was well within the sentencing discretion of the sentencing judge.

[1] R v VZ [1998] VSCA 32; (1998) 7 VR 693.

[3] See for example DPP v Josefski [2005] VSCA 265; (2005) 13 VR 85; R v Detenamo [2007] VSCA 160; R v Bertrand [2008] VSCA 182.

[4] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 (Barwick CJ, Menzies, Stephen and Mason JJ), 627.

[5] (1981-3) 7 A Crim R 146, 154-5.

[6] [1998] 1 VR 692, 699.

[7] (1995) 82 A Crim R 92.

[9] [1998] VSCA 32; (1998) 7 VR 693.

[11] R v Grmusa [1991] VicRp 54; [1991] 2 VR 153.