R v Pierson [1998] VSCA 110

10. Two vehicles were, however, parked on the northern side of Lathams Road, that is to say on the left hand side of the road from the point of view of the applicant's approach. One of the vehicles had run out of petrol. Mr Haig was in the course of siphoning petrol from the first vehicle, a Toyota Celica, in order to transfer it to the other vehicle. The two stationary vehicles were each on the gravel area and the off-side of each was perhaps 20 or 30 centimetres from the edge of the bitumen.

"Damon Haig was standing close to the Celica and perhaps had one foot on the bitumen surface. The driver's side door of the Celica was ajar to some extent. The near-side corner of the front bumper bar and the bull bar on your vehicle struck both Mr Haig and the partly opened door. It is plain that you did not see Mr Haig. You realised that a collision of some kind had occurred, and after travelling a short distance down the roadway, you executed a U-turn, returned and parked your vehicle near the scene of the collision. It was obvious that Mr Haig had sustained a very serious injury. The fact that you returned to the scene and waited there are of significance. Mr Haig was air-lifted to the Alfred Hospital and he died at 3.25 that morning."

17. On 27 August 1997, the applicant was arraigned before the Chief Judge of the County Court on a presentment containing a single count of culpable driving, the particulars alleging that the driving was culpable either by virtue of being grossly negligent or by virtue of its having occurred while the applicant was under the influence of alcohol to the relevant extent. On 12 May 1998, an application was granted to amend the presentment by deleting the reference to gross negligence. The applicant was then re-arraigned and pleaded guilty. At all times the applicant, it appears, has admitted driving the vehicle and has not contested the evidence of intoxication, denying only that there was any mechanical aspect of the vehicle rendering the driving negligent.

20. Accordingly, the applicant was sentenced on one count of culpable driving causing death, in that he drove "whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the ... motor vehicle". He was sentenced on the basis that at the time of the collision his blood alcohol content was about 0.16. A plea in mitigation was heard on 12 May 1998, during which a number of witnesses were called: Charmaine Anne Thomson, the fiancee of the applicant, who gave evidence as to the effect of the offence on the applicant; Ellie Mary Pierson, the mother of the applicant, who also gave evidence as to the effect of the offence on the applicant, the applicant's parents and about the applicant's background; and Paul David Williams, a cousin of the applicant, who gave evidence as to the effect of the offence on the applicant. In addition, his Honour considered a number of written character testimonials which were tendered. On 18 May, the applicant was sentenced to three-and-a-half years' imprisonment and a non-parole period was fixed of 18 months. Four days were to be reckoned as having already been served. It is against that sentence that the applicant now seeks leave to appeal.

23. There is no need, I think, to recount any more of the facts of the case or of the personal circumstances of the applicant, all of which were rehearsed by Mr Tehan in his usual careful and thorough submissions. The applicant is a man without convictions and who, on all accounts, is extremely remorseful for the consequences of his driving on 25 September 1995. Unfortunately, this is but another instance of the tragic consequences that are all too apt to follow when the driver of a motor vehicle is affected by alcohol. That anyone at all should have been killed in consequence is distressing enough: that it was a young man in the prime of his life who was an only son simply makes the accident the more distressing.

26. On this application, Mr Tehan, who I am sure said all in support of the application that could be said, relied upon what was called "unacceptable delay" between the date of the offending and the passing of the sentence, the applicant's extremely good prospects for rehabilitation and, overall, the general proposition that the sentence was manifestly excessive.

29. I take first the question of delay. In this respect Mr Tehan submitted that we should take in this case a similar view of the judge's sentencing remarks on delay as was taken by Charles, J.A. in R. v. Taafe, a judgment delivered on 30 July 1998 and in which Batt, J.A. and Vincent, A.J.A. agreed. In Taafe, the same County Court judge had been sentencing an offender after trial on a number of charges, including two counts of culpable driving causing death. As here, delay between offending and sentencing was put on the plea as a consideration that should go in mitigation. As noted by Charles, J.A. in para.46 of his Honour's judgment:

"During argument the learned judge had put it to counsel that delay was not a matter of any significance, either favourable or unfavourable to the applicant, that it was 'simply a fact of the matter but not one that really aggravates or mitigates the sentence'. In his reasons for sentence, his Honour had said: 'The delay of nearly three years has resulted in the matter hanging over your head for that period of time, but has also had deleterious consequences for the direct and indirect victims of your offences.'"

After referring then to the significance of delay as a matter tending sometimes in mitigation, Charles, J.A. said, in para.48:

"In the present case the learned judge appears to have taken the view that the consequences of the delay on the direct and indirect victims of the offences in effect cancel out the effect of the delay upon the applicant. With respect I do not think this can be correct."

Charles, J.A. then concluded, a little later in para.48:

"In my view the learned judge, with respect, erred in disregarding the delay of 35 months between offending and sentence."

I simply observe in passing that, in that case, his Honour went on to find that the sentence imposed was manifestly excessive.

38. In the course of his sentencing remarks on this occasion, that is on 18 May 1998 which was, as it happens, more than two months before the judgment was delivered by Charles, J.A. to which I have just referred, the learned sentencing judge said:

"Because of the delay in resolving this case, the parents and family of Damon Haig for more than two-and-a-half years have suffered the consequences of his death and will continue, of course, to do so. On the other hand, you and your family have suffered the consequences of the fact that your drunken driving has caused the death of a young man and the resultant suffering of his family."

42. This was seized upon by Mr Tehan as amounting to much the same comment as had been made by the same sentencing judge in Taafe, and which, counsel said, had led to this Court finding sentencing error in Taafe. Mr Tehan contended that here too we should conclude that the judge had taken the view - impermissibly, he said - that the consequences of delay for the victims and the consequences of delay for the applicant cancelled each other out.

45. For myself, I find the submission unpersuasive. I cannot see how it can be correct to construe the sentencing remarks of a judge in one case according to the way in which the sentencing remarks, even of the same judge, were construed in another case. Each case will always depend upon its own facts, particularly in sentencing, and especially when what is at issue is not the sentence passed but the way in which some particular aspect of the sentencing remarks should be read and construed. In the case before us, the sentencing judge certainly did not in terms put aside delay as irrelevant, and his passing reference to the effect of delay on the victims as well as on the offender was a mere statement of fact which does not, per se, betoken error. In itself it does not justify our concluding that the learned judge "appears to have taken the view that" the one cancels out the other. Nor could one conclude, on a fair reading of the sentencing remarks as a whole, that in this case the learned judge did disregard the period of delay between offending and sentence (which is the critical conclusion reached in Taafe). The remark on this occasion concerning delay as it impacted on the victims as well as the offender was not the only reference made by the judge to delay. When listing the matters relevant to sentencing the offender he said:

"As a matter of policy your plea of guilty has the effect of reducing the sentence. As to the mitigating circumstances, I have already referred to your plea of guilty, your remorse, your youthfulness, your lack of prior convictions, and other such matters. The two and a half year delay in bringing the matter to a conclusion is also relevant."

Despite counsel's submission to the contrary, I do not regard this reference to delay as otherwise than in the context of mitigating circumstances. The reference to delay was here made without further qualification, and it is not possible then to suppose that the judge disregarded delay between offending and sentence or treated it otherwise than as he should. Quite the contrary.

50. Accordingly if delay is significant to sentencing error in this case, it can only be on the ground that it was given too little weight, which, in the circumstances, is to argue a reason for saying (as counsel submitted was so) that the sentence imposed was manifestly excessive. And that was, indeed, the real burden of counsel's complaint in this case. He relied upon the recognition by the judge of the applicant's good prospects of rehabilitation which, the judge said, "would be best served by a non-custodial sentence". Again, however, the context of that remark is all-important.

It was said as the judge was weighing competing considerations. His Honour said:

"While the purpose of general deterrence and punishment each require a substantial term of imprisonment, your rehabilitation, on the other hand, would be best served by a non-custodial sentence of some kind. After weighing those factors it is obvious that no sentence short of imprisonment would be appropriate."

Again I reject counsel's submission that the first portion of the first sentence of what I have just quoted demonstrated error because it contained an incorrect generalisation about the need for a custodial sentence in all cases of culpable driving causing death. As I read it, the first part of that first sentence was no more than a reference to considerations pointing, in the circumstances of this particular case, to a term of imprisonment. In what I have just quoted I see no error.

55. His Honour then proceeded to determine the length of the sentence to be imposed in the light of all the circumstances. As I have said, I do not propose to canvass all of the facts of the offending, or all the factors that went in mitigation to which the judge had regard in his sentencing remarks. Mr Tehan mentioned them: the poor lighting, the proper speed of driving, the possible presence of the deceased on the bitumen, the applicant's U-turn and return to the scene to give assistance, the absence of any suggestion of previous bad driving on the day in question, the applicant's youth, the personality change he underwent after the offending and his undoubted remorse, and so on.

58. At the end of the day, in fixing a term of three-and-a-half years' imprisonment with a non-parole period of 18 months I think his Honour was merciful. The head term was well within range and, in fixing a minimum term of only 18 months, I think his Honour adequately recognised the rehabilitation prospects of the applicant. I have looked at the sentencing remarks in the light of the criticisms made by applicant's counsel, but, in my opinion, they were not only unexceptionable, they were in every respect entirely appropriate.

71. I agree with Phillips, J.A. I am troubled by the delay of 30 months which was allowed to occur between the happening of the offence and the passing of sentence, and which I think excessive. But the applicant's blood alcohol reading was a high one. The learned judge said in his sentencing reasons that he took into account the delay which had occurred, and his Honour's consideration of that delay is, I think, particularly reflected in the non-parole period fixed, which, it seemed to me, Mr Tehan did not seriously challenge.

74. In all the circumstances I cannot say that the sentence imposed was beyond range. I also would dismiss the application.

79. The order of the Court is that the application is dismissed.