R v Rees [2005] VSCA 25

6. On 27 May 2002, following an eleven-day trial during which 32 Crown witnesses were called and cross-examined by counsel for the applicant, Stephen Norman Rees ("the applicant"), who is now aged 42, the applicant was convicted by the jury of two counts of culpable driving causing death (counts 1 and 2) and two counts of negligent driving causing serious injury (counts 3 and 4). The maximum penalty for culpable driving causing death is 20 years' imprisonment and for negligent driving causing serious injury, five years' imprisonment. The applicant admitted 37 prior convictions from 13 court appearances between August 1985 and January 2000. These convictions related, in the main, to drug related charges and assaults. Save for a conviction in 1985 for driving a motor vehicle in a careless manner, the applicant has held an unblemished driving record for a period of 22 years.

9. After hearing a plea in mitigation made by counsel for the applicant, the learned judge imposed, on 4 October 2002, the following sentences of imprisonment: on each count of culpable driving, seven years, and on counts 3 and 4, two years and one year respectively. His Honour directed that three years of the sentence imposed on count 2 and six months of that imposed on count 3 be served cumulatively with the sentence imposed on count 1 and each other, thus making a total effective sentence of ten years and six months' imprisonment. His Honour ordered that the applicant serve a minimum term of seven years and four months' imprisonment before becoming eligible for parole. He further ordered that the applicant's driver's licence be cancelled and that he be disqualified from obtaining a licence for a period of nine years and six months from the date of sentence.

12. On 8 October 2002 the applicant filed Notices of Application for Leave to Appeal against conviction and sentence. He later abandoned his appeal against conviction and, on 30 July 2004, his application for leave to appeal against sentence was refused by Ormiston, J.A. In dismissing the application, his Honour concluded that the single ground of manifest excess listed in his notice of application as well as two proposed additional grounds argued by counsel at the hearing were not reasonably arguable. In relation to the ground of manifest excess, Ormiston, J.A. was of the view that the sentences were well within the relevant range. By Notice of Election filed on 10 August 2004, the applicant now seeks to have his application for leave to appeal against sentence determined by three judges of this Court. The sole ground is that the sentence is manifestly excessive.

15. Before considering the arguments of counsel it is necessary to describe briefly the circumstances relevant to the offending. The applicant's vehicle that was involved in the fatal accident was a four-wheel drive vehicle. The fatal collision occurred at approximately 11.15 a.m. on 12 July 2000 on the Princes Highway, Kalimna West, which is a small town located in East Gippsland. In the early hours of that day, the applicant had lost control of his vehicle when one of its tyres was punctured, causing him to drive it into a roadside ditch. As a result of this accident, the applicant's head struck the windscreen immediately in front of the driver's position, so that it cracked in a large spider-web pattern thereby obstructing or limiting vision through that part of the windscreen. The applicant returned home, but set out later that morning in his vehicle, and at about 11.15 a.m. was driving along the Princes Highway in Kalimna West in an easterly direction. Approximately half an hour before the collision, a witness saw the applicant's vehicle entering the Princes Highway from a side road. It passed a car and swung on to its incorrect side of the highway, towards the oncoming car driven by the witness, who had to apply the brakes very hard and veer left in order to avoid a head-on collision. The next occasion on which the applicant's vehicle was relevantly observed was a few kilometres prior to the collision. The witnesses who gave evidence about the applicant's driving during this period were travelling in three cars that were in front of the applicant's vehicle. His aggressive and dangerous driving is sufficiently summarised in the sentencing remarks of the learned sentencing judge. For present purposes it is only necessary to note that each of the witnesses gave evidence that, as the applicant passed his car, he drove first right up to the rear of it, then weaved backwards and forwards behind it, swerving from side-to-side and meandering all over the road, before eventually executing a dangerous overtaking movement. The accident occurred as the applicant was attempting to overtake the third vehicle, which was then travelling at approximately 90 to 95 kilometres per hour. Just prior to that, the witness's vehicle moved into the right-hand turn lane of its carriageway. As it did so the applicant's vehicle pulled out and started accelerating to overtake it. Travelling in the opposite direction were two vehicles, a white four-wheel drive vehicle and a combi-van occupied by the Soleri family. Both vehicles were travelling on the correct side of the road. As the applicant's vehicle, which was on its wrong side of the road, came towards the four-wheel drive vehicle, its driver veered to the left to avoid a head-on collision with the applicant. The applicant's vehicle side-swiped the four-wheel drive vehicle and travelled on,[1] colliding head-on with the oncoming combi-van. Its 19-year-old driver had no opportunity to avoid the collision and was killed instantly. His 49-year-old mother, who was a passenger in the rear seat, was also killed. The driver's 50-year-old father, Michael Soleri, and his 21-year-old sister sustained life-threatening injuries. The applicant suffered relatively minor injuries.

18. Michael Soleri's injuries included punctured lungs, open fractures to the left and right legs, abrasions requiring skin grafts to both legs, a crushed right foot, blood in his abdomen, a fractured vertebrae, splenic rupture and other serious abdominal injuries. He required medical resuscitation and surgical intervention to sustain his life after the collision. Dr McPherson, who treated him at the hospital, described his injuries as life-threatening and noted that he may never be able to walk again. His right toe had been amputated and hip replaced. Metal pins have been placed in his right leg and a bone infection in his left knee requires long-term bone grafting. His spleen has been removed. He will require ongoing surgical intervention. His daughter was initially treated for massive abdominal injuries and a fracture of her lumbar spine. She was later found to have also suffered spinal shock, a ruptured nerve root - resulting in mild weakness in the left leg and sensory change - and haematoma to her left knee, right thumb, left index finger and right ankle. Dr McPherson described her injuries as initially life-threatening and "now most likely to cause a prolonged disability, both physical and possible [sic] mental". The victim impact statements of Michael Soleri and his daughter, which were before his Honour, make for depressing reading, but amply demonstrate the devastating and long-term effect that those injuries, and the collision, had and will continue to have on their once happy family lives.

21. A blood sample taken from the applicant shortly after the collision showed a very high level of the drug Alprazolam, which is a mild sedative used to treat depression and anxiety. The applicant's blood sample also contained a level of tetrahydrocannabinol consistent with the applicant's having used cannabis in the four to six hours preceding the fatal collision. His blood alcohol reading was zero. It is not necessary, however, to deal further with these matters because, as his Honour noted in his sentencing remarks, "the court cannot be certain whether the jury was content to base its conviction solely on the objective assessment of your appalling driving [as described by several witnesses] or whether a combination of this evidence and that relating to unsafe levels of Alprazolam produced the guilty verdict". The learned sentencing judge concluded that "in either event a finding of guilt was clearly justified and you bear a high moral culpability for the two lives that were lost in this accident and the injuries suffered by the two survivors".

24. I now turn to the applicant's claim that the sentences imposed on counts 1 and 2 and the total effective sentence are manifestly excessive. Mr Carter for the applicant acknowledged that the offences were very serious, but pointed to a number of matters that were, essentially, mitigating factors. First, counsel claimed that the form of culpability alleged in the counts was not the most serious of the forms of culpability prescribed by s.318(2) of the Crimes Act 1958 and that the applicant was not sentenced on the basis that his grossly negligent driving was aggravated by the consumption of Alprazolam and cannabis. Counsel went on to contend that the applicant's driving occurred while he was concussed as a result of the earlier accident. In my view, however, there is no basis for this contention. There was no finding to that effect by the learned sentencing judge. This is not surprising given that it was not contended by the applicant's then counsel during the hearing of the plea in mitigation that there was a relevant relationship between the applicant's head injury and his appalling driving, or even that the applicant was concussed at the time. Moreover, his Honour ruled in the course of the trial that there was not sufficient evidence fit to go to the jury on the issue of automatism which, the applicant claimed, was the result of his having hit his head on the windscreen during the earlier accident. As his Honour noted in his sentencing remarks, "the Crown had led a body of evidence which confounded [this] suggestion" and thus, he ruled, as I have noted, that "there was no evidence fit to go to the jury on the question of automatism".

27. In anticipation of the Crown's submission that, due to his prior convictions, the applicant was not a person of good character, Mr Carter then argued that the applicant's "non-driving" prior convictions did not demonstrate that he was not a person of good character. Counsel said that what was relevant on this issue was the applicant's essentially unblemished driving record of 22 years. It seems to me, however, that this submission does not advance the applicant's case before us. He was not sentenced on the basis that he was not a person of previously good character and, importantly, his Honour had due regard, for sentencing purposes, to the applicant's sound driving record.

30. Mr Carter then highlighted the applicant's personal circumstances, more particularly that he is the father of five children, the youngest three (one aged ten and twins aged five years) being in his joint care, the deaths of two of his siblings and his mother, his ill-health and the breakdown of his 25-year relationship with a woman. Counsel also emphasised the delay of two years and three months between the offences and the sentence.

33. Mr Carter went on to submit that his Honour gave insufficient weight to the applicant's personal circumstances. For example, it was said, his Honour failed to take into account Dr Howson's observation in his report that the applicant was suffering from depression at the time of the accident. This claim was based essentially on his Honour's failure to refer to this matter in his sentencing remarks. Although Dr Howson's report was handed to his Honour only on the day of sentence, as Mr Carter pointed out, what Dr Howson said about the applicant's health was foreshadowed to the judge by the applicant's then counsel during the hearing of the plea in mitigation. Moreover, as counsel said, his Honour read the report before he sentenced the applicant. In the circumstances, it seems obvious enough that the judge did have regard, for sentencing purposes, to the contents of the report, including the above passage. The mere fact that the judge did not, in terms, refer to it does not mean that he overlooked it.

36. Counsel also argued that his Honour appears to have undervalued the relevance of the applicant's precarious psychological condition because he considered that there was no nexus between that condition and the commission of the offences. But again, his Honour's conclusion in that regard was well warranted by the psychiatric report for which he had called. In my view there is nothing in the sentencing remarks that shows that his Honour undervalued any relevant aspects of the report.

39. 13 It is trite that the question whether a sentence is manifestly excessive does not admit of much argument. The sentence must reflect the gravity of the offence and the offending conduct in the context of the offender's personal circumstances and other mitigating factors and the relevant sentencing principles. That the offence of culpable driving causing death is a very serious one is reflected in the maximum custodial sentence of 20 years prescribed by Parliament in relation to it and by statements to this effect by this Court in a number of cases. See, for example, the well-known observation in that regard by Winneke, P. in R. v. O'Connor[2]. Furthermore, I have no doubt that the offending conduct here was very serious and that, as his Honour observed, the applicant's conviction by the jury was well justified and, as I have already noted, his culpability for his offending conduct was high. I also agree, with respect, with the view of Ormiston, J.A. that " ... in truth the driving was so appalling that it deserves condign punishment ... ". Such mitigating circumstances as did operate were all before the learned sentencing judge, and there is nothing in his sentencing remarks that indicates that he overlooked them or gave them insufficient weight. It is also plain enough, as Mr Carter agreed, that general deterrence was a significant sentencing consideration in this case, as was the need for the court to denounce the offending conduct.

42. In the circumstances, like Ormiston, J.A., I consider that the sentences imposed on counts 1 and 2 are well within the relevant range. I also consider that the cumulation is not manifestly excessive as is contended for, having regard to the total criminality of the applicant's conduct. For completeness I mention that I also do not think that the non-parole period is relevantly inappropriate. I would dismiss the application.

46. For the reasons given by Chernov, J.A., I agree that the application should be refused.

54. The formal order of the Court is that the application for leave to appeal is refused.

[1] The driver of that vehicle pulled over. Her vehicle sustained minor damage to the driver's side rear wheel arch but she was uninjured although shaken.

[2] [1999] VSCA 55 at [19].