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[2005] VSCA 162
respondent. Appeal dismissed; County Court sentence of six years' imprisonment with non-parole period of four years affirmed (paras 4, 19, 22).
Roach pleaded guilty to burglary, theft, dangerous driving and two counts of negligently causing serious injury after a high-speed police pursuit caused severe burns to an innocent driver. The County Court sentenced her to an effective six years' imprisonment with a non-parole period of four years. On appeal she argued the sentencing judge gave insufficient weight to threats by a co-offender, to her Aboriginal background, and failed to reduce the non-parole period; she also argued the sentence was manifestly excessive. The Court of Appeal held the judge had properly considered and given weight to the relevant mitigating factors but was entitled to prioritise general deterrence given the deadly nature of the driving; the sentences and non-parole period were not manifestly excessive, and the appeal was dismissed.
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On 14 December 2002 the appellant, Vicki Lee Roach, and Mark O'Neill forced entry into a milk bar in Mordialloc and stole cash, cigarettes and phone cards (para 6). They placed the stolen items in O'Neill's car. Roach, who was unlicensed, drove away with O'Neill as passenger. Police in a marked car sighted them and followed; a high speed chase occurred, with Roach travelling at speeds such as 130 km/h in an 80 km/h zone and 120–130 km/h on the South Gippsland Highway (para 7).
At the intersection with Webb Street, Narre Warren, a stationary vehicle driven by Nathan Hahn was struck from the rear by Roach's car at approximately 134 km/h (para 8). Both vehicles ignited. Mr Hahn suffered burns to 45% of his body, requiring extensive operations and skin grafts; his injuries form one count of negligently causing serious injury (para 9). O'Neill also sustained serious injuries (para 10); Roach herself was injured.
Roach pleaded guilty in the County Court to burglary, theft, conduct endangering persons (count 3) and two counts of negligently causing serious injury (counts 4 and 5) (para 2). The judge imposed individual sentences which, after directions for concurrency and cumulation, produced an effective head sentence of six years' imprisonment with a non-parole period of four years (paras 4, 11, 32-34). Roach appealed to the Court of Appeal on grounds including inadequate weight to threats from O'Neill, insufficient account of her Aboriginality and childhood separation, failure to impose the promised 'lower than usual' non-parole period, and manifest excess (para 5). The Court of Appeal dismissed the appeal (paras 19, 22).
The Court of Appeal (Callaway J.A., with Ormiston and Charles J.A. agreeing) reviewed the sentencing judge's reasons and the appellant's grounds of appeal against established sentencing principles and the factual findings made at sentence. The key factual findings were that the sentencing judge accepted the appellant's evidence in part: he accepted that O'Neill had threatened her and that she had prior abuse from him, and that these threats affected her judgment (paras 14-15, 32). The judge also accepted remorse and allowed a substantial discount for the early guilty plea (para 32).
Nevertheless, the judge concluded the offending was extremely serious: the driving created a genuine deadly danger and the collision and injury were near inevitable consequences of the conduct (para 33). For that reason, he considered general deterrence to be the paramount sentencing consideration for offences of this type and concluded that a substantial custodial term was required (para 33). He also expressed a guarded view of Roach's rehabilitation prospects, observing a recent breach of an intensive correction order and an extensive criminal record (para 16). He stated his intention to impose a 'lower than usual non-parole period' but rejected community-based options as inappropriate in light of the record and gravity (para 34).
On appeal the Court of Appeal focused on whether the sentencing judge erred in principle or imposed a sentence outside the permissible range. The court found that the judge had taken full and sympathetic account of Roach's background, including Aboriginality and childhood separation (para 12), had accepted the threats as a mitigating factor (para 15), and had allowed a substantial discount for the plea (para 32). Despite acceptance of the appellant's account, the judge properly considered the availability of police protection, the extreme danger of the driving, and the necessity of general deterrence (para 15). The appellate court concluded the sentencing judge had not undervalued the threats, nor had he erred in prioritising general deterrence; nor was the non-parole period or total sentence manifestly excessive given the relevant considerations (paras 15-18). Consequently the appeal was dismissed (para 19).
Before this decision, the established sentencing principles applied: sentencing judges must consider all relevant mitigating and aggravating factors, give credit for guilty pleas and remorse, take into account personal background and prospects of rehabilitation, and balance individual circumstances with community protection and deterrence. The Court of Appeal applied those orthodox principles here.
The decision does not purport to change sentencing law. Rather, it illustrates the application of existing principles in a factually grave case. Two points of emphasis emerge from Callaway J.A.'s reasons:
Threats falling short of duress are mitigating but do not necessarily displace general deterrence or prevent a substantial custodial sentence where the conduct endangered the public (para 15). The court thus reaffirms that mitigation for compulsion is not absolute relief from punishment where danger to third parties is extreme.
The sentencing judge may express an intention to impose a reduced non-parole period yet still impose a significant custodial sentence when rehabilitation prospects and prior breaches justify caution (paras 16, 34).
The court also noted a systemic issue: the maximum penalty for negligently causing serious injury is, in the court's words, "out of kilter" with maximum penalties for related offences, forcing courts to impose sentences approaching the statutory maximum when the gravity of harm is severe (para 11). This is an obiter observation about statutory design rather than a change in precedent.
Paragraph 11:
Paragraph 15:
Paragraph 33:
Paragraph 34:
This decision is most directly applicable to sentencing appeals where:
In such combination of factors the Court of Appeal signals that appellate intervention is unlikely unless the sentencing judge failed to consider or gave no weight to the mitigation, or placed disproportionate emphasis on aggravating features beyond the permissible range (paras 15-18).
The judgment itself does not record subsequent treatment by later courts. The Court of Appeal here did cite and compare its reasons with another recent decision in footnote [1] (R. v. Heinz; Director of Public Prosecutions v. Heinz [2005] VSCA 124), indicating awareness of contemporary appellate sentencing decisions (para 4 and footnote). For an authoritative account of how later courts have treated Roach, targeted research in subsequent reported decisions and citators is required. The present judgment, however, stands as an example of appellate deference to a sentencing judge who has balanced mitigation (threats, background and plea) against the overwhelming need for deterrence where the public risk is high (paras 15, 33-34).
Several practical and doctrinal questions remain open or are highlighted by this case:
The boundary between mitigation for threats and the weight of general deterrence: Roach shows that accepted threats do not automatically trump deterrence; but the case does not provide a formula for how to quantify mitigation from threats when the offending endangers third parties. The judgment affirms a qualitative balancing approach but not a precise metric (paras 15, 33).
The appropriate statutory maximums for negligently causing serious injury: The court's observation that the statutory maximum is "out of kilter" (para 11) invites legislative or sentencing guideline consideration but is not addressed by the court beyond noting practical consequences for sentencing in severe cases.
The assessment of rehabilitation and the impact of recent breaches of community orders: The judge's 'guarded view' of rehabilitation influenced the non-parole period (para 16). How recent breaches should numerically or qualitatively affect non-parole periods remains a matter for judicial discretion rather than fixed principle.
The treatment of Aboriginality and childhood separation in sentencing: The Court of Appeal was satisfied the sentencing judge took full and sympathetic account of these matters (para 12). However, the decision does not elucidate particularised guidance on how cultural or historical disadvantage should translate into mitigation in cases involving grave harm.
Concurrency and cumulation drafting: The Court noted imperfect expression of concurrency/cumulation directions though the judge's intention was clear (para 4). This underscores recurring practical issues in drafting sentencing orders and suggests appellate courts will look to substance over form when intention can be ascertained.
Each of the above points reflects areas where the Roach decision applies established principles to fact, but leaves room for further judicial elaboration or legislative reform. Practitioners should treat Roach as affirming the primacy of general deterrence in high-danger driving cases while recognising that accepted mitigation for threats and disadvantaged background must be expressly weighed and explained by sentencing judges to withstand appeal.
Criminal Law - Sentencing - Burglary, theft, reckless conduct endangering persons, negligently causing serious injury - Threats falling short of defence of duress - Appellant's disadvantaged background - Factors relevant to sentencing for negligently causing serious injury - Six years' imprisonment with non-parole period of four years not manifestly excessive.
Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
1 In this matter I will ask Callaway, J.A. to deliver the first judgment.
2 The appellant, who is now aged 46, pleaded guilty in the County Court to one count of burglary (count 1), one count of theft (count 2), one count of conduct endangering persons (count 3) and two counts of negligently causing serious injury (counts 4 and 5). The maximum custodial penalties for those offences are ten years' imprisonment for burglary and theft and five years' imprisonment for conduct endangering persons and negligently causing serious injury. The appellant admitted 125 previous convictions or findings of guilt from 23 court appearances between February 1976 and January 2003. The last court appearance, accounting for ten of those previous convictions, should not have been included on the further presentment. Her previous convictions were mainly for drug related offences and offences of dishonesty, but there were also six driving offences, including careless driving and failing to stop after an accident. In March 2002 she had been sentenced to an intensive correction order on charges of burglary, theft, handling and recklessly causing injury. She breached the intensive correction order. The order was cancelled and she was sentenced to six months' imprisonment.
3 The learned judge heard a plea for leniency on the appellant's behalf, in the course of which she herself gave evidence. His Honour was mistakenly provided with an earlier version of the presentment in which count 3 was conduct endangering life. He was, however, correctly informed of the maximum custodial penalty and referred to it in his sentencing remarks. The error having been brought to his attention, after the sentence was passed, his Honour said that it would have made no difference: the appellant's driving still warranted two years' imprisonment, of which only 12 months would be made concurrent. A ground relating to the erroneous version of the presentment has been abandoned.
4 The appellant was sentenced to two years' imprisonment on count 1, 12 months' imprisonment on count 2, two years' imprisonment on count 3, three years' imprisonment on count 4 and 12 months' imprisonment on count 5. Directions for concurrency and cumulation resulted in a total effective sentence of six years' imprisonment, in respect of which a non-parole period of four years was fixed. The directions for cumulation and concurrency are imperfectly expressed. Among other things, the sentence imposed on count 4 should have been the base sentence, but the sentence does work and his Honour's intention is clear.
"1. The learned sentencing judge erred in his assessment of the applicant's moral culpability by giving insufficient weight to the threats made to her by Mark O'Neill in the course of the offending.
2. The learned sentencing judge erred by giving little if any weight to the applicant's Aboriginality, including the impact of her childhood separation.
3. The learned sentencing judge erred by failing to impose, as was his stated intention, a '... lower than usual non-parole period'. (reasons for sentence, paragraph 34).
5. The individual sentences, non-parole period and total effective sentence are manifestly excessive."
6 Before turning to counsel's submissions I shall say something about the circumstances of the offences. At 3.45 a.m. on Saturday 14th December 2002 the owners of a milk bar in Mordialloc were awaked by the shop alarm. They heard voices inside the shop and telephoned the police. In the shop were the appellant and Mark O'Neill, who had gained entry by kicking in the front door. A nearby resident saw them emerge carrying a garbage bag. They had stolen $170 cash from the till, $8,200 worth of cigarettes and $580 worth of phone cards. Those events were the foundation for counts 1 and 2, except that the phone cards were not mentioned in count 2.
7 The stolen items were placed in the boot of O'Neill's car. The appellant drove off with O'Neill as the passenger. Neither of them was licensed. As she did so, the first police car arrived and began following them. The appellant increased her speed and the police car activated its emergency lights and siren. A chase ensued and other police vehicles were summoned by radio to assist. The appellant did slow her vehicle down in built-up Dandenong but, both before and after the built-up area, she greatly exceeded the speed limit, for example 130 kilometres per hour in an 80-kilometre per hour zone and 120 to 130 kilometres per hour along the South Gippsland Highway.
8 As the appellant's vehicle approached the intersection with Webb Street, Narre Warren, the traffic lights were red. Ahead, in the centre of three lanes and stationary at the lights, was a Holden Commodore driven by 21-year-old Nathan Hahn. He saw the approaching police car in his rear view mirror and then a second set of lights directly behind him and closer still. He tried to move his vehicle forward to escape the appellant's vehicle but the latter, travelling at 134 kilometres per hour, smashed into him from the rear. At the time of driving, the appellant had alcohol, oxazepam, temazepam, two kinds of diazepam, morphine and a metabolite of tetrahydrocannabinol in her blood. Her blood alcohol reading was .034 per cent. Count 3 related to the entirety of the driving.
9 The impact caused both vehicles to be engulfed in flames. Mr Hahn could not escape. The doors could not be opened and the police were driven back by heat and flames. Fire extinguishers were of no avail. The police thought the occupants must have perished, but Mr Hahn managed to escape through the window. He was on fire, with extensive burns and melted hair. He was airlifted to hospital with burns to 45 per cent of his body, comprising his scalp, face, ears, back, arms, knees and internally to his airway. He required several operations, extensive skin grafts and the insertion of wires into his fingers. His victim impact statement and those of his mother and brother make, as one would expect, distressing reading. Quite apart from the terrible pain he endured, Mr Hahn has been scarred externally and emotionally for life. The injuries to him are the subject of count 4.
"32. I take into account in sentencing you your background as set out in the reports of Mr Simmons. I accept that you were the subject of abusive behaviour and threats from O'Neill; your judgment was clearly clouded at the time, as I previously mentioned. You pleaded guilty and saved the community the time and expense of a trial, and more importantly, you saved Mr Hahn the further ordeal of giving evidence. When coupled with what I find to be genuine remorse, you are entitled to and receive a substantial discount to the sentence I would otherwise impose but for that plea.
33. The crimes you have committed are extremely serious. The burglary was substantial and the proceeds significant. Your driving was a genuine deadly danger to members of the public and the collision and injury to Mr Hahn were the near inevitable consequences of your behaviour. In my view, general deterrence must be the paramount sentencing consideration for offences of this type. To drive in the manner you did in an attempt to avoid apprehension is simply outrageous. When combined with the injuries you caused Mr Hahn a substantial period of imprisonment is required to deter others minded to act in a similar way.
34. I take all factors relevant to you into account in sentencing you, and intend to reflect your prospects of rehabilitation by the imposition of a lower than usual non-parole period. I am unable to accede to the request of your counsel and your own request in Exhibit A, your letter to the Court, that I sentence you to a community-based disposition. Your criminal record is simply too extensive and your crime is too serious for such a course."
14 Mr Carter argued ground 1 first, beginning with the appellant's evidence on the plea. She said that, following the burglary and theft, when she saw a police car, she intended to pull over and did in fact slow down. The reason she continued to drive was that O'Neill threatened to kill her. He continued to urge her to go faster. She took his threat seriously because she had previously been subjected to violence from him and he had boasted of his violence to others. The judge accepted that evidence but, counsel said, he gave insufficient weight to the duress, falling short of a defence, exerted by O'Neill. There was no express finding in the sentencing remarks that the appellant's moral culpability had been reduced and general deterrence was said to be the paramount sentencing consideration when, by reason of the threats, the appellant's conduct was not the product of reasoned decision-making.[2] Alternatively, ground 1 was relied on as a particular of manifest excess.
15 It is true that, although he did not accept all the appellant's evidence, the judge did accept that O'Neill's threats motivated the appellant to drive as she did and that she took those threats seriously because of the history of violence directed towards her. There was an element of "battered woman" syndrome. Nevertheless, his Honour said, the police were present and protection would have been immediately available to her. I appreciate that she would have feared what O'Neill might do subsequently, but it is one thing to engage in shop-lifting or the like under a threat of violence; it is another thing altogether to engage in conduct so dangerous that it results in the kind of injuries sustained by Mr Hahn. General deterrence is not excluded by threats. On the contrary, general deterrence may provide a counter-threat. The judge was not in error in saying that general deterrence must be the paramount sentencing consideration for offences of the kind the subject of counts 3 to 5 and that a substantial period of imprisonment was required to deter others minded to act in a similar way. I do not consider that his Honour undervalued the threats from O'Neill, particularly when the sentences he imposed on counts 3 to 5 are taken into account.
16 It is convenient to deal with grounds 3 and 5 together. Mr Carter argued that, notwithstanding the judge's observation that he was fixing a "lower than usual" non-parole period, a non-parole period of four years in relation to a head sentence of six years' imprisonment was not unusual. That is so, but his Honour may have meant only that the non-parole period was lower than might otherwise have been the case. The real question, as counsel acknowledged, is whether a lower non-parole period was called for. In my opinion, it was not. As Mr Trapnell pointed out, the judge took a guarded view of the appellant's prospects of rehabilitation. Her recent breach of an intensive correction order was significant. That order was imposed following the commission of a domestic burglary in company with another male co-offender, in the course of which the victim was assaulted by the appellant and she drove away from the scene, damaging property in the course of escaping.
22 The order of the Court therefore is that the appeal be dismissed.
[1] Compare R. v. Heinz; Director of Public Prosecutions v. Heinz [2005] VSCA 124 at [14] and
[84]-[85].
[2] Counsel referred to Fox and Freiberg, Sentencing, 2nd ed., at para. 3.409.
R
Roach [2005] VSCA 162
Appeal dismissed; County Court sentence of six years' imprisonment with non-parole period of four years affirmed (paras 4, 19, 22).
5 Leave to appeal was granted on 1st April 2005. Omitting the ground that was abandoned, there are four grounds in the full statement filed pursuant to rule 2.09. They read:
10 Count 5 relates to the injuries sustained by O'Neill, who was also conveyed to hospital. He suffered forehead abrasions, lacerated gums, a deep open laceration to the left knee, full thickness burns to the right leg and abrasions to the right wrist. The appellant sustained injuries that included fractures to her ribs, wrist, sternum and skull.
11 The judge referred to the circumstances of the offences and the terrible injuries sustained by Nathan Hahn. His Honour read from Mrs Hahn's victim impact statement and said that he hoped that the sentence passed would demonstrate how seriously the courts and the community view such offending. Unfortunately, as has often been observed, the maximum penalty for negligently causing serious injury is out of kilter with the maximum penalties for related offences. The only response open to the courts, in cases of such gravity as the present, is to impose a term of imprisonment as close to the maximum as other principles of sentencing will allow. Those principles include, but are not limited to, any entitlement to a discount for pleading guilty.
12 His Honour also referred to the appellant's personal background, including her having been removed from her mother at the age of two and raised by foster parents in circumstances in which, after leaving them, she became delinquent and addicted to drugs. She formed a series of damaging relationships with men, of which that with O'Neill was only the most recent. Mr Carter submitted that his Honour attached insufficient weight to the link between the appellant's childhood separation and her subsequent offending, but the plea and the sentencing remarks show that he took full and sympathetic account of her background. For that reason, in my opinion, there is nothing in ground 2 and I do not propose to say anything more about it.
13 The judge also referred to the appellant's attempts to rehabilitate herself, but recorded that Mr Simmons, a psychologist whose report was before the court and who gave evidence on the plea, was of the view that no real progress had been made in that regard. His Honour accepted that the appellant was genuinely remorseful and had "some comprehension" of the enormity of her conduct and its effects on Mr Hahn. I shall say more later about his assessment of her evidence and the threats referred to in ground 1. He concluded his sentencing remarks as follows:
17 Mr Carter further argued that the individual sentences and the total effective sentence were manifestly excessive, having regard to the matters to which he had referred in his earlier submissions, the appellant's "early guilty plea", "the accepted evidence of genuine remorse" and the influence of O'Neill. All the offences being part of a continuing episode, he contended that a greater measure of concurrency was warranted. Counsel referred to the maximum penalties and concluded by submitting that excessive weight had been given to the impact on Mr Hahn, whilst there had been a failure to reflect a degree of mercy in the sentence.
18 I quite understand that the appellant is entitled to consideration because of her disadvantaged personal background, but the judge was not bound to show more leniency than he did, and he certainly did not give excessive weight to the impact on Mr Hahn. Three years' imprisonment on count 4 was a moderate sentence. His Honour acknowledged, in the passage that I have read from the sentencing remarks, that the appellant's plea of guilty entitled her to a substantial discount. In addition to the matters to which he referred, it is to be borne in mind that the plea to the counts other than count 3 was first indicated in November 2003 and the plea to count 3 was forthcoming when the Crown agreed that that count should be conduct endangering persons rather than conduct endangering life. Nevertheless, in my opinion, when full account is taken of those matters, it cannot be said that the individual sentences or the total effective sentence are outside the range.
19 I would dismiss the appeal.