R v Scholes [1998] VSCA 17

R v Scholes [1998] VSCA 17 - VSCA 1998 case summary — Zoe

[5]

The respondent was born on 1 November 1971. Almost ever since he was old enough to hold a licence to drive a motor vehicle he has been in trouble with the law about his driving. On 18 August 1990, before he turned 19, he was convicted of exceeding the speed limit by 50 kms. an hour or more. For that offence he was fined $300 and his licence was suspended for six months. On the day after that conviction and suspension the respondent drove a motor car which collided with a pedestrian, killing her. The incident was an ugly one. According to the description given to the sentencing judge in the present case, the respondent drove at a speed estimated at between 100 and 130 kms. an hour against a red traffic light in a zone where the lawful speed was restricted to 60 kms. an hour. The victim, a young woman crossing at the traffic light while walking her dog, suffered injuries from which she instantly died. Long skid marks led to the point of impact. The respondent fled. He tore the wires from the base of the steering wheel and smashed a side window in order to create an impression that someone had broken into the car, then left it at a railway station, travelled home by train and taxi and went to bed. Later he reported the car stolen. Some days later again he gave himself up to the police. The respondent ultimately pleaded guilty to three offences arising out of that incident: culpable driving causing death, failing to stop after an accident and failing to render assistance after an accident. Pending his arraignment for those offences he was granted bail. While on bail the respondent committed a number of further offences associated with another motor accident he had had: driving a motor car while having a blood alcohol concentration exceeding .05 per cent, being an unlicensed driver, failing to stop after the accident, three counts of assault (apparently upon persons who had pursued and tried to reason with him after the accident), resisting a member of the police force in the lawful execution of duty and one count of damaging property. For reasons unexplained the respondent was not dealt with until 25 March 1994 for the charges arising out of the fatal accident that occurred in August 1990. He was then sentenced to imprisonment for three and-a-half years on the count of culpable driving and for six months on each of the other charges, there being a total effective sentence of four years with a minimum term of two and-a-half years; all his licences to drive a motor vehicle were cancelled and he was disqualified from obtaining another licence for five years. It was not until after his conviction and sentence for the 1990 offences that the respondent was dealt with for the offences he had committed while on bail, which produced fines and further licence disqualification.

[37]

Negligent driving (as defined in s.s.(2)(b) of s.318 of the Crimes Act 1958 ) is of course a necessary ingredient of the offences against s.s.(1) of which the respondent was accused. The nature and the degree of departure of the accused from an acceptable standard of driving behaviour, the extent of the accused's contribution to the cause of death of the deceased and the extent to which the behaviour was unjustified are all potentially relevant. The gravamen of the offence - the ingredient that bears most heavily on a person accused of it - is, however, the driving in association with the taking of human life: cf. R. v. MacIntyre (1988) 38 A.Crim.R. 135, 139, per Lee, C.J. at C.L. In R. v. Slattery (1996) 90 A. Crim. R. 519, at 522 Hunt, C.J. at C.L. emphasised that ingredient in the crime of dangerous driving occasioning death by saying "So significant is the loss of life that, where there is more than one human life taken, it is not obligatory for the judge to impose concurrent sentences". The same view has been taken in Victoria: R. v. Penn, C.C.A., unreported, 9 May 1994. The offence created by s.318 is essentially one against public safety: R. v. Woolnough, unreported, Court of Criminal Appeal, 4 June 1981, per McGarvie, J. at 13; R. v. Thompson (1975) 11 S.A.S.R. 217, 222. Given the genesis of the offence, and its purpose to deter by criminal sanction unnecessary and avoidable killing by motor vehicle drivers, the attitude of a driver to his infringement of s.318 may be distinctly relevant to an assessment of the relative seriousness of the infringement. Hence, although the offence of causing death by culpably driving negligently contrary to s.318(1) requires no specific intent, the attitude of the accused to the episode of the driving and to the associated death, and to the law which places a value on human life may, in my opinion, all be relevant to an appraisal of the individual offence to which the combination of the driving and the death have given rise.

[41]

It appears to me that the respondent's second offence against s.318, when examined in the light of the first, bears on all the matters exemplified by Charles, J.A. in R. v. O'Brien [1997] 2 V.R. 714, at 718, in reliance on the majority judgment in Veen, ibid: moral culpability, prospects of rehabilitation, dangerous propensity, the community's need for protection and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence. The learned judge did not expressly advert in the present case to many of these factors. It is therefore not easy to discern what weight, if any, he gave to them, but of course he is not to be criticised for that. The matter of the respondent's reform was referred to by his Honour, who found reason to believe that the prospects of it were good and that they should be given scope. There was, however, very little in the plea material to support that view save the respondent's comparative youth. It might be thought that such material as there was tended the other way. The evidence of Dr L.A. Walton, a consultant psychiatrist who was called by counsel for the respondent on the plea, was that the respondent does have an opportunity for ongoing education within the prison but that he has refused it "... partly because of the connection with his deceased girlfriend and that it is a painful reminder for him on the one hand and also he doesn't wish to embarrass her friends and colleagues by his presence". That is not to say, I suppose, that the respondent will not ultimately change his mind on the question; and in any event his Honour may have said what he did about the prospects of reform only in order to justify his proper rejection of the respondent's request, made through his counsel, that he receive a sentence not subject to parole. Whether that is so or not, it seems to me doubtful that the several other sentencing considerations that are raised by the respondent's criminal history are properly reflected in the sentence. It not infrequently happens that a bad episode of culpable driving causes more than one death. In such a case a further dimension is added to the sentencing difficulty in deciding whether or not sentences should be concurrent: e.g., R. v. Woolnough, supra; R. v.Penn, supra; and cf. R. v. Daley [1984] 1 W.L.R. 1047, at 1055-6; R. v. Wilkins (1988) 38 A.Crim.R. 445, at 449; R. v. Pettipher (1989) 11 Cr. App. R. (S) 321. It must be said, however, that a second offence of culpable driving by negligence, separated from the first by a substantial custodial sentence, appears to be exceptional: we were referred to no other example. I should assume that it is exceptional largely because killing a human being by culpably negligent driving, and being sent to prison for it, should be, to anyone of otherwise normal susceptibility, an experience sufficiently harrowing and chastening to deter repetition: the community expectation should be that a person who commits that offence, and is sternly dealt with for it, will learn a lesson to last a lifetime. That the respondent did not learn such a lesson - or if he did was unable to apply it - goes far, I should think, both to demonstrate his increased and very high moral culpability for his second offence and to diminish his prospects of rehabilitation, to mention only two of the catalogue of matters to which the majority judgment in Veen and Charles, J.A. in O'Brien refer in the passages I have mentioned.

[45]

The use to be made of the respondent's conduct immediately after the accident, both at the scene and at the Doncaster police station, as an indication of his attitude to his indictable offences and their consequences, is in my opinion not essentially different from the use to be made of his relevant pre-accident conduct, including his criminal history. It will be recalled that the learned judge regarded himself as disentitled, in the absence of evidence that the manhandling of Mrs Swainston-Dwyer contributed to her death, to take it into account for the purpose of sentencing. Nevertheless it is not entirely clear that his Honour did disregard it altogether for, in the course of argument, he suggested that the conduct could point to "a failure of remorse". The appellant submitted that, even so, the respondent's post-accident conduct carries a wider signification. Clearly enough the moving of Mrs Swainston-Dwyer from one front seat in the Corolla to the other was not an ingredient of the offence charged under s.318: it was not on any view of it, I should think, part of the driving of the Corolla. Even, therefore, had there been evidence that the manhandling had contributed to her death, I do not see how it could have been treated as part of the circumstances of the commission of the offence. It does not follow, however, that the learned judge was not entitled to take that and the respondent's subsequent conduct into account for the purpose of sentence or that, if he did take it into account, he was constrained to refer to it only on the matter of remorse. The conduct in question was, in my opinion useful at least to illuminate the respondent's moral culpability for the offence of causing the death of Mrs Swainston-Dwyer by negligently culpable driving. It did so just as, for example, the respondent's act of getting into the Corolla and driving it showed an indifference to the law and a contumelious infraction of it. For the respondent it was submitted that such a use of his conduct in the sentencing process would be impermissible because it would be tantamount to sentencing him for conduct constituting a separate offence of which he had not been convicted, namely attempting to pervert the course of justice. He had in fact been charged with two counts of that offence but they were withdrawn. The decision of this Court in R. v. Newman & Turnbull [1997] 1 V.R. 146 was cited in support of the submission.

[46]

It is trite that, generally speaking, a sentence imposed on an offender should take account of all the circumstances of the offence: e.g. R. v. De Simoni [1981] HCA 31; (1981) 147 C.L.R. 383, at 389, per Gibbs, C.J. Having recognised the general principle, the learned Chief Justice went on to say that it is subject to a more fundamental and important principle, that no-one should be punished for an offence of which he has not been convicted. His Honour went on to define the combined effect of the two principles: "... a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence". In R. v. Medcraft (1992) 60 A.Crim.R. 181, at 185, the Victorian Court of Criminal Appeal explained that by "a more serious offence" Gibbs, C.J. in that dictum had meant a different and more serious offence than that for which the prisoner is being sentenced. Medcraft is one of a number of cases, of which R. v. Newman & Turnbull is a striking recent example, in which the courts of this State have given effect to what is really a rule deriving from the combined effect of the two principles that were noticed by Gibbs, C.J. The offence of attempting to pervert the course of justice - a misdemeanour at common law - is no doubt a "different offence", for the purpose of the rule in question, than an offence under s.318 of the Crimes Act 1958 ; and it may very well fall to be classified for that purpose as a "more serious offence" than an offence under s.318: until the insertion of a new s.320 of the Crimes Act by s.56 of the Sentencing and Other Acts (Amendment) Act 1997 the punishment for the common law offence of attempting to pervert the course of justice was not fixed and was unlimited. By reason of that provision it is now fixed at a maximum of 25 years: but see s.321B(1)(b). Whether or not the common law offence is to be regarded as "more serious" in a relevant sense, it would hardly be fair to take account of uncharged conduct amounting to that offence when sentencing for an offence against s.318(1): cf. R. v. Teremoana (1990) 54 S.A.S.R. 30, at 36-8, per Cox, J., quoted with approval and applied in R. v. Medcraft, supra, at 185-8. If, therefore, the respondent's post-accident conduct would have warranted a conviction for the common law offence, I should be prepared to say that the rule exemplified by R. v. Newman & Turnbull ought to apply. The short answer to the point relied on for the respondent, however, as I see it, is that his post-accident conduct would not have warranted a conviction for the offence of attempting to pervert the course of justice. To reiterate, the conduct in question consisted of the respondent's moving the moribund Mrs Swainston-Dwyer from the front passenger's seat to the driver's seat of the Corolla with a view to making her out to have been the driver; volunteering to bystanders and implying to the child, Thomas, that she had been the driver; and later on the same night making false statements to the same effect to the police. Investigations by police officers of actual or suspected crimes are not part of "the course of justice" for the purpose of the common law crime concerned with perverting the course of justice. The High Court unanimously so decided in R. v. Rogerson [1992] HCA 25; (1992) 174 C.L.R. 268. As Mason, J. put it at 276, "... police investigations do not themselves form part of the course of justice. The course of justice begins with the filing or issue of process invoking the jurisdiction of a court or judicial tribunal or the taking of a step that marks the commencement of criminal proceedings": see also at 280 per Brennan and Toohey, JJ., 293-4 per Deane, J. and 302 per McHugh, J. It would appear that a mere false statement to a police officer in the course of an investigation of an actual or suspected crime cannot, without more, constitute the offence of attempting to pervert the course of justice: Rogerson, at 299, per McHugh, J. An act which has a tendency to deflect police from prosecuting an offence, if done with intent to achieve that result, can amount to the offence: Rogerson, at 278, per Mason, C.J. It is fanciful to suppose, in the circumstances of this case, that any of the respondent's post-accident conduct could have had that tendency: it amounted, I should think, to no more than a vain and pathetic attempt by the respondent to avoid reality. The post-accident conduct was, however, eloquent of the respondent's attitude to his offences and, inasmuch as he persisted in attributing the driving to Mrs Swainston-Dwyer, of his attitude to her death. The story he told amounted to an assertion that she had caused her own demise. This, in my opinion, went beyond an indication of a want of remorse: in the sentencing synthesis it bore on most of the matters to which the respondent's pre-accident driving and criminal history were relevant.

[48]

The sentences for each of the two offences against s.318(1), to be served concurrently, were in my opinion inadequate. I do not need to say that they were manifestly inadequate, as the appellant contends, for I have pointed to a number of matters which in my opinion reveal sentencing error and justify the setting aside of the sentences and re-sentencing by this Court. I propose that that be done. I am mindful, as the learned judge evidently was, that the weight to be given to the prior criminal history cannot be allowed to lead to the imposition of a penalty disproportionate to the instant offences. The offences against s.318 were, however, heinous to a very high degree, especially that associated with the rebarbative conduct towards Mrs Swainston-Dwyer. The sharp increases in the maximum custodial penalty prescribed by the Parliament for breach of s.318 - 15 years' imprisonment at the relevant time - must be taken by the courts, despite the second-reading speeches to which I have referred, as reflecting community attitudes to the seriousness of the offence. The courts are required to give appropriate recognition to the expressed legislative intention: R. v. Slattery, supra, at 524. I do not consider that the sentences imposed in the County Court gave such recognition. Because of the status of this proceeding as a Crown appeal, due allowance is to be made as a matter of humanity for the respondent's now being re-submitted to the ordeal of sentencing. But for that, I would regard him as deserving of an appreciably higher sentence than that which I now propose. In the circumstances I would not disagree with the learned judge that the sentences for the two offences against s.318 should be concurrently served. The sentences should, however, recognise that the respondent on 10 May 1997 caused two deaths - not one - unwarrantably, needlessly, selfishly and without explanation. I propose that for each of the offences of causing death by culpably negligent driving the respondent serve a term of imprisonment of eight years. I would reimpose the sentences of three months' and one month's imprisonment respectively for the two summary offences, but make no order for cumulation. The total effective sentence that I propose is therefore of eight years' imprisonment. I propose that the respondent serve six years' imprisonment before being eligible for release on parole.

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