R v Scott [2003] VSCA 55

R v Scott [2003] VSCA 55 - VSCA 2003 case summary — Zoe

The events giving rise to the convictions occurred on Sunday 11 October 1998 when the applicant was 19 years of age. He was, at the relevant time, the holder of a probationary licence. At about 11 a.m. on the morning of that day, the applicant was driving his vehicle in a westerly direction along the Eltham/Yarra Glen Road. As he came out of a left hand bend his vehicle, a white utility with a V8 engine, drifted onto its wrong side of the road near its intersection with Gills Road, and came into a glancing collision with a vehicle travelling in the opposite direction driven by one, Illios Dikeos. Dikeos was shaken and pulled up; but the applicant did not stop. Nor, it seems, did he moderate his driving. A motor cyclist, one Price, had seen the applicant's utility come around the bend, almost "sideways", saw it "glance off" Dikeos' car, throwing off a shower of dust and glass; then straighten up and keep going. Some 1 to 2 kilometres further on, the applicant's vehicle approached a right hand curve in the road at Watson's Creek where visibility of on-coming traffic was to some extent obscured by the crest of the road. Opposing the applicant - and coming from the other direction - were a number of motor cycles ridden by members of a "veteran" motor cyclists' club who were engaged in a "group ride". The applicant was later to proclaim that, as he crested the rise at the apex of the bend in the road, he was confronted by a "yellow motor cycle" which was "on its wrong side of the road", forcing him to swerve to his left so that the near side wheels of his utility entered the gravel verge as a consequence of which he lost control of the vehicle which veered to its right across the bitumen surface of the roadway into the path of the oncoming motor cycle ridden by the deceased and upon the pillion of which was the grievously injured passenger. Following the collision the applicant's vehicle continued on its path across the surface of the carriageway narrowly missing other motor cyclists and went down an embankment coming to rest against a tree on the northern side of the road almost opposite its intersection with Bill's Track.

[29]

As I have said, Mr. Holdenson's submission to this Court was not that the evidence of the first collision was inadmissible; rather his submission was that the directions which the learned judge gave to the jury as to the use which they could make of it were insufficiently explicit in the circumstances of the case. Those circumstances, he contended, included the applicant's protestations, made to persons at the scene and later in his police interview that, as he rounded the bend and crested the hill immediately prior to the point of collision, he was confronted by a "yellow motor bike" on his side of the road which compelled him to move to his left, thus forcing him into the gravel verge and to lose control of his vehicle precipitating him into collision with the following motor cycle. Indeed, it appeared from his record of police interview that he was saying that there were two motor cycles abreast of one another because, as he said, the one on his side of the road could not "move back over because he would've slammed into his mate that was next to him". Mr. Holdenson contended that this was the real issue of fact in the trial, in respect of which he submitted there was some evidence to support the applicant's version. He took us through the evidence in some detail, most of which was given by members of the motor cycle club who were travelling in the opposing direction to the applicant, but some of which was given by occupants of a motor vehicle which was travelling in the same direction as the cyclists. There was also evidence from Sergeant Bellion of the Victoria Police Investigation Unit who attended and examined the scene, particularly the scuff marks in the gravel and the skid marks on the bitumen left by the applicant's utility. He measured 18.4 metres of marks on the northern gravel verge and 23.4 metres of skid marks across the bitumen. He expressed the view that the brakes of the utility had been applied when its wheels were in the gravel and had then skidded across the road into collision with the motor cycle ridden by the deceased which had been travelling just to the left of the centre of the road. He estimated the speed of the applicant's vehicle at about 100 to 105 k.p.h. when it started to skid in the gravel; and the deceased's motor cycle at about 44 to 65 k.p.h. when it commenced to move to its left. One of the motor cycle riders was a Jacinta Thomas. Her vehicle appears to have been the only one which had some "yellow" in it; it was mainly red but with yellow flashes on the side. She said that she had overtaken some other bikes before the collision, but without incident. As she went into a left hand curve she saw a white utility coming around the bend. She said it was travelling fast and its left hand wheels went into the gravel. She looked in her rear-view mirror and saw it going across the road. She claimed that she was not overtaking at the time, and that she was on her correct side of the road. She agreed that she had overtaken the other bikes shortly before the collision. It was put to her that she was "so far to the right" that, if she had not moved, she would have collided with the utility. She denied that this was so. A Mr. Thirkell said that he was behind Miss Thomas when he saw the utility come around the right hand bend "very very high in the centre of the road". He said it moved to its left to the point where its near side wheels "dropped into the gravel", "fishtailed" and came across the road straight towards him. It missed him by about 6 feet and crashed into the cycle behind him. In cross-examination he said that he thought that Miss Thomas, although on her correct side of the road, had "left it a bit late in turning to her left".

[43]

Mr. Holdenson did not contend that this Court was disentitled from confining in a prospective manner guidance to trial judges by way of modification to standard directions[18]. Rather his contention was that this was a case where the circumstances warranted a direction which explained and elaborated, in the manner suggested in De'Zilwa, what was meant by the definition of "negligence" in s.318(2)(b) of the Crimes Act; namely a "failure unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in the circumstances of the case". He submitted that, on any view, this was a short course of driving by a young man, unaffected by drink or drugs, on a road which was difficult to negotiate. Notwithstanding that the judge had told the jury on several occasions, in the terms prescribed by the statute, what was the degree of departure from the prescribed standard of care about which they had to be satisfied beyond reasonable doubt before they could convict, and had compared for them that degree of departure with that required in the civil law of negligence, the jury had still returned to court on the following morning, to ask the judge to instruct them again "in relation to the elements of both charges". This signified, so it was submitted, that the jury was having some difficulty in understanding what was comprehended by the words "unjustifiably and to a gross degree" and ought to have led the judge, in explaining the concept, to go beyond the words of the statute and instruct the jury in terms commonly used in cases of involuntary manslaughter. In other words, as I understood the submission, Mr. Holdenson's point was that this was the sort of situation, identified by the Court in the later case of De'Zilwa, where the jury needed assistance or explanation beyond a repetition of the standard directions in the terms prescribed by s.318(2)(b) of the Crimes Act. Having regard to the undisputed circumstances that the applicant had lost control of his vehicle because his wheels had entered the gravel on the applicant's correct side of the road, this was a case, so it was submitted, where it became an imperative for the judge to instruct the jury in terms which would lead them to properly understand the nature and degree, or level, of the applicant's negligence which had to be proven beyond reasonable doubt before they could convict.

[46]

The notice of application for leave to appeal against sentence stipulates 17 grounds most of which seem to me to be particulars of the final ground that the total effective sentence is manifestly excessive. It will be recalled that his Honour imposed a sentence of six years' imprisonment on the count of culpable driving, and two years' imprisonment on the count of negligently causing serious injury. He directed that one year of the latter sentence be served cumulatively upon the sentence of six years, thus making a total effective sentence of seven years' imprisonment; and directed that the applicant serve a minimum period of five years before becoming eligible for parole. In addition he ordered the cancellation of the applicant's licence and directed that he be disqualified from obtaining a further licence for a period of five years. In the course of his sentencing remarks, his Honour said that he was satisfied that the applicant must have been aware of the happening of the first collision, but that he had "irresponsibly determined not to stop in flagrant disregard of [his] obligation as the driver of a motor vehicle which had then been involved in a collision with another motor vehicle". His Honour was also satisfied that "immediately prior to and at the point of impact, no motor cycle was on its incorrect side of the road, nor was any motor cycle travelling at an excessive speed". His Honour also referred to the extensive injuries and residual disabilities suffered by the deceased's pillion passenger - the victim of count 2 on the presentment. The judge regarded the applicant's driving as "grossly negligent" and that it demonstrated "a total disregard for the safety of other users of the road". He was satisfied that the applicant's drowsiness and fatigue, coupled with inexperience, inattention and excessive speed on a narrow winding road combined to cause the accident, for which no other road user was responsible. The judge accepted that the applicant was, apart from his predilection for driving powerful cars in a reckless fashion, a normal, decent young man of otherwise good character. He also regarded the applicant as "remorseful", although much of the remorse was generated by self-interest. The applicant's "driving history", for a probationary driver, was - in his Honour's words - "concerning"; the applicant having received, between October 1997 (a year before the accident) and June 2001 a total of eight "penalty notices" for various traffic infringements, mainly for driving at excessive speeds[20].

[48]

It cannot be said that the learned judge, in his careful sentencing remarks, had overlooked the matters to which counsel has referred. In essence, the submission is that the sentence imposed, both as to its maximum and non-parole periods, demonstrates on its face that the judge must have attributed too much or too little weight to the factors relied upon. The difficulty which I have with the submission is that these offences are notoriously committed by young men and women of similar age to the applicant and, like him, are of general good character with good prospects. No one likes sending such people to gaol; and it is not difficult to appreciate the predicament in which the applicant now finds himself. But so much has been spoken and written about the consequences which will befall young persons who choose to drive their motor vehicles on public highways in the manner in which the applicant did, that he can scarcely complain that he has not been warned. The community's attitude to grossly negligent driving behaviour has been made known over many years through the increases in maximum penalties prescribed by the Parliament; and the courts - including this one - have been proclaiming for just as many years that those who put lives at risk through grossly negligent driving can expect to receive heavy penalties influenced by the sentencing principle of general deterrence. As I have previously noted, the maximum penalty for culpable driving is 20 years, the equivalent of manslaughter. Those who commit the offence must expect substantial punishment involving immediate incarceration. Mr. Holdenson submits that the penalty of six years for the culpable driving charged in count 1 was too much. He contends that this was not a case where the driving was influenced by drugs or alcohol, as so frequently occurs. That much may be acknowledged; but whether the grossly negligent driving is the product of fatigue and lack of judgment induced by alcohol, or fatigue and lack of judgment produced by lack of sleep does not appear to me to be a matter of much distinction. The applicant's driving was, as the judge said, quite appalling. I do not regard the sentence of six years as manifestly excessive.

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