R v Sherpa [2001] VSCA 145

7. The applicant, who was 20 at the time of the offence and is now aged 22, pleaded guilty in the County Court to one count of culpable driving causing death. The maximum custodial sentence for that offence is 20 years' imprisonment, but the form of culpability that was specified in the presentment was that in s.318(2)(b) of the Crimes Act 1958, i.e. negligence of the same degree as that required to support a charge of manslaughter[1]. After hearing a plea for leniency on his behalf and later considering a psychological report obtained from Mr Ian Joblin, the learned judge sentenced the applicant to seven years' imprisonment with a non-parole period of five years. A declaration was made regarding 58 days' pre-sentence detention and the applicant was disqualified for five years from obtaining a licence to drive a motor vehicle.

10. The applicant seeks leave to appeal against sentence on six grounds: that the sentence is manifestly excessive (ground 1); that the learned sentencing judge erred in treating the applicant's use of a car said to be stolen as an aggravating feature (ground 2); that his Honour gave insufficient weight to the applicant's youth, prospects of rehabilitation and lack of criminal history (grounds 3, 4 and 5); and that he fixed a non-parole period which was excessive in all the circumstances (ground 6).

13. The circumstances of the offence may be briefly summarised. On Tuesday 25th May 1999 the applicant was living in an apartment above a Nepalese restaurant in Prahran. A friend of his, one Walid Hidad, worked there as a kitchen-hand and, like other employees of the restaurant, often used the applicant's apartment as a

changing room. He had done so on the afternoon in question and, at approximately 5 p.m., the applicant removed Mr Hidad's car keys from his trousers, which were hanging on a hook in the apartment, and took his Toyota Camry sedan, which was parked in an adjacent street. Because of ground 2 I interpolate that, although the applicant was committed for trial on one charge of culpable driving and one charge of theft of a motor vehicle, the charge of theft was not pressed. As the prosecutor said in opening the case below, although it had been alleged that the applicant took the car without permission, nothing was now in issue about that.

17. At about 6.20 p.m. the applicant, who was unlicensed, was driving south in Elizabeth Street and approaching its intersection with Collins Street. It was dark but the intersection was well lit. The traffic lights changed to red when he was approximately 60 metres from the northern stop line, but he accelerated through the red light at a speed between 20 and 30 kilometres per hour and hit a white taxi which had moved into the intersection on the green light and was stationary: the driver was waiting to do a hook turn preparatory to travelling north along Elizabeth Street. Pedestrians, including the deceased, Mr John Schouten, were crossing the intersection on the driver's left-hand side, that is to say, the passenger side of the taxi. The vehicle driven by the applicant struck the driver's rear side of the taxi. The impact punched the rear of the taxi sideways into the pedestrian crossing, where it struck the deceased, who was catapulted some two metres in a south-easterly direction across the carriageway and landed on his head, suffering severe injuries from which he died in the Royal Melbourne Hospital the next day.

20. The applicant's blood alcohol reading taken at 7.49 p.m. was 0.21%. It was conceded on the plea that, in the course of the day, he had consumed the contents of a 200 millilitre bottle of rum. A police witness said that the applicant's eyes were glazed, his speech was slurred and mumbled and he was unsteady on his feet but that his attitude was cooperative and he was apologetic.

23. The applicant was born in Nepal, where he lived until the age of seven. His parents separated and his father re-married. When he was about 18 he came to Australia to study, initially undertaking a one-year English course in Perth and later a marketing, and then an accounting, course in Melbourne. That is how he came to be residing in Prahran, where he also worked as a part-time waiter in the Nepalese restaurant. In February 1999 his mother, who was living alone in Nepal, committed suicide. The applicant experienced guilt as well as grief and began to drink heavily. He did not take proper care of himself and his work performance was substantially affected. The learned judge accepted evidence to that effect that was given at the plea. It also found support in Mr Joblin's report.

26. Mr Morrissey argued ground 2 first. That ground arose from two passages in his Honour's sentencing remarks. In the first he referred to the Toyota Camry as a motor vehicle "apparently stolen from an acquaintance". In the second he said that Mr Schouten's death at the age of 39 was a needless death brought about directly by the applicant's illegal activities. His Honour went on to explain that he used the word "needless" because, among other things, the applicant was driving a stolen vehicle. Bearing in mind that the charge of theft had not been pressed and that the theft was not conceded, the success or failure of ground 2 turns on whether the learned judge took the alleged theft into account as a circumstance of aggravation or referred to it solely as part of the background or surrounding facts. Mr McArdle conceded that the second of the two passages was troubling, but submitted that it could be a matter only for speculation whether his Honour's perception that the car had been stolen had influenced the sentencing disposition. In the view I take of this case it is unnecessary for me to express a conclusion on this ground.

29. Mr Morrissey argued the other grounds together, treating them as all raising in one way or another the question of manifest excess. He acknowledged that there were adverse features of the case, such as the applicant's intoxication and his accelerating through a red light at a busy city intersection, but he submitted that there were a number of mitigating factors to which the learned judge had given insufficient weight. First, there was what he characterised as the unusually tragic background which precipitated the applicant's uncharacteristic criminal conduct. That conduct being out of character augured well for his prospects of rehabilitation, but also, counsel submitted, it reduced his moral culpability. Secondly, the applicant pleaded guilty at the earliest opportunity and cooperated with the police. Not only did he save the time and trauma of a trial but he was, as the learned judge accepted, remorseful. Thirdly, he was a young man with no previous convictions and nothing pending who had good prospects of rehabilitation. I understood that to refer not only to his having overcome his alcohol problem but also to the unlikelihood of his re-offending. Fourthly, it was said, a custodial sentence was likely to be more onerous for the applicant than for others, but counsel fairly conceded that that point was not made below and was not of such weight as to re-open the discretion. Rather he invited us to take it into account if we were persuaded to re-sentence. It is of limited weight in this case. The applicant has lived in this country for some years, speaks English and is not entirely without support from his community. Finally Mr Morrissey pointed to the time that had elapsed between the applicant's arrest on 25th May 1999 and his standing for sentence on 23rd October 2000. The committal had been in December 1999, but the only issue between the applicant and the Crown had been the proposed charge of theft. It is doubtless that issue which explains, at least in large part, the delay; but, counsel submitted, the delay was still a factor affecting the applicant.

32. Counsel conceded that the learned judge had taken the applicant's youth and prospects of rehabilitation into account but contended that, in the circumstances I have described and given the factors I have summarised, the sentence was nevertheless outside the range. It has often been said that there is no standard sentence. The appropriate range is itself determined by all the features of the case, both adverse and favourable. Mr McArdle acknowledged that, in comparison with other sentences for culpable driving, this sentence was high, but he submitted that it was not outside the range, particularly in the light of the maximum penalty that now applies, the need for general deterrence, the applicant's being unlicensed and never having held a licence and his state of gross intoxication. He took issue with the contentions that the learned judge had given insufficient weight to youth and rehabilitation.

35. General deterrence must usually be emphasised in the punishment of this offence and there is correspondingly less scope than in the case of some other crimes for leniency on account of an offender's youth. That does not mean that there is no scope for youth and concomitant prospects of rehabilitation to influence the disposition. Even if an immediate custodial sentence is warranted, as it almost always is, those factors may still have a bearing on the kind of sentence to be imposed (in particular the choice between imprisonment and youth training where the latter is a realistic option), the length of the sentence and the time that must necessarily be served. But it is not to be forgotten that a life has been lost.

38. In this case the applicant was drunk and drove through a red light at a busy intersection in the heart of the city; but it is not correct to say, as the learned judge did, that it is hard to imagine worse conduct on our roads. Regrettably, it is all too easy to recall cases of such conduct. A sentence of seven years' imprisonment with a non-parole period of five years is a severe sentence where the relevant form of culpability is criminal negligence, even taking into account other sentences that have been imposed in recent years. Severity is not, of course, the same thing as manifest excess. But, in my respectful opinion, the sentence imposed takes insufficient account, in the present case, of the mitigating factors to which counsel referred. Several of them are important, but I emphasise the applicant's plea of guilty at the earliest opportunity, his good character, the tragic genesis of his drinking problem and his complete rehabilitation therefrom. I would therefore uphold ground 1. I need not consider the other grounds.

41. Endeavouring to give due weight to all the circumstances both of the offence and of the offender, I propose that the applicant be re-sentenced to five years' imprisonment with a non-parole period of three years. That will not affect his disqualification for five years from obtaining a licence to drive a motor vehicle or his Honour's finding, pursuant to s.89(1) of the Sentencing Act 1991, that the offence was

committed whilst the offender was under the influence of alcohol which contributed to the offence.

49. I agree and, in particular, I agree that the applicant should now be sentenced to a term of five years, with a minimum of three years to be served before his becoming eligible for parole. I would, however, approach the matter this way. In my opinion, there was an error in the learned judge's treatment of the use of the car. He wrongly took into account as an aggravating factor an assertion that the car was stolen and thereby indirectly sentenced the applicant, in part, on the basis that he was guilty of stealing that car. The charge of stealing a car, though brought against the applicant, was specifically withdrawn by the Crown and it was not conceded by the applicant. I would not have been concerned by his Honour's first reference to the car as having been "apparently stolen", but he returned to the subject later in terms which I believe were not appropriate. At that stage, after a bare description of the accident, he said that the victim's death was "a needless death brought about directly by your illegal activities". He defined what he meant by "needless" by referring, in the first instance, to the fact that the applicant was "driving a stolen vehicle", before setting out the facts that he was unlicensed, that he was drunk and that he drove through a red light to collide with the taxi, causing the death of a pedestrian. There was very little other discussion of the circumstances of the offence. In my opinion, the language used suggests that the so-called stealing was not merely part of his description of the background facts but was at least one factor relevant to his Honour's assessment of the applicant's criminality. In that I believe his Honour was in error, and the error was of a kind which leads me to conclude that a different sentence should have been imposed. That in itself would reopen the sentencing discretion. The factors relating to an appropriate sentence to be imposed have been fully stated by Callaway, J.A., and I agree that a significantly less severe sentence should have been imposed in the very special circumstances of this case.

53. I agree that leave to appeal should be granted and that the applicant should be re-sentenced as proposed by Callaway, J.A. I agree in the reasons expressed by his Honour and have nothing to add.

57. The order of the Court therefore is that the application be granted; that the appeal be treated as instituted and heard instanter and allowed. We set aside the orders as to imprisonment by the sentencing judge and in their stead order that the appellant be sentenced to be imprisoned for a term of 5 years, and direct that 3 years be served before the appellant becomes eligible for parole.

60. The period which has been served, including today, is declared to be 362 days.

[1] See R. v. Shields [1981] VicRp 68; [1981] V.R. 717 at 724, R. v. Franks (No.1) [1998] VSCA 100; [1999] 1 V.R. 518 at [5]

and R. v. Wright [1999] VSCA 145; [1999] 3 V.R. 355 at [9].