R v Stockdale [2002] VSCA 202

Court of Appeal (Vic)|2002-12-04|Before: ORMISTON, CHARLES and VINCENT, JJ.A.

Criminal law - Conviction - Culpable driving - Intoxication - Amnesiac state - Whether acting consciously and voluntarily - Appropriate directions in judge's charge.

Sentencing - Culpable driving - Sentence of 7 years' imprisonment not manifestly excessive.

The applicant, who was born on 15 May 1973, on 23 April 2001 pleaded not guilty in the County Court at Melbourne to a presentment alleging one count of culpable driving causing death, ten counts of recklessly engaging in conduct placing another in danger of death, two counts of recklessly causing serious injury, five counts of recklessly causing injury and two alternative counts of causing serious injury negligently. On 7 May the jury found the applicant guilty on all counts, save the two last-mentioned alternatives.

During the plea the applicant admitted 14 previous convictions and three non-conviction dispositions from seven court appearances. He had also pleaded guilty pursuant to s.359AA of the Crimes Act 1958 to the summary offence of exceeding the prescribed concentration of alcohol in a blood sample taken within three hours of driving contrary to s.49(1)(g) of the Road Safety Act 1986. Some ten character witnesses were called on behalf of the applicant. On 18 May the judge sentenced the applicant on the count of culpable driving to seven years' imprisonment, on the ten counts of recklessly engaging in conduct placing another in danger of death and the two counts of recklessly causing serious injury, in each case to three years' imprisonment, and on the five counts of recklessly causing injury, to one year's imprisonment in each case. The judge ordered that one year of the first count of recklessly engaging in conduct placing another in danger of death, and one year of the first count of recklessly causing serious injury, be cumulated upon the seven year sentence imposed for culpable driving, making a total effective sentence of nine years' imprisonment. A non-parole period of seven years was fixed. On the charge of exceeding .05 per cent under s.49(1)(g), the applicant was fined $750. The judge also made an order cancelling the applicant's licence and disqualifying him from obtaining a further licence for a period of seven years.

4 The applicant now seeks leave to appeal against conviction on two grounds, first, that the judge erred in the direction given to the jury in relation to the significance of evidence of intoxication, and secondly, on the ground that his Honour erred in directing the jury on the burden of proof in relation to the evidence led by the defence. The applicant also seeks leave to appeal against sentence upon seven grounds (two of which were abandoned) to which I shall refer later.

The Crown case, which was largely undisputed, was as follows. The Monash Freeway, on which the alleged offences occurred, at all material points has three lanes for traffic heading towards the city in a north-westerly direction and three lanes for traffic travelling towards Dandenong in the opposite direction. The freeway is divided by a wide median strip which is grassed and generally covered by shrubbery. At about 4 a.m. on the morning of Sunday, 12 December 1999 Peter Fox drove a car onto the Monash Freeway from Stud Road, Mulgrave. He had three passengers with him and they were heading toward the city, going to St Kilda. As Fox entered the freeway, he noticed a Landcruiser utility also driving towards the city, but being driven by the applicant on the wrong side of the freeway. The headlights of the applicant's vehicle were on. Fox at first assumed that the Landcruiser utility was an emergency vehicle, noticing that there was only one person in it. At first he estimated the applicant's speed at 80 kph, increasing to about 100 kph. Fox continued to observe the applicant's vehicle over a distance of about 4.5 kilometres along the freeway. He said that the applicant's vehicle appeared to be in the "right hand emergency lane ... in towards the middle median strip". Fox sped up to get ahead of the applicant, and driving on the innermost lane, his passengers used a torch and an emergency beacon in an attempt to attract the applicant's attention. Fox noted that a city-bound truck was also trying to attract the applicant's attention by sounding its horn. As they travelled, Fox saw cars on the outward-bound lanes swerving to avoid the applicant but there were at first no collisions.

As the applicant's vehicle approached the incline near the intersection of the Monash Freeway with Jacksons Road, still travelling on the wrong side of the freeway, Fox and his passengers noticed that other vehicles travelling towards Dandenong had to take action to avoid striking the utility. One of these vehicles was a semi-trailer. The speed limit at relevant points on the freeway is 100 kph, and Fox estimated that the applicant and vehicles travelling towards him would all have been travelling at approximately this speed.

As the vehicles passed the intersection with Jacksons Road, on the other side of the incline, travelling towards Dandenong in the outward lanes of the freeway was a taxi in which Philip Carr was a passenger. As the taxi approached Jacksons Road, the driver changed from the right lane to the centre lane. When the taxi passed the crest of Jacksons Road, Carr saw a vehicle approaching on the right hand lane, heading towards the taxi, but in the wrong direction. Carr said the taxi was travelling at about 100 kph, as, he thought, was the other vehicle proceeding towards it. The taxi driver's late change of lane resulted in his vehicle narrowly avoiding a collision with the oncoming vehicle.

At the same time, Mrs Ivitxa Klanja was driving a red Ford Falcon in which her husband Angelo was a front seat passenger, and her two teenage sons Michael and Daniel were in the back seat. Mrs Klanja was driving the family home to Endeavour Hills on the Dandenong-bound side of the freeway. As they approached the Jacksons Road overpass they were in the middle lane and travelling at approximately 100 kph. The applicant's Landcruiser utility collided with the Klanja family's Ford, the collision being witnessed by the occupants of a Daihatsu Charade driven by Jodie Halford. Ms Halford was driving her Charade on the Dandenong-bound side of the freeway, her passengers being Alex Rodriguez, Irene Halus, Adrian Ricci and Craig Deayton. Their evidence was that the night was clear, and as they approached Jacksons Road on the outward-bound portion of the freeway, they entered the left lane to take that exit. Rodriguez said that Ms Halford was travelling at between 95 and 100 kph when he saw oncoming lights in the distance. He saw the applicant's vehicle collide with the Ford which had been travelling beside Ms Halford's vehicle. The Ford then spun around and hit Ms Halford's Charade, which then left the road. Ms Halford said in evidence that she saw something on the wrong side of the road moving very quickly towards her but had no time to react before the first collision. She then applied the brakes and attempted to manoeuvre but could not avoid the Ford.

Romelle Cleur was driving a Toyota Corolla in the middle lane of the outward-bound side of the freeway, travelling at 95 to 100 kph behind the Klanjas' Ford. His vehicle was also involved in the collision near the Jacksons Road overpass, but he did not see the other vehicle that collided with him prior to the collision.

After the collision the applicant's vehicle came to rest on the edge of the centre median section. The applicant was observed by several persons to be the driver of the vehicle. He was then not able to get out of the jammed driver's door and fell out of the passenger seat. He was observed by several to be affected by alcohol. One of those who assisted described him in front of the jury as "pissed".

At 5.15 a.m. Dr Martin Lew took a blood sample from the applicant at the Valley Private Hospital, which was later analysed and found to have a blood alcohol content of .177 per cent. Dr Lew gave evidence that he considered the applicant to be under the influence of alcohol. The informant, Sergeant Tysoe, saw the applicant at 7 a.m. at the hospital and considered him to be in a drunken condition. As a result of the collision Mrs Klanja died and her two sons were seriously injured. Mr Klanja was injured, as were three passengers in Ms Halford's Charade, and the driver of the third car, Romelle Cleur. The death of Mrs Klanja and the injuries to the persons just mentioned gave rise to the charge of culpable driving and recklessly causing serious injury and recklessly causing injury which I have already mentioned. The ten counts of recklessly endangering individual parties related to Mr Carr, the passenger in the taxi, the three passengers in Mrs Klanja's car other than herself, the five occupants of Ms Halford's Charade, and Mr Cleur, the driver of the Corolla.

An expert called on behalf of the Crown estimated that at the time of the collision the applicant's blood alcohol reading could have been in the range of .136 to .183 per cent. In cross-examination he said the reading could have been as high as .204 per cent.

Counsel for the applicant said to the judge at the outset of the trial, before any evidence was called, that -

"The defence is that the accused wasn't aware that he was driving, he was not aware of what he was doing, he didn't know how he came to be driving and there was never any intention to drive and that will be the defence case, that is, that this is not a case with a guilty intention and it's not a conscious act."

Reliance was placed on Jiminez v. The Queen[1].

The applicant himself gave evidence. He said that he did not remember driving his car on the night the collision took place and did not remember the collision. He did not remember being on the wrong side of the road nor making a decision to drive home. He said that he had a memory of being in his brother's lounge room, the brother's house being in Park Avenue, Glenhuntly. Under cross-examination, the applicant agreed that his most likely route from his brother's home to Lysterfield, where he would have been working the next day, would have been to turn left from Park Avenue into Grange Road, to travel north along Grange Road to the Princes highway where there are traffic lights, and from which he would have made a right turn into the highway to travel east to Warrigal Road. At Warrigal Road there again are traffic lights through which he would have made a left-hand turn to travel north along Warrigal Road to the entrance to the Monash Freeway. At the intersection with the freeway again there are traffic lights, through which he would have to make a right-hand turn onto the freeway to travel east towards Dandenong. Robert Laing, a horse trainer, gave evidence that at the time of the offence, the applicant was staying on Laing's property at Lyndhurst which is very close to the freeway. There was evidence that the applicant's Landcruiser had manual, not automatic, gearing.

Aaron Bradshaw gave evidence that he was driving his van in Warrigal Road on the morning of 12 December and stopped at the traffic lights at the intersection of Warrigal Road and Dandenong Road shortly before 4 a.m. When the lights changed he saw a Landcruiser turn left from Dandenong Road into Warrigal Road travelling in the same direction as he, towards the Monash Freeway. Mr Bradshaw's van proceeded along Warrigal Road in the centre lane. He noticed the Landcruiser enter Warrigal Road and then mount the median strip for a few metres. It came off the median strip and was then driving down Warrigal Road, not in a straight line but "all over the road". Mr Bradshaw said the Landcruiser did not remain in any one lane at all from the time it entered Warrigal Road. At one point it was stuck in the gutter on the right-hand side, and then it started to veer over to the left-hand side. At no time did the Landcruiser proceed in a straight line. Mr Bradshaw last saw the Landcruiser stopped at the traffic lights at the entry to the Monash Freeway. He saw the Landcruiser pulled over and indicating to turn right into the freeway heading towards Dandenong. At this point it was in the correct lane and took off from the lights at the same time as Bradshaw. Under cross-examination Bradshaw agreed that he had told the police that he had formed the view that the driver of the vehicle was asleep and was waking up from time to time and taking evasive action before falling asleep again, a view he formed from the movements of the vehicle. In this Court Mr Howard, who appeared for the applicant, accepted that the Landcruiser seen by Mr Bradshaw was in fact being driven by the applicant at the time.

The first ground is based largely on certain evidence given by a neuro-psychologist, Dr Andrew Gibbs, who gave evidence for the defence. Dr Gibbs was referred to the applicant's evidence that he could not remember being involved in an accident and could not remember doing any driving at all. Dr Gibbs then referred to alcoholic blackouts and the possibility of someone with an alcoholic blackout driving a car automatically. Dr Gibbs gave evidence of a very general nature that an alcoholic blackout is a recognised syndrome and that there are circumstances in which one can do involuntary actions while one is awake such as when a person has a seizure. In evidence-in-chief, the following evidence was given -

"Q. Is it possible to drive a car without intending to be driving the car? A. It's possible to actually get into a car and to be driving it and not necessarily having, just by being in the car you automatically perform those actions, you put the key in the ignition, you start off and away you go. Q. So are you aware that you're driving the car at that point? A. You might be at that particular second but you wouldn't be able to be aware of what's necessarily occurred in the past or to be able to be aware of the consequences in the future, so your acts are sort of concentrated to a very brief period of seconds or so - and as to what you're doing, you might be acting automatically according to your circumstance. Q. So it's the kind of situation that you might be driving but if you were to say, what have you been doing, you can't answer? ... A. Yes, that's right."

Dr Gibbs under cross-examination dealt at some length with memory functioning, making it plain that the condition he had been describing in chief involved a person functioning in an amnesiac state where they did not remember afterwards what they had done, but nonetheless accepting that the person concerned was aware of what he was doing and was performing those actions by the operation of his will at the time.

At no time in his evidence did Dr Gibbs say that the applicant's actions were consistent with those of a person not acting consciously and voluntarily. Mr Howard accepted that at the end of his evidence-in-chief, Dr Gibbs had given no evidence upon which the applicant could rely, arguing instead that some answers in cross-examination supported the applicant's case. I do not agree. The cross-examination, I think, made it still more clear that Dr Gibbs, in speaking of the applicant's possible amnesiac state, was saying only that he might not remember after the event what had happened, even though he was aware of what he was doing at the time, and acting by the operation of his will.

On the other hand the Crown called a forensic psychiatrist, Dr Justin Barry-Walsh, who had examined the applicant on the Friday before he gave evidence. Dr Barry-Walsh said that the applicant had a rating of 15 on the Glasgow coma scale, which meant that at the time of this assessment there was no evidence on the basis of that scale of any impairment in consciousness. This scale, he said, is a very useful tool for determining the level of consciousness, particularly in relation to head injury, but less so for other states. The rating made it less likely that there was significant impairment of his consciousness to drive at the time of the offences and was not consistent with it. Dr Barry-Walsh said that the act of driving a motor car is a "very complex mode of function", and from a psychiatric perspective it was not possible to drive a car without acting consciously and voluntarily. He said that an act without volition and will is an act without aim, purpose and direction, whereas driving is an organised activity and requires aim and purpose. He described in some detail all the individual functions required to be executed in an organised fashion to drive a car and said that these could not be done without will. Dr Barry-Walsh said that from all he had been told he could see nothing to suggest that the applicant had been in a state where he was not acting consciously and voluntarily when he was involved in the collision and immediately prior thereto.

Mr Howard also argued that the observations of the applicant's behaviour supported the defence case of unconscious and involuntary behaviour. He accepted that when observed by Mr Bradshaw, and heading down the freeway towards Dandenong, the applicant was driving consciously and voluntarily. To travel from the Princes Highway to the freeway, down the freeway to Stud Road, make a U-turn and return as far as Jacksons Road involved a trip of at least 21 kilometres. As I understood the argument, Mr Howard was putting that the contrast between the erratic behaviour observed by Mr Bradshaw, when it was conceded the applicant was acting consciously and voluntarily, and the driving observed by Mr Fox and his passengers, when the applicant was driving at a reasonably constant speed and apparently in one lane, without veering from lane to lane, supported the view that his driving had by then become unconscious and involuntary. This highly implausible - if ingenious - theory was not improved by the evidence of one of Mr Fox's passengers, Roy Wallace, that when he said to the applicant immediately after the collision that he had been driving up the wrong side of the road, the applicant immediately replied "No I wasn't".

Next it was argued that the trial judge in his charge to the jury referred to the issue of intoxication, but it was put that the only reference made by his Honour to Dr Gibbs's evidence on the issue of intoxication was that "Dr Gibbs was called and you should interpret Dr Gibbs' evidence as being one where, - supporting the defence contention". It was submitted that this treatment of critical evidence for the defence was not adequate and that it failed to put the evidence in an appropriate context for the jury to consider.

In fact a reading of the charge shows that his Honour gave a detailed summary of the evidence of Dr Gibbs, a summary which in my view was adequate and fair. As was submitted by counsel for the Crown, the real issue in this case was whether the Crown had proved that the applicant had acted voluntarily and consciously. Insofar as Dr Gibbs gave evidence of the applicant's amnesia, that evidence was in truth irrelevant to the issues in the trial. In my view it is clear that the jury could not have been left in any doubt as to the nature of Dr Gibbs's evidence and such relevance as it had to the issue whether the applicant had committed a voluntary and conscious act.

Next it was submitted that although his Honour had correctly referred to the concept of the applicant driving or acting in a conscious and voluntary manner, this crucial concept had been merged or confused with the concept of intention, and contradicted at different times when his Honour was dealing with a direction of law on the evidence of intoxication.

It is true that on a few occasions the judge used the word "involuntary" or the adverb "involuntarily" alone without referring as well to the concept of consciousness. On some occasions his Honour used the words "consciously" and "voluntarily" interchangeably. But his Honour on countless occasions told the jury that the Crown had the burden of showing that the accused was acting consciously and voluntarily and that he intended to bring about the consequence of his conduct. For example, near the end of his charge, in summing up on the question of intoxication, his Honour said -

"Accordingly, you have got to look at all the facts here and make your findings as to the circumstances, and ask yourself whether you are satisfied by the Crown beyond reasonable doubt that in doing what the accused did on this occasion in respect of the particular count which you are [considering] he was acting consciously and voluntarily and that the accused intended to bring about the consequence of his conduct, that conduct set out in the particular count, remembering of course that the onus of proof at all times rests on the Crown and there is no onus of proof whatsoever on the accused man."

Mr Howard accepted that this direction was faultless.

In my view there was no error in the direction of law given by his Honour in relation to intoxication when his Honour's charge is considered as a whole. In any event, the applicant was represented at the trial by counsel of long criminal experience and no exception was taken by counsel to his Honour's charge. Ground 1 should be rejected.

Mr Howard's second ground was that the judge erred in directing on the burden of proof in relation to the defence evidence in the following passage -

"The defence also leads some evidence which if it also goes by the calling of that evidence, submits the defence to eroding the Crown's ability to prove those elements beyond a reasonable doubt and if you think the defence have raised a reasonable doubt or it is a rational possibility on the evidence then it is your duty to acquit the accused if you are not satisfied in any of their defences that he was acting consciously and voluntarily, and also in those cases which involve a state of mind you also have to be satisfied beyond a reasonable doubt that the Crown had proven the appropriate state of mind to that particular offence."

It was submitted that this passage would have left the jury under the impression that the defence had a positive burden to discharge in relation to the state of mind of the applicant, insofar as the passage refers to the applicant raising a reasonable doubt. The correct formulation, it was submitted, is that if there is material suggesting that the driver's actions might not have been conscious and voluntary, then the jury should be instructed that the onus of negativing that defence rests with the prosecution. It was submitted that to refer to the defence raising a reasonable doubt was likely to have led the jury to believe that the defence had the ultimate burden.

In my view the jury could not have been left in any doubt of the obligation on the Crown to prove all elements of the offences, including proving that the applicant had acted voluntarily and consciously. Immediately before the passage to which reference was made above, the judge had observed that -

"The real issue in this trial seems to be whether the Crown had proven that in all the offences which involve states of mind, whether the Crown has proven in respect of engaging in conduct endangering death whether the accused acted intentionally and deliberately, whether he acted recklessly, and also the Crown had to prove that he was in a conscious and voluntary state when the acts were committed, and the Crown bear the onus of proof of all the intents, whether it is the intention or acts, reckless acts, negligent acts or whether an act was conscious and voluntary, the Crown must prove that element to your satisfaction beyond reasonable doubt."

The judge throughout his charge (on not less than twenty occasions) made it perfectly clear to the jury that the defence were under no obligation to discharge any burden including in relation to the question whether the applicant was acting in a conscious and voluntary state in his driving on the night in question. Once again, no exception was taken by defence counsel to the judge's charge. The charge was in my view entirely fair to the applicant and free of any such error as is now suggested on his behalf.

The application in relation to conviction should accordingly be dismissed.

This application was made on five grounds, to which I shall turn after dealing briefly with the applicant's background. He is now aged 29 and is the eldest of three sons. His father is a racehorse trainer and breaker and the applicant left school at 14 and started as an apprentice jockey at the age of 15, apprenticed to his uncle. He had been riding horses since the age of four. He went to St Michael's School and then the Traralgon Technical School. His range of intellect has been assessed at borderline to low average. The applicant had his first ride in February 1989 and in his first twelve months had 282 rides for 71 wins and 50 placings. The applicant also helped his father break-in horses.

At the age of 18 the applicant obtained an apprentice jumping licence and did very well as a jumps jockey. He has raced in the Grand National Hurdle and the Grand National Steeple at Flemington. His wins include the Australian Steeple at Sandown, and the two biggest hurdle races in South Australia. The applicant also represented the Australian Jockeys Association in Ireland in 1996. The applicant is obviously a very accomplished jumps jockey, and was said in evidence during the plea to have the reputation amongst some trainers as having the best feel for horses in Australia. One witness said that if he had been able to continue as a flat rider he would be known as the best apprentice ever in Victoria. However, he grew too big to continue as a flat rider, and it was said that this would have been very disappointing for him and may have contributed to his drinking problems. There was evidence that the applicant is held in the highest esteem in the racing fraternity and his character has never been in question as a jockey. A large number of character witnesses were called, and they uniformly spoke very highly of the applicant.

Evidence was given that the applicant has been a drinker from time to time with his friends and that this has sometimes led to problems. It was said that his drinking occurred only once in a month or two, and that his attitude to drinking has changed since the accident, it being put that he had not had a drink between January 2001 and the trial in May 2001. It may be accepted that the applicant is now remorseful for what he did. His convictions on these charges mean that he will probably not be able to obtain a jockey licence again.

The applicant, however, has the prior convictions to which reference has already been made, and, as the judge said, a significant number of his prior convictions relate to violent conduct associated, so the judge was told during the plea, with alcohol. His problem with alcohol resulted in him having been banned in 1998 from drinking in hotels in Traralgon for a period of two years. In January 1995, the applicant had been convicted of causing serious injury recklessly at the Magistrates' Court at Sale and was placed on a community-based order, one of the conditions of which was that he undergo assessment and treatment for alcohol addiction as directed by the Community Corrections Central Regional Manager, and that he not enter liquor-licensed premises without the permission of that manager. His high blood alcohol reading shortly after the offences were committed led the judge in sentencing to say that the jury would have been satisfied beyond reasonable doubt that he was driving whilst under the influence of intoxicating liquor to such an extent as to be incapable of having proper control of a motor vehicle.

The applicant's driving on this night was described by the judge as appalling. His Honour found that "this case of culpable driving falls very much towards the serious end of the range", and that in terms of assessing turpitude, the offence was "towards the graver form of the offence". I agree with these comments. The applicant drove at speeds of up to 100 kph in the wrong direction on a freeway with traffic moving towards him at the same speed, a course of conduct which made death and serious injury inevitable, the only surprising element being that the death toll was not a higher one.

Mr Howard accepted at the outset of the argument concerning sentence that the five grounds he sought to put were in substance particulars of a claim that the sentence was manifestly excessive. He also made it clear that he did not challenge the order for cumulation of two years, accepting that cumulation of the nature directed by the judge was clearly appropriate having regard to the numerous persons affected by the applicant's driving and the number of offences involved. Insofar as the sentence of seven years for culpable driving was challenged, he also fairly accepted that the sentence was within range, his argument being that it was manifestly excessive having regard to the particular circumstances of the applicant and his driving.

Ground 1 claimed that the judge placed too much weight on the importance of public denunciation. Under ground 3 it was claimed that the judge erred in placing too much weight on general deterrence, and getting a message through to the community on the perils of drinking and driving. Reference was made to the fact that the judge during sentencing reasons said -

"This type of offence is one which calls for public denunciation. The components of specific deterrence and general deterrence have considerable relevance to sentencing. As far as general deterrence is concerned, the penalty must be sufficiently severe to cause others to resist engaging in similar conduct or give considerable thought to what the outcome can be from drinking and driving."

It was submitted that in referring to the need for public denunciation and also for a sufficiently severe sentence to give effect to the requirement of general deterrence, his Honour passed a sentence which gave effect to these principles cumulatively. It was argued that a sentence which is severe in terms of general deterrence must in itself involve public denunciation. Similarly, a sentence which expresses public denunciation necessarily involves a sentence of severity in terms of general deterrence.

I shall deal with the ground of manifestly excessive later. As to the specific grounds, I can only say that I agree with every word of the passage quoted from his Honour's sentencing reasons. The principles of public denunciation and general deterrence are plainly very important considerations in cases such as this. I see no error in the passage from his Honour's sentencing reasons quoted, nor do I think his Honour placed excessive weight on these considerations in the construction of sentence.

Ground 2 claims that the judge placed insufficient weight on rehabilitation. Under ground 4 it is claimed that the judge erred by giving too little weight to the likely impact of any gaol term upon the applicant's occupation as a jockey.

"It causes me concern as to your prospects of rehabilitation unless you learn a very real lesson from this case. I have heard from a number of character witnesses on your behalf. They spoke highly of your considerable talents as horse rider and a jockey. I have no doubt that you are an outstanding horseman whose career as a jockey was brought to an unhappy end by your increasing weight."

For the applicant it was submitted that his Honour appeared to have equated rehabilitation with a long period of imprisonment, which was submitted to be in error. The argument ran that the longer the applicant serves in prison, especially given his personal circumstances, the more difficult it will be for him to rehabilitate himself. It was also submitted that the judge appeared to have placed little or no weight on the difficulties faced by the applicant in obtaining a jockey licence on his release. This difficulty no doubt adds to his punishment on the one hand and on the other emphasised the need for him to avoid a crushing sentence so that he can find alternative work while he is still relatively young.

Again, I see no error in his Honour's reasoning. The evidence suggested that the applicant was unlikely to be able to obtain re-employment as a jockey, by virtue of the existence of these convictions alone. His Honour had every justification for being guarded about the applicant's prospects of rehabilitation. The facts clearly demonstrated that the applicant has a serious problem with alcohol. In my view the length of the sentence does not suggest that the judge erred in the use he made of his findings as to the applicant's prospects of rehabilitation.

The final ground claims that the sentence imposed was manifestly excessive in all the circumstances.

42 In the consideration of manifest excess it must be remembered that the applicant was not entitled to any discount for pleading guilty, although he has shown some remorse. The Crown case was a very strong one and the applicant really had little or no prospect of escaping conviction for the offences with which he was charged, a view borne out by the relatively short time taken by the jury to reach a verdict on all charges after a trial of some length. While the applicant must not be penalised for his plea of not guilty, in hindsight he may well regret that he did not plead guilty and accept instead the discount in sentencing to which he would then have become entitled. It is not easy to think of a worse example of culpable driving than the present case. The applicant's driving made horrendous consequences inevitable. There was the plainest need for public denunciation and specific and general deterrence in the construction of the sentence. The maximum penalty for culpable driving is now 20 years. After taking into account all the applicant's individual circumstances and the favourable character evidence given on his behalf, a sentence of 7 years' imprisonment for culpable driving was plainly within range. The sentences on all the other counts and the degree of cumulation were perfectly appropriate in all these circumstances, and were conceded to be so.

The sentence imposed was, in my view, plainly not manifestly excessive.

The order of the Court therefore will be that each of the applications be dismissed.

At a glance

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Judgment (59 paragraphs)

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