R v Taafe [1998] VSCA 4

R v Taafe [1998] VSCA 4 - VSCA 1998 case summary — Zoe

[27]

Expert evidence was given by Dr. Edward Ogden, a medical practitioner and an expert in clinical forensic medicine. Dr. Ogden said that if a person ingests an amount of alcohol, absorption will occur over a period of time and a peak level will be reached, after about three-quarters of an hour. He said that that period may be as short as half-an-hour, it may be as long as two hours. Dr. Ogden said that if the applicant was not drinking in the two hours prior to the collision, then it would be reasonable to assume that at the time of collision his blood alcohol percentage was falling at between .01 and .02% each hour. On that assumption Dr. Ogden said he would calculate that at the time of the collision the applicant's blood alcohol concentration was in the range of .095 to .120. Dr. Ogden said that if one assumed that the peak blood alcohol concentration occurred half an hour after the collision, on the assumption that drinking had occurred right up to the moment of collision, the applicant may then have reached a peak half-an-hour after the collision and had a blood alcohol concentration falling for nearly two hours until it was measured at 7.40 p.m. On that basis, Dr. Ogden said that peak concentration would have been .11 per cent and at the time of the collision the blood alcohol percentage may have been as high as .10. Dr. Ogden said that if one took the most generous view from the defendant's perspective, and assumed that he was drinking until the time of collision but did not reach his peak concentration until two hours later (i.e. 7.15 p.m.), he would calculate that at the time of collision the applicant's blood alcohol concentration may have been as low as .06%. Dr. Ogden also gave evidence of the effect of alcohol on driving skills. His evidence was that alcohol is a sedative, slowing the brain down, and that alcohol interferes with the ability to control a motor vehicle in that at .05% drivers are less able to maintain lane position, less able to maintain the spacing between vehicles, are unaware of any impairment, and are more likely to ignore instructions. Dr. Ogden said that by a level of .06%, safe stopping distance has more than doubled. He said that alcohol affects the ability to see to the sides, affects peripheral vision and causes tunnel vision. Dr. Ogden said "most sensitive of all is [that] alcohol has an affect on divided attention tasks, that is, when somebody is trying to do two things at once."

[34]

In support of his arguments on ground 1, Mr. Tehan took the Court through a meticulous and detailed examination of the evidence. His submission was that no one of the three matters relied on by the prosecution could have satisfied the jury to the criminal standard of gross negligence, that the combined force of the three should not have led to a finding of gross negligence, and that upon disputed matters there were competing inferences as to what conclusions should be drawn. In so far as liquor was concerned, Mr. Tehan submitted that all the evidence of the applicant's conduct pointed to his not being adversely affected by liquor, and he relied on what the applicant himself, Ms Deppeler, Mr. Madden and Mr. Johnson all said as to his behaviour and actions. His submission was that the independent evidence uniformly suggested that the applicant was not adversely affected by liquor, there was no suggestion of inattention on his part while driving into the bottle shop and he argued that this amounted to uncontradicted first-hand evidence of a man who was not adversely affected by liquor. Insofar as speed was a factor, he submitted that the impact speed of 103 kph was not a safe basis upon which it could be found that the applicant's car was at the point of impact travelling at an excessive speed. In relation to the movement of the two vehicles, Mr. Tehan relied on the fact that Sergeant Bellion had been unable to say what the pre-collision path of the Nissan had been. He relied on the evidence of the applicant and his passengers that the Nissan was not on the correct side of the road coming around the bend, and submitted that Bellion's evidence was consistent with the view that part of the Nissan may have been on the incorrect side of the carriageway or at least straddling the white lines in the middle of the road. Mr. Tehan submitted that the evidence relating to any of the individual matters relied on by the prosecution could not have justified a conviction for culpable driving. The Crown case, Mr. Tehan said, had to be that it was a combination of liquor, speed and inattention. He submitted that the jury acting reasonably should not have arrived at a guilty verdict on such a basis.

[36]

In my view the evidence entitled the jury to find that the applicant had consumed eight 10-ounce glasses of full strength beer and one bourbon and coke between 11.30 a.m. and 4.15 p.m., and possibly half a VB can of beer at the service station where he obtained petrol on the day of the accident. Depending upon whether the jury believed the applicant's assertion that he drank beer at the service station, the jury would have been entitled to find on the evidence that the applicant's blood alcohol percentage at the time of the collision was .07%, or, on any view, at least .06%. At this blood alcohol level, they would, on Dr. Ogden's evidence, have been entitled to conclude that his driving skill was impaired, particularly in his ability to brake suddenly, in his reaction time, and in handling divided attention tasks. They would have been entitled to find that he was negotiating a blind left-hand bend at a speed conservatively estimated at 109 kph, too fast a speed for that corner, at a time when he first went into the gravel and lost control. They were entitled, on the applicant's own evidence, to conclude that he had turned briefly to talk to Johnson in the rear seat to ask him where he should be dropped off, at the same time steering briefly into the gravel where he lost control. Having regard to the evidence of Sergeant Bellion, Ms Murphet, Ms Porter and Ms Howard, they would have been entitled to reject the evidence of the applicant and his passengers that Mr. Howard's Nissan was on the wrong side of the road. They would, I think, plainly have been entitled to conclude that it was the applicant's car which was travelling on the wrong side of the road before and at the time of the accident. In assessing this evidence the jury would have been assisted by the view they had taken of the scene, and by having driven along the road in the directions taken by both vehicles. On all this evidence, I am persuaded that the jury was entitled to conclude that the applicant failed to observe the prescribed standard of care to a gross degree, and accordingly that it was open to them on the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty of culpable driving causing the death of Mr. and Mrs. Howard.

[61]

There was a substantial body of evidence before the learned judge dealing with the consequences for the applicant of the delay between offending and sentence. The applicant himself, as I have said, had been seriously injured in the accident, and there was evidence given by Dr. Nicholas Lis, a consultant psychiatrist, and Mr. Timothy Watson-Munro, a forensic psychologist, that the applicant had suffered post-traumatic stress syndrome (Dr. Lis described it as acute). While the learned judge took the view that the applicant's evidence indicated that he had not fully accepted responsibility for the collision itself, the accident had produced emotional effects on the applicant requiring psychiatric treatment, and various witnesses spoke of his ongoing emotional demonstrations of regret for the consequences of the collision. The applicant, by pleading not guilty, was prevented from demonstrating remorse by his plea, but there was an abundance of evidence from others that he had been emotionally devastated by what had happened, not least when he discovered that Mr. Howard, who was well known to him, and with whom he had had a good relationship, had been driving the other car and had been killed in the accident. Among the witnesses who gave evidence at the plea, John Berry, a civil construction sub-contractor, gave evidence that the applicant was a good and trusted worker, but that he was having great difficulties in dealing with his situation, which prevented him from being fully committed to and focussing on his work. He saw him break down on many occasions because of the frustration he experienced and the problems with which he was dealing. Judith Matthews spoke of the applicant's difficulties in coping over the last three years with how badly he felt, particularly because it was Mr. Howard who had died. Bruno Zausa had wanted to employ the applicant as a fork-lift operator, but since the accident he had been unable to cope and had been "hurting over the peoples he's killed". Zausa said the applicant was a very good worker, very reliable, who never let him down. Evidence to the same effect was given by Jean-Luc Giummarra. The applicant's partner, Christine Paynter, gave evidence that she and the applicant had a child, Matthew, now aged 6, and that she was then pregnant to him with their second child who was due to be born in May 1998, and of their worries and difficulties over the coming trial.

[71]

In the present case the learned judge appears to have taken the view that the consequences of the delay on the direct and indirect victims of the offences in effect cancelled out the effect of the delay upon the applicant. With great respect, I do not think this can be correct. I accept that his Honour was entitled in considering the seriousness of the offences to take into account the impact upon the victims, and his Honour did indeed receive some 12 victim impact statements pursuant to Part 6, Division 1A of the Sentencing Act 1991. But delay is, I think, a different question. The principal effect of delay upon the victims was, in my view, that three of the grandchildren were required to give evidence, and in that way re-awaken all the traumatic effects of the accident. But the applicant is already, in a sense, punished for pleading not guilty by at once losing the possibility of any discount for a plea of guilty. That discount is of course given not only for saving the State the trouble and expense of a trial, and for the demonstration of remorse that may be involved, but also because the victims' families and witnesses are spared the trauma of a trial. Mr. McArdle submitted, and I agree, that there will often be cases where delay is an advantage to the prisoner. But, insofar as there was an explanation given for the delay here, it was only of the prisoner's making in that he chose to plead not guilty. One might add that, for the reasons given by the learned judge, the prosecution case was by no means an overwhelming one, relying on a combination of three matters, none of which by itself would have established gross negligence. I do not think the applicant can fairly be held accountable for the failure of the police to find the witness Weber for 10 months, or for the fact that, after nearly 30 months of delay, the trial was fixed at a time when the counsel who had represented him at the committal was to be married. In my view the learned judge, with respect, erred in disregarding the delay of 35 months between offending and sentence.

[73]

The learned judge said he had taken into account five decisions in regard to current sentencing practice, R. v. Arnold (1994) 18 M.V.R. 147; R. v. Cowan (1997) 25 M.V.R. 12; R. v. Cody (1997) 25 M.V.R. 325; R. v. Musson [1997] 1 V.R. 656; and R. v. Gattas, unreported, Court of Appeal, 15 September 1997. Notwithstanding that there are numerous cases dealing with culpable driving, it is not easy to establish any clear guidelines for sentence in cases of this nature. Indeed Tadgell, J.A. said in Cody, at 332, that the Court of Criminal Appeal has not given any definitive guidance upon the proper sentence to be imposed in cases of culpable driving, a comment repeated by Batt, J.A. in Gattas at 8. Each of the five cases quoted involved a clear and bad case of grossly negligent driving, and each prisoner had pleaded guilty. In Arnold the accused, who had five prior convictions for drink driving, had a blood alcohol reading of .27% and was driving after having been warned against doing so. A sentence of 7 years' imprisonment, with a non-parole period of 4½ years, was upheld. In Cowan, the accused's blood alcohol reading was .168%, and she also did not heed a warning that she was not fit to drive. A sentence of 3 years' imprisonment was upheld. In Cody, the accused's blood alcohol reading was .165% and the driving was described as very bad "at the moment of collision and at least intermittently for some distance before that". A sentence of 5 years' imprisonment with a non-parole period of 2½ years was upheld. In Musson the accused's blood alcohol reading was .149% and his driving was characterised as "a very serious breach of the law" calling for a sentence "at the highest level of the range". A total effective sentence of 7 years' imprisonment, with a non-parole period of 4½ years, was upheld. In Gattas, the accused's driving was described as appalling, and his criminality such as to place him "at the upper end of the scale of negligence". A total effective sentence of 7 years' imprisonment, with a non-parole period of 5 years, was reduced on appeal to 5½ years, with a non-parole period of 3½ years. It is noteworthy that in each of these five cases, no doubt because of the pleas of guilty, there was comparatively little delay before sentence, the longest period between offending and sentence being slightly more than 14 months.

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