R v Teh [2003] VSCA 169

12. On 15 July 2002, the applicant pleaded guilty to negligently causing serious injury to Maree Licardi (count 1 on presentment P02600800), culpable driving arising from the death of his daughter Jacqueline Teh (count 1 on presentment P02256323), and causing serious injury negligently to his son, Bradley Teh and Atia Cader (counts 2 and 3 on presentment P02256323 respectively). He also agreed to the determination of a summary charge, to which he pleaded guilty, of driving on 28 June 2001 whilst his authorisation to do so was suspended as a consequence of an earlier speeding offence. He had, on 12 May 2001, exceeded the speed limit on the Warburton Highway at Seville by 30 kph but less than 40 kph. He was issued with a penalty infringement notice at the time and, accordingly, his licence was suspended for one month from 10 June 2001, that is, 28 days from his receipt of the notice. The applicant had a history of 14 prior convictions, and one finding of guilt from seven previous court appearances. They included nine convictions for driving offences.

15. After hearing a plea in mitigation of penalty, on 19 August 2002 the applicant was sentenced as follows:

Count 1 - two years and six months' imprisonment, one year and six months to be served cumulatively on the sentence imposed on Presentment P02256323.

Count 2 - two years' imprisonment, one year of which was to be served cumulatively upon the sentence imposed on count 1.

Count 3 - one year and six months' imprisonment, six months of the service of which was directed to be served cumulatively upon the sentences imposed on counts 1 and 2.

The sentencing judge cancelled the applicant's driver's licence and directed that he be disqualified from obtaining another until the expiration of 18 months after his release from custody.

25. The total effective sentence created by these various dispositions was imprisonment for ten years in respect of which her Honour fixed a non-parole period of seven years.

28. The applicant seeks leave to appeal to this Court on the following grounds:

"1. That the sentence is manifestly excessive. 2. That the learned sentencing judge erred in not giving sufficient weight to the suffering imposed upon me by the death of my daughter (the victim of the culpable driving count) and placed too much weight on specific deterrence. 3. That the learned sentencing judge erred in applying the principle of totality and cumulated the sentences, so that the total sentence was excessive. 4. That the learned sentencing judge erred in imposing a sentence of two-and-a-half years on the count of negligently causing injury where the victim was Maree Licardi given the nature of her injuries."

34. At about 10.45 p.m. on Thursday 28 June 2001, the applicant was driving a motor vehicle in a westerly direction towards Lilydale on the Warburton Highway in Wandin North. The speed limit at that section of the highway was 70 kph. However, according to witnesses who observed his progress, the applicant was travelling at a speed in the vicinity of 100 to 110 kph. As I have earlier indicated, he was at the time not authorized to drive a motor vehicle at all as his licence to do so had been suspended for one month from 10 June 2001. I should add that the applicant denied he was aware that this was the case, asserting he had not read the penalty infringement notice handed to him when he was initially intercepted. In any event, on the occasion with which I am presently concerned, he was seen to overtake at least two cars, crossing double lines before he collided with an oncoming vehicle being driven by Maree Licardi. His car was, at the time of this collision, still on the incorrect side of the highway. The speed and manner in which the applicant was driving in the circumstances were patently dangerous and made even more so by the bald tyres on his vehicle and the fact that the roadway was wet.

37. The learned sentencing judge accepted that there was some evidence that another vehicle may have entered the highway shortly prior to the collision and presumably, although she did not so state, through its presence could have contributed to its occurrence. Be that as it may, the applicant was, as he accepted by his plea, criminally negligent in the circumstances.

40. Ms Licardi sustained a laceration to her right knee requiring stitches and a fracture of her left hand. She also received a black eye, seatbelt burning and minor cuts. Her Honour pointed out that although it was anticipated that she would make a full recovery, in her victim impact statement Ms Licardi referred to some residual disability. The applicant sustained injuries to his knees which prevented him from pursuing his employment as a house re-stumper for at least some time.

44. Within three months of the occurrence of the above described incident, and at about 2.40 p.m. on Tuesday 25 September 2001, the applicant was again speeding on the Warburton Highway. On this occasion he was travelling in an easterly direction along the Warburton Highway towards his home at Launching Place. His son Bradley, aged five years, was seated in the front passenger seat and his daughter Jacqueline, aged seven years, was in the rear passenger seat.

47. Although in his subsequent police interview he stated that he was not in a hurry at the time, the applicant attempted to overtake a group of cars, crossing double parallel white lines at a speed estimated by some witnesses at 120 kph. The applicable speed limit was 100 kph at that point. It must also be noted that, as on 28 June 2001 when he had become involved in the first accident, the road was wet and slippery. The Court has been provided with photographs of the area and it is apparent from them that no measure of hindsight is required to recognize that this was an extraordinarily dangerous manoeuvre on what is well recognized as a very busy highway. The risk involved would have been obvious to anyone with a modicum of sense or concern for the safety of other road users, his passengers or himself. In order to avoid oncoming traffic, the appellant attempted to move back to the correct side of the roadway. In so doing, he lost control of his car which spun on to its incorrect side and collided with a Honda four-wheel drive vehicle travelling in the opposite direction. The impact was of such severity that the applicant's car split into two pieces. Another car, an Hyundai Excel sedan then ran into the back of the Honda.

50. Jacqueline Teh was killed almost instantaneously upon impact. Bradley Teh suffered a fractured left femur and left humerus. Atia Cader, a passenger in the Honda vehicle, sustained a sternal fracture and soft tissue injuries. The driver of that car and the driver of the Hyundai also sustained injuries but of a less serious character.

53. Although a blood test taken from the applicant two hours after the collision indicated traces of marijuana, there was no evidence that the use of this material had contributed to the accident. Of much greater significance was the presence of a high blood concentration of methylamphetamine which, the learned sentencing judge found, would have adversely affected the applicant's driving skills at the time. I note that, in a report tendered by consent in the Court below, Ian Joblin, a forensic psychologist, recounted a history given to him by the applicant of the ingestion of ecstasy, amphetamine and alcohol during the preceding two or three days. The sentencing judge found that he had not slept during that period. This, too, must have impacted adversely upon his capacity to drive in a safe and responsible manner.

57. It is convenient to address first ground 4 of the grounds upon which the application before this Court has been made.

60. In support of the contention that the learned sentencing judge fell into error in imposing a sentence of two years and six months' imprisonment for negligently causing serious injury to Maree Licardi, counsel for the applicant has drawn the attention of the Court to the sentences of two years' imprisonment and 18 months' imprisonment which were handed down for negligently causing serious injury to Bradley Teh and Atia Cader respectively. He submitted that the injuries sustained by Ms Licardi were not as serious as those sustained by Bradley Teh, which attracted a lower sentence and only slightly worse than the injuries suffered by Ms Cader.

63. Although it would seem that these assessments of the relative severity of the injuries sustained by the three victims concerned were probably correct, as Callaway, J.A. pointed out in the course of the hearing, it simply does not follow that error could be inferred from the imposition of different sentences, the nature and extent of injury being only one of the matters to be taken into account in the determination of an appropriate sentence for each of the separate offences before the Court. In any event, in the present matter, even if any inconsistency amounting to error could be detected on the basis of the absence of some such differences, it would almost certainly involve an under-estimation of the severity of the injuries sustained by Bradley Teh. I am not to be taken as expressing the view the commission of any such error has been demonstrated. The learned sentencing judge may well have formed the view that some amelioration of the penalties imposed for negligently causing injury to Atia Cader and Bradley Teh was appropriate, bearing in mind that those offences arose from the same actions that gave rise to the count of culpable driving in respect of which a substantial sentence had to be imposed. Indeed, I am almost certain that her Honour approached the matter in that fashion.

66. The absurdly dangerous conduct of the applicant which led to injury being suffered by Ms Licardi, had to be assessed against a history of driving offences. These included occasions of speeding and driving in a manner dangerous to the public and, bearing in mind that, whether he bothered to read the penalty notice forwarded to him or not, he was driving during a period of suspension. His conduct constituted a very serious departure from the standard that might reasonably be expected to be maintained by drivers on our roads and was attended by no mitigating circumstance. The applicant's level of culpability was accordingly high. As is the case generally with respect to driving offences general deterrence assumed significance as a sentencing consideration. Against that background, I consider that the sentence imposed on this count was clearly within the range available to the sentencing judge.

70. These grounds can, I consider, be conveniently addressed together.

73. Whilst Mr Croucher accepted that sentences of the order of seven years had been handed down in recent times for the offence of culpable driving, he argued that nevertheless, viewed in context, the imposition of such a sentence in the present matter had to be regarded as at least, quite severe, if not manifestly excessive. However, he further submitted, whether or not it was beyond the range of sentence available in the circumstances the making of orders for substantial cumulation upon it resulted in the imposition of a total effective term of imprisonment that was manifestly excessive. He contended that, despite the amount of attention which was directed to this aspect by counsel then appearing for the applicant, the reason why the sentencing judge fell into error in this respect was that she appeared to have had little or no regard to the consequences for the applicant himself. The knowledge that through his conduct he had occasioned the death of his own child assumed significance as a sentencing consideration on more than one basis, yet only a couple of passing references were made to it in her Honour's sentencing remarks. On the other hand, a deal of emphasis was placed in those remarks upon the impact upon the witnesses of the terrible scene that they encountered and the distress caused by the death of the child to everyone else involved.

76. There are a number of respects in which the fact that the perpetrator of an offence personally experiences distress, injury or loss as a consequence of its commission can assume relevance in the determination of an appropriate sentence. Generally it will take its place as one of the matters to be taken into account in the development of an appropriate synthesis. It may assume significance in the assessment of the just punishment required, the weight to be given to expressions of remorse or to general and specific deterrence in the circumstances of the particular matter. There have been, for example, many situations addressed by the courts in the course of their daily operations in which perpetrators have brought upon themselves serious suffering and loss, sometimes involving an order of effective punishment that no civilized society could ever require as just punishment. Hopefully, there would be few who would not experience deep remorse for the death of a child as a consequence of their irresponsible behaviour, whether their own or the child of someone else. The prospects of successful rehabilitation and the weight to be given to deterrence, both general and specific, would often need to be assessed against such a background. Clearly I have not attempted to exhaust the possible ways in which loss and suffering experienced by the offender himself may be taken into account, or the weight that should be attributed to it in any given situation, but rather point out that, according to the circumstances, the personal consequences to the offender may assume significance. This simply represents an application of the principle that the determination of an appropriate sentence requires a sentencing judge to give appropriate weight to each of the relevant sentencing considerations having regard to the particular circumstances of the offence and perpetrator involved.

79. The significance of the personal consequences to an offender whose criminally irresponsible conduct has occasioned death or injury to their loved ones was considered by Hedigan, A.J.A. in Yalim[3]. He stated:

"The offences, and their terrible personal consequences, were grave and without much in the way of mitigating circumstances save for the claim that the event was, as it were, devastating to the life of the appellant. The sentencing judge was bound to take into account, having regard to the continuing carnage on the roads, the urgent necessity to remind and re-remind motorists by firm sentences of the dangers to themselves, their friends and their loved ones, and to other ordinary road users, of the damage created by irresponsible driving, particularly when linked to or caused by excessive consumption of alcohol. Thus in my view the sentencing judge was bound to give, as he did, notable weight to general deterrence, and surely he was right to regard personal deterrence as virtually irrelevant, given the circumstances here and the tragic consequences that fell on the appellant himself.[4]

...

There is no reason to suppose his Honour did not take into account the personal circumstances of the applicant and the devastating effect of his conduct and his guilt on him. In human terms, these consequences attract compassion for the continuing grief and guilt, but they cannot play a significant or major role in the sentencing process, having regard to the circumstances of this case."[5]

83. In the present case, the sentencing judge appears to have accepted evidence given by the principal of the school attended by his children indicating that the applicant was a "loving responsible caring father".[6] She commented that he had suffered "so much"[7] and held that he experienced "true remorse"[8] for his actions. Although it is rather surprising that there were only a few such references to the impact upon the appellant of the knowledge that he had occasioned the death of his own child in her sentencing remarks, I find it difficult to accept counsel's submission that she was not appropriately mindful of this consideration.

86. What is apparent from those sentencing remarks was the emphasis placed by her Honour upon the gross breach of the duty owed by the applicant to his children that was involved in his conduct. That was a circumstance of significant aggravation and represented the other side of the coin. She pointed out that the appellant had "demonstrated a thorough disregard for the laws and customs which regulate, or are intended to regulate, the use of our roads".[9] There were no mitigatory features present and his actions have had severe irreparable and far-reaching consequences to a number of others, none of whom have any level of responsibility for what had happened. One person was killed, others injured and witnesses were traumatized. The death of his daughter had had a devastating personal effect on the appellant's wife and his son Bradley "has suffered considerably".[10]

89. I am unpersuaded that the sentence imposed for the offence of culpable driving in the present matter was outside the range available to the sentencing judge in this case. More substantial sentences have been upheld in this Court in recent times, reflecting the increased maximum penalty enacted by Parliament and greater emphasis being placed upon general deterrence as a sentencing consideration in cases of this kind.[11] This was a very serious example of the offence. Neither in the Court below nor before us was it contended otherwise nor were there any suggestions advanced that there were any mitigatory features whatever associated with it. Notwithstanding the personal suffering of the applicant, and I should add that his level of distress could be anticipated to be no less than that of the innocent mother of the child, a substantial sentence of imprisonment was called for.

92. The sentence imposed for negligently causing serious injury to Maree Licardi has been addressed earlier and I observe that no complaints have been advanced in relation to the other two sentences which were, in any event, clearly within the available range. The real force of the arguments advanced on behalf of the applicant before us attaches, in my opinion, to the orders for cumulation made by the sentencing judge. Clearly, some cumulation was required to reflect the fact that there were two totally separate incidents as well as the separate offences and victims involved. However, the amount of cumulation had to be limited in order to avoid breaching the principle of totality and the possibility of double sentencing.

95. I am of the view that the exercise of discretion by the sentencing judge has miscarried at this point and that the orders for cumulation made by her have resulted in a sentence that is beyond the range available in the particular circumstances of the matter.

98. I would allow this application, re-impose the individual sentences but vary the orders for cumulation as follows:

Six months of the sentence on count 2 and six months of the sentence on count 3 would be served cumulatively upon each other and upon the sentence imposed on count 1.

The total effective sentence for the counts on that presentment would be imprisonment for eight years.

I would further direct that six months of the sentence imposed on count 1 in Presentment P0600800 be served cumulatively upon the effective sentence imposed for the offences in Presentment P02256323.

This would create a total effective sentence of eight years and six months in respect of which I would fix a non-parole period of six years.

I would also direct, as did the trial judge in the Court below, that the applicant be disqualified from obtaining a drivers licence until the expiration of 18 months after his release from custody.[12]

[1] Compare, in the context of arson, R. v. Haddara (1997) 95 A.Crim.R. 108 at 108-109 and 113 and the cases there cited.

[2] Reasons of Vincent, J.A. at [20]-[21].

[3] [2000] VSCA 64; (2000) 31 M.V.R. 377. The circumstances were summarized in his Honour's judgment as follows:

"On 24 July 1998 the appellant, his wife and their two children - a boy aged twelve and a daughter aged four - had attended as guests at a Turkish wedding. They were returning to their home at about 11 p.m. in the appellant's motor vehicle. The weather conditions were fine and dry. The vehicle was being driven in Cooper Street, Epping, where the applicable speed limit was 80 kilometres per hour. The depositions of witnesses were to the effect that the appellant was driving his vehicle on the incorrect side of the road, which had double white lines, for some distance. He overtook another vehicle which was travelling at about 80 kilometres per hour and crossed the double white lines, and then, apparently, when returning to the correct side of the roadway, struck the end or some part of a median strip in the road centre which commenced at that point. He then further lost control of his motor car and collided with a pole at the edge of the roadway on the correct side. It appears also that there had been some other vehicle travelling in the opposite direction to the appellant's direction of travel, although it was not involved in the events. The appellant's daughter died of injuries at the scene and his wife died the following night. The speed of the appellant's vehicle at the time it overtook the other vehicle was estimated by that driver to be about 120 kilometres per hour, an estimate confirmed by police. Other evidence indicated that the appellant well knew this road and that he had passed two road warning signs on his approach to the critical area. After the collision, witnesses observed the appellant and some described him as seriously affected by alcohol. A sample of his blood taken and tested showed his blood alcohol level at that time to be .15, three times the legal limit." At 378, paras [4]-[6].

[11] See with respect to the approach adopted by the Court, DPP. v. Wareham [2002] VSCA 110; [2002] 5 V.R. 439; DPP v. Solomon [2002] VSCA 106; R. v. O'Connor [1999] VSCA 55 and R. v. Scott [2003] VSCA 55.

[12] I note that her Honour's order was directly modelled on the order in R. v. Tran [2002] VSCA 52; (2002) 4 V.R. 457 at [40] per Callaway, J.A.