R v Towle [2009] VSCA 280

R v Towle [2009] VSCA 280 - VSCA 2009 case summary — Zoe

[36]

I was driving back from - from my brother's place to - to my - to my place at 3 Nicholls Court and I got to a - I was doing about 90 kilometres an hour and I come up to a sharp corner. There was no warning ... no speed warning to - to slow down at the corner or anything like that and by the time I realised that it was a sharp corner I - I lost control of the vehicle and tragically spun 300 and - 180 degrees and collided into people - people that were standing very close to the edge of the road ... assume ... were drinking and having some sort of party or something.

...

I'm absolutely devastated that - that I've injured anyone or killed anyone. I was only taking a quiet drive out to my brother's and back where I was dro -, dropping off some blankets ... the speed limit out there was around about 100 kilometres an hour and I had always thought that when you come up to a sharp corner there was a - there was a - a ... a warning sign to say slow down to 40 kilometres or 60 kilometres with a - with a corner - ... I come up to a particular corner and prob'ly doin' about 90 kilometres an hour. 80, 90 kilometres an hour. Somethin' like that, I'm not sure. And by the time I got on the corner I realised that I wasn't gonna make it around the corner, so I sort of hit the brakes hard and the car just took o-, took over and did what ever it wanted to do which was tragically do a complete 180 as it was skidding and - and - and headed towards the right hand side of the road where there was a bunch of - a bunch of people that - that got in the way of the impact of the car.

I don't know the road very well at all and there's so many roads at - at the back of - surrounding Red Cliffs, but every time that I've had to approach a corner like the corner where I hit those people there was - there would be - there was - there would be a sign to say a recommended speed to say what you should - the speed to do around that corner. I mean there was no speed and I feel as though that - that's the reason why the accident happened.

...

[T]he fact that I've been arrested for culpable driving has actually, you know, put shivers up my bone really because I - I don't believe I did - I did anything wrong. I don't think I did anything that would cause anyone to be hurt on the road. It was a complete accident ... no driver in the world would have been able to control that corner un-, unless he - unless there was a speed sign saying to slow down as the corner was approaching.

...

I'm gonna, for the rest of my life, stick to the fact that there was nothing I could do that would stop - that would have changed me from - from hitting them people and I - I - I just wish there was a - a bright yellow sign with a - with a speed limit written on it in black and a curved shaped black arrow heading towards the right warning me of a right hand corner where I had to slow down and - and do a certain speed.

...

I had complete control of the car. It was a corner that was ... corner that came - came up to me ... the corner was just - was too fast for me to be able to slow down quick enough.

...

I first seen [the group of young people] when I was - when I - when I had lost control of the car and it was more or less the - I don't even like ravele' about it, you know. I don't - I don't - I don't want to talk about it. I - if - I wish I had have seen them before I lost control of the car. I would've - I would've swerved the other way into - into - into trees, but unfortunately, that wasn't the case. I've - I've - I've done ... any normal driver would do, I think, and you know, if they - if they hadn't have been standing there, then everything would have been fine.

...

Q. So were the - did the kids - were the kids the reason that you lost control or you had lost control beforehand and the kids just happened to be unfortunately there at that time?

A. Yeah, I - I'd say that's more - that - that - that's - that's basically how it happened_. I had lost control and the - the poor youths were in the wrong spot at the wrong time_.[5]

[53]

You see his first account was that he'd tried to avoid one group of people and ended up hitting another. The significance of that is this. You've been to the location, you've driven through it, you've seen the difference of views going east to west as against going west to east. Just to inform you about how you regard the evidence in this case, so far as the journey from west to east is concerned, in the dark - remember, this is not a situation in which you are travelling from [east to west] as Mr Towle did earlier in the night without the slightest problem because the house was lit up and you could see that there was a party there.

...

I think I put it to someone the house was lit up like a Christmas tree. Well, it was certainly lit up like a birthday party, you would think, and anyone coming from east to west could not but see it and could not but see children around or young teenagers around. And indeed Mr Towle, who had young Tommy in his lap, did see it obviously. He went through there and there was no problem at all. What happens the other way? Having driven that road during the day a number of times, whether it's six or a dozen times, doesn't make the slightest iota of difference to the first time you drive it at night, although you may think you know it. You may think you know the road very well. Driving at night when you go from west to east in this particular instance the house was not lit up. You would not see the house until you were practically on it. So that [the prosecutor's] hypothesis, yes, Mr Towle had seen a party. He knew there was a party. He must have, because he drove from east to west and he drove past it and there was no problem and there was young Tommy on his lap. No problem at all. But when you drive the other way, what do you think? You think, yes, there's a party somewhere along here and I'm going to see it. I'm going to see the lights and I'm going to see the kids. But as you drive from west to east you don't see it, and that's the crucial difference. You do not see it. What you see is what is in your beam, light beam, and people drive in the country, as in the city, within the speed limit on low beams or high beams and they drive successfully and negotiate their journey successfully. What you do not see is that intersection until you're on it, or until you're a pretty close distance to it.[10]

[55]

And so in interpreting what one is to make of it, the jury found it was objectively dangerous to approach the intersection at the speed with which he did and secondly that it was objectively dangerous to have the child on his lap even though the child may not have created the slightest distraction. It was objectively dangerous to drive in that manner. In my respectful submission that is the only safe basis to act upon in terms of sentencing facts. The child presented the potential for distraction but there was no evidence of actual distraction at the time of the commission of the offence.

...

His state of knowledge that there were people on the roadway was that as he was going to his brother's place he appreciated that there was a party and he was seeing that, and there's no complaint about his driving through, none. As he was going the other way he would have been looking for a lit up house in order to see where the party is, and as your Honour would have seen when we were driving there on the view, all of us, you can't see it. You can't see it. So that he spoke to his brother, yes. His brother asked him whether he'd seen. Yes. And he would have been in the situation in which he would be expecting to see a house lit up with either children or cars coming and going. He didn't see any of that. It's partly for that reason that the jury acquitted him of the culpable driving. Had the jury thought that he had seen the house and that he expecting to come across a party scenario, drove at a speed that was excessive in the circumstances, albeit probably at 100 let's say, the jury would have convicted him of culpable driving. So part and parcel of the jury's findings, in my respectful submission, has to be the notion that he was looking for a house that was lit up and couldn't see it, and that's in part due to the construction of that intersection and to the way that house was tucked behind the big shed and behind some trees. There were in fact no lights on the house, on the front, as far as the evidence stood. So that really needs to be addressed as one of the facts. He was not convicted of anything requiring intentionality or criminal negligence. He was acquitted of criminal negligence - which, of course, is also gross criminal negligence - in relation to the injuries; he was acquitted of the culpable driving charges. What that means is that in terms of the jury verdict they proceeded solely on the objectivity of the test. That didn't require any finding about what he perceived, what he didn't perceive, but had they found that he knew there was a party and disregarded the risk and drove too fast, they would have convicted him of the major charges.

...

We were talking about a man driving in the country who is expecting to see the sight of a party and yes, he failed to see it. He failed to see it because the place wasn't lit up coming that way, going from west to east it was not lit up at all and he didn't see it.

But what he did notice when they came up in the headlights was a group of people and he managed to avoid those and but for the billion and one chance that there was a group of people out of sight on the other side, there would have been no fatalities at all and there would have been no injuries and that's the point that I'm seeking to make and in my respectful submission an assessment of his conduct and criminality, having regard to what the jury found about his conduct not meriting criminal punishment in terms of negligence, in my respectful submission bears out what I say and he needs to be given the benefit of that acquittal fully ...[11]

[135]

The rationale of the criminal law is to minimise the damage occasioned by anti-social behaviour, by limiting the occasions on which it occurs, by reinforcing the values of the community, by vindicating the rights of victims and by rehabilitating offenders. The sentencing function enables the courts, on behalf of the community, to state with crystal clarity that conduct of the particular kind will not be tolerated.

Sentencing performs an important function of social rehabilitation. As Vincent JA said in Director of Public Prosecutions v DJK:[58]

This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.

In our view, those remarks apply with particular force to an offence of this devastating kind. Similar concerns appear to have informed the statement of Hunt CJ at CL in Musumeci, that 'the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances.'[59] Similar sentiments were expressed by Spigelman CJ in Jurisic:

It has long been accepted that denunciation of criminal conduct is a relevant factor in the sentencing process. In the course of such denunciation, courts do and should have regard to the moral sense of the community and to community expectations of appropriate punishment. Courts are, however, aware that the requirements of justice and the requirements of mercy are often in conflict, but that we live in a society which values both justice and mercy.[60]

At a glance

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Judgment (303 paragraphs)

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Legislation Cited (2)

Cases Cited (15)