R v True [1999] VSCA 8

7. This is an appeal by the Crown against a sentence that is said to be manifestly inadequate. The respondent, Jason Anthony True, pleaded guilty in the County Court on 7 May last to five counts. There were three counts of reckless conduct endangering life, contrary to s.22 of the Crimes Act 1958 (counts 1, 2 and 3) and two counts of culpable driving causing death in that the respondent drove a motor vehicle negligently, contrary to s.318(1) of that Act (counts 4 and 5). The maximum penalty for an offence against s.22 is imprisonment for 10 years and the maximum penalty for an offence, at the relevant time, against s.318(1) was imprisonment for 15 years or a fine of $180,000 or both. After hearing a plea in mitigation the judge sentenced the respondent on each of counts 1, 2 and 3 to be imprisoned for 12 months and on counts 4 and 5 to be imprisoned in each case for three years. His Honour directed that nine months of the sentences imposed on counts 1, 2 and 3 be served cumulatively upon the sentences imposed on counts 4 and 5. That made a total effective sentence of three years and nine months. A minimum term before which the respondent should not be eligible for release on parole was fixed at two years and six months. 95 days of pre-sentence detention were declared. The respondent's licences to drive a motor vehicle were cancelled and he was disqualified from obtaining any other licence for a period of five years.

10. The offences arose out of two distinct occasions on which the respondent drove a motor car, both on Monday 2 September 1996 but separated by a period of upwards of about 17 or 18 hours. The relevant facts were very well summarised in the course of his sentencing remarks by the learned sentencing judge, from whom I freely borrow.

13. The respondent was given the use of a Mitsubishi Sigma station wagon by a friend or acquaintance who had purchased it for $600 from a used car yard without a roadworthy certificate. One of the vehicle's deficiencies was that, by the time the respondent was using it, the alternator was failing to provide an electric current to the battery sufficient to keep the lighting system burning. This deficiency the respondent sought to overcome by repeatedly recharging the battery with an external battery charger. He had resorted to that expedient for some time before 2 September 1996.

16. The respondent lived at Ocean Grove with a woman and their 16-month-old daughter. His mother lived at Bacchus Marsh and had a friend, described as a boyfriend, one Hartley Hill, who lived with his son Darren at Melton. So it was that the respondent came to use the Sigma station wagon to travel between Bacchus Marsh, Melton and Ocean Grove.

19. On the night of Sunday 1 September 1996 the respondent drove the vehicle from Bacchus Marsh to Ocean Grove via Geelong. The journey from Geelong to Ocean Grove extended into the early hours of the following morning, 2 September, the headlights and the tail-lights of the vehicle having wholly failed shortly after the vehicle left Geelong. He carried as passengers his de facto wife, his child and Darren Hill. After leaving Geelong the respondent drove slowly on the left side of the road, apparently the Bellarine Highway for most of it, running the vehicle off the road on at least one occasion and using his cigarette lighter either to see the speedometer of the vehicle (as he said) or in an attempt to alert other road users to the vehicle's presence (as Darren Hill apparently thought). The highway, except as it passed through a township, was unlit and the night was dark. The respondent's adult passengers were concerned for their safety, and for the safety of other road-users. The group eventually reached the respondent's house without major incident. This adventure provided the subject of counts 1, 2 and 3.

22. Having slept through the morning while the battery of the car was being recharged, the party set out at about midday on 2 September to return via the You Yangs and Melton to Bacchus Marsh. Their activities in the You Yangs and en route may be disregarded. Ultimately they reached Bacchus Marsh between 6 and 7 p.m. Shortly afterwards the respondent, at the request of his mother, left her house to go to Melton to pick up Hartley Hill at his house and return to Bacchus Marsh. The account of this last journey, for reasons which will become evident, depends entirely on the respondent's subsequent interviews with the police.

25. It seems that the vehicle's lights failed a few minutes after the respondent, with Hill as a front seat passenger, left Hill's house in the Sigma. A few minutes after that the respondent called in to a service station and unsuccessfully attempted to revive the lights. He stayed at the service station, on his own admission, for some fifteen minutes, during which he bought and installed some new fuses, but without useful result. He rejected Hill's pleas to leave the car at the service station and hire a taxi in order to get to Bacchus Marsh. Leaving the service station, without any lights on the vehicle, the respondent negotiated the Panton Hills by driving on the tail - within two metres, as he admitted -of a truck at speeds between 60 and 80 kilometres per hour along the Western Freeway, the speed limit on which is, as we were told, 110 kilometres an hour. The respondent frankly conceded to the police in the course of an interview that, had the truck braked, the Sigma would have gone underneath it. The respondent during this period ignored further urgent pleas from Hill to pull off the road in order to avoid trouble. After passing Anthony's Cutting, the truck which the respondent had been following accelerated away, leaving him to drive on in pitch darkness. The sky was overcast but it was not raining and the road was dry. He attempted to continue, in the absence of the truck to lead him, by driving with his head out the window and straddling the near-side fog line. In the vicinity of the turnoff to Bacchus Marsh from the Western Freeway, the respondent's car was about to be overtaken by a very large and high semitrailer driven by Robert John Baulch. According to expert evidence of a reconstruction of the events, the Sigma at that stage was probably proceeding at about nine kilometres per hour and the semitrailer at about 86 kilometres per hour. According to the learned sentencing judge, it seems likely that Mr Baulch saw the car at the last moment and sought to avoid it by steering to his right. Unfortunately he failed, striking the offside rear of the Sigma, causing it to veer sharply over the embankment to its left and the semitrailer to jack-knife. Both vehicles rolled over and were hideously wrecked. The occupants of the car were thrown out. Hill was killed and the respondent was injured, but apparently not seriously or permanently. Mr Baulch was trapped in his cabin and died before he could be extracted from it. Thus counts 4 and 5.

28. By notice filed on 11 September 1998, the appellant relied on the following grounds:

(1) That the sentences imposed in respect of counts 4 and 5 are manifestly inadequate in that the sentencing judge in fixing the sentences imposed:

(a) failed to adequately reflect the gravity of the offence generally and in this case in particular;

(b) failed to take into account or sufficiently to take into account the aspects of specific and general deterrence;

(c) gave too much weight to factors going to mitigation;

(d) failed to give sufficient weight to the protection of the community; and

(e) failed to adequately reflect the maximum penalty for the offence.

(2) The total effective sentence and the non-parole period are manifestly inadequate.

38. The sentence was awarded by the learned judge a matter of only a few weeks before this Court had allowed an appeal by the Crown in R. v. Scholes on 21 August 1998. In that case the Court took the opportunity, in the context of two very serious offences of culpable driving causing death, to make some general remarks about the nature of that offence and the task confronting a judge imposing sentence for it. Much of what I shall have to say reflects the sentencing philosophy there discussed, although I shall not in terms recapitulate it.

41. Sentences of three years' imprisonment in this case for the offences against s.318(1), to be served concurrently, were in my opinion manifestly inadequate. As it happens, I think it may be said also that the learned judge is very likely to have committed specific sentencing error. I say that for it appears to me that his Honour paid insufficient attention to the protection of the community by regarding the question of general deterrence as one of cardinal importance in the circumstances of the case. The learned judge said very little in his sentencing remarks on this question. Ordinarily, perhaps, one could not infer anything very conclusive from a mere failure to say much about it. One finds, however, in the course of the argument upon the plea, that his Honour expressed what appears to me to be a somewhat limited view of the role of general deterrence in the case. Counsel for the Crown had addressed his Honour specifically on the matter of general deterrence. He cited authorities including R. v. Cody (1997) 25 M.V.R. 325, in which Batt, J.A., at p.330, referred to general deterrence as being of especial significance in cases of culpable driving causing death because it is an offence that may often be committed by persons not criminally disposed. The submission drew from the learned judge these comments in the course of argument:

"... if general deterrence is an appropriate purpose of punishment, and I think it is, it must be a general deterrent, saying lack of responsibility generally in driving motor cars, rather than in the particular incidence of this case."

"... it would be fairly silly to set forth in the full panoply of the law to prevent ordinary citizens of the State of Victoria from driving a totally unlighted vehicle down a main highway, because it is not, I suggest, something that ordinary citizens would do because of a respect for their own lives and safety."

"I am simply saying that it would seem rather foolish to set out to deter ordinary members of the community from deliberately driving down the highway without their lights."

53. Speaking for myself, I find it difficult to avoid the strong impression that these expressions of view influenced his Honour's synthesis for the purpose of formulating his sentence on the two counts of culpable driving; and, in my respectful opinion, it is an untenable view. To borrow the words of Batt, J.A. in Cody's Case, the driving in which the respondent engaged leading to the fatal accident on the night of 2 September was "driving of the very kind that the section is aimed at". It is conduct of a particular species, not merely of a wider genus, which the courts ought particularly to discourage by making an example of one who engages in it. It is, in the view I take, incorrect to reason that the courts should not seek to discourage the general public from driving an unlighted vehicle down a main highway at night because that is not something that ordinary citizens would do out of respect for their lives and safety. To reason thus is to miss the point of what Batt, J.A. said in Cody. Ordinary citizens, unfortunately, may act uncharacteristically in driving motor cars, and discouragement of such action must be seen as a central reason for the creation of the offence of culpable driving causing death and a central consideration in the formulation of a sentence for the offence. A reference to R. v. Scholes will bear this out. It seems to me that, if the learned judge's reasoning were right, one might as well say that driving a motor car at a potentially suicidal speed down the wrong side of the road, or habitually self-injecting with heroin, are not to be the subject of general deterrence because neither involves conduct in which ordinary citizens would engage on account of a respect for their own lives and safety.

56. The respondent's conduct leading up to the double fatality was self-evidently of an extremely high order of criminal seriousness. The culpability was, in my opinion, relatively high rather than relatively low. Among the circumstances which earned it such a description were the causing of two deaths and the tragic effect on the families of the two deceased men, and the deliberate persistence of the respondent in continuing to drive on the occasion which led to counts 4 and 5 when he was clearly aware of the risk. He must have been clearly aware of it because of his escapade between Geelong and Ocean Grove earlier in the day and because of the pleas of his passenger later in the day to desist, which pleas he spurned. Moreover, having had the opportunity at the service station to desist, he ignored it.

59. The learned judge appears, from the bulk of his sentencing remarks, to have recognised that this was a very serious case indeed. He likened it "more to the homicidally ferocious than to the momentarily careless". His Honour recognised also that the only mitigating circumstances were those which were personal to the respondent. The respondent was able to offer to the police no explanation at all and gave no excuse whatsoever for driving as he did when he engaged on the journey which led to the fatalities. Mr Tehan, who appeared on his behalf today, relied on the respondent's having been on an errand for his mother. I am not able to give that any weight at all. As the learned judge remarked, his persistent acceptance of the high risk to his own safety and that of others cannot negate the conscious, voluntary and intentional nature of what he did. Having thus characterised the respondent's conduct and its criminality, the learned judge appears to me to have significantly undervalued it when imposing sentence for counts 4 and 5, imposing a sentence that was out of proportion to the conduct and its criminality.

62. I remain of the view that I expressed in R. v. Cody, that it is usually not profitable to speak of a sentencing tariff for offences of culpable driving causing death, so disparate are the circumstances of such offences. I do not pretend to do so now. Due regard to the permissible maximum penalty must, however, be paid, and here I am driven to the conclusion that the learned judge did not have sufficient regard to it.

65. It is necessary, therefore, to set aside the sentences on counts 4 and 5 and to re-sentence the respondent in respect of them.

68. I am also of opinion that this was a case in which it was not appropriate to leave the sentences on counts 4 and 5 to be served wholly concurrently. I should not criticise the learned judge for doing so had there been appropriate sentences imposed for each count so as to lead to an appropriate effective sentence. It is trite enough to say that there is no principle which requires two sentences to be ordered to be served with a degree of cumulation, much less total cumulation. In the present case, however, it seems to me that a degree of cumulation of the sentences that this Court must now impose on counts 4 and 5 is appropriate. The respondent was charged with having driven a motor car with gross negligence. When two people are killed in the circumstances in which Mr Hill and Mr Baulch were killed, travelling in two different vehicles, there may very well be a different duty owed by the offending driver to each of the people who lose their lives. If a different duty is not owed, then at least it seems to me that the breach of the duty owed to each of those persons may differ. It may very well be that, in a case in which two people are killed by one who is guilty of offences against s.318, and killed in the same accident, different penalties might be awarded, in respect of each of the offences because different degrees of criminality attach to each. I am not saying that in this case different penalties ought to have been imposed, as perhaps they might have been if, for example, Mr Hill had encouraged the respondent in his conduct rather than seeking to dissuade him from it. This was, however, a case in which the sentences for counts 4 and 5 ought, in my opinion, to have reflected the circumstance that the respondent was guilty of a breach of duty to his passenger and guilty of a breach of a different kind owed to another user of the road. Perhaps it is, if one may be permitted to say so, fortunate - if anything could be said to be fortunate about this case - that only one other user of the road, the unfortunate Mr Baulch, was killed. Many others might have met his fate during the course of the respondent's escapade.

71. In re-sentencing the respondent in respect of counts 4 and 5, therefore, I would propose a degree of cumulation. I have had consideration, which the judge had, to the matters personal to the respondent. There can be no doubt that he had an unfortunate upbringing and early youth. Circumstances have not been easy for him. The judge was disposed to take into account a report, following a consultation about 20 months after the event, by a psychologist which contains what can be, I think, not much more than a guess as to the connection between the offences and the respondent's psychological condition. I think, if anything, the judge gave rather too much weight to it.

74. I propose that the sentences on counts 4 and 5 and the directions for cumulation be set aside. I propose that this Court order that the respondent be re-sentenced on each of counts 4 and 5 to be imprisoned for a term of four years. I propose that the Court direct that nine months of the sentences on counts 1, 2 and 3 be served cumulatively upon the sentence on count 4 and that 12 months of the sentence on count 5 be served cumulatively upon the sentences imposed on counts 1, 2, 3 and 4. That would produce a total effective sentence of imprisonment for five years and nine months. I would propose that the respondent serve a period of four years before becoming eligible for release on parole. The orders for cancellation and disqualification should remain unaffected.

79. I agree that the appeal of the Director of Public Prosecutions should be allowed and I would subscribe to the reasons given by Tadgell, J.A.

84. I, too, agree with Tadgell, J.A. I agree that the appeal should be allowed and I agree in the disposition proposed by his Honour.

The appeal of the Director of Public Prosecutions for Victoria is allowed. The sentences imposed on the respondent on counts 4 and 5 in the court below are set aside together with the cumulation directions there given. In lieu thereof the respondent is sentenced as follows: count 4 - four years' imprisonment; count 5 - four years' imprisonment. The sentences imposed in the court below on counts 1, 2 and 3 are confirmed together with the licence cancellation and disqualification orders made.

The Court directs that 9 months of the sentence on counts 1, 2 and 3 be served cumulatively on count 4 and that 12 months of the sentence on count 5 be served cumulatively on the sentence imposed on counts 1, 2, 3 and 4, making for a total effective sentence of five years and nine months. The Court fixes a non-parole period of four years.

The Court declares that the period of 284 days is the period of pre-sentence detention already served as part of the said sentence by the respondent and directs that the making of this declaration and its contents be entered in the records of the Court.