R v Truelove [2001] VSCA 78

5. The plea in mitigation was made on behalf of the appellant by counsel and in the course of that a number of documents was tendered: a medical report by Dr Jensen, the neurosurgeon, and a medical report by Dr Lefkovits, a consulting physician (both of those reports dealing with the condition of the victim of this incident); the psychological report already mentioned, dated 25 May 2000; a medical report dated 16 May 2000 on the appellant's own condition, and a report dated 22 January 2001 from a social worker who was also called to give evidence viva voce. In addition eight character references were tendered. There were also a number of victim impact statements. The maximum penalty for the offence of negligently causing serious injury is five years' imprisonment. On 2 February the appellant was sentenced to two years' imprisonment with a non-parole period of nine months.

8. Initially the appellant appealed on four grounds: 1, that the judge misdirected himself when considering whether or not to suspend the sentence; 2, that the judge failed to fix the length of period of disqualification following cancellation of the appellant's driver licence; 3, that the sentence was manifestly excessive; and 4, that the judge erred in failing to give sufficient weight to the matters which went in mitigation. It was accepted by counsel this morning that ground 4 was a particular of ground 3. By amendment on 1 May last, ground 5 was added: "that the learned sentencing judge erred in sentencing the applicant [now the appellant] as if he was guilty of a more serious offence than that to which he pleaded guilty."

11. This is a very sad case for everyone concerned. The offence was constituted by the negligent driving of the appellant which led him to steer his vehicle into the path of another, colliding with it. The driver of the other vehicle was a 76-year-old woman who suffered severe bruising, but far worse, a fracture dislocation of her cervical spine. By simple mischance, according to the medical reports, the fracture was not immediately diagnosed and quadriplegia set in. Regrettably, the victim is now wheelchair dependent and dependent too on others for all aspects of her daily living activities: grooming, dressing, showering and toileting. With assistance, she can take some part in feeding. As the sentencing judge said:

"[The victim] previously had been enjoying an active and independent life. Her life expectancy - for what that life is now worth - can be said to be less than five years. The misery resulting from the collision has not been confined to [the victim] but has, as the victim impact statements clearly show, spun off to members of her family."

As the judge noted, the evidence before him suggested that the consequences just described were not inevitable from the collision: they were none the less tragic.

16. The collision occurred at about 9.30 a.m. on a Sunday morning. The appellant himself had no memory of the accident but it was described, to a greater or lesser extent, by four other drivers in the vicinity. One was a driver proceeding in the same direction as the appellant. She noticed the white van, which was being driven by the appellant at no great speed, overtake her and then, when about 30 metres ahead, slowly veer across the centre line into the lane of oncoming traffic, colliding with a dark blue Nissan Patrol, which caused the Nissan to spin off and hit a pole, the van itself continuing on to hit another pole. Only afterwards, that driver found that the white van had in fact gone on to hit the small hatchback being driven by the elderly victim. The other evidence came from three drivers who, like the elderly lady to whom I have just referred, were going in the opposite direction. The first saw the white van slowly moving on to its wrong side of the road. Apparently, the two drivers passed, because this witness said that "on making eye contact with a male driver I could see that he was not asleep but looking straight back at us while he continued to slowly swerve on to the wrong side of the road". The second was the driver of the Nissan Patrol, who was immediately ahead of the victim's small hatchback. He saw the vehicle immediately ahead of him move into the inside lane to avoid the oncoming van being driven by the appellant, and he took like action but was too late to avoid colliding. His vehicle was hit on the driver's side and as the Nissan Patrol, after spinning around, came to rest, he saw the white van continue on, as it swerved into the inside lane, crashing into the front of the small hatchback. The third of these three was driving behind the other two and saw the collision ahead of him, he having to swerve to avoid a like result.

19. As I have said already, according to the sentencing judge the appellant had no memory of the accident. When he was met by one witness, he was hobbling on the footpath saying, "What happened?" To another witness, he started swearing and said, "I think that I have had too many". That witness observed that the appellant had blood on his face and hands and "pretty much stunk of alcohol". To a policeman who later found the appellant lying on the ground in a nearby driveway, the appellant confirmed that he was the driver of the van and, when asked how he got to where he was, said, "A big bloke carried me". According to the policeman, the appellant's speech was slurred and he smelt of intoxicating liquor. He was subjected to a preliminary breath test and that confirmed the presence of alcohol.

22. When interviewed, the appellant described to police how he had spent the previous Saturday evening with friends. He started drinking, he said, at about 8.30 or 9 p.m. and stopped drinking at about 3 or 4 o'clock the following morning, that is, on the Sunday on which the accident later occurred. By then the appellant was at a nightclub. Apparently, he had - wisely, it may be said - left his van at his cousin's house. He was taken back there by taxi but he found no one then at home, and so he walked up to the nearby Shell service station, got himself a bottle of water, sat down and waited. He waited, he said, until he got bored. This was anything up to three hours or so after leaving the nightclub. He waited for some time before finally getting into his van. By then it was between 8 and 9 o'clock in the morning. He told police that he did not feel impaired by the alcohol, and when asked in the course of the interview how he felt about his driving at the time, he said that he believed he had had full control of the vehicle. When asked if he suffered from any medical problems, the appellant said that he suffered heart palpitations from time to time, having once had a blackout some eight years previously and having since had to drive himself to hospital twice when he felt the condition coming on. None the less, he conceded that on this occasion he should not have been driving, and his counsel said as much on the plea, at p.6. The appellant told police that he did not normally drink very much and that the twelve pots of beer which he had consumed while he was with his friends on this occasion was a lot for him to consume. He was asked specifically by the police whether he was aware that he was still over .05 when he got into the van to drive. To that he said: "I thought I would have been close. I thought it was taken from when you started drinking." On analysis his blood alcohol content was .055, which was equivalent to .082 to .110 at the time of the collision. It appears that that analysis accorded with the appellant's own recollection of what he had drunk. I add, although it is not referred to expressly in the judge's sentencing remarks, that the appellant was at the time a probationary driver, forbidden to drive otherwise than with a blood alcohol content of nil.

25. I should say here that analysis of the appellant's blood showed traces also of cannabis and an amphetamine known as ecstasy, the latter of which the appellant said he had not taken voluntarily; he was later told by a friend that his drink had been "spiked". According to the report of the forensic physician (Dr. Odell) which was before the sentencing judge, the appellant's driving skills may well have been adversely affected by the effect of alcohol at the time of the collision; and in a further report the physician said: "It is therefore likely that the impairment produced by alcohol ... would have been increased by the effect of drugs, especially Ecstasy. It is not possible to infer any degree of impairment due to cannabis**,** in this case." Dr. Odell went on to describe the heart condition affecting the appellant: supraventricular tachycardia, which is characterised by the sudden onset of a rapid heartbeat. Although the condition is not usually considered serious, it can cause faintness, the doctor said, or even loss of consciousness.

28. Having rehearsed the foregoing, the sentencing judge said this:

"Whether the collision was caused by fatigue, or alcohol, or your heart condition, or a combination of all three, is impossible to say. It can only be said, with confidence, that you drove when you knew you should not drive, and that your electing to do so, coupled with your plea of guilty, reflects negligence, of a degree so much higher than that sufficient to establish civil liability, as to shock the conscience and require punishment at the hands of the criminal law. Nevertheless, I do not regard the negligence, in your case, as being at the upper end of the scale. Unhappily its consequence undoubtedly was."

32. I have said enough to indicate the difficulty of the task facing the sentencing judge. On the one hand, the negligence was not such as to be at the upper end of the scale. On the other hand, its consequences undoubtedly were, even though it seemed from the medical reports that that was at least in part due to mischance in diagnosis. Moreover, there were a number of matters going in mitigation. The judge was satisfied that, from the outset, the appellant had been profoundly sorry for his actions and that the plea of guilty, in addition to saving the community the time and expense of a trial, was to be taken as a genuine expression of remorse. The appellant, it appears, was a hard-working young man and a number of people spoke highly of him in the references that were put in evidence on the plea in mitigation. The appellant himself was injured in the collision and in consequence he relinquished an apparently flourishing electrical business that he had built up himself (to the extent that he had at the time two apprentices). Thereafter, determined to rebuild, he remade a life for himself in New South Wales, where, it seems, he was doing well as a building superintendent. According to the psychological report that was put before the judge, the appellant had overcome at least some behavioural problems and changed his attitude to alcohol for the better.

35. Causing the judge some unease, none the less, were the two convictions for drink-driving related offences mentioned in the history taken by the psychologist. There were no details otherwise available because no further presentment had been filed, but the convictions were admitted, as I said earlier, and in consequence the judge considered that there was still some need for specific deterrence. General deterrence, of course, figured much larger, given the nature of the offending. As the judge said: "It must be made clear that those who recklessly endanger others will be appropriately dealt with; and that, in your case, and notwithstanding the matters of mitigation to which I have referred, means actual imprisonment."

38. One complaint which the appellant now makes - and that is in ground 5 - is that in saying what I have just quoted, by way of conclusion before passing sentence, the judge misdirected himself by moving to sentence for an offence not charged. Mr Tehan relied upon the difference between negligently causing serious injury, an offence under s.24 of the Crimes Act, and recklessly endangering life, an offence under s.22 carrying a maximum penalty of 10 years, not five as under s.24. But the point is more apparent than real. First, although counsel pointed to s.22 by way of contrast, the judge's remarks were of "endangering others", words that might be thought apt as much to s.23 as to s.22, and under s.23 the maximum penalty for conduct putting others in danger of serious injury is five years, as is so under s.24. But, putting that one to one side, the judge had already made it plain in his sentencing remarks - and plain beyond argument, I should have thought - that he was sentencing the appellant for his negligence, not his recklessness. On the plea, which had been heard but the day before, appellant's counsel had commenced by pointing up the unusual aspect of the case "in seeking to identify the negligence which gives rise to" the culpability; and the plea concluded with the prosecutor directing attention to judicial opinion that the maximum penalty of five years' imprisonment fixed by s.24 for this offence, of negligently causing serious injury, was too low: R. v. Taylor[1]. The judge was in no doubt about the offence for which he was sentencing the appellant. He made that plain in sentencing and there is nothing at all in ground 5. In making the remark he did and of which complaint is now made, the judge was doing no more than expressing a caution to the general public that the road toll is such that those who drive when they should not, careless of the consequences, will be "appropriately dealt with" - but for what particular offence must, of course, depend upon the circumstances. Ground 5 fails.

41. In the course of developing his argument that recklessness and negligence had to be distinguished Mr. Tehan submitted that the sentencing judge appeared to make findings more appropriate to a charge involving the former than a charge involving the latter. In this regard he pointed to the statement "it can only be said with confidence that you drove when you knew you should not drive" and the reference to the appellant's "electing to do so". In answer to questions from the Bench, Mr Tehan said that his submission was that this finding, particularly that the appellant drove "when he knew he should not drive", went beyond the evidence and was not justified. When it was pointed out that this was not encompassed by ground 5, he applied for leave to amend by adding a new ground, alleging that the judge fell into error in finding that the appellant drove when he knew that he ought not to drive. Counsel pointed to the concession made by appellant's counsel in the course of the plea (at p.6), that the appellant ought not to have driven; that, he said with some force, was different from conceding that the appellant drove knowing that he ought not to drive.

44. We heard argument on this application to amend, while deferring our ruling. Having considered what has been put, I think that there is nothing in the point. To my mind the judge was correct in what he said. Whether the collision was caused by fatigue or alcohol or the heart condition, it was indeed impossible to say on the material put before the judge on the plea. By the same token, it could be said, and said with confidence, that whatever the cause of the collision, that is, whichever of these three was at root, the appellant drove when he knew he should not. He was too fatigued; he had been awake for 24 hours or so and, despite a period of inactivity, still felt not himself. He had been drinking a lot of alcohol, more than he was used to, and though not having had a drink for some hours, he thought that his blood alcohol content was around .05; yet he was on a probationary licence and permitted to drive only with a blood alcohol content of nil. He had a heart condition and was uncertain what consequences could follow from the palpitations he had, or recently had had, and perhaps was still experiencing; yet he knew this condition could cause a blackout. He had had a blackout eight years previously and had on occasion driven himself to hospital to deal with the onset of the condition. It seems to me that the conclusion expressed by the judge in the impugned passage was fully justified: that whether the cause of the collision was fatigue, medical condition or alcohol, the appellant elected to drive and drove at a time when he knew he ought not to be driving. Despite Mr. Tehan's suggesting at times otherwise, such a finding does not involve recklessness in the relevant sense[2]: the judge certainly made no finding that the appellant foresaw serious injury as the probable consequence of his driving. As the sentencing remarks disclose, the judge was concerned with negligence, and only with negligence. In his Honour's opinion negligence was established and, when coupled with the plea of guilty, established to such an extent as to attract criminal responsibility.

47. In my view there is nothing in the proposed new ground, and accordingly I would refuse leave to amend.

50. That leads me back to the grounds which are stated in the notice of application. Ground 1 was that the judge misdirected himself when considering whether or not to suspend the sentence imposed. I see no error in that regard. I agree with the judge that those who drive when they know they should not drive deserve condign punishment, should they then offend against the criminal law. I see no reason why, despite the not inconsiderable matters of mitigation, an actual term of immediate imprisonment was inappropriate in this case. There was no need for the judge to consider the alternatives and to give reasons for dismissing each of them: it was enough that, in all of the circumstances, he considered that a term of imprisonment was appropriate. The sentencing judge has had long experience in this area and it cannot be thought that he was unaware of the obligation imposed generally upon sentencing judges by s.5(3) and (4) of the Sentencing Act 1991. Despite the submission to the contrary, I think that ground 1 fails, as does ground 5.

53. The next question is whether the term of imprisonment imposed was manifestly excessive. The maximum term of imprisonment for this offence is five years, as I have said, and in addition to the appellant's plea of guilty and his remorse, which was well attested in the testimonials as to his character and in the reports tendered about the consequences of the accident for him, there were a number of matters going to mitigation.

56. This morning Mr Tehan sought to emphasise what he called the very plain probability that, after all, it had not been the appellant's drinking that led to his offending, but rather the heart condition that once had caused him to lose consciousness and, according to Dr Odell, could do so again. Dr Odell's opinion was that an attack could be precipitated by anxiety, stress, caffeine, nicotine or fatigue, and Mr Tehan referred to the appellant's having broken off his engagement only shortly before the accident and indeed having divided property with his erstwhile fiancee only the day before the accident. If, said Mr Tehan, the collision was in truth caused by the heart condition, not the alcohol, the moral responsibility was lessened. He sought to emphasise, too, the fact that the quadriplegia which now afflicts the victim was the result of a mischance in diagnosis.

59. All this, however, was put before the sentencing judge on the plea and his Honour dealt with it in the course of sentencing. As to the last, he said, in the context of a finding that the appellant's conduct had undeniably caused his victim's fate, "It must be said, and I take into account, that the evidence before me suggests that that fate would not inevitably have flowed from the collision. In that context I refer to the reports of Dr Lefkovits and Dr Jensen." As to the rest, his Honour observed that it was speculation that the appellant was either anxious or stressed by the break-up with his fiancee, and, as I have already mentioned in another context, his Honour expressed himself in terms that whether it was one cause or another could not be said with any certainty. In the end, having considered Mr Tehan's careful argument on this point, I am not persuaded that the judge fell into error on this score. As his Honour said, at the end of the day it was simply not possible to say whether the collision was caused by fatigue or alcohol or heart condition: what could be said with certainty was that the appellant drove when he should not have driven.

62. Mr Tehan relied, too, upon the fact that two years was 40% of the maximum of five years - a higher proportion, he said, of that maximum than was justified. The sentencing judge was, however, referred by prosecuting counsel to Taylor, in which, at [13], Brooking, J.A. expressed the view that the maximum for this very offence was inadequate. In Taylor, for the same offence as was charged here, his Honour said he would have expected a longer term than one year. Of course each case depends upon its own facts, but the argument of proportion by reference to the maximum that was put by Mr Tehan does, I think, over-simplify matters. It cannot be determinative. Moreover, one has here the previous convictions for drink-driving related offences, and one of them was for driving under the influence. In the end, the argument of manifest excess is something which does not admit of much elaboration. A sentence either is or is not manifestly excessive. In short, I am not persuaded that manifest excess was established here.

65. The appellant should understand that our powers on this appeal are limited. When it is said that the sentence imposed below is manifestly excessive, it must be demonstrated that the sentence imposed was altogether outside the range of those sentences reasonably open to the sentencing judge, given the circumstances of the offending and the circumstances of the offender. I say that, given his genuine remorse and his determination to rehabilitate himself, one can certainly feel some sympathy for the appellant, but that is a far cry from concluding that the sentence imposed was manifestly excessive. In my opinion, grounds 3 and 4 fail.

68. That leaves only ground 2. It is that the judge erred in failing to fix a period of disqualification following cancellation of the appellant's licence. Section 89(1) of the Sentencing Act 1991 requires the Court in a case like this to cancel the licence and then impose a period of disqualification, not being less than 24 months. It is true that the sentencing judge did fail to fix the length of the period of disqualification, but no complaint was made in that regard at the time. If the other members of the Court agree with me that there is nothing in the other grounds of appeal, then the simplest way to deal with this matter is for us to allow the appeal for the purpose only of fixing the period of disqualification.

71. The judge was concerned about the appellant's continuing to drive because of his medical condition, which, according to Dr Odell, could lead to fainting or even loss of consciousness, for at the end of his sentencing remarks the judge added this:-

"I am gravely concerned, in the light of the evidence, that the condition of supraventricular tachycardia, from which you suffer, may make you an ongoing danger to other road users, and I direct, therefore, that the officer in charge of Roads Corporation be informed of that concern, at the same time as being informed of the cancellation of your licence."

Obviously the period of disqualification must be not less than 24 months: so much is assured by s.89(1) itself. As for the special concern of the judge, the Court was told that the direction given below either has been complied with or will be complied with (if the sentences below are not now disturbed or otherwise it is still relevant for that direction to be complied with). The Crown accepts that no more is required. That is sufficient then to cope with the difficulty identified by his Honour.

76. On the question whether, that apart, the period of disqualification should be more than 24 months, I am satisfied that, given all the circumstances of this case, there is no need to order any further disqualification than that which the statute itself requires. It follows that, in my opinion, the appeal should be allowed for the purpose of ordering that there be a period of disqualification of 24 months. Otherwise the appeal should stand dismissed.

81. In referring to persons who recklessly endanger others, his Honour did, I think, make a slip, as such conduct fell within another section of the Crimes Act 1958, probably s.23. But it was an immaterial slip, for his Honour clearly knew, and was satisfied as to, the elements of the offence charged and knew the maximum penalty for that offence. His Honour was speaking compendiously and making a general pronouncement. He did not sentence the appellant for an offence different from that on which he was presented.

84. Subject to those remarks, I agree with Phillips, J.A.

89. I am also of the view that the appeal should be disposed of as the learned presiding judge proposes and for the reasons given by him. I merely add that, in respect of ground 5, I am not persuaded that his Honour's observation that "it must be made clear that those who recklessly endanger others will be appropriately dealt with" was a reference to any particular section of the Crimes Act. What I am satisfied of, however, is that, notwithstanding that observation, his Honour did not sentence the appellant for an offence with which he was not charged, as was submitted on the appellant's behalf. If that observation is looked at in the context of the whole of the sentencing remarks, it is plain, in my view, that his Honour sentenced the appellant for negligently causing serious injury, as his Honour specifically said a few pages earlier in his sentencing remarks.

That the appeal against sentence be allowed, and that there be added to the orders made in the County Court on 2 February 2001 the further order under s.89(1) of the Sentencing Act 1991 that the appellant be disqualified from obtaining a driver licence for the period of 24 months from the date of sentencing in the County Court, that is, 2 February 2001.

98. Subject thereto, the sentences imposed on 2 February 2001 are confirmed.

[1] [1999] VSCA 206.

[2] R. v. Nuri [1990] VicRp 54; [1990] V.R. 615 at 643.