R v Truelove [2001] VSCA 78

R v Truelove [2001] VSCA 78 - VSCA 2001 case summary — Zoe

[11]

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.

[17]

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.

[19]

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.

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Judgment (38 paragraphs)

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