R v Williamson [2009] VSCA 21

Court of Appeal (Vic)|2009-02-27|Before: NEAVE and WEINBERG JJA

Criminal law - Culpable driving and negligently causing serious injury - Alcohol and excessive speed - Young offender - Sentence of nine years' imprisonment with six and a half year minimum - Appeal dismissed - Sentence severe but within available range

Mr S Ward, Acting Solicitor for Public Prosecutions

2 On 22 October 2007, the appellant was sentenced as follows:

Count 1: culpable driving causing death - eight years' imprisonment;

Count 2: negligently causing serious injury - two years' imprisonment (one year cumulative);

Summary offence: exceeding the prescribed concentration of alcohol - $500 fine.

3 The appellant's total effective sentence was therefore nine years' imprisonment. The sentencing judge fixed a non-parole period of six years and six months. The appellant's driver's licence was cancelled and he was disqualified from obtaining a driver's licence for two years, effective from 1 April 2014. Additionally, it was ordered that the appellant could not be issued with a new licence save upon the order of a Magistrate. The appellant now appeals against that sentence.

Circumstances of the offence and the offender

4 The circumstances surrounding the commission of these offences were as follows. On 3 February 2007, the appellant left his car at a friend's home in Belmont, a suburb of Geelong. He attempted, unsuccessfully, to obtain entry to a party in neighbouring Grovedale. He then returned to Belmont and consumed some alcohol before taking a taxi into Geelong proper. At about 1 am, he went to the Eureka nightclub where he met up with several friends, including Jeremy Campbell.

5 The appellant, Mr Campbell and another friend, Andrew Morgan, went to various other licensed premises, where the appellant had a number of vodkas mixed with Red Bull.

6 At about 5 am, the appellant, Morgan and Campbell returned to Belmont. The appellant then got into his car accompanied by his two friends. Morgan was in the front passenger seat and Campbell was seated behind him. Morgan offered to drive, as he had stopped drinking some time earlier, but the appellant refused his offer. As the appellant drove through Grovedale towards Torquay, Morgan again asked the appellant to let him drive. However, the appellant again refused.

7 After leaving Grovedale, the appellant accelerated, reaching a speed of about 200 kilometres an hour. At that speed, the appellant exclaimed: 'yeah, 200.' He then began to slow down. Even then, he was travelling at a great speed. His vehicle shot past another car, which was travelling at 95 kilometres per hour, as though, in the words of the sentencing judge, it were 'stationary'.

8 The appellant's vehicle was seen veering from side to side in the south-bound lanes of the Surf Coast Highway, a four-lane sealed road divided by a grass median strip. The speed limit on that road is 100 kilometres per hour.

9 As the appellant approached a sweeping left-hand bend near the highway's intersection with Coombes Road, he oversteered his car and it spun out of control. The vehicle left the road and collided with small trees and vegetation before starting to roll about on its horizontal axis. It struck a power pole with the rear section of its roof. This caused the rear passenger compartment to collapse inwards. The impact killed Jeremy Campbell instantly, and injured Andrew Morgan severely.

10 A reconstruction established that the appellant must have been driving at in excess of 170 kilometres per hour at the time of the accident. A blood sample taken at 7.10 am showed that he had a blood alcohol concentration, at that time, of 0.150 per cent grams of alcohol per millilitre of blood. It was estimated that his blood-alcohol reading at the time of the accident would have been between 0.143 and 0.176 per cent.

11 The appellant and Morgan were trapped in the vehicle. Morgan sustained a fractured right forearm, cuts and bruises to his body, legs and right ear, and a minor head injury. He had a plate inserted in his arm but was otherwise said to have recovered.

12 The appellant sustained lacerations to his head. He had glass implanted in his arm and suffered various bruises and a haematoma.

13 When interviewed by the police, the appellant was fully cooperative. He admitted that he had been driving too fast, and that he had been under the influence of alcohol. Indeed, he acknowledged that he was drunk and said that he had been 'driving like an idiot'.

14 Turning to the circumstances of the offender, the appellant was aged 22 at the time he was sentenced. He was 21 at the time of the accident. The only child of a single mother, he had attended Winchelsea Primary School and Colac High School, where he completed Year 12 studies. He was a qualified baker at the time of the offence.

15 After the accident, the appellant suffered from moderate post traumatic stress disorder and moderate depression.

16 The sentencing judge noted that the appellant had lived an unremarkable, even ordinary, life before the accident. He had had a good relationship with his mother and had been an adequate student and good employee. The one warning sign was that, in April 2006, the appellant's licence was suspended for six months after he was convicted of speeding. Subsequently, in September and December 2006, he was convicted of driving whilst his licence was suspended.

17 His Honour characterised the offence in the following terms:

Your driving is a serious and gross example of the offence of culpable driving. You were extremely affected by alcohol and you drove in a grossly irresponsible and dangerous manner.

18 He referred, in his sentencing remarks, to the victim impact statements obtained from Jeremy Campbell's mother and sister which had been tendered on the plea. These confirmed that the death of the deceased had caused enormous grief and suffering to his family.

19 In sentencing the appellant, his Honour said that he took into account various mitigating factors. These included the appellant's guilty plea, made at the earliest opportunity, and his genuine remorse. The sentencing judge also acknowledged the appellant's youth and good prospects of rehabilitation. He noted that there were no subsequent convictions, and no outstanding matters before the court. He said that by reason of these mitigating factors, the appellant was entitled to, and would receive, a significant reduction to the sentence that would otherwise be imposed for his offending.

20 That said, the judge went on to observe that general deterrence was, and had to be, the principal sentencing consideration for offences of this nature. His Honour accepted that the appellant did not need to be specifically deterred from further offending. Nonetheless, he noted that the Court of Appeal had only recently reiterated that, in dealing with culpable driving:

The starting point in this case as in every case of culpable driving is that the offence is a species of involuntary manslaughter and it must be treated as such.[1]

21 The sentencing judge described the appellant's legal culpability as 'high'. In his Honour's words:

To drive whilst intoxicated would be bad enough but to drive at three times the legal blood concentration and at a speed of nearly 200 kilometres per hour and the circumstances that existed, was to make death and serious injury a certainty.

22 His Honour then sentenced the appellant as previously indicated.

Ground 1: In all the circumstances, the sentence imposed is manifestly excessive.

Ground 2: The learned sentencing judge erred in fixing the period of licence disqualification.

24 The appellant submitted that a total effective sentence of nine years' imprisonment for these offences could not be reconciled with the mitigating factors that the sentencing judge found to be present. These included, in particular, the appellant's youth and lack of significant prior convictions, his plea of guilty and remorse, and the finding that he had good prospects of rehabilitation. In addition, there was the impact which the death and injury of his friends had had upon him, and his Honour's finding that this was a case in which specific deterrence was of little significance.

25 Taking these matters into account, the appellant further submitted that a non-parole period of six years and six months on a head sentence of nine years (approximately 72 per cent of the head sentence) was too high.

26 The appellant referred to a number of cases, which he submitted supported his contention that both the head sentence and the non-parole sentence were manifestly excessive.

27 Perhaps the most important of these was R v Kennedy,[2] a case to which his Honour referred in his reasons for sentence, and upon which he appeared to draw heavily for guidance.

28 In Kennedy, the appellant, aged 34 at the time, lost control of his vehicle while driving along a narrow country road. His car hit an embankment, became airborne, and rolled over. In the front passenger seat was his elder son, aged six, who was killed. In the rear seat was his younger son, aged four. He was seriously injured.

29 The appellant was driving at a speed of at least 136 kilometres per hour in a 100-kilometre per hour speed zone. He had a breathalyser reading of 0.171 per cent. He pleaded guilty to one count of culpable driving, one count of negligently causing serious injury, and a summary charge of driving with an excessive concentration of alcohol in his blood. He had previously been disqualified for a period of six months for driving over the prescribed alcohol limit.

30 He was sentenced in the County Court to a term of eight years on the count of culpable driving and two years on the count of negligently causing injury. One year of the sentence imposed on the latter count was ordered to be served cumulatively. This produced a total effective sentence of nine years' imprisonment. A non-parole period of seven years was fixed.

31 In addition, the appellant's drivers licence was cancelled and it was ordered that he be disqualified from obtaining a further licence for a period of three years from August 2012, which was when his non-parole period would have expired.

32 In Kennedy, the appellant argued that the sentence of eight years imposed on count one, the total effective sentence of nine years, and the non-parole period of seven years were all manifestly excessive. That argument was rejected by the Court of Appeal. Buchanan JA, with whom Vincent and Neave JJA agreed, having recognised that there were powerful mitigating circumstances, nonetheless described the offence of culpable driving as one in which general deterrence was of more than usual importance.[3]

33 The Court of Appeal characterised the sentence imposed in Kennedy as 'stern'. Nonetheless, their Honours were not prepared to treat it as outside the range available to the sentencing judge.[4] The same was true of the non-parole period. This was described as 'high', but not so high as to bespeak error.[5]

34 The appellant argued before this Court that Kennedy was a much worse case than his own. He submitted that the main difference between his case and that of Kennedy was that he was found to have good prospects of rehabilitation, whereas that was not the position in Kennedy.[6] In addition, he had youth on his side whereas the appellant in Kennedy was a man of mature years.

35 The appellant's submission was that he received the same sentence on both the count of culpable driving, and that of negligently causing serious harm, as did Kennedy, yet Kennedy was a worse case.

36 The appellant next referred to R v Sherpa,[7] in which the offender had pleaded guilty to one count of culpable driving and was sentenced in the County Court to a term of seven years' imprisonment with a five-year minimum.

37 In Sherpa, the appellant, who was aged 20 at the time of the offence, had taken, without permission, the car of a friend. He drove it from Prahran to the centre of Melbourne where, at about 6.20 pm, he was approximately 60 metres from the intersection of Elizabeth and Collins Streets, when the traffic lights changed to red. Instead of stopping, he accelerated through the red light at a speed of between 20 and 40 kilometres an hour. The vehicle that he was driving collided with a taxi which had moved in to the intersection. The impact of the collision pushed the taxi into a pedestrian crossing, where it struck a pedestrian, who was killed.

38 The evidence was that during the course of the day, the appellant had drunk a large quantity of rum. His blood alcohol reading, taken at 7.49 pm, was 0.21 per cent. The judge who sentenced the appellant commented that it was hard to imagine worse conduct on the road.

39 The appellant's sentence was reduced on appeal to five years' imprisonment with a three-year minimum. The Court (Ormiston, Callaway JJA and O'Bryan AJA) concluded that the term originally imposed failed to reflect the appellant's early plea of guilty, his good character, the fact that he began to drink heavily following his mother's suicide, and the efforts that he had made to overcome his alcohol problem.

40 The appellant next referred to Director of Public Prosecutions v Johnstone.[8] In that case, which was a Crown appeal, the respondent, who was driving at between 90 and 100 kilometres per hour, and carrying six young passengers, some of whom were not wearing seat belts, ran off the road and struck a utility pole. Two of the passengers were killed and one severely injured. There was evidence that immediately before he ran off the road, the respondent attempted to read a text message on a mobile phone which had been handed to him.

41 The respondent was convicted of two counts of culpable driving and one count of negligently causing serious injury. He received a total effective sentence of four years and six months with a non-parole period of two years and three months. He was aged 22 at the time of the offence and had no relevant prior criminal history. There was extensive evidence of remorse, including an assessment of suicidal ideation and depression.

42 Notwithstanding these mitigating factors, the Crown appeal was allowed and the respondent was re-sentenced to a total effective sentence of six years and nine months with a non-parole period of three years and three months. Once again, the result in that case was said to be relevant to the present appeal.

43 The appellant also relied upon R v Ioane.[9] In that case, Ioane and a number of others had been drinking at a hotel before returning to a friend's house. He declined an offer to stay the night and decided to drive home. He was seen driving at between 100 and 140 kilometres per hour in an 80 kilometre per hour zone. He sounded his horn, and waved at police, before going against a red light and colliding with another car. Two passengers in that vehicle died at the scene. Another two passengers received serious injuries.

44 In Ioane, the appellant was aged in his mid 20s at the time of the offence. His blood-alcohol content at the time of the accident was estimated to be between 0.198 and 0.225 per cent. He was convicted of two counts of culpable driving, one count of reckless conduct endangering life, two counts of negligently causing serious injury, one count of driving whilst suspended and one count of driving under the influence. He was sentenced, in the County Court, to a total term of imprisonment of 13 years with a 10-year non-parole period.

45 It is important to note that the appellant in that case had 13 prior convictions, which included two for exceeding the blood alcohol limit, two for careless driving and two for exceeding the speed limit. He was also facing court for other driving offences at the time of the accident.

46 Despite the appalling nature of his offending, his appeal against sentence was allowed. Curiously,[10] the Court of Appeal reduced his sentence only marginally to one of 12 years' imprisonment with a nine-year non-parole period. The appellant noted that even in that case, which resulted in a particularly heavy total effective sentence for culpable driving, the individual sentences on each count were seven years. That was below the eight years fixed by the sentencing judge in the present case.

47 The Crown in reply also drew attention to several authorities. In particular, the Crown referred to Director of Public Prosecutions v Clarke.[11] That case involved a 22-year-old driver with no relevant prior convictions. The facts were very similar, in some respects, to the facts in the present case, save that it involved a Crown appeal.

48 At the time of the offences, the respondent was 22 years of age. On Good Friday, 18 April 2003, he attended a barbeque at his 16-year-old girlfriend's home. He consumed a number of drinks. After the barbeque, he drove her to a friend's house, where they shared a bottle of wine. At 10.20 pm, he drove the three young women present out to buy something to eat.

49 By that stage, the respondent had a blood alcohol concentration of at least 0.150 and his driving was erratic. He misjudged a particular intersection and went sideways across it before continuing on to his house in Carrum. He stopped there for a short while and then continued on towards Seaford Station, still driving erratically but now at very high speed.

50 He decelerated a little as the car approached Seaford Station, but as the traffic lights ahead turned from red to green, he accelerated hard again, this time to a speed of 158 kilometres per hour (in a 60-kilometre per hour zone). He lost control of the car as it careered towards another vehicle.

51 The respondent's car missed the other car narrowly. It finally crashed into the fence of a kindergarten. One of the passengers in his car was killed, and the other two were seriously injured.

52 The County Court judge who sentenced the appellant imposed a sentence of four years and six months on the count of culpable driving, 12 months on one count of negligently causing serious injury, and six months on the other. His Honour made orders for partial concurrency resulting in a total effective sentence of five years, and directed that the respondent serve a minimum of two years and nine months before being eligible for parole.

53 Not surprisingly, the Crown appealed. The appeal succeeded and the appellant was re-sentenced to six years' imprisonment on the count of culpable driving, and two years and one year respectively on the two counts of negligently causing serious injury. His total effective sentence was seven years and a non-parole period of four years was fixed.

54 The Crown sought to rely upon Clarke, despite the fact that the ultimate sentence in that case was lower than that in the present case. It did so on the basis that Clarke was a Crown appeal, and therefore subject to the double jeopardy principle. The Crown submitted that the appellant's offending in the instant case was more serious than that in Clarke, and it could therefore be inferred that the sentence under challenge before this Court was within the permissible range.

55 Returning to the facts of the present case, the Crown drew attention to the appellant's 'very high' alcohol reading, and the extraordinary speed at which he had lost control of his vehicle. It submitted that the appellant's culpability was all the greater because he had turned down more than one offer from Morgan to drive the car.

56 Finally, the Crown argued that the weight to be given to rehabilitation in this case was reduced by the appellant's previous driving convictions. In particular, the Crown noted, the offence had occurred only one month after the appellant was eligible to drive again following his licence suspension, indicating that he had learnt little from his prior convictions.

57 The appellant submitted that the sentencing judge appeared to be of the view that the length of the licence disqualification had to begin following the appellant's release from prison. It was submitted that the following factors militated against such a lengthy disqualification: the appellant's occupation; the fact that he resided in the country; that he could only be re-licensed by a court order; and the length of the custodial sentence.

58 In reply, the Crown highlighted the fact that s 89(1A) of the Sentencing Act 1991 requires the sentencing court to impose an order of disqualification which commences either on the day the sentence is imposed or on 'such other day as the court specifies in the order'.

59 The Crown submitted that the ability to delay the commencement of the disqualification period to a later date specified by the Court was brought about by the introduction of s 9(1)(b) of the Crimes (Dangerous Driving) Act 2004. A reading of the relevant second-reading speech revealed that the clear intention of the amendment was to permit a court to make the disqualification period meaningful by allowing it to operate during a time when the offender was released, and otherwise capable of being licensed to drive a motor vehicle.

60 The Crown noted that in R v Caldwell,[12] the Court of Appeal ordered that 'a new disqualification period be imposed ending two years after the appellant is released from custody, whether on parole or on expiration of her sentence'. It argued that this was the type of order imposed by his Honour in the present case and was clearly available to him under s 89(1A). The legislation intended that a person be deprived of the right to obtain a licence to drive a motor car for a minimum two-year period, and that intent would be thwarted if an order were made that allowed a period of disqualification to be served at a time when the offender could not drive.

61 In any event, the Crown submitted that there was no evidence to suggest that disqualification after release would hinder the appellant's rehabilitation. In these circumstances, even if his Honour misdirected himself as contended, the appeal should be dismissed.[13]

62 This appeal raises questions of particular difficulty. The learned sentencing judge gave careful attention to all relevant sentencing considerations, and produced a clear and cogent set of reasons for imposing each individual sentence that he did. It was not submitted that his Honour fell into any specific error.

63 On the other hand, the sentence imposed on the count of culpable driving was undoubtedly severe. The sentencing statistics to which we were taken during the course of oral submissions show that the median sentence for this offence, where a single death is caused, is about or just over five years. That is significantly below the eight years that his Honour fixed in relation to count one.

64 In Johnstone, Warren CJ noted that analysis by the Sentencing Advisory Council of Victoria revealed that the average term of imprisonment imposed ranged from 4.1 years in 1999/2000 to 5.7 years in 2002/03.

65 On the other hand, there can be no doubt that this was a very serious case of culpable driving indeed. As his Honour rightly observed, it involved a combination of heavy consumption of alcohol and utterly reckless speed. The appellant's conduct warranted a significantly heavier sentence than might normally be imposed for a single count of culpable driving.

66 During the course of argument, we asked counsel whether this sentence of eight years was equal to the heaviest sentence imposed for a single count of this

offence.[14] At that stage, neither counsel could point to any heavier sentence.

67 Subsequently the Crown drew attention to two cases where sentences heavier than the eight years imposed in this case were fixed. In R v Brown,[15] the appellant was sentenced to a term of 12 years and three months' imprisonment for a single count of culpable driving. That sentence was coupled with a sentence of three years and six months for negligently causing serious injury, and, with partial concurrency, this resulted in a total effective sentence of 14 years' imprisonment with a non-parole period of 10 years and three months. These sentences were held not to be manifestly excessive, even when combined with another sentence that the appellant was serving, making a total effective sentence of 15 years' imprisonment with a non-parole period of 11 years and three months.

68 Brown was indeed an extreme case. The appellant in that case had a terrible driving record, with over 103 previous convictions from 23 court appearances. He had a prior conviction for culpable driving. Yet the actual circumstances surrounding his driving on the day in question were by no means as bad as those of the appellant in the present case. His blood-alcohol level was about the same as that of the appellant but his speed, when entering the intersection, was about 70 kilometres per hour, not the 170 kilometres per hour at which the present appellant was driving.

69 We note that the sentencing judge gave careful consideration to the sentence imposed in Kennedy. His Honour ultimately aligned the sentences fixed in this case closely to those imposed in Kennedy. That may or may not have been appropriate. The question that we have to consider is whether these sentences were manifestly excessive.

70 Ultimately, the most important factor in favour of the appellant is his youth. The sentencing judge paid particular attention to that factor, and said that he gave it such weight as he could. Reckless conduct, such as that engaged in by the appellant, is altogether too common among the young. His obvious immaturity, and failure to appreciate the consequences of his actions, may explain but do not, in any way, justify his conduct.

71 There is no doubt that sentences for culpable driving have increased over recent years. The community rightly expects that conduct of this type will be met with stern punishment. The present sentences, though undoubtedly severe, seem to us to be within the range. We would, accordingly, reject ground one of the appeal.

72 With regard to ground two, it may be that the sentencing judge erred in regarding himself as bound to make the orders that he did. It is common ground that he had a discretion with regard to the commencement of any period of disqualification. However, even if error were established in that regard, we do not consider, on the material before us, that a different order ought to have been made. We therefore reject the contention that some lesser period of disqualification should be imposed, or that the period of disqualification should be partly absorbed by the custodial term presently being served.

[1] Director of Public Prosecutions v Clarke [2005] VSCA 2, [12], citing R v O'Connor [1999] VSCA 55, [19] (Winneke P).

[6] The appellant in Kennedy was found to have a significant and longstanding problem with alcohol, and his future in that regard was considered to be problematic.

[9] [2006] VSCA 84. In R v Smith [2006] VSCA 92, n 14, Ashley JA noted that the high watermark in sentencing an offender for culpable driving arose in Ioane, that being the sentence of 12 years' imprisonment with a non-parole period of nine years.

[10] The Court normally takes a strong stance against what has been described as 'tinkering'.

[13] Crimes Act 1958, s 568(4).

[14] In R v Cox [2007] VCC 1337, an offender was sentenced in the County Court to eight and a half years for a single count of culpable driving causing death. The offender in that case was sentenced to one years' imprisonment for each of two counts of reckless conduct endangering life. As a result of partial cumulation, Cox received a total term of imprisonment of nine years with a seven-year non-parole term. The same sentence, as was imposed in this case, was passed in Kennedy, as discussed earlier (although the non-parole period in Kennedy was six months higher).

Crimes (Dangerous Driving) Act 2004

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