R v Withers [2003] VSCA 176

"1. That it is manifestly excessive in all of the circumstances. 2. That the sentencing judge erred in failing to give any or any sufficient weight to:

(a) the applicant's plea of guilty; and

(b) the applicant's prospects of rehabilitation."

16. At about 6 a.m. on 1 September 2001, Verna Elizabeth Howe, a sprightly 81 year old woman in good health, rose early and, as was her custom, commenced to walk to a Shell Service Station situated on the corner of Broadway and Whitelaw Street, Reservoir, in order to purchase a newspaper. This involved crossing a two-lane street known as Broadway, separated by a grass median strip. She reached a position in Broadway opposite the service station and some metres west of Whitelaw Street where she stepped on to the road. At that point there were two lanes for traffic. She traversed one lane and the median strip and was about halfway across the second lane when she was struck and killed by a car being driven by the applicant. The force of impact was sufficient that she was decapitated. Her body was either thrown or carried completely across Whitelaw Street where it struck a pole and came to rest approximately 70 metres from where she was struck. Her head was located a little further on

19. The applicant's vehicle left a passenger side tyre skid mark approximately 109 metres in length. This mark commenced a short distance east of the point of impact and indicated that there had been no reduction of speed prior to impact. By reference to the skid mark and other indicia, Sergeant Peter Bellion of the Major Collision Investigation Unit of Victoria Police estimated the speed of the applicant's vehicle at the point of impact to have been between 124 and 150 kilometres per hour. The sentencing judge approached the matter on the basis of the lower estimate.

22. His Honour found that "Broadway was straight in the vicinity of the accident and visibility good. The road was in a state of good repair. It was becoming light at the time and the area was well lit".[1] There was, however, he noted, a possibility that the road surface may have been wet at the time. Broadway, in that vicinity, was subject to a speed limit of 60 kilometres per hour

25. The applicant was aged 30 years on that day and with no significant criminal history. He had never held a driver's licence or a permit to drive of any kind. On the previous evening he had travelled to the city by train. He arrived there at about 9.30 p.m. and went to Hosie's Hotel in Flinders Street where he engaged in drinking Jim Beam whiskey and Coke until that establishment closed at around 2 a.m. With some friends he then went to the Crown Casino. Initially the applicant was denied entry. However, he gained admittance to a bar named Barcode where he stayed drinking beer for about a further three hours. His sister and brother-in-law, who were with him at the casino, left at about 3.30 a.m. They offered him a lift home but he declined. He next went to his sister's home, where he resided, arriving there between 5 a.m. and 6 a.m. He then decided to visit a friend who lived in Reservoir and drove off in a vehicle that had been loaned to his brother-in-law but without, I should add, securing any consent to do so.

28. A breath analysis test conducted at 8.15 a.m. on that morning indicated the presence in the blood of the applicant an alcohol concentration of .138 per cent. Doctor Morris Odell, of the Victorian Institute of Forensic Medicine, estimated that that reading represented a concentration of between .013 and .173 per cent at the time that his vehicle struck Mrs Howe. Dr Odell unsurprisingly expressed the view that the applicant's driving skills would have been adversely affected by the presence of that amount of alcohol in his system.

31. The sentencing judge, who could hardly be accused of the employment of exaggerated or emotive language in so doing, described the conduct of the applicant as" bad example of the offence of culpable driving".[2] I do not consider that I could be so accused in referring to it as an "appalling example". In summary, the situation with which his Honour was confronted in the determination of an appropriate sentence in this case was that an alcohol-affected person who had never held a driver's licence and who, apart from the fact that he had no right to drive a vehicle at all, was subject to a zero blood alcohol restriction, was travelling at a speed of approximately 124 kilometres per hour in a 60 kilometre per hour zone when he struck and killed an elderly woman crossing a straight stretch of roadway in circumstances of good visibility. There was and is simply nothing which could be said in amelioration of the level of culpability and criminality involved in that conduct.

34. In support of his contention that both the head sentence and the non-parole period fixed by the sentencing judge manifested error in all of the circumstances, Mr Holdenson, who appears for the applicant, did not contest otherwise. He advanced three contentions, each of which was concerned with matters personal to his client and which he submitted could not have been properly taken into account. They, in turn, he pointed out, had to be considered against the background of the actual sentence imposed. Recognising that only limited assistance can be derived from the sentences handed down in other cases, Mr Holdenson submitted that the Court, relying upon its own experience, would appreciate that both the head sentence and the non-parole period fixed in his client's case were at the upper end of the range regarded as appropriate over recent times for the offence of culpable driving based on gross negligence. I accept that this was the situation, although I should add that on occasions heavier sentences have been handed down in situations where a single death has been occasioned, as in the case before the Court today.

37. However, against that background, Mr Holdenson submitted first, that the applicant's plea of guilty and specifically the circumstances in which that plea was entered were not adequately reflected in the disposition. He pointed out that the sentencing judge accepted that the applicant indicated from a very early stage that he intended to plead guilty. Consistent with this position and the presence of genuine remorse, the applicant had made no attempt to avail himself of any legal protections and fully and frankly answered all of the questions put to him by investigating police members. It was beyond dispute, Mr Holdenson argued, that his client had demonstrated unequivocal acceptance of his responsibility for what had occurred and experienced considerable remorse for his conduct. These features, in the circumstances of the particular matter, had to be attributed substantial weight when the significance of the entry by the applicant of a plea of guilty was considered, counsel argued. This was a case in which, he said, a substantially reduced sentence should have been imposed. On the other hand, he contended if his Honour is to be taken as having attributed full weight to the futures connected with the applicant's plea of guilty, he must otherwise have been contemplating the imposition of a sentence that was well above the available range.

40. The second contention advanced by Mr Holdenson was that by the time of sentencing the applicant's endeavours towards self-rehabilitation were well under way and impressive. However, his progress in this regard cannot be seen to be reflected in the disposition. Counsel drew the attention of the Court to the evidence of the positive attempts that his client had made in this regard, emphasizing that he had sought and secured psychiatric assistance, had undertaken counselling, had secured stable employment of a kind that he had not pursued prior to the commission of the offence and had rebuilt a relationship with his partner, Ms Flannery, from whom he had become somewhat estranged. These features, counsel argued, possessed relevance in more than one respect. They supported the applicant's claim of remorse, indicated that he was unlikely to reoffend and reduced the significance of specific deterrence as a sentencing consideration in this case

43. The third contention advanced by Mr Holdenson was that each of the considerations to which he adverted would, in the proper exercise of sentencing discretion, have resulted in a lower head sentence and certainly, having regard to the different balance of factors to be considered in the assessment of a non-parole period, required a greater degree of disparity than was in fact present in the sentence. However, he went on to argue that in combination they demonstrate that the sentence handed down upon his client must be regarded, both in terms of the head sentence and the non-parole period, as outside the range available to the sentencing judge.

49. There is no need to recite yet again the many expressions of the seriousness with which the crime of culpable driving is viewed by this Court. They can be found in such cases as Wareham,[3] Solomon,[4] O'Connor[5] and Scott.[6] The offence is now regarded as a species of involuntary manslaughter and in this context it must be borne in mind that the legislature has fixed a maximum penalty of imprisonment for 20 years, the same as that available for manslaughter. The conduct of the applicant before this Court can be described as grossly culpable, using the word "culpable" in a non-technical sense, and as constituting a particularly serious example of the offence. Giving appropriate weight to all considerations which could operate in mitigation of penalty, that level of seriousness had to be reflected through the imposition of a substantial term of imprisonment. Time and time again the Court has emphasized the importance of general deterrence as a sentencing consideration in cases of this type. Hopefully, as a consequence of the stance taken, as set out in the authorities to which I have referred, there will be increased understanding on the part of those who may be tempted to adopt the kind of culpably irresponsible behaviour that resulted in the death of the victim in this case, that it will simply not be tolerated by the community and will be likely to result in the imposition of very substantial terms of imprisonment. General deterrence is a powerful sentencing consideration in relation to this type of behaviour. This was recognised by his Honour. Nevertheless, it is also apparent that he was also concerned to give appropriate weight to all matters that could operate in mitigation of penalty and he adverted directly to each of those relied upon by counsel before us.

52. The following extracts from his Honour's sentencing remarks demonstrate clearly that proper attention was given by him to each of them:

"There are a number of matters I take into account in your favour. In your record of interview you were completely frank and co-operative and answered questions put to you by the police, even though you had been advised by a lawyer not to answer any questions.[7] You have pleaded guilty and in the circumstances I accept this plea too as showing remorse on your part, as well as an acceptance of responsibility and a willingness to facilitate the course of justice. [8] I give you the benefit of an early plea."[9]

And his Honour specifically adverted to the cases in which the principles relating to a plea of guilty have been set out.

"You have taken very positive steps to rehabilitate yourself since 1 September 2001. The Crown accepted the many positive matters to which I have referred, as do I."[10]

These, as I have earlier indicated, were remarks made by his Honour in the course of

60. As I have indicated, I am unpersuaded that there was any miscarriage of his discretion in this matter. Specifically, I do not consider that it has been demonstrated that the sentence imposed was outside the range of those available to the sentencing judge in the circumstances nor do I consider that the inference can be properly drawn from the length of that sentence that his Honour attributed insufficient weight to any of the matters encompassed by ground 2 of the notice of application

68. I agree with Vincent, J.A. for the reasons that he has given that the application must be dismissed.

73. I have no doubt that this applicant has many good qualities and his deep and genuine remorse is very much to his credit in this case but for the reasons given by Vincent, J.A. I agree that this application for leave to appeal must be dismissed.

78. The formal order of this Court is that the application for leave to appeal against sentence is dismissed.

[3] [2002] VSCA 110

[4] [2002] VSCA 106

[5] [1999] VSCA 55

[6] [2003] VSCA 55