R v Wooden [2006] VSCA 97

1 There are few crimes that cause such suffering as culpable driving causing death. In the majority of cases young people are involved. The deceased is cut off in the prime of life. The victims are not limited to the deceased but include family and close friends. The offender is often a person of otherwise blameless character who behaves irresponsibly on one occasion with terrible consequences. In most cases factors personal to the offender have to be moderated in the sentencing process in the interests of general deterrence, even where specific deterrence is of little moment. Parliament has increased the maximum penalty on several occasions, the community is increasingly intolerant of drunken and dangerous driving and the courts have rightly responded to those concerns.[1] Regrettably, this case is not unusual, but for the appellant's psychiatric illness.

2 The appellant, who was 24 at the time of the offences, pleaded guilty to one count of culpable driving causing death (count 1), two counts of negligently causing serious injury (counts 2 and 3) and two summary offences, for which she was fined. (No appeal has been brought against those fines, so nothing more need be said about them.) After hearing a plea for leniency, the learned County Court judge sentenced the appellant on 25th February 2005 to six years' imprisonment on count 1 and two years' imprisonment on each of counts 2 and 3. His Honour directed that six months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1 and that six months of the sentence imposed on count 3 be served cumulatively upon those two sentences. That resulted in a total effective sentence of seven years' imprisonment, in respect of which a non-parole period of five years was fixed. The appellant's driver licence was cancelled and she was disqualified from obtaining such a licence for seven years.

3 The appellant was granted leave to appeal on 26th August 2005. When the appeal came on for hearing before us on 22nd March 2006, there were ten grounds:

"1. The sentence imposed is manifestly excessive given the appellant's:

(i) immediate and continuing remorse;

(ii) mental and physical injuries as a consequence of the collision;

(iii) lack of any prior convictions;

(iv) excellent rehabilitation prospects;

(v) immediate plea and assistance to the police in their investigations;

(vi) incarceration would be harder than others of her background; and

(vii) support from the victims of counts 2 and 3.

2. The learned sentencing judge:

(i) erred in his finding the appellant's lack of sleep contributed to the collision;

(ii) erred in sentencing the appellant on the basis that lack of sleep caused or contributed to the collision.

3. The learned sentencing judge erred in placing excessive weight on general deterrence when sentencing the appellant.

4. The learned sentencing judge erred in failing to give any[2] or any sufficient weight to the impact of the offending on the appellant's mental and psychical health.

5. The learned sentencing judge erred in attaching too much weight to the victim impact statements filed at the hearing when sentencing the appellant.

6. The learned sentencing judge erred in imposing a cumulation of 6 months' imprisonment on counts 2 and 3 upon the sentence imposed on count 1.

7. The learned sentencing judge erred in failing to exercise mercy when sentencing the appellant.

8. The learned sentencing judge failed to take into account the offending was unplanned and the appellant had not attended the hotel by choice.

9. The learned sentencing judge failed to take into account the voluntary assumption of risk of the victims.

10. The learned sentencing judge erred in imposing a non-parole period, which was excessive in the appellant's unique circumstances."

4 In the course of the hearing it became apparent that the appellant's psychiatric condition had worsened significantly since the plea. The hearing was adjourned to enable counsel to amend the outline of submissions that had been filed on behalf of the appellant, to apply to amend the grounds of appeal and to file affidavits. At the resumed hearing on 5th April 2006 the appellant was granted leave to add the following ground:

"11. There has been a substantial miscarriage of justice (such that a different and lesser sentence should now be imposed upon the appellant), by reason of the appellant's psychiatric and psychological condition subsequent to the imposition of sentence, such condition including the severe major depressive episode suffered by the appellant resulting in her placement at the Thomas Embling Hospital from November 2005 - January 2006, and the consequences of same, as evidenced in the affidavit material filed herein."

An affidavit sworn by Mark Ryan, a forensic psychiatrist, and Albert Catanese, a clinical psychologist, were received in evidence. The respondent did not object to the reception of that evidence, having regard to the principles to be found in such cases as R. v. Eliasen[3].

5 The circumstances of the offences are set out in the judge's sentencing remarks. Addressing the appellant, his Honour said:

"4. In the early hours of the morning of Thursday, 22nd January 2004, you drove your sedan east on Eramosa Road West at Sommerville. Elise Cappadona was sitting in the front passenger seat. Seated in the rear of the car were Thomas Stephen Whitworth, David William Bowden and Mark Robert McEwan.

5. The three men were serving in the Royal Australian Navy and were undergoing a bosun course at HMAS Cerberus. You and Ms Cappadona were civilian employees at that Navy base where you worked as contract caterers.

6. On the previous day, Wednesday 21st January, you and Ms Cappadona had worked at the base. You worked three shifts, the first commencing at 5.00 a.m. and the last finishing at 8.00 p.m. Between these shifts you had some time off during which you had gone to your home nearby.

7. After finishing her work, Ms Cappadona and Mr McEwan were having a social drink at a mess on the base. They were joined by Mr Whitworth and Mr Bowden. You arrived, after a phone call, and drove the others to the Coolstore Hotel, Moorooduc, arriving at about 11.00 p.m. on 21st January. There you all listened to music, drank alcohol and socialised. You remained there until closing time, 1.00 a.m., on 22nd January.

8. You admit to drinking two stubbies of full strength beer and part of another stubby, as well as one glass of a mixed drink containing Bacardi Rum and Coke.

9. You then drove the others back towards Crib Point where you lived. The three men were to return to HMAS Cerberus and Ms Cappadona was to spend the night at your home. You were both rostered to work early that morning.

10. As you travelled east on Eramosa Road West, it was dark. The weather was fine and the roadway was probably dry. Visibility was good, although it was night time. You approached the intersection of Diane Court. The maximum speed in that location was 60 kph. Eramosa Road West in that vicinity comprised a bitumen surface dual carriageway with a single lane in each direction. There was a gravel shoulder on the northern side of the carriageway, that is, to your left. There was a continuous white line running east-west along the centre of the bitumen. The accident scene is within a built up residential area.

11. Your car veered onto the gravel shoulder on the left. You over corrected and your car veered to the right. You lost control of the car which rotated clockwise onto the westbound carriageway, continuing across the intersection. The passenger side of the car struck a light pole on the south-eastern corner of the T-intersection with Diane Court.

12. The collision scene and circumstances were investigated by officers of the Major Collison Investigation Unit, including Leading Senior Constable Urquhart. Based on his inspection of the accident scene and of the skid marks and observations of other marks on the roadway, Leading Senior Constable Urquhart estimated that at the time the nearside wheels of your car first ran onto the gravel verge, your car was travelling at a minimum speed of 106 kph, if the roadway was dry, and at a minimum speed of 95 kph if the roadway was wet.

13. Neighbours, alerted by the sound of the collision, rushed to the scene to assist. They described the roadway as dry before the time of the collision, although some rain fell as they moved towards the accident location. Even if the lower estimate was used on the basis that the roadway was wet at the time of your vehicle running onto the gravel shoulder, its then minimum estimated speed was 35 kph in excess of the applicable speed limit.

14. Ms Cappadona died at the scene of the collision from injuries she sustained (count 1).

15. Mr Whitworth lost consciousness, and suffered a large laceration of his scalp in the right parietal occipital region, a closed head injury, and bruising of his lower back and limbs. He was airlifted to the Alfred Hospital trauma unit. The scalp wound was closed using 12 staples (count 2). He was discharged from hospital the following day and apparently recovered uneventfully from his physical injuries.

16. Mr Bowden was conveyed by ambulance to Frankston Hospital where he was admitted and treated for loss of consciousness, soft tissue injuries including a whiplash injury of his spine, a laceration of his left parietal region which required about 15 sutures (count 3). He was discharged from hospital the following day. He too has apparently recovered without complications from the physical injuries he sustained." (Footnotes omitted.)

Mr Whitworth and Mr Bowden were in fact discharged the same day.[4]

6 A sample of the appellant's blood was taken for analysis about 80 minutes after the collision. It revealed a blood alcohol reading of .13% and a level of tetrahydrocannabinol which showed that the appellant had been using cannabis closer to the time of the accident than she claimed when interviewed by the police.

7 In my opinion, the sentencing discretion is reopened for two reasons. The exhibits to the affidavits sworn by Dr Ryan and Mr Catanese, both of which are subject to medical confidence, show that the appellant is suffering, and has been suffering, from a serious mental illness, which included the need to move her to the

Thomas Embling Hospital on 14th November 2005. The main reason she was discharged on 5th January 2006 was bed shortages. It was known at the time of the plea that the appellant suffered a severe adjustment disorder with symptoms of depression and anxiety. The affidavits throw significant new light on that fact, so that the discretion is reopened in accordance with R. v. Eliasen and the cases that have followed it.

8 There is, however, another reason why the appellant must be resentenced[5]. Although his Honour was asked on the plea to fix "a lower non-parole period than normal, given the extenuating circumstances of this case", he gave no reason for fixing a non-parole period of five years. He was under no obligation to do so[6] but if we are troubled by the non-parole period, we do not know the judge's train of reasoning and cannot be confident that the non-parole period received that "discrete consideration" of which Winneke, P. spoke in R. v. Mulvale[7]. I turn, therefore, to consider the matter on first principles.

9 A non-parole period is the minimum time that the sentencing judge determines that justice requires the prisoner to serve having regard to all the circumstances of the case[8]. The appellant was a young woman of otherwise good character, who had suffered, both mentally and physically, as a result of the accident. As counsel submitted on the plea and I think his Honour accepted, her prospects of rehabilitation were very good, given the support she had from members of her family, her good work record and matters mentioned by her father in his evidence. The judge accepted that she had demonstrated genuine remorse. Rehabilitation and remorse are not, of course, the only factors relevant to fixing a non-parole period[9], but they are usually entitled to a good deal of weight.[10] In the present case, in my opinion, it was not open to his Honour to consider that, if seven years' imprisonment was the appropriate head sentence, the minimum time that justice required the appellant to serve, having regard to all the circumstances of the case, including factors personal to her, was five years.

10 It is unnecessary to say anything about the other grounds, except to repudiate any suggestion that the five victim impact statements were overvalued. The voices of Ms Cappadona's family deserve to be heard.

11 Mr Holdenson emphasised a number of matters that are relevant to resentencing. They included the following: first, the appellant is a first offender with a good employment record; secondly, she has experienced intense guilt and grief at having caused the death of her friend; thirdly, she indicated an intention to plead guilty at the first opportunity and did so at an uncontested committal mention; fourthly, the learned judge accepted that the appellant's background was such that she would find imprisonment difficult; and, fifthly, the appellant herself sustained a broken pelvis, cracks to the base of the spine, severe cuts and swelling on the left side of the brain.

12 It was pointed out that neither of the victims of counts 2 and 3 had sustained lasting injuries. Mrs Quin conceded, fairly, that the sentences imposed on those counts were severe. It is unnecessary to decide whether they were outside the range. The discretion being reopened, I would substitute sentences of 18 months' imprisonment on each of those counts.

13 I have already referred to the appellant's psychiatric condition at the time of the plea and the further evidence received in this Court. It is necessary to be circumspect in describing it because of the confidential nature of the exhibits. The appellant continues to suffer a serious psychiatric illness. It is not in the same category as the paranoid schizophrenia in R. v. Tsiaras[11], nor does it diminish her moral culpability for the offences. It is to be taken into account as moderating general deterrence and, far more importantly in this case, because service of a prison sentence operates more harshly on a person who is ill than it does on a person in good health.[12]

14 This was not a case of a drunken driver wilfully ignoring the safety of others. The appellant had no intention of drinking on the evening in question. She was persuaded to accompany her friends to the hotel. Nevertheless her offending involved the ingestion of cannabis, a high blood alcohol level and speed. Her unfortunate companions tried to persuade her to slow down. It appears that none of them, including the appellant herself, realized the extent to which she was intoxicated. There are worse cases, but there are less culpable cases too. Specific deterrence is not an objective, but general deterrence is. As I said in R. v. Sherpa[13], it is not to be forgotten that a life has been lost.[14]

15 Taking all the competing considerations into account, should the other members of the Court agree, I propose the following orders:

1. The appeal is allowed.

2. The sentences of imprisonment imposed below on counts 1, 2 and 3 are quashed. In lieu thereof, the appellant is sentenced to six years' imprisonment on count 1 and 18 months' imprisonment on each of counts 2 and 3.

3. The Court directs that three months of each of the sentences imposed on counts 2 and 3 be served cumulatively upon each other and upon the sentence imposed on count 1, making a total effective sentence of

six-and-a-half years' imprisonment.

5. The licence disqualification period set aside. In lieu thereof, the appellant is disqualified from obtaining a driver licence for the period of five years beginning on 25th February 2005[15].

A declaration should also be made regarding pre-sentence detention.

16 I agree that, for the reasons given by Callaway, J.A., the appeal be disposed of as his Honour proposes.

17 I agree in the disposition of this matter as proposed by Callaway, J.A. and I do so for the reasons advanced by him in his judgment.

[1] Ten years ago a penalty of six or seven years' imprisonment would have been regarded as very severe, if not excessive, but that was before Parliament increased the maximum penalty again, from 15 years' to 20 years' imprisonment, and the courts began to liken the offence to manslaughter.

[2] At the hearing on 22nd March 2006 counsel very properly withdrew the suggestion that no weight was given to this factor.

[3] (1991) 53 A.Crim.R. 391.

[4] I misread paragraphs 28 and 29 of the summary of prosecution opening in the same way as his Honour. The words "the following afternoon" in the summary were ambiguous.

[5] See R. v. Pope [2000] VSCA 108; (2000) 112 A.Crim.R. 588 at 598 [29].

[6] See R. v. VZ [1998] VSCA 32; (1998) 7 V.R. 693 at 697 [13] and Director of Public Prosecutions v. Josefski [2005] VSCA 265 at [42]-[44].

[7] Unreported, Court of Appeal, 20th February 1996 at 11. The relevant passage is set out in R. v. VZ at 697 [14]. See also R. v. VZ at 697 [15].

[8] Power v. R. [1974] HCA 26; (1974) 131 C.L.R. 623 at 629; Deakin v. R. [1984] HCA 31; (1984) 54 A.L.R. 765; Bugmy v. R. [1990] HCA 18; (1990) 169 C.L.R. 525 at 531, 536 and 539_; R. v. VZ_ at 697 [14]; Director of Public Prosecutions v. Josefski at [43] and the authorities referred to in that case at [44].

[9] R. v. Kennedy [2006] VSCA 77 at [14].

[10] See R. v. VZ at 697 [15] and Director of Public Prosecutions v. Josefski at [33], especially point 8 and fn. 42.

[11] [1996] VicRp 26; [1996] 1 V.R. 398.

[12] R. v. Smith (1987) 44 S.A.S.R. 587; R. v. Van Boxtel [2005] VSCA 175; (2005) 11 V.R. 258.

[13] [2001] VSCA 145; (2001) 34 M.V.R. 345 at [11].

[14] The full passage is set out in R. v. Tran [2002] VSCA 52; (2002) 4 V.R. 457 at 461 [12].

[15] The purpose of this order is not unduly to hamper the appellant's rehabilitation if and when she is released on parole. In the circumstances of this case, I do not think it necessary to make a more complex order of the kind illustrated by R. v. Tran at 470 [40].