R v Yalim [2000] VSCA 64

Court of Appeal (Vic)|2000-04-12|Before: TADGELL and CHERNOV, JJ.A. and HEDIGAN, A.J.A.

Sentence - Appellant sentenced to six years' imprisonment, three-year minimum on two counts of culpable driving causing death - Appeal against sentence as manifestly excessive - Principles - Sentences not excessive.

I will invite Hedigan, A.J.A. to deliver the first judgment.

The events which led to the serious charges against the appellant were summarised by the County Court sentencing judge in the course of hearing the plea made on behalf of the appellant after he had pleaded guilty to the three charges made against him. Neither counsel appearing at that time disagreed with the summary, which was to the following effect. It is to be treated as a summary of the facts on which the sentence was given and which this Court re-evaluates on appeal.

On 24 July 1998 the appellant, his wife and their two children - a boy aged twelve and a daughter aged four - had attended as guests at a Turkish wedding. They were returning to their home at about 11 p.m. in the appellant's motor vehicle. The weather conditions were fine and dry. The vehicle was being driven in Cooper Street, Epping, where the applicable speed limit was 80 kilometres per hour. The depositions of witnesses were to the effect that the appellant was driving his vehicle on the incorrect side of the road, which had double white lines, for some distance. He overtook another vehicle which was travelling at about 80 kilometres per hour and crossed the double white lines, and then, apparently, when returning to the correct side of the roadway, struck the end or some part of a median strip in the road centre which commenced at that point. He then further lost control of his motor car and collided with a pole at the edge of the roadway on the correct side. It appears also that there had been some other vehicle travelling in the opposite direction to the appellant's direction of travel, although it was not involved in the events. The appellant's daughter died of injuries at the scene and his wife died the following night.

The speed of the appellant's vehicle at the time it overtook the other vehicle was estimated by that driver to be about 120 kilometres per hour, an estimate confirmed by police. Other evidence indicated that the appellant well knew this road and that he had passed two road warning signs on his approach to the critical area.

After the collision, witnesses observed the appellant and some described him as seriously affected by alcohol. A sample of his blood taken and tested showed his blood alcohol level at that time to be .150, three times the legal limit.

The sentencing judge heard a plea made by experienced counsel and heard evidence from witnesses, both orally on oath and in writing. The appellant had no prior convictions. The sentencing judge convicted the appellant on both counts of culpable driving and sentenced him to five years' imprisonment on each count. He made one year of the sentence on the second count cumulative on the sentence of imprisonment on count 1. The total effective head sentence therefore was six years. He ordered the appellant to serve a minimum of three years' imprisonment before being eligible for parole. He cancelled all driving licences and permits and disqualified him from driving for four years commencing on 29 August 1999, and took into account four days' custody which was declared at the time to be served.

It should be stated that the maximum penalty for culpable driving causing death is 20 years' imprisonment and there is a very substantial monetary penalty. The maximum penalty for this offence was increased from 15 years to 20 years three years ago. The minimum period of disqualification for driving under the section is two years. The appellant was fined $200 on the summary charge under the Road Safety Act and the period of disqualification was set at 15 months, concurrent with the four-year period under the counts of culpable driving.

The appellant was granted leave to appeal. The grounds of the appeal are as follows: firstly, that too much weight was given by the sentencing judge to the principle of general deterrence, that being the prime argument advanced by counsel for the appellant. Secondly, that the sentence was manifestly excessive in the circumstances, which is associated with the first ground. There were two other grounds added later: thirdly, that the sentencing judge failed to give any weight to the subjective circumstances of the appellant (which I take to mean, and as counsel said this morning means, his personal circumstances; fourthly, that the sentencing judge referred to principles of general deterrence, retribution and curial denunciation and gave little or no significance to special deterrence of the appellant. No argument was addressed in support of ground 4, which refers to matters to which sentencing judges may in appropriate cases pay regard, and I will not return to that ground.

Before turning to the judge's sentencing remarks it is necessary to describe briefly some of the evidence before him in addition to the depositions, particularly matters which were the subject of address by counsel both in the written submissions that were filed on the application for leave and, as it were, re-filed today and addressed by him specifically in court this morning.

There was in evidence before the sentencing judge a written report of Dr Roger Chau, a consultant psychiatrist, who also gave evidence on oath. The substance of his evidence addressed the severe post-traumatic stress disorder from which he said the appellant suffered and the effect on him psychologically of the deaths of his wife and daughter and the events generally. This was said to produce sleep disturbance, nightmares and hallucinations, both visual and auditory. He also gave evidence that the appellant had sustained extensive physical neck injuries as well, and that he was very concerned about his surviving son, aged twelve.

The witness also supplied evidence, which was accepted, of the appellant's background as a Turkish migrant to Australia in 1982, thereafter working as an auto-electrician. He is Muslim and an adherent of that faith. It appeared from that history, and indeed from matters put on the plea before the County Court judge and by Mr Wendler to us this morning, that he is a person who drank alcohol only on rare and special occasions. Unhappily this appears to have been one of them. Dr Chau was of the opinion that his suffering was severe and likely to be long-term because of his neck injury. Dr Chau's oral evidence was to the effect that the appellant's symptoms were genuine. He was on an anti-psychotic drug, Neulactil; his prognosis was said to be poor. Dr Chau had seen him about 30 times.

In addition, the appellant's employer was called. He also knew the family well and said that the appellant worked at packing and ticketing garments and was a reliable man, and that the appellant and his son got on well. There were numerous letters from Turkish friends describing the serious effect on the appellant's behaviour and mental state of these events and expressing fear and concern about the possible effect on the twelve-year-old son as a result of his father's imprisonment. One of those letters referred to the appellant's consumption of the strong spirit Raki at the wedding. The sentencing judge read all of those letters, which addressed in simple terms the suffering and depression of the appellant at the loss of his loved ones at his hands. He was described by one of the letter writers as honest, useful to society and faithful to his religion.

The plea emphasised these matters and the likely grievous effect on the appellant and his son if he were to be sentenced to a substantial term of imprisonment. Counsel on the plea asked the judge not to be overly influenced by statements of the Court of Appeal and some County Court judges about sentences in culpable driving cases. He did not elaborate what he meant by that, but one assumes he was suggesting that the personal tragedy that was here caused had to impact on the sentencing obligations and discretions so as to make other sentences a dubious guide. There had been in this case an early indication of a plea of guilty. The appellant was said to be without family save for his son, on whom he now concentrated. It was said that he had always been employed and lived a stable family life, and it was said to the judge that he could not now work full-time because of his psychological disablement. He was in receipt of social service benefits at that time but he was working part-time. He had never come to the attention of the police.

It is appropriate, I think, to quote some part of the sentencing judge's remarks:

"Mr Bourke also drew to my attention the fact that you will find prison life more difficult than most because you will be denied the company of your 12-year-old son and that he also will suffer hardship, being deprived of the companionship of his father."

Of course, that statement makes it perfectly clear that his Honour was well aware of the matters which we have been asked to consider. I continue the quotation.

"A number of Mr Bourke's submissions in mitigation of penalty, although necessary to be made, stated the obvious."

He there referred to matters that counsel had put before him in relation to matters in mitigation, to many of which I have referred in what I have already said. His Honour went on to say:

"The fact is that a significant percentage of culpable driving offences involve examples of adult males and young men being responsible for the deaths of wives, girlfriends, mothers, fathers, sons and daughters, brothers and sisters and close friends. In common with you, they frequently present at this court as individuals without a criminal history, with character references and excellent working records. In common with you, the tragedies they create and the suffering they cause others in turn produces in the offender reactions of the kind referred to in the evidence of the psychiatrist and the statements of members of the Turkish community; that is, the perpetrator also suffers and is often wracked with remorse and overcome with guilt."

His Honour also referred to the Transport Accident Commission warnings about driving and alcohol, police campaigns and the relatively recent increase in the maximum penalty for this offence to 20 years.

Mr Wendler, in his submissions to this Court, placed emphasis on three things. The first was that the sentencing judge paid insufficient attention, or certainly had given insufficient weight, to the evidence of Dr Chau, which established that the appellant's psychosis was a powerful feature, and that it had been wrongly rejected by the sentencing judge. The second aspect was that the sentencing judge had paid insufficient attention to features personal to the appellant. The third and principal focus of his argument was that, because of the two earlier features to which I have referred, the head sentence was appropriate but the non-parole period paid insufficient regard to those matters to which I have referred, thus the sentence was excessive. Counsel for the appellant submitted that there was no basis on which the sentencing judge could not have accepted the evidence of Dr Chau nor for the judge's opinion that the appellant's condition was not psychotic.

In the written submissions some reference was made to the High Court of Australia decision in Farrell v. R.[1]. No oral submissions were made about that to us and I do not propose to dwell on it to any extent. Speaking for myself, however, I do not derive much assistance from Farrell, which was a case involving sexual offences, with a long psychiatric history of the complainant in respect of which medical opinion was advanced. This was dismissed by the judge when charging the jury, he suggesting that the opinion expressed did not count for anything as it did not travel beyond what a lay person might know and understand. Moreover, it was a case in which the question of the psychiatric condition was of major significance because the real question was whether the psychiatric condition referred to had the capacity to impact upon the complainant's capacity to tell the truth, a matter wholly irrelevant in this case.

It is true that the sentencing judge here did not condescend to much detail as to why he declined to accept Dr Chau's view of the psychosis, if there was one. But he was not bound to accept Dr Chau's opinion. While it is true the prosecution called no evidence to deny it, it would be incorrect to suggest that Dr Chau's opinion was ignored. His Honour, during the evidence which was given orally, challenged it himself (transcript 17), querying the diagnosis, suggesting that the visual and auditory hallucinations and nightmares might have occurred as a consequence of guilt and grief, not psychosis. The prosecutor cross-examined and elicited that Dr Chau had not been involved in previous culpable driving cases, and indeed Dr Chau confirmed this to the sentencing judge upon further questioning. It appears likely that the sentencing judge formed the view that Dr Chau's lack of experience of consequences from such circumstances threw some doubt on his opinion, particularly as it also appears likely that his Honour believed that Dr Chau had not given sufficient consideration to the contribution of guilt in arriving at his view. Further, and perhaps more importantly, Dr Chau's evidence did not address at all the likely effect of imprisonment on the appellant, although he expressed the view that it would be hard on his son. Moreover, it does not follow that because the sentencing judge doubted the psychosis diagnosis he did not consider the changes in the behaviour and the attitudes of the appellant, the deterioration in his self-confidence and mental state, which were also addressed in the statements of the letter writers, as part of his consideration of the appropriate sentence. He clearly did, as he referred to the number of friends who had attended, indicative of concern and support. Nor does it follow that he ignored the effects on the son of the likely imprisonment of the father. This aspect was but one feature of the personal consequences which clearly appeared and which, in my evaluation, were clearly addressed by the sentencing judge, but which he regarded as being unable to lead to a substantial reduction to the sentence, having regard to the circumstances.

Notwithstanding Mr Wendler's submissions, I cannot regard the sentence imposed as being manifestly excessive. The offences, and their terrible personal consequences, were grave and without much in the way of mitigating circumstances save for the claim that the event was, as it were, devastating to the life of the appellant. The sentencing judge was bound to take into account, having regard to the continuing carnage on the roads, the urgent necessity to remind and re-remind motorists by firm sentences of the dangers to themselves, their friends and their loved ones, and to other ordinary road users, of the damage created by irresponsible driving, particularly when linked to or caused by excessive consumption of alcohol. Thus in my view the sentencing judge was bound to give, as he did, notable weight to general deterrence, and surely he was right to regard personal deterrence as virtually irrelevant, given the circumstances here and the tragic consequences that fell on the appellant himself. Some special emphasis was given in argument to the severe and continuing psychological effect on the appellant of the deaths of his wife and daughter, caused, it must be said, by his irresponsibility, and the likely harmful effects on his young son of a long term of imprisonment on the father with the attendant separation. However, even on the argument advanced to us today that the non-parole period should be reduced, it is inevitable that there is going to be a substantial separation.

His Honour was well aware of these aspects and there is no reason to suppose he did not consider them. As I earlier indicated, he clearly did, from a remark made concerning the large number of family friends who attended court on the plea as signalling to his Honour that some support for the boy was likely to be forthcoming. There is no doubt that the sentencing judge, whose experience in this context is doubtless considerable, noted that those charged with this offence are frequently of good character and have otherwise led blameless, often exemplary, lives. Moreover, as he said in the course of the plea, the conduct frequently occasions, as here, the loss of life or lives of friends and loved ones.

There is no reason to suppose his Honour did not take into account the personal circumstances of the applicant and the devastating effect of his conduct and his guilt on him. In human terms, these consequences attract compassion for the continuing grief and guilt, but they cannot play a significant or major role in the sentencing process, having regard to the circumstances of this case. In my judgment, the sentences imposed, the moderate cumulation and the non-parole period fixed were all within the range of appropriate sentencing options.

There was some reference to other decisions and whether they were of assistance or guidance. This Court has stressed these matters in numerous cases. Some were referred to this morning. I refer to R. v. Musson[2] and R. v. Arnold[3]. A sentence was imposed in Musson of seven years with a minimum of four-and-a-half years, greater than the sentence in this case, which has been noted in other cases. Musson specifically confirmed that there is no principle that cumulation cannot be countenanced when there are two consequences of a single event. The law leaves it to the individual evaluation of the sentencing tribunal to determine what justice calls for in each case, a discretion the exercise of which can only be interfered with by an appellate court if there is an error within the meaning of the well-recognised criteria.

In my judgment, the non-parole period set in this case was appropriate and correct and there was no error. Accordingly the grounds of appeal are not made out and the appeal must be dismissed.

[3] Unreported, Court of Criminal Appeal (as it then was), 18/2/1994

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