Scammell v The Queen [2015] VSCA 206

1 On 1 December 2014, the applicant pleaded guilty in the County Court to one charge of negligently causing serious injury. Following a plea hearing conducted on 1 and 2 December, the applicant was sentenced on 3 December 2014 as follows:

Causing serious injury negligently [Crimes Act 1958 s 24]

10 years' imprisonment [Crimes Act 1958 s 24]

4 years' imprisonment with a non-parole period of 2 years

• Licence cancelled and disqualified for 3 years
• Forensic sample order

2 The applicant initially sought leave to appeal against the sentence imposed upon him on the following grounds:

1. The sentence was manifestly excessive in that a sentence involving confinement was not required to achieve the proper purposes of sentencing given:

(a) the circumstances of the offending;

(b) the applicant's youth, previous good character and excellent prospects of rehabilitation; and

(c) the substantial risk that detention would be harmful to the applicant.

1. The learned sentencing judge erred in failing to take into account as a mitigating factor the evidence that the applicant was suffering from Major Depression.

3 During the hearing of the application the applicant sought leave to amend his notice of appeal to add a further ground to the following effect:

The learned sentencing judge erred in reasoning that a community correction order was not an available sentencing option because this was not a case in which a suspended sentence could have been imposed in the past, thus failing to recognise the necessity to re-examine past approaches to sentencing in the light of the availability of community correction orders.

4 On 29 October 2013 at around 9:30pm the applicant was travelling west on the Princes Highway towards the intersection of that highway and the Monash Freeway on ramp. Although the applicant's speed could not be determined, in his record of interview, the applicant said he was travelling at 80 kilometres per hour and was approximately 20 metres from the intersection when the green signal tuned to amber. The applicant said he took his eye off the road to look at his speedo and fuel gauge at some stage before approaching the intersection.

5 The applicant entered the intersection against the red signal and collided with a motorcycle turning right with a green turning signal. On the plea, it was conceded by the applicant that the signal facing him was red and that the red signal had been on for 7.2 seconds prior to him entering the intersection.

6 There was no indication that speed was a factor, nor that the applicant was under the influence of alcohol or drugs at the time of the collision.

7 After the collision the applicant said he got out of the car and ran to the motorcyclist with whom he had collided, Mr John Rowe. The applicant told police he saw Mr Rowe just the moment prior to the collision when he looked up.

8 As a result of the collision, Mr Rowe suffered severe life-threatening injuries including the amputation of one of his legs below the knee, multiple fractures, traumatic brain injury and other internal injuries. He was hospitalised for six months and is, and will be, unable to work again.

9 Police spoke to the applicant at the scene and he gave a record of interview later that night. The applicant entered a plea of guilty to the charge on the day of contested committal, 10 September 2014, prior to any witnesses being called to give evidence.

10 The judge commenced his reasons for sentence with a description of the applicant's offending.[1] The judge then referred to the victim impact statements that were tendered, including the victim impact statement of Mr John Rowe in which the very significant consequences of the serious injuries sustained by Mr Rowe are described.[2]

11 The judge referred to the evidence given by the applicant, the applicant's father and the applicant's partner, the written references that were tendered, and a medical reference concerning the applicant's son's health. The judge said that he considered all of this material, and then said:

I am satisfied that you are remorseful. I understand the position with respect to your eight-month old child for whom you have been the full time carer. Your partner has a full time job as an apprentice chef. I understand the difficulties a period of custody would cause to the care of the child. Your counsel submitted that this background established such exceptional circumstances that I could take it into account under the heading family hardship. I have considered the relevant principles as set out in the case of Jared Ramezanian v The Queen [2013] VSCA 71, and in particular from paragraph 24 onwards. I reject the submission that exceptional circumstances are made out here through your circumstances.

Unfortunately, it is not exceptional that a prisoner's family is affected by a custodial sentence. However, I do take into account the effect on you when you are in Youth Justice worrying about who will take care of your child. As I said, I have decided to detain you under a Youth Justice Order so arrangements will have to be made by your family in relation to the care of your son.

...

You have entered an early plea of guilty, for which you have been given full acknowledgment. You are now 20, you otherwise have a criminal-free record, apart from two traffic infringement notices for speeding which you disclosed in your record of interview. You have a prospective career as a carpenter, you are remorseful, you have a supportive partner and family. I accept you should have excellent prospects for rehabilitation.

A report was tendered from Carla Lechner, psychologist. I have taken into account the contents of that report and specifically refer to the summary and opinion section of it at pp.5 and 6 and, in particular, paragraph 5 when Ms Lechner deals with your admission or suitability for Youth Justice sentence.[3]

12 In addition, the judge said that he took into account, as mitigating factors, the following 10 matters referred to by the applicant's counsel on the plea, namely:

(a) the applicant's early plea as evidence of remorse and the utilitarian benefit associated with that early plea;

(b) the applicant's lack of any prior criminal history;

(e) the applicant's excellent prospects of rehabilitation;

(f) the low likelihood of the applicant reoffending;

(g) that the applicant had otherwise been a productive member of society, and was a person of excellent character;

(h) the responsibilities the applicant had as a young father and partner;

(i) the applicant's background and personal circumstances generally; and

(j) the psychological report prepared by Ms Lechner.

13 As to the objective gravity of the applicant's offending, the judge said:

I consider that your negligence here, because of the matters your counsel referred to, is not at the most serious level of this type of offending. However, I do not accept that it is at the lowest end. The fact that you had 7.2 seconds to observe the red light and did not suggests that your level of inattention was considerable. I do not have any material before me apart from looking at the instrument panel to explain why in that period of time you did not observe the red light. As I said, in your interview, you said you were looking at your speedo and fuel gauge, during that time, if you were travelling at 80 kilometres, you would have covered almost 160 metres. Such inattention was well short of the standard of care required. I always find it difficult to assess ranges of offending but if I had to categorise a range here for your driving, that is the degree of negligence in your driving, I would assess it between the upper-lower range and the lower-middle range.

The second factor I have to assess in relation to the objectivity gravity of the offending is the seriousness of the injury caused. As I have referred to, Exhibit 1 sets out how serious those injuries were. They included a severed left foot requiring below knee amputation. The victim's life has been seriously compromised by these injuries, therefore I conclude that the seriousness of the injury, if having to put it in a range, is at least in the middle range of serious injury, if not higher.[4]

14 As to specific deterrence and general deterrence, the judge said:

General deterrence is an important sentencing factor for this type of offending, as I have already explained to you. Specific deterrence, in your case because of your excellent prospects of rehabilitation, plays a lesser role. The other important factor is the court's denunciation of this type of offending. Young men driving cars and causing injury to others in a variety of circumstances has been an all too common feature of our society for many years now. As is obvious, there are tragic and ever-present consequences for all concerned. A court cannot undo what has occurred.[5]

15 Next, the judge said that he had considered the submission that a community correction order was an appropriate sentencing option. However, the judge concluded that because of the objective gravity of the offending, he did not consider a community correction order to be appropriate.[6]

I have taken into account all the sentencing considerations including the mitigating factors and, doing the best I can, and bearing in mind that in these types of matters whatever sentence I impose probably will please no one as either being too much or too little. But in any event, I have decided, as I have said, to impose a Youth Justice sentence for you to be detained for a period of 27 months. I cancel your licence and disqualify you from obtaining a licence for a period of three years.[7]

17 The applicant submitted that the sentence imposed upon him was manifestly excessive in that a sentence involving confinement was not required to achieve the relevant sentencing purposes. This was submitted to be so when one had particular regard to the circumstances of the offending; the applicant's youth, previous good character and excellent prospects of rehabilitation; and the substantial risk that detention would be harmful to the applicant.

18 The applicant placed significant emphasis upon the fact that the sentence imposed on him was imposed before the guideline judgment of Boulton v The Queen[8] was delivered by this Court. Reliance was placed by the applicant on the statements in Boulton that community correction orders have 'dramatically change[d] the sentencing landscape'[9] and that previous sentencing practices of imposing a sentence of imprisonment for offences of the seriousness of the one for which the appellant fell to be sentenced were no longer a basis for refusing to impose a community correction order.[10]

19 Here, the applicant submitted, there were powerful reasons to prefer a community correction order to a sentence of confinement. These reasons were said to include:

(a) the applicant's youth and emotional vulnerability;

(b) the undesirability of separating the applicant from his young family, from employment and from the support of the community and his family; and

(c) the nature of the offending conduct 'in the context of the applicant's otherwise blameless life'.

20 In support of the further proposed ground the applicant submitted that the judge had not appreciated that the community correction order provides a different sentencing option to a suspended sentence and that reason to refuse a suspended sentence would not necessarily be sufficient to refuse a community correction order. The appellant submitted that a community correction order without any period of incarceration should have been imposed. At the hearing it was made plain that if the ground succeeded, a community correction order without any period of imprisonment was the only community correction order sought. Both parties contended, and we accept that a community correction order could not be combined with detention in a youth justice centre as that was not a term of 'imprisonment' under the Sentencing Act 1991.

21 Finally, the applicant submitted that the judge erred in failing to take into account as a mitigating factor the evidence that the applicant was suffering from major depression. The diagnosis of major depression made by Ms Lechner was said not to have been alluded to in the reasons for sentence 'and their [was] no sign that it was given any mitigating weight'. While the applicant conceded that there was no expert who said explicitly that the fact that the applicant was suffering from major depression would make confinement more onerous for him than it might be for others, the applicant contended that 'it is a matter of common sense and human experience that such a consequence must follow.'

22 The respondent submitted that the sentence of youth justice detention was open to the sentencing judge, accepting, as the judge did, the applicant's youth, good character and excellent prospects of rehabilitation.

23 The applicant's offending was submitted to be serious, even though some of the aggravating features sometimes involved with this type of offending were absent. Further, the respondent pointed to statements made by this Court to the effect that general deterrence must play a significant role in the sentencing of offenders in these types of cases - these cases often involving young offenders of good character with no (or limited) prior convictions who have shown genuine remorse.[11]

24 So far as the complaint that the judge did not consider the applicant's diagnosis of major depression is concerned, the respondent submitted that:

(a) the judge expressly took into account Ms Lechner's diagnosis of major depression and her opinion;[12]

(b) the diagnosis of major depression was not the focus of the applicant's submissions on the plea; and

(c) in any event, when the judge asked the applicant's counsel on the plea about the lack of evidence that the applicant's depression would make the applicant's time in custody more onerous, the applicant's counsel conceded that Ms Lechner did not specifically say so, and then went on to say 'nevertheless, in my submission it's something that is - I mean it's not something I place a great deal of weight on'.

25 It is convenient to first deal with ground 2. Under this ground complaint is made that the judge failed to take into account as a mitigating factor the evidence that the applicant was suffering from major depression.

26 We reject this complaint. The judge specifically took into account the report and opinion of Ms Lechner.[13] While the judge did not specifically refer to the diagnosis of 'major depression', it is plain from his reasons that, notwithstanding the limited reference to the matter by the applicant's counsel on the plea, the judge took Ms Lechner's diagnosis into account when sentencing the applicant.

27 That said, the absence of expert evidence as to how the applicant's major depression might make confinement in a youth justice centre more burdensome on the applicant, than on someone not suffering from a major depression, limited the mitigatory effect that was capable of being given to the Ms Lechner's diagnosis. In the end, we think that the applicant's real complaint about the diagnosis of major depression is that the judge did not accord the matter the weight the applicant would have liked. Such a complaint is, in reality, a particular of a complaint of manifest excess. It follows that ground 2 must be rejected.

28 As to the additional ground, the applicant placed great reliance upon Boulton as mandating a community correction order. In McGrath v The Queen[14] this Court, in responding to the same argument as was advanced before us that the judge, at the time of sentence, did not have the benefit of the judgment in Boulton, said:

As the Court said in Boulton, the availability of CCOs as a sentencing disposition 'dramatically changes the sentencing landscape' and 'calls for a re-consideration of traditional conceptions of imprisonment as the only appropriate punishment for serious offences'. But nothing said in Boulton altered the principle of parsimony, which has always been a fundamental sentencing principle under the Sentencing Act 1991 ('the Act'). The question as formulated in Boulton (above) is just one way of giving expression to that principle.

A sentencing judge has always been obliged to impose the least severe sentence necessary to achieve the purposes of sentencing. That obligation is enshrined in s 5(3) and (4) of the Act, which oblige the court not to impose a sentence of confinement unless it considers that 'the purpose or purposes for which the sentence is imposed' cannot be achieved by a sentence that does not involve confinement. Those provisions - which are of long standing - were recently supplemented by s 5(4C), which requires a court not to impose a sentence of confinement unless it considers that the relevant sentencing purposes cannot be achieved by a CCO with conditions attached.

The judge's obligation is, as it has always been, to give adequate consideration to whether a sentencing option other than a substantial immediate custodial term of imprisonment will be appropriate. The option of a CCO must be amongst the alternative dispositions to be considered. In Boulton, the Court pointed out that in an appropriate case a CCO can achieve all of the purposes of sentencing, and can do so in cases which might previously have been thought to require a sentence of imprisonment.

...

Plainly enough, the availability of the option of a CCO does not mean that the imposition of a custodial sentence is presumptively erroneous. This point was made very clearly in the recent case of Hutchinson v The Queen, where Priest JA (with the concurrence of Ashley JA) said:

Acknowledging that a CCO might be appropriate 'even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment', it should not be thought that Boulton offers a 'Get Out of Jail Free' card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed. One of the purposes for which a sentence may be imposed is, of course, 'to punish the offender to an extent and in a manner which is just in all of the circumstances'. There will be cases - indeed, many cases - where, having regard to the seriousness of the offending, a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all of the circumstances, is just.[15]

29 It is also to be remembered that sentencing involves the exercise of a discretion, there being no one correct sentence. It is fallacy to reason that, because a lesser sentence or a community correction order may have been regarded by another judge as within range, the sentence actually imposed must have been beyond a sound exercise of the sentencing discretion.

30 It is apparent from the judge's sentencing remarks that he gave careful consideration to the possibility of imposing a sentence other than immediate imprisonment. Ultimately, his Honour concluded that the seriousness of the offending would not have permitted him to impose a wholly suspended sentence under the old regime and that for the same reasons a community correction order was inappropriate. Under the further proposed ground the appellant submits this reasoning is fallacious. It may well be that the judge, in these sentencing remarks intended no more than to say that the objective seriousness of the offence was such that neither the previous option of a suspended sentence or a community correction order was appropriate, but his remarks leave open the concern that he viewed each of these options in the same way. As Boulton makes clear, a community correction order contains punitive elements, and while a suspended sentence also had such an element, they are not to be viewed as equivalent and carrying identical punitive elements. That said, we do not consider that his Honour's reasons contain any material error. We are of the view that any community correction order needed to be combined with some period of detention and the appellant had made plain that he does not seek the imposition of any term of imprisonment.

31 We turn then to ground 1, and the complaint that the sentence imposed by the judge was manifestly excessive.

32 The applicant's offending was objectively serious, involving as it did the light being red for 7.2 seconds before the applicant entered the intersection. As the judge noted, on the assumption that the applicant was travelling at 80 kilometres per hour prior to the collision, this means the light was red when the applicant was still 160 metres from the intersection. A motor vehicle is a weapon capable of inflicting serious injury and death when driven negligently. In the present case, the consequences of the applicant's very serious negligence have been severe and life altering for the principal victim (Mr Rowe) and his family. In the circumstances of this case, as we have said, we see no error in the judge's conclusion that a community correction order was not an appropriate sentencing disposition. Offending of the present kind, requiring as it does significant consideration to be given to general deterrence, is now routinely dealt with by a significant period of imprisonment.[16]

33 That said, recourse to the statistics collected by the Sentencing Advisory Council suggests that the median term of imprisonment for a single charge of negligently causing serious injury in the case of driving for the seven year period until 2013 was 2 years and 3 months. An examination of current sentencing practice suggests that a sentence of the order here imposed is found in cases where more serious charges also arise from the relevant driving or there are present factors such as drugs or alcohol or speed which have also been components of the offender's negligence.[17] Those factors are not present in this case. As to seriousness, our view accords with the description made by the sentencing judge that the applicant's offence could be placed in the lowest category of this offence though towards the upper end.

34 The applicant in particular calls in aid his youth, his good record, his commitment to work and family and the finding of the judge that he has excellent prospects for rehabilitation. Although his youth may not be given the same mitigatory weight as would be the case for other offending, because of the tendency of young drivers to commit offences of the present kind, it remains an important factor in the sentencing calculus. Given the presence of a very powerful constellation of mitigating factors set out in [12] above, and in particular the character of the appellant and the rehabilitative considerations discussed in R v Mills[18] and Azzopardi v The Queen[19], we have concluded, in light of current sentencing practices, that the sentence of 27 months' detention in a youth justice centre is manifestly excessive. We would grant the applicant leave to appeal, allow the appeal and reduce the period of detention to 18 months.

35 The application for leave to appeal will be granted, the appeal allowed and the applicant re-sentenced to be detained in a youth justice centre for 18 months.

[1] DPP v Scammell (Unreported, County Court of Victoria, Judge Montgomery, 3 December 2014) [2]-[4] ('Reasons').

[8] [2014] VSCA 342 ('Boulton').

[11] See, eg, DPP v Neethling [2009] VSCA 116; (2009) 22 VR 466, 477 [54]-[55].

[14] [2015] VSCA 176.

[16] See, eg, Gorladenchearau v The Queen (2011) 34 VR 149 (Maxwell P, with whom Ashley JA and Ross AJA agreed), and in particular at 153-157 [13]-[21], [24] and [25].

[17] Cf The Queen v Bollen [2014] VSC 651.

[18] (1998) 4 VR 235.

[19] [2011] VSCA 372; (2011) 35 VR 43.