Court of Appeal (Vic)|2011-11-25|Before: Mr P, Buchanan JA

Shields v The Queen [2011] VSCA 386 (25 November 2011)

The Queen v Shields (Unreported, County Court of Victoria, Judge Duckett, 14 December 2009)

1 I agree with Whelan AJA, for the reasons his Honour has stated, that the appeal should be allowed and the appellant re-sentenced as his Honour proposes.

2 The appellant pleaded guilty before a judge in the County Court to one count of culpable driving causing death, one count of negligently causing serious injury and one summary offence of having a blood alcohol concentration in excess of the prescribed limit. He was sentenced on 14 December 2009 to a total effective sentence of 13 years' imprisonment with a non-parole period of 10 years.

3 On 20 August 2010 the appellant was granted leave to appeal that sentence pursuant to s 315 of the Criminal Procedure Act 2009.

4 The grounds of appeal set out in the full statement of grounds are as follows:

Ground 1:

The learned judge erred in imposing sentence for the summary offence of exceeding the prescribed concentration of alcohol in circumstances where the behaviour giving rise to that offence was totally subsumed by the behaviour giving rise to Counts 1 and 2, thereby resulting in double punishment.

Ground 2:

The learned judge erred in his approach to the appellant's pleas of guilty, in particular he erred:

(a) in reducing the weight to be accorded to the pleas of guilty on account of his view that 'there appear[ed] to be little prospect of [the appellant's] successfully defending [the] charges';

(b) in allowing a manifestly inadequate discount on sentence on account of the pleas of guilty.

Ground 3:

The individual sentences, the extent of cumulation directed, the resulting total effective sentence and the non-parole period are manifestly excessive and in breach of totality.

5 The appellant was born on 30 May 1977 and was aged 31 years at the time of the commission of the offences.

6 The offences occurred at about 7.15 pm on 24 December 2008. The appellant and his girlfriend had drunk four bottles of wine throughout the day, and had taken LSD, at the appellant's apartment. They decided to buy more LSD. They got into the girlfriend's unregistered car and the appellant drove along Beach Road in Mentone. The area has a 60 km/h speed limit. Two cyclists, Sean Brindle and his brother Alun, were riding in the same direction as the appellant, in single file along the left hand side of the road. The appellant struck them at a minimum speed of 77 km/h. The impact caused Sean Brindle to be thrown 51 metres and Alun Brindle to be thrown 68 metres.

7 The appellant stopped his car 580 metres down the road from the point of impact. When questioned by the police, he said he did not see the cyclists.

8 A preliminary breath test at the scene indicated a blood alcohol concentration of 0.234 per cent. At 9.17 pm an evidentiary breath test was conducted which indicated a blood alcohol concentration of 0.221 per cent.

9 Sean Brindle was 35 years old and lived in Perth with his wife of seven months, who was pregnant at the time with their first child. Following the collision he was admitted to hospital with severe head and other injuries. He underwent surgery. Three days later he died after his family accepted medical advice that his life support should be ended. He was the eldest of three brothers in a close and supportive family. He was training to be an ambulance paramedic.

10 Alun Brindle was 32 years old at the time of the collision and had been married for six years. He is a lieutenant in the Royal Australian Navy and has a Masters' Degree in aeronautical engineering. He also suffered a traumatic brain injury. He had post-traumatic amnesia for 70 days, an indication of very severe traumatic brain damage. His right calf, right knee and left shoulder required specialised treatment. It is not clear whether he will ever be able to return to all aspects of his previous work, and it is likely that some of his physical and cognitive deficits will be permanent.

11 The appellant was sentenced to 9 months' imprisonment (all to be served concurrently with other sentences) on the summary offence of exceeding the prescribed concentration of alcohol.

12 The Crown conceded that there had been double punishment and that the decision of this Court in R v Audino[1] is applicable. In the circumstances, if a conviction was to be recorded, no sentence ought to have been imposed on this count. In view of the conclusion I have reached on the manifest excess ground, it is unnecessary to address the consequences of that conclusion in relation to the sentences on other offences.

13 Again, in view of the conclusion I have reached on the manifest excess ground it is unnecessary to address this ground, save to say that I refer to the observations I made in Sherna v The Queen.[2]

14 It was submitted on behalf of the appellant that the individual sentences, the extent of cumulation directed, the resulting total effective sentence and the non-parole period are manifestly excessive and in breach of totality, particularly when allowance is made for the appellant's pleas of guilty at the earliest opportunity; his genuine remorse; the comparatively low driving speed at the time of the accident; the psychological malaise and major depressive episode that afflicted him at the time of offending; his charitable works in India; his attempts at rehabilitation whilst in custody; his limited criminal history, including the fact that he had never served a gaol sentence before; and current sentencing practices.

15 The appellant was sentenced to 10 years' imprisonment on count 1, culpable driving causing the death of Sean Brindle; and five years' imprisonment on count 2, negligently causing serious injury to Alun Brindle. Three years of the sentence on count 2 were directed to be served cumulatively on the sentence on count 1, resulting in a total effective sentence of 13 years. A non-parole period of 10 years was fixed.

16 Counsel for the appellant submitted that the ten year sentence imposed for the culpable driving offence stood like a 'beacon' above all others and that it was well outside current sentencing practice for the offence, as indicated by the published sentencing statistics. It was further argued that the five year sentence for the negligently causing serious injury offence was half of the applicable maximum penalty which, it was submitted, is an extremely high proportion of the maximum penalty when regard is had to all the circumstances.

17 The issue is whether the particular sentences or the total effective sentence are 'wholly outside the range of sentencing options available'.[3]

18 In my opinion, the total effective sentence is outside the range. It is often said that the issue of whether a sentence is manifestly excessive admits of little room for meaningful argument. A manifestly excessive sentence ought to be obvious.[4] It seems to me that, when regard is had to current sentencing practice, it is obvious here in relation to the total effective sentence.

19 This Court has recently reiterated the need for caution in reaching conclusions on sentencing issues by reference to what are said to be comparable cases, and has also reiterated the limitations which exist in relation to the use of statistics.[5] But this is a case where a consideration of other cases and of the published statistics compellingly confirms that the total effective sentence is outside the range of sentencing options available. Annexed to this judgment are brief summaries of a number of other cases where high sentences were imposed or considered by the Court of Appeal in not dissimilar circumstances to those present here. All are lower than the total effective sentence imposed here. I also refer to the most recently published sentencing statistics compiled by the Sentencing Advisory Council in relation to the offence of culpable driving causing death (Sentencing Snapshot No 11, May 2011), and in particular to tables 10, 11 and 13 and to footnotes 10, 11 and 13. In each of those tables the sentence which stands out, alone and above all the rest, is the appellant's sentence here.

20 The total effective sentence is manifestly excessive. As the sentencing discretion is reopened, it is unnecessary to address the individual sentences.

21 I turn then to the re-sentencing of the appellant.

22 The appellant is the only child of parents who each have another child from a previous relationship. He was introduced to alcohol at an early age. His schooling was disrupted. He attended many different schools. He was expelled from some and it was decided he should leave others. He eventually left school after completing Year 11 at the age of 18. For a time, he worked in predominantly unskilled jobs. From the age of 16 he has abused illegal drugs. He has also abused prescription medicines. He is an alcoholic. Attempts made to address his drug and alcohol abuse since 2000 have failed. His general practitioner, in a letter tendered on the plea, says he has been through 'lots of detox programs' and has received psychiatric treatment, but that he has not been reliable in attendance. One positive aspect of his life was some charity work he undertook for a short period in India. In November 2008 he was diagnosed as having bi-polar affective disorder, although a consultant psychiatrist whose report was tendered on the plea, Dr Danny Sullivan, questioned that diagnosis. For five years prior to these offences, his parents had provided him with an apartment. This was an arrangement which they wished to bring to an end. His long term general practitioner describes him as a likeable but sad and pathetic young man, who has lots of good intentions but who, like many addicts, struggles to follow through.

23 In arriving at the appellant's sentence, the sentencing judge set out the applicable maximum penalties and the matters raised in mitigation. He took note of the appellant's pleas of guilty at the earliest opportunity and stated that this entitled the appellant to a reduction in sentence. He had regard to the remorse evidenced by letters from the appellant tendered on the plea and stated that he accepted that the appellant's remorse was genuine. I adopt what the sentencing judge said on those matters.

24 Given the appellant's history of drug and alcohol abuse, his prospects of rehabilitation are not good. Both general and specific deterrence are important factors here.

25 It was submitted on the appeal that the appellant has what was said to be a limited criminal history. Emphasis was placed on the fact that the appellant has never before served a gaol sentence.

26 The appellant has had seven prior court appearances. Three of those appearances involved driving offences. In July 2000 the appellant was convicted by a traffic infringement notice for the offence of driving a motor vehicle whilst having a blood alcohol content exceeding the prescribed limit. He was fined, his licence was cancelled, and he was disqualified from obtaining a licence for a period of one month. In July 2003 he was convicted at the Frankston Magistrates' Court of offences of driving with a blood alcohol content exceeding the prescribed limit, being in possession of a drug of dependence, and using a drug of dependence. He was again fined, his driver's licence was cancelled and he was disqualified from obtaining a licence for a period of 16 months. In April 2007 he was convicted at the Frankston Magistrates' Court of the offences of driving a motor vehicle at a speed dangerous to the public and driving an unregistered motor vehicle. He was fined, his driver's licence was cancelled, and he was disqualified from obtaining a licence for 18 months.

27 In the context of the offences for which he is to be re-sentenced, his prior history is not 'limited'. It is true that one encounters worse histories, but his is not good.

28 It was submitted on behalf of the appellant that the speed involved here was 'comparatively low.'

29 Expert evidence established that at the time of impact the appellant's vehicle was travelling at a minimum of 77 km/h. The speed limit was 60 km/h. The appellant in his record of interview, and his girlfriend in her statement to police, suggested he was travelling at the speed limit. A witness who observed the appellant as he passed the Mentone Hotel, approximately 210 metres past the point of collision, said he was then travelling 'nowhere near' 60 km/h. He estimated the appellant's speed at that point as being 90 to 100, and maybe 120 km/h. I do not discount the possibility he increased his speed after the impact.

30 Matters adverse to an offender can only be taken into account where they are established beyond reasonable doubt. Matters in favour of an offender can only be taken into account where they are established on the balance of probabilities.[6] I am satisfied beyond reasonable doubt that at the point of impact the appellant was travelling at no less than 77 km/h. I am not satisfied on the balance of probabilities that he was going no faster than that. That speed is lower than is seen in some other cases. In that sense it might be said to be 'comparatively low'. When compared to the legal limit, it is not low.

31 The sentencing judge set out in some detail the devastating effect of the appellant's conduct in driving a car whilst both intoxicated and under the influence of illegal drugs. I adopt what he said in that respect. It is no exaggeration to say that his deplorable irresponsibility has devastated many lives, not just the life which he destroyed and the life he very significantly impaired.

32 I would allow the appeal and re-sentence the appellant as follows.

33 On count 1, I would impose a sentence of 8 years' imprisonment.

34 On count 2, I would impose a sentence of 4 years' imprisonment.

36 I would order that two years of the sentence imposed on count 2 be cumulative on the sentence imposed on count 1 making a total effective sentence of 10 years' imprisonment. I would impose a non-parole period of 7 years.

37 A declaration of the pre-sentence detention would need to be made.

38 Under s 6AAA of the Sentencing Act 1991 I would state that the sentence I would have imposed if he had not pleaded guilty is a total effective sentence of 12 years' imprisonment with a non-parole period of 10 years.

39 I have had the advantage of reading in draft the reasons for judgment of Whelan AJA. I agree with his Honour for the reasons he gives that the appeal should be allowed. I agree with the orders that his Honour proposes.

40 His Honour has found, and I agree, that this is a case where a consideration of other cases and of the published statistics compellingly confirms that the total effective sentence is outside the range of sentencing options available.

41 The High Court of Australia and this Court have determined that past sentencing patterns are of particular relevance in determining whether or not a sentence is manifestly excessive.[7] In Hili v The Queen[8] the majority, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, said that Simpson J in DPP (Cth) v De La Rosa[9] accurately identified the proper use in sentencing of information about

sentences that have been passed in other cases. The majority said:[10]

As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'.

42 The High Court of Australia has also held that sentencing should be systematically fair, and that it involves, amongst other things, reasonable consistency.[11] The obligation to achieve reasonable consistency involves a consideration of past sentencing practice and this provides a reason why past sentences 'stand as a yardstick for sentencing judges against which to examine a proposed sentence.'[12]

43 Where an accused pleads guilty, as in this case, the principle of consistency has particular relevance. As a matter of fairness, it must be assumed the appellant's decision to plead guilty was based on an assessment of the likely penalty that would be imposed on him for the offences, and that this would have been based on current sentencing practices.[13]

44 In Hudson v The Queen[14] this Court said that '[b]y facilitating the identification of the range, similar types of case serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.'

45 The requirement to have regard to current sentencing practice and consistency in sentencing has been fully examined by this Court in Hassan v The Queen.[15] I cannot usefully add anything further other than to refer to and respectfully adopt that decision.

46 I have added these remarks as I expect the family of the victims of the appellant's appalling driving may feel sorely done by. Nevertheless, despite the terrible losses they have suffered, the appeal has been allowed taking into account these well established principles that seek to uphold the 'underlying value of equality under the law.'[16]

In R v Franklin,[17] the offender pleaded guilty to two counts of culpable driving causing death and two counts of negligently causing serious injury. He was 28 years' old when he struck four pedestrians, two of whom died, after engaging in driving in what was described as a 'hoon' manner. The offender had a blood alcohol reading of between 0.117 per cent and 0.182 per cent. He had no significant prior convictions. He was sentenced to a total effective sentence of 9 years 9 months' imprisonment, with a non-parole period of 5 years 6 months (upon re-sentence by the Court of Appeal).
In Brayshaw v R,[18] the offender was 34 years' old when he crashed his vehicle, killing one of his passengers and severely injuring another. At the time of the accident, the offender was under the influence of methylamphetamine and the vehicle was travelling at 122 km/h in a 70km/h zone. The offender had prior convictions for drink driving and other traffic offences. He pleaded guilty to one count of culpable driving causing death and one count of negligently causing serious injury and was sentenced to a total effective sentence of 9 years' imprisonment with a non-parole period of 6 years 6 months (an appeal was dismissed).
In R v Williamson,[19] the offender was 21 years' old when he crashed his vehicle, killing one of his passengers and badly injuring another. At the time of the accident, the offender's vehicle was travelling at in excess of 170 km/h and the offender's blood alcohol concentration was between 0.143 per cent and 0.176 per cent. The offender's licence had previously been suspended for six months when he was convicted of speeding, and he had twice been convicted of driving whilst his licence was suspended. The offender pleaded guilty to one count of culpable driving causing death, one count of negligently causing serious injury and a summary offence of exceeding the prescribed concentration of alcohol. He was sentenced to a total effective sentence of 9 years' imprisonment with a non-parole period of 6 years and 6 months (an appeal was dismissed).
In DPP v Solomon,[20] the offender was 37 years' old when, having driven erratically and run a red light, she hit a median strip, careered out of control across the road and collided with another vehicle, killing its two occupants. A breath test of the offender shortly after the collision showed her to have a blood alcohol concentration of 0.168 per cent, and drug tests revealed she had also used cannabis. The offender admitted nine prior convictions, the most recent of which was for driving a motor vehicle while her licence was cancelled. She pleaded guilty to two counts of culpable driving causing death and was sentenced to a total effective sentence of 9 years' imprisonment with a non-parole period of 6 years (upon re-sentence by the Court of Appeal).
In R v Ioane,[21] the offender was 27 years' old when, while travelling at a speed of between 120 and 140 km/h in an 80 km/h zone, he ran a red light and collided with another vehicle, killing two of its occupants and seriously injuring two others. It was estimated that the offender's blood alcohol concentration at the time of the collision was between 0.198 per cent and 0.225 per cent. The offender admitted 13 prior convictions, including two for exceeding the blood alcohol limit, two for careless driving and two for exceeding the speed limit. The offender pleaded guilty to two counts of culpable driving, one count of reckless conduct endangering life, two counts of negligently causing serious injury, one summary count of driving while suspended and one summary count of having a blood alcohol level in excess of the prescribed concentration. He was sentenced to a total effective sentence of 12 years' imprisonment with a non-parole period of 9 years (upon re-sentence by the Court of Appeal).

[3] R v Boaza [1999] VSCA 123, [42] (Winneke P).

[4] Hanks v The Queen [2011] VSCA 7, [22].

[5] Felicite v The Queen [2011] VSCA 274, [25]-[27].

[6] R v Storey [1998] 1 VR 359, 369; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 281.

[7] Hili v The Queen [2010] HCA 45; Hudson v The Queen [2010] VSCA 332; Hasan v The Queen [2010] VSCA 352; MC v The Queen [2011] VSCA 2; and Sibanda v The Queen [2011] VSCA 285.

[9] [2010] NSWCCA 194, [303]-[305].

[10] Hili v The Queen [2010] HCA 45, [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.)

[11] Hili v The Queen [2010] HCA 45, [46] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) approving Gleeson CJ in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 591.

[12] Hili v The Queen [2010] HCA 45, [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) approving Simpson J in DPP (Cth) v De La Rosa [2010] NSWCCA 194, [304].

[13] DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 549 [69] (Maxwell P, Redlich JA and Robson AJA); Hasan v The Queen [2010] VSCA 352, [43] (Maxwell P, Redlich and Harper JJA); Sibanda v The Queen [2011] VSCA 285 (Sifris AJA with whom Nettle and Neave JJA agreed).

[14] [2010] VSCA 332, [27]-[29] (Ashley, Redlich and Harper JJA).

[15] [2010] VSCA 352 (Maxwell P, Redlich and Harper JJA).

[16] Hudson v The Queen [2010] VSCA 332, [27]-[29] (Ashley, Redlich and Harper JJA).

Shields v The Queen [2011] VSCA 386

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Judgment (74 paragraphs)

Shields v The Queen [2011] VSCA 386 (25 November 2011)

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