No.
64
of
2000
Criminal law - Sentence - Culpable driving causing death and reckless conduct
endangering life - Appellant sentenced on both counts
with order for cumulation
- Whether conviction and punishment on both counts infringes common law
principle of "double jeopardy"
or provisions of s.51 (1) of Interpretation
of Legislation Act 1984.
- The appellant Michael Bekhazi appeals, pursuant to leave
granted, against sentences imposed upon him by the County Court on 22 March
2000. On 16 March 2000 the applicant had pleaded guilty to a presentment
containing two counts:
(a) Count 1: that on 29 April 1999, by the culpable driving of
a motor vehicle, he caused the death of Kathleen Hornidge in that he
drove the
vehicle negligently and whilst under the influence of drugs.
(b) Count 2: that on 29 April 1999, without lawful excuse, he recklessly
engaged in conduct, namely the driving of a motor vehicle,
that placed or may
have placed Vivienne Archdall and Owen Morland in danger of death.
Count 1 alleges an offence against s.318 of the Crimes Act 1958; the
particulars of culpability are those prescribed by s.s.(2)(b) and (d); whilst
count 2 alleges an offence against s.22 of the same Act. Section 318 (1)
creates the indictable offence of causing the death of another person by
culpable driving. Sub-section (2) prescribes four
particulars of "driving
culpably", including the two (namely (b) and (d)) alleged against the
appellant. Section 22 makes it an offence for a person, without lawful
excuse, to "recklessly engage in conduct that places or may place another
person
in danger of death". Before sentence, the appellant admitted a large
number of previous convictions extending over a period of
10 years which in the
main were for offences of theft and burglary but which included convictions for
careless and unlicensed driving
and for possessing drugs of
dependence.
- After hearing a plea in mitigation, the judge sentenced the
appellant on 22 March 2000 as follows:
Count 1 : 6 years 4 months
Count 2 : 2 years 8 months.
His Honour directed that eight months of the sentence imposed on count 2 be
served cumulatively upon the sentence imposed on count
1. The total effective
sentence was therefore one of 7 years. His Honour ordered 5 years of that
sentence to be served before
the appellant became eligible for parole. The
judge further directed that the sentence which he had imposed be served
concurrently
with a sentence which the appellant was then undergoing. All
licences held by the appellant were cancelled and he was disqualified
from
obtaining any further licence for a period of 7 years.
- The appellant initially applied for leave to appeal against the
convictions which had been recorded, but he subsequently abandoned
that
application. His appeal against the sentences imposed is based on four
grounds:
1. That the sentence was in all the circumstances manifestly
excessive;
2. That the judge erred in imposing sentences with respect to both counts on
the presentment, as both offences were constituted
by the same act or
omission;
3. Alternatively, the judge erred in partially cumulating the sentence imposed
on count 2 with the sentence imposed on count 1,
having regard to the nature of
the conduct and principles of totality;
4. The judge erred in equating the appellant's position and culpability to that
of an alcoholic.
The last three of these grounds were added by leave of the Registrar on 26
March 2001. Before turning to the arguments which were
made to this Court in
support of those grounds, it is desirable to refer briefly to the circumstances
in which the offences occurred.
- The events from which the charges arose occurred on the evening
of 29 April 1999. The appellant, who was then aged 28 years, was
driving a
1978 Ford sedan motor vehicle for which a limited permit was in existence
authorizing it to be driven for the purpose of
obtaining a current "roadworthy
certificate" or to drive it to the nearest Vic Roads registration office. On
the day in question
the appellant had a long-standing and deep-seated drug
dependency. On 7 January 1999, he had been convicted of a number of drug
related offences and had been ordered by the Melbourne Magistrates' Court to
perform unpaid community work for a period of 12 months
on condition that he
undergo drug and alcohol assessment and treatment. That order was still in
force when these offences were
committed. On the day of the offences with
which we are concerned, the appellant had been assigned to work under the
supervision
of Keith Mills. When he attended work at 8.30 a.m. Mills noted
that the appellant appeared to be drug affected and "half-asleep".
The
appellant "signed off" at 2.45 p.m. He then went to his car with one Peter
Bakarias and another man and drove to the shopping
plaza at Lalor. Bakarias,
too, noted that the appellant seemed affected by drugs. At about 8.07 p.m.,
the appellant drove his
car in a westerly direction along Speight Street,
Thornbury, towards its intersection with Victoria Road. Speight Street runs
east/west
and Victoria Road north/south. Facing drivers travelling along
Speight Street in the direction in which the appellant was proceeding
was a
"Stop" sign at the Victoria Road intersection, obedience to which required the
appellant to stop and give way to traffic travelling
along Victoria Road.
Although it was dark at the time, the lighting at the intersection was good.
A 60 k.p.h. speed limit applied.
- As the appellant was approaching the intersection, Vivienne
Archdall was driving her car south along Victoria Road approaching the
intersection from the appellant's right. She had with her her 13 year old son
Owen Morland. At or about the same time, the vehicle
driven by Miss Hornidge
was travelling along Victoria Road, also approaching the Speight Street
intersection, but from the opposite
direction to Ms. Archdall's vehicle.
Thus, her vehicle was coming from the left of the appellant's vehicle. Ms.
Archdall realized
before she reached the intersection that the appellant's
vehicle was not going to stop in order to give way. She had to brake and
take
evasive action at the last moment to avoid it. The appellant `s vehicle, at a
speed estimated to be in excess of 100 k.p.h.,
entered the intersection, passed
across the front of Ms. Archdall's vehicle and collided with the driver's side
of Miss Hornidge's
vehicle carrying it up Speight Street in a westerly
direction. Miss Hornidge was killed instantly. The appellant was, to all
appearances, unscathed. When the police came and asked him what had happened,
he replied:
"I hit the brakes - a cat ran across the road. It's an old
car."
It appeared to the police that the appellant was affected by
drugs of some sort. His speech was slow and slurred and the pupils
of his
eyes were small. Breath testing was negative for alcohol. From relevant
available material including the finishing positions
of the respective
vehicles, police experts assessed the appellant's impact speed at approximately
116 k.p.h. When later interviewed
by police, some six hours after the
collision, the appellant still appeared to be drug affected. He told police
that he had been
"on" benzo-diazepines, prescribed to enable him to "get off" a
methadone habit. A urine analysis revealed the presence of a high
level of
benzo-diazepines and a level of morphine so high as to overload the analysing
machine. A blood sample taken at the Austin
Hospital detected amphetamine at
a "low level", methyl-amphetamine at a "very high level", diazepam at a "very
high level", temazepam
at "a medium level", and oxazepam, nitrazepam, morphine
and codeine at "low levels". The evidence was, not surprisingly, that the
levels of benzo-diazapines were consistent with the consumption of huge
quantities of these drugs. All drugs present, it was said,
would seriously
impair the capacity to drive a motor vehicle. The test results were also
consistent with recent introduction or
consumption of heroin and amphetamine.
It was not in issue before the sentencing judge that the appellant was a
chronic drug addict
of long standing. His drug addiction was primarily
heroin-based but included other licit and illicit substances. Dr. Odell from
the Victorian Institute of Forensic Medicine reported that benzo-diazepines are
psycho-active drugs, but that their effect when mixed
with a cocktail of other
drugs is difficult to predict.
- The sentencing judge had before him much material. Some of it
related to the effect which the death of Ms. Hornidge had had upon
members of
her family. Much of it came from family members of the appellant. His Honour
accepted that the appellant came from
a close-knit family of Lebanese origin,
members of which had, over a long period, sought to assist the appellant in
overcoming his
drug addiction. That evidence painted a picture of periodic
attempts by the appellant to wean himself off the drugs; only to relapse
into
further drug addiction associated with anti-social behaviour. In the course
of carefully crafted sentencing remarks, the judge
accepted that the appellant,
when not affected by drugs, was a decent and caring member of a supporting
family. However he also
found that the offences to which the appellant had
pleaded guilty were the result of his "grossly negligent driving ... linked to
[his] state of drug addiction and the effect which it had on [the] ability to
drive a motor vehicle". His Honour compared the appellant
to an alcoholic who
drives under the influence of alcohol and expressed the view:
"You might not have been fully capable at the time of refraining
from using drugs, but I am satisfied you would have been capable
of refraining
from driving a motor vehicle whilst in a drug-affected state."
His Honour concluded that this was a "very bad case of culpable
driving".
- Mr. Shirrefs, who appeared in this Court on behalf of the
appellant, directed most of his submissions towards ground 2. They were
submissions which the appellant's counsel on the plea had not addressed to the
sentencing judge. The submissions raise the vexing
question of "double
jeopardy". Counsel's contention was that the appellant's course of driving
was the gravamen of both the culpable
driving offence charged in count 1 and
"the reckless endangerment of life" offence charged in count 2, and that once
the judge had
sentenced the appellant for the first offence, it was not open to
him to convict or punish the appellant on count 2 for the same
conduct.
Counsel recognized that he could not now challenge the conviction on count 2
because the appellant had pleaded guilty and
had since abandoned his appeal
against conviction. He nevertheless submitted that the conviction and
sentence on count 2 impermissibly
exposed the appellant to "double jeopardy"
because the offence alleged in that count was, in substance, founded upon the
same conduct
as the offence alleged in count 1[1]. The submission relied upon the peculiar characteristics
of the offence described in s.22 of the Crimes Act which, upon counsel's
argument, is not an offence against the person but rather is an offence aimed
at proscribed conduct much in
the same way as the offence of "driving in a
manner dangerous to the public". In the circumstances of this case, he
submitted,
the conduct upon which the appellant had been convicted of the
offence charged in count 2 was "totally subsumed" in the conduct for
which he
had been convicted and punished for the offence described in count 1.
Further, counsel submitted that, for the judge to
punish the appellant for the
s.22 offence, was to punish him twice for the same acts or omissions contrary
to s.51(1) of the Interpretation of Legislation Act 1984. In this
regard, he submitted, the presentment in this case was significantly different
from presentments alleging multiple counts
of culpable driving, where two or
more deaths have arisen out of the one course of driving; and presentments
alleging a count of
culpable driving combined with counts of recklessly or
negligently causing serious injury to some other person arising out of the
same
course of driving. He contended that the counts on such presentments, which
have been often tried and separately punished
by courts in this and other
States[2], invite punishment by reference to the
"result" contemplated by the offence which is charged; and not by reference
only to the conduct
which is the essence of the offence. In contrast to these
cases, Mr. Shirrefs submitted that the offence created by s.22 is an offence
punishable by reference only to the conduct which it describes and does not
require proof of any identifiable person
who is a victim of that conduct.
Because, in this case, the conduct relied upon by the Crown to prove the
offence alleged in count
2 was the same - or substantially the same - conduct
upon which it relied to prove the culpable driving alleged in count 1, the
judge
was, thus, not entitled to separately punish the appellant for the
offence alleged in count 2 because, in doing so, he was punishing
the appellant
for the "same act or omission" contrary to the protection provided to the
appellant by s.51 of the Interpretation of Legislation Act 1984 which,
relevantly, provides that:
"(1) Where an act or omission constitutes an offence under two or
more laws, the offender shall, unless the contrary intention expressly
appears,
be liable to be prosecuted under either or any or all of those laws but shall
not be liable to be punished more than once
for the same act or omission.
(2) In sub-section (1) "law" means -
(a) an Act or provision of an Act;'
(b) a subordinate instrument
or a provision of a subordinate instrument; or
(c) common law."
- The submissions made on behalf of the appellant were
attractively put, but they cannot, in my view, succeed. The offence charged
in count 1 was an offence which depended for its proof upon evidence or
admission of grossly negligent and/or drug induced driving
causing the death of
a particular person; whereas the offence charged in count 2 depended for its
establishment upon evidence of
reckless conduct which placed or may have placed
different persons in danger of death. Each offence has, therefore, distinctly
different elements and each is, in my opinion, an offence against the person.
It is true that the offences were linked in time and
place - at least in this
case - by the same course of driving, but they were not offences constituted by
the same acts or omissions
resulting in harm to the same person. It follows
that I cannot accept the appellant's submission that the offence created by
s.22 of the Crimes Act is established simply by proof of a course of
conduct as might be the offence of "driving in a manner dangerous to the
public".
Rather it requires the proof of reckless conduct which endangers the
life of contemplated persons[3]. The fact that
the danger contemplated by the section has not materialized seems to me, at
least for these purposes, to be immaterial.
In this sense, the charging and
punishment of the appellants on counts 1 and 2 are, in my view, no different
from charging an accused
person with the offence of culpable driving causing
the death of one person and the offence of negligently causing injury to
another
arising out of the same course of driving. Such offences, as I have
said, have been regularly charged and punished in this State
since R. v.
Dean Williamson[4]. In that case the
applicant had been convicted of a count of "culpable driving" causing the death
of person A pursuant to s.318 of the Crimes Act and two counts of
causing grievous bodily injury to victims B and C by negligent driving. It
was contended on behalf of the applicant
that the sentencing judge had been in
error in separately punishing the applicant for the latter two offences because
the episode
of driving "constituted one incident", and that there was only "one
act or omission which had brought about the several results".
The Court
rejected the argument. Pape, J., who delivered the principal judgment of the
Court said (at p.7):
"... We are not able to accept the argument that, in reality, the
only offence committed by the applicant was that of reckless driving.
Nor do
we think that any practice of universal application ought to be laid down as to
the imposition of sentences to run concurrently
with other sentences. Both
s.318 and s.26 of the Crimes Act deal with a particular type of harm
inflicted upon a person. Section 318 is applicable only when death is caused
to another by culpable driving; and s.26 is applicable only where grievous
bodily injury is caused to another by negligence. The two main elements in
the crime constituted
by these sections are first of all culpable driving and
negligent driving and secondly death or grievous bodily injury caused thereby.
They are entirely different offences and in our view punishable as
such."
- Likewise, in this case, it was not the manner and course of
driving which constituted the offences charged against the appellant.
As I
have said the essential elements of those offences were discretely different;
namely gross negligence and/or driving under
the influence of drugs causing
death to victim A; and reckless conduct endangering the lives of victims B and
C. A similar view
appears to have been taken by this Court in the recent case
of R. v. Toombs[5] where the accused had
been charged with and pleaded guilty to (inter alia) one count of culpable
driving causing death of victim
A and three counts of recklessly engaging in
conduct which placed or may have placed victims B, C and D in danger of serious
injury
contrary to s.23 of the Crimes Act. The offences all arose out
of the same course of driving which involved a high speed chase by police of
the vehicle driven by
the applicant; a chase which eventually ended with the
applicant's vehicle colliding with the vehicle driven by victim A. Victims
B
and C were two police officers in the pursuing vehicle and victim D was a
private citizen driving a third vehicle in the vicinity
of the chase.
Although the Court was not asked to consider the argument which has been
advanced to this Court, it nevertheless rejected
an argument that the judge was
in error in cumulating some of the penalty imposed for one of the reckless
endangerment offences upon
the penalty imposed for culpable driving because it
arose out of the same course of driving which caused the death (per O'Bryan,
A.J.A. at [38]).
- Notwithstanding the consistency of approach taken by the
courts in the authorities to which I have referred, Mr. Shirrefs submitted
that, in the particular circumstances of this case, the judge should not have
punished the appellant for the offence charged in count
2 because he was, in
effect, punishing the appellant more than once for "the same act or omission"
contrary to s.51(1) of the Interpretation of Legislation Act 1984, the
proper construction of which, so counsel submits, has received little attention
by this Court or its predecessor in sentencing
appeals since its introduction
in 1984. Counsel submitted that, because the offences charged in counts 1 and
2 were founded upon
the same fleeting course of driving which carried the
appellant's vehicle into the intersection of Speight Street and Victoria Road,
he was being "doubly punished" for the same acts or omissions in contravention
of s.51(1). Counsel sought to assimilate the circumstances of this case to
those which existed in R. v. Sessions[6].
However, in my view, the two cases cannot be compared. In Sessions,
the accused had pleaded guilty to a presentment containing one count of rape
(digital) and one count of recklessly causing serious
injury. The two counts
derived from the one course of conduct in which the accused had thrust his
finger into the vagina of a young
female victim with such force that he had
caused internal damage to the victim. The trial judge had accepted the pleas
of guilty
to the two counts on the basis that the rape was constituted by the
initial penetration and the reckless causing of serious injury
was constituted
by the deeper penetration resulting in the internal damage. The Court quashed
the verdict on count 2 on the basis
that, in the circumstances, it was
unrealistic to regard the conduct as other than the one course of conduct
towards the same victim;
that it amounted to a "rape"; and that the judge was
entitled, in sentencing for the "rape", to take into account the consequences
to the victim. Thus, to convict and punish the applicant twice for the same
act was to infringe the principles of "double jeopardy".
Having referred to
R. v. Hoar[7] (a case where it was
decided that an accused who had been convicted and punished for conspiracy,
could not thereafter be convicted
and punished for a substantive offence
comprising an overt act of the conspiracy), Hayne, J.A. said at
315):
"In my view, no different result should obtain when the counts are
joined on the one presentment. For the reasons I have given earlier,
the
applicant should have been sentenced for the rape on the basis that his sexual
penetration of the child caused the damage which
it did and, if that had been
done, no further punishment should then have been imposed on the other count
and no conviction recorded.
This is not to adopt a view of double jeopardy that one act cannot amount to
more than one offence. It can; and in this case
the applicant's conduct
constituted the offence of rape and the offence of recklessly causing serious
injury. But that is not to
say that the applicant should have been punished
twice for that conduct. ...
But where, as here, the act for which the applicant
was to be sentenced on
count 1 was the same act as he was to be sentenced for on count 2, and there
was no fact or matter that should
be taken into account on one count that would
not be taken into account in sentencing on the other count, it was, in my view,
oppressive
and unfair to punish him twice."
- These comments were made in the context of a case where the
two offences arose from the same conduct perpetrated upon the same victim
and
where, if the accused had been charged only with the offence of rape, as he
should have been, the sentencing judge would have
been entitled to "have regard
to all of the consequences that flowed to the victim from that rape" (per
Hayne, J.A. at 307). However,
the issue which arises on this appeal is a
wider one. Here, what is claimed to be the same "act or omission" has caused
harm to
more than one victim; yet it is contended that the sentencing judge is
precluded from punishing the appellant on a count alleging
the commission of an
offence against discrete victims (count 2) where he has already punished him
for another offence involving an
entirely different victim (count 1). If the
submission is correct, the judge - unlike the judge in Sessions (supra)
- would not, as I see it, be entitled in sentencing the appellant for the
offence alleged in count 1 to have any regard to
the consequences flowing to
the victims of the offence alleged in count 2[8].
- It is not always easy to discern the boundaries of the common
law doctrine of "double jeopardy", or the statutory boundaries of
"double
punishment". They have, perhaps, become even more difficult to discern since
the Parliament in this State enacted s.51 of the Interpretation of
Legislation Act 1984 to replace its predecessor section; namely s.28 of
the Acts Interpretation Act 1958, which had provided
that:
"Where an act or omission constitutes an offence under two or
more Acts, or both under an Act and at common law ... the offender shall,
unless the contrary intention appears, be liable to be prosecuted
under either
or any of those Acts or at common law, but shall not be liable to be
punished twice for the same offence." (emphasis added)
The submission made by appellant's counsel to this Court was
that the protection given to an accused person from "double punishment"
under
s.51 of the Interpretation of Legislation Act 1984 is wider than the
protection given by s.28 of the 1958 Act because the words "shall not be liable
to be punished twice for the same
offence" have been replaced by the words
"shall not be liable to be punished more than once for the same act or
omission". It is
contended that the words of the current legislation focus on
the "act or omission" which is the foundation of the offence rather
than upon
the ingredients of the offence. Thus, so it is submitted, double punishment
is precluded, notwithstanding that the elements
of the offences are different,
if each offence was "founded upon substantially the same
facts".
- I accept that the provisions of s.51(1) of the 1984
legislation are significantly different from the provisions of s.28 of the 1958
legislation. The latter provisions were intended to embody the common law
principles which were focussed on autrefois convict. In other words, a
person was not liable to be punished twice for the same offence[9]. The provisions of s.51 of the 1984
legislation contemplate that a person is not liable to be punished more than
once for "the
same act or omission" constituting more than one offence.
However these provisions will not avail the appellant in this case if,
as I
think, the acts or omissions constituting the offence under s.22 of the
Crimes Act are not the "same acts or omissions" constituting the offence
under s.318 of that Act. It is clear that the "acts or omissions" referred to
in s.51 are not to be equated with the elements or ingredients of the offences
which they comprise. Rather, they are the constituent acts
or omissions which
must be established to prove the relevant offence. It is not sufficient to
establish either the offence prescribed
by s.318 of the Crimes Act or
the offence prescribed by s.22 of that Act to merely prove a course of driving
which can be described either as "grossly negligent" or "reckless". In my
view,
the constituent "acts or omissions", essential for the proof of the
respective offences, will necessarily include the consequences
(namely death or
danger of death) which the sections contemplate must flow to the victims of the
offences created. In Phillips v. Carbone (No.2)[10], a similar view was taken by the Court of Criminal Appeal
(WA) of s.16 of that State's Criminal Code which, in relevant respects,
is cast in the same form as s.51 of the Interpretation of Legislation
Act 1984 (Vic). That was a case where the question was whether an
offender, whose dangerous driving results in an accident causing bodily
harm to
two persons, can be punished twice. The question involved consideration of
whether, in those circumstances, the offender
was being punished twice for the
"same act or omission". The Court found that he was not entitled to the
protection afforded by
s.16 of the Code because he was not being doubly
punished for the same act or omission. The members of the Court were not
entirely ad idem as to the meaning of the words "same act or omission"
which constituted more than one offence. Pidgeon, A.C.J. (at 175-6) was of
the view that the words focussed on "the thing done" as distinct from "the
means of doing it" and that, as the offences charged against
the accused were
offences of "causing bodily harm to another person by driving a motor vehicle
in a manner ... dangerous to the public
...", the "thing done" was the causing
of bodily harm to another person and the driving was the means of doing it.
Similar views
were expressed by Nicholson, J. (see pp.181-2). Ipp, J.
expressed the view that "an act or omission constitutes more than one offence
only if the evidence necessary to support the later charges would have been
sufficient to procure a legal conviction on the first
charge"; and that
because, on the second charge, the identity of the person injured was
different, that test could not be fulfilled
(p.190). It was his Honour's
view, therefore, that s.16 was not intended to "give protection to a person
who, by one physical act or omission causes multiple harm to different persons
or
things". In Sessions (supra at 311-2), Hayne, J.A. referred to the
views expressed by the Court in Phillips v. Carbone (No.2) when
considering the effect of s.51 of the Interpretation of Legislation Act
1984 (Vic) and the impact of the changes made by that section to its
predecessor in the 1958 Act. It was unnecessary for his Honour
to resolve
what was meant by the words "act or omission constituting more than one
offence" because it was clear that, in the case
before him, the charging and
convicting of Sessions of the two offences arising out of the same
conduct perpetrated against the same victim offended against the common law
principles
of "double jeopardy". Eames, A.J.A. (at 323-4) expressed similar
views.
- It is apparent from what I have already said that my view of
the appropriate interpretation of s.51 of the Interpretation of Legislation
Act 1984 (Vic.) closely conforms to the view expressed by Ipp, J. in
Phillips v. Carbone (No.2), supra, as to the proper interpretation of
s.16 of the Criminal Code (W.A.). For the reasons to which I have
adverted in [13], I am satisfied that the judge in this case was, consistently
with s.51 of the
1984 Act, entitled to punish the appellant for each of the
offences to which he pleaded guilty. The offences described by ss. 22 and 318
of the Crimes Act are different, not only in their elements, but also in
the acts or omissions which constitute them. Each contemplates "harm" flowing
to identifiable "victims". In other words, they are not the same offence
either in law or in fact[11] and,
accordingly, to punish the appellant for each of them does not infringe the
protection afforded by s.51 merely because each offence derives from a common
course of driving. So far as I am aware, it has never been doubted that, if
the
act of detonating a bomb kills or injures multiple victims, the accused can
be charged with and punished for as many offences as
there are victims[12]. Likewise, if a course of driving a motor
vehicle causes the death of one person and endangers the life of another, the
fact of
the death of one victim and the endangerment of the life of the other
must be part of the relevant "acts or omissions" constituting
the separate
"laws" because the consequences cannot be divorced from the separate obligation
owed by the accused to the separate
victims[13]. In the eyes of the criminal law, it is the existence
of the separate obligations owed to the several victims of the one criminal
act
which, in part, defines the acts or omissions constituting the different
offences arising from that act. It is that concept
which, I think, underlies
the "fundamental distinction", referred to by Ipp, J. in Phillips v. Carbone
(No.2), supra at 190, between a single act that contravenes more than one
"law", and a single act that harms more than one person. The
rationale for
that distinction has been eloquently described in the reasons given by Vincent,
J.A. in his judgment in this appeal,
which reasons I have had the advantage of
reading and with which I agree.
- It follows from what I have said that I would reject ground 2
of the appeal grounds. That is not to say, however, that the "commonality"
of
the circumstances from which each offence derived could be ignored by the trial
judge in determining how each of the offences
was to be "justly punished"[14]. Although the appellant fell to be
punished for each of counts 1 and 2, the judge was bound to consider the
"totality" of the punishment
to be inflicted. Under cover of ground 3,
appellant's counsel submitted that, in the circumstances of this case, the
judge was
in error, and offended principles of "totality", by cumulating 8
months of the sentence imposed on count 2 upon the sentence which
he imposed on
count 1. In the course of his sentencing reasons, the judge gave careful
consideration to the principles governing
his sentencing discretion, and in
particular to whether there should be some cumulation of the sentence imposed
on count 2 upon the
sentence imposed on count 1. In concluding that there
"should be some cumulation" I can detect no error in his approach or the
reasons upon which he based his conclusion. Nor, in my view, was the amount
of cumulation so ordered excessive, so as to produce
a total sentence which
offended principles of totality or which was disproportionate to the gravity of
the offending. Accordingly,
I would reject ground 3.
- It was next submitted, under cover of ground 4, that the judge
erred by equating the position of the appellant, and his culpability,
to that
of a chronic alcoholic. His Honour said:
"I am satisfied that your grossly negligent driving was linked to
your state of drug intoxication and the effect that it had on your
ability to
drive a motor vehicle. At the time you were using illicit drugs and
prescription drugs. You have a long history of
drug dependency and drug use,
and as I have said have a severe and deep-seated drug problem. You could
therefore be compared to
an alcoholic who drives when under the influence of
alcohol, a situation considered by Tadgell, J. in a decision in R. v.
Currie (1987) 33 A.Crim.R. 7 in relation to an alcoholic.
You might not have been fully capable at the time of refraining from using
drugs, but I am satisfied
that you would have been capable of refraining from
driving a motor vehicle whilst in a drug affected state. For some time now
public messages have been published in various forms of the media of the
dangers of driving when consuming drugs. As Dr. Odell
points out, the
prescribing information from manufacturers caution against driving when taking
these drugs.
In my view there can
be no clearer and more tragic example of the
consequences of drug consumption combined with the driving of a motor vehicle
than this
case. In my view this is a very bad case of culpable driving
causing death and warrants a severe sentence. Indeed, your driving
could be
described as bordering on the maniacal."
His Honour returned to this topic later in his reasons. He
said:
"The fact that you are drug dependent, as pointed out by Tadgell,
J. in Currie, in relation to the position of an alcoholic, does not
reduce the importance of general deterrence in this case."
- It was submitted on behalf of the appellant that the judge was
in error in equating the appellant to the position of the chronic
alcoholic
with whom the court was concerned in Currie's case, and in respect of
whom Tadgell, J. had said[15]:
"Now, the fact that the applicant was at the time an alcoholic, and
known to himself to be one possessed of a severe alcoholic problem,
is, in my
opinion, something to be taken into account in assessing the culpability, that
is to say aggravating the culpability, of
what he did."
It was counsel's submission that, because there was
insufficient evidence before the judge of the effect upon the appellant of his
long standing addiction and the effect upon his mind of the "cocktail" of drugs
which he had ingested in the days leading to the
driving, the comparison
between him and Currie was inappropriate for the purposes of aggravating
the appellant's culpability.
- For my own part, I think that the submission overstates the
learned judge's sentencing remarks. The appellant had pleaded guilty
to a
count of culpable driving founded upon drug intoxication and grossly negligent
driving. He did not contend, and could not
have contended, that he was - as a
consequence of his drug intoxication - deprived of his capacity to choose
whether he should drive
or not. Rather, the evidence indicated that the
appellant well recognised his drug addiction. He had been seeking to overcome
it for years. Notwithstanding, he had been driving his car before the day in
question, and for a considerable period of that day.
This was evidence from
which his Honour was entitled to infer, as he did, that although the appellant
might not have been able
to resist drugs, he was possessed of sufficient
insight to realize that he was a liability to others if he drove. His
Honour's
remarks were made in the context of determining whether the sentencing
purpose of general deterrence should be moderated as a consequence
of the
appellant's drug addiction. He did not say, nor does the context of his
remarks suggest, that he regarded the appellant's
moral culpability as being
aggravated by reason of that addiction. In the light of the evidence before
him, his Honour was entitled
to conclude that this was a bad example of the
offence of culpable driving and that principles of deterrence should play their
part
in fixing an appropriate penalty. There is nothing about the sentences
which his Honour fixed which suggest to me
that they were disproportionate to the gravity of the offences
to which the appellant had pleaded, or that they were rendered inappropriate
by
reason of the reference which he had made to the case of Currie. I
would accordingly reject ground 4. Ground 1 - namely that the sentences were
manifestly excessive - was not strenuously argued.
In my opinion -
particularly having regard to the maximum sentence of 20 years which the
legislature has fixed for the offence
charged in count 1 and the penalties
which are regularly imposed for it in this State - the sentences imposed by his
Honour were
within the range available to him for the offences which he was
called upon to consider. There is nothing about those sentences,
nor the
total effective sentence, which would lead me to conclude that they are
manifestly excessive.
- I would, for the reasons stated, dismiss the appeal.
CHARLES, J.A.:
- I agree that this appeal should be dismissed for the reasons
given by the President. I also agree with the additional observations
made by
Vincent, J.A.
VINCENT, J.A.:
- I agree that this appeal should be dismissed and for the
reasons advanced by the learned President. With some hesitation I would
like
to add a few comments of my own concerning the expression "same acts or
omissions".
- Although seldom so expressed, a distinction is recognized in
the criminal law between actions and acts. An action in this sense
is simply a
manifestation of some other process or application of force. An act, on the
other hand, derives its character from the
physical, perceptual and legal
contexts within which an action occurs.
- The detonation of a bomb in a shopping centre may, from the
perspective of a
particular perpetrator, involve a single action. However, as
far as the law is concerned, the individual has committed a separate
criminal
act against each of his victims. Through the actor's engagement in the one
activity, he has breached what the law sensibly
regards as quite distinct and
identifiable obligations to the community and to each of those encompassed by
the offence concerned
and for which he is separately accountable. The one
action may involve the commission of a number of such breaches and offences,
each of which is regarded as involving a separate act. So viewed, the same
conduct or act, although I would prefer to employ the
term action, may attract
criminal responsibility as murder, attempted murder, or one of a number of
other lesser offences according
to the consequences for the respective victims
or potential victims.
- It is not simply that the action undertaken has had a number
of consequences or has affected more than one victim, although this
underlying
reality provides the most powerful rationale of the attribution of
responsibility in respect of each victim, but rather
that the criminal law
represents and reflects, on behalf of the community, significant aspects of the
relationships and duties which
are regarded as essential and separately owed to
the community and to each member. Returning to the example given above, it is
not
regarded as the same act to kill A as it is to kill B, although their
deaths may result from the same action. Nor, in the present
context, was the
action which resulted in the death of Miss Hornidge to be regarded as subsuming
the offence and acts of placing
Ms Archdall and Mr Morland in danger of
death.
[1] cf. Wemyss v.
Hopkins (1875) L.R. 10 Q.B. 378; Falkner v. Barba [1971] VicRp 39; [1971] V.R.
332.
[2] See, for example, R. v. Williamson
(unreported, CCA (Vic.) 5 June 1974; R. v. Yalim [2000] VSCA 64; R.
v. Guariglia [2001] VSCA 27; R. v. Musson [1997] 1 V.R. 656; R.
v. David Taylor [1999] VSCA 206; Phillips v. Carbone (No.2) (1992)
10 W.A.R. 169, particularly at 187 per Ipp. J.)
[3] cf. R. v. Nuri [1990] VicRp 55; (1989) 49 A.Crim.R.
253 at 255.
[4] Unreported, CCA(Vic.), 5 June 1974.
[5] [2001] VSCA 144.
[6] [1998] 2 V.R. 304.
[7] [1981] HCA 67; (1981) 148 C.L.R. 32.
[8] cf. R. v. Newman & Turnbull
[1997] 1 V.R. 146.
[9] cf. R. v. Thomas [1950] 1 K.B. 26;
R. v. Sessions, supra at 311.
[10] (1992) 10 W.A.R. 169.
[11] cf. Connelly v. D.P.P. [1964]
A.C. 1254 at 1339-40 per Lord Devlin.
[12] cf. Philllips v. Carbone (No.2),
supra, at 190 per Ipp, J.; see also R. v. Demirian [1989] V.R.97.
[13] cf. R. v. True [1999] VSCA 8 at
[19] per Tadgell, J.A.
[14] cf. Pearce v. R. (1998) 194
C.L.R. 610 at 623-4.
[15] R. v. Currie, supra at 9.
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