SUPREME COURT OF VICTORIACOURT OF APPEAL S APCR 2012 0181 ANDREI RAWIRI Appellant V THE QUEEN Respondent --JUDGES REDLICH, WEINBERG AND COGHLAN JJA WHERE HELD MELBOURNE DATE OF HEARING 7 March 2013 DATE OF JUDGMENT 29 May 2013 MEDIUM NEUTRAL CITATION [2013] VSCA 130 JUDGMENT APPEALED FROM DPP v Rawiri (Unreported, County Court of Victoria, Judge Tinney, 27 July 2012 --- CRIMINAL LAW — Appeal — Sentence — Dangerous driving causing injury — Total effective sentence of 3 Years 9 months’ imprisonment — Non-parole period of 22 months —Erroneously sentenced on basis that negligence was an element of the offence — Appeal allowed — Total effective sentence of 3 years — Nonparole period of 15 months fixed — King v The Queen (2012) 245 CLR 588 applied. --- APPEARANCES: Counsel Solicitors For the Appellant Mr J McLoughlin Victoria Legal Aid For the Crown Mr B F Kissane Mr C Hyland, Solicitor for Public Prosecutions ________________________________________________________________________________ Court of Appeal 459 Lonsdale Street, Melbourne, Vic, 3000 3 and 4 – Order that all Victorian licences and/or permits held by Rawiri v The Queen 11 days 1 6 years’ imprisonment with a non-parole period of 4 years 2 REDLICH JA WEINBERG JA COGHLAN JA . 2. 1 WEINBERG JA: 2 I agree with Coghlan JA. he was sentenced on 27 July 2012 as follows: 1 1 CHARGE ON INDICTMENT 1 2 OFFENCE MAXIMUM 2 3 SENTEN CE 4 CUMULA TION 2 1 1 1 2 1 3 1 4 1 SUMMARY CHARGE Dangerous driving causing 3 5 years 4 30 serious injury [Crimes Act 1958 months [Crimes Act 1958 (Vic) s 319(1A)] (Vic) s 319(1A)] 2 Dangerous driving causing 3 5 years 4 18 serious injury [Crimes Act 1958 months [Crimes Act 1958 (Vic) s 319(1A)] (Vic) s 319(1A)] 2 Dangerous driving causing 3 5 years serious injury [Crimes Act 1958 4 2 years [Crimes Act 1958 (Vic) s 319(1A)] (Vic) s 319(1A)] 2 Dangerous driving causing 3 5 years serious injury [Crimes Act 1958 4 2 years [Crimes Act 1958 (Vic) s 319(1A)] (Vic) s 319(1A)] 1 Dangerous 2 2 years driving [Road [Road Safety Act 3 10 Safety Act 19861986 (Vic) smonths (Vic) s 64(1)] 64(2)] 5 Base 5 3 months 5 5 months 5 5 months 4 2 months 1 Total Effective Sentence: 1 3 years and 9 months’ imprisonment 1 Non-Parole Period: 1 22 months 1 Pre-sentence Detention Declared: 1 1 6AAA Statement: 1 1 Other orders: Charges 1. and a single uplifted summary charge of dangerous driving. 1 COGHLAN JA: 3 On 26 April 2012. Following a plea.REDLICH JA: 1 For the reasons given by Coghlan JA. the appellant was sentenced on an inappropriate basis and should be re-sentenced as his Honour proposes. the appellant pleaded guilty to four charges of dangerous driving causing serious injury. nor was he speeding.before ultimately crashing head on into a car being driven by Mr Attwood. 4 On 23 November 2012. 6 In the Registrar’s Neutral Summary the circumstances of the offending are set out as follows: 1 The charges arose out of an incident which occurred on 14 October 2007. 3 and 4 – The court found that this offence was committed whilst under the influence of a drug which contributed to this offence. Tate JA granted leave to appeal on the following grounds: 1 2 1. The sentencing judge erred by imposing a period of disqualification directed to commence upon release from custody. he was driving along a straight section of road in a five-seater car with his wife as passenger. Mr McLoughlin. The learned sentencing Judge erred in importing considerations of negligence in sentencing the appellant. the individual sentences. The learned sentencing Judge erred in treating the overloading of the appellant’s vehicle and the fact of some passengers being unrestrained as either aggravating the offence of dangerous driving causing serious injury or as an element of the dangerousness of the driving. 4. He drifted onto the wrong side of the road again . He was not affected by alcohol. 2 It was conceded by the appellant that his conduct in driving whilst in a state that caused him to fall asleep whilst in control of a vehicle. 3 and 4. who was travelling on the correct side of the road at about 90 or 95 kilometres an hour within the 100 kilometre per hour speed limit. the non-parole period and the order for cumulation are each manifestly excessive. He was the victim of charge 1. 5 At the hearing before this court. then straightened up. 1 Charges 1. The weather and visibility were good. Mr Attwood was seriously injured. At about 11 am on that date. who appeared on behalf of the appellant. who was not wearing a seatbelt. by losing control of his vehicle and causing it to cross the white line in the middle of the Rawiri v The Queen 3 REDLICH JA WEINBERG JA COGHLAN JA . many of whom were not wearing seatbelts. whether at the expiration of this sentence or upon release pursuant to an order from the parole board. Three of the appellant’s family members suffered serious injury and were victims of charges 2. The applicant had taken ecstasy at some time prior to the incident.the offender be cancelled and that the offender be disqualified from obtaining any such licence or permit for a period of 18 months commencing from the date of first release. or alternatively. made application to add two additional grounds: 1 2 3. The total effective sentence. The appellant drifted onto the wrong side of the road. 1 Summary Charge – With conviction order that all Victorian licences and/or permits held by the offender be cancelled and that the offender be disqualified from obtaining any such licence or permit for a period of 6 months from 27 July 2012.striking several cars and causing others to swerve to avoid impact . 2. and five of his six children (some of whom were infants) in the car. 2. Transcript of Plea Proceedings. He ultimately entered pleas of guilty to the charges in the table above. the appellant was committed for trial in the County Court. Shortly after the interview. County Court of Victoria.1 7 It is useful to add the following details also taken from the summary. In about November 2007. the appellant moved from Victoria to the ACT.road. constituted dangerous driving. 1 The appellant himself suffered serious injuries and was taken to hospital. DPP (Vic) v Rawiri (Judge Tinney. in December 2010. He was interviewed by police on 10 October 2008 but had no recollection of how the crash occurred. 1 See Appellant’s Written Case para [12]. the appellant was charged with a large number of offences and it was apparently intended that he be tried in the Magistrates’ Court. He was ultimately discharged from hospital three days later. Rawiri v The Queen 4 REDLICH JA WEINBERG JA COGHLAN JA . He provided a sample of blood for analysis. however the matter went to a contested committal and. which revealed MDMA (ecstasy). 16 July 2012) (‘Plea’) 27. Ultimately. on the previous evening. and not one based on a breach of duty of care. namely that the appellant had driven onto the wrong side of the road. So too had been his general behaviour leading up to the collision. in similar circumstances. 4 (2009) 25 VR 694.2 For present purposes the importance of that case is that the majority decided that negligence is not an element of dangerous driving. which is a statutory offence. at a later stage. and the fact that the passengers were inadequately protected. 2 (2012) 245 CLR 588 3 Ibid 605 [38] (French CJ. there was a real question as to whether or not he was asleep at the moment his car veered into the wrong lane. consumed ecstasy. Rawiri v The Queen 5 REDLICH JA WEINBERG JA COGHLAN JA . 14 Although the prosecutor put the case on an alternative basis. 5 A case based on negligence. without the appellant having behaved in an untoward manner. It seemed to be conceded on the plea that the appellant did not know that taking ecstasy might have caused him. 12 Apart from the moment that his car veered into the wrong lane. to become suddenly drowsy. it was said that the appellant had failed to ensure that all of the passengers in his vehicle were properly secured. 11 In addition. Indeed. Kiefel and Crennan JJ). 5 Jiminez v The Queen (1992) 173 CLR 572. The particular danger that formed the basis of this offence was his having set out to drive at a stage when there was a realistic risk that he might fall asleep because of the rebound effect of the ecstasy which he had previously consumed.4 9 It should be said from the outset that the manner in which the prosecution had framed its case of dangerous driving causing serious injury was somewhat artificial. would focus upon the proposition that a person should not have driven because he or she was aware that it was likely that he or she might fall asleep. I would also regard the appellant’s failure to ensure that his passengers were properly secured as an aspect of the risk that he wrongfully assumed. If so. he would not have been ‘driving’. as previously noted. 10 On the facts. the appellant had ‘driven’ onto the wrong side of the road. there were insufficient seatbelts available to enable all of the passengers to be safely secured. 3 The Court specifically overruled R v De Montero (‘De Montero’). but rather focuses on the manner of driving that gives rise to the risk of harm that is potentially dangerous to others. It does not seem to have been the case that the appellant had shown any other signs of drowsiness until almost immediately before the collision. For example. the family had stopped at a service station not very long before the events in question. 13 The appellant fell to be sentenced for dangerous driving. the appellant’s driving was unremarkable.8 The appellant was sentenced after the High Court had handed down its decision in King v The Queen. It was suggested that he had done so because he had. that before they can convict of dangerous driving. 27 July 2012). That in determining whether the manner of driving was ‘dangerous’ the test is an objective one. 2 You were driving a vehicle on a straight section of road.15 In De Montero. your family. to constitute such driving. potentially dangerous to others who. That the accused was driving in a manner that involved a serious breach of the proper management or control of his vehicle on the roadway such as to merit criminal punishment. 6 De Montero (2009) 25 VR 694. He was right. 8 We have replaced the phrase ‘real and appreciable’ which appears in some cases with the word ‘considerable’ which we think will be more readily understood by the jury. of itself. a section of road where there should simply be no accidents. and not just speculatively. 3 You had a duty in relation to your own passengers. Judge Tinney. That the breach must be so serious as to be in reality. 7 A momentary lack of attention would not be sufficient. as well as a duty to the other road users. Redlich and Weinberg JJA) (citations in original). That the manner of driving created a considerable risk of serious injury or death to members of the public. and also gave rise to the risk identified in paras 3 and 4. this Court had framed a series of propositions applicable to the crime of dangerous driving causing death:6 1 It must be made clear to the jury. as members of the public. may at the time be upon or in the vicinity of the roadway. 5 5. 716 [80] (Ashley. 10 (2009) 25 VR 694. But we see no difference of substance between the two concepts. Would a reasonable driver 9 in the circumstances of the accused have realised that the manner of driving involved a breach of the kind discussed in paras 1 and 2. 9 We have used the ‘reasonable person’ rather than ‘ordinary person’ because it is employed in the case of culpable driving: see R v De’Zilwa. they must be satisfied: 1 1. 8 4 4. 7 It must involve conduct more blameworthy than a mere lack of reasonable care that could render a driver liable to damages in civil law. You were significantly affected by ecstasy and there were a number of people in your car.10 16 It seems to me that his Honour had in mind De Montero when he said a number of things in his sentencing remarks. The following paragraphs demonstrate his approach:11 1 Your counsel did not suggest that this offence could be viewed as at the lowest level of dangerous driving causing serious injury offences. 11 DPP (Vic) v Rawiri (Unreported. That the risk so created significantly exceeded that which is ordinarily associated with being on or near a highway. [134] – [142] Rawiri v The Queen 6 REDLICH JA WEINBERG JA COGHLAN JA . The word ‘real’ adds nothing if the risk is considerable. greatly exceeding the number that should have been present. 2 2. Redlich and Weinberg JJA). 3 3. in appropriate language. County Court of Victoria. 716 [80] (Ashley. the very serious injuries to Mr Attwood. in particular. 18 I would grant leave to add ground 3. You have crossed entirely onto the wrong side of the road. 5 You were involved in a failure to properly manage or control your vehicle. or response to some difficult driving predicament. You should not have been at the wheel. nor was it at the lowest. 6 But yours was not some momentary inattention. a case which no longer represents good law and was not good law at the time of sentence. driving at pace towards vehicles travelling at pace in a 100 km zone. 22 It should be noted that the consequences of the dangerous driving were very serious. I accept the findings that his Honour arrived at in passing sentence. I would include as an aspect of ‘dangerousness’ the way in which he failed to ensure that his passengers were safely secured in the vehicle. See the cases of Neethling. the appellant was sentenced on an erroneous basis. 8 It is clear from the authorities in this area that I am entitled to take into account the variations in the culpability of the person responsible for the commission of the crime. with what undoubtedly was a high risk of death or serious injury been occasioned in those circumstances. You were significantly affected by drugs. Your driving was dangerous and though your culpability clearly was not at the highest level. 23 I would re-sentence the appellant as follows: 1 1 CHARGE ON Rawiri v The Queen 2 3 OFFENCE 7 MAXIMUM 4 SENTENC 5 CUMULA REDLICH JA WEINBERG JA COGHLAN JA . 20 The appellant therefore falls to be sentenced on the basis that he drove his vehicle at a time when it was objectively likely that he would fall asleep. You should not have even been behind the wheel in your state. Hence the plea to dangerous driving causing serious injury. Clearly enough you were driving in a manner involving such a serious breach of the proper management or control of your car. 7 You were entirely in the wrong lane. then gone back to the wrong side again. gone back to the correct side. 9 The dangerousness was brought about by your driving in the condition you were in. and it created a real risk of death or serious injury. So much again is clear from your plea. 21 Apart from the matters adverted to above. 17 His Honour’s language was plainly the language of De Montero. occupying the lane reserved for oncoming traffic. 19 It would also follow that having regard to the passages set out above. as to be deserving of criminal punishment. Jansen and Oates. These matters cannot be disregarded.4 The offence of dangerous driving causing serious injury is undoubtedly a serious offence. There is some strength in the argument that when dealing with periods of disqualification. 25 I am satisfied that the public interest would best be served by a period of disqualification of 18 months on each charge and on the summary offence. I intend that this period of disqualification would enable the appellant to be able to drive some six months after the earliest possible date of release on parole.INDICTMENT E TION 2 1 1 1 2 1 3 1 4 1 1 SUMMARY CHARGE 1 1 Dangerou s driving causing 3 5 years serious injury 4 24 [Crimes Act 1958 [Crimes Act months (Vic) s 319(1A)] 1958 (Vic) s 319(1A)] 2 Dangerou s driving causing 3 5 years serious injury 4 18 [Crimes Act 1958 [Crimes Act months (Vic) s 319(1A)] 1958 (Vic) s 319(1A)] 2 Dangerou s driving causing 3 5 years serious injury 4 18 [Crimes Act 1958 [Crimes Act months (Vic) s 319(1A)] 1958 (Vic) s 319(1A)] 2 Dangerou s driving causing 3 5 years serious injury 4 18 [Crimes Act 1958 [Crimes Act months (Vic) s 319(1A)] 1958 (Vic) s 319(1A)] 1 2 3 1 Dangerou 2 2 years [Road s driving [Road 3 6 Safety Act 1986 (Vic) Safety Act 1986 months s 64(2)] (Vic) s 64(1)] Total Effective Sentence: 1 Non-Parole Period: 1 1 1 6AAA 5 Base 5 3 months 5 4 months 5 4 months 4 4 1 month 3 years 15 months 4 years’ imprisonment with a non-parole period of 2 years 3 months. On the other hand...- Rawiri v The Queen 8 REDLICH JA WEINBERG JA COGHLAN JA . 24 I agree with the sentencing judge that the period of disqualification from obtaining a licence should be for a minimum of 18 months. it is important to recognise the value of being able to drive as part of the rehabilitative process. That period should commence from 31 October 2012. such periods might be rendered nugatory if they are allowed to expire during the course of a term of imprisonment. 26 ..