Supreme Court of Victoria 23 March 2016
Summary of Judgment
DPP v Borg [2016] VSCA 53
23 March 2016
The Court of Appeal today dismissed an appeal by the Director of Public Prosecutions against the sentence imposed on two charges of dangerous driving causing death and two charges of dangerous driving causing serious injury.
The charges arose out of a road accident in Gippsland, which caused the death of a mother and her five year old daughter. Her nine year old son suffered terrible injuries, resulting in paraplegia, internal injuries and a traumatic brain injury. Their father was also seriously injured.
The judge found that, in the few minutes leading up to the collision, the driver who caused the accident (the respondent to the appeal) had either ‘zoned out’ or become sufficiently sleepy as to require him to pull over. His vehicle had been observed crossing the white lines on two occasions. Instead of stopping, he proceeded to drive.
The respondent was originally charged with the more serious offences of culpable driving causing death. He had indicated from the outset that he would plead guilty to the lesser charges. It was not, however, until almost two years later that the prosecution accepted a plea to those charges.
The offending was very grave. The judge noted the absolute devastation which it had wreaked upon the family and accepted that it would ordinarily require the imposition of an immediate custodial sentence.
The judge found, however, that the respondent’s moral culpability was ‘of a low level’. The basis of this finding was the joint opinion of three expert medical practitioners and a psychologist that he had ‘severe cognitive impairments’, which would ‘impact on his ability to monitor what was happening and to react appropriately if there was danger’.
The opinion of the experts was that these impairments were likely to have contributed to the accident whether the respondent was tired or not.
The judge also noted that, had the prosecution promptly accepted the offered plea to the lesser offences (which was, in his Honour’s view, what should have occurred), the respondent would have been eligible for a Youth Justice Centre order. The prosecution’s delay had robbed him of that opportunity.
In the unusual circumstances of the case, and having regard to the respondent’s low moral culpability, the judge imposed a Community Correction Order for five years, with conditions requiring him to perform 500 hours of community work.
On the appeal, the Court concluded that, notwithstanding the unusual circumstances, a non-custodial sentence could not be justified, having regard to the objective gravity of the offending and its catastrophic consequences. The Court said:
In our view, it was not reasonably open to the judge in this case to have imposed a CCO without any period of incarceration. The objective gravity of this offending was simply too great to allow for such a disposition. We acknowledge the great care with which the judge approached the sentencing task, and make full allowance for the breadth of the discretion afforded to a sentencing judge. But we have concluded that this was a case which demanded at least some period of actual imprisonment.
Of course, what made his Honour’s task particularly difficult is that this was an offence of high objective gravity but the offender’s moral culpability was ‘of a low order’. Ultimately, however, even accepting all of the mitigating factors that were present, the respondent must take a measure of responsibility for his actions. He had clear and repeated warning of the fact that he was not properly in control of his vehicle. He chose nevertheless to continue driving. His decision to do so may have been affected by his reduced capacity to react appropriately, brought about by reason of his cognitive disorder, but that does not absolve him of responsibility for what was, in the circumstances, highly negligent behaviour, resulting in tragic consequences.
The respondent’s conduct merited severe condemnation. His low moral culpability allowed for some measure of leniency, but not to the point of imposing what, for an offence of this gravity, was a wholly inadequate sentence.
The Court of Appeal dismissed the appeal in the exercise of the ‘residual discretion’ which the Court has on a Director’s appeal. One factor of great significance was that the respondent had been at liberty for some considerable time and had been complying with the conditions of the non-custodial order.
The decisive factor, the Court said, was the unfairness which the prosecution’s delay had caused, by denying the respondent the opportunity to be eligible for a Youth Justice Centre order. In conclusion, the Court said:
First, our conclusion should not be taken as suggesting in any way that the taking of two lives, and the effective destruction of another, could legitimately be regarded as ‘low order offending’. To the contrary, absent the mitigating factors present here, nothing less than a term of imprisonment of some years’ duration would have been appropriate.
Secondly, the Court is fully conscious of the fact that nothing we say will allay the anger and hurt of the members of the Hutchings family, or undo the devastation which this offending caused. Our task, which is sometimes a particularly difficult one, is to apply the law as we understand it to the facts of the particular case before us. We have set out the relevant legal principles, and the manner in which we are obliged to apply them, but we are acutely conscious that there are only losers in cases such as this.
NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.
Summary of Judgment – DPP v Borg [2016] VSCA 53 Page 3 of 3