Term of Imprisonment for Dangerous Driving in Dispute

DPP v Ehalape-Gamage [2022] VCC 554 (29 April 2022)

The jury found the accused guilty of two charges of dangerous driving death and one charge of dangerous driving causing serious injury. 

The counsel for the accused argued that the range of factors relied upon on the plea in combination amounted to substantial and compelling circumstances which are exceptional and rare, justifying the Court not making an order for imprisonment which is not combined with a CCO.  The Court, in determining the term of Imprisonment, relied upon the Sentencing Act (Cth).

Facts:

On 9 December 2021 a jury found you guilty of two charges of dangerous driving death and one charge of dangerous driving causing serious injury.  These offences occurred on 7 April 2019 when you were driving home to Mildura, from Swan Hill.  You, your wife, your mother, and your two children had attended a festival in Swan Hill the day before.  You had stayed the night in Swan Hill, and the material before me indicated that you were sufficiently rested.

As you were approaching Robinvale another car was travelling behind you driven by Mr McFarlane.  He thought you were driving at a reasonable pace, so he drove behind you at a distance of around 50 metres, travelling just below the posted speed limit of 100 kph.  He said that as far as he observed you were driving normally.  Approaching Robinvale on the Murray Valley Highway there are a series of crests.  Due to these crests, visibility ahead can be blocked by the rises and dips in the road.

As you drove down the incline of one of these crests your vehicle moved wholly onto the wrong side of the road.  Mr McFarlane’s evidence was that he did not see your car move onto the wrong side of the road, although you were driving closer to the centre line than he was.  In view of the distance that he was behind your vehicle, and the similar rate of travel, the period of time during which your car was out of his view was only a few seconds.

Mary Williams was driving in the opposite direction to you at the speed limit.  As she drove over one of the crests she saw your car in her lane, very close to hers.  She reacted by starting to steer to her right and then the impact between your vehicles happened.  Both cars reacted to the impact with Mrs Williams’ car coming to rest across the middle of the road close to the impact site and yours close by, partially off the left of the road.  

You do not recall the collision, and you received legal advice about your prospects of being found not guilty.

Issue:

Whether or not the combination of circumstances before the Court are substantial, compelling, exceptional and rare so as to justify departure from Parliament’s intention as to the type of sentence which should be imposed for the offence of dangerous driving causing death later than the ordinary burden or risks of imprisonment. 

Applicable law:

Sentencing Act 1991 (Vic) - provides that when sentencing on a category 2 offence the Court must impose a sentence of imprisonment which is not combined with a CCO, unless one of the exceptions applies. 

R v Verdins [2007] VSCA 102 - relied upon in holding that your mental state is relevant to the kind of sentence to be imposed and the conditions in which it should be served, but note that this is not a factor which will overwhelm other sentencing principles.

Farmer v The Queen [2020] VSCA 140 - held that in many cases, given the type of offences within category 2, a term of imprisonment will be inevitable. 

Pan v The Queen [2020] VSCA 42 - provide some assistance as to current sentencing practice, but do not set upper or lower limits on the range of sentences which might be appropriate in any particular case. 

Analysis:

The prosecution case was that for unknown reasons your car was on the wrong side of the road, and that whilst Mrs Williams’ car was slightly over the centre line at the point of impact, this was because she was trying to avoid your car.  The physical evidence placed your vehicle wholly in the wrong lane at least 14.8 metres before the point of impact, and with the left front of your car impacting the right front of Ms Williams’ car just into what ought to have been your lane of travel.   Mr McFarlane’s evidence was that from his perspective, which allowed him to only see the roof of Mrs Williams’ car, the oncoming vehicle appeared to be somewhat across the centre line of the highway.  His estimate of the distance between your and Mrs Williams’ car when he made this observation was 16-20 meters, and he said that the collision occurred shortly thereafter.

Mr McFarlane’s evidence is difficult to correlate to the physical evidence and Mr McFarlane’s other evidence most notably that he did not see your vehicle in the wrong lane at all.  It is consistent with Mrs Williams’ evidence that she, on seeing your car in her lane, began to veer to the right to avoid you.  The evidence shows that in the space of the 2 or so seconds between Mr McFarlane losing sight of your car, and the collision, your car moved wholly into the wrong lane of the two-lane highway.  Your culpability in failing to stay on the correct side of the road was above the lowest level of culpability for this offence.  The absence of aggravating factors means that your culpability was not in the mid or high range.

Conclusion:

The Court ordered a total effective sentence of 3 years imprisonment, with a non-parole period of 18 months.  Driver’s licence cancellation and disqualification for a period of 18 months is likewise ordered.