Intentionally Causing Serious Injury

Area of Law – Sentencing

An Article about Culpable driving

Culpable Driving
Culpable driving is one of the more serious charges that you can face. It is often charged at the same time as dangerous driving causing death which has a much lower penalty.

Our aim on representing you in one of these matters is to either successfully defend the charges or to get you the best sentence if you are pleading guilty.

Clients of ours have successfully defended charges of culpable driving eg one was the driver of a car that struck a pedestrian who died, another was a truck driver whose truck was struck by a train on a level crossing and two people were killed.

These charges are often ones that involve complex analysis of the physical evidence left after the accident to determine guilt or innocence. Often the interpretation of the Police witnesses is open for challenge under questioning. It is also the sort of matter where you may well need to hire experts to have an objective assessment of the evidence.

Below are some issues that arise in these matters that have arisen in legal cases:

Criminality increases with level of alcohol
As a general rule the criminality of culpable driving of a motor vehicle which causes the death of someone whilst the driver is under the influence of alcohol increases with the level of alcohol detected in the blood above the legal limit

R v Caldwell [2004] VCSA 40

Courts view of this charge
Culpable driving causing death is now viewed by the courts as a species of involuntary manslaughter and carries the same maximum penalty as the offence of manslaughter. It did not always do so, but the maximum applicable penalty has been raised on several occasions, as the terrible and irreversible consequences of its commission have become the subject of increasing concern and public awareness in this society.

There have been continuing endeavours made through highly publicised campaigns to ensure that motorists remain conscious of the need to exercise proper care on the roads, and to pay due regard to the safety of others. The risks involved in driving at excessive speeds or whilst affected by alcohol or drugs have been emphasised time and time again. Few, if any, I believe could claim to be unaware of these constantly repeated messages. The assumption can be safely made that the respondent was not one of that tiny group. As Tadgell, J.A. pointed out in R v. Schole, the offence of culpable driving created by s.318 of the Crimes Act 1958 is essentially one against public safety and its purpose is to deter, by criminal sanction, the unnecessary and avoidable killing by motor vehicle drivers.

Deterrence being its principal objective, it follows that general deterrence and, where appropriate, specific deterrence must assume great significance as sentencing considerations in such cases, even to the extent of substantially reducing the weight that can be given to factors that would otherwise operate powerfully in mitigation.

DPP v Church [2005] VSCA 8 (2 February 2005)

Cumulation in culpable driving cases
The courts have … recognised that the circumstances of culpable driving will vary and courts should take account of the individual circumstances of each case. With respect to cumulation, it is important that each death be adequately recognised, in both the overall sentence and the non-parole period.

This was in relation to two deaths where the court imposed a total effective sentence of nine years and nine months’ imprisonment. non-parole period of five years’ and six months.

R v Frankin [2009] VSCA 77

General considerations
His Honour based his approach upon what this court said in R v Scott about the community’s attitude to grossly negligent driving behaviour and that, because of the need to reflect that attitude in sentencing offenders, those who commit the offence of culpable driving must expect substantial punishment involving immediate incarceration. His Honour was right to do so. No doubt Scott was a very different case to this one, and it is true as Mr Carter submitted that the gravity of offending in Scott was of an altogether different order. But the relevance of Scott for present purposes, like the earlier authorities upon which it was based, is that it makes plain that a sentencing judge is to proceed in any case of culpable driving upon the basis that the community will not tolerate the taking of human life by acts of gross negligence and it expects that those who commit such offences will be sternly punished. In the circumstances of this case, the judge was plainly right to conclude that requirements of general deterrence dictated a substantial gaol sentence.

Finally, while it goes without saying that an offence of culpable driving is as much a tragedy for the culprit and his family as it is for the deceased and his loved ones, and while it cannot be denied that the appellant is still only relatively young, and may now have seen the errors of his ways (and that no amount of imprisonment or other punishment can put the pieces back together again), the fact remains that Kane is dead. No doubt it was of considerable importance that the deceased’s family were forgiving. Their response is admirable, and it is worthy of the highest praise. But it needs also to be borne steadily in mind that the principal victim in this case is the deceased. No amount of remorse or forgiveness can change that. The offence of which the appellant stands convicted is a species of involuntary manslaughter, and in my judgment it needs to be treated as such.

R v Campbell [2005] VSCA 225 (22 September 2005)

Species of involuntary manslaughter
The offence of which the appellant stands convicted is a species of involuntary manslaughter, and in my judgment it needs to be treated as such.

R v O’Connor [1999] VSCA 55 at [19], per Winneke, P.


Date: 09/01/2009