SUPREME COURT OF VICTORIA

COURT 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

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.
1

WEINBERG JA:
2 I agree with Coghlan JA.

COGHLAN JA:
3 On 26 April 2012, the appellant pleaded guilty to four charges of
dangerous driving causing serious injury, and a single uplifted summary
charge of dangerous driving. Following a plea, he was sentenced on 27
July 2012 as follows:

1
1

CHARGE ON
INDICTMENT

OFFENCE

MAXIMUM

SENTEN
CE

CUMULA
TION

2
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)]

Base

3
months

5
months

5
months

2
months

Total Effective Sentence:

3 years and 9 months imprisonment

Non-Parole Period:

22 months

Pre-sentence Detention Declared: 1

6AAA Statement:

1
1

Other orders:
Charges 1, 2, 3 and 4 Order that all Victorian licences and/or permits held by

Rawiri v The Queen

11 days

6 years imprisonment with a non-parole

period of 4 years

REDLICH JA
WEINBERG JA
COGHLAN JA

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,
whether at the expiration of this sentence or upon release pursuant to an order from the
parole board.

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.

Charges 1, 2, 3 and 4 The court found that this offence was committed whilst
under the influence of a drug which contributed to this offence.

4 On 23 November 2012, Tate JA granted leave to appeal on the following

grounds:
1
2

1.
The total effective sentence, the individual sentences,
the non-parole period and the order for cumulation are each
manifestly excessive.
2.
The sentencing judge erred by imposing a period of
disqualification directed to commence upon release from
custody.

5 At the hearing before this court, Mr McLoughlin, who appeared on behalf

of the appellant, made application to add two additional grounds:
1
2

3.
The learned sentencing Judge erred in importing
considerations of negligence in sentencing the appellant.
4.
The learned sentencing Judge erred in treating the
overloading of the appellants 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.

6 In the Registrars 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. The
applicant had taken ecstasy at some time prior to the incident. At about 11 am
on that date, he was driving along a straight section of road in a five-seater car
with his wife as passenger, who was not wearing a seatbelt, and five of his six
children (some of whom were infants) in the car, many of whom were not
wearing seatbelts. He was not affected by alcohol, nor was he speeding. The
weather and visibility were good. The appellant drifted onto the wrong side of
the road, then straightened up. He drifted onto the wrong side of the road again
- striking several cars and causing others to swerve to avoid impact - before
ultimately crashing head on into a car being driven by Mr Attwood, 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. Mr Attwood was seriously injured.
He was the victim of charge 1. Three of the appellants family members suffered
serious injury and were victims of charges 2, 3 and 4.

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, or alternatively, by losing
control of his vehicle and causing it to cross the white line in the middle of the

Rawiri v The Queen

REDLICH JA
WEINBERG JA
COGHLAN JA

road, constituted dangerous driving.1

7 It is useful to add the following details also taken from the summary.
1

The appellant himself suffered serious injuries and was taken to hospital. He
provided a sample of blood for analysis, which revealed MDMA (ecstasy). He was
ultimately discharged from hospital three days later. In about November 2007,
the appellant moved from Victoria to the ACT. He was interviewed by police on
10 October 2008 but had no recollection of how the crash occurred. Shortly after
the interview, the appellant was charged with a large number of offences and it
was apparently intended that he be tried in the Magistrates Court. Ultimately,
however the matter went to a contested committal and, in December 2010, the
appellant was committed for trial in the County Court. He ultimately entered
pleas of guilty to the charges in the table above.

1 See Appellants Written Case para [12]; Transcript of Plea Proceedings, DPP (Vic) v Rawiri
(Judge Tinney, County Court of Victoria, 16 July 2012) (Plea) 27.

Rawiri v The Queen

REDLICH JA
WEINBERG JA
COGHLAN JA

8 The appellant was sentenced after the High Court had handed down its
decision in King v The Queen.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, and not one based on a
breach of duty of care, but rather focuses on the manner of driving that
gives rise to the risk of harm that is potentially dangerous to others. 3 The
Court specifically overruled R v De Montero (De Montero).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.
10 On the facts, the appellant had driven onto the wrong side of the road. It
was suggested that he had done so because he had, on the previous
evening, consumed ecstasy. It seemed to be conceded on the plea that
the appellant did not know that taking ecstasy might have caused him, at
a later stage, to become suddenly drowsy. 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.
11 In addition, it was said that the appellant had failed to ensure that all of
the passengers in his vehicle were properly secured.
Indeed, as
previously noted, there were insufficient seatbelts available to enable all
of the passengers to be safely secured.
12 Apart from the moment that his car veered into the wrong lane, and the
fact that the passengers were inadequately protected, the appellants
driving was unremarkable. So too had been his general behaviour leading
up to the collision. For example, the family had stopped at a service
station not very long before the events in question, without the appellant
having behaved in an untoward manner.
13 The appellant fell to be sentenced for dangerous driving. 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. I would also regard the appellants failure to ensure that his
passengers were properly secured as an aspect of the risk that he
wrongfully assumed.
14 Although the prosecutor put the case on an alternative basis, namely that
the appellant had driven onto the wrong side of the road, there was a real
question as to whether or not he was asleep at the moment his car veered
into the wrong lane. If so, he would not have been driving. 5 A case
based on negligence, in similar circumstances, 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.
2 (2012) 245 CLR 588
3 Ibid 605 [38] (French CJ, Kiefel and Crennan JJ).
4 (2009) 25 VR 694.
5 Jiminez v The Queen (1992) 173 CLR 572.
Rawiri v The Queen

REDLICH JA
WEINBERG JA
COGHLAN JA

15 In De Montero, 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, in appropriate language, that before they can
convict of dangerous driving, they must be satisfied:
1

1.
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. 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.

2.
That the breach must be so serious as to be in reality, and not
just speculatively, potentially dangerous to others who, as members
of the public, may at the time be upon or in the vicinity of the
roadway.

3.
That the manner of driving created a considerable risk of
serious injury or death to members of the public. 8

4.
That the risk so created significantly exceeded that which is
ordinarily associated with being on or near a highway.

5.
That in determining whether the manner of driving was
dangerous the test is an objective one. 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,
and also gave rise to the risk identified in paras 3 and 4.10

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. He was right.

You were driving a vehicle on a straight section of road, a section of road where
there should simply be no accidents. You were significantly affected by ecstasy
and there were a number of people in your car, greatly exceeding the number
that should have been present.

You had a duty in relation to your own passengers; your family, as well as
a duty to the other road users.

6 De Montero (2009) 25 VR 694, 716 [80] (Ashley, Redlich and Weinberg JJA).
7 A momentary lack of attention would not be sufficient, of itself, to constitute such driving.
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. The word real
adds nothing if the risk is considerable.
9 We have used the reasonable person rather than ordinary person because it is employed in
the case of culpable driving: see R v DeZilwa. But we see no difference of substance between
the two concepts.
10 (2009) 25 VR 694, 716 [80] (Ashley, Redlich and Weinberg JJA) (citations in original).
11 DPP (Vic) v Rawiri (Unreported, Judge Tinney, County Court of Victoria, 27 July 2012), [134]
[142]

Rawiri v The Queen

REDLICH JA
WEINBERG JA
COGHLAN JA

The offence of dangerous driving causing serious injury is undoubtedly

a serious offence. Clearly enough you were driving in a manner involving such a
serious breach of the proper management or control of your car, as to be
deserving of criminal punishment. Hence the plea to dangerous driving causing
serious injury.

You were involved in a failure to properly manage or control your vehicle, and it
created a real risk of death or serious injury. So much again is clear from your
plea.

But yours was not some momentary inattention, or response to some difficult
driving predicament. You should not have even been behind the wheel in your
state. You have crossed entirely onto the wrong side of the road, gone back to
the correct side, then gone back to the wrong side again.

You were entirely in the wrong lane, occupying the lane reserved for oncoming
traffic, driving at pace towards vehicles travelling at pace in a 100 km zone, with
what undoubtedly was a high risk of death or serious injury been occasioned in
those circumstances.

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. See the cases of Neethling, Jansen and Oates.

The dangerousness was brought about by your driving in the condition you were
in. You were significantly affected by drugs. You should not have been at the
wheel. Your driving was dangerous and though your culpability clearly was not at
the highest level, nor was it at the lowest.

17 His Honours language was plainly the language of De Montero, a case

which no longer represents good law and was not good law at the time of
sentence.
18 I would grant leave to add ground 3.
19 It would also follow that having regard to the passages set out above, the
appellant was sentenced on an erroneous basis.
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. 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.
21 Apart from the matters adverted to above, I accept the findings that his
Honour arrived at in passing sentence.
22 It should be noted that the consequences of the dangerous driving were
very serious. These matters cannot be disregarded, in particular, the very
serious injuries to Mr Attwood.
23 I would re-sentence the appellant as follows:
1
1

CHARGE ON

Rawiri v The Queen

OFFENCE

MAXIMUM

SENTENC

CUMULA

REDLICH JA
WEINBERG JA
COGHLAN JA

INDICTMENT

TION

2
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:

Non-Parole Period:

1
1

6AAA

Base

3
months

4
months

4
months
4

month

3 years

15 months
4 years imprisonment with a non-parole
period of 2 years 3 months.

24 I agree with the sentencing judge that the period of disqualification from
obtaining a licence should be for a minimum of 18 months. There is some
strength in the argument that when dealing with periods of
disqualification, such periods might be rendered nugatory if they are
allowed to expire during the course of a term of imprisonment. On the
other hand, it is important to recognise the value of being able to drive as
part of the rehabilitative process.
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. That period should commence from 31 October 2012. 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.
26 - - - - -

Rawiri v The Queen

REDLICH JA
WEINBERG JA
COGHLAN JA