In my view, the Mildura driver, Thomas Towle, who killed six young people should walk free in 6 months time. I say this not because of any sympathy for Towle (I have none) but because he is entitled to have the law applied, regardless of the very emotional circumstances of the case.

Further, he should be bailed immediately pending his appeal.

We are all aware of the terrible tragedy two years near Mildura where six young people were killed and four seriously injured by a lone car driver (Towle). Towle was charged with culpable driving and convicted on lesser offences of dangerous driving by a jury.

Yesterday, Mr Justice Cummins, sentenced Towle to 10 years jail with a minimum of 7 years. Towle has already served just over 2 years and thus will be released in another 5 years. He will appeal.

The above summary will lead any normal person to conclude that 7 years for 6 lives is not nearly enough.

This case is a shocking tragedy but, as often happens with the more extreme cases, it raises some important points of law. I want to discuss these, but before I do, I need to clear the air over a number of matters.

First, this is not a legal lynching. Towle must be sentenced according to the law, not emotion or public or media outcry.

Second, it must be understood that he was acquitted of the much more serious charges of culpable driving (maximum 20 years) and convicted of the significantly lesser charges of dangerous driving causing death (maximum 5 years). If the community is of the view that more serious punishment should be imposed on Towle, then the Victorian DPP should have obtained culpable driving convictions before the jury. This the DPP failed to do. To me, it is inconceivable that any jury could acquit Towle, but that is what happened, largely (I think) because of the brilliance of defence counsel Robert Richter QC who outgunned the prosecution. In any event, the verdict of the jury is final and we must accept it. The problems in this case arise directly from the fact that the DPP was unable to get a conviction in a culpable driving case which most lawyers would think could not be lost by them (the facts are set out in the Cummins J judgment).

Third, multiple road fatalities are common. Drivers are frequently convicted of culpable driving for multiple deaths. They receive substantial sentences because the maximum penalty of 20 years allows the Judge to reflect community disapproval. Towle’s case is almost unique because he is being sentenced for multiple deaths (six) arising from the lesser charge of dangerous driving. So this case cannot be judged by other sentences.

On the other hand, all these legal niceties do not assist the victims and their families or the community who, quite reasonably, expect that Towle should be locked up for a long time. Unfortunately, my view of the law, if proven correct in the Court of Appeal or the High Court, can only make matters much worse. As I have said, as a matter of law I believe he must be released immediately as the two years jail he has already served is as much punishment as the law allows in this case.

The fundamental legal principle that no person can be twice punished for the same conduct will be considered on appeal.

It must be understood that the criminal act of Towle was a single act of very short duration: Cummins J said “Your driving was one, limited, action: three hundred metres of speed, inattention and knowledge. It was not extensive in time or place.”

Every day, most people are guilty of speeding over 300 meters without such terrible consequences. Why, then, should anyone go to jail for doing what we all do? That is a good question. In one sense, there is no moral difference between speeding and missing another car by a centimeter and speeding, hitting the other car and 5 people dyeing. The (criminal) conduct is the same but the consequences are very different.

The answer to this problem is pragmatic: in simple terms, the community has said that if you speed and kill someone you go to jail. The community makes laws against speeding and says that, if you choose to speed, you take your chances as to the consequences.

And this makes sense. But it becomes difficult when there are many deaths arising from the one act. As I have said, the problems here arise because of the acquittal for culpable driving. If Towle had been convicted then the judge could have sentenced him to a more realistic and appropriate sentence (such as 15 years with a minimum of 10 years).

In Victoria, historically there was no such offence as culpable driving. Drivers were charged with manslaughter (20 years). It was perceived that juries were refusing to convict because manslaughter was seen by them as too serious an offence for negligent or drunken driving. Culpable driving (20 years) was introduced to solve this problem. In turn, dangerous driving causing death (5 years, soon to be increased to 10 years) was introduced as a lesser alternative. The sentencing problem of Towle where there were multiple convictions for dangerous driving was never contemplated. There was a gap in the law.

Cummins J was faced with the sentencing on a jury conviction of six counts of dangerous driving causing death and four counts of causing injury, all of which carried a maximum of 5 years jail.

His sentence was 3½ years for each death and either 2 years or one year for the injuries. So far so good. I agree with these numbers.

The problem arises when the question of accumulation of sentences is looked at. In my view, Cummins J (as a matter of law) could not accumulate the sentences because they arose from a single act. Cummins J took a different view and accumulated them to produce a result of 10 years’ jail for which he set a minimum of 7 years. Towle gets the benefit of a 2 years’ reduction for time already served.

In my opinion, Cummins J was correct in assessing the crime(s) as deserving 3½ years. That was the appropriate maximum but he was quite wrong to then accumulate the sentences to make a maximum of 10 years.

I think, as a matter of law (not emotion), the sentences should have been 3½ years as imposed but with no accumulation and a minimum set of 2½ years. Thus Towle would be released in less than 6 months time.

I think Towle has now been punished several times over for one criminal act. I note the Victorian Charter of Human Rights (not in force at the time of the crime) section 26 provides “A person must not be … punished more than once for an offence in respect of which he or she has already been finally convicted”. In any event, I believe that the Charter reflects the Common Law.

Finally, I think the Court of Appeal should grant Towle bail pending appeal because, if he succeeds, he will have served longer than his (new) sentence requires. There is plenty of precedent for appeal bail. Whether he is released remains to be seen. I would sincerely hope that the Court of Appeal would not be influenced by the (understandable) public and media outcry if he was bailed.

I think Oliver Wendell Holmes got it right: “hard cases make bad law”.