Byast v The Queen [2021] VSCA 344

1 This appeal principally concerns the sentence of 6 years' imprisonment imposed on the appellant for negligently causing serious injury by driving ('NCSI by driving'). As will appear, the appellant's offence was very serious indeed. He drove at 'grossly excessive' speed along a narrow street before colliding with the victim's vehicle. The victim suffered very serious injuries. The judge found that the ongoing consequences for her and her family have been 'devastating'.

2 The grounds of appeal raised two distinct issues. The first was whether the judge was right to regard this case as engaging the principles enunciated by this Court in Harrison v The Queen[1] and, in particular, what the Court there said about the need for 'uplift' in sentencing for upper end examples of NCSI by driving.

3 The second issue concerned the appellant's mental state at the time of the offence. The judge accepted that he suffered from bipolar affective disorder and that, at the time of the collision, he was in a manic state attributable to that disorder. Her Honour found, however, that the mitigating effect of that impairment of mental functioning was reduced by reason of the fact that the appellant had been non-compliant with his prescribed medication and, moreover, had been persistently taking drugs which he knew had an adverse effect on his mental state.

4 In our respectful opinion, her Honour's approach was entirely correct. This was, very plainly, a case in the upper range of seriousness and what was said in Harrison was directly applicable, as recent decisions of this Court have confirmed.[2] As with the other 'uplift' decisions of this Court, the continuing authority of Harrison is unaffected by anything said by the High Court in Director of Public Prosecutions v Dalgliesh (a pseudonym).[3] Defence counsel properly made that concession on the plea.

5 As to the appellant's mental state, the Verdins[4] principles rest on the notion that an impairment of mental functioning may so distort a person's decision-making, or affect their ability to exercise appropriate self-control, that the resulting criminal conduct is - to that extent - to be regarded as involuntary. Where that is established, the sentencing court may view the offender's moral culpability and the need for specific (and general) deterrence as reduced.

6 The position is different, however, if the person has received effective treatment for the relevant condition but chooses to desist from that treatment and/or to take illicit substances, resulting in the reactivation of the condition. In those circumstances, the resulting criminal conduct may be regarded as the result of the person's voluntary choices, and not as the involuntary consequence of the condition.[5]

7 In this case, the appellant's moral culpability for his appalling driving was very high. The judge was prepared to accept that the manic condition warranted 'some reduction' in his moral culpability. That being so, and giving proper weight to other mitigating factors, the sentence of 6 years' imprisonment was well within range for this very serious offending. The appeal must therefore be dismissed.

8 Following a plea hearing, the appellant was sentenced as set out below:

Assaulting an emergency worker on duty[6]

Possessing a drug of dependence (cannabis)[9]

Possessing a drug of dependence (methylenedioxy-amphetamine)[10]

Behaving in a riotous manner in a public place[11]

Driving while exceeding the prescribed quantity of drugs[12]

6 years and 11 months' imprisonment and fined $1,200.

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

6AAA Statement: 9 years and 3 months with a non-parole period of 6 years.

Other relevant orders: Disposal order pursuant to s 78(1) of the Confiscations Act 1997, licence cancellation and disqualification from driving for five years pursuant to s 89(2)(b) of the Road Safety Act 1986 (re: charge 5 on indictment) and licence cancellation and disqualification for six months (concurrent) pursuant to s 50(1E)(a) of the Road Safety Act 1986 (re: summary charge 9).

9 Leave to appeal was granted on the following two grounds:

1. There was an error in the sentence first imposed on charge 3 arising from the sentencing judge having had regard to what she considered was general guidance from this Court that sentences of 6 or 7 years would be well within range for serious examples of negligently causing serious injury.

2. The sentence imposed on charge 3 and the order for cumulation made on charge 2 were both manifestly excessive.

10 On Tuesday, 4 December 2018, at approximately 5:30 am, the appellant attended the Geelong Police Station to collect a mobile phone which he had dropped while attending the police station at 11:00 pm the previous evening. While at the police station, the appellant behaved in an aggressive and erratic manner and abused members of police and the public.

11 The appellant was served at the counter by an officer who told him that he would need to provide photo identification to have his phone returned. The appellant became aggressive and started yelling and banging on the front counter. Other officers heard what was happening and attended the counter to assist. The appellant was then given his mobile phone and asked to leave the station.

12 The appellant continued to stand at the counter and yell whilst banging his fists. Over the course of approximately 15 minutes, the appellant was asked to leave by police on multiple occasions. He refused to do so and continued to act in an aggressive and erratic manner. During this period, the appellant approached a member of the public who was seated in the foyer of the police station and was verbally abusive towards that person whilst he swung his sweater close to his face. (Related summary charge 1 - behaving in a riotous manner in a public place.)

13 In response to what was occurring, three officers entered the foyer and again requested the appellant leave. The appellant then walked up to one of the officers and slapped him in between the shoulder blades with an open palm (Charge 1 - assaulting an emergency worker on duty).

14 The appellant continued to refuse to leave. Multiple police officers then attempted to escort the appellant to the door where he resisted and continued to yell. Once outside, the appellant continued to yell and scream. He was then sprayed with OC foam to the face in an attempt to subdue him. He was handcuffed and taken into the police station for aftercare. Some time after 6:00 am, the appellant was charged (without interview) and released from the police station.

15 Later that morning, at approximately 8:40 am, the appellant was driving west along Weller Street in West Geelong. The victim ('T') had just left her house to drive to work. She turned left out of her driveway to travel east on Weller Street. As she reached the third house from her own, she observed the appellant's vehicle approaching her at an excessive speed. Weller Street is a two-way street which is only 7 metres wide from kerb to kerb. It was not possible for two vehicles to pass each other at the time. The speed limit was 40 kilometres per hour. The appellant made no attempt to slow down or divert his vehicle or brake. He collided head-on with T's vehicle.

16 Evidence of reconstruction experts concluded that the appellant was travelling at a minimum speed of 108 kilometres per hour in the 4.6 seconds prior to impact. At 1.6 seconds prior to the collision, the vehicle was travelling at 122 kilometres per hour, at which time the air bag inflated inside the vehicle. At the time of impact, the appellant's vehicle was travelling between 125 and 135 kilometres per hour.

17 T was trapped in her vehicle for approximately an hour before emergency services could free her. She suffered serious injuries but was conscious. She suffered a laceration to her liver, fractures to her eighth, ninth and 10th right ribs, fractures to her sacrum and pelvis, a retroperitoneal haematoma, fractures to the talus and medial malleolus of her right foot, fractures to her first and fifth lumbar transverse processes, a laceration to her left thigh and a fracture to her left wrist. (Charge 3 - negligently causing serious injury.)

18 On 5 December 2018, T underwent pelvic fixation surgery. She then had to undertake four months of inpatient rehabilitation. Whilst an inpatient, T required assistance with the basic activities of daily living as she was unable to effectively use her right leg or her left wrist. She was discharged on 12 April 2019, and undertook outpatient rehabilitation twice a week. On 31 March 2020, she underwent further surgery.

19 As a result of the collision, the appellant suffered a fractured pelvis, double compound fracture of the lower right leg, fractures of the right foot, crushed C5 and C6 vertebrae and an injury to his lower back. He was admitted to the intensive care unit. A sample of the appellant's blood taken at the hospital was analysed and found to contain 9ng/mL of Delta-9-tetrahydrocannabinol. (Summary charge 9 - driving whilst exceeding the prescribed concentration of drugs.)

20 Witnesses described the appellant driving at a fast rate and failing to stop at a stop sign at the intersection of Pakington Street and Weller Street. Numerous pedestrians were seen in the area in the immediate aftermath of the collision as well as vehicles driving in and out of a nearby car park. (Charge 2 - conduct endangering persons.)

21 Following the collision, police located two green bags of cannabis and two small zip lock bags which contained 0.4 grams and 0.5 grams of MDA respectively. (Charges 4 and 5 - possession charges.)

22 Complaint is made about a particular paragraph in the sentencing reasons. In order to address the complaint, it is necessary to see that paragraph in its context. The relevant part of the sentencing reasons was in these terms:

Charge 3, negligently driving a motor vehicle causing serious injury, is an offence which punishes driving that would have constituted manslaughter by criminal negligence if [T] had died. It involves criminal negligence which is negligence of a high order involving a great falling short of the standard of care which a reasonable person would have exercised in all of the circumstances and a high risk that death or serious injury would result from such negligence. The maximum penalty of 10 years' imprisonment is an indicator of the seriousness of this offence. Cars are potentially very dangerous weapons if not driven properly. Every driver of a car owes a duty to take reasonable care towards other road users. In determining where your offending on this charge falls on the scale of seriousness, I must look at the degree of departure from the standard of care which a reasonable person would have exercised in all of the circumstances, as well as the seriousness of the injuries caused.

There are very grave aspects to this offending, which are as follows: Weller Street was a narrow street which, at the relevant time had cars parked on either side of it such that it would have been obvious to all road users that two vehicles could not pass each other; it was both a residential and commercial area which was busy in terms of both vehicular and pedestrian traffic; it had a speed limit of 40 kilometres per hour and the speed at which you were travelling at the time of impact was in excess of three times that limit; the weather was fine and visibility was good and there was no reason why you should not have seen [T] directly ahead of you travelling in the opposite direction; not only did you not decrease your speed and not brake but the evidence is that you increased your speed in the seconds prior to the collision. The objective seriousness of this offending is high.

All of the circumstances which I have just mentioned created a high risk that your driving would cause death or serious injury and, indeed, the injuries which you caused to [T] are serious. The ongoing consequences to her physical and psychological pain and suffering, and detriment to her life because of that, and the impact upon her husband and her children and their quality of life, have been devastating.

It is clear that, generally, in sentencing for such offending, emphasis must be placed on denunciation of your conduct, general deterrence and just punishment. Given that you have a very poor driving record, some emphasis must also be placed on specific deterrence.

I am mindful that the Court of Appeal noted, back in 2015, that current sentencing practices, then, for the upper category of this offence of negligently causing serious injury were inadequate. By way of general guidance the Court considered that sentences of 6 or 7 years would be well within range for serious examples of this offence.[13]

23 It is the last paragraph to which ground 1 relates. In answer to questions from the Court, counsel for the appellant conceded - properly, in our view - that this case fell within 'the upper category' of the offence of negligently causing serious injury by driving. What was said to be an error, however, was her Honour's reference to the statement in Harrison that 'sentences of 6 or 7 years would be well within range for serious examples of this offence'. According to the submission, the judge effectively treated this statement as defining a sentencing range for cases of this kind but misdirected herself by failing to pay careful attention to the facts of the cases with which the court was dealing in Harrison.

24 We reject this submission. First, it was common ground before the sentencing judge that what was said in Harrison was directly applicable. In an exemplary written submission on the plea, defence counsel (who did not appear on the appeal) drew attention to the decision in Harrison and, specifically, to the Court's observation that current sentencing practice for offences in 'the upper range of seriousness' was plainly inadequate and needed to be uplifted.

25 Secondly, her Honour's detailed description of the appellant's offending made plain why she regarded the case as falling into the upper range. As we have said, counsel on the appeal conceded that this characterisation was correct. The reference in the reasons to Harrison was, in the circumstances, entirely appropriate.

26 That conclusion is confirmed by the very recent decision of this Court (Priest and T Forrest JJA) in Cook.[14] In holding that a sentence of 5 years and 3 months' imprisonment for NCSI by driving was not manifestly excessive, their Honours said:

[W]e have considered what this Court said in Harrison in 2015. In that case, after extensive analysis of then-current sentencing practices, the Court concluded that the sentencing practices for upper-category examples of the offence of negligently causing serious injury by driving were incommensurate with the objective gravity of offences of that quality, and that judges should not feel fettered by then-current sentencing practices. On that occasion the Court stated that four years' imprisonment should not be considered a ceiling for sentences for this offence and offending in the upper category may well justify sentences in the range of six or seven years.[15]

27 We also note that, in the written plea submission, defence counsel conceded that nothing said by the High Court in Dalgliesh[16] affected the continuing force of what was said in Harrison about the need for an uplift in sentencing for upper range instances of NCSI by driving. It was surprising, therefore, that the written case filed on behalf of the appellant sought to resile from that concession.

28 It is evidently necessary to reaffirm what this Court has said repeatedly, namely, that there is no conflict between what was said in Dalgliesh about the need for individualised justice and what the Court has said in the various 'uplift' decisions about the need for a change in sentencing practices for the relevant class of offence.[17] The point can be stated shortly: the uplift decision informs the sentencing range within which the individual offender is to be sentenced; within that range, individualised justice guides the sentencing decision in the particular case.[18]

29 That is precisely how the judge in the present case approached the task. Having correctly assessed the seriousness of the offence, her Honour noted that what was said in Harrison was applicable as an indicator of sentencing range. She then proceeded to review with great care all of the personal factors relied on by the appellant before arriving at a 'just sentence' which took all of those factors into account.

30 As this Court said in Harrison, the objective gravity of a particular instance of NCSI by driving is to be assessed by reference to the degree of negligence involved and the seriousness of the injury caused.[19] We have already set out the judge's unchallenged findings in relation to the high degree of negligence involved in what her Honour described as the appellant's 'horribly irresponsible driving'. She concluded that the objective seriousness of the offending was high.

31 The injuries which T suffered were also set out earlier but, as the judge noted, the suffering caused by the injuries was ongoing as at the day of the plea hearing, more than two years after the collision. The initial pelvic fixation surgery in December 2018 did not result in a healing of the pelvic fracture. As a result, on 31 March 2020, T underwent further surgery by way of a repeat fixation procedure, this time with a bone graft. As the judge noted in her reasons:

This surgery was complicated by a large interoperative bleed which meant that the procedure was not able to be completed and, thereafter, she remained dependent upon a wheelchair to mobilise. On the day following the plea hearing [8 December 2020] she was due to, again, undergo repeat surgery to try to assist the fracture of her pelvis to heal.[20]

32 The judge summarised 'the dreadful effects' of the appellant's offending behaviour, as described by T in her victim impact statement:

She and her husband have two children, who were aged two years and six years respectively at the time you collided with her vehicle. Apart from the pain and daily challenges she has suffered because of her injuries which have resulted in her spending a total of six months in hospital over the past two years, being unable to drive and being in a wheelchair two years after the collision, she has been unable to care for and participate in the lives of her children in the way that she would have done, and they have been traumatised by her absence and disability. A report from her physiotherapist (Exhibit F) confirms that [T] has reduced walking and sitting tolerance, an inability to engage in high impact activities such as running or aerobics because of her pelvic and ankle fractures, difficulties with sitting and accessing work environments and has the potential of ongoing pain and sensory changes from scars and scar tissue.

[T] grieves her inability to carry out her role as a mother and worries about the pressures that this has placed upon her husband. In addition, having spent many years studying at university in order to pursue a vocation of working with disadvantaged youth, she has not been able to return to her career. She misses her independence. She suffers adverse psychological consequences by way of post-traumatic stress disorder and anxiety relating to the trauma of the collision, for which she requires professional counselling. She has gone from having a full and active family, work and social life to being someone who now tires easily, at times cannot follow conversations and forgets details, and has had to rely on others to assist her with many things, including the preparation of meals, childcare and transport. She is vulnerable both physically and psychologically. She feels unsafe outside her home and fears the unexpected, and is anxious about what the future holds for her.

A victim impact statement by [T's] husband (part of Exhibit C) reveals the psychological trauma he has suffered. He heard the massive explosion caused by the collision and then ran outside to realise that his wife was the person whose vehicle had been struck. He has a daily reminder of this terrible realisation because the collision site is in such close proximity to their home. He writes of the upheaval in his work life and home life and of having to use his leave to be there for the children, who were frightened about their mother being in hospital. He describes suffering stress on multiple levels -psychological, physical and financial. Like [T], he has needed to seek professional psychological assistance to help him cope, and he describes in poignant terms all the special occasions and milestones in the children's lives which have been missed by his wife.[21]

33 As noted earlier, the focus of the appeal submissions under this ground was on the appellant's bipolar affective disorder. The defence relied on two reports of a psychiatrist, Dr Clare McInerney. The judge summarised Dr McInerney's opinion in these terms:

In her first report, Dr McInerney referred to your Barwon Health records and noted that you had a history of not complying with anti-psychotic medication and had been put on depot medication, but you told her that some three years ago you decided to test whether you continued to need psychotropic medication by gradually reducing the dose of your depot medication. You were weaned off depot medication completely by August 2018, and changed to oral anti-psychotic medication, but she noted that all records indicated that you did not comply with oral anti-psychotic medication. Your mother apparently called Barwon Health the day before your offending, seeking urgent medical healthcare for you, because she reported that you had broken sleep, irritability, and were argumentative and raising bizarre themes in conversation. At a team meeting, it was decided to offer a mental health appointment to you on 5 December 2018 but, tragically, this came too late, as by this stage the terrible collision had occurred.

Dr McInerney noted that your bipolar affective disorder presents as a severe mood disorder characterised by recurrent bouts of mania associated with grandiose and persecutory delusions, so that you become highly disorganised, erratic and unpredictable in your behaviour, which is hostile and risk-taking. She stated that you respond reasonably well to psychotropic medication but have poor insight and impaired judgment, and also have a history of problematic substance abuse. This had included methamphetamine. She was unable to clarify the frequency of such use, but stated that it is clear that use markedly affects your mental health. It also includes long-term ongoing and regular cannabis abuse. She stated:

Mr Byast's mental illness is very severe, significantly impacting on his functioning. It impedes his ability to seek help appropriately both for his physical and mental health problems.

He has displayed disordered behaviour for several years; in my view this is most likely the result of chronically active psychotic symptoms, combined with the disinhibiting effects of substance misuse.

She considered that the evidence suggested to her that you were experiencing a relapse of bipolar affective disorder and were manic at the time of offending, and 'this relapse occurred as a result of non-compliance with antipsychotic medication and substance misuse'. She noted that you had used cannabis at the material time, but did not consider that the offending 'can be explained solely by intoxication'.

In her second report, in response to a question from your solicitor as to whether mania would have influenced your behaviour at the time of offending, she stated that 'severe distractibility is an established feature of mania', and:

This distractibility will have been exacerbated by his lack of sleep (a feature of mania) and agitation (an established feature of mania) and may also have been exacerbated by recent cannabis use.[22]

34 The critical conclusion in the sentencing reasons was as follows:

Your counsel conceded that, during your lengthy history of treatment with Barwon Health, you had been told that you should not be using cannabis and, in her first report (Exhibit 1), Dr McInerney had noted that 'Barwon Health records documented poor engagement with drug rehabilitation counselling'. Hence, although I am not satisfied beyond reasonable doubt that, at the time of offending, you were under the influence of the cannabis in your bloodstream and that contributed to your offending on charges 2 and 3 in that it impacted upon your driving ability, I am satisfied beyond reasonable doubt, in accordance with Dr McInerney's opinion, that your state of mania in the weeks and months leading up to, and at the time of, the offence was related to you having ceased taking antipsychotic medication by August 2018, together with the disinhibiting effects of ongoing substance abuse in those weeks and months, both intermittent methamphetamine use and daily cannabis use. My view is supported by the contents of a letter dated 16 January 2019 from Dr Hamish Gunn, psychiatric registrar at Royal Melbourne Hospital, which recorded:

Impression on initial review was of a manic relapse on (sic) BPAD in the context of being unmedicated since August, recent death of friend and ongoing cannabis misuse.[23]

35 Her Honour noted further that, even after the collision and its 'catastrophic' consequences, the appellant again ceased to comply with his antipsychotic medication and to abuse illicit substances. Her unchallenged finding was that the appellant's non-compliance with treatment and his substance abuse made him a risk to the community, as did his lack of insight and lack of motivation to improve his situation.

36 As to Verdins, her Honour's conclusion was as follows:

Whilst there should be some reduction in your moral culpability attributable to your bipolar affective disorder, I do not consider that the full benefit of the principles in Verdins case should be applied in your case as it is apparent that, over a considerable number of years you have been non-compliant with your antipsychotic medication which, if administered regularly, keeps your bipolar condition well controlled. Although bipolar affective disorder is an unenviable affliction, yours is not a disorder which is resistant to treatment. You have shown a repeated disinclination to be responsible about your mental health and, despite being made aware that you should not be using illicit drugs, you have continued to do so. The latter factor, in combination with your non-compliance with medication, led to your state of mania increasing in the weeks and months leading up to the day of the collision.[24]

37 Her Honour accepted that it would be more onerous for the appellant to serve a prison sentence with his mental illness than it would be for someone without that illness. She also accepted that there was a risk that his mental health might deteriorate in prison. She took into account that the appellant had suffered extra-curial punishment by virtue of the serious injuries which he himself had sustained in the collision: a compound fracture of the right leg, fractures of the right foot, crushed C5 and C6 vertebrae and a wound to the abdomen, all of which had required surgery.

38 In this Court, counsel for the appellant accepted that the offending was 'undoubtedly grave' and had resulted in 'severe emotional, physical, financial and social trauma' for T and her young family. It was submitted, nevertheless, that it was not reasonably open to the judge to impose a sentence of 6 years on the charge of NCSI by driving if proper weight had been given to the matters relied on in mitigation.

39 As we have said, heaviest reliance was placed on the appellant's impaired mental functioning, as a result of being in a manic state, which was said to engage all of the Verdins principles. Reference was also made to the extra-curial punishment, the pleas of guilty and the appellant's remorse.

40 In our view, this submission must be rejected. We deal first with the impairment of mental functioning. Ordinarily, the fact that a person was in a manic state at the time of committing a criminal offence would be likely to warrant significant mitigation of sentence. The degree of mitigation would, of course, depend on what the expert evidence showed about the extent to which the offender's capacity for decision-making and rational judgment was impaired by the mania, such that the offending conduct could properly be attributed to the mental illness, rather than to choices made by the offender for which he/she should properly be held responsible.

41 The position is dramatically different, however, in a case like the present where the onset of mental illness is not beyond the offender's control but is, rather, attributable to the offender's own decisions. As the judge found, the appellant's relapse into a state of mania at the time of the offending was attributable to him failing to take antipsychotic medication as he knew he should have done. The relapse was contributed to by his abuse of illicit substances in the weeks and months leading up to the offending. As her Honour noted, that was the opinion which Dr McInerney had expressed in her first report.

42 Given those findings, the judge was entitled to view the appellant as to a very large extent responsible - and accountable - for the state of mania in which he caused this terrible accident. As already noted, her Honour accepted that there should be 'some reduction' of moral culpability on account of the mental illness. Given that the appellant's moral culpability had otherwise to be viewed as very high, this remained a significant factor in the sentencing analysis. For similar reasons, specific and general deterrence remained significant factors. Further, as her Honour pointed out, protection of the community loomed large given the appellant's persistent non-compliance with medication and abuse of illicit substances.

43 For these reasons, in our view, the sentence of 6 years' imprisonment for NCSI by driving was well within range given the seriousness of the offending.

44 The second part of this ground complained about the cumulation of 10 months of the sentence of 2 years and 6 months' imprisonment for the offence of conduct endangering persons. The judge described that offence in these terms:

As far as charge 2 is concerned, your conduct endangering others was serious given your high speed (between 108 and 114 kilometres per hour) and disregard of a stop sign and the fact that it was a busy residential and commercial area where pedestrians and vehicles were present. I am conscious that the offending on this charge occurred whilst you were in a manic state, immediately prior to your offending on charge 3. While recognising that these are two discrete offences, I acknowledge that the principle of totality is an important one in all the circumstances.[25]

45 In our respectful view, cumulation of 10 months of that sentence was also well within range. The appellant's driving created a high risk of danger to other people in the vicinity and that separate criminality was properly recognised by the order for cumulation.

[1] (2015) 49 VR 619; [2015] VSCA 349 ('Harrison').

[2] Cook v The Queen [2021] VSCA 293 ('Cook').

[3] (2017) 262 CLR 428; [2017] HCA 41 ('Dalgliesh').

[4] R v Verdins (2007) 16 VR 269; [2007] VSCA 102 ('Verdins').

[5] Wright v The Queen [2015] VSCA 333, [43]-[45] (Maxwell P, Redlich and Osborn JJA). See Nicola Lacey, In Search of Criminal Responsibility (Oxford University Press, 2016) 27-8.

[6] Contrary to s 31(1)(b) of the Crimes Act 1958 ('Crimes Act').

[7] Contrary to s 23 of the Crimes Act.

[8] Contrary to s 24 of the Crimes Act.

[9] Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[11] Contrary to s 17(1)(d) of the Summary Offences Act 1966.

[12] Contrary to s 49(1)(bb) of the Road Safety Act 1986.

[13] DPP v Byast [2020] VCC 2051, [30]-[34] ('Reasons').

[14] [2021] VSCA 293.

[16] (2017) 262 CLR 428; [2017] HCA 41.

[17] DPP v Barry [2017] VSCA 344, [45] (Weinberg and Kyrou JJA and Beale AJA); DPP v Condo [2019] VSCA 181, [20] (Maxwell P, T Forrest and Weinberg JJA); Fox v The Queen [2020] VSCA 3, [32] (Maxwell P and Beach JA).

[18] Quah v The Queen [2021] VSCA 164, [53] (Maxwell P and Beach JA).

[19] [2015] VSCA 349; (2015) 49 VR 619, 629 [44]; [2015] VSCA 349 (Maxwell P, Redlich and Tate JJA).