1 On 3 January 2008, the applicant, Brenton Chaplin, was driving at high speed and under the influence of alcohol when he lost control of the car he was driving. The car hit a pole. His best friend, Leigh Charter, was killed. They were both only 20 years old.

2 On 15 February this year Mr Chaplin was sentenced to four years' imprisonment after pleading guilty to one count of culpable driving. A non-parole period of 18 months was fixed. Mr Chaplin sought leave to appeal against the sentence and a grant of bail pending the hearing and determination of the appeal.

3 In the event, the application for leave to appeal was argued as if it were the appeal. All grounds of appeal were fully dealt with, both in writing and orally. For reasons which follow, we would grant leave to appeal but dismiss the appeal. No occasion arises, therefore, to consider the bail application.

4 The basis of our decision may be summarised quite shortly. The submissions on Mr Chaplin's behalf focused on the terrible events which occurred as a direct result of the fatal accident. In an act of apparent revenge, Leigh Charter's father, Leigh Charter Snr, murdered Mr Chaplin's mother, seriously injured his father and brother, and stabbed his cousin. He then killed himself.

5 So devastating were these consequences for Mr Chaplin, so it was submitted, that the sentencing judge should not have required him to serve any actual custody. In other words, the only reasonable sentencing option available in these exceptional circumstances was a wholly suspended sentence. That not having occurred at the time of sentence, Mr Chaplin's counsel urged this Court to quash the sentence and, in re-sentencing, to suspend any term of imprisonment which was imposed.

6 Appellate intervention would only have been justified if the sentence imposed on Mr Chaplin had been shown to be outside the range reasonably open to the sentencing judge. Put differently, Mr Chaplin would have had to persuade this Court that no reasonable judge dealing with this particular case could have imposed the sentence which the sentencing judge imposed. That is a difficult test to satisfy. It reflects the fact that sentencing is a task committed by the Parliament to sentencing judges, not to the Court of Appeal. Sentencing is not the task of appellate courts, except where clear error is shown.[1]

7 In the present case, we are satisfied that the sentence which was imposed on Mr Chaplin was within the range reasonably open to the sentencing judge, taking all of the circumstances into account.

8 The circumstances of the offending were summarised by the sentencing judge in his sentencing remarks, which he addressed to Mr Chaplin:

It is sufficient to say that you were a group of four young men from Harcourt, or thereabouts, friends intending to enjoy a few days together at the beach at Seaspray. You had driven there in two cars, been to Sale for supplies and enjoyed an evening barbecue together. You were all drinking. It was agreed that you would drive the relatively short distance to visit a friend as you had drunk the least. Your blood alcohol reading was .085. Driving at a speed of 126 kilometres per hour in an 80 kilometres per hour zone, you got into the gravel, struck a pole and Leigh Charter who was not wearing a seat belt was thrown from the car. By your plea of guilty, you have accepted that the alcohol and the speed amounted to a gross failure by you to observe the standard of care of a reasonable driver.[2]

9 As the judge noted, Mr Chaplin had pleaded guilty to culpable driving by negligence. That is, he had failed 'unjustifiably and to a gross degree' to observe the standard of care which might reasonably have been expected in the circumstances.[3] The facts speak for themselves. Mr Chaplin was driving at more than 50 per cent over the speed limit. That was a flagrant breach of a law which exists to ensure the safety of drivers and their passengers. Worse still, his blood alcohol reading was .085 per cent; as Mr Chaplin was a probationary driver, it was unlawful for him to drive with any alcohol whatsoever in his blood. That, too, was a flagrant breach of a law designed to reduce the risk of accidents of exactly this kind.

10 On the plea, the Chief Crown Prosecutor read out to the judge the following extracts from a statement made by an eyewitness to the accident:

I had only just gone to bed at this time when I heard what I would describe as a jet approaching. It was obviously a car, and it was roaring, and it was approaching our house from the Seaspray direction. The sound was similar to the V8s I've been to and seen on television. It was obvious to me that the car was flying along the road.

...

I could see gravel being thrown out from under the car, and the car appearing to be aquaplaning out of control with the rear going down the bank and the car becoming sideways. The car was still travelling very fast, and was now completely out of control travelling sideways down the roadside, with the car completely off the road to their left and heading towards a power pole. The vehicle went out of control. We [sic] travelled over the gravel shoulder and onto a grassed reservation. The rear passenger side of the vehicle collided with an electricity pole. The car consequently rolled a number of times and, eventually, came to rest on its wheels some 40 metres away from the pole.

11 As a result of the impact with the pole, both Leigh Charter and his brother, Billy Charter (aged 18), were ejected from the vehicle. Leigh Charter came to rest some 13 metres from the vehicle. He had suffered fatal injuries and died at the scene. Billy Charter was also injured as a result of the impact. He suffered bruised kidneys and an injured back. The three other occupants of the car (including Mr Chaplin) remained in the vehicle and received minor injuries.

12 The maximum sentence for culpable driving is 20 years' imprisonment. Although, as the trial judge noted, this was 'by no means the worst example of culpable driving', it was nevertheless to be viewed as a bad example of the offence.

13 It was not in issue on the plea, or on the appeal, that the sentencing judge was entitled to take into account the impact on Mr Chaplin of the murderous sequel to the fatal accident. The submission for the Crown referred to the decision of the New South Wales Court of Criminal Appeal in R v Daetz.[4] In that case, after a review of the authorities, James J (with whom Tobias JA and Hulme J agreed) said:

... while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight.[5]

14 It is clear from the sentencing reasons in the present case that the judge expressly took into account the impact of these tragic events on Mr Chaplin. His Honour said:

The Crown prosecutor ... described the actions of [Leigh Charter Snr] of 11 February 2009, when he attended your family home and murdered your mother, seriously wounded your father and brother and stabbed your cousin, as an act of pure revenge. It was a shocking and terrible act of vengeance.

Let there be no doubt, you are in no way to blame for the death of your mother or for Mr Charter's other actions. What he did should be taken into account in sentencing you because it is perceived by you, and by other right-thinking members of the community, as a punishment of you for Leigh Charter's death. Not only have you lost your mother in tragic circumstances but, as ... your grandfather and others testified, you blame yourself for what occurred. You are not to blame, but the sense of responsibility is a heavy and continuing burden for you and that hardship should be taken into account. In terms of what is just, there is a sense that for your actions, you have suffered enough and more than you justly deserve.

...

Both the head sentence, and the shorter non parole period than would otherwise be imposed, reflect the terrible aftermath of this offence and the great hardship you have experienced and will continue to experience as a consequence of what has occurred.[6]

15 The judge also took into account the victim impact statements filed by Leigh Charter's mother, grandfather, sister and brother. They were read aloud in court by the prosecutor. The judge said:

There can be no doubt that the sudden death of their son, grandson and brother was a shocking blow to each of them. He was an attractive young man, loved by them and with all the promise of a fulfilling life before him. Their grief and sorrow are palpable. For them it has been impossibly painful and a just punishment cannot ignore or treat lightly either the loss of his life or their suffering.[7]

16 These remarks reflected concerns which the judge had expressed to defence counsel in the course of argument on the plea, when the following exchange took place:

HIS HONOUR: Aren't we talking ... about something really more basic, and that is, the sense that people have that there must be a consequence in terms of punishment? It can never be enough; we know that, because -

DEFENCE COUNSEL: That's called "just deserts", your Honour.

HIS HONOUR: It's a basic thing, isn't it? And the basic aspect of it is that it, at least, gives some acknowledgment to the fact that there is a dead person; a person has lost his life.

DEFENCE COUNSEL: Yes, your Honour.

HIS HONOUR: Unless there is some punishment then there is no sense that - however inadequate it may be - that justice may have been done.

17 As his Honour was indicating, sentencing performs an important function of social rehabilitation. As Vincent JA said in Director of Public Prosecutions v DJK:[8]

This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.

As this Court said in DPP v Neethling,[9] those remarks apply with particular force to an offence of this devastating kind.

The learned sentencing judge erred by concluding that the sentencing principle of general deterrence required that the applicant be placed in custody.

The relevant part of his Honour's reasons was in these terms:

Parliament has increased the maximum penalty for the crime of culpable driving causing death to 20 years imprisonment. It is the same maximum penalty as for manslaughter. While culpable driving is not an intentional or deliberate crime, the penalty determined by Parliament reflects the fact that the community is profoundly troubled by the deaths of young people particularly as a consequence of mother cars being driven in a grossly negligent manner. Alcohol and excessive speed are common features of such driving. It is the law that places upon the court the duty to clearly declare that such conduct is unacceptable and to firmly denounce it.

Your counsel ... forcefully argued that there is no evidence that sentences of imprisonment, much less heavier sentences, have any effect on the way people drive, especially young people. That is not an easy matter to evaluate. He knows, and I think he will have told you, that the Court of Appeal in this State, on a number of occasions, has stated that general deterrence is of central importance in sentencing offenders for culpable driving causing death. The court has emphasised the importance of deterring people from driving when affected by alcohol, from driving at excessive speeds, by giving a clear message that those who cause the death of another through grossly negligent driving will receive stern sentences of imprisonment. It is that purpose that makes a sentence of imprisonment necessary.[10]

19 The appeal submission for Mr Chaplin was, in essence, that it would suffice for general deterrence for the community to be aware of the tragedy that had befallen Mr Chaplin as a result of his commission of this offence. It was put that the tragic sequel would be a stronger deterrent to similar conduct than imprisonment of Mr Chaplin. According to the written submission:

... once it was established that the applicant had been punished enough for what he had done, there was no room in principle for added punishment to be imposed upon the applicant in order to satisfy the conditions of general deterrence. The punishment received at the hands of the deceased's father was sufficient to satisfy general deterrence.

20 In our view, this submission must be rejected. The sentence imposed on Mr Chaplin had to take into account the various sentencing purposes to which reference has been made. It was, in our view, well open to the judge to conclude that, while the extraordinary circumstances warranted a reduction in the sentence to be imposed, general deterrence required that Mr Chaplin serve a period of actual custody.

21 It cannot be doubted that the judge did significantly reduce the sentence on account of the suffering Mr Chaplin had already endured. The prosecutor had submitted that the applicable sentencing range was between five and seven years' imprisonment. The most recent Sentencing Snapshot published by the Sentencing Advisory Council[11] reveals that, between 2003-4 and 2007-8, imprisonment terms for this offence ranged from two years up to eight years and six months; the median term of imprisonment was five years and six months; and the most common length of sentence was six years.

22 Counsel for the appellant properly conceded that this sentence was at the lower end of the scale. A non-parole period of 18 months, on a head sentence of four years, is exceptionally low, representing less than 40 per cent of the head sentence.

23 The other grounds of appeal were essentially particulars of the ground that the sentence imposed was manifestly excessive. They all concerned the giving of excessive, or inadequate, weight to various factors.

[1] R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306, 309.

[2] DPP v Chaplin (Unreported, County Court of Victoria, Judge Howie, 15 February 2010), [25].

[3] Crimes Act 1958 (Vic) s 318(2)(b).

[4] [2003] NSWCCA 216; (2003) 139 A Crim R 398.

[6] DPP v Chaplin (Unreported, County Court of Victoria, Judge Howie, 15 February 2010) [32]-[33], [37] (emphasis added).

[8] [2003] VSCA 109, [18].

[9] [2009] VSCA 116, [58].

[10] DPP v Chaplin (Unreported, County Court of Victoria, Judge Howie, 15 February 2010), [34]-[35].

[11] Sentencing Advisory Council, Sentencing Snapshot No 86 of 2009: Sentencing Trends in the Higher Courts of Victoria 2003-04 to 2007-08 - Culpable Driving Causing Death (June 2009).