Cook v The Queen [2021] VSCA 293

1 The appellant pleaded guilty on 7 July 2020 before a judge of the County Court to one charge of negligently causing serious injury. On 5 August 2020 he was sentenced as set out in the table below.

Negligently causing serious injury (contrary to Crimes Act 1958 s 24)

Pre-sentence detention declaration pursuant to Sentencing Act 1991 s 18(1):

7 years 3 months' imprisonment with a non-parole period of 5 years 5 months

Licence cancellation and disqualification for a period of two years following release from custody

2 On 3 March 2021 the appellant was granted leave to appeal against sentence by a judge of this Court.[1] The appellant has advanced a single ground, expressed as follows:

Ground 1: The sentence imposed (5 years 3 months) and the non-parole period fixed (3 years 8 months) were manifestly excessive.

3 An agreed summary of prosecution opening was tendered on the plea and read to the Court. We shall borrow heavily from it.

4 On 10 January 2019 at about 3:00 pm the 29-year-old appellant commenced drinking at the Chase Hotel in Forest Hill. He drove to that hotel after an argument with his partner earlier that afternoon. He drank three schooners[2] of full-strength beer over the course of about two hours. He then drove to the Mitcham Hotel, where he drank approximately two bourbon and cokes and two more schooners of full-strength beer. He left the Mitcham Hotel at about 7:20 pm.

5 He drove his Holden ute west on Whitehorse Road. A witness described his driving at that stage as unsafe, speeding off when the lights turned green and cutting across all three lanes from the far right, in order to execute a turn into a slip lane.

6 The appellant then drove south on Springvale Road. Another witness described the Holden ute as travelling very fast, coming 'out of nowhere' and that he felt a 'whoosh' as it went past, causing his car to move slightly laterally on the roadway. Another witness observed the Holden ute as 'flying' and driving erratically, cutting off other cars.

7 A Suzuki Swift driven by Zeeshan Burhan was also travelling south on Springvale Road. Mr Burhan was travelling at around 70 kilometres per hour in the centre lane of this three-lane, southbound carriageway. The speed limit was 80 kilometres per hour. The Holden ute approached the Suzuki in the third (or right-hand) lane. Mr Cook, after drinking for four hours, was driving the Holden ute at about 170 kilometres per hour. Mr Burhan indicated an intention to merge into the right lane. The Holden ute was very quickly upon this vehicle travelling 100 kilometres per hour slower than it, and the front passenger-side corner of the Holden struck the rear driver-side of the Suzuki.

8 The Suzuki spun uncontrollably across all three southbound lanes of Springvale Road. It struck the eastern kerb and flew into the air. The front of the vehicle struck a tree; the rear smashed through the front fence of a residential property.

9 The Holden ute also spun to the left across all three lanes, striking the same tree as the Suzuki, and coming to rest facing north on the southbound carriageway.

10 The appellant applied his brakes one second before impact.

11 Mr Burhan sustained life-threatening injuries, including:

• Cardiovascular decline at the scene, including substantial blood pressure drop.
• Seatbelt trauma across the lower abdomen.
• Complicated left wrist fracture.
• Complicated (unstable) spinal bone fracture at the lumbar level.
• Large perforation of the frontal aspect of the stomach and intestines, causing abdominal wall inflammation and leakage of gastrointestinal content into the abdomen.
• Haematoma around the liver.
• Haematoma around the spine.
• Multiple bilateral lung bruising with associated fluid accumulation and lung tissue collapse.

12 Mr Burhan underwent emergency surgery at the Royal Melbourne Hospital. His abdomen was opened, parts of his stomach were removed, a drain was inserted and a complex stomach bypass was performed. Two days later, on 12 January 2019, he underwent a spinal fusion at T12, L1 and L3, and left wrist surgery requiring reduction and internal fixation. A nasogastric tube was inserted. He remained in very significant pain.

13 He was discharged from intensive care after five days, and after 14 days he was transferred to the South Eastern Private Rehabilitation Centre ('SEPRC'). He progressed slowly, with ongoing pain issues, panic attacks, nightmares and flashbacks. He suffered and continues to suffer from post-traumatic stress disorder ('PTSD'). At the end of May 2019 he was discharged from SEPRC. When discharged he was functionally limited and unfit to return to education, work or driving.

14 As at the time of the plea, Mr Burhan's recovery was incomplete and he was at risk of psychological and digestive problems in the future. He required potent painkillers, antibiotics and anti-blood-clotting medications.

15 When injured, Mr Burhan was 23 years old. He had completed an undergraduate degree in Pakistan and came to Australia in 2018 to undertake a Master of Professional Accounting and International Finance at Deakin University. To support himself, he worked as a delivery driver for Menulog and was doing so when injured.

16 Immediately after the collision the appellant cooperated with police. Upon interview he made complete and patently honest admissions. He was uninjured, in any meaningful physical sense, as a result of the collision.

17 In written submissions, counsel for the appellant conceded that the offending was serious. He emphasised the following:

• The appellant was 30 years old at the date of the plea.
• He entered his plea of guilty at the earliest reasonable opportunity. It evidenced remorse and had facilitated the course of justice.
• A term of imprisonment was the only realistic sentencing option open.
• His client did not attempt to flee the scene of the collision and was properly licensed at the time.
• The appellant had an extremely limited criminal history, had shown genuine and deep remorse, enjoyed strong community supports, had a good employment history and excellent prospects for rehabilitation, supported by his forensic psychologist Mr Ian Mackinnon.
• Deterrence (both specific and general) and punishment, whilst important, ought not overwhelm other relevant sentencing purposes.
• The utilitarian benefit of the early plea.
• The increased burden in the custodial setting due to the COVID-19 pandemic.

18 At the plea hearing, counsel expanded on the matters listed above, including tendering the psychologist's report, and adverted to his client's full and frank cooperation with police immediately after the incident. He also outlined the appellant's significant background of disadvantage. The appellant's father abandoned him when he was three years of age. He suffered emotional and physical abuse for years at the hands of a stepfather.

19 Counsel tendered a number of character references on the plea that satisfied the judge that the appellant is 'a fundamentally decent and caring person'.[3] Counsel referred to the appellant's very good work history and his effective absence of any prior convictions. It was submitted that a term of imprisonment would be more burdensome due to his psychological and mental health vulnerabilities. These included a longstanding PTSD, which, according to Mr Mackinnon, perpetuated the appellant's maladaptive reliance on alcohol.

20 The prosecutor submitted that principles of general deterrence, just punishment, denunciation and protection of the community must assume considerable significance in this sentencing exercise, and that specific deterrence also had 'a role to play'.

21 The degree of negligence displayed was said to be in the 'upper range of seriousness for this category of ... offending', with a grave departure from the standard of care required of a driver. It was submitted that the appellant made the deliberate decision to drive, knowing that he had been drinking for hours.

22 The prosecutor correctly submitted that the victim suffered 'extensive and profoundly serious injuries', which, without timely and expert medical intervention, would have been fatal.

23 The prosecutor further submitted that the high objective seriousness of the offending required that less weight be accorded to personal mitigating factors.

24 On the issue of current sentencing practices, the prosecutor referred to Harrison v The Queen,[4] Director of Public Prosecutions v Barry,[5] Halket v The Queen,[6] Da Costa v The Queen,[7] McGrath v The Queen[8] and Director of Public Prosecutions v Trueman.[9]

25 The judge noted the appellant's personal background and circumstances, as outlined above. Her Honour gave weight to his childhood disadvantage in her sentence.[10] The judge accepted the analysis of Mr Mackinnon in relation to the ongoing impact of this disadvantaged background, including the appellant's complex PTSD and maladaptive alcohol dependence.[11]

26 The judge devoted a considerable portion of her reasons to the appellant's clear display of remorse. Her Honour noted the descriptions of the appellant's sincere anguish over what he had done and the consequences for the victim provided in numerous of the character references tendered on his behalf. She noted the 'very impressive letter' that the appellant wrote to the victim, which she found 'demonstrate[d] empathy for your victim for the shock and hurt you have caused him'.[12] Also contributing to the 'solid basis for finding that [the appellant was] deeply remorseful'[13] were the appellant's decision to surrender himself into custody while awaiting his sentence rather than apply for bail; his cooperation with police immediately following the accident; and his plea of guilty, entered at the earliest opportunity. The judge stated that the 'early and sincerely contrite plea of guilty' entitled the appellant to a high discount on the sentence she would otherwise impose.[14]

27 The judge also took into account the appellant's prospects of rehabilitation, which she assessed as 'very good'.[15] In this regard, her Honour noted his positive steps in addressing his alcohol dependence both before and after the offending, regarding this as indicative of his capacity for change.[16]

28 Her Honour took into consideration that a term of imprisonment, which must be inevitable, would likely be harder on the appellant than it would be for others, given that he had not been imprisoned before, and his psychological vulnerabilities and mental health conditions.[17] Her Honour also took into account the increased onerousness of prison conditions due to the COVID-19 pandemic.[18]

29 The judge, however, assessed the appellant's moral culpability as high: the appellant's choice to drive after drinking for a number of hours was a conscious decision and not a 'momentary lapse of attention'; he drove erratically leading up to the collision; there was no evidence that he ever tried to steer away from the victim's car; there was evidence that he applied his brakes only one second before the impact; his blood alcohol level was twice the legal limit when measured one hour after the collision; and he was driving at twice the speed limit at the point of the collision.[19]

30 Her Honour stated that the 'devastating' and ongoing impact on the victim, physically, psychologically and financially, had to be taken into account.[20]

31 In noting the appellant's previous good character, the judge also noted that this was not an unusual characteristic of people who commit this offence. The prevalence and harmfulness of the offence required denunciation and general deterrence to be given greater weight in the sentencing calculus, and accordingly lesser (but still some) weight to the appellant's good character.[21]

32 Her Honour acknowledged the need for her sentence to send a clear signal to the community at large about this kind of offending, stating:

The Transport Accident Commission has had powerful advertisements on television for four decades which highlight the awful consequences of irresponsible driving behaviour. The TAC slogan 'if you drink, then drive, you're a bloody idiot' has become part of our vernacular, but still people like you do not heed the basic message. For this reason, in sentencing you the court must denounce your offending conduct and place emphasis on general deterrence. What that means is that, in imposing the sentence for your offending, the Court must send out a message to the community, yet again, that where a person drives their vehicle in a way that falls so greatly short of the standard of care which a reasonable person would have exercised and causes serious injury, that will not be tolerated by our community and just punishment will be imposed in order to protect other road users.[22]

33 The appellant submitted that, while the objective gravity of the offending and the associated impact on the victim were plainly significant, a number of powerful mitigating factors were given insufficient weight in the judge's sentence. In short compass, those factors are:

• The applicant's difficult childhood, being exposed to a violent and abusive stepfather from an early age.
• He had a very solid working history up until he was sentenced. Since leaving school he has worked as a military policeman, completed a nursing diploma and worked in an adult inpatient psychiatric unit, and in residential care at Berry Street Child and Family Services.
• The judge accepted that there was a connection between the appellant's distress on the day of the offence and his use of alcohol.
• There was also a connection between the appellant's diagnosed PTSD and the offending, such as to reduce his moral culpability.
• The appellant's early guilty plea, his cooperation with police, his remorse and immediate acceptance of responsibility.
• Pandemic-related custodial hardship.
• The appellant's 'very good' prospects for rehabilitation.
• The principle of parsimony.

34 The appellant further contended that, had proper weight been given to these subjective circumstances, in addition to a lower head sentence, a proportionately lower minimum term would have been imposed than that which was imposed.

35 The appellant pointed to comparative sentences to assist in the identification of the applicable sentencing range. He submitted that the impugned sentence was inconsistent with current sentencing practices.

36 The respondent accepted that there was a good deal to be said in the appellant's favour, but contended that the objective gravity of the offending ultimately must weigh heavily in the sentencing balance. The sustained erratic driving, speed, intoxication and the extent of the victim's injuries all placed this offence in a very serious category. The judge took into account all mitigating factors, including the appellant's troubled personal history. No Verdins[23] diminution of moral culpability was argued on the plea and ought not be entertained now. The sentence was within the range open to the judge in the reasonable exercise of her Honour's sentencing discretion and was consistent with current sentencing practices. In written submissions the appellant took the Court to various sentences[24] imposed after the 'uplift' case of Harrison.[25]

37 The respondent contended that the appellant's mitigating circumstances were carefully considered and given appropriate weight by the sentencing judge, who was required to and did give weight to the countervailing factors.

38 The President of this Court recently observed that '[c]omplaints of manifest excess dominate the sentence appeal work of this Court'.[26] Almost invariably, the observation is made that this is a difficult ground to establish.[27] The impugned sentence must be demonstrated to be wholly outside the range of sentences available to the judge.[28] Thus the sentence must be demonstrated to be unreasonable or plainly unjust.[29] For a concept that has been repeatedly, authoritatively stated as not permitting much in the way of argument, manifest excess (and inadequacy) appeals have generated enormous volumes of that very commodity. It is plain, however, that this Court may not substitute its own view about an appropriate sentence merely because it thinks the sentence imposed stern or lenient.[30] The sentence must itself bespeak an underlying error of principle to justify appellate intervention.

39 We have given this matter our anxious consideration and our conclusion is that, notwithstanding the powerful mitigating factors and the appellant's palpable decency, the appeal must be rejected. We shall state our reasons in short form.

40 The objective gravity of this offending is, in our view, very high. The appellant drank for hours. He made the conscious decision to drive, and then to drive with an appalling disregard for the safety of other road users. He drove while affected by alcohol (with a blood alcohol content of 0.107) and at a ferocious speed (in the range of 170 kilometres per hour) in Springvale Road - a busy, multi-lane metropolitan road. The consequence of this gross negligence has been life-changing for Mr Burhan, who was profoundly injured and lucky to survive.

41 In our view, the judge, in her impeccable sentencing reasons, simply could not overlook or diminish the objective gravity of this offending, and neither can we. That is not to say that her Honour ignored the powerful mitigating factors. It is clear from her reasons for sentence that she gave each such factor careful attention. Ultimately, however, in this and in similar cases of high objective gravity, less weight will be accorded to personal mitigating factors than would otherwise be the case.[31] This Court has observed that this offence and the similar offence of culpable driving causing death (which differs only in consequence) are frequently committed by young offenders and/or offenders of previous good character, many of whom have excellent prospects of full rehabilitation.[32] The prevalence and seriousness of this type of offending requires general deterrence and denunciation to assume more significance in the sentencing exercise, and, accordingly, less significance must be placed upon mitigating factors such as youth, previous good character and rehabilitation prospects.[33]

42 To the extent that counsel for the appellant endeavoured to revive Verdins considerations - particularly principles 1, 2 and 3 - on this appeal, such considerations were beyond revival, given their frank eschewal by counsel for the appellant at the plea hearing.

43 It is unnecessary to recite all cases referred to in either party's written submissions on the aspect of current sentencing practices. It is sufficient to state that we 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.[34] 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.

44 The sentence imposed in this case is, we consider, consistent with current sentencing practices subsequent to the judgment in Harrison, and makes appropriate allowances for the unusually powerful factors in mitigation.

45 We make this observation bearing steadily in mind that whilst sentencing courts are required to consider current sentencing practices,[35] this is but one of many factors to be taken into account and is not a controlling factor.[36] The combination of those factors informs the instinctive synthesis.

[1] Cook v The Queen [2021] VSCA 38 (Kaye JA).

[3] DPP v Cook [2020] VCC 1172, [37] (Judge Hogan) ('Reasons').

[4] [2015] VSCA 349; (2015) 49 VR 619 ('Harrison').

[5] (2017) 82 MVR 448 ('Barry').

[6] (2016) 77 MVR 509 ('Halket').

[7] [2016] VSCA 49.

[8] [2018] VSCA 134.

[9] [2017] VSCA 24.

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

[24] Barry (2017) 82 MVR 448; Gurovski v The Queen (2018) 83 MVR 333 (Whelan and Kyrou JJA); Sutic v The Queen [2018] VSCA 246 (Kyrou and Kaye JJA); Papachristodoulou v The Queen (2017) 82 MVR 27 (Kaye JA and Forrest AJA); Walsh v The Queen [2018] VSCA 334; (2018) 87 MVR 76 (Priest and Weinberg JJA); Sadiq v The Queen (2017) 79 MVR 419; Halket (2016) 77 MVR 509.

[25] Harrison [2015] VSCA 349; (2015) 49 VR 619, 650 [136] (Maxwell P, Redlich and Tate JJA).

[26] Tawfik v The Queen [2021] VSCA 289, [3] (Maxwell P).

[27] See, eg, R v Boaza [1999] VSCA 126, [42] (Winneke P) ('Boaza'); DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662 [127] (Ashley, Redlich and Weinberg JJA).

[28] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA), quoted in Lim v The Queen [2019] VSCA 182, [60] (T Forrest JA and Croucher AJA); Begg v The Queen [2020] VSCA 183, [53] (Priest, Tate and T Forrest JJA) ('Begg'); Boaza [1999] VSCA 126, [42]; Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127].

[29] House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).

[30] See ibid 507 (Dixon, Evatt and McTiernan JJ); Begg [2020] VSCA 183, [55], [77], [93].

[31] See, eg, Harrison [2015] VSCA 349; (2015) 49 VR 619, 638 [85]-[86] (Maxwell P, Redlich and Tate JJA).

[35] Sentencing Act 1991 s 5(2)(b).

[36] DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428, 434 [9] (Kiefel CJ, Bell and Keane JJ).