DPP v Reid [2020] VSCA 247

1 On 14 August 2019, Jesse Reid, then aged 22, pleaded guilty in the County Court at Melbourne to one charge of culpable driving causing death and two charges of conduct endangering life.

Conduct endangering life [s 22 - Crimes Act 1958]

Conduct endangering life [s 22 - Crimes Act 1958]

Culpable driving causing death [s 318(2)(a) - Crimes Act 1958]

12 years and 6 months' imprisonment with a non‑parole period of 8 years and 6 months

Forensic sample order; licence cancellation and disqualification for seven years

3 By notice of appeal dated 25 September 2019, the Director of Public Prosecutions challenged each of the individual sentences, the orders for cumulation, the total effective sentence, and the non-parole period on the sole ground of manifest inadequacy. The particulars to that ground are:

The sentences reflect that the learned sentencing judge:

(a) Failed to give sufficient weight to the objective gravity of the offending conduct;

(b) Failed to give sufficient weight to the sentencing principles of just punishment, denunciation, general deterrence, specific deterrence and the protection of the community;

(c) Failed to make appropriate orders for cumulation of the sentences for charges 1 and 2 (reckless conduct endangering life);

(d) Gave too much weight to mitigating factors concerning the offender, in particular, his plea of guilty and youth;

(e) Failed to give sufficient weight to the maximum penalties for the offences;

(f) Failed to give sufficient weight to the fact that charge 3 (culpable driving causing death) is a standard sentence offence as defined in the Sentencing Act 1991, and;

(g) Failed to give sufficient weight to the impact of the offending on the victims.

4 For the reasons that follow, we would dismiss the appeal.

Circumstances surrounding the commission of the offences

5 At the time of the offending, the respondent was aged 21. He held a P2 Victorian driver's license. A standard condition of that form of license is that the license holder is required to have a blood alcohol concentration ('BAC') of zero while driving. The respondent was also subject to an 'alcohol interlock' condition, by virtue of two prior court appearances for prescribed alcohol concentration offences.[1]

6 The condition involved the fitting of an alcohol interlock device in the respondent's vehicle. He was required therefore to provide a breath sample before starting the ignition. The device would not allow the car to start unless the breath sample indicated a BAC of zero. The device can also request 'random running retests' throughout the course of a single journey.

7 On 13 September 2018, the respondent drove from Melbourne to Merimbula, in New South Wales, staying overnight at a friend's house. The following morning, he was informed by phone that his partner had gone into labour. At 8:30 am, he telephoned a friend, 'AB', who was then aged 16. He asked AB to accompany him on the journey back to Melbourne. AB agreed, and was picked up by the respondent at 8:40 am. However, the pair did not leave Merimbula until 10:16 am.

8 By that time, the respondent had been informed that the baby had already been born. He had received messages from his partner's mother, to the effect:

Ok drive safe

...

Take your time and drive safely

... [and]

Ok don't speed.

9 About 26 kilometres from Merimbula, the respondent and AB stopped to see some friends at Eden, in New South Wales. There, the respondent used methylamphetamine and consumed a small amount of alcohol. AB then started the ignition, providing the interlock device with a BAC result of zero, and took over driving the vehicle.

10 From this point, the respondent and AB recorded a number of videos on the respondent's mobile phone. The first showed AB driving the car, with the respondent in the front passenger seat. The respondent was recorded saying 'When you're too fucked to drive and your baby's been born, your mate comes through.'

11 At 12:37 pm, the pair arrived at Kiah, still in New South Wales, and the respondent took over driving. It was AB, however, who provided the breath sample that enabled the respondent to start the car. At 12:59 pm, the device requested a 'random running retest'. Again, AB provided the breath sample and the respondent continued to drive.

12 At 1:18 pm, AB filmed the second video. It captured the respondent driving at speeds of between 190 and 200 kilometres per hour.

13 At 1:23 pm, AB filmed the third video. It showed the respondent driving at a speed of about 180 kilometres per hour as the vehicle approached the rear of a semi-trailer, towards the end of an overtaking lane. The driver of that semi-trailer was so concerned by the speed at which the respondent's vehicle was being driven that he called 000 to report that behaviour.

14 At 1:25 pm, AB filmed the fourth video. It showed the respondent driving at speeds of between 140 and 190 kilometres per hour. As the vehicle approached a bend in the road, a 70 kilometres per hour advisory sign could be seen. As the vehicle entered the bend, the speedometer displayed a reading of about 160 kilometres per hour. The vehicle was seen to be crossing double white centre lines, and intruding partially into the opposite lane. The car continued to travel in that lane as it approached another bend in the road. An oncoming Volkswagen camper van, containing two occupants, was forced to take evasive action to avoid a collision (charge 1 - reckless conduct endangering life). The video showed AB saying 'Go, Go, Go, Go, Go' and 'Keep going, keep going' shortly afterwards.

15 At 1:26 pm, AB filmed the fifth video. It showed the respondent driving at a speed of between 190 and 200 kilometres per hour. AB could be heard saying 'Go, Go, Go, Go, Get better.'

16 During this time, the respondent passed a dozen or so vehicles, all of them while he was driving at great speed. The persons in those vehicles subsequently provided statements to police which described the respondent's vehicle as 'going so quick it was floating around on the road', '[flying] out of sight', and the respondent as not having 'back[ed] off [his speed] at all'.

17 At 1:31 pm, the device again requested a 'random running retest'. On this occasion, the respondent provided the sample, which returned a 'High BAC' result. Accordingly, the vehicle shut down and entered a lock out state for about five minutes.

18 At 1:36 pm, AB circumvented the device by himself providing a breath sample, which returned a BAC of zero. That meant that the vehicle could be restarted and the respondent was able to continue driving.

19 Some 15 minutes later, a further 'random running retest' was requested. Once again, AB provided the breath sample and the respondent continued to drive.

20 Some distance ahead, a group of motorcycle riders was travelling eastwards, along the Princes Highway, as part of the what was known as the 'Wall to Wall Ride for Remembrance', from Melbourne to Canberra. That ride commemorates fallen police officers. Detective Senior Sergeant Victor Kostiuk, an experienced motorcyclist, was taking part in the ride, as was his son, Detective Senior Constable Felix Kostiuk. Both officers were off-duty at the time. Detective Senior Leading Constable Wayne Reynolds was riding ahead of the Kostiuks, in company with his son, Tyler Reynolds.

21 That particular section of the Princes Highway was a two-way road that ran east-west. The speed limit was 100 kilometres per hour. The bitumen was in good condition, with a moderate downhill gradient for vehicles travelling west. There was a single lane for east-bound traffic, and two lanes for west-bound traffic. The two west-bound lanes were divided by a broken white line. The east and west lanes were separated by double white lines with tactile (sometimes referred to as 'rumble') strips.[2]

22 As previously indicated, the respondent was travelling in a westerly direction at high speed. His vehicle was straddling the double white lines. Wayne Reynolds' account of the lead up to the accident was as follows:

whilst approximately mid-way through the sweeping left curve, I observed [the respondent's vehicle] travelling in the opposite direction at a very fast rate of speed. The Commodore was approximately 50‑60 metres from me and I observed it to be straddling the double white lines which separated the east and westbound lanes with approximately half to three quarters of the Commodore within the oncoming right eastbound lane. I estimated the speed of this vehicle at this point to be 140-145 km/h. I moved slightly to my left, still within the right lane as the Commodore continued to approach me at a very fast rate of speed. I observed a green P plate displayed on the windscreen of the Commodore and observed it veer sharply and suddenly to the left, toward the correct side of the road for it. I continued to observe the Commodore as it approached and then pass me still travelling at a very fast rate of speed. I observed the Commodore in my right side mirror after it passed me and I observed that it had commenced loss of control. The rear of the Commodore began to rotate clockwise as the vehicle overcorrected from the sharp left movement whilst attempting to negotiate the sweeping right bend applicable for it. The rear of the Commodore continued to rotate in a clockwise direction, the left rear wheel travelled onto the southern gravel shoulder, the vehicle then slid sideways across the westbound lane still at speed, and toward the eastbound lanes.

23 Felix Kostiuk's account of the lead up to, and of the accident itself, was as follows:

As we approached this bend, a car appeared all of a sudden in front of me. It was in the bend, travelling towards us. It appeared to be out of control, I had seen a puff of what looked like dust come from the rear left wheel of the car. The rear of the car appeared to have been off the road and on the gravel shoulder on the south side of the road. The rear of the car was skidding and had lost traction. I could hear the sound of tyres skidding and I could see tyre smoke, the rear left of the car was rotating towards us faster than the front. Within milliseconds, the front lost control as well, and the car was coming towards us, almost on a 45 degree angle. The car was a green Holden Commodore wagon with P plates displayed on the front.

I took evasive action and swerved to my left, hugging the north shoulder of the road. I saw dad's brake lights come on and him swerve to the right ... it appeared as though the car was going to pass between us. He was in the eastbound overtaking lane, I was heading in the direction of the front left corner of the car in the left lane, dad was in the process of crossing to the westbound lane to avoid the car. Compared with the previous westbound traffic passing us, this car was coming towards us at a far greater speed than those other cars.

As the car was about 5-10 metres away from us, it suddenly spun and rotated approximately 180 degrees clockwise, heading back across to the westbound lane. As it did this, I heard dad say 'Fuck, fuck fuck', and I saw him impact the front right corner of the car. I heard a loud smash, saw glass and metal fly everywhere, and I saw dad get ejected from the bike, over the front of the car. He was cartwheeling vertically. I distinctly remember his arms flailing in the air.

After the car hit dad, the back of it kept rotating, and slid past me to a stop in the westbound lane, facing south west, partially off the road to the south side. Dad kept flying through the air and landed face down in a ditch on the southern side of the road, directly under the street sign for Tower Rd.

24 This conduct gave rise to charges 2 and 3 - reckless conduct endangering life, and culpable driving causing death.

25 At about 2:17 pm, the interlock device recorded an event of 'power off'. This was consistent with the time of the collision. Felix Kostiuk immediately stopped his motorcycle and tended to his father, after calling 000. A number of witnesses, including Felix Kostiuk, observed the respondent emerging from the car and behaving in an erratic and aggressive manner. The respondent entered into a verbal confrontation with Felix Kostiuk, while Victor Kostiuk was lying on the ground, fatally injured.

As [Felix Kostiuk] was preparing to start CPR on his father, [the respondent] approached him. [The respondent was] bleeding from [his] right temple and appeared angry. [The respondent was] observed by others to be aggressive and swearing before [he] approached Felix Kostiuk. Felix Kostiuk said to [the respondent], 'What the fuck did you do?' [The respondent] clenched [his] fists and walked towards Felix Kostuik and said, 'Excuse me cunt?' Felix Kostiuk said, 'You killed my fucking dad'.[3]

27 The respondent was subsequently arrested by another off-duty police officer, and taken to hospital for treatment for minor injuries. At the hospital, his BAC was recorded as being 0.015. A forensic report prepared by Dr Sunjeev Gaya proposed, based on the respondent's BAC result at the hospital, that the respondent's BAC at the time of the collision had been between 0.05 and 0.08.[4]

28 Victor Kostiuk was treated at the scene by other riders and paramedics. Tragically, he could not be saved and was declared dead shortly after. A post-mortem examination confirmed that the cause of death was the injuries sustained in the motor vehicle collision.

29 The following day, the respondent was interviewed by police. He made a number of admissions, including that he had only had one hour's sleep in Merimbula, that had taken a number of 'Valium' tablets on the morning of the accident, that, while in Eden, he had consumed beer and used methylamphetamine. In addition, he admitted that he had allowed AB to drive the vehicle, and to provide breath samples, in order to circumvent the interlock device.

30 The Major Collision Investigation team of Victoria Police subsequently conducted a road accident reconstruction of the crash site. In his report, Detective Leading Senior Constable Mick Hardiman said:

The [respondent] has input a right steering manoeuvre, causing the vehicle to yaw to the right, rotating in a clockwise direction. The [respondent's car] has been out of control for a minimum of approximately 153 metres prior to impacting the BMW motorcycle [the deceased's vehicle] (whilst essentially travelling backwards) with the driver's side door and front driver's side quarter panel. The area of impact between the [respondent's vehicle] and the motorcycle was identified by gouge and fluid marks, located approximately 0.4 metres into the west bound lane of the Princes Highway, opposite the intersection with Tower Road.

...

At the commencement of the visible tyre mark, the [respondent's vehicle] was in a yaw, caused by the right steering input by the driver, and was travelling at a minimum of 131 km/h. The vehicle has yawed whilst rotating in a clockwise direction, before transitioning into a spinning skid. Post impact, the [respondent's vehicle] has rotated in an anticlockwise direction before coming to rest. At impact the motorcycle was travelling at approximately 91 km/h.

31 After setting out the background facts, the judge turned to objective gravity of the offending. He noted that the respondent's counsel had accepted that the offending giving rise to the charge of culpable driving represented 'a particularly grave example'[5] of that offence.

32 With regard to the gravity of the offending, the judge pointed to the fact that the respondent had been driving erratically, and at extremely high speed, for at least the better part of an hour, prior to the collision which resulted in Victor Kostiuk's death. He noted that the respondent and AB had created a number of videos showing the speed at which they had been driving. That, of itself, demonstrated that the vehicle was being driven in a dangerous manner in the period leading up to the collision. Further, his Honour observed that the respondent had used AB to circumvent the operation of the interlock device on several occasions. This was undoubtedly because the respondent had consumed alcohol, and was also affected by drugs. The judge said that he would take all of these matters into account.

33 The judge summarised the respondent's attitude throughout the period leading up to the fatal accident in the following terms:

You made a deliberate choice to drive after consuming methylamphetamine, alcohol and prescription medication and chose to drive at dangerously excessive speeds for a prolonged period while under the influence of that combination of substances. Your attitude which is apparent on the videos of your driving while your friend is encouraging you to go faster, further demonstrates your complete lack of regard to who may be at risk as a result of your conduct. Your actions on this occasion were entirely irresponsible and self-indulgent.[6]

34 With regard to the respondent's behaviour towards Felix Kostiuk during the confrontation which immediately followed the collision, the judge characterised it as 'callous and reprehensible.'[7] In his Honour's view, the respondent's offending 'represent[ed] a very serious example of culpable driving and [his] moral culpability [was] high.'[8]

35 The judge then turned to the various victim impact statements that were tendered on the plea. The majority of those statements were provided by members of the Kostiuk family. However, other statements, such as those provided by Wayne and Tyler Reynolds, detailed the impact that the offending had had upon them. Both the Reynolds were named as those whose lives were endangered by the respondent's conduct in charge 2.

36 His Honour paid particular attention to the victim impact statements of Felix Kostiuk and of Victor Kostiuk's wife, Pauline Kosituk, who was, herself, a retired police officer. In her statement, Pauline Kostiuk said that motorcycle riding, which had previously been a hobby that she shared with her husband, was now a source of great anxiety and fear. In his statement, Felix Kostiuk outlined the post-traumatic stress disorder ('PTSD') from which he had suffered since the accident. He described his ongoing anger, inability to sleep, and frequent flashbacks.

37 The judge was obviously deeply moved by the victim impact statements from members of the Kostiuk family.

38 With regard to the respondent's personal circumstances, the judge observed that his parents had separated when he was young. He had moved between the care of his mother, and that of his father, throughout his dysfunctional upbringing. He eventually left home at the age of 16. He left school at that age, and commenced an electrical apprenticeship. Some 18 months later, he abandoned that apprenticeship and moved into labouring work.

39 The judge detailed the limited nature of the respondent's familial relationships. He had no contact at all with his mother, and hardly any contact with his half and step-siblings. He had managed, however, to maintain some sort of relationship with his father, who had been a source of support throughout the plea. At the time of sentence, the respondent was still involved with the mother of his child, who was then aged 11 months.

40 The judge then considered a report prepared by Mr Ian Mackinnon, a consultant psychologist who had been engaged by the solicitors for the respondent. Mr Mackinnon saw the respondent on one occasion on 18 July 2019, at Port Phillip Prison. In his report dated 28 July 2019, he detailed the respondent's history of having been sexually assaulted by two strangers when he was aged only 13. Following that incident, the respondent began consuming alcohol, and using drugs such as cannabis and ecstasy. The judge observed that by the respondent's late teens, he had begun using methylamphetamine on a regular basis.

41 In 2016, the respondent made an attempt at rehabilitation for his methylamphetamine addiction. This involved a three month inpatient treatment program. He remained abstinent for about eight months before he relapsed. He then sought further assistance for his drug addiction in late 2017 and again in September 2018, shortly before the offending.

42 In his report, Mr Mackinnon expressed the view that the respondent suffered from PTSD as a result of the sexual assault he had experienced as a teenager. Mr Mackinnon also considered that the respondent's PTSD had been exacerbated by his involvement in the tragic death of Victor Kostiuk.

43 The judge observed that it was 'very difficult to disentangle the sources of [the respondent's post-traumatic stress] disorder.'[9] His Honour also noted Mr Mackinnon's observations that the substances consumed by the respondent on the day of the offending 'would have been enough to adversely affect ... [the respondent's] judgment and ability to drive a motor vehicle'.[10]

44 With regard to the respondent's time on remand, the judge noted that he had completed a number of rehabilitative and vocational courses. Urine screens tendered on the plea indicated that he had remained drug-free. Further, he had been employed to perform maintenance work in the prison kitchen, and had volunteered his time to assist new inmates in adjusting to the particular unit in which he resided.

45 The judge then turned to consider the relevant mitigating factors in this case. He acknowledged the respondent's plea of guilty, which had been entered at an early stage. He considered that the plea demonstrated the respondent's 'acceptance of responsibility' and found that it had 'facilitated the course of justice.'[11] While his Honour recognised the principles regarding youth as a mitigating factor,[12] and accepted that they were applicable in this case, he noted that he was required to weigh them against the gravity of the offending, which in relation to the present facts, was high.

In my view the other relevant sentencing considerations such as general deterrence, denunciation of your conduct, just punishment and protection of the community must also carry weight in the sentencing discretion in this instance and therefore the mitigating effect of your youth is necessarily reduced in this instance.[13]

47 With regard to Verdins[14] considerations, the judge expressed doubt that principles five and six had been enlivened,[15] although that submission had been advanced on the plea. He said that he would give little weight to those principles. In that regard, he referred to Mr Mackinnon's view that the respondent was likely to cope well with imprisonment.

48 As to the respondent's prospects of rehabilitation, the judge held them to be 'reasonable.'[16] The Director did not challenge that assessment in this appeal.

49 His Honour then turned to the fact that culpable driving causing death was a 'standard sentence offence'. His discussion of the relevant principles governing sentencing for such offences was as follows:[17]

In this instance Charge 3 is a standard sentence offence for which the standard sentence is one of eight years. Pursuant to section 5A of the Sentencing Act 1991, the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. Both Mr Hutton who appeared on behalf the Director of Public Prosecutions and Mr Patton on [the respondent's] behalf submitted that the objective seriousness of [the respondent's] conduct in relation to this offence elevate it above the mid-range of seriousness.

As has been established by recent authority in this State, taking into account the standard sentence for an offence is a guidepost for the Court to consider as part of the instinctive synthesis like any other factor and does not have primacy in the exercise of the discretion.[18]

I also acknowledge s 5B(2)(b) of the Sentencing Act 1991 which provides that in sentencing an offender for a standard sentence offence, a court must only have regard to sentences previously imposed for the offence as a standard sentence offence. Further, when fixing a non-parole period for a standard sentence offence, pursuant to s 11A(4)(c) of the Sentencing Act 1991 unless the court considers it is in the interest of justice not to do so, the court must fix a non-parole period of at least 60% of the relevant term.

50 Finally, the judge acknowledged that some degree of cumulation was warranted to reflect the quite separate and distinct conduct that gave rise to charges 1 and 2. He accepted, however, that the conduct giving rise to charges 2 and 3 overlapped to a very significant degree and acknowledged the need, in any event, to apply the principle of totality. He then sentenced the respondent as indicated above.[19]

51 Mr Kissane's overall submission was that the individual sentences on all three charges, the orders for cumulation, the total effective sentence of 10 years, and the non-parole period of 7 years, were each wholly outside the range reasonably available for offending of this gravity.

52 More particularly, Mr Kissane submitted that the respondent's moral culpability for his actions was so great as to warrant far longer individual terms of imprisonment than those which had been imposed. He also complained of the judge's orders for cumulation (3 months and 9 months respectively), which, he submitted, fell well short of what was warranted by the offending.

53 Mr Kissane acknowledged that the judge appeared to have taken into account all relevant sentencing principles. Nonetheless, he submitted that the actual individual sentences imposed, and the total effective sentence, fell well short of what was required.

54 Mr Kissane's submissions focused upon four matters. The first was the aggravating features of the offending. The second concerned the statutory guideposts that the judge had been required to take into account in relation to the charge of culpable driving, it being a 'standard sentence offence'. The third was what he submitted to be the paucity of matters in mitigation. The fourth related to the judge's failure to appreciate the objective gravity of each of the two charges of reckless endangerment.

55 Mr Kissane emphasised the judge's finding that the offending was 'a very serious example of culpable driving'.[20] He focused upon the high level of moral culpability associated with the respondent's behaviour. He characterised it as demonstrating 'a breathtakingly reckless disregard for the safety, and indeed lives, of other road users ...' He noted that the respondent's conduct had been 'conscious and deliberate', displaying recklessness, and not mere negligence (or even gross negligence), as to the risk of collision and its fatal consequences.[21]

56 Mr Kissane submitted that this was no case of mere momentary inattention, but rather of protracted offending, extending over a period of close to an hour. The respondent's recklessness had been further aggravated by the fact that he had consumed both alcohol and methylamphetamine mid-journey, to the point that his capacity to control the vehicle had been impaired. He was well aware of the fact that he was not in a fit state to drive.

57 Mr Kissane pointed to a number of additional aggravating features that, he submitted, showed that a far higher sentence than the 9 years imposed on charge 3 had been warranted. These included the period of time over which the respondent had driven in a reckless manner prior to the fatal collision. They also included the respondent's having filmed the speed at which the vehicle was being driven, which was said to demonstrate his awareness of what he was doing, and his willingness to disregard the risks associated with driving at those extraordinary speeds. It was further submitted that the respondent's admission, in the first video, that he was 'too fucked to drive' elevated the offending 'into something significantly worse.' Moreover, it was also an aggravating factor of the overall offending that he had used AB to circumvent the interlock condition of his licence.

58 Mr Kissane next submitted that the offending was further aggravated by the fact that there were multiple victims of the two charges of reckless endangerment. He submitted that the respondent's crass behaviour in the immediate aftermath of the collision was 'callous', and demonstrated a lack of 'concern or contrition' for his actions. That bore upon the need for specific deterrence. Of course, general deterrence loomed large as a relevant sentencing consideration in any event.

59 Mr Kissane submitted that it was necessary for the sentences imposed to demonstrate denunciation of what the respondent had done, and to ensure that he was justly punished for his actions. Finally, there was a need to ensure that the sentences imposed were of sufficient severity to protect the community from the respondent for a lengthy period of time.

60 As previously indicated, Mr Kissane acknowledged that the judge's sentencing remarks had identified all relevant sentencing considerations, and appeared to address them appropriately. He submitted, however, that when one took into account the sentences actually imposed, the judge had plainly accorded insufficient weight to the various aggravating features, and must have given too much weight to the mitigating factors present.

61 Mr Kissane further acknowledged that the judge had fully appreciated that he was dealing with a standard sentence offence and what that entailed. The figure chosen by the legislature for a mid-range example of culpable driving was 8 years' imprisonment. In that regard, the sentence of 9 years' imprisonment for that offence was far below what the judge ought to have imposed, given just how serious this particular example happened to be.[22]

62 Mr Kissane acknowledged that there were several mitigating factors present. These included the respondent's youth and his early plea of guilty. He submitted, however, that they ought not to have weighed heavily in the respondent's favour.

63 With regard to youth, Mr Kissane submitted that given the nature and gravity of the offending, that factor was less significant than it might be in other cases. He pointed to Director of Public Prosecutions v Hill,[23] where this Court said of youthful offenders found guilty of culpable driving:

Driving is an 'adult responsibility'. That responsibility involves the necessity to make adult decisions and choices, and an awareness that a failure to do so will result in the same consequences that apply to mature adults. Those who have the privilege of holding a drivers licence must ensure that they make decisions carefully and responsibly, because the failure to do so may have catastrophic consequences, including the death of others.

...

Unfortunately, the offence of culpable driving is one which is frequently committed by young drivers. If general deterrence is to be meaningful, it must be directed towards this class of offenders and cannot be regarded as irrelevant because of their youth.[24]

64 With regard to the early guilty plea, Mr Kissane submitted that while it certainly had utilitarian value, the judge had not considered it to be indicative of remorse. Indeed, his Honour made no finding at all with regard to the issue of remorse. It was submitted that this was a 'considered position' on the part of the judge and that it should be taken as a 'rejection of the respondent's submission that he was genuinely remorseful'.

65 Finally, Mr Kissane submitted that the individual sentences on charges 1 and 2 were each manifestly inadequate. He noted that the judge had barely mentioned the objective gravity of the offending giving rise to these charges, indicating that he had failed to give adequate weight to that factor. He further noted that the individual sentences of 3 years imposed on those two charges reflected only 30% of the maximum sentence available. He submitted that the offending in each case was of such gravity as to warrant sentences 'towards the top of the range'.

66 In that regard, Mr Kissane referred to the decisions of this Court in Sadiq v The Queen,[25] Director of Public Prosecutions v Rivette,[26] and Martinez v The Queen.[27] He submitted that the respondent's offending was more serious than that of the offenders in those cases. It therefore warranted a greater sentence than the 3 years imposed on each charge.

67 Further, Mr Kissane submitted that the offending giving rise to charges 1 and 2 involved separate victims. Each represented a very serious example of reckless endangerment and called for both a sterner sentence than 3 years, and a significantly greater degree of cumulation than 9 months, and 3 months, respectively.

68 In that regard, Mr Kissane observed that the offending giving rise to charge 1 was temporally distinct from the offending giving rise to charges 2 and 3. It took place about an hour before the fatal collision. He submitted that the respondent must have been aware, by the stage at which the collision occurred, that his conduct was reckless in the extreme and likely to kill, or seriously injure, someone. However, he continued to drive in the same utterly reckless manner for a further hour after the first offence was committed.

69 Mr Kissane accepted that there had to be a significant degree of concurrency between the sentences imposed on charges 2 and 3. He noted, however, that charge 2 involved three separate victims (Felix Kostiuk and the two Reynolds), and submitted that the order for cumulation of only 3 months represented a 'failure to reflect the criminality associated with those three victims.'

70 Mr Gurvich's overall submission was that, given the respondent's youth, his early plea of guilty, the trauma he had suffered as a result of having been sexually assaulted at a very young age, and the worthwhile steps that he had taken towards rehabilitation, the sentences imposed, both individually and in total, were within range.

71 Mr Gurvich emphasised the high hurdle which the Crown had to overcome when it challenged a sentence as being manifestly inadequate. He submitted, by reference to a number of authorities that,[28] on a Crown appeal, this Court must be satisfied, first, that there was an error in the sentence imposed below and, second, that a different sentence should be fixed. He submitted that the Director had failed to overcome that dual hurdle.

72 Mr Gurvich next submitted that the judge, in his careful reasons for sentence, had addressed and taken into account all relevant sentencing considerations. These included the relevant statutory maximum penalties, the respondent's limited prior history, and the circumstances of the offending, including all aggravating factors. The judge had plainly given weight to the impact of the offending upon each of the victims. Importantly, he had taken into account the principle of totality, which he was required to do. It was submitted that his sentencing remarks revealed no error of either fact, or of law.

73 As regards the orders for cumulation, of which Mr Kissane specifically complained, Mr Gurvich submitted that in a case such as this, the principle of totality had a good deal of work to do. In that regard, he referred to what Redlich JA had said in Azzopardi v The Queen:

The rationale underlying the principle is that a 'just measure' of an offender's total criminality is a sentence which satisfies all sentencing objectives applicable to the entirety of that criminal conduct ... Considerations of mercy may further influence the sentencing judge to increase any downward adjustment. As Wickham J was to recognise in Magee v R, the sentence should be no longer 'than is necessary to meet the various purposes of criminal punishment'. Once the aggregate sentence satisfies both the mitigatory sentencing objectives as well as the punitive principles of just punishment, retribution, denunciation, deterrence and protection of the community, 'that is enough'. Wickham J also opined that '[m]ore than enough is wrong because the excess is not only purposeless but might be harmful'. Anderson J expressed similar views in Herbert v R.

One explanation for why it is ordinarily only necessary to order that the offender serve a portion of each multiple count to produce a proportionate sentence which satisfies all relevant sentencing principles may be that articulated in Fox and Freiberg on Sentencing and by Malcolm CJ in Clinch v R, that the severity of a term of imprisonment is an exponential, not a linear function. The severity of the sentence increases exponentially as it increases in length. Once the sentence satisfies the punitive and mitigatory sentencing objectives for the offender's overall conduct, the sentence is then proportionate to the offender's criminality. No justification then exists for a more severe sentence, proportionality and just deserts defining the outer limits of punishment.[29]

74 Mr Gurvich noted that even if this Court were of the view that there ought to have been a measure of greater cumulation ordered than the 9 months, and 3 months, respectively, on charges 1 and 2, and even if those amounts were doubled, that would still have the effect of adding only 12 months to the total effective sentence. He submitted that it would be quite wrong for this Court to, for example, add a year to the 10 year total effective sentence to give effect to that conclusion. This would hardly be more than 'tinkering' with the present sentence. He reminded the Court that the sole ground of appeal in this case is one of manifest inadequacy. There is no ground alleging specific error. The complaint regarding inadequate cumulation was merely a particular of the ground itself. However, even if made good, it could not, on its own, establish that the total effective sentence was manifestly inadequate.

75 In conclusion, Mr Gurvich submitted that the three individual sentences imposed were all reasonably open to the judge. So too were the total effective sentence and the non-parole period. Even if one were to regard those sentences as somewhat lenient (or towards the lower end for offending of this kind), that did not demonstrate that they were wholly outside the range. Accordingly, he submitted, this appeal should be dismissed.

76 Mr Kissane commenced his submissions before this Court in a somewhat dramatic fashion. He described the respondent's conduct as 'the most appalling episode of driving imaginable'. At least in terms of objective gravity, that description was, in our view, not far off the mark.

77 It is therefore perfectly understandable why, despite the fact that a total effective sentence of 10 years' imprisonment can hardly described as insubstantial, the Director has chosen to appeal against it on the ground of manifest inadequacy.

78 Yet, as the judge fully recognised, the task of sentencing an offender is far more complex than simply assessing the objective gravity of the offending. That factor must be balanced against matters of mitigation, including those personal to the offender himself.

79 The judge was fully cognisant of the impact that Victor Kostiuk's death had had, in particular, upon his wife and son. He regarded the victim impact statements as powerful and moving testament to the terrible tragedy associated with Victor Kostiuk's death.

80 The task of sentencing an offender, particularly one who is being dealt with for a crime that has given rise to widespread and legitimate outrage, is fraught with difficulty. That is not necessarily well understood by the wider community. This was a particularly challenging sentencing exercise for a number of reasons.

81 As we have said, Mr Kissane acknowledged that the judge's sentencing remarks were expressed with care, and great attention to detail. He, very properly, did not, and could not, contend that his Honour had fallen into specific error. Rather, he simply argued that when viewed as a whole, the individual sentences, the total effective sentence, and non-parole period were manifestly inadequate.

82 In considering that submission, it is first necessary to restate a truism. In Director of Public Prosecutions v Dalgliesh (a pseudonym),[30] the High Court stated, in relation to sentencing:

The discretionary nature of the judgment required means that there is no single sentence that is just in all the circumstances.[31]

83 In Ashdown v The Queen,[32] Ashley JA made very much the same point when he said:

It is of the essence of sentencing by application of instinctive synthesis that there is no single correct sentence in a particular case. So much is recognised, inter alia, by the fact that, absent specific error of principle, a sentence will only be altered on appeal if it was outside the boundaries of the sound exercise of the sentencing discretion.[33]

84 The discretion vested in sentencing judges is properly recognised as very broad.

85 In R v Clarke,[34] Charles JA (with whom Winneke P and Hayne JA agreed) had this to say:

A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact.[35]

86 With these general statements of principle in mind, we turn to the issue at hand. We are in no doubt that the judge, acting reasonably, could have imposed greater individual sentences on each of the three charges for which the respondent was being dealt with. Of course, that is really not to the point. The question is whether, recognising the broad parameters of the reasonable exercise of the sentencing discretion, the individual sentences, and the other orders made by the judge, fell so far short of what was required as to justify the epithet 'manifestly inadequate'.

87 In Director of Public Prosecutions v Karazisis, the approach to be taken to Crown appeals against sentence was described as follows:[36]

As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge.[37] Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.

The court will be astute to enforce the stringency of this test. As the High Court has emphasised:[38]

The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.

88 There were, as has been seen, a number of important aggravating factors present in this case. It was, undoubtedly, a very bad example of culpable driving. In truth, the respondent's conduct was appalling. It warranted severe punishment.

89 It can fairly be said that, having regard to the objective gravity of what the respondent did, the individual sentences imposed in this case, and the total effective sentence, might legitimately be viewed as somewhat lenient, and even merciful. The respondent could have had no complaint, had he, for example, received a total effective sentence of, say, 11 or 12 years' imprisonment.

90 The fact that the total effective sentence imposed could be viewed as lenient does not mean that the Director's complaint of manifest inadequacy has been made out. There is always room for some measure of leniency as part of any exercise of the sentencing discretion.

91 In R v Osenkowski,[39] King CJ made that very point:

It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform.[40]

92 In our view, the mitigating factors personal to the respondent were by no means as insubstantial as Mr Kissane contended.

93 First, there was an early plea of guilty. In a case of this kind, that, of itself, had considerable utilitarian value. Taken on its own, it warranted a substantial discount, as the judge himself plainly concluded.[41]

94 Secondly, the respondent was aged only 21 at the time of the offence. Young people are, as we know, often prone to do stupid things. The respondent was no different in that regard.[42] Of course, as Mr Kissane rightly conceded, his youth had to be given some weight by way of mitigation, albeit limited weight.

95 We, of course, acknowledge the force of the observations of this Court in Hill, upon which the Crown heavily relied. Even so, the respondent's youth, and his lack of prior convictions, other than summary driving matters, had to be taken into account to some degree in his favour.

96 Thirdly, the judge was entitled to find, as he did, that the respondent had reasonable prospects of rehabilitation. In arriving at that conclusion, the judge had regard to his prior efforts to overcome his addiction to drugs.

97 Fourthly, his Honour was bound to take into account the respondent's personal circumstances. More particularly, he had to have regard to the respondent's past history, including the trauma associated with his having been sexually abused at a very young age, leading to his PTSD. The links between that abuse, and the respondent's having turned to drugs, were plain to see.

98 None of this in any way diminishes the importance of sending a powerful message to those who drive whilst under the influence of drugs. Methylamphetamine, in particular, is a scourge amongst young people. Its terrible consequences are heightened when those in charge of potentially lethal weapons, such as vehicles, drive while under its influence.

99 Moreover, one should not ignore the crassness of the respondent's behaviour towards Felix Kostiuk in the moments after his father had been hurled from his motorcycle, to land in a ditch. That conduct warrants total condemnation.

100 Taking each of the sentences under challenge separately, it can be said that the sentence of 9 years' imprisonment on the charge of culpable driving was 'at the lower end', as counsel for the respondent rightly accepted during argument. At the same time, it must be remembered that it was longer than the standard sentence of 8 years now applicable to that offence. That was so, notwithstanding the fact that the respondent was entitled to call in aid the various mitigating factors to which we have referred.

101 The sentences imposed on each of the two charges of reckless endangerment pose really difficult problems. That offence covers a broad range of circumstances. It can be committed where the conduct in question results in quite serious physical injury to the person or persons who are endangered.[43] It also embodies conduct which does not lead to anything other than apprehension, or distress, on the part of those victims but it applies, as well, to conduct that is viewed as endangering others who are not identified, and who may never have come forward. They may not have sustained any physical or psychological injury. Indeed, they may not even have appreciated that they were ever at risk.

102 So far as charge 1 was concerned, the 'victims' identified in the count, as formulated, were the occupants of the Volkswagen camper van which was forced to take evasive action at about 1:25 pm. As indicated in the indictment and the summary of the prosecution opening on the plea, those occupants were never identified. The respondent, however, by his egregious conduct, exposed them to terrible risk. He did so recklessly, meaning that he was aware that by driving at the speed that he was, he was putting other, innocent, road users in danger.

103 At the same time, this particular offence was finite, and over in literally seconds. As indicated, those 'victims' seem not to have been identified, let alone, contacted. There was an absence of evidence on the plea as to whether they had suffered any actual, or lasting, harm from their fortuitous escape. The judge had to bear in mind that nothing that occurred thereafter, in terms of the respondent's continuing speed and erratic driving, could constitute an aggravating factor, so far as charge 1 was concerned.

104 The judge had to take great care to sentence the respondent for his conduct in endangering the occupants of the camper van, and for nothing more. In these circumstances, it seems to us that the sentence of 3 years' imprisonment on charge 1 was within range.

105 The count of reckless endangerment giving rise to charge 2 presented the judge with different, and still more, complex problems. That offence related to three victims, each of whom suffered some degree of trauma, and that had to be reflected in the overall sentencing synthesis.

106 The respondent's conduct in the period leading up to the precise act of reckless endangerment, which occurred at the moment of collision, was plainly an aggravating factor in respect of that particular charge. However, the driving that led to charge 1 had to be excluded from any additional punishment, so as to avoid double punishment.

107 In addition, the respondent's culpability for the death of Victor Kostiuk, and his moral culpability arising from his confrontation with Felix Kostiuk after the collision, needed to be carefully assessed when considering charge 2. For example, the fact of Victor Kostiuk's death could not lead to extra punishment for the offence of reckless endangerment, as this would violate the principles so carefully laid down by the High Court in Pearce v The Queen.[44] The task of unscrambling all these threads was by no means an easy one, but it is apparent from the judge's sentencing remarks that he was fully attuned to what had to be done in that regard.

108 That takes us to what can fairly be regarded as the strongest point made on the behalf of the Director by way of particulars to the manifest inadequacy ground. Mr Kissane submitted that the judge erred in cumulating only 9 months of the 3 year sentence on charge 1, and 3 months of the 3 year sentence on charge 2 on the base sentence of 9 years on charge 3.

109 It can readily be understood why the Director contended that the offending on charge 1 was separate and distinct from that which occurred almost an hour later, and it follows that a greater measure of cumulation would have been appropriate in relation to that charge.

110 We think, with respect, that there is substance to that point. The question is, to where does it lead? Assume, hypothetically, that the correct order for cumulation ought to have been twice that which the judge fixed, namely 18 months. It would follow that a further 9 months would be added to the total effective sentence of 10 years.

111 Yet, it must be remembered that the cumulation point is merely a particular of manifest inadequacy. To increase a sentence of 10 years to one of 10 years and 9 months would surely be to engage in 'tinkering'. It would not truly reflect a finding of manifest inadequacy in relation to the total effective sentence, as it presently stands.

112 The 3 months' cumulation ordered between charges 2 and 3 seems, to us, to have been reasonable, having regard to the fact that the 'one transaction rule'[45] was applicable to what was, in essence, a single piece of conduct.

113 Of course, given that culpable driving is a standard sentence offence, we are precluded from having regard to comparable cases involving sentencing for that offence under a pre-standard sentencing regime.[46]

114 For the reasons set out above (while recognising that this case was somewhat borderline), we have ultimately concluded that the Director has failed to establish manifest inadequacy. The sentence, though arguably lenient, did not fall so far short of what was required as to justify the intervention of this Court. It follows that the appeal must be dismissed.

[1] In 2014, the respondent appeared before the Local Court at Bega, New South Wales, on a charge of driving with a middle range prescribed alcohol concentration (a BAC of 0.08-0.15). In 2016, he again appeared before that court, this time on a charge of driving with a high range prescribed alcohol concentration (a BAC of more than 0.15). On that occasion, the Court ordered, inter alia, that the respondent be subject to the alcohol interlock condition for a period of four years. At the time of the offending, he had completed about two and a half years of that condition. See Road Transport Act 2013 (NSW), ss 108 and 110.

[2] These are a series of raised strips that are installed on top of a dividing line of a road. They are designed to create a loud noise under the vehicle's tyres when driven over, so as to warn the driver of the edge of the lane or road.

[3] [2019] VCC 1362, [32] ('Reasons').

[4] It was acknowledged by the prosecution on the plea, however, that this opinion was, at best, an estimate. It was acknowledged that there was difficulty in relying on this figure, as it did not account for whether there had been unabsorbed alcohol in the respondent's stomach at the time of the collision.

[12] Ibid [68], quoting Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43, 57 [44]; [2011] VSCA 372 (Redlich JA, Coghlan AJA agreeing at 70 [92], Macaulay AJA agreeing at 70 [93]) ('Azzopardi').

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

[15] Ibid 276, [32]. Principle five is enlivened upon the existence of a condition at the date of sentencing (or its foreseeable recurrence) that could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health. Principle six is applicable where there was a serious risk of imprisonment having a significant adverse effect on the offender's mental health.

[18] R v Brown [2018] VSC 742, [65]-[68] (Champion J).

[19] See above, [2].

[21] It should be noted, however, that in Paszynyk v The Queen [2014] VSCA 87; (2014) 43 VR 169, 182 [57] (Priest JA, Redlich JA agreeing at 171 [7]), this Court made it clear that culpable driving, based upon recklessness, was not necessarily to be regarded as a more serious form of this offence than culpable driving based upon gross negligence. Each case had to be assessed in the light of its own particular facts.

[22] Mr Kissane noted that defence counsel on the plea had accepted that the objective gravity of the offending, in terms of culpable driving, fell above the 'mid-range' of objective seriousness for that offence.

[23] (2012) 223 A Crim R 285; [2012] VSCA 144 ('Hill').

[24] Ibid 14-15 [45], [51] (emphasis added).

[25] [2017] VSCA 64. In that case, the offender received, inter alia, a sentence of 4 years and 6 months' imprisonment on a charge of reckless conduct endangering life. The offending giving rise to that charge was somewhat similar to the present case. He drove at speeds of up to 120 kilometres per hour, while affected by methylamphetamine, before colliding with another vehicle. Leave to appeal against sentence on the ground of manifest excess was refused.

[26] [2017] VSCA 150 ('Rivette'). In that case, the offender received an aggregate sentence of 715 days' imprisonment and a 2 year community correction order for, inter alia, a charge of reckless conduct endangering life. There, the offender entered a running car that was unoccupied. The owner was speaking to a relative. When he realised his car was being stolen, he mounted the bonnet in an attempt to stop the offender. However, the offender continued to drive for about 30 minutes, while the owner of the vehicle held onto the bonnet. A Director's appeal to this Court was allowed on the ground of manifest inadequacy. The offender was resentenced to, inter alia, a term of 4 years and 9 months' imprisonment on the charge of reckless conduct endangering life.

[27] [2019] VSCA 135 ('Martinez'). In that case, the offender received, inter alia, a sentence of 5 years and 6 months' imprisonment on a charge of reckless conduct endangering life. The offender rammed a stolen tow-truck into a marked police vehicle containing two officers. An appeal to this Court on the grounds of manifest excess and specific error was dismissed.

[28] DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 542 [10]; [2006] VSC 147 (Redlich JA, Chernov JA agreeing at 540 [1], Vincent JA agreeing at 541 [6]); DPP v Higgs (2010) 28 VR 101, 109 [35]; [2010] VSCA 154 (Redlich JA, Maxwell P agreeing at 102 [1], Mandie JA agreeing at 110 [38]); DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662 [123]; [2010] VSCA 350 (Ashley, Redlich and Weinberg JJA) ('Karazisis'); R v Pham [2015] HCA 39; (2015) 256 CLR 550, 559 [28]; [2015] HCA 39 (French CJ, Keane and Nettle JJ); DPP v Trueman [2017] VSCA 24, [39]; and DPP v Hodgson [2019] VSCA 49, [109].

[29] Azzopardi [2011] VSCA 372; (2011) 35 VR 43, 61 [61]-[62] (Redlich JA, Coghlan AJA agreeing at 70 [92], Macaulay AJA agreeing at 70 [93]) (citations omitted) (emphasis added).

[30] (2017) 262 CLR 428; [2017] HCA 41.

[31] Ibid 434 [7] (Kiefel CJ, Bell and Keane JJ).

[32] (2011) 37 VR 341; [2011] VSCA 408.

[34] [1996] VicRp 83; [1996] 2 VR 520.

[35] Ibid 522 (Winneke P agreeing at 524, Hayne JA agreeing at 524) (citation omitted). Quoted and approved in Karazisis [2010] VSCA 350; (2010) 31 VR 634, 644 [37] (Ashley, Redlich and Weinberg JJA).

[36] Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127]-[128] (Ashley, Redlich and Weinberg JJA).

[37] R v Boaza [1999] VSCA 126, [42] (Winneke P, Phillips JA agreeing at [54]).

[38] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 672 [15]; [1999] HCA 29.

[39] (1982) 30 SASR 212

[40] Ibid 212-13 (White J agreeing at 213). An analogous statement of principle is to be found in s 5(3) of the Sentencing Act 1991 ('the Sentencing Act'), which reflects the importance of parsimony as one of the matters to which a sentencing judge must have regard.

[41] We note that the judge, in his sentencing remarks, indicated, pursuant to s 6AAA of the Sentencing Act, that but for the plea of guilty, he would have imposed a total effective sentence of 12 years and 6 months' imprisonment with a non-parole period of 8 years and 6 months. See Reasons, [83].

[42] His 'hooning' behaviour, not just in driving at great speed, but, for reasons that can only be guessed at, filming himself doing so, suggests a combination of stupidity and drug induced impairment that speaks for itself.

[43] Of course, the infliction of physical injury may amount to a separate offence, in addition to the charge of reckless endangerment. See generally, Rivette [2017] VSCA 150 and Martinez [2019] VSCA 135.

[44] (1998) 194 CLR 610; [1998] HCA 57.

[45] See generally, D A Thomas, Principles of Sentencing (Heinemann Educational Books, 2nd ed, 1979), 53-4; Sir Rupert Cross, The English Sentencing System (Butterworths, 3rd ed, 1981), 100‑3; and Arie Freiberg, Fox and Freiberg's Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014), 788-92. See further, Flynn (a pseudonym) v The Queen [2020] VSCA 173, [112].

[46] Sentencing Act, s 5B(2)(b).