DPP v Weybury [2018] VSCA 120

1 On 14 September 2017 and 2 October 2017 the respondent Ebonie Weybury (then aged 31) pleaded guilty to dangerous driving causing death and dangerous driving causing serious injury. A County Court judge sentenced the respondent on 6 October 2017 as follows:

Dangerous driving causing serious injury[2]

Other orders: Licence cancelled and disqualified from driving on Victorian roads for 2 y 6 m

2 The appellant ('the Director') appeals against the sentences imposed on charges 1 and 2, and the order for cumulation, on the ground that they are manifestly inadequate. The Director relies on the following particulars of manifest inadequacy, contending that the sentencing judge:

(1) failed to have sufficient regard to the maximum penalties prescribed for the offences;

(2) failed to properly reflect the objective gravity of the offences;

(3) failed to have sufficient regard to the need for general deterrence;

(4) failed to have sufficient regard to the need for specific deterrence;

(5) failed sufficiently to manifest the denunciation by the court of the type of conduct in which the offender engaged;

(6) failed to have sufficient regard to the need for protection of the community;

(7) failed to have sufficient regard to the need for just punishment;

(8) failed to reflect the objective gravity of the offences in the orders for cumulation made upon the base sentence;

(9) failed to have sufficient regard to the impact of the offending upon the victims;

(10) had regard to the statements in Stephens v The Queen[3] that, while current sentencing practices for this kind of offending were then low, sentences should nevertheless increase gradually over time; and

(11) failed to regard current sentencing practices as but one part and not the controlling part of section 5(2) of the Sentencing Act 1991.

3 While particulars of this kind may be required under para 7.2 of Practice Note SC CA 1, and direct attention to the suggested reasons why a sentence is contended to be manifestly inadequate, they otherwise serve no purpose.[4]

4 A separate ground of appeal, alleging specific error by the sentencing judge in having regard to Stephens, was abandoned during argument on appeal. As appears below, the relevant aspect of Stephens as to gradual - or incremental - increases represented the law of this State at the time the respondent was sentenced and the sentencing judge was bound to apply it. If he did, he made no error. However, the Director nevertheless contends that the inadequacy of the sentences is explained by the sentencing judge's application of Stephens. This issue is considered below.

5 On 15 October 2015 the respondent (then aged 29) was speeding in her Commodore on Dorset Road in Boronia. At 10:55 pm she hit the kerb of the footpath and collided with a pedestrian, Anthony Cassidy (aged 36). Mr Cassidy was walking his friend's dog. The impact threw Mr Cassidy and the dog forward and they landed further south on the footpath and nature strip. Mr Cassidy received significant injuries and was knocked unconscious. The dog was killed immediately.

6 Mr Cassidy was taken to the Trauma Centre of the Alfred Hospital and remained there for three weeks when he died of a severe brain injury (charge 1: dangerous driving causing death).

7 In the car at the time of collision was the respondent's boyfriend, Matthew Walshe (then aged 30), who was seated in the front passenger seat. The collision caused serious injuries to Mr Walshe. He was taken to the Emergency Department of the Royal Melbourne Hospital for treatment (charge 2: dangerous driving causing serious injury).

8 The sentencing judge described the circumstances leading up to the offending, the offending, and its consequences in the following terms directed to the respondent:

At the time of your offending, you were living with Mr Walshe at a Kilsyth address. Both of you had to move from that address and in the days preceding your offending you had both been arguing over the anticipated move.

On Thursday, 15 October 2015, in the afternoon, both you and Mr Walshe had been arguing, and you left your joint residence and attended at your sister's. Yours and Mr Walshe's dispute continued via text messages and phone calls over the afternoon and evening. You eventually returned to your shared residence at about 9.00 pm. You agreed that you would drive Mr Walshe to a residence in Ferntree Gully and you both left your shared residence at approximately 10.00 pm.

During the drive, arguing between the two of you again broke out. This involved yelling and verbal abuse. During the drive, you threatened to take Mr Walshe to the police and in fact you did drive to the Boronia Police Station in Dorset Road. You pulled into the driveway of the station, however, changed your mind and exited.

You then commenced travelling on Boronia Road in a westerly direction. By this stage, you had begun exceeding the speed limit. Your passenger, Mr Walshe, told you to stop and slow down but you continued to drive at fast speed. Mr Walshe observed that you were driving at about 90 kilometres per hour.

In his first statement Mr Walshe states:

After we left the police station I can't remember where we went. All I remember is that her driving became worse in that she started speeding and driving really fast. I kept telling her to stop ...

Another road user, Mr Balakrishnan, who was driving in the same direction as you, observed your vehicle approaching him from behind. He describes you suddenly accelerating and overtaking him at a very fast speed. Shortly after overtaking Mr Balakrishnan's vehicle, you lost control of your vehicle as it began to swerve. You attempted to correct it, turning the steering wheel sharply to the right, the rear wheels locked and your vehicle commenced a sharp right hand slide, rotating across the two southbound lanes of Dorset Road.

Mr Balakrishnan an independent witness states as follows:

Not long after I pulled out from the 7-Eleven, a car came up behind me and just accelerated suddenly, like someone had floored the accelerator - it was in the right lane travelling in the same direction that I was, it started accelerating while it was behind me. It sounded like that typical commodore roar when you floor the car. It past me going at a very fast speed and I could see it was a white car and it was definitely a Holden, from the way it started swaying it had to be rear wheel drive.

The white car started losing control, it started doing a big S pattern in front of me as it weaved over the road, then suddenly it lost complete control and it looked like the wheels locked turning the car into a sharp right turn.

Dorset Road is a four lane carriageway with two lanes travelling in each direction. It is predominantly straight and flat and runs in a north-south direction. The applicable speed limit at the time of your offending was 60 kilometres per hour and the road conditions were unexceptionable.

Accident reconstruction evidence indicates that when your vehicle first commenced to yaw, it was travelling at a minimum speed of 97 kilometres per hour. That it continued to yaw across the road and footpath for approximately 42 metres before striking the front fence of a residence and then travelling a further 15 metres until its rested position. Examination indicates that there was no mechanical defect which contributed to your loss of control of your vehicle.

Ms Clarke, another road user, was travelling in the opposite direction to you on Dorset Road. She saw your vehicle travelling at a fast speed and observed it to swerve across the road in her direction. Your vehicle slid across the two northbound lanes of Dorset Road and narrowly missed the front of Ms Clarke's oncoming vehicle. Ms Clarke who had slowed the speed of her vehicle to what she estimates was 20 kph or so, believes your vehicle missed hers by a metre or so.

Mr Cassidy, a pedestrian, had turned from a side street onto Dorset Road and was walking a small dog on the footpath. Your vehicle continued across the northbound lanes hitting the kerb of the footpath and struck Mr Cassidy. Your vehicle continued at a fast rate, colliding with a front wooden fence, then a brick wall and ultimately hit and came to rest against the corner wall of a unit situated along Dorset Road.

Mr Cassidy was duly taken to the Alfred Hospital suffering with significant injuries. He underwent a number of procedures and received treatment over the ensuing three week period. Mr Cassidy failed to recover from severe brain injury and died on 8 November 2015.

Mr Walshe was taken to the Royal Melbourne Hospital and was noted to be suffering multiple facial fractures including two fractures to the left cheek and a fracture to the left eye socket, a spinal fracture, bruising and swelling to the eye, blurry vision, multiple lacerations to the head, face and elbow and glass fragments having lodged in his face. He required surgical reconstruction of his cheek bone and self-discharged from the hospital after two to three days.[5]

9 The sentencing judge then set out the evidence, as best it could be established given its contradictions, as to the context in which the respondent committed the offences. Reading the sentencing reasons as a whole, together with the transcript on the plea, it appears that the sentencing judge accepted that the respondent was somewhat fearful of Mr Walshe. That fear was in the context of him having pushed her over during a previous argument (resulting in a broken arm) and acting aggressively towards her on the day of the offending as part of their argument - including grabbing the respondent's arm which had previously been fractured.[6]

10 Further, the sentencing judge accepted that, prior to the respondent stopping her vehicle at the Boronia Police Station, Mr Walshe had:

(4) pulled up the handbrake of the car.[7]

11 The sentencing judge also accepted that, while the vehicle was stationary at the police station, Mr Walshe removed the rear vision mirror.[8]

12 Notwithstanding this conduct, which could have only inflamed the argument between the respondent and Mr Walshe, the respondent decided to keep driving - and did so in the dangerous manner resulting in the offending.

13 Having set out the circumstances of the offending and the context in which it occurred, the sentencing judge described the respondent's offending in words which clearly represent findings to the effect that the respondent's offending involved very dangerous driving and high moral culpability:

Objectively viewed your driving was well over the speed limit, irresponsible, dangerous, and you were ignoring Mr Walshe asking you to slow down. The precise mechanism by which you lost control of your vehicle is unexplained, however a loss of control at that speed is inherently dangerous. Here, it involved careering out of control into the oncoming lanes of traffic and then mounting the footpath, self-evidently exposing persons, to a high degree, to the risk of significant harm or death.

In your interview you referenced arguing with Mr Walsh and having felt panicked, confused and stressed. You made the decision to continue to drive with Mr Walshe remaining in the vehicle notwithstanding the inherent risk involved.

In your interview your responses to Mr Walshe's conduct include: indicating to him that you had had enough of violence in your life that you will not put up with it, or of being abused and threatened, see Q 78; that you warned Mr Walshe that if he continued on with his behaviour you would drive to a police station or pull over on the side of the road and call police and have him removed from your car; that after he had applied the handbrake you said to Mr Walshe, 'that's the last straw'; and that you 'wouldn't put up with this', see Q 167, and 178. These answers indicate that you were not sufficiently overborne as to be incapable of taking steps to remove Mr Walshe should it be necessary.

You made a decision to withdraw from the Boronia Police Station. You had considered and appreciated the inherent risk involved in driving in these circumstances, however, rather than seeking to avert that risk, determined to continue on with your driving. You could easily have mitigated this risk by having attended inside the police station, or simply pulled the car over after you had left the police station.[9]

14 We respectfully agree with the sentencing judge in this regard. He was correct to focus on the fact that the respondent's high speed driving occurred in the context of a deliberate choice by her to continue driving:

(2) after Mr Walshe had acted in the manner described above - both before she stopped the car at the police station, and while the car was stationary; and

(3) in the face of Mr Walsh repeatedly asking her to slow down.

15 The sentencing judge was right to characterise the respondent's offending as occurring after she had 'considered and appreciated the inherent risk of driving in these circumstances'.[10] Against this characterisation of the objective gravity of the respondent's offending, the sentencing judge carefully and comprehensively considered all the mitigating factors put forward on the plea.

16 Specifically, the sentencing judge took the following factors into account in arriving at the sentences:

(1) The need to balance the seriousness of the offending and the respondent's moral culpability for it with the respondent's personal circumstances and the community's interest in ensuring her rehabilitation as far as possible.[11] In that balancing exercise, it was necessary for the Court to consider deterrence (both specific and general), denunciation and protection of the community.[12]

(2) The plea submission that the principles of R v Verdins[13] were engaged to reduce the respondent's moral culpability.[14] Although the judge did not accept that Verdins principles were engaged, he nevertheless accepted that, at the time of sentencing, the respondent's psychological state included 'obsessional ruminative thinking, disturbed sleep, concentration difficulties, flashbacks and occasional nightmares'.[15] On this basis, the sentencing judge made some allowance for those symptoms, because they would make imprisonment more burdensome for her. The judge also took into account the fact that the respondent would face the 'daunting prospect' of prison as a first time offender.[16]

(3) That the respondent was, 'in a general sense', in a 'pressured situation' when she offended.[17] Further, the judge accepted that the respondent's decision to drive away from the police station was motivated by 'a desire not to get Mr Walshe into trouble - feeling confused, scared and vulnerable with [her] belongings still in the shared house with Mr Walshe'.[18]

(4) The respondent had facilitated the course of justice by pleading guilty at a relatively early stage and thus indicated genuine remorse, such that specific deterrence was of reduced significance.

(5) The respondent's prospects of rehabilitation were 'positive'.

(6) The 11 month delay in charging the respondent, and the further eight month delay in sentencing her after she had pleaded guilty.[19] The judge accepted that this delay had two effects which should be taken into account as mitigating factors: the respondent's rehabilitation had commenced, and the respondent had been 'kept in suspense regarding [her] fate' during the delay periods.[20]

(7) The sentencing judge rejected the plea submission that the respondent should be released on a community correction order or a combined jail term and community correction order, on the specific ground that he was not satisfied that the respondent's moral culpability was of a low order.[21]

17 Neither the Director, nor the respondent, complains about the sentencing judge's consideration of these factors.

18 As already noted, the sentencing judge referred to the Court of Appeal decision in Stephens. Specifically, the sentencing judge noted the Court of Appeal's statement that there was:

a need for a gradual increase in the sentences to be imposed for cases of dangerous driving causing death which fall within or above the mid-category of seriousness.[22]

The sentencing judge stated that he was satisfied this case 'fits within this range' of seriousness.[23] In other words, that the applicant's offending fell 'within or above' the mid-range of seriousness for the offence.

19 It is first convenient to deal with the Director's contention that the sentencing judge's reference to Stephens shows that he consciously determined to sentence the respondent in accordance with current sentencing practices for the offences with, at best, a 'gradual increase'; and that this was contrary to the Court's clear statement in Stephens that current sentencing practices for the offence of dangerous driving causing death were inadequate as they did not reflect the increase in the statutory maximum penalty from five years to 10 years.[24]

20 The Director contends that, on the basis of the High Court decision in Director of Public Prosecutions v Dalgliesh (a pseudonym),[25] and the recent decision of this Court in Carter (a pseudonym) v The Queen,[26] the statement in Stephens that the inadequacy of current sentencing practices for the offence of dangerous driving causing death requires 'a gradual increase in the sentences to be imposed for cases of dangerous driving causing death which fall within or above the mid category of seriousness' no longer represents the law. Instead, it is the duty of the Court to impose a just sentence for such offending, without the restraint of 'gradual increases'.[27] That submission must be accepted.

21 The Director submits, however, that Stephens remains good authority for the proposition that current sentencing practices as they stood at that time, and at the time of the plea in this case, do not reflect the objective gravity of this kind of offending. So much may be accepted. However, the fact that the sentencing judge in this case might have considered himself bound to impose a sentence which represented only a gradual, or incremental, increase above then current, but inadequate, sentencing practices is not to the point. If the sentencing judge so acted, that would provide an explanation for any inadequacy. But the central question as to whether the sentences were manifestly inadequate remains for consideration.

22 The Director contends that the sentences in this case, each representing 30 per cent of the maximum penalty, are plainly inadequate because they do not reflect the nature and objective gravity of the offending. The Director relies upon the decision of this Court in Director of Public Prosecutions v Neethling,[28] where this Court allowed a Director's appeal in a case involving (as here) both dangerous driving causing death and dangerous driving causing serious injury. In Neethling, the Court accepted that the following principles apply to sentencing for these offences:

1. General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.
2. A person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment.
3. The sentence which is imposed must take account of variations in the moral culpability of the person responsible.
4. A custodial sentence will usually be appropriate for this offence, except in cases where the offender's level of moral culpability is low.[29]

23 The Court then identified a series of factors which may aggravate the seriousness of a particular offence of dangerous driving causing death, as follows:

i Extent and nature of the injuries inflicted.

ii Number of people put at risk.

iii Degree of speed.

iv Degree of intoxication or of substance abuse.

v Erratic [or aggressive] driving.

vi Competitive driving or showing off.

vii Length of the journey during which others were exposed to risk.

viii Ignoring of warnings.

ix Escaping police pursuit.

x Degree of sleep deprivation.

xi Failing to stop.[30]

24 In Stephens, this Court stated that these factors do not constitute an exhaustive checklist of the factors to be considered in assessing the moral culpability of an offender found guilty of dangerous driving causing death. The Court stated:

However, the factors identified in Whyte (and subsequently adopted by this Court in Neethling as being relevant) do not constitute some mere checklist nor are they intended to be exhaustive. For example, matters such as the experience of the driver, his familiarity with the vehicle being driven, the terrain over which the vehicle is being driven and the degree of protection afforded to passengers are not matters listed.

Moral culpability in respect of criminal conduct does not fall to be assessed simply by identifying aggravating features that could have been present and then asserting that the case under consideration cannot be regarded as serious or very serious because of the absence of some of those factors. Both the dangerousness and moral culpability fall to be assessed by reference to all of the conduct and circumstances of the specific case, including the circumstances of the offender.

Offending by a person who has knowledge of the risks associated with particular driving, will ordinarily be adjudged more blameworthy than offending by one who is without that knowledge. The degree to which particular consequences of the offender's acts were, or should have been, foreseen by him or her will inform the question of moral culpability.

In the present case, having received abundant warnings as to the dangers associated with reckless or improper use of the buggy, the appellant chose to exceed the passenger limit and place a nine year old child in an unrestrained position, without her own seat, in the buggy.[31]

25 The Director contends, in our view correctly, that three of the 11 factors listed in Neethling aggravate the respondent's moral culpability:

(1) The respondent's dangerous driving put at risk all road users, and pedestrians, in the vicinity of her vehicle - and obviously her passenger, Mr Walshe.

(2) The degree of speed at the time the respondent lost control of her vehicle was very high (at least 97 km/h in a 60 km/h zone), and the speeding took place in a built-up suburban area.

(3) The respondent's driving was in the face of repeated warnings by Mr Walshe to slow down.

26 The Director contends that the first aggravating factor listed in Neethling - the extent and nature of the injuries inflicted - applies here, referring to the death of Mr Cassidy and the injuries to Mr Walshe. However, the death of Mr Cassidy was a necessary element of the offence on charge 1. The injuries to Mr Walshe, while significant, are of lesser seriousness than often seen in motor vehicle collisions. For these reasons, the first factor in Neethling does not, in our view, represent an aggravating factor. However, although not an aggravating factor, the death and serious injury have had significant consequences. Thus, the sentencing judge correctly gave some weight to the victim impact statements from the deceased's friends and family, and from Mr Walshe. The sentencing judge described these as demonstrating the 'profound and ongoing impact' of the consequences for those affected by the respondent's offending.[32]

27 The Director also contends that the respondent's driving was erratic, another aggravating factor listed in Neethling. Apart from the speed of the respondent's driving, there was no finding made by the sentencing judge as to how the respondent lost control of her car. In the absence of a finding to this effect, we do not consider erratic driving to be an aggravating factor present in this case.

28 In addition, the Director relies heavily on the fact that the respondent chose to drive as she did, in circumstances where she considered and appreciated the inherent risk to herself and others of her continuing to do so, as an aggravating factor.

29 Taking the circumstances as a whole, and giving due regard to the respondent's plea of guilty and other mitigating factors, the Director contends that the sentences imposed were wholly outside the range of available sentencing options, especially in circumstances where the sentencing judge himself found that the offending was 'within or above' the mid category of seriousness of such offences.

30 The respondent contends that the sentences, while lenient, nevertheless fell within the range of available sentencing options. As to the circumstances of the offending, the respondent relies upon the statement by the sentencing judge that he took into account 'in a general sense that [she was] in a pressured situation given the goings on in the car'.[33] She contends that this statement by the sentencing judge records a mitigating factor as to the circumstances of her offending. We do not accept that contention. As set out above, it is clear that the sentencing judge considered (as do we) that the 'goings on in the car' were an aggravating factor in circumstances where the inherent risk of those 'goings on' was recognised by the respondent and she nevertheless chose to continue driving - and did so at a dangerously high speed.

31 In these circumstances, we turn to consider the factors favouring the respondent in mitigation of her sentence. As appears above, they were all considered by the sentencing judge:

(1) The respondent pleaded guilty at an early stage, and thus demonstrated genuine remorse.[34]

(2) The respondent has no prior convictions of this kind - although she has accrued demerit points for exceeding the speed limit by between 10 and 15 km/h (two occasions) and by less than 10 km/h (one occasion).[35]

(3) The respondent has positive prospects of rehabilitation.[36]

(4) The respondent's time in custody will be more burdensome for her due to her present psychological problems, and the fact that she is a first-time offender.[37]

(5) The delay in charging the respondent and the fact she had the matter hanging over her head for an extended period.

32 Reading the sentencing reasons as a whole, it is clear that the judge considered all of these matters and gave weight to them in the respondent's favour. He was right to do so. However, in our opinion, it is clear that the judge either gave too much weight to these factors in his sentencing synthesis or, perhaps, considered himself constrained by a need to sentence in accordance with current sentencing practices with only a gradual, or incremental, increase - as stated in Stephens. For whatever reason, we have formed the clear view that the sentences imposed by the judge were outside the range reasonably open in all the circumstances of the case.

33 As appears above, we regard the respondent's moral culpability as high, and the dangerousness of the driving as a very serious example of the offences. However, it is in our opinion not helpful to debate whether, on the spectrum of cases from least to most serious, the offending in this case falls within a particular category such as 'mid-range' or 'bottom of the high-range' or other like classifications. Such an approach carries the risk that it will attract reference to current sentencing practices for offences which have previously been categorised in a particular range, whatever the circumstances of the offending and the mitigating circumstances. Such an approach may lead to sentencing judges unconsciously limiting their instinctive synthesis of a particular case by sentences in other cases classified within a particular range, rather than considering the individual facts of comparable cases.

34 In our opinion, it is best to avoid categorising cases as falling within a particular 'range' and, instead, for sentencing judges to have regard to relevantly comparable, and current, cases as 'yardsticks'. This approach involves considering where a case fits on the spectrum of offending, and is the preferable way for sentencing judges to have regard to current sentencing practices as a factor in the instinctive synthesis.[38]

35 When considering comparable cases, it is important to have strict regard to the offence under consideration. In offending such as the present, this Court stated in Stephens that moral culpability must be assessed by reference to the offence of dangerous driving causing death and not by reference to the spectrum of offending for the more serious offence of culpable driving causing death (where the maximum penalty is 20 years' imprisonment).[39]

36 Counsel for the respondent contends that, in considering the objective gravity of the offending in this case, it is instructive to look at the sentences imposed in obviously more serious cases as a guide to the range of available sentencing options in this case. The only case referred to was Director of Public Prosecutions v Ristovski,[40] where a County Court judge sentenced the offender to six years and three months' imprisonment for a charge of dangerous driving causing death. In that case, the offender had driven erratically, competitively and at extremely high speed over the course of an evening. After dropping a passenger off, the offender continued driving and lost control at a roundabout, colliding into a tree, resulting in the death of the front seat passenger. The offender was also affected by drugs and alcohol at the time of offending. We accept that that was a more serious case than the present. We note, however, that Ristovski was decided before this Court's decision in Stephens and, in light of Stephens and the High Court decision in Dalgliesh, the sentence in Ristovski was itself (in our view) manifestly inadequate.[41]

37 Taking all of the relevant circumstances into account, we are of the clear view that the sentences should be set aside as manifestly inadequate. They were wholly outside the range of sentences reasonably available for this offending.[42] Our conclusion in this regard does not depend upon identification of any specific error. As the High Court stated in Dinsdale v The Queen:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than noncustodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.[43]

38 In the event that the Court so concluded, the respondent relies on the residual discretion to contend that the appeal should be dismissed. The residual discretion survives the enactment of ss 289 and 290 of the Criminal Procedure Act 2009.[44] The circumstances in which the residual discretion can be exercised to dismiss a Crown appeal, notwithstanding a finding of manifest inadequacy in a sentence, cannot be exhaustively stated.[45] The circumstances include delay, parity, the totality principle, rehabilitation, and fault on the part of the Crown.[46] None of these factors apply in this case.

39 Counsel for the respondent contended that the residual discretion should be applied in this case because of its novel circumstances, namely that the only reason for the manifest inadequacy is the effect of the High Court decision in Dalgliesh on the 'gradual increase' statement in Stephens, as explained in Carter. We accept the Director's submission that those circumstances do not justify the exercise of the residual discretion in cases of that kind. Such a course would be inconsistent with the re-sentencing in Dalgliesh itself,[47] and other cases since the High Court decision in Dalgliesh.[48] It is enough to dispose of the contention in this case that, in determining appeals, this Court applies the law as it then stands.

40 Nor do we accept that the affidavit of the respondent as to her steps towards rehabilitation while in custody is a sufficient basis for the exercise of the residual discretion to dismiss the appeal. However, we have considered the affidavit in resentencing the respondent.

41 The respondent should be resentenced as follows:

(1) Charge 1 - dangerous driving causing death - four years and six months' imprisonment (base sentence).

(2) Charge 2 - dangerous driving causing serious injury - two years' imprisonment.

(3) Cumulate one year of the sentence on charge 2 on the base sentence of four years and six months (charge 1), making a total effective sentence of five years and six months.

(4) Non-parole period - three years and six months' imprisonment.

42 As required by s 6AAA of the Sentencing Act 1991, we declare that, but for the respondent's plea of guilty, we would have re-sentenced her to a period of six years and six months' imprisonment with a non-parole period of five years.

43 The other members of the Court would allow the Director's appeal. I respectfully disagree. It is necessary that I set out my reasons for that disagreement. Given, however, their Honours' thorough treatment of the relevant material - including the evidence and submissions - I am largely relieved of its recapitulation.

44 As has been noted,[49] in the course of debate in this Court, the Senior Crown Prosecutor abandoned ground 2, which, as formulated, asserted that the sentencing judge 'erred, following Stephens v R, in finding that it was necessary to increase the sentences imposed in relation to this type of offending by increments'. He was

correct to abandon this ground. Indeed, given the course of the proceeding before the sentencing judge, it is surprising that the appellant, first, included ground 2 in the notice of appeal; and, secondly, did not eschew reliance upon it sooner.

45 In Stephens,[50] this Court, citing Harrison,[51] held that 'there is a need for a gradual increase in the sentences to be imposed for cases of dangerous driving causing death which fall within or above the mid-category of seriousness'.[52] Harrison established that, for offences of negligently causing serious injury by driving falling into the 'upper range of seriousness', current sentencing practices were inadequate, and sentencing courts should no longer feel constrained by them[53] (sentences for mid-range and lower-end instances of the offence also needing to increase 'in order to maintain appropriate sentencing relativities').[54]

46 In the present case, the then Director himself appeared on the respondent's plea before the sentencing judge. In written submissions under his hand advanced to the sentencing judge, the Director contended that the respondent's offending 'post-dates Stephens and so the principles laid down in that decision apply to the present case'. For his part, the sentencing judge, endeavouring faithfully to apply this Court's decision in Stephens, said in the course of his sentencing remarks on 6 October 2017:

In the case of Stephens v R [(2016) 50 VR 740], which was handed down in May of 2016, the Court of Appeal of this State indicated that there is a need for a gradual increase in the sentences to be imposed for cases of dangerous driving causing death which fall within or above the mid-category of seriousness. I am satisfied that your case fits within this range.

47 Five days after his Honour made these remarks, on 11 October 2017, the High Court delivered judgment in Dalgliesh.[55] Until Dalgliesh was decided, in this State, if sentences for particular offences were considered to be too low, increases in sentences for such offences generally were achieved 'incrementally'.[56] As was observed in Carter,[57] however, this Court's previous pronouncements that, where current sentencing practices for a particular offence are considered to be too low, they should be incrementally increased until current sentencing practices for the relevant offence reach appropriate levels reflecting the objective gravity of such offending, 'cannot stand with the reasoning in Dalgliesh'.[58] Thus, the 'incremental increase cases in Victoria should be taken to have been overruled by Dalgliesh'.[59]

48 As he was bound by principle to do, however, the sentencing judge strived to apply this Court's judgment in Stephens. It would have been wrong of him not to do so, in circumstances where the High Court had yet to disapprove - at least impliedly - the 'incremental increase' approach, and particularly in circumstances where the Director had not signaled any challenge to the principles laid down in Stephens. Thus, ground 2 - which suggested that the judge 'erred, following Stephens v R', was, to say the least, unfortunately expressed. The judge, as he was bidden by the Director to do, attempted to apply the principles in Stephens. He could not have sentenced the respondent in the anticipation that the High Court would by implication hold the approach in Stephens to be wrong. It was thus unfair to the sentencing judge to claim in ground 2 that he had erred in the manner alleged.

49 Ground 1 claims that the sentences imposed on charges 1 and 2, and the orders for cumulation, are manifestly inadequate. A number of supposed 'particulars' are subjoined. They assert that, in one way or another, the sentencing judge 'failed to regard' (or 'have sufficient regard'), or 'had regard', or 'failed to reflect' (or 'properly reflect'), or 'sufficiently to manifest', various matters.

50 To my mind - and despite some recognition being given to the notion that a ground claiming manifest excess may be supported by particulars[60] (at least concerning the 'weight' to be given to certain features)[61] - such so called 'particulars' of manifest inadequacy are of little or no utility, since a conclusion that a sentence is manifestly inadequate does not depend upon attribution of identified specific error in the sentencing judge's reasoning. Manifest inadequacy is a conclusion. Inadequacy is, or is not, plainly apparent. A sentence is, or is not, unreasonable or plainly unjust.[62] Perhaps more often than not, a conclusion of manifest inadequacy does not admit of elaboration save to state the respect in which the sentence is inadequate, such inadequacy resulting because the wrong kind of sentence was imposed, or because the sentence imposed is manifestly too short. The members of the appellate court will weigh for themselves all relevant features of the respondent and the offending - including those that aggravate and those that mitigate - and intuitively synthesise each factor bearing on the exercise of the sentencing discretion. In so doing the court must balance the often incommensurable factors bearing on the exercise of the sentencing discretion, those factors frequently pulling in different directions.[63] Ultimately, appellate intervention on the ground of manifest inadequacy is not warranted unless, having regard to all of the relevant sentencing factors - including the degree to which the impugned sentence differs from sentences that have been imposed in cases which are truly comparable - the appellate court is 'driven to conclude that there must have been some misapplication of principle'.[64]

51 The appellant submitted that the individual sentences on charges 1 and 2, representing, as they do, thirty per cent of the respectively available statutory maxima, do not reflect the serious nature and objective gravity of the respondent's offending, which should be considered to be at the upper range of seriousness (although not 'at the top of the range'). Counsel for the appellant submitted that aggravating features of the two dangerous driving offences are as set out in Whyte[65] (cited with approval in Neethling[66]):

(i) Extent and nature of the injuries inflicted.

(ii) Number of people put at risk.

(iii) Degree of speed.

(iv) Degree of intoxication or of substance abuse.

(v) Erratic driving.

(vi) Competitive driving or showing off.

(vii) Length of the journey during which others were exposed to risk.

(viii) Ignoring of warnings.

(ix) Escaping police pursuit.

(x) Degree of sleep deprivation.

(xi) Failing to stop.

52 The appellant submitted that several of the aggravating factors listed in _Whyte - _ specifically (i), (ii), (iii), (v) and (viii) - were present in this case.

53 I pause to observe that some caution must be exercised in this case when considering as aggravating features the respondent's suggested erratic driving and the number of people put at risk. In that regard, both in writing and orally, counsel for the appellant drew attention to the fact that the respondent lost control of her car, so that it swerved onto the wrong side of the road, narrowly missing the car driven by Christine Clarke. Each charge on the indictment alleged, however, 'driving a motor vehicle at a speed that was dangerous to the public', and contained no wider allegation of dangerousness.[67] Thus, in circumstances where the respondent had not been charged with placing Ms Clarke in danger of death or serious injury,[68] care must be taken to ensure that the respondent is not punished for an offence of which she has not been convicted.[69]

54 Beyond saying that the maximum penalty must be reserved for cases in the 'worst category', and that a sentencing judge in every case is bound to consider where the facts of the particular offence and offender lie on the 'spectrum' that extends from the least serious instances of the offence to the worst category (properly so called),[70] in my view, attempts to shoehorn particular cases into categories of seriousness such as 'upper', 'middle' or 'lower', or to characterise moral culpability as 'high' (or 'very high'), 'middle range' or 'low', are often calculated to obscure the essential nature of the sentencing task.[71]

55 True it is that the respondent's speed was high - indeed, that was what constituted the 'speed dangerous' element of the offences - and that she had ignored her passenger's request to slow down, but other commonly found aggravating features were not present. In those circumstances, I would not regard the respondent's offending as falling into the 'worst category'. Indeed, when asked by one of the members of the Court where the respondent's offending fell 'on a scale of one to ten', senior counsel for the appellant submitted it 'was not at ten', but was 'above mid-level', it being possible to 'envisage a worse example'.

56 Furthermore, although Mr Walshe had asked the respondent to slow down, I do not accept that the respondent's moral culpability was - as the appellant's senior counsel put it - 'high'. Orally, senior counsel made the point that the respondent's moral culpability did not fall 'at the top of the range', since one can envisage 'worse circumstances' (such as when a person chooses to drive when knowingly affected by alcohol or drugs);[72] although when asked by another member of the Court why the respondent's moral culpability should not be characterised as 'very high', rather than merely 'high', counsel submitted that 'there may be little difference' between 'high' and 'very high' moral culpability.

57 As did the judge, I would accept that 'in a general sense [the respondent was] in a pressured situation given the goings on in the car, and that the exigencies of [her] situation do contextualise [her] exceeding the speed limit and loss of control'. That 'pressured situation' is reflected both in the respondent's initial intention to seek police assistance for her plight, and in her leaving the police station. I would accept, as did the sentencing judge, the respondent's account that she left the police station due to 'a desire not to get Mr Walshe into trouble, feeling confused, scared and vulnerable with [her] belongings still in the shared house of Mr Walshe'.

58 Furthermore, the respondent, now aged 31 years, is a person of previous good character with no prior convictions.[73] She pleaded guilty at an early stage, and the judge was satisfied that she was 'genuinely remorseful'. Her prospects of rehabilitation are, the judge thought, 'positive'. The tendered psychological opinion was that the respondent 'will have significant difficulty coping with incarceration'. She presents as a 'significantly psychologically vulnerable person', and it is expected that incarceration will cause her mental health to deteriorate. Indeed, the judge accepted that to the extent that the respondent presented with symptoms 'of obsessional ruminative thinking, disturbed sleep, concentration difficulties, flashbacks, and occasional nightmares', her 'time in custody will be more burdensome'.

59 Moreover, I regard the delay in the finalisation of the respondent's case as significantly mitigatory.[74] The offences took place on 15 October 2015, yet it took almost a year to charge the respondent. She was then committed by way of straight hand-up brief on 22 February 2017, yet it took until 14 September 2017 for her plea to be heard. The respondent was not responsible for any of this delay. Fairness to the respondent required that the sentence should reflect the fact that the matter had been hanging over her head for some time, thereby keeping her in a state of suspense as to her fate. Further, there is an obvious inconsistency between a claim by the prosecution that the offence is a serious one on the one hand 'and the seemingly leisurely progress of the prosecution on the other'.[75]

60 Given these factors - and with due respect to those who hold a different view - the asserted manifest inadequacy is not plainly apparent to me. I fail to see that the sentence imposed on the respondent is manifestly too short, or is plainly unreasonable or unjust. Assuming for the sake of argument that the sentence is lenient, in my view the individual sentences imposed - representing in each case thirty per cent of the statutory maxima - were open to the judge in the circumstances of this case. The degree of cumulation ordered was also open to the judge, and did not result in a manifestly inadequate total effective sentence.

61 In reaching these conclusions, I do not ignore the fact that Anthony Cassidy - a much loved, well respected and blameless man - tragically had his life extinguished by the respondent's offending. As the judge remarked, the victim impact statements 'are eloquent testimony to the suffering which [her] offending has caused the friends, family and loved ones of [her] victim, Mr Cassidy'. That offending 'has had a profound and ongoing impact and its consequences will continue well into the future', the authors of the victim impact statements speaking of 'their ongoing grief and sense of loss'. Nor do I ignore the serious nature, and consequences, of the injuries to Mr Walshe. Notwithstanding these matters, however, when proper regard is had to the circumstances in mitigation, I am not persuaded that the respondent's offending is so grave, and her moral culpability is so high, that a more severe sentence is demanded. In reaching that conclusion, I remind myself that it is of great importance not to allow the effects of an unintended catastrophe to 'swamp' all other considerations.[76]

[1] Crimes Act 1958 s 319(1).

[2] Crimes Act 1958 s 319(1A).

[3] [2016] VSCA 121; (2016) 50 VR 740 ('Stephens').

[4] DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457, 459-60 [5]; DPP (Cth) v Estrada [2015] VSCA 22; (2015) 45 VR 286, 296 [37].

[5] DPP v Weybury (Unreported, County Court of Victoria, Judge Meredith, 6 October 2017) [4]-[16] (emphasis added) ('Sentencing reasons').

[9] Ibid [28]-[31] (emphasis added).

[13] [2007] VSCA 102; (2007) 16 VR 269.

[14] Sentencing reasons [41]-[51], [53].

[21] Ibid [58]-[60]; applying DPP v Oates [2007] VSCA 59; (2007) 47 MVR 483, 487 [22] ('Oates') and DPP v Neethling [2009] VSCA 116; (2009) 22 VR 466, 472-3 [29]-[32] ('Neethling').

[22] Ibid [62], quoting directly from Stephens [2016] VSCA 121; (2016) 50 VR 740, 748 [33] (emphasis added).

[24] Stephens [2016] VSCA 121; (2016) 50 VR 740, 748-51 [33]-[42].

[25] [2017] HCA 41; (2017) 349 ALR 37.

[26] [2018] VSCA 88 [88].

[28] [2009] VSCA 116; (2009) 22 VR 466.

[29] Ibid 473-3 [30] (citations omitted), quoting Oates [2007] VSCA 59; (2007) 47 MVR 483, 487 [22], [25] (Neave JA) 488 [31], [33] (Warren CJ), 489 [38] (Nettle JA).

[30] Ibid 473 [31], applying the decision of the New South Wales Court of Criminal Appeal in R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252, 286 [216]-[217].

[31] Stephens [2016] VSCA 121; (2016) 50 VR 740, 746-7 [25]-[28] (emphasis added) (citations omitted).

[38] DPP v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 349 ALR 37, 48 [52] (Kiefel CJ, Bell and Keane JJ), 54-5 [82]-[83] (Gageler and Gordon JJ); R v Pham [2015] HCA 39; (2015) 256 CLR 550, 560 [29]; R v Kilic [2016] HCA 48; (2016) 259 CLR 256, 267 [22].

[39] Stephens [2016] VSCA 121; (2016) 50 VR 740, 747 [29].

[40] [2017] VCC 63.

[41] DPP v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 349 ALR 37, 48 [52].

[42] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127] ('Karazisis').

[43] [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6].

[44] Karazisis [2010] VSCA 350; (2010) 31 VR 634, 657-8 [99]-[100].

[47] DPP v Dalgliesh (a pseudonym) [2017] VSCA 360.

[48] DPP v Tewksbury (a pseudonym) [2018] VSCA 38; Carter v The Queen [2018] VSCA 88.

[50] Stephens v The Queen [2016] VSCA 121; (2016) 50 VR 740 (Redlich, Santamaria and Beach JJA) ('Stephens').

[51] Harrison v The Queen [2015] VSCA 349; (2015) 49 VR 619 (Maxwell P, Redlich and Tate JJA) ('Harrison').

[52] Stephens, 748 [33]. See also 751 [43].

[55] DPP v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 349 ALR 37 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ) ('Dalgliesh').

[56] See Ashdown v The Queen [2011] VSCA 408; (2011) 37 VR 341, 377 [151](11) (Ashley JA).

[57] Carter (a pseudonym) v The Queen [2018] VSCA 88 (Weinberg, Beach and Hargrave JJA).

[60] So far as relevant, cl 7.2 and cl 7.5 of Practice Note SC CA 1 (30 January 2017), respectively provide (emphasis added):

7.2 Where a ground of appeal is expressed in general terms - such as 'the conviction is unsafe and unsatisfactory or unreasonable' - the ground must be sufficiently particularised to identify the matters relied on. ...

7.5 The written case must, unless the Registrar otherwise directs:

d. set out the grounds of appeal, in accordance with the following requirements:

i. grounds must be numbered consecutively, and must be specific rather than expressed generally;

ii. each ground must be sufficiently particularised to identify the matters relied on;

iii. complaints about the weight attributed to particular sentencing factors are to be treated as particulars of a ground of manifest excess, unless it is to be contended that a statement about weight made by the sentencing Judge discloses a specific error in describing the facts or evaluating their significance, in which case the ground of appeal should be expressed accordingly; ...

[61] Pesa v The Queen [2012] VSCA 109, [10]-[13] (Maxwell ACJ and Hansen JA); DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457, 459-60 [5] (Maxwell P, Redlich JA and Robson AJA). Compare DPP (Cth) v Estrada [2015] VSCA 22; (2015) 45 VR 286, 296 [37] (Priest and Beach JJA, and King AJA).

[62] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6] (Gleeson CJ and Hayne J).

[63] See Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483, 494-5 [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ); Dalgliesh, 39 [4] (Kiefel CJ, Bell and Keane JJ); 53-4 [79] (Gageler and Gordon JJ).

[64] See R v Pham [2015] HCA 39; (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ); Dalgliesh, 50 [59] (Kiefel CJ, Bell and Keane JJ). See also DPP v Zhuang (2015) 250 A Crim R 282, 295-300 [39]-[49]; DPP v McInnes [2017] VSCA 374, [75].

[65] R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252, 286 [216]-[217] ('Whyte').

[66] DPP v Neethling [2009] VSCA 116; (2009) 22 VR 466, 473 [31]-[32].

[67] So far as relevant, s 319 of the Crimes Act 1958 provides (emphasis added):

319 Dangerous driving causing death or serious injury

(1) A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of another person is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).

(1A) A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes serious injury to another person is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).

[68] See Crimes Act 1958, ss 22 and 23.

[69] R v Newman and Turnbull [1997] 1 VR 146, 150-1.

[70] R v Kilic [2016] HCA 48; (2016) 259 CLR 256, 265-6 [18]-[19] (Bell, Gageler, Keane, Nettle and Gordon JJ); Dalgliesh, 46-7 [45] (Kiefel CJ, Bell and Keane JJ).

[71] Somewhat Delphically, the judge said that he was satisfied that the respondent's offending fits 'within [the] range' of those cases 'of dangerous driving causing death which fall within or above the mid-category of seriousness'.

[72] Again, somewhat Delphically, the judge said he was of the view that the respondent's 'moral culpability is not of a low order'.

[73] Between March 2012 and January 2015, however, she accrued three traffic infringements for exceeding the speed limit, and one for failing to obey a traffic control signal.

[74] See Pang v The Queen [2018] VSCA 5, [36] (Priest and Santamaria JJA).

[76] R v Boxtel [1994] VicRp 54; [1994] 2 VR 98, 103 (Crockett and Hampel JJ).