Gurovski v The Queen [2018] VSCA 3

DPP v Gurovski [2017] VCC 179 (Judge Campton)

CRIMINAL LAW - Appeal against sentence - Negligently causing serious injury by driving - 3 years' imprisonment - Applicant assessed as suitable for community correction order - Whether judge sentenced applicant on factual basis other than that agreed by parties - Whether judge denied applicant procedural fairness - Whether judge erred in finding that community correction order was not an appropriate sentencing disposition - Whether sentence manifestly excessive - Leave to appeal refused.

1 The applicant pleaded guilty to the charges set out in the table below and, on 2 March 2017, he was sentenced as set out in that table.[1]

[s 24 Crimes Act 1958 ('CA')]

Mandatory minimum term of licence disqualification of 2 years [s 89(2) Sentencing Act 1991]

[r 300(1) Road Safety Road Rules 2009 ('RSRR')]

Failing to record information immediately after starting work

Total Effective Sentence: 3 years' imprisonment

6AAA Statement: 4 years and 6 months' imprisonment with a non-parole period of 3 years and a total fine of $17,000

Other relevant orders: Licence cancelled and disqualified from obtaining a licence for 2 years from 2 March 2017

2 The negligently causing serious injury ('NCSI') charge arose out of serious injuries that were sustained by the 18 year old female driver of a Mazda 6 sedan when the truck being driven by the applicant moved on to the wrong side of the road and collided with the victim's sedan.

3 The applicant seeks leave to appeal against the sentence imposed on the NCSI charge on three grounds. The first ground is that the judge denied him procedural fairness by sentencing him on a factual basis other than that agreed by the parties. The second ground is that the judge erred in finding that a community correction order ('CCO') was not an appropriate sentencing disposition. The third ground is that the sentence is manifestly excessive.

4 For the reasons that follow, the application for leave to appeal will be refused.

5 On Tuesday 23 February 2016, the applicant was driving a Freightliner prime mover in B-double configuration in a northerly direction on the Calder Highway towards Mildura. The victim was driving her sedan on the Calder Highway in a southerly direction, away from Mildura.

6 At 2:45 pm, the two vehicles collided, approximately 500 metres south of the Mittyack rail crossing. The offset head-on collision occurred on a sweeping left hand bend, where the Calder Highway changes from an approximately northerly direction to an approximately westerly direction. The applicant had begun to navigate the bend, but for reasons unknown, he failed to navigate the entire curve and crossed the centre of the road, into the southbound lane on which the victim was travelling.

7 The collision caused massive cabin intrusion into the sedan which rotated 180 degrees on impact. The truck steered back into the northbound lane before overcorrecting and sliding to where it came to rest on the road facing northeast and covering both lanes of the highway. The truck's bull bar was torn off on impact.

8 Investigations carried out after the accident revealed the following:

(a) It was not possible to drive into the bend and reach the point of impact without driver steering input.

(b) Prior to the point of impact, the truck crossed approximately 2.3 metres into the southbound lane across the double white lines, travelling at approximately 90 kilometres per hour for over three seconds.

(c) The road was in average condition and did not contribute to the collision.

(d) The truck was in good condition and there were no mechanical problems that would have contributed to the collision.

9 In the immediate aftermath of the collision, the applicant told the victim that he was sorry.

10 When the police arrived, the applicant was arrested and conveyed to the Ouyen Hospital. An analysis of his blood did not reveal any illicit substances. The applicant was then conveyed to the Mildura police station where he participated in a recorded interview. He informed the police that he was not suffering from sleep apnoea or any other medical condition. He was unable to give an explanation for the collision.

11 On the day of the collision, the applicant commenced work at 5:26 am. He drove the truck from Altona North to Noble Park North, where he helped load the truck. From 8:57 am until the time of the accident, at 2:45 pm, he had no continuous break greater than seven minutes.

12 A respiratory and sleep disorders physician was of the opinion that the applicant had a delayed reaction rather than true sleepiness prior to the collision and that the delayed reaction was likely due to the applicant's relative sleep deprivation and shift work.

13 As a result of the collision, the victim was trapped in her car. She was transported by air ambulance to the Royal Melbourne Hospital. No alcohol or drugs were detected in her blood. She sustained extensive orthopaedic injuries, including a fractured pelvis, multiple fractured vertebrae, fractures to both arms and legs including serious compound fractures, a partial finger amputation, fractures to her right foot, ankle and hand and a lung contusion. She also suffered degloving injuries to her right arm and left thigh and mild traumatic brain injury. Her right arm was almost totally amputated in the accident. She was placed in an induced coma for 17 days and underwent a number of operations followed by rehabilitation.

14 Medical reports tendered on the plea indicated that although the victim had made good progress, she had ongoing persistent pain, problems with mobility and psychological issues. In his report, the victim's physiotherapist stated:

Unfortunately, some of [the victim's] deficits are likely to be life-long and this will undoubtedly impact her career choices and social participation. [The victim] will need long-term medical management and physiotherapy for her injuries. Her current (and future) medical care necessitates [the victim] making frequent trips to Swan Hill and Melbourne, which is an additional burden for [the victim] and her family members.

15 In her victim impact statement, the victim stated that the collision has greatly affected her quality of life and that every day was a constant struggle due to the pain and the physical limitations resulting from her injuries. She said that, due to her injuries, she has not been able to work or engage in recreational activities which she previously enjoyed such as netball and tennis. She added that, as well as her ongoing physical issues, she feels mentally drained, stressed, lonely and worthless.

16 The applicant has enquired about the victim's welfare on a number of occasions since the collision.

17 The summary charges brought against the applicant resulted from an investigation conducted by the informant into the applicant's conduct during the 20-day period prior to the collision. The investigation revealed that there were discrepancies between the work and rest hours recorded in the applicant's work diary and his actual work and rest hours. Summary charges 6, 14, 19, 23, 29, 32, 36, 43 and 47 relate to the fact that on nine occasions in February 2016, the applicant entered false or misleading rest and work times in his work diary when he had breached the standard work and rest hour requirements of the HVNL.

18 Sections 293 and 294 of the HVNL required that the applicant record certain information, including his rest periods, in a work diary on each day that he drove 100 kilometres or more from his driver base under standard hours.[3] Summary charge 11 relates to one occasion when there was a journey in excess of 100 kilometres from the applicant's driver base which he did not record.

19 Summary charges 10, 13, 34 and 41 relate to four occasions in February 2016 when the applicant used his mobile phone while driving and summary charge 46 to an occasion when he used his phone while he was stationary but not parked.

20 Relevantly, for present purposes, the informant's investigations revealed the following:

(a) in the 24-hour period which commenced at 5:30 am on Thursday 11 February 2016 and concluded at 5:30 am on Friday 12 February 2016, the applicant worked for 20.25 hours and the longest continuous period of rest was 1.75 hours;

(b) the applicant did not work on Saturday 13 February 2016 or Sunday 14 February 2016;

(c) in the 24-hour period which commenced at 6:00 am on Tuesday 16 February 2016 and concluded at 6:00 am on Wednesday 17 February 2016, the applicant worked for 15.5 hours;

(d) in the 24-hour period which commenced at 6:00 am on Wednesday 17 February 2016 and concluded at 6:00 am on Thursday 18 February 2016, the applicant worked for 18.25 hours;

(e) on Friday 19 February 2016, the applicant made local deliveries less than 100 kilometres from his driver base;

(f) the applicant did not work on Saturday 20 February 2016 or Sunday 21 February 2016;

(g) on Monday 22 February 2016, the applicant made local deliveries less than 100 kilometres from his driver base;

(h) on the evening of Monday 22 February 2016, the applicant had no more than five and a half hours of continuous sleep; and

(i) on the day of the collision - Tuesday 23 February 2016 - the applicant made two false and misleading records in his work diary. He recorded a rest break between midnight and 5:15 am as between midnight and 10:30 am, and recorded a rest break of seven minutes as lasting 30 minutes.

21 At the time of sentence, the applicant was 45 years old and lived with his elderly parents. He assisted in the care of his father, who is wheelchair bound.

22 Since finishing high school after Year 12, the applicant had been in regular employment. His main line of work since 2002 had been driving trucks for various delivery companies.

23 On 18 June 2013, the applicant was dealt with in the Sunshine Magistrates' Court for a speeding offence and using a handheld telephone while driving. His driver's licence was suspended for 12 months and he was fined $800. On 1 May 2003, the applicant was dealt with in the Melbourne Magistrates' Court for a Centrelink overpayment. No conviction was recorded upon the applicant entering into a $500 good behaviour bond for 2 years.

24 Paragraph 115 of the prosecution opening stated that, in the 20-day period before the collision, the applicant committed 20 minor breaches, two substantial breaches and five critical breaches of the HVNL and that '[t]hese breaches are incorporated into the negligence alleged by the Crown'.

25 At the plea hearing on 21 February 2017, when the prosecutor read out para 115 of the prosecution opening, the judge queried whether the applicant would be punished twice for the same offending if the conduct that was the subject of the summary charges was also treated as forming part of the particulars of negligence for the NCSI charge. The prosecutor then submitted that only the applicant's breaches of the HVNL which were not the subject of any of the summary charges formed part of the particulars of negligence for the NCSI charge.

26 Defence counsel objected to that submission, as follows:

The understanding is that there was an agreement, that there were pleas in relation to specific incidents of failing [the applicant's] duties. But that the negligence on the day stands alone and that's logical. It can't be that some misdeed on a previous day is said to lead in a causative way to the negligence on the day of the collision.[4]

27 Following this objection a discussion took place between the judge and defence counsel. They agreed that, while the quantum of the applicant's sleep in the 20-day period leading up to the collision could be considered as part of the background to the collision, the particulars of negligence for the NCSI charge would be confined to the events on the day of the collision and the applicant's five and a half hours of sleep during the preceding night.[5] In response to the discussion between the judge and defence counsel, the prosecutor said 'I won't take that any further'.[6]

28 A number of character references from the applicant's family, friends and employer were tendered on his behalf. They variously described him as remorseful and an honest and caring person with strong family ties and work ethic.

29 Defence counsel submitted that the applicant's offending fell in the low range for NCSI by driving. This was said to be because the collision was due to momentary inattention or misjudgement and there were no aggravating features such as speed and use of drugs or alcohol. Defence counsel relied on a range of mitigating circumstances including, in particular, the applicant's early plea of guilty, remorse, cooperation with the police, lack of prior criminal history and good employment record. Counsel submitted that a CCO would be appropriate and that the mandatory disqualification from driving for at least two years would be a significant penalty.

30 The prosecutor submitted that the applicant's offending involved fatigue and inattention and was a serious example of NCSI by driving. It was said to be 'at least a midrange example of [that] offence'.[7] The prosecutor contended that an immediate custodial sentence was required but conceded that a combination sentence was within range.

31 In the light of the parties' submissions, the judge arranged for Corrections Victoria to assess the applicant's suitability for a CCO.

32 On 21 February 2017, Corrections Victoria assessed the applicant as suitable for a CCO.

33 In her sentencing remarks, the judge stated that '[t]he circumstances of [the applicant's] offending are set out in some detail in the summary of prosecution opening, which will form part of this sentence'.[8]

34 In describing how the collision occurred, the judge stated that the applicant 'had begun to navigate the bend, but for reasons unknown, [he] failed to navigate the entire curve and crossed the centre of the road, into the south east bound lane [in] which [the victim] was travelling in her Mazda sedan'.[9]

35 The judge accepted the prosecutor's submission that the applicant's offending fell into the 'midrange' for the offence of NCSI. However, she added that it was 'at the lower end of that range'.[10] The judge stated the following reasons for her assessment of the seriousness of the applicant's offending:

As an experienced driver of a heavy vehicle, [the applicant] should have been aware of the dangers involved with lack of sleep and inadequate rest periods. Heavy vehicles such as [the applicant's] weighing up to 85 tonnes are a lethal weapon if not properly controlled. [The applicant's] truck did not simply momentarily cross the line dividing the lanes, it crossed so far into the opposite lane that [his] vehicle deposited skid marks over the fog line of the opposite lane. At this point, the side of [the applicant's] truck was approximately 3.5 metres outside [his] lane. The investigation concluded on the basis of [the applicant's] skid marks that [his] truck was over the double lines on the wrong side of the road, travelling at approximately 90 kph for over three seconds.[11]

36 The judge stated that, due to the applicant's negligence, the victim's life had been changed forever as she can no longer engage in many of the recreational pursuits enjoyed by young people, her career prospects have been adversely affected and she faced the prospect of long-term physical deficits.[12]

37 The judge emphasised that general deterrence was an important sentencing consideration in a case such as the present. She stated that professional truck drivers must be aware that if they do not get adequate sleep and take appropriate rest periods, they face the consequences not only of potentially ruining someone else's life, but also a term of imprisonment.[13]

38 The judge said that she had accepted and taken into account all the mitigating factors upon which the applicant relied.[14]

39 In considering what would be an appropriate sentencing disposition in the present case, including whether a CCO would be suitable, the judge referred to the following statements in Harrison v The Queen:[15]

We have reviewed sentencing practices for NCSI by driving, both before and after the increase in the maximum penalty to 10 years. We have concluded that current sentencing for offences at the upper end of seriousness is inadequate and needs to be uplifted. Inevitably, such a change will have a flow-on effect on sentencing for mid-range and low-range instances of NCSI by driving.

...

[T]he likelihood that a CCO alone or in a combination sentence will be appropriate necessarily diminishes as the degree of negligence and the seriousness of the injuries increase. As the Court recognised in Boulton, a point will be reached at which such sentencing options cease to be capable of satisfying sentencing purposes of punishment, denunciation and deterrence.[16]

40 The judge stated that, in the present case, having regard to all the circumstances, the only appropriate sentence was an actual period of imprisonment and that a CCO was incapable of satisfying the sentencing purposes of punishment, denunciation and deterrence.[17]

41 The applicant's proposed grounds of appeal, as set out in his application for leave to appeal, were in the following terms:

1. The learned sentencing judge denied the applicant procedural fairness by not giving his counsel the opportunity to address her further after receiving the report declaring the applicant suitable for a [CCO] when she intended not to impose such an order.
2. The learned sentencing judge erred in holding that on the facts of the case the point had been reached that a [CCO] ceased to be capable of satisfying the purposes of punishment, denunciation and deterrence.
3. The sentence imposed by the learned sentencing judge on the charge of [NCSI] was manifestly excessive because her Honour gave:
   1. Too little weight to the plea of guilty, and the genuine remorse shown by the applicant;

b Too little weight to the applicant's personal circumstances;

1. Too little weight to the fact that this was a momentary lapse by the applicant;

1. Too little weight to the prosecution concession that there were no known reasons for the applicant's failure to navigate the bend safely;
2. Too little weight to [the applicant's] lack of any relevant prior convictions;
3. Too little weight to the absence of aggravating factors;
4. Too much weight to general deterrence; and
5. Assessed the degree of negligence as too great in the circumstances.

42 On the hearing of the application for leave to appeal, the applicant reformulated Ground 1. He no longer contended that the judge denied him procedural fairness by not giving him a further opportunity to make submissions on the appropriateness of a CCO. Instead, he asserted that the denial was constituted by the judge sentencing him on a factual basis that differed from that agreed by the parties without giving him prior notice of her intention to do so. As the reformulated Ground 1 overlaps with Ground 2 as it was developed in oral submissions, we will deal with Ground 2 first.

Ground 2: Factual basis of sentence and failure to make a CCO

43 The applicant submitted that, as the judge had incorporated the prosecution opening in her sentencing remarks,[18] she sentenced him for the NCSI charge on a factual basis other than on the basis upon which he had pleaded guilty and contrary to the agreement that had been reached on the plea.

44 The applicant contended that as a result of the judge's discussion with defence counsel set out at [25]-[27] above, the judge was required to sentence him for the NCSI charge on the basis that the particulars of negligence were confined to the events on the day of the collision and his five and a half hours of sleep during the preceding night. However, so it was said, the judge erred by sentencing him on the basis that those particulars included breaches of the HVNL in the preceding 20 days. The applicant also submitted that the judge erred by taking into account his conduct after he had lost concentration and the truck crossed the dividing lines by 3.5 metres and stayed on the wrong side of the road for over three seconds, as set out at [35] above. The applicant argued that the judge's reliance on these matters was inconsistent with her earlier statement that he had failed to navigate the entire curve of the bend &#82[19]for reasons unknown'.19 He contended that the position of the truck after he lost concentration was relevant to how the victim's injuries were caused but not how he was negligent.

45 The applicant referred the Court to Jiminez v The Queen[20] as authority for the proposition that, in offences such as NCSI where driving must be a conscious and voluntary act, the relevant period for determining a driver's culpability is the period immediately before sleep commences. He submitted that events subsequent to his loss of concentration - such as his failure to navigate the bend causing the truck to enter the opposite lane - did not form part of his negligence. Accordingly, so it was said, his negligence was limited to the 'delayed reaction' that was referred to in the report of the respiratory and sleep disorders physician.[21] He emphasised that the physician's conclusion that it was 'likely' that the applicant's delayed reaction was caused by his relative sleep deprivation and shift work was insufficient to prove such a causative link beyond reasonable doubt.

46 The applicant submitted that 'delayed reaction' was the highest that his negligence could be put and this brought his offending into the bottom of the range of seriousness. He contended that the prosecution case was weak and that, without his plea of guilty, it was highly unlikely that the prosecution would have been able to establish negligence. It followed, so it was said, that the judge erred in her assessment that the applicant's moral culpability fell within the lower end of the mid-range.

47 The applicant submitted that, having regard to his low level of moral culpability and the significant mitigating circumstances - particularly his guilty plea without which it was highly unlikely that the prosecution would have secured a conviction - the need for general deterrence was greatly reduced. According to the applicant, a CCO was clearly within range and the judge erred in not making one.

48 The Crown contended that the judge did not take into account any extraneous factual matters in sentencing the applicant. According to the Crown, the principles discussed in Jiminez about sleeping drivers were not applicable to the applicant because he did not fall asleep in the lead up to the collision. The Crown contended that the circumstances of the collision indicated that the applicant was grossly negligent and disputed his argument that the prosecution case was weak.

49 The Crown argued that the judge had correctly assessed the applicant's moral culpability as mid-range, having regard to the following:

(a) the applicant was a professional and experienced driver;

(b) the applicant was driving a Freightliner prime mover in B-double configuration that was 2.5 metres wide with a gross weight of 85 tonnes;

(c) the applicant was aware of the risks of fatigue and the requirement for frequent rests pursuant to the HVNL;

(d) the applicant drove his truck after having only five and a half hours of sleep.

(e) the applicant had driven for nine hours and 20 minutes with no continuous break greater than seven minutes at the time the collision occurred;[22]

(f) the applicant had been driving excessive hours with insufficient rest breaks and sleep for 20 days;[23]

(g) this was not a case of drifting due to inattention; the driving on to the wrong side of the road required steering input;

(h) the truck crossed so far over the double lines it deposited skid marks over the fog line of the opposite lane;

(i) the road design included audio tactile lines which alert drivers to the location of their vehicle; and

(j) the applicant had a delayed reaction as a result of his sleep deprivation.[24]

50 The Crown contended that general deterrence was a significant sentencing consideration and that the judge was correct not to make a CCO.

51 In our opinion, there is no substance to Ground 2.

52 There is no indication in the judge's sentencing remarks that she sentenced the applicant on a factual basis other than that agreed by the parties. The judge's description of the circumstances of the NCSI offence and her analysis of the applicant's negligent driving did not refer to, much less rely upon, any of the events preceding the day of the collision and the previous night. In particular, the judge did not state that the collision was caused by the applicant's sleep deprivation in the preceding 20 days. This is not surprising, as the judge herself raised on the plea the inappropriateness of the prosecution relying on the events giving rise to the summary offences as particulars of the negligence giving rise to the NCSI offence.

53 It must follow that the judge's statement that she incorporated the prosecution opening in her sentencing remarks was simply intended to convey that it was not necessary for her to refer to all the details in the summary, insofar as they were relevant, because the summary could be read in conjunction with the sentencing remarks.

54 In our opinion, there is no inconsistency between the judge's statement at para 3 of her sentencing remarks that the reasons why the applicant failed to navigate the entire bend were unknown and the statements at para 24 which describe the movements of the truck immediately prior to the collision and its position on the road at the time of the collision. The judge's statements are based on the results of the investigations carried out after the collision.

55 We reject the applicant's submission that everything that occurred after he momentarily lost concentration was irrelevant to the issue of negligence. This submission was based on a misunderstanding of Jiminez. In that case, the High Court held that, where a driving offence requires that the accused's driving be a conscious and voluntary act, any period during which the driver was asleep at the wheel cannot to be taken into account in determining the accused's liability.[25] As the applicant in the present case did not fall asleep at, or immediately before, the time of the collision, all his conduct leading up to, and at the time of, the collision is relevant to determining his guilt in respect of the NCSI offence. It follows that the judge did not err in referring to the skid marks on the road and the position of the truck at the time of the collision.

56 We also reject the applicant's submission that the prosecution case was weak and that it was highly unlikely that a conviction would have been secured for the NCSI charge without his guilty plea. In our opinion, a jury would not have had any difficulty in finding the applicant guilty in the light of the following circumstances:

(a) The applicant was an experienced driver of heavy vehicles and was aware of the legal requirement for adequate rest breaks and the risks associated with driving a truck without adequate sleep or rest breaks. His knowledge can be inferred from the fact that on the very day of the collision he deliberately misrecorded the duration of two of his breaks in his work diary.

(b) On the night before the collision, the applicant had only five and a half hours of sleep.

(c) The applicant had been working for nine hours and 20 minutes prior to the collision, and he had been driving the truck on the relevant journey for five hours and 48 minutes prior to the collision, with no continuous break greater than seven minutes.

(d) These circumstances affected the applicant's ability to drive the truck with the standard of care required by the law in that he had a delayed reaction which affected his ability to respond to changing road conditions in a safe and timely manner.

(e) The collision was not caused by a momentary lapse in concentration by the applicant. This is because it was not possible for the truck to be where it was at the point of impact without driver steering input. As submitted by the Crown, it was not a case of drifting due to inattention. The collision resulted from a conscious and voluntary act of the applicant which was criminally negligent in all the circumstances.

57 In accordance with Harrison[26] the objective gravity of the applicant's offending is to be assessed by reference to the degree of negligence he displayed and the seriousness of the injuries caused to the victim.

58 The matters set out at [56] above demonstrate that the degree of negligence displayed by the applicant was significant. His conduct on the day of the collision and the preceding night reduced his capacity to properly control his truck and created a risk of collision due to delayed reaction. This is the very risk that materialised when he failed to safely navigate the bend in the road as the victim's vehicle approached from the opposite direction.

59 Although the judge did not make a specific finding as to the severity of the victim's injuries on the spectrum of what may constitute a 'serious injury', the judge's description of the injuries as life-changing and long-term[27] suggests that she regarded the injuries as being at least of medium severity. Having regard to the nature of the injuries described at [13]-[15] above, such an assessment would understate their severity. However, accepting that assessment as accurate, when it is combined with the significant degree of negligence displayed by the applicant, it is clear that the judge was right to assess the applicant's moral culpability as at the lower end of the mid-range of seriousness.

60 In Harrison,[28] this Court stated that, while a CCO may be appropriate 'in lower categories of seriousness', the appropriateness of a CCO 'necessarily diminishes as the degree of negligence and the seriousness of the injuries increase'. In the present case, the applicant's moral culpability was such that the judge did not err in deciding that a CCO was not appropriate.

61 The applicant submitted that, if the judge intended to sentence him on a factual basis other than the one agreed on the plea and accordingly find that the offending was not at the bottom of the range of seriousness, then the judge was obliged to give him an opportunity to make further submissions on that issue. Otherwise, he contended, the judge was required to give him an opportunity to withdraw his plea of guilty which was made on the agreed factual basis. By failing to afford him those opportunities, so it was said, the judge denied him procedural fairness.

62 The applicant conceded that if Ground 2 fails then Ground 1 also must fail.

63 In our opinion, the applicant correctly conceded that Ground 1 could not succeed if Ground 2 failed. As we have rejected Ground 2, Ground 1 cannot succeed.

64 Under Ground 3, the applicant repeated some of the submissions he made under Ground 2 about his low level of culpability and the large range of mitigating circumstances on which he was able to rely. He submitted that the sentence of 3 years' imprisonment was manifestly excessive because the judge incorrectly assessed his moral culpability as mid-range and gave too little weight to the mitigating circumstances.

65 In support of this submission, the applicant emphasised that the collision was caused by 'a momentary lapse of about 3 seconds' on his part and there were no aggravating circumstances such as: speed; drugs; alcohol; aggressive, erratic or competitive driving; ignoring of warnings; or falling asleep at the wheel. He also emphasised that, as there was no evidence that he had driven for an extended period of time in the knowledge that he was sleepy, there was little or no scope for the application of general deterrence. Thus, so it was said, the judge erred in treating general deterrence as an important sentencing consideration. The applicant also placed significant reliance on his plea of guilty, remorse, lack of relevant prior convictions, long work history and family support.

66 The applicant submitted that his plea of guilty was highly significant not only because it spared the victim the ordeal of giving evidence and demonstrated acceptance of responsibility, but also because without it the prosecution would not have had a case. According to the applicant, the judge did not give sufficient weight to his guilty plea.

67 The Crown submitted that the sentence imposed by the judge was well within range. According to the Crown, the judge correctly characterised the applicant's offending as at the lower end of the mid-range of seriousness and gave appropriate weight to general deterrence. This was said to be so because the applicant was a professional driver of heavy vehicles on public roads and the consequences of inattention by such a driver due to fatigue were dire. The Crown contended that the judge gave appropriate weight to all the mitigating circumstances upon which the applicant relied.

69 As we have stated under Ground 2, the degree of negligence displayed by the applicant and the seriousness of the injuries caused to the victim justified the judge's assessment of the applicant's moral culpability as at the lower end of the mid-range of seriousness. Having regard to the maximum penalty of 10 years' imprisonment for NCSI by driving, a sentence of 3 years' imprisonment for such offending is well within the range of sentencing dispositions open to the judge.

70 The judge was right to place considerable importance on general deterrence. The danger posed by drivers of heavy vehicles who are unable to properly control their vehicle due to limited sleep, inadequate rest breaks or other avoidable causes is grave. The consequences for road users can be so catastrophic that a clear message must be conveyed that a conviction for the offence of NCSI by driving will result in condign punishment.

71 We reject the applicant's submission that the sentence imposed by the judge failed to give sufficient weight to the mitigating circumstances upon which he relied. It would have been well within the judge's sentencing discretion to impose a much higher sentence had those mitigating circumstances been absent.

72 Similarly, the absence of aggravating factors - such as speed, drugs, alcohol and falling asleep at the wheel - in the present case did not mean that the judge erred in classifying the applicant's offending as at the bottom of the mid-range. The presence of such factors would have elevated the seriousness of the offending and necessitated the imposition of a longer custodial sentence.

73 The sentence imposed by the judge was consistent with current sentencing practices ('CSP'), as explained in Harrison and applied in subsequent cases.

74 Harrison was recently considered by this Court in Director of Public Prosecutions v Barry.[29] The Court said the following:

Harrison involved appeals against sentence by two offenders, Harrison and Rigogiannis, who had each pleaded guilty to one NCSI charge arising from the driving of a motor vehicle.

Harrison caused serious injuries to a passenger in his vehicle when he drove through an intersection against a red light at approximately 127 kilometres per hour in a 60 kilometres per hour zone. His vehicle collided with another vehicle, spun out of control for 115 metres and ultimately collided with a tree in the median strip. At the time of the accident, Harrison's driver's licence had been suspended. He was 23 years of age, had a blood alcohol concentration of 0.184 per cent and had prior convictions for driving offences. The victim's injuries included a collapsed lung and a compound fracture and dislocation of the right ankle. The victim's right knee was split open. Amputation of the victim's right leg below the knee was considered at the time of the accident and still remained a possibility two years later. The victim's legs were grossly disfigured and he retained little movement in his right ankle. He was unable to return to work. Harrison was sentenced to 3 years and 6 months' imprisonment with a non-parole period of 2 years.

Rigogiannis caused the driver of another vehicle serious injuries when he drove his van around a blind bend on the wrong side of the road at 78 kilometres per hour in a 50 kilometres per hour zone and collided head on with the victim's vehicle. At the time of the accident, Rigogiannis did not hold, and had never held, a driver's licence. He was 24 years of age, had a blood alcohol concentration of 0.211 per cent, and had prior convictions for unlicensed driving, drunk and disorderly conduct, being drunk in a public place and other offences. Prior to the accident, the passenger in Rigogiannis's van warned him against driving in a reckless manner. The victim's injuries included brain damage, bleeding to the heart and other chest injuries and multiple bone fractures. She was placed in an induced coma for two weeks, underwent multiple surgeries, spent three months in a rehabilitative facility to regain basic motor skills and experienced significant ongoing pain. The victim was unable to return to work. Rigogiannis was sentenced to 4 years' imprisonment with a non-parole period of 2 years and 9 months on the NCSI charge.

...

The Court in Harrison held that, despite an increase in the maximum penalty from 5 to 10 years' imprisonment in 2008 for the offence of NCSI, sentences for NCSI by driving, including those in the upper range of seriousness, remained inappropriately clustered at and under 4 years' imprisonment. The Court stated that CSP for the upper range category of seriousness for NCSI by driving was inadequate because it failed to reflect the 10 year maximum penalty and the objective seriousness of offending in that category. The Court stated that sentencing courts should not be constrained by existing CSP and should henceforth impose higher sentences for NCSI by driving falling within the upper range of seriousness, and that sentences for mid-range and lower-end instances of NCSI by driving would also need to be increased in order to maintain appropriate sentencing relativities.

The Court held that if the inadequate CSP were disregarded, sentences of 6 or 7 years' imprisonment would have been well within range in relation to the offending of Harrison and Rigogiannis. In the case of Harrison, the Court held that his negligence was extreme and fell within the upper range of seriousness. In the case of Rigogiannis, the Court held that his offending was a very serious example of the offence of NCSI by driving because his driving involved intentional rather than inadvertent conduct, his blood alcohol concentration was extremely high, he was speeding on the wrong side of the road around a blind corner and he had been warned by his passenger against driving in a reckless manner.[30]

75 In Barry, the offender's motor vehicle veered onto the wrong side of the road and collided with the victim's motorcycle. The offender had not slept for 27 hours, was under the influence of ice and knew that there was a risk that he might fall asleep at the wheel because he had already done so at least once before the collision. The victim suffered a complex right knee injury including an open fracture of the knee joint and a major neurovascular injury which required his leg to be amputated above the knee. He also suffered a complex pelvic fracture, iliac vein laceration and multiple fractures to his right forearm. He remained in hospital for nearly four months where he underwent multiple surgeries and continued to require regular physiotherapy. The offender pleaded guilty to a charge of NCSI. On the plea, the prosecutor submitted that the gravity of the offender's offending fell within the 'middle to upper range' of objective seriousness. The offender was sentenced to a combination sentence of 20 months' imprisonment and a CCO of 2 years. On appeal against sentence by the Director of Public Prosecutions, this Court held that the sentence was manifestly inadequate and resentenced the offender to 5 years' imprisonment with a non-parole period of 3 years.

76 In Barry, this Court referred to Halket v The Queen.[31] That case involved the driver of a tip truck - who had consumed ice the night before the collision and was sleep deprived - driving his truck into the back of a stationary four-wheel drive vehicle at 60 kilometres per hour, causing severe injuries to the female front passenger of that vehicle. Those injuries included fractured vertebrae and partial paraplegia, a ruptured spleen and pain to her knee and shoulder. She was required to live in a rehabilitation centre for a number of months. The offender conceded that those injuries 'fell at the high end of seriousness'. The offender pleaded guilty and was sentenced to 6 years' imprisonment for causing those injuries. His application to this Court for leave to appeal on the ground that the sentence was manifestly excessive was refused.

77 In refusing leave to appeal, the Court described the offender's moral culpability as 'very high'.[32] The Court stated that he had wilfully and deliberately disregarded the fundamentals of road safety as he was aware that he was unable to continue driving safely but continued to do so. The Court noted that the longest period of rest that the offender had in the week prior to the collision was three hours, and he had already been driving for some hours before the collision. The Court also observed that in the 2.4 kilometres prior to the collision, the offender had driven in a dangerous manner, including driving into oncoming lanes and failing to stop at a red light, and that as a consequence of the size and weight of the tip truck, the degree of risk he presented by driving while fatigued was greatly magnified.

78 The cases to which we have referred indicate that a sentence to a term of imprisonment of 6 years or more is open for offences of NCSI by driving that fall within the upper range of seriousness and that a sentence of 5 years' imprisonment is open for offending in the middle to upper range. Although the facts of those cases differ from the present case, they dispel any notion that the sentence imposed on the applicant is manifestly excessive.

79 For the above reasons, the application for leave to appeal will be refused.

[1] DPP v Gurovski [2017] VCC 179 ('Sentencing remarks').

[2] The HVNL is set out in the schedule to the Heavy Vehicle National Law Act 2012 (Qld) and applies in Victoria by virtue of s 4 of the Heavy Vehicle National Law Application Act 2013.

[3] The information that must be recorded in relation to rest periods is set out in reg 16 of the Heavy Vehicle (Fatigue Management) National Regulation (Qld), which applies in Victoria by virtue of the Heavy Vehicle National Law Application Act 2013.

[4] Transcript of Proceeding (21 February 2017) 11.

[5] Transcript of Proceeding (21 February 2017) 11-15.

[6] Transcript of Proceeding (21 February 2017) 15.

[7] Transcript of Proceeding (21 February 2017) 38.

[15] [2015] VSCA 349; (2015) 49 VR 619 ('Harrison').

[16] Harrison [2015] VSCA 349; (2015) 49 VR 619, 622 [12], 648-9 [130] (citations omitted).

[17] Sentencing remarks [23], [28]-[29].

[18] See [33] above.

[19] See [34] above.

[20] [1992] HCA 14; (1992) 173 CLR 572 ('Jiminez').

[21] See [12] above.

[22] This submission was incorrect. The applicant commenced work at 5:26 am. He drove the truck from Altona North to Noble Park North. He assisted with the loading of the truck before commencing the relevant journey at 8:57 am. He had worked for nine hours and 20 minutes, and had driven the truck on the relevant journey for five hours and 48 minutes, before the collision. The prosecution opening correctly states that the collision occurred nine hours and 20 minutes after the applicant started work.

[23] This submission is inconsistent with the agreement reached on the plea that the particulars of negligence were to be confined to the events on the day of the collision and the preceding night. See [27] above.

[24] As appears from [12] above, the prosecution was not able to establish beyond reasonable doubt that the applicant's delayed reaction was caused by his relative sleep deprivation and shift work.

[25] Jiminez [1992] HCA 14; (1992) 173 CLR 572, 577-81.

[26] [2015] VSCA 349; (2015) 49 VR 619, 629 [44].

[27] See [36] above.

[28] [2015] VSCA 349; (2015) 49 VR 619, 648-9 [130].

[29] (2017) 82 MVR 448 ('Barry').

[30] Barry (2017) 82 MVR 448, 457-8 [41]-[43], 458-9 [46]-[47].

[31] (2016) 77 MVR 509 ('Halket').

[32] Halket (2016) 77 MVR 509, 515 [26].