Guseli v The Queen [2019] VSCA 29

CRIMINAL LAW - Appeal - Sentence - Culpable driving causing death - Whether judge erred in describing offence as 'approaching a worst-case' - Whether judge erred in stating that plea of not guilty relevant to specific deterrence and prospects of rehabilitation - Whether judge misapplied current sentencing practices - Whether judge erred in stating that wider community must be 'placated' by sentence - Whether sentence manifestly excessive.

1 On 7 February 2018, the appellant was found guilty by a jury of one charge of culpable driving causing death.[1] The maximum penalty for that offence is 20 years' imprisonment. On 14 March 2018, he was sentenced to 11 years' imprisonment with a non-parole period of 7 years.[2]

2 The charge arose out of a collision between the appellant's V8 sedan travelling at 182 kilometres per hour in a 60 kilometre per hour zone 3.8 seconds prior to impact, and a prime mover driven by the victim, Eddie Kocjancic, travelling at about 10 kilometres per hour.

3 The appellant sought leave to appeal against his sentence on seven proposed grounds of appeal. On 27 July 2018, he was granted leave to appeal on six of those grounds by a judge of this Court.[3] He now appeals on the grounds that: the judge erred in finding that his offending was 'approaching a worst-case'; the judge erred concerning the legal consequences of Mr Kocjancic's failure to wear a seatbelt; the judge erred in finding that the appellant's plea of not guilty was relevant to specific deterrence and prospects of rehabilitation; the judge misapplied current sentencing practices to find that his sentence should be 'of a high order'; the judge erred in finding that the wider community must be 'placated' by the sentence; and the sentence is manifestly excessive.

4 For the reasons that follow, the appeal will be allowed and appellant will be resentenced as set out at [114] below.

5 The elements of the offence of culpable driving causing death are: first, the accused was driving a motor vehicle; secondly, the driving was culpable; and thirdly, the culpable driving caused the death of another person. The second element can be established either by proving that the accused drove the vehicle recklessly or negligently. Negligence means a failure unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case.[4] The third element requires that the accused's driving must have been 'a substantial and operative cause' of the victim's death.[5] The accused's acts do not need to be the sole cause of the death; a person can be criminally liable for a death that has multiple causes even if he or she is not responsible for all of them.[6]

6 The charge in the present case was in the following terms:

The Director of Public Prosecutions presents that MICHAEL GUSELI at Port Melbourne in Victoria on the 7th day of November 2014 by the culpable driving of a motor vehicle caused the death of EDDIE KOCJANCIC in that the said MICHAEL GUSELI drove the said motor vehicle negligently.

7 The events giving rise to the charge are as follows.

8 In the early hours of 7 November 2014, Mr Kocjancic, who was 53 years of age, attended the Cement Australia facility, which is located in an industrial zone on Lorimer Street, Port Melbourne. He filled his tanker trailer with cement powder to tow with his prime mover truck. The combined mass of the prime mover and the fully loaded trailer was approximately 40 tonnes.

9 At approximately 5:22 am, Mr Kocjancic drove the prime mover, which had its headlights on, out of the gate of the Cement Australia facility at about 10 kilometres per hour and commenced a left-hand turn onto Lorimer Street. At that point, Lorimer Street is a divided carriageway, with two lanes for eastbound traffic and two lanes for westbound traffic, separated by a tree-lined median strip. Due to the size of his prime mover and trailer, Mr Kocjancic was required to swing into the right lane of the eastbound carriageway to execute the turn.

10 At the same time, the appellant was driving along Lorimer Street in his 2013 Chrysler V8 sedan, on his way home from work. He lived a short distance from Lorimer Street, and knew it well. The weather conditions were dry and traffic was light. It was dark but visibility was good.

11 The appellant was driving in the left-hand lane of the eastbound carriageway at high speed. He approached Mr Kocjancic's truck while it was executing the left-hand turn and attempted to avoid it by braking heavily and steering into the right-hand lane. The appellant's vehicle collided with the driver's side of the truck, just below the driver's side door, with the impact being taken by the fuel tanks. The impact caused the driver's side cabin door of the prime mover to open and Mr Kocjancic - who was not wearing his seatbelt - was thrown from the cabin onto the roadway.

12 The truck continued to roll forward at a slow speed for another 35 metres. Mr Kocjancic had landed in the path of his prime mover and trailer, and he was run over by the wheels of either the prime mover or the trailer. He died instantly from catastrophic head injuries.

13 The impact caused a diesel fuel fire. The prime mover was destroyed and the trailer was substantially damaged. Mr Kocjancic's body suffered burns.

14 Upon impact, the appellant's vehicle rotated 180 degrees, crossed the median strip and hit a tree before coming to rest in the westbound carriageway facing west. The entire front left wheel assembly and suspension were torn from the vehicle but there was minimal protrusion into the footwell of the cabin. The appellant was not injured. In the aftermath of the collision, the appellant checked the prime mover cabin but could not see the driver.

15 Evidence obtained from the airbag control module in the appellant's vehicle, which records data about the vehicle's speed in the five seconds before an airbag is deployed, indicated the following:

(a) 3.8 seconds and approximately 138 metres before the collision, the engine was at full throttle and it was travelling at 182 kilometres per hour;

(b) 3.7 seconds and approximately 134 metres before the collision, acceleration stopped and the brakes were engaged; and

(c) at the point of impact, the vehicle was travelling at 93 kilometres per hour.

16 On the appeal, it was common ground that the effect of the evidence at trial was that, in the light of the weight of the truck and the height of the driver's cabin, if Mr Kocjancic had been wearing a seatbelt at the time of impact, he probably would not have died. There was also evidence that Mr Kocjancic may not have suffered any injury at all if he had been wearing a seatbelt.

17 When police arrived at the scene of the collision, the appellant tested negative to a preliminary breath test for alcohol. Later that day, the appellant told police during a field interview that he had been travelling at the speed limit and was not suffering from fatigue or affected by drugs at the time of the collision.

18 Approximately one month later, the appellant was again interviewed by police and, despite the data obtained from the airbag control module, maintained that he had been driving at 60 kilometres per hour. He admitted that he had full vision of the prime mover before the collision.

19 Mr Kocjancic's family and a close friend provided moving victim impact statements, which described him as a warm, generous and loving husband, father and son, with a big personality. Mr Kocjancic's wife described the difficulties she experienced coming to terms with his death emotionally, as well as with becoming the sole parent to their then 16-year-old son who has severe autism, and 13-year-old daughter. As a result of the collision, the family lost its sole source of income and she had to sell the family home to provide for her family. Mr Kocjancic's daughter described her sadness at her father not being there for milestones in her life and how her brother, who does not fully understand his father's death, had lost his best friend.

20 The appellant was 40 years of age at the time of the offending and 43 when he was sentenced. His parents separated when he was about 7 years old. He lived with his father in the Shepparton area but also maintained a relationship with his mother. He has two older brothers and two younger half-brothers. Despite being bullied at school, resulting in a lack of self-confidence, he remained until Year 11, when he began working in his father's family business, which built swimming pools.

21 In 2002, when he was 26 years of age, the appellant married and moved to Melbourne where he worked as a subcontractor in swimming pool construction, and also as a salesperson. He obtained TAFE certificates and builder's registration and, in 2004, established his own pool installation business which was successful, employing 15 people and operating for more than a decade.

22 In 2009, the appellant established a relationship with a new partner, with whom he had a son in 2014. At the time of sentencing, his son was 3 years old. The appellant and his partner separated after the offending, however the appellant continues to have contact with her and his son.

23 In 2013, the appellant purchased a pizza restaurant which he was refurbishing. It was due to open in the week after the collision. Since the offending, both the appellant's pool and restaurant businesses have failed, and he has worked as a construction labourer.

24 A report by Carla Lechner, a clinical psychologist, dated 21 February 2018 described the appellant as presenting with symptoms of a major depressive disorder and post-traumatic stress disorder as a result of the collision, and stated that he now experiences flashbacks, nightmares, emotional dysregulation and symptoms of anxiety. She stated that the appellant had expressed remorse and empathy for Mr Kocjancic's family, that he was insightful and that his prospects of rehabilitation were 'favourable' and 'good'.

25 The appellant enjoys the support of his former partner and his family. Two character references were tendered on the plea, one of which was from a former employee of the appellant, who the appellant had sponsored for an Australian work visa. He spoke highly of the appellant's kindness towards him and stated that he knows that the appellant will learn from his offending conduct and work hard to get his life back on track.

26 The appellant has a limited but relevant history of driving offences. On 30 March 1999, he was fined $300 and his licence was suspended for 4 months for driving in excess of the speed limit. On 12 April 1999, he was placed on a good behaviour bond for 12 months without conviction for careless driving, failing to comply with standards of registration and failing to have a current registration label affixed to his vehicle.

27 On 7 June 2006, the appellant was fined an aggregate of $700 for leaving the scene of an accident and driving while unlicensed. On 8 December 2008, he was fined $750 and his licence was cancelled for 20 months for exceeding the prescribed concentration of alcohol within 3 hours of driving.

28 On 28 April 2010, the appellant was sentenced to 1 month's imprisonment suspended for 12 months, licence disqualification for 7 months and a fine of $250 for driving while disqualified and exceeding a 90 kilometre per hour speed limit by between 25 and 35 kilometres per hour.

29 The judge said the following about the gravity of the offending:

In terms of [the appellant's] culpability for this offence, the offence itself must be considered in the upper range of seriousness for this offence, approaching a worst-case.[7]

30 In evaluating the degree of the appellant's negligence, the judge had regard to the fact that the appellant's 'very gross falling below the standard required [of] a driver on the roads' involved consciously accelerating his vehicle close to its maximum revolutions for some seconds before he saw Mr Kocjancic's truck and braked.[8] He stated:

It is one thing to exceed a speed limit. It is another thing to accelerate a high-performance vehicle to 182 kilometres an hour, triple the speed limit, in a built-up area, while it was still dark. It is axiomatic that at that speed in the event of an accident there is a high risk of death or serious injury ... Eddie Kocjancic did not stand a chance.[9]

31 The judge rejected the appellant's submission that the fact that Mr Kocjancic was not wearing a seatbelt at the time of the collision was a mitigating factor. We will refer to the judge's sentencing remarks on this issue in detail when we discuss ground 2.

32 In relation to the appellant's prospects of rehabilitation, the judge said that 'notwithstanding [the appellant's] plea of not guilty, [his] prospects of not reoffending are fair to reasonable'.[10] The judge also stated that the appellant has a good work record and has been a productive member of the community and that these factors support his prospects of rehabilitation 'notwithstanding [his] plea of not guilty and thus the lack of full remorse'.[11] In relation to the relevance of specific deterrence, the judge said:

While [the appellant's criminal] record is not the worst seen in many of these cases, [his] blemished driving record, plus [his] plea of not guilty, means that considerations of specific deterrence have some salience here.

...

As I indicated earlier, considerations of specific deterrence have some relevance given [the appellant's] prior record and [his] plea of not guilty.[12]

33 The judge also stated that the appellant's plea of not guilty indicated that he was 'not fully remorseful'.[13] The judge noted the regret and reactive anxiety that the appellant was experiencing as a result of his offending, and gave him credit for the apology that he had made to Mr Kocjancic's family on the plea.

34 In support of his finding that the appellant's prospects of rehabilitation were 'fair to reasonable', the judge relied on the lengthy delay between the offending and sentencing, during which the appellant had not offended, and Ms Lechner's opinion that the appellant had some insight into his offending, and victim empathy. The judge said that the appellant's fair to reasonable prospects of rehabilitation imposed 'a downward pull on [his] sentence'.[14]

35 In sentencing the appellant, the judge had regard to current sentencing practices. We will refer to the judge's sentencing remarks on this issue in detail when we discuss ground 5.

36 The judge had regard to the facts that the appellant was not a young offender, had a relevant criminal history, was not entitled to a more lenient sentence as a result of a plea of guilty, and the significant victim impact the offending caused. He said that the appellant was entitled to some benefit for conducting the trial expeditiously.

37 The judge stated that just punishment, of which denunciation and social rehabilitation were aspects, was a very important sentencing consideration, as the appellant's offending conduct had had a major impact on Mr Kocjancic's family, and 'the sentence must provide something of a balm for their loss'.[15] He said that the appellant's conduct has also affected the wider society and that 'the wider society must be placated by the sentence and be satisfied that societal values have been vindicated'.[16]

38 The judge also observed that general deterrence had significance in cases where grossly negligent driving results in death or serious injury.

39 The appellant's six extant grounds of appeal are as follows:

1. The sentencing judge erred in finding that the circumstances of the culpability of the [appellant] were of a category of seriousness that they were 'approaching a worst-case' (Sentence at [41]).

2 The sentencing judge erred in finding that:

(i) if the victim had been wearing a seatbelt then he may have survived the collision whereas the evidence was that he would have survived the collision (Sentence at [42]); and,

(ii) as a result of the culpability of the [appellant's] offending 'approaching a worst-case', the submission that the fact that the victim would have survived the collision if he was wearing a seatbelt, should be rejected (Sentence at [42]); and,

(iii) the fact that the victim would have survived the collision if he was wearing a seatbelt was, in the circumstances, not a matter in mitigation of penalty (Sentence at [42], [43], [44] and [45]).

...

1. The sentencing judge erred in finding that the fact that the [appellant] had pleaded not guilty to the offence was a factor to be taken into account in the attribution of weight to the following purposes of punishment:

(i) specific deterrence (Sentence at [58]); and,

(ii) rehabilitation (Sentence at [68]).

5 The sentencing judge erred in finding:

(i) that recent decisions of the High Court of Australia (namely, R v Kilic [2016] HCA 48; (2016) 259 CLR 256 and Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 91 ALJR 1063); and

(ii) that recent decisions of this Court in relation to dangerous driving causing death (for example, Stephens v The Queen [2016] VSCA 121; (2016) 50 VR 740) and negligently causing serious injury (for example, Harrison & Rigogiannis v The Queen [2015] VSCA 349; (2015) 49 VR 619) resulted in the level of sentences for culpable driving 'drifting up',

and consequently, the sentence in the instant case should be of a high order.

1. The sentencing judge erred in finding that a relevant factor in the application of the principle of 'just punishment' was that 'the wider society must be placated by the sentence' to be passed upon the [appellant] (Sentence at [83] and [84]).

7 The sentence is manifestly excessive.[17]

Legal principles governing the relevance of a victim's conduct

40 The main focus of the appeal was ground 2. The parties made extensive submissions on the applicability in this case of the principles set out in Spanjol v The Queen[18] concerning the relevance of a victim's conduct to the exercise of the sentencing discretion. As those principles are critical to the determination of ground 2, we will discuss them before turning to that ground. We will then discuss the other grounds.

41 Prior to Spanjol, there were two inconsistent lines of authority on the relevance of a victim's conduct to the sentencing synthesis in relation to motor vehicle offences. The leading cases for each of the lines of authority were Howarth v The Queen[19] and Tran v The Queen.[20]

42 Howarth involved a charge of culpable driving causing death. The deceased was a passenger in the offender's vehicle. They had spent the day drinking and alternating in the driving of the vehicle. They were both very intoxicated. Brooking JA, with whom Charles and Batt JJA agreed, stated that the degree of blameworthiness of the victim in the offence of culpable driving causing death was not a factor relevant to the seriousness of the offence.[21] He drew a distinction between the conduct of a victim that affects an offender's actions, such as encouragement for the offender to drive while intoxicated, and conduct by a victim which is unassociated with the offender's actions, such as the victim acting in a manner that was reckless to his or her own safety. Brooking JA stated that while the former might reduce the culpability of the offender, the latter could not.[22]

43 Tran involved a number of charges, including two charges of culpable driving causing death and four charges of negligently causing serious injury ('NCSI'). Of present relevance is the NCSI charge relating to the passenger in the stolen vehicle the offender was driving. The offender was driving at speed under the influence of heroin at the time of a collision with another vehicle. The passenger had encouraged the offender to drive faster to elude a police car which was pursuing them. Callaway JA, with whom Buchanan and Vincent JJA agreed, stated that the 'innocence' of a victim of the offence of NCSI - in the sense that the victim was not complicit in the offender's conduct - was to be treated as a circumstance of aggravation. By contrast, the complicity of a victim was to be treated as the absence of a circumstance of aggravation.[23]

44 Spanjol involved a charge of NCSI. The victim, who was a passenger in the offender's vehicle, was not wearing a seatbelt. The offender was significantly intoxicated and drove at between 79 and 85 kilometres per hour in a 70-kilometre zone. The Court stated that the unresolved conflict between Howarth and Tran enabled the Court to decide the question whether a victim's conduct is relevant to sentencing for 'offences such as these ... afresh, starting from first principles'.[24] The Court summarised its conclusions as follows:

(1) In a case of NCSI by driving, the finding of guilt (or plea of guilty) establishes that the offender's driving was criminally negligent and that the negligent driving caused the victim's serious injury.

(2) The sentencing court will treat as its starting point that the offender was solely responsible for the manner of his driving and that the manner of his driving was the sole cause of the serious injury. But the evidence may support a qualification of one or both of these propositions.

(3) As to responsibility for the negligent driving, the offender may be able to establish that some other person (whether or not the victim) and/or some external circumstance was partly responsible for the manner of the driving.

(4) As to the causal link with the serious injury, the offender may be able to establish that there was an additional factor, outside the offender's control, which was also a material cause of the serious injury.

(5) The language of 'complicity' should be avoided in this context. 'Complicity' is a technical term, with a well-defined meaning. It connotes the attribution of criminal responsibility to a co-offender. No such question arises in either of the circumstances under consideration.

(6) Instead, the language of 'reduced responsibility' should be used to describe the first kind of qualification and the language of 'other contributing causes' to describe the second kind of qualification.[25]

45 The third and fourth propositions in the above passage are sometimes referred to as the 'first limb' and 'second limb', respectively, of Spanjol. The first limb is not presently relevant. The Court elaborated on the second limb as follows:

As to the second proposition ... which is concerned with causation, the offender may be able to establish that there was an additional factor - outside the offender's control - which was also a material cause of the serious injuries. An example would be where the passenger, though wearing a seatbelt, was leaning far out of the passenger window, making himself much more vulnerable to injury than he would have been if he had sat in his seat in the usual way. Again, assuming that there was sufficient evidence to establish that this conduct resulted in the injuries being materially worse than they would otherwise have been, that circumstance should also ordinarily result in a reduction of penalty.

If the sentencing judge is satisfied that one or both of the propositions is qualified, so as to result in some reduction in penalty, the reduction would be the same, regardless of whether the approach taken in Howarth (a circumstance of mitigation) or Tran (an absence of a circumstance in aggravation) was adopted. ... Therefore, it seems unhelpful to describe conduct in those ways. Rather, it should be acknowledged that, where one or both of the qualifications is satisfactorily made out on the evidence, there may be some form of reduction in penalty within the sound limits of the sentencing judge's discretion.[26]

46 The Court concluded that the evidence did not enable a finding to be made that the victim would have sustained less severe injuries had she worn a seatbelt. Accordingly, it was not satisfied that the victim's conduct made a material contribution to the seriousness of her injuries.

47 Spanjol was recently applied by this Court in George v The Queen.[27] That case involved, relevantly, two charges of culpable driving causing death. The offender's vehicle and a vehicle driven by AB, in which DH was a passenger, were travelling at very high speed and in close proximity to each other. The front of the offender's vehicle struck the rear of AB's vehicle, causing both drivers to lose control of their vehicles, which collided with trees. Both AB and DH died at the scene. There was some evidence that the two vehicles were involved in a 'drag race'. Priest JA, with whom Ashley JA and Croucher AJA relevantly agreed, referred to the principles summarised in Spanjol with approval. He adapted those principles to a charge of culpable driving causing death, where the particular relied upon is gross negligence, as follows:

(1) In a case of [culpable driving by gross negligence], the finding of guilt (or plea of guilty) establishes that the offender's driving was criminally negligent and that the negligent driving caused the victim's [death].

(2) The sentencing court will treat as its starting point that the offender was solely responsible for the manner of his driving and that the manner of his driving was the sole cause of the serious injury. But the evidence may support a qualification of one or both of these propositions.

(3) As to responsibility for the negligent driving, the offender may be able to establish that some other person (whether or not the victim) and/or some external circumstance was partly responsible for the manner of the driving.

(4) As to the causal link with the [death], the offender may be able to establish that there was an additional factor, outside the offender's control, which was also a material cause of the [death].

(5) The language of 'complicity' should be avoided in this context. 'Complicity' is a technical term, with a well-defined meaning. It connotes the attribution of criminal responsibility to a co-offender. No such question arises in either of the circumstances under consideration.

(6) Instead, the language of 'reduced responsibility' should be used to describe the first kind of qualification and the language of 'other contributing causes' to describe the second kind of qualification.[28]

48 Relevantly, Priest JA held that the offender had failed to establish on the balance of probabilities that there was an 'additional factor', outside his control, which was also a material cause of the victims' deaths. He noted that the sentencing judge had been unable to decide beyond reasonable doubt whether what occurred was a 'drag race' or whether the offender was 'maniacally' pursuing AB.[29] He also noted that the sentencing judge had found that, irrespective of which alternative reflected the true position, the offender was travelling at a speed of approximately 140-150 kilometres per hour in a 100 kilometres per hour zone while his car was 'at a ridiculously close and unsafe distance behind [AB's] car'.[30]

Ground 2: Mr Kocjancic's failure to wear a seatbelt

Judge's remarks regarding the principles in Spanjol

49 On the plea, the appellant relied on the second limb of Spanjol for the proposition that the fact that Mr Kocjancic was not wearing a seatbelt was a factor to be taken into account in mitigation of sentence. The judge rejected that proposition. In his sentencing remarks, under the heading 'Seriousness of the offence', the judge stated:

I reject [the appellant's] submission that the fact that [Mr Kocjancic] was not wearing a seatbelt and may have survived the collision if he was ... wearing a seat belt is a matter of mitigation.

[Mr] Kocjancic was blameless and entirely unassociated with [the appellant's] conduct and the events which led [him] to commit this offence. It would be an affront to common sense to somehow or other reduce [the appellant's] culpability on the basis that [Mr Kocjancic] had not affixed his seat belt in circumstances where his driving did not present any risk to other road users.

[The appellant] owed a duty to all road users including truck drivers just inching their rigs out of a loading facility onto the carriageway even if they had not fastened their seat belt prior to substantively commencing their journey. [His] driving was the substantial cause of [Mr] Kocjancic's needless death and it is pure casuistry to seek to reduce [the appellant's] responsibility on the basis that he was not wearing a seatbelt. On any common sense approach he was the innocent victim of [the appellant's] grossly negligent driving.

[The appellant's] counsel relied on the case of Spanjol to support the argument that the failure of [Mr Kocjancic] to wear a seatbelt is a matter in mitigation. I regard that case as confined to its facts and it does not address the case here where there is no prior connection between [the appellant] and [Mr Kocjancic].[31]

50 The appellant submitted that, although Spanjol dealt with a NCSI charge, George makes it clear that the principles in Spanjol also apply to a charge of culpable driving causing death. He contended that the second limb of Spanjol applied in the present case because Mr Kocjancic's failure to wear a seatbelt was an additional factor, outside the appellant's control, which was also a material cause of Mr Kocjancic's death. This was said to be so because the evidence established on the balance of probabilities that Mr Kocjancic would not have died if he had been wearing a seatbelt.

51 The appellant argued that Mr Kocjancic's failure to wear a seatbelt was a significant mitigating factor which warranted a 'healthy discount'. He submitted that the fact that Mr Kocjancic's conduct was independent of his own conduct and personal circumstances did not disqualify it from being a mitigating circumstance. He gave the example of delay beyond the control of an offender as a well-established mitigating circumstance that was independent of the offender.

52 The appellant contended that Mr Kocjancic's failure to wear a seatbelt also reduced the seriousness of his offending and his moral culpability. However, the appellant acknowledged the logic of the contrary proposition that, as Mr Kocjancic's failure to wear a seatbelt was independent of his own conduct and he was not aware of that failure at the time of the collision, the failure did not affect his moral culpability.

53 The appellant noted that the offence of culpable driving causing death does not require that the offender's negligent driving be the sole cause of the victim's death. Accordingly, so it was said, the jury's verdict in the present case would not be traversed by treating Mr Kocjancic's failure to wear a seatbelt as contributing to his death, and thus as a mitigating factor.

54 The appellant submitted that the judge's remarks indicate that he considered, and rejected, the first limb of Spanjol, which the appellant did not rely upon, but failed to deal with the second limb. He contended that the judge's failure to apply the second limb resulted in a miscarriage of the sentencing discretion and contributed to the sentence being manifestly excessive.

55 The Crown submitted that neither limb of Spanjol is applicable to a charge of culpable driving causing death. It argued that the second limb is apt for a NCSI charge because a victim's conduct can affect one of the two indicators of the seriousness of the offending, namely the degree of seriousness of the victim's injuries (the other indicator being the degree of the offender's negligence). The second limb was said not to be apt for a culpable driving causing death charge because death is an absolute state which does not involve degrees of seriousness.

56 The Crown submitted that George could be distinguished from the present case because it dealt with the question of responsibility for the collision, with the two alternatives being that AB was either drag racing with the offender, or being pursued by the offender, with the sentencing judge ultimately determining that he could not choose between the two alternatives. Those circumstances, the Crown contended, were materially different from the present case, in which Mr Kocjancic's conduct could in no way be said to have contributed to the appellant's collision with his truck. The Crown also argued that the applicability of the second limb of Spanjol, had not been dealt with in any substantial way in the context of a case relating to death, as opposed to serious injury.

57 According to the Crown, as an offender's negligence must be a substantial and operative cause of the victim's death in order for the offence of culpable driving causing death to be established, the seriousness of the offending cannot be affected by conduct of the victim which contributes to his or her death. To hold otherwise, so it was said, would traverse a guilty verdict.

58 The Crown also submitted that there was no proper basis for treating Mr Kocjancic's failure to wear a seatbelt as a mitigating factor because it was a matter independent of the appellant. It contended that if a failure to wear a seatbelt were to be treated as a mitigating factor, then other conduct of a victim of culpable driving, such as jaywalking by a pedestrian, would logically also have to be treated as a mitigating factor and the circumstances that could be treated as mitigating factors could potentially be endless.

59 The Crown relied upon difficulties in quantifying how much weight to be given to a victim's conduct in mitigation of sentence as a reason why the courts should not treat it as a mitigating factor.

60 The Crown's alternative argument in relation to ground 2 was that, if Mr Kocjancic's conduct in failing to wear a seatbelt is to be treated as a mitigating factor, it should be given very little weight because that conduct says nothing about the driving of the appellant. Accordingly, so it was said, because it does not have the effect of reducing the appellant's moral culpability, the fact that Mr Kocjancic was not wearing his seatbelt has no impact on sentence.

61 We note that the appellant did not object to the Crown's submission that the second limb of Spanjol could not apply to the present case even though, on the plea, the prosecutor had conceded that it could. The prosecutor said the following:

[I]f ... Your Honour is satisfied that there is evidence that you accept on the balance of probabilities ... that [Mr Kocjancic's failure to wear a seatbelt] may have contributed to his death, then in our respectful submission Your Honour can take that into some regard, we say limited regard, [in] reduction of penalty because of the overall seriousness of the offending. And that's as far as I take it.[32]

62 On first impression, there is some force in the Crown's submission that, while Spanjol is apt for the offence of NCSI, it is not apt for the offence of culpable driving causing death. The Crown's submission is also consistent with the inapplicability of civil law notions of contributory negligence to the criminal law.[33] The primary focus must always remain on the offender's conduct and his or her moral culpability rather than the victim's conduct. However, the Crown submission cannot be accepted because George has held that both limbs of Spanjol apply to the offence of culpable driving causing death.

63 In the light of the fact that George has endorsed the approach of this Court in Spanjol, it is not necessary for us to revisit the conflicting views in Howarth and Tran. However, we note that Howarth, upon which the Crown relied, focused on the effect of a victim's conduct on the offender's culpability (the first limb of Spanjol) rather than the causal contribution of a victim's conduct to the victim's death (the second limb of Spanjol). Tran also focused on the issue of culpability. Only the issue of causation the subject of the second limb is presently relevant.

64 It is true that, in George, there was interaction between the offender and AB as drivers of their respective vehicles prior to the collision and that it could be said that any conduct in which they both engaged that allegedly contributed to the two deaths was interconnected. That feature is absent in the present case, as the appellant and Mr Kocjancic had no interaction prior to the collision and Mr Kocjancic's failure to wear a seatbelt was completely independent of the appellant's speeding. Indeed, the appellant had no knowledge of that failure until after the collision.

65 The question arises whether the absence of this feature renders either limb of Spanjol inapplicable to the present case. The answer to the question is clearly 'yes' in relation to the first limb because Mr Kocjancic's conduct had no bearing on the appellant's decision to speed and therefore cannot affect either the gravity of his offending or his moral culpability. After careful consideration, we have concluded that the answer to the question is 'no' in relation to the second limb for the following reasons.

66 First, both Spanjol and George refer to the existence of 'an additional factor, outside the offender's control, which was also a material cause' of the serious injury or death.[34] Neither case stated that the additional factor which is sufficient to attract the second limb must involve interaction between the offender and the victim prior to the collision. As a matter of principle, we are unable to distinguish the conduct of a passenger in the offender's vehicle who is not wearing a seatbelt and does not affect the offending conduct, and the driver of a another vehicle who is not wearing a seatbelt.

67 Secondly, we accept that the precise scope of the second limb of Spanjol has not been determined. To date, the limb has been applied to passengers in an offender's vehicle and to a driver and passengers in another vehicle which collides with the offender's vehicle. The question whether it applies to the example cited by the Crown of a jaywalking pedestrian has not yet arisen. It is not necessary for us to decide that question; we will confine ourselves to the facts of the present case. We are of the opinion that the second limb applies to this case because at the time that Mr Kocjancic was not wearing his seatbelt, he was driving his vehicle on a public road, was under an obligation to wear a seatbelt and his failure to wear his seatbelt exposed him to an obvious risk of serious injury or death in the event of a collision with another vehicle.

68 Thirdly, we reject the Crown's submission that the application of the second limb of Spanjol to the present case will involve traversing the jury's verdict. As an offender's reckless or negligent driving need not be the sole cause of a victim's death in order for the offence of culpable driving causing death to be proven, it follows that the jury's verdict is not inconsistent with the existence of another material cause of Mr Kocjancic's death.

69 It was common ground that the appellant has established on the balance of probabilities that, if Mr Kocjancic had been wearing a seatbelt at the time of the collision, he would not have died. Mr Kocjancic's failure to wear a seatbelt was thus a material cause of his death. While this additional material cause of the death does not diminish the appellant's responsibility for the death, as a matter of principle, it is difficult to see why this additional material cause should be considered irrelevant for the purposes of sentencing. As we have already said, the additional material cause does not affect the gravity of the offending or the appellant's moral culpability. However, it can be taken into account in reduction of sentence. We agree with the appellant that the factors that may be taken into account in reduction of sentence are not confined to those that are personal to the offender. Examples of non-personal factors include delay that was not caused by the offender, parity and an extended lockdown of prisoners on remand for which the offender was not responsible.

70 Before considering whether the judge failed to properly apply the principles in Spanjol, we will address an issue that arose during oral argument about the relevance of a deceased's 'vulnerability' to the exercise of the sentencing discretion. A road user may be more 'vulnerable' to death due to a personal attribute, such as a heart defect or a blood clotting defect, which renders him or her more susceptible to death in the event of a collision. Mr Kocjancic's failure to wear a seatbelt placed him at greater risk of death and made him more vulnerable not because it constituted a personal attribute but because it was an omission to comply with a legal requirement that applied to him as a driver of a motor vehicle. That omission occurred in the course of Mr Kocjancic's driving of his truck.

71 Drivers have an obligation to observe a reasonable standard of care. That obligation is not diminished where other road users have a particular vulnerability. A reasonable driver takes into account the fact that other road users constitute a diverse range of individuals, some of whom have vulnerabilities and some of whom may either engage in unsafe activities or be less able to look after their safety. For example, a reasonable driver would take extra care when driving in a school zone during school hours, near a playground or in the vicinity of a learner driver. In the present case, the standard of care the appellant was required to observe in driving his vehicle was not in any way diminished by the fact that Mr Kocjancic's failure to wear a seatbelt rendered him more vulnerable to death in the event of a collision.

72 We agree with the appellant that, while the judge considered the first limb of Spanjol, upon which the appellant did not rely, he failed to properly address the causation issue the subject of the second limb. As the latter limb featured prominently on the plea, the judge should have considered its application to the present case. With respect, it was not sufficient for the judge to make the sweeping comment that he regarded Spanjol 'as confined to its facts'.[35]

73 Having concluded that Mr Kocjancic's failure to wear a seatbelt should have been taken into account in reduction of sentence in the present case, we turn to the weight to be given to it.

74 We reject the appellant's submission that the failure warranted a 'healthy discount'. It was the appellant's deliberate decision to drive his high-performance vehicle at three times the speed limit that created the circumstances for the collision which resulted in Mr Kocjancic's death. Mr Kocjancic's failure to wear a seatbelt did not contribute in any way to the collision; it would have occurred whether or not he wore his seatbelt. It is true that Mr Kocjancic would not have died if he had worn his seatbelt and thus his conduct causally contributed to his death to a material degree even though it did not contribute to the collision. In this sense, Mr Kocjancic's conduct was a material cause of his death. However, the causal contribution of that conduct to Mr Kocjancic's death lacks the centrality of the appellant's causal contribution.

75 We also note that the circumstance that made the seatbelt critical to whether or not Mr Kocjancic would have survived the collision, namely, the size and weight of Mr Kocjancic's vehicle, was entirely fortuitous from the appellant's perspective. The position may well have been different if Mr Kocjancic had been driving a small car rather than a large truck. There does not appear to be any good reason in principle for the appellant to receive a substantial discount in his sentence based on the fact that Mr Kocjancic was not wearing a seatbelt, in circumstances where that fact only assumed importance due to a factor that was completely independent of the appellant and did not diminish his moral culpability.

76 In all the circumstances, the weight to be given to Mr Kocjancic's failure to wear a seatbelt must be relatively modest.

78 As we have upheld ground 2, the appeal will be allowed and the appellant will be resentenced. Accordingly, it is not strictly necessary for us to determine the other grounds. However, as they were the subject of careful argument, we will briefly consider them.

Ground 1: Categorisation of offending as 'approaching a worst-case'

79 It will be recalled from [29] above that, in his sentencing remarks, the judge said:

In terms of [the appellant's] culpability for this offence, the offence itself must be considered in the upper range of seriousness for this offence, approaching a worst-case.

80 The appellant submitted that it was not open to the judge to find that his offending was 'approaching a worst-case'. He contended that was because the sole particular of negligence was speed which lasted only a matter of seconds, rather than his negligence comprising multiple elements of dangerous driving such as swerving, driving dangerously on more than one occasion, driving under the influence of drugs or alcohol, failing to adhere to warnings, or driving an unroadworthy vehicle. He accepted that a case involving only speed may nevertheless fall into the 'worst case' category, and that it was open to the judge to find his moral culpability was high, but argued that in the circumstances of his offending, the judge's characterisation of his offending as 'approaching a worst-case' was unwarranted.

81 The Crown submitted that the judge was correct to characterise the appellant's offending as in the upper echelons of gravity, despite the lack of common aggravating features, because the speed involved was gross, and his driving in a built-up area in dark conditions at that speed was 'quite outrageous'. The Crown argued that, in any event, the sentence of 11 years' imprisonment imposed represented only 55 per cent of the maximum penalty and therefore the judge's characterisation of the offending as 'approaching a worst-case' was not reflected in the sentence imposed.

83 In considering that ground, it is important to bear in mind that the judge did not state that the appellant's offending fell in the 'worst case'. Rather, he said that it was in the 'upper range of seriousness' and was 'approaching a worst-case'.

84 The judge was right to characterise the offending as such. The appellant's deliberate decision to drive his high-performance vehicle at three times the speed limit before dawn was most egregious. He was not driving on a freeway or an isolated county road but on a road in an industrial area of Melbourne where trucks and other vehicles use the road from the early hours of the morning. In these circumstances, by driving his high-performance vehicle at 182 kilometres per hour, the appellant transformed the vehicle from a mode of transportation into a dangerous road hazard which created a high risk of death or serious injury.[36] There was no emergency that required the appellant to be speeding, let alone at 182 kilometres per hour. Rather, he engaged in thrill-seeking behaviour which exposed other road users to extraordinary risk of harm.[37] Accordingly, his moral culpability was extremely high.

85 We reject the appellant's submission that his offending could not be regarded as falling within the upper range of seriousness or 'approaching a worst-case' because the only particular of negligence upon which the prosecution relied was negligence. While the presence of other features such as driving while fatigued or under the influence of alcohol or drugs may, in other cases, constitute aggravating circumstances which elevate the gravity of the offending, the absence of such features in the present case does not lessen the gravity of the appellant's offending or his moral culpability. This is because the absence of fatigue, alcohol and drugs means that the appellant's judgement was not impaired; he was able to make a deliberate choice between driving at a safe speed and driving at a speed which, in effect, rendered his high-performance vehicle a dangerous weapon for the sake of a momentary thrill.

Ground 4: Relevance of plea of not guilty to other sentencing considerations

86 It will be recalled from the judge's remarks set out at [32] above that the judge referred to the appellant's plea of not guilty in the context of the judge's discussion of specific deterrence and the appellant's prospects of rehabilitation.

87 Regarding specific deterrence, the appellant submitted that the judge's treatment of his plea of not guilty as relevant to specific deterrence was impermissible, as it had the effect of punishing him for proceeding to trial.

88 Regarding rehabilitation, the appellant contended that the judge's reasoning that his prospects of rehabilitation were fair to reasonable, despite the fact that he pleaded not guilty, carried with it the inference that his decision to proceed to trial impacted upon his prospects of rehabilitation. He argued that while a plea of guilty or the conduct of an offender during trial may impact upon remorse, the mere fact of a plea of not guilty is irrelevant to prospects of rehabilitation. Accordingly, so it was said, to treat his plea of not guilty as relevant to his prospects of rehabilitation was to impermissibly expose him to an element of punishment for that plea.

89 The Crown submitted that the judge had not visited additional punishment on the appellant because he ran a trial. However, it contended that the appellant's plea of not guilty was relevant to specific deterrence because it meant that he did not accept full responsibility for his conduct and lacked genuine remorse. Consequently, so it was said, it was open to the judge to elevate specific deterrence in the sentencing synthesis.

90 Similarly, the Crown contended that the judge was entitled to find that the appellant's prospects of rehabilitation were reduced due to his plea of not guilty in circumstances where it was accompanied by a lack of acceptance of responsibility and the running of a hopeless defence,[38] which were indicative of a lack of genuine remorse.

92 A more severe sentence cannot be imposed on an offender merely because he or she has pleaded not guilty and proceeded to trial, or has exercised any other legal right, such as the right to silence. Those rights are fundamental to our criminal justice system and they would be significantly undermined if their exercise was treated as an adverse sentencing consideration.

93 A plea of guilty is an important mitigating factor in its own right. It may also enable a court more readily to make favourable findings in relation to other sentencing considerations such as remorse and prospects of rehabilitation. A plea of not guilty deprives an offender of the moderation in sentence to which he or she would have been entitled if he or she had pleaded guilty. Depending on the other evidence, a plea of not guilty may also make it more difficult for the offender to persuade a court to find that he or she is remorseful, has accepted responsibility for the offence or has insight concerning the offending. If a court is not persuaded about these matters, its assessment of the offender's prospects of rehabilitation and the need for specific deterrence may be adversely affected.[39]

94 In our opinion, read in context, the judge's references to the appellant's plea of not guilty when discussing his prospects of rehabilitation and the need for specific deterrence were consistent with the above principles. We are fortified in this view by the fact that the judge made a favourable finding about the appellant's prospects of rehabilitation. Also, the judge's conclusion that specific deterrence was a relevant sentencing consideration in the present case was clearly correct. Nothing that the judge said indicates that he imposed a higher sentence on the appellant than would otherwise have been the case merely because he pleaded not guilty.

95 In his sentencing remarks, the judge stated the following about current sentencing practices:

The High Court has ... recently emphasised that current sentencing practices are only one consideration under s 5 of the Sentencing Act, and they are not determinative.[[40]] Further, in cases that are in the upper level of seriousness, current sentencing practices do not provide a band within which a sentence is to be imposed.

Further, in considering current sentencing practices, I note that in recent cases the level of sentences for culpable driving has drifted up, particularly following increases in sentences for the lesser offence of dangerous driving causing death.[[41]]

While I have had regard to a number of the cases referred to by [the appellant's] counsel as illustrating current sentencing practices for the offence of culpable driving where the form of culpability is gross negligence, each case must be determined on its own merits, particularly in the light of the emphasis in Dalgliesh and Kilic. The maximum penalty must be taken as a yardstick against which to consider any particular proposed sentence. Current sentencing practices do not represent a band within which a sentence ought to be imposed. The Court of Appeal has indicated that past sentences are not precedents.

I was referred to a number of recent cases by the prosecutor where sentences in the high single digits were imposed for culpable driving involving speed and/or alcohol, usually on pleas of guilty.

As I have said, each case is confined to its own facts, although in Harrison[[42]] the Court of Appeal indicated that cases involving negligently causing serious injury by driving usually have common features of speed, alcohol, prior convictions and youthful offenders.

In this case the factor of youth is absent but [the appellant does] have a relevant criminal history. This makes comparing cases difficult, but consistency of approach to sentencing is an important consideration.[43]

96 The appellant submitted that the judge erred in concluding that the level of sentences for culpable driving has 'drifted up' and that this error materially contributed to the high sentence that the judge imposed on him. He contended that a review of recent cases did not support the proposition that sentences for culpable driving had increased in severity. The appellant also made extensive submissions concerning what he characterised as misstatements of principle in the judge's observations during the plea.

97 The Crown submitted that the judge had not erred in his approach. It contended that the judge was entitled to have regard to current sentencing practices, their limitations, the importance of consistency of approach to sentencing and the maximum penalty. It argued that sentences imposed for culpable driving causing death since Harrison v The Queen[44] and Stephens v The Queen[45] support the judge's statement that sentences have 'drifted up'.

99 A Sentencing Snapshot published by the Sentencing Advisory Council for the offence of culpable driving causing death indicates that, in the period between 1 July 2011 and 30 June 2016, there was some fluctuation in the mean sentence for that offence. The mean increased from a low of 5 years and 8 months' imprisonment in 2012-2013 to a high of 6 years and 2 months' imprisonment in 2014-2015.[46] Also, the cases that the prosecution referred to the judge indicate that sentences of between 7 and 10 years' imprisonment have been imposed for that offence where the offender has pleaded not guilty. These statistics and cases bear out the judge's conclusion that there is an upward trend in sentences for that offence.[47] Whether the judge was right to attribute part of the reason for this trend to 'increases in sentences for the lesser offence of dangerous driving causing death' is immaterial.

100 As for the appellant's criticisms of the judge's observations on the plea, we accept that the judge made some statements that were broad-brush and overstated the effect of Kilic and Dalgliesh. However, those statements were in the nature of off the cuff remarks, rather than considered statements of principle, and were not repeated in the judge's sentencing remarks.

101 As it is a judge's sentencing remarks which explain the reasons for a sentence, in order to demonstrate that the sentencing discretion miscarried, it is necessary to identify an error in those remarks. Pointing to some infelicitous language during the course of the plea does not prove error. That is not to say that a judge's observations during a plea are irrelevant in a sentencing appeal. Such observations may assist in establishing error if, for example, they clarify the meaning of a statement in a judge's sentencing remarks or indicate that an offender was not afforded procedural fairness. However, that is not the position in the present case. It is clear that, following the plea, the judge reflected on the authorities and the parties' submissions and made considered statements in his sentencing remarks about the relevance of current sentencing practices in the present case.

Ground 6: Judge's statement that 'wider society must be placated' by sentence

102 It will be recalled from the judge's sentencing remarks set out at [37] above, that the judge said that 'the wider society must be placated by the sentence and be satisfied that societal values have been vindicated'.

103 On the plea, the judge referred to the concept of social rehabilitation and read out the following statement of Vincent JA in Director of Public Prosecutions v DJK:

This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts.

The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.[48]

104 The appellant submitted that the judge erred in concluding that placating the wider society was an element of just punishment. He contended that while the statement by Vincent JA in DJK provides some support for the judge's statements that the sentence 'must provide something of a balm for [Mr Kocjancic's family's] loss' and 'the wider society must ... be satisfied that societal values have been vindicated', it provides no support for the judge's finding that 'the wider society must be placated by the sentence'. He argued that nothing in Vincent JA's statement supported the notion that hostility in the community must be lessened by the sentence imposed.

105 The appellant submitted that while community outrage may be taken into account by a sentencing judge, it is imperative to ensure that a 'lynch mentality' plays no role in the sentencing process. In doing so, he relied on the following statement of Perry J in R v Birmingham [No 2]:

The court is entitled to take community outrage into account but in a guarded and circumspect manner. It would not be right to yield to anything which might be described as a 'lynch mentality'. When community outrage is a reaction to what might be horrifying circumstances of a particular crime, it is those horrifying circumstances, being circumstances of aggravation, which attract the appropriately heavier penalty, rather than community outrage.

I should make it clear also that retribution is not part of the law of this State.

Insofar as community outrage may be an expression of concern at a particular class of offence, that may properly be taken into account in the allowance for general deterrence.[49]

106 The Crown submitted that, when the judge's remark that society must be 'placated' is viewed in its proper context, it is clear that the judge took into account the need to have regard to the impact of the crime upon both Mr Kocjancic and his family, and the general community. It contended that, when viewed in this light, the judge's statement was not inconsistent with the remarks of Vincent JA in DJK. It further contended that the judge's statement was consistent with decisions of this Court which indicate that just punishment is important for the preservation of social cohesion and to maintain the community's respect for the criminal justice system.[50]

107 The Crown argued that it was unsurprising that the judge found that just punishment was of significant importance in the present case, as the offending involved the loss of human life.

109 When the judge's remarks are read in context, it is clear that his statement about the wider society being 'placated' was not intended to import notions of a 'lynch mentality' but rather to emphasise that he had regard to community values as a factor informing what constituted just punishment for the appellant in the circumstances of this case. So understood, there was nothing remarkable about the judge's statement.

110 The appellant submitted that the errors he contended that the judge made under the preceding grounds - particularly ground 2 - resulted in the sentence the judge imposed being manifestly excessive. In addition, he argued that the sentence was manifestly excessive independently of the preceding grounds for the following reasons:

(a) Until 2017, the mean sentence for culpable driving causing death was 6 years' imprisonment.

(b) When regard is had to sentences for culpable driving causing death, his sentence is a statistical outlier.

(c) A sentence of 11 years' imprisonment has never been imposed for a single charge of culpable driving causing death.

(d) Other cases involving charges of culpable driving causing death, in which high sentences have been imposed, have included multiple aggravating features. For example, in Director of Public Prosecutions v Smith,[51] the 25-year-old offender drove at 186 kilometres per hour in a 60 kilometre per hour zone with an estimated blood alcohol level of between 0.194 and 0.224 per cent. His passenger died when he veered off the road and hit a tree. The offender, who had no prior criminal history, pleaded guilty to one charge of culpable driving causing death and was sentenced to 8 years' imprisonment with a non-parole period of 5 years.

(e) His offending involved excessive speed only, for a short period in an industrial area and when it was beginning to become light.

(g) He has demonstrated appropriate victim empathy and insight.

(i) He has a good work history and has been a productive member of the community, and at the time of the offending had a four-month-old son, who is now aged about 5 years. Although he has some history of offending, it is not substantial.

(j) Since the offending in November 2014, until he was remanded in custody in February 2018, he had not reoffended.

111 The Crown conceded that if the appellant succeeds in relation to ground 2, then he must succeed in relation to ground 7. However, the Crown submitted that if he does not succeed in relation to ground 2, the sentence imposed, while 'stern', is not manifestly excessive. It accepted that the sentence of 11 years' imprisonment was a 'statistical outlier' but contended that fact did not render the sentence manifestly excessive. It argued that care must be taken when considering sentencing statistics for cases in, or approaching, the 'worst category'.

112 As set out at [81] above, the Crown submitted that, despite the judge stating that the offending was 'approaching a worst-case', he only imposed a sentence representing 55 per cent of the maximum penalty. It contended that, when regard is had to the speed at which the appellant drove his car in an industrial zone, with the attendant high risk of death which was realised and deprived Mr Kocjancic's family of his support, the sentence was within range.

113 In our opinion, the Crown properly conceded that, if ground 2 were upheld, the sentence would be manifestly excessive. As we have upheld ground 2, ground 7 is also made out. In the light that conclusion, it is not necessary for us to address the parties' submissions on ground 7.

114 Our conclusion that ground 2 is made out has the effect of reopening the sentencing discretion. Having regard to our observations under ground 2 about the weight to be given to Mr Kocjancic's failure to wear a seatbelt in the exercise of the sentencing discretion, we will resentence the appellant to 9 years' imprisonment and fix a non-parole period of 6 years.

[1] Crimes Act 1958 s 318(1).

[2] DPP v Guseli [2018] VCC 291 ('Sentencing remarks').

[3] Guseli v The Queen [2018] VSCA 182.

[4] Crimes Act s 318(2)(b).

[5] R v Rudebeck [1999] VSCA 155 [2], [47], [66], [87].

[6] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378, 398; R v Lee [2005] VSC 167; (2005) 12 VR 249, 252 [14].

[12] Sentencing remarks [58], [86].

[17] Errors and emphasis in original. The appellant abandoned ground 3. That ground alleged that the judge denied the appellant procedural fairness.

[18] (2016) 55 VR 350 ('Spanjol').

[19] [2000] VSCA 94; (2000) 1 VR 593 ('Howarth').

[20] [2002] VSCA 52; (2002) 4 VR 457 ('Tran').

[21] Howarth [2000] VSCA 94; (2000) 1 VR 593, 607 [45], 608 [49], [50].

[22] Howarth [2000] VSCA 94; (2000) 1 VR 593, 607 [45].

[23] [2002] VSCA 52; (2002) 4 VR 457, 466 [27], 467 [34], 470 [41], [42].

[24] Spanjol (2016) 55 VR 350, 360 [37].

[25] Spanjol (2016) 55 VR 350, 352-3 [5].

[26] Spanjol (2016) 55 VR 350, 362 [46]-[47].

[27] (2017) 80 MVR 436 ('George').

[28] George (2017) 80 MVR 436, 466-7 [109].

[29] George (2017) 80 MVR 436, 467 [110].

[30] George (2017) 80 MVR 436, 467 [110].

[31] Sentencing remarks [42]-[45] (citations omitted).

[32] Transcript of Proceedings (6 March 2018) 47.

[33] R v Errington [1999] NSWCCA 18; (1999) 29 MVR 344, 348 [28].

[34] Spanjol (2016) 55 VR 350, 352-3 [5]; George (2017) 80 MVR 436, 466-7 [109].

[36] On the plea, the judge described the appellant's speeding vehicle as an 'Exocet missile'. See Transcript of Proceedings (6 March 2018) 17.

[37] On the plea, defence counsel stated that the appellant's conduct was 'probably nothing more than hooning'. See Transcript of Proceedings (6 March 2018) 26.

[38] At trial, in addition to relying of Mr Kocjancic's failure to wear a seatbelt, the appellant argued that Mr Kocjancic had failed to keep a proper lookout.

[39] Barbaro v The Queen [2012] VSCA 288; (2012) 226 A Crim R 354, 365 [39].

[40] The judge cited R v Kilic [2016] HCA 48; (2016) 259 CLR 256 ('Kilic') and DPP v Dalgliesh [2017] HCA 41; (2017) 349 ALR 37 ('Dalgliesh').

[41] The judge cited Stephens v The Queen [2016] VSCA 121; (2016) 50 VR 740.

[42] Harrison v The Queen [2015] VSCA 349; (2015) 49 VR 619.

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

[45] [2016] VSCA 121; (2016) 50 VR 740.

[46] Sentencing Advisory Council, Sentencing Snapshot No 200: Culpable driving causing death (April 2017) 3.

[47] We note that, on the plea, defence counsel stated: 'It's clear that we have seen over the years a gradual increase in culpable driving sentences'. See Transcript of Proceedings (6 March 2018) 61.

[48] [2003] VSCA 109 [18] ('DJK'). See Transcript of Proceedings (6 March 2018) 51-2.

[49] (1997) 69 SASR 502, 507 (emphasis in original). See also R v FD [2006] NSWCCA 31; (2006) 160 A Crim R 392, 414 [98].

[50] The Crown referred to Attorney-General v Woolnough (Unreported, Victorian Court of Criminal Appeal, 4 June 1981) 14; R v Dole [1975] VicRp 75; [1975] VR 754, 774; R v Robinson [1975] VicRp 81; [1975] VR 816, 829; WCB v The Queen (2010) 29 VR 483, 493 [34].

[51] Unreported, County Court of Victoria, 12 February 2018.