Harrison & Rigogiannis v The Queen [2015] VSCA 349

CRIMINAL LAW - Appeal - Sentence - Negligently causing serious injury - Driving motor vehicle - Sentence 4y - Whether manifestly excessive - High degree of negligence - Excessive speed - High blood alcohol level - Very serious injuries - Offending in upper range of seriousness - Appeal dismissed.

CRIMINAL LAW - Sentence - Current sentencing practice - Negligently causing serious injury - Driving motor vehicle - Maximum penalty increased from 5y to 10y - Whether sentencing practice reflects increased maximum - Whether sentencing for upper range offences adequate - Need for sentencing practice to change - Crimes Act 1958 s 24, Sentencing Act 1991, ss 5(2)(a), 5(2)(b).

Ms V Anscombe, Acting Solicitor for Public Prosecutions

For the Law Institute of Victoria, as amicus curiae

1 Negligently causing serious injury ('NCSI') is a generic offence, capable of applying to any conduct which causes serious injury. It is, however, a charge most often laid when the serious injury results from the driving of a motor vehicle.[1] (We will refer to this category of the offence as 'NCSI by driving'.)

2 In the hierarchy of driving offences, NCSI by driving sits above dangerous driving causing serious injury and below dangerous driving causing death.[2] The maximum penalty for NCSI is 10 years' imprisonment. It was increased from five years' imprisonment in 2008.

3 Phoenix Harrison ('H') and John Rigogiannis ('R') each appeal to this Court against the sentences imposed upon them for NCSI by driving. In each case the conduct falls within the upper range of seriousness for this category of offending, although short of the worst imaginable case.

4 Each appellant drove with a very high degree of negligence, with a blood alcohol reading greatly in excess of the legal limit and at a speed that far exceeded the applicable limit. His conduct involved a grave departure from the standard of care required of a driver. The victims in each case suffered extensive and profoundly serious injuries.

5 Each appellant contended that the sentence imposed on him was manifestly excessive, that is, it was outside the range reasonably open to the sentencing judge having regard to current sentencing practice ('CSP') for this category of offending. Shortly after the completion of argument on the appeals, we announced that the appeals must be dismissed and that our reasons would be published subsequently. These are those reasons.

6 On the applications for leave to appeal, senior counsel for the Director of Public Prosecutions accepted that leave should be granted in order to permit argument as to whether comparable cases should have constrained the sentencing judge to impose lower sentences. Counsel for the Director also submitted that these appeals would provide the Court with an opportunity to address the question raised in Gorladenchearau v R,[3] as to whether CSP for NCSI by driving should be uplifted.

7 Since the objective gravity of the offending in each appeal was comparable, the issues raised in the appeals overlapped and the Director wished to challenge the adequacy of CSP for this category of NCSI, Redlich JA directed that the two appeals be heard at the same time.[4]

8 H pleaded guilty in the County Court to one charge of NCSI. He was sentenced to three years and six months' imprisonment with a non-parole period of two years. H was granted leave to appeal on the grounds that he was denied procedural fairness and that his sentence was manifestly excessive.[5]

9 R pleaded guilty in the County Court to one charge of NCSI, one charge of assaulting police and one charge of unlicensed driving. He was sentenced to four years' imprisonment for the offence of NCSI, a $350 fine for the offence of assaulting police and a $1,000 fine for the offence of unlicensed driving. R was granted leave to appeal on the sole ground that the sentence imposed was manifestly excessive.[6]

10 Having pleaded guilty, each appellant was entitled to be sentenced consistently with CSP.[7] The appeals were determined on that basis. These reasons will show that the sentences were within range under CSP.

11 As foreshadowed on the leave applications, the Director invited the Court to review CSP for those cases of NCSI by driving which fall within the upper range of seriousness, and to state that CSP for that category of the offence should be uplifted. On the invitation of the Court, the Law Institute of Victoria ('LIV') appeared as amicus curiae. For its part, LIV submitted that, although the increased maximum penalty had not resulted in an increase in sentences, it was not appropriate for this Court to make any general statement about the adequacy of CSP.

12 We have reviewed sentencing practices for NCSI by driving, both before and after the increase in the maximum penalty for NCSI to 10 years.[8] 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.

13 We shall first address the individual appeals, before turning to the more general question of CSP for NCSI by driving.

14 At the time of the offending, H was 23 years old. The charges against him arose from a car accident that occurred in the early morning hours of 26 November 2012. On the previous afternoon, H had attended a barbecue at which he had consumed alcohol. H was driven to the barbecue by his sister, in his father's vehicle. At the barbecue he argued with his sister, who left the barbecue and left the keys to the vehicle with H.

15 Later that afternoon, H wanted to go to a bar in North Melbourne. Although he had telephoned a friend to request that he be driven, as it transpired H drove to the bar in his father's vehicle. At the bar H consumed further alcohol. At about 12.45 am, H and the victim ('Z') left the bar. H then drove the vehicle east along Victoria Street in North Melbourne and across the northern part of the city. Z was seated in the front passenger seat of the vehicle.

16 H was observed to travel along Victoria Street in an easterly direction at a high speed. He crossed the intersection with Peel Street, travelling through a red light, and almost collided with a car travelling through that intersection with a green light. He then continued to travel east at speeds that witnesses estimated to be well in excess of 100 kilometres per hour ('kph'). The speed limit on Victoria Street was 60 kph.

17 As H approached the intersection of Victoria Street and Rathdowne Street, he faced a red light. He did not stop but travelled through the intersection, against the red light, at a speed of approximately 127 kph. As a result, his vehicle collided with another vehicle which was travelling through the intersection in accordance with the green light. The other vehicle struck H's vehicle on the rear driver's side door. H's vehicle spun out of control for 115 metres along Victoria Street before colliding with a tree in the median strip. H suffered no injuries in the accident. The occupants of the other vehicle suffered no injuries, but H's passenger Z was very seriously injured.

18 About an hour after the collision, a sample of blood was taken from H and analysed. He had a blood alcohol concentration of 0.184 per cent - more than three and a half times the legal limit.

19 The victim suffered very serious injuries. The injuries included a compound fracture and dislocation of the right ankle, fractured left humerus and rotator cuff, displaced fractures of several ribs, a collapsed lung, and deep lacerations to the face, head and leg. His right knee was split open and he suffered widespread bruising. At the time of surgery, consideration was given to amputation of the right leg below the knee. No amputation was performed at that time and the leg has survived. However, at the time of sentence, amputation remained a possibility.

20 The victim was an inpatient at the Royal Melbourne Hospital for six weeks and then spent several months in rehabilitation at the Epworth Hospital. During that time, he contracted an infection of the fracture site and spent weeks on intravenous antibiotics. He had months of pain medication. He has been left with little movement in the right ankle and the range of movement in his left shoulder has been permanently restricted.

21 The injury and repair attempts to the leg caused significant scarring. The sentencing judge said that he had not seen worse scarring in his career.[9] The victim continues to suffer significant pain and has not been able to return to work, although he is currently undertaking study at university. He has also been diagnosed with a post-traumatic stress disorder and adjustment disorder, anxiety and depression.

22 At the time of the offending, H's licence to drive had been suspended. H was aware that his licence to drive had been suspended. H had prior convictions for driving offences, about which we will say more later.

23 The sentencing judge found that H's degree of negligence was 'very high indeed'.[10] The judge described his speed (127 kph in a 60 kph zone), as 'just outrageous'.[11] His Honour noted that H's blood alcohol concentration was 0.184 per cent, he had run two red lights before the collision, his licence was suspended at the time of the offending and he had 'prior convictions for driving at high speeds'.[12] The judge also took into account the victim's injuries, which he described as 'very serious indeed'.[13]

24 In mitigation, the judge took into account H's relative youth, his early plea of guilty, his genuine remorse, his 'relatively good' prospects of rehabilitation and the impact of a custodial sentence on his career.[14]

25 H's first ground relates to the sentencing judge's treatment of his prior convictions, that being one of the matters that the judge said that he took into account.[15] The judge described the prior convictions as follows:

As far as prior convictions are concerned, on 2 March 2012 about four months prior to this offence, you were detected speeding on the East Link Freeway. The detection was by means of one or more speed cameras. At 3.44 am, you were detected travelling at a speed of 144 km/h in a 80 km/h zone at Donvale. 3.45 am, your speed was detected at 148 km/h in a 100 km/h zone. At 4 am, you were detected travelling at 151 km/h in 100 km/h zone. It was submitted, on your behalf, that these offences reflected you driving at a high speed but only over a period of some 16 minutes. It was submitted that you were running late to do some duties at the circus and you were due there 5 am that morning and you were new to the East Link Freeway. You were said to be in a rush to get to the circus, got lost and then drove at a high speed in an attempt to arrive on time. None of those excuses cut anything with me.

Since the accident in Victoria Street, you have twice been detected whilst your driver's licence was suspended. In May 2013 and again in June 2013, as a consequence, your driver's licence was suspended for a further six months. These offences, that is the speeding of March 2012 and the driving without a licence in May and June of 2013, point clearly to you having little respect for the law and, in particular, the law as it relates to driving of motor vehicles.

Even after the horrific accident of November 2012 which brings you into this courtroom, it seems that you were still prepared to flout the law in a matter that indicated that you had little respect for it.[16]

26 The judge's summary of the offences committed on 2 March 2012 was accurate. But it was not correct to state that the offences of driving while suspended had occurred 'since the accident in Victoria Street'. At a hearing at the Kyneton Magistrates' Court on 4 June 2012, H's licence was suspended for 12 months. H did not appear at that hearing, and it seems that he was not immediately aware that his licence had been suspended. However, H was subsequently intercepted driving while his licence was suspended on two occasions, on 28 September 2012 and 4 November 2012.

27 It was conceded on the plea that H must have known, at least after being intercepted on 28 September 2012, that his licence had been suspended. H later pleaded guilty to the two offences of driving while suspended, at hearings on 30 May 2013 and 18 June 2013 respectively. At those hearings his licence was further suspended. The Victoria Street accident the subject of these proceedings occurred on 26 November 2012, that is, prior to the hearings at which H pleaded guilty to the offences of driving while suspended but after the conduct which was the subject of those offences.

28 The judge was properly informed of H's prior criminal history during the plea. He was also told by defence counsel that H had not driven since the Victoria Street accident. The sentencing judge nonetheless fell into error in his sentencing remarks, as H was detected driving while suspended before the Victoria Street accident, not after it.

29 At the conclusion of the sentencing remarks but prior to the imposition of sentence, the following exchange ensued:

[HIS HONOUR:] Stand up please Mr Harrison.

[DEFENCE COUNSEL]: Your Honour, I hesitate to interrupt while Your Honour is passing sentence but there was just one factual matter that I wished to raise.

HIS HONOUR: Yes.

[DEFENCE COUNSEL]: That was in relation to the drive whilst suspended.

HIS HONOUR: Yes.

[DEFENCE COUNSEL]: Your Honour was correct that the convictions were subsequent but the offences both occurred prior to the offence to which you are sentencing today.

[DEFENCE COUNSEL]: Thank you [counsel] for pointing that out to me. I will take note of that but it will not change the end sentence.[17]

30 This ground originally alleged specific error, namely, that the sentencing judge erred by relying upon mistaken facts. At the hearing of the application for leave, counsel for H recognised that, as the judge's attention had been drawn to the error prior to pronouncing sentence, it could not be said that he relied upon mistaken facts when the sentence was imposed. Leave was given to amend the ground to allege that the judge denied the appellant procedural fairness, by failing to provide him with sufficient opportunity to ensure that appropriate weight was given to the fact that all of the speeding offences occurred prior to the incident the subject of these proceedings.

31 H said, first, that the error in the remarks was material and potentially infected the entire sentencing process. The sentencing judge made adverse findings against H on the basis of his prior convictions. The judge having been accurately informed on the plea, it is unclear when the judge's mistaken view of the facts arose. H said that the effect of the error was to create a real doubt about the accuracy of the facts upon which the judge considered his case and to create the impression that the judge failed to properly consider H's plea in mitigation.

32 H then argued that the judge's 'somewhat perfunctory response' to defence counsel's correction (at the conclusion of the sentencing reasons but before the actual sentences were announced) was not capable of ameliorating the error. H contended that, when the error was identified by defence counsel, the judge was obliged either to invite counsel to make further submissions and stand the matter down, or to adjourn the matter for the purpose of reconsidering the reasons and the appropriate sentence. H said that the error could plausibly have affected the sentence imposed and that the judge should have given H the opportunity to make submissions as to the effect of the error. The denial of the opportunity to be so heard was said to constitute a denial of procedural fairness.

33 The Crown submitted that, to succeed on this ground, H must establish both that there was a denial of procedural fairness and that injustice followed.[18] In relation to procedural unfairness, the Crown said that the judge's response to the identification of the error demonstrates that the timing of the offences had little or no significance in the mix of factors giving rise to the intuitive synthesis. Given the insignificance of the error, and the fact that submissions on the plea had been made on the basis of the correct facts, the Crown argued that there was no need for further submissions to be made. The Crown then contended that, even if there was a denial of procedural fairness, in light of the other powerful sentencing considerations and the apparent lack of weight attached to the error by the sentencing judge, the error was not material. That is, it was not reasonable to suppose that, absent the factual error, a lesser sentence might have been imposed.[19]

34 The judge's summary of H's prior convictions was clearly erroneous. As already noted, the judge found that H had twice been detected driving while his licence was suspended '[s]ince the accident in Victoria Street'. The judge found that H's convictions, including the March 2012 speeding offences, 'point clearly to [H] having little respect for the law and, in particular, the law as it relates to driving of motor vehicles'. The judge then concluded that:

Even after the horrific accident of November 2012 which brings you into this courtroom, it seems that you were still prepared to flout the law in a matter that indicated that you had little respect for it.[20]

35 H could have had no complaint about the finding that he had little respect for the law as it relates to the driving of motor vehicles. That finding was founded on the March 2012 speeding offences as well as the two instances of driving while suspended. But the final statement made by the judge was clearly based solely on the erroneous finding that H had committed the offences after the incident the subject of the proceedings.

36 Ultimately, however, we were persuaded by the Crown's argument that there was no denial of procedural fairness. The judge had been correctly informed of the circumstances of the prior offending on the plea. At that time, he had indicated that he was prepared to make an adverse finding against H on the basis of those facts. As we have said, on the correct facts such a finding was plainly open to the judge.

37 The appellant submitted that this erroneous finding - that H continued to offend after the Victoria Street incident and was thus prepared to flout the law even after that incident occurred - had such materiality as to require the judge, once the facts were corrected, to seek further submissions about the effect of the error. We rejected that contention. We did not consider that procedural fairness required that course. Nor - it must be pointed out - did defence counsel on the plea. He raised no objection to the manner in which the judge dealt with the error.

38 The additional finding had the effect of reinforcing the judge's finding that H had little respect for the law. But it did no more than that. It was well open to the judge to come to the finding that H had little respect for the law. Indeed, on the true facts, the Victoria Street accident was the third time in three months that H had been caught speeding and driving without a licence. On the judge's erroneous summary, the Victoria Street incident was H's first offence of driving while suspended. Had the judge focused on the fact that the Victoria Street accident was the latest in a series of offences, the conclusion that H was prepared to flout the law was a proper one to draw, even without evidence of further offending after the Victoria Street incident.

39 The judge's response, once the error was pointed out, confirmed that the additional finding made little difference to his conclusion. Indeed, notwithstanding the adverse findings as to H's respect for the law, the judge made the generous finding that H had 'relatively good' prospects for rehabilitation.[21] No cogent reason was advanced for doubting his Honour's statement that the factual error did not affect the sentence he was about to impose.

40 There were many other powerful sentencing considerations, including the degree of negligence and the seriousness of the injuries suffered by the victim, that bore upon the sentence to be imposed. We were satisfied that, even if H had been afforded a further opportunity to make submissions, no different outcome would have resulted.[22]

41 Finally, even if error had been shown, we would have dismissed this ground. For the reasons given in respect of ground 2, we did not consider that a different and lesser sentence should be imposed.[23]

42 The offence of negligently causing serious injury requires an act or omission which involves

such a great falling short of the standard of care which a reasonable person would have exercised and such a high degree of risk that serious injury would follow that the conduct merits punishment under the criminal law.[24]

43 Under this ground, H submits that both the head sentence (three years and six months' imprisonment) and non-parole period (two years) were manifestly excessive. On the application for leave H acknowledged that his negligence was 'of the highest order'. In arguing that the sentence imposed was outside the range for this category of the offence, H relied primarily on sentences imposed in what were said to be comparable cases.

44 The objective gravity of a particular instance of NCSI by driving is to be assessed by reference to the degree of negligence involved and the seriousness of the injury caused.[25] H conceded in oral argument that the negligence here was near 'the top of the scale', given that

• he was driving while heavily intoxicated, knowing that his licence was suspended;
• he had previously been apprehended when driving while his licence was suspended;
• his speed was in excess of twice the speed limit for a built-up area; and
• he drove through two sets of red lights.

45 As H was unable to recall the events, nothing was said on the plea as to whether he had driven through the red lights intentionally or through inadvertence. On any view, most, if not all, of his conduct was intentional. Defence counsel conceded on the plea that the injuries caused were 'of a very significant order' and 'clearly at the higher end of the scale'. The victim suffered gross disfigurement to his legs and was unable to return to work. The sentencing judge found that the injuries were 'horrific' and 'very serious indeed'.[26]

46 Sentencing judges are required by s 5(2)(b) of the Sentencing Act 1991 to have regard to current sentencing practices. In his reasons for granting leave, Redlich JA reaffirmed the importance of current sentencing practice in the identification of the sentencing range applicable to the case at hand. He stated:

[C]omparable cases concerned with the relevant category of seriousness of the offence will generally inform the range of sentences that are reasonably open to the sentencing judge.

Consistency in sentencing is fundamental to the administration of criminal justice and requires adherence to current sentencing practice unless specific circumstances exist which warrant departure from that practice. The law requires that a discretionary decision be made in conformity with well settled principles as must appellate review of such decisions. By this judicial method the law promotes consistency in decision making and diminishes the risk of arbitrary or capricious adjudication.[27]

47 Comparable cases provide a relevant 'yardstick' by which a sentencing court may ensure consistency in sentencing and in the application of the relevant legal principles.[28] Comparable cases, as an indicator of current sentencing, 'provide an important, though limited, guide to the range of sentences reasonably open to the sentencing judge'.[29]

48 The use of CSP in informing the instinctive synthesis, particularly in cases falling within the worst category, was discussed in the recent decision of this Court in Kilic v The Queen,[30] in which it was said:

...While sentences imposed in other cases are not precedents, nor should they be considered to restrict the sentencing judge's instinctive synthesis, they do play a role in informing the instinctive synthesis, 'particularly insofar [as] such an overview may provide a general guide to current sentencing practices'. Current sentencing practice, including an examination of comparable cases, can provide a relevant 'yardstick' by which a sentencing court may ensure consistency in sentencing and in the application of the relevant legal principles. It does not offend the principle of intuitive synthesis, nor is it unhelpful to a sentencing judge to be aware of the patterns of sentencing. That is not to say the range of sentences imposed in the past necessarily fixes the boundaries within which future sentences must be passed, but an examination of the circumstances of other worst category offending for intentionally causing serious injury and in particular, such offending by the use of fire, informs a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle.

Notwithstanding the unequivocal seriousness of the present offending, which justifies its categorisation as a worst case offence, it must be recognised that the objective gravity of cases falling within this category will vary as will the characteristics of the offenders.[31]

49 It is well settled that, where the sentence under appeal has been imposed after a plea of guilty, this Court is not at liberty to disregard current sentencing practice, for the reason that the appellant's plea of guilty was entered on the reasonable assumption that he/she would be sentenced according to current practice.[32] Plainly enough, it would be unfair to assess the adequacy of an offender's sentence - or to resentence him or her - on a basis which could not reasonably have been anticipated at the time of the decision to plead guilty.[33]

50 H submitted that the sentence imposed upon him was outside the range reasonably open in the circumstances of the case. His principal argument was that he had received a sentence more appropriate to a case where the injuries to the victim were materially worse. He referred, in particular, to Mok v The Queen,[34] Shields v The Queen,[35] Gorladenchearau,[36] and Pollard v The Queen.[37] Each of these cases was determined by the Court of Appeal under the current maximum penalty of 10 years' imprisonment. We observe in passing that, in those cases where the offender faced a more serious offence of culpable driving causing death, the principle of totality may have operated to influence the sentence for NCSI .

51 In Mok,[38] the offender pleaded guilty to one charge of culpable driving causing death ('CDCD') and one charge of NCSI. The offender crashed a vehicle in the early hours of the morning, killing one of his passengers and seriously injuring another. He was driving at a speed of approximately 125 kph in a zone with a 60 kph speed limit, had a blood alcohol concentration of between 0.18 per cent and 0.195 per cent, had prior convictions for drink driving and for speeding, and at the time of the offending was prohibited from driving with any alcohol in his system.

52 The injured victim suffered a severe closed head injury and other physical injuries, and at the time of sentence had recovered well but remained in rehabilitation. The offender was aged 36 at the time of sentencing, expressed sincere remorse, had received the forgiveness of the victims' families, had himself suffered significant injuries in the incident, and had good prospects for rehabilitation. He was sentenced to seven years' imprisonment for CDCD and four years' imprisonment for NCSI. The Court of Appeal allowed Mok's appeal against the sentence and re-sentenced him to six years and six months' imprisonment for CDCD and three years and six months' imprisonment for NCSI. Orders for cumulation produced a total effective sentence of seven years and three months' imprisonment, and a non-parole period of four years and four months was fixed.

53 In Shields,[39] the offender pleaded guilty to one charge of CDCD, one charge of NCSI and one summary offence of having a blood alcohol concentration in excess of the prescribed limit. While driving, the offender collided with two cyclists, one of whom was killed and the other seriously injured. The offender was driving at 77 kph in a zone with a speed limit of 60 kph, was affected by both alcohol (with a blood alcohol concentration of 0.221 per cent) and illegal drugs (LSD), and had prior convictions for driving offences including drink driving and speeding. The injured victim suffered very severe traumatic brain damage, with the likelihood of permanent physical and cognitive deficits, as well as serious physical injuries requiring specialist treatment.

54 The offender was aged 31 at the time of the offences, had made an early plea of guilty and demonstrated genuine remorse. The sentence was 10 years' imprisonment for CDCD and five years' imprisonment for NCSI. Making reference to comparable cases,[40] the Court of Appeal allowed Shields' appeal against sentence and re-sentenced him to eight years' imprisonment for CDCD and four years' imprisonment for NCSI. Orders for cumulation produced a total effective sentence of 10 years' imprisonment, and a non-parole period of seven years was fixed.

55 In Gorladenchearau,[41] the offender pleaded guilty to two charges of NCSI and two charges of recklessly engaging in conduct which placed another person in danger of serious injury. While driving in the early hours of the morning, the offender collided with another vehicle. The offender was driving at a speed of 88 kph in an 80 kph zone, was not licensed to drive in Victoria, and had a blood alcohol concentration of 0.13 per cent. The collision occurred at least 13.1 seconds after the traffic light applicable to the offender had turned red. There were three victims. The primary victim suffered permanent and extremely severe brain damage, leaving her reliant upon care and confining her to the home. On the appeal, Maxwell P noted the combination of 'very high culpability and extreme harm', describing the case as a very bad instance of the offence and 'perhaps amongst the worst'.[42]

56 The offender had no prior convictions and good prospects for rehabilitation, showed genuine remorse and was aged 25 at the time of the offending. The sentencing judge imposed a sentence of five years' imprisonment on the first charge of NCSI, three years' imprisonment on the second charge of NCSI, and one year's imprisonment on each of the two charges of reckless endangerment. The Court of Appeal allowed the appeal against sentence.[43] In the Court's view, there was an unjustified disparity between the sentence imposed and sentences in directly comparable cases. The Court reduced the sentence on the first charge of NCSI to four years' imprisonment and imposed the same sentences on the other counts. Orders for cumulation produced a total effective sentence of five years' imprisonment. A non-parole period of three years was fixed.

57 In Pollard,[44] which H suggests is the most closely comparable to his case, the offender pleaded guilty to one charge of NCSI and one charge of failing to stop and render assistance. The offender's vehicle collided with a well-lit truck parked in the emergency lane. The offender was driving at a 'considerable speed', with a blood alcohol concentration of 0.181 per cent. The victim, who had been outside but adjacent to the truck, suffered serious injuries to his legs which resulted in his hospitalisation for four weeks. He underwent multiple operations and, at the time of sentence, there was the prospect of possible future surgery. He was likely to be left permanently affected.

58 The offender was aged 35 at the time of sentence, had a 'tragic' family background,[45] had no prior convictions, had habitual recourse to alcohol to ease stress and was a single mother with no one else in a position to care for her child. The Court described the offending as a 'serious example' of NCSI by driving, with 'a high degree of negligence' causing 'obviously serious' injuries to the victim.[46] The offender was sentenced to three years' imprisonment for NCSI and 12 months' imprisonment for failing to stop and render assistance. Orders for cumulation resulted in a total effective sentence of three years and six months' imprisonment. In view of the exceptional third party hardship in respect of the offender's son, a non-parole period of 12 months was fixed. The Court of Appeal dismissed the appeal against sentence.

59 The sentencing judge in the present case referred to Brayshaw v The Queen,[47] where the offender pleaded guilty to one charge of CDCD and one charge of NCSI. In the early hours of the morning, the offender lost control of his vehicle and collided with two trees. There were two passengers, one of whom was killed and the other 'severely injured'.[48] The offender was driving at 122 kph in a 70 kph zone. He was under the influence of methylamphetamine, though at the time when he consumed the drug he had had no intention of driving. He had prior convictions for drink driving and other traffic offences.

60 The offender was 34 years old at the time of the offending, pleaded guilty, demonstrated significant remorse and had a good work history. He had a history of drug use as well as depression and anxiety. He was sentenced to eight years' imprisonment for CDCD and two years' imprisonment for NCSI. Orders for cumulation resulted in a total effective sentence of nine years' imprisonment and a non-parole period of six years and six months was fixed. The Court of Appeal dismissed the appeal against sentence. The individual sentence imposed on the charge of NCSI in that case was clearly crafted to give effect to the sentencing judge's assessment of the offender's total criminality. For that reason, we did not consider it to be a useful comparator for the purposes of the present appeal.

61 Finally, reference should be made to this Court's decision in Miller v The Queen,[49] where a sentence of five years and nine months' imprisonment for NCSI by driving was said to be beyond the range of sentences reasonably open. The sentence was reduced to four years' imprisonment. In that case, neither alcohol or excessive speed was involved.

62 H argued that each of Mok, Shields and Gorladenchearau was a more serious example of the offence than his, and that the sentence imposed on him was thus outside the range available. H contended that a sentence similar to that in Pollard was appropriate.

63 As Redlich JA said in Ashdown,[50] cases of a similar category of objective seriousness may provide guidance to a sentencing court as to the appropriate sentencing range.[51] In Gorladenchearau, Maxwell P observed that cases of NCSI by driving had a 'shocking similarity', with 'critical features' recurring: 'speed, inattention, intoxication (alcohol or drugs) and (often) prior convictions for driving offences'.[52] Therefore, he concluded, cases of driving-related NCSI form a class of cases 'where sentencing comparisons are more readily drawn than in relation to other offences' and that, as a result, 'sentencing disparities are more starkly exposed'.[53]

64 As Nettle JA (with whom Ashley and Redlich JJA agreed) pointed out in Director of Public Prosecutions v OJA,[54] current sentencing practice is not to be regarded as fixed and immutable. Whilst similarity between two cases may imply a need for the sentences to be comparable, the measure of manifest excessiveness is not capped by the highest and lowest sentences for similar offences hitherto imposed.[55] The statutory requirement to have regard to current sentencing practice does not foreclose the possibility of an increase, or a decrease, in the level of sentences for particular kinds of offences.[56]

65 In Hudson,[57] the Court dealt with a 'worst category' case:

Once there are features of the offending which require it to be characterised as falling within the worst category, the sentence will not become unreasonable or unjust because a lesser sentence has been passed in a like case or the same sentence has been passed for a case said to have worse features. The 'worst' category is to be understood as the joint judgment in Veen v The Queen [No 2_]_ described it:

... the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category.[58]

66 In three of the four cases relied on by the appellant, the sentence for NCSI by driving was four years' imprisonment. His submissions appeared to assume that the sentencing judge in his case was not entitled to fix a sentence for this offence which went above four years. That assumption is unsound. Sentences for cases of NCSI by driving falling within the upper range of seriousness are not limited by some perceived 'ceiling'.

67 In our view, the comparable cases set out above did not indicate that the sentence here imposed was outside the range reasonably available to the sentencing judge. In particular, we did not consider that the degree of negligence in Pollard,[59] upon which the appellant placed particular reliance, was of comparable objective gravity to the present case. H's negligence, as he conceded in oral submissions, was extreme. Rather than assist H, the cases referred to demonstrated that offences of NCSI by driving, where the degree of negligence falls within the upper range of seriousness, attract sentences of around four years' imprisonment. H's offending fell within that category.

68 It was also open to the sentencing judge to conclude that the injuries here suffered were 'very serious'. We would wish, in passing, to advise against the common practice of drawing detailed distinctions between the precise injuries suffered in different cases. Sentencing judges are often asked to compare injuries which are plainly extremely serious and enduring with other very serious and enduring injuries, and place them in some hierarchy of severity.

69 At least where the negligence of the driving is at the upper end, it is not appropriate to attempt to distinguish between serious injuries in this way. Such distinctions will not alter the fact that the offence remains one in the upper range of seriousness. Here the injuries were less serious than the worst injuries imaginable but they were nonetheless very serious. The case fell within the uppermost range of seriousness for this offence. It may justifiably be described as a 'worst category' offence.

70 As 'particulars' of manifest excess,[60] H argued that the sentencing judge gave insufficient weight to his personal circumstances, including his youth (aged 23 at the time of the offending), his guilty plea at the earliest opportunity, his good prospects for rehabilitation, his otherwise good character and genuine remorse, and the fact that he had not planned to drive the vehicle. As is clear from the cases referred to above, however, H's personal circumstances are not remarkable for offences of this kind, which frequently involve offenders of similar age and character to H.

71 The sentence imposed could not be said to be manifestly excessive. It was consistent with CSP and fell well within a sound exercise of the sentencing discretion. In our view, the objective gravity of this offence was such that, if the sentencing judge had not been constrained by CSP, the sentence imposed would have been quite inadequate.

72 At the time of his offending, R was 24 years old. At approximately 4.25 pm on 14 December 2013, he drove his van around a blind bend on the wrong side of the road at about 78 kph. The speed limit was 50 kph. R had a friend as a passenger, who had warned him 'not to drive like a fuckwit'.[61] He had been drinking alcohol prior to driving and had been told by friends that he was not fit to drive. Whilst travelling on the wrong side of the road, R collided head on with a vehicle travelling in the opposite direction driven by the victim, B. B's daughter, aged nine, was a rear seat passenger in the vehicle.

73 R rendered first aid to B at the scene and expressed distress and agitation regarding her condition. R, who had suffered minor injuries, was taken to Maroondah Hospital, where he continued to express concern about the victim's condition. At one stage, R grabbed a policeman on the shoulder, which was the basis of the assaulting police charge. R made substantial admissions to the police when interviewed the next morning.

74 A preliminary breath test conducted at 6.45pm on the day of the offending indicated that R had a blood alcohol concentration of 0.211 per cent. At the time of the offending, R was not licensed to drive, having never obtained a licence in Victoria or elsewhere in Australia.

75 The victim sustained extensive injuries, including brain damage, bleeding to the heart, fractures to the skull, severe chest injuries and multiple fractures to the thigh, heel, knee, ankle, forearm and wrist. She was placed in an induced coma for two weeks, before spending another two weeks in hospital. She underwent multiple operations in that time, before spending three months in a rehabilitative facility effectively learning how to walk, eat and go to the toilet. She requires ongoing therapy, has been unable to return to work, experiences significant pain and has suffered extensive scarring, although the sentencing judge found that her long term prognosis was good. The victim's daughter also suffered minor injuries.

76 R had a relevant criminal record.[62] On 7 July 2008, he was convicted and fined for unlicensed driving. The sentencing judge also regarded as relevant his other prior convictions. On 17 June 2010, R was convicted and fined for criminal damage. On 27 July 2013, R was convicted and fined for drunk and disorderly conduct, resisting police, assaulting police and criminal damage. On 24 October 2013, R was convicted and fined for failing to answer bail, being drunk in a public place, resisting police and behaving in a riotous manner.

77 The sentencing judge described R's offending as 'an extremely high level example' of NCSI and the injuries to the victim as 'extremely serious'.[63] The judge concluded that R's culpability was high, referring to the speed, alcohol and erratic driving as features of the offending.[64] Though the judge found that R 'had no prior history for this type of offending, save for the unlicensed driving',[65] he found that the prior convictions demonstrated that R had 'an ongoing issue with both alcohol and aggression when [he was] affected by alcohol'.[66]

78 In mitigation, the judge found that R was 'genuinely remorseful' and had exhibited concern for the welfare of the victim and her family.[67] R had participated in a television program about the victim's injuries, writing a 'genuine apology' and warning people about the dangers of drink driving. R gave evidence at his plea, testifying that he would change places with the victim if he could, which the judge accepted. The judge took into account that R was supported by his family and many people in the community and had been supported and apparently forgiven by the victim's family. The judge noted R's pleas of guilty, which were entered at the earliest opportunity, and his work history. He found that R had 'good prospects of rehabilitation'.[68]

79 In imposing sentence, the judge noted the importance of general deterrence and denunciation,[69] though he found that specific deterrence did not 'feature' in R's case.[70] The judge said that, but for R's demonstrated remorse and personal circumstances, he would have imposed a substantially higher sentence.[71]

80 In his sole ground of appeal, R submitted that his head sentence (four years' imprisonment) and non-parole period (two years and nine months) were manifestly excessive. R's submission, like that of H, was made by reference to current sentencing practice.

81 The sentence imposed on R was, in his submission, alongside the highest sentences imposed in respect of this offence. Like H, R argued that, while his offending was 'objectively very serious', the injuries sustained by the victim were not in the worst category. R submitted that insufficient weight was given to his substantial mitigating factors, in particular his remorse and the lengths to which he had gone to demonstrate that remorse. R further submitted that the sentencing judge's conclusion - that there was no requirement to specifically deter him - should have resulted in a shorter non-parole period.

82 This was, as the sentencing judge found, a very serious example of the offence of NCSI by driving. The driving involved conduct which was generally intentional rather than inadvertent, and which represented a great departure from the standard of care of a reasonable person. In short, the degree of negligence fell within the upper range for this offence. R's blood alcohol concentration was extremely high (0.211 per cent), his passenger had warned him against driving in a reckless fashion, he was driving on the wrong side of the road around a blind corner, and was 28 kilometres per hour over the speed limit. Furthermore he was not, and never had been, licensed to drive. The injuries caused to the victim, though not the worst imaginable, were very serious and required prolonged and intensive treatment.

83 As is apparent from the sentencing remarks and the sentence imposed, the judge regarded the offence as one which fell within the uppermost category of this offence. The cases analysed above show that serious examples of the offence of NCSI involving driving will attract sentences similar to that imposed on R.

84 In Mok, the negligence was of a similar level to R's. His degree of negligence appears, if anything, worse than that disclosed in Shields and certainly more serious than that in Gorladenchearau. In each of those cases, the offender was sentenced to four years' imprisonment. We refer to our earlier caution against detailed comparison of injuries in cases where the degree of negligence is of the most serious kind and the injuries are of a very serious and enduring nature.

85 The mitigating factors on which R could call, though strong, were not remarkable for offences of this kind. We did not understand the sentencing judge's statement that specific deterrence did not 'feature' in R's case as meaning that it had no weight at all in the sentencing process.

86 It could not be doubted that this was a very serious example of the offence. R did not establish that the head sentence or non-parole period imposed were beyond a sound exercise of the sentencing discretion. We were unpersuaded that the sentence imposed on R was manifestly excessive. As with H, the objective gravity of the offending was such that, if the sentencing judge had not been constrained by current sentencing practice, the sentence would have been inadequate.

87 We turn to the question of the adequacy of current sentencing for offences of NCSI by driving at the upper end of seriousness.

C. THE ADEQUACY OF CURRENT SENTENCING FOR NCSI BY DRIVING

88 The features of NCSI by driving which the present cases exemplify - extreme negligence, a very high risk of collision and the consequent risk of very serious injury - are all too common. Often, however, sentences have not been higher, and many have been lower, than those imposed upon the appellants. That circumstance, together with the increase in the maximum penalty for the offence, raises the question whether the sentences imposed for the most serious instances of NCSI by driving are disproportionately low, and fail to give effect to the legislative intent as reflected in the maximum penalty. Should judges sentencing offenders for this category of NCSI by driving be constrained by current sentencing practice?

89 In an appropriate case, an intermediate appellate court may express an opinion about the adequacy of CSP for a particular offence and, if it is found to be inadequate, may indicate that in the future sentences should be increased.[72] In this way, inadequacies in sentencing can be addressed within the judicial process itself. The system is self-correcting, as it should be.

90 In Ashdown,[73] Redlich JA set out the following non-exhaustive categories of circumstance in which the court 'is at liberty to propose that CSP should be uplifted':

(1) Where there has been an increase in the statutory maximum penalty and CSP has failed to reflect that increase.

(2) Where there is evidence that an offence has become more prevalent.

(3) Where community expectations have altered.

(4) Where there has been increased community disquiet over the offence.

(5) Where there has emerged a better understanding of the consequences for the victim of the offending conduct.

(6) Where there has been a persistent error in the manner in which a category of offenders has been treated.

(7) Where the objective seriousness of particular conduct has been wrongly categorised or a particular type of sentencing disposition is not ordinarily appropriate.[74]

91 If the Crown is able to bring itself within one of those categories, the Court may then pass comment on the adequacy of CSP in order to 'ensure that sentencing standards are maintained and to provide guidance as to the correct approach to sentencing for a particular offence or category of that offence'.[75] In both Winch and Hogarth, the Court concluded that CSP was inadequate in respect of a category of the relevant offence. As noted earlier, the Director invites the Court to take a similar course in the present case.

92 The Director relies on the first and seventh categories set out by Redlich JA in Ashdown. The Director contends that CSP for NCSI by driving does not reflect either the 2008 increase in the maximum penalty or the objective seriousness of the offence. The Director further contends that it was the prevalence of the offence, and the change in community expectations concerning the offence, which prompted the legislature to increase the maximum penalty.

93 The LIV, as amicus, initially submitted that there had been an appropriate increase in sentences following the increase in the maximum penalty. The moderate increase disclosed by the SAC Report was said to reflect a proper application of s 5(2)(a) of the Sentencing Act 1991, requiring that regard be had to the maximum penalty.

94 At the end of the first day of the hearing, however, the LIV sought leave to file a supplementary submission. As filed, that submission represented a change of position. The LIV now accepts that there has not been a general increase in sentences since the maximum penalty was changed. For a number of reasons, however, the LIV submitted that it should be left to individual sentencing judges to address the inadequacy.

95 The Court was greatly assisted by materials prepared by the parties, the LIV and the Sentencing Advisory Council.

96 The offence of NCSI has existed in various forms long before the use of the motor vehicle.[76] It has been in place since the Criminal Law and Practice Statute 1864, at which time the maximum penalty was two years' imprisonment. Section 2 of the Crimes (Driving Offences) Act 1967 increased the maximum penalty for NCSI from two years' imprisonment to three years' imprisonment. The maximum was increased in 1997 to five years' imprisonment, at the same time as the maximum for the offence of CDCD was increased to 20 years' imprisonment. In 2008, the maximum penalty for NCSI was increased to 10 years' imprisonment, where it remains.

97 The latter increase followed a report by the Sentencing Advisory Council, which concluded that the maximum of five years was inadequate.[77] In that report, the Council noted repeated criticism of the maximum by members of this Court.[78] In his second reading speech, the Attorney-General referred to the Council's report and stated that the increased maximum 'places greater emphasis on the harm caused by the offence, in line with the government's continuing commitment to road safety'.[79]

98 Coincidentally, the Council published a further report in June this year, after the appellants had been granted leave to appeal.[80] The SAC 2015 Report provides an overview of the sentences imposed for the offence of NCSI by driving over the period 2006-07 to 2012-13. There were 77 cases of NCSI by driving over that period, involving 200 separate charges. The report shows that, after the increase in the maximum penalty in 2008, the median sentence of imprisonment increased by 25 per cent, from two years to two years and six months.[81]

Table 15: Sentencing statistics for negligently causing serious injury, by commission before or after 19 March 2008, 2006-07 to 2012-13

Offence committed before/after change in maximum penalty

100 It is notable that, despite the increase in the maximum, the proportion of charges resulting in imprisonment remained virtually unchanged, as did the highest and lowest sentences imposed. In addition, the proportion of charges receiving a wholly or partially suspended sentence did not change significantly.[82]

101 The Director prepared three tables of sentences for NCSI by driving to assist the Court. The first comprises cases in the Court of Appeal where the NCSI offence was committed after 19 March 2008, the date upon which the increase in the maximum took effect ('Table 1'). The second table lists cases in the Supreme and County Courts where the offence was committed after 19 March 2008 ('Table 2').[83] The third lists cases in the Court of Appeal where the offence was committed before 19 March 2008.

102 A review of these tables confirms what appears from the aggregate statistics in the SAC 2015 Report, namely, that there has been only a small increase in sentences for NCSI by driving since the changes in the maximum. The 11 cases listed in Table 1 reveal a narrow band of sentencing dispositions: no sentence is longer than four years' imprisonment, and the vast majority of sentences are between three and four years.[84] (The principal cases in Table 1, being Court of Appeal decisions after the increase in the maximum in 2008, were summarised earlier in these reasons and it is not necessary to make further reference to them).

103 In Table 2 (the first instance decisions), only one of the 32 cases listed includes a sentence greater than four years' imprisonment. In Director of Public Prosecutions v Da Costa,[85] the offender pleaded guilty to three charges of CDCD, three charges of NCSI and one charge of reckless conduct endangering life. He was sentenced in the Supreme Court to a total effective sentence of 16 years' imprisonment. The sentences on the three NCSI charges were five, three and four years' imprisonment respectively.

104 In only one other case in Table 2 was a sentence of four years' imprisonment imposed. In most other cases in Table 2, the sentence was between two years and three years and nine months' imprisonment.

105 This material demonstrates very clearly that, despite the increase in the maximum to 10 years, sentences for NCSI by driving - including for cases in the upper range of seriousness - have remained clustered at and under an upper limit of four years' imprisonment. This is a surprising state of affairs. As Maxwell P said in Gorladenchearau:

Sentences well above 50 per cent of the maximum were not uncommon before the maximum was increased. In Director of Public Prosecutions (Vic) v Albert,[86] this court referred to three decisions in which sentences of three years and six months' imprisonment, imposed at a time when the maximum penalty was five years, were upheld.[87] Such a sentence represented 70% of the applicable maximum. In each of those cases, the driver had a very bad driving record, unlike the present appellant, but parity of reasoning would suggest that sentences of above five years will be called for when such cases arise under the new maximum.[88]

106 The motor vehicle is an integral part of our society. Most adult citizens drive cars. A car driven negligently is capable of producing catastrophic consequences for victims. When the degree of negligence of the driver increases, there is a corresponding increase in the likelihood of devastating consequences. The most serious instances of the offence of NCSI by driving demonstrate negligent conduct of the very highest order.

107 The law thus provides for particular penal consequences for those who drive in a negligent manner and cause serious injury. The primary purposes for the sanction are twofold: to punish the offender and to deter drivers from driving irresponsibly.

108 The maximum sentence fixed by Parliament for an offence is a key indicator of its objective seriousness. In AB [No 2] v The Queen, this Court (Warren CJ, Maxwell P and Redlich JA) said:[89]

The maximum sentence provides a guide as to the seriousness with which a particular offence should be viewed. It serves as a directive to the courts on how to weigh the gravity of such criminal conduct, the maximum penalty itself being prescribed for the worst class of the offence in question. Recently, in R v Sibic, this court referred to the following passage from the decision of the High Court in Markarian v The Queen, where the majority said:

[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

109 By increasing the maximum penalty for the offence, the legislature recognised that the previous maximum penalty was insufficient to achieve the purposes of deterring drivers from engaging in highly negligent driving and adequately punishing that conduct where serious injuries resulted. So much is clear from the Attorney-General's second reading speech, a portion of which we have already quoted:

[T]he concern with negligently causing serious injury is that the statutory maximum is too low. The [Sentencing Advisory] Council has recommended that the maximum penalty be increased from five years to 10 years' imprisonment. This will recognise the harm caused by the offender more adequately than the existing maximum penalty.

Many of the most serious negligently causing serious injury offences are connected with motor vehicle collisions. This fact gives rise to an unsatisfactory outcome if a single collision has resulted in death to one person, resulting in a charge of culpable driving which carries a maximum penalty of 20 years, and serious injury to another, resulting in a charge of negligently causing serious injury, which carries a maximum penalty of only five years.

The bill increases the maximum penalty for negligently causing serious injury to 10 years' imprisonment. This places greater emphasis on the harm caused by the offence, in line with the government's continuing commitment to road safety.[90]

110 The increase in the maximum penalty to 10 years' imprisonment was intended - and expected - to lead to a corresponding increase in the sentences actually imposed. As the tables show, however, the sentences imposed have remained within a relatively narrow band. The most serious instances of the offence attract sentences of no more than three and a half to four years. As noted earlier, there has only been one instance of a sentence of five years.

111 Since the increase in the maximum penalty, a number of cases have come before this Court in which the offending was described as being at or near the highest level of seriousness. Several of those cases were discussed earlier in these reasons. In none of those cases was a sentence greater than four years imposed. It follows, in our view, that sentencing for this offence has not sufficiently 'recognised the harm caused by the offender', that being the stated object of the change in the maximum.

112 As the decision in Gorladenchearau illustrated, the requirement of consistency with CSP for NCSI by driving has resulted in downward pressure on sentences imposed. In that case, the Court of Appeal was constrained to reduce the sentence on the principal charge of NCSI from five years to four years because there was an 'unjustifiable disparity' between the sentence imposed and that imposed in comparable cases.[91] The sentence was 'out of kilter' with CSP.[92] Senior counsel for the Director accurately observed at the hearing of these appeals that there now appeared (with one exception) to be a 'false ceiling' of four years for upper-end offences of NCSI by driving.

113 In our view, current sentencing for NCSI by driving does not reflect the increased maximum penalty for the offence. As the Court explained in Hogarth, the maximum penalty is a sentencing yardstick, which means that there must be 'appropriate relativities between individual sentences and the maximum'.[93] While the maximum penalty is reserved for the worst example of an offence, it is to be expected that there would be a spread of cases across the statistical range.[94]

114 In Hogarth, the Court (Maxwell P, Neave JA and Coghlan AJA) considered sentencing practices for 'confrontational' aggravated burglary. The Court found that CSP had departed from the parameters set by the new maximum of 25 years, with a 'clustering of sentences around a median' and, with a few isolated exceptions, an upper limit far below the maximum.[95] The Court found that CSP did not reflect the objective seriousness of the offence and concluded that sentencing judges should no longer be constrained by that practice.[96]

115 We noted earlier in our reasons that NCSI by driving is frequently committed by young offenders with otherwise good character, who have a limited criminal history and good prospects for rehabilitation. As was said in Director of Public Prosecutions v Neethling[97] in respect of DDCD and DDCI:

It is precisely because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight.[98]

116 The objective seriousness of the offence is such that the importance of general deterrence and denunciation is heightened. As the importance of these factors increases, there is a corresponding diminution in the mitigating effect of factors such as the offender's youth and prospects for rehabilitation. The same view was expressed by Redlich JA in Azzopardi v The Queen,[99] in connection with serious vicious assaults by youths in public places.

117 Similarly in Winch, the majority of the Court (Maxwell P and Redlich JA) considered the prevalence of instances of 'glassing' and the objective seriousness of that category of recklessly causing serious injury. In the course of stating that sentencing judges should not be constrained by CSP,[100] they made the following observations:

In our view, the seriousness, and the prevalence, of glassing (RCSI) mean that general deterrence (and, where necessary, specific deterrence) must be given primacy in the sentencing synthesis. The approach which should be followed is, we think, that which was described by Batt JA (with whom Winneke P and Nettle JA agreed) in Director of Public Prosecutions v Lawrence,[101] as follows:

Youth and rehabilitation must be subjugated to other considerations. They must ... take a 'back seat' to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved ... This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that ... the persons who commit the offence and wreak appalling injuries ... are predominantly youths and young men acting under the influence of alcohol or drugs or both.

That was a case of intentionally causing serious injury but, for the reasons we have given, what was there said applies with equal force to 'glassing' as a serious instance of RCSI.[102]

118 The same principles must apply to the upper range of the offence of NCSI by driving.

Whether this Court should indicate that CSP should be uplifted

119 As noted earlier, the LIV submitted that it should be left to individual sentencing judges, as part of their instinctive synthesis, to address the fact that sentences had not increased after the maximum was doubled, as the legislature had intended. Three primary reasons were advanced, as follows:

(a) first, the category of NCSI by driving was insufficiently defined for this Court to offer guidance;

(b) secondly, the Court should await the developments in sentencing practice which will flow from the guideline judgment in Boulton v The Queen;[103] and

(c) thirdly, any inadequacy in CSP was more appropriately addressed in individual cases, by sentencing judges incorporating the relevant sentencing considerations (the increase in the maximum penalty and the objective seriousness of the offence, as communicated by that penalty) into their instinctive synthesis.

(a) Whether NCSI involving driving is an appropriate class of offences for uplift

120 The LIV argues, first, that there is a great variation in the manner in which the offence of NCSI by driving can be committed. The LIV refers to an array of cases to show that the element of negligence can be established by a wide variety of factors: intoxication by drugs, intoxication by alcohol, fatigue, failure to obey road traffic signals or lights, inattention, use of a mobile phone, speed, erratic driving, poor eyesight or a combination of the above. Similarly, the injuries sustained by victims vary widely, from a broken limb to lifelong significant impairment. The LIV also describes a variety of aggravating circumstances that have been found to accompany the offence. The LIV argues that, unlike the position in Winch and Hogarth, NCSI by driving is not a distinct subset of the offence, notwithstanding the commonality of the use of a motor vehicle.

121 Second, the LIV argues there is a great variation in the circumstances in which sentence is imposed for NCSI by driving. In particular, the LIV refers to the finding in the SAC 2015 Report that offenders convicted of NCSI are frequently sentenced on other charges at the same time. The most common companion offences were alcohol and drug driving offences (which appeared in 27 per cent of cases of NCSI by driving); failure to render assistance after an accident (12 per cent); and driving whilst disqualified (10 per cent).[104] The LIV suggests that the principle of totality will operate in those cases to a mathematically unquantifiable degree.

122 We do not accept this submission. In our view, NCSI by driving is a sufficiently defined class of offending for the adequacy of sentencing standards to be a proper subject for comment. Of course, each offender must be sentenced by reference to the particularities of his or her offending conduct and personal circumstances. But cases of NCSI by driving have significant common features. As Maxwell P said in Gorladenchearau, it is the experience of the Court that cases of driving-related NCSI have a 'shocking similarity'. The critical features of the offending which recur are 'speed, inattention, intoxication (alcohol or drugs) and (often) prior convictions for driving offences'.[105]

123 Those observations are borne out by the SAC 2015 Report, which lists the common features of the 77 cases of NCSI by driving which were reviewed. In those cases:

(b) speeding (55 per cent) and driving affected by alcohol (49 per cent) were the most common driving behaviours;

(c) in 64 per cent of cases the offender had a record of prior offending, with prior driving offences being the most common (56 per cent);

(d) a substantial proportion of offenders (34 per cent) were unlicensed and/or had a suspended licence, or were disqualified from obtaining a driver licence, at the time of the offending; and

(e) a quarter of all offenders had a personal history of alcohol abuse (26 per cent) and/or substance abuse (25 per cent).[106]

124 The statistics show a notable commonality in the characteristics of both conduct and offender. That commonality, as Maxwell P said in Gorladenchearau, means that the cases are readily comparable and sentencing disparities more starkly exposed.[107] There is sufficient similarity in the cases to enable the Court to identify the state of CSP for NCSI by driving and to express a view about its adequacy.[108]

(b) Whether this Court should await developments flowing from Boulton

125 The LIV's second objection is that it is an inopportune time for this Court to comment upon CSP, in view of the recent abolition of suspended sentences and the introduction of community correction orders ('CCOs'). The LIV notes that, of the cases within the reference period of the SAC 2015 Report, a wholly-suspended sentence was imposed on 14 per cent of charges of NCSI and a partially-suspended sentence was imposed in eight per cent.[109] The introduction of CCOs as a sentencing disposition, meanwhile, may also affect sentencing practice for NCSI by driving. In Boulton, the Court noted the different views of the parties as to the applicability of CCOs to offences including culpable driving,[110] but did not express a view on the question.

126 It is, in our view, both undesirable and unnecessary to seek to impose in advance any outer limits on the availability of CCOs as a sentencing option. First, the scope for utilising CCOs is still largely unexplored. Secondly, realising the full potential of CCOs will require, as this Court said in Boulton, a re-examination of accepted views about offences for which imprisonment has hitherto been thought to be the only option. That process of rethinking and re-evaluation will take some time.[111]

127 The LIV submits that an assessment of CSP for NCSI by driving should await that 'process of rethinking and re-evaluation'. We do not accept that submission. The introduction of CCOs is certainly changing sentencing practice in this State, and will continue to do so. But that necessary evolution provides no justification for permitting inadequate sentencing practices to continue.

128 Indeed, at a time when accepted views about the appropriate dispositions for offences must be re-examined, it would be more, not less, harmful to delay. When now considering whether it is open to impose a CCO in a particular case, a sentencing judge will inevitably have regard to CSP for the relevant offence, including sentences imposed when a CCO was not an option. As the Director submits, if CSP is inadequate, the application of the principles contained in Boulton may be similarly skewed.

129 The LIV further submits that, if any statement is to be made about CSP for NCSI by driving, the Court should declare that this is the very type of offence to which the principles set out in Boulton have direct applicability. We do not consider that that question arises for determination in this appeal.

130 It may very well be that some instances of NCSI by driving, in lower categories of seriousness, may appropriately be dealt with by the imposition of a CCO or a combination of a CCO with a term of imprisonment of up to two years.[112] But the 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 the sentencing purposes of punishment, denunciation and deterrence.[113]

(c) Whether uplift is an appropriate mechanism in this case

131 Finally, the LIV submits that, if current sentencing is inadequate because of a failure to respond to the increase in the maximum penalty, the appropriate method of uplift is for sentencing judges to incorporate that increase into the instinctive synthesis. According to the submission, for this Court to uplift CSP only in respect of this category of this offence would be to engage in a 'piecemeal' approach to resolving a problem that may exist in relation to any offence for which the maximum penalty has been altered.

132 Instead, the LIV contends, the Court should follow the approach endorsed in R v AB [No 2],[114] in which this Court confirmed that a sentencing judge who concludes that CSP is not consistent with an increased maximum penalty for an offence is not constrained by that practice. Instead of uplifting sentencing practice for this offence, the LIV submits, this Court should 'give a clear direction to sentencing judges as to how to give effect to Parliament's decision to increase [the] maximum penalty and yet still have regard to current sentencing practices as required by the legislation'. It is said that this approach would have general application for sentencing for all offences where the maximum penalty has increased.

133 As the Director observed in further submissions, there are (at least) three mechanisms by which sentencing courts may resolve any tension between CSP and an increased maximum penalty. The first mechanism is the organic evolution of sentencing practice by the gradual incorporation of the new maximum penalty into the instinctive synthesis. Sentencing courts are obliged to give consideration to the maximum penalty for an offence, as well as to CSP, and an increase in the former should theoretically eventually be reflected in the latter.

134 The second mechanism is that employed by Nettle JA (sitting in the Trial Division) in R v AB [No 2].[115] Where the sentencing judge concludes that CSP conflicts with the maximum penalty prescribed for an offence, the judge may decline to follow CSP 'down to a level below the sentence which [the] maximum ... implies it is necessary to impose'.[116] The third mechanism is that identified in Ashdown, which the Crown invites the Court to utilise in this appeal.

135 Each of the identified mechanisms has its place. But, as was explained in Ashdown, it will be necessary for this Court to provide guidance to sentencing courts where inadequate sentencing practice has become so established that sentencing courts are reluctant to depart from that practice. As Redlich JA concluded in Ashdown:

[T]he expression of such an opinion is part of the court's overarching responsibility to ensure that sentencing standards are maintained and to provide guidance as to the correct approach to sentencing for a particular offence or category of that offence.[117]

136 For the foregoing reasons, we are not persuaded that there is any obstacle in the way of the Court giving guidance in respect of sentencing practice for NCSI by driving, in light of our conclusion that CSP is inadequate.

137 In our view, CSP for NCSI involving driving in the upper category of this offence is plainly inadequate. First, sentences imposed for offences in the upper range of seriousness disclose an inadequate response to the increase in the maximum penalty. There has been an inappropriately narrow range of sentences imposed in cases comparable to those the subject of these appeals.

138 The increase in the maximum necessarily implies that there should be some increase in the sentences actually imposed. As the courts have not hitherto responded to the legislative command to increase sentences, judges should no longer remain fettered by the previous pattern of sentencing. They must give effect to Parliament's decision to increase the maximum penalty, which provides an indication as to the seriousness with which it should be viewed.[118]

139 Secondly, current practice fails to reflect the objective seriousness of this category of NCSI by driving. The sentences imposed in the comparable cases are not commensurate with the objective gravity of the offences, as informed by the degree of negligence involved and the consequences for victims. The instant cases the subject of appeal are exemplars of this inadequacy.

140 Sentencing courts should no longer consider themselves constrained by existing sentencing practice for offences of NCSI by driving which fall within the upper range of seriousness (as exemplified by the cases under appeal). The sentences imposed in the cases to which we have referred should not be viewed as setting any limit on the sentence that may be imposed in such a case. In particular, sentencing courts should not treat four years as a ceiling for this offence. Sentences for mid-range and lower-end instances of NCSI by driving will also need to increase, in order to maintain appropriate sentencing relativities.[119]

141 By way of general guidance, had the sentencing courts in the present cases not been constrained by CSP, we consider that sentences of six or seven years would have been well within range, given the seriousness of the offending.

Miller v R [2012] VSCA 265

[Theft - 12 months, Failing to render assistance after an accident - 30 months.]

Severe brain damage, multiple spinal fractures, fractured pelvis, various other fractured bones, and collapsed lung.

Ongoing: Confined to wheelchair, requires full time care, substantial pain requiring opiate analgesia.

Traumatic brain injury, post- traumatic amnesia for 70 days, injured shoulder, calf and knee.

July 2000 - convicted fined for exceed BAC. July 2003 - convicted fined for exceed BAC. April 2007 - Convicted and fined for driving at dangerous speed and driving unregistered vehicle.

DPP v Khoja [2014] VSCA 9 [2012] VCC

V1 (Ch 2): Brain injury, fractured pelvis, back and rib injuries. Wrist injury requiring surgery.

V1 Ongoing: Cognitive difficulties, mood disturbance,

V2 (Ch 3): Back pain, sore chest, minor scratches on arm, small cut on ear.

V3 (Ch 4): Superficial lacerations to head, deep laceration to back of right hand, pain to right knee, headache.

V4 (Ch 5): Cut to face, head, arm and back, back pain.

Gorladenchearau v R [2011] VSCA 432

[2x Reckless conduct endangering serious injury - 1 year on each charge, Driving without licence - $500.]

V1 (Ch 1): Closed head injury, traumatic brain damage.

V2 (Ch 2): Displaced orbital fracture, periorbital haematoma, closed head injury, loss of consciousness.

Reckless conduct endangering serious injury V3: Small haematoma and some abrasions.

Good prospects of rehabilitation. Isolated in prison.

Mok v R [2011] VSCA 38

Alcohol [between .18 - .195] Speed (125km/h in 60km/h zone).

A skull fracture and preliminary contusion, a fractured left clavicle, eight fractured ribs, a fracture of the spine and a sub

Family support. Significant injuries with ongoing effects - prison more onerous.

Aggravating: At the time of offending, appellant held licence with condition that he drive with no alcohol in blood.

[Use unregistered motor vehicle - $200 fine, Unlicensed

driving; Fraudulent use of registration label; Fraudulent use of number plate - aggregate 4 months.]

Lost control of car - head-on collision with another car.

V1 (Ch 1): Fractures to wrist, ulna, right femoral shaft, left proximal femur and 2 vertebrae.

V2 (Ch 2): Whiplash to cervical spine, lumbosacral musculoligamentous strain, soft tissue injury to chest and ankle.

Mitigating: Early PG. Remorse. Seriously injured. Verdins (imprisonment).

V3 (Ch 3): Comminuted oblique fracture of ankle, major surgery to other ankle, avulsion injury to elbow, nasal injury.

V4 (Ch 4): Liver laceration, fractured clavicle, extensive bruising, abrasions and enduring pain.

V4 Ongoing: Pain issues, ongoing physiotherapy and doctor treatment, difficulties completing everyday tasks.

[2011] VSCA 6

Fell asleep at wheel and collided with rear of CFA truck driven by victim.

Serious physical injury and some residual brain damage, resulting in on-going loss of coordination and short-term memory loss.

13 years army service. Ceased truck driving. Profound remorse. Victim forgiveness.

"After having driven for some time, and possibly having twice nodded off, before

each time regaining consciousness, appellant made conscious decision to continue driving" (at [20]).

Solomano v The Queen [2013] VSCA 320

Licence cancellation, disqualification for 6 years.

[Culpable driving causing death - 5 years, Fail to render assistance after accident - 2 years.]

rehabilitation positive. Absence of priors for at least 10 years.

Good work ethic. In longstanding relationship and father

Pollard v The Queen [2010] VSCA 156

[Fail to render assistance after accident - 12 months.]

Right leg: Ruptured lateral ligament, torn anterior and posterior cruciate ligaments, injured medial ligament, glass remnants in knee joint. Left leg: torn medial ligament, spiral fracture to fibula, multiple tibia fractures.

Ongoing: Pain and movement issues. Unable to undertake physical work.

Difficult upbringing. Single mother - only carer for son.

(Judgment appealed from R v Brayshaw (Unreported, County Court Victoria, Judge Chettle, 10 August 2010).

"The appellant had prior convictions for drink driving and other traffic offences" (at [2]).

Court made recommendation to Parole Board for YJC [3 x Theft - 6 months,

Reduced intellectual capacity. Psychological problems.

[2014] VSC 458

[3x Culpable driving - 10 years each charge, Reckless conduct endangering life -

D drove through intersection after light had been red for 18 seconds. Hit pedestrian and

threatening injuries, two weeks in ICU. 3 months in hospital and rehabilitation. Ongoing cognitive, physical and psychological issues.

V2: Fractures, lacerations to kidney and liver, injuries also severe and life threatening, PTSD, Ongoing issues.

V3: Severe and highly life threatening injuries, suspected mild traumatic ABI. severely adversely affected future quality of life.

Aggravating Injuries inflicted Number of people put at risk

Length of the journey exposing other to risk Ignoring of warnings Sleep deprivation

Ongoing: Memory loss, lack of concentration, anxiety and depression. Continuing

at [54]. Hardship of imprisonment. Injured: fractured

D braked suddenly, car skidded and crashed into light pole injuring passenger.

coma, Severe traumatic brain injury, extensive multiple areas of bleeding into brain, brain injuries, skull fracture, multiple spinal neck bone injuries, atlanto occipital dislocation with a soft tissue injury to neck, injured neck disc, narrowing of spinal canal,

injuries to lungs, multiple rib fractures, fractured teeth, multiple complex fractures

Ongoing physical and cognitive issues. V under care of his uncle.

Aggravating: Disqualified from driving at time of incident Breached CBO

Driving priors: Multiple offences not specified - convicted and fine $1250

Multiple offences not specified - ordered to complete drink driver education program and road trauma awareness seminar. DWS

.08mg alprazolam, .02mg diazepam, .03mg methadone, .02mg

multiple broken ribs, fractured right-eye socket, two broken fingers on right

[Dangerous driving - 8 months, Drive whilst disqualified

Unable to work for more than 3 months, returned to work at reduced capacity.

V3 (Ch 2): Two fractured bones in right leg requiring surgery to insert metal plates, fractured knuckles in left hand.

V1: Multiple cuts to right hand, bruised ribs and hip. V4: Pain, blood nose,

ribs, a broken collar bone, gall bladder laceration, liver laceration, adrenal haematoma, cardiac and lung bruising and lacerations, and scalp lacerations, post traumatic amnesia, detachment of rib cage from chest wall and pneumothorax, frontal lobe damage.

V2 (Ch 3): Fracture of right cervical C3, mild thoracic spine tenderness, upper lumbar spine tenderness, bruising to temple and forehead, a fracture of his left clavicle, grazes and lacerations.

[2014] VCC 547

lasting 29 days, moderately severe traumatic brain injury, multiple orthopaedic injury including fractured pelvis, left tibula and fibia, extensive ligament

Ongoing: Cognitive and language disabilities, particularly concerning short term memory, attention capacities and processing time and executive functioning. Chronic PTSD, severe depression, anxiety and stress.

Serious walking difficulties, constant engagement in

police. Remorse. Excellent prospects of rehabilitation.

No prior convictions, but 3 on-the-spot fines for driving- related matters sustained before offending (speeding and drive while using phone).

At sentencing: Second knee reconstruction operation in near future.

V1 Ongoing: pain, significant psychological issues concerning safety and mood control and strained relationships with others.

V2 (Ch 3): Compression fractures on 3rd, 4th, 5th and

(nightmares, difficulty sleeping, anxiety and anger).

V3 (Ch 4): Head injuries (right parieto-occipital haematoma, multiple petechial bruises on brain, probable right fracture of petrous bone near ear, and pacification of mastoid air cells around ear).

Lost control of motorbike. D and V thrown from motorbike.

Child aged 6 - Dislocated spine, significant spinal

cord injury, severe chest injury, severe head injury,

Ongoing: Fatigues easily, upper limb weakness, physical difficulties walking, supinating arms, using wheelchair. Ongoing care required for daily activities.

Good prospects of rehabilitation. Verdins (PTSD in prison).

21 September 2005 - convicted of exceeding the speed limit by more than

3 May 2006 - found guilty of driving whilst licence suspended.

6 February 2008 - convicted of driving uninsured vehicle and not stopping at stop sign.

convicted of exceeding the speed limit by 25km/h or more but less than

Ongoing: Still residing in full time rehabilitative care. Cognitive and physical deficits.

Prior good character. High prospects of rehabilitation. Forgiveness of

[2011] VCC 944

Drugs (speed). Speed (93km/h at collision). Unroadworthy car.

Cracked vertebrae, bruising on brain, glass in face and

Ongoing: Physical injuries, back pain causing restricted mobility.

Very good prospects of rehabilitation. Seriously injured.

[Exceed PCA - 1 month, Use vehicle not complying with

injuries to neck and other parts of body, bruises and abrasions.

V1 Ongoing: Neck pain, migraines, damaged wrist tendon expected to take 12 months to heal. Reactive depression.

V2 (Ch 2): Brain injury, serious facial lacerations, aortic rib injury, rib fractures, collapsed lung, bruising to chest, sternomandibular dislocation, severe liver laceration, rupture of bile

duct and diaphragm, tear to the right adrenal vein, injured pancreas and

several broken teeth, various post-op complications.

13 years old, including "various driving offences" at [30].

vertebrae causing extreme pain and 1 week's hospitalisation.

V2 (Ch 2): Mild brain injury, fractured pelvis, clavicle, ribs, roof of mouth and cheekbone, torn knee ligaments and shoulder tendon. Abrasions to cheek and lacerations to eyebrow, fractured teeth requiring removal and dentures. Spent 10 days in hospital and 2 months in rehab.

V2 Ongoing: Mobility issues due to knee injury. Unable

Early PG. Depression, anxiety and PTSD making prison more difficult. Good prospects of rehabilitation.

[Fail to stop after accident involving serious injury - 2 years, Drive in manner dangerous - 1 month, exceed PCA - 1 month.]

V1 (Ch 1): Open fracture to left ankle requiring plates.

V1 Ongoing: Psychological injury (fearful when walking

residual physical disability, likely requiring further surgery.

fractures, pericardial effusion, abrasions and bruising.

V1 Ongoing: Eye pushed into head cannot be fully rectified, nerve damage causing tremors in right arm, hand and jaw, significant loss of balance. PTSD and depression. Pre- existing osteoarthritis in left knee exacerbated - no longer able to do general housework, garden, drive

V2 (Ch 5): Sternal fracture, pneumothorax, right lung contusion, liver laceration, neck and pelvic fractures, and fractured femur.

V3 (Ch 6): Fractured ribs, sternum, right clavicle, right

Good prospects of rehabilitation. Verdins (imprisonment). Prospect of deportation.

[2 x Reckless conduct endangering persons - 12 months each charge.]

injury, multiple fractures to spine, 10 days in induced coma being treated for intra-cranial hypertension,

cerebral perfusion pressure and ventilator associated pneumonia. Post traumatic

Ongoing: Treatment physiotherapy, outpatient rehabilitation and speech therapy. Expected to recover.

Judicial comments: V1 not wearing seatbelt, finding he was "complicit" in the circumstances.

Not mitigating but taken into account in accused's favour.

[Numerous related summary driving charges dealt with by fines with conviction.]

Delay - "delay in this matter coming before me" at [30].

V1 (Ch 4): Fractures to bones of right leg and both feet. Had skin grafted from

Early PG. Delay (already served 395 days in custody at time of sentencing).

left thigh onto right ankle. Blood clot to one of the

2.5 months in hospital and significant period in continuing rehabilitation.

V2 (Ch 3): Fractured vertebra, broken ribs, tear to large intestine, injured pelvis and open wound to abdominal wall. Hospitalised for 1 month. V2 Ongoing: Engaged in

V3 (Ch 2): Serious brain injury, broken collarbone, bruised lung and cut to scalp, memory loss. Hospitalised for several months.

V4 (Ch 1): Brain injury, broken ribs, broken collarbone, broken nose, several fractured vertebrae in neck, punctured lung and bruised spleen.

at time of offending. Breached community-based orders.

of leg, nerve damage to knees, fracture to spine, mild cardiac contusion, ongoing effect to sight. Multiple bruising injuries.

Difficult upbringing. Psychological issues. Good prospects of

V1 Ongoing: Limited ability to perform domestic duties and care for child. Vision problems mean she no longer drives. Suffers panic, anxiety and depression.

V2: Punctured lung, fractured ribs, fractures to feet. Abrasions and bruising.

[4 x Reckless conduct endangering serious injury - 12 months aggregate sentence.]

V1: Bleeding on brain, lacerations to face and right

V2 Ongoing: Suffering from shoulder injury (details unclear, but in VIS).

to temple exposing bone, multiple skull fractures, a

fractured femur, a fractured pelvis, laceration to liver

Ongoing: Brain injury purported to be permanent at time of sentence.

6 years 6 months, Drive whilst suspended - 4 months.]

10 June 1998 - Convicted and fined for driving whilst licence suspended and exceeding the speed limit.

22 September 2004 - traffic infringement notice issued for excessive speed between 40km/h -

8 July 2005 - Convicted for driving whilst licence suspended and

11 November 2005 - Traffic infringement notice issued for exceeding prescribed concentration of alcohol (.100 - .109).

18 January 2009 - Traffic infringement notice issued for

[Unlicensed driving - 7 days imprisonment (concurrent).]

injury, L1 lumbar vertebral body burst fracture, dislocated right thumb, scalp laceration and left shoulder abrasions.

Remorse. Early PG. Cooperation. Excellent prospects of rehabilitation.

fractures to left temporal bone and sphenoid including base of skull, bleeding into brain, facial lacerations, fractures to nose and right eye socket, spleen removed, third degree burn to right upper arm requiring skin graft, punctured lung, 9 broken ribs, broken left collar and shoulder bones, fractured

thorax abdomen and pelvis, fractures to leg and arm.

Ongoing: Brain injury has caused fatigue, memory loss, difficulty with words.

[Exceed PCA - convicted and discharged, Use cannabis - convicted and discharged.]

(forearm), multiple left side rib fractures, left lung contusion and hymopneumothorax (air between pleural space in lungs and chest wall), preorbital bruising and bleeding under conjunctiva.

degree burns and scarring to face, arms and legs, fractured skull, traumatic subdural haemorrhage and associated brain injuries, Fractured left orbital cavity, severe injury to left eye resulting in blurred vision and partial loss of sight,

V1 Ongoing: Persistent left visual acuity in re left eye

Outpatient rehabilitative treatment, cannot drive. Uncertain at sentencing what cognitive and physical deficits suffered will remain.

V2: Broken neck, perforated bowel, severe lung contusion, bruising, swelling lacerations and scarring to abdomen and neck.

V2 Ongoing: Physical activities and movements severely restricted. Ongoing rehabilitation (physiotherapy).

wheelchair for mobility as a result of back injury.

[2014] VCC 998

120km/h in 70km/h zone). Overtaking on painted traffic island.

shoulder joint. Reconstruction of right shoulder with plate, whiplash to neck, bruising to shoulder, ongoing pins and needles.

Driving priors: March 2013 - detected of driving at

[aggregate sentence for NCSI and obtaining property by deception]

imprisonment wholly suspended for 2 years, 12 month CCO.

[Failing to stop motor vehicle at accident where person suffered serious injury - 2 years imprisonment wholly suspended for 2 years.]

ankle surgery (screws inserted) and back brace required for 15 weeks.

Mental and physical health issues at time of incident.

[1] Sentencing Advisory Council, 'Maximum Penalty for Negligently Causing Serious Injury' (Report, Sentencing Advisory Council, October 2007) 1 [1.2] ('SAC 2007 Report').

[2] See Gorladenchearau v The Queen (2011) 34 VR 149, 153 [13] ('Gorladenchearau').

[4] Rigogiannis v The Queen (Unreported, Court of Appeal of the Supreme Court of Victoria, Redlich JA, 11 February 2015).

[5] Harrison v The Queen (Unreported, Court of Appeal of the Supreme Court of Victoria, Redlich JA, 11 February 2015).

[6] Rigogiannis v The Queen (Unreported, Court of Appeal of the Supreme Court of Victoria, Redlich JA, 11 February 2015).

[7] Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658, 663 [26] (Maxwell P and Redlich JA) ('Winch'), citing DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 549 [69].

[8] Ashdown v The Queen [2011] VSCA 408; (2011) 37 VR 341 ('Ashdown').

[9] DPP v Harrison (Unreported, County Court of Victoria, Judge Smith, 21 August 2014) [17] ('H Reasons').

[16] Ibid [40]-[42] (emphasis added).

[18] R v Wise [2000] VSCA 169; (2000) 2 VR 287, 297 [28].

[19] See Wagner v The Queen [2014] VSCA 157 [12] (Redlich JA, with whom Maxwell P and Osborn JA agreed), citing R v Fox [2003] VSCA 138; R v Liang [2009] VSCA 18.

[22] Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492.

[23] Criminal Procedure Act 2009 s 287.

[24] R v Shields [1981] VicRp 68; [1981] VR 717, 723; Nydam v The Queen [1997] VR 430, 444.

[25] Gorladenchearau (2011) 34 VR 149, 156 [22].

[27] Harrison v The Queen (Unreported, Court of Appeal, Redlich JA, 11 February 2015) [15]-[16]; see also Anderson v R (2013) 230 A Crim R 38, 45-46 [22]-[23], citing Ashdown [2011] VSCA 408; (2011) 37 VR 341, 400 [174].

[28] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 535 [49], 536-537 [53]-[54] ('Hili'); Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 ('Barbaro'); DPP (Cth) v KMD [2015] VSCA 251 [53]. See further Arie Freiberg, Fox & Freiberg's Sentencing: State and Federal Law in Victoria (Lawbook, 3rd ed, 2014) 451-5 [6.235].

[29] Hasan v The Queen [2010] VSCA 352; (2010) 31 VR 28, 41 [55], citing Hudson v The Queen (2010) 30 VR 610 ('Hudson').

[30] [2015] VSCA 331.

[31] Ibid [48]-[49] (Redlich and Whelan JJA) (citations omitted).

[32] Winch [2010] VSCA 141; (2010) 27 VR 658, 663 [23]; Ashdown [2011] VSCA 408; (2011) 37 VR 341, 352 [32] (Maxwell P), 410 [207] (Redlich JA).

[33] DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 549 [69]; Winch [2010] VSCA 141; (2010) 27 VR 658, 664 [27]; Scerri v The Queen (2010) 206 A Crim R 1; DPP v Alsop [2010] VSCA 325 [25]; Hudson (2010) 30 VR 610, 631 [80]; DPP v DDJ [2009] VSCA 115; (2009) 22 VR 444, 460 [65]; Ashdown [2011] VSCA 408; (2011) 37 VR 341, 410-11 [207].

[34] [2011] VSCA 38 ('Mok').

[35] [2011] VSCA 386 ('Shields').

[36] (2011) 34 VR 149.

[37] [2010] VSCA 156 ('Pollard').

[38] [2011] VSCA 38.

[39] [2011] VSCA 386.

[40] Ibid [19] (Whelan AJA, with whom Buchanan JA and Robson AJA agreed), [40]-[45] (Robson AJA).

[41] (2011) 34 VR 149.

[44] [2010] VSCA 156.

[47] [2011] VSCA 233 ('Brayshaw').

[48] Brayshaw [2011] VSCA 233 [2]. The reasons do not contain further detail of the victim's injuries. The sentencing remarks are not reported.

[49] [2012] VSCA 265.

[50] [2011] VSCA 408; (2011) 37 VR 341.

[52] (2011) 34 VR 149, 160 [43].

[54] [2007] VSCA 129; (2007) 172 A Crim R 181.

[57] (2010) 30 VR 610.

[59] Pollard [2010] VSCA 156 [32].

[60] See Gorladenchearau (2011) 34 VR 149, 158 [34].

[61] DPP v Rigogiannis (Unreported, County Court of Victoria, Judge Chettle, 9 July 2014) [3] ('R Reasons').

[72] DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 546 [52], 548 [60]; DPP v DDJ [2009] VSCA 115; (2009) 22 VR 444; Winch [2010] VSCA 141; (2010) 27 VR 658, 659 [4], 669 [54]-[55]; Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658, 671 [51] ('Hogarth'); Ashdown [2011] VSCA 408; (2011) 37 VR 341, 351-2 [29]-[32], 403-4 [180]-[184].

[73] [2011] VSCA 408; (2011) 37 VR 341.

[74] Ibid 403 [180] (citations omitted).

[76] Sentencing Advisory Council, 'Major Driving Offences: Current Sentencing Practice' (Report, Sentencing Advisory Council, June 2015) 6 [2.3] ('SAC 2015 Report').

[77] SAC 2007 Report, above n 1, 3 [1.5], 46 [6.4].

[79] Victoria, Parliamentary Debates, Legislative Assembly, 6 December 2007, 4414 (Rob Hulls, Attorney-General).

[83] Tables 1 and 2 are annexed at the end of these reasons.

[84] We note that, since the oral hearing, the Court published its reasons in two further cases in which the offending included NCSI involving driving. In Simpson v The Queen [2015] VSCA 210, the appellant pleaded guilty to a number of charges, including NCSI, dangerous driving while pursued by police and failing to render assistance. The total effective sentence was six years and six months' imprisonment. The sentence on the charge of NCSI was four years' imprisonment. The Court dismissed the appeal against sentence. In Scammell v The Queen [2015] VSCA 206 ('Scammell'), a youthful offender was re-sentenced on appeal to 18 months' detention in a youth justice centre.

[85] [2014] VSC 458. This case fell outside the reference period for the SAC 2015 Report.

[86] (2010) 203 A Crim R 1.

[87] R v Brown [2003] VSCA 153; (2003) 39 MVR 293; R v Fackovec [2007] VSCA 93; R v Healey [2008] VSCA 132; (2008) 186 A Crim R 433.

[88] Gorladenchearau (2011) 34 VR 149, 161 [51] (emphasis added).

[89] [2008] VSCA 39; (2008) 18 VR 391, 403-4 [40] (citations omitted). See also Hogarth [2012] VSCA 302; (2012) 37 VR 658, 671 [49].

[90] Victoria, Parliamentary Debates, Legislative Assembly, 6 December 2007, 4414 (Rob Hulls, Attorney-General).

[91] (2011) 34 VR 149, 162 [54] (Maxwell P).

[92] Ibid 163 [59] (Ashley JA and Ross AJA).

[93] Hogarth [2012] VSCA 302; (2012) 37 VR 658, 674 [61], citing Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, 372 [31] ('Markarian').

[94] Ibid 674 [60], citing R v Mallinder (1986) 23 A Crim R 179, 180 (Murray J), 187 (Vincent J).

[95] Hogarth [2012] VSCA 302; (2012) 37 VR 658, 673-4 [58]-[59].

[97] [2009] VSCA 116; (2009) 22 VR 466.

[99] [2011] VSCA 372; (2011) 35 VR 43, 55-6 [34]-[39].

[100] Winch [2010] VSCA 141; (2010) 27 VR 658, 664 [31], 669 [55].

[101] [2004] VSCA 154; (2004) 10 VR 125, 132 [22].

[102] Winch [2010] VSCA 141; (2010) 27 VR 658, 667 [44] (Maxwell P and Redlich JA).

[103] [2014] VSCA 342 ('Boulton').

[105] Gorladenchearau (2011) 34 VR 149, 160 [43].

[106] SAC 2015 Report, above n 76, 7 [1.30].

[107] [2011] VSCA 432 [43].

[108] See Ashdown [2011] VSCA 408; (2011) 37 VR 341, 357 [46] (Maxwell P).

[110] Boulton [2014] VSCA 342 [132].

[112] See the discussion in Scammell [2015] VSCA 206 [28]-[34] (Redlich and Beach JJA).

[113] Boulton [2014] VSCA 342 [140].

[114] [2008] VSCA 39; (2008) 18 VR 391.

[115] [2006] VSC 96, upheld by the Court of Appeal in R v AB [No 2] [2008] VSCA 39; (2008) 18 VR 391 ('AB [No 2]').

[116] [2006] VSC 96 [59].

[117] [2011] VSCA 408; (2011) 37 VR 341, 413 [215].

[118] AB [No 2] [2008] VSCA 39; (2008) 18 VR 391, 403-4 [40]. See also Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, 372 [31].

[119] AB [No 2] [2008] VSCA 39; (2008) 18 VR 391, 406 [51].