1 The appellant, David Howton, appeals, with leave, against a sentence of four years and four months' imprisonment, with a non-parole period of two and a half years, which was imposed on him following his conviction by a County Court jury of dangerous driving causing the death of Mr John Grady. The maximum penalty for the offence is 10 years' imprisonment.[1] The appellant's driver licence was cancelled and he was disqualified from obtaining a licence for 24 months after his eventual release from prison.

2 On 19 September 2012, the appellant was granted leave to appeal against his sentence on the sole ground that the sentence was manifestly excessive.

3 The accident occurred when the appellant, a professional truck driver, was following his boss home from work, driving on an unfamiliar road. The circumstances of the offence are set out in my leave reasons as follows:

1. [T]he applicant, a professional truck driver, crossed double lines onto the wrong side of the road in his Jaguar Sedan, colliding head on with station wagon driven by the victim, Mr John Grady, who was travelling in the opposite direction.
2. The road conditions were fine and dry, the applicant's car was in a roadworthy condition, and he was not affected by fatigue, drugs or alcohol. The road leading to the point of collision was straight and the speed limit was 100 km/hour. However, at the point of collision, there was 'a slight incline to a crest, over which there is a "dip" in the road', which significantly reduced the visibility of oncoming vehicles. One hundred and eighty five metres before the dip, the recommended speed was 60 km per hour and a cautionary sign warned drivers of an upcoming dip in the road. Double white lines were also marked on the road surface from the same point.
3. Mr Grady died at the scene of the collision. The applicant was extricated from his vehicle and airlifted to the Alfred Hospital with life-threatening injuries.
4. On 30 August 2009, the applicant told police in a record of interview that he had no recollection of the collision. On 16 April 2010, he was charged with culpable driving and dangerous driving causing death.
5. At a committal hearing on 12 November 2010, the applicant pleaded guilty to dangerous driving causing death and the charge of culpable driving was withdrawn. However, he subsequently withdrew his guilty plea and the matter proceeded to trial.
6. At the trial, there was no dispute that the applicant was travelling on the wrong side of the road when the accident occurred. There was no evidence as to why the applicant drove across the double lines and the main point of contention was the speed of the applicant's vehicle leading up to the collision. The judge sentenced the applicant on the basis that he was travelling at 92 km per hour. That is, within the speed limit, but over the advisory speed limit of 60 kilometres per hour which applied at that particular point in the road.

4 At the plea hearing, counsel for the Crown submitted that an appropriate sentencing range was a maximum term of three and a half to five years' imprisonment, with a non-parole period of between two to three years. Defence counsel submitted that a partially suspended sentence was appropriate, with a head sentence of less than three years, with six to 12 months to be served immediately.

5 In his careful and comprehensive sentencing reasons, his Honour noted that:

This accident was caused entirely by the presence of [the appellant's] car on the wrong side of the road, in the setting of that blind spot on that road. For whatever reason, [the appellant was] travelling on the wrong side of the road. This was in no way in response to any other vehicle sending [him] in that direction, whether Mr Grady's, or any other person's.[2]

6 The judge noted the defence submission that there was no evidence about why the appellant had crossed to the wrong side of the road, but said that 'the best case scenario' for the appellant was that his inattention caused him to travel:

entirely across to the wrong side of the road in the face of a warning sign as to a dip, as to the road narrowing, and a recommended speed limit of 60, and approaching a blind crest in those circumstances.[3]

7 In these circumstances, his Honour characterised the appellant's culpability as high,[4] and concluded that 'this is a serious example of a serious offence. I have no alternative but to impose a significant term upon you'.[5]

8 His Honour noted that the appellant had been taken into care as a ward of state when he was three years old and had never had any bond with his biological mother or contact with his siblings. He only became literate when he was 17. His Honour said that the appellant's background was one of 'sad circumstances and significant dysfunction',[6] and found that he had 'attempted to rise above [his] unhappy and very bleak beginnings'.[7]

9 His Honour said that the appellant's prior criminal history was 'of some real significance',[8] while noting that his numerous convictions for breach of licensing and registration requirements had occurred some time ago and may have reflected his financial predicament, rather than poor driving.[9]

10 The most significant prior matter was the appellant's plea of guilty to dangerous driving in February 2007, for which the appellant received a sentence of nine months' imprisonment, which was wholly suspended for 18 months from 13 February 2007.[10] That offence occurred when the appellant stopped his truck in the middle of the Monash Freeway in front of his wife's car in an attempt to stop her from leaving him. The offence occurred some months after their first child had died of SIDS. The suspended sentence expired in August 2008, about three months before the current offence.[11]

11 The appellant initially pleaded guilty to the current offence, but later withdrew his plea. His Honour noted that the appellant did not accept that he was at fault, but accepted that he was deeply sorry that his actions had caused the death of another person. The judge said that he was prepared to conclude the appellant had 'a level of regret and remorse' which he would take into account in mitigation, but said that it could not be regarded as 'complete remorse'.[12] Because of the steps that the appellant had taken to rise above his very difficult childhood, his Honour found that he had 'reasonably good prospects of rehabilitation in the future'.[13]

12 The judge noted that the appellant had sustained 'very significant injuries' in the accident, and had come 'as close to dying as was possible'.[14] He had undergone a lengthy period of rehabilitation. Although the appellant had worked for a short period after he had recovered from the acute effects of the collision, he had been left with some pain and physical problems in his legs and feet. Combined with his lack of qualifications, this had reduced his employability. Prior to sentence, he was receiving a Disability Support Pension.[15]

13 His Honour said that he had taken account of the increased burden of imprisonment which the appellant would experience as a result of his injuries. He also gave weight to the fifth principle in Verdins[16] to a 'very slight' degree, because of the appellant's 'adjustment disorder with mixed anxiety and depressed mood'.[17] He also had regard to the fact that the appellant was to serve his first period of incarceration.[18]

14 His Honour accepted that the appellant's serious injuries had inflicted a measure of extra-curial punishment upon him.[19]

15 The appellant's counsel submits that because of the exceptional circumstances of this case, the sentence imposed on the appellant was manifestly excessive. The sentence was imposed on the basis that it was not known why he had strayed onto the wrong side of the road. Most of the aggravating factors commonly associated with this offence were absent. In particular, the appellant had not been observed driving erratically before the accident, was not engaged in competitive driving and was not fatigued, drunk or affected by drugs. The judge sentenced him on the basis that he did not exceed the speed limit, although he had exceeded the advisory speed applicable to the relevant stretch of road.

16 The appellant also relies upon an 'exceptional collection' of mitigating circumstances. He contends that in light of this constellation of factors, the sentence imposed was manifestly excessive. He referred to the following factors :

• the fact that the appellant's very severe injuries amounted to additional punishment,[20] and would also make his period of imprisonment more burdensome than for a person not suffering the ongoing effects of the accident;
• the fact that the appellant fell to be sentenced over three and a half years after the collision, during which period the appellant had not further offended, had worked for a period and had reunited with his wife;
• the appellant's sad and disadvantaged upbringing;
• the fact that imprisonment would be more burdensome for him because of his awareness of the difficulties being suffered by his wife and children, one of whom was disabled as the result of a stroke suffered shortly after his birth;
• the appellant's remorse and regret;
• the judge's finding that he had good prospects of rehabilitation; and
• the psychological difficulties suffered by the appellant, which would also make imprisonment more burdensome for him.

17 The appellant submits that the sentence imposed in this case is higher than any of the individual sentences imposed for this offence in previous cases, although he necessarily concedes that in most of the cases considered by this Court, the maximum penalty of five years' imprisonment applied.[21] He submits that the sentence imposed in this case was the highest which has been imposed by this Court since the maximum penalty was increased to 10 years' imprisonment.

18 The Crown submits that the seriousness of the appellant's offending called for a significant period of imprisonment. All of the mitigating factors relied upon by the appellant were taken into account by the sentencing judge. His Honour had also considered the sentences imposed in like cases, both prior to, and after, the increase in the maximum term of imprisonment for the offence. General deterrence was a very important sentencing consideration, as was specific deterrence, in circumstances where the appellant had only completed a sentence for driving in a dangerous manner only three months previously.

19 As this Court has frequently said, the ground of manifest excess is difficult to sustain.

20 In this case, the judge was required to take account of many competing sentencing considerations. The appellant had a very harrowing and difficult childhood and has tried hard to overcome his disadvantages. He has lost a baby to SIDS, and one of his other children is disabled. His time in prison will be made more difficult by his knowledge of the problems his family is facing, as well as by his physical disabilities.

21 On the other hand, the judge correctly treated the appellant's conduct as a serious example of the offence of dangerous driving causing death. The appellant was a mature man, who was an experienced driver. Although he was neither drunk nor affected by drugs, he crossed double lines on a blind curve.

22 DPP v Janson[22] was the first DPP appeal against sentence following the increase of the maximum penalty for dangerous driving causing death to come before this Court. In that case, the respondent was an experienced truck driver whose prime mover collided with the victims' car after crossing an intersection against a red light, killing two child passengers and injuring three others. Although he was not affected by drugs, alcohol or fatigue, he failed to see the traffic lights before he entered the intersection, because of a lapse in attention lasting about 10 seconds.

23 The Court regarded the respondent's culpability in that case as relatively high because of the weight of the truck, the fact that it was travelling at 70 kilometres per hour and his awareness that there were controlled intersections in that area. It held

that the total effective sentence of three years' imprisonment, wholly suspended for three years, for the two counts of dangerous driving causing death, was manifestly inadequate.[23]

24 The respondent in that case was genuinely remorseful, pleaded guilty to the offences, had no prior offences and good prospects of rehabilitation and suffered from moderate depression as a result of the accident.

25 Nettle JA, who delivered the main judgment, accepted that the mitigating factors, including the hardship which the respondent would suffer in being sentenced to an immediate custodial term, rather than a suspended sentence, justified the imposition of a lesser sentence than would otherwise be warranted. The respondent was sentenced to two years and six months' imprisonment on each count of dangerous driving causing death.[24]

26 By contrast to the respondent in Janson, the appellant has a prior dangerous driving conviction, which required his Honour to place significant weight on specific deterrence. The increase in the maximum penalty for this offence from five to 10 years' imprisonment indicates Parliament's view of its seriousness. As this Court has frequently said, general deterrence is 'an important consideration in sentencing for all forms of dangerous driving causing death, including "lower level" forms of the offence'.[25] The appellant cannot rely on the utilitarian benefits of a guilty plea. As is almost invariably the case, the offence has had profound effects on the victim's family, whose victim impact statements describe the immense grief and trauma they have suffered as the result of the death of a loved and loving son, brother and uncle.

27 The appellant's imprisonment will be burdensome for him because of the effects of his lung problems and orthopaedic injuries, and for the other reasons discussed by the sentencing judge. His injuries also amount to a form of extra-curial punishment. However, his Honour took account of all relevant mitigating factors. In my view, the sentence imposed fell within the reasonable exercise of his Honour's sentencing discretion.

[1] Crimes Act 1958, s 319.

[2] DPP v Howton (Unreported, County Court of Victoria, Judge Tinney, 11 May 2012) ('Reasons') [13].

[9] Ibid [72]. For instance, on 24 October 2001, the appellant appeared before the Dandenong Magistrates' Court on 12 charges, including driving an unregistered motor vehicle, unlicensed driving, learner driving without an experienced driver and without 'L' plates displayed and speeding. His Honour noted that similar offences were dealt with by the Seymour Magistrates Court on 17 September 2004: ibid [72].

[14] Ibid [85]. The appellant had lacerations to his liver and spleen and serious leg injuries. An Outpatient Letter from Dr Charles Pilgrim reported that the appellant's thoraco-abdominal functioning had returned to normal, but he had ongoing orthopaedic problems.

[16] R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; (2007) 16 VR 269.

[20] Barci v The Queen (1994) 76 A Crim R 103, 11; Delzoppo v The Queen [2011] VSCA 141, [18]-[22].

[21] He refers to R v Towle [2009] VSCA 280 (sentence of three years and six months' imprisonment for each of six counts of dangerous driving causing death, plea of not guilty). See also DPP v Oates [2007] VSCA 59 (two year community based order, plea of guilty, cause of accident was momentary inattention, offender was truck driver, who took steps to reduce fatigue prior to accident, offender suffered from flashbacks and symptoms consistent with post-traumatic stress disorder), DPP v Neethling [2009] VSCA 116; (2009) 22 VR 466 (sentence of two years and seven months' imprisonment to be served in a Youth Justice Centre, imposed on offender who was 18 year old inexperienced driver, accident occurred in wet road conditions, guilty plea, genuine remorse and good character), Rooke v The Queen [2011] VSCA 49 (sentence of three years' imprisonment on offender aged 24 years at time of accident, plea of not guilty, offender injured and remorseful), Pesa v The Queen [2012] VSCA 109 (sentence of three years and six months' imprisonment imposed on offender aged 21 years at time of accident, plea of not guilty, delay, judge took account of burden of imprisonment and Verdins factors) and Rodi v The Queen [2011] VSCA 48 (sentence of three years and three months' imprisonment, with non-parole period of 18 months, imposed on offender who was aged 18 at time of offending and 21 at time of sentence, plea of not guilty, competitive driving).

[22] [2011] VSCA 19; (2011) 31 VR 222 ('Janson').

[23] Nettle JA and Kyrou AJA. Neave JA also considered that the sentences imposed were manifestly inadequate, but held the Court should exercise its discretion not to re-sentence the appellant.

[24] The other case is Veerman v The Queen [2012] VSCA 194, where a sentence of three years and six months' imprisonment imposed after the maximum was increased was not challenged on appeal. The appellant in that case had a mental illness and had pleaded guilty to dangerous driving causing death and other offences.

[25] Janson [2011] VSCA 19; (2011) 31 VR 222 [30] (Nettle JA, Kyrou JA agreeing).