Johns v The Queen [2020] VSCA 135

CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal against sentence - Judge applied wrong test under Sentencing Act 1991 s 10A(2)(e) when considering whether 'special reasons' existed to justify imposing non-parole period of less than four years - Whether error constituted 'error in the sentence' for purpose of Sentencing Act 1991 s 281(a) - Whether error was 'material' and vitiated sentencing discretion - Kentwell v The Queen (2014) 252 CLR 601 considered - Whether inadequate order for concurrency - Whether sentence manifestly excessive - Application for leave to appeal granted - Appeal dismissed.

1 On 23 May 2014, a Toyota Camry car, driven by the applicant, collided with a truck and tanker trailer carrying 35,000 litres of canola oil driven by Robert Stocks (the victim). The collision occurred on the Wimmera Highway around 17 km east of Edenhope in Western Victoria. The two vehicles were travelling in opposite directions on an open stretch of highway.

2 The applicant later told police that she thought she was travelling at 100 km an hour at the point of collision. The victim estimated that the speed of his truck was 95 km per hour. The victim said that the applicant's car came at him all of a sudden. The evidence of a police officer, Leading Senior Constable Perry ('LSC Perry'), was to the effect that the car had crossed the centre line and collided with the front right-hand side of the truck.

3 The force of the collision tore the tyre off the front wheel on the right-hand side of the truck and the victim lost control of his vehicle, which veered across the road and rolled, causing him serious injury and extensive damage to the truck and trailer. The injuries sustained by the victim included a severe laceration to the scalp and the fracture of two vertebrae in his neck.

4 Both the truck and tanker were beyond feasible repair and were written-off. The truck belonged to a long haul transport company for which the victim had worked for 15 years. The cost of the damage to the truck and trailer was in the order of $900,000.

6 The applicant was charged with a number of offences arising from the collision and stood trial in the County Court before Judge Ryan and a jury. The prosecution alleged that the applicant had deliberately veered into the oncoming lane with the intention of destroying or damaging the truck[1] and either intentionally,[2] recklessly[3] or negligently[4] causing serious injury to the victim.

7 The applicant and the victim were known to each other and had been in a sexual relationship for some time. The relationship had produced a daughter who was four years old when the applicant was sentenced.[5] The nature of the relationship between the applicant and the victim was a matter of significant discord between them. The victim regarded it as no more than a physical or sexual relationship, which appeared to have upset and angered the applicant who, one witness said, was besotted with the victim.

8 When the victim was driving his truck the applicant would regularly follow him in her car and would turn up at his home.

9 The day before the collision, the applicant followed the victim to Melbourne and stayed the night in her car at the Rockbank service station.

10 On the day of the collision, the victim was driving to Naracoorte and saw the applicant overtake him in her car three times on the Western Highway before Ballarat. On the Wimmera Highway, the victim stopped for a break in a parking bay at Mount Arapiles and was approached by the applicant. The applicant threw the remote control to his garage at him, told him she was pregnant, yelled 'I'll kill you' and sped away towards Naracoorte. The applicant resumed his journey towards Naracoorte.

11 At a later point on the Wimmera Highway, the victim observed two oncoming vehicles. The first was driven by a policeman and the second was the applicant's car. The driver of the police vehicle, Leading Senior Constable Darren Ferluga ('LSC Ferluga'), had shortly before observed a blue Toyota parked on the side of the road at Muddy Lake Road, around three kilometres from the collision scene.

13 LSC Ferluga arrived at the scene within minutes of the collision and observed significant damage to the applicant's car. The front right wheel and suspension were missing, the driver's side panel and doors had been peeled away from the vehicle and both air bags had been deployed. The truck trailer was blocking most of the highway and was lying on its side. The truck itself was upright, but the cabin was severely damaged, and the right steering tyre was missing. Incredibly, both the applicant and the victim were able to stand up after the collision.

14 The victim said that after the collision, when he had just 'woken up' in the truck, the applicant was yelling and screaming - 'Robert, Robert, I didn't mean it' - and he told her to go away.

15 The applicant was interviewed by police the following day and denied any memory of the accident or how it was caused. The victim gave a statement to police a month after the collision. LSC Ferluga gave evidence that in his first statement the victim had denied being in a sexual relationship with the applicant.

16 The prosecution relied on the evidence of the victim and LSC Perry to establish that the applicant's car had veered into the oncoming lane and collided with the truck. LSC Perry, over objection, was permitted to give expert evidence of his opinion as to the point of impact. He opined that the point of impact of the collision was at a point approximately 75 cm into the westbound carriageway of the highway, thus putting the applicant's vehicle on the wrong side of the road at the time of collision. We note that, as originally formulated, ground 1 of the application for leave to appeal against conviction challenged the admissibility of the evidence of LSC Perry. That ground was abandoned before the hearing.

17 The prosecution also sought to prove that the applicant had recently threatened the victim, including by threatening to drive into his truck.

18 According to the victim, when he told the applicant that there was not anything more to their relationship than sex the applicant got 'nasty' and 'abusing' and 'quite often' said 'If I can't have you nobody's going to have you' and that she meant she was going to 'take me out, kill me', by ramming her car in front of his truck. He said that the applicant had said 'I'll take you out. I'll wait until you've got a load of petrol and I'll take you out'.

19 Shortly before the collision, the victim received a text message from the applicant which said: 'If you get out of this, I hope you have a miserable and painful life and you will never forget it.'

20 Another truck driver, Gregory McIntyre, gave evidence that the applicant was besotted with the victim but her feelings were not reciprocated. He said the applicant had expressed anger towards the victim, saying that 'if she couldn't have him, nobody would', that she would 'take him out ... take the truck out' by 'driving straight into him' and that she had told him this only a few weeks prior to the collision.

21 The victim's step daughter gave evidence that the applicant had said that 'if she [the applicant] couldn't have him, no one will'.

22 There were four charges on the indictment. Charges 1 to 3 were alternative charges relating to the injury caused to the victim and charge 4 related to property damage to the truck and trailer. The applicant was convicted of charges 2 and 4.

23 Charge 2 alleged that the applicant recklessly caused serious injury to the victim in circumstances of gross violence.[6] By way of particulars to the allegation of gross violence, it was said that the applicant:

(a) planned in advance to engage in conduct and at the time of planning was reckless as to whether that conduct would cause serious injury; and

(b) planned in advance to have with her and to use an offensive weapon and in fact used that offensive weapon to cause the serious injury.

24 At trial, only the second of the bases for gross violence was relied on.

25 Charge 4 alleged that the applicant intentionally, and without lawful excuse, destroyed property, namely, the truck and trailer.[7]

26 As noted, the applicant was acquitted on the alternative charges 1 and 3. Charge 1 alleged that the applicant had intentionally caused serious injury to the victim in circumstances of gross violence[8] with equivalent particulars of gross violence.

27 Charge 3 alleged that by negligently driving a motor vehicle the applicant had caused serious injury to the victim.[9]

28 There were originally two proposed grounds of appeal in relation to conviction. The first ground concerned the admissibility of the evidence of LSC Perry under s 79 of the Evidence Act 2008 and was abandoned, as noted earlier.

The jury verdict was unsafe and unsatisfactory, where there was a marked disparity between the size and weight of the Applicant's car and the victim's truck and trailer such that it was not open to the jury to find that by consciously voluntarily and deliberately colliding with the victim's truck and trailer she:

(a) foresaw the likelihood that the collision would cause serious injury to the victim; or

(b) when planning her conduct, she either intended, was reckless that or foresaw it was more likely than not, her conduct would cause a serious injury to the victim.

30 The principles that apply to a ground that alleges the verdict is unreasonable or cannot be supported having regard to the evidence[10] are well established. This Court is required to review all of the evidence and make an assessment as to whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty; this question is derived from M v The Queen.[11] The Court must make its own independent assessment of whether, on the evidence, there is a reasonable doubt as to guilt, giving full weight to the jury's advantage in seeing and hearing the witnesses.

31 The submissions in relation to ground 2 had a narrow focus. They were solely concerned with whether it was open to the jury to be satisfied, to the criminal standard, as to the mental element required to sustain the conviction for recklessly causing serious injury. It was not submitted that it was unsafe for the jury to be satisfied as to the other elements of charge 2.

32 The applicant submits that, given the marked disparity between the size of the two vehicles, it was not open to the jury to infer that the applicant knew that the truck driver would probably sustain serious injury in the collision with a car. She submits that given the size of the truck and tanker, which the owner of the trucking company said had a combined weight of 'up to 65 tonnes', it was a matter of common sense that the car would come off second best. Rather than injury to the truck driver being a probable result, it was more likely that the driver of the car would be at grave risk of injury and the truck driver would be protected by the bulk of the truck.

33 The respondent submits that the question of intent involved a subjective test relating to the applicant's actual state of mind. The respondent submits that the threats made by the applicant towards the victim indicated that it was the applicant's intention to kill or seriously injure him. In those circumstances, it was reasonable to conclude that, at the very least, the applicant foresaw that she would probably cause serious injury to the victim if she proceeded with her plan.

34 The defence case at trial was that the prosecution had not established that the car had crossed into the oncoming lane. In that regard, the defence contended that the victim was unreliable, including by reason of his initial denial to police that he had been in a relationship with the applicant, his own desire to avoid any blame for the accident and because of his generally poor recall. It was also said that LSC Perry's evidence should not be accepted because there had been no reconstruction of the collision and no technical evidence, with the prosecution only relying on two rough sketches of the scene produced by LSC Perry.

35 In relation to intent, the applicant's counsel said during his closing address that based on common sense the prosecution case was not plausible. He said:

For example, does it sound plausible to you that a pregnant, single mother would drive her Camry into a 45 tonne Mack truck with the intent to cause a serious injury? Does that sound plausible? What does your common sense say about that? A Camry should have no chance against the truck. It's kind of common sense. If your outcome was to achieve the infliction of a serious injury - and you've seen the photos of this truck, you've seen that bull bar - driving your Camry into that bull bar isn't the way that you're going to do it.

So we're already discussing the main charge, but you can see that one way of looking at it, and using your common sense is, you might say that just doesn't sound very plausible.

Likewise with respect to the criminal damage charge, driving your car into the massive bull bar of a big Mack truck might not be the way that you go about causing damage to a truck. So again, you might think, 'That just doesn't sound very plausible to me'.

36 The judge identified the five elements that the prosecution needed to prove beyond reasonable doubt in order to establish guilt on each of the charges, including charge 2. They were reduced to writing and provided to the jury, with the concurrence of trial counsel, in the following terms:

1. The complainant suffered a serious injury; and

2. The accused caused the complainant's serious injury; and

1. The accused was aware that her acts would probably cause serious injury to the complainant; and
2. The accused caused the complainant's serious injury in circumstances of gross violence; and

5. The accused acted without lawful justification or excuse.

37 On the question of the mental element of recklessness with respect to charge 2, the judge directed the jury as follows:

The third element relates to the accused's state of mind. The prosecution must prove beyond reasonable doubt that at the time the accused did the acts that you find caused the complainant's injury, she was aware that those acts would probably result in the complainant being seriously injured, but decided to go ahead anyway. That is the accused knew that Mr Stocks was likely to be seriously injured by her actions.

It is not sufficient to have known that it was possible that Mr Stocks would be seriously injured. She must have known that the consequence was probable. It is also not sufficient for the accused to have known that it was probable that Mr Stocks would be injured by her actions. For this element to be met, the accused must have known that it was probable that her acts would seriously injure Mr Stocks.

In determining this part of the test, you must be satisfied the accused herself actually knew the probability of Mr Stocks' injury. It is not enough that you or a reasonable person would have recognised that likelihood in the circumstances.

38 The question of intent was to be answered based on inferences drawn from established facts. Contrary to the submissions of the applicant, the applicant's intent at the time of the collision was not to be inferred only from the objective difference in mass between the two vehicles. The jury was entitled to rely on all of the evidence, including the threats the applicant had made in relation to the victim, her behaviour on the day of the collision, including the altercation with the victim in the parking bay at Mount Arapiles and overtaking the truck, and the evidence of LSC Ferluga that he had seen a blue Toyota sedan pointing towards Horsham not far from the point of impact. The speed at which the vehicles were travelling and the nature of the collision - head-on, on the open highway - were also highly relevant. All of these matters were relevant to the applicant's state of mind and what she knew as to the likely consequences of her actions.

39 Although the risk of injury to the driver of the car was obvious and, it may be thought, likely to be of a greater magnitude than the risk to the driver of the truck, the issue for the jury was not which of the two drivers bore the greatest risk of injury. The issue was whether the applicant knew the truck driver would probably be seriously injured. The jury was correctly directed that this involved an assessment of whether they were satisfied beyond reasonable doubt that the applicant knew that serious injury was probable or likely.[12]

40 In our view, it was well open to the jury to conclude that the applicant knew that the collision would probably cause serious injury to the victim. It was well open to the jury to conclude that a high speed, head-on collision on the open road between a truck and a car was probably going to result in serious injury to all of those involved, regardless of the comparative size of the vehicles. There was also evidence that the applicant had previously threatened that she would harm the victim by driving into his truck. There was, of course, the chance that the truck driver would be uninjured; he might have escaped unscathed. There were, however, extremely strong grounds for the jury to conclude that the applicant knew that serious injury to the truck driver was the likely result of her actions.

41 The applicant submits that, because the jury accepted on charge 4 that the applicant intended to damage or destroy the truck but did not accept on charge 1 that she intended to seriously injure the truck driver, there must have been a doubt as to her state of mind in relation to injury. We reject that contention. The jury was well able to differentiate between intention in relation to damage or destruction of the truck and intention in relation to injury to the truck driver.

42 Although the jury must have been satisfied that the applicant intended to veer into the path of the oncoming truck, the jury needed to independently consider whether the applicant intended to seriously injure the truck driver, or foresaw that serious injury was probable and proceeded in any event. The conclusion the jury reached on charge 2 was well open to it.

44 The applicant sought, at the hearing of the application, to add a further proposed ground to the effect that charge 4 on the indictment alleged that the applicant intended to destroy the truck, whereas the judge directed the jury that charge 4 could be established by an intent to damage or destroy the truck.

45 The offence provision, s 197 of the Crimes Act, relevantly provides:

(1) A person who intentionally and without lawful excuse destroys or damages any property belonging to another or to himself and another shall be guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).

...

(4) For the purposes of subsections (1) and (2) a person who destroys or damages property shall be taken as doing so intentionally if, but only if -

(a) his purpose or one of his purposes is to destroy or damage property; or

(b) he knows or believes that his conduct is more likely than not to result in destruction of or damage to property.

...

46 The trial was run on the basis that charge 4 covered an intention to either damage or destroy the truck.

47 As already noted, with the concurrence of the parties, the judge gave the jury a document which set out the elements of each of the charges. The following elements were identified in relation to charge 4:

1. The accused damaged or destroyed property; and

2. The property belonged to another person; and

1. The accused purposefully damaged or destroyed the property, or knew or believed the damage or destruction was the likely result of his or her actions; and
2. The accused had no lawful excuse for damaging or destroying the property.

48 The judge directed the jury, without exception, that the critical elements in dispute were the first and the third of those elements and that the jury needed to consider whether the applicant had damaged or destroyed the property. In that regard, the defence case was that the jury could not be satisfied that the applicant had crossed the centre line and thereby caused the collision. At no point did the applicant seek to make a distinction between damage and destruction of property. For example, she did not submit that the jury might find that she intended to damage the truck but did not intend to destroy it. Obviously enough, there was no forensic point to be made by drawing that distinction.

49 Had any disconformity between the charge as set out in the indictment and the way the case was run been identified at trial, it would have been a simple matter for the indictment to be amended.

50 Although the way the case was run on charge 4 did not reflect precisely the terms of the indictment, there was no substantial miscarriage of justice and the point was not taken below. We refuse leave to amend the application to add the proposed ground.

51 At the hearing, counsel indicated that if the Court granted leave to allow the applicant to add the proposed ground, the applicant also sought leave to add a related ground in relation to sentence. Given that we have refused leave to add ground 3, this point falls away.

52 The application for leave to appeal against conviction must be refused.

53 The applicant relies on three proposed grounds of appeal with respect to sentence:

(a) the judge erred by applying the wrong test under s 10A(2)(e) of the Sentencing Act 1991 (the 'Sentencing Act') when considering whether 'special reasons' existed to justify imposing a non-parole period of less than four years;

(b) the judge should have imposed a large, if not complete, degree of concurrency in relation to the sentence imposed for the two charges; and

(c) the head sentence imposed was outside the permissible range, the non-parole period was excessive and the judge failed to give sufficient weight to the applicant's previous good character and her prospects of rehabilitation.

Recklessly causing serious injury in circumstances of gross violence (Crimes Act s 15B)

(Crimes Act s 197)

55 The judge outlined the circumstances of the offending and noted that the impact of the applicant's conduct on the victim had been profound:

He is heavily medicated for pain relief that appears to have little effect on him. His pain, stiffness and restriction of movement means that he no longer lives a normal life. He has lost his job as a truck driver. His constant and severe pain cause him sleeplessness. He experiences fatigue. He experiences flashbacks of the collision. He has lost the ability to concentrate and his memory has been adversely affected. His is depressed and has no interest in life. He has been obliged to spend money altering his home to accommodate his present state of ill health, and he finds that he is forgetful as well as being fearful of leaving his home.[13]

56 The judge also noted the impact of the property damage on the trucking company. The judge received victim impact statements from the owner of the business and his son who managed it. The owner of the business assessed the loss to the business as being in the order of $899,560. The loss compelled the owner to contribute a large part of his life savings to the business to allow it to continue to operate, causing him understandable anxiety.[14]

57 The applicant relied on a report of psychologist Warren Simmons dated 8 November 2018 which set out the applicant's history and the background to the offending.

58 The applicant described her childhood as 'alright', noting the family had struggled financially. She said that she was close to her parents and while they were reasonable in their expectations, punishment was often physical and involved being struck with a belt. She said that at around the age of eight she and one of her sisters were molested by a neighbour who would touch them inappropriately on an almost daily basis.

59 The applicant said that she had repeated year 10 twice, started getting into trouble for smoking and talking back and was asked to leave school at the age of 15. Her intellectual ability was assessed as being 'at the lowest average range without being in the disabled area'. She said that she could only read and write to a certain extent.

60 After leaving school, she had worked at various road houses and then moved in with a truck driver with whom she had a son. That relationship lasted for some six years and she left due to domestic violence. After a motor vehicle accident in 1998 she cared for her son full-time. In 2007, she began cleaning hotel rooms while she completed a Certificate III in Aged Care. She worked full-time in aged care from 2009 until the end of 2016 when she could no longer work. She had two hip replacements in 2018.

61 She was involved in a motorbike accident in 2000 and in 2002 had an unexplained episode of paralysis, which was treated with steroids. There was no significant psychiatric history or history of substance abuse. The applicant said that she had difficulties sleeping and was constantly thinking about her daughter, frequently becoming tearful when discussing this. She described her mood as 'annoyed and hurt'.

62 The report concluded that there was 'little likelihood' of re-occurrence of the offending behaviour given the applicant's history, the very specific nature of the offence and the fact that the victim was her partner at the time.

63 The sentencing judge also considered references concerning the applicant,[15] information about the health of her parents and the difficulties they faced in caring for her daughter[16] and a report from a paediatrician about her daughter.[17]

64 An important aspect of the plea was the impact that incarceration would have on the applicant's four year old daughter. The judge accepted that the applicant is a caring mother to her children and a loving and caring sister and daughter. He also noted that she is a reliable, punctual and enthusiastic worker within the aged care industry in which she worked.[18]

65 The judge noted that the applicant's daughter has been affected by the realisation that her mother will not be able to return home for some time, resulting in her being physically aggressive, sleeping poorly and suffering from nightmares. The paediatrician noted that she has trouble with talking in sentences and most of her words are not clear. She was yet to be seen by a speech pathologist at that stage.

66 The judge noted that the applicant's parents, who care for her daughter, were elderly. Her father, aged 77, is in very poor health, and on medication for kidney disease, heart disease, asthma, blood pressure and pain relief.[19] Her mother is also in very poor health and is medicated for high blood pressure, thyroid deficiency, gastric reflux and stroke prevention, amongst other ailments.[20] The applicant's mother has moved from her home to the applicant's home in order to care for the applicant's daughter in her own home.[21] This has meant leaving the applicant's father at their home, alone.[22] The constraints of distance and cost make it unlikely that the applicant's parents will be able to take the applicant's daughter to visit her in prison.[23]

Ground 1: Error in relation to ss 10(1) and 10A(2)(e)

67 The applicant's conviction on charge 2, of causing serious injury recklessly in circumstances of gross violence pursuant to s 15B of the Crimes Act, brought into play s 10 of the Sentencing Act, which required the judge to impose, under s 11, a non-parole period of not less than four years for that offence unless the judge was satisfied that a special reason existed for not doing so.

68 At the relevant time, s 10A(2)(e) provided that for the purpose of s 10, a court could make a finding that a special reason existed if - ...

(e) there are substantial and compelling circumstances that justify doing so.

69 The provision was amended by s 79(5) of the Justice Legislation Miscellaneous Amendment Act 2018 to add the words 'that are exceptional and rare and' so as to make the provision read:

(e) there are substantial and compelling circumstances that are exceptional and rare and that justify doing so.[24]

70 The amendment, which provides a stricter test for departing from the mandatory non-parole period, commenced on 28 October 2018 and did not apply to the applicant. However, both the parties, and the judge, proceeded on the erroneous basis that the stricter test applied.[25]

71 The applicant submitted to the judge that a special reason existed, which meant the mandatory non-parole period of four years did not apply. That submission was, as noted, based on the stricter test. The relevant extract from the reasons for sentence is as follows:

1. In respect to Charge 2, Mr Lowy submitted that there were substantial and compelling circumstances that are exceptional and rare and that justify not imposing the minimum non-parole period prescribed for the offence of causing serious injury recklessly in circumstances of gross violence. (See s.10A(2)(e) of the Act).
2. The matters relied upon by Mr Lowy were:
   • your poor health, having undergone a double hip reconstruction last year and the pain that you continue to suffer as a result of these procedures when coupled with your osteoarthritis;
   • the poor management of your pain and physical health whilst at the Dame Phyllis Frost Centre on remand;
   • your low intellect;
   • the delay in the prosecution of this matter which is not in any way referable to you;
   • your prior good character;
   • the effect on your daughter and your parents as a result of your imprisonment;
   • the effect on you of separation from your daughter as a result of your imprisonment;
   • the trauma that you have experienced in your life, being both sexual and physical abuse; and
   • your low risk of reoffending.
3. Whilst all of these matters are factors that impact on both the fixing of a head sentence and a non-parole period, and may in combination not be aptly described as 'run of the mill' factors, they do not meet the threshold set by s 10A(2)(e) of the Act.
4. Should I be wrong in my assessment of the matters relied upon by your counsel, then should I have been considering a sentence in respect to Charge 2 alone, the application of sentencing principle would have resulted in a non-parole period in the order of 4 years.

72 Whatever the approach, the applicant submits that it was necessary for the judge to first consider and apply s 10(1), including whether special reasons existed, before arriving at the sentence or the non-parole period. On that argument, it was essential for the judge to correctly construe and apply both s 10 and s 10A(2)(e) as part of the process of arriving at any sentence. Although not advanced specifically, underpinning the applicant's argument was a further contention that any assessment of the seriousness of the offending would be informed by the operation of s 10(1) and the existence of any substantial and compelling circumstances that justified departure from it.

73 We do not accept that submission. In short, there is no expressly mandated sequence for the consideration of s 10(1) and s 10A and none should be implied.

74 The starting point is the provisions of the CPA, which set out the jurisdiction and powers of this Court on an application for leave to appeal against sentence.

75 Under s 278 of the CPA a person sentenced for an offence may, with leave, appeal to this Court against the sentence imposed. Section 280 provides that this Court may refuse leave to appeal if there is no reasonable prospect that: (a) this Court would impose a less severe sentence than the sentence first imposed; or (b) reduce the total effective sentence despite there being an error in the sentence first imposed. Section 281 deals with appeals, in the event that leave is given.

76 For reasons that we can express in short order, this is not a case where we would refuse leave to appeal. It is common ground that the judge applied s 10A(2)(e) in its wrong form. The issue is what, if anything, flows from that mistake and whether it would, or might be, an 'error in the sentence' for the purpose of s 281. Rather than determine the nature of the mistake on the leave application or consider hypothetically whether there is a reasonable prospect that this Court might alter the sentence if leave were granted, it is appropriate to grant leave to appeal and apply s 281 in accordance with its terms.

77 Section 281 provides that, on an appeal under s 278, this Court must allow the appeal if the appellant satisfies the Court that: (a) there is an error in the sentence first imposed; and (b) a different sentence should be imposed. Two points may be noted. First, s 281 only applies where there has been a grant of leave to appeal. We have addressed that issue and there will be a grant of leave. Second, in the event that error is found and this Court must resentence the person, this Court must arrive at the sentence that it considers should be imposed.

78 The type of error to which s 281 refers is that explained by the High Court in House v the King.[26] In Kentwell v The Queen, a case concerning criminal appeal provisions in New South Wales, the High Court considered the operation of s 6(3) of the Criminal Appeal Act 1912 (NSW), which provided:

On an appeal ... against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.[27]

The history of the provision is touched on in Lacey v Attorney-General (Qld). Notwithstanding the breadth of its language, it was settled at an early stage that the appellate court's authority to intervene is dependent upon demonstration of error. The significance to the function of the appellate court of the distinction between specific error, of any of the kinds identified in House v The King, and the conclusion of manifest excess or inadequacy is explained by Hayne J in AB v The Queen. In the case of specific error, the appellate court's power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.[28]

80 Although textually different to s 6(3), the function of this Court under s 281 of the CPA is the same. It requires first, the identification of an error of the kind described in House v The King and, where vitiating error is discerned, resentencing the applicant in the exercise of this Court's separate and independent exercise of discretion.

81 On the interpretation of s 6(3), the High Court approved the reasoning of Spigelman CJ in Baxter v The Queen[29] and continued:

When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be 'warranted in law'. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not 'warranted in law' unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion.[30]

82 The Court then went on to give an example of an error that did not vitiate the discretion, namely a failure to set a head sentence and specify a non-parole period in the order required by a statutory provision.[31]

83 The critical question is whether the error vitiated the sentence. Where there are many integers to the discretion, as there are in sentencing, it is not necessary to seek to discern whether an error in respect of part of the exercise infected the result by identifying its actual impact. The critical issue is the capacity of the error to have affected the sentence that was imposed by the judge. The sentence includes, at least, the sentence imposed on the charges and the non-parole period.[32]

84 On occasion, the word 'material' has been employed as a descriptor of the relevant type of error.[33] That does not mean that it is necessary to predict the actual effect on the sentence rather than the capacity of the error to affect the outcome. Often both the capacity of the error to affect the outcome and its actual impact on the sentence will be apparent. But it is not essential for the appeal court to be persuaded that error actually affected the result in order to exercise its discretion to resentence.

85 In Gillespie (a pseudonym) v The Queen, this Court was required to assess the effect of a judge's error in sentencing the respondent as a 'serious sexual offender'. Whelan and McLeish JJA considered that in R v Beary,[34] a case concerning an error in relation to maximum penalty, Callaway JA had applied the relevant principles in identifying materiality of the error as the central consideration. Applying those principles to s 281, they said:

A mistake of the kind made by the sentencing judge here will not be an 'error in the sentence' so as to vitiate the sentencing discretion in every case. If it can be seen that the mistake was so insignificant that it 'could not have materially affected the decision' then it will not be an error 'in the sentence'. The court must be satisfied that the mistake could not have materially affected the decision before concluding that there is no error in the sentence. If there is such error, the court must then consider whether it is satisfied that a different sentence should be imposed.[35]

86 In our opinion, in this passage, and in the reasons of Callaway JA in Beary, materiality is used in the sense we have discussed.

87 Recently, in Newman (a pseudonym) v The Queen, Basten JA said of the passage at [42] in Kentwell:

The first limb of the passage states that this Court does not assess, as a matter of fact, whether the error has influenced the outcome; what it does assess is the capacity of the error to have such an effect. An extraneous factor which does not 'guide or affect the determination' involves no miscarriage.[36]

88 In Lehn v The Queen, Bathurst CJ identified the errors that do not vitiate a sentence as being those which are 'not connected with the sentencing process or did not affect the sentencing discretion.'[37]

89 In order to determine whether the error exposed in the judge's reasons had the capacity to affect the sentence in the sense just discussed, it is necessary to consider the potential influence that s 10 and s 11 of the Sentencing Act had in this case by reference to their place in the statutory scheme and the sentencing judge's reasons.

90 The orthodox or conventional approach (absent s 10) would have required the judge to determine the correct sentence for each of the two charges and, by a process of cumulation and concurrency, arrive at the appropriate head sentence.[38] In the event that the term of imprisonment was two years or more, s 11 would then have required the judge to fix a non-parole period for the aggregate period of imprisonment (unless the judge considered it inappropriate to do so based on the nature of the offence or the history of the offender).[39]

91 Section 10(1) provides that in sentencing the offender for an offence under s 15B, the judge was required, in the absence of a special reason, to impose a term of imprisonment and fix under s 11 a non-parole period of not less than four years. If the sentencing judge determines that a non-parole period of more than four years should be imposed, then s 10(1) will have no work to do.

92 Where the non-parole period imposed would be at least four years, independently of s 10(1), any error relating to the term 'special reason' in that section would not be material. There is no reason why the judge cannot approach the sentencing task before turning to s 10(1) and applying it only if it is then necessary to do so.

93 Here, the judge said that charge 2 alone 'would have resulted in a non-parole period in the order of four years.'[40] Those words suggest that the judge tested the application of s 10(1) by considering what non-parole period he would have imposed had charge 2 stood 'alone'. Strictly speaking, that is not what s 10(1) requires where an offender is sentenced for multiple offences which include an offence under s 15A or s 15B. Section 10(1) requires that a non-parole period be fixed 'under s 11' of not less than four years. Section 11(4) requires a single non-parole period to be fixed by reference to the aggregate period of imprisonment that the offender will be liable to serve under all the sentences then imposed. Having arrived at the appropriate aggregate period of imprisonment, s 10(1) requires a minimum non-parole period of four years to be set.

94 Although the judge appears to have approached s 10(1) as if it called for an assessment of a non-parole period for the s 15B offence alone, the answer he gave demonstrates that there was never any possibility of a non-parole period for the whole of the offending of less than four years. When regard is had to the additional criminality of the conduct underpinning charge 4, we are satisfied that any error in applying the 'special reasons' provisions could not have played any role in the sentence imposed on the individual charges or in setting the non-parole period. There is no basis to consider that the judge could have found substantial and compelling circumstances which justified imposing a non-parole period of less than four years in circumstances where he concluded that five years was the minimum term of imprisonment that was required.

95 Our analysis is not affected by the issues that sometimes arise out of the legislative provisions relating to minimum non-parole periods. While those provisions may present a challenge to the orthodox approach of instinctive synthesis and the avoidance of two stage sentencing, they do not mandate a particular linear sequence in which s 10(1) is a necessary starting (or finishing) point. For example, although the mandatory non-parole period may, in a certain case, invert the process to the extent that it may force a recalibration of the head sentence, rather than the usual course where the non-parole period is fixed by reference to that sentence, as a practical matter, it will not always have that effect.[41] The applicant's submission would introduce a degree of rigidity that is inconsistent with the flexibility generally accorded to sentencing judges.[42]

96 Further, we do not accept that the error in relation to s 10A(2)(e) played any role in the judge's assessment of the gravity of the offending or the seriousness of the offence. The judge took into account the factors that demonstrated the objective seriousness of the offending. The matters relied on by the applicant to establish a special reason were expressly taken into account by the judge in the sentencing process.

97 It follows that the mistake in relation to s 10A(2)(e) was not an 'error in the sentence' for the purpose of s 281(1)(a) of the CPA. Ground 1 must be rejected.

98 The applicant submits that the judge made an 'inadequate order for concurrency'. She submits that the charges arose out of the same act and that a large, if not complete, degree of concurrency was required.

99 We reject that submission. The intentional damage to the truck and trailer was, in itself, a very serious offence. The damage caused significant loss to the trucking company and considerable emotional and financial stress for those involved in its operation. The judge was entirely correct to order a degree of cumulation to mark the separate offence. Indeed, the judge ordered that half of the sentence imposed in relation to charge 4 should be served concurrently with the sentence imposed in relation to charge 2. The extent to which the sentences were to be made concurrent was the result of a discretionary judgment on the part of the sentencing judge. In our view, no error has been identified.

100 In order for this ground to succeed, the applicant must establish that the judge imposed a sentence which was wholly outside the permissible range of sentencing options open to the judge; it is a high bar.[43] We are not persuaded that the sentence, or any of its constituent parts, were wholly outside the permissible range.

101 The applicant submits that the sentence imposed is manifestly excessive because:

(a) the head sentence was outside the permissible range;

(b) the non‐parole period was excessive;

(c) the total effective sentence failed to give sufficient weight to her previous good character; and

(d) the total effective sentence failed to give sufficient weight to her prospects of rehabilitation.

102 The applicant contends that a head sentence of six years was outside the permissible range for offending which took place on one occasion in circumstances where she had no alleged criminal history. She contends that the non-parole period did not take into account the fact that it was her first time in prison, and she had no alleged criminal history, a low likelihood of re-offending and good prospects of rehabilitation. Although the judge made reference to her previous good character[44] and said that he must 'look to [her] rehabilitation',[45] the applicant says that the judge did not give these factors sufficient weight.

103 The offending was grave. It was exceptionally dangerous conduct and it had very serious consequences. The use of a motor vehicle to inflict both serious injury and substantial property damage needed to be denounced and punished. The applicant stood her trial, and therefore did not have the utilitarian benefit of a plea, nor was there evidence of remorse.[46]

104 There is no doubt that the personal circumstances of the applicant, including the impact on her young daughter, were matters that needed to be weighed carefully. However, having regard to the maximum term prescribed and the gravity of the offending, in our view, the term of imprisonment imposed by the judge was plainly open.

105 On the application for leave to appeal against sentence, the applicant sought to rely on three medical reports obtained since the sentence was imposed, outlining the current health of her parents and their capacity to continue to care for her young daughter. The applicant relied on the reports in support of the ground that the sentence was manifestly excessive and, in the event that the appeal was allowed, in relation to any resentencing of the applicant by this Court.

106 The first report is from Dr Sabiha Rimi, dated 14 April 2020, stating that the applicant's father has multiple long term, co-morbid, chronic medical conditions. Dr Rimi notes that the applicant's mother also has significant co-morbid medical conditions and observes that it will be 'very difficult' for the applicant's parents to look after their granddaughter.

107 The second report of the same date, also prepared by Dr Rimi, relates to the applicant's mother. It records a number of longstanding, chronic medical conditions and complications, including severe arthritis with multiple joint deformity, diabetes, asthma, hypertension, hypothyroidism, bilateral peripheral neuropathy, renal disease, heart disease and eye disease. Dr Rimi notes that her joint deformities are 'worsening day by day' and that her health issues impact her life significantly. The third report, also from Dr Rimi, dated 30 April 2020, records that on 16 April 2020 the applicant's mother fell, dislocating her right hip and breaking her thigh bone, requiring surgery and extended convalescence.

108 In R v Nguyen, Redlich JA (with whom Maxwell P and Neave JA agreed) summarised the relevant principles concerning the admission of evidence on appeal of events that have occurred since sentence:

It is common ground that this Court may, in limited circumstances - sometimes described as 'rare and exceptional' - permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:

(i) the new evidence must relate to events which have occurred since the sentence was imposed;

(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;

(iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;

(iv) the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;

(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and

(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.

The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.[47]

109 With two possible exceptions, the evidence simply reiterates the state of affairs that was known to the judge and accepted by him: incarceration will mean that the applicant's daughter will be looked after by her grandparents who are elderly, suffering from serious chronic ill health and may not be able to sustain a caring role for their granddaughter. In the main, the evidence does not relate to events that have occurred since the sentence was imposed nor do the reports throw light on the true significance of the facts known at the time of sentence. None of it is fresh evidence and it cannot be adduced on the current application.

110 The first possible exception is the serious injury suffered by the applicant's mother. Although this event post-dated the sentence, it fell within the type of circumstances that it was reasonable to assume were contemplated by the judge and taken into account, namely that her health may deteriorate so as to prevent her from fulfilling an ongoing, active caring role. Whether that was by a worsening of chronic conditions or an acute episode does not make a difference for present purposes.

111 The second possible exception is the heightened risk which COVID-19 poses to the elderly in the community, including the applicant's parents. In our view, this evidence falls into the same category as the evidence relating to further injury in the sense that the judge was already cognisant of the ill-health of the applicant's parents.

112 Even allowing for the fact that the acute hip and leg injury and the risk posed by COVID-19 are new events, point (iii) of the summary in Nguyen would prevent this evidence being admitted on the present application to establish that the sentence was excessive or affected by some other error.

113 In R v Babic, Brooking JA (with whom Winneke P and Ashley AJA agreed) said this:

Evidence of an event occurring after sentence which is said to make the sentence passed excessive will not be received, the correct analysis being, in my view, not that the evidence will not be received as a matter of discretion, but that it will not be received because it is not admissible.

The suggestion that some subsequent event has made a sentence, appropriate when passed, excessive is a matter for consideration by the Executive in the exercise of the prerogative of mercy, not by an appellate court ...[48]

114 To similar effect, in R v WEF, Winneke P (with whom Charles JA and Hampel AJA agreed) added:

However, this court has recognised that there is a rare exception to this otherwise fundamental rule. The court will receive evidence of events occurring after sentence, in appropriate circumstances, if those events can be said to be relevant, not so much per se, but because they throw a different light on circumstances which existed at the time of sentence.[49]

115 The evidence does not throw a different light on the critical issue. The evidence is inadmissible to establish a ground of appeal.

116 As none of the grounds have been made out, there is no occasion to receive the fresh evidence on resentence.

117 We would grant leave to appeal against sentence, but the appeal must be dismissed.

[1] Charge 4. The indictment itself referred to destruction only, which is considered below.

[5] DPP v Johns (Unreported, County Court of Victoria, Judge C Ryan, 8 February 2019), [24] ('Reasons').

[6] Crimes Act 1958 s 15B ('Crimes Act').

[7] Ibid s 197.

[8] Ibid s 15A.

[9] Ibid s 24.

[10] Criminal Procedure Act 2009 ('CPA') s 276(1)(a).

[11] (1994) 181 CLR 487; [1994] HCA 63.

[12] R v Crabbe (1985) 156 CLR 464; [1985] HCA 22; R v Campbell [1997] 2 VR 585.

[26] (1936) 55 CLR 499, 504-5; [1936] HCA 40 (Dixon, Evatt and McTiernan JJ).

[27] Kentwell v The Queen (2014) 252 CLR 601, 615 [34]; [2014] HCA 37 (French CJ, Hayne, Bell and Keane JJ) ('Kentwell').

[28] Ibid 615 [35] (French CJ, Hayne, Bell and Keane JJ) (citations omitted).

[29] [2007] NSWCCA 237; (2007) 173 A Crim R 284, 287 [19]; [2007] NSWCCA 237.

[30] Kentwell (2014) 252 CLR 601, 617-8 [42]; [2014] HCA 37 (French CJ, Hayne, Bell and Keane JJ) (citations omitted).

[32] Ludeman v The Queen [2010] VSCA 333; (2010) 31 VR 606, 613-15 [50]-[55], 616 [62]-[65], 619-21 [82]-[86]; [2010] VSCA 333 (Ashley and Redlich JJA); DPP v Jones (a pseudonym) [2013] VSCA 330; (2013) 40 VR 267, 273-6 [15]-[23]; [2013] VSCA 330 (Redlich and Priest JJA); Hawke v The Queen [2019] VSCA 276, [23]-[25], [32]-[34] (Maxwell P and Beach JA).

[33] See, eg, Harding v Western Australia [2015] WASCA 27, [36]-[40] (Martin CJ), [73] (Mazza JA).

[34] (2004) 11 VR 151; [2004] VSCA 229 ('Beary').

[35] [2018] VSCA 151, [53].

[36] [2019] NSWCCA 157, [12].

[37] [2016] NSWCCA 255; (2016) 93 NSWLR 205, 215 [66]; [2016] NSWCCA 255.

[38] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616, 624 [26]; [2004] HCA 15 (Gummow, Callinan and Heydon JJ) ('Johnson').

[39] Sentencing Act ss 11(1) and (4).

[41] Esmaili v The Queen [2020] VSCA 63, [61]-[62] (Priest and Kyrou JJA). See also DPP v Hudgson [2016] VSCA 254, [6] (Weinberg, Whelan and Priest JJA). As to issues which arise when there are two or more offences, see Mammoliti v The Queen [2020] VSCA 52, [40]-[41] (McLeish and Emerton JJA), [73] (Croucher AJA).

[42] Johnson [2004] HCA 15; (2004) 78 ALJR 616, 624 [26]; [2004] HCA 15 (Gummow, Callinan and Heydon JJ).

[43] See, eg, Maddocks v The Queen [2020] VSCA 47, [47] (Beach and Weinberg JJA).

[44] Reasons [32]. The applicant's prior good character was one of the matters which the judge identified as being relied upon by trial counsel.

[47] [2006] VSCA 184, [36]-[37] (citations omitted) ('Nguyen').

[48] [1998] 2 VR 79, 80-1 (citations omitted).

[49] [1998] 2 VR 385, 388-9.