2 I agree for the reasons given by Mandie JA that the application for leave to appeal against conviction should be refused.

3 In R v De Montero[1] this Court was faced with the same argument that a misdirection as to the elements of the statutory alternative of dangerous driving affected the jury's assessment of the more serious charge of culpable driving. In De Montero the complaint was that the effect of the judge's direction on the alternative count was apt to conflate that offence with the offence of culpable driving, and so deprive the applicant of the jury's fair consideration of the latter offence. Here the complaint is that the errors had so diminished the seriousness of the alternative count that it was not a 'realistic alternative'. The direction on the culpable driving count was unexceptional, as it was in De Montero. As the Court recognised in De Montero:[2]

Once the jury had concluded that it was satisfied of the applicant's guilt on the more serious charge, the statutory alternative did not fall for consideration. As is the invariable practice, the jury was asked how it 'found' the accused on the count on the presentment. The jury was, therefore, not required to consider or return a verdict on the statutory alternative.

4 It is desirable that the content of the two offences be accurately stated, in part because the practical content of each offence may be informed not only by its elements being accurately described, but by the counterpoint of the content of the other offence. That said, I agree with Mandie JA that there was no error of substance in the directions given. Moreover, it has not been shown that there was any likelihood that anything that was said to be error in relation to the alternative offence could have affected the jury's verdict on the count of culpable driving.

5 Despite the submission advanced on behalf of the respondent to the contrary, I see no reason to doubt the correctness of the view expressed in De Montero that there must be a considerable risk of death or serious injury if the offence of dangerous driving is to be established.

6 I would allow the appeal against sentence for the reasons given by Mandie JA and re-sentence the applicant as Mandie JA proposes.

7 At 1.00 am on 13 July 2005 the applicant was driving a car along Evans Road, Cranbourne and, without stopping, he drove past a give way sign and into the intersection of Evans Road and Thompsons Road. A truck proceeding along Thompsons Road was unable to stop in time and collided with the car driven by the applicant. Two passengers in the applicant's car were killed as a result of the collision.

8 The applicant was charged with culpable driving causing death (two counts, one in respect of each passenger) in that he drove his car (a) negligently; or (b) whilst under the influence of a drug to such an extent as to be incapable of having proper control thereof. Section 318 of the Crimes Act 1958 (Vic) relevantly provided:

(1) Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum) or a level 3 fine or both.

(2) For the purposes of sub-section (1) a person drives a motor vehicle culpably if he drives the motor vehicle -

...

(b) negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case; or

...

(d) whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle.

9 A statutory alternative[3] to the charge of culpable driving causing death exists under s 319 of the Crimes Act which then relevantly provided:

(1) A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of, or serious injury to, another person is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).

10 The applicant pleaded not guilty and after a trial in the County Court was found guilty and convicted on both counts of culpable driving, the jury having found that he drove 'negligently' within the meaning of s 318(2)(b) of the Crimes Act. After a plea hearing, the applicant was sentenced to five and a half years' imprisonment on each count and it was directed that two years of the sentence imposed on count 2 be served cumulatively with the sentence imposed on count 1. The total effective sentence was thus seven and a half years and a non-parole period of four and a half years was fixed.

11 The applicant now seeks leave to appeal against both conviction and sentence.

12 The proposed grounds of appeal against conviction are:

1. That the learned trial judge erred in her directions to the jury in that her directions failed to properly distinguish, or distinguish in a way likely to be understood by the jury, the differences between the offences of culpable driving by gross negligence, and dangerous driving causing death.
2. That the learned trial judge erred in her directions to the jury on the meaning of 'dangerous' with regard to the statutory alternate counts of dangerous driving causing death; and in particular -

(a) she directed the jury that in the case of dangerous driving causing death the Crown does not have to prove that the driving was deserving of criminal punishment;

(b) she failed to properly describe the elements of the offence.

13 In order to understand these grounds, which were argued together, it is necessary to set out some passages from the judge's directions to the jury. The judge in substance explained that the key issue was whether the accused's driving was 'culpable' in one or other of the two ways alleged in the charge and that they had to be unanimously satisfied beyond reasonable doubt in relation to one or other of those ways. In relation to 'negligently', her Honour said:

The first type of culpability alleged is gross negligence. The law is that a person drove with gross negligence if he failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances. This requires you to compare the accused's conduct with the standard of care that a reasonable person would have exercise[d] in the circumstances. Precisely what that standard of care would be for you to decide, taking into account all of the circumstances in which he drove from the evidence given and the explanation given in the record of interview.

[Her Honour then immediately repeated the above but rephrased the last sentence as follows:]

Precisely what that standard of care would have been is for you to decide, taking into account all of the circumstances in which he drove from the evidence before you and taking into account the explanation given by the accused in the record of interview.

[After referring to some of the possibly relevant circumstances, her Honour continued:]

As I said, you look at the evidence led from the witnesses, the exhibits and the explanation given by the accused in the record of interview. The Crown must satisfy you beyond reasonable doubt that the accused's conduct must have fallen so far short of that standard of care, and held such a high risk of death or serious injury, that this sort of negligence deserves criminal punishment. This is what is meant for the accused's conduct to be grossly negligent. As this is a criminal case it is not enough that his driving was merely negligent to a small degree, which is often in the civil cases of this Court, people are negligent. It must be so negligent that in your view he deserves to be punished by the criminal law. You must not assume that simply because there is a fatal collision the accused must have been grossly negligent. Genuine accidents happen for which no one will be criminally liable. It is for you to determine whether in all of the circumstances of this case the accused was negligent to the necessary degree.

14 The judge then went on to give directions in relation to culpability in relation to driving under the influence of a drug, namely, cannabis, and also as to how the use of cannabis might be related to the question of gross negligence. The judge then summarised her directions on the law again and then moved on to the way in which the Crown and the defence put their cases. Before summarising the evidence, the judge then gave directions concerning 'the statutory alternative charge of dangerous driving causing death' and said:

As I have told you, and you are aware, count 1 and count 2 charges the accused with the offence of culpable driving causing death. If you are not satisfied beyond reasonable doubt as to count 1 and count 2 the law provides that in those circumstances you are entitled to find the accused not guilty of the crime of culpable driving causing death but guilty of the lesser crime of dangerous driving causing death only if you are so satisfied of the other elements ... Dangerous driving causing death is an alternative to each of the charges on the presentment, so if you are not satisfied beyond reasonable doubt as to count 1, then you move to dangerous driving causing death and the same in relation to count 2. ...

I remind you that the accused man and the Crown is entitled to a separate consideration of each count on the presentment which is culpable driving causing death, and the lesser alternative of dangerous driving causing death ... It would be a betrayal of your oath to arrive at a verdict by a compromise between these two offences.

[After further elaboration of these matters the judge moved on to deal with the key issue in relation to dangerous driving causing death:]

The Crown must prove beyond reasonable doubt that the accused was driving dangerously. That is, he was not properly controlling his vehicle, thereby creating a real risk that somebody would be hurt ...

This element will be met if you find beyond reasonable doubt the accused's manner of driving was dangerous to the public. Manner of driving includes all matters concerned with the management and control of the vehicle, including his driving skill. The law says that the risk of harm created by the accused's driving must have been greater than the risk of harm ordinarily associated with driving. [The judge then elaborated on the ordinary risks of the road and continued:] These ordinary risks of the road are not the focus of this element. For this element to be satisfied the accused must have driven in a manner that significantly increased the risk of harming others. [The judge further elaborated on the element of real risk and the objective nature of the test.]

15 At this juncture her Honour gave directions which were particularly relied upon by the applicant as being in error:

There are two important differences between the offence of culpable driving causing death and dangerous driving causing death that reflect the fact that the offence of culpable driving causing death is a more serious offence. First, the Crown must prove beyond reasonable doubt that the accused drove in a way that significantly increased the risk of harming others. There does not have to be a high risk of death or serious injury. That is only a requirement for culpable driving causing death by gross negligence. And secondly, unlike the offence of culpable driving causing death by gross negligence, in relation to the offence of dangerous driving causing death the Crown does not have to satisfy you that the driving is deserving of criminal punishment.

...

Again, as with culpable driving causing death, you must not assume that simply because there was a collision the accused's driving must have been dangerous. As I said to you earlier genuine accidents happen for which no one will be criminally liable.

16 Before going to the submissions of the parties, it is convenient to state at once that the judge's directions in relation to the charge of culpable driving causing death were correct if taken in isolation[4] (and there was no submission to the contrary) but the judge's directions in relation to the alternative of dangerous driving causing death were prima facie erroneous having regard to the principles laid down in R v De Montero[5] and Guthridge v R.[6] The judge in substance said, in respect of dangerous driving, that the manner of driving had to have created a real or significant risk of harm to the public whereas the required direction was that the manner of driving had to have created 'a considerable risk of serious injury or death to members of the public'. In addition, it was self-evidently illogical and irrelevant, and hence erroneous, to say that the Crown did not have to satisfy the jury that the driving was deserving of criminal punishment.

17 The applicant submitted that the defence position at trial was that the applicant was not guilty of culpable driving. The applicant said that his counsel at trial 'argued but faintly, if at all, against the verdict on the alternate count of dangerous driving causing death'. The applicant submitted that, in all the circumstances of the case, it was most likely that the real issue for the jury was deciding between a verdict of guilty of culpable driving or a verdict of guilty of dangerous driving rather than between a guilty verdict or a complete acquittal. In any event, the applicant submitted that it was essential that the jury be able to comprehend the boundaries of the two offences, and understand how to decide if conduct fell into one category or the other. I should say that I do not think, although it probably does not matter, that defence counsel at trial did not contend against dangerous driving as well as against culpable driving. Although conceding that it was open to the jury to conclude that there was dangerous driving, defence counsel made a number of points in support of a contention that they should not go that far but he did say that 'at its highest, the evidence in this case might permit you to say, we think in all these circumstances it was dangerous. It might, maybe'.

18 The applicant submitted, in relation to the judge's erroneous directions concerning the offence of dangerous driving causing death, that the jury were likely to have understood the direction concerning risk as requiring a risk of harm of a lesser type than the risk of death or serious injury. The applicant further submitted that the direction concerning 'not deserving of criminal punishment' might have conveyed to the jury that the defendant would not be criminally punished if they found him guilty of dangerous driving causing death.

19 The applicant submitted that the said deficiencies in the charge caused a miscarriage of justice because of the impact they must necessarily have had on the jury's deliberations concerning the culpable driving counts and because they potentially precluded any proper consideration of the alternate counts of dangerous driving. It was submitted that the directions may have confused the jury as to the meaning of gross negligence and thereby vitiated their reasoning on the culpable driving counts. It was further submitted that the erroneous directions would have tended to reduce, in the minds of the jury, the seriousness of the alternate offence and that, if the bar of dangerous driving was set too low, this would have tended to have the effect of setting the bar of culpable driving too low also. The applicant submitted that, in essence, one effect of the misdirection was to set the minimum threshold of gross negligence too low, thereby impermissibly increasing the risk of conviction on the counts of culpable driving or, by making the alternate offence appear to be too minor, have had the effect of precluding any serious consideration of it by the jury. The position was analogous to a case where an available alternative was not left to the jury at all.[7] It was submitted that the applicant had lost a real chance of acquittal on the culpable driving charges as a result. It was further submitted that the failure of trial counsel to take exception should not prevent this Court from upholding the appeal because the effect of the error was fundamental and the trial judge was also operating without the assistance now provided by the decision in R v De Montero.

20 The respondent submitted that, given that the judge had correctly and comprehensively directed the jury as to the essential elements of the charge of culpable driving and that this had resulted in verdicts of guilty on those charges, the verdict should not be set aside on the ground that the judge should have directed the jury differently in respect of the alternate charges. The respondent submitted that the direction given in respect of the alternate offences of dangerous driving were more favourable to the applicant and could not be viewed as denying him a real chance of acquittal in respect of the charges of culpable driving causing death. The respondent submitted that any 'watering down' of the elements constituting the offence of dangerous driving causing death did not impinge upon the correctness of the direction in relation to the offences of culpable driving causing death or interfere with the jury's proper determination of the applicant's guilt or innocence on these more serious charges. The respondent further submitted that the way in which the judge had directed the jury in relation to the alternate charges of dangerous driving causing death had not in reality diminished the nature of the requirements for that offence, despite some of the language used.

21 I interpolate at this point that the respondent also argued that the requirements laid down in De Montero and Guthridge as to the directions that should be given concerning the elements of the offence of dangerous driving causing death were wrong and the respondent sought to put these arguments to a Court of Appeal constituted by five judges. The Court indicated that it was not persuaded by that latter application subject to further consideration - I would not accede to the application. In that regard, I note what was said by Vincent and Weinberg JJA in R v BDX[8] concerning carefully considered and recent decisions of the Court of Appeal to the effect that it should not be assumed that a court of five would more readily hold that such a decision was wrongly decided than would a court of three. In my opinion, the relevant aspect of the decisions in De Montero and Guthridge is not plainly wrong and those decisions should be followed. I would therefore reject the respondent's submission that the requirements laid down in those cases as to the elements of the offence of dangerous driving causing death were wrong.

22 I turn to deal with the applicant's submissions. In my opinion, the judge's directions did not water down the elements of the offence of dangerous driving causing death in such a way as to impinge upon or dilute the correct directions that were given in relation to the offence of culpable driving causing death. The judge said that, in relation to the lesser offence, the Crown must prove beyond reasonable doubt 'that the accused drove in a way that significantly increased the risk of harming others' and 'there does not have to be a high risk of death or serious injury'. In my opinion this would have conveyed to the jury that the degree of risk involved in culpable driving was 'high' whereas the degree of risk involved in dangerous driving was 'significant'. The emphasis by the judge was upon the degree of risk. I think that it is unlikely that the jury would have regarded the subject of the risk as being different despite the fact that the judge contrasted 'harming others' with 'death or serious injury'. I think that it most unlikely that the jury would have thought that the harm in relation to the lesser offence was anything other than death or serious injury. So that, although the direction did not literally comply with the language required by De Montero, I think that the substance thereof was conveyed. So far as the other aspect of the 'erroneous' direction is concerned, I think that it is most unlikely that the jury would have considered that the lesser offence involved an element that it was 'not deserving of criminal punishment'. It must have been evident to the jury that the alternate offence was an offence and therefore necessarily subject to criminal punishment. Indeed the judge made clear that, in contrast to dangerous driving, 'genuine accidents happen for which no one will be criminally liable' and the jury would have to have understood from that that dangerous driving was an offence for which persons were criminally liable.

23 Understood in this way, as I think that the jury must have understood them, the directions concerning dangerous driving causing death would not have affected the jury's consideration of the applicant's guilt or innocence in relation to the offence of culpable driving causing death. Furthermore, and in any event, the way in which the judge directed the jury made it clear that they should first consider the offence of culpable driving and only if they were not satisfied beyond reasonable doubt in relation to those charges should they turn to consider the alternate offence. It is true that it should not be assumed that a jury proceeds in a mechanistic fashion[9] in the course of its deliberations but I consider it to be highly improbable in the present case that the jury would not have first considered the applicant's guilt or innocence of the actual charges in the presentment in accordance with the directions of law given to them, before giving consideration to the alternate offence. In any event, I do not consider that they would have been deflected from a proper consideration of the more serious charges by the directions given in relation to the alternate offence.

24 For the foregoing reasons I would refuse leave to appeal against conviction.

25 The proposed grounds of appeal against sentence are that the sentencing judge:

1. erred by finding that the evidence of witnesses Dr Odell and Dr Wells was that the level of cannabis found in the applicant's blood:

(a) indicated that the applicant's driving skills were impaired significantly;[10]

(b) was a high reading;[11]

1. erred by failing to properly categorise the relative level of seriousness of gross negligence in this case;
2. erred in finding that the applicant lacked some insight into how the accident occurred;[12]
3. erred by giving too much weight to general deterrence and insufficient weight to mitigatory factors;
4. erred by ordering too great a degree of cumulation between the sentences on the two counts;
5. imposed a sentence which was manifestly excessive.

26 Mr Grayson, who was the driver of the Mitsubishi truck involved in the collision, gave evidence that he was familiar with the intersection and was approaching it at the speed of approximately 70 kph from which he slowed, because of an approaching train line. Mr Grayson testified that he saw something out of the corner of his eye to the right and that the BMW motor car driven by the applicant was suddenly in front of him. He did not have a chance to brake before colliding with it:

By the time I took my foot off the accelerator and go to put it on the brake, I'd already hit them.

[The BMW ended up upside down in the bushes.]

27 A paramedic who attended the scene found the applicant lying in the middle of Thompsons Road screaming and yelling incoherently and complaining of injury to his back.

28 It is now convenient to set out the summary of the circumstances contained in the judge's reasons for sentence:[13]

The collision took place at around 1 am in the morning, when you were travelling north on Evans Road, Cranbourne West, with which you were not familiar. You had just driven a friend home who lived a few minutes away and you were driving your two friends, the deceased young men, back to Oakleigh. That evening you had spent time with these young men, Michael Rendell and Ashley Pierce, as well as Calib Makiru, who was the friend you were driving home.

Mr Makiru gave evidence as to the events of the evening before the collision. At around 10 pm you picked him up from his cousin's home. Ashley Pierce and Michael Rendell were in the car at the time. The three of you then travelled to Caulfield Railway Station, where Ashley Pierce and Michael Rendell met a person for a few minutes, then returned to the car, and you then returned to Michael Rendell's home.

Mr Makiru said there was alcohol consumed but not by you, and that is not in dispute by the Crown. He said that as he had missed the last train, you agreed to drive him home to Cranbourne. He said that neither you nor either of the deceased men had used cannabis to his knowledge. He said that your driving had not been of concern to him at all during the time he was in the car. He said that as you told him you were unfamiliar with the area, he had given you directions to return to Oakleigh.

I accept that you were unfamiliar with the area where the collision took place, Cranbourne and there is no evidence at all that you drove irresponsibly during the evening leading up to the collision. The intersection of Evans Road and Thompsons Road, Cranbourne has a sign facing vehicles travelling in the direction in which you were travelling, which indicates an intersection is ahead as well as a give way sign.

At the time of the collision, the section of Evans Road on the north side of the intersection of Thompsons Road was under repair, and there were signs indicating that situation facing vehicles which were travelling in your direction. As you drove along towards the intersection, you faced the sign on the verge which was a yellow diamond-shaped sign with a black cross indicating an intersection.

The same sign was on the verge of the opposite side of the road for on-coming vehicles, which sign also faced you. Further along there were two signs similarly placed on the verge on your side of the road and the verge on the opposite side of the road facing you, bearing the words 'Traffic Island'.

As you approached the intersection, there was a sign on the left near the corner of a triangle upside down, with the words 'Give Way' and in the middle of the road there was small traffic island with clear white lines around the concrete islands with a 'Give Way' sign. At the time of the collision, Sergeant Peter Bellion from the Major Collisions Squad gave evidence that the speed limit was 80 kilometres per hour. He said at the time of the collision your vehicle was travelling at 70 kilometres per hour.

His opinion was that at the time you did not apply your brakes prior to the collision and that your vehicle was travelling across the intersection in a northerly direction and not turning right. This is important as it is evidence that you would notice that you could not enter the northern part of Evans Road because of the road works. You had to go left or you had to go right.

At the time you entered the intersection, you drove into the path of a truck which was travelling west along Thompsons Road at about 56 kilometres per hour. There was no evidence that the driving of the truck contributed in any way to the collision. The driver and three passengers gave evidence. It was a Mitsubishi tray truck and the men in the truck had been working collecting chickens on one farm and were travelling to another farm.

The evidence of those attending the scene from the Victoria Police was that the intersection was adequately lit. The informant, who was familiar with the intersection, said this in evidence:

'At the intersection the traffic travelling north in Evans Road approaching Thompsons Road there is an overhead street light approximately 50 to 60 metres short of the intersection which extends partially over the road. At the actual intersection, there's another light which extends out over the intersection, that is on the south-west corner. Or, if you look at the photograph, the bottom left hand corner of the intersection. There was further lighting which extends both left and right of the intersection along Thompsons Road on the southern side or on the bottom side.'

'That lighting' he said, 'was operating at the time he attended immediately after the collision.' And he said, 'The lighting provides an orange lighting which was clearly visible.'

The other police who attended the scene gave similar descriptions of the lighting. On your behalf, issue was taken as to the extent and the ability of the lighting to illuminate the intersection and reliance was put on the evidence of the men in the truck.

Anthony Wilson, a passenger in the truck, agreed in cross-examination that there was not much lighting around. The intersection was thinly lit and it was a bad intersection.

The driver agreed that the intersection was not well lit and there is a dark group of trees immediately before the intersection for vehicles travelling in the direction of your car.

I sentence you on the basis that the lighting was adequate.

The jury, having heard all the evidence, was unanimous that your driving was culpable as you were grossly negligent.

The road was in a semi-rural area, so the lighting was not as good as one would expect in suburban areas. However, it is incumbent upon a driver to take that into account when driving in a semi-rural area such as Cranbourne West.

The weather was fine, the lighting was operating, the road was marked with white lines and there were a number of signs indicating an impending intersection, a Give Way sign as well as the fact that you could not have proceeded straight ahead over the intersection.

Today Mr Kelly tendered reports from VicRoads in relation to the intersection, as well as statistics in relation to the intersection from Victoria Police. At the time the collision occurred, the intersection was eligible for black spot funding, given the number of collisions which had occurred there involving serious injuries or fatalities. Since the collision, the intersection has been improved and renovated, and since that time there have been collision[s], however, there have not been serious injuries or fatalities as a result of those collisions.

After the collision which is the subject of this matter, blood samples were taken from you as well of each of the deceased young men. Upon analysis, it was found there were [13] nanograms per millilitre in your blood of cannabis which Dr Wells and Dr Odell gave evidence as being a high reading.

29 The judge said that the applicant was convicted of each count of culpable driving on the basis of gross negligence. The judge noted that the Crown case was that the applicant ingested cannabis a short time before the collision and the Crown relied on that as part of the case in relation to gross negligence. The judge said that the opinion evidence of Dr Odell and Dr Wells was that the results of an analysis of the applicant's blood after the collision indicated that he had ingested cannabis a short time before the collision and that the level of cannabis found to be present in his blood indicated that his driving skills at the relevant time were significantly impaired.

30 The judge said that Parliament and the community considered the offence of culpable driving to be very serious and that the maximum sentence since 1967 had been increased from 7 to 10 to 15 and then in September 1967 to 20 years' imprisonment. The judge referred to statements by the Court of Appeal that general deterrence had to be given a large amount of weight in such cases. She said that the offences arose out of the one tragic incident in which two young men's lives were taken with consequences that devastated two households and would continue to do so. Her Honour referred to victim impact statements from members of the families of the victims.

31 The judge referred to the applicant's record of interview in which he denied having used cannabis during the evening prior to the collision but noted that counsel, in the plea, had pointed out this denial was made in the context of the applicant not remembering what had occurred during that evening prior to the collision. However the judge referred to further answers in which the applicant had stated expressly and positively that he had not smoked cannabis that day (but had done so the day before). For the purpose of sentencing, the judge said she was satisfied beyond reasonable doubt that the applicant had taken cannabis within the hours leading up to the driving and that his use of cannabis was capable of impairing his driving skills.

32 The judge said that she accepted the uncontradicted evidence of Dr Odell and Dr Wells. The judge relevantly summarised their evidence as follows. Dr Odell said that the reading of 13 nanograms per millilitre indicated recent usage of cannabis in the last couple of hours and, for reasons that he gave, he said that the level would have been considerably higher at the time of the collision. Dr Odell's opinion was that there was no evidence from any scientific study that a person could reach a level as high as 13 from passive inhalation of cannabis smoke. Dr Wells in substance agreed with the foregoing. In addition, Dr Wells' opinion was that there was overwhelming evidence that at the sort of level which was found in the applicant's blood analysis the range of skills that were required for a safe driver would be impaired and he went on to describe in detail how the whole range of skills involved would be impaired.

33 The judge repeated that she must accord considerable weight to general deterrence.

34 The judge turned to the circumstances of the applicant. Her Honour said that the collision occurred nearly three and a half years ago when the applicant was 19 years of age. The applicant was adopted when he was three months and solely raised by his adoptive mother towards whom he had acted in a very responsible way. He had been a student and had also had part time and full time employment and applied the money received to household expenses. The judge said that the applicant, throughout his education, had needed the assistance of an integration aide, the main difficulties having been impulsive behaviour and the fact that he was easily distracted and that he suffered from low self-esteem. He was a very good sportsman and in later years at school had performed well both academically and in sporting activities. Since leaving school he had continued to participate in sport and was also involved in considerable voluntary work in the sporting arena. Her Honour referred to his good work history and good character references.

35 Her Honour referred to the applicant's own injuries and hospitalisation as a result of the collision and accepted that he continued to suffer from those injuries and still had some fragility in his rib cage and neck. Her Honour referred to the substantial evidence of the applicant's sadness and remorse about the collision and noted that he had no prior convictions and she said that she would sentence him as a person of previous good character and previous responsible behaviour. However, the judge noted that the Court had been informed that the applicant had had a number of subsequent driving offences, having on six occasions been served with an infringement notice - on 27 February 2007 for driving at a speed of 119 kph in a 100 kph zone, on 15 June 2007 travelling at 106 kph in an 80 kph zone, on 16 August 2007 using a mobile telephone when driving, on 10 October 2007 driving at 69 kph in a 60 kph zone, on 10 November 2007 driving at 79 kph in a 60 kph zone and on 5 December 2007, being a P plate driver having a blood alcohol reading of .45 per cent when he must not have exceeded zero per cent.

36 The judge noted the adverse effect upon the applicant of the delay and said that she sentenced him 'on the basis that three and a half years delay, given you were between 19 and 23 years of age, is a long[er] time for you emotionally than it would have been for an older person'. The judge said that she took into account that the applicant was a youthful offender and also that a prison sentence would be more difficult for him because of his youth, the fact that he had never been to prison before and the residual injuries that he had from the collision.

37 The judge referred to the seriousness of the offence and the loss of two lives and then went on to say:[14]

However, in the circumstances, I consider that weight must also be given to special deterrence, that is from deterring you from irresponsible behaviour which led to these offences. You have continued to deny taking cannabis in the hours leading up to the collision in circumstances where I consider the evidence overwhelming that you did.

I also accept the evidence of the two forensic physicians that an ingestion of the amounts of cannabis indicated in your blood would have adversely impaired your driving skills which in this case was being alert to the clear signs and not slowing down at an intersection in circumstances where a reasonable driver would do so.

In the circumstances, and hearing the evidence of the character witnesses and taking into account the letters tendered, I find that you still lack some insight as to how this tragedy occurred. The further traffic offences confirm this view.

Any sentence I impose must be proportionate to the criminality involved as well as the orders I make for cumulation must be proportionate to the criminality involved and I take into account the principle of totality.

I accept that you have a reputation as a hard-working person and you have a supporting family and I take into account, as I said, your age.

Today, certificates were tendered to show that you have undertaken courses in prison and enrolled in other courses, one which I consider to be particularly relevant is cognitive skills. This is to your credit.

I will now indicate to the Adult Parole Board that it is imperative that you successfully complete the drug and alcohol course which is conducted within the prison system before you are released on parole, as you[r] completion of such a course will assist you in gaining more weight into such risk taking behaviour as smoking cannabis and driving in the way you did.

38 The applicant, while conceding that general deterrence was a very important sentencing factor, argued that it should not be allowed to displace all other sentencing factors. The applicant submitted that there were some very powerful mitigating factors in this case including the applicant's youth, his own injuries, the significant delay, his remorse and anguish over the deaths of his friends, the lack of any prior convictions and the applicant's history of work and contribution to the community. The applicant submitted that while the judge had adverted to all of these matters, the length of the sentence demonstrated that too great a weight had been given to general deterrence at the expense of these mitigating factors. The applicant submitted that the level of seriousness of the applicant's conduct had to be judged by the level of fault or lack of care involved. The applicant submitted that this case fell at the lower end of the scale of seriousness in respect of this offence. The applicant submitted that having regard to the said mitigating factors, the sentence was manifestly excessive. The respondent joined issue on these submissions and contended that the sentences, the cumulation and the total effective sentence were appropriate to the gravity of the offence and that the mitigating factors had not been undervalued. The respondent submitted that the non-parole period had been tailored to take into account and give recognition to the mitigating factors and the personal circumstances of the applicant.

39 This was a very difficult sentencing exercise for the learned sentencing judge. In my opinion, having regard to the very strong set of mitigating circumstances, the sentences imposed on the individual counts were manifestly excessive. In particular, the lengthy delay, the age of the applicant and his previous particularly good record have influenced me in reaching that conclusion. I would grant leave to appeal against the sentence, allow the appeal and set aside the sentence. I would re-sentence the applicant to a term of four and a half years' imprisonment on each count. I would not alter the judge's period of cumulation of two years in respect of count 2. That would result in a total effective sentence of six and a half years and I would fix a non-parole period of three and a half years.

40 In the circumstances, I do not find it necessary to extensively canvass the other proposed grounds of appeal but will only briefly deal with them. In relation to ground 1, I consider that the judge did not err in relation to her findings concerning the evidence of the expert witnesses Dr Odell and Dr Wells. The judge's findings were well justified by the evidence. In relation to ground 2, I do not think that the judge failed to properly characterise the level of seriousness of the offence and the gross negligence involved. I do not think that ground 3 is made out. In relation to ground 5, I do not think there was too great a degree of cumulation. If anything, the cumulation was modest.

[1] [2009] VSCA 255; (2009) 198 A Crim R 68.

[2] [2009] VSCA 255; (2009) 198 A Crim R 68, [94] (citation omitted).

[3] See s 422A(1) of the Crimes Act 1958.

[4] And in accordance with the requirements set out in R v De'Zilwa [2002] VSCA 158; (2002) 5 VR 408.

[5] [2009] VSCA 255; (2009) 198 A Crim R 68.

[6] [2010] VSCA 132; (2010) 55 MVR 548.

[7] Citing Gilbert v R (2000) 201 CLR 414 and R v Kane [2001] VSCA 153; (2001) 3 VR 542.

[8] [2009] VSCA 28; (2009) 24 VR 288, [122]-[123].

[9] See Gilbert v R (2000) 201 CLR 414, [16] and R v Kane [2001] VSCA 153; (2001) 3 VR 542, [111].