Maher v The Queen [2017] VSCA 381

CRIMINAL LAW - Conviction - Appeal - Evidence - Record of interview - 'No comment' answers in record of interview - Judge's charge - Whether judge's charge about 'no comment' answers inadequate - No inadequacy in judge's charge - Evidence Act 2008, s 89(1)(a).

CRIMINAL LAW - Conviction - Appeal - Application to add new grounds of appeal - Whether judge impermissibly directed jury as to order of deliberations - No impermissible direction given - Whether jury impermissibly directed when told they needed to find conduct 'fell so far short that it deserves criminal punishment' - Jury direction read in context - When read in context, no misdirection - No substantial miscarriage of justice - Application for leave to add new grounds refused - Bouch v The Queen (2017) 80 MVR 85.

CRIMINAL LAW - Sentence - Appeal - Culpable driving, failing to stop after accident and failing to render assistance - Sentence of 9 years' imprisonment for culpable driving - Total effective sentence of 11 years, with non-parole period of 8 years and 6 months - Whether sentence manifestly excessive - Whether judge erred in finding likelihood of appellant reoffending was 'likely' - Sentence not manifestly excessive - Judge erred in finding of likelihood of reoffending - Appeal allowed - Sentences of imprisonment set aside - Appellant resentenced to 7 years and 6 months on culpable driving - Appellant resentenced to total effective sentence of 9 years and 6 months, with non-parole period of 7 years.

1 The appellant was convicted by a jury in the County Court of one charge of culpable driving, one charge of failing to stop after an accident and another charge of failing to render assistance after an accident. She was sentenced to a total effective term of 11 years' imprisonment with a non-parole period of 8 years and 6 months.

2 The appellant was granted leave to appeal against her conviction by Priest JA on two grounds, and leave to appeal against her sentence on four grounds. At the hearing of the appeal, she sought leave to add two additional grounds of appeal against conviction.

3 At about 9:30 pm on 26 November 2013, the appellant was driving a Honda Jazz sedan with her two-year-old son in the rear seat. The vehicle collided with a bicycle being ridden by Julian Paul in the left lane of the Nepean Highway close to its intersection with Union Street, Brighton. The appellant did not stop at the scene of the accident and did not render assistance to Mr Paul. Mr Paul was taken to hospital and died on 18 December 2013 after life support was withdrawn.

4 Although it was dark at the time of the collision, the road was artificially lit along the centre median strip and visibility was good. The road was dry and the weather was fine. There was light traffic and the speed limit at the point of the collision was 80 kilometres per hour. Mr Paul was wearing a yellow and blue cycling jersey and a blue and white helmet, and had operating front and rear lights. There were reflective markers on the bike frame and on the pannier frame.

5 The prosecution alleged that the appellant's driving was grossly negligent. It relied on the particular form of negligence by virtue of fatigue provided for in s 318(2A) of the Crimes Act 1958. That provision states that negligence for the purposes of the charge may be established by proving that:

(a) a person drove a motor vehicle when fatigued to such an extent that he or she knew, or ought to have known, that there was an appreciable risk of him or her falling asleep while driving or of losing control of the vehicle; and

(b) by so driving the motor vehicle the person failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case.

6 The prosecution contended that the appellant failed to keep a proper look-out, failed to keep her car within its lane and failed to avoid hitting Mr Paul while he was travelling in the far left-hand lane. There was evidence of a number of near-miss collisions shortly before the fatal incident. The prosecution alleged that the appellant braked after the collision but did not pull over. She then concealed her vehicle in a railway station carpark. It was contended that she did so in the full realisation of what she had done and this was relied upon as evidence of incriminating conduct amounting to an implied admission with respect to the culpable driving charge. The charge of dangerous driving causing death was relied upon as an alternative to the culpable driving charge.

7 The defence case at trial was that the appellant was moving into the left lane in order to turn left and did not expect to see a cyclist there. The accident was a result of the normal dangers of driving at night. In her record of interview the appellant said that she had known what she was doing and gave consistent answers showing that she did not think she had done anything wrong. She did not know that she had hit a person and thought that she had collided with a rock or a stone. The defence contended that the appellant looked in her rear vision mirror but did not see anything. She parked her car in the carpark so that her mentally unwell brother would not see the damage to it.

8 Several witnesses gave evidence of the appellant's driving shortly before or after the collision. Tara Henry noticed as she was travelling along Grey Street, St Kilda, that the driver of the vehicle behind her had her head down and was not looking at the road. Ms Henry was concerned that the driver was going to hit her car. Later she noticed that the driver had her eyes closed with her head back on the head rest. She also observed the driver nodding her head with her eyes closed. Ms Henry saw the vehicle in question narrowly avoid hitting a median strip on Brighton Road and veering or drifting between lanes, nearly hitting a pole at one point on the Nepean Highway. Further along the Nepean Highway, Ms Henry observed the vehicle drive into the back of a cyclist, sending him up in the air. She did not see the cyclist land. After the collision, she saw the vehicle braking hard.

9 Lynda Hayes was travelling in the left-hand lane along Brighton Road in the same direction as the appellant. She noticed a silver Honda Jazz in the right-hand lane pass her vehicle leaving a gap of less than 30 centimetres. After the vehicle pulled ahead of her, she saw it veer from the right into the left-hand lane at least three times. Further along the highway, Ms Hayes again saw the vehicle veering across lanes. Ms Hayes turned left at North Road and did not see the collision.

10 Daniel Griffin was also travelling in the same direction along the Nepean Highway when he heard a very loud noise from the far left of the road that startled him. He looked and saw a cyclist lying face down on the far left of the road. He also saw a silver hatchback ahead of the cyclist in the left lane with its brake lights on. He saw the vehicle move into the service road before moving back out into the main four lanes of the highway and continuing south without stopping.

11 Fallon Vorbach was also travelling south on the Nepean Highway and saw a hatchback ahead of him doing an 'S-shape' within its lane. He observed the female driver sitting upright, looking straight ahead with her hands on the steering wheel. The vehicle came across to his lane and nearly hit his vehicle. He sped up and changed lanes. In his rear vision mirror, Mr Vorbach observed the hatchback hit a cyclist and then saw the hatchback drive into the service lane.

12 Timothy Newton was again travelling south on the Nepean Highway. He saw a silver car ahead of him drifting left and then saw a cyclist in its headlights approximately one or two seconds before the vehicle hit the cyclist from behind. Mr Newton saw the silver car brake briefly after the collision and enter the service lane. He did not see it brake at all before the impact with the cyclist.

13 The appellant's vehicle was located in the Patterson railway station carpark. There was damage to its left-hand side, predominantly to the front bumper bar, bonnet, windscreen and roofline. The vehicle was parked with its nose pushed deep into the bushes in front of it.

14 Expert evidence suggested that at the time of the collision, the appellant's vehicle was travelling close to or at the speed limit of 80 kilometres per hour. There was no mechanical defect which could have contributed to the accident.

15 Leave to appeal was granted on the following two grounds:

1. [T]he learned trial judge erred in directing the jury as to how they may use the evidence of incriminating conduct, being leaving the scene and concealing her car, in that:
   1. the learned trial judge directed the jury that they could use the evidence as evidence 'she believed she had committed the first charge' only if they found that 'this conduct occurred and the only reasonable explanation of the conduct was that she had thought she had collided with the cyclist';
   2. the learned trial judge failed to give any or any adequate direction in accordance with s 22 [of the Jury Directions Act 2015], despite agreeing to do so.

1. The record of interview contained a number of 'no comment' answers together with responsive answers. The learned [trial] judge failed to give the jury any direction as to how they may treat any 'no comment' answers.

16 The additional two grounds in respect of which leave to appeal is sought are as follows:

1. A substantial miscarriage of justice occurred as a result of the trial judge's directions that the jury need only consider the lesser alternative charge after they had reached a unanimous verdict that the accused is not guilty on the primary charge.
2. A substantial miscarriage of justice occurred as a result of the trial judge's direction that in order to find the appellant guilty of culpable driving, it was necessary that the jury be satisfied that the appellant's conduct merited criminal punishment.

17 The first ground of appeal (ground 2) concerns the trial judge's directions as to how the jury could use the evidence of incriminating conduct, namely the appellant leaving the scene of the accident and concealing her car by leaving it at the railway station. The prosecution did not rely on the specific manner in which the car was parked in the bushes as incriminating conduct.

18 Two complaints are made. The first is that the judge failed to direct the jury in accordance with s 21 of the Jury Directions Act 2015 ('the JDA'). The second is that judge did not give the direction found in s 22 of the JDA.

19 Division 1 of pt 4 of the JDA deals with post-offence conduct. The terms 'conduct' and 'incriminating conduct' have defined meanings under div 1, as follows:

18 Definitions

In this Division -

conduct means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;

incriminating conduct means conduct that amounts to an implied admission by the accused -

(a) of having committed an offence charged or an element of an offence charged; or

offence charged includes any alternative offence.

20 Sections 21 and 22 provide:

21 Mandatory direction on use of evidence of incriminating conduct

(1) If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that -

(a) the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that -

(i) the conduct occurred; and

(ii) the only reasonable explanation of the conduct is that the accused held that belief; and

(b) even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.

(2) In giving a direction under this section, a trial judge need not refer to each act or omission of the accused.

Note

Section 6 provides that a trial judge need not use any particular form of words in giving a direction to the jury. For example, in relation to the direction referred to in subsection (1)(a)(ii), if the evidence concerns an element of an offence, the trial judge could refer to 'knew' rather than 'believed' to better describe what the incriminating conduct, if accepted, may prove.

22 Additional direction on incriminating conduct

If the trial judge gives, or proposes to give, a direction under section 21, defence counsel may request under section 12 that the trial judge also direct the jury that -

(a) there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and

(b) the accused may have engaged in the conduct even though the accused is not guilty of the offence charged; and

(c) even if the jury thinks that the conduct makes the accused look guilty, that does not necessarily mean that the accused is guilty.

Note

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

21 In addition, s 23 provides for a direction where evidence of conduct is not relied on as evidence of incriminating conduct, as follows:

23 Direction to avoid risk of improper use of evidence

(1) If evidence is given of conduct but the prosecution does not rely on the evidence as evidence of incriminating conduct, defence counsel may request under section 12 that the trial judge -

(a) direct the jury that there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and

(b) warn the jury that even if the jury thinks that the accused engaged in the conduct, it must not conclude from that evidence that the accused is guilty of the offence charged.

Note

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

(2) Without limiting section 14, it is a good reason for not giving the requested direction if the trial judge considers that there is no substantial risk that the jury might use the evidence as evidence of incriminating conduct.

22 The provisions make it clear that s 21 is a mandatory direction but ss 22 and 23 are directions which defence counsel may request. There was some confusion at the trial as to which directions defence counsel requested. The matter was raised in general terms before closing addresses. The next day, after counsel made submissions as to the appropriate directions, the judge stated that he considered that defence counsel was seeking a s 22 direction with respect to the post-offence conduct and a s 23 direction with respect to certain lies told by the appellant in her record of interview. Defence counsel agreed with that characterisation. Later, defence counsel also sought a s 23 direction in respect of the evidence that the appellant parked her car deep in the bushes, which the judge had ruled earlier could not be relied on as incriminating conduct.

23 Between closing addresses, the judge raised with counsel in express terms the direction he proposed giving under s 21:

HIS HONOUR: All right. And one other thing in the - not for yourself, but Mr [prosecutor], in the other incriminating conduct as conduct, I've got to the stage where it's - the relevant belief - her relevant belief: 'You may only use the evidence in this way if you find this conduct occurred, and the only reasonable explanation of this conduct is that the accused thought that, and as to the relevant belief it's my - that she had struck, or collided with the deceased cyclist.'

That is, that's her - the only reasonable explanation of this conduct is that the accused thought that, and that's what she thought; that's the

[PROSECUTOR]: Well, the only reasonable explanation for the conduct that she offers for leaving is that she

HIS HONOUR: The charge says this, in the second paragraph: 'After identifying the evidence', which is, you know, that she

HIS HONOUR: Left the scene. 'You may only use this evidence in this way', which is evidence as - evidence that she believed that she'd committed the offence charged.

HIS HONOUR: 'You may only use the evidence in this way if you find that this conduct occurred, and the only reasonable explanation of this conduct is that the accused thought', and then I was going to insert there, 'that she thought that she had collided with, or hit, or run over a cyclist; run over the deceased cyclist.'

[PROSECUTOR]: Run over a cyclist in circumstances in which she was driving in a grossly negligent way, because

HIS HONOUR: Well, that's what - you see, it seems to me that she doesn't need to think she's driving in a grossly negligent way. It seems to me that - which is the reason I raise it

HIS HONOUR: is that she - the reason why she took off is because she thought she'd just run over a cyclist.

HIS HONOUR: And I think that's the way the jury would understand it, but I just want to raise that, because that's an issue.

[PROSECUTOR]: Yes, I see the point Your Honour makes, yes.

HIS HONOUR: Yes, all right. But, as I say, in due course of

[PROSECUTOR]: Well, that's right. She doesn't have to know that she's driving in a grossly negligent way.

HIS HONOUR: No, the reason for her going is that, but in any event, as I say, in due course you can both take exceptions, but it's just I got to that stage and thought that was the shorthand way, but I don't want to take up too much time at this stage.

[DEFENCE]: Your Honour, can I just have ten seconds to make a note just in relation to what Your Honour just said?

[DEFENCE]: So I can correct it. Thank you, Your Honour.

24 As will become apparent, in this passage the judge raised with counsel the form of the direction regarding post-offence conduct which he ultimately gave to the jury. It appears that the parties subsequently provided draft directions to the judge, which he discussed with them before charging the jury. However, there were no further oral submissions on the point.

25 In the meantime, there was the following exchange in which defence counsel appeared to depart from his earlier position regarding a s 22 direction:

HIS HONOUR: And what I then propose to do as [defence counsel] sought is then a s 23 direction with respect to - sorry. Section 22 directions, is it? With respect to - I wasn't sure of - I think the additional s 22 direction - there it is - in any event, which was it again, [defence counsel]?

[DEFENCE]: Twenty-three, Your Honour.

HIS HONOUR: Twenty-three. So it was - - -

[DEFENCE]: Which is the places (indistinct) off position.

HIS HONOUR: Yes, 23 that was it. Yes. So with respect to the lies.

26 The judge directed the jury in the following terms:

All right, now in this trial the prosecution argued that you can use the evidence that Ms Maher left the scene of the accident and concealed her car in the Patterson railway station car park as evidence that she believed she had committed the first charge - the charge for culpable driving. Now, you can only use this evidence in this way if you find that this conduct occurred and the only reasonable explanation of the conduct is that she thought she had collided with the cyclist.

However, I must warn you that even if you find she believed she had committed Charge number 1 - the offence of culpable driving - you must consider all the evidence when deciding whether the prosecution has proved the accused's guilt beyond reasonable doubt.

27 The judge then summarised the respective arguments of counsel in connection with the evidence in question. The prosecutor had relied principally upon the evidence of the loud noise caused by the collision, together with the damage to the car and especially to the windscreen. Defence counsel had submitted that the appellant was moving to the left-hand lane because she wanted to turn left in due course and did not realise there was a cyclist there. He had submitted that she had heard a noise and thought it was stick or a rock. Counsel had also submitted that the appellant had hidden the car from her brother and this explained why she left it at the railway station. The judge then reiterated the need for the jury to consider all the evidence when deciding whether the prosecution had proved its case beyond reasonable doubt, even if the jury found that the appellant believed that she had committed the first charge.[1]

28 In relation to the direction given under s 21, senior counsel for the appellant argued that the direction was in error because the jury had been told that, in order to treat the evidence as evidence that the accused believed that she had committed culpable driving, the jury needed to be satisfied that the only reasonable explanation of the post-offence conduct was that the accused believed that she had collided with a cyclist. This was incorrect because s 21 required the jury to treat the evidence in that way only if it concluded that the only reasonable explanation of the conduct was that the accused believed she had committed the offence. This involved not only a finding that she knew that she had hit a cyclist but a finding that she had left the scene because she believed that her driving was so below the required standard as to be culpable. It was submitted that there was a real risk that the jury would have reasoned impermissibly that if the appellant left the scene because she thought she had hit a cyclist, they could use this as an implied admission by her that she was guilty of culpable driving.

29 Senior counsel for the respondent submitted that the direction that was given complied with s 21. He pointed out that s 6 of the JDA provides that, in giving a direction to the jury, the trial judge need not use any particular form of words. The critical issue at trial was whether the appellant thought that she had hit a cyclist or a rock. That question, going to whether the appellant actually believed that she was driving normally as she claimed, was the issue upon which the judge focused in his direction. Counsel submitted that, if the appellant knew that she had hit a cyclist, it was inescapable that she also knew that her driving had been grossly negligent.

30 Alternatively, counsel submitted that even if there was a technical error in the form of the direction, there was no miscarriage of justice because there was no possibility that the jury may have entertained a reasonable doubt about the appellant's guilt.[2] The evidence showed her falling asleep and continuing to drive and this fell precisely within the ambit of s 318(2A) of the Crimes Act 1958.

31 The course of the trial shows that the trial judge engaged with counsel to keep the directions to the jury as simple as possible. This was entirely consistent with the underlying purpose of the JDA.[3] The outcome of that process was a direction which omitted words that strict compliance with s 21 would have required, to the effect that the jury must be satisfied that the appellant believed that she had not only hit a cyclist but committed the offence charged. But s 6 of the JDA makes it clear that strict compliance is not demanded, and that must especially be so where the form of the direction is agreed upon by counsel.

32 The direction here reflected the real issue at trial about post-offence conduct, namely whether the appellant thought when she left the scene of the accident that she had hit a cyclist or a rock. Counsel for the appellant relied on the judgment of Nettle JA in Dickinson v The Queen,[4] decided before the enactment of the JDA or its predecessor, to identify the element which she contended was lacking in the direction. In that case, Nettle JA said:

It is unlikely that when the applicant fled from police he had in mind that he was guilty of the specific offence of culpable driving, much less of the series of alternatives which range from exceeding the speed limit up to dangerous driving causing death. But to adopt and adapt what was said in [R v Woolley (1989) 42 A Crim R 418], it would be fanciful to require as a precondition to possible use of his flight that the applicant turned his mind to particular alternatives such as culpable driving or dangerous driving causing death. The question is whether by his flight he was betraying a consciousness of having caused the death of the victim by driving in a fashion which was reprehensible. That was a question for the jury.[5]

33 The same reasoning suggests that the language of s 21 does not demand strict proof of belief as to a specific offence and may have varying operation according to the facts of each case. Counsel submitted that the jury should have been directed that the appellant must have believed that her driving had been 'reprehensible'. But if she knew she had hit a cyclist, her subsequent actions were inconsistent with driving normally as she claimed. In the circumstances, it is impossible that she could have thought her driving other than reprehensible. Certainly defence counsel did not suggest that the appellant could derive any benefit from a consideration by the jury of her having any other belief. The defence case was that she simply did not know that she had hit a cyclist.

34 It is useful to consider what would have been the effect of a more elaborate direction, as the appellant now contends ought to have been given. Such a direction would have told the jury that the evidence of the appellant leaving the scene and hiding the car could be treated as evidence that she believed she had committed the offence only if the only reasonable explanation of her conduct is that she held that belief. As noted, it was squarely in issue whether the appellant believed that she had hit a cyclist and whether her actions showed this to be so. The defence case was that she did not believe she had hit a cyclist at all. But it was not suggested to the jury that, if she did believe she hit a cyclist, she could have held that belief without also believing that her driving had been grossly negligent. In these circumstances, a direction raising that issue could only have created confusion in the minds of the jury.

35 Finally, the judge expressly noted that if there were exceptions to the manner in which he charged the jury on this aspect of the case, they could be taken. The fact that defence counsel raised no further issue confirms our conclusion that the direction that was given met the requirements of s 21 in the circumstances of this case.

36 The argument in respect of s 22 should also be rejected. The transcript shows that the judge returned to the topic of directions regarding post-offence conduct several times in the course of the trial. Although counsel embraced s 22 at one point, when the directions were ultimately formulated he did not press the point. In the circumstances, defence counsel did not, in the end, request a direction under s 22. As such, none was required to be given unless the judge considered that there were substantial and compelling reasons to do so.[6]

37 The direction contemplated by s 22 involves the possibility of alternative explanations for post-offence conduct, being explanations that betray non-consciousness of guilt. The appellant advanced a single explanation of that kind, namely that she thought she had hit a rock and concealed her car for fear of her brother's reaction to the damage. For the judge to have explained to the jury that the appellant might have had 'all sorts of reasons' for behaving in a way that made her look guilty would have undermined that clear case. There was, for example, no way consistent with her case that she might have left the scene in a moment of moral panic. It was equally redundant to suggest to the jury that she might have left the scene and hidden the car for reasons other than guilt of the offence, when only one such reason was advanced and it was clearly before the jury. To suggest other reasons would have undermined the appellant's professed reason for her conduct. Finally, the question whether the conduct might make the appellant appear guilty without her actually being guilty did not arise on the appellant's claim that she thought she had hit a rock. The directions under s 22 would therefore not have assisted the appellant and it is entirely understandable why defence counsel did not press for them and the judge did not consider them necessary.

38 There were therefore no substantial and compelling reasons calling for a direction under s 22. Ground 2 therefore fails.

39 The second ground of appeal (ground 4) alleges that the trial judge failed to give the jury directions as to how it could use 'no comment' answers in the appellant's record of interview.

40 The appellant contends that the trial judge erred in his direction to the jury regarding the fact that she had not given evidence. It was said that the direction impermissibly 'quarantined' the evidence of her record of interview. Further, it was submitted that the judge ought to have directed the jury as to how it should treat the 'no comment' answers in the interview.

41 In the relevant part of the charge, the judge directed the jury (under s 41 of the JDA) as follows:

Now, of course, in this trial, as you know, Ms Maher undertook and engaged in a recorded interview with the police on the evening and you will have that interview and the transcript of it before you as an exhibit, that is you will have the interview in the form of a DVD as an exhibit and you will have the transcript to assist you.

But of course, you will have that Ms Maher did not get into the witness box to give evidence in this case. Now, that is her right. And as I told you, it is for the prosecution to prove its case beyond reasonable doubt, and the accused, Ms Maher, is not required to give evidence. The onus of proving her guilt always remains on the prosecution regardless of whether she chooses to give any evidence in the trial, that is apart from the record of interview.

Now, this means the fact that she did not give evidence from the witness box cannot be used as evidence against her. That fact is not evidence in the case. And as I have told you, you must decide the case only on the evidence. So the fact that Ms Maher did not give evidence does not constitute an admission by her, and may not be used to fill gaps in the evidence led by the prosecution. It does not add to or strengthen the prosecution's case in any way. It proves nothing at all.

You must therefore not draw any conclusions against her for failing to give evidence or even consider the fact that she did not give evidence when deciding whether the prosecution has proved its case beyond reasonable doubt. You must also not speculate about what she might have said if she had given evidence. You must decide this case solely on the evidence which has been given in court and of course, that includes her recorded interview with the police.

42 In our opinion, there is no reason to suppose that the jury would have treated the above direction on the onus of proof as somehow not extending to the record of interview. The judge distinguished the record of interview from the giving of evidence in the case, but in a way that made it clear that the interview in both DVD form and in transcript was part of the evidence. He expressly told the jury to decide the case solely on the evidence, including the interview.

43 It is true that the judge gave the jury no specific direction as to how to use the 'no comment' answers in the record of interview. The appellant submitted that a direction ought to have been given consistently with s 89(1)(a) of the Evidence Act 2008, which prohibits an unfavourable inference being drawn from evidence that a person failed or refused to answer a question put to them by an investigating official. Defence counsel did not request such a direction. It was submitted before us that there were 'substantial and compelling reasons' requiring a direction within the meaning of s 16 of the JDA. It was said that there was a real risk that the appellant's failure to answer specific questions might be used impermissibly, by reasoning that the answers would incriminate her or that they amounted to admissions of facts in issue.

44 The decision of defence counsel not to seek a direction in respect of the use of the 'no comment' answers in the record of interview is readily explicable having regard to the way in which he suggested to the jury that they should use the interview. Counsel argued that the appellant had given clear and consistent answers in the interview despite being in a clear state of distress. Counsel suggested to the jury that the police had taken advantage of the appellant by continuing with the interview after she had said that she had legal advice not to answer any questions. In other words, defence counsel explained the 'no comment' answers as being responsive to the legal advice the appellant had received and contrasted those answers with what he suggested was her readiness, despite being under pressure, to give a clear account of her actions. The jury was invited to put the 'no comment' answers to the appellant's advantage because they revealed that her other answers were knowingly given against her better interests. It is understandable that a forensic decision could be made in these circumstances not to seek a direction highlighting the possibility of using the answers adversely to the appellant.

45 In the circumstances, there were no substantial or compelling reasons demanding the giving of the suggested direction.

47 Under proposed ground 5, the appellant contends that the trial judge impermissibly directed the jury as to the order in which they were required to consider the alternative charges of culpable driving and dangerous driving causing death. The judge relevantly gave the following directions:

Well, in fact there is what is called a statutory alternative to the first charge of culpable driving and it is called dangerous driving causing death - that is the shorthand alternative. And I will be directing you about that as well because you would only ever go deal with that charge if you were to find Ms Maher not guilty of Charge Number 1 which is in your indictment and you go on to consider that second one.

Now, as you have been told and as is the case, if after due deliberation, you unanimously return a verdict of not guilty with respect to that offence, Charge Number 1, then you go on to consider - and you will be asked about - the offence of dangerous driving causing death.

Now let me explain this to you very briefly with respect to those two offences. The first one you will be asked to consider first, Charge Number 1, culpable driving. If, after due deliberation, you are persuaded that the unanimous verdict is not guilty, you will then go on to consider dangerous driving causing death.

50 Earlier defence counsel had addressed the jury on this matter:

Briefly, before I make some concluding remarks, in relation to Charge 1, His Honour will direct you that there is a statutory alternative charge; a charge of, what's known as, dangerous driving causing death. Also, obviously a very serious offence and that'll be left for your consideration as well. It's an alternative, the charge of culpable driving, so if you find Ms Maher and obviously, I submit that you should, for good reason, not guilty of culpable driving in Charge 1. You'll then be asked to consider, as an alternative, the charge of what's known as dangerous driving causing death.

51 The appellant submitted that the judge had impermissibly directed the jury as to the manner in which it should approach its deliberations. She relied on Bouch v The Queen,[7] for the proposition that, in a case where dangerous driving causing death is charged as an alternative to culpable driving, the judge must 'direct the sequence of the jury's verdicts but not the sequence of their deliberations'.[8]

52 The appellant submitted that, by directing the order of deliberations, the trial judge had led the jury not to consider whether the alternative lesser offence adequately met the needs of the case.

53 The respondent submitted that use of the term 'consider' did not amount to a direction as to the order of deliberations.[9] It was submitted that the additional words 'after due deliberation', which the judge had also used, showed, along with the use of expressions like 'you will be asked', that the judge was referring to the taking of verdicts rather than the process of deliberation before verdict.

54 Alternatively, the respondent submitted that it was a 'single issue' case in which the jury only had to decide whether the appellant had driven negligently within the meaning of s 318 of the Crimes Act. If so, the jury would convict on the culpable driving charge. If not, it was submitted, the jury would inevitably convict on the charge of dangerous driving causing death. It was therefore difficult to see how any possibility of sequential reasoning could have arisen.[10]

55 In reply, the appellant contended that the jury was required to deliberate on three matters, namely whether the driving was culpable, whether it was dangerous or whether it was neither. It was submitted that it was open to the jury to find that the appellant's driving was merely negligent as understood in civil litigation, careless or accidental. As such, it was not a 'single issue' case.

56 The majority of the High Court said in Stanton:[11]

Jurors are free to organise their individual processes of reasoning, or their discussions as a group, in whatever manner appears to them to be convenient.

57 In our opinion, the judge said nothing to undermine this principle. The impugned directions should not be interpreted as instructing the jury as to the order in which they were required to deliberate in respect of the two alternative charges. Read in context, the judge was explaining the sequence in which verdicts were to be taken after the jury had deliberated, not the manner in which such deliberation was to proceed.

58 But in any event, there was a single question for the jury's determination which did not readily lend itself to sequential consideration. That question was how the standard of the appellant's driving was to be assessed. The jury could have answered that question by finding either of the charges sustained or by acquitting her of both of them. The jury's decision in each case turned on its view of the nature of the appellant's driving on the night in question.

59 For these reasons, leave to add proposed ground 5 should be refused.

Proposed ground 6 - driving 'deserving criminal punishment'

60 The judge gave the following direction to the jury in respect of the meaning of 'culpable':

The second element that the prosecution must prove is that the accused's driving was culpable. The law defines 'culpable' in a number of different ways. In this case it is alleged that Ms Maher drove culpably because she drove with gross negligence so as to be incapable of having proper control of the vehicle.

Now, a person drives with gross negligence if her driving fell so far short of the standard of care a reasonable person would have exercised and involved such a high risk of death or really serious injury that it deserves criminal punishment. This requires you to compare Ms Maher's conduct with the standard of care that a reasonable person would have exercised in the circumstances. Precisely what that standard would have been is for you to decide, taking into account all of the circumstances in which she drove, such as, it was 9.30 at night in November, a fine and clear night, the visibility, well you have four eye-witnesses who were there and who told you about the visibility.

...

Now, remember this is an objective test. That means that the prosecution does not need to establish that Ms Maher intended to cause death, or really serious injury, or that she realised that her conduct was negligent. What matters is what a reasonable person, in her situation, would have known and done.

Let me read that again. What matters is what a reasonable person, in her situation, would have known and done. For this element to be met you must find that the reasonable person in the accused's situation would have realised that her driving created a high risk of death, or really serious injury. You must also find that when compared against the standard of care that a reasonable person would have exercised in the circumstances, Ms Maher's conduct fell so far short that it deserves criminal punishment.

In making your determination, you should consider the reasonable person to be the same age as the accused, to have any specialised knowledge and experience that she had, and to be of ordinary strength of mind. And you will obviously understand from her recorded interview, so you have seen her, she is a young woman driving a car she was familiar with. It was an area of road that she knew well. And that on the day, she had cleaned out her apartment, went out at about 7 o'clock as I recall it, and was returning to it from an evening meal at 9.30.

Now, in considering this question, remember that people do not always drive perfectly. Even the best drivers occasionally lose attention for a moment or make minor mistakes. The offence of culpable driving is not concerned with minor breaches of the expected standard of care even if they result in a collision and someone gets hurt. While that might establish negligence in a civil case, it is not sufficient to establish guilt in a criminal case. For a person to be guilty of culpable driving, more is required. Ms Maher's driving must have been grossly negligent.

61 The appellant contends that, by stating that the jury needed to find that the appellant's conduct 'fell so far short that it deserves criminal punishment', the judge had misdirected the jury. In George v The Queen,[12] the Court observed that since the decision in Bouch:[13]

establishes that it is a misdirection to instruct a jury on gross negligence incorporating the expression 'merits criminal punishment' (or equivalent expressions)[14] - this ground must succeed, subject only to the question whether any miscarriage of justice occasioned by the relevant misdirection was 'substantial'.[15]

62 The appellant submitted that a substantial miscarriage of justice occurred because the direction risked the jury forming the view that the lesser offence of dangerous driving was so insubstantial as to be overlooked. The statement risked the jury concluding that, if they determined that the appellant's driving deserved criminal punishment, then the only appropriate charge was culpable driving, even though the alternative offence of dangerous driving causing death was also an offence that resulted in criminal punishment.

63 The respondent pointed out that the judge made a similar statement in his directions regarding the lesser charge. He told the jury that it should approach the dangerous driving charge 'in a common sense manner, bearing in mind that your answer affects whether or not the accused is held criminally responsible for her actions'. The respondent submitted that the risk to which the appellant drew attention evaporated as a result of there having been dual directions in relation to each of the two charges.

64 In the alternative, the respondent submitted that this Court was in as good a position as the jury to assess the evidence and that the conviction of the appellant for the offence of culpable driving causing death was inevitable.

65 In our opinion, when the impugned part of the direction is read in context, there was no misdirection. The judge carefully explained the elements of gross negligence and of dangerous driving. The two were clearly distinguished. The fact that in each instance the judge pointed out, as would have been obvious, that the jury was deciding whether the conduct of the appellant warranted criminal punishment did not detract from the clear directions that he gave in relation to the different elements of each offence or mean that the jury might have thought that, if they considered that the appellant's conduct was deserving of punishment, they were required to convict on the culpable driving charge.

66 Alternatively, even if it is considered that the judge's reference to conduct deserving of criminal punishment amounted to a misdirection, for the same reasons it did not give rise to a substantial miscarriage of justice. As in Bouch, there was no substantial miscarriage of justice because, if anything, the direction created an additional bar to conviction.[16]

67 Leave to add proposed ground 6 should be refused.

68 A plea hearing was conducted on 21 July and 6 September 2016. On 13 September 2016, the judge sentenced the appellant as follows:[17]

Culpable Driving (Gross negligence) [Crimes Act 1958 s 318(1)]

[Road Safety Act 1986 s 61(1)(a) & (3)]

[Road Safety Act 1986 s 61(1)(b) & (3)]

Licence cancelled and disqualified for a period of 114 months from 13/09/2016.

69 At the time she was given leave to appeal against conviction, the appellant was also given leave to appeal against sentence. The grounds upon which the appellant was given leave to appeal against sentence are:

1. The sentencing judge erred in his assessment that the reason for the appellant's driving 'must remain of course a matter of conjecture and I am unable to make any findings with respect to what caused you to be driving in the manner you were.' In doing so, the sentencing judge failed to have proper regard to the jury verdict, failed to sentence in a manner consistent with the jury verdict, and failed to properly assess the objective gravity of the offending.
2. The sentencing judge erred in his assessment of the 'moral turpitude' of the offending, and placed too much weight and focus on the appellant's prior convictions.
3. The sentencing judge erred in his assessment of the appellant's prospects of rehabilitation, including finding the likelihood of her reoffending was 'likely'.
4. The individual sentences on charges 1 and 2, orders for cumulation and resulting non-parole period are all manifestly excessive in the circumstances.

70 Before turning to the judge's reasons for sentence, it is necessary to briefly describe the appellant's background and some of the material tendered on the plea hearing.

71 The appellant was born in October 1982. She was 31 years of age at the time of her offending, and 33 at the time of sentencing. She was sentenced a little over two years and nine months after her offending. At the time of her offending, the applicant was the sole parent of her two year old son. At the time of sentencing, the applicant was still the sole parent of her young son.

72 The appellant obtained her VCE and then undertook a four-year degree in nursing. Upon her graduation, she obtained employment as a nurse. She worked as a nurse from 2004-2009. In 2009, the appellant was suspended from nursing for three years as a result of having developed an addiction to opiates. At the time of the offending for which she fell to be sentenced, the appellant had obtained casual employment as a delivery driver.

73 At the time of her offending, the appellant had a number of prior convictions from three court appearances as follows:

1. On 24 October 2008, the appellant was dealt with, in the Magistrates' Court, for three charges of aggravated burglary, two charges of unlawful assault, two charges of burglary and five charges of theft. The appellant was sentenced to an aggregate sentence of eight months' imprisonment, which sentence was ordered to be served by way of an intensive correction order with various conditions.

2. On 5 May 2010, the appellant was dealt with, again in the Magistrates' Court, for the following charges: possessing heroin; going equipped to steal or cheat; two charges of failing to answer bail; burglary; handling/receiving/retaining stolen goods; theft from a shop; obtaining property by deception; theft; stating a false name when requested; driving whilst her authorisation was suspended; driving an unregistered motor car; and failing to comply with the intensive correction order previously imposed. The appellant was sentenced to an aggregate sentence of six months' imprisonment, suspended for 12 months and the intensive correction order was varied.[18]

3. On 15 September 2011, the appellant was dealt with, and again in the Magistrates' Court, in respect of a number of driving charges: namely, six charges of disobeying a traffic control signal; five charges of owning/using an unregistered two-axle vehicle; two charges of using a hand-held telephone whilst vehicle in motion; two charges of unlicensed driving; three charges of disobeying instructions on a parking fee sign; two charges of failing to wear a properly adjusted or fastened seat belt; one charge of leaving a vehicle standing longer than the permitted time; five charges of exceeding the signed speed limit of 60 kph; three charges of exceeding the signed speed limit of 100 kph; one charge of exceeding the signed speed limit of 70 kph; and one charge of, being a licence holder, failing to notify a change of residential address. On all of these charges, the appellant was dealt with by way of an adjourned bond to be of good behaviour.

74 In March 2013, the appellant consulted with her general practitioner and requested a referral for psychological consultations. The appellant obtained a referral and then, in October 2013, attended Ms Helen Barnacle, a psychologist who she had previously seen in 2009. In 2013, and prior to the offending the subject of this appeal, the appellant attended Ms Barnacle for two consultations. In a report tendered on the plea, Ms Barnacle described the appellant initially presenting:

in a slightly anxious state, stressed as a result of her older brother's overbearing, possessive and chaotic behaviour which was impacting on [her].

When Stephanie [the appellant] initially attended for counselling (prior to the accident) she was suffering migraines which appeared to be caused at least partially by stress and she had continued to relive the violence and trauma she suffered while in [a] previous long term relationship ... while aged in her twenties. Stephanie has suffered symptoms of post-traumatic stress disorder since this relationship.

These were the issues Stephanie was suffering only weeks before the accident. Stephanie had expressed a desire to process past trauma and its continued impact on her sense of self, and was ready to commence the requirements necessary for a return to her nursing career.

Stephanie had related no issues with drug addiction for some years and had remained stable on her pharmacotherapy program and had continued her participation in Narcotics Anonymous attending meetings regularly.

76 In her report, Ms Barnacle went on to say that Stephanie had attended weekly consultations following her offending (only missing consultations if the appellant and/or her son were sick).

77 Mr Paul was the victim of the appellant's offending. On the plea, the prosecutor tendered a folder of photographs of Mr Paul showing a range of activities that Mr Paul had engaged in with his family and friends. Victim impact statements were tendered from Mr Paul's wife (Mrs Janine Paul), his mother (Mrs Anne Paul), his father (Mr Bernard Paul) and his older sister (Ms Andrea Paul). Mrs Janine Paul read her victim impact statement aloud during the plea hearing. The victim impact statement of Mrs Janine Paul described how their children were too distraught and emotionally fragile to prepare victim impact statements and attend court. The victim impact statements tendered on the plea disclose unambiguously and eloquently the utterly devastating effects of the appellant's offending on Mr Paul's loved ones.

78 As we have already noted, a report of Ms Barnacle was tendered on the plea. In that report, Ms Barnacle diagnosed the appellant as suffering from Post-traumatic Stress Disorder and Major Depression. Ms Barnacle expressed the opinion that, given that the appellant had 'remained stable on a pharmacotherapy program over many years [and] maintained attendance at 12-step program meetings to ensure her rehabilitation from [her] past illicit drug addiction', the appellant was 'at low risk of further offending'.

79 In addition to the tendering of Ms Barnacle's report, a Forensicare report, completed by a consultant psychiatrist (Dr Fiona Best) was tendered, as was a report from another consultant psychiatrist (Dr Prashant Pandurangi).

80 Dr Pandurangi expressed the opinion that the appellant presented with a chronic anxiety disorder, characterised by excessive worrying, panic attacks and somatic complaints. As to the risk of reoffending and the issues of remorse and rehabilitation, Dr Pandurangi said:

There is no clear indication that the offence occurred in context of a mental illness or intoxication with drugs or alcohol. It would be difficult, for me, to comment on her risk of future reoffending, given there were no clear psychiatric conditions which directly led or indirectly contributed to the offence.

...

The question of a person expressing remorse, is a very subjective one and is often difficult to comment on. However, Ms Maher clearly realises and understands the nature of her offences. She describes feeling guilty not only for herself and her family, but also for the victim's family ... . She does not have a psychiatric disorder, such as an enduring psychotic illness or a particular personality disorder or an organic illness, which would devoid her of the capacity of expressing remorse or her expression of remorse to not be considered as genuine.

...

Ms Maher, reportedly, has regularly attended her psychological sessions, has been compliant with her treatment and despite the stressors had not regressed or reverted to drug use to cope. Her rehabilitation would depend on the level of ongoing psychological support she would receive for the underlying depressive and anxiety disorders and also assist her to gain skills to cope with stressors emanating from the impact of the incident on her life. As indicated above she would definitely benefit from regular psychiatric review of her mental state. Given her high levels of motivation, I would consider her prospects of rehabilitation as good, if she receives both psychiatric and psychological support.

There was some difficulty with Ms Maher's level of insight and throughout much of the interview there was a persistent desire to shift the responsibility for her actions to others, and she seems to have had difficulty integrating recent events in a way that might assist her to move forward over time and it seemed easier to blame outcomes on the actions of others than take responsibility for her own life experiences.

By way of example, Dr Best recorded the appellant's account of her collision with Mr Paul in the following terms:

She reports that she went for a drive with her son because they had spent the day tidying up her flat. She reports also that she is not sure that she agrees with the witness statements. She reports that she was a good driver and is not convinced that she was driving in the dangerous manner which had been described by three different independent witness accounts. She reports that she didn't think she had hit anybody and that a rock had hit her car. She reports that she could not understand why other drivers had not dialled 000 flashed their lights or tooted their horn at her.

82 At the conclusion of the Forensicare report, Dr Best expressed the following opinions and recommendations:

On assessment today there was evidence of mild anxiety symptoms which did not meet the threshold for an anxiety disorder. There was no evidence of major depression but evidence of occasional bouts of low mood but no anhedonia (difficulty enjoying activities). Ms Maher currently takes an antidepressant medication (mirtazapine). The current dose of this medication is relatively low (15 mg). It may have some sedating benefits, and is more likely to represent a maintenance dose for depression rather than treatment of active symptoms. Ms Maher reports she has taken antidepressants for much of her adult life. Her presentation today may reflect an adequately treated depression. There is no evidence of any post-traumatic stress disorder symptoms.

Ms Maher reports dependence on prescription medication and heroin which began when she was 21 years old. She is currently on the methadone program and has used a naltrexone implant in the past. Ms Maher reports a variety of difficulties in her adult life, most of these relating to her prescription medication and illicit substance misuse and opiate dependence.

...

For much of the assessment, Ms Maher seemed to rely on a number of cognitive distortions, these most prominently being denial, minimisation and rationalisation. Her focus appeared to be very much on her separation from her son and his wellbeing. Whilst this is to be applauded, she appeared to lack a sense of responsibility for her actions. She would benefit from a therapeutic program that is able to challenge these distortions rather than a type of therapy that is supportive only.

83 Finally, on the plea, the appellant tendered four character references, including one from her mother and one from the mother of her fiancé, and a photograph of her and her son. It is not necessary to say anything further about these documents.

84 The judge commenced his reasons for sentence with a description of the appellant's offending. In the course of this description, the judge said that he had no doubt that the observations of the eyewitness, Mr Newton, that he saw Mr Paul illuminated by the appellant's headlights, and the fact that remnants of Mr Paul's clothing were found embedded in the appellant's windscreen, provided the basis upon which the jury concluded that the appellant had failed to stop after the collision. The judge said that he regarded the appellant's failure to stop as a 'particularly egregious example of that crime'.[19] As the judge put it:

You well knew you had hit a man on a bicycle and you chose to leave the scene and hide your car in an effort to avoid responsibility for your actions. I reject your explanations as to what you did and why after the collision as untruthful.[20]

85 The judge noted that the prosecution case was that the appellant was fatigued while driving on the night in question to such an extent that she knew or ought to have known that there was an appreciable risk of her falling asleep while driving or losing control of her vehicle.[21] The judge then said:

The prosecution was not in a position to prove the cause of your fatigue or apparent fatigue but in order to establish that, relied on the observations of various witnesses, some of which I have just referred to. I should of course also add that your son was present in the vehicle at this time and after you hid your vehicle in the manner you did, you then walked with him back to your apartment where you were when the police arrived shortly afterwards.

You said at the time, and indeed have said subsequently, both to the police and to the various persons to whom you have spoken, including the expert medical witnesses, that in effect you do not accept that there was anything untoward about your driving on that evening and you do not accept the accuracy of the observations of the witnesses. You do not accept that you were tired or suffering fatigue.

This aspect of the case must remain of course a matter of some conjecture and I am unable to make any findings with respect to what caused you to be driving in the manner you were. Of course, the jury's findings are clear and I accept them as I must and sentence you on the basis that your driving was grossly negligent and that you left the scene of the collision knowing full well that you had just collided with a cyclist and your purpose in leaving was to avoid detection by the police or the authorities and hopefully to avoid responsibility of any kind for the collision.[22]

It is the last paragraph of this extract of the judge's reasons that forms the basis of ground 1 of the appellant's appeal against sentence.

86 After referring to the victim impact statements and the great suffering that had been inflicted by the appellant on the victims of the appellant's offending, the judge turned to, and accepted, the following matters as being mitigatory of sentence to be imposed:

• the fact that the appellant's son will 'not have a mother for a very lengthy period of time', and would only be able to see the appellant 'in the confines of prison and presumably only on an occasional basis';[23]
• the appellant's anxiety and depression which will make her 'time in prison more onerous than for the usual prisoner, as will the inability to care and nurture [her] son during his early years';[24] and
• delay brought about by the fact that the appellant's trial had previously been adjourned due to the unavailability of a prosecution witness.[25]

87 The judge also said that the fact that the appellant had not reoffended since colliding with Mr Paul, and had sought to rehabilitate herself, weighed in the appellant's favour in respect of the sentencing process.[26]

88 The judge dealt with the issue of remorse in different parts of his reasons.[27] The judge concluded that, while the appellant had been observed to be upset at times, this upset was 'substantially motivated by self-pity'. Moreover, the judge said that he was unable to find any evidence of remorse.[28]

89 The judge then dealt with the personal circumstances of the appellant, before turning to her prior convictions. In respect of the appellant's prior convictions, the judge said:

You have admitted before me to a number of prior convictions and some of those convictions are, it seems to me, of particular relevance to my task of sentencing you today. I think it useful to briefly summarise some of those matters, particularly those relating to your driving history.

You were before the Melbourne Magistrates' Court on 24 October 2008 on three counts of aggravated burglary, two counts of unlawful assault and charges of theft. You were sentenced to an aggregate sentence of eight months' imprisonment to be served by means of an intensive corrections order with various conditions. There were various other dispositions with respect to other minor matters.

You were again before the Melbourne Magistrates' Court on 5 May 2010. On that occasion there were a significant number of offences, including possessing heroin, going equipped to steal or cheat, two counts of failing to answer bail, burglary, handling, receiving, obtaining stolen goods, shop theft, obtaining property by deception, stating a false name when requested and driving whilst authorisation suspended, using an unregistered motor vehicle and failing to comply with the intensive corrections order which had been previously ordered.

Finally you were before the Melbourne Magistrates' Court again on 29 November 2010 with respect to the variation of the intensive corrections order. In addition to all those matters, there are of course the previous convictions and matters which are not contained within the Victorian LEAP data base and they include a number of driving charges which specify five occasions when you exceeded the speed limit of 60 kilometres per hour, three occasions when you exceeded the speed limit of 100 kilometres per hour, six occasions when you disobeyed a traffic control signal, two occasions when you drove unlicensed, two occasions when you failed to wear a seatbelt, two occasions when you used a telephone handheld and finally five occasions when you owned or used an unregistered two axle vehicle.

It is clear that you have a significant criminal history for one of your years which exhibits a propensity to wilfully disregard the law, whether it is with respect to road use or matters of honesty. Exhibit 7 provides a summary of the matters which give rise to various charges in the Magistrates' Court. That exhibit sets out the circumstances of your offending on Thursday 13 March 2008 which centred on your behaviour when you were observed by a hospital cleaner removing a number of syringes from a trolley within a ward.

You were then observed removing a syringe from a patient-controlled analgesia machine which was connected to the patient. The patient required that drug for pain relief as she was recovering from a kidney transplant. You stated to that patient that you were a nurse from pain services and proceeded to alter her medical chart. You were intercepted by a female nurse who asked you to produce your identification. You were further pressed on your identification and stated your name was Margot Sanger and that you would send another staff member from a department in the hospital to verify your identity. You were subsequently identified as being a former employee at the Alfred Hospital.[29]

You were arrested at your home and interviewed at the police station where you denied any involvement in the incident and answered, 'No comment' to most of the questions asked of you. In my opinion, your behaviour on the particular night when you collided with Mr Paul displayed the same kind of

moral turpitude you exhibited in committing those earlier crimes to which I have just referred.[30]

It is this passage, together with the judge's treatment of the appellant's prior convictions, that forms the basis of the complaints made by the appellant in ground 2.

91 Next, the judge summarised the reports of Ms Barnacle, Dr Best and Dr Pandurangi. The judge said that he preferred the views of Dr Best over the views of Ms Barnacle and Dr Pandurangi insofar as there was disagreement between them.[31] The judge said that the opinion and recommendations of Dr Best reflected his own views after having had the opportunity of watching the appellant and of hearing the evidence that was led during the trial and subsequently on the plea.[32]

92 Finally, the judge dealt with the issues of rehabilitation, general deterrence, specific deterrence, protection of the community and prospects of reoffending. The judge said:

I am satisfied the chances of your rehabilitation are limited. You will be in gaol for a significant period of time and I trust that during that time, the various recommendations of Dr Best in particular are given effect to and you respond to them. If you do then there are some prospects of you being rehabilitated on your release. Presently, however, I do not have any materials to suggest there is any great likelihood of you achieving the rehabilitation that is hoped for.

Of course, as well as the matters personal to you, which I have referred, including the question of rehabilitation, I must also take into account such matters as deterrence and especially general deterrence, which is of considerable importance in a case such as this. Clearly, the community expects that when people drive in a manner in which you did on this evening and kill another citizen in circumstances which are accepted to be grossly negligent, then general deterrence is a matter which weighs very heavily in the scales.

Specific deterrence is also of importance given the nature and extent of your prior convictions and particularly those relating to your consistent breach of the laws relating to the driving and use of vehicles. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your reoffending, which sadly I find to be likely, given the nature and range of your prior convictions and the list of your current problems. I say current problems on the basis that they are the ones identified in the various reports to which I have referred in some detail. Clearly the hope is that whilst you are in gaol, you are able to deal with the emotional, drug and psychiatric difficulties which are there described. In the event that you are successful in dealing appropriately with those matters, there are some prospects that on your eventual release, you will not reoffend.[33]

It is the second sentence of the last paragraph of this extract of the judge's reasons that forms the basis of the complaint made by the appellant in ground 3.

93 The gravamen of the appellant's complaint under ground 1 was that the judge did not sentence the appellant on the factual basis that underpinned the jury's verdict. The case against the appellant (and upon which the jury convicted the appellant) was that the appellant failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances because she drove her vehicle when fatigued to such an extent that she knew, or ought to have known, that there was an appreciable risk of her falling asleep while driving or losing control of her vehicle.[34] The appellant contended that the judge's reasons for sentence, when read with exchanges between the judge and counsel on the plea hearing, suggested that the judge had formed the view (and may thus have sentenced on the basis that) there was a reason, additional to the appellant's fatigue, for the appellant's driving - namely, drug use. As the appellant submitted, there was, however, no evidence of any relevant drug use by her on the night in question.

94 Under ground 2, the appellant submitted that the judge placed too much weight and focus on the appellant's prior convictions. Specific complaint was made about the judge's use of the term 'moral turpitude', which term was said to cover conduct that was 'inherently base, vile or depraved'. Whether a person was guilty of culpable driving was said to involve an objective assessment of that person's driving, in all the circumstances, regardless of intention. The crime of culpable driving, it was submitted, is not a' crime of moral turpitude'.

95 Under ground 3, the appellant contended that the judge erred in his conclusion that it was likely that the appellant would reoffend. The appellant submitted that on a proper consideration of all of the evidence such a finding was not open.

96 Finally, the appellant submitted that the sentences on charges 1 and 2, the order for cumulation and the non-parole period were all manifestly excessive. In oral argument, the appellant concentrated her argument about manifest excess on the nine-year sentence imposed on charge 1. It was submitted that this sentence was manifestly excessive in circumstances where there were none of the usual aggravating features of culpable driving, such as excessive speed, alcohol, drugs, multiple deaths, failing to heed warnings from passengers, being unlicensed or disqualified from driving, being on the wrong side of the road, hooning, or other flagrant or deliberate breaching of the road rules.

97 In support of her complaint of manifest excess, the appellant made reference to the sentences imposed for the offences of culpable driving in the cases of Da Costa v The Queen,[35] Pasznyk v The Queen,[36] Khoja v The Queen,[37] Director of Public Prosecutions v Trueman,[38] George v The Queen,[39] Shields v The Queen,[40] Brayshaw v The Queen,[41] R v Kennedy,[42] R v Williamson,[43] R v Ioane,[44] R v Franklin,[45] Mok v The Queen,[46] R v Cowden,[47] Director of Public Prosecutions v Clark,[48] R v Yusuf,[49] R v Audino,[50] R v Wooden,[51] Hayes v The Queen,[52] Solomano v The Queen,[53] R v Smith,[54] Director of Public Prosecutions v Chambers,[55] R v Merritt,[56] King v The Queen,[57] Leddin v The Queen,[58] Director of Public Prosecutions v Hill,[59] Director of Public Prosecutions v Johnstone,[60] Director of Public Prosecutions v Ciantar,[61] Chaplin v The Queen,[62] Director of Public Prosecutions v King,[63] Director of Public Prosecutions v Aparo,[64] R v De Montero[65] and Fuller v The Queen.[66] It was submitted that a review of the sentences imposed in these cases discloses a range of sentences for counts of culpable driving from as low as three years to as high as 10 years. Moreover, in circumstances where there were none of the usual features of aggravation associated with culpable driving, it was submitted that the sentence of nine years imposed upon the appellant was wholly outside the permissible range open to the sentencing judge.

98 The respondent submitted that the judge did not err in any of the ways asserted in grounds 1, 2 or 3. In relation to ground 1, it was submitted that the judge was entitled to seek to learn more about the circumstances in which the appellant became so fatigued that she collided with Mr Paul. Far from seeking to attribute some drug-related cause to the appellant's offending, the judge was doing no more than giving the appellant an opportunity to explain (and perhaps mitigate) the circumstances of her offending.

99 As to ground 2, the respondent submitted that there was no basis for contending that the judge gave too much weight to the appellant's prior convictions.

100 As to ground 3, the respondent submitted that the judge's findings as to the likelihood of reoffending were open when one had regard to all of the evidence (including the applicant's prior convictions).

101 On the issue of manifest excess, the respondent conceded that the sentence imposed on charge 1 was 'stern'. It was submitted, however, that that sentence, the other sentences imposed, the order for cumulation and the non-parole period were all within the permissible range of sentencing options open to the judge, and that the appellant's complaint of manifest excess must be rejected.

102 In our view, the sentence imposed by the judge was not manifestly excessive. Manifest excess, as has been said many times before, is a difficult ground to make out. The sentence imposed must be wholly outside the permissible range open to the sentencing judge. While the sentence on charge 1 was, as the respondent conceded, stern, it was, on the facts of this case, open.

103 While many of the sentences imposed on individual counts for culpable driving in the cases relied upon by the appellant are significantly lower than the sentence imposed in this case, the facts and circumstances of those cases are, to varying degrees, different from the present case. Twenty-three of the cases referred to by the appellant involved pleas of guilty, whereas only nine involved pleas of not guilty. It is to be remembered that the appellant pleaded not guilty.

104 The principles relating to the use of comparable cases have been recently discussed by the High Court in Director of Public Prosecutions v Dalgliesh,[67] and by this Court in Kalofolias v The Queen.[68] It is not necessary to restate those principles here. It is sufficient to say that when one takes current sentencing practices into account 'as one of the factors relevant in fixing a just sentence', it cannot be said that the sentence imposed by the judge was manifestly excessive. Undoubtedly, the sentence imposed by the judge on charge 1 was high, but it was not wholly outside the permissible range.

105 The complaints made by the appellant in grounds 2 and 3 overlap. The judge discussed in considerable detail the appellant's offending in 2008 that led to the imposition of the intensive correction order (specifically the aggravated burglaries committed while the appellant was a trespasser on hospital premises for the purpose of stealing particular drugs). The judge moved from the issue of the appellant's prior convictions to the proposition that it was necessary to protect the community from the appellant.[69] From there the judge proceeded to the finding that the likelihood of the appellant reoffending was 'likely'. The following points may be made about this analysis.

106 First, it is to be remembered that the principal offence for which the appellant fell to be sentenced was an offence constituted by the gross negligence of her driving, due to fatigue. While protection of the community is one of the purposes for which a sentence may be imposed,[70] one would not ordinarily expect a sentencing judge to refer to the need to protect the community from an offender convicted of offences of the present kind in the circumstances in which the appellant in fact committed these offences. Protection of the community is an obvious consideration in the cases of those who cause injury or death by the deliberate breaching of road rules (speed, alcohol, drugs, driving on the wrong side of the road, fishtailing, hooning and the like). Protection of the community is not, however, of the same level of significance in a case where the relevant injury or death was caused by fatigue.

107 Secondly, the judge's reasons are not perspicuous as to the offences that his Honour considered were 'likely' to be committed by the appellant in the event that she 'reoffended'.

108 Thirdly, it is not entirely clear what his Honour meant by saying that the 'likelihood of [the appellant] reoffending was likely', or in what sense his Honour was using the word 'likely'. As to this latter point, on one view the judge meant no more than that there was a 'real possibility' of reoffending.[71]

109 Fourthly, on all of the evidence tendered on the plea, it is difficult to see the basis on which the judge concluded (or, indeed, could have concluded) that it was 'likely' that the appellant would reoffend. Such a finding might well be open in circumstances where one is considering the case of an accused with a long and persistent criminal history. In the present case, however, there was good material suggesting that the appellant had made substantial efforts to rehabilitate herself (there being periods of years during which she did not offend) such that it would be not reasonably open to contend that there was an actual likelihood of further serious offending.

110 The severity of the sentence imposed on charge 1 appears to us to have been brought about by the judge's views that the community needed protecting from the appellant in circumstances where her past history suggested that she was likely to reoffend. With respect, in our view, the judge relied too heavily on the appellant's past offending (committed as it was some years earlier, and involving offences of a significantly different type or level of seriousness).

111 In the circumstances, we would uphold ground 3 of the appellant's appeal against sentence. The evidence before the judge did not justify a conclusion that the likelihood of the appellant reoffending, in a way that made protection of the community an important sentencing consideration in all of the circumstances of this case, was 'likely'. It seems to us that it was this finding by the judge that led him to ultimately impose a sentence on charge 1 that was, at the least, 'stern' when compared to the cases to which we were taken in argument.

112 Before dealing with the consequences of upholding ground 3, and for the sake of completeness, we should say that we do not think that the appellant's complaints under ground 1 have been made out. We accept the respondent's submissions that, in seeking to learn more about the cause of the appellant's offending, the judge was not attempting to undermine, or disregard, the jury's verdict or the basis upon which the appellant had been convicted.

113 Ground 3 having been made out, the sentencing discretion is reopened. We would set aside the judge's sentence on charge 1 and resentence the appellant to seven years and six months' imprisonment on that charge. We would otherwise impose the same sentences as the judge imposed with the same orders for cumulation on charges 2 and 3, making a total effective sentence of nine years and six months' imprisonment. In all of the circumstances, we would fix a non-parole period of seven years. Otherwise, apart from declaring the appellant's presentence detention to the date of the orders we will make, we would confirm all of the other orders made in the County Court (including the order for the appellant's licence to be cancelled and the disqualification period imposed by the judge).

114 The appeal against conviction will be dismissed. The appeal against sentence will be allowed and orders will be made that result in a total effective sentence of nine years and six months' imprisonment with a non-parole period of seven years.

[1] The judge directed the jury separately under s 23 as to the lies told by the appellant during her record of interview. No issue is now taken with respect to the content or width of that direction.

[2] Di Giorgio v The Queen [2016] VSCA 335 [46]-[59].

[3] See Dunn v The Queen [2017] VSCA 371 [54].

[4] [2007] VSCA 111.

[6] JDA s 16.

[7] (2017) 80 MVR 85 ('Bouch').

[9] Reference was made to Bouch (2017) 80 MVR 85, 96-7 [52], [53]; Smith v The Queen [2013] VSCA 112; (2013) 39 VR 336; Vo v The Queen [2013] VSCA 225; (2013) 39 VR 543; Medici v The Queen [2013] VSCA 111; (2013) 39 VR 350.

[10] Stanton [2003] HCA 29; (2003) 77 ALJR 1151, 1157 [37] ('Stanton').

[11] [2003] HCA 29; (2003) 77 ALJR 1151, 1157 [35].

[12] [2017] VSCA 152 [24] (Ashley JA).

[13] Bouch (2017) 80 MVR 85.

[14] Ibid 86 [1] (Redlich and Weinberg JJA); 100 [72] (Whelan and Ferguson JJA); 121 [135] (Priest JA).

[15] Criminal Procedure Act 2009 ss 276(1)(b) and (c).

[16] Bouch (2017) 80 MVR 85, 88-9 [17] (Redlich and Weinberg JJA), 126 [153] (Priest JA). In Bouch there was the additional feature that there was a risk that the jury might conclude that the conduct found in the charge of dangerous driving causing death did not have to possess the character of conduct meriting criminal punishment: [136]. That risk , if present at all in this case, was diminished by the direction given on that charge to which reference has been made above.

[17] DPP v Maher (Unreported, County Court of Victoria, Judge Parsons, 13 September 2016) ('Sentencing Reasons').

[18] The intensive correction order was varied again, at the Magistrates' Court, on 29 November 2010. On the plea, counsel for the appellant accepted that there had been some unspecified breach of the intensive correction order that led to the variation. Counsel, however, pointed out to the judge that no penalty was imposed on the appellant for this breach.

[34] See ss 318(2)(b) and 2A(a) of the Crimes Act 1958.

[35] [2016] VSCA 49; (2016) 307 FLR 153.

[36] [2014] VSCA 87; (2014) 43 VR 169.

[37] [2014] VSCA 9.

[38] [2017] VSCA 24.

[39] [2017] VSCA 152.

[40] [2011] VSCA 386.

[41] [2011] VSCA 233.

[42] [2006] VSCA 77.

[43] [2009] VSCA 21; (2009) 21 VR 330.

[44] [2006] VSCA 84.

[45] [2009] VSCA 77.

[46] [2011] VSCA 38.

[47] [2006] VSCA 220; (2006) 166 A Crim R 318.

[48] [2010] VSCA 64.

[49] [2006] VSCA 178.

[50] [2007] VSCA 318; (2007) 180 A Crim R 371.

[51] [2006] VSCA 97.

[52] [2010] VSCA 170.

[53] [2013] VSCA 320.

[54] [2006] VSCA 92.

[55] [2006] VSCA 189.

[56] [2008] VSCA 238; (2008) 191 A Crim R 272.

[57] [2011] VSCA 69; (2011) 32 VR 233.

[58] [2014] VSCA 155.

[59] [2012] VSCA 144.

[60] [2006] VSCA 281; (2006) 16 VR 75.

[61] [2006] VSCA 263; (2006) 16 VR 26.

[62] [2010] VSCA 145.

[63] [2008] VSCA 151.

[64] [2011] VSCA 207.

[65] [2009] VSCA 255; (2009) 25 VR 694.

[66] [2013] VSCA 186.

[67] [2017] HCA 41 ('Dalgliesh').

[68] [2017] VSCA 308 [49]-[50] ('Kalofolias').

[70] See s 5(1)(e) of the Sentencing Act 1991.

[71] See the meaning given to the word 'likely', albeit in different contexts from the present, in Livingstone-Thomas v Associated Newspapers Ltd (1969) 90 WN (Pt 1) (NSW) 223, 229; Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156, 166; Boughey v The Queen (1986) 161 CLR 10, 20; Martin v Henderson Industries [2004] VSCA 19 [45].