1 The appellant, Kevin Joseph Marsh, pleaded guilty in the County Court at Shepparton, to one count of negligent driving causing serious injury. He was sentenced to a term of three years' imprisonment, 18 months of which was suspended for three years.

2 The background facts can be briefly stated. On 23 April 2008, the appellant was driving a B-Double combination semi-trailer on the Hume Highway near Clonbinane at about 12:15pm when his vehicle collided with the rear of a Country Fire Authority (CFA) truck being driven by Mr Allan Kosmer. The collision caused Mr Kosmer to sustain serious physical injury, and some residual brain damage. It seems that the appellant, who was an experienced driver, and who had previously led an otherwise exemplary life, fell asleep whilst driving, or in the sentencing judge's words, 'had a micro-nap'.

3 There was no suggestion that the appellant had ingested alcohol or drugs and no indication that he had been speeding. Neither the road conditions nor the weather contributed in any way to the collision.

4 All that could be said by way of aggravation was that shortly before the collision, the appellant was struggling to stay awake. He had already veered out of his lane on at least one occasion before checking himself and correcting his vehicle's path. The gravity of the offending lay in the fact that the appellant chose to keep driving, despite knowing that he was drowsy, and that his faculties were therefore impaired.

5 The maximum penalty for this offence was, at the relevant time, ten years' imprisonment, though it had only been increased from five years' imprisonment some weeks beforehand.

6 Mr Kosmer, upon admission to the Alfred Hospital, was found to have sustained a significant injury to the brain. He also had lacerations to the ear and to one elbow. He was treated, for some months, at the Epworth Rehabilitation Centre in Camberwell, having been diagnosed with a serious cognitive deficit. However, by October 2008, doctors considered him fit to return to work with the CFA, albeit under strict conditions. In fact, he did not recommence his duties with the CFA until about a year later, in part because he underwent surgery for what seems to have been an unrelated tear to the rotator cuff.

7 In his victim impact statement, Mr Kosmer said that, as a result of the collision, he was confined to part-time work with the CFA, resulting in a substantial drop in income. His injuries had led to a loss of right-side coordination and he now walked with an unsteady gait. He also suffered from short-term memory loss.

8 Mr Kosmer said that he was no longer able to look after his two young daughters independently, but needed another adult to be present. He had previously gained a tertiary degree in forestry science and, prior to the accident, had cultivated a large vegetable garden. However, after the collision, he could no longer maintain more than a small portion of that plot. He said that the quality of his social life had been severely reduced. Ironically, by reason of his condition, restrictions had been placed upon his driver's license.

9 Mr Kosmer's wife, in her victim impact statement, commented upon the nightmares which one of their daughters had suffered since her father's injury. She described her husband and herself as having been given 'a life sentence'. She spoke of his now-seemingly permanent disability, saying 'nobody comes out of this without scars'.

10 Character evidence was led on behalf of the appellant on the plea. He was born in New Zealand in 1968, left school at 17 and joined the army. He served in the army for more than 13 years. A number of testimonials from his superiors were tendered. These, and others from his subsequent employers, attested to his work ethic and his honesty.

11 The sentencing judge noted that once the reality of what the appellant had done had sunk in, he had resolved never to drive a truck again. He had subsequently gained employment as an 'order-picker', which involved little more than driving and operating a forklift. His then-current employer described him as 'dedicated, well-liked and respected'.

12 Finally, it should be noted that evidence was led on the plea from the appellant's partner, who said that immediately after the accident his sole concern was for the well-being of Mr Kosmer. She confirmed that the appellant had not driven a truck since the collision and that he had resolved to never again do so. She informed the Court that prior to the plea, the appellant had read the two victim impact statements. She said that he had been shocked and distressed to learn of the extent to which his actions had resulted in suffering to Mr Kosmer and his wife.

13 The appellant made a statement in court expressing his profound sorrow for what he had done. The sentencing judge described this as a 'heartfelt and sincere expression of remorse'. His Honour said that this was the first time in more than 12 years on the Bench that he had witnessed such an event.

15 There are four grounds of appeal. They are as follows:

1. The sentence is manifestly excessive.
2. The learned sentencing judge erred in treating the applicant's fatigue as aggravating the offence.
3. The learned sentencing judge erred in treating the applicant's culpability as indistinguishable from that of a driver affected by alcohol.
4. In light of the view about sentencing now expressed by the victim and his wife, this Court should re-sentence the applicant.

16 Nettle JA, who dealt with the application for leave to appeal, granted leave, but only on ground 4. With respect, his Honour was correct to have done so.

17 As regards ground 1, it cannot realistically be contended that the sentence of three years' imprisonment, of which 18 months was suspended, was manifestly excessive. This was not a case of momentary inattention resulting in unforeseen, and unforeseeable, consequences. To the contrary, the collision was an entirely foreseeable result of the appellant having chosen to continue driving a large and heavy vehicle at a time when he knew that he was so drowsy that he had previously, and possibly more than once, nodded off at the wheel.

18 With regard to ground 2, the sentencing judge said that the appellant's offending was aggravated by the fact that he was aware of his fatigue well before the collision. His driving had been erratic, and had necessitated his having to regain the correct lane.

19 It was submitted on the appellant's behalf that for his Honour to have approached the matter in that way was, in one sense, to double count the gravity of the offending. That was because it was the fatigue which had led to his having fallen asleep at the wheel that lay at the heart of the offence itself. That same fatigue could hardly, in those circumstances, be treated also as an aggravating feature of the offence.

20 In our view, that submission cannot be accepted. The negligence with which the appellant was charged of course consisted in his having driven whilst fatigued. Properly construed, the sentencing judge's remarks regarding fatigue did not treat his having driven in that condition as an aggravating factor. Rather, what his Honour did regard as having aggravated the offence was that, after having driven for some time, and possibly having twice nodded off, before each time regaining consciousness, the appellant made a conscious decision to continue driving. In our view, that was properly to be described as an aggravating feature of this offence.

21 That takes us to ground 3. It was submitted on behalf of the appellant, on the plea, that fatigue was 'not as serious a basis of offending as is the consumption of alcohol or drugs'. The sentencing judge rejected that submission. However, it must be understood that in doing so, his Honour referred to the fact that the appellant must have been conscious of his fatigue at least an hour before the collision, but chose to continue to drive. In the same way that a driver who is intoxicated makes a conscious decision to drive knowing that he or she is not in a fit state to do so, so too does a driver who is clearly fatigued.

22 It was submitted that his Honour's observation was contrary to the view expressed by Batt JA in R v Satalich[1] which was said to reflect a distinction in moral culpability between driving whilst sleep deprived as against driving whilst highly intoxicated.

23 As Nettle JA observed in rejecting this ground on the leave application, Batt JA did not suggest in Satalich that there may not be circumstances where driving whilst fatigued could not be as morally reprehensible as driving whilst intoxicated. Moreover, Batt JA had spoken of a person being 'highly intoxicated', in comparing moral culpability with sleep deprivation. Additionally, such culpability involves questions of fact and degree, and value judgments as to which reasonable minds may differ.

24 That takes us to ground 4, which was the only ground that Nettle JA held to be arguable. As his Honour observed, at the time the appellant was sentenced, both Mr Kosmer and his wife had reason to expect, and probably to hope, that the appellant would be justly and severely punished. The sentencing judge proceeded on that basis.

25 After sentencing, however, the position changed. On 4 June 2010, Mr and Mrs Kosmer wrote to the Court saying, in effect that, after careful reflection, they had forgiven the appellant for what he had done, and expressing a wish that he be permitted to serve the remainder of his three year sentence in the community, without his being actually further incarcerated. In other words, their attitude towards the appellant had changed, and they were anxious to have the Court take that into account.

26 Nettle JA considered that it was reasonably arguable that, had the sentencing judge been aware that Mr and Mrs Kosmer had forgiven the appellant, in the way that they had, his Honour may have suspended a greater proportion than he did of the term of imprisonment that he imposed. Nettle JA added that it was also reasonably arguable that this change of heart on the part of the Kosmers fell within the well-established principles laid down by this Court in R v Eliasen.[2] It would no longer be a question of whether the sentencing judge fell into error, but whether in the light of the new material and the changed attitude on the part of the victim and his family, a different sentence should be substituted.

27 In Eliasen, the appellant had pleaded guilty to a number of counts of theft and armed robbery. He was sentenced to an effective term of imprisonment of three years and six months which, when served cumulatively upon other sentences that he was undergoing, resulted in a maximum sentence of eight years. He was subsequently found to be HIV positive. It was submitted on appeal that the sentence was manifestly excessive in the circumstances.

28 Crockett J, with whom McGarvie and Phillips JJ agreed, held that there was no error by the sentencing judge when determining the appropriate sentence. Nor were any of the individual sentences or the effective head sentence excessive. However, the Court might, if appropriate, permit evidence to be led of matters that had occurred after sentence had been imposed. The additional evidence could lead to the imposition of a different sentence, even where the sentencing judge's discretion had not miscarried. In the instant case, the appellant's illness warranted a reduction in the total effective sentence from three years and six months to two years and six months.

29 In our view, this is a case to which the principles laid down in Eliasen apply. That is not to say that, in every case on appeal, a sentence is to be reduced merely because the victim of the offending has subsequently forgiven the offender, or has sought a more lenient disposition. In many cases, considerations of both general and specific deterrence, and denunciation, will require such factors to be given only the most limited weight.

30 The Court must always be extremely mindful of the need for caution before receiving additional evidence of this kind. A claim that the victim has forgiven an offender is plainly susceptible to abuse and must be scrutinized with great care. See generally in that regard the observations of the Full Court in R v Piercey.[3]

31 The attitude of the victim who has forgiven an offender will always, however, be relevant and, in appropriate cases, with appropriate safeguards, can be received by this Court.[4] At the very least, it will bear upon what Vincent JA, in particular, often described as 'social rehabilitation'.[5]

32 In the present case, it can fairly be said that there is little to be gained, in terms of just punishment or specific deterrence, by requiring the appellant to serve more than the ten months or so incarceration that he has already undergone. General deterrence has also been adequately served by the fact that the appellant has already been imprisoned for what, in the context of this case, is a significant period.

33 The offence to which the appellant pleaded guilty was one of negligence, and not one involving any classical form of mens rea. Accordingly, the measure of punishment appropriate for such an offence must be heavily dependent not upon moral culpability, but rather upon the consequences of the offending for the victim. That makes the attitude of the victim, and especially his forgiveness of the offender, particularly relevant in such a case.

34 In addition, there were powerful mitigating circumstances present in this case. When coupled with the extraordinarily compelling tone of the Kosmers' letter to the Court, we consider that there is scope for a merciful disposition in this appeal. That is especially so when one bears in mind, as we have said, that the maximum penalty for this offence happened fortuitously to have been raised from five years to ten years within weeks of the commission of this offence.

35 We should emphasise that in allowing this appeal, we make no criticism of the learned sentencing judge. His Honour acted on the material as it stood before him. The position is different now, and greatly so.

36 In our view, the appeal should be allowed. The sentence imposed should be set aside. In lieu thereof, the appellant should be sentenced to a term of three years' imprisonment. Two years, two months and two weeks of that sentence should be suspended for a period of two years, two months and two weeks.

37 In order to avoid doubt, we wish to make it clear that it is our intention that the appellant be released on the basis of time served. It is, of course, necessary that he be informed appropriately of the effect of this order and for him to signify his understanding thereof. The consequential order directing that the appellant be disqualified from obtaining a license to drive a motor vehicle for 24 months from 19 March 2010 is confirmed.

38 We should add that, but for the plea of guilty, the appellant would have been sentenced to a term of four years and six months' imprisonment with a non-parole period of two years.

[1] [2004] VSCA 132, [17].

[2] (1991) 53 A Crim R 391, 396.

[3] [1971] VicRp 79; [1971] VR 647, 655.

[4] R v Marasovic (Unreported, CCA, 16 February 1982); R v Hutchinson (1994) 15 Cr App R (S) 137 and R v Skura [2004] VSCA 53, [13] (Eames JA) and [47-[48] (Smith AJA).

[5] In that regard, the Court noted the presence of Mr and Mrs Kosmer during the hearing of this appeal, and their obvious concern at what might be its outcome.