Gorladenchearau v The Queen [2011] VSCA 432, considered.

1 I agree with Ferguson AJA that the appeal should be allowed and that the appellant should be resentenced as she proposes.

3 On 20 January 2012 the appellant, pleaded guilty to one charge of theft, one charge of negligently causing serious injury and one charge of failing to render assistance after an accident.

4 Following a plea, the appellant was sentenced on 27 January 2012 as follows:

[s 74 Crimes Act 1958 (Vic)]

[s 24 Crimes Act 1958]

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

[s 61(3) Road Safety Act 1986]

8 years', 6 months' imprisonment, with a non-parole period of 6 years', 6 months' imprisonment

On charge 1, licence cancelled and appellant disqualified for 12 months

On charge 2, licence cancelled and appellant disqualified for 24 months

On charge 3, licence cancelled and appellant disqualified for 8 years

5 There are four grounds of appeal against the sentences imposed. They are:

1. The sentence imposed on charge 2 was manifestly excessive in the light of current sentencing practice, the circumstances of the offence and the relevant mitigating considerations.
2. The cumulation ordered in respect of charge 3 was manifestly excessive given the circumstances of the offence and the length of sentence imposed on charge 2.
3. The sentencing judge erred in applying the principles set down in R v Verdins, Buckley and Vo.[1]
4. The sentencing judge erred in his assessment of the relevance to sentencing of delay.

6 Dr Heather Hunter and her husband, Dr John Jarman were active people. They lived in Sale. On Saturday mornings they would go on a long cycle ride through Stratford, Clydebank and back to Sale. Although they took the same route, they did not start off together. Dr Hunter would leave home about 10 minutes before her husband and he would catch up to her at some stage during the ride. They would then finish the ride together. They set out on such a ride on the morning of Saturday, 10 October 2009. Their ride that day was to end tragically.

7 Unbeknown to Dr Hunter and her husband, the appellant had stolen a Toyota Land Cruiser the preceding day.[2] At the time, the appellant was 21. He told police that he slept in the Land Cruiser overnight but did not get much sleep because he had not taken his prescribed medication for a couple of days. He never held a driving licence and had never driven a vehicle like the Land Cruiser.

8 Shortly before 8am on the Saturday morning, he was driving the Land Cruiser down a long straight stretch of country road, not far from Sale. It was a fine day and visibility was good. He should have been able to see another road user from several hundred metres away. It is not clear exactly what happened, but he came upon Dr Hunter and the Land Cruiser hit the rear of her bicycle.[3] Initially Dr Hunter was not expected to survive. She sustained severe injuries to her spine, brain and pelvis and spent 6 weeks in the intensive care unit of the Royal Melbourne Hospital. At the time, Dr Hunter was 56 years of age.

9 Police accident reconstruction experts estimated that the Land Cruiser was travelling at 64 kph when the collision occurred. The speed limit was 100kph. The paved surface of the road was 6.2 metres wide and the lane that Dr Hunter was riding in was 3 metres wide. Analysis of the scene indicated that the vehicle left the paved surface at some point before the collision. Skid marks indicated that the vehicle had braked heavily more than 11 metres after the point of impact, at which time the vehicle was straddling the edge of the paved surface of the road. One wheel was on the paved surface and the other on the gravel at the side. The Land Cruiser's bull bar had struck the bicycle at a point .62 metres (or two feet) in from the passenger-side edge of the vehicle.

10 The appellant claimed in his interview that the cyclist (to whom the appellant referred as 'he') had been standing up on the pedals and weaving from side to side. As a result of this weaving the appellant claimed to have struck the cyclist a glancing blow as he passed. It was not disputed at the plea that this account was false. The appellant did not give any explanation for the false account nor did he give any alternate account of what had happened.

11 Shortly after the collision, some passers-by saw Dr Hunter in a seated position on the ground near the open passenger door of the Land Cruiser, which had been reversed back from the skid marks. The appellant was standing behind Dr Hunter. Her bicycle was on the tray of the utility. The appellant told police in his interview that he had tried to lift Dr Hunter into the vehicle to get help.

12 When another driver stopped, the appellant left Dr Hunter and attempted to drive the Land Cruiser away. It rolled into a ditch at the side of the road. The appellant got out of the vehicle and ran away into nearby wetlands.[4] The police searched for him. Some hours later he surrendered himself at a police road block. He stated that he had panicked when he saw a witness running towards him and talking on a mobile phone. He feared he would be blamed for hitting Dr Hunter deliberately.

13 At the time of the collision, Dr Jarman had not caught up to his wife on their ride. He came to the scene of the collision and realised that the injured person was his wife. He was naturally quite distressed at his wife's state. An ambulance had already been called by one of the passers-by who had stopped to help. Dr Jarman examined his wife until the ambulance arrived.

14 As I have said, Dr Hunter was severely injured. Her injuries included severe brain damage, multiple spinal fractures, a fractured pelvis, various other fractured bones and a collapsed lung. The brain injuries caused global cognitive impairment, reduced capacity to retain information, poor short term memory and substantial executive dysfunction. At the time of the plea hearing, which was more than two years after the collision, Dr Hunter remained wheel-chair bound, unable to carry out activities of daily living for herself and requiring full time care. Her social functioning remained severely compromised and she continued to suffer substantial pain requiring opiate analgesia. Significant improvement was unlikely. Her husband has given up his job so that he can care for his wife. Their lives will never be the same again. The impact of what the appellant did has affected not only Dr Hunter and her husband. The Sale community has also been deeply affected by the terrible events of the morning of 10 October 2009.

Ground 3 - the application of the principles in Verdins

15 The appellant submitted that the sentencing judge erred in applying the principles set down in R v Verdins, Buckley and Vo.[5] Those principles are set out in the following oft-quoted passage from the judgment:

Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.[6]

16 The judge carefully reviewed the various reports about the appellant's intellectual disability noting that Mr Bernard Healey, a clinical psychologist, had described the disability as mild to moderate.[7] The judge also referred to the report of Dr Simone Riley, a clinical neuropsychologist, and said:

She concluded that your executive functions were a considerable weakness in your cognitive profile, with difficulties working with information that was novel and complex or required complex processes. She said that you were functioning, therefore, at an intellectual level significantly below most same-aged peers, but your learning and memory for spoken information is intact, which means that you can attend to, learn, and remember, new information, though it is harder for you than for others. On a basic level she says you understand the difference between right and wrong. She says you are severely limited in your ability to self manage your behaviour and that you have significant difficulties determining how to act in a given situation. Further, that you have a limitation in ability to review your behaviour in its aftermath and therefore to learn from your mistakes.[8]

17 The judge then considered the court-ordered report of Dr Firuz Begic of Forensicare in which it was noted that the appellant had been registered with Intellectual Disability Services. The judge noted that the appellant had reported to Dr Begic that he had stopped taking his medication and using illicit substances a few days before the accident.[9] The judge also observed that the appellant had told Dr Begic that this had resulted in poor sleep and had resulted in him feeling 'out of [his] mind'.[10] The judge also made reference to Dr Begic's conclusion that the appellant's offending appeared to be linked to his mild intellectual disability and substance abuse, but noted that this assessment related not only to the County Court charges but also to various outstanding charges in the Magistrates' Court.[11]

18 Having undertaken this review, the judge determined that it was quite difficult to reach any decision as to any causal link or connection between the appellant's intellectual disability and the actual offences.[12] However, the judge accepted that the appellant is intellectually impaired[13] and that his level of functioning does impact upon his decision making and capacity for rational judgment and control.[14] Applying Verdins, the judge accepted that the appellant's moral culpability was somewhat reduced.[15] The judge also determined in favour of the appellant that prison would be more burdensome for him.[16] Further the judge said:

I am prepared to temper or moderate, to an extent, the principles of specific and general deterrence, but these are both still significant purposes of sentencing, given your history and the nature of this offending involving as it does yet another act of senseless destruction on the roads.[17]

19 The appellant's history, to which the judge referred, included driving and alcohol related offences, theft, wilful and obscene exposure when he was a teenager and for which the Childrens' Court placed him on probation without conviction. Other later offences which were also dealt with in the Childrens' Court included aggravated burglary and wilful and obscene exposure. The appellant also faced previous charges for which he was convicted in the Magistrates' Court including indecent assault and stalking. The appellant committed the offences which are the subject of this proceeding whilst he was on parole.[18]

20 Having noted that he attached some weight to the first, third, fourth and fifth matters set out in the passage above from Verdins, the judge continued:

but I conclude also, that the reduction in your moral culpability is balanced out to a degree by an increased demand of protection of the community. You present as a person with a significant risk of re-offence in part because of these various conditions referred to.[19]

21 The appellant submitted that having found that he suffered from a mental impairment which warranted the mitigation of sentence, the judge made findings about the weight to be accorded general deterrence, specific deterrence and moral culpability which were inconsistent with those findings and the principles enunciated in Verdins. In essence, the submission was that in imposing the sentences that he did, the judge gave too much weight to the need to protect the community and had insufficient regard to the appellant's disability and its relationship to his prospects of rehabilitation, remorse and his criminal history (such that he was given little credit for his youthfulness).

22 The Crown submitted that the appellant's argument was not consistent with Verdins as it has applied in this Court[20] or with the High Court's application of the principles applicable to sentencing of an offender with an intellectual disability.[21] The Crown submitted that the correct approach is to consider and test the effect of cognitive impairment against all sentencing considerations. So, it was contended, it does not follow that there will be an automatic discount of the sentence because of the presence of cognitive impairment. A discount on moral culpability might be offset by an increase due to danger to the community.

23 The Crown submitted that the judge gave appropriate weight to the appellant's youth balanced against the current offences and the appellant's criminal history. The Crown observed that material drawing a nexus between the criminal history and the appellant's disability was not before the court.

Did the judge err in applying the relevant principles?

24 In my view, there is no error in the way that the judge approached the application of the principles in Verdins. The judge carefully considered the relevance of the appellant's disability to moral culpability, specific and general deterrence but he also took into account other relevant sentencing factors. Those factors include the need to protect the community. As a result, the judge saw fit to exercise the sentencing discretion such that a longer sentence was imposed than may have been the case if the appellant did not have as significant a history of offending. It was open to the judge to exercise the discretion in this way.

25 There was a delay of about five months in the laying of the charges of theft and failing to render assistance and a further delay of about six months before the charge of negligently causing serious injury was laid. The appellant pleaded guilty very early to the first charges that were laid. The last charge of negligently causing serious injury resulted from further investigations undertaken by the prosecution after the first charges had been laid. The appellant pleaded guilty to the last charge a few months after it was laid. There was then further delay until the plea hearing.

26 The judge took into account the delay of 11 or 12 months. He said:

Clearly enough, there was nothing capricious or foolish about the prosecution application to further investigate, as that led to the laying of a more serious charge, the most serious of all of the three by far and your acceptance of the correctness of that charge as signalled by your guilty plea. So this was not a case of the prosecution sitting idly on their hands and adopting a leisurely approach to the resolution of this matter. Thereafter, once laid, you have had the present ability to bring the matter to a head and you have chosen for whatever reason not to do so. I do not reach any conclusion against you in terms of ... that delay. You can't be punished for it. What is significant, though, unfortunately, is that far from engaging in a process of self rehabilitation, once bailed, I have been told, that you have committed fresh offences whilst on bail for these matters. Though I did not invite the prosecutor to place before me the full details of those matters, it became apparent from your counsel's submissions that they are proceeding by way of guilty plea. Therefore, there is no ability to point to the passage of time and any process of self-rehabilitation. Far from it. So then I take the delay into account, as I have indicated, but it is not a matter of any great mitigatory weight in this case.[22]

27 It was submitted on behalf of the appellant that because of his youth and disability any delay was likely to weigh heavily for him. It was submitted that delay is a relevant matter irrespective of whether there was an explanation for it and irrespective of whether it is accompanied by rehabilitation in the interim. So, it was submitted, the judge erred in concluding that because the prosecution conduct which had contributed to the delay was reasonable and because the appellant had not achieved any rehabilitation during the delay, it was not a matter to be given any real weight.

28 The Crown contended that the judge did take delay into account as well as the fact that the appellant had not engaged in a process of self rehabilitation. In those circumstances, the Crown contended that the judge did not err when he concluded that he could not give delay any great mitigatory weight.

Did the judge err in his treatment of the issue of delay?

It is the effects of delay that are important for sentencing. As in R. v. Law, the prisoner's age at the time of sentencing may mean that he is less likely to re-offend. His health or life expectancy may make service of a sentence of imprisonment more onerous than usual. There may be considerations of fairness, especially where the delay is attributable to the prosecution or there has been a significant period of uncertainty or curtailment of liberty after the offences came to light. There may be practical considerations that require a marked degree of leniency to be extended. The foregoing is by no means an exhaustive list and it omits the most important potential effect of delay, namely rehabilitation. The person standing for sentence may have been rehabilitated in one or more ways. He may have given up a form of substance abuse that contributed to the offending. He may have reordered his life. He may have changed morally so that, quite apart from being older, he would not be likely to re-offend. He may have suffered genuine remorse in the sense of repentance, not just sorrow at being caught and fear of punishment. So far as possible, a lengthy process of rehabilitation should not be halted or endangered by the sentence imposed.[24]

30 Bearing that in mind, in my opinion, it is clear that the judge had appropriate regard to the delay and the effect that it had. I do not think that the judge was focussing on the causes of the delay when assessing what weight to give it as a factor in the sentencing task. He made it clear that he was not punishing the appellant for the delay. Rather, as he should have, the judge looked at what had happened during the period of delay and noted that there had been no rehabilitation of the appellant during that time.

Ground 1- current sentencing practice, circumstances of the offence and mitigating considerations

31 Relevant to this ground is the decision in Gorladenchearau v The Queen.[25] In that case, the President reviewed the various offences in respect of which charges may be brought when driving causes death or injury or creates a risk of either. The President noted that the level of negligence required to be established is the same whether the charge is one of culpable driving causing death ('CDCD') or negligently causing serious injury ('NCSI'). The difference between the two offences is whether the victim dies or is seriously injured. The maximum penalty for the former offence is 20 years, whilst the maximum penalty for NCSI is 10 years. The President noted that in 2008 the maximum penalty for NCSI was increased from 5 to 10 years and he considered the background reform work that led to this increase. His Honour noted that there was a focus in the reforms on the need to recognise the degree of harm caused to the victim and quoted the following passage from what the then Attorney-General had said when introducing the Bill to double the maximum penalty:

[T]he concern with negligently causing serious injury is that the statutory maximum is too low. The [Victorian Sentencing Advisory Council] has recommended that the maximum penalty be increased from five years to 10 years' imprisonment. This will recognise the harm caused by the offender more adequately than the existing maximum penalty.

Many of the most serious negligently causing serious injury offences are connected with motor vehicle collisions. ...

The bill increases the maximum penalty ... to 10 years. This places greater emphasis on the harm caused by the offence, in line with the Government's continuing commitment to road safety.[26]

32 At the time of Gorladenchearau, there had been four previous appeals concerning sentences imposed for NCSI since the increase in maximum penalty. The President held that those cases were directly relevant when considering the range of sentence reasonably available in the circumstances of the case. His Honour stated:

That is so because cases of driving-related NCSI have a shocking similarity. The critical features recur: speed, inattention, intoxication (alcohol or drugs) and (often) prior convictions for driving offences. As a result, they form a class of cases - as do cases of CDCD, and cases of glassing as a species of recklessly causing serious injury - where sentencing comparisons are more readily drawn than in relation to other offences, such as manslaughter, which are characterised by an infinite variation of circumstances. As the present appeal illustrates, the ready comparability of cases means that sentencing disparities are more starkly exposed.[27]

33 The President considered each of the four cases in the following terms:

In Pollard[28], the defendant had a blood alcohol concentration of 0.181 per cent and was travelling at 'considerable speed' when the collision occurred. He had no prior convictions. The victim suffered serious injuries to both legs, has continuing pain and some limitation of movement. The Court dismissed an appeal against a sentence of 3 years and 6 months for NCSI...

In Mok,[29] the driver had a blood alcohol reading of between 0.180 and 0.195 per cent. (Because he had a recent prior conviction for drink driving, the applicable limit was zero.) At the time of the collision, he was travelling at 125 kph in a 60 kph zone. In addition to the prior conviction for drink driving, he had had his licence suspended for exceeding the speed limit by 30 kph. The victim suffered a severe closed head injury. At the date of sentence she had not been able to undertake complex tasks such as driving or returning to work.

The driver was sentenced to 4 years' imprisonment on the count of NCSI (and to 7 years' imprisonment on one count of CDCD). On appeal, the NCSI sentence was reduced to 3 years and 6 months, and the CDCD sentence to 6 years and 6 months. The forgiveness of the victims' families, and his sincere remorse, were viewed as significant considerations.

In Brayshaw,[30] the driver had been travelling at 122 kph in a 70 kph zone. He was drug-affected at the time. He was only on the road, however, because of an urgent request from friends of his who 'wanted help to escape from a situation which was awkward, if not dangerous'. He had prior convictions 'for drink driving and other traffic offences'. His appeal against a sentence of 2 years for NCSI (and a sentence of 8 years for CDCD) was dismissed.

Finally, in Shields[31] ..., the driver had a blood alcohol concentration of 0.221 per cent. He was travelling at 77 kph in a 60 kph zone. He had two prior convictions for drink driving and a further prior conviction for driving at a dangerous speed, for each of which his licence had been cancelled. The victim suffered 'very severe traumatic brain damage'. It was likely that 'some of his physical and cognitive deficits' would be permanent. On appeal, the sentence of 5 years' imprisonment for NCSI was reduced to 4 years. (A sentence of 10 years for CDCD was reduced to 8 years.) The Court emphasised the importance of current sentencing practice, and consistency in sentencing, in determining the applicable range.[32]

34 In Gorladenchearau, the driver was unlicensed and had a blood alcohol concentration of 0.13 per cent. He was travelling at approximately 88kph in an 80kph zone. He drove through a red light and hit another car carrying 3 people, one of whom sustained a closed head injury causing traumatic brain damage. At the time of impact, having braked, the appellant's car was travelling at between 62 and 66 kph. He was sentenced to 5 years imprisonment. On the appeal, the President stated that unconstrained by the earlier appeal decisions to which he had referred, he would not have interfered with the sentence imposed.[33] However, there was an unjustifiable disparity between the sentence imposed on the appellant in that case and the sentences for NCSI imposed on the earlier offenders.[34] The sentence was reduced to 4 years imprisonment. Ashley JA and Ross AJA agreed with the orders made by the President and observed:

...so far as any current sentencing practice is discernible with respect to the offence with its now increased maximum penalty, the sentence which the judge imposed ... appears out of kilter.[35]

35 In the present case, the sentencing judge concluded that the combination of high negligence and extreme harm made the offending a very bad instance of negligently causing serious injury. The judge noted that he was bound by Gorladenchearau. He stated:

So then the president of the Court of Appeal was not free to ignore recent decisions, and nor of course am I, but as I say, I am required to impose what I regard as an appropriate and just punishment and I pay regard to current sentencing practices. There is no arithmetical equivalence commanded by these other decisions. The appellant in [Gorladenchearau], had no prior history. He had pleaded guilty very early. He had a good work record. He had sustained himself, post traumatic stress disorder since the accident and had, what were judged to be, good prospects of rehabilitation and genuine remorse. So too, in one of the other cases surveyed, Shields v. R [2011] VSCA 386, was there the earliest of pleas and genuine remorse and clearly less serious injuries engaged. What in your case, of course, I have concluded that there was no remorse present and I have concluded that you have poor prospects of rehabilitation and you have a significant criminal history.[36]

36 The appellant contended that Gorladenchearau was a case involving worse driving than the present and observed that the Court of Appeal had there held that the penalty of 5 years originally handed down was not in accord with current sentencing practice. The appellant submitted that he was entitled to expect to be sentenced in conformity with the current sentencing practice found to exist in Gorladenchearau but the fact that the sentence imposed on him was nearly 50 per cent higher than that imposed in Gorladenchearau suggested that this had not occurred. He submitted that the finding that his negligence was very high must be erroneous when assessed in comparison to Gorladenchearau because:

(b) he was driving at a modest speed for a country road;

(c) his negligence lay in his failure to keep a proper lookout;

(d) his failure to keep a proper lookout might have been the result of fatigue and a 'micro-sleep' but the issue was not explored at the plea.

37 The appellant accepted that the seriousness of the injury caused was on a similar footing to Gorladenchearau.

38 The appellant relied on the sentencing judge's finding that the Verdins principles applied and, as such, less weight was to be given to general deterrence in the appellant's case. The appellant also pointed to the judge's finding that the appellant's moral culpability was reduced because of his intellectual disability. Although the appellant accepted that some weight might properly be given to protection of the community, and that it was open to find that his prospects of rehabilitation were poor, he contended that this offence was not one where either of those matters was an important sentencing consideration. In conclusion the appellant submitted that given his youth, his disadvantaged background, the burden of imprisonment and that delay were also matters to be weighed, the sentence imposed was clearly out of kilter with current sentencing practice.

39 The Crown submitted that the Court's approach in Gorladenchearau was in error in elevating the significance of current sentencing practices to a level which did not accord with the proper purposive interpretation of s 5 of the Sentencing Act 1991 (Vic). In aid of that submission, counsel for the Crown referred to the second reading speech pertaining to the Sentencing Bill, during which it was explained that the Bill was based on the recommendations of the Starke Committee. Counsel emphasised the Committee's recommendation of the use of guideline judgments as the means of establishing uniform sentencing practices. As counsel observed, although the Sentencing Act made provision for guideline judgments, there have been none. Rather, counsel contended, there has developed an increasing tendency of the kind demonstrated in Gorladenchearau to treat a handful of individual sentences as determinative of the sentence to be imposed. In counsel's submission, that approach is not only at odds with a proper purposive construction of s 5 of the Sentencing Act, but also with earlier authorities in this Court and the High Court, in that:

(a) it amounts to an impermissible two-part sentencing approach[37] constituted of first taking into account all of the relevant sentencing considerations in order to arrive at the sentence which ought properly be imposed, and then, as it were for a second time, having regard to sentences imposed in other cases in order to reduce the figure first arrived at;

(b) it erroneously equates the notion of current sentencing practices with numerical equivalence with terms of imprisonment imposed in other cases, as opposed to consistency in the application of correct sentencing principle;[38] and

(c) it impermissibly treats sentences imposed in other cases as setting the upper and lower limits of the permissible range.[39]

40 The Crown relied on Hili v The Queen.[40] In that case, the High Court observed that the criminal justice system must be systematically fair and, amongst other things, this requires reasonable consistency in sentencing.[41] The court went on to note that consistency 'is not demonstrated by, and does not require, numerical equivalence.'[42] Rather, what is required is consistency in the application of the relevant legal principles:

When it is said that the search is for 'reasonable consistency,' what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form.[43]

41 The court noted that in achieving consistency, judges must have regard to what has been done in other cases, but care must be taken in doing this.[44] The court elaborated:

In Director of Public Prosecutions (Cth) v De La Rosa,[45] Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned."

As the plurality said in Wong:[46]

"[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were."[47]

42 The Crown also relied on Stalio v The Queen.[48] In that recent case, this Court held that although s 5(2) of the Sentencing Act includes factors to which the sentencing judge must have regard, those factors are not to be regarded as exclusive nor are they to be regarded as 'fundamentals.'[49] Further, the Court held that what is encompassed by the term 'sentencing practice' is wider than just the term of imprisonment imposed and that it:

includes current practice with respect to the use of pre-sentence reports, drug and alcohol reports, and victim impact statements. It extends beyond practice with respect to sentences of imprisonment, to youth justice centre orders, community correction orders and suspended sentences.[50]

43 The Crown submitted that the correct approach for a sentencing judge to take is:

(a) to consider all the relevant matters set out in s 5 (including other relevant matters not specifically set out);

(b) to consider such cases as are referred to by counsel or known to the judge where there is sufficient information available to determine the 'unifying principles' that were applied;

(c) to consider such cases as one of many factors to be taken into account in the intuitive synthesis of the appropriate sentence in the case under consideration; and

(d) not to use such cases as proscribing the limits within which the sentencing discretion is to be imposed.

44 If that approach were to be adopted in this case, the Crown contended that the appellant's sentence was within range. The victim sustained catastrophic injuries of the highest order. The Crown submitted that the appellant's negligence was 'very high' because:

(b) he demonstrated extraordinary incompetence in handling a car he was not experienced with;

(c) the collision occurred on a stretch of road that was straight for a considerable period of time;

(e) the driving is even more egregious because of the absence of alcohol and speed;

(f) the appellant inexplicably failed to see the victim;

(g) the victim was a cyclist and exceptionally vulnerable and at risk of great harm from the negligence of the appellant.

45 The Crown submitted that relevant sentencing considerations that justified some weight included the protection of the community and the finding that the appellant's prospects of rehabilitation were poor given his prior convictions. Therefore, the Crown contended, the degree of negligence and the seriousness of the injury caused justify the sentence that was imposed with that sentence being appropriate and within range. So far as the appellant sought to complain because the sentence imposed was higher than in Gorladenchearau, the Crown contended that complaint is misconceived because it equates mathematical equivalence with sentencing practices.

Did the judge fail to take account of current sentencing practice?

46 As I have set out above, the thrust of the Crown case[51] was that the President's reasoning in Gorladenchearau was in direct conflict with Hili. However, I do not understand the President's reasoning in that way. Rather, in effect, what the President said in Gorladenchearau was that if one only had regard to some matters relevant to sentencing (maximum penalty, nature and gravity of offence, injury sustained, general deterrence, lack of prior convictions) the sentence imposed would have been justified. However, when regard was also had to the circumstances of the offending in comparative cases and the sentences imposed in the four earlier NCSI cases, the sentence imposed at first instance could not stand. His Honour did not, as the Crown contended, take current sentencing practice into account twice. Rather, he had regard to it together with other relevant factors in arriving at the conclusion that the sentence was manifestly excessive. In essence, the process that the President employed was that which the Crown urged should be adopted by sentencing judges and to which I have made reference in [43] above.

47 Turning then to this case, in my opinion, the sentence is not within range. I might say at this point that if the Court were only required to take into account some of the matters relevant to sentencing, including the maximum penalty and the impact on Dr Hunter and her husband as victims of the offence, I would not have been minded to disturb the sentence that was imposed. However, the sentencing task is more complex than that.

48 In my opinion, when all relevant sentencing matters (including current sentencing practice as reviewed in Gorladenchearau) are taken into account, it is obvious[52] that the sentence imposed was manifestly excessive. It is beyond the range reasonably open to the sentencing judge. Whilst some factors commonly found in cases of this kind were present, for example prior driving related convictions, there were no drugs, alcohol nor speed involved. In considering the differences between the present case and Gorladenchearau and the cases surveyed in it, the judge did not have due regard to the absence of intoxication and speed. The sentence was more than 50 per cent of the maximum penalty and nearly 50 per cent higher than those imposed in Gorladenchearau and Shields. It was beyond the range that was reasonably open to the sentencing judge.

Ground 2 - cumulation on charge 3 manifestly excessive

49 This ground of appeal concerned whether the cumulation ordered in respect of charge 3 was manifestly excessive given the circumstances of that offence and the length of sentence imposed on charge 2. The sentencing discretion having been reopened, cumulation will need to be reconsidered as part of that exercise. Had it been necessary, I would have allowed the appeal on this ground. The appellant submitted that he had made an early guilty plea to this offence. It was also submitted that, on one view, he had initially attempted, within his limited capacities, to 'immediately render such assistance' as he could, before decamping such that the guilty plea had particular value.[53] Further, it was submitted that there was no evidence that his failure to render assistance had any consequences in terms of Dr Hunter's injuries. In those circumstances, it was contended, the gravamen of the offence was the moral turpitude involved in failing to assist a person in need, but the appellant's moral culpability was reduced by his intellectual disability. Consequently, it was submitted that the cumulation of 12 months was manifestly excessive and led to a sentence which offended the principle of totality.

50 The Crown submitted that although there is no evidence that the appellant's conduct after the collision contributed to the victim's injuries, this is a serious example of the offence. The Crown observed that the appellant placed the victim's bicycle in the car before moving a seriously injured woman in alarming circumstances. The Crown contended that the explanation for decamping demonstrated the appellant's greater regard for himself than the victim. In those circumstances, the Crown submitted that a degree of cumulation was warranted and that cumulation of 12 months was moderate in the circumstances of this case.

51 In essence, I accept the thrust of the appellant's submissions in respect of cumulation on charge 3.

52 The appellant is the youngest of five children. At the time of the collision he was 21. He is now 24. He was born in Sale. His family moved around when he was young. As a result, he attended several primary schools in Gippsland and Queensland. He struggled at school and left in year 9. From about the age of 12, the appellant used drugs and alcohol. I have already noted his intellectual disability and his criminal history.

53 Turning then to the collision and its consequences. The judge accurately described the injuries to Dr Hunter as 'devastating, catastrophic.' They were of a very high order. There is no satisfactory explanation as to how the collision occurred. The appellant's account of what happened was false. He did not proffer any other explanation. Consequently, all that is known is that visibility was good, it was a straight country road which was not unusually narrow, there was no other road user coming from the opposite direction that would have prevented the appellant from taking a wider berth around Dr Hunter's bicycle; he should have been able to see a cyclist half a kilometre ahead on the road but inexplicably the Land Cruiser left the road and collided with Dr Hunter's bike. It is a failure to keep a proper look out of a very serious kind and must be regarded at the high end of negligence. As I have said, there was no alcohol nor speed involved. I do not accept the Crown's submission that this makes the offending more egregious. Rather, intoxication and speed exacerbate the risk of harm.[54] In Shields and Gorladenchearau, the sentence imposed was four years. Both involved severe injuries to the victims, some speed, alcohol and unlicensed driving.

54 In addition to those matters are the other relevant sentencing factors considered by the judge - the appellant's youth, guilty plea, delay, lengthy criminal history, poor prospects of rehabilitation, intellectual disability, specific and general deterrence and the need to protect the community.[55]

55 In the result, I would resentence the appellant on charge 2 to four years' imprisonment and treat that as the base sentence. I would retain the same sentence as the judge imposed on him on charge 1 of 12 month's imprisonment with three months of that sentence to be served cumulatively on the sentence imposed on charge 2. I would resentence the appellant on charge 3 to the same sentence of 30 months' imprisonment as the judge imposed but I would order that six months of that sentence be served cumulatively on the base sentence and the sentence imposed on charge 1. I would order that the Total Effective Sentence be a period of four years nine months.

56 As to the non-parole period, I consider that the appellant's lengthy criminal history, poor prospects of rehabilitation, the requirements of specific and general deterrence and the need for community protection require that the appellant serve not less than four years of the sentence.

57 Accordingly, I would allow the appeal and resentence the appellant as follows:

[s 74 Crimes Act 1958 (Vic)]

[s 24 Crimes Act 1958]

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

[s 61(3) Road Safety Act 1986]

58 Finally, I would declare for the purposes of s 6AAA of the Sentencing Act 1991 that, but for the appellant's plea of guilty, I would have sentenced him to a total effective sentence of five years, nine months' imprisonment with a non-parole period of four years six months.

59 I would retain the other orders that the judge made in relation to disqualification of the appellant's licence to drive.

[1] [2007] VSCA 102; (2007) 16 VR 269.

[3] Charge 2 - negligent driving causing serious injury.

[4] Charge 3 - failure to render assistance after an accident.

[5] [2007] VSCA 102; (2007) 16 VR 269.

[13] Details of the appellant's background, including as to his intellectual disability, are set out in the judge's Reasons for Sentence [72]-[80].

[18] The appellant's history is set out in Reasons for Sentence [65]-[70].

[20] The Crown relied on Tran v The Queen [2012] VSCA 110, [15]-[16], and [22]-[24].

[21] The Crown relied on Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120.

[23] [2001] VSCA 196.

[25] [2011] VSCA 432.

1. [26] Victoria, Parliamentary Debates, Legislative Assembly, 6 December 2007, 4414 (Rob Hulls, Attorney-General).

[27] [2011] VSCA 432, [43] (footnotes omitted).

[28] Pollard v The Queen [2010] VSCA 156.

[29] Mok v The Queen [2011] VSCA 38.

[30] Brayshaw v The Queen [2011] VSCA 233.

[31] Shields v The Queen [2011] VSCA 386.

[32] Gorladenchearau v The Queen [2011] VSCA 432, [44]-[48].

[37] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, 375 [39].

[38] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 537 [54].

[39] Ibid; DPP v OJA [2007] VSCA 129; (2007) 172 A Crim R 181, [29]-[31].

[40] [2010] HCA 45; (2010) 242 CLR 520.

[45] [2010] NSWCCA 194; (2010) 243 FLR 28.

[46] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 606 [59].

[47] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, [54] (footnotes omitted).

[48] [2012] VSCA 120.

[51] Although it was raised by Redlich JA in his reasons for granting leave to appeal, the Crown did not contend that there was no 'current sentencing practice': Miller v The Queen (Unreported, Redlich JA (with whom Neave JA agreed) 27 July 2012, [9]). His Honour observed that there would be further questions to be answered dependent upon the answer to the question as to whether the previous sentences constitute a current sentencing practice.

[52] See Hanks v The Queen [2011] VSCA 7, [22] where it was said 'To succeed on this ground [of manifest excess] the excess must be obvious, plain, apparent, easily perceived or understood and unmistakable.'

[53] Phillips v R [2012] VSCA 140, [36].

[55] Reasons for Sentence [49]-[55] and [60]-[87].