Nei Lima Da Costa Junior v The Queen [2016] VSCA 49

CRIMINAL LAW - Appeal - Sentence - Mitigating factors - Risk of deportation - Whether changes to Migration Act 1958 (Cth) capable of constituting 'fresh evidence' - Whether changes to Ministerial Directions capable of constituting 'fresh evidence' - Whether mandatory cancellation with option for revocation materially different risk - Risk remains matter of speculation - Expectations of the Australian community - No different sentence required - Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288 - R v Tabone [2006] VSCA 238; (2006) 167 A Crim R 18 - Darcie v The Queen [2012] VSCA 11 - Migration Act 1958 (Cth) ss 501(3A), 501CA.

1 The applicant (now aged 32) pleaded guilty to three charges of culpable driving, three charges of negligently causing serious injury and one charge of reckless conduct endangering life. He was sentenced as follows:

Other orders: Licence cancellation (effective as of date of sentence), licence disqualification for the balance of the non-parole period.

2 The applicant seeks leave to appeal on the following grounds:

1. The fact of my mandatory deportation following expiration of my minimum term constitutes fresh evidence and requires that the sentencing discretion be reopened and this factor be taken into account in mitigation of sentence; and
2. The individual sentences imposed upon me, the extent of cumulation ordered, and resulting total effective sentence and non-parole period are manifestly excessive in particular having regard to current sentencing practices and the principle of totality.

3 For reasons which follow, we would refuse leave to appeal.

Circumstances of the offending****[4]

4 On 12 January 2014, the applicant was driving east at high speed along Dandenong Road when he caused a fatal accident at the intersection of Dandenong Road and Warrigal Road. The applicant's vehicle entered the intersection on a red light, fatally struck a pedestrian and collided with a southbound vehicle through the intersection. This vehicle contained five people and, as a result of the impact with the applicant's vehicle, spun and struck a pole on the centre median strip. As a result of the impact with the applicant's vehicle and the pole, two of the occupants were killed and the three others were seriously injured. The applicant's vehicle, following the impact of the first collision, also collided with a second vehicle.

5 In the days prior to the offending, the applicant had used an unknown quantity of methylamphetamine (or 'ice'). At approximately 8.08 pm on 12 January 2014, the applicant drove into the Crown Casino car park at Southbank. He remained in the car, apparently sleeping, until he was spoken to by a casino official at 11.18 pm. The applicant was asked to move away from the area. The applicant said he had been tired and had been having a nap. There was then discussion about whether he should be driving. The applicant drove out of the car park at about 11.23 pm.

6 The applicant's vehicle was observed driving on Queens Road (away from the casino) at a high speed. He was then seen driving erratically on Dandenong Road, changing from lane to lane, as the vehicle approached the intersection with Chapel Street. Continuing along Dandenong Road, the applicant failed to stop at a red light at the intersection of Dandenong Road and Glenferrie Road and was observed failing to stop at a further red light near the intersection of Tooronga Road and Dandenong Road.

7 At the intersection of Dandenong Road and Belgrave Road, the applicant's vehicle activated a speed camera which recorded its speed as 122 km/h. The camera was activated at 11:34 pm. The applicant's vehicle passed Chadstone shopping centre, where it was observed travelling at high speed, and approached the intersection of Dandenong Road and Warrigal Road.

8 The applicant's vehicle struck the pedestrian, Mr Anthony Parsons, at 11.35 pm. At the time the vehicle entered the intersection, the light had been red for at least 18 seconds and his vehicle was travelling between 118 and 124 km/h. The speed limit was 80 km/h. Mr Parsons and his wife had been walking south along the western side of the intersection. The pedestrian lights they faced were green. Mr Parsons walked across the first lane of Dandenong Road and had just begun to cross the second lane when he was struck by the applicant's vehicle. Mr Parsons' wife was walking behind him, and it is she who was the victim in respect of Charge 7.

9 When Mr Parsons was struck by the applicant's vehicle, he was thrown just over 52 metres to the eastern side of the intersection. The applicant had taken no evasive action. Mr Parsons suffered terrible injuries, including the severing of his right arm, and died either upon impact or shortly afterwards.

10 Having struck Mr Parsons, the applicant's vehicle continued through the intersection, narrowly missing a number of cars. It then collided at right angles with a vehicle driven by Menelaos Menelaou. Mr Menelaou's vehicle was travelling in the left hand lane of the southbound carriageway of Warrigal Road. As the applicant's vehicle struck Mr Menelaou's vehicle, it lifted off the ground and hit the front passenger side of another vehicle being driven by John Young, who was in the right lane of the southbound carriageway of Warrigal Road. Upon being struck, Mr Menelaou's vehicle rotated and the rear of the vehicle struck a light pole in the centre median strip of the intersection.

11 In addition to Mr Menelaou, the people travelling in the vehicle driven by him were his parents, Savvas Menelaou (aged 67) and Ismini Menelaou (aged 59), as well as Elias and Maria Mesaritis. Maria Mesaritis was the sister of Ismini Menelaou. Savvas and Ismini Menelaou were in the rear centre and rear driver's side seats in the vehicle. Both died at the scene. Elias and Maria Mesaritis were seriously injured, as was Menelaos Menelaou, who became wedged in his seat following impact. All three were taken to hospital.

12 Whilst being treated by ambulance officers at the scene, the applicant claimed he had been travelling at 80 km/h. He said that, upon seeing a turning vehicle, he had applied the brakes but could not stop. The applicant later told a paramedic that he did not know how fast he had been travelling. When told that the speed limit was 80 km/h, he said that he must have been doing that speed. The applicant also told police at the scene that he had been travelling at 80 km/h.

13 A preliminary breath test was administered at the scene and the applicant tested negative. A blood sample taken at hospital was also negative for alcohol. The blood sample did, however, reveal methylamphetamine at a concentration of 0.07 mg/litre and amphetamine at a concentration of 0.03 mg/litre. Also revealed to be in the applicant's system was metoclopramide, an anti-nausea medication.

14 The prosecution informed the sentencing judge that Dr Maurice Odell from the Victorian Institute of Forensic Medicine had considered the drug levels found in the applicant's system and concluded that they were quite low. Nevertheless, Dr Odell said, any concentration of those drugs was likely to produce symptoms inconsistent with safe driving.

15 According to Dr Odell, the applicant's speedy and risky driving was what would be expected from someone in a stimulated state due to intoxication with amphetamines. But his tiredness and the relatively low blood concentration of methylamphetamine were 'more suggestive of a fluctuating state of rebound fatigue from use of stimulants in the preceding day or two'. Whilst not able to be certain to what extent drug intoxication and/or fatigue had contributed to the applicant's behaviour, Dr Odell concluded that he was adversely affected by stimulant drugs at the time of the collision. This conclusion was accepted by the sentencing judge.

16 Menelaos Menelaou spent two weeks in intensive care at the Alfred Hospital, as a result of the extensive fractures and other life-threatening injuries he suffered. Without extensive medical treatment, the injuries he suffered would have been fatal. He underwent a rehabilitation programme at the Acquired Brain Injury unit at the Epworth Hospital and received further treatment for his injuries and complications arising from them. He was discharged after three months. His rehabilitation was expected to continue.

17 Elias Mesaritis suffered fractures and lacerations to one of his kidneys and his liver. He spent two days in hospital. He now suffers from post-traumatic stress disorder.

18 Maria Mesaritis suffered very serious fractures and other life-threatening injuries. She spent 12 days in hospital initially and was hospitalised in one form or another for just under two months, undergoing intensive care and management. Mrs Mesaritis also suffered a mild traumatic brain injury.

19 The judge accepted that the applicant's consumption of methylamphetamine was 'a contributing factor' to his conduct, but concluded that the conduct

was also entirely conscious and deliberate. That is the most aggravating feature of what you have done.[5]

20 His Honour described the gravity of the offence in terms which should be set out in full:

The driving you engaged in over a significant distance before the horrific collision at the intersection of Dandenong Road and Warrigal Road was perhaps an indication that something catastrophic was going to occur. It was inevitable that if you maintained that manner of driving along busy roads in a built up area, as you did, death and serious injury would result. You are not charged in relation to that part of the narrative but it is part of the background to the charges you do face and demonstrates why your offending is so culpable.

The three culpable driving charges were put by the Crown on the basis of recklessness under s 318(2)(b) of the Crimes Act 1958 (Vic), alleging that you consciously and unjustifiably disregarded a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from your driving.

Your actions on this night were not part of any momentary lapse of attention as sometimes occurs when a serious motor vehicle incident happens. This shocking collision occurred after the sustained period of driving at life threatening speeds that I have described. The collision occurred a little after 11.30pm on a January evening when you must have realised there would be people and vehicles containing people in the vicinity of this major intersection and the earlier roads on which you had travelled. That is a particularly aggravating feature of what you did. The law says that there are a number of factors which will aggravate the seriousness of a driving offence causing death or serious injury.[6] Many of them apply to you. Apart from the realisation that there would be people in the vicinity of your driving exposed to serious risk, the following are also relevant:

• extent and nature of the injuries inflicted;
• number of people put at risk;
• degree of speed;
• degree of intoxication or of substance abuse;
• erratic or aggressive driving;
• length of the journey during which others were exposed to risk;
• ignoring of warnings; and
• degree of sleep deprivation.[7]

You were alone in the car. However, every time you entered an intersection against a red signal you were ignoring the warning implicit in that signal that if you did not stop there would likely be a serious collision. Indeed, the driving that caused these three deaths and seriously injured three people occurred when you entered the intersection at an absurdly high speed at least 18 seconds after the traffic control signal applicable to you on Dandenong Road had changed to red. The intersection with Warrigal Road is one of the busiest intersections in the Melbourne metropolitan area. It carries a high volume of traffic in multiple lanes. Your driving was bound to cause a catastrophe and it did. There is no explanation from you for what you did and I am left to consider whether your consumption of drugs is in some way an explanation for your conduct. I have no doubt that it contributed to your state of mind but you made a deliberate choice to drive like this over a significant distance.

The consequences of your actions were devastating. I respectfully agree with the prosecutor that each of these charges of culpable driving is at the upper end of the range of seriousness. I have, as I am required to, considered current sentencing practices in relation to the offences to which you have pleaded guilty. Each of them is a very serious example of the particular offence. In addition this is, of course, a case where general deterrence becomes very significant. The offence of culpable driving and the related offences are obviously very serious matters in that they involved, in the former case, the taking of life by your recklessness as well as, in the latter case, the infliction of serious injury on others and the endangerment of one other person. The community must understand that such conduct will bring substantial punishment and you, likewise, must be deterred from any repeat of this conduct.

...

This is, of course, a case where the legal principle of totality is significant. That requires me to impose on you a total effective sentence after aggregation of the sentences on each individual count that is just and appropriate for the total criminality involved in your actions.[8]

Looking at the totality of your conduct it is difficult to contemplate driving offences more serious than yours. You had been using methylamphetamine in the lead up to the driving. From your earlier conduct you appeared to be fatigued. However, your driving prior to the collision was over a distance of some 14 kilometres and was consistently extremely dangerous without any regard to the safety of other motorists or pedestrians. You travelled at extreme speed and in breach of several traffic control signals.

The reason why you drove your vehicle in the manner you did is connected with your earlier consumption of methylamphetamine coupled with your deliberate decision to drive in the way I have described.

I accept Mr Dane's submissions on your behalf that your conduct was one course of impulsive and unplanned conduct. However, the entirety of that conduct lasted over a significant distance and was therefore extended and deliberate rather than momentary. [9]

21 We turn now to deal with the question of deportation.

22 It has long been the case, for Australian residents who are not Australian citizens, that conviction of a serious criminal offence carries with it the risk of deportation upon the completion of sentence. When it was first enacted in 1958, the Migration Act 1958 (Cth) empowered the responsible Minister to order the deportation of an 'alien' upon proof of such a conviction.[10] In more recent times, the legislative mechanism to enable this to occur has involved deeming a person with such a conviction to fail what is called 'the character test'.[11]

23 In 2010, in Guden v The Queen,[12] this Court confirmed that the prospect of an offender's deportation was

a factor which may bear on the impact which a sentence of imprisonment will have on the offender, both during the currency of the incarceration and upon his/her release.[13]

24 The Court accepted that the prospect of deportation was capable of bearing upon the sentencing decision in two distinct ways. First, the fact that the offender would serve the term of imprisonment in expectation of being deported following release

may well mean that the burden of imprisonment would be greater for that person than for someone who faces no such risk.[14]

in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. Taking a practical approach, ... this may well be viewed as a serious 'punishing consequence' of the offending.[15]

25 The Court in Guden made clear, however, that the sentencing court was not required, and could not be expected, to speculate about the likelihood of deportation occurring. Thus, it was said, if no more could be said than that a sentence of imprisonment would enliven the power to deport, then

deportation may properly be viewed ... as 'a completely speculative possibility'.

26 As to the second aspect - additional punishment - the Court adopted what Nettle JA had said in R v Tabone[16] in relation to the comparable question of the risk of confiscation of property following a conviction, and said:

That is, in the absence of evidence or an appropriate concession by the Crown, there will be no error in a judge declining to take into account the possibility of deportation. Indeed, in order properly to assess the weight to be given in any particular case to a risk of deportation, evidence would be required sufficient to permit a sensible quantification of that risk to be undertaken. It would also be necessary for a prisoner to demonstrate that deportation in his/her case would in fact be a hardship.[17]

27 Subject to the availability of appropriate evidence, both of those arguments were potentially available to defence counsel on the plea in the present case. It was inevitable, given the seriousness of the offending, that the applicant would be sentenced to a term of imprisonment of more than 12 months. That fact would mean that he was at risk of deportation.

28 In the event, however, defence counsel made only the briefest of references to this topic on the plea. After referring to the 'normal hardships' that attend a long sentence - in this case, the applicant's separation from his family and from his wife and child living in Melbourne, as well as from his child in Brazil - counsel said:

[T]here may be a consideration ... of the long-term consequences. He is not a citizen of Australia. We cannot tell Your Honour what will happen upon his release. There is a mechanism whereby his continued occupation of Australia is not secure, but beyond that we can't say. Obviously, with each administration, different attitudes are taken and one cannot predict that the present Minister for Immigration will be occupying that Ministry upon his departure from prison. But the legislation that we have looked at ... the highest we can say to Your Honour is that he is at risk of deportation. ... one only has to say it, where three deaths, three significant other charges and tendering [sic] the prospect that it was all done under drugs, the task before the Immigration Review Board [sic] would be somewhat uphill. But we can't advance it any further than that.

29 As can be seen, defence counsel referred to the seriousness of the offending as increasing the risk of deportation. He was clearly correct to do so. Surprisingly, however, there was no reference to Guden or to either of the two sentencing considerations discussed above - the increased burden of imprisonment, and the loss of opportunity to make a life in Australia. It was the second of these which was at the centre of the arguments advanced (by different counsel) on the application for leave to appeal.

30 For his part, the prosecutor submitted to the judge that he could not take into account

the prospect of whether or not some steps might be taken against the prisoner many years down the track by the immigration authorities. There is simply no material on which you could form any assessment of that.

But if there is any material [it] would suggest that it's highly unlikely that he would be deported because he is the father of a [daughter] who was born in Australia, who will be living in this country for no doubt for many years ... and for what it's worth, it's only speculative but it would seem highly unlikely there is any concern in that respect.

My interest is really in what will occur when finally he is released, and the answer to that is no one really knows.

The prosecutor agreed, and defence counsel indicated that he had nothing to add.

33 In those circumstances, it is hardly surprising that the judge made no mention of this issue in the sentencing reasons. As is apparent from the exchanges on the plea, it was common ground that no assessment could be made of the risk of deportation when the applicant was released. Deportation was therefore viewed as 'a completely speculative possibility'.

34 The written case for the applicant accepts that, at the time of sentence, it would have been 'legally impermissible' for the judge to approach the matter any differently. Reliance is placed, however, on amendments to the Migration Act which came into force on 11 December 2014, some two months after the applicant was sentenced. We turn now to consider whether, as the applicant contends, this development satisfies the requirements for the admission of fresh evidence on an appeal against sentence.

35 The 2014 amendment of the Migration Act converted what had hitherto been a power (to cancel a visa and order deportation of a person who failed the character test) into a duty to do so. The new s 501(3A) provides as follows:

(3A) The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii) paragraph (6)(e) (sexually based offences involving a child); and

(b) the person is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

this amendment has upgraded the threat of deportation following criminal proceedings from a theoretical risk to a definite outcome.

He relies on the statement of this Court in DPP v Zhuang,[18] that a person sentenced to a term of imprisonment of 12 months or more could 'expect, with some certainty, to be deported upon release from custody'.

37 As the respondent points out, however, cancellation of a visa does not mean automatic deportation. A person whose visa has been cancelled on character grounds under s 501(3A) is able to seek revocation of the decision under s 501CA, which provides as follows:

Cancellation of visa - revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2) For the purposes of this section, relevant information is information (other than nondisclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for making the original decision; and

(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3) As soon as practicable after making the original decision, the Minister must:

(a) give the person, in the way that the Minister considers appropriate in the circumstances:

(i) a written notice that sets out the original decision; and

(ii) particulars of the relevant information; and

(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

(5) If the Minister revokes the original decision, the original decision is taken not to have been made.

(6) Any detention of the person that occurred during any part of the period:

(a) beginning when the original decision was made; and

(b) ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

38 Moreover, it is open to a person whose visa has been cancelled to seek a merits review of a decision not to revoke the cancellation. Thus, s 500(1)ba provides:

Applications may be made to the Administrative Appeals Tribunal for review of ... decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa

39 There was debate during oral argument about whether, for the purposes of assessing the risk of deportation and its impact on the offender, there was any material difference between:

(a) the former position, where the offender was aware throughout the period of incarceration that he was at risk of deportation, because of the Minister's undoubted power to cancel the visa on character grounds; and

(b) the position following the amendments, where the offender knows that the cancellation decision will inevitably be made and must live with the uncertainty of not knowing whether an application for revocation of the decision will succeed.

40 Counsel for the applicant submitted that there was a material difference. Under the former position, he contended, the offender knew that no visa cancellation would occur unless and until the Minister decided to exercise the power of cancellation. Under the new position, by contrast, the offender must live with the certain knowledge that his visa will be cancelled and that he will be deported unless he can persuade the Minister to revoke the decision.

41 We accept this argument, up to a point. There is, obviously enough, a qualitative difference between the two sets of circumstances. But we are not persuaded that, for the purposes of sentencing, any change of approach is required. After all, the Court's assessment of the risk of deportation, and its likely impact on the offender, is of necessity imprecise. It will be, at best, a matter of impression. It is unrealistic to think that the assessment could ever be as finely calibrated as to factor in the distinction relied on here.

42 Now, as previously, the offender knows that he is at real risk of deportation because of his conviction of the criminal offence. Now, as previously, he must live with the uncertainty surrounding what will be a discretionary decision by the Minister. Previously, the relevant discretion related to cancellation of the visa. Now, the discretion relates to revocation of the cancellation decision. (The Minister being bound by statute to cancel the visa, no occasion arises at that point for any consideration of the circumstances of the individual.)

43 It is neither necessary nor appropriate for the Court to investigate whether, in practice, the process will be different. We assume that, under the former provisions, when the Minister was considering whether to cancel a visa, submissions were made on behalf of the offender that no such decision should be made. It must be assumed that, in the future, an application for revocation as a cancellation (assuming the provisions do not change again in the meantime) will be supported by the very same considerations as would hitherto have supported a submission that no cancellation decision should be made.

44 In a supplementary submission, counsel referred to s 499 of the Migration Act, which makes provision for the giving of what are called 'Ministerial Directions'. The function of such directions is to direct delegates of the Minister when they are performing the functions, or exercising the powers, of the Minister under s 501 of the Act. Pursuant to s 499(2A), all decision makers must comply with the Ministerial Direction which is in force at the relevant time.

45 At the time of the decision of this Court in Darcie v The Queen,[19] the direction in force was Direction 41.[20] By the time the applicant was sentenced in September 2014, Direction 55 was in force.[21] As at February 2016, the relevant direction is Direction 65.[22] This Direction was issued on 22 December 2014 and deals with visa cancellation under s 501 and revocation of mandatory cancellation under s 501CA.

46 The applicant's submission is that the content of the Directions has materially changed, adversely to the applicant's position. For example, under Direction 55, when the Minister had the power to cancel, the following 'primary considerations' had to be taken into account:

• protection of the Australian community from criminal or other serious conduct;
• 'the strength, duration and nature of the person's ties to Australia'; and
• 'the best interests of minor children in Australia'.[23]

47 Now, under Direction 65, in deciding whether to revoke the mandatory cancellation of a visa, the decision maker must weigh the following 'primary considerations':

1. Protection of the Australian community from criminal or other serious conduct;

b. The best interests of minor children in Australia;

c. Expectations of the Australian community.[24]

48 The applicant points out that what was formerly a primary consideration - 'the strength, duration and nature of the person's ties to Australia' - is no longer a primary consideration but has been relegated to 'other considerations'. Moreover, it is said, the third of the primary considerations is now 'expectations of the Australian community'. As to this, s 13.3(1) of Direction 65 states:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has ... been convicted of offences in Australia ... it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

49 It should be pointed out, however, that a requirement to 'have due regard' to the Government's statement of 'expectations of the Australian community' is not new. As long ago as 2001, the equivalent Direction (Direction No 21)[25] contained a statement of community expectations in language almost identical to that in Direction 65.[26] In that Direction, the 'expectations of the Australian community' were also listed as a primary consideration.[27]

50 Further, whilst the 'community expectations' consideration was not expressed in those terms in Direction 55, the Minister did have to take into account, where relevant, the impact on the Australian community of a decision not to cancel a visa.[28]

51 Plainly enough, it is impossible to predict what difference the changes in the Direction might make to future decision-making. The frequency with which the Act is amended, and new Directions are issued, reinforces this point.

52 In our view, it was entirely proper for the applicant to put the argument that, because of the change in the law, a different significance attached to facts known at the time of the plea. For the reasons given, however, we are not persuaded that the change in the law requires that a different sentence be passed.

53 The applicant will not be released for a number of years and, as was frankly conceded on the plea, it is a matter of speculation as to what the responsible Minister may or may not do when an application for revocation is made following the automatic cancellation decision.

54 The applicant's contention is that the sentence imposed on him was not reasonably open in the circumstances of the case if proper weight had been given to:

(a) the factors in mitigation, the lack of prior convictions, the early plea of guilty, his remorse and his good prospects of rehabilitation;

(b) the principle of totality 'which ought to have led to a greater moderation of the individual sentences or the ordering of less cumulation'; and

(c) current sentencing practice in cases of culpable driving causing death.

55 The applicant's submission draws attention to the Sentencing Advisory Council's latest Sentencing Snapshot for this offence.[29] According to that Snapshot, the average length of custodial term for this offence was six years and the most common was five to six years.

56 The applicant also draws attention to several decisions which, it is said, meant that a lower sentence was required in this case. The first is Pasznyk v The Queen.[30] In that case, a 40 year old offender pleaded guilty to one count of culpable driving causing death and driving whilst disqualified, after driving at speed straight into the rear of the victim's vehicle. His blood alcohol level was approximately four times the legal limit and he had prior convictions which included driving charges and violent offences. As a result, his prospects of rehabilitation were poor. He was sentenced to 10 years and six months' imprisonment, with a non-parole period of 8 years.

57 The second case was R v Ioane.[31] In that case, the offender was 27 years old when he drove through a red light at speed and collided with another car containing five people. Before going through the red light, he had been travelling on the freeway at 140 km per hour in a 80 km/ h zone. Two of the passengers were killed and two were seriously injured. The offender's blood alcohol level was approximately 0.2 per cent and he, too, had relevant prior convictions such that he was considered to have 'contempt for the road rules'. He was sentenced to seven years on each of the two charges of culpable driving causing death. On appeal, the orders for cumulation were reduced, resulting in a total effective sentence of 12 years with a non-parole period of nine years.

58 The third case relied on is DPP v Church.[32] In that case, the offender was 22 years old when he pleaded guilty to three counts of culpable driving causing death (by negligence). Three passengers in his car were killed. The driving involved 30 minutes of 'hoon' driving and the offender had a blood alcohol concentration of 0.123 per cent. He ignored traffic signs, did burnouts and, when the collision occurred, was travelling at 169 km/h in a 100 km/h zone. He was disqualified from driving at the time and had prior convictions for driving offences. He was resentenced on appeal to six years for each culpable driving charge. With orders for cumulation, the total effective sentence was 12 years' imprisonment with a non-parole period of nine years.

59 The submission was that these decisions were indicative of current sentencing practice for offending in the relevant category of seriousness and, it was said, they

dictated that the applicant should not have expected a total effective sentence four years higher than the highest sentence previously imposed in this State.

60 The respondent points out that there is no challenge to the judge's finding that each of the culpable driving offences was 'at the upper end of the range of seriousness'. The respondent relies on the following as aggravating factors:

• the applicant was adversely affected by drugs and was sleep- deprived at the time of the collision;
• he engaged in extremely risky driving over a significant distance before the 'horrific' collision;
• the collision occurred when he entered an intersection at 'an absurdly high speed', at least 18 seconds after the light had turned red;
• the intersection is one of the busiest in the Melbourne metropolitan area, carrying a high volume of traffic, and the applicant's driving was bound to cause a catastrophe;
• there was no sign of his taking any evasive action, which showed a 'total want of care'; and
• the driving was 'entirely conscious and deliberate'.

The collisions that occurred were a natural consequence of this 'conscious and deliberate driving'.

61 As this Court pointed out in R v Towle,[33] the sentencing court's assessment of the dangerousness of a person's driving is informed by the extent of the risk which it created. The extent of the risk includes both the likelihood that something will go wrong, and the extent of the harm which will result if it does. In the present case, according to the respondent -

the risk of a collision was as high as it gets - inevitable; the risk of catastrophic consequences was as high as it gets - inevitable.

62 Moreover, the respondent submits, the applicant's moral culpability was extremely high. 'It is not easy to envisage a case where it would be higher'.

63 As to current sentencing practice, the respondent submits that a sentence of 10 years on an individual charge of culpable driving causing death is 'reasonably' or 'generally' consistent with current practice. Moreover, it is said, the need for consistency in sentencing does not mean that the sentence in a particular case must be confined by the precise boundaries of current sentencing practice.[34]

64 As to totality, the judge was entitled to cumulate 'a sensible portion' of the sentence imposed for one offence upon the sentence imposed for the other.[35] The respondent's submission is that orders for cumulation were modest:

[18] months cumulation for the taking of a human life in these circumstances is demonstrably restrained. These moderate orders show that very significant weight was given by the sentencing judge to the principle of totality in the sentencing exercise.

65 In our view, the respondent's submissions must be accepted. It was appropriate for his Honour to impose the sentences and orders for cumulation which he did, given the features of the offending to which we have referred, and the fact that the driving caused the deaths of three innocent people, with all the consequent trauma for their families, serious injury to three persons and recklessly endangering the life of another.

66 Each of the individual offences of culpable driving, negligently causing serious injury, and reckless conduct endangering life is a serious example of that offence. The applicant's behaviour showed complete disregard for the safety of other road users. It is especially serious that that the collision occurred after a sustained period of driving at life-threatening speeds, during which the applicant must have realised that sooner or later he would encounter cars or pedestrians crossing at an intersection.

67 The application for leave to appeal must therefore be refused.

[1] Crimes Act 1958 s 318(1).

[2] Ibid s 24.

[3] Ibid s 22.

[4] This summary is drawn from the reasons for sentence: R v Nei Lima Da Costa Junior [2015] VSC 458 [6]-[24] ('Reasons_'_).

[6] His Honour referred here to DPP v Neethling [2009] VSCA 116; (2009) 22 VR 466.

[8] See Postilgione v The Queen [1997] HCA 26; (1997) 189 CLR 295 and Pilgrim v The Queen [2014] VSCA 191.

[9] Reasons [38]-[46] (emphasis added).

[10] Migration Act 1958 (Cth) s 12 ('Migration Act').

[11] See now Migration Act s 501.

[12] [2010] VSCA 196; (2010) 28 VR 288 ('Guden').

[16] [2006] VSCA 238; (2006) 167 A Crim R 18, 22 [14].

[17] [2010] VSCA 196; (2010) 28 VR 288 [29].

[18] [2015] VSCA 96 [54].

[19] [2012] VSCA 11.

[20] Minister for Immigration and Citizenship, Visa refusal and cancellation under s 501, Direction No 41, 3 June 2009 (in force 15 June 2009 to 31 August 2012) ('Direction 41').

[21] Minister for Immigration and Citizenship, Visa refusal and cancellation under s 501, Direction No 55, 25 July 2009 (in force 1 September 2012 to 22 December 2014) ('Direction 55').

[22] Minister for Immigration and Border Protection, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, Direction No 65, 22 December 2014 ('Direction 65').

[23] Direction 55 s 9(1).

[24] Ibid s 13(2).

[25] Minister for Immigration and Multicultural Affairs, Visa refusal and cancellation under s 501, Direction No 21, 23 August 2001 ('Direction 21').

[26] Ibid s 2.12.

[28] Direction 55 s 10(1)(c).

[29] Sentencing Advisory Council, Culpable driving causing death, Sentencing Snapshot No 173, May 2015.

[30] (2014) 43 VR 169.

[31] [2006] VSCA 84.

[32] [2005] VSCA 8; (2005) 42 MVR 420.

[33] [2009] VSCA 280; (2009) 54 MVR 543, 563 [66].

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

[35] R v Guariglia [2001] VSCA 27; (2001) 33 MVR 543 [21].