Pan v The Queen [2020] VSCA 42

1 I agree for the reasons given by Croucher AJA that, in light of the expert evidence, when assessing the applicant's moral culpability for the offending, the judge was required to consider and give weight to the poor road design and layout conditions as a causal contributor to the collision that killed the other driver and badly injured the applicant's passenger. The judge failed to do so, with the consequence that the applicant must be resentenced having regard to the impact of the poor road design on his moral culpability. The unchallenged expert evidence was that the intersection was especially dangerous and invited precisely the kind of tragedy that in fact occurred. The State government has since moved to reduce the danger posed by the intersection by installing a roundabout.

2 I do not accept that any failure of the Google Maps navigational system was a causal contributor to the collision, again, for the reasons given by Croucher AJA.

3 Leave to appeal should be granted and the appeal allowed on grounds 1(a) and 1(b) in the notice of appeal. I agree with the reasons given by Croucher AJA for resentencing the applicant to a total effective sentence of imprisonment for two years and four months, with a non-parole period of twelve months. Although the applicant's failure to stop at the intersection has had shocking and far-reaching consequences, he was not speeding or drug-affected or distracted by anything other than his effort to establish why a reduction in speed was required. His good character and prospects of rehabilitation, together with his evident deep remorse, his pleas of guilty and the hardship he experiences in prison as a result of social isolation and separation from his wife and family in China, support the lower than usual non-parole period, in my view.

4 On Boxing Day 2017, Yadong Pan drove his car through a stop sign at an intersection on a country road in Victoria and collided with another car coming from his left, driven by George Stephen Hullo, who had the right of way. As a result of the collision, Mr Hullo was killed and one of Mr Pan's passengers was seriously injured.

5 Mr Pan ultimately pleaded guilty in the County Court to charges of dangerous driving causing death and dangerous driving causing serious injury.[1] He was sentenced to a total effective sentence of three years and four months' imprisonment with a non-parole period of two years.[2] This is an application for leave to appeal against that sentence.

6 The requisite dangerousness was based on Mr Pan's inattention to a series of indicators of the impending intersection and stop sign. The intersection, however, was poorly designed, had a history of serious motor vehicle accidents (of a similar nature) and a State-acknowledged need for significant safety improvements. A principal issue on this application concerns whether the poorly designed intersection contributed to the accident and, if so, whether that fact may impact upon the moral culpability of (and, in turn, the sentence to be imposed upon) Mr Pan - and, if so, to what extent.

7 Another issue raised is whether the judge was required to accept that a global positioning system[3] ('GPS') - in this case, a Google Maps application on a mobile telephone set in a cradle - failed (visually) to warn Mr Pan of the impending intersection (or stop sign) and, if so, whether that fact may also impact on his moral culpability (and sentence) for the offending - and, if so, to what extent.

8 In my view, by reference to decisions of this Court concerning similar offences and related issues,[4] such factors may impact on an offender's moral culpability (and therefore potentially upon sentence), but whether - and, if so, to what extent - there is an impact will depend upon a host of factors impossible to list exhaustively in advance.

9 As will be seen, I have concluded that the judge in this case erred because he either failed to find that the poor design of the intersection contributed to the cause of the collision or gave that factor no weight. In consequence, his Honour erred in failing to recognise any reduction in Mr Pan's moral culpability on account of this factor.

10 In view of that error and all other relevant considerations, I would grant the application for leave to appeal, allow the appeal, set aside the sentence below and resentence Mr Pan in a way that results in a total effective sentence of two years and four months' imprisonment with a non-parole period of twelve months.

11 On the other hand, I do not think that the judge was in error in dealing with Mr Pan's misplaced reliance on his GPS. It was open to his Honour to decline to accept Mr Pan's account on this point. In any event, given Mr Pan's understanding of a 'Reduce Speed' sign and his awareness of 'rumble strips' on the road perhaps eight to ten seconds before the crash, turning to a GPS for guidance, as he did at that point, was not the right or common sense thing to do. Driving in the real world is not a computer game. Given, in particular, the higher speed limits often in place on country roads, it is paramount that drivers focus squarely on the road ahead and be astute to any indicators of the need for caution, instead of slavishly relying on GPSs for information relevant to safe driving.

12 Before considering the grounds of appeal more closely, I shall turn to some of the detail of the background to this application.

13 On the morning of 26 December 2017, Mr Pan was part of a group of friends that headed off for a drive from his home in Colac to the beach at Lorne to celebrate Boxing Day. Mr Pan had two passengers in his Toyota Camry - Xiao Yan Yu and her husband Qinshuang Cai - while Xian Jun Ma and his wife and two children travelled about 300 metres behind in a second car.

14 At about 10:52 a.m., Mr Pan unwittingly drove his car through a stop sign at about 92 to 94 kph when heading east on Colac-Lorne Road as it crossed Birregurra-Forrest Road at Birregurra. His car collided with a Ford Laser driven by Mr Hullo, who had come from the north (Mr Pan's left) on Birregurra-Forrest Road and had entered the intersection at a similar speed.

15 Mr Hullo died at the scene as a result of the collision. He was the sole occupant of his car.

16 Ms Yu, who was seated behind Mr Pan, was seriously injured in the collision. She suffered internal abdominal injuries, fractures to her spine and trauma to her kidney, resulting in a renal infarct. As at March 2019, she remained unable to work.

17 Mr Cai, who was seated to Mr Pan's left in the front passenger seat, suffered only minor injuries, as did Mr Pan.

18 In the lead-up to the crash, Mr Pan was not doing any of the things that commonly constitute dangerous driving resulting in death or serious injury (or, for that matter, the more serious offences of culpable driving causing death or negligently causing serious injury[5]). He had not been drinking alcohol or taking drugs. He was not fatigued. He had not been hooning about, racing, driving erratically, showing off to others or using his mobile phone unlawfully. Nor had he been impermissibly distracted by goings-on in the car or elsewhere, or speeding - either excessively or at all. In fact, he had his cruise control set to 98 kph, which was within the applicable speed limit of 100 kph. Just prior to the collision, he was travelling at about 92 to 94 kph, which might be explained by his car slowing, despite the cruise control, as it climbed the hill towards the intersection.

19 Mr Hullo was doing about 95 kph at the time of the accident. He too was subject to a speed limit of 100 kph, but, of course, he had the right of way.

20 Mr Pan's fatal error was inattention to the indicators of an impending intersection and stop sign, caused in part by a lack of comprehension and, I fear, a lack of experience and common sense. As I indicated earlier, there was also evidence that the design of the intersection contributed to the accident, a matter to which I shall return later in these reasons. For the moment, I shall concentrate on the indicators of the need for caution as he approached the intersection, which included the following.

21 First, about 360 metres before the intersection, a set of six 'rumble strips' were in place on the road on which Mr Pan was driving. Two more like sets of rumble strips were in place, one at 286 metres ahead of the intersection, the other at 234 metres.

22 Secondly, at some point before these strips was a sign saying 'Rumble Strips'.

23 But Mr Pan, a Chinese national with only limited English comprehension who had been living and working (as a butcher) in nearby Colac on a '457' visa for only seven months, and driving in this country on an international licence for less than a five-month period, and never on this road, gave sworn evidence at his plea hearing that he did not understand that sign. He felt the vibration from the rumble strips, but, from his experience in his home country, such things were merely an indicator of an uphill slope. Presumably, his mistaken belief in this regard was only confirmed by the fact that there was an uphill incline in the road at this point.

24 Thirdly, on each side of the road, just past the third set of rumble strips (about 217 metres before the intersection), was a diamond-shaped sign with a yellow background, a red octagonal shape (but without the word 'stop' on it) in the lower-middle portion of the sign, and a black vertical arrow above that shape. To those who know, these are indicators of a stop sign ahead. But Mr Pan swore that he did not notice those signs. (Nor, it seems, did he see what these signs were directed at - namely, the stop signs themselves, which were over 200 metres away, placed just ten metres before the stop line at the entrance to the intersection.)

25 Fourthly, however, Mr Pan did accept that he noticed and understood the sign 'Reduce Speed', which was placed about 280 metres from the intersection, beside the second set of rumble strips. Initially, he said that he thought he did reduce his speed, but he was not sure. That said, later in his evidence, he seemed firmly of the view that he did reduce his speed. (This might explain the reconstructed speed of 92 to 94 kph, instead of the hill causing the car to reduce speed despite the cruise control being set at 98 kph. Or perhaps it was a combination of the two.)

26 Despite his experience in his own country, nevertheless, Mr Pan also thought the rumble strips may have been an indicator of 'something ahead of [him]', so he looked to his GPS. By this, he was referring to the Google Maps application (or 'app') operating at the time on his mobile telephone, which was held in a cradle above his car's air conditioner vent on the dashboard. It was set to his native Mandarin language. He swore that the GPS did not show any intersection or stop sign and did not give him any verbal warning of any such thing. Instead, the GPS merely noted an intersection four to five kilometres away. He also said that the GPS gave him the impression that he was on a main road, and that, if any other road crossed it, drivers on the other road would have to give way to him. When he looked ahead while approaching what turned out to be the intersection, all he could see was the road on which he was travelling stretching out ahead of him; he did not see the other road crossing his.

27 Mr Pan's account of being unable to see the intersection was supported, at least in part, by the evidence of the prosecution accident reconstruction expert, by the report of an expert commissioned by Mr Pan and by a video recording of a drive-through of the road leading up to the intersection, as well as photographs of that part of the road. (I shall return to the detail of that evidence later in these reasons.)

28 In any event, Mr Pan did not see the intersection or Mr Hullo's car until it was far too late. Consistently with this, the expert accident reconstruction evidence suggested that Mr Pan did not brake until up to 0.8 seconds prior to the impact, which, as it turned out, did not slow his car at all. Mr Hullo, it seems, did not brake at all.

29 Sometime after the accident, Mr Pan performed his own reconstruction of sorts by driving towards the intersection again with his phone set to Google Maps. Again, on his account, the application did not show the intersection, nor did it 'say anything verbally'. That particular aspect of Mr Pan's evidence was also supported, albeit only in part (in particular, the absence of any verbal - or spoken - warning), by the prosecution accident reconstruction expert, who conducted her own experiment. She also spoke of other accidents at the same intersection. (I shall return to that evidence later in these reasons as well.)

30 On 28 December 2017, Mr Pan was charged with culpable driving causing the death of Mr Hullo and negligently causing serious injury to Ms Yu, and with the alternatives of dangerous driving causing death and serious injury to those individuals respectively.

32 On 12 February 2019, immediately after a (failed) sentence indication hearing[6] before a judge of the County Court on the alternatives of dangerous driving causing death and dangerous driving causing serious injury, Mr Pan pleaded guilty to those two charges. A plea hearing was conducted before the same judge on 19 March 2019.

33 There was no suggestion - either at the plea hearing or in this Court - that Mr Pan knew that either the intersection or the stop sign was coming up and that he simply knowingly took a flagrant risk of driving through both. Instead, the prosecution case was based on his inattention in the face of indicators such as rumble strips and road signs well prior to the intersection.

34 There was evidence before the judge that five serious reported accidents (including Mr Pan's) had occurred at the same intersection over a twenty-month period, the last four occurring in the space of eight months. The third and fifth of those collisions occurred just a couple of days either side of Mr Pan's accident in December 2017. While serious injuries were caused in the other reported accidents too, only Mr Pan's collision resulted in a death.

35 Defence counsel also tendered a report in which the expert author was critical of the design of the intersection. In short, the expert's opinion was that the design of the intersection 'contributed to the cause of [the] collision along with Mr Pan's failure to identify the stop signs prior to the intersection'.

36 Further, there was evidence that, after December 2017, the State had acknowledged that the intersection was 'notorious' and that there were now plans afoot to remedy it.

37 Mr Pan was only 27, had no prior convictions and was otherwise of good character.

38 In his sworn evidence, he made heartfelt apologies to Mr Hullo, Ms Yu and their loved ones for the harm he had caused. The judge accepted that Mr Pan was genuinely remorseful for his offending.

39 His Honour also accepted that, for several reasons, Mr Pan would 'do his time in gaol hard'. First, he had been deeply affected by what he had done. Secondly, he would be isolated and had limited English. Thirdly, he would continue to be separated from his wife (who was in China and was unable to come and see him). Finally, the length of his sentence would ensure deportation and therefore a dashing of the hopes he had of settling in Australia and raising a family here.

40 While his Honour did not say so in terms, everything he said relevant to the topic indicated that he considered Mr Pan to have excellent prospects of rehabilitation.

41 On 25 March 2019, the judge imposed a sentence of three years' imprisonment for the offence of dangerous driving causing death (Charge 1); twelve months' imprisonment for the offence of dangerous driving causing serious injury (Charge 2); and, after directing cumulation of four months of the latter sentence upon the former, a total effective sentence of three years and four months' imprisonment. His Honour fixed a non-parole period of two years.[7]

42 Counsel for Mr Pan pleads one ground of appeal, although it is really three. He contends that, in three ways, the judge erred in assessing Mr Pan's moral culpability, namely:

(a) by failing to give any or sufficient weight to road design and layout conditions as a causal contributor to the collision when assessing [the applicant's] moral culpability;

(b) by failing to give any or sufficient weight to evidence of other collisions at the intersection when assessing whether road design and layout conditions had been a causal contributor to his collision; and

(c) by failing to find as a matter of fact that the Google Maps navigational application did not warn him of the intersection.

43 As would be apparent from my overview above, I would uphold Grounds 1(a) and 1(b) but reject Ground 1(c).

44 At this point, it is convenient to set out large parts of the judge's reasons for sentence which, in my respectful opinion, are very clear, detailed and carefully expressed - as is his Honour's way. These reasons also include observations directly relevant to all three grounds of appeal, to the question whether a different sentence should be passed and to the task of resentencing:[8]

[3] Those driving in the way that you were, or in the direction you were, Mr Pan, were required to stop at the intersection of the Colac-Lorne Road and the Birregurra-Forrest Road. The priority was for those like Mr Hullo, heading along the Birregurra-Forrest Road. [The] speed limit for both roads was 100 [kph]. As your counsel ... pointed out, the intersection had seen collisions in the past, thus the warning signs and road features along the Colac-Lorne Road as it approached the intersection, were considerable.

[4] Thus, as you drove along the Colac[-Lorne] Road you first were warned of the approaching rumble strips, with a sign saying 'Rumble strips'. You told me in your evidence on the plea that you could not read or understand the words 'Rumble strip[s]'. You said that in your native China, rumble strips on the road mean an incline or a hill. The road you were driving on had moderate undulations. The vibrations caused by the rumble strips should have alerted you that there was a need to pay particular attention to the road conditions in the immediate vicinity ahead of you.

[5] The first rumble strips were 360 metres from the intersection. They were the first of three sets of rumble strips, with six strips in each of the sets. The second set of rumble strips came at 286 metres from the intersection and the third, 234 metres from the intersection. At the point of the second set of rumble strips, there was a large red sign saying 'Reduce speed'. You did not reduce your speed at all. You kept your cruise control on, set at 98 [kph]. You said in your evidence you could read and understand the 'Reduce speed' sign. The fact that you did not reduce your speed makes it plain you were not paying proper attention to the road conditions.

[6] As the road continued, there was yet another warning sign just beyond the third set of rumble strips. These signs advised that stop signs facing the direction you were driving, were approaching. Again, this had no effect on your driving which was maintained at the same speed. The Colac-Lorne Road as it approaches the intersection was at a decline, giving a good line of sight to the approaching intersection and stop signs. A drive-through video, produced by the police, was tendered and played on the plea. After the intersection, the Colac-Lorne Road continues on an incline and you seemed to think that the road kept going, without there being an intersection at all, or if there was one, the other road had to stop for traffic heading the way that you were driving.

[7] This was a fundamental error of judgment and one hard to understand, if you were paying attention to the road conditions approaching. You said in your evidence that you were using a navigational tool on your mobile phone, sitting in a cradle near your steering wheel. You claimed that the map on the mobile phone did not display any intersection or road approaching. This is hard to accept as the Birregurra-Forrest Road was the major road, designed as a C-road with a number, and is a significant road and thoroughfare to the inland towns such as Forrest and the coast via Skenes Creek.

[8] In any event, you did not see the intersection or the stop signs which were there to be seen. All other conditions were ideal for seeing what was there to be seen. It was clear daylight, mid-morning at the beginning of summer. You drove into the intersection without stopping as the law required you to do. You did so just as George Hullo was travelling along the Birregurra Forrest Road, obeying all road laws. You collided with his car at high speed. The data from your car revealed that you applied brakes a mere 0.8 of a second before the collision. ...[9]

...

[10] ... You arrived in Australia [on a '457' visa] on 23 May 2017 to commence work at the Australian Lamb Company in Colac. You lived in company quarters within walking distance to your workplace for the first month. In around July 2017, you moved to other premises in Colac, a bit further away from your workplace. You bought a car and drove to your workplace. You had an international driving licence. You returned to China for a month or so in October/November 2017, at which time you got married.

[11] On your return, you continued to drive to and from work. You were not experienced in driving in Australia or familiar with the country roads that you were on, when you failed to obey the stop sign at the intersection. That said, this country road had a significant number of warnings, so as to aid those unfamiliar with the area as tourists, as they approached the intersection. Your counsel made much of what he said was the notorious nature of the intersection, where there had been collisions before and after yours in similar circumstances. His argument was that this lowered your moral culpability.

[12] He relied upon the Court of Appeal decision in R v Rudebeck [1999] VSCA 155 at paragraphs 15 and 31. It is hard to understand what the decision in Rudebeck or those two cited paragraphs aided, let alone established the proposition put by your counsel. That may be because, counsel also referred to the Judicial College Charge Book, not the Sentencing Manual, which says unsurprisingly that a trial judge in directing a jury as to all the circumstances of an alleged offence, such as dangerous driving causing death, may find that the conditions of the road and the size and speed of the vehicle being driven, were relevant to the jury's consideration.

[13] The Sentencing Manual at Chapter 28.7.2 refers to forms of dangerousness, which in turn lists five cases under the heading 'Failure to comply with Traffic Control'. Most of those cases involve failures to obey traffic lights, though DPP v Martinez [2008] VSCA 165 involved a failure to stop at a give-way sign in what was then a semi-rural setting. [Counsel] indicated his researches of the County Court sentencing decisions had not revealed any like circumstances of failing to obey traffic controls at intersections.

[14] There are County Court sentences where the facts reveal a failure to obey give way signs on rural roads. One is perhaps particularly helpful [i.e. DPP v Ng[10]]. I drew this to counsel's attention today, as it was the first opportunity I have had to do so. That sentence was from Judge Hampel, who also was sitting at Geelong, where she dealt with a Singaporean national who was driving on unfamiliar country roads with friends on a rock climbing holiday in the Grampians. The driver failed to obey a give way sign and collided with a car driving with the right of way. There were some advisory signs, but not nearly the number here and no rumble strips in that case. In that case, the following was said ... :[11]

Although the paramedic who attended the scene believes it is a dangerous intersection and on the material before me, this is not the first time there has been a collision at that intersection, it is nonetheless well and sufficiently sign-posted. An attentive driver is given more than sufficient opportunity to note that they face a controlled intersection ahead, to slow down and to satisfy him or herself there are no cars on the intersecting roadway, before entering the intersection.

[15] I adopt those words and emphasise that here, the warnings in this case were much more explicit, clear and more numerous. In my view, taking into account all the circumstances, including the views expressed by experts in reports at the committal and indeed by politicians, that the control of the intersection should be upgraded, this is not a set of circumstances such that the road conditions meant that your moral culpability fell to the lowest or a low category, as urged by your counsel.

[16] The intersection, like so many country roads have intersections requiring drivers to take care and observe and comply with warning signs and then stop signs.[12] If they do not, given the high speeds of driving on country roads, the risks created for other road users are particularly high. The risks are that death and/or serious injury is almost inevitable. In my view, all drivers in the prevailing conditions must apply appropriate care for those conditions. Indeed, as the often-cited case of DPP v Neethling[13] makes clear, those inexperienced in the prevailing conditions, ought show particular caution in order to ensure proper care for other road users is being displayed, given the driver's inexperience and unfamiliarity with the roads.

[17] Other factors that elevate the moral culpability in other cases, such as excessive speed, alcohol or drug use impairing driving, showing off, distractions from within the car or otherwise or fatigue, were not present here, to further elevate your moral culpability. Here the risk was, that if you, Mr Pan failed to stop as required and entered the intersection at the speed you were driving, at or about the 100 [kph] speed [limit], that if there ... were other cars travelling on the Birregurra-Forrest Road on Boxing Day, as Mr Hullo was, then the likelihood of death and/or serious injury was very high indeed.

[18] Thus the risk you created was considerable. The road signs and the rumble strips were there in significant numbers, so as to ensure a driver took care to eliminate the risks by stopping as required and only proceeding ... when safe. The consequences here are dire. Mr Hullo died and his brother greatly misses him. Ms [Yu] suffered injuries that were significant and remain an ongoing impediment to her enjoyment of life and her ability to carry on her life as before.

[19] Mr Stephen Hullo ... wrote a heartfelt victim impact statement [parts of which his Honour then set out]. ...[14]

...

[21] Before moving to your personal circumstances, I note that you wrote a letter of deep apology in respect of each victim and it was read during your evidence on the plea. I conclude you are genuinely contrite and remorseful with ongoing sorrow for the victims. This is to your credit. Up until this crime, your life had been tracking as you wished. From a difficult, impoverished life in China as a child, you had moved on to work in Mongolia, Japan and of course here, in Australia. Your upbringing was particularly difficult because you lost your own father in an industrial accident when you were just five.

[22] Your mother raised you and your two siblings with limited income. You progressed through to tertiary education studying advertising, but you did not take up work in that field. Rather, you worked in a meatworks in Japan, then Mongolia and finally Australia. You are now 28, arriving in Australia in May 2017 when 26. Also as noted, you returned to China in October 2017 and married your partner, with whom you had to that point, a long relationship of six years, that is from your early 20s. Having experienced Australian life for about four months or so, you became convinced it was for you and your partner, the place that you wanted to be. You wanted to raise a family here with your partner, so you were keen for her to join you and for you all to reside in Australia permanently.

[23] Your future plans in this regard are now very problematic. Your partner has not been permitted to travel to Australia to see you since the collision. You speak with her and are pained at the prospect of not seeing her for some time and, worse, that you may be deported so you cannot make good your plans to live permanently in Australia. You have made friends here in Australia, other Chinese nationals also working and living in Colac. You have impressed them before the collision as a hardworking, quiet living man, doing all you could to ensure that your wife and you could settle here. Those that knew your driving, considered you careful. All this is to your credit. You have no prior convictions and you are entitled to call on that in asking for a merciful sentence.

[24] I could discern from your evidence, the letters that you wrote and the psychological report from Mr Newton, that you are deeply affected by what has happened. You will do gaol hard, because of how you feel and also because of your isolation and your language difficulties. Also you will do gaol harder, due to a sense that your ability to stay in Australia is very unlikely, especially if you are sentenced beyond a period of 12 months. The expert opinion from the immigration lawyers that you engaged, makes it clear there is almost no chance of you being able to stay here and establish a family, as you had keenly hoped for. Thus I take into account the added burden in prison of knowing that your immediate immigration plans are almost certainly dashed.

[25] You did not plead guilty until you had made but failed in a sentence indication hearing. Your plea of guilty has saved resources. As noted, you have always been remorseful and distraught by what happened. That is now added to by your plea of guilty. Your sentence will be less because of your plea of guilty and all that it entails. Your counsel after the sentence indication hearing, sought thereafter a combined sentence involving less than 12 months' imprisonment and a community corrections order. The prosecution indicated that there must be some gaol but whether it was in a combined sentence, was a matter for me.

[26] The sentences purposes in these tragic, avoidable road trauma cases have been restated many times. That said, each case has unique aspects that must be taken into account. I pause to say that I have done that in this case. However, some general statements are particularly relevant here in the sentencing synthesis. First, the crime of dangerous driving causing death or serious injury are crimes that are likely to be punished by significant terms of imprisonment. So much was said in the past and repeated in the important decision of Stephens v The Queen.[15]

[27] In Stephens, this was citing the other well-known case of DPP v Neethling[16] and DPP v Oates.[17] I add in at paragraph 28 in the DPP v Neethling, there was a citation from the New South Wales case of DPP v Musumeci.[18] What was said there adapted to this case is:

[1] The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness.

[2] The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life.

[3] Such is the need for public deterrence in this type of case, that other factors [in that instance, youth but other factors] must be given less weight as subjective matters than in it might be the case in other situations.

[4] The courts must tread warily in showing leniency for good character in such cases.

[28] So, foremost in the appropriate consideration of the sentencing purposes is deterrence to others. Time and again the courts emphasise the sanctity of life and the need for all drivers to show proper care when driving. I must, through this sentence, contribute to the unambiguous message that if you fail to pay proper attention and cause death and/or serious injury by that dangerous driving, then stern punishment involving imprisonment awaits. I must also, and in a practical way, denounce your dangerous driving causing the death of George Hullo and the serious injury to Xiao Yu. It was a completely avoidable tragedy.

[29] The practical expression of denunciation means appropriate punishment involving imprisonment as well as words of condemnation. You have not been in trouble before but the seriousness of this offending opens up the need for some, but very moderate weight to be given to deterrence to you. Your rehabilitation is important. My [s]tatutory mandate is to establish conditions to facilitate your rehabilitation. You have been, at all points in your life save for this, a law-abiding man. I expect with your deep remorse you will resume your previous lawful lifestyle in whichever country you reside.

[30] In my view, your rehabilitation will follow upon your release and your resumption of your working and socially appropriate life. Whether that is in Australia or elsewhere is for others, not me. I will set a period at which you have the potential for parole. Again, whether and when you are granted parole is for others, not me. I have taken into account the submissions made that there be a community corrections order following a period of imprisonment. The restrictions now imposed upon me [are] that the sentence of imprisonment must be one of 12 months ... [T]aking into account in the appropriate synthesis, that is a punishment that is not just and appropriate even combined with an onerous community corrections order.

[31] I have taken into account the very significant support you have from friends here and the letters that they wrote and from your wife in China. Your good qualities are not overlooked but, so often, these crimes are committed by people of otherwise good character. And I refer again to what was said in the DPP v Neethling quoting from Musumeci that 'The courts must tread warily in showing leniency for good character in such cases'.

[32] But all matters in mitigation have been given real weight and have not been glossed over because of the seriousness of the offences. There must be some recognition that there were two victims, but in this instance moderate cumulation is appropriate given the circumstances of a single act of dangerous driving, causing the death of Mr Hullo and the injury to Ms Yu. It is always a grave step to imprisonment someone like you in your difficult circumstances, but there is in my view, no other option.

[33] A sentence of imprisonment that allows, as I have said, a community corrections order has been considered and I have after much anxious consideration concluded, that the only just and appropriate sentence that expresses the sentencing purposes that I have spoken about, must be of a length that disallows a combined penalty of imprisonment and a community corrections order. I have taken into account the maximum terms here of ten years for causing death and five years for causing serious injury.

[34] I have also heeded the remarks of the Court of Appeal in Stephens, as to the need for an increase in sentences for dangerous driving causing death, but I have kept well in mind my sentence must always be an expression of individualised sentencing. ...

Grounds 1(a) & 1(b): Contribution of intersection design to accident

Ground 1: The learned sentencing judge erred when assessing the applicant's moral culpability (such that a different and lesser sentence should now be imposed ...) by reason of:

a) failing to give any or sufficient weight to road design and layout conditions as a causal contributor to the collision when assessing [the applicant's] moral culpability;

b) failing to give any or sufficient weight to evidence of other collisions at the intersection when assessing whether road design and layout conditions had been a causal contributor to his collision.

45 I turn now to the grounds of appeal. It is convenient to deal with Grounds 1(a) and 1(b) together.

46 In addition to the evidence summarised earlier, the evidence relevant to these two grounds came from several sources.

47 First, there was the committal evidence, given on 9 November 2018, of Dr Jenelle Mehegan, the prosecution accident reconstruction expert.

48 Dr Mehegan is a Detective Sergeant of Police. She has a Bachelor of Applied Science and a Master's degree and a PhD in Mechanical Engineering, and has taken numerous courses in accident reconstruction. She has been investigating motor vehicle accidents since 2003 and has reconstructed over 2,000 accidents.

49 Dr Mehegan examined the intersection in question. She said that, when approaching from the west (as Mr Pan did), at the first set of rumble strips, the driver cannot see the intersection (or the stop sign) but could see the continuation of the road up the hill beyond the intersection. At the second and third sets of rumble strips, a driver could see the intersection. Thereafter, there is an uphill gradient of about two percent, then a flattening out at the crossroad, and then a four-percent uphill gradient thereafter. A driver on that two-percent uphill gradient after the rumble strips might not be able to see the intersection, but, again, could see the continuation of the road up the hill beyond the intersection. As I understood her evidence, it is as if the flattening out at the crossroads is a discontinuity that may well deceive the driver into thinking the road continues unimpeded.

50 As Dr Mehegan explained, at a speed of 100 kph (which equates to about 27.7 metres per second), the first set of rumble strips (at 360 metres) commenced about thirteen seconds before the intersection, and the 'Reduce Speed' sign (at around 280 metres) was about ten seconds away from the intersection. I interpolate that it follows that, at the same speed, the third set of rumble strips (at about 234 metres) was over eight seconds away from the intersection. Of course, it also follows that, at a slightly lower speed, whether it be 92 or 94 kph, the travel times from these points to the intersection must be slightly greater.

51 Dr Mehegan went on to say that she had attended an accident at the same intersection in April 2017 (i.e. eight months before the subject collision). She described the circumstances of that collision as '[p]retty much exactly the same' (as Mr Pan's collision): a clear, dry day; both vehicles travelling in the directions travelled by those driven by Mr Pan and Mr Hullo; each car travelling under the speed limit (97 kph and 75 kph respectively in that case); no evidence of pre-impact braking; and both cars ending up in positions similar to those driven by Mr Pan and Mr Hullo. But there was no fatality.

52 Similarly, with respect to an accident occurring the Saturday before Mr Pan's, Dr Mehegan learned (through other police) that a car travelling east, like Mr Pan had done, went through the stop sign and collided with a car coming across the intersection - albeit, this time, the other car was coming from the south (i.e. the right), not the north (i.e. the left).

53 In each of these two other cases, the driver heading east (on the Colac-Lorne Road), like Mr Pan, was using a GPS.

54 A second major source of evidence was Dr Shane Richardson. He provided a report, dated 10 June 2018, which was received as an exhibit on the plea.

55 Dr Richardson is a director of an organisation called Delta-V Experts, which is described as an expert accident investigation, forensic engineering and workplace safety solutions consultancy. Dr Richardson has a Bachelor of Engineering, a Master of Science in Military Vehicle Technology and a PhD relating to rollover protection systems in light passenger vehicles. Like Dr Mehegan, he has attended numerous courses concerning accident reconstruction. He also has published widely and has over 29 years of experience in analysis of collisions of varying types. In providing his opinions in this case, Dr Richardson had the police brief, including Dr Mehegan's report.

56 Dr Richardson included in his report images of the approach to the intersection (from the west), found on 'Google Street View' as at March 2010, at distances of approximately 370, 310, 260, 240, 110, 50 and 10 metres respectively. In none except the last two could I detect the upcoming intersection.

57 Dr Richardson went on to note that, in June 2011, the Australia Road Research Board ('ARRB') published a report entitled 'Safety on roads: run-off road, head-on and intersection crashes'. That report details the major factors that may contribute to rural intersection crashes, including: (1) driver age and experience; (2) intersection design (i.e. road geometry, layout, traffic control, super-elevation, intersection complexity); (3) high vehicle speeds and volumes and driver inability to judge gaps; (4) inadequate sight distance (which may be affected by vegetation, horizontal or vertical alignment); (5) poor road surface conditions; and (6) poor lighting. In the same report, some of the countermeasures listed included: (1) grade separation; (2) installation of a roundabout; (3) improvements in sight distance; and (4) conversion to a staggered T-intersection.

58 Dr Richardson also referred to a report, dated April 2004, by the Monash University Accident Research Centre ('MUARC'), which made similar points. In addition, the MUARC report stated that:

At-grade intersections are potentially the most dangerous parts of the road network because they present a driver with many potential points of conflict with other road users. Many intersections on low-volume, single-carriageway roads and roads approaching towns are either uncontrolled or controlled by stop or give-way signs. Moreover, in rural settings, these types of intersection are even more dangerous because these conflicts often occur at high speeds.

59 Also in his report, Dr Richardson included the text of a press release, dated 16 May 2018 (i.e. five months after Mr Pan's accident), from the Victorian Minister for Roads and Road Safety entitled 'Roundabout to Improve Safety at Birregurra Intersection'. The press release reads as follows:[19]

The Andrews Labor Government will fix a notorious intersection near Birregurra to boost safety and save lives.

Visiting the site today, Minister for Roads and Road Safety Luke Donnellan announced $4.9 million to build a roundabout at the intersection of Birregurra-Forrest Road, Colac-Lorne Road and Deepdene Road.[20]

There were three crashes at this intersection during the Christmas holiday period, where one person tragically lost [his] life and others were seriously injured.

Since then, VicRoads has been working to identify the best long-term solution to improve safety on this site and consult with the local community.

A roundabout is the best way to ensure the safety of drivers passing through the intersection.

Not only will a roundabout lower the speed of vehicles, it will also reduce the risk of cross-traffic and rear-end crashes.

Additional earthworks will also be completed at the site to improve sight lines to the intersection.

Several short-term safety improvements are already in place at the intersection, including a safer speed limit, vegetation clearing to improve sight distances and more visible road line-marking. Two electronic "prepare to stop" signs will also be installed by June.

VicRoads is now in the process of completing detailed designs for the roundabout.

The project is funded through the Transport Accident Commission and is being delivered by VicRoads as part of the Government's Towards Zero Action Plan, which aims to ensure that no one is killed or seriously injured on our roads.

60 Dr Richardson went on to opine that, while the road signage at the time complied with the applicable Australian Standard:

the collision occurred because Mr Pan has failed to detect the warning signs prior to the intersection. Mr Pan is not the first driver, nor will [he] be the last ..., to fail to detect warning signs whilst approaching a four-way at-grade intersection.

The visual cues provided by the road alignment enabled Mr Pan to look through the intersection and therefore not see the hazard of the intersection and/or prompt him that he was approaching a hazard.

61 In Dr Richardson's view, the fact that the speed limit was 100 kph approaching a crossroad intersection with only a stop sign was 'a major hazard'. While the 'Reduce Speed' sign was about 290 metres from the intersection, and was obvious, it still allowed a driver to travel at 100 kph without any compulsory speed reduction.

62 Thus, in his opinion, the speed limit on the approach to the intersection should have been reduced in a staggered fashion, from 100 kph to 80 kph to 60 kph to 40 kph. This, he said, was a low-cost solution that could have been implemented within a short period of time. Such a solution would have the benefits of increasing the time available to the driver to see and perceive the intersection and its structure; of prompting the driver to keep a lookout for hazards; and of lowering the severity of a collision should one occur.

63 Among other suggestions for 'major improvement' by Dr Richardson was the installation of a roundabout. This would increase the conspicuity of the intersection and also reduce the travelling speed through it. In his opinion, had a roundabout been in place in December 2017, the subject collision 'would most likely [not have] occurred or it would have occurred at a much lower speed and hence would have had a different outcome'.

64 Among Dr Richardson's summary of conclusions were the following:

[2] The intersection design may have contributed to the subject collision, because the view along Colac-Lorne Road on approach to the intersection is one of a straight road that continues straight through the intersection without any turns or bends. Aside from the signage and the rumble strips, there are no visual cues to a potential hazard ahead.

[3] Following this collision, the intersection is to be upgraded to a roundabout.

[4] The approach to the intersection (on Colac-Lorne and Deepdene Roads) should have been reduced in a staggered manner from 100 kph to 80 kph to 60 kph to 40 kph. ... A lower vehicle speed on approach to the intersection has multiple benefits:

1. It will increase the time available to the driver to see and perceive the intersection and its structure (i.e. who has the right of way, what traffic control devices are present ..., any vehicles approaching, etc);
2. It will prompt the driver to keep a lookout for hazards due to a reduction in speed limit;

1. It will help lower the severity of a collision should one occur.

[5] Had any mitigation been implemented, then the probability of a collision would have been significantly reduced.

[6] The design of this intersection contributed to the cause of this collision along with Mr Pan's failure to identify the stop signs prior to the intersection.

65 As the judge said, he received in evidence (and had played) a video of recordings of 'drive-throughs' of the two roads travelled (east) by Mr Pan and (south) by Mr Hullo leading to the intersection, the former being the important one. The video was taken with a GoPro by the informant, Detective Acting Sergeant Michael Howard, who said he drove at 100 kph when doing the drive-through.

66 I think it is fair to say that, on the video, while the intersection, when travelling east on Colac-Lorne Road, is unable to be seen at various points from over 400 metres out until much closer, there are also points within that spectrum at which it can be seen. In particular, while it was not obvious to me, with close concentration, I could detect the intersection from about the point of the third set of rumble strips, but then it became more difficult to see as the road rose up, and then it became clearer again at perhaps 50 to 100 metres.

67 This, it seems to me, is consistent with the way in which Dr Mehegan and Dr Richardson described the limitations on visibility of the intersection.

68 This is also consistent with the police photographs received on the plea. In particular, in photograph 11, which depicts a view of the road heading east from within the third set of rumble strips, including the sign advising of a stop sign up ahead (so, perhaps at about 220 metres from the intersection), the crossroad can be seen in the distance, but only just. And in photographs 13 and 14, which are respectively taken a little further along, the intersection is even less noticeable to my eye.

69 Further, I think that these photographs, the drive-through video and the Google Street View images[21] all make clear the point, made by Dr Mehegan and Dr Richardson, that the structure of the intersection at the time of Mr Pan's collision was such that there was a risk that a driver may well be deceived into thinking that the road continues east unimpeded.

70 Detective Howard (the informant) also gave evidence at the committal that, in the weeks after Mr Pan's fatal collision, the speed limit on the approach to the intersection was reduced from 100 kph to 80 kph 'and may have even dropped lower'. (This, of course, is consistent with Dr Richardson's opinion, in part.) Also, orange bollards were used to form a traffic island.

71 On the plea, counsel for Mr Pan submitted that, based on all of the evidence, including the opinions of Dr Richardson, the judge should find that (in addition to Mr Pan's inattention) the poor design of the intersection contributed to the cause of the collision and that this in turn reduced his culpability for the offending so as to place it 'towards the lower end of moral culpability'. Among the examples counsel gave, or proof he offered, of that poor design were the lack of visual cues to a hazard ahead (aside from the signage and rumble strips), the failure to have in place a series of speed signs with ever-reducing speed limits (as Dr Richardson had suggested), and the concessions by the State that the intersection was 'notorious', had sustained several serious accidents of a similar type and was in need of significant improvement.

72 When the issue was raised early in the plea, the prosecutor neither objected to the tender of Dr Richardson's report nor required him for cross-examination. Instead, he indicated that he was content to make submissions later in the plea as to why the design of the road did not contribute to the accident. After the plea was made by defence counsel, the prosecutor submitted that, while all of the circumstances must be taken into account in determining moral culpability, and while the more aggravating features of offences like these were absent, the multiple warning signs facing Mr Pan were such that his failure could not be described as a case of momentary inattention. It was not a case at 'the high end' (of gravity), nor was it at the lowest end. Instead, it was 'somewhere in the middle for [the judge] to determine'. The prosecutor did not, however, ever return specifically to the question of contributing causes.

73 That said, the prosecutor also conceded, on instructions, that it was open to impose a prison sentence combined with a community correction order ('CCO'). Equally, however, it was apparent from the judge's remarks at the time, and from his subsequent reasons and the sentence imposed, that his Honour did not accept the Crown's concession.

74 As for his reasons for sentence, while the whole of the judge's reasons are important, for the purposes of this ground, counsel for Mr Pan in this Court focused on a few passages in particular, which, for convenience, I shall reproduce again here:[22]

[11] ... You were not experienced in driving in Australia or familiar with the country roads that you were on, when you failed to obey the stop sign at the intersection. That said, this country road had a significant number of warnings, so as to aid those unfamiliar with the area as tourists, as they approached the intersection. Your counsel made much of what he said was the notorious nature of the intersection, where there had been collisions before and after yours in similar circumstances. His argument was that this lowered your moral culpability.

[12] He relied upon the Court of Appeal decision in R v Rudebeck [1999] VSCA 155 at paragraphs 15 and 31. It is hard to understand what the decision in Rudebeck or those two cited paragraphs aided, let alone established the proposition put by your counsel. ...

...

[14] There are County Court sentences where the facts reveal a failure to obey give way signs on rural roads. One is perhaps particularly helpful [i.e. DPP v Ng[23]]. I drew this to counsel's attention today, as it was the first opportunity I have had to do so. That sentence was from Judge Hampel, who also was sitting at Geelong, where she dealt with a Singaporean national who was driving on unfamiliar country roads with friends on a rock climbing holiday in the Grampians. The driver failed to obey a give way sign and collided with a car driving with the right of way. There were some advisory signs, but not nearly the number here and no rumble strips in that case. In that case, the following was said ... :[24]

Although the paramedic who attended the scene believes it is a dangerous intersection and on the material before me, this is not the first time there has been a collision at that intersection, it is nonetheless well and sufficiently sign-posted. An attentive driver is given more than sufficient opportunity to note that they face a controlled intersection ahead, to slow down and to satisfy him or herself there are no cars on the intersecting roadway, before entering the intersection.

[15] I adopt those words and emphasise that here, the warnings in this case were much more explicit, clear and more numerous. In my view, taking into account all the circumstances, including the views expressed by experts in reports at the committal and indeed by politicians, that the control of the intersection should be upgraded, this is not a set of circumstances such that the road conditions meant that your moral culpability fell to the lowest or a low category, as urged by your counsel.

75 In this Court, as I understood him, counsel for Mr Pan submitted that, while the judge (in the passage extracted immediately above) said that he had 'tak[en] into account ... the views expressed by experts ... that the control of the intersection should be upgraded', it is apparent from other things he said, including his reliance on the passage in DPP v Ng (where there was no expert evidence), and from the sentences he imposed, that his Honour either failed to accept that the intersection made any contribution to the accident or acted on the basis that, if it did, that contribution made no difference to Mr Pan's moral culpability, because the 'warnings were [so] explicit, clear and numerous'. Counsel also challenged his Honour's finding that Mr Pan's moral culpability was not in the 'low category'. In his submission, the error of judgment by Mr Pan was more readily made in view of the faults in the intersection, which the history of other serious accidents of a similar nature only confirmed. Either way, it was submitted, his Honour erred in failing to recognise a significant reduction in moral culpability and to reflect that factor in sentencing. In footnotes in his written case (but not in oral argument), counsel referred to the decisions of this Court in Spanjol v The Queen[25] and George v The Queen[26] as supporting his submissions concerning the underlying principle for which he contended.[27]

76 Counsel for the Director in this Court (who did not appear on the plea) accepted that, in principle, faulty road design could contribute to the cause of an accident and thereby result in a reduction in an offender's moral culpability. Helpfully, in her oral argument (but not in her written response), counsel referred to Spanjol and George as supporting that proposition. (I shall return to those cases shortly.)

77 As I understood her further submission, however, it was plain that the judge, from the outset of the plea, and then in his reasons for sentence, doubted that any such principle could apply in the face of the warnings leading up to this particular intersection. Thus, counsel pointed to the following remarks made by the judge on the plea:[28]

The idea that the intersection contributed to the subject collision is something I struggle with, in the sense that this is a road that heads up to an intersection that's [got] three rumble strips and a significant amount of signage and then there's the road itself ... That road and Mr Hullo on it were there to be seen and the stop sign was there to obeyed.

78 Similarly, submitted counsel, in the reasons for sentence (especially at paragraph [15]), it is apparent that his Honour concluded either that there could be no reduction in moral culpability in the face of the several indicators of a need for caution or that, for the same reasons, any reduction could not bring his level of moral culpability down to 'the lowest or a low category'. In counsel's submission, these findings were open.

79 I think it is plain, from his reaction to defence submissions on this topic during the plea, that his Honour doubted that those submissions were supported by the authority on which counsel relied (i.e. R v Rudebeck[29]). So much is apparent also in his reasons for sentence (especially at paragraph [12], extracted above).

80 While his Honour said he found some assistance in the reasons of Judge Hampel in DPP v Ng, unlike the present case, that was a case that did not involve expert evidence. Further, in my opinion, it is unfortunate that the judge was not referred to either Spanjol or George. For, had that been done, I am confident that his Honour would have come to a different view.

81 Before developing that point, I shall set out the principal passage from Priest JA's judgment in George:[30]

[109] Adapting the ... reasons [of the Court in Spanjol] to reflect that the present case is one of culpable driving by gross negligence, the relevant principles appear to be:

(1) In a case of [culpable driving by gross negligence], the finding of guilt (or plea of guilty) establishes that the offender's driving was criminally negligent and that the negligent driving caused the victim's [death].

(2) The sentencing court will treat as its starting point that the offender was solely responsible for the manner of his driving and that the manner of his driving was the sole cause of the serious injury. But the evidence may support a qualification of one or both of these propositions.

(3) As to responsibility for the negligent driving, the offender may be able to establish that some other person (whether or not the victim) and/or some external circumstance was partly responsible for the manner of the driving.

(4) As to the causal link with the [death], the offender may be able to establish that there was an additional factor, outside the offender's control, which was also a material cause of the [death].

(5) The language of 'complicity' should be avoided in this context. 'Complicity' is a technical term, with a well-defined meaning. It connotes the attribution of criminal responsibility to a co-offender. No such question arises in either of the circumstances under consideration.

(6) Instead, the language of 'reduced responsibility' should be used to describe the first kind of qualification and the language of 'other contributing causes' to describe the second kind of qualification.

82 As Priest JA explained, the foregoing principles were adapted to a case of culpable driving causing death from the reasons of this Court in Spanjol, which had dealt with a case of negligently causing serious injury by the driving of a motor vehicle. In Spanjol, in their joint judgment, Maxwell P, Redlich and McLeish JJA settled the unresolved conflict between R v Tran[31] and R v Howarth[32] on the question whether the conduct of the victim in cases such as this could be relevant for sentencing purposes.[33]

83 While Spanjol dealt with a case of negligently causing serious injury and George dealt with a case of culpable driving, and while neither case dealt with the particular issue at hand in the present case, I accept the submissions of counsel for the Director that the principles are also applicable to the offences of dangerous driving causing death and dangerous driving causing serious injury and to the particular fact in issue in the present case - namely, whether the poor design of the intersection contributed to the accident; or, to use the words of this Court in Spanjol and George, whether 'an additional factor, outside of the offender's control, ... was also a material cause of the [death and the serious injury]'.

84 As Maxwell P, Vincent JA and Hargrave AJA explained in their joint judgment in DPP v Neethling,[34] the offence of dangerous driving causing death was created in Victoria in 2004.[35] The Attorney-General said at the time that the new offence would 'fill a gap' between the two existing offences, namely culpable driving causing death and the summary offence of dangerous driving (simpliciter). To establish the new offence, the Minister said, the prosecution:[36]

will not be required to prove criminal negligence, which is required to prove culpable driving causing death. Rather, ... the prosecution will have to prove that the accused drove at a speed or in a manner dangerous to the public having regard to all the circumstances of the case, and by doing so, caused the death of or serious injury to another person.

85 In those circumstances, there is no reason why the principles settled in Spanjol and George should not be adapted to sentencing for offences of dangerous driving causing death or serious injury. On the contrary, it makes perfect sense to do so, and there is nothing in principle denying that approach.

86 Had the sentencing judge in this case had those authorities drawn to his attention, his Honour would have realised the fundamental importance of considering whether Mr Pan had established that the poor design of the intersection was 'an additional factor, outside of the offender's control, which was also a material cause of the [death and the serious injury]'. In those circumstances, instead of being dismissive of counsel's submission, the judge would have given careful consideration to the opinions of Dr Mehegan and Dr Richardson, the photographic and drive-through video evidence, the history of similar accidents at the intersection and the State's concessions as to the problems with the intersection and the need for safety improvements. Had he done so, his Honour would have concluded that the faults in the intersection contributed to the accident in this case, and therefore to the cause of the death of Mr Hullo and the serious injury to Ms Yu. This in turn would have compelled a significant reduction in moral culpability, despite the culpability necessarily involved in Mr Pan's admitted inattention amounting to dangerous driving causing death and serious injury.

87 More particularly, when regard is had to all of the evidence in this case (including Mr Pan's sworn evidence), it is very likely that the accident unfolded in this way. First, after his concern had been piqued by the 'Reduce Speed' sign and the rumble strips, Mr Pan then looked to his GPS, at which point he simply missed the signs warning of the impending stop sign. Next, by the time he lifted his eyes back to the road, he was on the two-percent upward incline described by Dr Mehegan and, consistently with the possibilities exposed in her experience and with Mr Pan's own evidence, he did not see the intersection, but, instead, saw the continuation of the road up the hill beyond the intersection. Thus, at this point, the flattening out at the crossroad and the limited view deceived him into thinking the road continued unimpeded.

88 Without wishing to descend into hyperbole, it is plain that this intersection was a serious accident waiting to happen. Dr Mehegan and Dr Richardson's analyses and opinions were compelling. While there were warning signs and rumble strips in place, it is obvious that these were insufficient given the design of the intersection. The visibility of the crossroad when heading east was patchy and poor. The flattening out of Birregurra-Forrest Road, when set against the upward incline on Colac-Lorne Road and then Deepdene Road, was obviously capable of deceiving an east-bound driver into thinking that Colac-Lorne Road continued unimpeded. Dr Richardson was correct to suggest that there should be a staggered reduction in speed limits, so as to make clear to drivers that they had to slow down below given limits. The fact that several accidents of a similar type had occurred in quick succession, and that the State acknowledged that the intersection was 'notorious' and needed improvements of the kind that would address the very problems perceived by the experts, only added further weight to the view that, as a matter of common sense, the faulty intersection contributed to Mr Pan's particular accident. Fortunately, those improvements are now being put in place.

89 None of that is to say that a judge would not be entitled, on a given set of facts, to conclude that, even where such a contribution had been established, there should be little or no reduction in moral culpability. Such a situation might arise where, for example, the offender's 'serious breach of the proper conduct of a vehicle on the roadway'[37] was so flagrant that his moral culpability was unaffected by an external contributing cause - or, perhaps in truth, the external contribution was rendered meaningless in the face of the offender's behaviour. But, for the reasons I have given, that is not this case.

90 On the other hand, as will be seen below, I have rejected Mr Pan's complaint that the judge was compelled to conclude that his GPS did not warn him, visually, of the impending road or stop sign. Further, I have concluded that, even if the judge erred in that finding of fact, it was an error of no consequence. This is because, by his own admission, Mr Pan had understood the 'Reduce Speed' sign and, despite his experience in China, also thought that there might be something in the presence of the rumble strips. In my view, it is plain that Mr Pan did not slow down to a degree consistent with the reasonably prudent driver who had noticed and understood such a sign and who was at least put on (perhaps belated) inquiry by the rumble strips.

91 That, however, does not deny the force of the view that the faulty intersection still contributed to the accident, and therefore to the causation of the death of Mr Hullo and the serious injury to Ms Yu, and thereby impacted on Mr Pan's moral culpability. For the design of the intersection was such that, even if, instead of looking to Google Maps, Mr Pan, more sensibly and prudently, had looked to his speedometer for a moment, there would still have been a high risk that, because of the faulty design of the intersection, he would have missed the point where the intersection was visible as he drove up the two-percent incline.

92 Thus, in summary, my conclusions are these. First, if it is correct to say that the judge made no finding, or did not accept, that the poor design of the intersection contributed to the cause of the collision, then he was in error.

93 Equally, if it is correct to say that the judge concluded that there could be no reduction in moral culpability in the face of the several indicators of a need for caution, which seemed to be the construction of his Honour's reasons preferred by counsel for the Director, then those reasons and the findings implicit therein were also in error.

94 Even if the better view of the judge's reasons (a view which I doubt is correct) is that any reduction could not bring Mr Pan's level of moral culpability down to 'the lowest or a low category', then, in my respectful opinion, his Honour was still in error. While I agree that Mr Pan's level of moral culpability was not in the 'lowest ... category', in my opinion, it was plainly in 'a low category'. Given the faults in this intersection, a driver, having missed the warning signs that Mr Pan missed, would not have to blink - or look at a speedometer or a GPS - for very long or very often to miss crucial indicators of the impending intersection or stop sign in order to be deceived into thinking the road continued unimpeded and in consequence fail to reduce his speed sufficiently or at all as he unwittingly approached the intersection.

95 Accordingly, I would uphold Grounds 1(a) and 1(b).

96 I shall turn to the consequences of the success of these grounds later in these reasons.

Ground 1(c): Whether Google Maps failed to warn of intersection

Ground 1: The learned sentencing judge erred when assessing the applicant's moral culpability (such that a different and lesser sentence should now be imposed ...) by reason of: ...

c) failing to find as a matter of fact that the Google Maps navigational application did not warn him of the intersection.

98 It will be remembered that Mr Pan gave sworn evidence on the plea that, because he thought that the rumble strips may have been an indicator of 'something ahead of [him]', he looked to his GPS - by which he meant the Google Maps app he was using on his mobile phone. He said that the GPS did not show any intersection or stop sign and did not give him any verbal warning of any such thing. Instead, it merely noted an intersection four to five kilometres away. He also said that his GPS gave him the impression that he was on a main road, and that, if any other road crossed it, drivers on the other road would have to give way to him. Mr Pan also swore that, sometime after the accident, he engaged in a reconstruction on the same piece of road and that, again, his phone did not show the intersection. Nor did it 'say anything verbally'.

99 I said earlier that that evidence was supported, at least in part, by the committal evidence of the prosecution accident reconstruction expert Dr Mehegan. After giving her evidence of the two accidents in April and December 2017 very similar to Mr Pan's (both of which also included the use of a GPS), which I summarised when considering Grounds 1(a) and 1(b), Dr Mehegan was asked these questions and gave these answers:[38]

Are you familiar at all with the Google Maps application? - - - Yes.

Do you have any knowledge of how Google Maps GPS maps out this particular intersection? - - - So at the time I was actually looking at it there was no - and so I don't know what it currently is, whether it's changed, but there was no indication on the actual GPS of a stop sign approaching for a vehicle travelling east.

Did you look at the Google Maps application in your investigation of this collision? - - - Yes.

And I take it that involved looking at the GPS and how it guided a driver down that particular stretch of road? - - - Yes.

Google Maps is an application that has an audible function? - - - Yes.

If the driver wishes to use it? - - - That's correct.

And in your experience of that application with the audible functions switched on, is the driver typically or generally told about intersections up ahead? - - - Usually, yes.

And is a driver typically warned of a stop sign ahead? - - - Yes.

Neither of those things happened when you looked at this particular intersection using Google Maps? - - - With the navigation system that I used in the days after this one, no.

And that navigation system was the Google Maps application? - - - That's correct.

So, effectively, based on your experience of that application when you used it, a driver travelling along that stretch of road, going in the same direction as Mr Pan, based on the navigation system, would be given the impression that he or she could simply drive straight through without having to stop? - - - I don't know about giving the impression, but the driver's certainly not warned of, from the navigation system, of the stop sign.

...

Whereas ordinarily you would expect to be told? - - - Yes.

By the navigation system? - - - Yes, so we can't just rely on navigation systems.

100 On the plea, counsel submitted that, based on all of the evidence, the judge should conclude that the GPS, on which Mr Pan had been relying, neither showed him on its display, nor warned him verbally, of any impending stop sign or intersection. He relied on this evidence as part of his overall submission that Mr Pan's moral culpability should be regarded as 'towards the lower end'.

101 While, again, I did not understand him to deal with the point directly, as I indicated when dealing with Grounds 1(a) and 1(b), the prosecutor at the plea did submit that, while all of the circumstances must be taken into account in determining moral culpability, the multiple warning signs facing Mr Pan were such that his failure could not be described as a case of momentary inattention.

102 Again, while the whole of the judge's reasons are important, for the purposes of this ground, counsel for Mr Pan in this Court focused on a couple of passages in particular, which, for convenience, I shall reproduce a second time here:[39]

[6] As the road continued, there was yet another warning sign just beyond the third set of rumble strips. These signs advised that stop signs facing the direction you were driving, were approaching. Again, this had no effect on your driving which was maintained at the same speed. The Colac-Lorne Road as it approaches the intersection was at a decline, giving a good line of sight to the approaching intersection and stop signs. A drive-through video produced by the police, was tendered and played on the plea. After the intersection, the Colac-Lorne Road continues on an incline and you seemed to think that the road kept going, without there being an intersection at all, or if there was one, the other road had to stop for traffic heading the way that you were driving.

[7] This was a fundamental error of judgment and one hard to understand, if you were paying attention to the road conditions approaching. You said in your evidence that you were using a navigational tool on your mobile phone, sitting in a cradle near your steering wheel. You claimed that the map on the mobile phone did not display any intersection or road approaching. This is hard to accept as the Birregurra-Forrest Road was the major road, designed as a C-road with a number, and is a significant road and thoroughfare to the inland towns such as Forrest and the coast via Skenes Creek.

103 In this Court, defence counsel submitted that the judge's reasons (especially in the emphasised passage extracted immediately above) appear to indicate that he failed to accept Mr Pan's account that the GPS did not (visually) display the upcoming intersection. As I understood him, counsel submitted that, while Dr Mehegan's evidence was not so clear as to address this particular point squarely, when regard is had to the burden of her evidence (which was that her testing showed that the same app did not warn verbally of the intersection or the stop sign), the lack of challenge of Mr Pan by the prosecutor in cross-examination on this point, and his prior good character and the absence of any prior convictions, it was not open to the judge to fail to accept his account on this score. Further, he submitted that there was no basis to reject Mr Pan's account based on a mere assumption that the Google Maps application would show the intersection.

104 As I understood counsel for the Director in this Court, in her submission, the judge was entitled to reject Mr Pan's evidence about the GPS failing to display the intersection. Counsel also submitted that, in any event, in view of the numerous warnings of the need for caution, the judge was entitled to conclude that there was no reduction in moral culpability on account of his (misplaced) reliance on the GPS.

105 In my view, the short answer to this ground is that it was open to the judge to fail to accept Mr Pan's evidence that 'the map on the mobile phone did not display any intersection or road approaching'.

106 While Dr Mehegan's answer - 'the driver's certainly not warned of, from the navigation system, of the stop sign' - might be ambiguous in isolation, in context, I think that it is plain enough that she was directing herself to the absence of an audible warning. And while she was not directly asked the question at the committal, and while she did not directly give evidence that, when tested by her, the visual display included the intersection, nevertheless, given the overall context of the questions asked of her, it would be reasonable to expect a witness of her experience and standing to have pointed out that the application did not display the intersection, if that had been her experience. Thus, as supportive as Dr Mehegan's evidence was that the Google Maps application she tested did not audibly warn of the upcoming intersection or stop sign, I did not take, and I do not think it was open to take, her evidence as extending to a failure to give a visual display of that intersection or the major road.

107 Further, it appears to have been accepted by counsel that Mr Pan bore the onus of persuading the judge, on the balance of probabilities, that his GPS did not show the intersection (visually). His Honour had the benefit of seeing and hearing Mr Pan in the witness box. He was entitled to make an assessment of Mr Pan as a witness on this point, and to test his claim against common sense and experience.

108 On the latter point, while the judge had no expert evidence before him of whether, at the time in question, the Google Maps application usually would show that particular intersection, it seems to me to have been reasonable to act, as his Honour did, on the basis that it was to be expected that the Birregurra-Forrest Road, as the major road of the two, would be displayed on the application. Indeed, what might have been more plausible was an absence of either road - perhaps because the application was not operating properly at that point in the journey or was faulty or incomplete or not up to date. But Mr Pan's evidence proceeded on the premise that the (comparatively minor) road on which he was travelling was shown, whereas the major road was not. Yet, if the more minor road was shown, it is hard to believe that the major road - and therefore the intersection - would not have been shown.

109 In any event, even if the judge did err in acting on such an assumption, I think it was an error of no consequence in this case. By his own admission, Mr Pan had understood the 'Reduce Speed' sign and, despite his experience in China, also thought (perhaps a little belatedly) that there might be something in the presence of the rumble strips. While I think the judge may have been wrong to reject (or to fail to accept) that Mr Pan had slowed down (at least a bit) - although that need not be decided - it is plain that he did not slow down to a degree consistent with the reasonably prudent driver who had noticed and understood such a sign and who was at least put on (perhaps belated) inquiry by the rumble strips.

110 To be sure, I realise, of course, that I have accepted, for the purposes of Grounds 1(a) and 1(b), that the faulty design of the intersection (and its lead-up heading east) contributed to the accident (and therefore to the death of Mr Hullo and the serious injury suffered by Ms Yu), for it is very likely that, at that point, Mr Pan was deceived into thinking the road continued unimpeded. But that, in a sense, is doing no more than acknowledging that there was more than one cause of this accident, one of which was external to Mr Pan.

111 What must be borne in mind as well, though, is that the 'Reduce Speed' sign was about 280 metres (or over ten seconds at a speed of 98 kph) from the intersection and that the last of the rumble strips was at a distance of 234 metres (or about eight or more seconds at 98 kph). At that point, Mr Pan's first thoughts should have been to look ahead and slow down. If he had done so, while he may well still have been deceived by the faulty design of the intersection, it seems likely that he would have had time, first, to have appreciated that there was a stop sign intersection ahead and, second, to have washed off enough speed to avoid the accident. Given, in particular, the higher speeds permitted on many country roads, including the one in question, it is paramount that drivers focus squarely on the road ahead and be astute to any indicators of the need for caution, instead of slavishly looking to (and at) GPSs for information relevant to safe driving.

112 None of this is to say that reasonably misplaced reliance on a GPS might not be material to either culpability (or even liability) in a given case. It just means that, in the particular circumstances of this case, I do not think it was a factor reducing Mr Pan's moral culpability.

114 Error having been established under cover of Grounds 1(a) and 1(b), the next question is whether a different sentence should be imposed.[40] In my view, a lesser sentence than the judge imposed is warranted on each offence. Thus, I would grant leave to appeal, allow the appeal, set aside the sentences imposed below and resentence Mr Pan.

115 In considering the questions whether different sentences should be imposed and, if so, what those substituted sentences might be, I have had regard to the same factors addressed by the judge in his reasons. Included among those factors, in summary, are the following:

• the maximum penalties for each offence (ten and five years' imprisonment respectively);
• in so far as they can be determined, current sentencing practices for offences of this type;
• the nature and gravity of each offence, including the fact that Mr Hullo was killed and Ms Yu was seriously injured as a result of Mr Pan's dangerous driving constituted by his inattention;
• Mr Pan's culpability and degree of responsibility for the offences, including the reduction in moral culpability associated with the contribution of the faulty intersection to the collision;
• the impact of the offences on, and the personal circumstances of, Mr Hullo, Ms Yu and their loved ones, and the injury, loss and damage resulting directly from the offences (including the contents of the victim impact statement of Mr Hullo's brother Stephen Hullo);
• Mr Pan's pleas of guilty and his palpable remorse;
• Mr Pan's previous good character, including his strong work history, his good driving history, his positive character traits as described in the references and an absence of prior convictions;
• Mr Pan's excellent prospects of rehabilitation; and
• the particular hardship Mr Pan would endure in custody.

116 On the hearing of the application, counsel for Mr Pan tendered, without objection, an update on the intersection in question. As I understood things, counsel for the Director did not object to the evidence on the basis that it might be relevant to resentencing, should the Court get to that point.

117 In short, this evidence was in the form of a printout from the Regional Roads Victoria website, entitled 'Birregurra-Forrest Rd roundabout: Update, January 2020'. Counsel emphasised that, among other things, the printout stated that, from January 2014 to January 2019, there had been seven crashes at the intersection[41] resulting in 21 serious injuries and one death. A community rally caused the relevant authority to install temporary safety measures so that safety might be improved immediately while a long-term solution was developed. This included introducing safer speed limits, installing warning signs, applying new line markings and removing trees to improve the line of sight. A roundabout was chosen as the best solution for improving safety at the intersection. It was also said that 15,000 cubic metres of soil would be removed (reducing crests) on the approaches to the roundabout to improve sight distances.[42] These 'important upgrades', it was said, 'will help improve safety by ... [reducing] the risk and severity of intersection crashes'.

118 In my view, this information only adds to the force of the submission, on behalf of Mr Pan, that poor road design contributed to the accident in his case, which in turn lessens his moral culpability.

119 Counsel for Mr Pan submitted that a combined prison sentence and CCO would be open on resentencing, despite the fact that Mr Pan would not have a visa allowing him to stay in this country to complete the CCO component in the usual way. Alternatively, he submitted that a prison sentence with a much shorter non-parole period would be appropriate.

120 As I understood counsel for the Director, her submission was that, while a combined prison sentence and CCO may be open, there would be practical difficulties in Mr Pan completing such an order, because he would be likely to be deported.

121 I have considered, but rejected, the imposition of a combination prison/CCO sentence. In my view, despite the contribution made by the poor design of the intersection, and allowing fully for all matters in mitigation, I think that Mr Pan's offending, albeit by inattention and at a lower level of gravity than the level assessed by the judge, is nevertheless still too serious to result in anything other than a prison sentence with a non-parole period. While I have accepted that his moral culpability was at a low level, his inattention was of an order that took it beyond a momentary lapse of concentration and to a level of offence gravity that parsimony demanded, and still demands, a prison sentence with a non-parole period instead of a CCO or a combined prison/CCO sentence. I am also of the view that the sentencing purposes of general deterrence, just punishment and denunciation compel such a sentence, especially given that a man's life has been lost as a result of Mr Pan's dangerous driving.

122 On the other hand, I mentioned a moment ago that I consider that the offence gravity in this case is not as grave as the judge assessed it to be. Indeed, in so far as descriptions of objective gravity are regarded as helpful or even still permitted, I would place these instances of the offences overall as falling just below the mid-level and in the upper regions of the lower levels for offences of dangerous driving causing death and serious injury. Thus, I do not think that the injunction made in Stephens and of which the judge spoke - namely, 'as to the need for an increase in sentences for dangerous driving causing death'[43] - strictly applies to the present case, for that injunction appeared to be limited to offences of 'dangerous driving causing death which fall within or above the mid-category of seriousness'.[44] That said, as I understand the Court in Stephens,[45] in the same way that in Harrison[46] it was expected that 'such a change [i.e. an uplift in sentencing practices for upper end offences] would have a flow-on effect on sentencing for mid-range and low-range instances of negligently causing serious injury by driving', so too would an uplift in sentences for more serious offences of dangerous driving causing death have a similar effect on mid-range and low-range instances of dangerous driving causing death (and, therefore, also on offences falling between those levels of gravity).

123 Further, like the judge, I think there is only a modest (if any) need for specific deterrence in Mr Pan's case. I can see no need for community protection from Mr Pan. In any event, the weight to be given to general deterrence, just punishment and denunciation will produce a sentence that necessarily meets any need for specific deterrence or community protection.

124 Rehabilitation, however, is an important consideration, especially given Mr Pan's remorse, previous good character and strong prospects of rehabilitation.

125 Taking into account all of these factors, I would impose sentences of two years' imprisonment on the offence in Charge 1 and ten months' imprisonment on the offence in Charge 2. I would direct that four months of the sentence for the offence in Charge 2 be served cumulatively upon the sentence for the offence on Charge 1. That would make a total effective sentence of two years and four months' imprisonment.

126 While all factors (both mitigating and aggravating) necessarily affect the individual sentences, the total effective sentence and the non-parole period, Mr Pan's pleas of guilty, palpable remorse, previous good character and strong prospects of rehabilitation, and the particular hardship of imprisonment in his personal circumstances, all have additional weight when fixing the non-parole period. Accordingly, I would fix a non-parole period of twelve months.

127 Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that, but for Mr Pan's pleas of guilty, I would have proposed a total effective sentence in the order of three-and-a-half years' imprisonment with a non-parole period of two years.

128 Since there was no argument about it on the application, I would leave in place the judge's order cancelling Mr Pan's driving licence and disqualifying him from obtaining another for eighteen months.

[1] Contrary to ss 319(1) and (1A) respectively of the Crimes Act 1958 (Vic).

[2] DPP v Pan [2019] VCC 360 at [35]- [37]. The judge also cancelled any driving licence held by Mr Pan and disqualified him from driving for a period of 18 months.

[4] In particular, Spanjol v The Queen (2016) 55 VR 350 and George v The Queen [2017] VSCA 152. See below.

[5] Contrary to ss 318(1) and 24, respectively, of the Crimes Act 1958 (Vic).

[6] Pursuant to s 207 of the Criminal Procedure Act 2009 (Vic).

[7] DPP v Pan [2019] VCC 360 at [35]- [37].

[8] DPP v Pan [2019] VCC 360 at [3]- [8], [10]-[19] & [21]-[34] (emphasis added - in italics and bold).

[9] At this point in the reasons, and in the next paragraph, his Honour went on to detail the fact that Mr Hullo was killed and Ms Yu was seriously injured.

[10] DPP v Ng [2016] VCC 1565.

[11] DPP v Ng [2016] VCC 1565 at [10].

[12] There must be a typographical or other error in this sentence, as it is difficult to comprehend in its current form. I have taken his Honour to have meant something like this: 'This road, like so many country roads, had an intersection requiring [etc]'.

[13] DPP v Neethling [2009] VSCA 116; (2009) 22 VR 466.

[14] At this point, and in the next paragraph, his Honour detailed aspects of Stephen Hullo's victim impact statement and personal circumstances leading up to his brother's death, all of which were sad and compelling.

[15] Stephens v The Queen [2016] VSCA 121; (2016) 50 VR 740 at 745-746[21].

[16] DPP v Neethling [2009] VSCA 116; (2009) 22 VR 466.

[17] DPP v Oates [2007] VSCA 59; (2007) 47 MVR 483.

[18] R v Musumeci (unreported, Hunt CJ at CL, McInerney and Hulme JJ, New South Wales Court of Criminal Appeal, 30 October 1997) at pp 4-5.

[19] Emphasis added - in italics and bold.

[20] Once it crosses Birregurra-Forrest Road, Colac-Lorne Road becomes Deepdene Road.

[21] While these images were taken in March 2010 (at which time the signs and rumble strips present in December 2017 were not there), they still give a strong idea of the topography, major trees and the overall look of the road from the point of view of a driver travelling east.

[22] DPP v Pan [2019] VCC 360 at [11]- [12] & [14]-[15] (emphasis added - in italics and bold).

[23] DPP v Ng [2016] VCC 1565.

[24] DPP v Ng [2016] VCC 1565 at [10].

[25] Spanjol v The Queen (2016) 55 VR 350 at, e.g., 352[4]-353[5] (per Maxwell P, Redlich and McLeish JJA) (a case concerning negligently causing serious injury).

[26] George v The Queen [2017] VSCA 152 at [109] (per Priest JA, with whom Ashley JA and Croucher AJA agreed) (adapting Spanjol to a case of culpable driving causing death).

[27] Counsel also referred, in a footnote in his written case, but not in oral argument, to Guseli v The Queen [2018] VSCA 182.

[29] R v Rudebeck [1999] VSCA 155.

[30] George v The Queen [2017] VSCA 152 at [109] (footnote omitted; emphasis added - in italics and bold).

[31] R v Tran [2002] VSCA 52; (2002) 4 VR 457.

[32] R v Howarth [2000] VSCA 94; (2000) 1 VR 593.

[33] Spanjol v The Queen (2016) 55 VR 350 at, for example, 352[4]-353[5].

[34] DPP v Neethling [2009] VSCA 116; (2009) 22 VR 466 at 471[25].

[35] Originally, the offences of dangerous driving causing death and serious injury were contained in the one provision with the same maximum penalty (of five years' imprisonment). In 2008, they were separated into two provisions with different maximum penalties (of ten and five years' imprisonment respectively).

[36] Hansard, Legislative Assembly, 3 June 2004, p 1798.

[37] See, for example, King v The Queen [2012] HCA 24; (2012) 245 CLR 588 at 603[33] and 609[46] (per French CJ, Crennan and Kiefel JJ) and 623[91], 625[94] and 626[99]-627[100] (per Bell J).

[38] Depositions at T 18-21 (emphasis added - in italics or italics and bold).

[39] DPP v Pan [2019] VCC 360 at [6]- [7] (emphasis added).

[40] See s 281(1) of the Criminal Procedure Act 2009 (Vic).

[41] As opposed to the five of which the judge was apprised.

[43] DPP v Pan [2019] VCC 360 at [34] (extracted above).

[44] Stephens v The Queen [2016] VSCA 121; (2016) 50 VR 740 at 748[33]; see also 749[36], 750[38] & [40]; but contrast 751[43].

[45] Stephens v The Queen [2016] VSCA 121; (2016) 50 VR 740 at 749[36].

[46] Harrison v The Queen [2015] VSCA 349; (2015) 49 VR 619.