1. In Georgiou v The Queen ('Georgiou'), this Court discussed the elements of the offence of dangerous driving causing death under s 319 of the Crimes Act 1958. This Court said:

Section 319(1) of the Crimes Act provides that a person is guilty of dangerous driving causing death if the person drives a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case and the dangerous driving causes the death of a person. ...

The test is objective and involves a serious breach of the proper conduct of a motor vehicle upon the road, that is 'so serious as to be in reality and not speculatively, potentially dangerous to others'. The objective question is whether the manner of driving has the necessary quality of being dangerous to the public.

The concept of dangerousness in s 319 of the Crimes Act:

• ... imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place.

In one sense, driving, even when carefully undertaken and fully compliant with applicable rules, will always carry some risk to the driver, passengers and other road users. Driving is not free from hazard and the realisation of an ordinary risk of driving does not mean that the driving must have been dangerous. The mere fact that there has been a collision, and in the context of s 319(1) of the Crimes Act, the collision has resulted in the death of a person, does not mean that the driving was dangerous. For the driving to be dangerous, 'there must be some feature [of the driving] which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention.'

The observation in Jiminez that the defining feature must be framed by reference to the risk that the driving entails, rather than whether it constitutes a want of care, was reinforced by the Court's later observation in the same judgment that:

• But it should be emphasized, and it must always be brought to the attention of the jury, that the condition of a driver must amount to something other than a lack of due care before it can support a finding of driving in a manner dangerous to the public.

If the trier of fact concludes that the driving was careless, and goes no further, then the critical question on which the offence turns will not have been determined, namely whether the prosecution has proved beyond reasonable doubt that the driving was dangerous. That is why Barwick CJ said in McBride that 'it is not enough that the vehicle as driven by the [driver] has caused death or injury and the [driver] was negligent, even in some glaring respect.' A lack of care does not always translate into an increased risk of harm over and above that which ordinarily inheres in driving a motor vehicle, including by person[s] who exhibit a degree of carelessness.

Although dangerous driving may, and often will, be associated with a want of care, negligence is not an element of the offence. As was said in King, particular driving may be undertaken with care and skill but remain dangerous for the purpose of s 319. It follows that the fact that the driving was associated with a degree of carelessness on the part of the driver or that the collision could have been avoided by the exercise of greater care does not suffice to make out a charge of dangerous driving. For that reason, to ask whether the driving was careless may be a distraction from the true enquiry as to whether the driving was dangerous.

...

Inattention by a driver to the task at hand, may be dangerous. That is because of the risk that inattention poses to the ability of the driver to safely control the vehicle, including by responding to an unexpected change in traffic conditions. Inattention may prevent the driver from steering a true course or braking to avoid a collision, and be dangerous for that reason. However, the level of attention required at any given point is not necessarily constant: it may depend on the terrain, environment and traffic conditions. Indeed, '[i]t may be that in some circumstances where particular attention is required to the road and to other road users, momentary inattention will result in a manner of driving that is dangerous within the meaning of the section.' On the other hand, it could not be suggested that momentary inattention is relevantly dangerous when driving well within the speed limit, along a suburban road, in good conditions and in light traffic. Equally, momentary inattention is not uncommonly associated with driving and may not produce the type of risk necessary to establish dangerous driving.

...

The essential inquiry is whether the accused person drove in a manner that is dangerous. As already observed, negligence is not an element of dangerous driving and dangerous driving and negligence are not strict alternatives or mutually exclusive categories. A finding that a driver was negligent is not necessarily exculpatory of a charge of dangerous driving; a factor that makes driving dangerous may be the same thing that makes it negligent.[9]

1. Consistently with authority, the judge directed the jury that, in order to establish that the applicant's driving was dangerous, the jury must be satisfied to the criminal standard that her driving involved a serious breach of the proper management and control of her vehicle and that this created a real risk to members of the public in the vicinity that they would be killed or seriously injured.
2. As was the situation in Georgiou, the prosecution was not able to point to any of the features that are often associated with dangerous driving, such as excessive speed, the use of a mobile phone or other distraction, or a breach of the Road Safety Road Rules 2017. Rather, the prosecution submitted that the jury should infer that the applicant was not paying attention to her surrounds for an extended period of time, causing her to fail to see the cyclist.
3. The relevant principles that this Court must apply when considering whether the verdict of guilt is supported by the evidence were explained by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen.[10] The applicant must demonstrate that, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of the accused's guilt of the offence charged.[11] In determining this question, the Court must make its own independent assessment of the evidence, giving full weight to the jury's advantage in seeing and hearing the evidence.[12]
4. The case of the prosecution was circumstantial and depended on inferences to be drawn from the proved facts having regard to the criminal standard of proof. In Baden-Clay, under the heading 'Hypothesis consistent with innocence', the High Court said:

The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, Gibbs, Stephen and Mason JJ said:

• When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen.

For an inference to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence' (emphasis added). Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence' (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.[13]

1. As that decision makes plain, a hypothesis must be one founded on the evidence. It is not enough that a theoretical hypothesis can be imagined but there are 'no positive proved facts from which the inference' can be drawn.[14]
2. In our opinion, the theory that the cyclist swerved at the last minute into the line of the truck and either caused the collision or that the cyclist's swerving explained why, to that point, the applicant had not seen the cyclist is purely speculative and does not have a sufficient grounding in the evidence.
3. Mr Batson had not been observed riding erratically on the morning of the collision. He was an experienced cyclist familiar with the route. Earlier, he had been seen riding to the right of the fog line by Mr Forbes. Although Mr Forbes may have considered it risky, Mr Batson as a road user was entitled to be riding on the carriageway. In any event, his relative position on the roadway at the point of impact could not be inferred from the fact that he was seen, at an earlier point in time, riding along the carriageway in a particular position. His GPS data showed that he was riding at a steady pace.
4. The fact that Mr Batson was observed to have earbuds in his ears after the collision supports the possibility that he was listening to something, for example music, the radio or a podcast, but that fact does not make it more probable that he swerved into the line of the truck.
5. There is nothing in the applicant's account to the police that supports the possibility that Mr Batson swerved at the last minute in front of the truck. More generally, the theory does not help to explain why, even if there was an unexpected movement by Mr Batson, the applicant did not see him as she drove along Dimboola Road towards Horsham. We find the submission that Mr Batson may have been way off to the left and obscured by shadow or out of the applicant's line of vision so as to remain unseen even to an attentive driver unpersuasive. It is entirely improbable that, early in the morning, Mr Batson would have chosen to ride his road bike on the gravel. The bitumen to the left of the fog line was not wide, with the evidence suggesting a width of just under one metre.
6. It follows that the evidence did not support a reasonable hypothesis consistent with innocence that the cyclist had caused the collision by veering into the path of the truck. That disposes of the principal argument on charge 1.
7. There remains a more general argument that, on the evidence, the jury could not have been satisfied that an attentive driver of the prime mover should have seen the cyclist having regard to the glare from the sun and the dappled light on the side of the road with shadow thrown from nearby trees. And, in assessing the probability of inattention on the part of the applicant, the jury had to have regard to the presumption of innocence, the good character and antecedents of the applicant and the absence of any of the common integers of dangerous driving such as speed, drugs, alcohol, fatigue, distraction or obvious breach of the Road Safety Road Rules 2017. They were all relevant matters.
8. Ultimately, we are not persuaded that the jury must have had a doubt about whether the applicant's driving was dangerous and caused the death of Mr Batson. Once account is taken of the length of the straight road, the time it afforded to observe what was in front of the truck and the good conditions of road and weather, the only reasonable inference is that the applicant failed to pay proper attention to her surrounds for an appreciable time and distance and by doing so operated the truck in a manner that posed a serious risk to other road users, including Mr Batson. Her failure resulted in the death of Mr Batson.
9. The verdict on charge 1 must stand.

1. As already mentioned, charges 2 and 3 were concerned with not stopping and rendering assistance after the collision.
2. Before dealing with the arguments, it is convenient to set out the offence provisions:

61 Duty of driver etc. of motor vehicle if accident occurs

(1) If owing to the presence of a motor vehicle an accident occurs whereby any person is injured or any property (including any animal) is damaged or destroyed, the driver of the motor vehicle -

(a) must immediately stop the motor vehicle; and

(b) must immediately render such assistance as he or she can;

...

(3) If -

(a) as a result of an accident involving a motor vehicle a person is killed or suffers serious injury; and

(b) the driver of the motor vehicle knows or ought reasonably to have known that the accident had occurred and had resulted in a person being killed or suffering serious injury; and

(c) the driver of the motor vehicle does not comply with the requirements of paragraph (a) or (b) of subsection (1) in relation to the accident -

the driver is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum) or a level 5 fine (1200 penalty units maximum).

1. The applicant submits that that the prosecution, by its own admission, could not prove to the criminal standard that the applicant saw the cyclist before the impact or was actually aware that an accident had occurred. In that circumstance, the prosecution could only establish contraventions of s 61(1)(a) and (b), when read with s 61(3), by proving that she 'ought reasonably to have known that the accident had occurred and had resulted in a person being killed or suffering serious injury'. On that question, the applicant submits that there was simply no evidence or insufficient evidence to establish that fact beyond reasonable doubt. Because, she says, there was no evidence that a reasonable person driving the applicant's truck would have appreciated that there had been contact with a bicycle, there was no basis to conclude that she ought to have known that an accident had occurred. Alternatively, the evidence could not exclude the possibility that a reasonable person would not have perceived the collision having regard to the relative size of the prime mover and the bicycle, the fact that there was no evidence that the truck rode over the bike and the fact that any contact was on the lower left side of the truck's bull bar.
2. The respondent seeks to meet that argument in two ways. First, the respondent submits that a reasonable person would have been paying attention to the road and other road users and would have seen the bike before impact. In relation to this argument, the respondent submits that the judge correctly approached the matter when he came to sentence. Alternatively, the respondent submits that it was open to the jury, using its collective knowledge and experience, to come to the conclusion that a reasonable truck driver would have perceived the collision. In this respect, the respondent contends that the jury could have regard to evidence including as to the visibility and lighting conditions, the dimensions and nature of the applicant's vehicle, the location on the applicant's vehicle where contact was made, the projection of the applicant forward from the point of impact, the speed differential between the two vehicles and the brightness and colour of the cyclist's clothing.

1. In his reasons for sentence, the judge said that he was not satisfied beyond reasonable doubt that the applicant actually saw the cyclist or knew that her truck had collided with the cyclist. His reasons for that conclusion are set out above.[15] In relation to charges 2 and 3, the judge said:

I repeat, however, that you ought to have known. While you were entering a town on a dual carriageway with vehicles coming the other way at any moment, I accept that your eyes were likely ahead and to your right, if anywhere, rather than across the cab to check behind. However, you are experienced and skilled and should have been monitoring better than you did.[16]

1. The applicant's argument must be accepted.
2. There was simply no evidence that could satisfy a jury to the criminal standard that a driver who had not seen the bike before the collision must have felt the force of the collision from the driver's seat or otherwise have observed its aftermath. The informant did not provide such evidence, and the other evidence to which the respondent referred is insufficient to support that conclusion. Whether contact between the truck and another object or thing would or would not be perceptible to a driver of a prime mover of the size of the applicant's truck, pulling two trailers, travelling at speed, and when the driver had not seen the object, is not a matter of ordinary human experience. On the facts of this case, a conclusion one way or the other in lieu of evidence addressing this question would involve no more than speculation.
3. The respondent's answer that a reasonable person would have been paying attention before the collision and would therefore have been in a position to see the cyclist proceeds from a misunderstanding of the offence provision. The predicate for the operation of s 61(3) is that there has been an accident. It is erroneous reasoning to ascribe attributes to the reasonable person that would have avoided the accident in the first place. Rather, the question is whether, an accident having occurred, a reasonable person in the position of the driver would have appreciated that fact. Here, that depends entirely on what the reasonable driver would have experienced as a result of the collision and what the driver would have made of that experience. And, as already explained, there was no evidence on which the jury could act in relation to the first aspect of that inquiry.
4. It follows that, on the hypothesis, which could not reasonably be excluded on the evidence, that the applicant did not see the cyclist and remained oblivious of the collision, there was no basis to conclude that she ought reasonably to have known that the accident had occurred and had resulted in the death or serious injury of a person.
5. The conviction on charges 2 and 3 must therefore be set aside and acquittals entered on those charges.

1. Although the attack on charge 1 has failed, we cannot be satisfied that the sentence on charge 1 was not influenced to at least some degree by the sentences on charges 2 and 3. Although the applicant stood to be sentenced separately on each charge, some of the factors, such as inattention and its relationship to culpability and the objective gravity of the offending, were common to each of the charges. Indeed, in the circumstances, we are persuaded that, because the applicant was sentenced on three charges arising out of the same incident and two of the charges must be set aide, there is an error in the sentence that affects the sentence on charge 1. It follows that this Court should, unless it were satisfied that no lesser sentence should be imposed on charge 1, re-sentence the applicant on that charge.
2. As noted at the start of these reasons, the offence of dangerous driving causing death is subject to s 5(2H) of the Sentencing Act. In sentencing an offender for a category 2 offence, a court must make an order under div 2 of pt 3 (other than a sentence of imprisonment imposed in addition to making a CCO in accordance with s 44) unless, among other exceptions, there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under div 2 of pt 3 (that is not a sentence of imprisonment imposed in addition to making a CCO in accordance with s 44).[17] Div 2 of pt 3 provides for custodial orders.
3. Relevantly, in determining whether there are substantial and compelling circumstances under s 5(2H)(e), the Court:

(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1); and

(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and

(c) must not have regard to -

(i) the offender's previous good character (other than an absence of previous convictions or findings of guilt); or

(ii) an early guilty plea; or

(iii) prospects of rehabilitation; or

(iv) parity with other sentences.[18]

1. It follows that the re-sentencing exercise on charge 1 requires this Court to assess for itself whether there are substantial and compelling circumstances that are exceptional and rare and which justify not imposing a term of imprisonment that is not a combination sentence.
2. Given that it is this Court's role to re-sentence the applicant afresh, there is no need to explore in any detail the reasons for sentence imposed by the judge.
3. The applicant relies on the following factors to establish the relevant circumstances, which also serve to moderate any sentence. The applicant had an impressive driving record as a professional truck driver, working for the same company for eight years without complaint or any infringement notice being imposed. On the plea, the applicant relied on references from three colleagues who attested to the applicant's professionalism, enthusiasm, hard work and honesty. The director and operations manager of the company each attested to the applicant's professionalism as a truck driver, respectively describing the applicant's diary records as impeccable and stating that she takes pride in maintaining her truck for the purpose of both appearance and safety.
4. The applicant is from South Australia and has a close relationship with her mother who lives in Adelaide. The fact that the applicant is incarcerated in Victoria is an additional burden.
5. From a personal perspective, the applicant is going through gender transition with a number of consequences for any term of imprisonment. First, she says she is unable to have further surgery while in prison. Second, she is incarcerated in a protection unit and suffers multiple mental health problems including a major depressive disorder and a mixed personality disorder. She is prescribed antidepressant and antipsychotic medication in an attempt to prevent further decline in her mental health.
6. Before the judge, the applicant relied on a very detailed and comprehensive report from Dr Michael Davis, a consultant forensic and clinical psychologist at Forensicare. Dr Davis confirmed a diagnosis of gender dysphoria and major depressive disorder of moderate severity and with anxious distress. Dr Davis considered these conditions to have been exacerbated by the applicant's remand.
7. Dr Davis also opined that the applicant had a severe level of impairment based on multiple long-term stresses and a mixed personality disorder with avoidant, obsessive-compulsive, dependent, borderline and schizotypal features. Dr Davis assessed the risk of further offending to be low. Dr Davis considered that the applicant would struggle considerably more with prison life than the average inmate and he noted a deterioration in the applicant's mental state as a result of imprisonment.
8. The applicant says that her moral culpability was low given there was no evidence that she was speeding, drug or alcohol affected, driving erratically or fatigued. She takes issue with the judge's finding that her conduct was not at the low end of seriousness.
9. In summary, the applicant submits that her personal circumstances are exceptional and rare given her transgender identity, lack of prior criminality, good prospects for rehabilitation, a significant delay between the offending and the trial, her declining mental health and her low moral culpability. In providing a point of comparison, the applicant refers to Parker v The King,[19] a case in which an offender was sentenced to a CCO on a plea of guilty to dangerous driving.
10. In considering whether the statutory threshold has been met so as to justify but not require a non-custodial sentence, the Sentencing Act alters the ability to prioritise various aspects of the sentencing process.[20] A sentencing judge must regard general deterrence and denunciation of the offender's conduct as more important than other sentencing purposes in s 5(1) of the Act (which include just punishment, specific deterrence, rehabilitation and the protection of the community from the offender),[21] and less weight must be given to the offender's personal circumstances than to the nature and gravity of the offence.[22] A person's previous good character (other than an absence of convictions) and prospects of rehabilitation must be put aside.[23]
11. It is plain both from the nature of the offence, even without the structure of s 5(2H) and the strong terms of ss 5(2H)(e) and 5(2HC)(a), that general deterrence must be a significant matter in sentence. There is a sound reason for that approach: driving vehicles is ubiquitous but the dangers it presents can be grave and the consequences devastating. The present case tragically shows the dreadful consequences of dangerous driving.
12. As the judge recorded, Judy-Ann Batson, Mr Batson's partner, expressed her grief at losing her soulmate. She stated that every milestone or happy moment since his death, whether it be holidays, birthdays, or special events, has been tainted by pain. She is still traumatised by the absence of Mr Batson and feels disturbed by the fact that her family is now and always will be incomplete. She has trouble sleeping and suffers from bouts of nausea and lack of appetite. She gets anxious and concerned when she encounters trucks on the road, which triggers horrific imagery in her head and causes her to fear the worst. She was unable to work for just over two years, as she prioritised taking care of her two daughters in the aftermath of this tragedy. She has declined to attend various social events, such as engagement parties, weddings and other celebrations, because it is too painful to attend without Mr Batson.[24]
13. Mr Batson's parents and other family members have been devastated by losing him.
14. Ultimately, we are not persuaded that the circumstances of the applicant, once approached within the permissible confines of s 5(2HC), are substantial and compelling or exceptional and rare.
15. Like the judge, we would not regard the offending as a low-level breach: it involved a relatively sustained period of inattention while driving a large commercial vehicle. The circumstances do, however, call for a degree of leniency. Further, on re-sentence this Court was provided with some updated materials, which reinforce the burden of incarceration on the applicant.
16. In the result, we would re-sentence the applicant to a term of imprisonment of 2 years on charge 1. We would set a non-parole period of 14 months.

Disqualification of the applicant from obtaining driver licence or permit

1. The applicant also had her driver licence cancelled and was disqualified from obtaining a further licence or permit for four years. This was the mandatory minimum period of disqualification consequent upon her conviction on charges 2 and 3.[25] As those convictions will be set aside, it is necessary to consider the appropriate period of disqualification. Section 89(2)(a) of the Sentencing Act imposes a mandatory minimum of 18 months' disqualification for a dangerous driving causing death conviction.
2. As already observed, the applicant has a very good driving record and no criminal history. Although the circumstances of the offence of dangerous driving causing death were such as to preclude a finding that it was a low level example of the offence, there are a number of mitigating features to which we have referred. It is also relevant that the applicant was employed as a truck driver. We would impose a period of 2 years' disqualification but would order that the period commence on the date of the sentence imposed in the County Court.

[1] Her date of birth is 5 December 1987.

[2] Crimes Act 1958, s 319(1).

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

[4] Ibid s 61(1)(b), (3).

[5] Sentencing Act 1991, s 3(1) (definition of 'category 2 offence').

[6] Ibid s 5(2H)(e).

[7] Criminal Procedure Act 2009, s 276(1)(a).

[8] DPP v Paulson [2023] VCC 703, [74], [76] (Judge Moglia) ('Reasons').

[9] (2022) 301 A Crim R 229, 233-5 [13]-[19], [21], [24] (Priest, Kyrou and Niall JJA); [2022] VSCA 172 (citations omitted).

[10] [1994] HCA 63; (1994) 181 CLR 487, 492-3; [1994] HCA 63 ('M'). See also Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7 [113] (Heydon J); [2007] HCA 30; R v Baden-Clay (2016) 258 CLR 308, 329-30 [65]-[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35 ('Baden-Clay'); Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123, 145 [38]-[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12; Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651, 656-61 [5]-[17] (Gageler, Keane, Gordon, Steward and Gleeson JJ); [2022] HCA 25.

[11] M [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63.

[13] Baden-Clay (2016) 258 CLR 308, 323-4 [46]-[47] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35 (citations omitted).

[14] Ibid 326 [55], quoting Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, 169-70 (Lord Wright).

[15] See paragraph 39 above.

[17] Sentencing Act, s 5(2H)(e).

[18] Sentencing Act, s 5(2HC).

[19] [2022] VSCA 207.

[20] DPP v Lombardo (2022) 302 A Crim R 329, 343-4 [75]-[79] (McLeish, Niall and Kennedy JJA); [2022] VSCA 204.

[21] Sentencing Act, s 5(2HC)(a).

[22] Ibid s 5(2HC)(b).

[23] Ibid s 5(2HC)(c)(i), (iii).

[25] Section 61(6) of the Road Safety Act imposes a mandatory minimum disqualification period of four years for a first offence under s 61.