//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2006] VSCA 220
Court of Appeal (Vic)
2006-10-19
WARREN, C.J., NETTLE and REDLICH, JJ.A.
Original judgment source is linked above.
CRIMINAL LAW - Sentencing - Two counts of culpable driving - One count of negligently causing serious injury - Whether judge failed to treat complicity of victims as a circumstance of mitigation or as the absence of a circumstance of aggravation - Whether nine years' imprisonment with six and a half years non-parole period manifestly excessive - Appeal dismissed.
1 On 2 September 2005 the appellant pleaded guilty before a judge of the County Court at Melbourne to two counts of culpable driving (Counts 1 and 2) and one count of causing serious injury by negligently driving a motor vehicle (Count 3). Following a plea in mitigation of penalty, the judge sentenced the appellant on each of Counts 1 and 2 to a term of imprisonment of six years and on Count 3 to a term of imprisonment of two years. His Honour directed that two years of the sentence of imprisonment imposed on Count 2 and one year of the sentence imposed on Count 3 be served cumulatively on the sentence imposed on Count 1 and upon each other, thereby making for a total effective sentence of nine years' imprisonment, and he ordered that the appellant serve not less than six years' imprisonment before being eligible for parole. The judge further ordered that all licenses held by the appellant under the be cancelled and that he be disqualified from obtaining any such licence for a period of six years and six months.
2 The appellant now appeals, with leave, against sentence on grounds that the judge erred in failing to treat the complicity of the victims in the offences as a mitigatory factor and that the individual sentences, the total effective sentence and the non-parole period are all manifestly excessive.
The facts
3 At the time of the offences the appellant was just short of 19 years' of age. He spent the afternoon of 23 December 2004 at home during which time he met up with his friend, Adrian Kinna. Together they changed the rear wheels and tyres of the appellant's 1989 Holden Commodore sedan, from the HSV wheels and low profile tyres with which the vehicle was ordinarily fitted to a set of standard Commodore tyres and rims. The appellant made the change because he planned carry out "burn-outs" and go "drifting" later that day. A "burn-out" consists of accelerating a car so hard as to make the driving wheels of the car spin without gaining traction and thus to deposit tyre rubber on the road surface in the form of black marks. "Drifting" consists of driving a car through a corner or bend so fast and with such a degree of steering lock as to cause the rear wheels of the vehicle to slide sideways and thus the rear of the vehicle to drift out around the corner or bend.
4 The applicant and Mr Kinna spent the remainder of the afternoon driving around together. That evening they went to the Notting Hill Hotel at about 10.00 pm and there met other friends including the victims Ashlea Fox and Xavier Stephens. The group then stayed at the hotel drinking until closing time, which was around 12.45 am on 24 December 2004; the appellant drinking full strength beer and UDL cans.
5 After leaving the hotel, the group returned to Xavier Stephens' house in the Notting Hill area where the appellant's car was parked. The appellant then drove the group to Wade Olesinskis' house which was in the Wheelers Hill area. As he drove, he drifted the car a number of times and exceeded the speed limit. One of the passengers, Jared Riley, later stated that he was so scared by the manner of the appellant's driving that he feared for his life and, after arriving at Mr Olesinski's house, Mr Riley refused to get back into the car. Another member of the group, Brittany Kandetski, was also sufficiently concerned by the manner of the appellant's driving that she too refused to get back into the car.
6 The appellant thereafter drove the three remaining members of the group from Mr Olesinski's house to the McDonald's restaurant in Mulgrave. His driving continued to deteriorate. He accelerated away from Mr Oleskinski's house so hard that he made the tyres screech. Thereafter, he drove very fast towards McDonald's, travelling at 90 kph in a 50 kph zones, and drifting around corners at well over the speed limit. As he drove along Springvale Road, he increased the speed to around 110 kph in an 80 kph zone and, closer still to the McDonald's restaurant, he cut a corner by driving through a break in the median strip and travelling down the wrong side of Springvale Road, causing on-coming vehicles to flash their lights and take evasive action in order to avoid a collision. One of the passengers, Ms Stewart, said that she warned the appellant about his driving but his response was that he thought it was "funny".
7 After buying food at the McDonald's restaurant, the appellant and the group returned to the appellant's car in the car park. Before Ms Stewart had a chance to close the door behind her or to do up her seat belt, the appellant floored the accelerator and put the vehicle into a sideways skid causing Ms Stewart's door to swing open and Ms Stewart almost to fall out. She told the appellant to slow down and to drop her off because he was driving like an idiot. Then the appellant drove the vehicle on the wrong side of the road causing Xavier Stephens to tell the appellant to "chill out" and to warn him about his driving.
8 Once back at Mr Olesinsiki's house, Ms Stewart got out of the car and refused to get back in. But the other two members of the group remained with the appellant and the appellant drove off with them on board towards a 24 hour bottle shop in Chapel Street, Windsor. Along the way they picked up Adrian Kinna in Wellington Road, Mulgrave, who told friends who took him to the collection point that he was going "drifting" with the appellant.
9 After buying alcohol at the bottle shop in Chapel Street, the appellant began the return journey down the Princess Highway, still driving erratically. Witnesses observed his vehicle on the highway at a point near the Chadstone Shopping Centre trying to drag-race with a taxi, accelerating heavily from traffic lights and veering from one lane to the other and causing the taxi to swerve to get out of the way. Other witnesses, who were driving along the highway in a Volkswagen Golf very shortly before the time before the collision, described the appellant as drag-racing them at each set of traffic lights, speeding and generally driving in an erratic manner.
10 Further witnesses observed the appellant's car travelling in front of them swerving suddenly over the width of three lanes of the highway and then back again. One of them saw the appellant's vehicle at the intersection of the Princess Highway and Huntingdale Road swerving and going sideways drifting, as if it were out of control. Two witnesses then saw the appellant's car turn left at high speed into the slip lane into Wellington Road, and at that point lose control of the vehicle.
11 As the vehicle advanced through the corner to the left hand lane of Wellington Road the back of the vehicle broke out and started to rotate in an anti-clockwise direction, laying tyre rubber marks on the road. The appellant attempted to regain control by steering to the right into the drift, but the front near side wheel struck the gutter on the near side of Wellington Road causing the vehicle to begin spinning clockwise in the opposite direction of rotation. As the back of the vehicle swung around clockwise it mounted the gutter and the vehicle began skidding sideways, the back half of the car on the nature strip and the front half still on the left hand lane of the Wellington Road carriageway, and from that point it continued skidding, completely out of control, half still on the nature strip and half on the road, until it slammed into a wooden power pole on the nature strip.
12 The near side rear door area was the first part of the car to strike the pole and the car then spun around the pole, approximately 300 degrees in an anti-clockwise direction of rotation, until finally it came to rest on the nature strep of Wellington Road. Ashlea Fox and Adrian Kinna, who had been travelling in the rear seat of the vehicle, were killed instantly upon the impact of the car with the power pole. Xavier Stephens, who was travelling in the front passenger seat, suffered life threatening injuries. The appellant was effectively unscathed.
13 Numerous other vehicles stopped to assist. The appellant was observed by several witnesses to be hysterical. One witness saw him running around yelling out: "I'm fucked, I've been drinking, I'm on parole, I'm fucked". He kept screaming out: "Help", and he ran over to Xavier Stephens, yelling at him: "Wake up, wake up." Other witnesses saw the appellant punching the bonnet of the car and screaming: "Help me get him out". Later the appellant was observed trying to run into the path of oncoming vehicles and trying to harm himself with pieces of metal from his damaged car.
14 When police arrived at the scene, the appellant told them that he had: "Just finished a billy, I smoked some dope about 15 minutes ago. Now I've smashed the car and killed them". He made admissions of drinking alcohol and having "some billies, some cones". But he claimed that he had been travelling at about 50 kph and had to speed up to avoid another car. He then tried to run from the police into the path of oncoming cars. But he was restrained and arrested and conveyed to the Monash Medical Centre for observation. Later, he was interviewed at the hospital and a blood alcohol sample was taken. That indicated that his blood alcohol concentration at the time of test was 0.067% and, according to expert opinion, that meant that he would have had a blood alcohol concentration of between 0.059% and 0.071% at the time of the collision.
15 Subsequent post-accident expert analysis revealed that the appellant's car was travelling at approximately 108 kph at the time of first losing control, in a 70 kph zone. His vehicle was also found to be un-roadworthy due to insufficient depth of tread on the off-side rear tyre, but there were no mechanical faults which contributed to the collision.
The appellant's personal circumstances
16 The sentencing judge had before him reports of Dr David I. Smith of 25 May 2005 and 13 August 2005, in which the appellant's personal circumstances were fully set out, and a report of Mr Bob Ives, psychologist, dated 10 July 2004 in which further details of the appellant's background were set out. The judge noted that the appellant had been brought up in a dysfunctional household to which his own behaviour had contributed, and had since very early childhood suffered from learning difficulties and a cluster of psychiatric disorders which had resulted in very aggressive uncontrollable, disorganised, impulsive, egocentric behaviour, characterised by hyperactivity, inadequate attention and very poor interpersonal relationships. He was, however, a person of average intelligence who had been able to pass Year 11 in 2002 in all subjects except numeracy and maths. He had had problems with the family environment, and at times behaved in an aggressive and inappropriate way, and he had ingested drugs and alcohol from a relatively early age. But after leaving school at the end of 2002 he had worked for short periods of time at places such as Hungry Jacks and Red Rooster and had taken odd jobs and worked in gardening and maintenance activities, and in June 2004 he had been successful in obtaining a motor mechanics apprenticeship, although he had not begun the apprenticeship at the time of the offences.
17 The judge characterised the psychiatric and psychological evidence as portraying the appellant as an immature young man having considerable difficulty coming to grips with what life had to offer, and as a person failing to accept the responsibilities and consequences for actions taken. The judge also accepted, however, that the appellant presented as a vulnerable person with a high risk of suffering reactive depression, and that gaol was likely to be more onerous for him than for others (which the judge regarded as a factor to be taken into account in mitigation of penalty).
Ground 1: Complicity
18 Under cover of Ground 1 it is contended that the judge erred in the application of the sentencing principles considered in R. v. Tran,[1] by holding that little weight was to be attributed to the victims' "complicity" in the matter, and in confining consideration of the evidence of complicity to evidence of encouragement within a short period of time prior to the collision.
19 Counsel for the appellant submitted that, "assuming that Tran was correctly decided", the judge had erred in the application of Tran in three respects:
• First, because, properly understood, the evidence led ineluctably to the conclusion that the victims' "complicity" was of more than "little weight".
• Secondly, because the judge's reasoning unduly confined the basis of "complicity" to "encouragement [that] occurred within a short period of time prior to this collision".
• Thirdly, because it was not permissible for the judge to discount the effect of "complicity" as he did unless satisfied beyond reasonable doubt of the absence of complicity and because, on the evidence before the judge, it was not open to be so satisfied .
20 The reservation in counsel's submission as to whether Tran was correctly decided calls attention to the contrast between the reasoning in Tran and the reasoning in R. v. Howarth.[2] In Howarth a court comprised of Brooking, Charles and Batt, JJ.A. held that the degree of blameworthiness of the victim of an offence of culpable driving is not a factor relevant to the seriousness of the offence. Brooking, J.A., who delivered the principal judgment, observed that it was necessary to draw a distinction between conduct of a victim which bore upon how bad the offender's driving was or as possibly serving to mitigate in some small way the conduct of the offender in choosing to drive at all (his Honour gave as an example a passenger importuning a reluctant motorist to drive while intoxicated or to drive a vehicle known to be un-roadworthy), and the character of a victim - his recklessness as to his own safety - which his Honour said should not be treated as a mitigatory consideration. On that basis the court concluded that the sentencing judge had been right to rule that the victim's drunkenness and willingness to be a passenger in the offender's car did not lessen the offender's criminality.
21 Consequently, if this matter were to be decided in accordance with the reasoning in Howarth, the complicity of the victims, in encouraging the appellant to drive fast and to drift the car, could be seen as a minor mitigatory consideration, whereas their recklessness in subjecting themselves to the dangers of travelling with the appellant would not be treated as a mitigatory consideration.
22 In Tran, however, a court comprised of Callaway, Buchanan and Vincent, JJ.A. refused to follow Howarth. Callaway, J.A. who delivered the principal judgement expressly rejected Brooking, J.A.'s analysis and said that the true view was that the complicity of a victim (who, in that case, had urged the offender to speed to evade capture by police) was not capable of being a circumstance of mitigation - rather it was "the absence of a circumstance of aggravation" - and the absence of complicity or "innocence" of other victims could legitimately be taken into account in aggravation of the offences committed against them. Callaway, J.A. then added, however, that:
"...Not too much attention is to be paid to labels. When it is said that a victim is 'innocent', that means only that he or she is not complicit. It is a matter for the judge, within the limits of a sound discretion, to decide what weight (if any) to attribute to the victim's complicity...Similarly, not too much should be read into the labelling of innocence as a circumstance of aggravation. Conceptually it is so, but its significance depends on the facts of the particular case. This judgment is not intended to introduce a new straightjacket, but rather to free judges from an inflexible prohibition against their considering, in any case at all, the complicity or otherwise of the victim."[3]
23 Accordingly, if the matter is to be decided in accordance with the reasoning in Tran, the "complicity" of the victims in encouraging the appellant to drive fast and to drift the car is to be treated as "the absence of a circumstance of aggravation". The victims' recklessness in subjecting themselves to the dangers of travelling with the appellant, though not specifically addressed in Tran, may be viewed as "complicity" and thus also as "the absence of a circumstance of aggravation". But it is up to the judge "within the limits of a sound discretion, to decide what weight (if any) to attribute to the ... complicity".
24 Counsel for the appellant frankly submitted that he found the idea of "the absence of a circumstance of aggravation" a difficult conception to apply; for, as he put it, it seems to suggest that the burden was on the appellant to establish complicity in order to avoid the conclusion that his offending was aggravated by a lack of complicity. But he submitted that, consistently with the principle that the existence of an aggravating circumstance must be proved against an offender beyond reasonable doubt, it should be concluded that the burden is upon the Crown to negative complicity beyond reasonable doubt, and in this case the Crown had not done so.
25 In our view that is not so. Whether complicity is properly to be described as something which is capable of being a circumstance of mitigation (as it was in Howarth), or as the absence of a circumstance of aggravation (as it was in Tran), we think that the effect for present purposes is the same. We reject the suggestion that it follows from Tran that the Crown must negative complicity beyond reasonable doubt. With respect, we see nothing express or implicit in Tran to support that conclusion. . Tran is consistent with the view, which we consider correct, that it is for the offender to establish complicity or recklessness by the victim.
26 Unless complicity is proved, a sentencing judge is to proceed on the basis that the victim was not complicit and is to sentence the offender accordingly. If an offender seeks a reduction in penalty on the basis of a victim's complicity, it is incumbent on the offender to establish the victim's complicity on the balance of probabilities just as it is incumbent upon an offender to establish any other mitigatory circumstance.[4] What is more, as Callaway, J.A. said in Tran, it is then a matter for the sentencing judge, within the limits of a sound discretion, to decide what weight (if any) to attribute to the victim's complicity.
27 In this case the judge followed Tran to the letter. As his Honour put it:
"...In the case of R. v. Tran, Justice of Appeal Callaway stated as follows:
'The correct view is that complicity of a victim constitutes the absence of a circumstance of aggravation, albeit a circumstance of aggravation that is commonly present...It is a matter for the judge within the limits of a sound discretion to decide what weight, if any, to attribute to the victim's complicity.'
In my view, at the end of the day it was you who was driving and responsible for your actions. Your driving was deplorable for a significant period of time on this night and not just on those occasions where evidence would suggest there was some encouragement from your victims. Whilst such encouragement occurred within a short period of time prior to this collision, in the end...little weight in my view should be attributed to the victim's complicity in the matter."
With respect, we see no error in that.
28 We reject the contention that the victims' "complicity" was of more than "little weight". Even assuming in favour of the appellant that the victims positively encouraged the appellant to take the corner into Wellington Road at the speed which he did and to "drift" the car through the corner as he attempted to do (and there was no direct evidence of that), the judge was right to say that it was the appellant who was driving and must bear principal responsibility for his actions. As driver of the vehicle, the appellant was responsible for his passengers' safety and therefore, as a matter of responsibility, he was bound to repudiate any suggestion by his passengers that he drive the vehicle dangerously or otherwise unlawfully.
29 It may be that the conduct of the victims bore upon how bad the appellant's driving was. It may be that it served to mitigate in some small way the appellant's conduct in driving as he did (or at least to cause to be absent to some extent a circumstance of aggravation constituted of innocence which otherwise would ordinarily be present). The judge, however, was right and certainly within the limits of sound discretionary judgement in holding that little if any weight should be attributed to the victims' complicity.
30 We do not accept that the judge's reasoning unduly confined the basis of "complicity" to "encouragement [that] occurred within a short period of time prior to this collision".
31 Counsel for the appellant emphasised the facts that the victims had been with the appellant drinking at the hotel earlier in the evening, and that the victims, Ms Fox and Mr Stephens, had chosen to remain in the car knowing the way in which the appellant was prone to drive when others of the group had refused to get back in, and that the victim Mr Kinna had helped the appellant earlier in the day to change the tyres with a view to "drifting" later that day, and that Mr Kinna told friends who delivered him to the collection point that he was going "drifting" with the appellant. In counsel's submission, all of those matters were factors which bore upon the victims' complicity and should have been accorded significant weight in mitigation of penalty.
32 We do not agree. If the matter is approached in accordance with the analysis in Howarth, each of those matters is of a kind which Brooking, J.A. might have characterised as bearing on the character of the victims - their recklessness as to their own safety - which his Honour said should not be treated as a mitigatory consideration. If the matter is approached in accordance with the analysis in Tran, none of those matters rises any higher than the absence of circumstances of aggravation, and thus is to be given such weight as the sentencing judge thinks fit within the limits of a sound discretion. We see no error in the sentencing judge's approach to this question. Whichever analysis is adopted, none of these matters required His Honour to assign them greater weight than he did.
Manifest excessiveness and totality
33 Under cover of Ground 2 of appeal counsel for the appellant contended that the sentences on Counts 1 and 2, the extent of cumulation, the resulting total effective sentence and the non-parole period were manifestly excessive and in breach of totality. In support of that contention, counsel emphasised the appellant's youth and mental state, his personal circumstances, his early pleas of guilty and genuine remorse, his prospects of rehabilitation and the onerousness of prison for him, given his youth and history of psychiatric disturbance, vulnerability and high risk of suffering reactive depression.
34 Counsel for the appellant also referred in the course of his submissions to Tran and to the total effective sentence of 10 years' gaol with a non-parole period of seven years, and stressed that in that case only one of the victims was complicit and the fact that the offender was drug affected and committed the offences in the course of a police chase. The burden of his submission was that, by comparison, the appellant's culpability was considerably less than Tran's and so therefore should be his sentence.
35 The difficulty with all that, however, as counsel frankly and fairly recognised, is that the judge paid careful consideration to each of the matters mentioned by counsel and in the course of his very detailed sentencing remarks explained why he gave to each of those considerations the weight that he did. In the end, therefore, the highest the argument can be put is that a total effective sentence of nine years with a non-parole period of six years is a very long time for a young man of only 19 years of age, especially a young man of that age who is as immature and psychologically afflicted as the appellant.
36 Of course nine years is a long time in anyone's life and a very long time in the life of a young man of only 19 years of age. In many respects it would be far better for all concerned if the appellant could spend that nine years establishing a career and getting on with his life. No one likes to send an offender to gaol in such circumstances. But it remains that he has killed two people and seriously injured another and the community expects and the law requires that he be punished to an extent which reflects the court's denunciation of his conduct and provides the sort of general and specific deterrence that is so plainly warranted with offending of this kind. Comparisons with other cases are of limited utility. Sentencing is a process of intuitive synthesis and each case is unique. Whatever the reasons in Tran, a total effective sentence of nine years for two counts of culpable driving and one count of negligently causing serious injury in the circumstances of this case is certainly not beyond the range, even for someone as young and troubled as the appellant.[5] In our view the non-parole period of six years represents an informed and appropriate response to the appellant's youth and significant prospects of rehabilitation.
Conclusion
37 The appeal will be dismissed.
[1] [2002] VSCA 52; (2002) 4 V.R. 457 esp. at 463 [21]-[37].
[2] [2000] VSCA 94; (2000) 1 V.R. 593.
[3] [2002] VSCA 52; (2002) 4 V.R. 457 at [34].
[4] R. v. Storey [1998] 1 V.R. 359 at 369; Cheung v. The Queen [2001] HCA 67; (2001) 209 C.L.R. 1 at 13[14]; Weininger v. R. [2003] HCA 14; (2003) 212 C.L.R. 629 at 635 [18].
[5] Cf. DPP v. Chambers [2006] VSCA 189.
R
Cowden [2006] VSCA 220