R v Hopper; Ex parte Attorney-General

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - GENERALLY - where the respondent pleaded guilty to dangerous driving causing death and grievous bodily harm - where the respondent was sentenced to two and a half years imprisonment wholly suspended for three years, and was disqualified from holding a driver's licence for three years - where the trial judge considered that the circumstances of the offence and the respondent's personal circumstances and youthfulness favoured a non-custodial sentence - where the Attorney-General argued a wholly suspended period of imprisonment was plainly unreasonable and unjust - consideration of the relevance of personal and general deterrence, the gravity of the consequences of the offence, and a subsequent traffic offence - whether the sentence was manifestly inadequate

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS - where five months have passed since the respondent was sentenced to a wholly suspended term of imprisonment - where the respondent is psychologically vulnerable and has made substantial efforts toward rehabilitation - whether, if the sentence was manifestly inadequate, the Court should exercise its residual discretion not to return the respondent to custody

Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 9(3)(b), s 9(4)

Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372; [2014] HCA 2, cited

Director of Public Prosecutions (Cth) v Gregory (2011) 34 VR 1; [2011] VSCA 145, cited

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, applied

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited

Lahey v Sanderson [1959] Tas SR 17; [1959] TASStRp 10, cited

Munda v Western Australia (2013) 87 ALJR 1035; [2013] HCA 38, considered

R v Damrow [2009] QCA 245, considered

R v Dowel; Ex parte Attorney-General (Qld) [2013] QCA 8, cited

R v Gruenert; ex parte A-G (Qld) [2005] QCA 154, considered

R v Hart [2008] QCA 199, considered

R v Horne [2005] QCA 218, cited

R v Lovi [2012] QCA 24, cited

R v Major; Ex parte Attorney-General [2012] 1 Qd R 465; [2011] QCA 210, cited

R v Mules [2007] QCA 47, cited

R v Murphy [2009] QCA 93, considered

R v Vance; ex parte A-G (Qld) [2007] QCA 269, considered

A W Moynihan QC, with J T Aylward, for the appellant

Director of Public Prosecutions (Queensland) for the appellant

[1] FRASER JA: The respondent pleaded guilty on 18 November 2013 to dangerous driving causing the death of Cheng-Chuan Yang and causing grievous bodily harm to Kuan-Jung Wu. She was sentenced to imprisonment for two and a half years, with the imprisonment immediately suspended for three years. It was also ordered that the respondent be disqualified from holding or obtaining a driver's licence for three years. The Attorney-General contends that the sentence is manifestly inadequate.

[2] The respondent committed the offence on 7 July 2012. The circumstances were set out in an agreed schedule of facts. Between about 9.30 and 10.00 pm, 25 year old Mr Yang and 30 year old Ms Wu were walking from the train station at Elimbah along Beerburrum Road to a farm where Mr Yang was working in order to pick up his car. Beerburrum Road at that point is a straight flat road with a single lane in either direction. The speed limit was 80 kilometres per hour and there were no street lights. It was dark and overcast. There was no defined footpath. Mr Yang and Ms Wu were walking on the grassed verge close to the bitumen edge of the road. The respondent was driving in the same direction as Mr Yang and Ms Wu were walking. Her car veered off the bitumen so that the left tyres of the car were on the grassed area. Upon a subsequent examination police observed that marks made by the tyres in the grassed verge continued from the edge of the bitumen through a right hand bend in a consistent arc for about 25 metres before returning to the bitumen. The distance from the white fog line on the bitumen marking the lane edge to the tyre marks in the grass was about one metre. The car hit Mr Yang and Ms Wu, causing them to be catapulted for some 20 to 30 metres. The respondent realised she had hit something. After a short distance she turned her car around and stopped on the opposite side of the road with the car's hazard lights on. The respondent phoned Emergency Services from her car. While crying, she told operators that she had hit two people, who were not moving. Following the direction of an operator, the respondent tried to roll Mr Yang on to his side but was unable to do so because of his weight. The occupants of a passing car stopped and the respondent ran towards them. She was upset, crying and talking on the phone to an emergency operator, saying that she had killed Mr Yang and Ms Wu. She told the operator that she had been looking down at her map to see where she was going.

[3] The respondent participated in a recorded police interview at the scene. She was visibly distressed. She admitted that she was the driver and the only person in the car. She said that she was driving at about 100 kilometres per hour. She was travelling towards Caboolture and was looking at a map on a mobile phone because she was not familiar with the road. She did not know whether she had left the road and travelled onto the grass. She did not see Mr Yang or Ms Wu at all. She had hit them by the time she looked back up from looking at her mobile phone. Police investigations subsequently suggested that the respondent had overstated her speed. She was sentenced on the basis that she was driving within or near the 80 kilometres per hour speed limit.

[4] Mr Yang died at the scene of the accident. Ms Wu was transported to hospital on life support. She sustained many serious injuries, including fractures and lacerations to organs. She underwent a number of operations. She was kept in intensive care until she was transferred to the Neurosurgical Ward on 22 July 2012 and into the Orthopaedic Unit the following day. A few weeks later she was transferred to the Geriatric Aged Rehabilitation Unit for rehabilitation before she was discharged home on 11 August 2012. A year after the accident she was still undergoing physiotherapy and occupational therapy for her injuries. The sentencing judge observed that in light of her injuries it would be remarkable if she were able to survive without at least some significant permanent impairment to her health.

[5] The respondent was 17 years old when she committed the offence. She held a provisional driver's licence. She was 19 years old when she was sentenced. She had not previously been convicted of any offence. Her limited traffic history before this offence included an occasion when she failed to display the required red P plates on the car she was driving and an occasion when the respondent failed to report a minor collision. In relation to the second of those matters, the prosecutor told the sentencing judge that the respondent failed to stop and provide her details when she backed into a car at a service station. Police found her by the use of CCTV at the service station and she was issued with an infringement notice about two months after the incident. The respondent's version, recited in a psychologist's report, was that after returning to her home after the accident at the service station she told her parents about it. They told her to report the accident. After a couple of days she went to the local police station to do so but she found that the accident had already been reported by the driver of the other vehicle. She was subsequently issued with an infringement notice for leaving the scene of the accident.

[6] In mid-December 2012, five months after the respondent had committed the offence relevant in this appeal, a police officer saw the respondent using a mobile phone whilst she was driving a car in Brisbane. She was convicted of that traffic offence in January 2013. Three demerit points were imposed and she was fined $330. The prosecutor told the sentencing judge that the respondent was driving in the city just after 2.00 pm when she was seen holding a mobile phone in front of her face. When police approached the car the phone was on the respondent's lap with an application open at a map of Brisbane city. The respondent told the police officer that she was using the map to locate a friend she was to pick up. The respondent asked the officer whether the ticket she was given would affect her court case which, she explained, involved her hitting and killing someone walking along the road when she was using a map on a phone. The respondent's version recited in the psychologist's report was that she picked up the phone to check the route on the map application at a time when the traffic was "crawling".

[7] The psychologist's report referred to the respondent as an above average student with no behavioural problems. Her grades dropped towards the end of Year 10 when she fell into depression and she ceased attending school halfway through Year 11 when she was unable to cope. After her mental health stabilised she commenced working and, after she made an agreement with her parents that they would pay her tuition fees in return for her working on the family farm, she recommenced Year 11. The report referred to the diagnosis of the respondent in 2010 as suffering from depression and to her reports that she commenced self-harming and overdosed on "oxycontin and sleeping tablets". At the sentence hearing the respondent's counsel submitted (and the prosecution did not contest the submission) that at about the age of 16 when the respondent was in Grade 11 her depression had become so bad that she had attempted to take her own life. After the accident the respondent became depressed and traumatised and left school. She had various jobs before and after the accident. She later accepted an offer of full time employment in a family business, where she intended to remain for the foreseeable future with an intention ultimately to undertake university studies.

[8] The psychologist reported that the respondent had not attempted to justify or minimise her offending behaviour, displayed great empathy, and was extremely remorseful that her actions had led to the death of a person and the serious injury of another. The psychologist expressed the opinions that the respondent had "protective factors against future risk of offending", there was no evidence of psychopathy or anti-social personality disorder, she was extremely distressed by her current circumstances, and she accepted full responsibility for her actions. The best prospects for her rehabilitation were in a community setting. She was a suitable person for a community-based supervision order which might assist with her rehabilitation. The psychologist observed that the respondent had been raised in a protective Christian family environment without knowingly having contact with any person engaged in anti-social activities. In light of the diagnosis of the respondent (Post Traumatic Stress Disorder and Major Depressive Disorder were indicated) she would suffer further psychological problems in a prison environment.

[9] In addition to summarising the circumstances of the offence and the respondent's personal circumstances, the sentencing judge observed that he did not know for how long the respondent took her eyes off the road ahead. It might have been one or two seconds or it might have been three or four seconds. The sentencing judge noted that at 80 kilometres per hour the respondent was travelling at 22 metres every second. The sentencing judge observed that this was a very serious offence. One circumstance which the sentencing judge considered to be favourable to the respondent was that the offence occurred on a country road so that this was not a case of a driver using a mobile phone in an area where one would have expected to find pedestrians; it was a "very cruel twist of fate" that Mr Yang and Ms Wu happened to be at that place at that time.

[10] The sentencing judge considered that general deterrence was of significance in this case because it was commonplace to see people using their phones as they were driving and the imposition of stern punishment for those who used their phones whilst driving and caused significant harm or property damage might perhaps lead to a reduction in the incidence of that unlawful conduct. The sentencing judge also considered that denunciation, in the sense of making clear that society would not tolerate people driving dangerously on the roads and causing harm to other people, should also be taken into account in the sentence for this offence. Furthermore, personal deterrence was a relevant consideration in this case because of the respondent's conduct after the offence of using her mobile telephone whilst driving in the city, where she might have expected there to be other traffic and pedestrians.

[11] The sentencing judge described the respondent's traffic history apart from the subsequent offence in which she used her mobile phone whilst driving as being "irrelevant" and "unremarkable". The sentencing judge accepted that the respondent had cooperated with the administration of justice and gone far beyond that in that, while she was extremely distressed by what she had done, she did her best to summon assistance, she tried unsuccessfully to move Mr Yang as advised by Emergency Services, she made admissions while talking over the phone to the operator, and she made admissions to the police officer at the scene of the incident. The sentencing judge accepted that the respondent had demonstrated remorse in many ways. She had, unsurprisingly, suffered as a result of the accident in the ways described by the psychologist, she had an exemplary work record, and her hopes of undertaking tertiary studies had been affected. She had the advantage of considerable family support.

[12] The sentencing judge referred to decisions of this Court and accepted that in cases of this kind a term of imprisonment must be imposed except in exceptional circumstances and some time in actual custody must be served except in unusual cases. The sentencing judge referred to observations in R v Mules[1] and R v Lovi[2] concerning the reasons why relative leniency in sentences is usually afforded to youthful offenders who have not previously been imprisoned and have promising prospects of rehabilitation. The sentencing judge concluded that, whilst the seriousness of the respondent's offence ordinarily would demand a sentence of imprisonment and he had given very serious thought to whether the respondent should be required to serve actual time in custody, taking into account the respondent's youth, the circumstances of the incident, and all of the other matters urged upon the sentencing judge, society's interests would not be best served by sending the respondent to jail but rather by ordering her release into the community on a suspended sentence.

[13] The respondent relied upon new evidence admitted in the appeal without objection concerning her conduct in the period between the sentence hearing and the hearing of the Attorney-General's appeal. The evidence showed that the respondent had attended regular psychological therapy sessions. The psychologist reported that the respondent had been fully cooperative and engaged with her plan to treat her post-traumatic stress disorder, depression and psychosocial stressors. The respondent made attempts to speak at programs offering support services for people affected by road trauma. The general manager of the family business which employs the respondent supplied a glowing reference for the respondent. Another reference referred to the respondent's presentation at a youth group about her accident and the use of mobile phones. A general practitioner referred to the respondent having low mood, anxiety, poor sleep and symptoms of post-traumatic stress disorder, but still managing to be productive and to find active involvement in the community as well as her full time work.

[14] The Attorney-General accepted that in order to succeed in his appeal against the exercise of the sentencing discretion he was required to demonstrate an error of the kind identified in House v The King.[3] The Attorney-General argued that the relevant error was that the sentence was manifestly inadequate in that it was plainly unreasonable and unjust.[4] The Attorney-General disavowed any contention that the head sentence of two and a half years imprisonment was itself manifestly inadequate but argued that the order wholly suspending the imprisonment was plainly unreasonable and unjust. He made the uncontroversial point that the punishment for an offence might depend upon the extent of the damage that the victim happened to sustain,[5] and relied upon the observation in R v Gruenert; ex parte A-G (Qld) that in a case of dangerous driving which causes death "considerations of deterrence, and of the gravity of the consequences involved in the offence, mean that it will be a rare case that does not attract a custodial term ...".[6] The extent of harm in this case was catastrophic, involving both the death of one person and the suffering of grievous bodily harm by another.

[15] The Attorney-General also emphasised the importance of identifying the level of seriousness of the dangerous driving.[7] He acknowledged that the evidence that the tyre marks on the grass verge extended for 25 metres suggested that the respondent drove off the bitumen surface for about one second, but submitted that the sentencing judge was correct in finding that the respondent might also have been looking at the mobile phone whilst she drove on the bitumen surface. The respondent was guilty of serious fault by carelessly and deliberately not keeping a proper lookout whilst driving but instead looking at an application open on her mobile telephone, which was itself an offence. The dangerousness of that conduct was not limited to the possibility of collision with pedestrians. In the Attorney-General's submission, the sentencing judge was right to find that this was not merely "momentary inattention", cases of which have been said to be "among rare cases of dangerous driving which may attract a non-custodial sentence because, in such cases, the claims of the consideration of deterrence are less compelling".[8]

[16] The Attorney-General acknowledged that leniency was afforded to young first offenders aged between about 17 and 21 years with good prospects of rehabilitation,[9] but referred to cases in which young offenders were sentenced to terms involving actual imprisonment: R v Damrow,[10] R v Murphy,[11] and R v Vance; ex parte A-G (Qld).[12] The offenders in those cases were aged 18, 21 and 20 respectively and the maximum penalty in Murphy and Vance was seven years imprisonment whereas it was ten years imprisonment in the present case.

[17] The Attorney-General described the respondent's antecedent traffic history accumulated in the short time during which she was licensed as demonstrating an irresponsible and cavalier attitude to the responsibility entrusted to those in charge of a vehicle. He argued that what was exceptional in this case was that, five months after killing one person and seriously injuring another, the respondent again used the map application on a mobile telephone while she was driving, and that did not suggest that she had good prospects of rehabilitation or that her actions in the offence were an isolated aberration which was unlikely to be repeated.

[18] The Attorney-General reminded the Court that s 9(3)(b) of the Penalties And Sentences Act 1992[13] has the effect that the principles mentioned in s 9(2)(a) (that a sentence of imprisonment should only be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable) do not apply to the sentencing of an offender for dangerous driving causing death or grievous bodily harm. The Attorney-General then argued that the sentencing judge, whilst referring to the seriousness of the offence, deterrence and denunciation as relevant matters to take into account, did not give any or sufficient weight to the safety or protection of members of the community even though s 9(4) of the Penalties and Sentences Act 1992 required the sentencing judge to "have regard primarily" to those matters.

[19] The Attorney-General argued that, if the Court concluded that the sentence was rendered manifestly inadequate by the absence of any custodial component in the sentence, the new evidence did not establish any circumstance which justified the Court in exercising a residual discretion to decline to impose a custodial sentence upon the respondent. In that respect the Attorney-General emphasised that between the date the sentence was imposed and the hearing of the appeal the respondent had not been required to engage in any particular activity such as would have been required if, for example, parole instead of suspension had been ordered.

[20] The respondent emphasised mitigating factors. The accident occurred when the respondent was driving along a country road in dark and overcast conditions. There was no pathway along the side of the road and the respondent was not familiar with the road. She was driving at or near the speed limit. After the accident the respondent immediately was very distressed and did her best to summon assistance and give aid. She made full admissions at the scene of the accident to Emergency Services personnel and to the police. There was a full hand-up committal and timely plea of guilty. The respondent had demonstrated remorse. She had an exemplary work record. She suffered psychological problems. She had considerable family and wider community support and she was a young offender with prospects of rehabilitation. The respondent argued that the decisions upon which the Attorney-General relied were more serious examples of the offence. None of them involved a case in which the offender was a 17 year old who took her eyes off the road for a second or so.

[21] In the respondent's submission, a non-custodial sentence in the case of dangerous driving causing death is not reserved for exceptional cases; rather, in Hart, Keane JA observed instead that such a sentence will "usually" involve actual custody.[14] The respondent referred to the observations in R v Lovi and R v Mules concerning the relative leniency usually afforded to youthful offenders. The sentence of two and a half years' imprisonment was submitted to be sufficient to meet the requirements of the case.

[22] The respondent also referred to cases which identified circumstances in which appellate courts might exercise a residual discretion to decline to return to custody persons who had been granted their liberty.[15] She relied upon the circumstance that, following the sentencing judge's orders, she has been subject to a suspended sentence in the community since November 2013. The new evidence showed that she had commenced her rehabilitation and reintegration into the community in an exemplary way. It was submitted that, even if the Court found that there was an error in the exercise of the sentencing discretion, the Court should exercise its residual discretion to dismiss the Attorney-General's appeal.

[23] In Gruenert, Keane JA with whose reasons Williams JA and Fryberg J agreed, observed that it emerged from a consideration of earlier decisions of this Court[16] "that in a case of dangerous driving which causes death:

(a) a head sentence of 18 months imprisonment is at the bottom end of the range;

(b) the considerations of deterrence, and of the gravity of the consequences involved in the offence, mean that it will be a rare case that does not attract a custodial term;

(c) the imposition of a custodial sentence is not, however inevitable in every case; and

(d) cases of "momentary inattention" are among rare cases of dangerous driving which may attract a non-custodial sentence because, in such cases, the claims of the consideration of deterrence are less compelling."[17]

[24] The head sentence is not in issue and it is not necessary to consider the significance in the exercise of the sentencing discretion of the proposition in (a).[18] In relation to (b) - (d), in Hart, Keane JA, with whose reasons de Jersey CJ and I agreed, substantially repeated those remarks in the statements that "the gravity of the consequences involved in such an offence means that it will be a rare case that does not attract a custodial term" and that "a custodial sentence is not inevitable, and cases of "momentary inattention" are among the rare cases which may attract a non-custodial sentence."[19] In that context, the subsequent statement by Keane JA in Hart that "usually" such a sentence would involve actual custody does not suggest anything different from the oft-repeated proposition that only a "rare" case will not attract a custodial term. This is consistent with Vance for example, in which the Chief Justice, with whose reasons Keane JA and Mullins J agreed, referred to the description in Gruenert of momentary inattention "as a 'rare' category of case where actual imprisonment may not necessarily be ordered" and observed that "[f]undamental considerations in cases like these are the ultimate gravity of causing the death of a fellow human being, and the primacy of the Courts continuing to do their utmost to secure general deterrence in a potentially very dangerous sphere of human activity."[20]

[25] The question raised by the Attorney-General's appeal is whether in all of the circumstances the sentencing judge's order wholly suspending the imprisonment resulted in the sentence being manifestly inadequate such as to demonstrate that the sentencing judge must have erred in principle even though the error is not apparent from the sentencing remarks.[21] In answering that question, it is necessary to bear in mind the guidance supplied by decisions such as Gruenert and Hart as to the principles to be applied in sentencing, including the repeated emphasis upon the importance of general deterrence in cases in which the sentence might sensibly operate to deter others from similar offending. It is also necessary to take into account the sentences in those and other broadly comparable sentencing decisions as yardsticks against which the sentence should be examined.[22]

[26] As to the first matter to which the sentencing judge referred as favouring a non-custodial sentence, the circumstances of the incident, that should be taken as a reference to circumstances which suggested that the respondent's offence was a less serious example of the offence than many others which come before the courts. As the respondent argued, there was no allegation that the respondent drove above the speed limit or at a speed which was excessive for the conditions, or that she had consumed drugs or alcohol, or that the dangerous driving persisted over a very lengthy period or distance. As to the last matter, the prosecution proved that the respondent failed to keep a proper lookout only for about one second and over about 25 metres, although the period and distance may have been longer. The sentencing judge found that this did not amount to "momentary inattention". What is significant in this respect is the deliberateness of the respondent's conduct in taking her eyes off the road for a long enough period for her car to collide with two pedestrians on the grassed verge adjacent to the road without her having become aware of their presence. That circumstance and the sentencing judge's conclusion (which was not challenged) that it is commonplace for people to use their phones whilst driving made general deterrence an important consideration in this sentence.

[27] It is relevant that this offence was not committed in a built up area. This was a country road with no marked footpath on the respondent's side of the road. But whilst no sufficient basis appears for setting aside the sentencing judge's finding that a driver would not have expected to find pedestrians at the time when the accident occurred, the foreseeable consequences of the respondent's dangerous driving were not limited to a collision with pedestrians. Other possibilities included, for example, a collision with an animal or with another vehicle of whose presence on the road the respondent might have been unaware, just as she was unaware of the presence of Mr Yang and Ms Wu until after she hit them. Thus, whilst the respondent's departure from the required standard of care was less than it would have been if the presence of pedestrians was known or should readily have been anticipated, that does not mean that her driving was other than highly culpable.

[28] The second matter referred to by the sentencing judge as favouring a non-custodial sentence was the respondent's youthfulness. The sentencing judge referred to R v Mules, in which the President, with whose reasons Keane JA and Mullins J agreed, observed that the previous decision in R v Horne[23] made it clear that because the rehabilitation of young offenders is in the interests of the community, "youthful offenders with limited criminal histories and promising prospects of rehabilitation who have pleaded guilty and cooperated with the administration of justice, even where they have committed serious offences ... should receive more leniency from courts than would otherwise be appropriate." The sentencing judge also took into account the long experience of the Courts, to which Burbury CJ referred to in Lahey v Sanderson[24] in a passage quoted in R v Lovi,[25] "that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed" so that it had been universally accepted by the Courts in England, Australia and elsewhere "that in the case of a youthful offender his reformation is always an important consideration and in the ordinary run of crime the dominant consideration in determining the appropriate punishment to be imposed."

[29] Those rationales for affording relative leniency to youthful offenders with promising prospects of rehabilitation are not rendered irrelevant by the provision in s 9(3)(b) of the Penalties and Sentences Act 1992 which, in a case in which the offence resulted in physical harm to another person, precludes the application of the principles mentioned in s 9(2)(a) that a sentence of imprisonment should only be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable. In such a case, s 9(4) requires the sentencing court to "have regard primarily" to a list of matters. The list includes matters such as the personal circumstances of any victim of the offence and the death of or any injury to a member of the public resulting from the offence (s 9(4)(c) and (d)) and any disregard by the offender for the interests of public safety (s 9(4)(f)), but the list also includes:

"(g) the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;

(h) the antecedents, age and character of the offender;

(i) any remorse or lack of remorse of the offender;

(j) any medical, psychiatric, prison or other relevant report in relation to the offender ..."

[30] Under paragraph (h), the respondent's youthfulness was one of the matters to which the sentencing judge was required by law to "have regard primarily". It is true that the relative weight to be attributed to that matter in the sentence must be assessed in the context of other relevant circumstances, including that this offence is often committed by young people of good character and that general deterrence is a material consideration. It is also right to bear in mind that, notwithstanding the youthfulness of the offenders in each of Damrow, Murphy, and Vance, the Court endorsed the proposition that it would be a rare case that does not attract a custodial term and each of them was required to spend a significant period of time in actual custody. But the respondent's youthfulness nonetheless was a significant consideration militating in favour of relative leniency.

[31] The other matter to which the sentencing judge referred in general terms as contributing to the decision to suspend the imprisonment included the respondent's other personal circumstances. The respondent immediately admitted to the emergency operator and in her police interview at the scene that she had been looking at her mobile phone at the time of the collision. But for that admission the authorities presumably never would have discovered and could not have proved that serious aspect of her dangerous driving. In those circumstances, the respondent's frank and prompt admissions against her own interests added weight to her remorse, to which s 9(4)(i) required the sentencing judge to "have regard primarily". The sentencing judge was right to attribute particular significance to this aspect of the respondent's cooperation with the administration of justice.[26] It was also in the respondent's favour that, as was appropriate, the respondent did all that was within her power to assist the victims of the accident and, as was to be expected, she suffered psychological harm herself.

[32] It was not contended in a ground of appeal that the sentencing discretion miscarried as a result of the sentencing judge's conclusion that the respondent's traffic history prior to the offence was "irrelevant". It was open to the sentencing judge to regard that prior traffic history as "unremarkable" and to afford it little weight in the context of the dangerous driving offence. The respondent's subsequent offence is more significant. Only five months after the accident in which one person died and another was grievously injured as a result of the respondent's dangerous driving, she again looked at a maps application on a mobile phone whilst driving. She was driving at a very low speed at the time, but it was in a built up area. In light of the compelling evidence that the respondent was genuinely remorseful for and seriously affected by the tragic results of her dangerous driving, it seems astonishing that the respondent was again tempted to look at her mobile phone in any circumstances whilst she was driving. The respondent was punished for that traffic offence and the sentence under appeal could not be a vehicle for further punishment, but the respondent's conduct in that offence undermined the strong evidence that there was no need to deter her from future offending. It also put into question the depth of the respondent's remorse, but the sentencing judge accepted that the respondent was truly remorseful.

[33] It is necessary next to examine the sentencing decisions. Murphy involved a 21 year old on a learner's permit without a licensed driver in the car who drove at excessive speed for the conditions, crossed a double white line, and thereby killed two people and caused significant disabilities to a third person. The offender was sentenced to three and a half years imprisonment suspended after 12 months for an operational period of four years. That sentence supplies no real guidance because he was some years older than the respondent, both the circumstances of the offence and the consequences of his driving were much worse than in the respondent's case, the sentence was described as "severe",[27] and the decision that the sentence was not manifestly excessive does not imply that a non-custodial sentence would have been outside the sentencing discretion.

[34] Damrow involved an 18 year old without a licence who drove into an intersection without stopping and collided with a truck. A passenger in her car died as a result of the collision. She was sentenced to 18 months imprisonment, suspended after eight months for an operational period of 18 months. That was after a trial and the circumstances of her offence were worse than the respondent's, but the respondent caused grievous bodily harm as well as a death. However, although the respondent's sentence appears lenient by comparison, the decision in Damrow was again only that the sentence was not manifestly excessive.

[35] Vance concerned a 20 year old with a minor drug history who drove into a cyclist and then drove home, leaving his dying victim at the scene. He was resentenced on appeal to three years imprisonment suspended after 12 months for an operational period of three years. He drove whilst very fatigued. His driving was described by the Chief Justice as being "dangerously neglectful" and "surpassing 'momentary inattention'".[28] Similar condemnations might perhaps be made about the respondent's driving, but the circumstances in Vance were in other respects very much worse; he was some three years older than the respondent, his conduct in leaving the scene of the accident, not assisting his victim, and not coming forward for some time told against true remorse or full cooperation and was "morally reprehensible",[29] and he had a previous, albeit limited, criminal history. On the other hand, the respondent's accident not only involved a death but also the grievous bodily harm of another person, the maximum penalty for her offence is ten years imprisonment as against the maximum penalty of seven years imprisonment applicable in Vance, and the sentence of three years imprisonment suspended after 12 months in Vance reflected the moderate approach in appeals by the Attorney-General which is not now adopted.[30] Overall, the absence of any actual custody in the respondent's sentence makes it seem lenient in comparison with the sentence in Vance.

[36] Having regard to the relevance of personal deterrence (particularly in light of the respondent's subsequent traffic offence), the importance of denouncing the respondent's offence, and especially the importance of seeking to deter others from committing a similar offence, and notwithstanding the respondent's youthfulness and other personal circumstances, the sentence was rendered impermissibly lenient by the absence of any period of actual custody. The necessary period of actual custody might have been limited to about five months but, in the circumstances I have described, for driving this dangerously with consequences as serious as death of one person and grievous bodily harm of another the absence of any period of actual custody rendered the sentence manifestly inadequate.

Should the Court exercise the residual discretion not to interfere?

[37] In DPP (Cth) v Gregory[31] the Victorian Court of Appeal referred to the residual discretion to decline to return to custody a person who was granted liberty at first instance:

"This Court has always been hesitant to return to custody someone who has already been granted their liberty. That hesitation is founded upon a number of principles. Amongst other things, returning an offender to custody can damage public confidence in the justice system, and interrupts the process of rehabilitation and reintegration an offender will have begun upon their release. It places such an offender in the period between their release and the hearing and disposition of the Crown's appeal in a state of limbo and uncertainty which is, generally speaking, and except in unusual or egregious cases, inimical to the proper administration of justice, and which is also inimical to their successful re-integration into the community".

[38] This Court made similar observations in R v Major; ex parte Attorney-General.[32]

[39] That the Court retains a residual discretion of that character was confirmed by the High Court in Munda v Western Australia,[33] in which the majority cited with apparent approval the reference by French CJ, Crennan and Kiefel JJ in Green v The Queen[34] to circumstances which might create injustice if a State appeal against sentence is allowed as including "delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation."

[40] Whilst there has been no significant delay in this appeal, the new evidence confirms that in the five months or so since the respondent was released under the suspended sentence of two and a half years imprisonment she has attended regular psychological therapy sessions of a kind which might have accompanied an order for release on parole, she has taken full advantage of the family employment which she was fortunate to obtain, and otherwise she has done all that might reasonably be done up to this time towards her rehabilitation and reintegration in the community. If the respondent had been given an appropriate custodial sentence, she might have served it in full and been released by the time this appeal was heard. She benefited by not being given a custodial sentence, but the possibility that she would be given a custodial sentence on appeal has been hanging over her head. The respondent, who was already afflicted by psychological problems at times before her offence, has suffered further psychological harm as a result of her own offence. The psychologist's evidence is that the respondent's prospects of rehabilitation are better in a community setting than in prison and that, in light of the respondent's diagnosis of Post Traumatic Stress Disorder and Major Depressive Disorder, imprisoning the respondent would cause her to suffer further psychological problems.

[41] The factor of most significance militating against the exercise of the residual discretion is the desirability of correcting a sentence imposed in error which is insufficient to deter others from committing similar offences. In assessing the weight of that factor, it is relevant to bear in mind both the sentencing judge's finding that this was not a case of a driver using a mobile phone in an area where one would have expected to find pedestrians and that the sentence did have some deterrent effect. Putting aside the respondent's loss of her driving licence for at least three years, the sentence included the imposition of a substantial term of imprisonment, it resulted in the respondent having the stigma of a criminal record involving that term of imprisonment, and it exposed the respondent to the suspended imprisonment being activated if she committed any offence punishable by imprisonment within three years of her sentence.

[42] In all of the circumstances the desirability of correcting the sentence on appeal by imposing a relatively short period of actual custody does not justify the resulting interruption of the rehabilitation and reintegration into society upon which this youthful and psychologically vulnerable respondent has substantially embarked. This is an appropriate case in which to exercise the residual discretion to decline to intervene.

[44] MORRISON JA: I have had the advantage of reading the reasons prepared by Fraser JA. Subject to the following I am content to adopt his Honour's analysis of the circumstances of the offence, the sentencing remarks and new evidence presented on appeal, and the summary of the competing submissions.

[45] For reasons which will appear, I agree with his Honour's conclusion that the sentence imposed was rendered impermissibly lenient by the absence of any period of actual custody. Specifically, I agree with what his Honour has said in paragraphs [23] to [36] above.

[46] There are some additional features about the event which, in my view, bear on an assessment of the seriousness of the offending conduct.

[47] When she was interviewed at the scene the respondent estimated that she was travelling at about 100 kilometres per hour. The speed limit at the area was 80 kilometres per hour. The agreed Schedule of Facts[35] recorded the view of a Senior Constable of Police with the Forensic Crash Unit. His analysis was based upon, amongst other things, the measurements of the tyre marks on the grass on the left hand side of the road. At the relevant point the distance between the white fog line marking the left hand edge of the lane to the edge of the bitumen was approximately 50 centimetres. The tyre marks showed that the left hand wheels of the Toyota Landcruiser Troop Carrier, which the respondent was driving, was approximately one metre to the left of the white fog line. Those marks continued in an arc, commencing where the bitumen surface meets the grass verge, and ending 25 metres later where the grass verge meets the bitumen.

[48] The police officer advanced various opinions as to how the accident had happened, noting various pieces of damage to the vehicle. Essentially the deceased had been struck by the middle of the vehicle and thrown between 20 to 30 metres up the road. The female pedestrian was thrown a similar distance. Based on the positioning of the tyre marks, the police officer concluded that the respondent had left the roadway, struck the pedestrians and then swerved back on to the roadway, avoiding running over the top of them.

[49] The police officer "did not think that the accused was travelling at 100 km/h at the time she hit the deceased and the complainant".[36] In my view it is important to note the qualification to that opinion. It is that the respondent was not travelling at 100 kilometres per hour at the time that she hit the deceased and the complainant. It is true that the learned primary judge sentenced on the basis that the respondent was "probably travelling at or near the permissible limit at that time of 80 kilometres per hour".[37] However, that conclusion was reached after the primary judge had summarised the police officer's opinion in this way:

"Whilst later you told police that you had been travelling at 100 kilometres per hour, the Crown have very fairly put before me the opinion of a police officer who was responsible for investigating the matter and he concluded that you would not have been, in fact, travelling at that speed."[38]

[50] In my view both the version of the respondent and the opinion of the police officer are reconcilable. The police officer was not saying that the respondent's general speed was other than as estimated by the respondent, merely that "at the time she hit the deceased" she was not travelling at 100 kilometres per hour. That did not provide a basis for suggesting that the respondent was only travelling at 80 kilometres per hour.

[51] The appellant addressed the learned primary judge on the basis that the speed could have been greater than 80 kilometres per hour, describing it as involving "significant speeds"[39] and that even at 80 kilometres per hour "that is a speed to be travelling at that requires a level of concentration and attention that she wasn't showing by looking at her phone".[40]

[52] Both in submissions made to the learned primary judge and in his Honour's sentencing comments, calculations were made of the distance travelled in an attempt to estimate the time during which the respondent was looking at her phone rather than the road. The calculations were all based on the speed of 80 kilometres per hour. For the reasons above, that could give a distorted view of the period of inattention. Further, attempts to gauge the length of time by reference to the time it might have taken to cover the 25 metres revealed by the tyre marks on the grass, are also potentially misleading. That is, to assume that the period during which the respondent was looking at her phone was only at the time when the vehicle's wheels left the bitumen. Equally possible is that while she was looking at the phone the vehicle covered some distance while still wholly on the bitumen.

[53] The exhibits tendered on the sentencing hearing reveal that there is no reason why it would have been difficult to see the pedestrians walking ahead of the vehicle. Had the respondent been paying attention to the road she could hardly have missed the fact that there were people walking on the edge of the road.

[54] There is an additional aspect of the respondent's driving on that night which, in my view, is relevant to the seriousness of the offending conduct. The respondent tendered a psychologist's report which recorded, inter alia, that the respondent had "borrowed her mother's [iPhone] so that she could use the Map feature on the phone as she was unsure of the exact route to drive".[41] In my view that adds to the deliberate nature of the respondent's actions on the night. In other words, she had already anticipated using the phone for its map feature before embarking on the journey, so that it could not be said to be a spur of the moment action.

[55] Both in submissions to the learned primary judge, and on the appeal, reference was made to the respondent as being aged 17 at the time of the incident. That is not quite right. She was born on 27 July 1994, and was therefore only 20 days short of her eighteenth birthday at the time of the offence.

[56] Fraser JA, has identified in paragraph [5] above, the differing versions given by the respondent in relation to part of her traffic history, when she reversed into another car at a service station. In relation to the incident five months after the offence, when she was breached for once again using a mobile phone for its map feature whilst driving, there is again a differing account. The respondent told the police that she was picking up a friend.[42] The version told to her psychologist was that she was working at the time and going to pick up a customer.[43] In each case the varying versions, whilst not critical, might suggest a deflecting of blame.

[57] The matters set out above lead me to conclude that the offence was particularly serious. It is characterised by intentional and deliberate action (looking at the mobile phone) which meant that the respondent really had no idea where she was on the road or what risk she might pose to others on the road or nearby. The consequence is that one person died and another sustained multiple very serious injuries. It is on that basis that I come to the same conclusion as Fraser JA on this question.

Should the Court exercise the residual discretion not to interfere?

[58] On this aspect of the appeal I have come to a different conclusion from that of Fraser JA.

[59] An oft quoted passage from Director of Public Prosecutions (Cth) v Gregory[44] refers to the residual discretion:

"This Court has always been hesitant to return to custody someone who has already been granted their liberty. That hesitation is founded upon a number of principles. Amongst other things, returning an offender to custody can damage public confidence in the justice system, and interrupts the process of rehabilitation and reintegration an offender will have begun upon their release. It places such an offender in the period between their release and the hearing and disposition of the Crown's appeal in a state of limbo and uncertainty which is, generally speaking, and except in unusual or egregious cases, inimical to the proper administration of justice, and which is also inimical to their successful re-integration into the community. Prior to the abolition of the principle of double jeopardy as it applied to Crown appeals, that hesitation was partly founded upon the not unnatural distress and anxiety that such re-incarceration would cause to the offender and those close to him or her, and the fact that in such cases, more than any other, Crown appeals "cut across time-honoured concepts of criminal administration".[45] Although, as discussed above, the application of that principle has now been abolished by statute, the effect of returning an offender to custody on both their rehabilitation and on community confidence in the justice system more generally is still a relevant consideration which this Court ought to consider when it is called upon to exercise its discretion to re-sentence an offender."[46]

[60] Gregory was a case where the offender had been sentenced to imprisonment and seven months later an order was made for his release on home detention. The appeal was heard three days after the order for home detention had been made, and was dismissed that day. That meant the offender remained subject to an order for home detention. If the appeal had been allowed the offender would have been returned to prison.

[61] It is important to note the terms in which Gregory referred to the residual discretion. It is in relation to the "return to custody" of an offender, clearly referring to somebody who has already been imprisoned. So much is clear from the later use of the phrase "re-incarceration" and the reference to "returning an offender to custody".

[62] In an earlier decision of the Victorian Court of Appeal, in Director of Public Prosecutions (Vic) v Karazisis[47] the Court referred to the residual discretion saying:

"[100] That residual discretion is perhaps of uncertain width. It is impossible to lay down any exhaustive statement of its scope, or to be unduly prescriptive as to how it should be exercised in any given case. What is clear is that it survives the enactment of the new provisions. In the exercise of that discretion, the court can dismiss a Crown appeal even where a sentence fixed below is shown to be affected by error in the House sense, and the court is satisfied as well that a different sentence ought to have been passed.

[102] The new provisions also make it clear that the residual discretion to dismiss a Crown appeal can no longer be exercised on the basis that, if the court were to proceed to re-sentencing, it would in any event arrive at a sentence close to that imposed at first instance because the court would necessarily be giving a "discount" for double jeopardy.

[103] However, as one learned commentator has pointed out, there remain many reasons, apart from double jeopardy, why, as a matter of discretion, this court would conclude that, despite error having been established and being satisfied that a different sentence ought to have been passed, the Crown appeal should be dismissed.

[104] Among the factors that might be relevant to the exercise of the Court's discretion to dismiss an appeal, despite inadequacy of sentence having been demonstrated, are delay, parity, the totality principle, rehabilitation, and fault on the part of the Crown.

[105] It is not difficult to see how factors such as these, and perhaps a number of others, might be regarded as justifying such a course in any given case."[48]

[63] The rationale for the residual discretion has sometimes been described as that it is being exercised on the basis of mitigating unfairness or injustice.[49]

[64] The decision of this Court in R v Major; Ex parte Attorney-General[50] concerned an offender who had spent 741 days in pre-sentence custody which was declared as time served. The head sentence imposed for one of the offences was four years, wholly suspended because of the time spent in custody. The submission made to the Court was that if the Attorney-General's appeal succeeded, and the nominated sentence was imposed, the offender would have to go to prison for three and a half months before being eligible for parole, having already been in custody for 24 and a half months. It was in that context that the Court referred to what was said in Gregory, and the hesitancy on appellate courts to "return to custody someone who has been granted their liberty".[51] In the President's reasons[52] the following appears:

"The respondent has served over two years in pre-sentence custody which was properly and fairly declared as time served under the sentence when he was released from prison upon his sentence in October last year. The appellant contends the respondent should now be returned to prison to serve about three and a half months further imprisonment before parole eligibility. As the Victorian Court of Appeal also noted in Gregory, appellate courts are hesitant to return to custody someone who has been granted their liberty. That is especially so where the prisoner has served a lengthy period of imprisonment (here, more than two years) and the return to custody is for but a short period. The respondent has, it may be inferred, commenced his rehabilitation since his release into the community, something which is in the community interest. It would be most unhelpful both to his and to the community's interest to now return him to prison. Further, he has had the additional punishment of the uncertainty of this matter hanging over his head since the appellant filed the notice of appeal on 4 November 2010."[53]

"It is generally undesirable for a person who has served a substantial period of imprisonment and been released to be sent back to prison after his reintegration into the community has commenced, particularly if the further period of imprisonment is relatively short."[54]

[66] That there is a residual discretion has been acknowledged by the High Court in Green v The Queen; Quinn v The Queen,[55] where French CJ, Crennan and Kiefel JJ said:

"Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual."[56]

[67] Green was a case where each of the offenders was sentenced to substantial periods of imprisonment, with substantial non-parole periods.[57]

[68] Thus each of Gregory, Major and Green involved cases where the offenders had been serving a period of imprisonment and had then been released, or had the prospect of being released from imprisonment. That is not the case with the respondent here. She has served no period of imprisonment, not even pre-sentence custody.

[69] That the residual discretion exists where there is a non-custodial sentence has been acknowledged in Karazisis. There two offenders were sentenced to periods of imprisonment, each to be served by way of an intensive correction order. The majority said:

"[106] Where there has been significant delay between the sentencing of an offender, and the hearing of the Crown appeal against that sentence, the court will generally take that into account in determining both whether to allow the appeal and, if so, in resentencing. There are sound reasons for this.

[107] Circumstances may have changed to such a degree as to warrant leaving even a sentence that may be viewed as manifestly inadequate to stand. When an offender is given a non-custodial sentence and has complied with its terms for a significant period, there may be powerful reasons why that sentence should not be disturbed. A similar point can be made in situations where an offender, who received a short custodial sentence, has served the entirety of that sentence and been released by the time the Crown appeal is heard.

[108] Delay is generally regarded as an important mitigating factor, particularly in cases where it has been brought about through no fault of the respondent. If the evidence is that a convicted person has taken advantage of a lenient disposition by removing himself or herself from a previously unsatisfactory environment, and has found employment and stability in his/her personal life, the court will be reluctant to disturb that situation."[58]

[70] It is evident from the passage referred to above that the Court was referring to a non-custodial sentence of the kind in consideration in that case, namely one served by an intensive correction order. That is made clear by the reference to when an offender is given a non-custodial sentence and "has complied with its terms".

[71] The majority went on to say, as to rehabilitation as a factor in the exercise of the residual discretion:

"[111] The next potentially relevant factor in the exercise of the residual discretion is rehabilitation. Crown appeals are not intended to detract, in any way, from the importance of this vital sentencing factor. The importance of rehabilitation in the case of young offenders, in particular, has been emphasised many times.

[112] Rehabilitation has always been regarded by this court as an important factor in determining whether to interfere with a sentence that was designed to enhance its prospects. This applies as well to custodial sentences which are ordered to be served in less punitive ways than actual imprisonment. For example, an offender who has been sentenced to a term of imprisonment, to be served by way of an intensive correction order, may already have completed a good part of that sentence by the time the Crown appeal is heard. That is plainly a matter to be accorded considerable weight in determining whether the court should, in the exercise of its residual discretion, dismiss such an appeal. Rehabilitation will also play its part in the sentencing discretion in the event that the court resolves to intervene and impose a different sentence."[59]

[72] Part of that passage was relied upon by this Court in R v Dowel; Ex parte Attorney-General (Qld).[60] The offender had been sentenced to a wholly suspended sentence of four years imprisonment for the offence of trafficking in drugs. He was 19 at the time of offending, with no criminal history and well thought of by his employer. He had completed his apprenticeship during the 21 months that he was on bail for the offence. Muir JA[61] said:

"[24] ... Moreover, it was relevant, as counsel for the appellant properly acknowledged, that the respondent had spent a lengthy period on bail without any suggestion of reoffending and that he had, again without any suggestion of reoffending, been excused "from custody and ... permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation".

[25] On a Crown appeal, the Court is required to have regard to the circumstances existing at the time of hearing the appeal and there is a reluctance to disturb a situation in which a respondent has availed himself or herself of a non-custodial sentence to gain, or remain in, employment and pursue a life free from crime and criminal influences."[62]

[73] Dowel did not involve actual custody, being a wholly suspended sentence. However, no occasion arose for the Court to consider the application of the residual discretion, as the Court did not find that the sentence was manifestly inadequate.

[74] The reluctance referred to in Dowel is reflected in R v Larden; R v Ryan.[63] There each offender was sentenced to three years imprisonment, to be suspended after 14 days, for a period of five years. Each was also fined and ordered to perform 240 hours of community service. Dowsett J[64] had this to say:

"In resisting the Attorney's appeal, counsel for the respondents relied heavily upon the assertion that this Court will be more reluctant to intervene on such an appeal than in appeals against sentence by offenders. It was also submitted that on an Attorney's appeal, the Court should be reluctant to return an offender to prison where, at the time of the appeal, he is already at large. The authorities support these propositions."[65]

[75] Larden did not involve questions of the residual discretion. Neither did R v Bazley.[66] The offender there was convicted of indecent assault and indecent assault with a circumstance of aggravation. The sentences were for three years probation and three years imprisonment, wholly suspended for a period of four years. The offender had been incarcerated for a period of one week following his arrest and therefore endured what was described as a "temporary stay in prison".[67] The majority referred to the fact that where liberty is at stake the Court is sometimes less reluctant in an appeal by an offender to alter the sentence imposed below than it is in an Attorney's appeal:

"It has long been accepted that an appeal against sentence by the Attorney-General cuts across the time honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed: Everett v R [1994] HCA 49; (1994) 181 CLR 295 at 299. A case such as this in which, in consequence of the sentence imposed below, the offender has not been put in actual custody, illustrates the difficulty facing the Attorney in such an appeal. This Court made that point in R v Melano; ex parte Attorney-General [1994] QCA 523; [1995] 2 Qd R 186 at 190 by saying that, especially where liberty is at stake the Court is sometimes less reluctant in an appeal by the offender to alter the sentence imposed below."[68]

[76] There is a difference in my mind between the situation where someone is sentenced and imprisoned, then given liberty because of the terms of an order (whether as part of the sentencing orders or a later order), or because of the parole system, and cases where the offender has not commenced imprisonment at all. The conclusion that the sentence was manifestly inadequate means that this case can be characterised as one where the respondent has been at liberty, but wrongly. That is not to say that in such a situation a Court could not exercise a residual discretion not to interfere, but it does seem to me to distinguish this sort of case from those considered in Gregory, Green and Major, where the offender served a period of imprisonment, and Karazisis where the sentence was served under an intensive correction order.

[77] Therefore, whilst it may be accepted that the residual discretion may be exercised in a case such as this, where there has been no imprisonment at all, or where the offender's liberty has been governed nonetheless by matters such as community correction orders or intensive correction orders, the fact that the respondent has not been subjected to any period of imprisonment distinguishes this case, in terms of the question whether to exercise the discretion, from those where the offender has undergone a period of incarceration and the result of the order would be to return them to custody.

[78] What the various authorities referred to above establish is that an appeal court will weigh carefully the question of either returning an offender to a state of imprisonment when they have been released for whatever reason, or imposing imprisonment for the first time on an offender who has received a non-custodial sentence, that deliberative process being characterised in the authorities as the Court being reluctant or hesitating before making such an order.

[79] However, the authorities do not stand for the proposition that the appellate court should not do so in an appropriate case. Indeed, R v Woods; Ex Parte Attorney-General[69] is one such case. The offender caused a person's death by reason of his dangerous driving. He had been driving well in excess of the speed limit, in such a manner that one witness described it as a drag race, even though it only took place over a few hundred metres. The car was a manual transmission vehicle, for which he was not licensed, it was dark and only one of the vehicle's headlights was working. The offender looked away at a critical time, from the road ahead. As a consequence he collided with a sedan which was torn in half, throwing the female passenger some 20 metres and resulting in her death. As well a number of passengers were seriously injured. The collision happened at a place where the road configuration presented some danger and where some shrubbery may have impeded vision. The offender demonstrated no remorse at the time, or thereafter. He was 19 years old at the time of the offence, had a satisfactory employment history, and no significant prior criminal history. He was sentenced to carry out 240 hours unpaid community service, and disqualified from holding a licence for three years.

[80] The Court of Criminal Appeal held that the penalty imposed was completely inadequate, and substituted an order for imprisonment for two years, with a recommendation of eligibility for parole after having served eight months. The factors significant in that determination were the reckless nature of the driving, characterised by speed and looking away from the road. Further, the absence of remorse was described as a telling factor.

[81] As Woods indicates, if the seriousness of the offence warrants it, the youthfulness of the offender, good history and having been at large in the community should not prevent the appropriate order being made.

[82] The report of the psychologist given on behalf of the respondent does not, in my view, go so far as to say that imprisonment would cause the respondent further psychological or other harm, as opposed to the respondent's existing conditions requiring management. It is true that the psychologist has diagnosed the respondent with a post-traumatic stress disorder[70] and has otherwise detailed the respondent's difficulties with, and attempts to overcome, her psychological reaction to the circumstances of the offence. However, the psychologist's opinion as to the impact upon the respondent, if imprisonment followed, appears in two passages:

"Research into the psychological changes that adolescent offenders are forced to undergo in order to survive the prison experience has shown these offenders use emotional, avoidant and detached coping styles and suffer more from psychological distress with a trend to increased depression, anxiety and insomnia. [The respondent] has been raised in a protective Christian family environment and has not knowingly had contact with any person or persons engaged in antisocial activities or the criminal justice system. [The respondent] will no doubt have great difficulty adjusting to the prison environment and it is envisaged she will suffer further psychological problems given her current diagnosis. It should also be noted that [the respondent] has no crimongenic needs that need to be addressed.

Sentencing poses a dilemma due to the seriousness of [the respondent's] charges and no doubt there is a high possibility that [the respondent] will be sentenced to serve an actual term of imprisonment. [The respondent] is extremely fearful of having to serve time in custody and the likelihood of her reoffending is extremely remote. In light of [the respondent's] current circumstances, the stronger prospects of rehabilitation remain in community settings. [The respondent] has not been subject to community based supervision and would no doubt be a suitable person for such an order. A term of community supervision may assist [the respondent] with her rehabilitation and support her to develop strategies to address her maladaptive behaviours and emotional responses."[71]

[83] It is notable that the psychologist couched her concerns as being that in a prison environment the respondent would "suffer further psychological problems", rather than that there was a likelihood of actual psychological harm. I do not understand the psychologist's report to be saying more than that the respondent will continue to suffer psychological problems, and even some additional psychological problems, if she was in prison. I do not understand that opinion to be that it would cause additional harm, psychological or otherwise. The report accepts that rehabilitation would continue in the prison environment, albeit not as well as it might in the community. The second passage referred to above supports that view, because the opinion simply expressed that the "stronger prospects of rehabilitation" would be in the community rather than in a prison setting.

[84] The psychologist report does not go so far as to strongly advise against the imposition of a custodial term.[72] It merely says that there will be psychological issues. There is no reason to assume that appropriate psychological treatment will not be available, and the report does not suggest so.

[85] Importantly the psychologist does not suggest that the benefit of the treatment so far will be wasted or negated by the impact of a period of imprisonment. Further, the psychologist does not suggest that the respondent's clear appreciation of the need for, and motivation to continue, treatment will abate whilst she is in custody. That aspect of the respondent's profile is reported as:

"[The respondent's] interest in and motivation for treatment is typical of individuals being seen in treatment settings, and she appears more motivated for treatment than adults who are not being seen in a therapeutic setting. Her responses suggest an acknowledgment of important problems and the perception of a need for help in dealing with these problems. She reports a positive attitude towards the possibility of personal change, the value of therapy, and the importance of personal responsibility. In addition, she reports a number of other strengths that are positive indications for a relatively smooth treatment process and a reasonably good prognosis."[73]

[86] Therefore it does not seem to me that the respondent moves so far out of the normal category of young offender facing the prospect of imprisonment, that the residual discretion should be exercised not to interfere in an otherwise manifestly inadequate sentence.

[87] Fraser JA has referred to the considerations taken into account by the learned primary judge (paragraphs [9] to [12] above) and to the considerations relevant to the question of whether the sentence was inadequate (paragraphs [26] to [36]).

[88] The central features which must be weighed, both in terms of the exercise of the residual discretion, as well as on the question of the appropriate sentence, are the need for general deterrence, the seriousness of the offence, the youthfulness of the respondent and the question of rehabilitation (both in terms of that which has been undertaken in the period since the sentence was pronounced and whether it will be impacted by the respondent serving a period of actual custody).

[89] The need for general deterrence looms large in my opinion, given the very serious nature of the offending conduct. As I have outlined above, the offence came about because of quite deliberate conduct, which did not take place on the spur of the moment. Further to that is her conduct five months later when she was breached for a similar offence, namely using the mobile phone for its map feature whilst driving. In my opinion those features elevate the prominence of the need for the sentence to better reflect the element of general deterrence.

[90] I have already referred to the serious nature of the offence, and its catastrophic impact on the deceased pedestrian as well as the female pedestrian who sustained serious injuries. That factor demands a period of actual custody.

[91] The youthfulness of the respondent is obvious. She was just short of her eighteenth birthday when the offence occurred, and was about 19 years old when she was sentenced. In the period since sentencing there is no doubt she has embarked upon a course of behaviour which is commendable, in the sense that she is actively engaged in psychological treatment, embraced a position in the workforce (with the considerable assistance of her family) and tried to involve herself in community activities. However, youth and rehabilitation cannot, in this case, be given too great a prominence.

[92] Where the offence is very serious and the need for general deterrence is high, those factors should be given greater weight than might otherwise be the case. In this respect what was said by Warren CJ in Director of Public Prosecutions v Edwards[74] is apt. That was a case where a 23 year old man was sentenced on a charge of recklessly causing serious injury. He had punched another man who had fallen unconscious to the ground, striking his head on a concrete pavement. The victim sustained a fractured skull and brain haemorrhaging, necessitating emergency surgery, and remained in an induced coma for two weeks. He then underwent further surgeries. His injuries were serious and ongoing, including a fractured neck and skull and severe brain injury causing a degree of paralysis on the right side of the body, deafness in the right ear, loss of taste and impairment of smell. The offender was sentenced to a three year community correction order, having served 15 days in custody. In the course of examining the inadequacy of the sentence Warren CJ[75] had this to say:

"Finally, the respondent submits that the sentencing judge rightly gave rehabilitation greater weight than deterrence and punishment due his youth. In my view, the respondent's relative youth cannot be the dominant factor in this case. As Batt JA explained in DPP v Lawrence,[76] with serious violent offences, "the offender's youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence".[77] Youth "must be subjugated to other considerations" and "take a 'back seat' to specific and general deterrence where crimes of wanton and unprovoked viciousness ... are involved".[78] While Batt JA was referring to the offence of intentionally causing serious injury, the same principle applies, in my view, to serious instances of the offence of RCSI.[79]"[80]

[93] There being no challenge to the sentence of two and a half years, only to the order for immediate suspension, the appropriate sentence to reflect the matters referred to above, as well as the other considerations referred to in paragraph [44], was to require the respondent to serve a period of five months actual custody.

[94] For the reasons above I would propose the following orders:

2. Set aside so much of the sentence as ordered that it be fully suspended, and impose in lieu thereof that the sentence be suspended after serving five months.

[95] BODDICE J: I have had the advantage of reading the judgments of Fraser and Morrison JJA.

[96] I agree with Fraser and Morrison JJA that the sentence imposed was manifestly inadequate. To the extent their reasons differ, I agree with the reasons of Fraser JA.

[97] The Prosecution, in response to a specific question from the sentencing judge, accepted the evidence of the police officer from the Forensic Unit did not support the Respondent was travelling at excessive speed. The Prosecution did not press an allegation of excessive speed, contending instead that travelling at the speed limit of 80 kilometres per hour was itself dangerous having regard to the road and other conditions.[81] There was also no contention the borrowing of the Iphone added to the deliberate nature of the Respondent's actions on the night.

[98] The additional matters referred to by Morrison JA were not matters relied upon by the Prosecution at the sentencing hearing, or on appeal. An appellate court, considering whether a sentence imposed was manifestly inadequate, should not determine that issue on bases not advanced by the prosecution.

[99] The thorough review of the authorities undertaken by Morrison JA demonstrates the residual discretion may be exercised where there has been no sentence of actual imprisonment at first instance. As Muir JA observed in R v Dowel,[82] on a Crown appeal, the Court is required to have regard to the circumstances existing at the time of hearing the appeal. Where, as here, a Respondent has availed herself of a non-custodial sentence to gain and remain in employment, and pursue a life free from crime and criminal influences, there is a reluctance to disturb that process.

[100] For the reasons given by Fraser JA, the residual discretion should be exercised in the circumstances. The Respondent has availed herself of the opportunity of the non-custodial sentence to make positive and significant steps towards rehabilitation. Her significant pre-existing psychological problems are likely to be exacerbated by a sentence of actual imprisonment. The psychologist specifically opined that in light of the Respondent's current circumstances, the stronger prospects of rehabilitation remained in a community setting.

[101] Whilst the residual discretion is being exercised, the conclusion the sentence was manifestly inadequate ensures the sentence imposed at first instance cannot be used as a relevant comparable decision in the future.

[102] I agree with the order proposed by Fraser JA.

[1] [2007] QCA 47 at [21].

[2] [2012] QCA 24 at [38].

[3] (1936) 55 CLR 499 at 504-505; see Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 at 598 [62].

[4] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 538-540.

[5] R v Amituanai [1995] QCA 80; (1995) 78 A Crim R 588 at 589.

[6] [2005] QCA 154 at [16]. The Attorney-General also referred to R v Vance; ex parte A-G (Qld) [2007] QCA 269 and R v Hart [2008] QCA 199 at [21].

[7] R v Harris; ex parte A-G (Qld) [1999] QCA 392 at [42]; R v MacDonald [2014] QCA 9 at [17].

[8] R v Gruenert; ex parte A-G (Qld) [2005] QCA 154 at [16]; R v Vance; ex parte A-G (Qld) [2007] QCA 269; R v Hart [2008] QCA 199 at [21].

[9] R v Taylor and Napatali [1999] QCA 323; (1999) 106 A Crim R 578.

[10] [2009] QCA 245.

[11] [2009] QCA 93.

[12] [2007] QCA 269.

[13] Reprint No 11B. The provisions of the Penalties and Sentences Act 1992 relevant to this appeal have since been amended.

[14] R v Hart [2008] QCA 199 at [21], reproduced with approval in R v Murphy [2009] QCA 93 at [23].

[15] DPP (Cth) v Gregory [2011] VSCA 145; (2011) 34 VR 1 at 21 - 22 [79]; R v Major; ex parte Attorney-General [2011] QCA 210; [2012] 1 Qd R 465 at [57], [118].

[16] R v Harris; ex parte A-G [1999] QCA 392, R v Balfe [1998] QCA 14, R v Manners; ex parte A-G (Qld) [2002] QCA 301, and R v Anderson; ex parte A-G (Qld) [1998] QCA 355; (1998) 104 A Crim R 489.

[17] R v Gruenert; ex parte A-G (Qld) [2005] QCA 154 at [16].

[18] Cf Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 537 [54] and Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 88 ALJR 372 at 377 [27] - [28], 378 [34], 379 [41], 380 [43].

[19] [2008] QCA 199 at [15].

[20] [2007] QCA 269 at 14.

[21] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 538 - 539 [59].

[22] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 537 [54]; Munda v Western Australia (2013) 87 ALJR 1035 at 1042 [39].

[23] [2005] QCA 218.

[24] [1959] TASStRp 10; [1959] Tas SR 17 at 21, which was cited with approval in R v Price [1978] Qd R 68 at 70 - 71 and R v Taylor and Napatali [1999] QCA 323; (1999) 106 A Crim R 578 at 583.

[25] [2012] QCA 24 at [38].

[26] See AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 155 [113]-[114] (Hayne J).

[27] [2009] QCA 93 at [27].

[28] [2007] QCA 269 at 9.

[29] [2007] QCA 269 at 7.

[30] See R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274; (2009) 197 A Crim R 399.

[31] [2011] VSCA 145; (2011) 211 A Crim R 147 at 169 [79].

[32] [2011] QCA 210; [2012] 1 Qd R 465 at 482 [57] (McMurdo P), 495 [118] (Fryberg J), Chesterman JA agreeing at 482 - 483 [60].

[33] (2013) 87 ALJR 1035 at 1047 - 1048 [72].

[34] [2011] HCA 49; (2011) 244 CLR 462 at 479 - 480 [43] (emphasis added).

[44] Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 34 VR 1.

[45] Peel v The Queen [1971] HCA 59; (1971) 125 CLR 447, 452 (Barwick CJ).

[47] (2010) 31 VR 634; [2010] VSCA 350.

[48] Karazisis at [100]-[105] (internal citations omitted).

[49] R v Holder; R v Johnston (1983) 3 NSWLR 245; Gregory at [70].

[50] R v Major; ex parte Attorney-General [2012] 1 Qd R 465; [2011] QCA 210.

[52] Chesterman JA concurring at [60].

[53] Major at [57] (internal citations omitted).

[55] Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462.

[57] At first instance the sentences were: Quinn, six years with a non-parole period of three years; Green, four years with a non-parole period of two years. On appeal Quinn was sentenced to eight years imprisonment with a non-parole period of five years, and Green to five years imprisonment with a non-parole period of three years: Green at [7] and [12].

[59] Karazisis at [111]-[112] (internal citations omitted).

[60] R v Dowel; Ex parte Attorney-General (Qld) [2013] QCA 8.

[61] With whom Fraser JA and Dalton J agreed.

[62] Dowel at [24]-[25], referring to Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, Karazisis and Major.

[63] R v Larden & Ryan; Attorney-General of Queensland [1996] QCA 331.

[64] With whom Thomas J and de Jersey J (as he then was) agreed.

[65] Larden at 7, referring to "R v Osmond; ex parte the Attorney-General [1987] 1 Qd R 49, R v Sheppard (1995) 77 A Crim R 139, R v Melano; ex parte the Attorney-General [1994] QCA 523; [1995] 2 Qd R 186, R v Grey; ex parte the Attorney-General [CA No 477 of 1994 - unreported - judgment delivered 5 May 1995], R v Solway; ex parte the Attorney-General CA No 164 of 1995 - unreported - judgment delivered 22 August 1995 and R v Reagan; ex parte the Attorney General CA No 7 of 1992".

[66] R v Bazley; ex parte A-G [1997] QCA 235.

[68] Per Davies and McPherson JJA. See also R v Hoffman; ex parte A-G [1997] QCA 377 per White J.

[69] R v Woods & Attorney-General of Queensland [1991] CCA 22.

[72] In Bazley that sort of strong advice was a factor noted by the court: at p 5.

[74] Director of Public Prosecutions v Edwards [2012] VSCA 293 at [124].

[75] Warren CJ was in the minority, Weinberg JA and Williams AJA determining the appeal on a different basis.

[76] [2004] VSCA 154; (2004) 10 VR 125.

[77] Ibid [22] (Batt JA, Winneke P and Nettle JA agreeing).

[79] RCSI means recklessly causing serious injury.

[80] [2012] VSCA 293 at [124].

[82] [2013] QCA 8 at [25].