R v McStay [2022] VSC 268

1 Following a sentence indication in March, Bradley McStay pleaded guilty to culpable driving (by gross negligence) causing the death of Luke Price at around midnight on 10 February 2020. Yesterday, I heard an opening, a plea in mitigation and submissions on matters of law.

2 This is an unusual case of culpable driving. In short, Mr Price was struck when he stepped out of the rear passenger seat of a sedan at the same moment that Mr McStay's utility clipped the sedan at low speed. Mr McStay did not intend to clip the sedan or strike Mr Price and was not even aware that he had stepped out of the vehicle. Unfortunately, after ending up on the bonnet of the ute for a moment, Mr Price fell under the vehicle and was dragged along beneath it for 58 metres. Worse still, he was run over when Mr McStay stopped, turned and then drove off. Mr McStay returned to a point near the scene shortly afterwards. He was not at the relevant time aware that Mr Price was being dragged along or that he was under the car as he drove over him.

3 Sadly, Mr Price was killed as a result of the incident. The injuries he sustained when he was driven over, as opposed to his being struck by the ute and dragged along, are most likely to have caused Mr Price's death.

4 Mr McStay had followed the sedan in an erratic fashion for 12 kilometres before the collision. His former, and Mr Price's new, girlfriend, Katrice Knapp, was also in the sedan, along with two others, including the driver. They had fled because Mr McStay was in an agitated state over his relationship with Ms Knapp.

5 Despite the gravity of the offence - involving, as it does, grossly negligent driving, the loss of a cherished life and, inevitably, the associated profound impact on Mr Price's loved ones - Mr McStay is able to call on a compelling array of mitigating factors. He has pleaded guilty relatively early and in circumstances where he had an arguable defence. I am satisfied that he is genuinely remorseful. His criminal history is limited. Significantly, he has excellent prospects of rehabilitation, which are demonstrated in part by his performance since being released on bail 18 months ago.

6 Balancing all matters, I have determined that Mr McStay is to be sentenced to six-and-a-half years' imprisonment with a non-parole period of three-and-a-half years.

7 My more detailed reasons for imposing that sentence follow.

8 I shall commence a more detailed summary of the offending with an outline of the connections between Mr McStay, Mr Price and Ms Knapp.

9 Mr McStay lived with his partner and two young children in Drouin. At some stage in 2018, he met Ms Knapp. They commenced a friendship, which later turned into an intimate relationship.

10 In January 2020, Ms Knapp noticed Mr McStay becoming jealous and possessive of her. She sought to end their romantic connection and keep it platonic instead because of Mr McStay's family circumstances.

11 About two weeks before the collision, Ms Knapp met Mr Price through mutual friends. Recently, Mr Price had been paroled from prison and had been living with one of his brothers in Officer. He had removed the ankle bracelet that he was required to wear while on parole. At the time of the offending, Ms Knapp and Mr Price were in the early stages of a relationship and had been spending time together.

12 In an attempt to distance herself from Mr McStay, Ms Knapp sought to limit her time and communications with him. This appeared to upset Mr McStay. He began contacting Ms Knapp excessively, trying to talk to her and to get her to meet with him to "sort it out".

13 A few days prior to the collision, Mr McStay visited Ms Knapp to talk. He asked why she had been giving him "the cold shoulder". She told him that she didn't want a relationship and just wanted to be friends.

14 The day before the collision, on 9 February 2020, Mr McStay messaged Ms Knapp to see if he could catch up with her to sort things out. She told him she would contact him when she was home. Mr McStay continued to message her and call in an effort to make arrangements to see her.

15 The next day, on 10 February 2020, at around 1:30 p.m., Mr McStay visited Ms Knapp and gave her a lecture about hanging out with Mr Price. Ms Knapp ended the visit to attend an appointment in Warragul. Mr McStay asked her to phone him later so that he could return to speak with her some more.

16 Ms Knapp went to her appointment. While there, she received a call from Mr Price. He told her that he had been in a car accident and asked if she could pick him up. At a later point, Mr Price phoned back and advised that he would instead meet her at Donna Ashby's house in Bayles.

17 Ms Knapp and Mr Price separately arrived at Ms Ashby's house at around the same time. Also present was Jason Pearson. Sometime later, Mr McStay arrived too. He spoke with Ms Knapp in his vehicle. Ms Knapp was upset and crying.

18 Ms Knapp and Mr Price left the house to go to Pakenham to pick up some drugs. They returned to Ms Ashby's house at around 10:45 p.m.

19 At some stage that same evening, Mr McStay had an argument with his long-term partner and left the home they shared.

20 All the while, Mr McStay was messaging and ringing Ms Knapp in an attempt to contact her. When that was unsuccessful, he started contacting their mutual friend, Mr Pearson, as well as other friends, to see if he could get the number for Mr Price. Mr McStay's messages were becoming increasingly erratic and threatening. Ms Knapp was not replying to many of the messages or missed calls, which seemed to anger Mr McStay.

21 At 10:30 p.m., Mr McStay called Mr Pearson again, demanding to know where Ms Knapp was. He rang again about five minutes later. He demanded Mr Price's number and said, "I'm gonna fuckin turn soon, I'm gonna do some hectic shit."

22 Ms Knapp received a message from Mr McStay saying he was coming to Ms Ashby's house to see her. Fearing that there would be a confrontation, Ms Knapp arranged for her friends, Anthony Stevens and Chloe Tongs, to come and pick her and Mr Price up so that they could leave.

23 At 11:56 p.m., Mr McStay sent Ms Knapp a text message saying, "I'll run through every joint to find ya this is cooked Kat wat the fck is goin on."

24 Mr Stevens and Ms Tongs arrived at Ms Ashby's house in a four-door Holden Cruze sedan. Ms Knapp told Mr Stevens that the reason they had to go somewhere else was because: "It's Chopsy, he's fucking cooked". Mr Stevens was driving the Cruze, and Ms Tongs was in the front passenger seat. Ms Knapp and Mr Price got into the left and right rear passenger seats, respectively. As they did so, Mr McStay was coming down the road towards Ms Ashby's home in his Holden Colorado ute.

26 Mr Stevens reversed out of the driveway and onto Hall Road. As he got to the road, he recognised the other vehicle as Mr McStay's. Mr McStay manoeuvred his ute to try to prevent the Cruze from moving out, but he failed. Instead, Mr Stevens managed to go around and past the ute. He headed up Hall Road and turned left onto O'Brien's Road.

27 Mr McStay did a U-turn and started chasing the Cruze. Mr Stevens reached speeds of up to 100 kph on O'Brien's Road, an unpaved road, in an effort to escape. Mr Stevens then turned right onto Koo Wee Rup-Longwarry Road.

28 Mr Price had been urging Mr Stevens to pull over, but Mr Stevens was concerned that Mr McStay would run him over, so he kept going.

29 Once on Koo Wee Rup-Longwarry Road, Mr Stevens accelerated to try to create a break between his car and Mr McStay's ute. At this point, Ms Knapp was on the phone to Mr McStay and had put the phone on loudspeaker. The conversation was heated. Ms Knapp threatened Mr McStay that she would tell his wife everything. Mr McStay said words to the effect of "do you really want to die".

30 Mr Stevens turned the Cruze right onto Heads Road in Yannathan in an effort to reach a nearby service station, where he thought he could pull over safely. At this point, he had reached speeds of up to 130 kph in an attempt to escape from Mr McStay.

31 During this time, Mr Stevens would tap the breaks to see if Mr McStay would go past him, but he remained right behind him.

32 By the time they reached the intersection of Heads Road and Caldermeade Road, the gap between the two cars had closed. Fearing Mr McStay would T‑bone their car, Mr Stevens continued down Heads Road.

33 Mr Price again urged Mr Stevens to pull over so he could confront Mr McStay about his behaviour.

34 Mr Stevens veered onto the wrong side of the road and hit his brakes hard in an effort to have the ute sail past him. However, Mr McStay continued to follow, so Mr Stevens took off again.

35 As they were nearing a T-intersection, Mr Stevens slowed the Cruze to a stop in the left lane. Mr McStay's ute was close behind and was slowing down but was still on the right-hand side of the road.

36 Within seconds, Mr McStay drove the ute towards the driver's side of the Cruze while it remained stationary. While his driving speed could not be determined by the accident reconstruction expert, it was not fast. As the ute neared the Cruze, Mr Price opened the car door and stepped onto the road. At about the same time, Mr Stevens opened the driver's door, but did not get out of the car.

37 The front left corner of the ute then clipped the right rear quarter panel of the Cruze. An instant later, the ute collided with Mr Price and the two open doors of the Cruze. Mr Price went up onto the left side of the bonnet of Mr McStay's ute briefly, and then fell under the vehicle. The accident reconstruction expert opined that Mr Price could have been on the bonnet for a distance of about seven metres, but no more. (I note at this point that, at a speed of 25 kmh, the vehicle would have covered seven metres in about one second.) Mr Price was dragged along underneath the ute for about 58 metres, at the end of which distance Mr McStay stopped. He then turned his wheel to the right and drove forwards. As he did so, Mr Price went under the left front wheel of the ute.

38 Mr McStay then drove away but, seconds later, turned and parked his ute about 250 metres from where Mr Price lay.

39 After the collision, Mr Stevens drove the Cruze closer to where Mr Price had come to rest. Ms Knapp got out of the car and approached Mr Price. She then returned to the group, telling them that Mr Price was "not good".

41 At 12:17 a.m., Mr McStay phoned Mr Pearson. During the call, Mr McStay said, "Pearo, I've fucked up, I'm sorry, what do I do? I don't know what to do. Fuck, what have I done?" He repeated this several times and also said, "I'm sorry Pearo."

42 Police officers from Pakenham were first on the scene, arriving at 12:25 a.m. Ms Knapp, Mr Stevens and Ms Tongs initially lied to police and claimed that Mr Price had been driving the vehicle. Mr Stevens was unlicensed, on bail and out past curfew. Ms Knapp was also on bail and out past curfew.

43 Paramedics arrived 12:31 a.m. and "called" Mr Price's death at 12:33 a.m. He had suffered catastrophic injuries. He was formally declared deceased at 12:45 a.m.

44 Uniform police officers from Warragul were next on scene. First Constable Bowen approached Mr McStay, who was visibly distressed. Mr McStay said, "I'm going to be in a lot of trouble; I've stuffed up."

45 On a breath test, Mr McStay registered a zero blood alcohol reading. He was arrested and taken to a police station.

46 It was later determined that Mr McStay's driver's licence had expired eight days earlier.

47 While at Casey Hospital, Mr McStay declined to take a blood test requested by police and medical practitioners.

48 Initially, Mr McStay was found unfit for interview. Later that day, he was declared fit, and an interview was conducted. Among other things, the specific allegation that he drove at Mr Price was put to him. In answer, Mr McStay said, "I doubt that has ever happened."

Mr Price's injuries and the cause of his death

49 An autopsy revealed fractures to Mr Price's skull, facial bones, right first rib and pelvis, and a fracture-dislocation of his left hip. There was haemorrhaging around his brain, transection of his brainstem, and air within his skull, the soft tissues of the neck and the right side of his heart.

50 The pathologist, Dr Young, said that the head and neck injuries were of such severity that he favoured his having been run over by the ute as the cause of death rather than simply being struck by it. Further, Dr Young opined that the fracture-dislocation to the left hip may have been sustained from impact with the front of the vehicle whilst standing, or from being run over by or dragged under, the vehicle. He also noted that there was evidence of abrasions with a brush-type appearance consistent with being dragged along a surface such as a road. He concluded that the cause of death was multiple injuries sustained in a motor vehicle incident.

51 I turn to the victim impact statements filed by members of Mr Price's family. They were written by Mr Price's father David Price; his sister Brooke Price; his brother Beau Price; and his sister-in-law Jessica Anne Trent.

52 Ms Churchill, who appeared for the Director of Public Prosecutions, read three of those statements to the Court. I have read all four again in chambers.

53 These statements make plain the profound grief and anger the family has suffered over the death of Mr Price. They have lost a son, a brother and a brother-in-law in circumstances amounting to a serious crime. It must be a terrible thing.

54 In so far as it is permissible to do so, I have had regard to these victim impact statements in considering sentence.

55 I wish to add this. I know that there is nothing this Court can say or do to salve, let alone heal, the grief and pain suffered by Mr Price's loved ones. The sentence I must impose is not a reflection of the worth of his life. It cannot be. For a start, such a precious thing is immeasurable, at least by a stranger. But, in any event, the sentence I must impose reflects many factors which I am required by law to take into account, only one of which is the impact on victims.

56 In the prosecution opening, it was said that the case on culpable driving is that Mr McStay failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case, by driving close to Mr Price and then, after striking him, continuing to drive whilst he was on the bonnet of the car and then underneath the front wheel of the vehicle.

57 Whatever might be inferred from that statement, Ms Churchill made several important points about the relevant sentencing facts. I note that each of these facts is one in respect of which it is accepted that the Director could not prove an aggravating factor beyond reasonable doubt, rather than necessarily a positive acceptance of the fact.

a) First, while Mr McStay deliberately drove his vehicle near the Cruze, he did not intend to clip it.

b) Secondly, he did not see Mr Price before his vehicle struck him. Indeed, it was unexpected that anyone would step out of the car.

c) Thirdly, however, while Mr Price could only have been on the left side of the bonnet of the ute for a very short time - probably less than a second - before he went under the vehicle, Mr McStay must have noticed him there.

d) Fourthly, Mr McStay did not know that Mr Price was thereafter under the ute being dragged along as he kept driving for 58 metres.

e) Fifthly, initially, I understood Ms Churchill to submit that, when he stopped, turned and drove over Mr Price with his front wheel, Mr McStay must have been aware that he was doing. Subsequently, however, I understood her to concede that he did not know that he had done this until immediately afterwards, or at least not until it was too late.

58 Ms Churchill also submitted that, in any event, Mr McStay must have been aware that he had struck a person almost immediately after his ute did in fact strike Mr Price.

59 Mr Edney, who appeared with Mr Tovey for Mr McStay, accepted all of these facts except one. In his submission, I should not be satisfied that Mr McStay was aware that, at the time it occurred, Mr Price was on the bonnet of the ute.

Disputed fact not determined at sentence indication hearing

60 I did not determine this disputed fact on the sentencing indication hearing. Instead, I gave the indication on the basis that the fact was assumed to be as submitted by Ms Churchill. Equally, however, as I said at the indication hearing, I was prepared to reconsider the issue on this plea in mitigation. Let me explain why.

61 First, while I was inclined to doubt that Mr McStay necessarily would have seen Mr Price on the bonnet, I was still undecided on this point and wished to hear further submissions about it before coming to a final view. However, I did not think that a sentence indication was the type of hearing at which I should be determining this particular factual dispute. That, I considered, should be done at a plea hearing, if it came to it. It may have been that further evidence on the issue would be led or pointed to; or it may not. It would be a matter for the parties.

62 Secondly, relevantly, s 209(1) of the Criminal Procedure Act 2009 (Vic) ("the CPA") provides that, if a court gives a sentence indication under s 207 and the accused pleads guilty to the proposed charge at the first available opportunity, the court, when sentencing the accused for the offence, "must not impose a more severe sentence than ... the maximum total effective sentence indicated". Thus, in order to comply with this requirement, I considered that I was required to assume the worst for Mr McStay on this fact in issue. If, at a plea hearing, I were to end up acting on the Director's position, then any sentence I could impose would be, without any tension, no more severe than I had indicated on the application. On the other hand, if the point ultimately were determined in Mr McStay's favour, then a lesser sentence might be imposed. I considered that that eventuality must be allowed by the provisions. In contrast, if I were to assume the disputed fact in his favour, but to think better of it at a plea hearing, the sentence previously indicated might be less severe than required in principle. That, of course, would be an unsatisfactory state of affairs.

63 Accordingly, on the sentence indication application, I acted on Ms Churchill's submission on this disputed fact.

65 Mr Edney submitted that, when regard is had to the important accepted facts outlined earlier, as well as the accident reconstruction expert's view that Mr Price was carried on the bonnet for a distance of only about seven metres (which would mean for only a second or so) and the fact that these events occurred in the dark, I should not be satisfied beyond reasonable doubt that Mr McStay saw Mr Price on the bonnet.

66 Ms Churchill submitted that, for a combination of reasons, after colliding with Mr Price and being aware that he had struck a person, Mr McStay must have been aware that he was on the bonnet, albeit briefly.

a) First, if Mr McStay was aware he had struck a person, then, presumably, from his own line of sight, he must have been aware immediately afterwards that a person was on the bonnet.

b) Secondly, while the duration of Mr Price's time on the bonnet was short, the area was illuminated by the headlights of both vehicles. In addition, the door of the Cruze was open and the interior light offered additional light to the area.

c) Thirdly, a photograph shows a dent where the ute collided with Mr Price, which is just off to the left of the centreline of the bonnet.

d) Fourthly, Mr Price was 180 centimetres tall and was standing when he exited the sedan. His body would have been well above the height of the bonnet and easily observed by Mr McStay. Further, the driver's seat of the ute had a high vantage point and would have provided an opportunity for Mr McStay to see Mr Price easily.

e) Fifthly, Mr Stevens described seeing Mr Price "trying to hang on" to the front of the ute.

f) Finally, the other occupants of the Cruze were able, from inside that vehicle, to observe Mr Price on the bonnet of the ute.

67 While I think it is likely - perhaps even highly likely - that Mr McStay saw Mr Price on the bonnet of the ute, albeit briefly, I am not satisfied of this fact beyond reasonable doubt. There are several reasons that bring me to this conclusion.

a) First, it must be remembered that, while the ute was travelling at a low speed, these events all happened very quickly and on a dark country road. There was only a brief and limited opportunity for Mr McStay to notice the hapless Mr Price.

b) Secondly, the period during which Mr Price was on the bonnet was so short that there was unlikely to have been any relevant contribution to the lighting by the Cruze. This is because he may have already fallen under the ute by the time its front was level with the front of the Cruze, where its lights might have illuminated the bonnet of the ute from the side. Further, since he was up against the bonnet immediately, and since there would have been only an instant between the collision and Mr Price coming off the bonnet, it is doubtful that the lights of the ute illuminated him in any meaningful way or for any more than an instant.

c) Thirdly, while it is true that the photograph suggests that the ute collided with Mr Price just to the left of the centreline of the bonnet, this does not mean that a driver, if looking straight ahead, would necessarily see Mr Price, particularly given the foregoing factors. Further, it is accepted that Mr McStay was not trying to clip the sedan, which may mean that he was not even looking in that direction. For all we know, at the relevant time, Mr McStay could have been looking away to the right or straight ahead, and/or Mr Price could have been in his blind spot.

d) Fourthly, Mr Price's height and the driver seat configuration of the ute are neither here nor there. Almost any person within the normal height range - which Mr Price was - could be seen from the driver seat, if looking in that direction. Thus, I think that these factors add nothing significant to the analysis.

e) Fifthly, as for Mr Stevens' account that he could see Mr Price "trying to hang on" to the front of the ute, that may be so. However, I would tend to doubt much of what was said by the others in the Cruze, including Mr Stevens. There are two reasons. First, each of them told lies, at least when first spoken to by police. Secondly, the Director already effectively conceded that Mr Stevens' account that Mr Price was on the bonnet for 40 metres was unreliable, as it was inconsistent with the evidence of the accident reconstruction expert (which was to the effect that it was only seven metres). This, I think, calls into question all of his disputed observations of the incident.

f) Finally, Mr McStay has made no admission that he saw Mr Price on the bonnet. Equally, he has not put on any evidence contradicting what is, I think, a reasonable inference that he must have seen him. But, of course, there is no onus upon him to do so. Instead, this, as a potentially aggravating factor, is something the Director must prove, and must do so on the criminal standard.

68 For the reasons I have given, I am not so satisfied. In particular, I find myself unable to exclude the hypothesis that, in the hurly-burly of this incident, Mr McStay did not in fact see Mr Price on the bonnet of the ute.

69 I should add this. While, initially, I was of the view that this disputed fact might be quite significant in determining the gravity of the offence, I raised with counsel the alternative view that, in the end, that might not be so. My point was that, in circumstances where it was conceded that Mr McStay was aware that he had struck a person almost immediately after that happened, the question whether he was also aware that Mr Price (or any person) was on the bonnet briefly might be thought to add little, if anything, to the gravity of his offence. This is because the principal feature of Mr McStay's moral culpability was in failing to stop immediately upon the realisation that he had stuck someone. Indeed, had he stopped straight away, the medical evidence suggests that Mr Price might have survived.

70 Ms Churchill submitted that, in addition to his awareness that he had struck a person, an awareness that that person was on the bonnet would elevate Mr McStay's criminality, albeit not into a separate category. It was, she submitted, just another factor capable of increasing his moral culpability in failing to stop immediately.

71 In the end, I do not think much, if anything, turns on the point. Mr McStay's moral culpability was set when he failed to stop immediately upon becoming aware that he had struck another person. While seeing a person on the bonnet would have driven home the need to stop, Mr McStay's acceptance of an awareness that he had struck another person fixes him with effectively the same level of moral culpability and legal responsibility for failing to stop immediately.

72 Another point of dispute between the parties was not a factual one but concerned the legal effect of given facts. At the sentence indication hearing, Ms Churchill submitted that Mr McStay's earlier driving was relevant to an assessment of the gravity of the offence, whereas Mr Edney disputed this. As I understood it, each party maintained his or her position on the plea in mitigation.

73 In particular, Ms Churchill submitted that, by engaging in the lead-up driving, Mr McStay placed all the occupants of the Cruze and other road users in danger. At times, he reached speeds of up to 130 kph and was driving erratically whilst angry and upset on the phone. The pursuit took place over a distance of about 12 km, including, in part, on an unpaved road. It was late at night and the roads were dark, illuminated only by the lights of the cars travelling along them. Mr McStay drove erratically, including continuing to chase the Cruze at high speeds and crossing onto the wrong side of the road. In Ms Churchill's submission, this was sustained and deliberate driving rather than inadvertence in both the lead-up to the collision and after the initial collision itself.

74 Mr Edney submitted that, while Mr McStay exceeded the speed limit, the driving he engaged in was not necessarily erratic or dangerous in and of itself. It did not include attempts to overtake the Cruze or any manoeuvres to make that car pull over or have any contact with it. Mr Edney submitted that, furthermore, unlike many examples of culpable driving causing death, the lead-up driving here can be seen as quite separate and distinct from the driving that brought about the offence. In his submission, lead-up driving is most readily used as an aggravating feature for this type of offending where that driving continues into a collision. Here, the collision did not involve the erratic driving or excessive speed that is said to form the lead-up driving. Rather, it occurred after both vehicles had come to a stop (or nearly so) and is characterised as Mr McStay driving too close to the Cruze and Mr Price and his failure to stop sooner after the initial collision. Mr Edney submitted that, while the lead-up driving may be demonstrative of the desire of Mr McStay to speak with Ms Knapp, and of his agitated state, it does not aggravate the offending.

75 It must be remembered that Mr McStay is not charged with, and therefore is not to be sentenced for, any offending that might be disclosed by his earlier driving. To the extent that the Director's submissions might be seen to trespass into that territory, they cannot be accepted. Further, my impression is that the subjective state of mind that might be argued to be demonstrated by the earlier driving would have had more relevance to proof of, and, if it came to it, also sentencing for, a more serious and morally blameworthy offence, such as murder[1] or manslaughter by unlawful and dangerous act. But, given that the culpable driving charge is based on negligence and that, in several important respects, inadvertence is conceded by the Director, much of that behaviour loses its relevance to sentence.

76 That said, I accept that the bad driving involved in the lead-up still places the charged driving offence in context, and is of relevance to sentence, in at least the following ways.

77 First, Mr Edney was right to say that there was a (very short) break between the two periods of driving. It is also true that the lead-up driving was characterised mostly by deliberate speeding and following, whereas the charged driving involved a low-speed manoeuvre involving gross negligence and inadvertence. Nevertheless, it cannot be said in mitigation that the negligent culpable driving arose out of an instance of momentary inattention. The prior driving forms an important part of the context to the charged offence. As I said at the sentence indication hearing, while it may not be a very sophisticated line of reasoning, it would seem wrong to treat this offence as if there were no bad driving in the lead-up. As I understood Mr Edney, he accepted that, were there no lead-up driving of this type, that would be a point of distinction in mitigation that might be made by the defence in such a case.

78 Secondly, whether it is regarded as an aggravating factor or an absence of a mitigating factor, the fact is that Mr McStay could have chosen to desist at any point during the 12 km of lead-up driving, but he did not do so. Instead, he persisted in his bad driving, and was still doing so at the time of the charged incident, albeit at a lower speed and in different circumstances.

79 Thirdly, but for Mr McStay's earlier behaviour in chasing the Cruze in an erratic and persistent fashion, it is hard to envisage Mr Price being motivated to get out of the car and confront him. Put another way, while Mr Price made his own decision to get out of the car and confront Mr McStay at an unfortunate moment, it is difficult to see that he would have had any cause to do so had the Cruze not been chased by Mr McStay in his ute. Thus, at least in that sense, but for his bad lead-up driving, the circumstances that allowed this offence to occur would not have existed.

80 I think that at least these considerations mean that Mr McStay's moral culpability for his offence of negligent culpable driving is higher than it would be had he not engaged in the bad lead-up driving.

81 While my reasons for accepting the relevance of the lead-up driving are, at least in part, different from those argued by Ms Churchill, I think that they may be regarded as making a roughly similar contribution to the instinctive synthesis.

82 Ms Churchill submitted that, in assessing the objective gravity of the offence, I should take into account the following considerations:

a) Mr McStay's driving caused catastrophic injuries resulting in the death of Mr Price.

b) He placed all the occupants of the Cruze, himself and other road users in danger.

c) At times, he reached speeds of up to 130 kph and was driving erratically while angry and upset on the phone.

d) The pursuit took place over a distance of about 12 km, including, in part, on an unpaved road.

e) It was late at night and the roads were dark, illuminated only by the lights of the cars travelling along them.

f) Mr McStay drove erratically, including by continuing to chase the Cruze at high speeds and crossing onto the wrong side of the road.

g) This was sustained and deliberate driving rather than inadvertence in both the lead-up to the collision and after the initial collision itself. After striking the Cruze and Mr Price, Mr McStay drove for a brief period with Mr Price on the bonnet and then for a further 58 metres with him under the vehicle.

h) He left the scene initially but returned shortly after and parked about 250 metres further up the road. He did not approach or offer any assistance to Mr Price or call emergency services.

83 Ms Churchill submitted that, taking these matters into account, this offence falls in the mid-range of objective gravity.

84 In making his submissions on the objective gravity of the offending, Mr Edney emphasised the following:

a) While Mr McStay, in an agitated state, deliberately drove his vehicle near the Cruze, he did not intend to clip it.

b) At that same moment, Mr Price left the vehicle intending to confront him.

c) Mr McStay did not see Mr Price before his vehicle struck him. Nor is there any evidence that he would have had any reason to believe that anyone would step out of the car at that point.

d) Within only a very short time after the collision (perhaps within a second), Mr Price was under the vehicle.

e) Given that this occurred suddenly, at night, and in poor light, it cannot be established that Mr McStay saw Mr Price on the bonnet.

f) Nor did Mr McStay know that he was under the vehicle.

85 Mr Edney conceded that it was an aspect of Mr McStay's gross negligence that, realising he had hit someone almost immediately, but without knowing that that other person was under the car, he failed to stop driving at that point, and thereby caused his vehicle to continue to drag Mr Price beneath it for 58 metres and then, at the end, to drive over him, albeit unknowingly.

86 In these circumstances, Mr Edney submitted that the offending in this case objectively falls a considerable distance below the mid-range of gravity. In particular, he submitted that, for these reasons, Mr McStay's moral culpability is somewhat less than that of offenders in many other cases of culpable driving.

Qualifications to submissions on objective gravity

87 Immediately, however, I note that Mr Edney's submissions assumed that the disputed fact - namely, that Mr McStay must have noticed Mr Price on the bonnet - was a matter of significance. For the reasons I have given, I do not consider that to be so. Of course, given my finding, the point has fallen away as an aggravating factor anyway.

88 Equally, part of Ms Churchill's submissions on objective gravity relied on some of the features of the lead-up driving that I think are either of no relevance or should not be taken into account as a matter of principle.

89 In the end, it might be thought that, when these allowances are made on each side, the parties' submissions on objective gravity are in substance closer together than they might appear to be at first blush, despite the different nomenclature employed.

90 I turn to the mitigating factors urged by Mr Edney, which included the following ten considerations:

b) Secondly, the plea of guilty came in circumstances where there was a viable defence to the charge of culpable driving causing death. (As I understood the submission, it was that, at the very least, an offence of dangerous driving causing death would have been a viable alternative.)

1. Thirdly, there should be a pronounced amelioration in sentence having regard to the fact the plea was entered in the midst of the pandemic.

d) Fourthly, Mr McStay is genuinely remorseful. So much is demonstrated by his reaction at the scene and the remarks made by his mother in her reference.

e) Fifthly, while Mr McStay has some older prior matters, he has no relevant prior criminal history.

f) Sixthly, he relies on the unusual circumstances of the offending, as discussed. They include the absence of any expectation by Mr McStay that Mr Price would step out of the car.

g) Seventhly, there has been a delay of over two years between the offending and any trial or plea and sentence. In addition to the strain of not knowing his fate for that period, Mr McStay has used his time wisely, about which I shall say more below.

h) Eighthly, the rehabilitation achieved by Mr McStay post-offence is considerable. Since being granted bail, he has moved away to another part of rural Victoria; has worked very hard to support his two young children; and has formed a new relationship. The references concerning his work ethic and his performance on bail are very impressive.

1. Ninthly, he spent over ten months in custody during the more restrictive conditions that have resulted from the pandemic, and his further time in custody (which he concedes is inevitable) may well be affected by similar conditions.

j) Finally, Mr McStay has excellent prospects of rehabilitation. The references only add to that view.

91 Ms Churchill did not dispute any of these matters in mitigation.

92 I accept all of them and, accordingly, have taken them into account.

C****OMPARABLE CASES AND CURRENT SENTENCING PRACTICES

93 As for referring me to comparable cases, Ms Churchill pointed out that, while she provided a table of sentences for culpable driving imposed under the standard sentence regime, which applies to the present case, none of those offences was similar to Mr McStay's. For example, in her estimation, most of those cases included drivers with high levels of methylamphetamine in their systems, or who had run red lights or driven at very high speeds, or perhaps all three. On the other hand, in her submission, cases which might more closely resemble the present case were charged as manslaughter, which would not be apposite comparators for a charge of culpable driving under the standard sentence regime.

94 Mr Edney agreed, although he pointed to a couple of cases in the table which he thought might assist. As I remarked at the time, it struck me that those two cases were inapposite comparators as well.

95 All of that said, I have had regard, in a general way, to the sentences in the table in an attempt to gauge current sentencing practices for this offence under the standard sentence regime. I note that the individual sentences in the table ranged from nine-and-a-half, to nine, to eight-and-a-half, to eight, to seven-and-a-half, to seven, to five, and to three years' imprisonment. Most of those sentences were clustered around nine, eight and seven years' imprisonment.

96 In having regard to these sentences, I bear in mind that current sentencing practices are but one factor among many to which regard must be had in considering sentence. In the end, each sentence must be determined according to its own facts and by the application of the relevant sentencing principles and purposes.

97 I also had regard to the sentences in the table for the purpose of considering the ways in which various aggravating and mitigating factors are treated, and the ways in which other matters of principle are applied, in cases of culpable driving. For the same purpose, I also had regard to other cases involving the causation of death by driving - whether charged as culpable driving or as manslaughter - that do not involve the standard sentence regime.

98 Among the statutory considerations to which regard must be had is the maximum penalty for culpable driving, which is 20 years' imprisonment.

99 Another is the standard sentence, which is eight years' imprisonment.

100 When sentencing for a standard sentence offence, a judge must take the standard sentence into account as one of the factors relevant to sentencing. As the Court of Appeal explained in Brown v The Queen,[2] this requirement:

• is to be treated as a legislative guidepost, having the same function as the maximum penalty;
• does not affect the established instinctive synthesis approach to sentencing;
• does not require or permit two-stage sentencing; and
• does not otherwise affect the matters which the court may, or must, take into account in sentencing.

101 I have given weight to the sentencing purposes that routinely have prominence in cases of culpable driving, including general deterrence, denunciation and just punishment. It is essential to recognise that this offence involves the death of another human being and the palpable grief that inevitably is caused to the loved ones left behind. While this is an unusual instance of culpable driving - unique, really - general deterrence is still an important sentencing purpose. Further, the gross negligence inherent in such an offence, when it results in death, must be denounced and result in punishment that is just in all the circumstances.

102 On the other hand, given Mr McStay's plea of guilty, remorse, limited criminal history and excellent prospects of rehabilitation, I do not think much weight needs to be given to specific deterrence or protection of the community. I think there is very little chance that Mr McStay would reoffend in the same or a similar manner.

103 Given those same factors, I have given significant weight to the purpose of rehabilitation, especially given that his prospects are so strong.

104 I have also sought to apply the fundamental principle of parsimony in reaching the sentence I am about to impose. The principle is reflected in s 5(3) of the Sentencing Act 1991 (Vic). In particular, it must not be forgotten that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.

105 Next, I turn to the sentence indication I gave previously.

106 As I said at the sentence indication hearing, I found this particular offending hard to place on the spectrum of gravity of offences that amount to culpable driving causing death. It is, as I think both parties accept, quite different from the vast majority of instances of culpable driving.

107 In my view, an important factor going to the gravity of the offence was Mr McStay's realisation, perhaps within seconds of the collision, that he must have struck a person.

108 That said, while the offence necessarily is serious, I think that, even allowing fully for all matters in aggravation, the following factors place this offence of culpable driving at a lower level of seriousness than many instances of that offence, including the vast majority of those in the table of sentences imposed under the standard sentence regime:

1. the absence of any intention to collide with the Cruze;

2. the absence of any expectation that a person would step out of the car at the crucial moment;

3. the absence of any knowledge that Mr Price (or any other person) was outside the Cruze prior to impact;

4. the absence of any knowledge that Mr Price (or any other person) fell under the ute or remained there as he continued to drive or when he turned and in fact drove over him;

6. the absence of any evidence of drugs or alcohol.

109 All of that said, I was, and am, persuaded that this instance of culpable driving, while unique, falls within what might be described as the broad mid-range of gravity. To that extent, I think Ms Churchill's submission on the objective gravity of the offence is pretty close to the mark.

110 In the end, balancing these and all other matters as best I could, I indicated, pursuant to s 207 of the CPA, that, were Mr McStay to plead guilty to culpable driving causing death, I would be likely to impose a "specified maximum total effective sentence" of imprisonment for six-and-a-half years.

111 As I read the relevant provisions, the sentence indication given was only a ceiling on the head sentence that may be imposed if a plea of guilty were entered to the proposed charge. It was not a floor. That stands to reason. While it might not be very common, I could imagine any number of things that might occur between a sentence indication and a plea and sentence that could cause a judge to impose a less severe sentence than indicated, to a greater or lesser degree.

112 In this particular case, I considered that, depending upon the resolution of the factual dispute I mentioned earlier, or any further evidence I might hear on a plea in mitigation, it was possible that the head sentence actually imposed might be shorter than I indicated. Equally, it might be no different. I could not say at that point. The only thing I could say for certain was that the head sentence must not, and therefore would not, be more severe than I indicated it would be.

113 Having now heard the plea in mitigation and the further submissions of the parties, I see no cause to impose any different head sentence. Thus, balancing all matters, Mr McStay will be sentenced to six-and-a-half years' imprisonment.

114 At the sentence indication hearing, I did not indicate a non-parole period, as I did not consider that s 207 of the CPA authorised me to do so. I did, however remark that, on the material I had seen until that point, there would be a sound basis for fixing a substantial gap between the head sentence and the non-parole period. As it happens, I maintain that view.

115 In saying this, I recognise that, by force of s 11A(4)(c) of the Sentencing Act 1991 (Vic), because culpable driving is a standard sentence offence, I am required to fix a non-parole period of at least 60 percent of the head sentence, unless I consider it in the interests of justice not to do so.

116 I received helpful submissions from the parties on this provision. I shall not rehearse those submissions here, other than to say that it was accepted that a range of considerations must inform the question whether it is interests of justice not to do so.

117 A curious feature of this case, however, is that Mr McStay might properly have pleaded guilty instead to manslaughter by criminal negligence, which, at least in so far as the elements are concerned, is effectively the same offence as culpable driving by gross negligence. Had he taken that course, that offence would have carried the same maximum penalty as culpable driving but would not have been subject to the standard sentence regime. Accordingly, I would have been free to impose the non-parole period without the fetter, such as it is, imposed by s 11A(4)(c). Equally, there would be no standard sentence of eight years' imprisonment to consider. Yet, generally speaking, manslaughter would be considered a more serious conviction to have than culpable driving.

118 A non-parole period of 60 percent of a head sentence of six-and-a-half years' imprisonment would be just under four years, or about three years and eleven months. I do not consider that a non-parole period of that order, or any heavier non-parole period, would be appropriate in this particular case.

119 Instead, in my view, there is a range of factors that, collectively, warrant a small departure from the floor in the non-parole period required by s 11A(4)(c). Those factors include the circumstances of this offence of culpable driving, the lesser weight to be accorded to specific deterrence and community protection, Mr McStay's plea of guilty and remorse, his excellent prospects of rehabilitation, and the other relevant sentencing purposes.

120 More formally, I consider that it is interests of justice to fix a non-parole period of three-and-a-half years. And I do.

121 Section 6AAA of the Sentencing Act requires that I declare the sentence and non-parole period I would have imposed had Mr McStay pleaded not guilty to culpable driving but been found guilty of that offence. This is always a difficult task, if only because pleas of guilty and not guilty tend to affect other considerations, including remorse and an offender's prospects of rehabilitation.

122 Doing the best I can, I estimate that, had Mr McStay pleaded not guilty to, but been found guilty of, culpable driving, I would have imposed a sentence of about eight-and-a-half years imprisonment with a non-parole period of about five-and-a-half or six years.

123 I declare that Mr McStay has served 311 days of pre-sentence detention.

124 This offence attracts a mandatory licence disqualification for a minimum period of 24 months. It would not be conducive to Mr McStay's eventual rehabilitation, and would therefore be counterproductive for both him and the community, if he were unable to drive a vehicle after his potential release on parole. Given that he has already spent ten months in custody, I will order that Mr McStay's driver's licence be cancelled, and that he be disqualified from obtaining another, for 24 months.

125 I also make the disposal order sought by the Director, which was unopposed.

[1] Mr McStay was originally charged with murder.

[2] Brown v The Queen [2019] VSCA 286; (2019) 59 VR 462 at 464-465[4].