R v Smith [2006] VSCA 92

Mr S Carisbrooke, Acting Solicitor for Public Prosecutions

1 I have had the considerable advantage of reading in draft the reasons for judgment of Ashley JA. I agree with his Honour that, for the reasons he gives, the applications for leave to appeal should be refused.

Statement of the case

2 The applicant, Michael Graham Smith, was found guilty at the County Court at Wangaratta on 13 April 2005 of a count of culpable driving. At the same time he was acquitted of a count of negligent driving causing serious injury. On 27 April he was convicted and sentenced to five years' imprisonment with a non-parole period of three years. Now he seeks leave to appeal against conviction and sentence.

3 Three grounds are relied upon in connection with the conviction application:

1. That it was not open to the jury to find that the driving of the applicant on the subject occasion amounted to negligent driving.

2. That the verdict of the jury was unsafe and unsatisfactory.

3. That the verdict of not guilty returned on the count of negligent driving causing serious injury was inconsistent with the verdict of guilty on the count of culpable driving.

4 Seven grounds are set out in support of the sentence application. Three of them were relied upon in written submissions filed on the applicant's behalf. But only one, in substance, was the subject of oral argument - that is, that the sentence imposed was manifestly excessive. Other grounds, most particularly Grounds numbered 3, 4, 5 and 6,[1] were said by applicant's counsel to particularize, or explain, why the sentence was manifestly excessive.

5 As to what was comprehended by "manifest excess", counsel for the applicant first focused upon the head sentence - which he submitted was unarguably too high. Later in argument, he submitted that the non-parole period was too great, even if the head sentence should not be considered manifestly excessive. Counsel for the Crown did not oppose consideration by the Court of the latter submission, notwithstanding that it was not the subject of a discrete ground in support of the application concerning sentence.

The circumstances

6 The fatal collision occurred not long before 7.30am on 18 April 2002 on the Back Eildon Road, which runs between Eildon and Alexandra. It is a sealed road, the seal being a little more than five and a half metres in the near vicinity of the point of collision. The distance between Eildon and Alexandra is about 26 kilometres. The collision occurred about six kilometres from Eildon. The applicant was driving a Ford sedan south-west towards Alexandra. Derek Hunter was a passenger in his vehicle. The applicant and Mr Hunter were employees of Mr David Hollis. They were due to start work at Alexandra at around about 7.30am. On a straight stretch of road, whilst overtaking a vehicle driven by Carol Keddell, and thus whilst his vehicle was travelling on its incorrect side of the roadway, the applicant's vehicle collided with a Toyota utility vehicle being driven in the opposite direction by Gregory Gilmore. Mr Hunter was killed in the collision. Mr Gilmore, and a passenger in his vehicle, Glen Creighton, were injured. The speed of the applicant's vehicle as it passed Ms Keddell's vehicle was probably in the order of 90-95 kph. The speed of Mr Gilmore's vehicle shortly before the collision was probably about 80 kph. It appears that each of the applicant and Mr Gilmore took evasive action very shortly before the impact. Specifically, the applicant swerved his vehicle to the right, and Mr Gilmore swerved his vehicle to the left. The point of collision, according to the investigating police officer, was probably just north of the northern edge of the bitumen surface. The point of impact on each vehicle was, it seems, the front passenger side.

7 Thus far, one would probably think that the collision was the consequence of a tragic miscalculation on the applicant's part, not one involving negligent driving of the quality necessary to establish culpable driving[2] - the prosecution having advanced a case founded upon negligent driving. But according to the prosecution, the critical circumstance was that it had been very foggy at and in the vicinity of the point of collision. The speed of the applicant's vehicle, in the circumstances, had been too great. Further, and critically, conditions had been such that to attempt to overtake another vehicle was to do something fraught with great danger. There could not have been sufficient time to see and respond to the threat posed by an oncoming vehicle. The evidence showed that it could have been anticipated that there would, or might be, oncoming vehicles. The fact that the road was straight at and in the near vicinity of the point of collision did not gainsay the wholly unacceptable risk taken by the applicant. There was a high risk of death or serious injury, if vehicles travelling in opposite directions on an open country road collided. The applicant's driving had fallen greatly short of the care that a reasonable driver would have exercised in the circumstances.

Conviction

Grounds 1 and 2

8 Counsel for the applicant argued Grounds 1 and 2 together. The gist of his submission was that the applicant's conduct showed no more than a want of reasonable care as would make out a civil claim laid in negligence. Counsel pointed to a number of circumstances which were essentially uncontroversial: his client had not been affected by alcohol, or illicit, or prescription drugs at the time. The collision had occurred on a straight stretch of roadway in the course of a simple overtaking manoeuvre. The applicant had not engaged in wild or dangerous driving leading up to the collision. There had been no problem with the tyres of the applicant's vehicle as could have affected his ability to react to the situation which developed. It had been accepted by the prosecution that each of the applicant and Mr Gilmore had taken (appropriate) evasive action.

9 The circumstances thus highlighted by counsel really skirted the main issue. That takes me to his submissions concerning speed and fog. As to the former, he argued that, on the evidence, his client's vehicle had not been travelling much faster than other vehicles on that stretch of roadway at that time. As to the latter, counsel accepted that there had been evidence that visibility had been reduced by fog, albeit that there was some variation in such evidence; and he accepted that the jury could properly have decided that reduced visibility had created a "blind spot" when the applicant overtook the overtaking manoeuvre. But he submitted that to undertake such a manoeuvre did not bespeak negligence of the quality required to make out a case of culpable driving.

10 It must be accepted that not every fatal collision which is attributable to negligent driving bespeaks negligent driving of the quality necessary to establish the offence of culpable driving. The tragic circumstance that a death occurs on the roads does not oblige a finding of criminal responsibility. R v Mitchell[3] exemplifies the point. The situation is analogous to that which arises in civil claims for injury or death founded in negligence. In the criminal, as in the civil, context, beware the wisdom of hindsight; and beware the reasoning that for every tragedy there must be a remedy - be it a finding of criminal responsibility, or an award of damages.

11 Against that background, I am nonetheless satisfied that it was properly open to the jury to find the applicant guilty of culpable driving constituted by negligent driving; and that, applying M v The Queen[4], the verdict of the jury to that effect was not unsafe or unsatisfactory_._ That is so because, although the applicant was driving within the speed limit, and not much faster than other traffic in the near vicinity, his conduct in attempting to overtake Ms Keddell's vehicle was - in the circumstances of reduced visibility - dangerous in the extreme.

12 A great deal of evidence was given about the state of visibility at and about the time of the collision. So, evidence was given by Mr Gilmore, Mr Creighton, Ms Keddell, and, through a record of interview, by the applicant. Others who were driving in the vicinity at the time, or who attended the accident scene not long afterwards, also gave evidence about the matter. Estimates of visibility at the critical time, measured in metres, varied somewhat. But three things were clear. First, the fog was thick at the critical time and place. Second, it much affected visibility. Third, it was not a sudden patch of fog. That is, the applicant had been driving through fog for a considerable distance before the collision occurred.

13 I should only refer to a little of the evidence, so as to convey its flavour. Toni Ward described the fog as "pretty heavy". It got heavier as she continued along the road after the applicant had earlier passed her vehicle. She could still see at least a car's length ahead of her. She drove past the accident scene without seeing the vehicles which had been involved in the collision. Her attention was only attracted to the incident by seeing Ms Keddell's stationary car, partly on and partly off the bitumen surface of the roadway.

14 Ms Keddell described the fog as a "pea souper". She had the headlights of her vehicle burning. She was travelling at maybe 80 kph, "because the conditions were so bad". As the applicant's vehicle overtook her vehicle she saw "the oncoming vehicle...almost beside" her. Asked whether there was a reason why she couldn't see it, she replied "the fog was too thick to be able to see any distance." Asked, as an experienced driver, whether she would have overtaken another car in the circumstances that existed that morning, she replied that she would not have done so. In cross examination, she estimated that she could see "maybe two car lengths" in front of her.

15 Mr Gilmore described the fog in the vicinity of the point of collision as being very thick. He was travelling at below the speed limit because he couldn't see properly by reason of the fog. "Probably about one second" before the collision, he saw the applicant's vehicle. He denied having had time to take evasive action. At the time, the headlights of his vehicle were on.

16 Mr Creighton described visibility, at a point a little south-west of the collision, as being "down to a minimum." It "was poor, it was terrible". When he first saw the applicant's vehicle it was "probably about eight feet in front of [their vehicle] on the wrong side of the road". There was no time to do anything before the collision occurred.

17 The applicant described the collision this way:

"I was overtaking a car...I got beside the car and just about to overtake it, then all of a sudden there was two heads looking at me and so I've swerved off the road into the paddock to miss [them], and as I've done that they've done exactly the same, sort of into the path."

"I remember seeing no lights just two heads, so I don't even know if they had headlights on or not."

He could not remember seeing any [head] lights.

19 Asked how far he could see ahead of him when he went out to overtake Ms Keddell's vehicle, the applicant made an estimate which translated into a distance of something between 60 and 100 metres.

20 Later in his record of interview, the applicant gave a more definite account concerning the headlights of Mr Gilmore's vehicle:

"I could see it, if the car was coming, I could see it, but that's what I'm saying I couldn't see him, cause I don't think he had any lights on. That's the only way, cause when I got out there was no light or nothing, just two heads looking at me in a big green four wheel drive, green or blue or what ever it was."

"When I've seen him I've seen him a fair way and I've turned off the road but he's come up and he's got close and then he's decided to turn off.....whether he was going too quick or not."

21 A number of persons either drove past the collision scene, or attended the scene, in the period of a half hour or so after the occurrence of the collision. All of them gave evidence about the extent of the fog, and its impact upon visibility. The evidence did not speak with complete unanimity. Unsurprisingly so. Perceptions naturally varied to some extent, and it seems also that the fog lightened after a time. But the import of the evidence, overall, was such as to emphasize the likely extent of interference with visibility at the critical time.

22 There was conflicting evidence whether the headlights of Mr Gilmore's vehicle were burning at the time of the collision. The evidence of Mr Gilmore, supported by the evidence of Mr Creighton, was that they were. The applicant's account, increasingly, was that they were not. Several witnesses gave evidence of seeing the offside headlamp still burning after the collision.[5] The jury was plainly entitled to conclude that the evidence of Mr Gilmore, Mr Creighton, and the post-accident witnesses was correct.

23 The investigating police officer, Senior Constable Peters, gave evidence that a driver's average reaction time is two seconds, that a vehicle travelling at 80 kph covers 22.4 metres per second, and that a vehicle travelling at 90 kph covers 25.2 metres per second. That evidence bears upon the extent of likely impairment of visibility; but it also bears upon the extent of the risk which the applicant took in attempting to overtake Ms Keddell's vehicle.

24 The evidence was persuasive that, contrary to the evidence of Mr Gilmore, he had in fact taken some evasive action immediately before the collision - as had the applicant. Even if the reaction time of each of Mr Gilmore and the applicant had been very quick - say one second - it follows - if one assumes that the two vehicles were travelling at an average 80 kph - that they must have been more than 60 metres apart when each driver caught sight of the other's vehicle, or its headlights.[6] That is so because each driver in fact took some evasive action. If, on the other hand, the average speed of the two vehicles was 80 kph, and each driver had average reaction time, then the vehicles must have been a little more than 100 metres apart when each driver first saw the other vehicle, or its headlights. So, as it seems to me, the perception of each driver that he first saw some indication of the existence of the other vehicle only when very close to the point of collision,[7] was understandable, but not strictly accurate.

25 It is probable that, because of the fog, neither driver was able to see the other vehicle, or even its headlights, until the distance between such person and the other vehicle was in the order of 100 metres. The intervening distance could have been as little as about 60 metres. In either event, the limitation upon visibility was very severe for the driver of a vehicle travelling, as the applicant asserted was the case with his vehicle, at 90 or 95 kph. If a vehicle was approaching, even at 70 kph, the vehicles were closing at about 45 metres per second. It is obvious indeed that it would be impossible to overtake a vehicle which was travelling at only a slightly lesser speed without venturing onto the incorrect side of the roadway for a distance which was beyond the distance of available visibility.

26 It may be said that there was no evidence that the applicant knew anything about average reaction times; or about how many metres per second a vehicle travels at 80 or 90 kph. But the question is whether the applicant's conduct

"involved such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances, and involved such a high risk that death or serious injury would follow, that the driving causing death merited criminal punishment".[8]

The analysis which I have just undertaken in essence confirms what would have been apprehended by a reasonable driver at the time; that, as Ms Keddell personalized it, she would not have overtaken another vehicle in the circumstances then obtaining. The reasonable driver would think that to attempt to overtake, as the applicant did, was to engage in a form of Russian roulette. If there was an oncoming vehicle, collision, at speed, was virtually guaranteed; with a high risk of death or serious injury. If the reasonable driver should be taken to be a person conversant with the roadway on which the fatal collision occurred, conversant with the potential for oncoming traffic revealed by the evidence, and familiar with the fog which sometimes affected driving conditions in that area,[9] then it could only have been worse for the applicant's case.

Ground 3

27 It was common ground between the parties that the negligence necessary to make out Counts 2 and 3 on the presentment was the negligence necessary to make out the count of culpable driving. That is how the learned trial judge charged the jury.

28 The jury gave a directed verdict of acquittal on Count 3 because, as the judge concluded, it was not open to it to be satisfied that Mr Creighton's injuries constituted serious injury.

29 The jury acquitted the applicant on Count 2, which alleged that the applicant's relevantly negligent driving had caused serious injury to Mr Gilmore. According to the applicant's submission, there was necessary inconsistency between the verdicts on Counts 1 and 2 because -

• Issue was not taken at trial against a conclusion that Mr Gilmore had suffered serious injury.

• The required negligent conduct was the same.

• The verdicts were only returned after considerable deliberation by the jury, and after the learned trial judge had given a "Black" direction.

30 For the Crown, counsel submitted that there was no necessary inconsistency. Albeit that the question of serious injury had not been the subject of "real argument" in the closing address of counsel for the applicant at trial, serious injury had not been conceded. The judge had charged the jury in respect of that issue, which remained a live issue at trial's end[10]. Further, the jury had considered the question against the background that it had been directed to acquit the applicant on Count 3 because, as the judge concluded, it could not be satisfied that Mr Creighton had suffered serious injury. The jury was likely to have considered Count 2 by comparing the injuries suffered by the two men. It might well not have been satisfied that Mr Gilmore had suffered serious injury. Alternatively, the verdict of not guilty in Count 2 may have been a merciful verdict.

31 The test whether verdicts are necessarily inconsistent is not in doubt. The principles were usefully summarized, if I may respectfully say so, by Chernov, JA in R v DFA,[11] where his Honour said this:[12]

"It is for the applicant to satisfy the Court that the verdicts are inconsistent and cannot stand. The test for determining if the verdicts are so flawed is one of logic and reasonableness. If no reasonable jury applying their mind properly to the facts of the case could have arrived at the conclusion, ordinarily the verdicts cannot stand. Such affront to logic and commonsense would strongly suggest inconsistent verdicts - MacKenzie . But in considering whether the verdicts of the jury should be set aside on the basis now under consideration, it is important to keep in mind that courts have consistently said that, ordinarily, the resolution of factual issues was solely within the province of the jury and the courts should be slow to deny the efficacy of their decisions. Thus, for example, Gaudron, Gummow and Kirby, JJ. said in MacKenzie:

'Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way in which the appellate court may reconcile a verdict, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellant court, upon this ground, to substitute its opinion of the facts for one which was open to the jury'.

Similarly, in this context, it is also necessary to have regard to the well known and often cited passage in the judgment of King, C.J. in R. v. Kirkman:

'[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.'"

32 In the present case, I am by no means satisfied that the verdicts on Counts 1 and 2 were inconsistent. Notwithstanding that "serious injury" was not agitated in the closing address of counsel for the applicant at trial, the issue was not conceded. The learned judge directed the jury that -

"It is for you to say whether any injury you find was in fact caused justifies a description of a serious injury. You have to determine whether the injury which is involved in this case is to be classified as a serious injury. You should be aware that for this purpose there are only two classes of injury, namely injury and serious injury. There are no other classes such as a very serious injury or extreme injury or anything else. There are only injury and serious injury.

At one end of the spectrum of injury is a bruise or a grazed knee or a cut requiring a band aid. At the other end of the spectrum there are quadriplegia, total blindness, permanent brain damage and injuries of that kind. Accordingly, you have to consider where the injury in this case falls on that spectrum and determine whether the injury justifies the description of a serious injury, and in doing so you are entitled to have regard to the cumulative effect of a combination of a number of separate injuries.

Mr Gilmore, in his evidence, said that he suffered a fractured hip socket, his left hip socket, a dislocated hip, a jarred knee, an injured ankle and cuts and abrasions. He was in hospital for two and a half weeks and for one month he used a walking frame and crutches but he has been advised that it is possible that in the future as a result he will require a hip replacement operation and that his work operating generators, which involves a lot of climbing apparently, has had an impact on his knees and his ankles, and Dr Taylor gave you evidence that she saw him on 18 April 2002 at Maroondah Hospital and she confirmed the fractured disc [sic] to his left hip, that this was relocated under full anaesthetic and that she did not give him any further treatment and that he was subsequently referred to a hip surgeon.

Members of the jury, that is a summary of the allegations. It is for you to determine whether those injuries fall into the category of a serious injury or whether the cumulative effect of those injuries is simply an injury rather than the serious injury. That is an issue for you to determine."

It was not suggested, and it was not the case, that the learned judge misdescribed Mr Gilmore's injuries, their past effect upon him, or their possible future effect.

33 Those injuries, and those effects, most people would think, were more extensive than the injuries suffered by Mr Creighton. The latter, his Honour directed the jury, could not entitle a finding of serious injury. But Mr Creighton's injuries, and their consequences, according to evidence which the witness gave - his Honour did not refer to all the evidence in his ruling, but the jury heard it - were not inconsequential. So, Mr Creighton gave evidence that he had suffered a badly blackened eye, lacerations to his forehead and cheeks, a bruised chest and an indeterminate neck injury.[13] He had been in hospital overnight, and four weeks off work. For some period he had taken painkillers for his chest injury. As at trial his chest still "rattle[d] a bit" at nights, and he took medication "for that". Further, he thought that his eyesight had deteriorated since the collision.

34 I think that the jury was probably not satisfied that Mr Gilmore's injuries should be described as "serious injury". Such a conclusion, in my view, was properly open. It is not to the point that another jury, or I, would, or might, have reached a conclusion that Mr Gilmore's injuries met the required description. I add that whilst it was for the jury to reach a discrete conclusion in respect of Mr Gilmore's injuries, it may be that it made some comparison between the injuries suffered by Mr Gilmore and Mr Creighton, and kept in mind the judge's ruling as to the latter. This Court cannot know whether the jury did so. It is unnecessary to consider whether such a reasoning process would have been wrong.

Sentence

35 The learned judge below described the gist of the offence committed by the applicant this way:

"A good deal of emphasis at trial, and again on your plea, was placed on the fact that you were driving in a hundred kilometre per hour zone. There was no direct evidence as to your speed as you attempted to overtake the second vehicle. The evidence that I have just referred to and the jury verdict both indicate that your manoeuvre at that time was grossly negligent. The legal speed limit has little relevance in the context of the heavy fog that obscured your vision at the time."

36 That, with respect, was a fair summation why the applicant was rightly found guilty of culpable driving.

37 His Honour noted that the offence of culpable driving is one of "the more serious offences in the criminal calendar". He said this:

"The injury and destruction caused by grossly negligent driving of the type alleged in this trial is of considerable concern within the community. The deterrence of you and other members of the community is of primary importance".

38 Unarguably, as this Court has often said, general deterrence is an important sentencing consideration in the case of the offence of culpable driving. Special deterrence is a more problematic consideration, depending upon the circumstances of the offender. The applicant had no relevant prior convictions, as his Honour recognized. Special deterrence, in my opinion, should not have loomed large in this particular case. So much was conceded by counsel for the Crown on the appeal.

39 His Honour noted that the applicant was aged 27 at the time of trial, that he had some prior history of criminal offending unrelated to motor vehicles, and that he had not previously been sentenced to immediate custody. Those matters were true.

40 The judge noted that the applicant had the continuing support of his natural parents and his step-father; and that "a large number of relations had attended the plea hearing" and were in attendance at time of sentence. This reflected the circumstance that the applicant had considerable family and community support; a circumstance, together with the continuing support of his fiancée, which told in favour of his prospects of rehabilitation.

41 The judge further noted that the late Mr Hunter, whom he described as being married, and having a young daughter aged eight at the time of trial, had been a close friend of the applicant; and that the applicant had provided the lady and her child with practical and emotional support since the accident. In fact, Mr Hunter had lived in a de facto relationship; and his daughter was not aged eight at the time of trial. But these were inconsequential misdescriptions.

42 The applicant's close friendship with Mr Hunter, according to his Honour, had been a significant factor in the applicant responding to the events by developing post-traumatic stress disorder. But that condition, as at trial, had resolved, or very nearly so.

43 In my opinion the learned judge's sentencing remarks show, explicitly or implicitly, that he took into account the nature and particular circumstances of the offence, the importance of general deterrence, the substantial irrelevance of the applicant's past convictions, the applicant's prospects of rehabilitation, - which, as counsel for the Crown conceded on the appeal, were "a strong plus for this man" - and the applicant's remorse. His Honour might have said more than he did, in connection with the applicant's prospects of rehabilitation, about the applicant's strong work record, as revealed by the evidence. But that would only have served to underline a conclusion which the judge implicitly reached in any event. Remorse, I should say, was implicit in the support given by the applicant to the partner and child of the deceased, a circumstance mentioned by the judge. It was not the less, in the circumstances of the particular case, because the applicant went to trial.

44 Evidently, this was not a bad instance of the serious offence of culpable driving. The applicant was unaffected by alcohol or other drugs. The fatal incident was not the culmination of a course of wild or erratic driving. Speed, in absolute terms, was not a factor. Rather, the culpable conduct involved a single act of extremely hazardous driving, which carried with it a high risk of death or serious injury. Such conduct fell greatly short of the care which a reasonable road user would have exercised in the circumstances.

45 Again, the applicant's relative youth, his generally favourable antecedents, his remorse, and the circumstance that specific deterrence did not have much of a role to play in the sentencing exercise, told in favour of a relatively lenient sentence. That is so notwithstanding that such ameliorating factors are often enough present when a driver commits this particular offence.

46 As has frequently been remarked, the maximum penalty for culpable driving has been substantially increased from time to time over the years. Sentences passed at trial or imposed upon appeal in more recent years have distinctly reflected that circumstance.[14] Set in the context of the sentencing landscape, I think that the

sentence imposed upon the applicant, both as to head sentence and non-parole period, significantly reflected the fact that this was not a bad instance of the offence; and reflected also the ameliorating factors which ran in the applicant's favour. Counsel for the applicant submitted that in all the circumstances a sentence of four years with a non-parole period of two years represented the point beyond which a sentence must be accounted manifestly excessive. Counsel for the Crown, when pressed, did not submit that, had a sentence of four years with a non-parole period of two years been imposed, it must have been accounted manifestly inadequate. But it is one thing to accept, as I do, that in all the circumstances of this case the applicant could properly have been sentenced to a somewhat shorter period of imprisonment. It is another thing to conclude that the sentence which was imposed was manifestly excessive. I cannot accept that such was the case, either as to the head sentence or the non-parole period.

Orders

47 I would dismiss the applications for leave to appeal against conviction and sentence.

[1] "3. That the learned Trial Judge erred in law by placing excessive weight on the appellant's previous convictions.

4. That the learned Trial Judge erred in law in failing to give any or any sufficient weight to the evidence of the victim's former partner.

5. That the learned Trial Judge erred in law in failing to give any or any sufficient weight to the evidence of the applicant's fiancé and the applicant's family members as to support and inter-familial counselling available and as to its success in dealing with the applicant's depression and introversion.

6. That the learned Trial Judge erred in law by failing to give sufficient weight to the issue of remorse."

[2] See s.318(2)(b) Crimes Act 1958 and R v De'Zilwa [2002] VSCA 158; (2002) 5 VR 408 at 423, [46] per Charles, JA.

[3] [2005] VSCA 304.

[4] [1994] HCA 63; (1994) 181 CLR 487 at 493 per Mason, CJ, Deane, Dawson and Toohey, JJ.

[5] The near side front of Mr Gilmore's vehicle, it will be remembered, had been damaged in the collision.

[6] Or, improbably, the heads of the occupants of the vehicle.

[7] Remembering that the applicant gave a somewhat different account late in his record of interview.

[8] De'Zilwa at 423, [46] per Charles, JA.

[9] As was the applicant in fact.

[10] Counsel for the Crown agreed that the charge as to serious injury, apparently taken out the Charge Book, was not very helpful. But there was no complaint about the charge on this appeal.

[11] [2001] VSCA 197.

[12] Citing MacKenzie v The Queen (1996) 190 CLR 348 - see particularly at 366-368 per Gaudron, Gummow and Kirby, JJ and R v Kirkman (1987) 44 SASR 591 at 593 per King, CJ, cited with approval by their Honours in MacKenzie at 367-368.

[13] Damage to his thoracic spine, seen on x-rays, was apparently longstanding, and probably unaffected by the collision.

[14] The highwater mark is the recent re-sentencing of an offender, on appeal, to 12 years imprisonment with a non-parole period of nine years. That was in R v Ioane [2006] VSCA 84, a case in which the alcohol-affected offender, who had been driving at the critical time at a very excessive speed, pleaded guilty to two counts of culpable driving, one count of reckless conduct endangering life, two counts of negligently causing serious injury, and a summary offence of driving whilst his blood alcohol level exceeded the prescribed concentration (in fact, his blood alcohol was about four times the legal limit). On two earlier occasions he had been convicted for exceeding the blood alcohol limit. He also had prior convictions for driving at excessive speed, and for careless driving.