Sutic v The Queen [2018] VSCA 246

CRIMINAL LAW - Application for leave to appeal against sentence - Whether judge mischaracterised objective gravity of negligently causing serious injury offences - Whether judge erred in adopting incremental approach to upward adjustment of current sentencing practices - Whether judge doubly punished applicant - Whether sentence of 3 years, 2 months' imprisonment for first negligently causing serious injury charge and orders for cumulation manifestly excessive - Application refused.

1 The applicant pleaded guilty to the charges set out in the table below and, on 9 December 2016, he was sentenced as set out in that table:[1]

Negligently causing serious injury [Crimes Act 1958 s 24]

Reckless conduct endangering serious injury [Crimes Act s 23]

Driving a motor vehicle while prescribed concentration of drugs present [Road Safety Act 1986 s 49(1)(bb)]

Total Effective Sentence: 4 years, 9 months' imprisonment

6AAA Statement: 7 years' imprisonment with non-parole period of 5 years

Other relevant orders: Licence disqualification ending 2 years after release from custody; compensation order for $3,000 in favour of Kira Betchley

2 The charges arose out of an incident which occurred on 1 November 2015. On that day, while the applicant was under the influence of methylamphetamine and MDMA, he drove his Toyota Hilux utility across double white lines and in the wrong lane of a dual carriageway road, causing an off-set head-on collision with a Ford Laser vehicle travelling in the other direction. The 23-year-old driver of the Laser, Kira Betchley, and her 20-year-old passenger, Agatha Klawisz, suffered serious injuries. The utility then struck a horse float being towed by a Ford Ranger four-wheel drive vehicle driven by Rebecca Rundle, forcing the Ranger off the road and causing the float to turn over. Prior to those collisions, the driver of another vehicle, Kylie Phillip-Collins, narrowly avoided a collision with the applicant while he was driving in the wrong lane.

3 Section 279 of the Criminal Procedure Act 2009 ('CPA') requires that an application for leave to appeal against sentence be filed within 28 days of sentence. The applicant filed an application for leave on 19 December 2017 together with an application for an extension of time under s 313 of the CPA and an affidavit in support sworn by his solicitor. The application for an extension of time was also supported by a subsequent affidavit sworn by the applicant on 28 March 2018.

4 The applicant seeks leave to appeal against the sentences imposed on him on four proposed grounds. First, the judge erred in finding that the objective gravity of the negligently causing serious injury ('NCSI') charges was medium to high, or high. Secondly, the judge erred in applying an 'increment' to current sentencing practices for the NCSI charges. Thirdly, the judge erred in imposing orders for cumulation and sentences that exposed the applicant to double punishment. Fourthly, the sentence on charge 1 and the orders for cumulation are manifestly excessive. The four grounds are set out at [38] below.

5 On 13 February 2018, the Registrar of Criminal Appeals refused the application for an extension of time. On 21 February 2018, the applicant gave notice of his election to have that application determined by this Court in accordance with s 313(2) of the CPA.

6 For the reasons that follow, we have concluded that the application for an extension of time should be granted but that the application for leave to appeal should be refused.

7 In Barber v The Queen,[2] this Court summarised the principles governing applications for extensions of time to apply for leave to appeal against sentence as follows:[3]

The applicant bears the burden of persuading the Court that an extension of time should be granted in his or her favour. The Court has a wide discretion in determining whether to grant an extension of time. However, the central consideration is whether it is in the interests of justice that the application for leave to appeal be heard, notwithstanding that it has been brought outside the prescribed time.[4] In determining that question, a number of factors are ordinarily taken into account, including the length of the delay and the reasons for it.[5] In addition, the prospects of success of the proposed application for leave to appeal against sentence, should the extension be granted, are material.[6] Each of those factors, and any other relevant circumstances, are taken into account in a balanced exercise of the discretion. Ordinarily, where the delay is considerable, the Court will not grant the extension, unless it is satisfied the proposed grounds are sufficiently meritorious to justify the grant of the extension notwithstanding such delay.[7]

8 The application for leave to appeal was filed 11 months after the expiration of the 28-day period allowed under s 297 of the CPA. The affidavits in support of the application for an extension of time provide the following explanation for the delay and recount the steps taken by the applicant to pursue an application for leave to appeal:

(a) The applicant was not aware of the process for appealing against his sentence and, on the day he was sentenced, he was provided with and signed documents which he mistakenly believed had the effect of preserving his right to appeal.

(b) Shortly after he was sentenced, the applicant told his solicitor that he wanted to appeal. His solicitor obtained advice from counsel who appeared at the plea. Counsel advised that there was no prospect of a successful appeal, but the applicant nevertheless instructed his solicitor that he wanted to appeal.

(c) The applicant was unable to privately finance an appeal and did not think that he could qualify for Legal Aid funding but nevertheless made enquiries with Legal Aid.

(d) The applicant contacted new solicitors in mid-July 2017 because his previous solicitor was not on the Legal Aid panel. The new solicitors informed him that he had not preserved his right to appeal and that the appeal period had expired. They lodged an application for Legal Aid funding on 3 August 2017. They were not able to prepare an application for leave to appeal until such funding was approved.

(e) Legal Aid funding was approved on 10 November 2017. The applicant's solicitors briefed counsel on 22 November 2017 and filed the applications for an extension of time and for leave to appeal against sentence on 19 December 2017.

9 Counsel for the Crown conceded that, in the present case, the most significant consideration was the merits of the grounds of appeal and that, if this Court were of the view that any of the grounds were reasonably arguable, the interests of justice would require that the application for an extension of time be granted.

10 We have concluded that it is in the interests of justice to grant the application for an extension of time for four principal reasons. First, the applicant sought to appeal against his sentence from the outset and obtained legal advice about the prospects of success. Secondly, notwithstanding negative legal advice about the prospects of success, the applicant changed solicitors in July 2017 and sought Legal Aid funding. Thirdly, due to his inexperience in legal matters, the applicant was under the misapprehension that he had signed documents which preserved his right to challenge the sentence. Fourthly, no part of the delay after mid-July 2017 can be attributed to the applicant.

11 We now turn to the merits of the application for leave to appeal.

12 On Sunday 1 November 2015 at approximately 3:14 pm, the applicant was driving south along Hallam-Belgrave Road in Narre Warren North near the intersection of Horswood Road. That road runs in a predominantly north-south direction and in the relevant area has a number of sweeping bends. It has double white lines separating the single north and southbound carriageways and a speed limit of 80 kilometres per hour. At the time of the collision, the road was damp and visibility was normal. There was moderate traffic on the road.

13 The victim the subject of charge 3, Ms Rundle, was driving her Ford Ranger south along Hallam-Belgrave Road in front of the applicant. She was towing a horse float carrying a horse, and driving close to the speed limit. As he rounded a left-hand bend, the applicant crossed the double white lines and into the northbound carriageway in order to overtake the Ford Ranger.

14 The victim the subject of charge 4, Ms Phillip-Collins, was driving her Hyundai Accent vehicle along Hallam-Belgrave Road in the northbound lane at 80 kilometres per hour. As she rounded the same bend, she saw the applicant's utility travelling directly towards her in the incorrect lane. The applicant moved his utility further away from the correct lane, to the shoulder of the northbound lane, which allowed Mrs Phillip-Collins to drive between his utility and Ms Rundle's Ranger (charge 4). Ms Phillip-Collins was not physically injured and her vehicle was not damaged.

15 Ms Betchley, the victim the subject of charge 1 was driving her Ford Laser north on Hallam-Belgrave Road behind Ms Phillip-Collins. Her passenger, Ms Klawisz, was the victim the subject of charge 2. Ms Betchley was driving close to the speed limit and observed the applicant's utility travelling towards her in her lane, but thought that it would move back into the southbound lane behind the horse float. The applicant did not do so and, at the last moment before impact, appeared to pull to the left, causing an off-set and head-on collision (charges 1 and 2).

16 The utility, in effect, ran over the front driver's side corner of the Laser and caused extensive damage to it. The Laser rotated severely and came to rest on the western shoulder of the road, facing south. Ms Klawisz was able to extract herself from the vehicle. Ms Betchley was crushed in her position. Emergency workers took approximately two hours to extract her from the wreck.

17 The impact caused the utility to collide with the side of Ms Rundle's horse float, forcing the float and the Ranger off the eastern side of the road and into a ditch. The horse float rolled over and came to rest on its side (charge 3). Ms Rundle was not physically injured.

18 The applicant sustained an ankle injury. He exited his utility and remained at the collision site. He spoke to police but was vague as to the circumstances of what had occurred. A preliminary breath test revealed that the applicant was not under the influence of alcohol, and he was conveyed to Dandenong Hospital where he submitted to a blood test. The results of that test indicated the presence of methylamphetamine (0.09 mg/L), MDMA (0.38 mg/L), MDA (0.03 mg/L) and alprazolam (0.12 mg/L) in his blood.

19 The applicant was interviewed by police on 9 March 2016 and told them that he had no memory of the collision. He admitted that the evening before the collision he took 'pills', one of which would have been MDA and another that may have been 'meth based', and '[smoked] a few bongs' before taking a sleeping pill at around 2:00 am. He admitted that he 'could have been ... a bit drowsy or something' but said that he did not really consider that he may have still been affected by the drugs when he decided to drive on 1 November 2015. He also said that he was aware that there would be traces of the drugs in his system when he drove.

20 Ms Betchley was airlifted to the Royal Melbourne Hospital with extensive injuries. She suffered a collapsed right lung, fractures to her right femur, tibia, humerus and foot, a fractured pelvis and fractures to her left hand. She underwent operations on 2 and 16 November 2015. The operations consisted of a right femur nail fixation, a right tibia temporary external fixation, a definitive plate fixation to her right tibia and a right humerus plate fixation. She spent three weeks in hospital and three weeks at a rehabilitation facility. She has large, visible scars and has to wear special orthotics in her shoes because her right leg is now longer than her left leg.

21 In her victim impact statement, Ms Betchley described the excruciating pain and nightmares she experienced during her hospitalisation and her subsequent stay at the rehabilitation facility. She attends ongoing rehabilitation sessions two to three times each week. She stated that she still experiences pain every day and in the future she is likely to require further surgery and suffer from arthritis. She is no longer able to enjoy pre-accident activities such as horse-riding and running, or work full-time. She said that 'Emotionally, this accident very nearly destroyed [her]', that she still has trouble sleeping, and that although she tries to maintain a positive outlook, on some days she feels anxious and depressed, which affects her relationships with others. She hates the scars on her body; they often make her cry.

22 Ms Klawisz was taken by ambulance to the Alfred Hospital. She suffered a severe laceration to her liver with internal bleeding, as well as soft tissue injuries to her left shoulder, right foot, generalised aches and bruising, and cuts and abrasions to her face. She spent 30 hours in intensive care and was hospitalised for a further three nights. She was unable to work for a month and limped for about seven weeks.

23 In her victim impact statement, Ms Klawisz stated that she experienced severe pain for two weeks after the collision, and that she still experiences ongoing pain in her shoulder. She also described the emotional and mental impact that the accident had on her, including constant flashbacks caused by post-traumatic stress disorder, panic attacks while driving, anxiety, inability to sleep and loss of appetite. She also described how her injuries had detrimentally affected her studies at university.

24 In her victim impact statement, Ms Phillip-Collins stated that she suffers from post-traumatic stress disorder as a result of her near-collision and witnessing the collision with Ms Betchley's vehicle. Ms Rundle, in her statement, described the mental and financial impact the collision had on her, including loss of confidence, anxiety and regular nightmares.

25 The applicant was 21 years old at the time of the offending and 22 when he was sentenced.

26 In January 2012, when he was 17 years old, the applicant was violently assaulted and robbed by a group of three youths, one of whom attended school with the applicant. As a result of that assault, he required plastic surgery to repair a fractured eye socket. He did not leave his house for three months and did not return to school.

27 After the assault, the applicant became friends with a different group of peers, who used drugs. He began to use drugs to 'self-medicate' to avoid his perceived feelings of weakness in relation to the assault. His drug use became a social activity, and more difficult to control.

28 The applicant completed a plumbing apprenticeship in about 2015 and since that time he has worked as a plumbing subcontractor part-time. In August 2015, he and one of his brothers purchased a two-bedroom apartment together.

29 Eleven character references were tendered on the plea, including from the applicant's family, family friends and employers. His mother also gave evidence on the plea. The references described the applicant as kind, respectful and reliable, and stated that he came from a close family that instilled in him positive values. They also stated that the applicant was genuinely sorry and remorseful for his offending and the effect it had on the other people involved, and that he is determined to move forward with his life and be a good person.

30 A psychological report by Mr Kendrick Chia-Ming Hsu, who had treated the applicant since 27 November 2015, was tendered on the plea. Mr Hsu stated that the assault on the applicant, lack of self-esteem and adolescence might have contributed to his 'self-medication' with illicit drugs, which he found useful to, among other things, avoid his negative feelings. It was his opinion that the applicant would benefit from counselling to address his negative feelings that may trigger his self-medicating behaviour, without which he may resume using illicit substances in the future when his level of distress increases. As a method of monitoring his behaviour, between 18 April 2016 and 17 November 2016, the applicant voluntarily underwent 10 blood tests, approximately monthly, which indicated that he had not used illicit substances. Nevertheless, Mr Hsu stated that the applicant meets the criteria for substance use disorder in early remission. He also stated that the applicant had reported increased anxiety since the accident as well as feelings of guilt and shame, especially in relation to Ms Betchley, and depression about his situation.

31 On 1 June 2013, the applicant's driver's licence was suspended for one month for the offence of exceeding the speed limit by 30 kilometres per hour. He has no other history of offending.

32 On the plea, the applicant submitted that the objective gravity of his offending in relation to charges 1 and 2 fell 'in the lower register'[8] whereas the prosecutor submitted that it was 'high level'.[9]

33 The judge found that the applicant's moral culpability was high and concluded that the NCSI offences fell 'somewhere beyond the mid-range towards the high range, though clearly they are not in the worst category'.[10] He stated that the applicant's negligence was 'high level', and that the injuries to Ms Betchley were 'relatively high-level' and the injuries to Ms Klawisz were 'mid-level'.[11]

34 The judge had regard to current sentencing practices but said that that he must 'bear in mind ... the incremental uplift in sentences contemplated by the Court of Appeal decision in [Harrison v The Queen]'.[12] The judge said the following about Harrison:

The decision makes plain enough that [NCSI] is a serious offence and that the courts in the past did not adequately recognise the increase in maximum penalties when that took place some years ago. Nor have the courts adequately recognised the high seriousness of the offence generally. Now they were speaking of an increase in current sentencing practices for high-level examples, but made plain enough that when dealing with less high-level examples it is clear enough that the impact of the decision will lead to an increase in the sentences even for low and mid-range offending.[13]

35 The judge took into account totality, and that the offences arose out of a single episode. He stated the following:

This was a single episode giving rise to these four offences on the indictment and the one summary matter. However the offences involve four distinct victims with differing impacts and differing elements. Of course Ms Betchley and Ms Klawisz were actually seriously injured ... [Ms Rundle and Ms Phillip-Collins] were very much placed in danger and risk of serious injury and escaped by the skin of their teeth. They were not minor examples of the crime of reckless conduct endangering serious injury, far from it. So I cannot ignore the fact of the differing victims and differing impacts. The victims cannot be reduced to meaningless statistics by a single base sentence for the most serious offence and then concurrent sentences for the rest. They are separate victims and I must adequately recognise that fact. Significant cumulation is required for the sentence imposed for the serious injury caused to Ms Klawisz. It was a serious crime in its own right and with serious impact. Still I must moderate, and I do, as far as I believe I can the extent of cumulation.

I then must consider whether the effect of the sentences is just and appropriate and commensurate with [the applicant's] overall criminality, and I have done what I must do always, I have engaged in a last look at the sentences imposed by this court and the total effect of them in endeavouring to guard against the imposition of a crushing term upon [the applicant].[14]

36 The judge had regard to the following matters in mitigation of sentence: the applicant's early guilty plea; acceptance of responsibility; cooperation with the police; remorse; youth; lack of prior offending; excellent personal background; and very good prospects of rehabilitation. In considering these matters, the judge stated that youth is ordinarily a powerful mitigatory factor. However, he also stated that it has less impact when the level of criminality involved in the offending is high, and where there is a high prevalence of such an offence being committed by young people.

37 The judge assessed the risk of the applicant re-offending as 'quite low' and moderated the weight he gave to specific deterrence and community protection.[15] He found that, in imposing sentence on the applicant, general deterrence was the paramount sentencing purpose.

38 The applicant's grounds of appeal are in the following terms:

1. The learned sentencing judge erred in finding that the objective gravity of charges 1 and 2 was medium to high or high.
2. The learned sentencing judge erred in applying an 'increment' to current sentencing practices for [NCSI].
3. The learned sentencing judge erred in imposing orders for cumulation and sentences that exposed the applicant to double punishment. Particulars:
   1. The cumulation of 15 months of the sentence on charge 2 on the base and other sentences;
   2. The cumulation of 3 months of each of the sentences for reckless conduct endangering serious injury on the base sentence and other sentences; and

c The imposition of a fine on the related summary offence.

1. The sentence on charge 1 and the orders for cumulation are manifestly excessive.

Ground 1: Objective gravity of offending for charges 1 and 2

39 The applicant submitted that the judge mischaracterised the seriousness of his offending as 'somewhere beyond the mid-range towards the high range'. He contended that the judge, by referring to the features of his conduct that brought it into the criminal sphere, namely, the presence of drugs in his system, and his deliberate movement over the double white lines on a blind corner at the maximum allowable speed, was doing no more than stating that his negligence reached the criminal standard and therefore he committed the offence of NCSI. He argued that, as those features of his offending caused it to constitute the offence of NCSI, the judge erred in also taking those matters into account in assessing the objective gravity of the offending.

40 The applicant contended that the judge had also overstated the seriousness of his offending in circumstances where it lacked aggravating features, such as erratic or dangerous driving in the period before the collision.

41 The applicant submitted that, once it is accepted that all acts of NCSI involve a significant departure from the required standard of care, the judge mischaracterised his offending by finding that he had subjectively embraced the measure of the risk that he took by crossing the double white lines. He contended that, although he was subjectively aware that he had breached the road rules by attempting to overtake another vehicle in an impermissible location, he had merely misjudged the risk of doing so rather than deliberately leaving it entirely to chance whether or not a collision would occur. In the context of conduct that falls into the category of criminal negligence, so it was said, the judge erred in assessing that misjudgement as involving a high level of negligence.

42 The applicant relied on Director of Public Prosecutions v Barry,[16] to illustrate the distinction between what he described as his misjudgement of the risk of overtaking, with the circumstances of that case, in which the driver was aware that he was unfit to drive but nevertheless subjectively embraced the risk of doing so. According to the applicant, the objective gravity of his offending was less than that in Barry as he had merely misjudged the risk of the manoeuvre which, as a matter of common sense, he would not have attempted unless he had thought that he could complete it successfully.

43 The applicant also submitted that the judge's comparison of his offending with low level offending - which the judge described as 'a momentary inattention by an otherwise alert and non-intoxicated or drug affected driver'[17] - had the effect of exaggerating the seriousness of his offending. This was said to be because momentary inattention alone could not found a charge for which criminal negligence is an element.[18]

44 The Crown submitted that the judge did not err in assessing the objective gravity of the NCSI offences. It argued that the applicant's conduct went beyond a mere misjudgement, and that the judge's assessment was appropriate.

46 The objective gravity of the applicant's offending is to be assessed by reference to the degree of negligence he displayed and the seriousness of the injuries caused to the victims.[19]

47 The degree of negligence displayed by the applicant was very high for the following reasons:

(a) By intentionally crossing over the double white lines on a damp road at the maximum permitted speed of 80 kilometres per hour to overtake a very long vehicle - a four wheel drive towing a horse float - the applicant created an obvious risk of serious injury to other road users and himself. This conduct was particularly egregious because, despite being aware that the winding nature of the road resulted in blind corners, the applicant made a conscious decision to embark on a manoeuvre that gambled with the lives of other road users.

(b) Common sense dictates that the applicant must have known that overtaking a vehicle across double lines while travelling around a blind corner created a significant risk of a collision with oncoming vehicles, the consequences of which were likely to be catastrophic. It was only through sheer good fortune that Ms Betchley and Ms Klawisz were not killed and that Ms Rundle and Ms Phillip-Collins were not seriously injured or killed.

(c) The significant degree to which the applicant departed from the standard of a reasonable driver is demonstrated by the fact that he strayed so far over the double white lines into the opposite lane that Ms Phillip-Collins, travelling towards him, had enough room to squeeze between his vehicle and Ms Rundle's vehicle.

(d) The applicant had an opportunity to cease his overtaking manoeuvre but chose to persist with it in the face of the obvious dangers.

(e) The applicant had taken methylamphetamine, MDMA, MDA and a sleeping pill on the night prior to the collision. These drugs contributed to the offending.

48 The injuries suffered by Ms Betchley and Ms Klawisz were life-threatening, substantial and protracted. The summary of those injuries and their impacts at [20]-[23] above amply justify the judge's description of them as 'relatively high-level' in the case of Ms Betchley and 'mid-level' in the case of Ms Krawisz.

49 Contrary to the applicant's submission, the factors set out at [47] above are not only relevant to the question whether his conduct met the threshold of negligence for establishing the offence of NCSI, but also demonstrate the extent of that negligence and thus the gravity of his offending.

50 In that regard, we reject the applicant's submission that his conduct in crossing the double white lines on a winding road represented a mere error of judgement or a mere breach of the road rules. In our opinion, the applicant's conduct represented a deliberate and substantial disregard for the safety of other road users as well as his own. This is because he attempted to overtake Ms Rundle's vehicle when he had no way of knowing if there was any oncoming traffic.

51 We accept that, subjectively, the applicant did not consider that the drugs he had ingested would impair his driving. However, as the gravity of the applicant's offending must be considered objectively, the presence of drugs in the applicant's system added to the seriousness of that offending. The judge made a finding, pursuant to s 89C of the Sentencing Act 1991, and noted on the record of orders, that the offences were committed while the applicant was under the influence of a drug of dependence, which contributed to the offences.[20] As set out at [83] below, a particular of charges 3 and 4, which the applicant admitted by pleading guilty to those charges, was that he drove 'whilst affected by illegal substances'.

52 In these circumstances, the judge was more than justified in describing the objective gravity of the applicant's offending in respect of charges 1 and 2 as 'somewhere beyond the mid-range towards the high range'.[21] If the applicant had known that the drugs would impair his driving but nevertheless chosen to drive, that gravity, and the applicant's moral culpability, would have been even higher.

53 We reject the applicant's submission that the judge exaggerated the seriousness of his offending by comparing his conduct with NCSI involving momentary inattention. The judge's discussion of momentary inattention occurred in the context of rejecting the applicant's contention that his offences constituted 'low level examples of [NCSI]'. After stating that the applicant's offences 'are very clearly not low level examples of the offence of [NCSI]', the judge said 'Such an event might include a momentary inattention by an otherwise alert and non-intoxicated or drug affected driver.'[22]

54 The question whether momentary inattention is sufficient for the offence of NCSI - which has been discussed in cases such as Bouch v The Queen[23] - is not presently relevant. This is because, by his plea, the applicant has admitted that his negligent conduct met the criminal standard. Further, the judge was correct to reject the applicant's contention that his conduct was akin to an error of judgement. For the reasons we have given, the applicant's level of negligence was very high and the judge's assessment of it as such did not involve any exaggeration.

55 We also reject the applicant's submission that the absence of aggravating features - such as a course of erratic driving leading up to the collision, forewarning of the risk of a collision or excessive speed - meant that the judge had overstated the gravity of his offending. Had any of these aggravating features been present, the gravity of the applicant's offending in relation to charges 1 and 2 would have been higher and the judge would have been justified in imposing more severe sentences in relation to those charges.

Ground 2: Incremental uplift to current sentencing practices

56 Before summarising the parties' submissions in relation to ground 2, it is necessary to set out the effect of the High Court's decision in Director of Public Prosecutions v Dalgliesh[24] on this Court's previous approach to correcting inadequacies in current sentencing practices. In accordance with that previous approach, where current sentencing practices for a particular offence were considered to be too low, courts were required to adjust sentences for that offence upwards 'incrementally' until current sentencing practices reached a level that properly reflected the objective gravity of the offending.[25] We will refer to this approach as the 'incremental approach'.

57 In Harrison, this Court held that current sentencing practices for NCSI by driving in the upper range category of seriousness were inadequate because they failed to reflect the 10-year maximum penalty and the objective seriousness of offending in that category.[26] The Court stated that sentencing courts should not be constrained by existing current sentencing practices and should henceforth impose higher sentences for NCSI by driving falling within the upper range of seriousness, and that 'Sentences for mid-range and lower-end instances of NCSI by driving will also need to increase, in order to maintain appropriate sentencing relativities'.[27] Although the Court did not refer to the incremental approach, as that approach was a well-established principle of sentencing in Victoria in 2015, there can be little doubt that the Court expected that the increase in sentences to which it referred would be incremental.

58 The Court held that, while the sentences imposed on the offenders in Harrison did not adequately reflect the gravity of their offending, current sentencing practices constrained the Court from finding that they were manifestly inadequate.[28] The Court relied on the principle that, where an offender pleads guilty to an offence, he or she may reasonably assume that he or she will be sentenced in accordance with current sentencing practices and therefore a sentencing court is not at liberty to disregard current sentencing practices.[29] In Dalgliesh, the High Court held that this principle is wrong and that a sentencing court will fall into error if it treats current sentencing practices as an obstacle to imposing a sentence that is appropriate in all the circumstances of the case.[30] It also held that current sentencing practices is one of a number of relevant sentencing considerations but it is not a controlling consideration.[31]

59 In Dalgliesh, the High Court did not expressly refer to the incremental approach. However, in Carter v The Queen,[32] this Court held that, where current sentencing practices for a particular offence are considered to be too low, the incremental approach 'cannot stand with the reasoning in Dalgliesh'.[33] That is because the duty of a sentencing court is to impose a just sentence according to law even where an offender has pleaded guilty in light of current sentencing practices.[34]

60 The applicant submitted that the judge's sentencing discretion miscarried as a result of the judge applying the incremental approach which had effectively been overturned by the High Court in Dalgliesh.

61 In response to questions from the Bench as to whether the incremental approach would have been favourable to him, the applicant submitted that the approach would not have assisted him for two reasons.

62 First, he contended that the judge had, in effect, had regard to the inadequacy of current sentencing practices for NCSI and, having already taken that into account, at a later stage of his reasons applied an incremental uplift, as contemplated by Harrison. Accordingly, so it was said, the judge had both allowed for the fact that current sentencing practices were inadequate by making an upward adjustment, and then separately applied the incremental approach, resulting in a second uplift.

63 Secondly, he contended that as the judge applied a wrong principle, the sentencing discretion is reopened. As such, so it was said, this Court will need to exercise the sentencing discretion without considering what effect the misapplication of principle had on the sentence imposed by the judge, unless it forms the view that no different sentence should be imposed.

64 The applicant submitted that the statement in Harrison about the maintenance of appropriate sentencing relativities set out at [57] above is no longer good law after Dalgliesh. This was said to be because this approach amounts to the maintenance of numerical equivalence and distracts from the task of sentencing in accordance with the circumstances of each case. The applicant contended that it does not follow from Harrison, which dealt with two instances of high level NCSI, that any conclusions can be reached for other cases involving less serious examples of NCSI. He argued that there is no reason that sentences must follow a bell curve or a linear progression. According to the applicant, because NCSI often involves young men with no prior criminal history who plead guilty and demonstrate remorse, it may be expected that sentences for NCSI by driving may be clustered at a particular level, rather than being spread along a spectrum of seriousness. Accordingly, so it was said, the judge erred by adopting the approach of maintaining relativities set out in Harrison.

65 The Crown submitted that the judge had not erred in applying an increment to current sentencing practices because he was obliged to do so in accordance with Harrison, which was correct law at the time of sentencing. It contended that the incremental approach was to the applicant's benefit because he was sentenced before Dalgliesh and therefore the judge was limited to applying an incremental uplift to inadequate current sentencing practices whereas, since Dalgliesh, courts no longer treat such practices as a constraint.

67 In para 58 of his reasons for sentence,[35] the judge said that he bore in mind the incremental approach which was then binding on him. It is not clear whether he actually applied that approach. In accordance with the finding in Harrison that current sentencing practices for NCSI by driving were inadequate, if the judge had applied the incremental approach to the NCSI charges, he would have imposed sentences which were incrementally higher than the then inadequate current sentencing practices so that they more accurately reflected the objective gravity of the applicant's offending. The imposition of sentences in accordance with the incremental approach, rather than sentences which fully reflected the objective gravity of the applicant's offending, would have potentially benefited the applicant.

68 It follows that the applicant has misunderstood the reference to the 'incremental uplift' in para 58 of the judge's reasons for sentence. The reference to an incremental uplift to current sentencing practices in that paragraph was to the then inadequate current sentencing practices rather than to current sentencing practices which were adjusted to fully reflect the seriousness of the offending. The judge's sentencing remarks do not contain any suggestion that he applied an incremental uplift to current sentencing practices twice.

69 If the judge did in fact apply the incremental approach, then he would have acted in accordance with a principle which, in the light of Dalgliesh and Carter, is not good law. However, for the reasons we have outlined, to the extent that the judge adopted this approach, it could only have been to the applicant's advantage. In any event, the discussion under ground 4 demonstrates that the sentences imposed by the judge for charges 1 and 2 are consistent with post-Dalgliesh sentences imposed for NCSI by driving offences.

70 We reject the applicant's submission that the statement in Harrison about the need to 'maintain appropriate sentencing relativities' is wrong and that the judge erred in applying that statement. We agree that the proper exercise of the sentencing discretion does not involve the pursuit of either numerical equivalence or fixed relativities either by reference to current sentencing practices or otherwise.[36] However, as the gravity of the offending and the maximum penalty are relevant sentencing considerations, with offences higher up the spectrum of seriousness attracting more severe sentences relative to the maximum penalty than offences lower down the spectrum, it must follow that increases in sentences for the former offences will inevitably have an impact on sentences for the latter offences.

71 The applicant submitted that, while some cumulation was warranted between the NCSI charges, the measure of cumulation for the second NCSI charge, and the aggregate cumulation of six months for charges 3 and 4, was excessive. He further submitted that no penalty ought to have been imposed on him for the summary offence, in circumstances where the effect of the drugs was a particular of charges 3 and 4.[37]

72 The applicant contended that each of the sentences imposed on him is, individually, very substantial and that there is no indication that the judge took into account the principle of totality or double punishment in moderating those sentences. Rather, so it was said, the judge purported to address totality only by the making of orders for cumulation but, due the extent of the orders for cumulation made, no relief was granted to the applicant to reflect totality, giving rise to a form of double punishment.

73 The Crown submitted that the judge took double punishment and totality into account, as he noted that all four offences arose out of a single incident and expressly referred to the principle of totality. It contended that the order for cumulation on charge 2 was appropriate, and that the judge had balanced the need to give effect to the separate and serious offending with the need to moderate the extent of cumulation, and arrived at an order for cumulation that was less than half of the individual sentence.

74 Regarding charges 3 and 4, the Crown submitted that the orders for cumulation were modest, and amounted to 20 per cent of the individual sentence for each of those charges, which could not be viewed as excessive, or in breach of the principle of totality or double punishment.

75 The Crown submitted that the fine of $600 for the summary offence was 'appropriate in all the circumstances'.

77 There is no substance to the applicant's contention that the orders for cumulation made by the judge for charges 2-4 involved double punishment.

78 Although each of the four charges arose out of a single incident, each of the offences with which the applicant was charged had a different element, namely the injury to, or endangerment of, the victim the subject of each charge. Accordingly, it was necessary for the judge to impose a separate sentence for each of the charges to reflect the separate criminality that they involved. The judge applied this principle and the applicant does not contend that he was wrong to do so.

79 In relation to charge 2, the injuries sustained by Ms Klawisz were life-threatening. Contrary to the applicant's submission, the sentence of 2 years and 4 months' imprisonment for that charge is not 'very substantial'. The cumulation of 13 months is less than 50 per cent of that sentence. In the light of the very serious injuries sustained by Ms Klawisz, the sentence and the order for cumulation were entirely appropriate.

80 As with charge 2, we reject the applicant's submission that the sentences of 15 months' imprisonment for each of charges 3 and 4 are 'very substantial'. The cumulation of 3 months that was ordered for each of those sentences appropriately reflected the risk of serious injury to which the applicant's conduct separately exposed Ms Rundle and Ms Phillip-Collins. The judge was right to say that charges 3 and 4 were 'not minor examples of the crime of reckless conduct endangering serious injury' and that Ms Rundle and Ms Phillip-Collins 'were very much placed in danger and risk of serious injury and escaped by the skin of their teeth'.[38]

81 The observations of the judge set out at [35] above indicate that he was well aware of the need to apply the principle of totality and to avoid double punishment.

82 There is no substance to the applicant's contention that the imposition of the fine of $600 for the summary offence of driving a motor vehicle with more than the prescribed concentration of drugs involved double punishment by virtue of the fact that one of the particulars of reckless conduct for charges 3 and 4 was being 'affected by illegal substances'.

83 Charges 3 and 4 were expressed in identical terms save for the name of the victim. In the case of Ms Rundle, charge 3 stated:

The Director of Public Prosecutions charges that [the applicant] at Narre Warren North in Victoria on the 1st day of November 2015 without lawful excuse recklessly engaged in conduct namely driving a motor vehicle at high speed, whilst affected by illegal substances, and driving on the incorrect side of double white lines that placed Rebecca RUNDLE in danger of serious injury.

84 Those charges were brought under s 23 of the Crimes Act which provides as follows:

23 Conduct endangering persons

A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of serious injury is guilty of an indictable offence.

Penalty: Level 6 imprisonment (5 years maximum).

85 Section 49(1)(bb) of the Road Safety Act, which establishes the summary offence, provides as follows:

49 Offences involving alcohol or other drugs

(1) A person is guilty of an offence if he or she -

...

(bb) drives a motor vehicle or is in charge of a motor vehicle while the prescribed concentration of drugs or more than the prescribed concentration of drugs is present in his or her blood or oral fluid; ...

86 A number of observations can be made about s 23 of the Crimes Act and s 49(1)(bb) of the Road Safety Act. First, the offence in s 49(1)(bb) is established by the mere presence of drugs at or above the prescribed concentration and does not require proof that the presence of the drugs affected the offender's driving. Secondly, s 23 does not define what constitutes reckless conduct. Thirdly, and self-evidently, the mere presence of drugs at or above the prescribed concentration is not an element of the offence under s 23. Nor is 'driving a motor vehicle ... whilst affected by illegal substances'.

87 The case of R v Audino[39] on which the applicant relied can be distinguished. That case involved the indictable offence of culpable driving causing death under s 318 of the Crimes Act and the summary offences of exceeding the prescribed concentration of alcohol and driving while disqualified. Section 318(2) sets out four exclusive circumstances in which a person can be held to drive a motor vehicle culpably, one of which (s 318(2)(c)) is driving a motor vehicle 'whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle'. The culpable driving charge against the offender relied on two of the circumstances in s 318(2), including s 318(2)(c).

88 Maxwell ACJ (with whom Ashley and Neave JJA agreed) held that the imposition of separate sentences for the culpable driving offence and the summary offence of exceeding the prescribed concentration of alcohol involved double punishment because 'the act of driving with excess alcohol in the blood was an element both of the summary offence and of the culpable driving offence'.[40] By contrast, Maxwell ACJ held that the separate punishment for the summary offence of driving while disqualified did not involve double punishment for the following reasons:

There was no common element between [the summary offence of driving while disqualified] and the offence of causing death by culpable driving. Nor, in my view, does any question of double punishment arise merely because the fact of driving while disqualified was treated as aggravating the seriousness of the culpable driving charge. The summary offence was committed immediately the appellant began to drive her car. The fact that she ought not to have been on the road at all, because of a drink-driving disqualification, was separately relevant to the court's assessment of the culpable driving offence.[41]

89 In the present case, the summary offence was committed as soon as the applicant commenced driving his vehicle and did not depend on the drugs affecting his driving. Further, even though being affected by illegal substances was one of three particulars of reckless conduct in respect of charges 3 and 4 - the others being driving a motor vehicle at high speed and driving on the incorrect side of double white lines - those particulars only applied to the period of time when Ms Betchley and Ms Klawisz were injured and Ms Rundle and Ms Phillip-Collins were exposed to injury, and did not apply to the prior period of driving on the day of the collision.

90 For the above reasons, the fine of $600 did not constitute double punishment.

91 The applicant submitted that the sentence on charge 1 and the order for cumulation for charge 2 are manifestly excessive because his offending the subject of charges 1 and 2, properly characterised, fell towards the lower end of the spectrum of NCSI offences.

92 The applicant argued that the orders for cumulation for charges 3 and 4 are manifestly excessive, having regard to the fact that Ms Rundle and Ms Phillip-Collins were not physical injured but were merely placed at risk of serious injury. Accordingly, so it was said, the judge could not sentence the applicant on the basis that the risk of injury involved in charges 3 and 4 had actually materialised. Likewise, the applicant argued, it was not open to the judge to rely on matters in the victim impact statements of Ms Rundle and Ms Phillip-Collins as informing the gravity of the applicant's offending as distinct from the impact of the offending on the victims.

93 The applicant contended that the other factors that were put in mitigation of sentence, namely his youth, lack of criminal history, guilty plea, cooperation, good character, genuine remorse and very good prospects of rehabilitation, which were referred to by the judge, all indicate that a lesser total effective sentence should have been imposed. In particular, he argued that the judge ought to have given greater weight to his youth.

94 The Crown submitted that the individual sentences were appropriate and the judge had regard to totality and made orders for cumulation that were modest. It contended that in the circumstances of this offending, in which the applicant put a number of people at risk by his deliberate overtaking manoeuvre, and in the light of the maximum penalty of 10 years' imprisonment for the offence of NCSI, the sentences and orders for cumulation imposed fell well within the range available to the judge.

96 In the light of our conclusions that the judge was correct to find the objective gravity of the applicant's offending in respect of charges 1 and 2 fell 'somewhere beyond the mid-range towards the high range' and that the orders for cumulation in respect of charges 2-4 were appropriate, it cannot be seriously argued that the sentence on charge 1 and the orders for cumulation were not reasonably open to the judge. This is particularly so having regard to the maximum penalties for the two types of offences the subject of charges 1-4.

97 The sentence on charge 1 and the orders for cumulation are entirely consistent with current sentencing practices. While so-called comparable cases are not precedents and care must be exercised in how they are used to assess the appropriateness of a sentence in a given case,[42] some assistance is afforded in the present case by a review of three cases. They are Gurovski v The Queen,[43] Barry[44] and Harrison.

98 The sentence of 3 years and 2 months' imprisonment for charge 1 is almost identical to the sentence of 3 years' imprisonment imposed in Gurovski. The circumstances of the offending in Gurovski also involved a vehicle - in that case a large truck - crossing over the double white lines onto the wrong side of the road around a bend and colliding head-on with an oncoming vehicle. The victim sustained extensive orthopaedic injures, a partial finger amputation, a lung contusion and a mild traumatic brain injury. Her right arm was almost totally amputated in the accident. The offender was not speeding, had no relevant prior convictions, was alcohol and drug-free but sleep deprivation and inadequate breaks from driving had resulted in him having a delayed reaction which affected his ability to respond to changing road conditions in a safe and timely manner. He pleaded guilty. The sentencing judge held that the offending fell within the lower end of the mid-range of seriousness.

99 This Court rejected the offender's contention that the collision was caused by a momentary lapse in concentration and held that it was caused by a conscious and voluntary act on his part. The Court agreed with the judge's assessment of the seriousness of the offending and decided that the sentence of 3 years' imprisonment was not manifestly excessive. After reviewing current sentencing practices, the Court said that a term of 6 years' imprisonment or more is open for offences of NCSI by driving which fall within the upper range of seriousness and a sentence of 5 years' imprisonment is open for offences in the middle to upper range.[45]

100 The sentence of 3 years and 2 months' imprisonment on charge 1 in the present case is consistent with the outcome of the Crown appeal in Barry. In that case, the offender's vehicle failed to follow the curve on the road, veered onto the wrong side of the road and collided with the victim's motorcycle. The offender had not slept for 27 hours, was under the influence of methylamphetamine and knew that there was a risk that he might fall asleep at the wheel because he had already done so at least once before the collision. The victim suffered severe injuries, including a complex pelvic fracture, multiple fractures to his right forearm and a complex right knee injury which required his right leg to be amputated above the knee. The offender pleaded guilty. On the plea, the offender conceded that the objective seriousness of the offending fell within the 'middle to upper range'. This Court upheld the contention of the Director of Public Prosecutions that the sentence of 20 months' imprisonment with a community correction order of 2 years that was imposed by the sentencing judge was manifestly inadequate. The Court resentenced the offender to 5 years' imprisonment with a non-parole period of 3 years.

101 Harrison involved appeals against sentence by Harrison and Rigogiannis, who had been involved in separate collisions which caused extensive and profoundly serious injuries to the victims. Harrison drove through an intersection against a red light at approximately 127 kilometres per hour in a 60 kilometres per hour zone. The victim was a passenger in his vehicle. At the time of the accident, Harrison's driver's licence had been suspended, he had a blood alcohol concentration of 0.184 per cent and he had prior convictions for driving offences. He was sentenced to 3 years and 6 months' imprisonment with a non-parole period of 2 years. Rigogiannis drove his van around a blind bend on the wrong side of the road at 78 kilometres per hour in a 50 kilometres per hour zone and collided head on with the victim's vehicle. At the time of the accident, Rigogiannis was unlicensed, had a blood alcohol concentration of 0.211 per cent and he had prior convictions for unlicensed driving. Prior to the collision, the passenger in Rigogiannis's van warned him against driving in a reckless manner. He was sentenced to 4 years' imprisonment with a non-parole period of 2 years and 9 months.

102 This Court held that the offending of Harrison and Rigogiannis fell within the upper range of seriousness and that, had it not been for the constraints of current sentencing practices, a sentence of 6 or 7 years' imprisonment would have been well within range for both offenders.[46]

103 The case of Lennon v The Queen,[47] on which the applicant relied does not assist him. The offender in that case injured two passengers sitting in the rear open tray of a vehicle he was driving in a private rural property. There is a significant difference between driving a vehicle in a private property and driving it on a public road. Further, the case did not involve a NCSI offence: the offender pleaded guilty to two charges of dangerous driving causing serious injury (each of which carried a maximum penalty of 5 years' imprisonment) and one charge of reckless conduct endangering serious injury.

104 It is clear from Barry and Harrison that if the applicant's offending had aggravating features such as speeding, excessive alcohol consumption, sleep deprivation, erratic driving leading up to the collision and the disregarding of a forewarning of the risk of a collision, a sentence of at least 5 years' imprisonment would have been appropriate.

105 We accept that there are powerful mitigating factors in the applicant's favour, including his early plea of guilty, youth, lack of prior offending, remorse, good prospects of rehabilitation and family support. These factors, however, had to be balanced against the need for general deterrence, denunciation and protection of the community. The judge gave appropriate weight to each of the mitigating factors on which the applicant relied. Those factors resulted in appropriate moderation in the sentences imposed by the judge and in the relatively short non-parole period which he fixed.

106 For the above reasons, the application for an extension of time to file an application for leave to appeal will be granted but the application for leave will be refused.

[1] DPP v Sutic [2016] VCC 1936 ('Sentencing remarks').

[2] [2018] VSCA 232 ('Barber').

[3] Barber [2018] VSCA 232 [3].

[4] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601, 613-14 [30]-[32] ('Kentwell').

[5] Kentwell [2014] HCA 37; (2014) 252 CLR 601, 614 [31].

[6] Kentwell [2014] HCA 37; (2014) 252 CLR 601, 614 [33].

[7] Bowling v The Queen [2013] VSCA 87 [17]; Madafferi v The Queen [2017] VSCA 302 [11]; Jopar v The Queen [2013] VSCA 83; (2013) 44 VR 695, 707 [59].

[8] Transcript of Proceedings (29 November 2016) 69.

[9] Transcript of Proceedings (29 November 2016) 71.

[16] (2017) 82 MVR 448 ('Barry').

[17] Sentencing remarks [44] (emphasis in original).

[18] The applicant relied on Bouch v The Queen (2017) 80 MVR 85, 122 [139].

[19] Harrison v The Queen [2015] VSCA 349; (2015) 49 VR 619, 629 [44] ('Harrison').

[21] See [39] above. We agree with the observation of Maxwell P and Hargrave JA in DPP v Weybury (2018) 84 MVR 153, 165 [33]-[34] ('Weybury') that classifications such as 'mid-range' and 'bottom of the high-range' should be avoided and that sentencing judges should have regard to relevantly comparable, and current, cases as 'yardsticks'. Their Honours said (at [34]) that this approach involves considering where a case fits on the spectrum of offending and is the preferable way for sentencing judges to have regard to current sentencing practices as a factor in the instinctive synthesis. See also Weybury (2018) 84 MVR 153, 170-1 [54] (Priest JA).

[22] Sentencing remarks [44] (emphasis in original).

[23] (2017) 80 MVR 85, 122 [139].

[24] [2017] HCA 41; (2017) 349 ALR 37 ('Dalgliesh').

[25] Carter v The Queen [2018] VSCA 88 [80] ('Carter').

[26] Harrison [2015] VSCA 349; (2015) 49 VR 619, 644 [113], 650 [137]-[139].

[27] Harrison [2015] VSCA 349; (2015) 49 VR 619, 622 [12], 650 [140].

[28] Harrison [2015] VSCA 349; (2015) 49 VR 619, 635-6 [71], 638 [86].

[29] Harrison [2015] VSCA 349; (2015) 49 VR 619, 630 [49].

[30] Dalgliesh [2017] HCA 41; (2017) 349 ALR 37, 55 [84], n 89, [85], n 91.

[31] Dalgliesh [2017] HCA 41; (2017) 349 ALR 37, 40 [9], 51 [68].

[32] [2018] VSCA 88.

[33] Carter [2018] VSCA 88 [80]. See also Weybury (2018) 84 MVR 153, 162 [20].

[34] Carter [2018] VSCA 88 [80].

[35] See [34] above.

[36] See, eg, R v Pham [2015] HCA 39; (2015) 256 CLR 550, 559 [28].

[37] The applicant relied on R v Audino [2007] VSCA 318; (2007) 180 A Crim R 371 ('Audino').

[38] See [35] above.

[39] [2007] VSCA 318; (2007) 180 A Crim R 371.

[40] Audino [2007] VSCA 318; (2007) 180 A Crim R 371, 375 [17].

[41] Audino [2007] VSCA 318; (2007) 180 A Crim R 371, 375-6 [19].

[42] See, eg, Djordjic v The Queen [2018] VSCA 227 [74].

[43] (2018) 83 MVR 333 ('Gurovski').

[44] (2017) 82 MVR 448.

[45] Gurovski (2018) 83 MVR 333, 350 [78].

[46] Harrison [2015] VSCA 349; (2015) 49 VR 619, 651 [141].

[47] (2017) 80 MVR 71.