Victorsen v The Queen [2020] VSCA 248

1 Eric Victorsen, the applicant, is now aged 21 years.[1] He was aged 19 when, on 21 April 2018, he drove a stolen motor vehicle into an intersection against a red light at breakneck speed, colliding with another vehicle and killing its entirely innocent occupants. After the collision he fled, leaving the passenger of the other vehicle, Matthew Goland, aged 38 years, dead; and the driver, Bita Toudeh Zaeim, aged 32, dying.

2 An indictment filed in the County Court charged the applicant with culpable driving causing death[2] (two charges - charges 1 and 2) and failure to render assistance after an accident[3] (charge 3). He pleaded guilty before a judge of that court on 6 December 2018; and, following a plea, on 20 December 2018 the judge sentenced him to nine years' imprisonment on each charge of culpable driving, and to two years' imprisonment on the third charge. Three years of the sentence on charge 2, and one year of the sentence on charge 3, were ordered to be served cumulatively with the sentence on the first charge. The total effective sentence was thus 13 years' imprisonment, upon which the judge fixed a non-parole period of eight years.[4] The applicant was also disqualified from driving for 10 years.

3 The applicant sought leave to appeal against the sentence on three grounds as follows:

1. The sentencing judge misapplied the standard sentence provisions.
2. The individual sentences and orders for cumulation, total effective sentence and non-parole period are manifestly excessive.
3. The sentencing judge paid insufficient regard to the principle of totality.

4 For the reasons that follow, I would refuse leave to appeal.

5 Before turning to a consideration of the grounds, it is necessary to outline the applicant's offending. It is convenient to do so by adopting the contents of the Prosecution Opening on the Plea, which was treated as an agreed summary of facts:

1. On 19 April 2018, at approximately 2.45 am, a 2016 Grey Lexus LX570 was stolen from a home in Lysterfield by unknown offenders. ...
2. On 21 April 2018, the [applicant], Eric Victorsen ... drove the Lexus with [FA, aged 15 years],[[5]] in the passenger seat. At approximately 1.10am the Lexus was captured travelling at 133 kph along Stud Road, five seconds prior to entering the intersection at Boronia Road. The speed limit applicable is 80 kph.
3. The [applicant] drove the Lexus through a red light at the intersection of Stud Road and Boronia Road and collided with the vehicle being driven by the victims. At impact, the Lexus was travelling at approximately 114kph. The collision caused by the offender resulted in the death of a newly married couple, Matthew Goland and Bita Toudeh Zaeim.
4. The [applicant] was aged 19 at the time of the collision. He did not hold a driver's licence and was disqualified from obtaining one.

1. Bita Toudeh Zaeim was aged 32 at the time of the collision and her husband, Matthew Goland was aged 38. They lived together at the marital home in The Basin. Ms Toudeh Zaeim was driving the vehicle at the time of the collision and her husband was in the passenger seat.
2. Both victims died as a result of multiple injuries sustained in a motor vehicle incident.

1. On 19 April 2018 at approximately 2.45 am, an aggravated burglary was committed on the home address of Monna Mostafa in Lysterfield. During that burglary, unknown offenders stole a 2016 silver Lexus 4WD with personalized number plates reading 'Monna' from the garage. The vehicle was insured and valued at $170,000.
2. At approximately 12.40 am on 21 April 2018, the [applicant] left his mother's address in company with [FA].
3. At approximately 1.10 am on Saturday 21 April 2018 the [applicant] was driving the stolen Lexus with [FA] in the passenger seat and was travelling south along Stud Road. [Charge 1 - Theft] CCTV captures the vehicle travelling at a fast rate of speed.
4. As the [applicant] approached the intersection of Stud Road and Boronia Road the traffic signal applicable to south bound traffic was red. The [applicant] drove the Lexus through the red light at excessive speed and collided with the passenger side of a Holden sedan being driven by the victim, Bita Toudeh Zaeim. The [applicant] entered the intersection against a red traffic light that had been red for one minute and eight seconds.
5. The force of the impact has rotated the Holden several times in an anti-clockwise direction across the west bound lanes of Boronia Road. The vehicle came to rest on the nature strip outside the Knox Club, approximately 40 metres from the point of impact. The passenger, Matthew Goland, died instantly at the scene. [Charge 2 - Culpable driving]
6. The driver of the Holden, Bita Toudeh Zaeim, sustained life-threatening injuries and was transported to the Alfred Hospital. She died as a result of her injuries soon after her arrival to hospital. [Charge 3 - Culpable driving]
7. After impact, the Lexus rotated in an anti-clockwise direction through the intersection and rolled twice, striking a traffic pole. The Lexus came to rest 52 metres from the point of impact.
8. The collision was captured on CCTV footage from the Knox Club ...
9. Nearby witnesses observed the collision and ran to the scene. Witnesses observed the [applicant] reach into the Lexus and pull [FA] from the vehicle. He was overheard telling her 'Let's go, let's go, let's go' in a hurried voice.
10. Both [the applicant and FA] then ran from the scene. One of the witnesses was able to grab hold of the [FA's] jacket but the jacket slipped off and both [the applicant and FA] were able to escape. The [applicant] rendered no assistance to either of the victims. [Charge 4 - Fail to render assistance]
11. At 1.14 am, [FA] phoned a friend, Barbara McDonough and asked to be picked up. Ms McDonough woke her partner and together they drove to pick up [FA] from a location in Wantirna. Upon arriving, [FA] pleaded to allow the [applicant] to travel with them. They allowed both [the applicant and FA] into their vehicle and drove them back to their home address.

1. At the time of the collision, the [applicant] was a disqualified driver having been disqualified from driving on 20 June 2017 for a period of two years. [Summary charge 8]
2. As at 21 April 2018 an active intervention order was in place preventing the [applicant] from contact with [FA]. This order was issued by the Ringwood Magistrates' Court on 15 February 2017. [Summary charge 11]

1. As a result of witnesses contacting 000, police attended the scene of the collision and an investigation commenced. A mobile phone belonging to the [applicant] was located in the stolen Lexus and a brown wallet, also belonging to the [applicant] was found nearby.
2. A collision reconstructionist attended the scene and later opined the following:
   1. It is my opinion that at approximately 1.10 am on 21 April 2018, a Lexus 4WD was travelling in a southerly direction along Stud Road, Wantirna South approaching the intersection of Boronia Road. The Lexus was travelling at approximately 133 kph five seconds prior to entering the intersection against a red traffic light and colliding with the Holden Sedan. The traffic light had been red for Lexus for approximately one minute and eight seconds. At impact, the Lexus was travelling at approximately 114 kph and the Commodore was travelling at approximately 77 kph.
3. At the time of the collision the road was dry, conditions were clear and the street lights were operating.
4. At 1.00 pm on 21 April 2018, police attended [FA's] home address and arrested both [the applicant and her]. They were taken to Maroondah Hospital for assessment and observation. Both [the applicant and FA] were discharged and conveyed to Ringwood Police Station for interview.
5. On 22 April 2018, the [applicant] made a 'no-comment' record of interview. He was charged and remanded into custody on this date.

The applicant's background and personal circumstances

6 Ongoing cognitive difficulties resulting from severe injury suffered as a toddler, coupled with a dysfunctional upbringing - over neither of which he had any control - determined that the applicant experienced an extremely difficult childhood and adolescence.

7 Material before the sentencing judge indicated that, when he was aged 16 months, the applicant suffered life-threatening injuries when his father ran over him whilst reversing a car out of a driveway. A neuropsychological report indicated that significant chest injuries sustained by the applicant may have resulted in secondary hypoxic brain injury even though he did not sustain any head injury in the accident.

8 Throughout his childhood, the applicant experienced significant behavioural and learning difficulties. When aged 9 or 10 he was diagnosed with a conduct disorder (and possible anxiety disorder). He was frequently suspended from school. At one point he was placed in Residential Out of Home Care by the Department of Health and Human Services, returning to live with his mother full-time when aged 16 or 17. Between 1999 and 2012, when the applicant was aged between one and 14 years, Child Protection services received 13 reports with respect to the applicant's family, relating to neglect, lack of food, family violence, drug use, intervention orders and inappropriate discipline.

9 In 2014, the applicant was diagnosed by a neuropsychologist with a language-based learning disorder. It was concluded that the severity of the applicant's 'severe specific learning disorder with impairment' meant that further intervention was unlikely to effect much improvement. Moreover, it was considered that the applicant's heavy drug and alcohol use from a young age may have resulted in a degree of permanent brain impairment.

10 The applicant began drinking alcohol and smoking cannabis when aged 11, and drank and smoked on a daily basis between the ages of 14 and 16. From age 16 until the time of his arrest, the applicant smoked cannabis daily. He also used ecstasy, heroin and methamphetamines.

11 A forensic psychiatrist, Dr Nina Zimmerman, in a report dated 30 November 2018, concluded that imprisonment would likely have more of an impact on the applicant than on a man without his learning disability and cognitive difficulties, and that he would be vulnerable to bullying.

12 Although, perhaps, not wholly surprising, given his blighted childhood and adolescence, for one so young the applicant has a substantial criminal history. Thus, it appears that, in the space of five years preceding the current offences, he had been dealt with for 96 offences from 13 court appearances. In his reasons for sentence, the judge described the applicant's criminal history as follows:

You have admitted a prior criminal history. It is extensive and very concerning for someone 19 years of age. In 2013, at the age of 14, you appeared in the Children's Court for assaulting police. At 15, you were placed on probation for wilful damage, theft, assaults and criminal damage charges.

In January 2014, you were again released on probation by the Children's Court for offences of escape from custody, trespass, burglary and shop theft. Later that year, you were released on a bond for intentionally destroying property.

In August 2014, you were again released on probation for possession of cannabis, unlawful assaults, threatening words, trespass and damaging property. Four months later, you were yet again released on probation for hindering police, criminal damage, and unlawful assault.

On 1 June 2016, you were released on a youth supervision order for ten months on charges of unlicensed driving, careless driving, use unregistered vehicle, criminal damage, threat to inflict serious injury, wilful damage, assault, commit office whilst on bail, hinder police, recklessly cause injury, theft, and assault with a weapon. You were required to attend alcohol and drug counselling as well as psychoeducational counselling.

On 14 December 2016, you were fined for shop theft. On 15 February 2017, you were before the Ringwood Children's Court again for breach of the youth supervision order to which I have referred, and sentenced to three months youth detention. In June 217 [sic], you received another non-conviction bond for unlawful assault, assault by kicking, breach of family intervention order and breach of bail.

On 11 September 2017, you were before the Magistrates' Court and you were sentenced to nine months' detention in a youth training centre for offences of dealing with proceeds of crime, obtaining property by deception, possess a controlled weapon, going equipped to steal, handle stolen goods, attempted theft of a motorcar, failing to answer bail, theft, unlawful assault, committing offences on bail, resisting an emergency worker on duty, burglary, theft of a motor vehicle and contravening conditions of bail.

Finally, on 20 February [2018], you were convicted and discharged for three charges of attempted theft of a motor vehicle. I was informed that you were released from youth detention in November 2017. ...

13 Turning to the first ground, counsel for the applicant submitted that the sentencing reasons and plea discussions reveal error in the sentencing judge's application of the standard sentence provisions. The sentencing judge, so it was submitted, treated the standard sentence as a starting point, attributing primary or determinative effect to it. He placed undue weight on the standard sentence and sentenced the applicant inconsistently with the instinctive synthesis approach.

14 The applicant's counsel submitted that the judge effectively treated the standard sentence as a mandatory sentence imposed in cases involving mid-range offending. The judge overemphasised the objective seriousness of the offending as against the notional standard sentence, giving it primary or determinative weight. Counsel contended that the judge engaged in a 'tiered or staged' approach to sentencing the applicant on the standard sentence offences, which involved the judge commencing with an assessment of the objective seriousness; then factoring in the standard sentence; and, finally, adjusting for mitigation. Finally, the judge's reference to current sentencing practices also demonstrates error, since the applicant's was the first sentence for culpable driving following the introduction of the standard sentencing scheme.

15 Counsel for the respondent submitted that the focus should be on what the judge said in his reasons for sentence, rather than what he may have said in exchanges with counsel in the course of the plea. The sentencing reasons demonstrate, it was submitted, that the judge properly applied the standard sentencing legislation. There is nothing in the judge's reasons for sentence which leads to the conclusion that he has done anything other than sentence the applicant in the orthodox way.

16 Section 5A of the Sentencing Act 1991 ('the Act') establishes a 'standard sentence scheme'. By virtue of s 5B(2), in sentencing an offender for a standard sentence offence the court must take the standard sentence into account as one of the factors relevant to sentencing, and - despite the necessity otherwise to take into account current sentence practices under s 5(2)(b) - must only have regard to sentences previously imposed for the offence as a standard sentence offence. Culpable driving is a 'standard sentence offence'.[6]

17 When discussing the impact of the standard sentence scheme in relation to the applicant's sentence, the judge observed in his reasons for sentence that it

is clear that the standard sentence is only one of the relevant sentencing factors. It is not the dominant factor. It is one factor to be taken into account in arriving at an appropriate sentence. Instinctive synthesis principles still apply.

The prosecution and your counsel both provided submissions as to the operation of the standard sentencing scheme. There is no real dispute as to the relevant principles between them. I must assess the relative seriousness of your offending by reference to the nature of the offending and without reference to the matters personal to you.

The eight-year standard sentence is a legislative signpost for an offence in the mid-range of objective seriousness. The prosecution submitted, and your counsel conceded, that your offending is more serious than a mid-range culpable driving offence.

There are a number of factors that place your offending above the mid-range offending. Your speed was significantly higher than the 80 kilometre posted maximum speed. You entered the intersection at speed through a red light that had been red for a long period of time. You were driving a stolen car.

You should not have been driving at all, being disqualified from driving in June 2017 for two years. You killed two people. The victims were in no way responsible for what occurred. You had a young passenger in your vehicle.

Those objective features lead the court to conclude that the objective seriousness of your offending indicates that a sentence higher than the eight-year standard sentence should be imposed for each of the culpable driving offences to which you have pleaded guilty. That determination is, however, only one of the relevant sentencing factors.

...

Both your counsel and the learned prosecutor agree that the proper way to sentence you involved imposing sentences higher than the standard sentence and to moderately cumulate such sentences. I take into account your youth by imposing a greater parole period than I would impose for an older offender.

18 In Brown,[7] this Court said that a judge[8]

when sentencing for a 'standard sentence offence' must 'take the standard sentence into account as one of the factors relevant to sentencing'. This requirement:

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

19 The Court also made the following observations:[9]

Judges sentencing for standard sentence offences should continue to assess offence seriousness in the conventional way, taking into account both objective gravity and moral culpability. The obligations imposed by s 5B(2)(a) (to take the standard sentence into account) and by s 5(2)(ab) (to have regard to the standard sentence) are indistinguishable from the obligation imposed by s 5(2)(a) to have regard to the maximum sentence.[10] They are all 'legislative guideposts'.

That the process may involve an element of comparison would seem to follow from what the High Court said in Markarian about the function of the maximum penalty:

It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for [the sentencing judge] here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case.[11]

Just as judges have always had in mind a notion of 'the worst possible case', so they must now have in mind a notion of an offence 'in the middle of the range of seriousness'. At the same time, the utility of such a comparison is lessened in the case of the standard sentence. ...

20 No matter that the judge may have made some infelicitous remarks concerning sentencing for standard sentence offences in exchanges with counsel (something which the respondent's counsel seemed to accept), I am able to detect no error of approach in the judge's sentencing remarks.

21 Hence, the judge made clear that instinctive synthesis principles apply, and that the standard sentence is only one of the relevant sentencing factors, not the dominant factor. The standard sentence, the judge said, is a 'legislative signpost' for an offence in the mid-range of objective seriousness, whereby the relative seriousness of the offending must be assessed without reference to the matters personal to the applicant.

22 In my view, the judge's remarks simply do not justify the conclusion urged by the applicant's counsel that the judge treated the standard sentence as a 'starting point', giving it determinative effect. Moreover, it cannot be concluded from the judge's remarks that he effectively treated the standard sentence as a mandatory sentence to be imposed in cases involving mid-range offending; placed undue weight on the standard sentence; or sentenced the applicant inconsistently with the instinctive synthesis approach. Nor do the judge's remarks reflect that the judge engaged in a 'tiered or staged' approach, which involved the judge commencing with an assessment of the objective seriousness; then factoring in the standard sentence; and then adjusting for mitigation.

23 As I have indicated, the judge's sentencing observations do not betray specific error in the application of the standard sentence provisions.

24 The applicant's counsel argued in the alternative that, if the Court was of the view that the judge's remarks do not demonstrate error, the level of the sentences imposed on the culpable driving charges itself illustrates that there must have been misapplication of the scheme.

25 It is thus convenient to turn to consideration of whether the sentence is manifestly excessive or otherwise infringes the principle of totality.

Grounds 2 and 3: Manifest excess and totality

26 Counsel for the applicant argued grounds 2 and 3 together.

27 The applicant's counsel submitted that the individual sentences and orders for cumulation were not reasonably open when proper regard is had to the matters in mitigation and the applicable sentencing principles, including sentencing for a standard sentence offence. Counsel contended that the judge placed undue emphasis on the standard sentence, without giving due regard to the factors particular to the applicant. It was submitted that the sentences are manifestly excessive, and contravene the principle of totality, having regard to the applicant's youth; vulnerability and cognitive difficulties; troubled background; burden of imprisonment; and plea of guilty.

28 At the risk of repeating some details earlier referred to, counsel for the applicant submitted that the applicant was a young offender, with a very troubled background. His father was abusive, and his childhood was marred by assaults, abuse, neglect and periods of homelessness. Child protection services were often involved in relation to a lack of food, family violence and drug use. The applicant has a learning disability and cognitive difficulties, and he struggled throughout school, both academically and behaviourally. He is illiterate. At age 11 years he stopped school, and he started using drugs and absconding from home. From age 13 he was placed in residential care on a 'Custody to Secretary order'. When aged 17 years, he was diagnosed with a severe specific learning disorder with impairment.

29 Dr Zimmerman, counsel submitted, had stated that the applicant's accident at the age of 16 months had myriad effects on his life. She was of the view that custody would be more burdensome on the applicant due to his learning disability and cognitive difficulties and that he would be quickly overwhelmed. He was also vulnerable to bullying.

30 Counsel for the applicant submitted that the total effective sentence of 13 years' imprisonment reveals that insufficient weight was given to the applicant's youth, and too great an emphasis was given to the objective seriousness of the offending (particularly owing to the standard sentence). The sentence imposed is wholly outside the range and infringes the principle of totality.

31 The respondent's counsel contended that youth and the other factors relied upon by the applicant were all taken into account by the sentencing judge. Counsel submitted that the sentences are within range given the aggravating features and objective gravity of this case, even allowing for what mitigation the applicant could properly call in aid of his plea. General deterrence, denunciation and just punishment remained important considerations. The judge, counsel submitted, was cognisant of the principal of totality. But as the judge noted, this was extremely grave offending which, in order to give effect to relevant sentencing principles, demanded a significant term of imprisonment.

32 Giving the applicant's youth and difficult background full weight, I find myself unable to conclude that the individual sentences of nine years' imprisonment imposed on each charge of culpable driving are manifestly excessive when due regard is paid to the serious nature of the applicant's offending. Furthermore, I regard the sentence for failing to render assistance after an accident to be wholly unremarkable.

33 Youth of an offender - particularly a first offender - is often a primary consideration in sentencing, so that rehabilitation in the case of a youthful offender will often be more important than general deterrence.[12] This Court has for many years expressed the view, however, that general deterrence must usually be emphasised in sentencing for culpable driving causing death, and that there is correspondingly less scope for leniency on account of an offender's youth than there may be in the case of some other crimes. That does not mean that there is no scope for youth to influence the sentence - youth will continue to have a bearing on the length of any (and, in rare circumstances, the kind of) sentence imposed - but it cannot be forgotten that lives have been lost.[13]

34 In the present case, of course, the applicant is not a first offender. Although it is probably connected in a significant way to the misfortune he has suffered in his life, the applicant has an appalling criminal history. As the sentencing judge said, the applicant has 'bleak future prospects'. Notwithstanding his difficult background, however, the applicant's criminal history remains highly relevant. He is not, of course, to be punished again for his prior offending. But his bad record is relevant in a number of ways: as an indicator of his moral culpability (making due allowance for his cognitive difficulties); his prospects of rehabilitation; his dangerous propensities (and, concomitantly, the community's need for protection); and the increased importance of specific deterrence as a factor in sentencing.[14]

35 As was made clear by the High Court in Veen [No 2],[15] although the applicant's antecedent criminal history 'cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence', it is relevant

to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.

36 Further, in Bugmy, the High Court made it clear that a deprived background does not have the same relevance to all purposes of punishment:[16]

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.[17] An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

37 Perhaps a more problematic question than the length of the individual sentences imposed on each charge is the degree of cumulation ordered between sentences; in particular, the three years of the sentence on charge 2 ordered to be served cumulatively on the sentence on charge 1. The applicant's counsel contended that excessive cumulation led to a manifestly excessive total effective sentence, which infringes the principle of totality. Although, as I have indicated, I have not found the issue free from difficulty, I have concluded that the cumulation ordered between the sentences is within the bounds of sound sentencing discretion.

38 In his reasons for sentence, the judge was alive to the need to apply the principle of totality. He said:

Ultimately, I have had regard to principles of totality in arriving at an appropriate sentence. Each victim's death must be recognised in the sentence. However, some concurrency must be reflected to give effect to totality.

39 Two lives were lost as a result of the applicant's outrageous driving. Two families were left to endure the agony of that loss. Lest Bita Toudeh Zaeim's death be rendered a 'meaningless statistic',[18] there needed to be appropriate cumulation on the sentence on charge 1 of the sentence imposed on charge 2. Indeed, it has long been recognised by this Court that:[19]

So long as the cumulation does not offend the principle of totality it is ... properly within the exercise of a sound discretion to recognise the fact that the culpable driving has caused multiple deaths by cumulating a sensible portion of the sentence imposed for one offence upon the sentence imposed

for the other.

40 After anxious consideration, I have concluded that - notwithstanding the applicant's youth, plea of guilty and other mitigating factors - the cumulation ordered between the sentences for culpable driving fall within the bounds of sound sentencing discretion. I also regard the cumulation of one year of the sentence on charge 3 to be within the appropriate range.

41 In my opinion, although the total effective sentence of 13 years' imprisonment may - in the particular circumstances of this case - be considered stern, it is not manifestly excessive,[20] and does not offend the principle of totality. No sensible submission could be made in those circumstances that the non-parole period is manifestly excessive.

42 Leave to appeal against sentence should be refused.

43 As the reasons for judgment of Priest JA expose this is a very difficult case. A sentence of imprisonment of 13 years on a young man who has suffered an upbringing marred by deprivation and with a compromised intellectual ability, requires the closest scrutiny. I share his Honour's concerns but, for the reasons he gives, I agree that the application for leave to appeal must be refused.

[1] His date of birth is 23 November 1998.

[2] Crimes Act 1958, s 318(1). The maximum sentence is 20 years' imprisonment, and the standard sentence is eight years' imprisonment.

[3] Road Safety Act 1986, ss 61(1)(b) and (3). The maximum penalty is 10 years' imprisonment.

[4] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the pleas of guilty, he would have imposed a sentence of 16 years' imprisonment, with a non-parole period of 11 years.

[5] See Re FA [2018] VSC 372.

[6] See the definition of standard sentence offence in s 3(1) of the Act.

[7] Brown v The Queen (2019) 59 VR 462 (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) ('Brown').

[10] R v AB [No 2] [2008] VSCA 39; (2008) 18 VR 391, 405 [45] (Warren CJ, Maxwell P and Redlich JA).

[11] Markarian (2005) 228 CLR 357, 372 [31] (emphasis added) (citations omitted).

[12] R v Mills [1998] 4 VR 235, 241 (Batt JA).

[13] For example, see R v Sherpa [2001] VSCA 145, [11] (Callaway JA).

[14] R v O'Brien and Gloster [1997] 2 VR 714, 718 (Charles JA). See also Leishman v The Queen [2019] VSCA 270, [19] (Ferguson CJ, Whelan and Priest JJA) ('Leishman').

[15] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 477-8 (Mason CJ, Brennan, Dawson and Toohey JJ) ('Veen [No 2]'). See also R v O'Brien and Gloster [1997] 2 VR 714, 718 (Charles JA); Bugmy v The Queen (2013) 249 CLR 571, 595 [45] ('Bugmy'); Leishman, [19].

[16] Bugmy, 595 [44] (citations as in original). See also Leishman, [22].

[17] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ.

[18] See DPP v Solomon [2002] VSCA 106; (2002) 36 MVR 425, 429 [19] (Winneke P). See also George v The Queen (2017) 80 MVR 436, 471 [132] (Priest JA) ('George').

[19] R v Guariglia [2001] VSCA 27; (2001) 33 MVR 543, 547 [21] (Winneke P). See also George, 470 [130].

[20] See Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA) and the cases there cited.