Woldesilassie v The Queen [2018] VSCA 285

1 The appellant pleaded guilty in the County Court to one charge of dangerous driving causing death and one charge of dangerous driving causing serious injury. Following the plea made on his behalf, the judge sentenced him to be imprisoned for a total term of 4 years and 6 months, with a non-parole period of 3 years.[1] That sentence is comprised as follows:

Dangerous driving causing serious injury[3]

5 years 9 months' imprisonment, with a non-parole period of 3 years and 8 months

2 The appellant, by leave, appeals the sentences so imposed on him on the following grounds:

1. The learned sentencing judge was wrong to assess the appellant's moral culpability as falling at 'the higher end of the low range'.
2. The individual sentences and total effective sentence are manifestly excessive, having regard to:

(a) The learned Judge's finding regarding the appellant's moral culpability.

(b) The appellant's plea of guilty and remorse.

(c) The appellant's prior good character.

(d) The appellant's prospects of rehabilitation.

(d) The appellant's uncertain immigration status.

(e) The principle of totality.

3 Shortly after 7:00 pm on Sunday 18 September 2016, the appellant, who was driving a Ford utility vehicle north along McIntyre Road, Sunshine North, failed to stop at a red light that was applicable to his vehicle at the intersection of McIntyre Road and Suffolk Road. At the same time, two female pedestrians, 72-year-old Giovanna Dimech and her 74-year-old friend, Mary DeGiorgio, were walking on the pedestrian crossing from east to west across McIntyre Road. The appellant's vehicle collided with both women before it came to a stop in the intersection. Ms Dimech died as a result of the collision, and Ms DeGiorgio suffered serious injuries.

4 At the point at which the collision occurred, McIntyre Road is a four lane undivided highway. It has provision for two lanes of traffic to travel in either direction. The collision occurred in the left northbound lane at a point at which there was a designated pedestrian crossing. The crossing was controlled by traffic control signs, which enabled pedestrians to cross McIntyre Road in an east-west direction. The applicable speed limit was 60 kmph, which was defined by speed signs erected on McIntyre Road. It was a cold and rainy night. The traffic lights were operating and street lights illuminated the intersection.

5 On the day of the accident, Ms DeGiorgio and Ms Dimech had visited a friend who lived in McIntyre Road a short distance north of Suffolk Road. At approximately 7:00 pm, they left those premises and walked in a southerly direction along the eastern footpath towards Suffolk Road. After they crossed Suffolk Road, they waited at the pedestrian crossing on the eastern side of McIntyre Road for the lights to change. After the traffic lights, that were applicable to traffic travelling in a north and south direction along McIntyre Road, changed to red, the green pedestrian walk signal displayed. Accordingly, Ms Dimech and Ms DeGiorgio commenced to cross McIntyre Road. They crossed three lanes, in an east to west direction, before being struck by the appellant's vehicle as they attempted to cross the fourth lane.

6 At the time of the collision, the appellant was driving his vehicle in a northern direction on McIntyre Road in the left hand lane. He was intending to drive to Truganina to visit a friend. The appellant's vehicle was travelling at a speed estimated to be 45 kmph. As he approached the intersection, the lights applicable to his vehicle changed, first, to yellow, and then to red. The speed of the appellant's vehicle did not alter, and he passed three vehicles that were either slowing down or stopping in the right hand lane travelling north. The appellant stopped his vehicle within the intersection after the collision. Ms Dimech came to rest beside the driver's door of the vehicle, while Ms DeGiorgio was located a short distance north of it lying in the right hand northbound lane.

7 After the appellant's vehicle came to a stop in the intersection, he remained seated in the Ford utility. He was observed to be in a state of apparent shock at the time. He called his friend from whom he had borrowed the Ford vehicle, and remained sitting in the vehicle until the friend arrived.

8 Subsequently, an expert collision reconstructionist attended the scene and examined the evidence. She concluded that the lights applicable to the appellant's vehicle had changed from green to yellow approximately 13.5 seconds before impact, and that they had changed from yellow to red for a minimum of 9.5 seconds before impact. Based on a vehicle travelling speed of 45 kmph, the appellant's vehicle was approximately 168 metres from the intersection when the lights changed to yellow, and it was approximately 118 metres from the intersection when the lights changed to red. A vehicle, travelling at a speed of 45 kmph, could stop in less than 11 metres.

9 As a consequence of the injuries sustained by her in the collision, Ms Dimech was conveyed by ambulance to the Royal Melbourne Hospital where she died later that night. The pathologist who conducted the post-mortem concluded that the cause of death was from multiple injuries arising from the collision. Ms DeGiorgio was conveyed to the Alfred Hospital with life-threatening injuries. She spent five days in the hospital being treated for a fractured left shoulder, a fractured left leg below the knee, and for extensive pain arising from bruising to most of her body. Subsequently, she transferred to a rehabilitation hospital. Her left leg injury was managed by a hinged knee brace. Subsequently, Ms DeGiorgio was required to undergo knee replacement surgery.

10 After the collision, the appellant was arrested. He underwent a preliminary breath test which did not indicate the presence of alcohol. At a subsequent interview with the police, the appellant stated that on the previous evening he went to bed at 8:00 pm, and he awoke at 5:00 am in order to attend church. After he had returned to his home, he went to bed at 11:00 am, and woke up at 6:00 pm. He told police that during the previous seven months he had been on medication for depression and stress, but that he had stopped taking the medication four days before the accident. In the interview, he initially stated that the traffic light applicable to his vehicle was yellow, but later in the interview he said it was green. He said that it was raining, and he did not see the two women crossing the road. As soon as he realised he had hit the women, he immediately braked. After the collision he became unconscious as a result of hitting his head, and he was shocked by what had happened.

11 At the time of the collision the appellant was 40 years of age. He was born and raised in Ethiopia. He has no previous convictions either in Australia or Ethiopia.

12 The appellant's parents both died when he was young. His father passed away when he was 17 years of age, and his mother died three years later. The appellant commenced employment as a long distance truck driver when he was 17 years of age. He returned to school in his 20s in order to complete his secondary education.

13 The appellant married in Ethiopia in about 2002. There were three children of the marriage, who, at the time of the plea, were respectively 16, 12 and 10 years of age. His marriage broke down as a result of his frequent absences from the home due to the nature of his employment.

14 The appellant subsequently formed a new relationship with an Eritrean woman who had Australian citizenship. She sponsored him on a fiancé visa, and he arrived in Australia in 2014. The couple married, but their relationship only lasted 15 months, due to difficulties they experienced arising from their religious differences. As a consequence of the failure of his marriage, the appellant suffered depression. He attended at the emergency department at St Vincent's Hospital on 25 October 2015, where he reported feeling depressed. He was diagnosed with an 'adjustment disorder unspecified', and was prescribed the anti-depressant medication Zoloft. He again attended at the St Vincent's Hospital triage on 3 February 2016, when he was again prescribed 50mg of Zoloft daily. Subsequently, on 13 April 2016, he was attended by a medical practitioner at St Vincent's Hospital triage, where he was prescribed Zoloft 150mg tablet to be taken each morning. He was also provided with five repeat prescriptions, which, if taken regularly, would have been exhausted on or about 14 September 2016.

15 The appellant had ceased taking the anti-depressant medication a few days before the fatal collision. As a consequence he had difficulty sleeping. Before the accident he had a number of telephone contacts with his former wife in Ethiopia, and he had reconciled with her. In the period leading up to the offences, he had been feeling depressed as a result of his separation from his former wife and children who had remained in Ethiopia.

16 The appellant was examined by Mr Jeffrey Cummins, a forensic psychologist, in June 2017. At the time, the appellant was in custody and the consultation was conducted via a video conference. Mr Cummins formed the view that the appellant did not suffer from any anti-social personality disorder. The appellant told Mr Cummins that he was of the opinion that his failure to stop at the red light was due to a loss of concentration as a result of his obsessive thinking about his ex-wife and their three children in Ethiopia. Mr Cummins concluded that the appellant's general mental health at the time, including his daily negative ruminative thinking, his concentration difficulties, and the consequences of the cessation of his medication, may have been a significant or even a primary cause of his failure to stop at the red light. On the plea, the appellant's counsel, correctly, accepted that that conclusion was insufficient to mitigate the culpability of the appellant on the basis of the principles discussed by this Court in R v Verdins.[4]

17 On the plea, counsel for the appellant tendered character testimonials prepared by the President of the South Eastern Melbourne Oromo Community Association and by the Secretary of the Zetseat Ethiopian Evangelical Church.

18 In her reasons for sentence, the judge noted the submission made on behalf of the appellant that his moral culpability for the offending was at the lower end. Her Honour accepted that many of the aggravating features that ordinarily attend dangerous driving offences, such as excessive speed, or the consumption of drugs and alcohol, were not present. However, her Honour also noted that this was not a case of a momentary loss of concentration. Accordingly, her Honour accepted the submission made on behalf of the respondent that the appellant's moral culpability was at the 'higher end of the low range'.[5]

19 The judge noted that the appellant had pleaded guilty to the offences at an early opportunity, that he acknowledged his wrongdoing and he had expressed remorse, and that he was otherwise of good character. She accepted that the appellant's pre-existing depression, and the fact that he had ceased taking anti-depressant medication, was relevant to the context of the offending, although it was not a mitigating circumstance.

20 The judge noted that the prosecution accepted that the appellant's uncertain immigration status would be an additional burden on him during his term of imprisonment. The appellant is a member of the Oromo community, which faces persecution in Ethiopia, and, at some time in the past, the appellant had been arrested near the Kenyan border, imprisoned and subjected to torture over a period of 15 days. The appellant was at risk of deportation to Ethiopia as a consequence of his offending, and the judge accepted that that uncertainty would be a significant burden for him during his term of imprisonment.

Dangerous driving causing death and serious injury ― legal principles

21 Before turning to the two grounds of appeal, it is convenient, first, to outline, briefly, the principles that apply to the determination of the correct sentence in respect of the two charges to which the appellant pleaded guilty.

22 The constituent elements of the offences of dangerous driving causing death, and dangerous driving causing serious injury, have been considered in a number of cases. In Stephens v The Queen,[6] this Court summarised the effect of those authorities in the following terms:

Driving will be dangerous where there is 'some serious breach of the proper conduct of a vehicle so as to be in reality and not speculatively, potentially dangerous to others.' The driving must have some feature which subjects the public 'to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by a person who may on occasion drive with less than due care and attention.' A Court's assessment of the dangerousness of the driving will be informed by the extent of the risk which the driving created, as well as by the extent of potential harm should the risk materialise.[7]

23 Plainly, as the Court noted in Stephens,[8] the offence of dangerous driving may encompass a very wide range of conduct. In the determination of the appropriate sentence, it is necessary to take into account both the objective dangerousness of the offender's driving, and the moral culpability of the offender.[9] In particular, it is recognised that the moral culpability of the driver is of central importance to the sentencing task.[10]

24 In Director of Public Prosecutions v Oates,[11] Neave JA (with whom Warren CJ agreed) stated the following principles that are applicable to the present case:

1. General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.
2. A person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment.
3. The sentence which is imposed must take account of variations in the moral culpability of the person responsible.
4. A custodial sentence will usually be appropriate for this offence except in cases where the offender's level of moral culpability is low.[12]

25 In R v Whyte,[13] Spigelman CJ (with whom Mason P, Barr, Bell and McClellan JJ agreed) compiled a list of the following nine factors that may aggravate a sentence in a particular case, namely:

i. Extent and nature of the injuries inflicted.

ii. Number of people put at risk.

iii. Degree of speed.

iv. Degree of intoxication or of substance abuse.

v. Erratic [or aggressive] driving.

vi. Competitive driving or showing off.

vii. Length of the journey during which others were exposed to risk.

viii. Ignoring of warnings.

ix. Escaping police pursuit.[14]

26 In Stephens, it was noted that that list of factors should not be applied in a rigid or formulaic manner. The Court stated:

However, the factors identified in Whyte (and subsequently adopted by this Court in Neethling as being relevant) do not constitute some mere checklist nor are they intended to be exhaustive. For example, matters such as the experience of the driver, his familiarity with the vehicle being driven, the terrain over which the vehicle is being driven and the degree of protection afforded to passengers are not matters listed.[15]

27 Ground 1 is directed to the characterisation by the judge of the appellant's moral culpability as being at 'the higher end of the low range'. The judge reached that conclusion for the following reasons:

The extended period over which you failed to keep a proper lookout and to attend to the road ahead of you in the prevailing conditions is what constitutes the most serious aspect of your conduct.

The manner of your driving on 18 September 2016 was a significant departure from the standard of care and attention required of a reasonable driver. It created an appreciable risk to members of the public in the vicinity, a risk that was tragically realised with the death of Ms Dimich and the serious injuries suffered by Ms DiGeorgio.

It is an aggravating feature of the offending that you remained in your car after the collision despite other bystanders stopping to assist until emergency services arrived. This is only explained by you being in shock.

The prosecutor ... submits that your moral culpability sits at the higher end of the low range. I accept that submission.[16]

28 Counsel for the appellant has submitted that that characterisation of the appellant's moral culpability was erroneous. In particular, it was submitted, it was inappropriate for the judge to have created a 'category within a category' when assessing the appellant's culpability, and, by doing so, the judge distracted herself from an appropriate consideration of the relevant factors that affected that assessment. Further, counsel contended, while it was relevant that the appellant's inattention to his driving was relatively prolonged, nevertheless that factor did not justify the classification of the appellant's moral culpability at the 'higher end' of the low range. In particular, it was submitted, the appellant's moral culpability was 'low', because his driving lacked any of the common aggravating features, and because he drove dangerously due to inattention, and not due to any intentional taking of a risk by him.

29 In response, counsel for the respondent contended that the judge's characterisation of the moral culpability of the appellant was correct. The central feature of the case was the significant and extended period of inattention on the part of the appellant. The weather conditions that were prevailing at the time demanded an increased, rather than reduced, level of concentration and attention. In those circumstances, the extended period of inattention by the appellant justified the judge in assessing the moral culpability at the higher end of the low range.

30 It is common for a sentencing judge to assess the moral culpability of a particular offender, or the gravity of the offending, by characterising it as being either low, medium, or high. However, it is important to bear in mind that the characterisation by a sentencing judge of an offender's moral culpability, or of the objective gravity of the offending, in that way is not a matter of exactitude or precision. Importantly, such a characterisation should not be subjected to a degree of artificial analysis involving fine and often inappropriate distinctions. Nor should it obscure a proper analysis of the underlying factors that inform the assessment of the offender's culpability.

31 In Director of Public Prosecutions v Weybury,[17] Maxwell P and Hargrave JA stated:

As appears above, we regard the respondent's moral culpability as high, and the dangerousness of the driving as a very serious example of the offences. However, it is in our opinion not helpful to debate whether, on the spectrum of cases from least to most serious, the offending in this case falls within a particular category such as 'mid-range' or 'bottom of the high-range' or other like classifications. Such an approach carries the risk that it will attract reference to current sentencing practices for offences which have previously been categorised in a particular range, whatever the circumstances of the offending and the mitigating circumstances. Such an approach may lead to sentencing judges unconsciously limiting their instinctive synthesis of a particular case by sentences in other cases classified within a particular range, rather than considering the individual facts of comparable cases.[18]

32 In the present case, the judge characterised the appellant's moral culpability as being at the 'higher end of the lower range' in response to a submission by the prosecution that a non-custodial disposition was only appropriate for a case in which the offender's level of moral culpability 'falls at the low end of the low range'. That proposition was based on statements by this Court in Stephens[19] and Oates.[20] It was not necessary for the prosecution to have made such a submission, as counsel for the appellant, in the plea, did not contend that the judge should impose a non-custodial sentence. However, when properly understood in that context, the judge's conclusion, as to the appellant's culpability, amounted to a finding that, while the appellant's culpability might be characterised as being of a low order, nevertheless it was not of such a low degree as would justify the imposition of a non-custodial sentence. So understood, and for the reasons that follow, we consider that the assessment by the judge of the appellant's culpability was not only open to her Honour, but was plainly correct.

33 It may be readily accepted that the appellant's offending was not attended by any aggravating features of the type described by Spigelman CJ in Whyte. The appellant was driving at a speed well below the prescribed limit; he was not affected by the consumption of alcohol or drugs; and he was not intentionally engaging in conduct that involved undue risk to other users, such as overtaking another vehicle when it was unsafe to do so.

34 On the other hand, the appellant's inattention to his driving, and his almost total lack of concentration, meant that he was simply not in control of the vehicle. The lack of control extended for a substantial period. He was a significant distance from the intersection ― approximately 168 metres ― when the traffic lights that were applicable to his vehicle, turned yellow. Less than a moment's attention would have alerted him to the fact that, by the time he reached the intersection, the lights applicable to his vehicle would be red. After the appellant travelled a further 50 metres, and when his vehicle was approximately 118 metres from the intersection, the lights facing his vehicle turned red. Again, less than a moment's attention would have made him conscious that he was required to stop his vehicle before it reached the intersection. The level of attention required of the appellant, or of any driver, in those circumstances, was not substantial in order that he respond correctly to the traffic lights applicable to him. Yet the appellant continued to proceed towards the intersection totally oblivious of that fact.

35 The appellant's culpability was compounded by the fact that he failed to notice, or assimilate the fact, that three vehicles that had been travelling in the lane that was adjacent to him were either slowing down or had stopped in order to comply with the red traffic lights. He did not notice those vehicles, apparently, as he passed them. Further, as counsel for the respondent has noted, the fact that the weather conditions were unfavourable, and that it was dark and raining, accentuated the need for the appellant to pay attention to his driving.

36 This was not a case in which the appellant deliberately sought to take the risk of 'running' a red light. If he had done so, his level of moral culpability would have been substantially greater than that described by the judge. Her Honour accepted that the appellant's psychological and emotional issues at the time had distracted him from paying attention to his driving. That circumstance explained why the appellant failed to pay attention to his driving. However, as correctly acknowledged by counsel for the appellant on the plea, those factors did not mitigate the appellant's moral culpability or the gravity of his offending.

37 In short, the appellant's inattention to his driving was prolonged and extended. The degree of inattention was such that he completely missed noticing, and reacting to, a number of warning signs that an experienced driver routinely encounters and responds to, almost automatically, on a public roadway. In those circumstances it would not have been appropriate for the judge to have characterised the appellant's moral culpability as being of such a low level as to justify a non-custodial sentencing disposition.[21] In our view, the judge was correct in her assessment of his culpability. It follows that ground 1 must fail.

38 In support of ground 2, counsel for the appellant submitted that a head sentence of 3 years and 6 months' imprisonment, in respect of charge 1, cannot be reconciled with the finding by the judge that the appellant's moral culpability was in the low range. Counsel noted that this was not a case in which the appellant should not have been on the road, and he did not voluntarily drive in a manner that presented a danger that was inevitable. He submitted that, while some form of imprisonment was called for in the circumstances of the case, nevertheless there were powerful mitigating circumstances, including the appellant's lack of criminal convictions, his good character, his early plea of guilty, his remorse, and the fact that a sentence of imprisonment would be more burdensome on him because he might be subject to deportation when released from custody.[22]

39 Counsel for the appellant further contended that the amount of cumulation of the sentence imposed on charge 2, on the sentence imposed on charge 1, was excessive. In particular, there was no evidence that the appellant had any foreknowledge that both victims were crossing the road so that he knowingly exposed them to a risk. Thus, it was submitted, the resulting sentence was not just and appropriate as a measure of the appellant's total criminality, taking into account his low moral culpability, and his mitigating factors.

40 In response, counsel for the respondent contended that the sentences imposed on the appellant constituted a sound exercise of the sentencing discretion, taking into account the importance of general deterrence, and the judge's characterisation of the offending as at the higher end of the low range, and in light of the grave consequences of the appellant's offending, which resulted in the death of one innocent victim, and serious and permanent injury to the other victim. Taking those matters into account, it was submitted that the individual sentences, and the order for cumulation, were entirely within the range of sentencing options available to the judge.

41 In order to succeed on this ground of appeal, that the sentences imposed on the appellant were manifestly excessive, the appellant must establish that the sentences were wholly outside the range of sentencing options available to the sentencing judge.[23] In that way, the sentences must be demonstrated to be so excessive as to manifest error by the judge in the exercise of the sentencing discretion, notwithstanding that no specific error can be identified in the reasons for sentence pronounced by the judge.[24]

42 As we have noted, the determination of the appropriate sentence, in respect of the offences to which the appellant pleaded guilty, involved an evaluative assessment by the judge, not only of the appellant's moral culpability, but also of the objective gravity of his offending. This was particularly dangerous driving, given the extent of the risk which it created and the extent of the potential harm should that risk materialise.[25]

43 The almost total failure by the appellant to pay attention to his driving, for a period of at least 13 and one half seconds, when proceeding along a suburban road in dark and wet conditions created a very substantial risk to other road users and to pedestrians. Further, entering the intersection, which was controlled by traffic lights and a pedestrian crossing, almost 10 seconds after the lights applicable to his vehicle had turned red, in the evening and in such weather conditions, involved a significant risk that serious injury or death might ensue, as it did.

44 The consequences of the appellant's driving were indeed grave. As a result of the appellant's prolonged inattention to his driving, an innocent elderly pedestrian lost her life, and her companion suffered severe and permanent physical and emotional injuries, through no fault of their own. It could not be maintained that the accident that befell the two victims was in any way brought about by some unfortunate stroke of fate. Rather, it was the kind of accident that was a plainly foreseeable, and highly possible, consequence of the dangerous manner in which the appellant drove his vehicle.

45 In determining the appellant's sentence, it was of course necessary for the judge to weigh the gravity of the offending, as we have just described it, against his moral culpability, and the mitigating factors outlined by the judge. Taken together, those mitigating factors were not insubstantial. However, the cases, to which we have referred, make it clear that the sentencing purposes of general deterrence, denunciation and protection of the public are accorded particular weight in respect of offences such as those to which the appellant pleaded guilty.

46 Taking those matters into account, it could not be concluded that the individual sentences, or the total effective sentence, imposed by the judge were manifestly excessive, as being wholly outside the range of sentences that were available to the sentencing judge. Certainly, the sentences that were imposed by her Honour were stern, bearing in mind the relatively low moral culpability of the appellant, and his mitigating circumstances. However, the sentences were not of such magnitude as to bespeak some error in the instinctive synthesis that lies at the heart of the sentencing process. Accordingly, ground 2 is not made out.

47 For the foregoing reasons, the appellant has failed to establish either of the two grounds of appeal relied on by him. It follows that the appeal must be dismissed.

[1] DPP v Woldesilassie [2017] VCC 1332 (11 September 2017) ('Sentencing Remarks').

[2] Crimes Act 1958 s 319(1).

[3] Ibid s 319(1A).

[4] [2007] VSCA 102; (2007) 16 VR 269.

[6] [2016] VSCA 121; (2016) 50 VR 740 ('Stephens').

[7] Ibid 745 [20] (Redlich, Santamaria and Beach JJA). See also McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44, 49-50 (Barwick CJ); Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572, 579 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ); King v The Queen [2012] HCA 24; (2012) 245 CLR 588, 608-9 [44]-[46] (French CJ, Crennan and Kiefel JJ).

[8] [2016] VSCA 121; (2016) 50 VR 740, 745 [21].

[9] DPP v Neethling [2009] VSCA 116; (2009) 22 VR 466, 473 [33] (Maxwell P, Vincent JA and Hargrave AJA) ('Neethling').

[11] [2007] VSCA 59; (2007) 47 MVR 483 ('Oates'); Stephens [2016] VSCA 121; (2016) 50 VR 740, 745-46 [21].

[12] Oates [2007] VSCA 59; (2007) 47 MVR 483, 487 [22]; Neethling [2009] VSCA 116; (2009) 22 VR 466, 472 [30].

[13] [2002] NSWCCA 343; (2002) 55 NSWLR 252 ('Whyte').

[14] Ibid 286 [216]-[217]. See also R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209, 231.

[15] Stephens [2016] VSCA 121; (2016) 50 VR 740, 746-7 [25].

[17] (2018) 84 MVR 153.

[19] [2016] VSCA 121; (2016) 50 VR 740, 745-6 [21].

[20] [2007] VSCA 59; (2007) 47 MVR 483, 486 [22].

[21] Cf Bell v The Queen [2018] VSCA 281, [54] (Ashley JA).

[22] Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288, 295 [27] (Maxwell P, Bongiorno JA, Beach AJA).

[23] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89].

[24] House v The King (1936) 55 CLR 499, 505; R v Tait (1979) 24 ALR 473, 476 (Brennan, Deane and Gallop JJ); R v Pham [2015] HCA 39; (2015) 256 CLR 550, 559 [28].

[25] Stephens [2016] VSCA 121; (2016) 50 VR 740, 745 [20].