Worboyes v The Queen [2021] VSCA 169

1 Pursuant to a grant of leave on the papers,[1] the appellant, Tyler Worboyes, now aged 27 years,[2] appeals against a total effective sentence of two years and five months' imprisonment, with a non-parole period of one year and four months, imposed upon him by a judge of the County Court on 24 July 2020, following his pleas of guilty to: recklessly causing serious injury;[3] reckless conduct endangering serious injury;[4] and failing to render assistance after a motor vehicle accident.[5]

2 The appellant was granted leave to appeal on four grounds, which are (as renumbered):[6]

1. The learned sentencing judge erred in failing to take into account the impact of the forfeiture of the [appellant's] vehicle, and in doing so failed to apply and consider the relevant principles of proportionality and totality.
2. The learned sentencing judge erred in failing to give meaningful attribution to the benefit of a plea of guilty during the COVID-19 pandemic.
3. The learned sentencing judge erred in failing to properly apply the principle of parsimony, in that his Honour did not consider whether a term of imprisonment in combination with a community correction order was a sentencing option.
4. The total effective sentence, individual sentences, orders for cumulation and non-parole period fixed are manifestly excessive.

3 Having now had the benefit of full oral argument, the Court is of the view that the appeal should be dismissed. Our reasons follow.

4 The appellant's offending may briefly be summarised. Shortly before 11.00 pm on 27 March 2019, the eve of his twenty-fifth birthday, the appellant performed a 'burnout' in his VU Holden utility - that is, he kept his motor vehicle stationary while spinning its wheels, causing the tires to heat up and smoke - at a 'skid meet' (an illegal event where some individuals gather to perform, and others to watch, burnouts) attended by between 200 and 400 people in an industrial area in Derrimut (charge 1). In the course of the burnout, the appellant's vehicle clipped the kerb and struck a young man, Keanu Gueli-Quaresma, who was standing on the nature strip watching another car perform a burnout. As a result of being struck, Mr Gueli-Quaresma suffered serious injury (charge 2). Having initially stopped his vehicle, the appellant left the scene upon being threatened by by-standers (charge 3).

5 Mr Gueli-Quaresma was rendered unconscious by the collision. He arrived at hospital at 12.15 am on 28 March 2019, and was found to have suffered a left superior and inferior pubic ramus fracture, with complete left sided sacral fracture extending into the face joining the L5 vertebra, which required surgical stabilisation. On 31 March 2019, he underwent an L4-sacrum posterior spinal in-fix. He was released from hospital on 4 April 2019, the expectation being that he would have further surgery in a few months' time to remove the spinal metalware. As at the date of sentence, Mr Gueli-Quaresma had not returned to work, and, in a victim impact statement, said that he was 'no longer able to pursue a career of a fully qualified mechanic'. He also described his significant physical and mental pain.

6 The judge commenced his sentencing remarks by observing that the appellant, an apprentice roof tiler, was aged 25 years at the time of offending.

7 Next, the judge briefly described the charges and the offending, noting that he had watched CCTV footage showing the 'burnout' a 'number of times' (albeit the footage does not show the circumstances of charge 2). He also described Mr Gueli-Quaresma's injuries, and recited aspects of the victim impact statements.

8 The judge then turned to the appellant's record of interview with police, stating that the appellant 'cooperated with police', and observing that 'given his age and the type of event, [the appellant] no doubt had no perception of the change in his life that was going to be brought about by what happened'.

9 Although, so the judge noted, the appellant had 'no criminal priors as such', he did have 'concerning driving priors'. Thus, his licence had been suspended three times between the ages of 18 and 24. All of the suspensions related to excessive speed, 'where he was between at least 25 and up to 35 kilometres over the speed limit'. The appellant had also lost his licence for six months in September 2013, for having a blood alcohol concentration of .048 per cent when a probationary driver.

10 Prior to sentence, the judge had the appellant assessed for a community correction order ('CCO'), although, as the judge noted, the prosecutor had submitted that 'gaol was inescapable'. The prosecutor had also submitted that 'the sentence needs to deter the very audience which was attending this skid'; and, for the purposes of charge 2, 'that the serious consequences of this reckless driving need to be taken into account'.

11 The judge then referred to sentences of other County Court judges that the prosecutor had raised, and he noted what he described as 'the guideline judgment' of Harrison.[7] Next, the judge referred to Ibbs[8] and Weybury,[9] and said that:

On the spectrum of seriousness for offending ... I classify Charge 1 as being on such spectrum as between low to moderate. Charge 2 as moderate, in particular given the limited aggravating factors, despite the recklessness, and Charge 3, I assess as low.

12 Turning to what he referred to as 'the Spanjol factor', the judge discussed the role of the victim - citing Spanjol[10] and Guseli[11] - and indicated that it would result in 'a modest reduction in sentence'. He said he took into account that

the victim had gone voluntarily to this skid meeting, had placed himself on the edge of the road where cars were going to perform donuts in front of him, in circumstances which I consider he thereby, exposed himself to obvious risk, and as such, the second limb in Spanjol is established.

13 The judge accepted that the appellant had shown remorse and had 'been open and cooperative to the authorities in this matter'. His guilty pleas were 'particularly valuable', and his plea to the first charge 'a very valuable plea'. The judge said that the appellant 'is entitled to an appropriate discount', not only because his was a 'valuable plea', but because of its 'utilitarian effects' on the course of justice and because it demonstrates remorse. He added that the appellant 'is a person who has strong family support', and 'has an excellent employment history'.

14 With respect to the effects of the current pandemic, the judge said that he took into account

the COVID-19 risks that this Court is well aware of, and were further spoken of by [the appellant's counsel] today, clearly we all know of the imminent risks in the present system and consequential stress and inconvenience to prisoners.

On being sentenced to gaol, a person is going to be subject, at least initially, to a fourteen-day isolation. One is equally going to be subject when one is out of that, to half day lockdowns in any prison in the current system. One is also going to be subject to a totally reduced number of visitors, be it friends or family, and of course the situation of living in an environment where such risks exist.

15 Finally, the judge cited passages from Hutchinson,[12] and stated:

It would not be just to allow you to be sentenced by way of a [CCO] in any form. It is inescapable, as was put by the prosecutor, that you must be sentenced to a period of gaol on the totality of the circumstances in this case.

The event in which you took part was inherently dangerous to your knowledge. You were aware that such events had previously caused injuries. On this day, you willingly, by your reckless behaviour, not only participated, but firstly created a risk to all who were there, and caused serious injuries to Mr Gueli-Quaresma.

As you have heard today, and as confirmed in the two victim impact statements, as a consequence of your criminality, you have caused grave physical and mental impact to him, the full consequences of which are still unknown. In those circumstances, the principles of general deterrence and denunciation, as put by the learned prosecutor, are particularly important. Specific deterrence is also a factor in this case, given your particular priors.

I accept that, as earlier put by [defence counsel], you have limited criminal priors and that there has been otherwise on your behalf, good plea material. You are still relatively young and obviously I accept, the principle of rehabilitation is particularly important, and I do take it into account. However, given the serious consequences and injuries to Mr Gueli-Quaresma and the risk created by your driving, and your objective criminality, the role of rehabilitation must in the sentencing calculus, be necessarily reduced, to use the words of [Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43, 53-5 [34] to [36]].

16 Set out in tabular form, the sentence that the judge then imposed was as follows:

Failure to stop and render assistance after a motor vehicle accident

3 years and 2 months' imprisonment with 2 years and 5 months' non-parole

Licence cancelled and disqualified for 4 years (charge 3); forfeiture (motor vehicle)

Ground 3: The utilitarian value of a guilty plea during the pandemic

17 It is convenient to turn first to ground 3, which contends that the sentencing judge erred 'in failing to give meaningful attribution to the benefit of a plea of guilty during the COVID-19 pandemic'. The issue raised by this ground was common to three appeals argued the same day before a similarly constituted Court.[13]

18 As is plain from his sentencing remarks, the judge specifically stated that in fixing sentence he took into account the imminent risks to prisoners posed by COVID-19 and the stress and inconvenience thereby caused. The judge noted that, upon being imprisoned, a person is subject initially to 14 days' isolation. Prisoners are also going to be subject to lockdowns, and have greatly reduced contact with family and friends.[14]

19 None of the submissions of the appellant's counsel on the plea were, however, directed specifically to the notion that a guilty plea entered during the current pandemic should attract a greater 'discount' on sentence than a guilty plea entered in non-pandemic times due to an increased utilitarian benefit. Notwithstanding that this is so, counsel for the appellant submitted orally in this Court that the judge should have: first, recognised the greater utilitarian benefit that flowed from the appellant's pleas of guilty; secondly, specifically referred to that greater utilitarian benefit in his sentencing remarks; and, thirdly, explicitly reflected that greater utilitarian benefit in the sentence imposed.

20 Although we consider that - in circumstances where he was not asked to address the issue - it is quite unrealistic to criticise the sentencing judge for failing to deal with the contention that he should have recognised a greater utilitarian benefit inheres in a plea of guilty entered during the pandemic, out of deference to the earnest and comprehensive submissions advanced by the appellant's counsel under cover of this ground, we consider it appropriate to make the following observations.

21 It is a matter of public record that the COVID-19 virus was first identified in Victoria in late January 2020. Thereafter, in March 2020, a state of emergency was announced, and (among other things) the government shut down 'non-essential services' and 'social distancing' rules (so-called) were introduced. Throughout May and June 2020, a second wave of infections led to a strict 'lockdown' in Melbourne which lasted several months. Jury trials in criminal cases were suspended, and the capacity of courts otherwise to dispose of criminal work was severely compromised, leading to a drastic backlog of criminal cases (particularly in the County Court and Magistrates' Court). Although some semblance of normality had started to return to the operation of the Courts by the early part of 2021 - by way of example, some jury trials had recommenced in the Supreme Court and County Court from 16 November 2020, and the Chief Justice and the Chief Judge of the County Court had announced in a joint statement dated 19 March 2021 that criminal jury trials will progressively resume in regional courts across Victoria in the coming months - a further 'lockdown' related to another COVID-19 outbreak in Melbourne was introduced on 27 May 2021. That so-described 'circuit breaker lockdown' was still in operation when the present appeal was heard.

22 Although one might well debate the extent of their magnitude, and the length of time it will take to bring them within acceptable limits, it is an undeniable fact that enormous and intimidating backlogs in the criminal lists of both the County Court and Magistrates' Court have resulted from the government's response to the pandemic. This Court cannot turn a blind eye to the fact that, by any yardstick, the backlogs in the resolution of criminal cases in those courts will take years to rein in.[15]

23 Of particular and abiding importance, there are hundreds of jury trials in the County Court awaiting disposal. Furthermore, experience in the limited number of jury trials that it has been possible to resume since the second wave of infection (to an extent) has abided, demonstrates that trials are far more resource-intensive and depleting than was the case pre-pandemic. Thus, by way of example, two courtrooms have been required to conduct a single trial.[16]

24 It is against that background that the contentions advanced in support of the present ground of appeal fall to be determined.

25 For some years, appellate courts have recognised the desirability of encouraging accused persons to plead guilty in order to reduce the volume of cases in congested criminal business lists. Thus in Shannon,[17] a question had arisen during a sentence appeal in the Full Court of the Supreme Court of South Australia consisting of three judges as to the weight (if any) which the sentencing judge should have given to the appellant's plea of guilty. Given the state of the authorities, and in light of the apparent differences in approach by judges of the Court, a Court of five judges was convened to give authoritative guidance to judges and magistrates. Significantly, King CJ recognised that the administrative demands alone of an over-burdened system of criminal justice justified a reduction in sentence when an accused pleads guilty. An incentive to accused persons to plead guilty should be offered by way of mitigation of sentence, thereby resulting in court lists being eased. A willingness to co-operate in the administration of justice by pleading guilty should mitigate sentence. Hence, King CJ observed:[18]

The volume of criminal business has placed the court system under stress and has resulted in unfortunate delays in bringing accused persons to trial. Congestion is greatly contributed to by offenders who put forward false stories and make use of legal aid in an effort to escape conviction. The growth in the importance of these factors points, in my opinion, to the desirability of providing some encouragement to guilty persons to admit their guilt.

If a plea of guilty, as distinct from remorse evidenced by such a plea, cannot be regarded as a factor in mitigation of penalty, there is no incentive, other than the demands of honesty, for an offender to admit his guilt, and experience indicates that the demands of honesty have but little influence on many of those who appear in the docks of criminal courts. In most cases, if the offender has nothing to gain by admitting his guilt, he will see no reason for doing so. I am impressed by the strong practical reasons for recognising a willingness to co-operate in the administration of justice by pleading guilty as conduct possessing a degree of merit, quite apart from remorse, which can be taken into account in assessing the sentence.

27 Morton[20] was decided in this State a few years after Shannon, when s 4 of the Penalties and Sentences Act 1985[21] set out the manner in which a sentencing court was to deal with guilty pleas. The Court (Young CJ, King and Beach JJ) said:[22]

The result of this consideration of the section is that a court may always take a plea of guilty into account in mitigation of sentence even though it is solely motivated by self-interest and even though it is a plea to lesser offences than those originally charged or intended to be charged. Doubtless, however, a plea of guilty which is indicative of remorse or of some other mitigating quality will ordinarily carry more weight than a plea dictated solely by self-interest. Nevertheless, Parliament having indicated, by the requirement that a court state the fact that it has reduced the sentence that it would otherwise have passed on account of a plea of guilty, that encouragement is to be given to pleas of guilty, such a plea should ordinarily be taken into account in the accused's favour.

28 Later, in Duncan[23] - at a time when s 5(2)(e) of the Sentencing Act 1991 required (as it still does) that a sentencing court 'must have regard to ... whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so' - Callaway JA set out a number of principles applicable to pleas of guilty.[24] We need not exhaustively set them out. But he said[25] that a plea of guilty will

usually justify some mitigation of punishment in the exercise of the wide discretion conferred on a sentencing judge. It is referred to as a 'discount' to make it clear that a sentence is never increased or made more severe because an accused person puts the Crown to its proof or declines to give such assistance.

8. A plea that evidences genuine remorse and prospects of rehabilitation, that is entered at the earliest practical opportunity and that saves the State a trial and the witnesses both trauma and inconvenience normally justifies a high discount.

9. An early plea that does nothing except save time and expense is still entitled to consideration, and should usually attract a significant discount, for the reasons explained by Hunt CJ at CL in R v Winchester (1992) 58 A Crim R 345 at 350 and by King CJ in R v Shannon (1979) 21 SASR 442 at 451. See also R v Morton [1986] VicRp 82; [1986] VR 863 at 866-8.

29 In Cameron,[27] the High Court had cause to consider ss 7(2)(a) and s 8(2) of the Sentencing Act 1995 (WA). Section 7(2)(a) gave effect to the common law rule that a person should not be penalised for pleading not guilty, and s 8(2) provided that 'the earlier in proceedings that [the guilty plea] is made, or indication is given that it will be made, the greater the mitigation'. Gaudron, Gummow and Callinan JJ observed:[28]

Once it is appreciated that s 8(2) of the Sentencing Act is to be reconciled with s 7(2)(a), which gives effect to the common law requirement that an offender not be penalised for pleading not guilty, s 8(2) must be read as allowing that a plea of guilty may be taken into account in mitigation for the reason that a guilty plea evidences a willingness to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice.

30 Although in the minority - we do not consider that fact affects the cogency of his observations - McHugh J said:[29]

Australian courts have enthusiastically embraced the proposition that a person who pleads guilty should receive a lesser sentence than one who pleads not guilty and is convicted. In so far as a plea of guilty indicates remorse and contrition on the part of the defendant, the courts have long recognised it as a mitigating factor of importance.[30] But in recent years, under the pressure of delayed hearings and ever increasing court lists, Australian courts have indicated that they will regard a plea of guilty as a mitigating factor even when no remorse or contrition is present.[31] They have taken the pragmatic view that giving sentence 'discounts' to those who plead guilty at the earliest available opportunity encourages pleas of guilty, reduces the expense of the criminal justice system, reduces court delays, avoids inconvenience to witnesses and prevents the misuse of legal aid funds by the guilty.[32]

31 Kirby J addressed the public interest involved in providing a 'discount' for a plea of guilty, even when the plea is not accompanied by a quality such as remorse:[33]

The main features of the public interest, relevant to the discount for a plea of guilty, are 'purely utilitarian'.[34] They include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken.[35] It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconvenience caused, to any jurors summoned to perform jury service.[36] Even a plea at a late stage, indeed even one offered on the day of trial or during a trial, may, to some extent, involve savings of all these kinds.

Given that under our criminal justice system it is the right of the accused to put the State to the proof of the crime charged; given that by pleading guilty the accused surrenders any chance of being acquitted, even undeservedly; and given some empirical evidence that sentences following contested trials are not always substantially different from sentences upon a plea,[37] it is in the public interest to facilitate pleas of guilty by those who are guilty and to conserve the trial process substantially to cases where there is a real contest about guilt. Doing this helps ease the congestion in the courts that delay the hearing of such trials as must be held.[38] It also encourages the clear-up rate for crime and so vindicates public confidence in the processes established to protect the community and uphold its laws.[39] A plea of guilty may also help the victims of crime to put their experience behind them; to receive vindication and support from their families and friends and possibly assistance from the community for injuries they have suffered.[40] Especially in cases of homicide and sexual offences, a plea of guilty may spare the victim or the victim's family and friends the ordeal of having to give evidence.

32 In Phillips Redlich JA and Curtain AJA, having cited Cameron, observed:[41]

At common law, it can therefore be said that there has been a very broad and long-standing acceptance that a sufficient and necessary rationale for the public interest in providing a discount for a plea of guilty is its utilitarian benefit and that there is no requirement that there be present any of the subjective criteria before the discount is allowed.[42]

No accused person is obliged to plead guilty. Every accused is entitled to put the Crown to its proof. No accused is to be sentenced to a more severe penalty because they stood trial. The orderly and effective administration of criminal justice depends upon a large proportion of accused persons pleading guilty. Were it otherwise, the courts would be unable to provide justice within any tolerable time frame and injustice would be done to victims, witnesses, accused persons and the community generally. The public interest is always served where an offender pleads guilty, not the least because it provides for certainty of outcome and a resolution of the substantive issue. A plea of guilty not only resolves the crime and releases investigators to other duties; resources are preserved for cases in which the guilt of the offender is really in issue. The plea vindicates public confidence in the legal processes established to protect the community, relieves the victims and witnesses of having to give evidence and provides some closure and vindication for victims of the crime.

33 More recently, in Thomas,[44] this Court returned to the issue of the utilitarian benefit flowing from guilty pleas in the case of federal offences, paying particular attention to the provisions of s 16A(2)(g) of the Crimes Act 1914 (Cth).[45] It is unnecessary to analyse what was said in Thomas in any detail, it being enough to observe that, following a very comprehensive survey of authority, the Court (Redlich, Santamaria and McLeish JJA) was of the view that, when sentencing for federal offences, a sentencing judge must take into account the objective utilitarian benefit of a plea of guilty.

34 It may thus be concluded that, commencing with Shannon, the preponderance of authority contemplates that mitigation of punishment should flow from a plea of guilty based solely on the utilitarian benefits of the plea. Hence, appellate courts have recognised the public interest in facilitating pleas of guilty so as to conserve courts' trial processes, and so as to alleviate the congestion in criminal courts that delay in the hearing of contested trials creates.

35 As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.

36 There are, it must be recognised, real disincentives in the current climate for accused persons who are on bail to plead guilty, particularly if a sentence of imprisonment is on the cards. As the judge observed in the present case, a newly-sentenced prisoner in times of the pandemic will spend the first two weeks of his or her sentence in isolation.[46] Thereafter, he or she will have very restricted opportunities for contact with family and friends. Further, rehabilitative and other programs within prisons are severely curtailed. That this is so is notorious. These circumstances must render the prospect of imprisonment even more unpalatable than is usually the case, and operate as a further deterrent to the entry of a guilty plea. These disincentives to pleading guilty must be balanced by a proper inducement, through mitigation of sentence, to accept guilt.

37 Self-evidently, the other side of the coin is that there are real incentives for the cynical and unprincipled to exploit the delays resulting from the pandemic. The longer the delay, the more the memory (and enthusiasm) of witnesses dims, and the preparedness of victims to actively and willingly participate is tested, with associated forensic disadvantages to the prosecution. In ordinary times with ordinary delays, the lot of victims and witnesses already is not a happy one. The longer the delays, the more pronounced their plight.

38 Further, and significantly, criminal jury trials in times of the pandemic are far more resource-depleting than in times where the threat of serious infection is not present. One of the aspirations of encouraging utilitarian pleas of guilty must be that scant resources, upon which there is great demand, will be to an extent freed up.

39 For these reasons, we consider that - all other things being equal - a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any 'discount', he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.

40 In the circumstances of the present case, however, none of this avails the appellant, so that we cannot uphold ground 2.

41 As we have said, the appellant's counsel did not ask the judge to attribute greater weight to the plea of guilty given that it was entered during the pandemic. In any event, the judge characterised the plea as 'a very valuable plea', and said that the appellant 'is entitled to an appropriate discount', not only because his was a 'valuable plea', but because of its 'utilitarian effects' on the course of justice and because it demonstrates remorse. Moreover, the judge took into account the additional 'stress and inconvenience' to the appellant as a result of the conditions of custody flowing from the pandemic. It is evident that, by characterising the plea as 'very valuable', the judge gave it sufficient weight, allowing for the additional circumstance that it was made during the pandemic.

Ground 2: Claimed failure to take forfeiture into account

42 It is curious that the judge did not in his reasons for sentence refer to the anticipated effect on the appellant of the forfeiture of his vehicle, or state the manner in which it may have influenced the sentence imposed. Plainly, it would have been better had he done so. That said, it may be gleaned from discussion on the plea that the judge did not consider that the effect of the vehicle's forfeiture on the appellant would be very significant, which perhaps explains why the judge did not refer to it.

43 Whatever the explanation may be, after full argument we are not persuaded that the effect of the forfeiture, or the judge's failure to take it into account (if indeed he did so fail), could have had any meaningful impact on the sentence imposed.

Grounds 3 and 4: Parsimony and manifest excess

45 In oral argument, counsel for the appellant accepted that ground 3 is in reality a particular of manifest excess.

46 Counsel relied on a number of matters in support of the contention that the sentence imposed (in each of its constituent components) is manifestly excessive, including:

• his remorse (which included going to the hospital to check on the victim);

• the fact that the appellant surrendered himself to police and cooperated with them;

• the offending lacked aggravating features (such as intoxication);

• the judge characterised some of the offending as 'low' or 'moderate';

47 To once more traverse well-trodden ground, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. It is a conclusion that ordinarily does not admit of much elaboration or sustained argument, since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because - as was submitted by the appellant's counsel in this case - the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[47] We approach the task of assessing whether a sentence is manifestly - as opposed to simply arguably - excessive in much the same way that a judge approaches the imposition of sentence at first instance. Hence, we instinctively synthesise all relevant factors in order to determine whether we consider that the challenged sentence is just and appropriate.[48] It is not enough for intervention to be warranted, however, that we consider the impugned sentence to be stern, or if we would not ourselves have passed the same sentence. It is only if we concluded that the sentence imposed is wholly outside the range of those open in the sound exercise of discretion that the intervention of this Court would be justified.[49]

48 With the advantage of full oral argument, we are not persuaded that the individual sentences, the total effective sentence produced by the orders for cumulation or the non-parole period, are outside the range of those open in the sound exercise of discretion.

49 We acknowledge that the appellant is a relatively young man of generally good character (albeit he has attracted penalties for relevant driving offences), who has family support and a good work record. We also acknowledge that, not only is this his first time in custody, but that the conditions in which he has served (and will continue to serve) his sentence are more onerous because of the pandemic's effects.

50 It cannot be ignored, however, that the victim suffered serious injury as a result of the appellant's inherently dangerous actions. The risk to life and limb was profound, and, sadly, was realised in Mr Gueli-Quaresma's case. It was perhaps fortunate that the appellant's loss of control of his vehicle did not have more devastating effects. Quite plainly, there was need for the sentence to be animated by a significant measure of general deterrence, coupled with curial denunciation and just punishment.

51 Balancing all relevant factors, we have been unable to conclude that the sentence is manifestly excessive.

53 For these reasons, the appeal must be dismissed.

[1] Worboyes v The Queen (Unreported, Court of Appeal, Priest JA, 19 March 2021).

[2] His date of birth is recorded 28 March 1994.

[3] Crimes Act 1958, s 17. The maximum penalty is 15 years' imprisonment.

[4] Crimes Act 1958, s 23. The maximum penalty is five years' imprisonment.

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

[6] Leave to appeal was refused on what was then the first ground, formulated as follows:

1. The sentencing discretion miscarried as a consequence of the applicant's representation failing to call evidence in relation to the applicant's character, in circumstances where compelling plea material was available, and such failure meant that the applicant was materially and unfairly disadvantaged in the presentation of his plea.

[7] Harrison v The Queen [2015] VSCA 349; (2015) 49 VR 619.

[8] Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447.

[9] DPP v Weybury [2018] VSCA 120; (2018) 84 MVR 153, 165 [34] (Maxwell P and Hargrave JA), 170-1 [54] (Priest JA).

[10] Spanjol v The Queen (2016) 55 VR 350.

[11] Guseli v The Queen (2019) 87 MVR 340.

[12] Hutchinson v The Queen (2015) 71 MVR 8, 13 [17] (Priest JA).

[13] The other cases were Chenhall v The Queen [2021] VSCA 175 and Schaeffer v The Queen [2021] VSCA 171.

[14] See [14] above.

[15] See, for example, the County Court Criminal Division protocol, Revised Relisting Schedule of Melbourne Criminal Trials Commencing in January 2021, published 4 September 2020 .

[16] See, for example, the County Court protocol, Recommencement of Melbourne criminal jury trials - guide for the profession and court users, published 14 April 2021, [3.23] et seq.

[17] R v Shannon (1979) 21 SASR 442 ('Shannon').

[20] R v Morton [1986] VicRp 82; [1986] VR 863 ('Morton').

[21] Section 4 provided:

Court may take guilty plea into account in passing sentence.

4. (1) A court in passing sentence for an offence on a person who pleaded guilty to the offence may take into account in fixing the sentence the fact that the person pleaded guilty.

(2) If under sub-section (1) a court reduces the sentence that it would otherwise have passed on a person the court must state that fact when passing sentence.

(3) The failure of a court to comply with sub-section (2) does not invalidate any sentence imposed by it.

[23] R v Duncan [1998] 3 VR 208.

[27] Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 ('Cameron').

[29] Ibid 350-1 [39] (citations as in original; emphasis added).

[30] R v Shannon (1979) 21 SASR 442; R v Holder [1983] 3 NSWLR 245; R v Morton [1986] VicRp 82; [1986] VR 863.

[31] R v Winchester (1992) 58 A Crim R 345 at 350; Verschuren v The Queen (1996) 17 WAR 467 at 473; Atholwood v The Queen (1999) 109 A Crim R 465 at 467; R v Kalache [2000] NSWCCA 2; (2000) 111 A Crim R 152; Pop v The Queen [2000] WASCA 283; (2000) 116 A Crim R 398; Aconi v The Queen [2001] WASCA 211.

[32] R v Shannon (1979) 21 SASR 442 at 448, 451; R v Morton [1986] VicRp 82; [1986] VR 863 at 867; R v Dodge (1988) 34 A Crim R 325 at 331; R v Winchester (1992) 58 A Crim R 345 at 350; Atholwood v The Queen (1999) 109 A Crim R 465 at 467.

[33] Cameron 360-1 [66]-[67] (citations as in original; emphasis added).

[34] R v Winchester (1992) 58 A Crim R 345 at 350.

[35] R v Shannon (1979) 21 SASR 442 at 447; R v Atholwood (1999) 109 A Crim R 465 at 467 [9].

[36] R v Thomson (2000) 49 NSWLR 383 at 414 [131].

[37] R v Thomson (2000) 49 NSWLR 383 at 392-394 [33]-[39].

[38] R v Shannon (1979) 21 SASR 442 at 448.

[39] R v Ryan (2001) 206 CLR 267 at 295 [93]; Simpson v The Queen (1993) 68 A Crim R 439; R v Doyle (1994) 71 A Crim R 360.

[40] R v Ryan (2001) 206 CLR 267 at 295 [93].

[41] Phillips v The Queen [2012] VSCA 140; (2012) 37 VR 594, 609 [48] (citation as in original).

[42] R v Winchester (1992) 58 A Crim R 345, 350.

[43] Phillips, 605 [38] (citations omitted; emphasis added).

[44] DPP (Cth) v Thomas [2016] VSCA 237; (2016) 53 VR 546 ('Thomas').

[45] At the time Thomas was decided, s 16A(2)(g) provided:

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(g) if the person has pleaded guilty to the charge in respect of the offence - that fact; ...

Section 16A(2)(g) has since been amended, and now provides:

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(g) if the person has pleaded guilty to the charge in respect of the offence:

(iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence;

[46] See [15] above.

[47] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6] (Gleeson CJ and Hayne J).

1. [49] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-672 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).