1. Aitken Boulevard, oriented north-south, and James Mirams Drive, oriented east-west, in the northern Melbourne suburb of Greenvale, intersect. The intersection is regulated by traffic lights.
2. At about 2.03 am on Sunday, 25 November 2018, the applicant, then aged 25 years,[1] driving a 2008 Mitsubishi Lancer VRX sedan south on Aitken Boulevard, entered the intersection at excessive speed against a red light. A 2010 Volkswagen Golf GTI being driven west, in excess of the speed limit, by Jayson Ziro (for convenience, 'Ziro'), then aged 18 years, collided with the passenger side of the applicant's vehicle, at a point near the centre of the intersection. Jack Baho, aged 20 years, seated in the front passenger seat of the applicant's vehicle, sustained a cervical spine injury from which he died.
3. On 26 September 2022, the applicant, by then aged 30, pleaded guilty in the County Court to a charge of dangerous driving causing the death of Jack Baho.[2] Following a plea hearing on 5 July 2023, the judge sentenced the applicant on 7 July 2023 to one year and 10 months' imprisonment, with a non-parole period of 11 months.[3] The judge also cancelled the applicant's driver's licence for two years and six months from 7 July 2023.
4. Ziro had earlier pleaded guilty to a charge of dangerous driving causing death before the same judge on 9 March 2021. On 19 August 2021, the judge imposed a sentence of two years and two months' imprisonment upon Ziro (that is, four months longer than the applicant's head sentence) with a non-parole period of one year and two months (three months longer than the applicant's non-parole period).[4] The judge also cancelled Ziro's driver's licence for two years from 19 August 2021.
5. The applicant now seeks leave to appeal against his sentence on two grounds:[5]
   1. The learned sentencing judge erred when assessing the applicant's moral culpability as 'high' by reason of:

(a) failing to give sufficient weight to the causal contribution of the co-offender, Jayson Ziro, to the collision;

(b) failing to sufficiently differentiate between the applicant's moral culpability and that of co-offender, Jayson Ziro; and

(c) impermissibly taking into account the applicant's prior traffic history as relevant to the assessment of his moral culpability.

1. The learned sentencing judge erred by imposing on the applicant a sentence that, when regard is had to the sentence imposed on the co-offender Jayson Ziro, breached the principle of parity.

1. In our opinion, neither ground has substance. For the reasons that follow, leave to appeal should be refused.

1. So as to understand the issue raised by the proposed grounds, it is necessary to say more about the offending.
2. Shortly before the fatal collision, a man by the name of Martin Mikho, who had been driving west on James Mirams Drive, stopped for a red light at the intersection with Aitken Boulevard. James Mirams Drive, which has a speed limit of 60 kph, is a two-way bitumen road, with a provision for a single lane of traffic in each direction, but with a right-turn lane at the intersection for west-facing traffic. Ziro was driving west in James Mirams Drive behind Mr Mikho, with a friend, Alex Yousif, as his passenger. They were driving home after spending the evening at a nightclub in Prahran where they had both been drinking alcohol. Closed-circuit television ('CCTV') footage captured Ziro's vehicle 450 metres prior to the intersection driving at speed as he approached it.
3. At about the same time, the applicant was driving south along Aitken Boulevard, which also has a speed limit of 60 kph, with three friends in his vehicle. Jack Baho, soon to be deceased, was seated in the front passenger seat; Nidal Berou was seated in the rear passenger side seat; and Yasmin Feneiche was seated in the rear driver's side seat. Earlier, the applicant and Mr Baho had been playing pool and drinking alcohol at a venue in Thomastown.
4. As the applicant approached the intersection he passed another vehicle and continued towards the intersection. On his approach, a yellow traffic control signal was operating for four seconds before it changed to red. Upon seeing Ziro's vehicle travelling at speed, the applicant accelerated and drove into the intersection against a red traffic control signal. The signal had been red for two seconds.
5. Around the same time, Ziro approached the intersection where Mr Mikho's vehicle was stationary. Ziro made no attempt to stop or slow down. Whilst the red traffic control signal was operating, Ziro drove at speed into the right-hand turn lane and around Mr Mikho's stationary vehicle. Ziro's vehicle then entered the intersection, at about the same time that the traffic control signal for vehicles travelling straight ahead in James Mirams Drive turned to green, and collided with the passenger side of the applicant's vehicle near the centre of the intersection. The collision was recorded on CCTV footage by cameras located at a nearby business.
6. As part of the subsequent police investigation, a collision reconstructionist, Detective Senior Constable Robert Hay, determined that the applicant's vehicle was travelling at 92 kph at the time of the collision, and Ziro's at 82 kph. A blood sample taken from the applicant detected no alcohol or drugs; but a sample taken from Ziro - whose probationary driver's licence required him to have zero blood alcohol when driving - rendered a blood alcohol concentration of 0.046 per cent.
7. The applicant was arrested and interviewed on 24 December 2018. Among other things, he told police that, when he drove into the intersection the traffic light had just turned orange and that there was not enough time for him to brake, so he swerved to the right but was hit by Ziro's vehicle. The applicant said that, once his vehicle was hit, he passed out and does not remember anything. He said he assumed his speed to be 'about 60 or 65, around that area'. The applicant stated that the traffic light 'was definitely orange'. When confronted with footage of the collision showing the traffic signal to be red, the applicant said, 'That doesn't make sense, I was - I was definitely sure it was yellow'.

1. Before turning to the submissions of counsel, it is convenient to set out in detail such of the judge's reasons for sentence as bear on the first proposed ground; since we consider that, when they are read in full, it may be appreciated that the judge's analysis is not open to legitimate criticism. The judge said:[6]

I found that Mr Ziro made a conscious and deliberate choice to enter the intersection regardless of the colour of the lights and regardless of the traffic and that his driving therefore fell into the intentional risk-taking end of the spectrum of conduct for this offence and that his moral culpability was correspondingly high. Further, his driving posed a considerable risk of serious harm to other road users, including his own passenger, albeit the magnitude of the risk at 2 am was less than at other times. In assessing his moral culpability, I also took into account that he was an inexperienced probationary driver who had consumed alcohol knowing he was not allowed to do so. On the other hand I found that his youth and immaturity at age 18 lessened his moral culpability somewhat.

Although more experienced than Mr Ziro, you were also an inexperienced probationary driver. As such, like him, you should have been vigilant to ensure you obeyed the law and drove safely. You owed it to your own passenger as well as all other road users to do this. This was especially so given that by that time you, unlike Mr Ziro, had already accumulated an unfortunate driving history. Not only should you have learned from your prior offending, you were seven years older than Mr Ziro and should have been more mature and responsible.

...

Notwithstanding that you said in your interview that you did not see Mr Ziro's car until you crossed the traffic light line and it was at that time that you took evasive action by swerving and, accelerating, in your words, 'a little bit', it was agreed between the parties that the factual basis upon which I should sentence you is that ... you were driving between 60 to 65kph along Aitkin Boulevard when you saw Mr Ziro's car approaching the intersection on your left. Believing he was going to turn right into Aitkin Boulevard and intending to avoid a collision you accelerated at full throttle and also swerved to your right. You started accelerating when you were between 70 to 100 metres from the point of impact to reach a speed of 92 kph at impact about three to four seconds later.

I will proceed on that agreed basis.

[Defence counsel] argued that given you were not driving irresponsibly prior to you seeing Mr Ziro, indeed you were the designated driver and to your credit had less than one drink on the night, and that your intention was to avoid a collision rather than create a situation of danger, the offence gravity and your moral culpability were low. Indeed, he submitted they fell below the recognised low moral culpability cases of momentary inattention.

I am afraid I cannot agree.

You entered the intersection six seconds after the light turned orange and two seconds after it turned red. Your insistence in the interview that the light facing you turned orange either just before or just as you entered the intersection and that you did not have time to stop was plainly wrong, as you now admit.

What you should have done in the scenario you faced was manifestly obvious. If you wanted to avoid a collision you should have applied the brakes. Indeed, since the light facing you was orange you should have done this regardless of Mr Ziro. At 60 to 65 kph and that distance from the intersection you had ample time to stop and obey the law. It is incomprehensible that you did not.

Your decision to accelerate as hard as you could when the light facing you was orange and you knew there was a car entering the intersection from your left and that there were other cars about was reckless in the extreme. This was not momentary inattention or a split-second misjudgement, which are the classic cases of low culpability. You made the initial decision and then you stuck with it, entering the intersection two whole seconds after the light had turned red.

The fact you were motivated by a desire to avoid a collision reduces your moral culpability somewhat, but I still regard it as high. There was a completely safe, lawful and obvious option available to you, but instead you took a calculated risk that you could avoid a collision by speeding and disobeying the traffic control signals. You did so knowing you had priors for speeding and driving irresponsibly. You not only placed yourself and your passengers in danger, but also other road users, including any pedestrians who may have been around, noting that it was a built-up area, although 2 am.

That said, just as with Mr Ziro, the fact that you were not solely responsible for the death of Jack Baho does reduce the seriousness of your offending. If Mr Ziro had not simultaneously driven dangerously, no-one would have died. Since he did do that and thereby materially contributed to the death of your passenger, the sentence I impose on you should be reduced.

Further, whilst I found that your actions did not reduce Mr Ziro's moral culpability because your driving had no influence on him whatsoever, the same cannot be said in reverse. You alone are responsible for your conduct, but Mr Ziro's bad driving was the trigger for yours. Accordingly, whilst I assess your moral culpability as high, it is less than Mr Ziro's.

1. In support of the proposed ground, counsel for the applicant submitted that the present case 'involved a very unusual factual scenario'. The agreed position between the parties at the plea hearing, counsel submitted, was that the applicant's driving - by accelerating his vehicle as it approached the intersection and then swerving to the right - was motivated by an intention to avoid a collision with Ziro's vehicle. It thus followed, so counsel argued, that the dangerous conduct of Ziro approaching the intersection at speed without any intention of slowing down, 'was the trigger for the applicant's response'. Indeed, counsel submitted in writing:

But for the dangerous actions of Mr Ziro, the collision would not have occurred - as the Applicant's conduct was responsive to Mr Ziro's actions and directed towards avoiding a collision.

1. Counsel for the applicant submitted that the judge's finding that the applicant's moral culpability was 'high' (albeit not as high as that of Ziro) did not sufficiently take into account the contributing role of Ziro to the collision as well as the applicant's responsive state of mind and motivation at the time. Ziro, counsel submitted, was an inexperienced probationary driver who had consumed alcohol at a nightclub in Prahran earlier in the evening and then drove knowing that he was not permitted to, having a blood alcohol concentration of 0.046 per cent after the collision. By way of contrast, the applicant was travelling at about the speed limit (between 60 to 65 kph) when he first saw Ziro's vehicle travelling at speed and started to accelerate to avoid a collision. There is no evidence that the applicant had been speeding or driving irresponsibly earlier in the evening.
2. The applicant's counsel submitted that the applicant's 'responsible and law abiding behaviour', prior to his 'responsive decision to accelerate to avoid a collision', meant that his moral culpability for the collision was 'substantially lower' - and 'materially distinguishable' - from that of Ziro. While the sentencing judge found that the applicant's moral culpability was 'less' than Ziro's, she still found that the moral culpability of both men individually for the collision was 'high'. That, counsel submitted, was an 'error', since the applicant's moral culpability 'was in a different category altogether'.
3. Finally, counsel submitted that, whilst criminal history may be used at times to illuminate the moral culpability of the offender, 'this was not one of those cases having regard to the unique circumstances of the collision'. Counsel contended, first, that the applicant's driving 'was situationally confined to the unique circumstances of this case'; secondly, that the applicant's prior history of traffic offences 'was materially different from the offending'; thirdly, that while the applicant's prior history of traffic offences may have been relevant for other sentencing considerations such as specific deterrence and prospects of rehabilitation, it did not rise to the level such that it also 'illuminated' the applicant's moral culpability; and, fourthly, that there was no evidence that the applicant had been speeding or driving in an irresponsible manner prior to the collision, so as to increase the relevance of his prior traffic history.

1. In a period of less than six years leading up to the fatal collision - when the applicant's vehicle entered the intersection against a red light, and was travelling at 92 kph in a 60 kph speed zone at the point of impact - the applicant had accumulated three infringement notices for driving at excessive speed (which took effect as convictions),[7] resulting in his driver's licence being suspended three times. Thus, on 5 March 2013, his licence was suspended for six months for exceeding the speed limit by 40 kph or more (but less than 45 kph); on 26 March 2014, his licence was suspended for one month for exceeding the speed limit by 25 kph or more (but less than 30 kph); and on 22 July 2015, his licence was again suspended for one month for exceeding the speed limit by 25 kph or more (but less than 30 kph). He had also been sentenced to an adjourned undertaking in the Magistrates' Court on 1 November 2017, for offences of failing to have proper control of a motor vehicle, improper use of a motor vehicle so as to cause a loss of traction and making unnecessary noise.
2. Contrary to the submissions of the applicant's counsel, we consider it to be self-evident that the applicant's prior offences do indeed illuminate his moral culpability. Despite having had his licence suspended three times by exceeding the speed limit by either 25 kph or more (2014 and 2015) or 40 kph or more (2013), in the early morning of 25 November 2018 the applicant, having disobeyed a red traffic control signal, was travelling at more than 30 kph over the applicable speed limit when his and Ziro's vehicles collided. Based on his prior record, it could not be said that his choice to drive at more than 30 kph in excess of the speed limit was an uncharacteristic aberration. Rather, his driving at the time of the fatal collision was, in our view, emblematic of a continuing attitude of disobedience of the law (at least as it relates to speed limits).
3. In our opinion, the applicant's record is relevant in a number of ways, including as an indicator of his moral culpability.[8] As was made clear by the High Court in Veen [No 2],[9] 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.

1. Furthermore, the submission by the applicant's counsel that, but for Ziro's actions, the collision would not have occurred, is unpersuasive. Plainly, the same might justifiably be said of the applicant's actions. As the judge observed, the applicant drove his vehicle into the intersection six seconds after the traffic control signal had turned to orange, and two seconds after it had turned to red, in circumstances where he could have avoided the collision by the simple expedient of applying the brakes (and, to that extent, obeying the law). We agree with the judge that the applicant's decision not to apply the brakes and stop his vehicle before entering the intersection is incomprehensible. As the judge correctly observed, the applicant's driving was not the product of momentary inattention or split-second misjudgement. Instead, the applicant took a calculated risk by increasing his speed and disobeying the traffic control signals, with catastrophic results.
2. We agree with the judge's view that Ziro's moral culpability was high. We also agree with the judge's finding that the applicant's moral culpability was high. Had we been sentencing at first instance, we might not have been inclined to find that the applicant's moral culpability was reduced 'somewhat' because he was 'motivated by a desire to avoid a collision'. But that is not to the point. Having found that the applicant's moral culpability was somewhat reduced when compared to Ziro's, the judge reflected that finding by imposing a more lenient sentence upon the applicant. In our opinion, the degree of amelioration of sentence afforded to the applicant based on the finding that the applicant's moral culpability was less than Ziro's was within the range of the sound exercise of discretion.
3. There is no substance in the first ground.

1. Under cover of ground 2, the applicant's counsel submitted that the sentence imposed upon the applicant does not sufficiently reflect his much lower moral culpability vis-à-vis that of Ziro.
2. As may be gleaned from our reasons with respect to the first ground, we do not accept this submission.
3. In Wong it was observed:[10]

Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.

1. Thus, although the principle of equal justice requires that, all other things being equal, like offences should be treated alike, it also accommodates different outcomes where there are relevant differences between the cases of co-offenders. A sentencing judge has the task of identifying the relevant differences that justify disparate sentences.
2. In the circumstances of this case, it is impossible to conclude that the principle of parity has been infringed. As the passage from the judge's reasons set out above[11] makes clear, she considered the applicant's moral culpability to be 'less' than Ziro's. That finding - plainly open to the judge - is, in our view, adequately reflected in the more moderate head sentence and non-parole period imposed on the applicant. The degree of differentiation between the applicant's and Ziro's sentences was justified.
3. Proposed ground 2 is without merit.

1. The proposed grounds are without substance. Leave to appeal must be refused.

[1] His date of birth is 25 November 1993.

[2] Crimes Act 1958, s 319(1). The maximum penalty is 10 years' imprisonment.

[3] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, she would have sentenced the applicant to four years' imprisonment with a non-parole period of three years.

[4] In Ziro's case, the s 6AAA declaration was also four years' imprisonment with a non-parole period of three years.

[5] The applicant was given leave to add ground 2 during the hearing in this Court.

[7] See Road Safety Act 1986, s 89A(2).

[8] 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').

[9] Veen v The Queen [No 2] (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] HCA 37; (2013) 249 CLR 571, 595 [45] ('Bugmy'); Leishman, [19].

[10] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ). See also Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462, 472-3 [28] (French CJ, Crennan and Keifel JJ).

[11] See [14] above.