D'AMICO v The Queen - [2000] WASCA 343

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: D'AMICO -v- THE QUEEN [2000] WASCA 343

CORAM: KENNEDY J
IPP J
MURRAY J

HEARD: 11 OCTOBER 2000

DELIVERED : 10 NOVEMBER 2000

FILE NO/S: CCA 78 of 2000

BETWEEN: MELISSA YVETTE D'AMICO
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Appeal against sentence - Whether concurrent sentences of 8 years' imprisonment for manslaughter and 2 years' imprisonment for unlawful bodily harm manifestly excessive - Negligent driving of a motor vehicle resulting in the death of one person on road verge and injuries to another - Driving at night time without lights - Loss of control of vehicle - Sentencing dependent upon the criminal culpability of the offender by reference to the offender's negligence - No tariff for manslaughter but comparison of cases offers guidance as to sentences warranted by the facts - Whether sentencing Judge impermissibly took into account uncharged criminal conduct - Effective head sentence of 5 years' imprisonment substituted

Legislation:

Criminal Code, s 287 s 378(2)

Result:

Leave to appeal granted
Appeal allowed in part

Representation:

Counsel:

Applicant: Mr D Grace QC
Respondent: Mr M Mischin

Solicitors:

Applicant: Laurie Levy
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bropho v The Queen, unreported; CCA SCt of WA; Library No 940197; 14 April 1994
Hume v The Queen [2000] WASCA 306
McKenna v The Queen (1992) 7 WAR 455
R v Cascoe [1970] 2 All ER 833
R v Medcraft (1992) 60 A Crim R 181
R v Musumeci, unreported; CCA SCt of NSW; BC 9705741; 60359 of 1997; 30 October 1997
R v Newman [1997] 1 VR 146
R v S (No 2) (A Child) (1992) 7 WAR 434
R v Stebbings (1990) 4 WAR 538

Case(s) also cited:

R v De Simoni (1981) 147 CLR 383
R v English (1995) 82 A Crim R 586
R v Jurisic (1998) 45 NSWLR 209
R v Teremoana (1990) 54 SASR 30
Savvas v The Queen (1995) 183 CLR 1

KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Ipp J, with which I am in agreement.
The applicant was convicted after trial of two counts in the indictment upon which she was presented in the District Court, being the unlawful killing of Andrew Peter King and unlawfully failing to use reasonable care and to take reasonable precautions in driving a motor vehicle under her control so as to avoid danger to the health of Jacqueline Margaret Nielson, thereby causing bodily harm to Jacqueline Margaret Nielson. The maximum penalty for manslaughter is 20 years' imprisonment. The maximum penalty for unlawful acts causing bodily harm is 5 years' imprisonment. On summary conviction, the maximum penalty for the latter offence is imprisonment for 2 years or a fine of $8,000.
The unlawful killing of another human being is rightly regarded as one of the most serious offences in our Criminal Code. The death of a young person in the circumstances of this case was tragic and it has clearly had a profound impact upon the members of his family. Although the killing of the deceased by the applicant was unintended, the perpetrator of such a crime must be punished, and be seen to be punished, and the sentence, other than in exceptional circumstances, must be such as to constitute a deterrent both to the offender and to others. In this case, the applicant demonstrated a high degree of irresponsibility. She should have been conscious of the grave risk which the manner of her driving would present to the young people whom she knew to be in the general area, both on the road verge and crossing and recrossing the road itself; but at 11 o'clock in the evening, without lights, she accelerated at such a rate as to cause her to lose control of the vehicle, with the consequence that she killed one person and caused bodily harm to another.
The learned Judge was faced with an extremely difficult task in sentencing the applicant. There were considerable conflicts in the evidence regarding the level of lighting in the area, the distance which the applicant travelled before her vehicle struck the deceased, and the speed at which the vehicle was travelling. To make findings of fact in these circumstances can be little more than speculation, and her Honour, prudently, was generally cautious about making precise findings on these matters. I agree, however, with Ipp J's conclusion in relation to the applicant's probable speed at the time of the offences.

Having struck the deceased, the applicant failed to stop her vehicle. Indeed, she reversed and, in so doing, it appears that her vehicle struck the deceased once again before the applicant fled from the scene.
It is clear that the applicant was endeavouring to get away from the area after the security vehicle had arrived on the scene of the attempted burglary of the chemist shop and at a time when, no doubt under provocation, one of the party-goers had kicked the right rear panel of the applicant's vehicle and another had thrown a small beer bottle at the back of the vehicle as she accelerated away from the position under the street light where she had parked her vehicle. It must be appreciated that the applicant was acquitted on her trial on a charge of attempted burglary. It is further to be noted that, although the applicant in the course of driving away from the scene struck three other persons, two of whom sustained injuries, no additional charges were brought against her with respect to those matters. Although the applicant cannot be punished for offences of which she has not been convicted, the fact that she did drive into three other persons immediately following the commission of the offences of which she has been convicted, does indicate the dangerous manner of her driving.
As Ipp J has indicated, such is the range of the conduct involved in cases of manslaughter, there can be no tariff. I agree, however, that the sentence of 8 years for the offence of manslaughter falls outside the discretionary range, and I agree that a sentence of 5 years should be substituted.
IPP J: The applicant was convicted after trial in the District Court of the offences of manslaughter and unlawful bodily harm. Both offences arose out of the manner in which the applicant drove a motor vehicle. She was sentenced to 8 years' imprisonment in respect of the offence of manslaughter and 2 years' imprisonment in respect of the offence of unlawful bodily harm. The sentences were ordered to be served concurrently and the applicant was ordered to be eligible for parole.
The applicant applies for leave to appeal against these sentences on two grounds. The first is that "the sentence was manifestly excessive in all the circumstances". The second is that the learned sentencing Judge "erred in taking into account as aggravating circumstances the acts of the applicant in hitting and/or injuring three other persons in driving the motor vehicle, being acts for which the [a]pplicant has not been charged or found guilty".

On the evening of 22 November 1997 the applicant drove the vehicle concerned, an "older model" Commodore Calais, with three young men in it as passengers, to a chemist's shop in Roleystone. She parked the vehicle in the parking lot near the chemist's shop. Two of her passengers then left the vehicle and attempted to break into the shop. The burglar alarm in the chemist's shop was set off and those attempting to break in returned to the vehicle.
The applicant then drove her vehicle from the parking lot and stopped, facing north, under a street light in Jarrah Road, a street in the near vicinity. Not far away, along Jarrah Road, to the north, a party involving a large number of young people was in progress. The applicant parked nearby as some of her passengers wished to attend the party. While she was so parked, the applicant spoke to some of the party‑goers whom she knew. At some point on the left‑hand side of the parked vehicle, and some distance to the north, one of the party‑goers, a young man whose name was Andrew Peter King, was sitting or crouching on the pavement. A young woman, Jacqueline Margaret Nielson, was sitting next to Mr King.
The people at the party were aware of the attempt that had been made to break into the chemist's shop and did not want the applicant and her passengers to remain there. The party‑goers were concerned that the police would arrive and check whether there was under‑age drinking. For that reason two young men from the party approached the applicant's vehicle and asked her to move along. A fight developed and two of the passengers emerged from the car. One of the passengers drew a knife and one of the party‑goers was struck a blow to the face and fell to the ground.
As a result of the alarm sounding, a security vehicle arrived in Jarrah Road near where the applicant's vehicle was parked. The two passengers involved in the fight thereupon returned to the applicant's vehicle. The applicant drove away at speed, northwards, along Jarrah Road. As she did so, one of the party‑goers kicked the right rear panel of the vehicle and another threw a small beer bottle at the back of it. Witnesses heard the motor revving loudly and there was a squealing of tyres, which the learned Judge regarded to be evidence of rapid and continuing acceleration. Her Honour found that, "the inference was fairly open that she accelerated rapidly both because people were attacking her vehicle and because of the fights and also because the security vehicle had emerged from the shopping centre not far from her".
It is apparent from the applicant's own testimony that she was frightened. Her fear stemmed both from the prospect of being apprehended by the security vehicle and from the angry party‑goers near her vehicle.
As the applicant drove away, she did not turn on the lights of the vehicle. At that time, she knew, as the learned trial Judge put it, that there were "a number of people out and about on the road and near the road". Some involved in the party were milling about outside the house where the party was being held, some were crossing and re‑crossing the street, and some were on the verge. The learned Judge described as follows the evidence as to the lighting in the vicinity:
"Some said it was fairly dark where the deceased man, Mr King, was sitting with the other women; others said it was not a dark night and you could see fairly well, but agreed there were no street lights nearby."
According to the applicant, as she was driving away an object or projectile of some sort was thrown at the windscreen of her vehicle by someone in the party driveway. She said it hit the windscreen with such force that it left an eight inch vertical crack. She said that caused her to duck, turn her head and she lost control over the vehicle which swerved to the left. It is quite plain, however, from the way in which the learned Judge charged the jury and the jury's findings, that the jury did not believe the applicant on this issue. As her Honour put it:
"By its verdict the jury was satisfied beyond reasonable doubt that no projectile was thrown at the offender's windscreen causing her to duck and swerve to the left."
Nevertheless, it was common cause that at some point in her passage northwards along Jarrah Road the applicant's vehicle swerved to the left and went over the verge. The learned Judge observed that the jury was satisfied that the applicant swerved to the left because she accelerated so rapidly that she lost control of the vehicle. This, essentially, constitutes the negligence of the applicant.
As the applicant's vehicle came on to the verge, it struck Mr King, Ms Nielson and two other young women (in respect of whom no charges were brought). Mr King was fatally injured by the impact. The learned Judge observed: "The deceased suffered horrific injuries to his chest and leg from which he died four hours later at Fremantle Hospital." Ms Nielson sustained cuts to her lip and forehead, a large bruise to her right leg as well as bruising to her thumb, elbow and cuts over her legs and arms. Her lip required stitches.
The vehicle eventually collided with a utility vehicle in a position described by her Honour as "parked completely on the verge well back from the kerb behind a power pole". The learned Judge described what then occurred:
"The offender then reversed momentarily, and from blood spatters identified as the same type as that of the deceased on the right rear panel of her vehicle, may have come back into proximity with the deceased's fatally injured body before driving forward again, knocking over a roadside sign as she drove back onto Jarrah Road. Her vehicle then collided with the deceased man's brother. He was walking in Jarrah Road. He avoided injury by jumping onto the bonnet and hitting the windscreen before landing back on the road."
The applicant applied her brakes for the first time when she stopped, some 100 metres further up Jarrah Road to turn on her headlights before leaving the scene.
The evidence is not clear as to the distance between the vehicle (as it was parked under the street light in Jarrah Road) and Mr King and Ms Nielson (as they were sitting or crouching on the verge to the north). Mr King and Ms Nielson were on the edge of the verge, very close to the roadway. One witness suggested that Mr King might have had his legs over the kerb, others suggested that he was sitting with his back to the road and part of his back may have been over the roadway. Evidence was tendered on behalf of the applicant that the vehicle only travelled seven to 10 metres. The vehicle was estimated by prosecution witnesses to have travelled, under heavy acceleration, from 10 to 40 metres. Various plans were tendered in evidence but, on their own, did not establish the distance.
The speed at which the vehicle was travelling was also the subject of conflicting and uncertain testimony. Evidence was led on the applicant's behalf that the vehicle was not travelling at more than 20 kilometres per hour. Prosecution witnesses gave various estimates, ranging largely from 40 to 60 kilometres per hour. The learned Judge said that it was not possible from the evidence to determine the actual speed of the vehicle, but "it was a very high speed and a dangerous speed and excessive in the circumstances, particularly since she failed to brake or slow down when her vehicle mounted the kerb and came into contact with people and another vehicle and a sign".
It was obviously dangerous in the circumstances for the applicant to have accelerated away as she did. In assessing the speed at which she travelled, regard must be had to the fact that she travelled - from a standing start - a distance of 10 to 40 metres, before striking Mr King and Ms Nielson. On that basis, it is unlikely that she was travelling at more than about 40 kilometres an hour. That, nevertheless, was a dangerous speed to travel without lights and in the knowledge that there were many people in the vicinity both on the verge and, from to time, crossing the road. But, as counsel for the respondent conceded, had the applicant not lost control of the vehicle and swerved to the left, and had she proceeded in her northwards line of travel, it cannot be said that she would have struck any person.
Accordingly, the main cause of the collision was the applicant's loss of control over the vehicle and the swerve to the left. It does seem to me that the omission to turn on the lights and the failure to brake, while possibly negligent in an abstract sense, were not factors that contributed to the death of Mr King or the injuries to Ms Nielson. There is nothing to suggest that had the vehicle's lights been on, the applicant would not have lost control of the vehicle and would have been able to prevent it from swerving to the left and striking Mr King and Ms Nielson. It is not possible to say precisely how far away Mr King and Ms Nielson were away from the vehicle when the applicant lost control and the swerve to the left commenced, but it could only have been a matter of metres. They were, after all, on the edge of the verge. There was evidence that at 30 kilometres per hour, if brakes were applied, the vehicle could stop within 2.9 metres. Taking into account reaction time before brakes could be applied, it is open to serious question whether the application of the brakes would have made any difference. Thus, the critical negligence of the applicant was the loss of control caused by her rapid acceleration from the standing start.
The sentences to be imposed upon the applicant are dependent on the degree of criminal culpability involved in her conduct which led to the death of Mr King and the injuries to Ms Nielson. The specific acts of negligence which were causative of Mr King's death and Ms Nielson's injuries and the degree of negligence are therefore of fundamental significance. When dealing with this issue, the learned Judge said:
"The evidence showed that there were no street lights in the area where the deceased was sitting with the two young women. The evidence established that the offender knew there were people crossing and re‑crossing the street from the house where the party was being held. It is not surprising that in those circumstances the jury were satisfied that the offender showed a total disregard for the lives and safety of others when she accelerated up the street and lost control of her vehicle in an unlit area in the vicinity of where she knew there were people out and about on and near the road."
These remarks encapsulate the applicant's negligence in an entirely appropriate way. The learned Judge, however, made other remarks concerning the degree of negligence on the part of the applicant that are open to question. After emphasising that "the offender never stopped accelerating, never applied her brakes …", the learned Judge said:
"It is sufficient to say that it was a very high speed and a dangerous speed and excessive in the circumstances, particularly since she failed to brake or slow down when her vehicle mounted the kerb and came into contact with people and another vehicle and a sign."
While I accept that the applicant was travelling at a dangerous speed that was excessive in the circumstances, I have some difficulty with the proposition that she was travelling at "a very high speed". I have expressed the view that it is unlikely that the applicant was travelling at more than about 40 kilometres an hour. I have also expressed doubt as to the proposition that the failure to brake was in any way causative of the death and injuries that resulted.
The applicant was plainly negligent in accelerating up Jarrah Road and in losing control over her vehicle. Also, by travelling at a speed of about 40 kilometres per hour and without lights, in an area where many people were moving about, the applicant was undoubtedly reckless as to the safety of others. But this has to be tempered by the recognition that, had she not lost control and had she continued in a straight line along Jarrah Road, no person would have been harmed.
The learned Judge also took into account the fact that the applicant's conduct caused the death of Mr King. That, of course, was a factor of paramount importance in determining the criminal culpability of the applicant and the appropriate sentence to be imposed upon her. Manslaughter is a serious crime. Where manslaughter results from the negligent driving of a motor vehicle, the real substance of the offence is the negligent driving in association with the taking of a human life, cf: R v Musumeci, unreported; CCA SCt of NSW; BC 9705741; 60359 of 1997; 30 October 1997.
It has often been said that it is not possible to identify a tariff for motor vehicle manslaughter cases: R v Stebbings (1990) 4 WAR 538; R v S (No 2)(A Child) (1992) 7 WAR 434 at 444; McKenna v The Queen (1992) 7 WAR 455. Nevertheless, sentences imposed in other cases involving motor vehicle manslaughter do offer a guide as to the sentence that is warranted in a particular case.

McKenna v The Queen, in many ways, is typical of the more serious category of motor vehicle manslaughter cases. In that case the applicant stole a car, not for financial gain, but for the excitement and thrill of driving it knowing that he was likely to be noticed by the police who would then give chase. He did not care that his conduct would inevitably endanger the lives of others. He deliberately courted police attention. Eventually he was seen by police in a police vehicle, who indicated that he should stop. He did not do so and he was pursued. He was compelled to come to a temporary halt by a stationary vehicle in front of him. He rammed that vehicle to force it out of the way and continued his flight. He travelled through suburban areas at speeds ranging from 100 kilometres per hour to 150 kilometres per hour. He almost collided with other cars, slid sideways when negotiating corners, passed intersections while accelerating heavily and ignored stop signs. He travelled along Rokeby Road, the main road in the Subiaco shopping centre at 150 kilometres per hour, at lunch time on a busy Friday afternoon. At an intersection in the heart of the shopping centre the applicant's vehicle became airborne because it was travelling so fast. It collided with another vehicle and continued at great speed until it collided with a bicycle. The cyclist was dreadfully and fatally injured. During the episode the applicant's vehicle struck three vehicles and almost hit two others. There was a strong element of premeditation on the part of the applicant. The episode was, in effect, planned. Seaman J (with whose judgment I agreed) said (at 468) that a starting point of 16 years would not have been outside the range of a sound discretionary judgment. Relevant mitigatory circumstances were the youth of the applicant (he had just turned 18 at the time of the offence) and his remorse (which was regarded of doubtful genuineness). It was held, by a majority that the sentence of 8 years imposed was within the range of a sound sentencing discretion.
McKenna v The Queen is to be contrasted with R v Stebbings. In that Crown appeal, the respondent, while travelling at between 180 and 200 kilometres per hour in a suburban area, collided with another vehicle, killing the driver, one passenger and injuring a second passenger. The appeal succeeded and an overall sentence of 3 years' imprisonment was imposed for the two offences of manslaughter and the offence of causing grievous bodily harm, was ordered to be served concurrently. Malcolm CJ (at 540) observed:
"The driving actions of the respondent were wholly irresponsible and the evidence disclosed that he was fully aware of what he was doing. This was no mere error of judgment or aberration. It was necessary for the respondent to accelerate to the speed which he attained and in so doing he had ample time and opportunity to foresee the grave danger which his speed and manner of driving posed to other road users. The respondent appears to have acted with complete disregard for the potential consequences."
It is necessary, I think, to draw attention to sentences that have been imposed in cases involving the contravention of s 378(2) of the Criminal Code, that is, stealing a motor vehicle aggravated by reckless driving. This offence is punishable by a maximum term of imprisonment of 8 years (to be contrasted with the maximum sentence for manslaughter, which - under s 287 of the Criminal Code - is 20 years' imprisonment). In regard to those sentences, Wheeler J observed in Hume v The Queen [2000] WASCA 306 at [15]:
"Sentences in the range of four to six years have been imposed in respect of offences of this kind, where the court considers the driving to be a serious example of reckless driving towards the upper range of such conduct, even where a plea of guilty has been entered at the earliest opportunity; see Howard v The Queen, unreported; CCA SCt of WA; Library No 960638; 7 November 1996, McColgan v The Queen, unreported; CCA SCt of WA; Library No 970035; 6 February 1997, Dewar v The Queen, unreported; CCA SCt of WA; Library No 970662; 2 December 1997 and Colbung v The Queen [1999] WASCA 138. However, it appears to be more common for a starting point of the order of 6 years to be adopted and for the ultimate sentence imposed to be of 4 to 5 years, depending upon the discount which is thought appropriate in the circumstances."
At first blush, it may seem that the sentences for manslaughter resulting from the driving of a motor vehicle are low in comparison with those for contravening s 378(2). It must be borne in mind, however, that the offence created by s 378(2) is a separate and independent offence, relatively recently introduced (by the Criminal Law Amendment Act 1992, Act No 1 of 1992) to combat a particular category of prevalent anti-social conduct, the substance of which, often, is premeditated criminal behaviour that endangers the safety and well-being of the general community. In Bropho v The Queen, unreported; CCA SCt of WA; Library No 940197; 14 April 1994, Rowland J observed in regard to the legislative change that created the offence:
"The Second Reading speech of the introduction of the Bill into Parliament shows that the Bill was introduced as 'a response to the grave public concern at the tragic consequences of stolen vehicles being driven by offenders at high speeds with no regard for public safety' (1991-92 Parliamentary Debates at p 7907). It was the view of Parliament that this type of offence was to be regarded as extremely serious. I agree. They are offences which call for sentences which have a significant deterrent effect."
Franklyn J remarked that the offence involved:
"[A] calculated disregard for the lives, safety and property of others, authority of the police and the public concern as to the prevalence and demonstrated dangers of so driving."
The circumstances that can give rise to manslaughter, on the other hand, are infinitely various. As the Court of Appeal (Criminal Division) in R v Cascoe [1970] 2 All ER 833 at 837 observed:
"As for sentence, manslaughter is, of course, a crime which varies very greatly in its seriousness. It may sometimes come very close to inadvertence. This is one end of the scale. At the other end of the scale, it may sometimes come very close to murder."
It is this aspect of manslaughter that makes the establishment of a tariff for the offence impossible, comparisons between it and other offences are of little value for sentencing purposes.
Notwithstanding these comments, I think that it is helpful to compare the negligence of the applicant in this case with that of the applicant in McKenna (both being cases of manslaughter). The purpose of such a comparison is not to use the sentence in McKenna in any sense as a tariff, but because the identification of the differences in negligence assists in defining the degree of criminal culpability on the part of the present applicant.
In my opinion, for the reasons I express below, the conduct of the present applicant is substantially less blameworthy than the applicant in McKenna.
1.In McKenna, the applicant stole a vehicle with the express purpose of being involved in a police chase. There was a significant degree of pre‑meditation and planning involved. There was no pre‑meditation or planning on the part of the present applicant. Her negligent conduct resulted from a spur of the moment decision in trying to flee from the security officer who had arrived and the hostile crowd in the vicinity of her vehicle.
2.The pre‑meditation and planning of the applicant in McKenna transmogrified into an element of deliberate recklessness on the part of the applicant, in ramming a vehicle, travelling through intersections and stop signs at very high speeds, and through the Subiaco shopping district at its busiest time. No such element is present in this case.
3.While the applicant and McKenna indulged in his negligent driving because of the thrill and enjoyment it gave him, the present applicant drove negligently through fear on her part (although, it has to be recognised that that fear was caused largely by the prospect of being apprehended by the security officer).
4.The negligent driving in McKenna involved a considerable distance and endured for an unspecified time but which was obviously a matter of several minutes. In the present case, the applicant's relevantly negligent conduct endured for seconds, rather than several minutes.
5.The proximate act of negligence on the part of the applicant in McKenna which caused the death of the cyclist was his conduct in deliberately travelling, in defiance of a stop sign, and at a very high speed of 150 kilometres per hour through an intersection in the centre of the Subiaco shopping district at a very busy time. The proximate act of the applicant in this case, which caused the death of Mr King and the injuries to Ms Nielson was her failure to maintain control over the vehicle and her allowing the vehicle to swerve onto the verge. The contrast between the lengthy period of deliberate recklessness in McKenna and the short period during which the present applicant involuntarily lost control, is fairly stark.
In all the circumstances, the degree of the applicant's culpability was significantly less than that of the applicant in McKenna. Nevertheless, the learned Judge observed in this regard:
"The number of young people out and about on the road that night and the fact that she knew there were people about on the road places this particular piece of driving in my view towards the highest level of criminal negligence involving motor vehicle manslaughter."
With respect to her Honour, I do not think that the offence can be so categorised. The differences I have identified between this case and McKenna establish that this case, serious as it was, was not "towards the highest level of criminal negligence involving motor vehicle manslaughter". This view of the circumstances led the learned Judge to impose the sentence of 8 years' imprisonment for the offence of manslaughter. In my opinion, that gave rise to an error that affected the sentence. The period of imprisonment was too high. I would uphold the first ground of appeal.
As regards the second ground of appeal, the learned Judge said:
"This is also a case where a large number of people were put at risk by the criminally negligent driving of this offender. During her driving the offender killed the deceased Andrew King, injured Ms Neilson, (sic) although I accept that her injuries though painful involved only bodily harm. By her driving the offender also injured two others, Kate Bullock who suffered a hairline fracture of the skull, Meredith Davis was hit on her feet as she was jumping back from the vehicle.
I also take account of the fact that after hitting these people the offender's vehicle came in contact with the brother of the deceased, Mr Stephen King, who was in the road further along."
Senior counsel for the applicant submitted that the learned Judge was thereby indicating that she was punishing the applicant for the injuries to Ms Bullock, Ms Davis and the brother of the deceased when she had not been charged with offences in regard to them: see R v Newman [1997] 1 VR 146; R v Medcraft (1992) 60 A Crim R 181. In my view, however, her Honour was merely explaining why this was a case "where a large number of people were put at risk". The reference to what occurred to Ms Bullock and Ms Davis and the deceased's brother were in effect particulars of the material fact that a large number of people were put at risk. I would not uphold the second ground.
The applicant was born on 26 December 1977 to teenage parents who were separated after one year and she was brought up by her single mother. Apparently she fell amongst bad company at a youthful age and during the period 1993 to 1995 was convicted of a number of minor offences in the Children's Court, largely involving stealing and receiving. This continued after she was 18 years of age and in 1996 and 1997 she was again convicted of a number of stealing counts in respect of which a good behaviour bond and fines were imposed. At the time the applicant committed the offences, the subject of this application, the only driving conviction she had received resulted in a penalty of a demerit point and the suspension of her motor vehicle driver's licence for a period of three months.
At the time of the trial, the applicant was living with her father and was enrolled at TAFE studying for a Diploma in Information Technology. She is, apparently, an intelligent person and was an above average student at school. After leaving school at the age of 16 years she obtained work as a pharmacy assistant at the chemist's shop in Roleystone, which her passengers attempted to burgle. The applicant had worked for the pharmacist for some 3‑1/2 years but, at some time before the incident which gave rise to the offences, her employment was terminated. She was charged with the attempted burglary of the Roleystone chemist's shop but was acquitted.
The learned Judge noted that it was apparent from the many character references that were submitted on the applicant's behalf that "she is the oldest child of three and has always been a responsible and caring person, helped in home duties and the care of her younger siblings". The learned Judge said:
"Although she has maintained her plea of not guilty and therefore shown no remorse in a legal sense I do accept that she sincerely regrets very much that her driving caused the death of this young man and the injury to this young woman."
These feelings of remorse were quite apparent from the material before her Honour. The learned Judge accepted that the events of that night were

a tragedy for the applicant as well for the family and friends of the deceased.

As I have mentioned, a paramount factor in sentencing the applicant is that her conduct caused the death of Mr King, as is the degree of her negligence in this respect. Considerations of general and personal deterrence must be taken into account. Having regard to all the matters to which I have referred, I would grant the application for leave to appeal against sentence, uphold the appeal, set aside the sentence imposed in respect of the offence of manslaughter and substitute therefor a sentence of 5 years' imprisonment. The other orders made by the learned Judge remain unaffected.
MURRAY J: I agree entirely with the reasons for decision published by Ipp J. In my view also leave to appeal should be granted and the appeal allowed to the extent necessary to quash the sentence of 8 years imprisonment for the offence of manslaughter and in lieu thereof to impose a sentence of 5 years imprisonment. There should of course, be no change to the other sentence imposed and orders made by her Honour, the trial Judge.