Di Gregorio v The King

KSUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0019

KRISTIAN DI GREGORIO	Appellant
v
THE KING	Respondent

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JUDGES:	ORR and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2025
DATE OF JUDGMENT:	16 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 103
JUDGMENT APPEALED FROM:	[2023] VCC 1980 (Judge Doyle)

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CRIMINAL LAW – Sentence – Negligently causing serious injury by driving – Appellant sustained traumatic brain injury with ongoing cognitive deficits due to collision – Whether proper approach taken to appellant’s ongoing injuries as a mitigating factor – Whether sentence manifestly excessive – Sentence of 4 years’ imprisonment with non-parole period of 2 years and 4 months was within range – Appeal dismissed.

Harrison v The Queen (2015) 49 VR 619; R v Barci (1994) 76 A Crim R 103; DPP v King (2008) 187 A Crim R 219; Romero v The Queen (2011) 32 VR 486.

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Counsel
Appellant:		Mr D Dann KC with Mr V Andreou
Respondent:		Mr L McAuliffe
Solicitors
Appellant:	Christopher James Lawyers Pty Ltd
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

ORR JA
KAYE JA:

On the afternoon of 14 November 2021, the appellant lost control of his Ford Falcon XR6 Turbo utility while playing a game of ‘cat and mouse’ at high speed with another vehicle. The appellant was driving at a speed of at least 47 km per hour over the prescribed speed limit. The tyres on the vehicle had insufficient tread and two were nearly bald. His vehicle spun, veered off the road, went through a protective steel fence and struck the victim, Ms Diana Pukaj, who was walking home along the footpath. The force of the impact threw Ms Pukaj into nearby vegetation, where she was found by witnesses against a tree. Ms Pukaj was 19 years old at the time of the collision. She sustained severe life-threatening injuries. The appellant, who was then 29 years old, also sustained serious injuries.
The appellant pleaded guilty to one charge of negligently causing serious injury[1] and one charge of using a vehicle that was not in a roadworthy condition.[2] The maximum penalty for negligently causing serious injury is 10 years’ imprisonment. On 27 October 2023, the appellant was sentenced to 4 years’ imprisonment for the charge of negligently causing serious injury and was fined $250 on the charge of using a vehicle that was not in a roadworthy condition. A non-parole period of 2 years and 4 months was set. The judge declared pursuant to s 6AAA of the Sentencing Act1991 that were it not for the appellant’s plea of guilty, he would have sentenced the appellant to a total effective sentence of 5 years and 10 months’ imprisonment, with a non-parole period of 4 years and 2 months. The judge cancelled the appellant’s driver licence and disqualified him from driving for two years.
[1]Contrary to s 24 of the Crimes Act 1958.
[2]Contrary to reg 295(1) of the Road Safety (Vehicles) Regulations 2021.
The appellant was granted leave to appeal his sentence on 14 June 2024, having been granted an extension of time within which to seek leave to appeal on 28 March 2024.
There are two grounds of appeal. First, the sentencing judge is said to have erred in his approach to the issue of the injuries sustained by the appellant during the collision. Second, the sentence imposed for the offence of negligently causing serious injury is said to be manifestly excessive.

Circumstances of the offending

On 14 November 2021, at approximately 2:20 pm, the appellant was driving his Ford Falcon XR6 Turbo utility in a north easterly direction on Caroline Springs Boulevard. The speed limit was 60 km per hour. It was a residential area with footpaths on each side of the road. A Ford sedan was following the appellant on Caroline Springs Boulevard. A passenger in a vehicle behind the two cars described to investigators what he saw:
The Ford sedan looked like it was accelerating up behind the Ute and then braking, then accelerating up behind the Ute again. I could see the brake lights on the sedan. To me it looked like they knew one another, or they were trying to start something. This was when they just got onto the bridge. I could also hear the sedan revving their engine. The Ford sedan cut into the right lane and accelerated. I thought it was going to hit another car that was already in the right lane. That other car had to brake to allow the Ford sedan in. The Ford sedan then kept accelerating in the right lane and overtook the Ute. The Ute also started revving his engine. It stayed in the left lane. The Ford sedan accelerated away in the right lane, well over 60 km/h. We were travelling at about 50–60 km/h at the time.
As soon as the Ute revved up, I saw a female pedestrian walking in front of the Ute on the footpath on the left side. The Ute started tail whipping on the bridge after it was revving. The driver had lost control. To me, it looked like he was thinking he could still maintain control of his car, even though he was tail whipping. It sounded like he was still revving.
The Ute spun around and went straight left toward the footpath and the fence on the side of the bridge area … As the Ute went into the fence it [did] a complete rotation and rolled as it went through the fence. It went back onto its wheels and then rolled again on to its roof and finished upside down on the footpath. The fence just shattered. It went everywhere.
The Ford sedan did not stop and has not been subsequently identified. The vehicle driving behind the two cars stopped and the occupants rendered assistance to Ms Pukaj and the appellant, and called emergency services. Ms Pukaj was screaming in pain and was unable to state her name. The appellant was screaming from inside his Ute, where he was trapped. Paramedics arrived at the scene and conveyed both Ms Pukaj and the appellant to the Royal Melbourne Hospital.
An expert collision reconstructionist who examined the scene estimated that the appellant had been travelling at not less than 107 km per hour when he lost control of his vehicle. Approximately 21m of the protective fence had been displaced, including 9 fence posts. The state of the tyres on the vehicle had not contributed to the appellant’s loss of control of the vehicle, given that the road was dry. The vehicle was very high-powered, the appellant having recently installed a new six-cylinder turbo motor.
The appellant did not have any alcohol or illicit substances in his system at the time of the collision. He held a full Victorian driver licence.
As a result of the collision, Ms Pukaj suffered the following injuries:
(a)a peri cardiac arrest on the way from the scene of the accident to the hospital;
(b)cervical spine fracture;
(c)deep vein thrombosis in the leg;
(d)liver lacerations that required treatment and ultimately resulted in a formal liver resection;
(e)spleen lacerations that resulted in the removal of the spleen;
(f)a diaphragm laceration, which was ultimately repaired.
(g)stomach lacerations, which were ultimately repaired;
(h)gallbladder lacerations, which required the removal of the gall bladder;
(i)an inferior vena cava laceration, which was surgically repaired;
(j)renal lacerations to both kidneys, which were monitored but ultimately did not require intervention;
(k)rib and sternal fractures, which required pain relief;
(l)punctures to the lungs, causing blood to escape into the chest, which required drain tubes in both the left and right chest cavities;
(m)back lacerations, which were ultimately repaired;
(n)blood clots in the lungs, which required blood thinning medication; and
(o)a leak of fluid from the liver into the abdomen, which required surgery to wash out the bile and insert drain tubes.
Ms Pukaj spent 23 days in hospital. When she returned home, she had to sleep on her back for two months because she did not have sufficient core strength to move. It took her a long time to be able to move between rooms in the house. She withdrew from her university studies. She commenced rehabilitation, which involved physiotherapy and visits to her GP. By August 2022, some nine months after the offending, she was still seeing her physiotherapists twice a week. She also saw her GP frequently due to her scars getting infected. Ms Pukaj will be required to take medication for the rest of her life because of the damage done to her organs in the collision.
The appellant participated in a formal recorded interview at Melton Police Station on 18 August 2022. He acknowledged that he was the driver of the vehicle at the time of the collision. He said he could not recall the moments leading up to the collision or anything of the day in question. He had been receiving treatment in relation to loss of memory as a result of head trauma sustained in the collision and his first memory after the collision was of being in rehab, prior to which he had been in hospital for a week. His injures from the collision included smashing his teeth through his lip, breaking his jaw, fracturing his skull and splitting his hand, back and lip.
The appellant told police that he had acquired the car in 2019. It had been serviced and other work had been done to it five days before the collision. The appellant said he could not remember what he was doing on the day of the collision but he was driving away from home towards the shops.
The appellant was charged on summons on 7 November 2022.

Plea hearing

A plea hearing was conducted on 23 October 2023. The appellant’s counsel tendered various medical material concerning the injuries sustained by the appellant as a result of the collision, as well as a report from a counsellor and a number of character references.[3] The appellant’s counsel addressed the appellant’s injuries in both written and oral submissions.
[3]Report from clinical neuropsychologist, Dr Martin Jackson, dated 22 August 2023; Report from counsellor, Mr Raphael Aron, dated 6 October 2023; Letter from counsellor, Mr Robert McInnes, dated 16 January 2023; Epworth Neuropsychology feedback report by clinical neuropsychologist, Ms Jacinta Gracey, dated 7 April 2022; Report from dentist, Dr Fady Tossoun, undated; Bundle of letters from oral surgeon, Mr Edward Nguyen, dated January to September 2022; Character references from the appellant’s mother, fiancée, former supervisor and two of the appellant’s friends.
In the written submissions, the appellant’s counsel characterised the appellant’s injuries as ‘significant and serious’, before stating:
however it is recognised that this was caused by his own voluntary and deliberate actions.
The written submissions went on to detail the nature and extent of the appellant’s injuries. The appellant had fractured his skull and jaw and had suffered a traumatic brain injury that had left him with impaired mental function. His pre-existing depression and anxiety had worsened, particularly after his realisation that he had significantly injured an innocent pedestrian.
The appellant’s counsel drew attention to the appellant’s primary neurological impairments, which had been assessed as moderate to severe, in the areas of processing speed and verbal new learning and memory. The appellant also had milder impairments in relation to his working memory and he had very poor letter fluency. His impairments meant that he would be very slow to process information, slow to complete tasks, and overwhelmed by moderate amounts of information. He would forget information said to him quite quickly and might have problems expressing his thoughts. Mr Martin Jackson, a clinical neuropsychologist, opined that these deficits would adversely affect the appellant’s ability to cope with imprisonment.
The appellant’s counsel submitted that the appellant’s impaired mental functioning meant that a number of the Verdins[4] principles were engaged, namely Verdins limbs 3, 4, 5 and 6.
[4]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
In his oral submissions, the appellant’s counsel told the judge:
In response to being involved in the collision himself, [the appellant] has himself sustained quite significant injuries, albeit of course they are at his own hand, being the cause of those injuries.
Later, the appellant’s counsel made submissions about the appellant’s prospects of rehabilitation. The transcript records the following exchange:
[APPELLANT’S COUNSEL:] You know, I think your Honour’s words were, you know, you’d be surprised if he put himself back in this position. And of course that’s what we’d hope to be the case.
HIS HONOUR: Yes.
[APPELLANT’S COUNSEL:] And significantly and probably most importantly, he is going to have served the first term of reasonable period of imprisonment also when he re-enters the community. And so if specific deterrence to the extent that it clearly is applicable is going to have any role to play, it is going to be, one would hope, after someone serves their first period of immediate imprisonment.
HIS HONOUR: Yes. Look, I hesitate to raise this, but are you arguing extra curial punishment as a result of – I mean it’s a matter that, you know – it’s something that gets sometimes some moderate weight.
[APPELLANT’S COUNSEL:] Is your Honour talking about in terms of the injuries sustained?
HIS HONOUR: The injuries, yes, yes.
[APPELLANT’S COUNSEL:] To the limited extent that is permissible in this case ---
HIS HONOUR: Yes, it’s pretty limited.
[APPELLANT’S COUNSEL:] Given that he ---
HIS HONOUR: Yes, it’s very limited.
[APPELLANT’S COUNSEL:] He is the architect of those injuries.
HIS HONOUR: Yes. Well, of course he is, yes.

Sentencing reasons[5]

[5]DPP v Di Gregorio [2023] VCC 1980 (‘Reasons’).

After outlining the circumstances of the offending, the sentencing judge addressed the impact of the offending on Ms Pukaj, who had made a victim impact statement which she read to the Court. The judge described it as a powerful document.[6]
[6]Reasons, [20].
Ms Pukaj said that when the collision occurred, she was 19 years old, working over 40 hours a week and studying psychology and criminal justice full-time. Her last assignment and exam were due to occur three days after the collision. She was the healthiest and fittest she had ever been. That had all changed on the day of the collision. She was now 21 years old and still in pain every day. She could not work but was able to attend university part-time with the support of pain specialists, painkillers and physiotherapy.[7]
[7]Reasons, [21], [26].
Ms Pukaj said that she fears for her future. She fears whether she will be able to finish her degree and then work; whether someone will want to date her, given she has so many complications, scars and so much trauma; whether she will be able to carry a baby for nine months, due to pain; how her pain will affect her activities with any children she is able to bear; and for the pain she might experience when she is older. Ms Pukaj said that when she looks at her friends’ lives, she feels that that was how her life was heading before the collision. However, her life has been put on hold and now revolves around medical appointments and meetings with lawyers, social workers and police.[8]
[8]Reasons, [22]–[23].
Ms Pukaj gave a detailed account of her injuries and the medical treatment she had received. She referred to the cardiac arrest she had on the way to the hospital, which resulted in her requiring resuscitation, as well as the second cardiac arrest she experienced when she arrived at the hospital, which again required her to be resuscitated. She was in the intensive care unit for 10 days, during which time she was put in an induced coma and on life support. She was cut open through a laceration down her stomach that was 50 stitches long on three separate occasions, as complications kept arising. She referred to each of the injuries identified in paragraph 9 above. She explained that the wound on her back was a complicated open wound, that the blood transfusion she had received led to anaemia, that a number of her ribs had needed to be removed and that she had sustained a fractured sternum during her resuscitations. She had nerve damage, close to 70 stitches across her body and numerous scars that were ‘a constant reminder of this awful time in my life that I try to cover’. She referred to the strong prescribed painkillers that she had taken for some months after the collision and the lifelong medication that she will be required to take as a result of the removal of her spleen, which had left her with a compromised immune system.[9]
[9]Reasons, [24]–[25].
Ms Pukaj explained that due to COVID restrictions during her time in hospital, she had not been allowed to have visitors, with her parents visiting on only one occasion. She said it had taken her about two months to start walking properly, and six months for improvement in her abdominal pain, nausea and eating difficulties.[10]
[10]Reasons, [25]–[26].
Ms Pukaj said that she had physically recovered better than anticipated, but still suffered physical pain and constant daily battles. Her mental health had been affected, leaving her with post-traumatic stress disorder, anxiety, depression and difficulty regulating her emotions. She no longer felt safe walking near roads by herself. She was easily fatigued, had a poor memory and had poor concentration. She suffered from disturbed sleep, nightmares and flashbacks. She was more sensitive that she used to be and distant with people. She had lost friendships and relationships. But despite all this physical and mental trauma, Ms Pukaj said she believed that one day she would be able to grow to accept it, although she could not cope with the effect that it had had on her family and her friends. She said she would forever be grateful for being able to survive the experience. She was proud of herself and said that she had hoped that by sharing her experience and the impact on her life and family, she would be able to move forward from this traumatic event.[11]
[11]Reasons, [27]–[30].
The judge described Ms Pukaj as an intelligent and extremely courageous person who had coped as well as anyone could with the ordeal she had experienced. He described the impact of the collision on Ms Pukaj as severe and life-changing, which was an important factor in informing just punishment for the appellant’s offending.[12]
[12]Reasons, [31].
The judge then turned to the gravity of the offence. The judge noted the maximum penalty and observed that the gravity of the offence was to be assessed by the degree of negligence involved and the seriousness of the injury sustained by the victim. He observed that Ms Pukaj had sustained multiple injuries and had been lucky to survive. Her injuries were life endangering, substantial and protracted. The appellant had engaged in ‘incredibly stupid behaviour’, the purpose of which was to catch up to the likeminded individual driving the Ford sedan. The risk of injury given his speed and the consequent loss of control was significant. His conduct was a ‘very significant departure from the standard of reasonable care expected of an ordinary driver’.[13]
[13]Reasons, [32]–[34].
The judge assessed the appellant’s moral culpability for the offending as substantial. The negligent driving was not a momentary loss or an error or a loss of concentration, but was deliberate driving. However, the appellant’s decision to engage in competitive driving was an instant reaction to the actions of the driver of the Ford sedan and the negligent driving was for a short time over a short distance, rather than a prolonged episode of criminally negligent driving. Other aggravating factors often observed in serious driving offences, including the presence of drugs and/or alcohol, were not present. Ultimately, the judge concluded that the offending was not in the upper range for this offence. Instead, it fell comfortably within the mid-range for such offending, which was a type of offending that warranted stern punishment to protect ordinary users of the roadway.[14]
[14]Reasons, [35]–[39], citing Papachristodoulou v The Queen [2017] VSCA 284, [44] (Kaye JA and Forrest AJA).

The judge noted that the principles of general deterrence, specific deterrence and denunciation were of substantial weight in the sentencing process, as was just punishment.[15]
[15]Reasons, [40].
The judge then turned to the appellant’s personal circumstances. He recorded that the appellant was now 31 years old. His father had died from cancer when he was three years old and his mother had re-partnered when the appellant was aged around 10. His stepfather was abusive and violent to his mother and verbally abusive to him. The appellant became angry and rebellious. After his mother divorced his stepfather when he was in Year 10, the appellant’s family moved to Caroline Springs. The appellant completed high school and went to RMIT to pursue an advanced diploma in IT engineering. He did not complete the diploma. He worked in real estate for a few years and started an apprenticeship as an electrician in around 2016. At the time of the collision, he had six months of his apprenticeship to complete.[16]
[16]Reasons, [42]–[46].
The appellant had started using marijuana regularly at the age of 18. From around the age of 21, he had started using cocaine and methamphetamines every weekend. He was also a heavy social drinker. This abuse of drugs and alcohol had continued until he was around 26 years old. By that time, the appellant had formed a relationship with his now fiancée. That relationship had survived the collision and the appellant’s fiancée remained supportive of the appellant.[17]
[17]Reasons, [47].
The appellant told Mr Jackson, the clinical neuropsychologist who had assessed him, that he had always suffered from depression and anxiety because of the conduct of his stepfather. He told Mr Jackson that the depression and anxiety had worsened after the collision and that he had seen a counsellor from the end of 2022.[18]
[18]Reasons, [48].
The appellant could not work for some time after the collision because of his injuries and the travelling distances required by his job. He had changed to new employment closer to home in the same industry.[19]
[19]Reasons, [49].
The appellant had a road traffic prior conviction history. He had four prior convictions for driving whilst suspended, a prior conviction for drink driving in 2011 and a traffic infringement notice for speeding in 2017. The judge observed that these prior convictions indicated that he had been generally irresponsible in relation to driving. He said the prior convictions had some relevance to the weight to be given to specific deterrence and his assessment of the appellant’s prospects of rehabilitation and character. However, he accepted that the prior convictions had occurred some years ago, that there were no instances of dangerous driving or careless driving, and that there were also no subsequent matters.[20]
[20]Reasons, [50]–[51].
The judge accepted that the appellant had pleaded guilty to the charges at the earliest opportunity and at a time when the County Court was dealing with a backlog of trials caused by the pandemic, which warranted a significant discount.[21]
[21]Reasons, [52], citing Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 167.
The judge accepted that the appellant had demonstrated remorse. The judge also referred to the delay in the resolution of the appellant’s case, most of which had arisen from the period that elapsed between the offending and the appellant’s interview, as a result of his injuries. The delay was said to be both relevant to the judge’s assessment of the appellant’s prospects of rehabilitation in that over the time since the collision he had not re-offended and had taken positive steps towards his rehabilitation, and to the extent that the matter had been hanging over his head for approximately two years.[22]
[22]Reasons, [53]–[55].
As to the appellant’s character, the judge took into account the references tendered on his behalf, which established that the appellant had shown remorse and regret for causing the collision, that he had a good work ethic, that he was a role model for younger apprentices in his employment, that he had plans to get married and start a family, and that he was regarded by his friends and people who knew him as a loyal and generous person. However, the judge said that the appellant’s prior convictions demonstrated an unwillingness to abide by the orders of the road traffic enforcement system and the courts. Further, good character was not an uncommon feature in cases involving this type of offending and therefore carried less weight that it might otherwise have.[23]
[23]Reasons, [56]–[59].
The judge then turned to the injuries that the appellant had sustained as a result of the collision, including a skull fracture, an intracerebral haemorrhage, a fractured jaw and dental trauma. A scan had noted left frontal and temporal lobe contusions with scattered haemorrhages in the right frontal and parietal lobes. The appellant required surgery, including to his jaw, into which plates were inserted. He had ongoing dental issues and required dental implants. The dental implants had been affected by bone grafts not taking due to infection.[24]
[24]Reasons, [60].
The judge referred to the brain injury the appellant had sustained in the collision, which was dealt with in the report of Mr Jackson. He observed that the appellant had a full scale IQ of 82, which is in the low to average range. He referred to Mr Jackson’s findings about the appellant’s neurological impairments, as set out at paragraph 17 above.[25]
[25]Reasons, [61]–[65].
At this point in the sentencing reasons, the judge said the following:
Before I turn to the application of the Verdins principles, I indicate that I have taken into account the injuries you sustained in the collision as extra-curial punishment, which is a relatively modest mitigating factor given your driving was the cause of these injuries.[26]
[26]Reasons, [66].
The judge then proceeded to consider the application of the Verdins principles. He noted that the appellant had submitted that principles 3 to 6 in Verdins applied, with principles 5 and 6 applying on the basis that imprisonment would weigh more heavily on the appellant than someone without his cognitive deficits and that there was a serious risk that imprisonment would have an adverse effect on his mental health having regard to his cognitive deficits, anxiety and depression.[27] He went on:
The prosecution submitted that some moderation in general deterrence is appropriate given the evidence and that Verdins principles 5 and 6 have application. In sentencing you I have moderated general deterrence to a limited extent, having regard to your cognitive issues. I have also taken into account Verdins principles 5 and 6 as mitigating factors, however in my opinion there is no basis to moderate specific deterrence. There is no evidence that your cognitive deficits affect your capacity to understand the punitive consequences that follow an event of this type, or the likely outcome if you were to engage in this type of behaviour again. If that was the case, I would have taken a less optimistic view of your prospects of rehabilitation.[28]
[27]Reasons, [67]–[69].
[28]Reasons, [70].
The judge went on to assess the appellant’s prospects of rehabilitation. He observed:
[I]t does seem to me that you have been genuinely distressed by your conduct and its consequences, and you will have to serve a relatively lengthy period of imprisonment, which is your first. Moreover, the injuries you sustained should operate as a further reminder of the dangers of what you did and its consequences.
Having been through the experience of this very serious collision, and a lengthy prison sentence, in my opinion, it is likely you will re-enter the community as a person changed by these experiences. I would be surprised if you again engaged in this type of driving.
Taking everything into account, I am of the view that you have good prospects of rehabilitation.[29]
[29]Reasons, [74]–[76].
Finally, the judge turned to current sentencing practices. He referred to a submission by the appellant’s counsel that sentencing statistics indicated that the median sentence for the offence of negligently causing serious injury was three years in the period covered by the statistics.[30] The judge also referred to the case of Papachristodoulou v The Queen,[31] which the prosecution had submitted was comparable in some ways, and to the case of Harrison v The Queen,[32] a decision that referred to numerous Court of Appeal sentencing decisions for the offence of negligently causing serious injury, to which he had regard.[33]
[30]This appellant’s counsel described the period covered by the statistics as the period from 1 July 2016 to 30 June 2021.
[31][2017] VSCA 284.
[32]Harrison v The Queen (2015) 49 VR 619; [2015] VSCA 349 (‘Harrison’).
[33]Reasons, [77].
After observing that current sentencing practices were a guide but not a controlling factor, and referring to the purposes for which the court may impose sentence as being just punishment, specific and general deterrence, denunciation and community protection, the judge said the following:
In this matter, general deterrence, notwithstanding a modest reduction reflecting your cognitive deficits, just punishment and denunciation of your offending, are the most significant principles. Specific deterrence also has a role to play but tempered given my views about the likelihood of you re-offending. I must also seek to ensure as far as possible that you are rehabilitated and reintegrated into the community.[34]
[34]Reasons, [78].

Submissions

Ground 1

By ground 1, the appellant contends that the judge erred in his approach to the appellant’s injuries. At the outset, the appellant acknowledges that to the extent this Court finds that the judge erred, the judge was led into error by the appellant’s counsel. The appellant’s counsel’s submissions at the plea hearing were to the effect that it was only permissible for the judge to moderate the appellant’s sentence on the basis that his injuries constituted extra-curial punishment to a limited extent, because the appellant was ‘the architect of [his] injuries’.
However, the appellant submits that despite the position taken by his counsel below, this is ‘one of those exceptional cases where appellate intervention is required to avoid a miscarriage of justice and in order to promote consistency in the treatment of this issue’.[35]
[35]The appellant cited Romero v The Queen (2011) 32 VR 486, 489–90 [11] (Redlich JA, Buchanan JA agreeing at 494 [28], Mandie JA agreeing at 494 [29]); [2011] VSCA 45.
The judge’s statement that the injuries sustained by the appellant in the collision were a ‘relatively modest mitigating factor given [the appellant’s] driving was the cause of these injuries’[36] was said to be contrary to the balance of authority, which demonstrates that the fact that an offender’s own criminal conduct has caused injuries to that offender does not mean that those injuries cannot be seen as a powerful mitigating factor.[37] Instead, the weight to be given to any injuries sustained in the course of offending depends on the nature and extent of those injuries and the weight to be given to the other sentencing factors present in any given case. The judge erred in reasoning from a starting point that such injuries could only be a relatively modest mitigating factor because they were sustained as a result of the offending in question.[38]
[36]Reasons, [66].
[37]The appellant cited DPP v Oates (2007) 47 MVR 483, 487 [26] (Neave JA, Warren CJ agreeing at 489 [36], Nettle JA agreeing at 489 [38]); [2007] VSCA 59; DPP v King (2008) 187 A Crim R 219, 228 [35] (Redlich JA, Warren CJ agreeing at 222 [4], Forrest AJA agreeing at 230 [38]); [2008] VSCA 151 (‘King’); Milk v The Queen [2015] VSCA 237, [26] (Priest JA, Maxwell P agreeing at [1]) (‘Milk’); El-Hassan v The King [2023] VSCA 307, [31] (Priest and Beach JJA) (‘El-Hassan’).
[38]As examples of cases where a more than modest reduction to sentence was applied because of injuries sustained by the offender in the course of offending, the appellant cited R v Barci (1994) 76 A Crim R 103 (‘Barci’), where the head sentence was reduced by 20 per cent and the non-parole period by 30 per cent; King (2008) 187 A Crim R 219; [2008] VSCA 151, where an offender’s injuries were one of the factors that led to an ‘extremely lenient’ sentence of 3 years and 10 months’ imprisonment with a non-parole period of 1 year 9 months’ being imposed for offences of culpable driving and conduct endangering serious injury; and R v Lawless (Court of Criminal Appeal, O’Bryan, Gray and Southwell JJ, 16 May 1989), where an offender’s injuries led him to receive a sentence of 5 years’ imprisonment, rather than the 7 years imposed on a co-offender.
The appellant submits that the nature and extent of his injuries were such that they should have been seen as a very significant matter in mitigation. As a result of the collision, he had spent 11 days in hospital before being transferred to a rehabilitation unit. He had fractured his skull; sustained an intra-cerebral haemorrhage; fractured his jaw, necessitating the insertion of plates; and suffered a traumatic brain injury that has left him with moderate to severe impairments in various aspects of his cognitive and verbal functioning. He has also undergone dental implant surgery, which was attended with complications caused by an infection.
Given the ongoing nature of his injuries, the appellant submits that his was a case where his injuries would serve as a constant reminder of his offending, would operate as a form of personal deterrence and constituted ‘a form of extra curial punishment’. They required a reduction in the weight that would otherwise have needed to be given to general and specific deterrence.[39] They also meant that limbs 5 and 6 of Verdins were enlivened.
[39]Barci (1994) 76 A Crim R 103, 111 (Southwell, Hampel and Hansen JJ); Jiang v The Queen [2019] VSCA 126, [4] (Priest and Kaye JJA); King (2008) 187 A Crim R 219, 230 [35] (Redlich JA); [2008] VSCA 151.
Although the judge indicated that he had moderated the weight to be given to general deterrence to a ‘limited extent’, he also indicated that he could see no basis for a reduction in the weight to be given to specific deterrence.[40] The appellant submits that the judge erred by taking an overly restrictive approach to the issue of his injuries. The error in the judge’s approach is said to be demonstrated by the sentence itself.
[40]Reasons, [70].
The respondent contends that there was no error in the judge’s approach to the issue of the appellant’s injuries. The judge recognised those injuries as a mitigating factor, identified the particular ways in which the injuries mitigated sentence in this case (by constituting extra curial punishment and enlivening limbs 5 and 6 of Verdins) and assessed the appropriate weight to be given to the injuries as a matter in mitigation, in light of all relevant circumstances.
The respondent submits that the judge’s starting point was, contrary to the appellant’s submissions, not that the appellant’s injuries could only be a relatively modest mitigating factor because they were sustained as a result of the offending in question. Nor did the judge consider that there was a pre-determined limit on the weight that could be given to this factor. It was the judge who invited submissions from the appellant’s counsel on this issue at the plea hearing by asking whether he was ‘arguing extra curial punishment … it’s something that gets sometimes some moderate weight’. The judge’s statement in the sentencing reasons that he had ‘taken into account the injuries [the appellant] sustained in the collision as extra-curial punishment, which is a relatively modest mitigating factor given [the appellant’s] driving was the cause of those injuries’ was not a statement that this was a relatively modest mitigating factor because the injuries were sustained in the course of offending. In this context, the word ‘given’ meant ‘considering a particular thing’ or ‘taking that thing into account’ — the judge was merely stating a fact and assessing the appellant’s injuries in the context of how they occurred. When regard is had to the reasons overall, the respondent submits it is apparent that the appellant’s injuries were but one matter that the judge took into account when determining the degree of mitigation that should be given. A fair reading of the reasons shows that the judge was alive to the appellant’s injuries and to the way in which the consequences of those injuries would remind the appellant of his criminal conduct.
The respondent points to the appellant’s concession that the weight to be given to the appellant’s injuries was dependent not only on the nature and extent of the injuries but also on the weight to be given to other relevant sentencing factors. The respondent submits that the appellant’s injuries, whilst ongoing, did not prevent him from resuming employment (albeit part-time) in the same industry in which he had worked prior to the offence. He had been able to maintain a relationship with his fiancée. Although there was mention in the materials tendered on the plea to the appellant experiencing some physical pain and associated difficulties arising from his injuries and surgeries, there was no mention of him appearing to be significantly cognitively impaired. Instead, the appellant’s fiancée referred to observing ‘a significant change and improvement in his behaviour and attitude’ and the appellant’s mother referred to the accident as having impacted the appellant ‘mentally’, which appeared to be a reference to him becoming distant from his friends and suffering anxiety.
The respondent submits that while the appellant clearly sustained physical and ongoing cognitive injuries as a result of the collision, those injuries had not prevented him from continuing to work, maintaining close relationships or otherwise participating competently and reasonably fully in life. His injuries were in marked contrast to the injuries suffered by Ms Pukaj and to the injuries sustained by the offenders in Barci, King and Lawless, the cases on which the appellant relied.
The respondent also points to the concession by the appellant’s counsel on the plea that the appellant’s injuries did not affect his capacity to understand his punishment. In those circumstances, it was said to be an appropriate application of Verdins principles not to moderate the need for specific deterrence.
The objective gravity of the offending; the appellant’s prior criminal history; the appellant’s other personal circumstances; and the severe and life-changing injuries sustained by Ms Pukaj, were all other relevant sentencing factors against which the appellant’s injuries were to be assessed.
Finally, the respondent points to the appellant’s acknowledgement that the argument now being made was not advanced on the plea. The respondent submits that even if the judge erred in his approach to the appellant’s injuries, there has been no miscarriage of justice because the sentence imposed was, in all the circumstances, moderate.

Ground 2

By ground 2, the appellant contends that his sentence was manifestly excessive. He acknowledges that his erratic and highly dangerous driving caused very serious injuries to the victim and necessitated a significant period of imprisonment. However, he emphasises that this was a case where the judge accepted that his offending was not in the upper range of seriousness for offences of this type[41] and that there were a number of ‘powerful’ matters in mitigation. He had pleaded guilty at the earliest opportunity, at a time which invoked the Worboyes principle; he had demonstrated remorse; he had made positive steps towards rehabilitation in the two-year period between the offending and his sentencing, during which time the matter was hanging over his head; he had good prospects of rehabilitation; and limbs 5 and 6 of Verdins were enlivened. In addition, he submits that the issue of his injuries should have been seen as a powerful mitigating factor, and also represented a form of extra curial punishment.
[41]Reasons, [37]–[38].

In response, the respondent submits that the appellant’s sentence was well within range and, in any event, not plainly or unmistakably excessive. In arriving at the sentence, the judge had had regard to the full range of matters put by both parties on the plea and applied the relevant sentencing principles, including those of specific and general deterrence. The appellant acknowledged that a significant term of imprisonment had to be imposed. His situation was distinguishable from the situation of the offenders in the other cases relied upon by the appellant, where a greater reduction in sentence may have been warranted because the offender’s injuries were more serious.
Finally, the respondent points to the statements of this Court in Harrison[42] about the need for higher sentences for the offence of negligently causing serious injury by driving.
[42](2015) 49 VR 619, [140] (Maxwell P, Redlich and Tate JJA); [2015] VSCA 349.

Analysis

Ground 1: Judge’s approach to appellant’s injuries

It may be accepted that the injuries sustained by an offender in the course of their offending can, in an appropriate case, be a powerful mitigating factor.
An example of such a case is Barci.[43] Barci had been injured during the course of an armed robbery. He was shot by police and the top of his shoulder was ‘virtually blown away’, with injuries also sustained to his chest wall. Barci had a number of surgical and medical procedures as a result of his injuries and suffered almost constant pain in his shoulder. There was ‘gross restriction of movement of the shoulder joint’ and he felt ‘despair at the prospect of recovery’. Barci’s injuries were described as ‘very severe’, leaving him with ‘a permanent and severe disability’.[44]
[43](1994) 76 A Crim R 103.
[44]Barci (1994) 76 A Crim R 103, 107–8 (Southwell, Hampel and Hansen JJ).
This Court held that the sentencing judge had failed to give sufficient weight to Barci’s physical and psychological trauma as a result of his wounding and the impact this would have on the sentence to be served.[45] The Court said that it was not, as the Crown had conceded, a complete answer to say that Barci had brought his injuries upon himself. Those injuries were a direct result of the commission of the crime and would serve as a savage reminder to Barci of his criminality for the rest of his life. As such, the injuries ‘must fairly be regarded as constituting some punishment for that criminality’.[46]
[45]Barci (1994) 76 A Crim R 103, 111 (Southwell, Hampel and Hansen JJ). As authority for the proposition that Barci’s injuries should be taken into account on sentence, the Court referred to Lawless (Court of Criminal Appeal, O’Bryan J, 16 May 1989) and R v Fletcher (1980) 4 Crim LJ 244 (Starke J). In Milk [2015] VSCA 327, this Court cited Lawless as authority for the proposition that a self-inflicted injury sustained by an offender in the course of committing an offence may be taken into account on sentence: [26] (Priest JA, Maxwell P agreeing at [1]). See also El-Hassan [2023] VSCA 307, [31] (Priest and Beach JJA).
[46]Barci (1994) 76 A Crim R 103, 111 (Southwell, Hampel and Hansen JJ).
A further example is provided by DPP v King.[47] King pleaded guilty to culpable driving causing death and reckless conduct placing others in danger of serious injury, having collided with another vehicle while driving at an extremely high speed and in an erratic manner. One person died and two others were injured. King also sustained serious injuries as a result of the collision. He was hospitalised for some three weeks and then spent approximately four months in a rehabilitation hospital. King’s injuries included a traumatic subarachnoid haemorrhage, a fractured skull and pelvis and various other injuries. He was required to undergo a bifrontal craniotomy. He was left with a diffuse head injury, impairment to his verbal and non-verbal intellectual skills, an ankle injury and weakness on his left side, especially in his arm. He was required to use splints and other aids to facilitate his movement, to create stability and to prevent his hand from developing a claw. King had been ‘left with physical disabilities that he will carry with him for the rest of his life and which the sentencing judge noted will make his time in prison more onerous’.[48]
[47](2008) 187 A Crim R 219; [2008] VSCA 151.
[48]King (2008) 187 A Crim R 219, 228 [30] (Redlich JA); [2008] VSCA 151.
In dismissing the Crown’s appeal against a sentence of 3 years and 10 months’ imprisonment, with a non-parole period of 1 year and 9 months, Redlich JA referred to factors that ‘militated powerfully in mitigation of penalty.’[49] Citing Barci, his Honour said that ‘[j]ustice tempered by compassion required that the severe and permanent injuries sustained by [King] in this act of criminality should “be regarded as some punishment for that criminality”’.[50] With ‘some hesitation’, his Honour concluded that the circumstances of the case did not warrant intervention to increase the sentence imposed.[51]
[49]King (2008) 187 A Crim R 219, 230 [35] (Redlich JA); [2008] VSCA 151.
[50]King (2008) 187 A Crim R 219, 230 [35] (Redlich JA); [2008] VSCA 151.
[51]King (2008) 187 A Crim R 219, 230 [36] (Redlich JA, Warren CJ agreeing at 222 [7], Forrest AJA agreeing at 230 [38]); [2008] VSCA 151.
Each of these cases demonstrate that one of the ways in which injuries sustained by an offender in the course of the offending can be relevant to sentence is through the recognition that ongoing injuries can constitute a form of ‘extra curial’ punishment, in the sense that they will serve as an ongoing reminder to the offender of their criminality. However, this is not the only way in which such injuries may be relevant to sentence — for example, certain injuries may also reduce the need for specific deterrence and/or general deterrence and serve to make the offender’s incarceration more onerous.
In this case, there is no doubt that the judge considered the appellant’s injuries as part of the sentencing exercise. He described those injuries in detail, paying particular attention to the appellant’s cognitive impairments, together with his depression and anxiety.[52]
[52]Reasons, [60]–[65]. See also at [16]–[18].
Having described the appellant’s injuries, the judge accepted the appellant’s submission that his cognitive deficits warranted a modest moderation of general deterrence, notwithstanding that there had been no link between those cognitive deficits and the offending.[53] He further accepted the appellant’s submission that principles 5 and 6 of Verdins applied, in that imprisonment would weigh more heavily on him than on someone without his cognitive deficits and that there was a serious risk of imprisonment having an adverse effect on his mental health issues having regard to his cognitive deficits.[54]
[53]Reasons, [68], [70].
[54]Reasons, [69]–[70].
The judge rejected the appellant’s submission that specific deterrence should also be moderated to an extent as a result of the appellant’s cognitive deficits, finding that there was no evidence that the appellant’s cognitive deficits affected his capacity to understand the punitive consequences that follow an event of this type, or the likely outcome if he was to engage in this type of behaviour.[55]
[55]Reasons, [70].
Finally, the judge took the appellant’s injuries into account as extra curial punishment. The judge invited the appellant’s counsel at the plea hearing to make a submission about extra curial punishment. He was told by the appellant’s counsel that extra curial punishment was relied on ‘to the limited extent that is permissible’, as the appellant was ‘the architect of those injuries’. Consistently with this submission, the judge treated extra curial punishment as a ‘relatively modest mitigating factor given [the appellant’s] driving was the cause of these injuries’.[56] He observed that the appellant’s injuries ‘should operate as a further reminder of the dangers of what [the appellant] did and its consequences’.[57]
[56]Reasons, [66].
[57]Reasons, [74].
To the extent that the judge’s statement in the sentencing reasons that extra curial punishment was ‘a relatively modest mitigating factor given your driving was the cause of these injuries’ suggested that extra curial punishment flowing from an offender’s injuries could only ever be a relatively modest mitigating factor where those injuries were a result of the offender’s own criminal conduct, it was not supported by authority. There is no suggestion in the authorities that this type of extra curial punishment is incapable of being a powerful mitigating factor. To the contrary, cases such as Barci and King demonstrate that it can have such an effect. The weight to be given to this type of extra curial punishment will depend on the circumstances of the particular case.
However, to the extent that the judge’s statement reflected a position that was unsupported by authorities, it was a position that was urged upon him by the appellant’s own counsel. As this Court said in Romero v The Queen, a sentencing appeal is not the occasion for the revision and reformulation of the case presented below. This Court does not lightly entertain arguments that could have been, but which were not, advanced on the plea. It is even more reluctant to entertain arguments that contradict submissions made on the plea, such as a submission that a particular sentencing factor is only of ‘limited’ relevance. As the appellant properly acknowledged, for ground 1 to succeed, he must show that there are exceptional circumstances that demonstrate that there has been a miscarriage of justice arising from the plea and sentence warranting appellate intervention.[58]
[58](2011) 32 VR 486, 489–90 [11] (Redlich JA, Buchanan JA agreeing at 494 [28], Mandie JA agreeing at 494 [29]); [2011] VSCA 45.
The appellant has not discharged this burden. We accept that the appellant will have ongoing cognitive deficits of various kinds as a result of the traumatic brain injury sustained in the collision, which the judge properly regarded as enlivening Verdins limbs 5 and 6, as well as moderating the role of general deterrence. However, we are not persuaded that the extra curial punishment the appellant will experience as a result of his cognitive deficits, and his other injuries, should have been treated as anything other than a relatively modest mitigating factor in the circumstances of this case.
The appellant’s injuries, while serious, were not demonstrated to be of such a nature or severity that they would serve as an enduring and debilitating reminder of his criminality. They were of a different nature and quality to those experienced by the offenders in Barci and King. The appellant’s injuries did not prevent him from continuing to work in the industry in which he had worked prior to his offending. Nor have they caused him to be unable to maintain personal relationships, such as his relationships with his fiancé and family.
We are unpersuaded that there was any error in the judge’s approach to the effect of the appellant’s injuries on specific deterrence. There was no error in the judge’s decision to refuse to moderate specific deterrence on the basis of the appellant’s cognitive deficits. As the judge recognised, there was no evidence that those deficits affected the appellant’s capacity to understand the punitive consequences of driving of this nature. Whilst the judge did not moderate specific deterrence on that basis, it is clear that he treated the injuries as moderating specific deterrence on the basis that they were an ongoing reminder to the appellant of his criminality. Thus, in assessing the appellant to have good prospects of rehabilitation, the judge observed that the appellant would ‘re-enter the community as a person changed by these experiences’ and that the injuries he had sustained ‘should operate as a further reminder of the dangers of what [he] did and its consequences’. The judge properly concluded that specific deterrence ‘has a role to play but tempered given my views about the likelihood of [the appellant] re-offending’.[59]
[59]Reasons, [74], [75], [78].
As a result, the appellant has not discharged his burden to show that there are exceptional circumstances demonstrating that a miscarriage of justice has arisen from the plea and sentence that requires appellate intervention.
Ground 1 does not succeed.

Ground 2: Manifest excess

The offence of negligently causing serious injury is an inherently serious offence. It requires an act or omission which involves such a great falling short of the standard of care that a reasonable person would have exercised, and such a high degree of risk that serious injury would follow, that the conduct merits punishment under the criminal law. Although it is a generic offence, it is often laid when the serious injury results from the driving of a motor vehicle. In the hierarchy of driving offences, negligently causing serious injury by driving sits above dangerous driving causing serious injury and below culpable driving causing death and dangerous driving causing death. Commonly, instances of the offence of negligently causing serious injury by driving involve extreme negligence, a very high risk of collision and the consequent risk of serious injury. It is an offence that is frequently committed by young offenders with otherwise good character, who have a limited criminal history and good prospects of rehabilitation.[60]
[60]Harrison (2015) 49 VR 619, 621 [1]–[2], 628 [42], 639 [88], 645 [115] (Maxwell P, Redlich and Tate JJA); [2015] VSCA 349. See also Gorladenchearau v The Queen (2011) 34 VR 149, 153 [13] (Maxwell P); [2011] VSCA 432 (‘Gorladenchearau’); Aston v The Queen (2019) 90 MVR 62, 83 [70] (Priest, Beach and Kaye JJA); [2019] VSCA 225.
In 2008, the maximum penalty for the offence of negligently causing serious injury was increased from 5 years’ imprisonment to 10 years’ imprisonment. This change was made in response to a report by the Sentencing Advisory Council, which concluded that the maximum of five years’ imprisonment was inadequate.[61] By increasing the maximum penalty, the legislature recognised that a maximum penalty of 5 years’ imprisonment was insufficient to achieve the purposes of deterring drivers from engaging in highly negligent driving and adequately punishing that conduct where serious injuries resulted.[62]
[61]Sentencing Advisory Council, ‘Maximum Penalty for Negligently Causing Serious Injury’ (Report, 26 October 2007).
[62]Harrison (2015) 49 VR 619, 640–1 [96]–[97], 643 [109] (Maxwell P, Redlich and Tate JJA); [2015] VSCA 349.
The objective gravity of an offence of negligently causing serious injury is to be assessed by reference to the degree of negligence involved and the seriousness of the injury caused.[63]
[63]Harrison (2015) 49 VR 619, 629 [44] (Maxwell P, Redlich and Tate JJA); [2015] VSCA 349, citing Gorladenchearau (2011) 34 VR 149, 156 [22] (Maxwell P); [2011] VSCA 432.
Here, the judge correctly assessed the appellant’s offending as falling somewhere in the ‘mid-range’ of such offending.[64] This was not a case where the negligent driving was the result of a momentary error or loss of concentration. Nor was it a case of negligent driving for a prolonged period, attended by aggravating features such as drug or alcohol use. Instead, it was a case that arose from the appellant’s choice, on the afternoon of 14 November 2021, to engage in a high stakes game of competitive driving with the driver of another vehicle. The appellant’s decision that afternoon to drive his high-powered vehicle in an erratic fashion at a speed of more than 47 km above the prescribed speed limit had disastrous consequences for Ms Pukaj, whose life is forever changed. We commend Ms Pukaj for the dignified, courageous and ultimately optimistic way in which she has chosen to deal with her injuries, and the cause of those injuries.
[64]Reasons, [38].
We recognise that the appellant had a number of mitigating factors available to him, including his early plea of guilty; his genuine remorse; the delay of two years in the hearing of the case; his good work ethic; and his good prospects of rehabilitation. In addition, as we have referred to in our consideration of ground 1, the injuries the appellant sustained in the collision, particularly his ongoing cognitive deficits, enlivened Verdins principles 5 and 6.
However, the appellant was also a person who had demonstrated little regard for the law that governs users of our roads, having been convicted of driving whilst suspended on four previous occasions, as well as drink driving and speeding.
We have had regard to current sentencing practices for the offence of negligently causing serious injury, which are one relevant consideration, being a guide but not a controlling factor. Although they were not available at the time of the appellant’s sentence, sentencing statistics subsequently published by the Sentencing Advisory Council indicate that for the 62 cases of negligently causing serious injury for which an offender was sentenced in the higher courts in the five years between 1 July 2018 and 30 June 2023, the median sentence was 3.54 years; the longest sentence was 7.5 years; and approximately 25 per cent of the sentences were between 4 and 5 years’ imprisonment.[65]
[65]Sentencing Advisory Council, ‘Negligently Causing Serious Injury: Higher Courts Sentencing Outcomes, 1 July 2018 to 30 June 2023’ (Report, 17 July 2024). We have been unable to locate the sentencing statistics to which the appellant’s counsel referred at the plea hearing: see 44 above. It is possible that the appellant’s counsel inadvertently referred to statistics applicable to a different offence. In any event, to the extent the judge relied on the statistics referred to by the appellant’s counsel, they were in the appellant’s favour, indicating a lower median sentence of 3.17 years and a highest individual sentence of 6 years’ imprisonment.
There has therefore been an increase in the sentences imposed for the offence since 2015, when this Court observed in Harrison that since the increase in the maximum penalty in 2008, the median sentence of imprisonment had only increased by 25 per cent, from 2 years’ imprisonment to 2 years and 6 months’ imprisonment; no sentence was longer than 4 years’ imprisonment; and the vast majority of sentences were between 3 and 4 years.[66] To the extent that the appellant sought to demonstrate that his sentence was manifestly excessive by reference to the sentences summarised by this Court in Harrison, each of which concerned offending at the upper end of the range, we reject that submission. It is clear from the statistics published by the Sentencing Advisory Council that the sentences imposed in the period preceding the decision in Harrison in 2015 no longer reflect current sentencing practices. Indeed, this Court in Harrison expressed the view that the sentencing practices for the offence at the time, as reflected by the cases summarised in Harrison, were inadequate and that sentences for the offence needed to increase.[67]
[66]Harrison (2015) 49 VR 619, 641–2 [98], [102] (Maxwell P, Redlich and Tate JJA); [2015] VSCA 349.
[67]Harrison (2015) 49 VR 619, 644 [113], 650 [140] (Maxwell P, Redlich and Tate JJA); [2015] VSCA 349.
A sentence will only be manifestly excessive if it is ‘wholly outside the range of sentencing options available’.[68] As this Court has often observed, this is a ‘stringent’ test, which is difficult to satisfy.[69] The appellant must show that something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[70] An appellate court must be ‘driven to conclude that there must have been some misapplication of principle’.[71]
[68]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157 (‘Clarkson’). See also Lowndes v The Queen (1999) 195 CLR 665, 671–2 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); [1999] HCA 29.
[69]Clarkson (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[70]Young v The Queen [2016] VSCA 149, [128] (Ashley, Whelan and Kaye JJA).
[71]R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ); [2015] HCA 39.

We are not persuaded that the appellant has discharged this burden. As the appellant conceded, a significant period of imprisonment was warranted for his offending. We consider the sentence of 4 years’ imprisonment, with a non-parole of 2 years and 4 months, to be within the range of available sentences for this instance of negligently causing serious injury.
Ground 2 does not succeed.

Conclusion

Each ground of appeal is unsuccessful. The appeal will be dismissed.

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[2025] VSCA 103

16 May 2025