Director of Public Prosecutions v Harvey

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0028

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
KENNETH NORMAN HARVEY	Respondent

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JUDGES:	McLEISH, KENNEDY and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2023
DATE OF JUDGMENT:	26 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 234
JUDGMENT APPEALED FROM:	DPP v Harvey [2023] VSC 80 (Champion J)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Dangerous driving causing death – Sentence 2 years and 6 months’ imprisonment – Non-parole period 12 months – Truck driver driving while fatigued and under influence of methylamphetamine – Collision with cyclist when entire truck over fog line at edge of road – Whether sentence and non-parole period manifestly inadequate – Offending not at or toward low level of seriousness – Moral culpability not low – Delay of over 4 years before plea hearing – Sentence and non-parole period manifestly inadequate – Residual discretion not exercised – Appeal allowed – Respondent resentenced to 3 years and 6 months’ imprisonment, non-parole period 21 months.

Crimes Act 1958, s 319(1).

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Counsel
Appellant	Mr BF Kissane KC with Ms B Goding
Respondent:	Mr TL Fitzpatrick
Solicitors
Appellant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Michael Benjamin & Associates

MCLEISH JA
KENNEDY JA
TAYLOR JA:

Introduction

On 14 July 2022, the respondent pleaded guilty to one charge of dangerous driving causing death, contrary to s 319(1) of the Crimes Act 1958.
He was sentenced on 9 February 2023 to a total effective sentence of two years and six months’ imprisonment with a non-parole period of 12 months.[1] The Director of Public Prosecutions has appealed, on the ground that the sentence and non-parole period are manifestly inadequate.
[1]DPP v Harvey [2023] VSC 80 [101] (Champion J) (‘Reasons’).

Circumstances of the offending

At the time of the offence, the respondent was 53 years old and employed as a truck driver by a waste management company, JJ Richards & Sons.
At 4:09am on Monday 11 June 2018, the respondent ‘swiped on’ at work. He then commenced a commercial collection run, driving a three-axle truck weighing 24 tonnes. The planned route was for the respondent to travel from Dandenong South to the Mornington Peninsula and back.
The supervisor on duty at JJ Richards & Sons recalled listening that morning to the encrypted radio channel available to the company’s commercial bin collection drivers. He heard the respondent say to a co-worker words to the effect of: ‘You should have been there. You missed out on a massive Saturday night. I had so much fun. I still don’t think I’m over it yet’.[2]
[2]Ibid [8].
In the course of the morning, the respondent had two 15-minute breaks and refreshments, in compliance with the Road Safety Act 1986.
Around mid-morning, the respondent was travelling north on the Moorooduc Highway. Robert Herbert was riding his bicycle in the same direction on the shoulder of the left‑hand running lane of the highway. At approximately 10:35am, the respondent’s truck collided with Mr Herbert and he was killed.
The evidence establishes that, as the respondent approached Mr Herbert, the respondent began to veer off the road surface. Just prior to the collision, when the truck was partially off the road, the respondent started braking from a speed of about 94 kilometres per hour and the truck deviated sharply to the left. The right hand side of the front of the truck collided with Mr Herbert and his bicycle at a speed of about 75 kilometres per hour. At this point, the truck was entirely off the road; the right wheel of the truck was to the left of the fog line on the side of the road.
Mr Herbert was picked up and thrown 38 metres. He died at the scene. At the time of his death, he was 61 years old and employed as a secondary school teacher. He enjoyed regular cycling as a form of exercise.
His death affected his family greatly. His wife of 37 years, Jennifer Herbert, provided a victim impact statement. She experienced immense shock and grief at the loss of her husband. She was unable to cope, and was forced to sell her home and live from savings. She suffered from significant anxiety — and, as a result, had to leave her own teaching career in 2019 and begin counselling treatment.
After the collision, the truck ended up well into the bushes on the side of the road. The respondent called emergency services. The call operator asked the respondent what happened and he replied, ‘A bike’s come out in front of me’.[3] The respondent was highly emotional at the time of the call and police arrived twelve minutes later.
[3]Ibid [11].
At the scene of the collision and during two subsequent police interviews, the respondent maintained an account of events as follows:
(a)the respondent was driving with full visibility of the road;
(b)he saw Mr Herbert swerve out onto the road as if he had seen an object and was trying to avoid it; and
(c)the respondent was unable to swerve away from Mr Herbert as there was traffic on the right hand lane of the highway. Instead, the respondent slammed on the brakes, hitting Mr Herbert with the front of the truck.[4]
[4]Ibid [12], [14]–[15], [27].
The judge rejected this account and was satisfied that the evidence established that the truck travelled across the fog line on the left side of the highway for a significant distance before the impact, when the front of the truck struck the bicycle.[5] The truck had started to brake at a point when the right tyre was within the fog line but the left tyre had crossed it. The police reconstruction showed a sharp deviation to the left just prior to impact. The point of impact was on the front of the truck between the middle and the right hand side of the truck if facing forward. The truck operated with dual controls, and the respondent was driving in the left hand seat. As a result, he was himself situated to the left of the bicycle at the time of the collision.[6]
[5]Ibid [28].
[6]Ibid [10], [22]–[23], [25], [28].
Shortly after the incident, a police officer transported the respondent to the Frankston Hospital and organised for a blood sample to be collected from him. In his initial police interview, before results of the testing of the blood sample were known, the respondent admitted to taking ‘a little rock thing’ provided to him by a barman in the early hours of Sunday morning.[7]
[7]Ibid [58].
Later analysis showed that his blood contained methylamphetamine (0.28 milligrams per litre) and amphetamine (0.03 milligrams per litre), alongside non-illicit medication. Dr Sanjeev Gaya of the Victorian Institute of Forensic Medicine was of the opinion that the level of methylamphetamine was high and that the respondent’s ‘driving ability was impaired by the detected drugs at the time’ of the collision.[8] The judge found that the respondent knew he had ingested an illicit drug 24 to 48 hours before he drove the truck, and that the drug did affect his driving.[9] The judge was not satisfied that the respondent knew that he was still affected by the drug when the collision occurred.[10]
[8]Ibid [17].
[9]Ibid [85].
[10]Ibid [83].
There was significant evidence that the respondent was also suffering from fatigue at the time of the crash. Police collected evidence on the respondent’s sleep through recorded interviews, mobile phone data, call charge records, witness accounts, truck GPS data and work records. The judge was satisfied that the effects of drugs combined with sleep deprivation were significant causes of the offending.[11]
[11]Ibid [93].
Professor Matthew Naughton, head of the Alfred Hospital General Respiratory and Sleep Medicine Services, stated that he had little doubt that the respondent was experiencing sleep deprivation at the time of the collision.[12] The respondent had an average of six hours of sleep, reduced from an average of eight, in the three nights prior to the crash. His sleep on the Saturday and Sunday night would have been of poor quality and insufficient quantity. On the morning of the collision, he had arisen at around 4am after a total of only four hours and 15 minutes’ sleep.
[12]Ibid [19].

Sentencing remarks

The sentencing judge noted the defence concession that the seriousness of the offending was ‘not … at the lower end, albeit not at the highest end’.[13] The judge found that the objective circumstances of the offending were ‘a serious example of dangerous driving causing death and not toward the lower end’.[14]
[13]Ibid [78].
[14]Ibid [80].
The judge found that this was not a case of a momentary or inadvertent lack of attention. The offending was aggravated by the fact that the respondent had control of a heavy vehicle, in circumstances where he was adversely affected by an illicit drug and was sleep deprived.[15]
[15]Ibid [81].
The judge assessed the respondent’s moral culpability as ‘not … low’.[16] The respondent had fallen asleep at the wheel of a very large and heavy vehicle which significantly heightened the risk to other road users.[17]
[16]Ibid [88].
[17]Ibid [87].
Next, the judge addressed several mitigating factors. First, the respondent had pleaded guilty and should be given the ‘full weight’ of that plea.[18]
[18]Ibid [90].
Secondly, the judge accepted that the respondent was remorseful.[19]
[19]Ibid [73], [90].
Thirdly, the respondent was sentenced more than four and a half years after his offending, a delay which was not attributable to him.[20] The respondent was charged with culpable driving causing death on 5 June 2019, just under one year after the offence. Ensuing delays were exacerbated by the COVID-19 pandemic. On 19 January 2021, the case was transferred from the County Court to the Supreme Court to expedite sentencing. The respondent offered to plead guilty to dangerous driving causing death in February 2022 and the offer was accepted in May. The plea was heard in November 2022. The judge accepted that this delay was a mitigating factor of significant weight in the sentencing exercise. He found that it had ‘taken a toll’ on the respondent’s mental and physical health.[21]
[20]Ibid [91].
[21]Ibid [91].
Next, the judge gave significant weight to principles 5 and 6 of Verdins.[22] Expert evidence relied on by the respondent had established that he had a longstanding dysthymic disorder, exacerbated by a major depressive disorder and a post-traumatic stress disorder after the collision.[23] The judge accepted that a term of imprisonment would weigh more heavily on the respondent than a person in good mental health and that there was a serious risk that imprisonment would have a significant adverse effect on his mental health.[24]
[22]Verdins v The Queen (2007) 16 VR 269.
[23]Reasons [39].
[24]Ibid [92]
Finally, the judge referred to other matters including:
(a)the respondent’s long work history, which included a period of 16 years of employment as a driver (his seven years with JJ Richards & Sons having previously been without blemish);
(b)a number of references, including from the respondent’s sister, as to his past employment, his ability to get on with others and his reliability; and
(c)the fact that the respondent had suffered subsisting injuries to his knees as a result of the collision.[25]
[25]Ibid [35], [46]–[47].
The judge considered that the respondent had good prospects of rehabilitation. The judge did not consider that he needed to put any particular emphasis on specific deterrence or the protection of the community.[26]
[26]Ibid [98].
As to general deterrence, the judge said it had a significant role to play and ‘should be extended particular consideration in this case’.[27] He stated that large vehicles were capable of catastrophic damage to innocent members of the public if improperly driven, and their drivers ‘must be reminded of the serious consequences attaching to the dangerous mismanagement of these vehicles’.[28] The respondent had engaged in serious misconduct which must be denounced as unacceptable.[29]
[27]Ibid [94].
[28]Ibid [94].
[29]Ibid [97].
The judge concluded that a sentence of imprisonment was appropriate. In setting a non‑parole period of 12 months, which he acknowledged was lower than usual, the judge referred to the additional burden of imprisonment that would be experienced by the respondent and the delay in the matter.[30]
[30]Ibid [101].
The judge declared under s 6AAA of the Sentencing Act 1991 that, if not for the plea of guilty, he would have sentenced the respondent to a period of three years and six months’ imprisonment, with a non-parole period of two years.[31]
[31]Ibid [104].

Appellant’s submissions

The appellant did not take issue with the sentencing judge’s reasoning. The submission was that, notwithstanding the proper analysis of the sentencing judge (including the assessment that the offending was serious and ‘not toward the lower end’,[32] and the finding that the respondent’s moral culpability was ‘not … low’),[33] the sentencing judge went on to impose a sentence that was more consistent with low-range offending. The result would be, it was said, to suppress sentences for the latter class of cases.
[32]Ibid [80].
[33]Ibid [88].
While not alleging any specific error, the appellant contended that the judge had given disproportionate weight to delay, in particular, as a matter in mitigation. The appellant distinguished Stafford v The King, in which delay was also taken into account as a very significant factor, on the basis that in that case there was a lengthy delay after a guilty plea until the plea hearing.[34] The prosecutor had referred the judge to Stafford at the plea hearing.
[34][2022] VSCA 229 [27]–[28] (Priest AP and Niall JA) (‘Stafford’).
The appellant submitted that the respondent’s plea offer was only made in February 2022, approximately three and a half years after the offending. The appellant accepted that this was due to the respondent’s need to obtain expert evidence in response to the report of Professor Naughton, but submitted that this should not weigh in his favour as, by that stage, it was patently obvious that the respondent’s account of the incident was not supportable. The appellant submitted that, while the respondent had been charged with the more serious charge of culpable driving causing death,[35] this did not prevent him from offering to plead guilty to dangerous driving causing death at any point.
[35]Contrary to Crimes Act 1958, s 318.
The appellant referred to Director of Public Prosecutions v Stocker,[36] a case also involving fatigue and the consumption of methylamphetamine, which involved a delay of just over three years between the offending and the sentence. That delay was accepted to be a mitigating factor but the offender was still sentenced to four years’ imprisonment for dangerous driving causing death.[37]
[36][2017] VCC 770 (‘Stocker’).
[37]Ibid [59], [70] (Judge Gaynor).
The appellant also submitted that the judge must have given too much weight to remorse, given that the respondent never departed from his version of events provided to the police, which the judge found could not be accepted in the face of the expert evidence.
The appellant further submitted that the sentence imposed failed to give proper weight to the purposes of denunciation and general deterrence. The sentence left little room for future sentencing for low-level offending, for which a term of imprisonment has since been mandated by s 5(2H) of the Sentencing Act. The appellant referred to the higher sentences in Stocker and Director of Public Prosecutions v Braithwaite-Deegan,[38] which it was submitted involved lower moral culpability in so far as the offenders in those cases were not driving heavy vehicles. Senior counsel accepted that the prosecutor at the plea hearing in this matter had conceded that these cases differed sufficiently that they were not truly comparable cases.[39]
[38][2018] VCC 882 (‘Braithwaite-Deegan’), where the offender was sentenced to three years and eight months’ imprisonment on the charge of dangerous driving causing death.
[39]The appellant also referred in oral submissions to cases said to involve a lower level of seriousness: DPP v Janson (2011) 31 VR 222, where an offender, who had driven a truck through a red light while unaffected by drugs or fatigue, was resentenced to two years and six months’ imprisonment on each of two counts of dangerous driving causing death, and Papagelou v The King (2022) 99 MVR 232; [2022] VSCA 53, where an offender, driving a car while disinhibited by the consumption of alcohol, was sentenced to three years’ imprisonment on the same charge.
The appellant did not advance any argument specific to the non-parole period, in isolation from the head sentence.

Respondent’s submissions

The respondent submitted that the delay in this case had been a very significant mitigating factor, involving a combination of circumstances unlikely to be repeated. This meant that, contrary to the appellant’s contention, the sentence imposed in this case would have no effect on sentences for low level cases of the offence.
The protracted delay of four years and five months between the respondent’s offending and his plea hearing reflected an unusual confluence of circumstances, none of which were the fault of the respondent. The respondent was not charged until a year after the incident occurred. Due to COVID-19 and the unavailability of the prosecution expert (Professor Naughton) for cross-examination at committal, the matter was only put into the list in the County Court in December 2020. The respondent then took the opportunity to have the proceeding transferred to the Supreme Court in January 2021.
In the Supreme Court, there were delays caused mainly by the need for the defence to obtain its own expert evidence as to the effect of sleep deprivation on drivers. The respondent submitted this was a specialist area in which it was difficult to obtain evidence. The respondent submitted that he made the plea offer soon after an expert ‘hot tub’ in relation to the collision scene. Prior to that, it was said, he was not in a position to be properly advised as to his position.
The respondent also emphasised that the appellant had conceded that there were no comparable cases from which sentencing guidance could be identified. The respondent submitted that the terms of imprisonment imposed in Stocker and Braithwaite-Deegan, being four years and three years and eight months respectively, were not inconsistent with the sentence in this case.
Next, the respondent submitted that Stafford should not be distinguished, given that the prosecutor had put that case before the sentencing judge in a submission accepting that there was significant delay in the present case. The prosecutor had pointed out that in Stafford a delay of four years was described by the Court as ‘inordinate’[40] and a very significant factor in sentencing, and had submitted to the sentencing judge that this delay was the primary reason to reduce a nine-year sentence to a six-year sentence. The discount attributed to delay by the sentencing judge in this matter was said to be ‘in line with’ that in Stafford.
[40]Stafford [2022] VSCA 229 [38] (Priest AP and Niall JA).
The respondent submitted that the trial judge was correct to give weight to principles 5 and 6 of Verdins, given the considerable deterioration in the respondent’s mental health. This was particularly said to justify the non-parole period of 12 months.

The respondent also submitted that the guilty plea was a significant consideration in this case, resulting in a reduction of around 12 months in the sentence, as evidenced by the s 6AAA statement.
Finally, the respondent submitted that the appellant had not shown that the residual discretion to refuse a Crown appeal should not be exercised.[41]
[41]The respondent also submitted that, if the Court resentences on a Crown appeal, it will impose a lesser sentence than it would otherwise have done, generally toward the lower end of the appropriate range (citing DPP v Karazisis (2010) 31 VR 634, 648 [50] (Ashley, Redlich and Weinberg JJA) (‘Karazisis’)). However, the reference relied upon is a statement of the common law position before the so-called ‘double jeopardy’ principle applicable to Crown appeals was abolished: see Criminal Procedure Act 2009, s 290(3); Karazisis (2010) 31 VR 634, 649 [53] (Ashley, Redlich and Weinberg JJA).

Consideration

As has been said many times, in order to establish manifest inadequacy it is not necessary to identify any specific error on the part of the sentencing judge.[42] The only question is whether the Court is persuaded that the sentence was ‘wholly outside the range’ of sentencing options available to the judge.[43] It must be shown that something has gone ‘obviously, plainly or badly wrong’.[44] The Court must be ‘driven to conclude that there must have been some misapplication of principle’.[45]
[42]Dinsdale v The Queen (2000) 202 CLR 321, 325 [6] (Gleeson CJ and Hayne J).
[43]Karazisis (2010) 31 VR 634, 663 [127] (Ashley, Redlich and Weinberg JJA, Warren CJ and Maxwell P agreeing at [1]).
[44]See, eg, Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P), citing Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
[45]R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ).
In Director of Public Prosecutions v Neethling,[46] this Court approved the following propositions in relation to sentencing for dangerous driving causing death, enunciated by Neave JA in Director of Public Prosecutions v Oates:[47]
1.General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.[48]
2.A person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment. [49]
3.The sentence which is imposed must take account of variations in the moral culpability of the person responsible.[50]
[46](2009) 22 VR 466, 472 [30] (‘Neethling’).
[47](2007) 47 MVR 483; [2007] VSCA 59.
[48]Ibid 487 [22] (Neave JA, Warren CJ agreeing at 489 [37], Nettle JA agreeing at 489 [38]).
[49]Ibid.
[50]Ibid 487 [21].
A fourth principle, namely that a custodial sentence will usually be appropriate except where the offender’s level of moral culpability is low,[51] has, since the offending in this case, been made the subject of specific statutory provision.[52]
[51]Neethling (2009) 22 VR 466, 473 [30], citing ibid 487 [22].
[52]Sentencing Act, s 5(2H) and para (eb) of the definition of ‘category 2 offence’ in s 3(1) (inserted by s 74(e) of the Justice Legislation Miscellaneous Amendment Act 2018 with effect from 28 October 2018). See DPP v Lombardo [2022] VSCA 204 [60] (McLeish, Niall and Kennedy JJA).
The Court further approved a non-exhaustive list of aggravating factors identified by the New South Wales Court of Criminal Appeal as follows:
i         Extent and nature of the injuries inflicted.
ii        Number of people put at risk.
iii       Degree of speed.
iv       Degree of intoxication or of substance abuse.
v        Erratic [or aggressive] driving.
vi       Competitive driving or showing off.
vii      Length of the journey during which others were exposed to risk.
viii     Ignoring of warnings.
ix       Escaping police pursuit.
x        Degree of sleep deprivation.
xi       Failing to stop.[53]
[53]Neethling (2009) 22 VR 466, 473 [31] (Maxwell P, Vincent JA and Hargrave AJA), referring to R vWhyte (2002) 55 NSWLR 252, 286 [216]–[217] (Spigelman CJ) and R v Jurisic (1998) 45 NSWLR 209, 231 (Spigelman CJ).
It can readily be seen from these considerations that the judge was right to conclude that this case was neither toward the lower end of seriousness nor one of low moral culpability. Driving a heavy truck at speed while sleep deprived and adversely affected by an illicit drug posed a grave danger to other road users and caused the death of Mr Herbert. As the judge recognised, general deterrence has a significant role in sentencing for serious offending of this kind.
While the judge was unable to conclude that the respondent knew that he was still affected by the drug he had consumed two nights earlier, he did know that he had ingested an illicit drug 24 to 48 hours before he drove the vehicle. The respondent also thought, at some earlier point in his driving that morning, that he was not ‘over’ Saturday night yet, indicating (at the least) that he felt tired.
The respondent was able to point to a number of matters in mitigation. He was of course entitled to the benefit of his guilty plea. At the same time, his plea could not be said to be an early one. The respondent was fully entitled to seek out and obtain his own expert evidence as to the effect of sleep deprivation, but he could also have accepted the strength of the prosecution case that he ran off the road and collided with Mr Herbert while his vehicle was entirely off the carriageway. Instead, he maintained a version of events at odds with the evidence. Giving full weight to the plea of guilty, as the judge did, that weight would have been greater had the plea been earlier.
In our view, that history also bears on the question of remorse. The judge rightly accepted that the respondent had shown remorse, adding that he had not meant to harm Mr Herbert. But in circumstances where the respondent sought to attribute the collision to a sudden swerve on the part of Mr Herbert, the degree of remorse is not as strong as it might have been.
As the respondent’s counsel emphasised, a key issue in the case was the very significant delay between the offence and the plea hearing. That delay was not attributable to the respondent. As noted, he was entitled to obtain his own expert evidence. Circumstances conspired to make that take some time. The respondent had the prospect of sentence looming over his head for more than four years, through no fault of his own, and this was its own burden. The prosecutor rightly recognised at the plea hearing that this was a very significant factor in sentencing.
The prosecutor referred the sentencing judge to Stafford, noting that the delay of about four years in that case was the primary reason for this Court reducing a sentence of nine years to six years. She observed, however, that the offender in that case had entered a plea of guilty to one of the charges at the earliest opportunity. As such, he had waited two and a half years after indicating his intention of pleading guilty before being sentenced.[54] The delay after having pleaded guilty to that charge was inordinate on that basis alone and in that respect even more egregious than this case.
[54]Stafford [2022] VSCA 229 [28] (Priest AP and Niall JA).
There is, in any event, obviously no arithmetical yardstick that can be derived from Stafford for determining the effect on sentence of inordinate delay. Nor is there any reason to think that the sentencing judge in this case thought otherwise. Delay, whether described as significant, inordinate or otherwise, is only one factor that will bear on the overall sentence identified as the result of the judge’s instinctive synthesis of all relevant factors.
The respondent was found to have good prospects of rehabilitation, and he was entitled to the benefit of Verdins principles 5 and 6. We have referred earlier to the other matters in mitigation to which the judge had regard.
Taking all these matters into account, however, we are driven to conclude that the sentence imposed in this case did not reflect the degree of objective seriousness of the offending (not at or toward the lower end), or the moral culpability of the respondent (not low). General deterrence was a very important sentencing consideration in this case, in which other users of the road were placed in the gravest danger by the respondent’s decision to continue driving the truck in the state he knew himself to be in. We are persuaded that the sentence was outside the range of available sentences for this offence, notwithstanding the mitigating considerations to which the respondent could point.
In reaching this conclusion, the sentences imposed in other cases of dangerous driving causing death, to which we were referred, have not proved especially helpful. The key cases to which the appellant drew specific attention did not involve a truck. Stocker was a case of illicit drugs and fatigue (4 years’ imprisonment after a guilty plea).[55] Braithwaite-Deegan was a fatigue case where illicit drugs were present but not found to have affected the driving (3 years and 8 months’ imprisonment, also after a plea).[56] Of themselves these cases do not establish any relevant current sentencing practice, but they sit comfortably with our conclusion regarding the present sentence. The facts of both Director of Public Prosecutions v Janson and Papagelou v The King[57] are so different from the present case that we have not found them of assistance.
[55] Stocker [2017] VCC 770 [59], [70] (Judge Gaynor).
[56]Braithwaite-Deegan [2018] VCC 882 [25], [46] (Judge Condon).
[57]See above [35] n 39.
It remains to consider the residual discretion. The onus is on the appellant to ‘negate any reason why the residual discretion … should be exercised’.[58] The discretion exists because the primary purpose of Crown sentence appeals is to clarify the law and ‘lay down principles for the governance and guidance’ of sentencing courts in future cases.[59] That purpose may be served by the Court identifying the sentencing error in its reasons for judgment without disturbing the sentence.[60]
[58]CMB v Attorney-General (NSW) (2015) 256 CLR 346, 359 [34]–[36] (French CJ and Gageler J), quoting R v Hernando (2002) 136 A Crim R 451, 458 [12] (Heydon JA).
[59]Green v The Queen (2011) 244 CLR 462, 465 [1] (French CJ, Crennan and Kiefel JJ), quoting Griffiths v The Queen (1977) 137 CLR 293, 310 (Barwick CJ). See also Cumberland v The Queen (2020) 94 ALJR 656, 658 [4] (Bell, Gageler and Nettle JJ); [2020] HCA 21.
[60]See, eg, Director of Public Prosecutions v Currie [2021] VSCA 272 [133], [143] (Beach, McLeish and Walker JJA); Director of Public Prosecutions v O’Neill (2015) 47 VR 395, 424 [111] (Warren CJ, Redlich and Kaye JJA).
At the same time, another purpose of Crown appeals is to vindicate the public interest in imposing the proper sentence in a given case. The residual discretion is therefore not exercised by default. Its exercise depends on the identification of circumstances that justify the Court in leaving the sentence undisturbed, even though it was imposed in error.[61]
[61]See Karazisis (2010) 31 VR 634, 657–660 [100]–[115] (Ashley, Redlich and Weinberg JJA, Warren CJ and Maxwell P agreeing at [1]).
The respondent drew attention to what were said to be the unique circumstances of this case that made it unlikely to be repeated. These were, essentially, the matters that contributed to the very significant delay before the plea hearing, including the COVID‑19 pandemic and the difficulty in obtaining a sleep deprivation expert. Some reference was made also to the fact that the prosecutor had drawn the judge’s attention to Stafford, by implication thereby potentially having led him to place excessive weight on the delay.
We do not consider that the exercise of the residual discretion is warranted in this case. The fact that the magnitude of delay, constituting one important aspect bearing on the sentence, is remarkable does not give the case any unique quality, as the respondent contended. Dangerous driving causing death is all too common, and while every case has its own distinctive features, all bear a tragic resemblance to each other.
We have also considered whether the discretion should be exercised because of the delay accompanying the case, which has inevitably been exacerbated by the present appeal. It must be borne in mind that, just as the delay was not attributable to the respondent, nor has it been found, or alleged, to be attributable to the prosecuting authorities. The principal cause of the delay was plainly the COVID-19 pandemic, as was submitted on behalf of the respondent at the plea. In the circumstances, this is not in our view a reason for exercising the residual discretion.
We do not think that the prosecutor’s reliance on Stafford is a basis for exercising the discretion either. The position might be different if the prosecutor had led the judge into specific error. It was perhaps unnecessary to mention Stafford at all, given its different circumstances. But the prosecutor’s submission was not inappropriate, and she quite properly drew attention to the key difference between Stafford and this case to which we have referred at [54] above. Nor, as we have said, is there any suggestion that the judge erred in his treatment of the case. It is not referred to in his sentencing remarks and we do not detect that he gave excessive weight to delay, in particular.
For these reasons, we must allow the appeal and set aside the sentence imposed by the judge. Taking into account the matters to which we have referred in these reasons, we sentence the respondent instead to three years and six months’ imprisonment, with a non-parole period of 21 months.
For the purposes of s 6AAA of the Sentencing Act, we declare that, if not for the respondent’s plea of guilty, we would have sentenced him to four years and nine months’ imprisonment, with a non-parole period of three years.
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[2023] VSCA 234

26 September 2023