Hall v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0216

REBECCA JANE HALL	Applicant
v
THE KING	Respondent

---

JUDGES:	PRIEST, TAYLOR and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2024
DATE OF JUDGMENT:	31 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 255
JUDGMENT APPEALED FROM:	DPP v Hall, Rebecca Jane [2023] VCC (Judge Chettle)

---

CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing death – Failure to keep a proper lookout because distracted by use of Instagram on mobile phone – Applicant of otherwise exemplary character – Early plea – Genuine remorse – Characterisation of offence as ‘mid‑level’ – Emphasis on general deterrence – Sentence of 3 years and 4 months’ imprisonment with non‑parole period of 2 years – Whether sentence manifestly excessive – Leave to appeal refused.

Sentencing Act 1991, ss 5(2H) and 5(2HC).

DPP v Neethling (2009) 22 VR 466; DPP v Johnstone (2006) 16 VR 75, referred to; DPP v Karazisis (2010) 31 VR 634, applied.

---

Counsel
Applicant:		Mr OP Holdenson KC
Respondent:		Mr JCJ McWilliams with Ms B Goding
Solicitors
Applicant:	Schembri + McCluskys
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA
T FORREST JA:

On 27 October 2023 the applicant pleaded guilty to one charge of dangerous driving causing death. Following a plea hearing she was sentenced, on 3 November 2023, as follows.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Dangerous driving causing death (contrary to s 319(1) of the Crimes Act 1958)	10 years’ imprisonment	3 years and 4 months’ imprisonment	N/A
Total Effective Sentence:		3 years and 4 months’ imprisonment
Non-Parole Period:		2 years
Pre-sentence Detention Declared:		7 days
Section 6AAA Statement:		5 years and 6 months’ imprisonment with a non‑parole period of 3 years and 6 months
Other Relevant Orders: All Victorian licences and/or permits held by the offender to be cancelled and the offender to be disqualified from obtaining any such licence or permit for a period of 2 years from 3 November 2023. Forfeiture order (personal phone).

The applicant now seeks leave to appeal against sentence on the single proposed ground that the sentence imposed was manifestly excessive.
For the reasons that follow, leave to appeal should be refused.
Factual background
On 25 January 2022 the applicant was driving a Ford Ranger utility on the Murray Valley Highway. The highway is a two‑way undivided road with a speed limit of 100 kmph. The car immediately in front of the applicant’s vehicle was a Mitsubishi Triton utility driven by Christine Stewart. Ms Ebony Papageorge was her front seat passenger. As Ms Stewart approached the intersection with Farley Road, she applied the brakes and indicated to turn right. As Ms Stewart commenced the right hand turn, the utility driven by the applicant collided with the rear driver side of Ms Stewart’s vehicle.
Ms Stewart’s utility was pushed forward and rotated multiple times before coming to rest on its roof about 27.8 metres from the point of impact. The applicant’s utility came to a controlled stop about 106 metres away. At the time of impact, Ms Stewart was driving at no more than 10 kmph. The applicant was driving at 93 kmph. The applicant did not brake in advance of the collision, but steered to the left about 0.2 seconds or five metres from impact.
Ms Stewart died of head injuries at the scene. Ms Papageorge suffered minor injuries and was transported to hospital.
At the scene the applicant was observed to be very distressed. She told one witness that she was reaching down to get her water bottle at the time of the collision. She also approached Ms Papageorge and said that she was sorry and just did not see them. No drugs or alcohol were detected in the applicant’s system. Later analysis of the applicant’s mobile phone data and infotainment system of her vehicle indicated that in the minute prior to the collision she had sent a text message to her husband and both opened and closed Instagram.
When interviewed by police the applicant stated that she had previously been speaking on the telephone – hands free – but was not on the phone when the collision happened. She said that the phone was attached to a magnetic phone holder and that she used buttons on the steering wheel to hang up phone calls. The applicant also said that at the time of impact she was reaching for her water bottle and did not realise that the car in front was stopping.
Sentencing Reasons
The judge commenced his sentencing reasons[1] by summarising the offending.[2] The ‘clear’ reason for the failure of the applicant to keep a proper lookout was found to be her distraction by her mobile phone resulting in the applicant not properly watching the road ahead to observe that Ms Stewart was slowing down.
[1]DPP v Hall, Rebecca Jane [2023] VCC (‘Reasons’).
[2]Reasons, [3]–[7].
The claims made by the applicant on her plea that she had no recollection of using the phone improperly or at all in the seconds before the collision and had no explanation for how the Instagram app had been opened and closed were rejected by the judge.[3] Addressing the applicant, the judge said:
It is not a matter of momentary inadvertence but is inextricably linked to your use of your mobile phone, whilst travelling at about 100 kilometres per hour. The involvement of your mobile phone significantly elevates your moral culpability for this crime. Every driver knows that it is illegal and dangerous to use a mobile phone whilst driving. To send a text message and check Instagram, is infinitely more dangerous than having a handsfree conversation as you had been a few minutes earlier.[4]
[3]Reasons, [8]–[9].
[4]Reasons, [8].
The judge found the offending to be a mid‑level example of the offence of dangerous driving causing death.[5]
[5]Reasons, [9], [32].
The victim impact material was detailed and considered by the judge.[6]
[6]Reasons, [10]–[17].
The judge stated that dangerous driving causing death is a category 2 offence, meaning that the court was required to impose a custodial sentence unless one of the exceptions in s 5(2H) of the Sentencing Act 1991 (‘Act’) was made out.[7] The judge rejected the applicant’s submission that she had established ‘substantial and compelling circumstances that are exceptional and rare’ pursuant to s 5(2H)(e) or had ‘impaired mental functioning’ that would result in her being subject to substantially and materially greater than the ordinary burden or risks of imprisonment pursuant to s 5(2H)(c)(ii).
[7]Reasons, [18].
The substantial and compelling reasons argued to be exceptional and rare were submitted to be low moral culpability for the offence, a lack of prior criminal history coupled with a good traffic history, the effect of imprisonment on the applicant’s post‑traumatic stress disorder (‘PTSD’) and the effect her incarceration would have on her husband, who suffers fragile mental health.[8] The impaired mental functioning was argued to be the PTSD, as evinced by the report of Fiona McCann, psychologist.[9]
[8]Reasons, [21].
[9]Reasons, [22]–[23].
The judge found that this submission ignored the operation of s 5(2HC) of the Act as constraining the manner of determining the existence or otherwise of ‘substantial and compelling circumstances’.[10] Further, the judge found that the factors relied upon in combination were neither substantial and compelling nor exceptional and rare. With reference to Buckley v The Queen[11] the judge said:
Unfortunately, offences such as [the applicant’s] are committed by persons of otherwise good character and good driving record. Many are traumatised by their crime and its results and many have families that will suffer when they are imprisoned.[12]
[10]Reasons, [25].
[11][2022] VSCA 138; (2022) 71 VR 218 (Maxwell P and T Forrest JA) (‘Buckley’).
[12]Reasons, [26].
With respect to s 5(2H)(c)(ii) the judge found that the applicant’s PTSD was not a medical condition characterised by significant disturbance of thought, mood, perception or memory, nor one that exposed her to substantially and materially greater risks or burden of imprisonment.[13]
[13]Reasons, [27].
The judge then detailed the applicant’s personal circumstances. She was 30 years of age at the time of sentence. The applicant had gained a master’s degree in agricultural science and worked with Nutrien Ag Solutions since April 2020. The judge considered a large number of ‘impressive’ character references which demonstrated the applicant to be ‘a much‑loved compassionate, capable, and caring young woman’. The judge said that the applicant was a person of ‘integrity, diligence, and kindness’. She had expressed great remorse for her actions and suffered from depression requiring medication. The judge also noted the depressive disorder and severe stress suffered by the applicant’s husband.[14]
[14]Reasons, [27]–[30].
The judge continued:
Cases like yours are heart‑wrenching tragedies for everybody involved. A sentence imposed on you is in no way a reflection of the value of the life of Christine Stewart. No sentence could ever do that. Your friends and family have to watch an otherwise decent young woman go to prison. As I said, during your plea, sentencing you is an exercise in general deterrence and denunciation of your conduct.[15]
[15]Reasons, [31].
After noting the maximum penalty of 10 years, the judge considered the applicant’s early plea of guilty and its enhanced utilitarian benefit arising from its timing during the COVID‑19 pandemic, the applicant’s genuine and profound remorse, her excellent prospects for rehabilitation, the burden that the applicant’s concern for her husband’s fragile mental health will place on her during the period of imprisonment and that the applicant’s own fragile mental health and PTSD issues will make the applicant’s experience of custody more onerous.[16]
[16]Reasons, [32]–[34].
Noting general deterrence to be the primary sentencing consideration and denunciation being important, the judge said:
People who drive motor cars must understand that if they kill others by dangerous driving involving distraction by the use of mobile phones, they will go to gaol. Families should not have to bear the pain consequen[t] upon the tragic and totally preventable death of a loved one.[17]
[17]Reasons, [35].
Applicant’s contentions
The applicant’s central contention is that the judge allowed general deterrence to swamp the sentencing exercise and consequently failed to give sufficient weight to the ‘very strong’ matters in mitigation. Those matters are:
•The applicant was a university educated agronomist with no prior convictions and no adverse driving record.
•The applicant entered an early plea of guilty. It was an expression of remorse and of high utilitarian value.
•The applicant tendered numerous powerful and impressive character references. Those references and the letter authored by the applicant to Ms Stewart’s family demonstrated her insight and true sorrow.
•The applicant’s psychiatric symptoms and concern for her husband’s severe psychiatric illness will make her time in custody more onerous.
•The applicant has excellent prospects for rehabilitation.
The applicant submits that while general deterrence and denunciation are important sentencing factors, this case lacked any of the aggravating features often seen in dangerous driving causing death offences such as excessive speed, erratic driving, alcohol or drug intoxication or fatigue. Consequently the judge erred in characterising the offence as ‘mid‑level’. And, further, in light of the strong matters in mitigation, the sentence imposed was not simply stern, but outside the permissible range in the sound exercise of the sentencing discretion. In all the circumstances, it is submitted that a significantly reduced sentence of imprisonment would give proper weight to the matters in mitigation while still giving proper effect to general deterrence and denunciation.
Respondent’s contentions
The respondent contends that the judge’s characterisation of the moral culpability of the applicant as mid‑level was correct. While her inattention was not prolonged, it was also not momentary or fleeting. The applicant failed to see Ms Stewart’s vehicle until a fraction of a second before the collision. Further, the dangerousness of using the mobile phone was exacerbated by the high speed at which the applicant was driving.
While the applicant ‘had much to call in aid’ in mitigation, that constellation of factors is routinely before sentencing courts for the offence of dangerous driving causing death.
In short, the respondent submits that the sentence imposed was well within the range available to the judge in the sound exercise of his sentencing discretion.
Consideration
In DPP v Neethling[18] this Court approved the following propositions in relation to sentencing for dangerous driving causing death, formulated by Neave JA in DPP v Oates:[19]
(1)General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.
(2)A person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment.
(3)The sentence which is imposed must take account of variations in the moral culpability of the person responsible.
[18][2009] VSCA 116; (2009) 22 VR 466, 472 [30] (‘Neethling’).
[19][2007] VSCA 59; (2007) 47 MVR 483 (Warren CJ, Neave and Nettle JJA).
A fourth principle — that a custodial sentence will usually be appropriate except where the offender’s level of moral culpability is low — has been overtaken by s 5(2H) of the Act.[20] That section requires a court to impose a custodial sentence[21] unless one of four exceptions is established.
[20]See paragraph (eb) of the definition of ‘category 2 offence’ in s 3(1).
[21]Other than a sentence of imprisonment imposed in addition to making a community correction order.
The rejection by the judge of the applicant’s submission that she satisfied the exceptions in ss 5(2H)(c)(ii) and 5(2H)(e) is not challenged in this Court. Rather, the applicant argues that the sentence imposed was manifestly excessive.
That argument cannot be accepted.
As has been stated many times, in the absence of demonstrating a specific error on the part of the sentencing judge, an applicant who contends manifest excess must demonstrate that the sentence imposed was unreasonable or plainly unjust. The sentence must be demonstrated to be ‘wholly outside the range of sentencing options available to the sentencing judge’.[22] That is, the sentence was not reasonably open to the court to impose it.[23]
[22]R v Boaza [1999] VSCA 126, [42] (Winneke P).
[23]DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA).
To the extent that such labels are helpful, in our view the judge was correct to find that this was a mid‑level example of the offence of dangerous driving causing death. While the factual circumstances did not involve any of the features like excessive speed, erratic driving, fatigue and intoxication specifically identified as aggravating of the offence in Neethling[24] — that list being drawn from the 2002 decision of the New South Wales Court of Criminal Appeal in R vWhyte[25] — and often seen in other cases, the absence of any of them does not mean that the judge erred in characterising the offence as mid‑level.
[24]Neethling, [31].
[25][2002] NSWCCA 343; 55 NSWLR 252, 286 [216]–[217] (Spigelman CJ, Mason P, Barr, Bell and McClellan JJ).
In 2006 this Court in DPP v Johnstone[26] recognised that use of a mobile telephone whilst driving may be a similarly aggravating factor. In relation to offences of culpable driving, Warren CJ said:
It is a fundamental principle of driving a vehicle that the driver will remain attentive, alert and focussed on where he or she is travelling. To deliberately divert attention to the viewing of text messages is a serious breach of acceptable driving behaviour. In my view, the culpable element in this matter lay in the viewing of the text messages by the respondent when driving at a high speed, in distracting circumstances. The driver’s attention given to the text message and the use of the mobile telephone was the circumstance that made the respondent more likely to have an accident.
…
Driving a vehicle in the community involves responsibility. In certain circumstances, the lack of attention to the driving environment - the use of a mobile telephone combined with other factors such as speed and lack of focus - may be as serious as driving under the influence of drugs or alcohol or driving at excessive speeds or erratically. Each case will need to be judged on its own circumstances. As observed in R v. Scott[27] there is not much distinction between fatigue and lack of judgment induced by alcohol and fatigue and lack of judgment produced by lack of sleep.
In the present case, there was an accumulation of factors that placed the particular case towards the higher end of culpable driving. The accumulated factors were, as the Crown put its case: driving a vehicle overloaded; unrestrained passengers behaving in a distracting manner at night on a dark road; using a mobile telephone; removing one hand from the driving wheel to use the mobile telephone; reading the text message; the driver taking his eyes off the road for a significant period of three to four seconds while driving at 90 to 100 kilometres per hour; paying insufficient attention and hence failing to see a bend in the road and an approaching pole; and trying to send or delete the text message on the mobile telephone. The behaviour was so serious and dangerous that it warranted a severe penalty. In my view the use of the mobile telephone in the manner operated by the respondent in the prevailing circumstances was a serious aggravating feature of the offending.[28]
[26][2006] VSCA 281; (2006) 16 VR 75 (Warren CJ, Maxwell P and Buchannan JA) (‘Johnstone’).
[27][2003] VSCA 55; (2003) 39 MVR 166 (Winneke P, Phillips and Buchanan JJA).
[28]Johnstone, [14], [20]–[21] (Warren CJ, Maxwell P and Buchannan JA agreeing).
In his separate concurring judgment Maxwell P endorsed these observations. His Honour noted that in the circumstances of the case the actions of the respondent in taking his eyes off the road, first to look at and then to operate the mobile phone, was a ‘serious aggravating factor’ of the offending.[29]
[29]Ibid, [35].
The ubiquity of mobile telephones and their constant intrusion into daily life has increased exponentially since Johnstone was decided in 2006. The Instagram app (and kindred platforms) did not then exist. Mobile phones have become cameras, libraries, newspapers and portals to the virtual world, one that can be seductive and absorbing. They are now used to present information visually as much as, if not more than, orally. And, there is a seeming societal expectation of near immediate response to electronic messages or notifications.
The contemporary danger presented by the misuse of mobile telephones whilst driving is conspicuous. As illustrated by this case, the ensuing distraction from looking at the content of an app on a mobile phone need not be prolonged to be absolute. The applicant did not have time to brake — only swerve. In the 10 seconds it took her to open and close Instagram, she was entirely oblivious to her surroundings.
While each case is to be determined on its own facts, it must be understood that dangerous driving involving distraction by the misuse of a mobile phone falls within the category of factors which may aggravate the seriousness of a particular offence of dangerous driving causing death. The use of a mobile phone other than in a ‘hands free’ mode is incompatible with the safe operation of a vehicle. And, any use of social media whilst driving is wholly unnecessary and to be deprecated.

In the circumstances of this case, the failure to keep a proper lookout arose because the applicant was apparently lost in a virtual, visual medium by manually manipulating a mobile phone whilst in charge of a utility travelling at close to 100 kmph. In the time she was looking at Instagram the applicant would have travelled a distance of about 200 metres, failing to pay regard to the road and other vehicles on it. That factor, driving effectively blind at 93 kmph for 10 seconds on a two‑way undivided country road, only has to be stated to be understood as underpinning a serious example of this offence. The judge was correct to identify general deterrence and denunciation as primary sentencing purposes.
Against these objective considerations, the judge considered each of the matters relied upon by the applicant in mitigation of sentence: the fact and quality of her plea of guilty, her genuine remorse, her excellent character, her excellent prospects of rehabilitation and the impact on her experience in custody by both her husband’s and her own mental states. Balancing all of the considerations, there is nothing in the sentence imposed which supports the argument that the judge failed to give any of the subjective matters sufficient weight or allowed general deterrence and denunciation to swamp the sentencing exercise. The sentence imposed was wholly within the range open to the judge in the sound discharge of his sentencing discretion.
Leave to appeal must be refused.

[2024] VSCA 255

31 October 2024