Hennessey v The King
[2024] VSCA 2
•1 February 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0152 |
| CHRISTOPHER HENNESSEY | Appellant |
| v | |
| THE KING | Respondent |
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| JUDGES: | EMERTON P and WHELAN JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 November 2023 |
| DATE OF JUDGMENT: | 1 February 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 2 |
| JUDGMENT APPEALED FROM: | [2022] VCC 1600 (Judge Tinney) |
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CRIMINAL LAW – Appeal – Sentence – Sentence of 12 years’ imprisonment on charge of culpable driving causing death – Total cumulation of three years’ imprisonment on seven charges of conduct endangering life and one charge of conduct endangering persons – Whether sentence on culpable driving, the cumulations, and the total effective sentence are manifestly excessive – Whether judge erred in finding appellant must have known he was not fit to drive – Appeal dismissed.
Sentencing Act 1991 ss 5A, 5B.
Worboyes v The Queen [2021] VSCA 169; R v Singh [2021] VSC 182; Singh v The Queen [2022] VSCA 178; DPP v OJA (2007) 172 A Crim R 181; Leimonitis v The Queen [2018] VSCA 198; Lowndes v The Queen (1999) 195 CLR 66; Saab v The Queen [2012] VSCA 165.
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| Counsel | |||
| Appellant: | Ms A Brennan with Ms J McColl | ||
| Respondent: | Ms D Piekusis KC | ||
Solicitors | |||
| Appellant: | Victoria Legal Aid | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
EMERTON P
WHELAN JA:
On 14 September 2022, the appellant pleaded guilty to one charge of culpable driving causing death, seven charges of conduct endangering life, one charge of conduct endangering persons and a related summary offence.
Following a plea that same day in the County Court, the appellant was sentenced on 19 September 2022 as follows:
Charge Offence Maximum Sentence Cumulation 1 Culpable driving causing death[1] 20 years 12 years Base 2 Conduct endangering life[2] 10 years 4 years 6 months[3] 17 months 3 Conduct endangering life 10 years 3 years 6 months 3 months 4 Conduct endangering life 10 years 3 years 3 months 5 Conduct endangering life 10 years 3 years 3 months 6 Conduct endangering persons[4] 5 years 12 months 1 month 7 Conduct endangering life 10 years 3 years 3 months 8 Conduct endangering life 10 years 3 years 6 months 3 months 9 Conduct endangering life 10 years 3 years 3 months Related Summary Offence 17 Drive without a licence[5] 60 penalty units or 6 months’ imprisonment 7 days Total Effective Sentence: 15 years’ imprisonment Non-Parole Period: 11 years Section 6AAA Statement: 17 years and 6 months’ imprisonment [1]Contrary to s 318(1) of the Crimes Act 1958.
[2]Contrary to s 22 of the Crimes Act 1958.
[3]In the judge’s orders, the sentence was to 54 months’ imprisonment. For ease of reference, we have converted this to 4 years 6 months. We have similarly converted the sentences on charges 3 and 8.
[4]Contrary to s 23 of the Crimes Act 1958.
[5]Contrary to s 18(1) of the Road Safety Act 1986.
On 8 May 2023, Kyrou JA granted the appellant leave to appeal against sentence on the following grounds:
1. The sentence imposed on charge 1 is manifestly excessive.
2.The orders for cumulation fail adequately to reflect the principle of totality, resulting in a manifestly excessive total effective sentence and non-parole period.
3. The sentencing judge erred in:
a)finding beyond reasonable doubt that the applicant must have known that he was not in a fit state to drive; and
b)failing to accord the applicant procedural fairness in relation to that finding.
Circumstances of the offending[6]
[6]This description of the circumstances is substantially drawn from the Summary of Prosecution Opening, which was tendered as Exhibit A on the plea.
On 14 August 2021, the appellant hired a Toyota Hilux utility to assist friends to move their belongings. The appellant was not licenced to drive at the time. He held a Queensland licence which he used to complete the rental agreement. This licence had been suspended for non-payment of fines (charge 17).
At approximately 5:00 pm on Sunday 15 August 2021, the appellant was driving the hired vehicle north on the Nepean Highway in Mentone. Prior to driving the vehicle, the appellant had consumed methylamphetamine and cannabis. He had had very little sleep in the preceding four days and nights.
The appellant stopped his vehicle at a red light at the intersection of the Nepean Highway and White Street. He was stopped in the middle lane, facing north-west, towards the city. When the lights turned green, the appellant took off at a fast speed and continued to accelerate.
The next intersection approached. There were three lanes for forward travel and each had a stationary car stopped at a red light. The appellant did not slow down as he approached the intersection. The lights turned green as he entered the intersection. He moved into the right turning lane, veering to his right onto the incorrect side of the road and continued to drive north on the southbound lanes of the Nepean Highway. There was no southbound traffic at or in the intersection at the time.
The appellant travelled on the wrong side of the Nepean Highway for approximately 800 metres, at a fast rate of speed.
The appellant travelled around a curve and was confronted by a car driven by Darren Anderson in the right lane,[7] and a car driven by Brendan Compton in the middle lane. Mr Compton had two passengers in his car. Mr Anderson and Mr Compton both slowed to avoid a collision. The appellant swerved to his right to avoid a collision, moving into what was for him, being on the wrong side of the road, the right lane, and for vehicles traveling on the correct side of the road, the left lane (charges 3 and 4).
[7]References to lanes on the southbound road are references to lanes from the perspective of drivers travelling in the correct direction.
The appellant continued driving and was confronted by a car driven by Robin Dayes. Mr Dayes was forced to swerve to his right into the middle lane to avoid a collision (charge 5).
Frances Barton was in the middle lane facing the appellant. He passed her, driving very fast, in the next lane (charge 6).
Nicholas Stewart was driving in the left lane. He saw the appellant approaching in his lane. Mr Stewart veered to his right into the middle lane to avoid a collision (charge 7).
Eolo Finnocchiaro was driving in the middle lane. His wife and son were passengers. He saw the appellant driving and swerved to the right lane to avoid a collision (charge 8).
Stavros Vlachokyriakos was driving in the same lane as the appellant and saw him coming towards him. Mr Vlachokyriakos slowed down. At the last minute the appellant moved to his right onto the nature strip which separated the main traffic lanes from a slip lane on the eastern side of the road (charge 9).
The appellant’s vehicle went over the nature strip, colliding with and driving over a small tree and other vegetation. The vehicle was heading towards the loading dock of a Woolworths supermarket. At the same time, two young teenage friends, Lachlan McLaren and Ella Mahoney, were walking past on the footpath. Ella Mahoney felt her friend squeeze her hand or nudge her and she moved out of the way. She was hit a glancing blow as the vehicle went past her which knocked her to the ground (charge 2).
Lachlan McLaren, a 16 year boy, was unable to move out of the way. He was hit by the appellant’s vehicle causing massive injuries. He was pronounced dead by paramedics at the scene (charge 1).
The vehicle continued moving after hitting Mr McLaren and entered the loading bay, crashing into garbage bins. The appellant was not injured. He exited the vehicle and remained nearby.
Police attended and spoke to the appellant who appeared to be alcohol or drug affected. He was placed under arrest. The appellant was found to be unfit for interview that day. A blood test taken at the scene was found to contain 0.13 mg/L of methylamphetamine, 0.05 mg/L of amphetamine and 3 ng/mL of Delta-9-tetrahydrocannabinol (cannabis).[8]
[8]The Summary of Prosecution Opening stated that the blood test showed ‘0.-5 mg/L’ of amphetamine. The report of Dr Sanjeev Gaya of the Victorian Institute of Forensic Medicine stated that the blood test showed ‘0.05 mg/L’ of amphetamine.
On Monday 16 August the appellant was re-assessed as fit and made a ‘no comment’ interview. He was subsequently remanded.
In relation to the speed of the appellant’s vehicle, subsequent expert reconstruction concluded that immediately prior to going onto the nature strip the vehicle was travelling at 134–6 km/h, that for at least 5.95 seconds prior to this manoeuvre the vehicle was travelling at approximately 130 km/h, and that for all but 1.5 seconds of this time the accelerator was pressed to 100 per cent of the possible pedal travel. Data obtained from the airbag control module showed that the vehicle reached a speed of at least 134 km/h.
In relation to the influence of the drugs revealed in the appellant’s blood test, Dr Sanjeev Gaya of the Victorian Institute of Forensic Medicine expressed the following opinions:
•The cognitive effects of methylamphetamine include disinhibition, alienation of reality, risk taking, agitation, confusion and decreased attention.
•Drivers of vehicles who are intoxicated with methylamphetamine are more likely to drive erratically, to speed, and to take risks compared to the non-drug affected state.
•One study found that drivers with a methylamphetamine concentration of 0.1 mg/L or more are 21 times more likely to be responsible for a crash.
•Cannabis can result in impaired reasoning and thought, reduction in perceptive skills, dulling of reflexes and reduction in capacity to react quickly.
•The observed driving of this offender was in keeping with the predictable and known effects of methylamphetamine.
•The cannabis use would have compounded the deleterious effects of the methylamphetamine.
Prior criminal history and personal circumstances
The appellant was 30 years old at the time of the offending and 32 years of age at the time of sentence. He was born and brought up in Queensland. He has four younger brothers and two younger sisters. His parents separated when he was young.
A psychiatric report from Dr Rajan Darjee was tendered on the plea, together with a letter from the appellant’s mother.
Dr Darjee’s report and the appellant’s mother’s letter revealed negative aspects of the appellant’s childhood, particularly in relation to his father. There was, however, no reliance upon the principles in R v Verdins (‘Verdins’)[9] or the principles in Bugmy v The Queen (‘Bugmy’).[10]
[9](2007) 16 VR 240; [2007] VSCA 102.
[10](2013) 249 CLR 571; [2013] HCA 37.
The appellant was educated to Year 9 when he was expelled from school. He has a very limited work history.
Drugs have been a significant problem for the appellant for many years. At the time of the offending, he was consuming large quantities of cannabis daily, as well as methylamphetamine. He had begun using methylamphetamine in his early 20s.
The appellant’s only prior conviction before the sentencing court was a conviction for armed robbery in Queensland, when the appellant was 19 years of age. On the plea, the sentencing judge was told that the appellant’s Queensland driver licence had been suspended five times since 2007. His licence was suspended at the time of the offending.
Sentencing reasons[11]
[11]DPP v Hennessey [2022] VCC 1600 (‘Reasons’).
The judge described the circumstances of the offending, and addressed at some length a large number of victim impact statements tendered on the plea. He said that the impact of the appellant’s offending was profound.[12]
[12]Reasons, [80].
The appellant’s background was considered. The judge stated that the appellant’s background really had ‘actually nothing to do’ with his offending,[13] but he accepted that he had grown up with some disadvantage.[14] It was not contended that there was any reduction in culpability as a result.[15]
[13]Reasons, [93].
[14]Reasons, [98].
[15]Reasons, [98].
The judge took into account the appellant’s early guilty plea, the presence of some remorse,[16] and some increased custodial burden arising from the pandemic which would have been felt by the appellant.[17]
[16]Reasons, [104]–[106].
[17]Reasons, [109].
The judge said that the plea of guilty was made at the earliest stage, which the judge said was a matter of real importance which had to be adequately rewarded.[18] The judge said that the plea of guilty was made ‘amidst the disrupted operations of this court brought about by the global pandemic’ and that there was heightened value for his guilty plea in those circumstances for the reasons set out in Worboyes v The Queen (‘Worboyes’).[19]
[18]Reasons, [104].
[19]Reasons, [106], citing [2021] VSCA 169 (‘Worboyes’).
The judge was satisfied that there was some actual remorse on the part of the appellant.[20]
[20]Reasons, [108].
The judge accepted that the appellant had reasonable prospects of rehabilitation if he could remain abstinent from drug use.[21]
[21]Reasons, [117].
The passage in the Reasons which gives rise to ground 3 is the following:
You were clearly intoxicated by drugs. You were unlicenced. You must have known how incapacitated you were. You must have known you were not in a fit state to drive. I am satisfied of that beyond reasonable doubt. You chose to take the drugs. You had no proper control of a car that you chose to drive.[22]
[22]Reasons, [129].
The sentencing judge had regard to the maximum penalties as well as the standard sentence scheme applicable to the charge of culpable driving (charge 1).[23]
[23]Reasons, [144], [146]–[155].
The judge’s view was that this instance of culpable driving was a ‘very large measure above the median or mid-range in terms of an assessment of the objective gravity of the offence, without factoring in matters personal’ to the appellant.[24]
[24]Reasons, [130].
The judge stated that punishment must be just and proportionate. There was a need to denounce this conduct.[25] Some moderation of specific deterrence was necessary, given that the appellant had no relevant offending history and had shown regret for his actions.[26] General deterrence was said to ‘loom large’ and it was said that a clear message must be sent to other road users.[27]
[25]Reasons, [139]–[140].
[26]Reasons, [141].
[27]Reasons, [142].
Finally, the judge said he took into account the principle of totality to avoid a crushing sentence.[28]
[28]Reasons, [173]–[180].
Worboyes
Worboyes, the decision to which the judge referred in relation to the guilty plea and the effects of the pandemic, is a decision of this Court (Priest, Kaye and T Forrest JJA) handed down on 18 June 2021.
In that appeal, it was contended that the sentencing judge had erred by failing to take into account the increased utilitarian benefit of a guilty plea in the circumstances of the pandemic.
The Court set out the consequences of the pandemic and of the lockdowns, and the very substantial effects that that had had on the Court’s capacity to hear criminal cases. Even after the effects of the pandemic had abated, it was said that the courts had been left with ‘enormous and intimidating backlogs’.[29]
[29]Worboyes [2021] VSCA 169, [21]–[24].
After reviewing previous authorities concerning the utilitarian value of guilty pleas,[30] the Court said that the effects of the pandemic had meant that unacceptable delay in the disposition of cases had become ‘endemic’, placing the criminal justice system ‘in crisis’, and requiring a response from the courts. The required response was that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a guilty plea must attract ‘an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice’. Encouragement to plead guilty must come from ‘an actual and palpable amelioration of sentence’.[31]
[30]Worboyes [2021] VSCA 169, [25]–[34].
[31]Worboyes [2021] VSCA 169, [35].
On the same day that the judgment in Worboyes was handed down, this Court (constituted by the same bench) handed down judgment in Chenhall v The Queen.[32] In that case the sentencing judge had rejected a submission that there was increased utilitarian benefit in a guilty plea by reason of the ‘court backlog’ caused by the pandemic. This Court held, citing the decision in Worboyes, that the sentencing judge’s rejection of the contention that there was increased utilitarian benefit by reason of the pandemic, constituted a material error by virtue of which the sentencing discretion was reopened.[33]
[32][2021] VSCA 175 (‘Chenhall’). A third judgment addressing the same issue was also handed down by the same bench on the same day: Schaeffer v The Queen [2021] VSCA 171. That judgment concerned whether a judge needed to expressly refer to the augmented mitigatory effect in the sentencing reasons.
[33]Chenhall [2021] VSCA 175, [33]–[36].
In Rossi v The Queen,[34] this Court (Priest and T Forrest JJA) dealt with a sentence imposed in the circumstances of the pandemic but prior to the judgment in Worboyes. The Court expressed the view that, notwithstanding the ‘careful and conscientious’ reasons for sentence, if the judge had had the benefit of Worboyes, ‘much greater weight in the sentencing mix would have been accorded to the significant utilitarian benefit arising from the applicant’s guilty pleas’.[35] After elaborating upon the problems created by the pandemic, the Court concluded as follows:
Given these circumstances, we consider that the applicant’s pleas of guilty should have been reflected in far greater mitigation of the applicant’s sentence. Indeed, we have concluded that the sentence imposed is manifestly excessive.[36]
[34][2021] VSCA 296 (‘Rossi’).
[35]Rossi [2021] VSCA 296, [14].
[36]Rossi [2021] VSCA 296, [16].
In April 2022, in Papagelou v The Queen,[37] this Court (Priest and T Forrest JJA) again addressed the additional utilitarian value of a guilty plea entered during the circumstances of the pandemic, emphasising that this Court’s statements of principle in that respect ‘are not empty platitudes’ and that, ‘[a]ll other things being equal, a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects’.[38]
[37][2022] VSCA 53 (‘Papagelou’).
[38]Papagelou [2022] VSCA 53, [28].
The standard sentence scheme
The judge’s reference to the standard sentence scheme was a reference to the scheme introduced by the Sentencing Amendment (Sentencing Standards) Act 2017 amending the Sentencing Act 1991. Culpable driving causing death is an offence to which the scheme applies. The standard sentence scheme applies to offences committed on or after 1 February 2018. The appellant’s culpable driving offence was committed on 15 August 2021, and, accordingly, the standard sentence scheme applies to that offence.
Under s 5(2)(ab) of the Sentencing Act 1991 (as amended), in sentencing an offender, a court must have regard to the standard sentence, if any, for that offence. Section 5A(1)(b) provides that the period specified as the standard sentence for a standard sentence offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, was in the middle of the range of seriousness. Section 5A(3) provides that the objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to the offender, and wholly by reference to the nature of the offending. Section 5B(3) provides that the obligation to take the standard sentence into account does not limit the matters that the sentencing court is otherwise required or permitted to take into account, and is not intended to affect the ‘instinctive synthesis’ approach to sentencing. By s 5B(2)(b), the sentencing court is precluded from having regard to sentencing practices for a standard sentence offence that pre-date the introduction of the standard sentencing provisions.
The standard sentence for the offence of culpable driving causing death is 8 years’ imprisonment.[39]
[39]Crimes Act1958 s 318(1A).
Appellant’s submissions
In relation to ground 1, the appellant submitted that the sentence imposed on charge 1 (12 years’ imprisonment) was manifestly excessive.
Reference was made to the matters relied upon on the plea in mitigation, namely, the early guilty plea, the additional value of a guilty plea in circumstances of the pandemic, the additional hardship in custody as a result of the pandemic, remorse, the absence of a relevant offending history, a disadvantaged background (without reliance on Bugmy), and reasonable prospects for rehabilitation.
It was submitted that the sentence imposed was simply too high, given that:
•It constituted 60 per cent of the maximum penalty, for an offender who had pleaded guilty early, in the circumstances of the pandemic, where the principles in Worboyes applied, and with no relevant prior offending history.
•It is the longest individual sentence imposed on any offender for culpable driving.
•A comparison of sentences imposed during the period of operation of the standard sentence scheme in relevantly comparable cases reveals that the sentence imposed on the appellant is ‘at odds with those sentences, even when factual differences and subjective factors are taken into account’. Reference was made in this respect to four Court of Appeal decisions and six County Court sentences referred to in the prosecution’s written submission on sentence at the plea.
The victim impact statements in this case were numerous and very detailed, setting out the anguish and pain suffered, and in some cases the anger felt, by the families and friends of the two teenage victims, and especially that of the family of Mr McLaren. Extensive reference was made by the sentencing judge to these victim impact statements in the Reasons. The sentencing judge had cautioned himself against letting the impact of the offending ‘swamp’ other sentencing factors,[40] but it was submitted on behalf of the appellant that the Reasons suggest the sentencing judge had ‘struggled to resist’ the overwhelming impact of the effect of the offending on the family and friends of the two young teenage victims.
[40]Reasons, [78].
In relation to ground 2, the submissions made were essentially founded upon the submissions in relation to ground 1. The individual sentences were not the subject of complaint, but it was submitted that, given the length of the sentence imposed on charge 1, the cumulations ordered were excessive. It was submitted that there was really one single episode of offending and that the orders for cumulation and the total effective sentence as a result did not reflect the application of the totality principle in avoiding double punishment and ensuring a just and appropriate sentence for the overall offending.
In relation to ground 3, the submission was that the judge was wrong to find beyond reasonable doubt that the appellant must have known he was not in a fit state to drive. It was further contended that the appellant’s counsel at the plea hearing had not been given an opportunity to address that issue.
Dr Gaya’s opinion as to the effect of the drugs was relied upon. In his report he had stated that the cognitive effects of methylamphetamine include ‘disinhibition, alienation of reality, risk taking, agitation, confusion, psychosis and decreased attention’ and that cannabis ‘would have compounded the deleterious effects of methylamphetamine’. The submission was that Dr Gaya’s opinion, in conjunction with the appellant’s ‘confused’, ‘agitated’ and ‘bizarre’ behaviour at the scene, gave rise to a reasonable doubt as to whether the appellant was aware he was not fit to drive.
Accordingly, it was submitted, there was no proper basis upon which the judge could conclude that the appellant must have known he was not in a fit state to drive. It was submitted that the judge had taken that conclusion into account as an adverse factor against the appellant, as the judge had said he was satisfied of it ‘beyond reasonable doubt’.
Respondent’s submissions
In relation to ground 1, the respondent relied upon the circumstances of the offending and, in particular, the judge’s conclusion that the offending itself was well above the mid-range of seriousness of a charge of culpable driving.
In relation to other comparable sentences, the respondent referred to the sentences imposed in R v Singh (‘Singh’).[41] In that case sentences of 12 years’ imprisonment had been imposed on four culpable driving charges by the sentencing judge. On appeal, those sentences had been reduced to 10 years on the sole ground that a significant development had occurred since sentence (cooperation in relation to others) which required a reduction. The respondent submitted that a comparison with other cases of culpable driving under the standard sentence scheme did not reveal this sentence to be outside the range of sentences available.
[41][2021] VSC 182 (Coghlan JA) and on appeal: [2022] VSCA 178 (Emerton ACJ, Kyrou and T Forrest JJA).
In relation to ground 2, it was submitted that the charges, other than charge 1, involved distinct, separate offending with different victims. It was emphasised that no complaint was made in relation to the individual sentences on those charges. It was submitted that the cumulation ordered was not outside the range.
In relation to ground 3, the respondent’s written case contended that the passage relied upon by the appellant was ‘no more than a statement of the offence itself’, and that the sentencing judge had not treated that finding as a ‘separate circumstance of aggravation’. In oral submissions, counsel submitted that it was ‘self-evident’, given the appellant’s long term drug use, that the effects of the drugs would have been known to him.
In relation to the issue of whether the appellant’s counsel at the plea had had the opportunity to address the matter, the respondent relied upon the prosecution’s written sentencing submission, which had stated in the second paragraph:
The offender drove a motor vehicle when he was completely unfit to do so, a fact of which he was surely aware.
Current sentencing practices
One of the matters a sentencing court must take into account is current sentencing practices. Under the standard sentence scheme the court is precluded from taking into account sentences which pre-date the introduction of that scheme.
The prosecution’s written submission on sentence on the plea set out four Court of Appeal decisions and six County Court sentences from which it was said, noting the limitations on the use of previous sentences,[42] that the Court may gain assistance. The decisions so set out were the following:
[42]See, eg, DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41 (‘Dalgliesh’).
•RakatauvThe Queen [2021] VSCA 76 (‘Rakatau’);
•Victorsen v The Queen [2020] VSCA 248 (‘Victorsen’);
•Phongthaihong v The Queen [2021] VSCA 317 (‘Phongthaihong’);
•DPP v Reid [2020] VSCA 247 (‘Reid’);
•DPP v Janorat [2021] VCC 139 (‘Janorat’);
•DPP v Tate [2021] VCC 22 (‘Tate’);
•DPP v Grayden [2020] VCC 279 (‘Grayden’);
•DPP v Gray [2021] VCC 30 (‘Gray’);
•DPP v Bratherton [2020] VCC 1461 (‘Bratherton’);
•DPP v Castle [2020] VCC 937 (‘Castle’).
We have considered each of these decisions.
Each offender pleaded guilty. But otherwise, as is to be expected, the circumstances of each offence and of each offender varied. Excessive speed (present in all except Tate[43] and Janorat) and significant intoxication (present in all except Victorsen and Grayden[44]) are common features, but otherwise the circumstances of the offending vary. As to the offender, the levels of remorse, the extent of relevant criminal history, the age of the offender, prospects of rehabilitation, the presence of Verdins factors (to varying degrees in Rakatau, Phongthaihong, Bratherton, Reid, and Gray), and Bugmy factors (present in only Victorsen) also vary. What might be termed the ‘Worboyes discount’ was applied in three of the cases (Castle – 8 years, Bratherton – 8 years, and Janorat – 9 years).
[43]In Tate, the sentencing judge remarked that the speed of 70 km/h at which it was estimated the offender was driving at the relevant time was ‘risky’ and ‘negligent’. However, it is unclear from the sentencing remarks what the speed limit was. Further, the judge remarked that the offender’s speed was not ‘grossly excessive’.
[44]In Grayden, the offender had, prior to driving, drunk alcohol and smoked the drug ‘ice’. Given that there was no evidence as to any impact that may have had on the offender’s driving, the judge in sentencing did not take into account that the offender had been ingesting alcohol and ‘ice’.
It is noteworthy that, notwithstanding the variations, the range of sentences is narrow. The highest sentence is 9 years 6 months (Tate) and the lowest is 8 years (Castle and Bratherton — both cases where the Worboyes discount was applied). The median sentence is 9 years, the mean is 9 years 2 months, and the most common sentence (Victorsen, Rakatau, Phongthaihong, Reid, Janorat) is 9 years.
In the course of the hearing before us, significant attention in this context was also devoted to Singh.
On 22 April 2020, four Victoria Police members, who had apprehended a driver on the Eastern Freeway at Kew and were standing in the emergency lane, were struck and killed by a prime mover driven by the offender, Mohinder Singh. On 11 March 2021, Singh pleaded guilty to four charges of culpable driving causing death, three charges of drug trafficking, one charge of drug possession, and two related summary offences. Following a plea, on 4 April 2021, he was sentenced to 12 years’ imprisonment on each of the culpable driving charges. The sentence on the first culpable driving charge was the base sentence, and 3 years’ imprisonment was cumulated on each of the other three culpable driving charges. A further year of cumulation was added in relation to the sentences imposed on the other charges. Thus, the total effective sentence imposed by the sentencing judge was 22 years’ imprisonment. A non-parole period of 18 years 6 months was fixed.
Singh sought leave to appeal on eight proposed grounds. Proposed ground 1 was that the sentencing judge had erred by ‘failing to give sufficient weight to the plea of guilty’. Proposed grounds 2 to 6 concerned errors alleged to have been made by the judge concerning Singh’s psychiatric condition and the circumstances of his driving, and contentions that the sentences imposed were manifestly excessive. Proposed ground 7 relied on fresh or new evidence, which it was said permitted the court to re-sentence, and proposed ground 8 asserted that there had been a failure to give sufficient weight to the applicant’s cooperation and offer of assistance.
The Court of Appeal (Emerton ACJ, Kyrou and T Forrest JJA) reviewed the circumstances and the reasons for sentence in detail, but the appeal was decided on proposed ground 7 concerning the fresh or new evidence. The fresh or new evidence was a cooperation with the authorities, being Singh’s agreement to give evidence against his supervisor.
The Court of Appeal reduced each of Singh’s sentences for culpable driving from 12 years to 10 years. The cumulation was reduced on the culpable driving offences from 3 years to 2 years 6 months. Otherwise, the sentences were the same, resulting in a total effective sentence of 18 years 6 months’ imprisonment, and a non-parole period of 14 years 6 months.
Whilst the Court of Appeal decided the application for leave and the appeal on the basis of the ground relying on the fresh or new evidence, observing that it was accordingly unnecessary to consider the other proposed grounds, the Court did say that it regarded the sentencing judge’s comprehensive reasons for sentence as ‘impeccable’, and that ‘none of the grounds that alleged specific error were meritorious’.[45]
[45]Singh v The Queen [2022] VSCA 178, [50].
Mindful of the fact that no two cases are ever alike, and that comparison of sentences can be misleading, and is often unhelpful, the following observations might be made about the circumstances in Singh and the circumstances in this appeal:
•The appellant’s driving was, in our view, significantly worse than that of Singh. Both the appellant and Singh were affected by drugs and fatigue at the relevant time. But Singh was not speeding and he was not driving on the wrong side of a divided carriageway. Singh veered into the emergency lane on his correct side of the freeway at between 62 and 80 km/h and struck the police. The appellant was driving at more than 130 km/h, down the wrong side of a divided carriageway, before veering off the carriageway, crossing a nature strip and a slip road, and striking pedestrians on the footpath. We do not overlook the fact that Singh was driving a large vehicle, which the sentencing judge observed was an important feature of the seriousness of the offending.[46] Nevertheless, assessing all the circumstances of the driving, the appellant’s driving was, in our view, significantly worse than that of Singh.
•Singh received warnings that he was unfit to drive. That was not a factor present in the appellant’s case.
•Singh had been pressured to drive by his employer. No similar circumstance was present in the appellant’s case.
•Singh had driving related prior convictions, including two prior convictions for driving with a blood alcohol level in excess of 0.05 per cent. The appellant does not have similar prior convictions.
•Although Singh had significant mental health issues, neither he nor the appellant had mental health issues which relevantly reduced their culpability. The appellant did not rely on Verdins before the sentencing judge. The sentencing judge in Singh said he had ‘not given special weight’ to Verdins, although he had had regard to the ‘possibility’ that Singh’s mental health might make prison more onerous.[47]
•The appellant is younger than Singh, but neither of them were youthful at the time of the offending.
•Both Singh and the appellant pleaded guilty. They both pleaded guilty in the circumstances addressed by this Court in Worboyes. The sentencing judge in the appellant’s case said the Worboyes decision meant his guilty plea had heightened value. Singh was sentenced before the decision in Worboyes, and the Court of Appeal did not refer to it. In Singh there was a proposed ground of appeal alleging error as a result of a failure to give sufficient weight to the plea of guilty and the Court of Appeal observed that all the proposed grounds asserting specific error were without merit.
[46]Singh [2021] VSC 182, [95].
[47]Singh [2021] VSC 182, [115].
Ground 3 — known incapacity finding — analysis
The appellant had abused both methylamphetamine and cannabis for many years. He had taken methylamphetamine and cannabis on the day of the offending. Testing undertaken immediately after the offending revealed that he was significantly intoxicated with both methylamphetamine and cannabis. We agree with the submission of the respondent that it was self-evident that the appellant would have known of the effects of those drugs.
In our opinion, it was open to the judge to conclude, beyond reasonable doubt, that the appellant must have known, given the known effects of the drugs he had taken, that he was not in a fit state to drive. Indeed, we consider that that conclusion was correct.
We do not accept the complaint as to procedural fairness. The prosecution’s written submission on the plea expressly asserted that the appellant was unfit to drive and that that was ‘a fact of which he was surely aware’.
Accordingly, the appeal fails on ground 3.
Ground 2 — cumulations — manifest excess — analysis
The most significant cumulation is in relation to the charge of conduct endangering the life of Ms Mahoney (charge 2 — cumulation of 17 months). She was walking hand in hand with Mr McLaren, when she was struck a glancing blow by the appellant’s vehicle and knocked to the ground. She was very fortunate not to have been killed. A squeeze of her hand, or a nudge, by Mr McLaren may have saved her life. She learnt of the death of her friend whilst being treated in hospital. Her victim impact statement reveals that she suffered physical injuries, including a fractured spine, as well as significant psychological harm.
The sentence on charge 2 of 54 months’ imprisonment (4 years 6 months) is not said to be manifestly excessive. Given the circumstances as we have described them, the cumulation of 17 months was not wholly outside the range open to the sentencing judge, and was, accordingly, not manifestly excessive.
Otherwise, each of the conduct endangering life sentences have a cumulation of 3 months, and the offence of conduct endangering persons has a cumulation of 1 month. None of these cumulations are, in our view, manifestly excessive.
The complaint as to the cumulations, and as to the total effective sentence, was in large measure founded upon the contention that the base sentence for culpable driving was manifestly excessive, which is the subject of ground 1, to which we now turn.
Ground 1 — culpable driving — manifest excess — analysis
It has to be said that there are grounds for concern that the sentencing judge in this case has merely paid lip service to the Worboyes augmented discount. But this is not a case where it can be said that the sentencing judge rejected a submission that the circumstances of the pandemic increased the utilitarian value of the guilty plea (as in Chenhall) or where the sentencing judge failed to have regard to it (as in Rossi). The judge here said that he accepted that the guilty plea had a heightened value for the reasons set out in Worboyes.
Thus, a concern about the sentencing judge’s treatment of the plea of guilty in this case has to be a concern as to the weight which the judge gave to that consideration. Such complaints (in all but rare cases) are relevant only to the issue of manifest excess; they do not (in all but rare cases) constitute specific error.[48]
[48]See Saab v The Queen [2012] VSCA 165, [33]–[61] (the Court).
When addressing a complaint as to the weight given to one relevant factor in sentencing, the appellate court does not reconsider the individual factors and the weight which was applied to them by the sentencing judge, but rather, by ‘instinctively synthesising all relevant factors’, it determines whether the impugned sentence is just and appropriate.[49]
[49]Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA, Weinberg JA agreeing at [38]).
It is trite to observe that the appellate court can only conclude that a sentence is manifestly excessive if it is wholly outside the range of sentences open to the sentencing judge.[50]
[50]See, eg, Lowndes v The Queen (1999) 195 CLR 665, 671–2 [15] (the Court); [1999] HCA 29.
The submission made based upon the fact that the sentence imposed on the culpable driving offence (12 years) is 60 per cent of the maximum (20 years) for an offender without relevant driving prior convictions, and who pleaded guilty in circumstances where that plea was entitled to the augmented discount provided for in Worboyes, is cogent. But we have nevertheless concluded that the sentence is not manifestly excessive, although it seems to us to be at the very top of the permissible range.
Our reasons are as follows:
(a)General deterrence is a factor of great significance in this case. The appellant’s driving can only be described as shocking, in both relevant senses of that word. The fact that he drove in the manner in which he did whilst under the influence of methylamphetamine (and cannabis) is a circumstance of paramount significance, in our opinion. The effects of methylamphetamine are well known. We agree with the judge’s conclusion that the appellant himself must have known of those effects. The consequences in this case were devastating. As the sentencing judge observed, this is a case where general deterrence must be seen to ‘loom large’. As the sentencing judge also observed, a clear message must be sent to other road users that offences committed whilst driving a vehicle under the influence of methylamphetamine will result in stern consequences.
(b)We are unpersuaded that a consideration of current sentencing practices reveals this sentence to be wholly outside the range of sentences available to the sentencing judge. The relevant sentences to which we were referred are in a narrow band, but it would be wrong to treat that narrow band as having ‘capped and collared’ the relevant range; comparable cases may illustrate the possible range but they cannot define it.[51] The sentences imposed in Singh, which, for these purposes, must be seen as the same as those imposed on the appellant, fortify our view that whilst the sentence imposed here is at the very top of the range, it is not wholly outside the range.
(c)Whilst the appellant did suffer some deprivation and hardship in childhood, apart from his plea of guilty there were few matters upon which the appellant could rely in mitigation.
(d)Culpable driving is a standard sentence offence. The standard sentence is 8 years’ imprisonment. We agree with the judge’s conclusion that the offending in this case was a ‘very large measure’ above the middle of the range of seriousness taking into account only the objective factors.
[51]DPP v OJA (2007) 172 A Crim R 181, 196 [30]–[31] (Nettle JA, Ashley JA agreeing at 206 [71], Redlich JA agreeing at 206 [72]); [2007] VSCA 129; Dalgliesh (2017) 262 CLR 428, 445 [50]–[52] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41.
We have accordingly concluded that the sentence imposed on the culpable driving offence was not wholly outside the range open to the sentencing judge and that ground 1 must accordingly be rejected.
Conclusion
We have concluded that ground 3 is not made out, and that the individual cumulations the subject of ground 2 are not manifestly excessive.
We have concluded that the sentence for culpable driving is not manifestly excessive, and that ground 1 is not made out.
In these circumstances, we also conclude the total effective sentence is not manifestly excessive, so that ground 2 also fails.
Accordingly, the appeal will be dismissed.
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