Hutchison v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 00139

ANDREW HUTCHISON	Appellant
v
THE QUEEN	Respondent

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JUDGES:	KYROU, EMERTON and SIFRIS JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 August 2021
DATE OF JUDGMENT:	27 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 235
JUDGMENT APPEALED FROM:	[2020] VCC 708 (Judge Mullaly)

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CRIMINAL LAW – Appeal – Conviction – Recklessly exposing emergency worker to risk by driving (charge 1), damaging emergency services vehicle (charge 2), recklessly causing injury (charge 3) – Appellant in distressed state speeding and driving erratically on highway – Police deployed ‘stop sticks’ to deflate tyres – Appellant’s car changed direction and headed towards second police car parked on verge – Appellant’s car collided with police car – Police car struck police officer and injured him – Whether conviction on both charges 1 and 3 resulted in double punishment – Conduct not a single, inseparable act – Additional actus reus involved in causing injury to police officer – Injury not treated as aggravating factor for charge 1 – Appeal against conviction dismissed – R v Sessions [1998] 2 VR 304, distinguished – R v Newman and Turnbull [1997] 1 VR 146, considered.

CRIMINAL LAW – Appeal – Sentence – Whether individual sentences on charges 1–3, orders for cumulation, non-parole period and total effective sentence of 4 years, 9 months’ imprisonment manifestly excessive – Serious offending – Proper weight not given to appellant’s reduced moral culpability because of impaired mental functioning – Appeal against sentence allowed – Resentenced to total effective sentence of 3 years, 6 months’ imprisonment with non-parole period of 24 months – R v Verdins (2007) 16 VR 269, applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Reardon and Ms H Canham	Legal Aid Victoria
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
EMERTON JA
SIFRIS JA:

Introduction

On 30 April 2020, the appellant pleaded guilty in the County Court of Victoria to four charges: recklessly exposing an emergency worker to risk by driving; damaging an emergency service vehicle; recklessly causing injury; and a related summary offence of dangerous driving.

The appellant was sentenced as follows:

Charge on indictment

Offence

Maximum

Sentence

Cumulation

1

Recklessly exposing emergency worker to risk by driving (Crimes Act1958, s 317AE)

10 years

3 years

Base

2

Damaging emergency service vehicle (Crimes Act, s 317AG)

5 years

1 year

7 months

3

Recklessly causing injury (Crimes Act, s 18)

5 years[1]

20 months

12 months

Related summary offence

Dangerous driving (Road Safety Act1986, s 64(1))

2 years

6 months

2 months

Total effective sentence

4 years, 9 months’ imprisonment

Non-parole period

3 years

Pre-sentence detention declared

513 days

6AAA statement: 6 years, 6 months’ imprisonment with a non-parole period of 4 years, 6 months

Other relevant orders: Licence cancellation and disqualification for 3 years

[1]A mandatory minimum sentence of 6 months’ imprisonment applied pursuant to s 10AA(4) of the Sentencing Act 1991 unless the Court found that a special reason existed. Under s 5(2G), read with s 3 (definition of ‘category 1 offence’), the Court was required to make a custodial order.

The appellant was granted leave to appeal both his conviction on charge 3 (recklessly causing injury) and his sentence on 23 March 2021 on the papers.

For the reasons that follow, the appeal against conviction on charge 3 will be dismissed but the appeal against sentence will be allowed.

Background

The appellant was sentenced in accordance with the agreed facts contained in the Summary of Prosecution Opening.

At the time of the offending, the appellant was 21 years old. On the morning of 20 November 2018, his former partner, Alicia Rowe, noticed the appellant packing clothes and bedding into plastic bags. The appellant told Ms Rowe that he did not want to be here anymore and that it was his ‘last day’. Ms Rowe interpreted this to mean that the appellant was suicidal and sent a text message to the appellant’s brother who in turn contacted 000 and alerted police. When the appellant got into his car, Ms Rowe got into the car with him.

The appellant, with Ms Rowe as a passenger, drove to a service station, where he filled a jerry can with petrol. He then drove to some vacant blocks nearby. The appellant refused to answer the phone to police, who were by then trying to contact him. Ms Rowe answered several times and attempted to advise police of their whereabouts while at the same time urging the appellant to speak to the police. The appellant was heard to say, ‘I’m not listening to them, there is nothing they can do’.

The appellant then drove to Altona cemetery. He drove at high speeds and was swerving on the roads. At the cemetery, the appellant drove around and around. Ms Rowe got out of the car but soon got back in. By this stage, police had identified the appellant’s location and attended in police vehicles. Upon seeing the police vehicles, Ms Rowe got out of the appellant’s car and ran towards police.

The police tried to stop the appellant from leaving the Altona cemetery by boxing him in and activating lights and sirens on the marked police cars. However, they were unsuccessful and a pursuit ensued on the Princes Freeway. The pursuit was terminated because of the manner in which the appellant was driving.

The appellant continued driving on the Princes Freeway, where his speed was detected at 150 kilometres per hour. He drove through Geelong and onto the Great Ocean Road almost to Aireys Inlet before performing a U-turn and travelling back towards Torquay. Police continued to look for him.

At approximately 12:50 pm, police observed the appellant’s car travelling east. The appellant was driving erratically, including travelling on the wrong side of the road directly into oncoming traffic. Several other witnesses observed the appellant’s car travelling at high speeds and on the wrong side of the road. This conduct gave rise to the summary offence of dangerous driving.

At approximately 1:15 pm, the appellant was travelling north on the Surf Coast Highway out of Torquay. The police air wing began recording the appellant’s car. Two police officers drove to the intersection of Dickins Road and Surf Coast Highway to set up ‘stop sticks’ in order to deflate the appellant’s car tyres. Another police officer, Sergeant French, who is the victim of the offending in this proceeding, pulled over a little further north in order to set up further stop sticks. He parked his police vehicle on the verge at an angle with its tail facing to the road.

As the appellant approached from the south, the police officers stationed on the corner of Dickins Road activated the stop sticks and the driver’s side tyres of the appellant’s car were affected. However, the vehicle continued travelling in a straight line.

As Sergeant French waited for the appellant’s car to approach, he stood approximately one metre from his vehicle’s front bumper. He observed the appellant’s car travelling in his direction at a faster speed than the other vehicles on the road and overtaking a number of vehicles. As he prepared to deploy the stop sticks, he saw the appellant’s car change direction and travel directly towards him. According to the Summary of Prosecution Opening, this conduct constituted charge 1 (recklessly exposing emergency worker to risk).

When he saw the appellant’s car travelling towards him, Sergeant French discarded the stop sticks and ran behind his vehicle to protect himself. The appellant’s car collided with Sergeant French’s car, causing him to be struck by his own car. Sergeant French was thrown through the air some 3–4 metres, landing approximately 10 metres from his car. According to the Summary of Prosecution Opening, the collision constituted charge 2 (damaging emergency services vehicle) and charge 3 (recklessly causing injury).

The prosecution conceded that the affected tyres on the appellant’s car were likely significantly deflated and, consequently, the appellant’s control of his car was compromised and his driving in the direction of Sergeant French’s car was reckless rather than intentional.

Other police immediately attended the scene of the collision. A police officer opened the appellant’s car door and noted that the appellant was not responsive and that the car smelt strongly of petrol. The police officer removed the jerry can and placed it away from the car before arresting the appellant. The appellant said to police, ‘I told you all to fuck off and leave me alone’.

Sergeant French suffered a fracture to his right foot, a fracture to his forefinger on his left hand, as well as abrasions and avulsions.

The Major Collision Investigation Unit found no mechanical fault in the appellant’s car that would have caused or contributed to the collision. However, the front and rear driver’s side tyres were deflated. It was also established that the appellant’s car was travelling at 98 kilometres per hour at the time of impact with the police car. Five seconds prior to the collision, the appellant’s car was travelling at 134 kilometres per hour and from 2.0 seconds to 0.5 seconds prior to the collision, the brakes of the appellant’s car were applied.

Legislative framework

Recklessly causing injury is an offence under s 18 of the Crimes Act. That section provides:

18 Causing injury intentionally or recklessly
A person who, without lawful excuse, intentionally or recklessly causes injury to another person is guilty of an indictable offence.
Penalty:If the injury was caused intentionally—level 5 imprisonment (10 years maximum);
If the injury was caused recklessly—level 6 imprisonment (5 years maximum).

Recklessly exposing an emergency worker to risk by driving is an offence under s 317AE of the Crimes Act. That section relevantly provides:

317AERecklessly exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving

(1) A person who—
(a)drives a motor vehicle in the vicinity of another person who is an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty; and
(b)knows that, or is reckless as to whether, the other person is an emergency worker, custodial officer or youth justice custodial worker; and
(c)without lawful excuse, drives the motor vehicle and recklessly exposes the other person to a risk to safety—

is guilty of an offence and liable to level 5 imprisonment (10 years maximum).

…
(3)A person may be found guilty of an offence under subsection (1) irrespective of whether the emergency worker, custodial officer or youth justice custodial worker was injured by the conduct of the person driving the motor vehicle.

Causing injury recklessly is a ‘category 1 offence’ for the purpose of sub-ss 5(2G)–(2H) of the Sentencing Act where the victim was an emergency service worker on duty. Under s 5(2G), the Court must make an order for imprisonment for category 1 offences committed by an adult on or after 20 March 2017. The Court cannot order a combined sentencing order of imprisonment and a community correction order. In these circumstances, an adult offender is liable to a mandatory custodial sentence of six months under s 10AA(4) of the Sentencing Act. There is an exception if the court finds that a ‘special reason’ exists in accordance with s 10A of the Sentencing Act.

Recklessly exposing an emergency worker to risk by driving, contrary to s 317AE(1) of the Crimes Act, is a serious motor vehicle offence for the purposes of s 87P of the Sentencing Act. Section 89 of the Sentencing Act provides that a court must not disqualify a person from obtaining or holding a licence for less than 24 months for a serious motor vehicle offence.

Section 16(3D) of the Sentencing Act provides that offences against ss 317AE and 317AG must be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed, whether before or at the same time as that term, unless otherwise directed by the court.

Division 8A of pt 1 of the Crimes Act — which includes ss 317AE and 317AG — was introduced in 2017 in order to specifically address incidents where offenders use motor vehicles to harm police and emergency workers. The second reading speech to the Bill[2] contained the following expressions of legislative intention:
[2]Crimes Legislation Amendment (Protection of Emergency Workers and Others) Bill 2017.

These reforms are broader than just police car ramming and damage to property. They focus on the safety of police and emergency workers, and cover incidents where offenders drive at a police officer who is not in a car. A statutory two-year minimum term of imprisonment will apply if an adult offender commits the offence of intentionally exposing an emergency worker to risk to safety by driving and in so doing causes an injury to the emergency worker while they are on duty.
Further, intentionally or recklessly exposing an emergency worker to risk to safety by driving will require the imposition of a custodial sentence if the offence is committed in certain aggravating circumstances, for example, where the motor vehicle is stolen, where the offence occurred in connection with another indictable offence, or where the offender has also damaged the emergency service vehicle.
Violence towards police and emergency workers in the line of duty is unacceptable and will not be tolerated. These reforms reflect the government’s commitment to cracking down on offenders who harm, or seek to harm, a police officer or emergency worker.
Through the design of these offences and penalties the government’s expectation and intention is clear — charges for the offences of exposing an emergency worker to risk offence [sic] and the damage to an emergency services vehicle charges [sic] can and should (where appropriate) be laid and prosecuted simultaneously, thereby requiring the imposition of a custodial sentence.
The government shares the concerns of police officers when offences involving violent behaviour towards police are the subject of plea deals by police prosecutors. If an offender, intentionally or recklessly exposes an emergency worker to risk to safety by driving and the offence is committed in certain aggravating circumstances, the offender should go to prison.[3]

APPEAL AGAINST CONVICTION

[3]Victoria, Parliamentary Debates, Legislative Assembly, 2 November 2017, 3668.

The appellant appeals against his conviction on charge 3 on the following ground:

The learned sentencing judge erred in convicting the [appellant] of both charges 1 and 3 on the indictment resulting in impermissible double punishment.

The appellant submits that recording convictions on both charge 1 and charge 3 violated statutory and common law prohibitions against punishing an offender twice for the same act.

The ground of appeal is submitted to be based on both common law principles and s 51(1) of the Interpretation of Legislation Act1984, which provides:

Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.

The prohibition against double punishment is not limited to circumstances where a plea in bar is available.

The appellant submits the actus reus of charges 1 and 3 consisted of the same act: the appellant driving his vehicle into the police vehicle, which created a risk to the victim’s safety and caused his injury. The appellant submits that the same physical acts were relied on to establish his liability and that, had he not pleaded guilty, the evidence at his trial would have been identical whether he had been charged with either or both of the offences.

According to the appellant, there was no additional act on his part that caused the injury, much less a discrete act committed with a reckless state of mind. Moreover, as charges 1 and 3 concern the same victim, no issue arises as to the same conduct constituting separate acts for the purposes of punishment.

The appellant submits that the delineation relied on by the Crown between the conclusion of charge 1 (exposing to risk by driving) and the commencement of charges 2 and 3 (damaging the police vehicle and causing injury to the police officer) at a point after the appellant’s vehicle began to travel directly towards the victim is ‘illusory’.[4] This is particularly so in light of the concession that the appellant’s tyres were likely significantly deflated following deployment of the first set of stop sticks and the fact that his control of the vehicle was compromised.
[4]Referring to R vSessions [1998] 2 VR 304, 313 (Hayne JA).

In support of his submission, the appellant referred, in particular, to Pearce v The Queen (‘Pearce’)[5] and R v Sessions (‘Sessions’),[6] as well as two more recent decisions of this Court in R v Le (‘Le’)[7] and R v Bradley (‘Bradley’),[8] each of which concerned or considered the prohibition on punishing twice for the same act or omission. It is convenient to consider Pearce and Sessions at this point, as they inform the arguments presented by the parties.
[5](1998) 194 CLR 610; [1998] HCA 57.
[6][1998] 2 VR 304.
[7][2009] VSCA 247.
[8][2010] VSCA 70.

In Pearce, the High Court addressed two issues. The first was whether the prosecution might have infringed principles concerning ‘double jeopardy’, either on the basis of plea in bar or abuse of process. The High Court held that an appeal against conviction would only succeed on the basis of those principles if the elements of the two offences charged were identical, or where all the elements of one offence were wholly included in the other. This is not the case here, as the elements of the offence of recklessly exposing an emergency worker to risk by driving are not the same as the elements of the offence of causing injury recklessly, and nor are the elements of the one offence wholly included in the other.

However, in the context of considering whether the offender had been exposed to double jeopardy in respect of the two charges with overlapping elements, the High Court confirmed that, to the extent to which two offences of which a person is convicted contain common elements, it would be wrong to punish the offender twice for the elements that are common. The majority (McHugh, Hayne and Callinan JJ) stated that, subject to contrary legislative intention,

the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means the offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.[9]

[9]Pearce (1998) 194 CLR 610, 623 [40]; [1998] HCA 57.

The High Court found that the offender had been subjected to double punishment, in circumstances where he was convicted and sentenced for both malicious infliction of grievous bodily harm, and breaking and entering a dwelling-house and inflicting grievous bodily harm there. Pearce makes clear that the identification of a single act as common to two offences should not be attended by ‘excessive subtleties and refinements’, and should be ‘approached as a matter of common sense, not as a matter of semantics’.[10]
[10]Ibid 623 [42] (McHugh, Hayne and Callinan JJ) (citations omitted).

While Pearce is relied upon as confirming the common law principle forbidding double punishment, the appellant relies principally on Sessions to argue that the identity of the conduct that wrongly attracted separate punishments in Sessions was analogous to his conduct in exposing Sergeant French to risk to safety and causing injury to him.

In Sessions, the criminal conduct consisted of the offender pushing his finger violently into a baby’s vagina, causing part of the baby’s intestine to be extruded through the vaginal opening. The offender was charged with and pleaded guilty to one count of rape and one count of recklessly causing serious injury. The prosecution charged the accused with the lesser offence of recklessly causing serious injury in addition to rape to avoid infringing the principle discussed in R v Newman and Turnbull (‘Newman and Turnbull’)[11] that a person should not be punished for a crime for which he or she has not been charged or convicted. The primary judge sentenced the offender on the basis that the rape was constituted by the offender inserting his finger to the slightest extent into the vagina and the offence of recklessly causing serious injury was constituted by the continued forceful penetration.
[11][1997] 1 VR 146.

The offender sought leave to appeal against conviction for recklessly causing serious injury and against the sentence for rape on the ground that, by being charged with two offences for the same act, he was exposed to double jeopardy in relation to conviction and punishment. The Court of Appeal allowed the appeal, holding that there was a single act by the offender in penetrating the victim, and the distinction drawn by the sentencing judge between the initial penetration and the continued penetration was ‘illusory’.[12]
[12]Sessions [1998] 2 VR 304, 313.

In the lead judgment, Hayne JA (with whom Batt JA and Eames AJA agreed) was prepared, for the sake of argument, to assume that s 51 of the Interpretation of Legislation Act permitted prosecution of the offender for either or both of the offences of rape and recklessly causing serious injury, but forbade punishing him more than once for the ‘same act or omission’. His Honour held that whether a conviction should have been recorded on both counts was affected by three considerations, as follows.

First, if the basic principle is that a single act or omission should not give rise to multiple punishments, conviction should not be recorded on both counts. It mattered not whether that principle was founded in the common law or in the provisions of s 51 of the Interpretation of Legislation Act.

Secondly, the serious injury to the victim could properly be taken into account in determining the sentence to be imposed on the offender for rape. Indeed, because s 5(2)(db) of the Sentencing Act required a judge to have regard to any injury, loss or damage resulting directly from the offence, a judge dealing with the offender for rape would be bound to have regard to the injury done to the victim unless, as the sentencing judge did, some distinction was drawn between that part of the act of inserting a finger into the body and the other part of the same action which led to the child being injured. Hayne JA considered such a distinction to be artificial and unreal. He continued:

That the distinction is artificial and unreal is powerful reason to examine whether it is right and necessary. In this case it is a distinction that is not right and, far from being necessary, it is a distinction that cannot properly be drawn. To sentence the applicant on the basis that the rape was complete when his finger had penetrated the child’s body to the least extent is to sentence him for a rape which is not the rape he committed. His act of sexual penetration did not stop at that point; it continued. And it continued to the point where he did serious injury to the child. Moreover, in sentencing the applicant for recklessly causing serious injury, the judge would, of course, be bound to take account of the injury done. But so too would the judge be bound to take account of the fact that the injury was done by penetration of the child’s vagina. Thus there is no useful distinction to be drawn between parts of the applicant’s conduct. The suggested distinction is of no use and may properly be described as illusory.[13]

[13]Ibid.

The third consideration identified by Hayne JA was that the charging of the separate offences was not required by considerations of the kind discussed in Newman and Turnbull. His Honour rejected the Director’s submission that charging both rape and recklessly causing serious injury would allow the accused to know what was alleged against him and the sentencing judge to know what was proved or admitted. He considered that, while an offender who acted with the intention of causing serious injury would deserve to be dealt with more severely than an offender who was reckless to the possibility, these were matters that could and would be resolved at the sentencing hearing in the ordinary way. They were not considerations sufficient to warrant the laying of two charges.[14]
[14]Ibid 314.

In short, the three reasons for setting aside the conviction for recklessly causing serious injury were that:

(a) a single act or omission should not give rise to multiple punishments, and conviction should not be recorded on both counts;

(b) the judge sentencing the offender for rape was bound to have regard to the injury to the victim; and

(c) the charging of the separate offences was not required by considerations of the kind discussed in Newman and Turnbull.

The decision in Sessions was therefore based on the criminal liability of the offender arising from a single act and the holding that the distinction identified by the trial judge between the act of sexual penetration and the act causing the injury was not properly drawn.

The appellant submitted that, as in Sessions, there was a single act in this case, namely, the act of reckless driving that both endangered and injured a police officer. His driving in the final four seconds was said to be best described as either a continuum or a continuation of the previous driving and the attempt to separate his driving into two discrete acts was not consistent with the need to avoid technical distinctions and take a common sense approach in determining whether there was one act or two identified by the majority judgment in Pearce. According to the appellant, the distinction relied upon by the respondent is every bit as illusory as the distinction that was attempted in Sessions.

The appellant submits that while it is possible to recklessly expose an emergency worker to risk by driving without injury eventuating, it is impossible to recklessly cause injury to an emergency worker by driving, without also recklessly exposing that same person to a risk by driving. Upon recording a conviction on charge 3 there was said to be no further act that allowed for a separate offence to be charged or punished. This, it is submitted, is consistent with Sessions, which proceeded on the basis that that the injury was taken into account by virtue of the need to recognise the full circumstances of the offence. The appellant submitted that, while injury is not an element of that offence, if it eventuates it forms part of the circumstances of the offence and can be taken into account as part of the exercise of the sentencing discretion.

The appellant submits further that if the endangerment only occurs when the offender has crossed ‘the Rubicon’ with respect to creation of a risk, if a discrete act is necessary to recklessly cause injury, it follows that the conduct constituting the endangerment has not reached the point where a course of events has been set in motion so that there is an appreciable risk of danger.

Finally, the appellant submits that the recording of a conviction is itself a form of punishment[15] — such that the principles against double punishment may be infringed where a person is convicted of two offences in relation to the same act, regardless of the sentence imposed.
[15]By operation of the Interpretation of Legislation Act 1984 s 51 and the Sentencing Act 1991 s 7: Sessions [1998] 2 VR 304, 312–13 (Hayne JA), 323 (Eames JA); cited in Lecornu v The Queen (2012) 36 VR 382, 393 [42]; [2012] VSCA 137 (Maxwell P, Hollingworth and Cavanough AJJA agreeing at [79]–[80]).

The respondent does not seek to answer the appellant’s argument by contending for separate, sequential, acts. Instead, it was submitted that the ‘continuous act’ contained within it several aspects of criminality and each of them needed to be reflected by the appropriate charge. There were properly three charges before the court: charge 1 relating to the creation of the risk to safety of an emergency service worker; charge 2 dealing with the damage to a motor vehicle; and charge 3 dealing with the particulars of the injury that was sustained by the police officer and caused by the reckless conduct of the appellant. While there is a significant degree of overlap in the act of driving which gave rise to each of those three offences, that does not mean there was nothing left to punish in relation to the damage to the vehicle or in relation to the injuries which were sustained by Sergeant French. The appellant pleaded guilty to three charges, each of which dealt with different aspects of criminality and had different elements. It was necessary for there to be separate charges to enable the sentencing judge to have scope to craft a sentence reflecting the entirety of the offending.

Notwithstanding the concession that the appellant’s driving constituted one continuous act, the respondent submits that charges 2 and 3 require actus reus in addition to that required for charge 1. The appellant drove his car, initially with the foresight of the probability that he was putting the police officer’s safety at risk, and he continued to drive to collide with the police vehicle while aware that he would probably injure the victim (but proceeded regardless). Injuries to the police officer resulted from that conduct. Hence, charges 2 and 3 involved additional elements.

The respondent submits that charge 3, recklessly causing injury, is broadly described as an ‘outcome offence’ and that charge 1, broadly described, is a ‘risk offence’. Applying this taxonomy, as there is no element of charge 1 which is directed towards any outcome, it would have been an error for the sentencing judge to have taken the outcome (injury) into account in aggravation of charge 1. Had the judge said, ‘this was very bad creation of risk because it inflicted a fractured foot and a fractured finger and significant psychological trauma onto the victim’, that would have involved taking into account the injuries sustained by the victim in circumstances where the conduct that was the cause of the injuries could otherwise have been charged and injury was not an element of the offence. To properly give effect to the outcome — that is, the actual injuries sustained — there needed to be a charge that was associated with the outcome, not just the risk of the outcome.

According to the respondent, therefore, it was necessary to frame the indictment to recognise both the reckless endangerment of the police officer’s safety and the additional criminality involved in the choice to continue to drive at the police vehicle while aware that an injury to the victim would probably result, and to reflect the eventual outcome of that conduct, that is, the injuries that were sustained by the victim. The respondent contended that failure to frame the indictment as it was framed might arguably have left the sentencing judge unable to give effect to the serious additional criminality beyond the reckless endangerment of safety. The respondent also contended that it might legitimately have been said that to give effect to the additional criminality would have led to the appellant being sentenced for an offence with which he was neither charged nor convicted, in breach of the principles articulated in Newman and Turnbull.

Analysis
Were the penalties imposed for the same act or omission?

The appellant was charged on the basis that the conduct comprising driving the vehicle at speed under the effect of the stop sticks as it headed towards Sergeant French was the commission of the offence in charge 1. The vehicle then collided with Sergeant French's vehicle, causing it damage — which was charge 2 — and through that mechanism injury was caused to Sergeant French, which gave rise to charge 3.

It is convenient to begin by observing that the conduct giving rise to charges 1 and 3, while both arising from the appellant’s reckless driving, is not a single, inseparable act, as was the case in Sessions. In Sessions, the digital rape involved violent penetration of the vagina and, concurrently and inseparably, the infliction of injury to the vagina. The act that constituted the rape was entirely co-extensive with the act that caused the injury. The artificiality of separating the violent act of penetration from the violent act of injuring the vagina is evident from the primary judge’s attempt to delineate an (arbitrary) end point to the conduct constituting penetration at the point at which the finger entered the vagina. And to use the respondent’s taxonomy, the rape was an ‘outcome’ offence, as was the infliction of the injury in the course of the rape.

It is plain that, in the present case, the offending in charge 1 could have been committed without committing the offence in charge 3 (or charge 2). The elements of the offences are not the same. Had the appellant veered away from Sergeant French’s vehicle at the very last moment and continued down the highway, the offence in charge 1 would still have been committed. Whilst there is a degree of overlap between the conduct which gave rise to charges 1 and 3, it is not a complete overlap. The appellant did not veer away: he continued on the same trajectory, giving rise to charge 2 upon the collision with the police vehicle and then, as a consequence of that collision, to charge 3 — the injury to Sergeant French. Charges 2 and 3 captured additional (criminal) conduct by the appellant.

In our view, this distinguishes the circumstances of this case from those considered in Sessions.

In addition to Sessions, the appellant relied on Le and Bradley, in which this Court accepted that double punishment had occurred in circumstances where offenders were convicted of both endangering offences and causing injury to the victim by reason of the very same act.[16]
[16]The fact that the sentence imposed for the causing injury offence in Bradley had been made wholly concurrent with the sentence imposed for the endangering offence did not overcome the fact that double punishment had been administered.

In Le, the offender was charged with reckless conduct placing another in danger of serious injury as well as recklessly causing injury as a result of producing what appeared to be a silver pen that the victim feared was a ‘pen pistol’ that would be used to shoot him and then discharging that device and injuring the victim. Coghlan AJA (with whom Ashley and Weinberg JJA agreed) held that the actus reus of each of the counts was identical — the firing of the pistol.

In Bradley, the offender pulled out a gun and started firing at police officers who had found him during a police search. There was an exchange of fire and one of the officers received a minor injury. The offender was subsequently apprehended and charged with both reckless conduct endangering life and intentionally causing injury. This Court concluded, without the need for any detailed analysis, that the conduct supporting the one count was the same as the conduct supporting the other count and that the offender should not have been convicted on both counts.

In our view, neither of these cases is analogous, as the act of endangerment in each case was precisely the same as the act that caused the injury. In this case, while there is an overlap between the offences charged, the injury to Sergeant French was occasioned by colliding with the police vehicle — a distinct aspect of the appellant’s conduct.

We do not accept, on the facts of this case, that the authorities relied on by the appellant are analogous or that the appellant has been punished twice for the same act. He has been punished once for exposing Sergeant French to risk to his safety and once for actually injuring Sergeant French.

For these reasons, we accept the respondent’s submission that the separate criminality involved in the conduct causing injury could be recognised in conviction and sentencing.

Does s 317AE already comprehend injury?

There remains, however, the further question of whether the statutory offence created by s 317AE of the Crimes Act comprehends injury (where that occurs) so as to require any injury that ensues from the conduct of endangerment to be dealt with as part of the endangerment offence. This is a question of statutory interpretation, which requires consideration of the context in which s 317AE appears.

Division 8A of pt 1 of the Crimes Act creates ‘driving offences connected with emergency workers, custodial officers, youth justice custodial workers and emergency service vehicles’. The offences against persons (as opposed to emergency vehicles) involve driving that exposes a specified person (emergency worker, a custodial officer or a youth justice custodial worker) to ‘a risk to safety’. Section 317AC applies where the offender intends to expose the other person to a risk to safety; s 317AD is the aggravated form of that offence; s 317AE applies where the offender recklessly exposes the other person to a risk to safety; s 317AF is the aggravated form of that offence.

The offending in each case focuses on driving that exposes another person to a risk to their safety. This must include exposure to a risk of actual harm, but the infliction of actual harm is not an element of any of the offences.

Both s 317AC (intentional exposure) and s 317AE (reckless exposure) contain a subsection (3) that provides:

A person may be found guilty of an offence under subsection (1) irrespective of whether the emergency worker, custodial officer or youth justice custodial worker was injured by the conduct of the person driving the motor vehicle.

The appellant submits that these provisions evince a legislative intention that the offences comprehend any injury that occurs.

We disagree. In our view, these provisions simply make it clear that no injury is required for the offences to be complete. They do not preclude a separate charge of causing injury under another provision of the Crimes Act.

However, the appellant also points to s 10AE(1) of the Sentencing Act which provides:

Subject to subsection (2), in sentencing an offender (whether on appeal or otherwise) for an offence against section 317AC or 317AD of the Crimes Act 1958, a court must impose a term of imprisonment and fix under section 11 a non-parole period of not less than 2 years if, in the commission of the offence, an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty is injured.

Accordingly, the appellant submits, the application of the Sentencing Act and the common law principle that injury caused as a direct consequence of the offence needs to be taken into account, means that the injury to Sergeant French is a part of the offence in charge 1.

There is no equivalent Sentencing Act provision for s 317AE, although, where an emergency worker is the victim of the offence of recklessly causing injury, s 10AA of the Sentencing Act requires the court to impose a term of imprisonment of not less than six months (unless a special reason exists).

This means, in substance, that if an offender in the position of the appellant is convicted of intentionally exposing an emergency worker to risk and injures that person in the course of exposing them to risk, the offender’s conduct will be punished in a single sentence that includes a minimum non-parole period of two years and in respect of which a 10 year maximum sentence serves as a guidepost. However, if an offender in the position of the appellant is charged and convicted of both recklessly exposing an emergency worker to risk and recklessly causing injury to the emergency worker, he or she stands to be sentenced for one offence carrying a maximum penalty of 10 years, and another carrying a mandatory minimum term of imprisonment of six months.

Plainly, div 8A of pt 1 of the Crimes Act must be considered as a whole. If a judge in sentencing for an offence against s 317AC must take into account any injury caused by the intentional act of exposing an emergency worker to risk to safety, we see no logical reason why injury should not be taken into account in sentencing for the less serious offending in s 317AE.

According to the respondent, the principles in R v De Simoni (‘De Simoni’)[17] and Newman and Turnbull prevent the sentencing judge from sentencing for causing injury as part of the offence in s 317AE. The respondent further submits that s 10AE(1) of the Sentencing Act is a legislative exception to those principles, underlining that they are applicable in the present case.
[17](1981) 147 CLR 383; [1981] HCA 31.

De Simoni and Newman and Turnbull stand for the proposition that a sentencing judge should not take into account, by way of aggravation, circumstances which would have warranted a conviction for a more serious offence that was not charged. Prima facie, it would not infringe that principle for a sentencing judge to consider the fact of injury in sentencing an offender for recklessly exposing an emergency worker to a risk to safety, in circumstances where no separate charge was brought with respect to the injury itself. Paradoxically, because of the high maximum sentence legislated for what is a ‘risk’ offence, the ‘outcome’ offence —causing injury recklessly— is not a ‘more serious offence’, as it is punishable for a maximum of five years. In Elsayed v The Queen, this Court stated that, ultimately, the question is one of fact, degree, and fairness.[18] It is not contended by the respondent that it would be unfair to consider the injury to Sergeant French as part of the sentence for exposing Sergeant French to risk. Rather, it is submitted that to do so would be to fail to recognise the separate criminality involved in causing injury to Sergeant French. Conversely, the appellant contends, in substance, that it is unfair to convict and sentence the appellant for the offence of causing the injury separately.
[18][2019] VSCA 113, [63] (Kaye and Weinberg JJA), referring to Newman and Turnbull [1997] 1 VR 146, 152 (Winneke P, Hayne JA and Crocket AJA agreeing at 146 and 153) and Semaan v The Queen [2017] VSCA 261, [91] (Priest, Beach and Hansen JJA).

We do not consider that De Simoni and Newman and Turnbull precluded the sentencing judge from considering injury when sentencing the appellant for the s 317AE offence, providing the appellant did not stand to be sentenced at the same time for the separate offence of causing injury. However, where the appellant stood to be convicted of and sentenced separately for causing injury, that conduct could not be taken into account in sentencing for the s 317AE offence, for to do so would involve double punishment.

There is no suggestion in this case that the sentencing judge treated the fact that Sergeant French was injured as an aggravating factor when sentencing the appellant for the s 317AE offence.

Conviction and sentencing under s 317AE of the Crimes Act does not preclude conviction and sentencing under s 18 of the Crimes Act where, as here, there is additional actus reus involved in causing injury to the emergency worker.

For the above reasons, the appeal against conviction will be dismissed.

APPEAL AGAINST SENTENCE

The appellant’s personal circumstances

The appellant was 22 years of age at the time of sentence. He had no prior convictions. He was raised ‘in a loving and caring family in which he was never the victim of any physical domestic violence’.[19] The appellant is the youngest of five children. All of his siblings have done well. His parents considered that he was different to his siblings.
[19]Report of Jeffrey Cummins dated 15 February 2019 (‘First Cummins Report’), [16].

At primary school, he was diagnosed by a paediatrician as being on the autism spectrum. He left school at about 14 years of age and worked for some time in a logistics company managed by his father.

In 2012, he was involved in a serious motorcycle accident, sustaining bone fractures and back problems. He has not worked since.

The appellant’s mental health history and problems are set out in two reports of Jeffrey Cummins, a consulting, clinical and forensic psychologist.[20]
[20]The First Cummins Report and Report of Jeffrey Cummins dated 14 April 2020 (‘Second Cummins Report’).

The expert evidence

On 7 February 2019, Mr Cummins conducted an interview with the appellant for the purposes of a further bail application and prepared the First Cummins Report.[21]
[21]The interview followed two unsuccessful bail applications in relation to the offending the subject of this appeal. The presiding magistrate at the Geelong Magistrates’ Court requested a psychological report addressing various matters.

After referring to the circumstances of the offending, two previous unsuccessful bail applications, the appellant’s history including repeated sexual abuse between the ages of 9 and 16, his motorcycle accident and a suicide attempt in 2017, Mr Cummins recorded what he was told by the appellant, as follows:

He stated he was assessed with a very low IQ (borderline range) when aged nine and was diagnosed with ADHD at age seven and was thereafter medicated between the ages of 7 and 16. He also reported being diagnosed with autism when assessed at the Royal Children’s Hospital at around age 13/14, corresponding with when he ceased his education. He reported midway through Year 7 he was referred to CaLM School in Melton South and he left school at age 13/14. Between the ages of 18 and the time of his alleged offending in November 2018 he was working as a pick packer at Pac Brands in Truganina. He reported having the full support of his parents.

Mr Cummins then gave his opinion to the effect that the appellant required and would benefit from regular mental health treatment provided by a psychologist. He said:

Based upon my assessment of Mr Hutchison it is my opinion he displayed the motivation and ability to respond appropriately to a treatment plan. In my opinion he should be trialled on an antidepressant and requires regular mental health treatment provided by a psychologist. On his account, he was seriously traumatised by being sexually abused and he needs to speak with a psychologist about that phase of his life. In my opinion, if he feels he is being listened to by a mental health practitioner and if he knows he is able to attend upon a mental health practitioner on a regular basis, this should ameliorate the risk he has posed to himself and to other members of the community. I accept he has a history of behaving impulsively, particularly as evidenced through his admission that he has made multiple suicide attempts/cries for help. In my opinion he may have a Borderline Personality Disorder, although on the basis of his comments and presentation at interview I did not diagnose him as having a Borderline Personality Disorder. On his account, he has never had a problem with alcohol, illicit drugs, or with the abuse of prescription medications.

Mr Cummins then recorded that the appellant told him at the interview that he was afraid of the police, having been assaulted by them in December 2017, and was terrified on the day of the offending when he realised he was being pursued by the police.

Mr Cummins concluded his opinion as follows:

Based upon my assessment of Mr Hutchison I would expect him to cooperate with the provision of appropriate and consistent mental health treatment. In my opinion he is suffering from a trauma related disorder — most probably a Posttraumatic Stress Disorder, or in the alternative, from a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSM-5 Code 309.28). At interview he presented as a relatively passive, timid and introverted interviewee and in response to direct questioning he acknowledged he frequently and often daily experiences negative intrusive thoughts regarding his history of sexual abuse, regarding being — in his opinion — abused by members of the police force and regarding feeling he has been at times misunderstood by his girlfriend. He reports being securely attached to his parents and he regards his parents as being supportive of him.
I did not assess him as having a general anger management problem. I assessed his risk of committing an offence of violence through using the current best practice assessment tool, namely the HCR-20, as being Low. Nonetheless, in my opinion it is appropriate he participate in an anger management program, or that anger management strategies are integrated into the treatment program provided by a treating psychologist. At interview he did not display an elevated level of frustration although he spoke about feeling frustrated with the way his life has unfolded. In my opinion his mental health problems will inevitably become more exacerbated and more entrenched the longer the time he spends in custody.

In the Second Cummins Report, after conducting an interview with the appellant on 12 March 2020 for the plea hearing, Mr Cummins stated his opinion and conclusions. They are set out in full below:

At interview on 12/3/2020 he spoke in a manner indicating he regarded himself as being a significantly traumatised person. In this regard he referred to multiple traumatic events which he had been subjected to whilst on remand — including being physically assaulted on at least three (possibly four) occasions and being sexually abused (attempted anal rape) on one occasion. He also spoke about being sexually abused when he was aged between 9 and 16 by multiple males aged between 16 and 19. He also mentioned about being bullied at school and stated he was bullied because he had learning difficulties and was assessed with ADHD for which he was medicated on Dexamphetamine. He reported nightmares and flashbacks concerning being sexually abused whilst on remand.
In my opinion he is diagnosed as suffering from multiple PTSDs — being a clinical condition described as Complex PTSD. In my opinion it is significant that the prison file notes referred to him presenting as being dissociated, which is a common symptom of trauma. He also presented both at the consultation of 12/3/2020 and at the earlier consultation of 7/2/2019 as being a relatively disorganised interviewee. Whilst I accept this could in part be reflective of his low intellectual functioning (borderline or bottom of low average range), his disorganised presentation could also be very significantly reflective of concentration difficulties, mood regulation difficulties and negative intrusive thoughts which are primarily reflective of him being a traumatised person.
In this regard, at interview on 12/3/2020 he was adamant that when he committed the offending to which he is now pleading guilty (dangerous driving, reckless exposure of an emergency worker to injury, damaging an emergency service vehicle and recklessly causing injury to Sergeant French on 20/11/2018) he was not under the influence of alcohol or any illicit drugs and was not then taking any prescribed medication. Rather, he stated that his best recollection of his mental state at that time was that he was feeling severely depressed and had formulated a plan to take his life by driving his vehicle and setting himself alight in his vehicle. At interview on 12/3/2020 he spoke about his recollection of his mental state leading up to 20/11/2018 in a manner which indicated he was then likely to be feeling very severely depressed and genuinely suicidal. At interview on 12/3/2020 he stated over several days prior to the incident of 20/11/2018 he and Ms Rowe had been arguing concerning their relationship and whether or not she would agree to marry him.
At interview on 12/3/2020 I formed the opinion it was very probable Mr Hutchison had also been suffering from a Major Depressive Disorder which was recurrent in type and of at least moderate severity (DSM-5 Code 296.32) and dating from at least his early teenage years. In my opinion there would inevitably be some overlap between him suffering from PSTD/Complex PTSD and from him suffering from a Major Depressive Disorder.
In my opinion his level of insight into his chronic mental health difficulties remains relatively limited and I accept his limited insight could be reflective of a combination of his low level of intellectual functioning, coupled with the direct effects of his chronic mental health problems. In addition, there is now confirmation he was diagnosed with and medicated for ADHD whilst at school and he is certainly of the opinion he was also diagnosed as being on the autism spectrum or as suffering from Asperger’s Disorder. At interview on 12/3/2020 he spoke about having been diagnosed with OCD and as having a history of panic attacks. At interview on 12/3/2020 he certainly spoke about his time on remand as being additionally and significantly traumatic for him.
He stated he was optimistic about being able to return to the workforce — at least on a part time/intermittent basis when he is released from custody.
I remain of the opinion it is appropriate he participate in a comprehensive anger management program. In this regard I formed the opinion he may be more amenable to talking about the multiple traumas to which he has been subjected within the context of an anger management program (whether this be a group program or an individual treatment program). Simultaneously, though, I remain of the opinion he requires ongoing and intensive mental health treatment with a focus on multiple traumas including being bullied at school, being sexually abused on multiple occasions and being physically assaulted in custody. In my opinion Mr Hutchison knows he requires intensive mental health treatment, but remains apprehensive about receiving this necessary treatment. Indeed, some of his comments at interview on 12/3/2020 indicated that upon his release from custody he may attempt to cope with his very significant and chronic mood regulation problems by ceasing taking the current medication regime which, on his own admission, seems to have provided him with some further mood stabilisation.
At interview on 12/3/2020 he spoke relatively freely about being of the belief that his mental health leading up to his offending of 20/11/2018 was additionally destabilised (against a chronic background of destabilisation) as a result of the turbulence in his relationship with Ms Rowe. Given his opinion that he will never resume any contact with Ms Rowe, it did appear at interview on 12/3/2020 he was now more optimistic that he could better manage his mental health problems when he is back in the community. In this regard, at interview on 12/3/2020 I explained to Mr Hutchison it was my opinion that he not only still requires intensive mental health treatment, but that he should commit to receiving intensive mental health treatment on a long term basis.
In my opinion it is very probable that at the time of offending on 20/11/2018 he had formed the opinion that he wanted to take his own life, although I noted when I interviewed him on 7/2/2019 he referred to his offending of 20/11/2018 as being ‘more like a cry for help’. In my opinion his mental health at that time was seriously impaired, as evidenced by the steps he had taken to purchase petrol and to spread the petrol around the vehicle. Therefore, in my opinion there was a realistic nexus between his mental health symptoms and his offending behaviour of 20/11/2018.
His comments at interview, coupled with a review of the prison file notes, confirmed he has had considerable difficulty coping with being held on remand. In my opinion he is now of the opinion that he is ‘ready’ to be released back into the community. As indicated above, though, in my opinion his level of insight into his current psychological functioning as well as into his historical psychological functioning remains limited. Nonetheless, I am of the opinion the longer the time he spends in custody, the more likely it is his mental health problems will become even more entrenched. Obviously, one of the advantages of him being sentenced to a CCO would be that he could be directed to receive ongoing mental health treatment.
In my opinion his risk of reoffending will be very much linked to whether he is able to stabilise his mental health whilst living back in the community. In my opinion the only way his mental health will become adequately stabilised will be through him taking mood stabilising medication and simultaneously receiving ongoing talking based treatment. In my opinion it would also be appropriate for him to be neuropsychologically examined in order to make an up-to-date determination of his current level of intellectual functioning and whether he is still likely to attract the diagnosis of an Autism Spectrum Disorder.[22]
[22]Emphasis added.

Reasons for sentence

After setting out in some detail the circumstances of the offending, the injuries to Sergeant French and the plea of guilty, the judge dealt with the gravity of the offending. The judge regarded the appellant’s conduct as serious examples of the charged offences, and concluded:

In my view, the courts must be firm when an offender recklessly puts a police officer who is deploying throw sticks in danger. This example of this offence is particularly serious.[23]

[23]DPP v Hutchison [2020] VCC 708, [48].

The judge then dealt with the appellant’s moral culpability which he said ‘is tied up in [the appellant’s] mental state at the time’.[24]
[24]Ibid [49].

After referring to the appellant’s ‘suicidal thoughts at the time’, the judge referred to the danger arising out of the appellant’s conduct and concluded that the appellant’s ‘moral culpability remains high, notwithstanding [his] fragile and unstable mental health at the time’.[25]
[25]Ibid [51].

After referring to the appellant’s personal circumstances, the judge dealt with the appellant’s mental health which he regarded as ‘more problematic’.[26]
[26]Ibid [61].

The judge referred to the sexual abuse of the appellant in his early teenage years and the consequent unresolved trauma and multiple suicide attempts. The judge also referred to the appellant’s chronic depression and ‘not coping with the end of [his] relationship’.[27]
[27]Ibid [62].

The judge then referred to the First and Second Cummins Reports and said:

You were seen twice by Mr Cummins, psychologist, for the purposes of bail and then the plea. I have read both reports carefully and considered the contents. With respect to your mental health at the time, Mr Cummins referred to what you had told him, and he wrote:
He stated that his best recollection of his mental state at the time was that he was feeling severely depressed, and had formulated a plan to take his life by driving his vehicle and setting himself alight in his vehicle. At interview on 12/03/2020, he spoke about his recollection of his mental state leading up to 20 November 2018 in a manner which indicated he was then likely to be feeling very severely depressed and genuinely suicidal. He stated over several days prior to the incident on 20 November 2018, he and Ms Rowe had been arguing concerning their relationship and whether or not she would agree to marry him.

Mr Cummins, when he first saw you, thought you were suffering from major depression. After the second interview, he added that you were suffering a complex post-traumatic stress disorder. He also was of the view that you have limited insight into your mental health problems.
In the end, Mr Cummins was of the view that on 20 November 2018, you had got to the point of contemplating suicide and had taken steps of getting petrol and then driving in a way that could well bring about the end of your life.
Mr Cummins did offer the opinion that in his view, there was a realistic connection between your mental state and your offending. While it is clear that you were in a general state of turmoil, it is not as clear that this was a state that the courts have described as impaired mental functioning.
But putting aside any diagnosis, it is not clear to me that the way you drove towards the police car on that stretch of the Surf Coast Highway was such that a realistic casual connection is established. Of great significance in this regard is that your very capable, experienced counsel did not make a submission that your moral culpability was lowered by any impaired mental functioning.[28]

[28]Ibid [63]–[68].

The judge then very briefly referred to the appellant’s youth,[29] low level of intelligence at the borderline for intellectual disability,[30] and difficulty in prison,[31] before concluding as follows:

In my view, the only appropriate sentence is one of imprisonment. As grave as it always is to sentence a young first offender, there is no other sentence that can adequately meet the important sentencing purposes of denunciation, deterrence, especially to others, just punishment, and protection of the community.
Your rehabilitation is not overlooked, but it is a consideration that must yield to the weight to be given to the other sentencing purposes. You have prospects to rehabilitate, and your family support is [a] very significant consideration in this regard. I will allow for the potential for parole, which is all I have to establish conditions that may facilitate your rehabilitation.
However, I must express the community’s grave concern and intolerance for putting police officers at risk by driving in dangerous ways. My denunciation must be more than words, but in a practical way, involving stern punishment. Likewise, I must send a clear message to others that if you drive as you did on that day, putting police at risk and other road users, you will face certain imprisonment.
…
Your plea of guilty is important and your sentence will be less. You have taken responsibility and you are remorseful. I have added into the equation that prison is onerous for you, and you have been moved into protection.[32]
[29]Ibid [69].
[30]Ibid [70].
[31]Ibid [71].
[32]Ibid [76]–[78], [80].

Grounds of appeal against sentence

The grounds of appeal against sentence are as follows:

(1)The learned sentencing judge erred in the application of the principles of totality and double punishment.
(2)The learned sentencing judge erred in the application of the principles in R v Verdins.
(3)The learned sentencing judge failed to have regard to the [appellant’s] youth in determining his moral culpability.
(4)The sentences on charges 1–3, the orders for cumulation, the non-parole period and the total effective sentence are manifestly excessive, having regard to:
a. The [appellant’s] youth and lack of prior convictions;
b.The [appellant’s] mental health, limited intellectual functioning and supportive family;
c.The [appellant’s] hardship in custody; and
d.The [appellant’s] plea of guilty and remorse.

In the light of the substantial overlap between the specific error grounds (ground 1–3) and the particulars of the manifest excess ground (ground 4) and our conclusions on grounds 2 and 4, we propose to confine our analysis to the latter grounds.

Grounds 2 and 4

As the authorities make clear, the ground of manifest excess is very difficult to establish. In Clarkson v The Queen, the Court of Appeal said:

As this Court has repeatedly emphasised, the ground of manifest excess will only succeed if it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance.

Sentencing is not the task of appellate courts, except where clear error is shown.[33]

[33](2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).

The ultimate question is whether the sentences and the total effective sentence were reasonably open to the sentencing judge. As the High Court said in Director of Public Prosecutions v Dalgliesh:

While the instinctive synthesis must be informed by each of the factors listed in s 5(2) [of the Sentencing Act 1991], the extent to which each factor bears upon the case is inevitably a matter for judgment. The process of instinctive synthesis thus allows a measure of discretion to the sentencing judge. The discretionary nature of the judgment required means that there is no single sentence that is just in all the circumstances. Nevertheless, it is well understood that a sentence may be so clearly unjust, because it is either manifestly inadequate or manifestly excessive, that it may be inferred that the sentencing discretion has miscarried.[34]

[34](2017) 262 CLR 428, 434 [7]; [2017] HCA 41 (Kiefel CJ, Bell and Keane JJ).

In all of the particular and devastating circumstances of this case, the appellant has, in our opinion, established that the individual sentences on charges 1 and 3, the order for cumulation on charge 3, the total effective sentence and the non-parole period were outside the range of sentencing options available to the sentencing judge.

The judge was undoubtedly correct in assessing the gravity of the offending. However, we consider that when proper weight is given to the appellant’s youth and lack of prior convictions, his early plea of guilty and remorse, his hardship in custody, his prospects of rehabilitation with proper treatment and in particular his (reduced) moral culpability, it is apparent that the sentence imposed by the judge was manifestly excessive.

As is evident from the sentencing remarks, the judge referred, albeit briefly, to the above factors, other than the reduction in moral culpability. Each of these matters are important factors in mitigation. Of course, it is impossible and unnecessary to endeavour to assess the weight, if any, that was attached to each of these factors. The question remains as to whether the sentence imposed was reasonably open. We consider that it was not.

We consider that, based on the First and Second Cummins Reports and the circumstances of the offending, the moral culpability of the appellant for his offending must be reduced by reason of his impaired mental state. Accordingly, we consider that general and specific deterrence must be moderated and denunciation is less relevant as a sentencing objective.

In R v Verdins (‘Verdins’), the Court dealt with various ways in which impaired mental functioning is relevant to sentencing. The Court said:

Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.[35]

[35](2007) 16 VR 269, 276, [32]; [2007] VSCA 102 (Maxwell P, Buchanan and Vincent JJA) (citations omitted).

In Carroll v The Queen, Maxwell P said:

It needs to be emphasised that a finding made by a sentencing judge about the applicability of one or more of the principles identified in Verdins is a finding of fact. It is for the sentencing court to decide whether, and if so to what extent, any condition from which the offender is said to suffer is likely to have affected his/her mental functioning in the particular circumstances – that is, at the time of the offending or in the lead-up to it – or is likely to affect him/her if sentenced to imprisonment. As to proposition 1, concerning the reduction of moral culpability, the Court in Verdins said:
It is of the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce the blameworthiness of the offender’s conduct. The effect on the court’s assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence.

Accordingly, a finding of the kind in issue here – that the appellant’s moral culpability was not reduced – will attract appellate intervention only if it can be shown that the finding was not reasonably open on the evidence. In the present case, the appellant would have had to show that no other conclusion was reasonably open but that his culpability was reduced, at least to some extent, by what was said to be the impairment of his mental functioning.
…
Where reliance is placed on proposition 1, concerning moral culpability, the question for the Court is whether the evidence establishes – on the balance of probabilities – that the impairment of mental functioning did contribute to the offending in such a way as to render the offender less blameworthy for the offending than he/she would otherwise have been. Very often, this question is approached as one of causation. Did the evidence establish a causal connection between the impairment of mental functioning and the offending for which sentence is to be imposed?[36]

[36][2011] VSCA 150, [17]–[18], [20] (citations omitted) (emphasis in original).

We consider that in relation to the first limb of Verdins, it was not reasonably open, on the evidence, for the judge to conclude that the appellant was not in an impaired mental state and further, there was no realistic connection between the appellant’s impaired mental state and his offending. The judge did, however, say that it was clear that the appellant was ‘in a general state of turmoil’ but that it was ‘not as clear that this was a state that the courts have described as impaired mental functioning’.

The evidence establishes, to the requisite degree, that at the time of the offending the appellant, possessed of a low level of intellectual functioning, was depressed and suicidal, placing himself and others at risk. At the time he suffered from ‘PTSD/Complex PTSD and … a Major Depressive Disorder’.[37] As set out above, in these circumstances, Mr Cummins opined:

In my opinion it is very probable that at the time of offending on 20/11/2018 he had formed the opinion that he wanted to take his own life, although I noted when I interviewed him on 7/2/2019 he referred to his offending of 20/11/2018 as being ‘more like a cry for help’. In my opinion his mental health at that time was seriously impaired, as evidenced by the steps he had taken to purchase petrol and to spread the petrol around the vehicle. Therefore, in my opinion there was a realistic nexus between his mental health symptoms and his offending behaviour of 20/11/2018.[38]

[37]Second Cummins Report, [25]. This state is sufficient to constitute impaired mental functioning; see Pato v The Queen [2011] VSCA 223, [28], Verdins (2007) 16 VR 269, 271 [8], 277–8 [36]–[40].

[38]Emphasis added.

In our opinion, the evidence is sufficiently cogent to establish that at the time of the offending the appellant was in an impaired mental state which adversely affected his capacity to exercise proper judgment and to control his behaviour, and that there was a realistic causal nexus between his mental state and the offending. This is sufficient to attract the principles in Verdins (limbs 1, 3 and 4)[39] with the consequence of reduced moral culpability in relation to the offending and the need to moderate the sentence that otherwise might have been imposed, a critical factor not taken into account by the judge. This failure constitutes a specific error and not only is ground 2 made out but the ground of manifest excess is also made out.
[39]Verdins limbs 5 and 6 are also relevant as referred to by the judge.

Although it is clear that the material filed on the plea raised questions relating to the appellant’s impaired mental functioning and the extent to which his moral culpability for the offending should be reduced, the respondent submitted that this was not argued below, a matter upon which the judge placed much reliance. It is submitted, not without some justification, that this Court should not now entertain the argument.

In the recent case of Newton v The Queen (‘Newton’),[40] Niall JA (with whom Priest JA agreed) said:

In a series of cases, this Court has made it plain that where Verdins is to be relied on, it must be based on evidence that is clearly identified, and the sentencing judge should be addressed on how the material supports the application of the principles.[41] Equally, it is plain, that where Verdins is not raised in a proper or adequate way on the plea, this Court will not lightly entertain an argument that the judge failed to have regard to, or properly applied, the Verdins principles.[42]

[40][2021] VSCA 207, [35].

[41]Brown v The Queen (2020) 62 VR 491, 493 [6]–[7] and 507–8 [61]; [2020] VSCA 212 (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA); Haberman v DPP [2020] VSCA 286, [34]–[35] (Kaye and T Forrest JJA).

[42]Romero v The Queen (2011) 32 VR 486; [2011] VSCA 45 (Buchanan, Redlich and Mandie JJA); Tran v The Queen (2012) 35 VR 484; [2012] VSCA 110 (Maxwell P and Neave JA); O’Connor v The Queen [2014] VSCA 108 (Maxwell P, Weinberg and Priest JJA; Sharbell v The Queen [2018] VSCA 324 (Maxwell P and Niall JA).

In Newton, the argument was entertained by this Court on appeal in circumstances where the relevant material tendered on the plea was misunderstood. The judge was led into error in thinking that for Verdins to apply there must be evidence that says it applies. This is of course a matter for the judge.

In Carr v The Queen,[43] the offender’s counsel, notwithstanding cogent expert evidence, conceded that the first limb of Verdins was not enlivened causing the judge to be satisfied that there was no reduction in the offender’s moral culpability and no reason based on Verdins to reduce the weight to be given to general or specific deterrence. The Court held that the offender’s counsel should not have made such a concession and that the ground of appeal, based on the first limb of Verdins and the expert evidence filed on the plea, was made out. The Court said:

As we have mentioned, the [offender’s] full scale IQ is 61, which, according to Ms Lofthouse, puts him ‘within the extremely low range (below the first percentile)’. Furthermore, Ms Lofthouse in effect expressed the view that the [offender] displayed an all-encompassing and persistent pattern of significant intellectual impairment, which impinged upon his capacity to exercise appropriate judgement and to appropriately control his behaviour. Given that this is so, we consider that the [offender’s] counsel should not have conceded, and the judge should not have concluded, that the [offender’s] moral culpability was not reduced by his intellectual impairment.
Moreover, given Ms Lofthouse’s opinion that the [offender’s] mental impairment adversely affected his capacity to exercise proper judgement and to control his behaviour, we consider that the evidence did go some way towards showing a connection between the [offender’s] mental impairment and the offending. In circumstances in which the [offender] had a reduced capacity to reason as a person without his intellectual impairment might have, and to control his behaviour, the judge was wrong not to moderate to some extent the weight to be given to both general and specific deterrence. Not only was the [offender’s] moral culpability for the offending reduced, but the ‘retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity’ were not in full measure appropriate to his situation and the needs of community protection.
Given these conclusions, we consider that the [offender] has made good his ground of appeal. The sentencing discretion has been reopened and should be exercised afresh by this Court. In so doing, we take into account the various matters urged in mitigation of sentence, and also bear in mind Ms Lofthouse’s opinion that the [offender] may well find it more difficult to complete a period of incarceration in comparison to persons who do not suffer from these conditions. Furthermore, we take into account the very serious nature of the [offender’s] offending, and make it clear that, were it not for the [offender’s] intellectual impairment, a sentence of significantly greater severity would have been called for.[44]

[43][2021] VSCA 130.

[44]Ibid [24]–[26] (Priest and T Forrest JJA).

To the extent that the appellant’s counsel on the plea (who was not the counsel on the appeal) made such a concession[45] we consider that it was against the uncontested expert evidence tendered on the plea and should not have been made.
[45]The suggested concession was both unclear and equivocal. The appellant’s counsel said: ‘I am not in the position to make that ultimate submission, that as far as his moral culpability in relation to this offending, whether that should be moderated by his mental health at the time … it is implied by the offending and implied by the way that he was talking to the police … [r]ather than actually outlined by Mr Cummins and I concede that deficit and if that’s something that Your Honour feels may be need[ed] – if we have time to follow that up … that might be a further submission … But my submission is it’s the way in which the matter comes about is a welfare check and that the police are hearing this, are concerned about his mental health[. I]n my submission it certainly enlivens that submission that his moral culpability was lessened at that point. In the context of somebody who had a history of fragility in relation to his mental health and then it’s so clearly borne out when he’s in custody.’

In the circumstances, the individual sentences on charges 1 and 3, the order for cumulation on charge 3 and the total effective sentence were not reasonably open to the judge. Accordingly, the appeal against sentence will be allowed.

Resentence

We have synthesised for ourselves all of the relevant circumstances referred to above. We have also taken into account the very difficult experience the appellant has had in prison. In all the circumstances, in substitution for the sentence imposed in the County Court, the appellant will be sentenced in accordance with the table set out below. In imposing a reduced sentence, we do not wish to minimise the gravity of the offending. The key reason for the reduction in sentence is to properly account for the impaired mental state and moral culpability of the appellant.

Charge Offence Maximum Sentence Cumulation

1 Recklessly exposing an emergency worker to risk by driving 10 years 2 years Base

2 Damaging an emergency service vehicle 5 years 1 year 7 months

3 Recklessly causing injury 5 years 16 months 9 months

Related summary offence

1 Dangerous driving 2 years 6 months 2 months

Total effective sentence: 3 years, 6 months’ imprisonment

Non-parole period: 24 months

Pursuant to s 6AAA of the Sentencing Act a declaration will be made that, but for the appellant’s plea of guilty we would have sentenced him to a total effective sentence of five years and six months’ imprisonment with a non-parole period of three years and six months.

- - -

Charge on indictment	Offence	Maximum	Sentence	Cumulation
1	Recklessly exposing emergency worker to risk by driving (Crimes Act1958, s 317AE)	10 years	3 years	Base
2	Damaging emergency service vehicle (Crimes Act, s 317AG)	5 years	1 year	7 months
3	Recklessly causing injury (Crimes Act, s 18)	5 years[1]	20 months	12 months
Related summary offence	Dangerous driving (Road Safety Act1986, s 64(1))	2 years	6 months	2 months
Total effective sentence		4 years, 9 months’ imprisonment
Non-parole period		3 years
Pre-sentence detention declared		513 days
6AAA statement: 6 years, 6 months’ imprisonment with a non-parole period of 4 years, 6 months
Other relevant orders: Licence cancellation and disqualification for 3 years

Charge	Offence	Maximum	Sentence	Cumulation
1	Recklessly exposing an emergency worker to risk by driving	10 years	2 years	Base
2	Damaging an emergency service vehicle	5 years	1 year	7 months
3	Recklessly causing injury	5 years	16 months	9 months
Related summary offence
1	Dangerous driving	2 years	6 months	2 months
Total effective sentence:		3 years, 6 months’ imprisonment
Non-parole period:		24 months

[2021] VSCA 235

27 August 2021