Mashayamombe v The King
[2023] VSCA 60
•23 March 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0164 |
| MUNASHE MASHAYAMOMBE | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | TAYLOR JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 23 March 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 60 |
| JUDGMENT APPEALED FROM: | DPP v Mashayamombe [2022] VCC 1828 (Judge Chettle) |
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY SINGLE JUDGE PURSUANT TO s 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Appeal – Sentence – Negligently causing serious injury by driving – Conduct endangering persons – Possession of a drug of dependence – Sentence of four years and 10 months’ imprisonment – Non-parole period of three years – Whether judge overvalued moral culpability – Whether sentence manifestly excessive – Leave to appeal refused.
Clarkson v The Queen (2011) 32 VR 361 and Harrisonv The Queen (2015) 49 VR 619 applied.
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| Counsel for written submissions | |||
| Applicant: | Mr S Collins | ||
| Respondent: | Ms D Piekusis KC | ||
Solicitors | |||
| Applicant: | Victoria Legal Aid | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
TAYLOR JA:
Introduction and summary
On 5 October 2022 the applicant pleaded guilty to the charges set out in the table below. On 13 October 2022 he was sentenced by a County Court judge as set out in that table.[1]
[1]DPP v Mashayamombe [2022] VCC 1828 (‘Sentencing reasons’).
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Negligently causing serious injury | 10 years’ imprisonment | 4 years and 6 months’ imprisonment | Base |
| 2 | Conduct endangering persons | 5 years’ imprisonment | 1 year imprisonment | 4 months |
| 3 | Possession of a drug of dependence (cannabis) | 5 penalty units | Fined $200 without conviction | N/A |
| Total Effective Sentence: | 4 years and 10 months' imprisonment with a $200 fine. | |||
| Non-Parole Period: | 3 years | |||
| Pre-sentence Detention Declared: | 8 days | |||
| Section 6AAA Statement: | Total Effective Sentence 7 years 6 months Non Parole-Period 5 years | |||
| Other Relevant Orders: Licence cancellation and disqualification for 3 years. | ||||
The applicant now seeks leave to appeal on the single ground that the sentence imposed on charge 1 is manifestly excessive.
For the reasons that follow, leave to appeal is refused.
Circumstances of the offending
At about 3:00 am on Sunday 17 January 2021 a three-vehicle collision occurred on the Eastern Freeway between Belford Road and Burke Road in Kew East. That part of the freeway is an eight lane, two-way divided thoroughfare running east to west.
The lanes of travel are separated by a series of broken white lines painted on the road surface. The outer edges of the travelling lanes are bordered by a solid white line leading to sealed shoulders and guard rails. There is a centre grass median strip and a protective wire barrier separating the eastbound and westbound lanes. The speed limit of 100 km/h is signposted.
The collision involved a 2006 Volvo XC90 station wagon driven by the applicant, a 2007 Mercedes Benz C200 sedan driven by Victor Iskander and a 2006 Honda Euro hatch driven by Mary Han.
Shortly prior to the collision the Volvo had been travelling in a westbound direction, and the Mercedes and Honda in an eastbound direction. The collision occurred when the Volvo suddenly deviated onto the eastbound lanes after the applicant lost control of it. He was speeding at the time. He was also significantly intoxicated by alcohol and had recently used cannabis.
The prosecution case with respect to charge 1 was that, as the driver of a vehicle, the applicant owed a duty of care to other road users to maintain proper control of his vehicle. He consciously, voluntarily and deliberately breached that duty by driving under the influence of alcohol and cannabis and at excessive speed. That breach caused serious injuries to Mr Iskander.
The prosecution case with respect to charge 2 was that by driving in the circumstances in which he did, the applicant would have foreseen that his conduct could or would create an appreciable risk that serious injury was a probable consequence for other road users. And, Ms Han did in fact suffer injury.
Events earlier in the day
At about 4:00 pm the previous day the applicant drove the Volvo to a friend’s house in Mount Waverley. A number of people were at the house. The applicant consumed at least four shots of Smirnoff vodka from a 750 ml bottle and smoked cannabis. At about 5:00 pm the applicant left his Volvo at the address and, together with others, departed for the Melbourne CBD in an Uber. On the way they consumed the remainder of the bottle of Smirnoff vodka.
In Melbourne the applicant was denied entry to an entertainment venue due to his level of intoxication. He left the others and returned alone to the Mount Waverley address in another Uber. At about 2:30 am on 17 January 2021 the applicant decided to drive home to Northcote from the Mount Waverley address. The route took him westbound on the Eastern Freeway.
The collision
A witness driving eastbound on the Eastern Freeway witnessed the collision. He observed the Volvo in the air, facing in the wrong direction and coming from the other side of the freeway. He saw the Volvo hit the Mercedes head on in lane two of four, about 200 metres in front of his own car. The impact of the collision caused the Mercedes to come to an almost immediate stop. The driver’s side curtain airbag deployed and there was significant frontal damage. The Volvo came to rest after rotating 180 degrees. Its rear hit the front of the Honda, which was in lane three of four. The front side curtain airbag of the Honda deployed and there was moderate frontal damage. The Volvo came to a complete stop in lane four of four, a few metres from the initial impact location. Its airbags had deployed and there was damage to the entire vehicle.
Shortly thereafter Victoria Police and other emergency services attended the collision scene. The applicant was observed to be seated in the driver’s seat and slumped over the centre console onto the passenger seat. He was conscious but disorientated. He had bloodshot and glazed eyes, was slurring his speech and appeared intoxicated. The applicant seemed unaware of what had occurred. He attempted to shut the driver’s side door and start the vehicle.
Assessment of the applicant
At about 3:40 am the applicant was conveyed to the Alfred Hospital by ambulance. During a medical assessment in which he was assisted to remove his clothes, a small zip lock bag containing green vegetable matter fell to the floor from his pants. A search of his Volvo located cannabis in the side pocket of the passenger’s side door.
A blood sample was taken from the applicant at about 4:30 am. Upon analysis it returned a blood alcohol reading of 0.164g/100ml or 0.164% and was also found to contain delta-9-tetrahydrocannabinol (THC) of 8 ng/ml.
Reconstruction analysis
A reconstruction analysis of the collision was undertaken by members of the Victoria Police Collision Reconstruction and Mechanical Investigation Unit. That analysis determined that the applicant was travelling in the far left-hand westbound lane on the Eastern Freeway and lost control of his vehicle as he approached a right-hand bend. The Volvo had an initial impact with the Armco railing on the shoulder of the freeway before it yawed and rotated in a clockwise direction across all westbound travelling lanes and onto the centre median. Once there, the Volvo rotated close to 45 degrees where the front driver’s side tyre and rear passenger side tyre connected with the ground and launched the vehicle into the air. It travelled airborne for about 20 metres before landing on the median and moving into the east bound lanes of the freeway. After colliding with the Mercedes, the Volvo travelled a further 12.4 metres. The Honda, travelling behind the Mercedes, could not avoid the Volvo. It struck the rear of the Volvo which had spun around to face east as a result of the impact with the Mercedes.
The reconstruction exercise also concluded, based on airborne and linear motion analysis, that the Volvo was travelling at a speed between 118 km/h and 126 km/h at the moment when the applicant lost control of it. It was travelling at about 92 km/h at the moment it landed. Further, an automotive electrician established that there were no faults, failures or conditions that could have caused or contributed to the collision.
A forensic physician from the Victorian Institute of Forensic Medicine provided an opinion which stated that the concentration of cannabis in the applicant’s blood reflected recent use and that his THC level was most likely to have been higher at the time of the collision. The blood alcohol level of 0.164% meant that the applicant would have been unable to maintain proper control of his vehicle. His impairment would have been augmented by the presence of THC.
The victims
Mr Iskander underwent four complex surgeries over a five day period after being conveyed to the Royal Melbourne Hospital. These included heavily comminuted open right mid tibia/fibular fractures and a large soft tissue defect over the anteromedial lower leg. Mr Iskander also suffered displaced fractures of the ribs and soft tissue injuries to his abdomen and fingers. An existing rotator cuff injury was exacerbated. He spent a total of 17 days at the Royal Melbourne Hospital and a further period at a rehabilitation hospital. Mr Iskander has required pain management. He has permanent scarring and his mobility has been restricted. His recovery has been protracted.
A forensic physician stated that while Mr Iskander’s injuries were not immediately life-threatening, it is very likely that medical intervention halted a chain of events that would have caused him to succumb to those injuries.
Ms Han spent two days in hospital following the collision. Her injuries included a fracture to her right hand.
Arrest and interview
The applicant was arrested on 10 November 2021. He participated in a taped record of interview and made admissions to his drug and alcohol consumption prior to driving the Volvo at the relevant time. In particular, the applicant said he had planned to leave his car at his friend’s house and to get an Uber into the city. He had a joint and four shots of vodka before leaving in the Uber. He and his friends ‘smashed’ the rest of the bottle of vodka in the Uber. He did not feel the effects of alcohol whilst in the city and did not consume any more alcohol, but his friends said he was drunk. They put him in an Uber back to the Mount Waverley house and told him to wait for them. He does not remember that trip. He does not recall consuming any further drinks once back in Mount Waverley. He wanted to go home. He did consider whether he should get in the Volvo given his state but did not want to wait outside. He considered whether he might kill himself or someone, or get into a car accident, but thought that it would not happen because there would be few cars on the road at that time. He thought, ‘fuck it, I’m gunna be fine’. The last thing he remembers is blacking out or falling asleep prior to the accident, which may have been as a result of the alcohol or cannabis. He does not remember how fast he was going. He does remember waking up in hospital and not knowing why he was there.
The applicant also said that the Volvo belonged to the mother of his ex-partner. He had not driven it for about four months.
The applicant’s driver licence was cancelled on 21 November 2021.
The applicant’s personal circumstances
The applicant was born in Zimbabwe in 1997. He was 23 years of age at the time of the offending and 25 years at the time of sentencing. His father died before he was born. The applicant was raised by his grandparents in Zimbabwe until the age of 14. He was close to his grandmother but had a difficult relationship with his grandfather.
The applicant was a sickly child and diagnosed with HIV at the age of 13 years. His mother has the same condition and the applicant believes he was born HIV positive. The applicant was reportedly the subject of sexual abuse by a house maid at the age of ten. His grandparents did not believe his account.
The applicant came to Australia in 2012 to live with his mother, step-father and three younger half-siblings. The applicant feels secondary to those siblings in his mother’s affections. He is an Australian citizen.
Having completed school in Zimbabwe to year 8 level, the applicant attended Braybrook Secondary College in Victoria, for which he played representative soccer and tennis. The applicant completed the VCE in 2015. After leaving school he enrolled in a criminal justice course at Swinburne University. He completed almost 12 months of study, but ceased attending university when he moved in with a girlfriend. The applicant returned to study in 2017/18 but ceased for a second time as a result of unstable housing.
The applicant had a job in retail during high school and since then has worked in both hospitality and construction. His work as a carpenter ceased when he lost his driver licence in November 2021. He then commenced a two year course in building and construction at the Builder’s Academy.
The applicant has a history of drug use. When unemployed or feeling depressed, he reported having smoked two to three grams of cannabis a day. Otherwise he used it occasionally on weekends. He has abused Xanax and taken street Oxycontin. Very occasionally he used hallucinogens. He stopped taking prescribed anti-depressant medication prior to the accident. He takes prescribed medication for HIV.
The applicant commenced alcohol use after he broke up with a girlfriend and started work in the construction industry. Since 2019 and until the collision he had been drinking a six pack of beer a day and a slab over the weekend. Since the collision the applicant drinks on special occasions only and not to the point of intoxication.
The applicant has one prior conviction dating from 2019. He received an 18 month community correction order for sexual assault by touching (child under 16).
Carla Lechner, a clinical psychologist who prepared a report on the applicant in September 2022, stated that the applicant has experienced periods of depression at a clinical level and also symptoms of post-traumatic stress disorder (PTSD), the latter of which are now largely resolved. At the time of the offending he appeared to be suffering symptoms of Alcohol Use Disorder and possible Major Depressive Disorder or an Adjustment Disorder with Depression. At the time of Ms Lechner’s interview with the applicant, he reported symptoms of ‘mild’ psychological distress, ‘moderate’ depression and some unresolved symptoms of PTSD, all of which she said could be addressed within a therapeutic setting.
Ms Lechner also said that, under optimal conditions, the applicant was capable of reflective and consequential thinking. Further, she noted that he accepted responsibility for his actions and had expressed regret, shame and empathy for the victims of his offending.
The plea hearing
In written submissions defence counsel conceded that absent exceptional circumstances, a custodial sentence is usually warranted for offending of this type to satisfy the need for both general and specific deterrence, community protection and just punishment.[2] The gravity of dangerous driving causing death or serious injury is heavily influenced by the offender’s moral culpability and the objective dangerousness of their driving.[3] Another important consideration is the extent of the victim’s injuries. Reference was made to the non-exhaustive list of potential aggravating factors that may apply to driving offences.[4]
[2]See, e.g., Leddin v The Queen [2014] VSCA 155, [17], [21] (Weinberg, Whelan and Beach JJA).
[3]See, e.g., Lee v The Queen [2021] VSCA 156, [18] (Maxwell P and McLeish JA).
[4]Counsel cited R v Whyte (2002) 55 NSWLR 252, 286 [216]-[217] (Spigelman CJ; Mason P, Barr J, Bell J and McClellan J agreeing); [2002] NSWCCA 343.
Defence counsel referred to a number of comparative cases before submitting that although a custodial sentence was required, the competing sentencing factors could be satisfied in this case by a combination sentence of a period of imprisonment and a community correction order (CCO).
In oral submissions defence counsel stated that there was ‘not a great deal of difference’ between the parties as to the assessment of the gravity of the offending and the authorities relevant to that issue. Counsel accepted the sentencing judge’s statements that the conduct was ‘a serious example of the offence,’ that Harrison[5] was the ‘main starting point’ and submitted that there was ‘a significant hardening of judicial attitudes to… offending where serious injury is caused to road users by reason of intoxication’.
[5]This is a reference to Harrison v The Queen (2015) 49 VR 619; [2015] VSCA 349 (‘Harrison’).
As to the extent of the injuries caused, defence counsel submitted that although Mr Iskander’s injuries were serious, they were less severe than they might have been.
Counsel tendered the report of Ms Lechner, as well as a reference from Jason Carter, a Community Mental Health Peer Practitioner employed by Mind Australia.[6] Counsel disavowed any reliance upon Verdins.[7] Rather he submitted that that evidence was relevant to issues of remorse and rehabilitation. A reference from the applicant’s friend and a letter from the applicant, in which he expressed remorse, were also tendered.
[6]The applicant was a client of Mind Australia at Sandridge Youth Residential Service.
[7]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
Counsel further highlighted the mitigatory factors relied upon. These were a very early plea made during the COVID-19 pandemic,[8] a frank and honest attitude to dealing with the police, the absence of a relevant criminal history including the total absence of any previous driving offences, the applicant’s relative youth, his level of insight and good prospects for rehabilitation.
[8]Worboyes v The Queen [2021] VSCA 169, [35] (Priest, Kaye and T Forrest JJA).
In written submissions counsel for the prosecution referred to the inherent seriousness of a driving offence that results in serious injury and the need to assess both the degree of negligence displayed by the driver and the seriousness of the injuries caused to the victim.[9] It was argued that the applicant’s offending fell within the ‘middle range of seriousness’ of its category.
[9]Counsel referred to Harrison (2015) 49 VR 619, 629 [44] (Maxwell P, Redlich and Tate JJA) and DPP v Barry [2017] VSCA 344, [62] (Weinberg and Kyrou JJA and Beale AJA) (‘Barry’).
In oral submissions counsel confirmed that the position of the prosecution was that a combination sentence was open to the sentencing judge and that the CCO component should be lengthy and have some ‘treatment portion’. His Honour remarked that he found that position ‘somewhat startling’ in light of Harrison. The judge remarked that the limitation of the head sentence to 12 months seemed ‘hopelessly inadequate’ in the circumstances. The prosecutor then submitted that the comparative cases referred to were ‘pre-Worboyes’ and that the applicant had entered a very early plea.
At the conclusion of the plea hearing, the sentencing judge had the applicant assessed for his suitability for a CCO although his Honour remarked that he was not initially attracted to it as a sentencing disposition.
Sentencing reasons
In his reasons for sentence, the judge briefly summarised the offending behaviour.[10] His Honour noted that at the time of the collision the applicant was speeding,[11] had a blood alcohol level over three times the legal limit and had recently used cannabis. The latter increased the effects of alcohol consumption.[12] His Honour referred to the injuries sustained by Ms Han and Mr Iskander, noting that medical intervention likely saved Mr Iskander’s life.
[10]The agreed facts were incorporated. Sentencing reasons, [3].
[11]Sentencing reasons, [8].
[12]Sentencing reasons, [12].
His Honour referred to the frank admissions made by the applicant when interviewed and to his early plea.[13] The judge found the admitted prior conviction to be ‘of little relevance’.[14]
[13]Sentencing reasons, [19].
[14]Sentencing reasons, [20].
The judge then summarised the applicant’s personal history as set out in the written submissions of defence counsel and also the report of Ms Lechner.[15] His Honour referred to Ms Lechner’s opinion that the applicant suffers unresolved PTSD symptoms from childhood trauma and abuse, clinical depression and mild psychological distress.[16] After referring to the remorse the applicant expressed to Ms Lechner and also the letter written by the applicant himself, the judge accepted the applicant was genuinely remorseful.[17] His Honour also stated that he took the references into account.[18]
[15]Sentencing reasons, [21]-[26].
[16]Sentencing reasons, [27]-[28].
[17]Sentencing reasons, [28]-[30].
[18]Sentencing reasons, [31].
Other matters expressly considered were the greater utilitarian value of the early plea of guilty because of the COVID-19 pandemic, the applicant’s relative youth, that COVID-19 would make the applicant’s experience of custody more onerous and that his prospects of rehabilitation were ‘relatively good’ (provided the applicant moderated his alcohol consumption).[19]
[19]Sentencing reasons, [32].
Turning to the appropriate range of sentence, his Honour said the following:
[33]Your counsel referred me to many authorities in support of his submission that a combination sentence, that is a community corrections order and a gaol term, was appropriate in your case. Unfortunately, some of the authorities related to charges of dangerous driving, not negligently causing serious injury, which is a more serious criminal offence.
[34]The prosecution submitted that a combination sentence was in range in this case. I find that a somewhat startling concession. The Court of Appeal has made it abundantly clear that sentences imposed for serious examples of the offence of negligently cause serious injury have historically been inadequate. In the decision of Harrison v The Queen [2015] VSCA 349, the Court of Appeal held that higher sentences should be applied in the future. The Court stated:
‘… that sentences of six or seven years would be well in range for serious examples of the offence of negligently cause serious injury’.
[35]In the subsequent case of DPP v Barry [2017] VSCA 344, the Court of Appeal upheld an appeal by the Director of Public Prosecutions in relation to a combination sentence imposed at first instance. Such a disposition was found to be manifestly inadequate and a sentence of five years with a non-parole period of three was imposed.
[36]In Gurovski v The Queen [2018] VSCA 3, in 2018, the Court of Appeal analysed the authorities and concluded that a sentence of six years imprisonment, or more, is open for offences of negligently cause serious injury by driving that fall within the upper range of seriousness, and that a sentence of five years imprisonment is open for offending in the middle to upper range.
[37]In the recent case of Cook[20] the Court of Appeal again reviewed a sentence of five years and three months with a non-parole period of three years and eight months for negligently causing serious injury by driving. The appellant in that case demonstrated many mitigating factors on his plea. Nonetheless the Court found that the objective gravity of the appellant’s offending was very high. The Court said at paragraph 40:
‘The objective gravity of this offending is, in our view, very high. The appellant drank for hours. He made the conscious decision to drive, and then to drive with an appalling disregard for the safety of other road users. He drove while affected by alcohol (with a blood alcohol content of 0.107) and at a ferocious speed (in the range of 170 kilometres per hour) in Springvale Road – a busy, multi-lane road. The consequence of this gross negligence has been life-changing for [the victim], who was profoundly injured and lucky to survive.’
[38] The Court continued in paragraph 41:
‘Ultimately, however, in this and in similar cases of high objective gravity, less weight will be accorded to personal mitigating factors than would otherwise be the case. This Court has observed that this offence and the similar offence of culpable driving causing death (which differs only in consequence) are frequently committed by young offenders and/or offenders of previous good character, many of whom have excellent prospects of full rehabilitation. The prevalence and seriousness of this type of offending requires general deterrence and denunciation to assume more significance in the sentencing exercise, and, accordingly, less significance must be placed upon mitigating factors such as youth, previous good character, and rehabilitation prospects.’
[39]Both your counsel and the prosecutor accepted that your offending was serious. The prosecutor generally characterised your offending as …
[20]Cookv The Queen [2021] VSCA 292 (‘Cook’).
At this point, there was a recording malfunction lasting 23 seconds. The sentencing reasons continued as follows:
[41] … the whole content more than three times the legal limit.
(ii)you drove after consuming cannabis that exacerbated your lack of control.
(iii)you drove at a speed substantially above the speed limit applicable.
(iv)you lost control and veered across multiple lanes before crossing onto the wrong side of the divided freeway.
(v)your decision to drive was made conscious of the risks of doing so and with an expressed indifference to the possible consequences.
(vi)no other person or factor contributed to the collision.
(vii)multiple people were put at risk by your driving. I find that that demonstrates your negligence to be at an upper level of culpability.
[42]The injuries sustained by Mr [I]skander were clearly serious injuries. The injuries to his right leg in particular are gross. However, unfortunately this Court is often confronted with more serious injuries with larger and permanent consequences: total incapacity; quadriplegia and severe incapacity and brain injuries are somewhat the tragic consequences of stupidity and gross negligence on the roads.
[43]On the limited material available to me as to Mr [I]skander’s progress, I would regard his injuries as falling at the lower end of serious injury.
[44]It follows that the synthesis of the two relevant assessments is complex. This may explain the prosecution categorisation of your offending as mid-range level of seriousness.
[45]Ultimately, I am of the view that your offending should be seen as an upper mid-level example of the offence of negligently causing serious injury. This is so because of the consequences of your gross negligence were not as great as they could have been.
His Honour then considered the commonality of the manner in which the applicant drove to charges 1 and 2 despite their different elements and the need to avoid double punishment as well as the principle of totality.[21]
[21]Sentencing reasons, [47]-[50].
The judge then concluded as follows:
[51] … I do not accept your counsel’s submissions nor the concession of the Crown, that a combination of a term of imprisonment and a community corrections order is within range or appropriate for your offending. General deterrence, denunciation of your conduct require a substantial custodial term be imposed. The Court of Appeal has repeatedly said so.
[52]I have given as much weight as possible to the matters in mitigation demonstrated in your case, but ultimately the objective seriousness of your offending requires such a sentence.
Applicant’s submissions
The applicant does not argue that his moral culpability was anything other than ‘high’ but submits that his Honour placed too much weight on it when forming a conclusion about the objective gravity of his offending. It is argued that the judge did not properly take the relative seriousness of the victims’ injuries into account. Further, his Honour undervalued the subjective factors in favour of the applicant, namely his early guilty plea, remorse, lack of relevant criminal history, use of alcohol at the time, insight and prospects for rehabilitation.
It is argued that if proper weight had been accorded to all relevant factors, a combined sentence ‘would have been the most appropriate sentence’.
The applicant refers to the authorities of this Court considered by his Honour.[22] The applicant also refers to Byast v The Queen.[23] He then submits that ‘[i]ndependent of [these] appellate decisions’, sentences imposed at first instance in the County Court in the matters of DPP v Haynes,[24] DPP v Linton,[25] DPP v Thuc[26] and DPP v Acuna[27] demonstrate that the sentence imposed in the instant matter is outside the range.
[22]Namely, Barry, Harrison and Cook as noted in the paragraphs extracted above.
[23][2021] VSCA 344.
[24][2022] VCC 59.
[25][2021] VCC 693.
[26][2020] VCC 1718.
[27][2020] VCC 1414.
Respondent’s submissions
The respondent submits that sentences imposed in other cases are not precedents[28] and that comparable cases provide limited assistance to a sentencing court.[29] A history of sentences imposed in other cases for the same offence does not establish the range as correct.[30] Further, current sentencing practices are not determinative and do not cap and collar the appropriate sentencing range.[31]
[28]Referring to DPP v Zhuang (2015) 250 A Crim R 282, 292 [30] (Redlich, Priest and Beach JJA); [2015] VSCA 96.
[29]Referring to Hudson v The Queen (2010) 30 VR 610, 616-617 [27]-[29]; [2010] VSCA 332 (Ashley, Redlich and Harper JJA) .
[30]Referring to Hili v The Queen (2010) 242 CLR 520, 536-537 [53]-[54] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ); [2010] HCA 45.
[31]Referring to DPP v Dalgleish (a pseudonym) (2017) 262 CLR 428, 434 [9] (Kiefel CJ, Bell and Keane JJ), 453-454 [82]-[83] (Gageler and Gordon JJ); [2017] HCA 41.
The respondent submits that in any event the four County Court sentences referred to by the applicant can each be distinguished on the facts and do not demonstrate that the sentence imposed in this case is outside the range.
The respondent lists the factors relevant to the assessment of objective gravity of the offending relating to both the degree of negligence and the seriousness of the injury caused and argues that these matters, in addition to the high moral culpability of the applicant, informed his Honour’s assessment of the objective gravity of the offending.
His Honour also expressly took into account the factors which the applicant could call in aid of mitigation of the sentence.
It follows that the sentence imposed was within sound discretionary judgment.
Analysis
The ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[32] In other words, 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 of the relevant circumstances of the offending and the offender. This is a stringent test, difficult to satisfy.[33] The sentence must be demonstrated to be unreasonable or plainly unjust.[34]
[32]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[33]Ibid.
[34]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.
The test has not been satisfied in this case.
Following Harrison, the objective gravity of the applicant’s offending must be assessed by reference to the twin factors of the degree of negligence he displayed and the seriousness of the injuries caused to the victims.
As accepted by defence counsel at the plea, the degree of negligence displayed by the applicant was high. His driving was a grave departure from the required standard of care because he was driving under the influence of both cannabis and alcohol – the quantity of the latter being three times the prescribed limit. He was not able to maintain proper control of his vehicle due to the combined effects of those substances. The applicant was travelling between 118 km/h and 126 km/h on a multi-lane freeway, where the sign posted speed limit was 100 km/h. The applicant veered across four lanes of traffic, became airborne for 20 metres, cleared a wire barrier and landed on the opposite side of the freeway. His vehicle travelled at 92 km/h upon landing and collided head on with the Mercedes driven by Mr Iskander. It then rotated 180 degrees and its rear collided with the front of the Honda driven by Ms Han.
This conduct was not the product of a momentary lapse of judgment or concentration. The applicant commenced drinking at 4:00 pm. He was refused entry to an entertainment venue in the Melbourne CBD due to his level of intoxication. He made a deliberate decision to drive his Volvo at 2:30 am, and did so after considering whether he might kill himself or someone else. He reasoned ‘fuck it, I’m gunna be fine.’
The injuries suffered by Mr Iskander were significant, have resulted in permanent scarring and necessitated subsequent surgeries. It is very likely that medical intervention halted a chain of events that would have caused Mr Iskander to succumb to his injuries.
Ms Han suffered injuries and the applicant recklessly engaged in conduct that placed her in danger of serious injury.
It is plain that the sentencing judge was aware of the need to synthesise the degree of negligence and the seriousness of the injuries to assess the objective gravity of the offending. His Honour accepted that Mr Iskander’s injuries, although significant, fell at the lower end of the spectrum of serious injury. That the judge nonetheless categorised the objective gravity as ‘upper mid-level’ does not indicate that his Honour placed insufficient weight on the finding as to the relative seriousness of the injuries. As already noted, both the degree of negligence displayed and the applicant’s moral culpability were high.
The sentence imposed does not give lie to his Honour’s observation that he had given ‘as much weight as possible’ to the matters in mitigation. Having regard to the gravity of the applicant’s offending and the need to give weight to general and specific deterrence as well as denunciation and just punishment, less significance must be placed upon mitigating factors such as relative youth, lack of relevant prior convictions and rehabilitation prospects.[35]
[35]Harrison (2015) 49 VR 619, 645 [116] (Maxwell P, Redlich and Tate JJA).
While the Court in Harrison observed that a CCO may be appropriate in instances where the offending is ‘in lower categories of seriousness’,[36] the instant matter is not such a case. Further, there is nothing in the four County Court sentences relied upon by the applicant that ‘assist in demonstrating’ that the sentence imposed is outside the range.
[36]Ibid, 648–9 [130].
It is unnecessary to examine the facts of those cases to illustrate the way in which they are distinguishable from the instant matter. Nonetheless it is to be noted that in Acuna, Linton and Thuc, the sentencing judges found that a combination sentence would not meet the relevant sentencing considerations and a head sentence with a non-parole period was required. In Haynes, a case in which the offending was at the lower end of seriousness as it involved a heavy fog and an absence of speed, alcohol and drugs, the judge described the combination sentence as ‘somewhat lenient’.[37]
[37][2022] VCC 59, [19].
In short, the sentencing judge’s reasons clearly articulated the relevant sentencing factors, including current sentencing practice, as well as what weight those factors were to be accorded. In all the circumstances the sentence imposed was wholly within range.
Conclusion
It follows that leave to appeal must be refused.
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