Nguyen v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0115

ANH THAI NGUYEN	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:	8 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 309
JUDGMENT APPEALED FROM:	DPP v Nguyen [2022] VCC 1171 (Judge Cannon)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Leave to appeal – Sentence – Recklessly exposing emergency worker to risk by driving – Reckless conduct endangering life (six charges) – Criminal history relating to driving offences – No remorse – Poor prospects of rehabilitation – Total effective sentence of 7 years’ imprisonment with non-parole period of 5 years – Whether sentence manifestly excessive – Whether orders for cumulation manifestly excessive – Leave to appeal granted.

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Counsel for written submissions
Applicant:		Mr JR Murphy
Respondent:		Ms S Clancy
Solicitors
Applicant:	Papa Hughes Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

Introduction and overview

On 11 November 2022 a County Court jury convicted the applicant of one charge of recklessly exposing an emergency worker to risk by driving and six charges of reckless conduct endangering life.
Following a plea hearing on 26 April 2023 he was sentenced on 8 June 2023 as follows

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Recklessly expose emergency worker to risk by driving[1]	10 years	4 years	Base
2	Reckless conduct endangering life[2]	10 years	3 years and 8 months	8 months
3	Reckless conduct endangering life	10 years	3 years and 8 months	8 months
4	Reckless conduct endangering life	10 years	3 years and 8 months	8 months
5	Reckless conduct endangering life	10 years	3 years and 6 months	4 months
6	Reckless conduct endangering life	10 years	3 years and 6 months	4 months
7	Reckless conduct endangering life	10 years	3 years and 6 months	4 months
Total Effective Sentence:		7 years’ imprisonment
Non-Parole Period:		5 years
Pre-sentence Detention Declared:		418 days
Other Relevant Orders: Driver licence cancelled and disqualified from obtaining a further licence for a period of two years pursuant to s 89 of the Sentencing Act 1991, charge 1 being a ‘serious motor vehicle offence’ under that Act.

[1]Contrary to s 317AE of the Crimes Act 1958 (‘Crimes Act’).

[2]Contrary to s 22 of the Crimes Act.

The applicant seeks leave to appeal against sentence on the following ground:
The sentences imposed were, in the circumstances, manifestly excessive.
Particulars
(i)The sentences on each of the charges, and the non-parole period, were manifestly too long.
(ii)The orders for cumulation resulted in a total effective sentence that was manifestly too long.
(iii)In those circumstances, it should be inferred that the learned sentencing judge: gave too much weight to some matters, such as the seriousness of the offence and the Applicant’s moral culpability; gave insufficient weight to matters in mitigation, the principle of totality, and current sentencing practices; and/or otherwise erred in the application of principle.
For the reasons that follow, leave to appeal against sentence should be granted.

Summary of offending

On 5 March 2019 the applicant did not hold a driver licence. Whilst driving he was intercepted by police performing mobile bicycle traffic patrol duties. After evading the police members he was subsequently found travelling, at an estimated 40–60 km/h, eastbound on the footpath of Olympic Boulevard towards the corner of Punt Road in the area of the Swan Street Bridge/Richmond station. Olympic Boulevard, including its footpath, was then under construction. About 30–40 people were scattered at the worksite.
The applicant was pursued by Leading Senior Constable Lawther. Confronted by barricades at the intersection, the applicant conducted a three-point turn and accelerated towards LSC Lawther. She was required to dismount and jump out of the way. LSC Lawther then pushed her bicycle towards the applicant’s car to protect herself (charge 1). The applicant accelerated past her and, in an erratic manner, drove along Olympic Boulevard in a westerly direction.
Three school students were walking along the northern footpath of Olympic Boulevard towards Punt Road. Hearing a commotion and injunctions to ‘get out of the way’, each ran from the applicant’s path of travel, being the footpath on the wrong side of the road and at about 40 km/h (charges 2–4).
The applicant then executed a U-turn and drove back down the same footpath.
Two men were working as cable jointers in and near a service pit within the median strip between two pavements on the northern side of Olympic Boulevard. A third was working as a traffic controller to keep the cable jointers safe. The service pit had no tape or barrier around it. The applicant sped past the jointer in the pit (charge 5). The other was forced to jump into the back tray of his truck to avoid being hit (charge 6). The traffic controller also had to evade the applicant’s vehicle (charge 7).

Sentencing Reasons

The judge commenced her reasons[3] noting the 10-year maximum penalty for each of the offences of which the applicant had been found guilty[4] and that charge 1 was a deemed serious motor vehicle offence.[5] There followed a factual summary.[6]
[3]DPP v Nguyen [2023] VCC 1171 (‘Reasons’).
[4]Reasons, [2].
[5]Reasons, [3].
[6]Reasons, [4]–[17].
Describing the applicant’s offending as ‘most serious’ and deserving of just punishment and firm denunciation,[7] the judge described his conduct in the following terms:
You drove in a most outrageous manner on the day in question, terrorising the victims, who were entitled to go about their daily business without you behaving in a most dangerous and threatening manner. They were especially vulnerable to harm caused by you, as you were in a car and they were not, being pedestrians, workers in the area, or the police officer who was on a bike. They were also on a footpath area where they were entitled to feel safe from vehicles. Whilst there are no victim impact statements, it is apparent from the evidence at trial that the school girls, in particular, were especially distressed by your offending, and it was also apparent that the other victims were negatively affected by your actions.[8]
[7]Reasons, [18].
[8]Reasons, [19].
The judge found the applicant’s moral culpability to be high, noting that a Forensicare report prepared in March 2023 indicated no impairment of his mental function, either at the time of the offending or sentencing.[9]
[9]Reasons, [21], [50].
Both the applicant’s criminal history and history of driving offences under the Road Safety Act 1986 were found by the judge to be ‘concerning’.[10] They were set out in detail.[11] That history gave the judge ‘serious cause for concern’ in assessing the applicant’s prospects of rehabilitation given that the instant offending presented a serious escalation in his criminal behaviour.[12]
[10]Reasons, [22].
[11]Reasons, [23]–[40].
[12]Reasons, [41].
The judge noted that the applicant had been remanded for a substantial period[13] before detailing his personal circumstances.[14] In short, the applicant was an Australian citizen, born in Vietnam in 1975 and arriving in Australia in 1989. He was 43 years of age at the time of the offending and 48 years at the time of sentencing. He left school in year 11, subsequently completing a carpentry course. The applicant had worked as a carpenter and also as a baker, at one time owning a bakery. At the time of the offending he was working as a handyman and/or shopfitter and derived income from Centrelink benefits when not employed. The applicant was single, but maintained a relationship with his ex-partner and was active in the lives of their children.
[13]Reasons, [42]. The date of the applicant’s remand was 15 November 2022. He had also been in custody from 20 March 2019 until 17 October 2019, when he was granted bail. The total pre-sentence detention declared was 418 days.
[14]Reasons, [43]–[46], [51]–[52].
Reference was made to the Forensicare report mentioned above. That report was prepared by Dr David Trainor, a consultant psychiatrist, following concerns articulated prior to the plea about the applicant’s mental health. The report indicated insufficient evidence to conclude that the applicant had a chronic and enduring mental illness (such as schizophrenia) or a mood disorder, or that he was mentally unwell in custody following the offending. The applicant had most likely experienced stress-related symptoms secondary to incarceration, which had improved with anti-psychotic medication. Dr Trainor found it difficult to comment on whether the applicant was mentally unwell at the time of the offending as he provided no details of it. The judge noted that the applicant’s failure to describe the offending to Dr Trainor was consistent with his defence at trial, namely that he was not the driver of the car. Dr Trainor found it more likely than not that mental illness did not influence the offending in any way.[15]
[15]Reasons, [47].
Dr Trainor’s report noted that the applicant had engaged in chronic substance use at the time of the offending, which may have impaired judgment and increased disinhibition and thereby increased his likelihood of offending.[16] His substance use (predominantly heroin, but also methylamphetamine) was longstanding and he had little insight into it. He met the diagnostic criteria for both opioid-use disorder and stimulant‑use disorder, each in early remission in a controlled environment.[17]
[16]Reasons, [48].
[17]Reasons, [48]–[49].
The judge referred to submissions made on the applicant’s behalf at the plea that he had been ‘travelling fairly well’ in custody, and whilst unable to work due to being housed in a ‘management’ unit, had completed a number of courses.[18]
[18]Reasons, [53]. The judge noted that no documentation relevant to the courses had been tendered.
The judge considered that the applicant’s time in custody would be made more difficult due to his family having ceased visits and his concerns for his children’s welfare.[19] Although the judge found no evidence of mental impairment, she referred to the applicant’s issues with nightmares and some possible signs of psychosis whilst in custody, before noting these were controlled by medication.[20] She also referred to the anxiety caused to the applicant by the ‘substantial delay’ and the effect of the pandemic on custodial conditions.[21] The judge also accepted that the offending was ‘reactive’ rather than planned or organised and recorded that the school students had been spared the time and trauma of cross-examination.[22]
[19]Reasons, [54].
[20]Reasons, [55].
[21]Reasons, [56].
[22]Reasons, [58].
As far as was possible, the judge had reference to current sentencing practices.[23]
[23]Reasons, [59].
The judge found the applicant’s prospects of rehabilitation to be ‘fairly poor’. In addition to his criminal history, drug-use, apparent unemployment and limited community support, the judge noted an absence of remorse and insight consequent upon the applicant’s continued denial of the offending. Accordingly the judge placed ‘strong weight’ on specific deterrence and community protection.[24] Weight was also given to general deterrence.[25]
[24]Reasons, [60].
[25]Reasons, [62].
In arriving at the sentence, the judge stated that the separate impact of the offending on each victim warranted a level of cumulation, but also noted the principle of totality.

Applicant’s contentions

The applicant contends that as general statements, the judge’s findings that the offending was ‘most serious’ and his moral culpability ‘high’ are unobjectionable. When considered in the context of the sentences actually imposed, however, it is argued that the judge must have used these descriptors relative to other examples of the charged offences. That bespeaks error because aside from the seriousness inherent in the elements of the offences, there was nothing particularly serious about the offending. The applicant characterises it as spontaneous, of short duration and poorly executed.
To this end, the applicant argues that the sentence imposed on charge 1 was a ‘statistical outlier’. With reference to observations made in McKay v The King (No. 2)[26] and statistical data published by the Sentencing Advisory Council, the applicant submits that the sentence imposed on him for the offence of recklessly exposing an emergency worker to risk was double the most common sentence imposed for that offence. Further, it was equal to the longest sentence recorded in higher courts for the offence. Similarly, the sentences imposed on charges 2–7 were ‘well into the upper end’ of the statistical range for the offences of reckless conduct endangering life.
[26][2023] VSCA 8, [46] (Kyrou and Kennedy JJA) (‘McKay’).
The applicant also relies upon comparative cases. The offence of recklessly exposing an emergency worker to risk was considered by this Court in Hutchison v The Queen[27] and Kehayias v The Queen.[28] Hutchison involved a protracted police pursuit of an offender who drove at speeds up to 150 km/h, ending in a collision with a stationary police officer. The offender, at first instance sentenced to 3 years’ imprisonment on that charge, was resentenced to 2 years’ imprisonment following a successful appeal against sentence. In Kehayias, an offender who drove at speeds of 150 km/h, and more erratically than the applicant, received the same sentence as the applicant, being 4 years’ imprisonment. The applicant notes that the prosecutor at his plea disavowed strict comparative reliance on Kehayias.
[27][2021] VSCA 235 (‘Hutchison’).
[28][2021] VSCA 261 (‘Kehayias’).
The applicant further refers to the sentences imposed in McKay, Jaeger v The Queen[29] and Nelson v The Queen[30] in respect of the aggravated[31] offence of recklessly exposing an emergency worker to risk, as well as several County Court sentences, in support of the argument that the sentence on charge 1 is manifestly excessive. The applicant argues that the sentences imposed on charges 2–7 must also be seen to be manifestly excessive, approaching 4 years’ imprisonment for conduct no more serious than that on charge 1.
[29][2020] VSCA 116 (‘Jaeger’).
[30][2020] VSCA 219 (‘Nelson’).
[31]Section 317AF of the Crimes Act.
With respect to totality, the applicant emphasises that all of the offences occurred in a single transaction and was a ‘reactive’ attempt to avoid police detection of his suspended driver licence. The applicant argues that despite the discrete acts that attracted multiple charges, the orders for cumulation do not sufficiently acknowledge the overlapping nature of the criminality. Further, the sentence is argued to be crushing.
The applicant submits that while a non-parole period of 71 percent of the head sentence does not necessarily invite appellate scrutiny, in this particular case it is manifestly excessive when considered in light of his personal circumstances.

Respondent’s contentions

The respondent emphasises the seriousness of the applicant’s offending. The returned verdict meant the jury was satisfied beyond reasonable doubt that the applicant foresaw each of the victims being placed at real risk of death as a probable consequence of his driving. He demonstrated a complete disregard for the lives of each victim, concerned only with avoiding apprehension by police. Further, he drove his vehicle, with accelerating speed, at a police officer performing traffic duties on a bicycle.
It is advanced that the fact that the applicant’s speed might be characterised as moderate or even slow by reference to speeds driven on a bitumen surface is of little relevance in the circumstances. He drove, erratically, at speeds of between 40–60 km/h on a footpath near a busy intersection in the middle of the day. Construction works were underway and 30–40 people were in the vicinity. The applicant was driving fast enough to not have been able to avoid a collision with a pedestrian.
The respondent submits that the judge was correct to find both that the applicant’s offending constituted serious examples of serious offences and that his moral culpability was high. And, there was little to mitigate sentence. The applicant had a significant criminal record with many prior convictions for driving offences. His prospects of rehabilitation were fairly poor. He had no remorse. The judge properly took into account delay, the impact of COVID-19 on custodial conditions, the cessation of visits from the applicant’s partner and children and the conduct of the trial in sparing the school students cross-examination.
The respondent argues that each of the individual sentences are moderate, being between 35–40 percent of the maximum penalties. Statistical analysis is of limited utility given that the offence of recklessly exposing an emergency worker to risk is relatively new. The limited number of comparative cases makes it difficult to identify a ‘statistical outlier’. Further, comparison with either Hutchison or Kehayias supports the argument that the sentence on charge 1 is not wholly outside the range of appropriate sentences when the whole of the circumstances in each case is considered. Further, the sentences imposed on charges 2–7 do not fall ‘well into the upper end of the statistical range’. The Sentencing Advisory Council data reveals that 23 percent of custodial sentences for the offence of reckless conduct endangering life (between July 2016 and June 2021) were between 4–6 years and 33 percent were between 3–4 years.
With respect to totality, the respondent submits that an order of cumulation was required to represent the distinct criminality of each of the charged offences. In any event, it is clear that the judge moderated that cumulation to ensure that the total effective sentence did not breach the principle of totality.
Finally, with respect to the non-parole period, the respondent submits that 71 percent of the head sentence is unremarkable given the gravity of the offending and the judge’s assessment of the fairly poor prospects of the applicant’s rehabilitation.

Analysis

The question for the purposes of the present application is whether it is reasonably arguable that the sentence is manifestly excessive by reference to the individual sentences imposed on each charge, and/or the orders for cumulation and/or some misapplication of principle by the sentencing judge. Leave to appeal may be refused if there is no reasonable prospect that this Court would reduce the total sentence despite there being an error in the sentence first imposed.
Manifest excess is a difficult ground to establish. It would require the applicant to demonstrate that the sentences imposed were wholly outside the range of sentencing options available to the judge in her sound exercise of the sentencing discretion.[32]
[32]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
Turning first to the individual sentences imposed on each of the charges, the applicant’s offending comprised objectively serious examples of serious offences. The judge was correct to term the driving ‘outrageous’. In order to avoid being detected driving with a suspended driver licence, the applicant drove on a footpath then in use by multiple pedestrians and on-site workers. Driving on a footpath at any speed is extremely dangerous, let alone one as densely populated as Olympic Boulevard at the relevant time and at speeds of 40–60 km/h. Further, the applicant accelerated the car towards LSC Lawther, who was required to dismount and jump out of the way. He passed within metres of the school students and a metre of the cable jointers.

Further, the applicant’s moral culpability was high. He suffered no mental impairment. He was a mature man and an experienced driver who readily appreciated the risk to which his victims were exposed and the consequences if that risk eventuated.[33] His motivation was selfish and deserving of denunciation and stern punishment.[34]
[33]See DPP v Majok [2017] VSCA 135, [53]–[56] (Priest, Kyrou and Kaye JJA).
[34]Butler v The Queen [2019] VSCA 132, [42] (Priest and T Forrest JJA). See also Russell v The Queen [2021] VSCA 221, [25] (Priest JA, Niall JA agreeing at [30]) (‘Russell’) and Kettyle v The Queen [2019] VSCA 220, [73] (Whelan and Kyrou JJA, with whom Croucher AJA agreed on this issue).
Acknowledging that current sentencing practices are only one of a number of relevant considerations which must be taken into account in the exercise of the sentencing discretion in any particular case[35] and that caution needs to be exercised in identifying the appropriate sentencing range by reference to previous sentencing decisions,[36] the cases cited by the applicant do not support his argument. Both the circumstances of the offending and the offenders are distinguishable. And, not one of the cases involved an offender who ran a trial.
[35]DPP v Dalgliesh (2017) 262 CLR 428, 434 [9] (Kiefel CJ, Bell and Keane JJ), 453–4 [82] (Gageler and Gordon JJ); [2017] HCA 41 (‘Dalgleish’).
[36]Dalgliesh (2017) 262 CLR 428, 454 [83] (Gageler and Gordon JJ); White v The Queen [2021] VSCA 247, [70] (Beach and Kaye JJA); Staples v The Queen [2021] VSCA 307, [88] (Maxwell P, Kaye and Emerton JJA).
In McKay police attempted to ‘box in’ the offender with their vehicles to effect an arrest. The offender, driving a stolen Range Rover,[37] drove away and collided with two police vehicles. By that action he endangered four police officers. The Court noted that the offence of recklessly exposing an emergency worker to risk by driving had not been considered in sufficient numbers to build up a sentencing profile[38] but accepted that it appeared that the most commonly imposed sentence for that offence was within the range of 1 to 2 years.[39] More important to the success of the appeal, which had the effect of reducing the sentence on that charge from 3 years’ imprisonment to 2 years’ imprisonment, were the ‘significant factors in mitigation’.[40] The offender was a 31 year old indigenous man whose childhood had been marked by neglect and both physical and sexual violence. He had left home aged 13 years. He suffered from post‑traumatic stress disorder (‘PTSD’), obsessive-compulsive disorder and auditory hallucinations. Principle 5 of R v Verdins[41] was engaged. His moral culpability was moderated upon application of the principles in Bugmy v The Queen[42]. The offender had entered an early plea of guilty during the COVID-19 pandemic.[43]
[37]The circumstance of aggravation in s 317AF(1)(a) of the Crimes Act.
[38]McKay [2023] VSCA 8, [32] (Kyrou and Kennedy JJA).
[39]McKay [2023] VSCA 8, [46] (Kyrou and Kennedy JJA).
[40]McKay [2023] VSCA 8, [45] (Kyrou and Kennedy JJA).
[41](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’).
[42](2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
[43]Worboyes v The Queen [2021] VSCA 169, [39] (Priest, Kaye and T Forrest JJA).
In Hutchison, the offender — 21 years old at the time of the offending and with a significant mental health history, very low IQ and a diagnosis of being on the autism spectrum and suffering complex PTSD — was suicidal. Police were alerted as to his condition and pursued him as he drove erratically, including driving on the wrong side of the road directly into oncoming traffic. Police set up ‘stop sticks’ at an intersection in order to deflate the offender’s car tyres. Another police officer, Sergeant French, a little distance away, set up further stop sticks. His vehicle was parked on the verge at an angle. The offender’s tyres were duly deflated by the first set of stop sticks but his vehicle continued travelling in a straight line. Sgt French, standing next to his vehicle, observed the offender’s vehicle approach and then change direction to travel directly towards him. He discarded the stop sticks and ran behind the vehicle to protect himself. The offender’s car hit the police vehicle and Sgt French was struck by his own car and thrown through the air. It was accepted that the offender’s capacity to control his vehicle was compromised by the deflation of the tyres such that his driving in the direction of Sgt French was reckless rather than intentional. The Court found the sentencing judge’s assessment of the gravity of offending as serious to be ‘undoubtedly correct’.[44] The successful appeal, which had the effect of reducing the sentence on the charge of recklessly exposing an emergency worker to risk from 3 years’ imprisonment to 2 years’ imprisonment, turned on the offender’s youth and lack of prior convictions, his early plea of guilty and remorse, his hardship in custody, his prospects of rehabilitation and his reduced moral culpability arising from his impaired mental state.
[44]Hutchison [2021] VSCA 235, [103] (Kyrou, Emerton and Sifris JJA).
In Kehayias the charge of recklessly exposing an emergency worker to risk involved the offender climbing over the roof of a vehicle towards the driver’s side as police attempted to pull him away. He managed to get into the driver’s seat and revved the engine before reversing at speed with the door still open and with two police officers in the gap between the car and the door. Both were struck by the door. One fell to the ground and tried to hang onto the door but fell underneath it and was dragged down the road for several metres on his back. The occasion on which the offender drove at speeds of up to 150 km/h referred to by the applicant in his submissions was an earlier incident and subject of a different charge. The Court termed the conduct ‘appalling’[45] in holding that the individual sentence of 4 years’ imprisonment was not manifestly excessive in light of the offender’s relatively poor criminal record and despite mitigating factors. Notably, the offender’s circumstances included a very difficult upbringing marred by abuse and violence, PTSD, homelessness and suicidal ideation. The Bugmy principles applied to reduce his moral culpability.
[45]Kehayias [2021] VSCA 261, [68] (Niall and Sifris JJA).
In Nelson the offender entered his vehicle after four members of Victoria Police’s Special Operations Group (‘SOG’) identified themselves and told him not to move. He drove off as they were attempting to open the car doors. The SOG members were forced to jump back from the vehicle. An unmarked police car in the vicinity then activated its lights and sirens. The offender veered onto the wrong side of the road and collided with it[46] and another car parked on the road. He then drove off at speed. Police did not pursue him due to the erratic nature of his driving. The offender, 36 years old at the relevant time, had a significant criminal history. He entered an early plea of guilty and exhibited some remorse and insight. The Court said
The offence of recklessly placing emergency workers at risk of their safety and its aggravated form have only recently been incorporated into the Crimes Act 1958 and have not yet been considered in sufficient numbers to build up a sentencing profile. We understand that this is the first occasion that this Court has had to consider this offence in a sentencing context. The aggravated offence carries with it a maximum sentence of 10 years’ imprisonment. Whilst judges must exercise caution when characterising offending as falling within a ‘range’ of seriousness, in our view there is no error in the judge’s characterisation of this offence as ‘mid-range’. We consider his sentence of three years well within the range available to his Honour, and in all the circumstances moderate. While the appellant’s appalling prior driving history cannot make the offence more serious than it is, the sentencing purposes of community protection, denunciation and deterrence must weigh heavily against him.[47]
[46]Nelson [2020] VSCA 219, [34] (Hargrave and T Forrest JJA). The Court stated that the offence was aggravated by the damage caused to the police vehicle.
[47]Nelson [2020] VSCA 219, [43] (Hargrave and T Forrest JJA).
In Jaeger the offender drove a stolen vehicle[48] across the west bound lanes of the Western Freeway, continued over the median strip and into the emergency lane for east bound traffic. He then pulled out in front of a police vehicle and continued travelling east. His driving was very erratic. As the police were behind the stolen vehicle, the offender braked suddenly and came to a complete stop on the Freeway. The constable driving the police car also braked heavily, stopping about 30 metres behind. The offender reversed his car at speed, ramming the front of the police car with sufficient force to cause the airbags to deploy. The offender was aged 24 years and pleaded guilty at his committal mention. He had a limited criminal history, a history of substantial drug-use and had suffered childhood sexual abuse. He had demonstrated remorse and had family support. The Court described the offending as a serious example of a serious offence, warranting stern punishment, and noted that but for the plea of guilty in particular, a significantly more severe sentence would have been justified.
[48]The circumstance of aggravation in s 317AF(1)(a) of the Crimes Act.
It follows that in the instant matter I am not persuaded that it is reasonably arguable that any of the sentences imposed on the individual charges were manifestly excessive. In particular, I do not accept the applicant’s argument that there is nothing remarkably serious about his offending beyond the inherent seriousness of the offences. Nor do I accept that statistical analysis based on the Sentencing Advisory Council data or cases cited as comparative demonstrate the sentences imposed to be wholly outside the range.
Turning then to the complaint that that the sentencing judge gave too much weight to some matters and insufficient weight to others, I am of the view that the judge correctly characterised the seriousness of the offending and the applicant’s moral culpability. The applicant had no remorse or insight. He maintained at his plea that it had not been him driving the vehicle. His significant criminal history and prior convictions for driving offences, coupled with a lack of insight into his substance use issues, led the judge to correctly find that his prospects of rehabilitation were ‘fairly poor’. There was nothing in the material before the judge to warrant any reduction in moral culpability. Further, the matters available to moderate sentence were considered.
Turning finally to cumulation and the principle of totality, the orders for cumulation were made to recognise the ‘separate impact on every victim’.[49] It is necessary to briefly recount the facts.
[49]Reasons, [62].
Charges 2, 3 and 4 related to the three school students, who were walking together and forced to scatter to avoid the applicant’s car on the footpath as it travelled west. Eight months of each sentence imposed was ordered to be served cumulatively on the sentence imposed on charge 1.
Charges 5, 6 and 7 related to the cable jointers and traffic controller. One cable jointer was in the service pit, the other was adjacent to the pit and had to jump onto the back tray of his truck to avoid being hit and the traffic controller moved out of the path of the applicant’s car after a police officer yelled at him to do so. That occurred after the applicant executed a U-turn and drove on the footpath travelling east. Four months of each sentence imposed was ordered to be served cumulatively on the sentence imposed on charge 1.
While there is no error in the making of orders for cumulation to reflect the impact of the applicant’s driving on each victim involved, given the overlapping nature of the criminality of the charges arising out of the same temporally limited conduct — that is, charges 2, 3 and 4 (travelling west) and charges 5, 6 and 7 (travelling east) — it is reasonably arguable that the particular orders for cumulation made are ‘out of kilter’ and resulted in a total effective sentence that was manifestly excessive. That is, the six charges did not arise from distinct aspects of the applicant’s driving[50] but rather each set of three charges resulted from one aspect, being either the first or second occasion on which the applicant drove on the footpath. Further, it is not apparent from the Reasons why charges 2, 3 and 4 each attracted orders for cumulation double that of each of charges 5, 6 and 7.
[50]See Russell [2021] VSCA 221, [27] (Priest JA, Niall JA agreeing at [30]).
It follows that leave to appeal against sentence must be granted.

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[2023] VSCA 309

8 December 2023