Parker v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0075

KATRINA PARKER	Applicant
v
THE KING	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	26 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 207
JUDGMENT APPEALED FROM:	[2022] VCC 681 (Judge Marich)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Dangerous driving causing death – Community correction order of 2 years with 250 hours of unpaid community work and licence disqualification of 3 years – Whether arguable that period of disqualification manifestly excessive – Not reasonably arguable that period of disqualification manifestly excessive – Application for leave to appeal refused.

Sentencing Act 1991, ss 5(2H) and 89.

R v Tran (2002) 4 VR 457, Rodi v The Queen [2011] VSCA 48, Clarkson v The Queen (2011) 32 VR 361, Koukoulis v The Queen [2020] VSCA 19, Peers v The Queen [2021] VSCA 264 referred to.

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Counsel:
Applicant:		Mr JD Williams
Respondent:		Ms E Ruddle KC
Solicitors
Applicant:	Tony Hargreaves & Partners
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

On 7 March 2022, the applicant pleaded guilty in the County Court to one charge of dangerous driving causing death, contrary to s 319(1) of the Crimes Act 1958. The maximum term of imprisonment for the offence of dangerous driving causing death is 10 years. The offence is also a Category 2 offence within the meaning of s 3(1) of the Sentencing Act 1991. Being a Category 2 offence, s 5(2H) of the Sentencing Act obliged the sentencing judge to impose a period of imprisonment without a community correction order (‘CCO’) unless one of the exceptions in s 5(2H)(a) to (e) was established.
On 20 May 2022, following a plea hearing on 4 April 2022, the applicant was sentenced to a CCO for a period of 2 years, with a condition that the applicant perform 250 hours of unpaid community work. Additionally, pursuant to s 89 of the Sentencing Act, the judge cancelled the applicant’s licence to drive and disqualified her from obtaining a licence for a period of 3 years.
The applicant now seeks leave to appeal against her sentence on the ground that the period of licence disqualification ordered by the judge is manifestly excessive.

Circumstances of the offending

At approximately 8:20 am on 28 February 2019, the applicant was driving her usual route from her home in Camberwell to her workplace in Ringwood East. The weather was sunny and the road was dry.
Travelling through Ringwood, the applicant turned into Railway Avenue, driving along this road for approximately 1 kilometre before reaching her next turn at the intersection of Morinda Street. As she approached the intersection, she entered the right-hand turning lane and commenced to cross the solid white line on Railway Avenue into Morinda Street.
At the same time as the applicant was turning from Railway Avenue into Morinda Street, her victim, Magda Pashley, was crossing Morinda Street with the aid of a walking frame. Mrs Pashley was 81 years of age and was slowly making her way across the street. Mrs Pashley had made her way across the southbound lane of Morinda Street and was in the process of completing her crossing across the northbound lane to the other side of the street when the applicant entered Morinda Street.
The applicant moved through the right-hand turning lane without stopping, as there were no cars on the approach. Prior to the end of the turning lane, she made her right-hand turn crossing over the solid white line before entering Morinda Street in the northbound lane (the incorrect side of the road for the applicant). The applicant struck Mrs Pashley as she was attempting to complete her crossing in the northbound lane.
The applicant then continued down Morinda Street before coming to a stop approximately 30 metres from the intersection. She got out of her vehicle, looking shocked and distressed. She phoned emergency services and went over to the victim. Members of the public had gathered to assist the victim as she lay on the road. The applicant told bystanders that she did not see the victim because the sun was in her eyes.
The collision was witnessed by the 17-year-old passenger of another vehicle which was stationary and waiting to turn left at the intersection of Railway Avenue and Eastfield Road. It was also captured by a dash camera in another vehicle travelling in the opposite direction.
Emergency services attended the scene of the collision and treated Mrs Pashley before she was transferred to the Alfred Hospital with life threatening injuries. Mrs Pashley passed away from her injuries on 6 March 2019. An autopsy conducted later determined the cause of death to be head injuries sustained in the collision.
Police at the scene asked the applicant what happened. She replied, ‘Turning right, blinded by the sun rising, didn’t see her until the last second’. At the request of police, the applicant underwent a preliminary breath test returning a negative result. She was arrested at the scene and taken to Ringwood Police Station, where a blood sample was obtained. The blood sample was subsequently analysed, and was negative for alcohol and drugs.

Applicant’s background

The applicant was 34 at the time of her offending, and 37 at the time of sentence. She is the elder of two children, born to loving parents. Her father worked in engineering, and her mother was a careers counsellor at a large school.
The applicant completed her secondary schooling at a private girls’ school, where she excelled in her studies and participated in extracurricular activities including sport and music. She obtained excellent results in her Year 12 studies, and then spent a gap year working with vision impaired children in the United Kingdom. She then undertook an arts degree at Monash University, eventually graduating with first class honours. She subsequently completed a doctorate in clinical psychology, specialising in the field of child and family psychology.
In October 2018, the applicant commenced employment as a senior clinician with the Intensive Mobile Treatment Unit at the Eastern Health Child & Youth Mental Health Service, which was where she was employed at the time of the collision and sentencing.
At the time of sentencing, the applicant was in a loving, supportive relationship with her long-term partner. She had a son who was then about 20 months old, and was expecting a second child. She had no prior criminal history and was, as the judge put it ‘of impeccable character, a high achiever in [her] academic and professional endeavours, loved and respected by family and friends’.[1]
[1]DPP v Parker [2022] VCC 681, [44] (‘Reasons’).
In an affidavit tendered on the plea, the applicant’s partner detailed the circumstances of his diagnosis of Crohn’s disease some six years earlier. After describing his condition, the applicant’s partner deposed to the applicant being the primary care-giver for their son and that, if she were incarcerated, he would struggle to take on her responsibilities on his own.

Procedural history

The applicant was charged some seven months after the collision, and the matter then proceeded in the committal stream of the Magistrates’ Court. In December 2020, she was committed for trial. In March 2021, she sought an indication as to the likely sentence if the matter resolved as a plea of guilty. The sentence indication she received was that an immediate custodial term would be imposed. The matter was eventually set down for trial to commence in March 2022.
On 7 March 2022, the scheduled first day of the trial, relying upon new facts and circumstances, the applicant sought a second sentence indication hearing. The outcome of that hearing was that the sentencing judge varied her earlier indication, and indicated that she would impose a sentence other than a custodial sentence to be served immediately. That indication of penalty was made with the support of the prosecution. The applicant accepted the second sentencing indication and, as I have said, pleaded guilty to the charge on 7 March 2022.

Sentencing reasons

The judge noted that a mechanical examination of the applicant’s vehicle revealed no default or failure that would have caused or contributed to the collision;[2] and that the police investigation of the collision revealed that:
•impact with the victim occurred on the wrong side of the road into which the applicant had turned;
•the applicant was most likely travelling at a speed between 23 and 28 kilometres per hour, when the impact caused Mrs Pashley to be thrown to the ground, which then led to her fatal injuries; and
•videorecorded drive-throughs of the collision scene showed that ‘sun glare was evident’, but not enough to restrict the view of Morinda Street; and while the footpaths on either side of Morinda Street were in the shade, the pedestrians were still visible.[3]
[2]Ibid [17].
[3]Ibid [17]–[19].
The judge referred to the victim impact statements completed by Mrs Pashley’s daughter, son and daughter in law. As her Honour said, each of these three victims spoke of the profound loss and grief that the applicant had caused them; and it was difficult to do justice to the way in which that loss was articulated without reading directly from the statements themselves.[4] Her Honour then set out the contents of the victim impact statements at some length, before saying that Mrs Pashley’s children and daughter in law had lost a cherished and extremely dear family member, and had experienced enduring trauma and grief, as a result of the applicant’s criminal conduct.[5]
[4]Ibid [24].
[5]Ibid [29].
The judge took into account the applicant’s plea of guilty, saying that it had saved the court, witnesses and the community the time and expense of a trial.[6] While her Honour described the plea as ‘a late plea of guilty’, she said that the plea was of very considerable significance having regard to the then continuing effects of the COVID-19 pandemic upon the listing of trials.[7] Her Honour also accepted that the applicant’s plea was accompanied by ‘considerable remorse and insight’.[8]
[6]Ibid [32].
[7]Ibid [33], [78].
[8]Ibid [34].
After setting out the applicant’s personal circumstances, the judge noted that she had no prior criminal history and, at the time of her offending, was of impeccable character.[9] The judge then referred to the character references which had been tendered on the plea, saying that it was
most unusual for a person charged with an offence which has caused such catastrophic consequences … to find so many referees to speak thoughtfully and sympathetically on an offender’s behalf.[10]
Her Honour then described in some detail what was said about the applicant by her partner, her parents, her sister, a school friend, a work colleague and family friends.[11]
[9]Ibid [44].
[10]Ibid [45].
[11]Ibid [46]–[51].
The judge noted that there was some uncertainty about the effect of the sentence which would be passed on the applicant as to her future rights of professional practice, and that this was a matter which weighed upon the applicant and which the judge took into account in mitigation of penalty.[12]
[12]Ibid [52].
Under the heading ‘Mental health assessment’, the judge referred to and discussed reports tendered on the plea from the applicant’s treating psychologist, Danielle Sellick, and a medico legal psychologist, Patrick Newton.[13] The judge noted that the applicant commenced regular psychological therapy sessions with Ms Sellick in August 2019. She referred to Mr Newton’s diagnosis that the applicant, as at March 2021, met the DSM-5 criteria for an adjustment disorder with anxiety. She also recorded Mr Newton’s view that there was ‘a clear need’ for the applicant to continue with both medical and psychological treatment, and a ‘genuine risk’ that if such treatment were to be interrupted the applicant would suffer a severe deterioration in her mental health.[14] Her Honour said that she accepted Mr Newton’s opinion that the applicant would be a vulnerable prisoner and that it was almost certain that she would experience a marked deterioration in her mental health if she were placed in custody.[15]
[13]Ibid [53]–[63].
[14]Ibid [59], [62].
[15]Ibid [63].
When dealing with the objective seriousness of the applicant’s offence and her moral culpability, the judge observed that the dangerousness of the applicant’s driving was characterised by:
•the applicant’s failure to keep a proper lookout for pedestrians;
•her failure to observe the victim; and
•the fact that the applicant ‘effectively cut the corner at the time of [the] collision’, putting the applicant on the wrong side of the road when she collided with Mrs Pashley.
The judge then said:
If you had observed any one of those standards, you would not have killed her, as she was able to be seen, she was not shrouded in shadow, and she had successfully passed the point in the road that you would have been entitled to use in any event.[16]
[16]Ibid [64].
The judge said that while the drive-throughs of the scene of the collision showed that sun glare ‘was evident’, and that this supported the applicant’s account of the collision, the sun glare was not sufficient to restrict the applicant’s view of the street into which she turned; and, in any event, did not explain why the applicant was on the wrong side of the road as she was executing her turn.[17]
[17]Ibid [65].
The judge accepted that the objective gravity of the applicant’s offending, and her moral culpability, both fell ‘towards the lower end of matters coming before the court’. Her Honour described the case as being one of ‘momentary inattention, complicated by the position of the sun’.[18] The judge then noted that the applicant’s offending lacked some of the features that mark more serious instances of dangerous driving causing death, in that the applicant was sober, driving to work and observing the speed limit.[19]
[18]Ibid [67].
[19]Ibid [68].
The judge said that, in cases of this nature, the need for general deterrence was high; and that she was required to send a message to the community generally to deter others from engaging in this type of behaviour. She said that she was required to give significant emphasis to general deterrence, as well as the need to denounce the applicant’s behaviour and to punish her for her offending.[20] In contrast, her Honour said that the need for specific deterrence was ‘very low’.[21]
[20]Ibid [69].
[21]Ibid [70].
The judge accepted that the applicant had ‘excellent prospects for rehabilitation’.[22] Her Honour said that this arose from a combination of:
·the fact that this is an offence involving only momentary inattention by you, followed by revisitation and rumination upon your misconduct ever since;
·your lack of any criminal history, in the context of an otherwise blameless life, of industry, of community work and support to vulnerable members of our community, and support to your family, friends and colleagues;
·that you are genuinely remorseful and contrite for the severe pain and profound loss suffered by others as a result of your offending, evidenced by the views that you have expressed to the authors of the character references, to your family and to your psychologists; and
·that you have strong support from your family and friends and your current employer.[23]
[22]Ibid [71].
[23]Ibid.
The judge noted that the offence of dangerous driving causing death is a Category 2 offence, and that a term of imprisonment must be imposed unless one of the exceptions in s 5(2H)(a) to (e) could be established.[24] After referring to the provisions of ss 5(2HC) and (2I), and considering this Court’s decision in Farmer v The Queen,[25] the judge accepted that there were ‘substantial and compelling circumstances that are exceptional and rare’ that justified not imposing a sentence of imprisonment (the exception set out in s 5(2H)(e) of the Sentencing Act).[26] The judge said that she noted ‘without hesitation that imprisonment should normally be imposed for this crime’ but that, having carefully considered the cumulative impact of the circumstances of the applicant’s case, she concluded that the ‘prima facie position should be departed from’.[27] Her Honour then said:
You killed a much loved, much worthied senior citizen of our community, and you have caused lasting grief and trauma to her family and her circle. However, that is not the end of this complex analysis. This particular example of that terrible crime involves objective seriousness and moral culpability towards the lower end. There is little need for specific deterrence. You have been overwhelmed by remorse and contrition for your wrongdoing, and have developed a generalised anxiety disorder in consequence of your revisitation of your own behaviour. The cumulative impact of the circumstances of this case justifies that departure in the way that I have outlined.[28]
[24]Ibid [72].
[25][2020] VSCA 140.
[26]Reasons [73].
[27]Ibid [74].
[28]Ibid [75].
The judge then dealt with the issue of delay, saying that there had been a significant delay, of over three years, in finalising the applicant’s matter, during which time the applicant had not reoffended, and that the prospect of gaol had weighed heavily on the applicant.[29]
[29]Ibid [77].
Finally, the judge described this Court’s decision in Boulton v The Queen,[30] as indicating that a CCO ‘ought not be considered a soft option, and properly tailored to the circumstances of a case, can satisfy the competing purposes of sentencing, even in relation to a serious crime’.[31] The judge concluded:
I intend to make that order against you and in doing so I intend to impose a very significant period of unpaid community work, to punish you and to reinforce the purposes of sentencing that I have summarised … .[32]
[30](2014) 46 VR 308; [2014] VSCA 342 (‘Boulton’).
[31]Reasons [79].
[32]Ibid.
The judge then imposed sentence, before declaring, pursuant to s 6AAA of the Sentencing Act, that she would have imposed a sentence of two years’ imprisonment but for the applicant’s plea of guilty. Under the heading ‘Ancillary order’, the judge cancelled the applicant’s licence to drive and disqualified her from driving for a period of three years.[33]
[33]Ibid [83].

Applicant’s submissions

In submitting that the period of licence disqualification was manifestly too long, the applicant noted that the period (three years) was twice the mandatory statutory minimum (18 months)[34] as it was in Koukoulis v The Queen.[35] Koukoulis was a case where the offender pleaded guilty to a charge of dangerous driving causing death. The applicant submitted that it was accepted in Koukoulis that the objective gravity of the offending in that case was in the lower range. Mr Koukoulis was sentenced to a term of 12 months’ imprisonment combined with a two-year CCO. The sentencing judge made an order disqualifying him from obtaining a licence for three years. Notwithstanding that a year of the disqualification ran while Mr Koukoulis was in custody, this Court concluded that the period of disqualification was manifestly excessive. The three-year period was set aside and it was ordered that Mr Koukoulis be disqualified for the statutory minimum period of 18 months.
[34]See s 89 of the Sentencing Act.
[35][2020] VSCA 19 (‘Koukoulis’).
In the present case, the applicant contended that the judge accepted that her conduct was a case of ‘momentary inattention’, where both the objective gravity of the offending and the applicant’s moral culpability fell towards the lower end of matters heard in the County Court. The subjective matters accepted in mitigation were described as ‘manifold’, the applicant having pleaded guilty and been found to have been overwhelmed by remorse; she having developed a generalised anxiety disorder characterised by anxiety and intense emotional stress; she being the mother of a 20 month old son and, at the time of sentencing, pregnant with her second child; her partner suffering from a chronic inflammatory bowel disease, requiring regular intensive treatment; there having been a delay of three years, during which time she had not reoffended; and her being of impeccably good character and having made substantial contributions to the community.

The applicant contended that, in all the circumstances, she will be adequately punished through the CCO, in combination with the minimum period of licence disqualification. She submitted that the requirement for her to undertake 250 hours of unpaid community work ‘constitutes a substantially punitive element of the sentence’. She also noted the judge’s statement that Boulton ‘indicat[ed] that a [CCO] ought not to be considered a soft option’.[36]
[36]Reasons [79].
The applicant again noted that she had no prior convictions, and that the judge considered the need for specific deterrence to be ‘quite low’. She submitted that there is ‘nothing whatsoever to suggest the need to protect the community from [her] future driving’.
The applicant conceded that no submissions were made to the judge as to the hardship which would accrue to the applicant because of her being disqualified from driving. She submitted that, nevertheless, the following relevant matters were before the County Court:
•the applicant resides in North Warrandyte;
•she is the mother of a 20 month old child;
•she is pregnant with her second child;
•her partner has substantial health difficulties;
•she will be required to travel in order to comply with the requirements of the CCO; and
•her employment is located in Box Hill.
In her written case in this Court, the applicant then made various assertions and submissions about the hardship the period of disqualification would cause, which were not made to the sentencing judge.[37] Among the assertions made were statements that public transport in the area where she lives is extremely limited, and that ‘the terrain includes unavoidable steep hills, which present a challenge on foot with two young children’.[38]
[37]Written case for the applicant dated 16 June 2022, para 28.
[38]Ibid.
Finally, the applicant noted that the sentencing judge did not express any reason for the imposition of the three year disqualification period. She then contended:
As observed by Ashley JA in Rodi,^[[39]] ‘[t]here is a point beyond which one cannot go in seeking to uphold a judge’s finding which is unsupported by some express reasons — which is not to say that an order of the kind now under consideration could not be cross-referenced to matters otherwise bearing upon sentence.’
In all the circumstances of this case, it is submitted that the absence of reasons for the lengthy period of licence disqualification suggests that the sentencing judge has erred.
[39]Rodi v The Queen [2011] VSCA 48, [75] (‘Rodi’). See also Lefebure v The Queen (2000) 112 A Crim R 41.

Analysis

The relevant considerations when determining the appropriate period for which an offender should be disqualified from obtaining a licence are:
•the need for the period of disqualification itself to serve its part as a punitive element in the context of the total punishment imposed; and
•the need to provide protection to the public from the dangers of possible future lawless motor vehicle driving by the offender.[40]
Considerations of personal hardship are also relevant to the period of disqualification. A court imposing a period of licence disqualification needs to examine the degree of dependency (particularly economic dependency) of the offender on the possession of his or her driver’s licence.[41] As I have already noted, however, no submissions were made about this to the judge during the course of the plea. The only thing said about licence disqualification on the plea was a statement in the summary of prosecution opening that, pursuant to s 89 of the Sentencing Act, the Court was required to cancel the applicant’s licence and disqualify her from driving for a period of not less than 18 months.
[40]R v Tran (2002) 4 VR 457, 469–470 [38]–[40] (‘Tran’); Koukoulis [2020] VSCA 19, [18].
[41]Tran (2002) 4 VR 457, 469 [39]; Koukoulis [2020] VSCA 19, [18].
The first point to be made is that, notwithstanding all of the mitigatory matters in the present case, to which I have already referred, the total sentence imposed upon the applicant in the present case was very lenient. A different judge may very well have imposed a term of imprisonment. Merely because the applicant was able to establish the exception set out s 5(2H)(e) of the Sentencing Act, meaning that a term of imprisonment without combination with a CCO was not mandatory, does not mean that a term of imprisonment could or should not have been imposed on the applicant for this serious offending.[42] In Peers, this Court said:
This Court has previously noted that the offence of dangerous driving causing death is a serious one, and ‘it is difficult to see how any sentence other than one of immediate imprisonment could possibly meet the needs of general deterrence, adequate punishment, and denunciation’. This Court has previously upheld sentences of imprisonment comparable to that received by the applicant, and found in the case of Borg, that the imposition of a five year CCO without any period of incarceration was a wholly inadequate sentence.[43]
[42]See, for example, Peers v The Queen [2021] VSCA 264, [58]–[59], [74] (‘Peers’), where s 5(2H)(c)(ii) was satisfied, but the offender was resentenced by this Court to 20 months’ imprisonment with a non-parole period of eight months.
[43]Peers [2021] VSCA 264, [72] (footnotes omitted).
Secondly, to the extent that the applicant seeks to rely upon Koukoulis as showing that a disqualification from driving for three years is manifestly excessive in a dangerous driving causing death case, such reliance is misplaced. Koukoulis is a different case from the present one. In Koukoulis, the offender received a combination sentence of 12 months’ imprisonment with a two year CCO. It was in those circumstances that this Court held that the licence disqualification period of three years was manifestly excessive. The Court so concluded because the combination sentence (containing as it did a term of imprisonment) sufficiently punished the offender and, if the disqualification was intended by the sentencing judge in that case to have an additional punitive effect, then the Court would have expected the sentencing judge to expressly refer to that matter.
The short answer to the applicant’s reliance upon the upholding of the appeal in Koukoulis (and the setting aside of the three year disqualification period imposed by the sentencing judge in that case) is that one cannot mechanistically compare periods of licence disqualification ordered in cases where a custodial sentence has been imposed, with periods of licence disqualification where no custodial sentence is imposed. In the first class of case, it may be accepted that, in the absence of express reasons to the contrary, a period of licence disqualification is unlikely to have been imposed as an additional element of punishment. In the second class of case, it is considerably more likely that a period of licence disqualification is intended to have an additional punitive effect.
Moreover, while it is correct to say that a CCO should not be considered ‘a soft option’, as has been said by this Court on a number of occasions, the punitive effect of a CCO, whatever conditions are attached to it, can never be equated to that of imprisonment, which ‘is uniquely punitive because of that feature which distinguishes it from all other forms of sanction, namely, the complete loss of liberty’:[44] to say nothing of the other punitive effects of imprisonment, namely, the loss of personal autonomy; the loss of privacy; the loss of control over the choice of activities and associates; and the exposure to the risks associated with incarceration – violence, bullying and intimidation.[45]
[44]Boulton (2014) 46 VR 308, 333 [104]; DPP v Borg (2016) 258 A Crim R 172, 192 [106].
[45]Boulton (2014) 46 VR 308, 333 [104]-[105].
In the present case, unless the disqualification period was intended to have additional punitive effect, it is difficult to see how the very lenient sentencing disposition of a two year CCO (albeit with 250 hours of unpaid community work) could possibly have satisfied the sentencing purposes of just punishment and denunciation. It is even more difficult to see how the important sentencing purpose of general deterrence for cases like the present (dangerous driving causing death) could be satisfied.
While the sentencing judge did not expressly say that the period of disqualification of three years was ordered so that the applicant would be sufficiently punished, having regard to the conduct of the plea and the lenient sentence actually imposed, it was (in the circumstances of this case, where no submissions were made by the parties which needed addressing by her Honour) not surprising that the judge did not say for what purpose or purposes she fixed the period of licence disqualification at an amount above the mandatory minimum provided by s 89 of the Sentencing Act.
Moreover, unlike the cases of Rodi and Koukoulis where terms of imprisonment were imposed, making it desirable for the sentencing judges in those cases to give reasons for imposing the periods of licence disqualification in excess of the mandatory minimum, it is plain that all of the components of the sentence imposed in the present case were imposed to punish the applicant in respect of her serious criminal conduct. Without giving undue weight to any of the myriad of facts comprising this case, it is not to be forgotten that Mrs Pashley was killed while the applicant was driving on the wrong side of the roadway, and the applicant’s plea of guilty (for all its value as acknowledged by the judge) was a late plea of guilty. In all of the circumstances, it is difficult to see how the judge could have imposed any lesser penalty than the CCO and period of disqualification actually imposed by her Honour.
Finally, it cannot be gainsaid that the applicant was the beneficiary of a very merciful sentence. Her contention that the period of licence disqualification was manifestly excessive (that is, wholly outside the permissible range) is not reasonably arguable. To restate what has been said so many times before, 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.[46] 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 of the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[47]
[46]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[47]Ibid.

Conclusion

The applicant’s proposed ground of appeal is not reasonably arguable. Indeed, not to have ordered the period of licence disqualification ordered in this case would, when coupled with the CCO imposed by the judge, have risked the possible imposition of a manifestly inadequate sentence. Leave to appeal must be refused.
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[2022] VSCA 207

26 September 2022