Paulson v The King

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2023 0098
AMALA PAULSON	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, NIALL and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2024
DATE OF JUDGMENT:	30 August 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 188
JUDGMENT APPEALED FROM:	[2023] VCC 703 (Judge Moglia)

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CRIMINAL LAW – Appeal – Conviction – Whether verdicts of guilt unreasonable or cannot be supported having regard to evidence – Verdict in relation to dangerous driving causing death not unreasonable – Defence theory that cyclist swerved at last minute purely speculative – Verdicts unsafe in relation to failing to stop and render assistance after motor vehicle accident – Insufficient evidence to establish that applicant should have known that collision had occurred – Verdicts set aside and acquittals entered on those charges.

CRIMINAL LAW – Appeal – Sentence – Applicant sentenced to 2 years and 5 months’ imprisonment on charge of dangerous driving causing death – Error in sentence for dangerous driving causing death as a result of relationship to other charges – Applicant re-sentenced to 2 years’ imprisonment with non-parole period of 14 months – Applicant disqualified from obtaining driver licence or permit for 2 years.

Road Safety Act 1986, s 61; Sentencing Act 1991, ss 5(2H), 5(2HC).

Georgiou v The Queen (2022) 301 A Crim R 229; M v The Queen (1994) 181 CLR 487; R v Baden-Clay (2016) 258 CLR 308, considered.

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Counsel
Applicant:		Mr DA Dann KC with Mr CF Thomson
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	James Dowsley & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA
ORR JA:

On 1 March 2023, the applicant, now aged 36 years,[1] was convicted by a jury in the County Court sitting at Horsham, of one charge of dangerous driving causing death,[2] one charge of failing to stop after a motor vehicle accident,[3] and one charge of failing to render assistance after a motor vehicle accident.[4]
[1]Her date of birth is 5 December 1987.
[2]Crimes Act 1958, s 319(1).
[3]Road Safety Act 1986, s 61(1)(a), (3).
[4]Ibid s 61(1)(b), (3).
The applicant was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Dangerous driving causing death	10 years’ imprisonment	2 years and 5 months’ imprisonment	Base
2	Failing to stop after motor vehicle accident	1200 penalty units or 10 years’ imprisonment	1 year and 8 months’ imprisonment	11 months
3	Failing to render assistance after motor vehicle accident	1200 penalty units or 10 years’ imprisonment	1 year imprisonment	Nil
Total Effective Sentence:		3 years and 4 months’ imprisonment
Non-Parole Period:		1 year and 8 months
Section 6AAA Statement:		Not applicable
Other Relevant Orders: 1. Cancellation of all Victorian licences and/or permits. 2. Disqualification from obtaining such licences or permits for 4 years.

We note that dangerous driving causing death is a ‘category 2 offence’.[5] Accordingly, s 5(2H) of the Sentencing Act1991 provides that a custodial sentence (other than a custodial sentence imposed in addition to a community correction order (‘CCO’)) must be imposed for the offence unless an exception applies. One such exception is where there are substantial and compelling circumstances that are exceptional and rare and that justify not ordering such a sentence.[6]
[5]Sentencing Act 1991, s 3(1) (definition of ‘category 2 offence’).
[6]Ibid s 5(2H)(e).
The applicant seeks leave to appeal against both conviction and sentence.

Grounds of appeal

As formulated in her application, the applicant sought leave to appeal against conviction on the following grounds:
1.The learned Trial Judge erred in finding there was a case to answer on the charge of Dangerous Driving Causing Death.
2.The verdicts on all three charges were unsafe as there was no evidence that it was the dangerous driving of the [applicant] that caused the death and no evidence that [she] ought to have known [she] was involved in a collision.
3.No reasonable jury properly instructed could have excluded the reasonable possibility that it was the driving of the cyclist that caused the collision leading to the death.
At the hearing, the applicant collapsed the grounds into a single ground, alleging that each of the verdicts of guilt was unreasonable or could not be supported having regard to the evidence.[7]
[7]Criminal Procedure Act 2009, s 276(1)(a).
The applicant also seeks leave to appeal against sentence on the following ground:
The learned Trial Judge erred in finding no substantial and compelling circumstances that are exceptional and rare.

Overview of facts and proceedings

At about 6:24 am on 19 December 2019, a truck driven by the applicant and comprising a prime mover and two trailers struck a bicycle ridden by Liam Batson on a stretch of Dimboola Road, outside Horsham in Western Victoria. Tragically, Mr Batson was killed as a result of the collision. The truck did not stop but kept going on its route. The applicant would later tell police that she had not seen the cyclist and was oblivious to the fact that there had been a collision.
At the time of the collision, the weather was fine, although the sun had only just emerged from the horizon; the applicant was driving the truck within the speed limit; she was well rested; she was not distracted by using her mobile phone; and there was no suggestion of drugs or alcohol being involved. The stretch of road, which was in good condition, comprised a dual carriageway separated by a broken white centreline. In the direction of travel, there was a white fog line to the left and a broken white line in the centre. The carriageway between these lines was 4.5 metres wide. Significantly, there were no marks, scuffs or other physical evidence on the road surface which allowed the prosecution to establish where along the width of the carriageway the collision had occurred, although the bicycle, including parts that had been broken off as a result of the collision, and the cyclist were found to the left of the fog line. Examination of the applicant’s truck showed some marking on the lower left corner of the bull bar consistent with contact with the bicycle’s gear set.
Before outlining the evidence, it is useful to note that, in relation to the charge of dangerous driving causing death, the prosecution put its case on two alternative bases. It was alleged that, in driving along the stretch of road approaching the scene of the collision, either the applicant did not see the cyclist and struck him as a result of inattention or that the applicant did see the cyclist but failed to give him sufficient room when overtaking and struck him as a result. The respondent accepts that the available evidence did not allow the prosecution to exclude either possibility to the criminal standard, nor could it prove where on the carriageway relative to the fog line the collision took place.
On either basis, it was contended that the applicant committed the offence of dangerous driving causing death. As to the former basis, it was contended that the applicant failed to keep a sufficient look out and that her failure to see the cyclist must have resulted from significant inattention, beyond a momentary lapse, that rendered her driving dangerous. The second alternative was based on a failure to avoid the collision by giving the cyclist sufficient room as the truck passed him.

The evidence

The road

In broad terms, the Western Highway runs from Melbourne to the South Australian border. From the South Australian border, it runs through Horsham in a southeasterly direction towards Melbourne. From the northwest and heading towards Melbourne, the Western Highway approaches Horsham. About three kilometres to the northwest of Horsham, the Western Highway crosses Obrees Road, has a left-handed bend and becomes Dimboola Road. At the end of the bend, the road straightens again and affords a straight line of travel into Horsham. At this point of the road, it is flat and straight. The straight section of road from the end of the bend to the point of impact was approximately 650 metres, which, at the speed at which the applicant was driving, would have taken at least 30 seconds.
These approximate calculations are reflected in the GPS plot of Dimboola Road that was tendered as an exhibit in the trial, viewed in light of the expert evidence as to their degree of precision. They were discussed by the judge and counsel in the course of the defence’s no case submission and referred to in the prosecutor’s closing address to the jury. We note that the jury also had the benefit of a view of the site as well as an animation which provided a visual representation of the GPS data.
As already noted, the eastbound carriageway (on which the truck travelled) was 4.5 metres wide between the fog line and the broken centreline. To the left of the fog line there was a narrow bitumen shoulder of just under one metre, then 1.55 metres of gravel and then a grassed verge. That is, there was a hard surface (gravel or bitumen) of about 2.5 metres to the left of the fog line. The applicant’s truck was about 2.5 metres wide.
The collision between the truck and the bicycle took place on the way into Horsham on the straight stretch of the road that starts just past the intersection with Obrees Road.
The speed limit on the Western Highway is 100 kilometres per hour. After the intersection with Obrees Road, the speed limit on Dimboola Road reduces to 80 kilometres per hour. The applicant was obeying the applicable speed limit.

The applicant and the truck

At the time of the collision, the applicant was employed by an interstate transport company and had been for many years. She regularly drove the route from Adelaide to Melbourne. She had a very good driving record, with some relatively old infractions of a minor nature.
GPS data for the truck showed that along the Western Highway it was travelling at just below 100 kilometres per hour. As the truck passed Obrees Road, it slowed and it was travelling at approximately 76 kilometres per hour at the point of collision. A relatively short distance after the point of collision, the truck stopped at a parking area regularly used by trucks where it remained for a short period of time before resuming travel.
After the collision, the police attended the depot where the applicant had finished the journey and spoke with the applicant under caution. Although no formal record of interview was tendered before the jury, without objection two police officers gave evidence of what the applicant told them that afternoon.
At the time of the collision, Sergeant Brendan Eames-Meyer was a Detective Senior Constable attached to the Major Collision Investigation Unit. He gave evidence that the applicant told him that she left Salisbury Plain at 10:15 pm on 18 December 2019, picked up the truck in Adelaide at 11:00 pm and commenced the journey from there. She said she stopped at Nhill for a break for an hour and a half and then drove towards Horsham. She had a three minute break at a school in Horsham, where she got out of the truck to walk and stretch her legs. She said she would have been at Horsham between 6:15 am and 6:45 am. In cross-examination, the police officer agreed that the applicant had told him that she had pulled over opposite the school in Horsham because her knee was cramping and she needed to stop and stretch her legs. The applicant had described a ‘pull-out’ on the left side of the road opposite the school that was commonly used by trucks to pull over.
The applicant said that, after stopping at Horsham, she drove straight to Ararat, where she stopped for fuel, and drove from there to Ballan. She stopped for 30 minutes and then drove to the depot. Sergeant Eames-Meyer said that he observed the truck diary and these times were recorded in it. The applicant told him that, before she stopped at Horsham, she had seen two trucks travelling in the opposite direction but did not see any vehicle travelling in the same direction. She also said that, when she stopped at Horsham, she walked up and down the passenger side of her truck and ‘remembers feeling’ a car passing her stationary truck.
The applicant told the police that at no time did she believe she had hit a cyclist or had been involved in a collision.
Inspection of the applicant’s phone records did not show any phone calls at or around the time of the collision. A text message containing an activation code for a social media account had been received at 6:06 am.

Mr Batson

Mr Batson left home shortly after 6:00 am for his regular bike ride before work. He was 24 years old. The GPS on his bike revealed that he turned onto Dimboola Road from Obrees Road and rode back towards town at about 6:22 am at a steady speed of approximately 30 kilometres per hour. The GPS data did not allow a finding as to where on the carriageway he was riding at any particular point in time. He was wearing a pink and black lycra top, black bicycle shorts and a white helmet. The bicycle was red. It was fitted with a headlight and taillight although there was no evidence that the taillight was illuminated on the morning of the collision.
The prosecution was not able to call any person who witnessed the collision, nor produce any CCTV or video footage depicting the impact.

Lay evidence

Evidence pre-collision

A truck driver, Mitchell Forbes, gave evidence that, on 19 December 2019, he was driving a B-double truck into Melbourne from Adelaide. Between 6:00 am and 6:30 am, he approached Horsham from the east. He said that the sun was not quite over the horizon and there was good visibility. He was driving along Dimboola Road when he observed a cyclist about 300 to 500 millimetres from the fog line inside his lane of travel. While on the phone to two of his friends, he stated about the cyclist, ‘this bloke is gonna get killed’. Mr Forbes said that the cyclist had come up out of nowhere and that he was in a ‘very sort of dangerous position to be in on the road that time of day’. No objection was taken to that evidence. He noticed that there was a headlight on the front of the bike that was switched on.

Evidence post-collision

Helen Richardson was travelling to work along Dimboola Road on the morning of the collision. She described the weather conditions as ‘already quite warm … the sun was up, it was … a fairly cloudless day’. As she approached the intersection of Dimboola Road and Obrees Road, the witness observed an object which looked to be trash on the side of the road, about 200 to 300 metres away. As she travelled closer, she saw a bike wheel sticking up. She stopped when she noticed Mr Batson further along on the grass-gravel portion of the side of the road. She pulled over and approached the scene, and dialled triple zero at 6:26 am. She observed that Mr Batson had earbuds in his ears.
Shortly after she approached Mr Batson, a taxi travelling in the opposite direction stopped and the driver of the taxi, Laurence Robertson, dialled triple zero and crossed the road toward her.
Mr Robertson recalled the lighting conditions to be ‘poor’ and ‘dark’, and that the sun ‘might have been up’ but that it was very dark along the sides of the road because of shadows from the trees, and it was hard to see. He later conceded that his statement to police did not detail anything about the lighting conditions being poor that morning, and that his memory had deteriorated since making his statement.
Matthew Clark was a truck driver and was travelling into Horsham, making his way to South Australia, at about 6:00 am on 19 December 2019. He recalled driving down Dimboola Road and noticing a sedan parked on the side of the road and eventually observing a bicycle wheel sticking up. In cross-examination, Mr Clark agreed that at that time of year the sun is pointing directly down on Dimboola Road from the east-southeast and that the glare could cause difficulties with vision whilst driving. He also agreed that the sun and the surrounding trees could cause the fog line area to be shadowed.

Expert evidence

Dong Hui

Mr Hui, an engineer at u-blox, gave evidence about GPS tracking and the use of satellite signals to determine someone’s position with great accuracy, as well as calculating the speed that someone is travelling at. Mr Hui gave evidence about a pictorial representation of the bicycle’s GPS data and the truck’s GPS data using time and co-ordinates. Mr Hui gave evidence that certain factors such as the environment, atmosphere and the surrounding trees could impact the accuracy of the GPS data, but in this case he considered it to be an ‘open sky’ environment, which provides for the best accuracy.
Mr Hui’s evidence was that the bicycle was moving at a constant speed until a point at 6:24:06 am. As for the positioning on the road, Mr Hui agreed with defence counsel under cross-examination that where the two vehicles were on the road immediately beforehand could only be determined with an accuracy of between approximately 2.5 to four metres. The witness confirmed defence counsel’s argument that ‘[the bicycle] could have been left to the solid white line, the truck could have been to the right of the solid white line, and, at impact, the bicycle could have crossed the fog line, the solid white line in front of the truck; the GPS data couldn’t determine whether that was the situation or not’.

Dr Bradley Tucker

Dr Tucker, an astrophysicist and cosmologist, gave evidence that sunrise, relative to the local time zone, occurred at 6:09 am. At the time of collision, the sun’s directional position in relation to the sky, called the ‘azimuth’, was 118 degrees, eight arc minutes and 47.8 arc seconds. Its altitude was two degrees, six arc minutes and 25 arc seconds. Dr Tucker explained that two degrees, measured from the centre of the sun by a person with their arm extended out at length, was about one finger width from the horizon. He accepted that, on the line of vision, the horizon might be hidden by obstructions. Because of this possibility, Dr Tucker could not say how much of the sun was visible from the point of collision. Nonetheless, he accepted that, looking straight down Dimboola Road in the direction of travel, a driver would be looking in the direction of the sun.

Police evidence

The police attended the scene shortly after the collision. A photograph taken at 6:43 am shows a police officer looking east along Dimboola Road from the point of collision. The area is partly in shade from the trees on the side of the road. The police officer is shown shielding his eyes from the sun as he looks along Dimboola Road heading east.

Detective Leading Senior Constable Melanie McFarlane

DLSC McFarlane was, at the time of the collision, part of the Collision Reconstruction and Mechanical Investigation Unit. She gave evidence that, just after midday on 19 December 2019, she attended the scene of the collision. There were no gouges or scrapes in the bitumen, no tyre marks on the road and there was no evidence of any harsh braking. She said that there was nothing at the scene to suggest that either the bicycle or cyclist went under the truck. It was clear, however, that the cyclist and the bike had separated because the debris in the running lane was most likely from the cyclist and the debris from the bike was found on the gravel shoulder. She could not say exactly how the cyclist and bicycle interacted or how the cyclist interacted with the truck after the impact.

The informant

The informant, Sergeant Matthew Hunt, was, at the time of the collision, a Detective Leading Senior Constable attached to the Major Collision Investigation Unit. Sergeant Hunt was aware that the applicant had told the police that she was not aware of having been involved in a collision. Sergeant Hunt agreed, when it was put to him, that the truck and trailer would have weighed between 50 and 60 tonnes and that the combined weight of the bicycle and cyclist was about 100 kilograms. Following that evidence, he gave the following answers:
You couldn’t say whether someone driving a truck involved in a collision with a bicycle and a person weighing about 100 kilos whether the truck driver would be aware of a (indistinct) collision with that bicycle?---It’s subjective to the person I suppose. Um, I can’t say yes or no. I mean you definitely can, you definitely can but possibly you can’t.
You just can’t---?---I’d find it, I’d find it very, very hard to believe.
You can’t say one way or the other?---No.

The informant examined the applicant’s truck a number of times at the Sahib Transport depot. He gave evidence about a subsequent forensic examination of the truck, which identified gouge marks on the lower left corner of the bull bar that could only have been caused by something such as the gear sprockets on the back of Mr Batson’s bicycle. The raw GPS data from the applicant’s truck revealed that it drove along the Western Highway at 99 kilometres per hour leading into Horsham. After the truck passed Obrees Road, it slowed down and continued to slow to 76 kilometres per hour around or just after the collision scene. As for the GPS data of the bicycle, the informant stated that Mr Batson was riding consistently at about 30 kilometres per hour up to the point of collision.
Under cross-examination, the informant confirmed that he attended the scene the day of the collision, although not until around the middle of the day, when the sun was high in the sky. He agreed that there was no suggestion that the applicant was driving erratically before or after the incident or that the applicant was too tired to drive. He could not accurately say where the truck was in relation to the fog line immediately prior to the collision. He accepted that the visibility of the cyclist’s lycra top depended on the position of the cyclist, namely if he was crouched over or sitting upright on the bicycle.

Charge 1

Submissions

In her written case, the applicant submits that there was no evidence that the applicant saw the cyclist before the collision or knew that there had been a collision. In that respect, she calls in aid the following findings of the judge on sentence:
I am not, however, satisfied beyond reasonable doubt that you actually saw him. You told police that you didn’t. There were no tell-tale marks on the road indicating evasive action, braking or movements of the truck’s wheels in response to an impact even upon expert examination. Your use of the internet soon after was innocuous and not indicative of any concern about a collision. Your driving history and attitude to others on the road is impeccable and your demeanour on arrival at your destination a few hours later did not reflect any consciousness of hitting anyone. I accept that sometimes, drivers just do not see what they should.
…
Secondly, as to whether you knew you had collided with Mr Batson following the impact, similarly, I regard this to be a question of whether I am satisfied beyond reasonable doubt that you did. For similar reasons, I am not so satisfied. A driver of your reputation and experience, known for stopping to help others and who carries an emergency kit for that purpose, in my view would have pulled over there and then. You did not display any signs of knowing when speaking to others, and you were obviously distressed when police informed you that you may have hit someone. There was no evidence to suggest the comparative weights of the truck and Mr Batson would have resulted in you feeling the impact. You denied knowing of the collision at the time and while your stop about a kilometre down the road may indicate you pausing for thought about going back, having considered it, I am not sure.[8]
[8]DPP v Paulson [2023] VCC 703, [74], [76] (Judge Moglia) (‘Reasons’).
The applicant submits that the prosecution could not exclude the reasonable possibility that the lighting conditions meant that the cyclist was in shadow at the time of the collision. It could not exclude the reasonable possibility that the applicant’s view was disrupted by glare so that, even if she was driving safely and paying proper attention to the road in her lane, she may not have been able to see the cyclist.
She submits that the prosecution could not refute the reasonable possibility that, as the applicant drove her truck in a straight line within her lane while glare impeded her vision of the cyclist who was riding in shadow by the fog line, the cyclist swerved in front of the truck. The cyclist was wearing earbuds and, while there is no evidence as to what he was listening to at the time, it was clearly open to conclude that he was not able to hear the truck approaching.
At the forefront of her oral submissions, the applicant says that the jury properly instructed could not have excluded the reasonable possibility that the cyclist swerved onto the carriageway and in front of the applicant’s truck immediately before impact. This hypothesis was said to be relevant in two ways. First, it meant that the jury could not exclude the reasonable possibility that the cyclist caused the collision by swerving into the line of the truck. Second, the jury could not discount the reasonable possibility that, as the applicant’s truck was heading east along Dimboola Road, the cyclist was travelling in shadow to the left of the fog line and therefore may not have been seen by the applicant even if she were paying proper attention.
The applicant says that the hypothesis that the cyclist swerved was open on the evidence having regard to the presumption of innocence, that the applicant was of good character with a good driving record, that the evidence did not permit a finding as to where the collision took place on the carriageway, that the cyclist had been seen riding in a way that Mr Forbes had regarded as dangerous, that he was observed as having earbuds in his ears at the time of the collision, and that there was no evidence that the truck left the carriageway or moved to the left of the fog line or of emergency braking. The applicant emphasised that the prosecutor conceded that it was possible that the cyclist swerved albeit that the prosecutor had told the jury that it was not a reasonable inference open on the evidence.
The respondent submits that, given the nature of the road and the surrounding conditions at the time of the collision, the applicant would have had a period of over 30 seconds within which to have observed Mr Batson. Given this, it was well open for the jury to conclude either that the applicant did see Mr Batson or that her inattention was so significant and sustained as to constitute dangerous driving.
The respondent contends that there is no warrant to conclude that the jury were incapable of assessing the likelihood that a cyclist on a highway might suddenly swerve in front of an overtaking vehicle. The defence’s swerve theory has no genesis in the evidence. Further, the jury’s rejection of that proposition was entirely logical given the obvious risks facing cyclists who ride on highways, of which cyclists are cognisant. The fact that the cyclist was observed wearing earbuds has no bearing on whether or not he swerved prior to the collision.

Decision

In Georgiou v The Queen (‘Georgiou’), this Court discussed the elements of the offence of dangerous driving causing death under s 319 of the Crimes Act1958. This Court said:
Section 319(1) of the Crimes Act provides that a person is guilty of dangerous driving causing death if the person drives a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case and the dangerous driving causes the death of a person. …
The test is objective and involves a serious breach of the proper conduct of a motor vehicle upon the road, that is ‘so serious as to be in reality and not speculatively, potentially dangerous to others’. The objective question is whether the manner of driving has the necessary quality of being dangerous to the public.
The concept of dangerousness in s 319 of the Crimes Act:
... imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place.
In one sense, driving, even when carefully undertaken and fully compliant with applicable rules, will always carry some risk to the driver, passengers and other road users. Driving is not free from hazard and the realisation of an ordinary risk of driving does not mean that the driving must have been dangerous. The mere fact that there has been a collision, and in the context of s 319(1) of the Crimes Act, the collision has resulted in the death of a person, does not mean that the driving was dangerous. For the driving to be dangerous, ‘there must be some feature [of the driving] which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention.’
The observation in Jiminez that the defining feature must be framed by reference to the risk that the driving entails, rather than whether it constitutes a want of care, was reinforced by the Court’s later observation in the same judgment that:
But it should be emphasized, and it must always be brought to the attention of the jury, that the condition of a driver must amount to something other than a lack of due care before it can support a finding of driving in a manner dangerous to the public.
If the trier of fact concludes that the driving was careless, and goes no further, then the critical question on which the offence turns will not have been determined, namely whether the prosecution has proved beyond reasonable doubt that the driving was dangerous. That is why Barwick CJ said in McBride that ‘it is not enough that the vehicle as driven by the [driver] has caused death or injury and the [driver] was negligent, even in some glaring respect.’ A lack of care does not always translate into an increased risk of harm over and above that which ordinarily inheres in driving a motor vehicle, including by person[s] who exhibit a degree of carelessness.
Although dangerous driving may, and often will, be associated with a want of care, negligence is not an element of the offence. As was said in King, particular driving may be undertaken with care and skill but remain dangerous for the purpose of s 319. It follows that the fact that the driving was associated with a degree of carelessness on the part of the driver or that the collision could have been avoided by the exercise of greater care does not suffice to make out a charge of dangerous driving. For that reason, to ask whether the driving was careless may be a distraction from the true enquiry as to whether the driving was dangerous.
…
Inattention by a driver to the task at hand, may be dangerous. That is because of the risk that inattention poses to the ability of the driver to safely control the vehicle, including by responding to an unexpected change in traffic conditions. Inattention may prevent the driver from steering a true course or braking to avoid a collision, and be dangerous for that reason. However, the level of attention required at any given point is not necessarily constant: it may depend on the terrain, environment and traffic conditions. Indeed, ‘[i]t may be that in some circumstances where particular attention is required to the road and to other road users, momentary inattention will result in a manner of driving that is dangerous within the meaning of the section.’ On the other hand, it could not be suggested that momentary inattention is relevantly dangerous when driving well within the speed limit, along a suburban road, in good conditions and in light traffic. Equally, momentary inattention is not uncommonly associated with driving and may not produce the type of risk necessary to establish dangerous driving.
…
The essential inquiry is whether the accused person drove in a manner that is dangerous. As already observed, negligence is not an element of dangerous driving and dangerous driving and negligence are not strict alternatives or mutually exclusive categories. A finding that a driver was negligent is not necessarily exculpatory of a charge of dangerous driving; a factor that makes driving dangerous may be the same thing that makes it negligent.[9]
[9](2022) 301 A Crim R 229, 233–5 [13]–[19], [21], [24] (Priest, Kyrou and Niall JJA); [2022] VSCA 172 (citations omitted).
Consistently with authority, the judge directed the jury that, in order to establish that the applicant’s driving was dangerous, the jury must be satisfied to the criminal standard that her driving involved a serious breach of the proper management and control of her vehicle and that this created a real risk to members of the public in the vicinity that they would be killed or seriously injured.
As was the situation in Georgiou, the prosecution was not able to point to any of the features that are often associated with dangerous driving, such as excessive speed, the use of a mobile phone or other distraction, or a breach of the Road Safety Road Rules 2017. Rather, the prosecution submitted that the jury should infer that the applicant was not paying attention to her surrounds for an extended period of time, causing her to fail to see the cyclist.
The relevant principles that this Court must apply when considering whether the verdict of guilt is supported by the evidence were explained by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen.[10] The applicant must demonstrate that, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt of the offence charged.[11] In determining this question, the Court must make its own independent assessment of the evidence, giving full weight to the jury’s advantage in seeing and hearing the evidence.[12]
[10](1994) 181 CLR 487, 492–3; [1994] HCA 63 (‘M’). See also Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Heydon J); [2007] HCA 30; R v Baden-Clay (2016) 258 CLR 308, 329–30 [65]–[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35 (‘Baden-Clay’); Pell v The Queen (2020) 268 CLR 123, 145 [38]–[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12; Dansie v The Queen (2022) 274 CLR 651, 656–61 [5]–[17] (Gageler, Keane, Gordon, Steward and Gleeson JJ); [2022] HCA 25.
[11]M (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63.
[12]Ibid 492–3.
The case of the prosecution was circumstantial and depended on inferences to be drawn from the proved facts having regard to the criminal standard of proof. In Baden-Clay, under the heading ‘Hypothesis consistent with innocence’, the High Court said:
The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, Gibbs, Stephen and Mason JJ said:
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen; see also Thomas v The Queen.
For an inference to be reasonable, it ‘must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’ (emphasis added). Further, ‘in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’ (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.[13]
[13]Baden-Clay (2016) 258 CLR 308, 323–4 [46]–[47] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35 (citations omitted).
As that decision makes plain, a hypothesis must be one founded on the evidence. It is not enough that a theoretical hypothesis can be imagined but there are ‘no positive proved facts from which the inference’ can be drawn.[14]
[14]Ibid 326 [55], quoting Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, 169–70 (Lord Wright).
In our opinion, the theory that the cyclist swerved at the last minute into the line of the truck and either caused the collision or that the cyclist’s swerving explained why, to that point, the applicant had not seen the cyclist is purely speculative and does not have a sufficient grounding in the evidence.
Mr Batson had not been observed riding erratically on the morning of the collision. He was an experienced cyclist familiar with the route. Earlier, he had been seen riding to the right of the fog line by Mr Forbes. Although Mr Forbes may have considered it risky, Mr Batson as a road user was entitled to be riding on the carriageway. In any event, his relative position on the roadway at the point of impact could not be inferred from the fact that he was seen, at an earlier point in time, riding along the carriageway in a particular position. His GPS data showed that he was riding at a steady pace.
The fact that Mr Batson was observed to have earbuds in his ears after the collision supports the possibility that he was listening to something, for example music, the radio or a podcast, but that fact does not make it more probable that he swerved into the line of the truck.
There is nothing in the applicant’s account to the police that supports the possibility that Mr Batson swerved at the last minute in front of the truck. More generally, the theory does not help to explain why, even if there was an unexpected movement by Mr Batson, the applicant did not see him as she drove along Dimboola Road towards Horsham. We find the submission that Mr Batson may have been way off to the left and obscured by shadow or out of the applicant’s line of vision so as to remain unseen even to an attentive driver unpersuasive. It is entirely improbable that, early in the morning, Mr Batson would have chosen to ride his road bike on the gravel. The bitumen to the left of the fog line was not wide, with the evidence suggesting a width of just under one metre.
It follows that the evidence did not support a reasonable hypothesis consistent with innocence that the cyclist had caused the collision by veering into the path of the truck. That disposes of the principal argument on charge 1.
There remains a more general argument that, on the evidence, the jury could not have been satisfied that an attentive driver of the prime mover should have seen the cyclist having regard to the glare from the sun and the dappled light on the side of the road with shadow thrown from nearby trees. And, in assessing the probability of inattention on the part of the applicant, the jury had to have regard to the presumption of innocence, the good character and antecedents of the applicant and the absence of any of the common integers of dangerous driving such as speed, drugs, alcohol, fatigue, distraction or obvious breach of the Road Safety Road Rules 2017. They were all relevant matters.
Ultimately, we are not persuaded that the jury must have had a doubt about whether the applicant’s driving was dangerous and caused the death of Mr Batson. Once account is taken of the length of the straight road, the time it afforded to observe what was in front of the truck and the good conditions of road and weather, the only reasonable inference is that the applicant failed to pay proper attention to her surrounds for an appreciable time and distance and by doing so operated the truck in a manner that posed a serious risk to other road users, including Mr Batson. Her failure resulted in the death of Mr Batson.

The verdict on charge 1 must stand.

Charges 2 and 3

As already mentioned, charges 2 and 3 were concerned with not stopping and rendering assistance after the collision.
Before dealing with the arguments, it is convenient to set out the offence provisions:
61 Duty of driver etc. of motor vehicle if accident occurs
(1) If owing to the presence of a motor vehicle an accident occurs whereby any person is injured or any property (including any animal) is damaged or destroyed, the driver of the motor vehicle—
(a) must immediately stop the motor vehicle; and
(b) must immediately render such assistance as he or she can;
…
(3) If—
(a) as a result of an accident involving a motor vehicle a person is killed or suffers serious injury; and
(b) the driver of the motor vehicle knows or ought reasonably to have known that the accident had occurred and had resulted in a person being killed or suffering serious injury; and
(c)the driver of the motor vehicle does not comply with the requirements of paragraph (a) or (b) of subsection (1) in relation to the accident—
the driver is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum) or a level 5 fine (1200 penalty units maximum).

Submissions

The applicant submits that that the prosecution, by its own admission, could not prove to the criminal standard that the applicant saw the cyclist before the impact or was actually aware that an accident had occurred. In that circumstance, the prosecution could only establish contraventions of s 61(1)(a) and (b), when read with s 61(3), by proving that she ‘ought reasonably to have known that the accident had occurred and had resulted in a person being killed or suffering serious injury’. On that question, the applicant submits that there was simply no evidence or insufficient evidence to establish that fact beyond reasonable doubt. Because, she says, there was no evidence that a reasonable person driving the applicant’s truck would have appreciated that there had been contact with a bicycle, there was no basis to conclude that she ought to have known that an accident had occurred. Alternatively, the evidence could not exclude the possibility that a reasonable person would not have perceived the collision having regard to the relative size of the prime mover and the bicycle, the fact that there was no evidence that the truck rode over the bike and the fact that any contact was on the lower left side of the truck’s bull bar.
The respondent seeks to meet that argument in two ways. First, the respondent submits that a reasonable person would have been paying attention to the road and other road users and would have seen the bike before impact. In relation to this argument, the respondent submits that the judge correctly approached the matter when he came to sentence. Alternatively, the respondent submits that it was open to the jury, using its collective knowledge and experience, to come to the conclusion that a reasonable truck driver would have perceived the collision. In this respect, the respondent contends that the jury could have regard to evidence including as to the visibility and lighting conditions, the dimensions and nature of the applicant’s vehicle, the location on the applicant’s vehicle where contact was made, the projection of the applicant forward from the point of impact, the speed differential between the two vehicles and the brightness and colour of the cyclist’s clothing.

Decision

In his reasons for sentence, the judge said that he was not satisfied beyond reasonable doubt that the applicant actually saw the cyclist or knew that her truck had collided with the cyclist. His reasons for that conclusion are set out above.[15] In relation to charges 2 and 3, the judge said:
I repeat, however, that you ought to have known. While you were entering a town on a dual carriageway with vehicles coming the other way at any moment, I accept that your eyes were likely ahead and to your right, if anywhere, rather than across the cab to check behind. However, you are experienced and skilled and should have been monitoring better than you did.[16]
[15]See paragraph 39 above.
[16]Reasons, [77].
The applicant’s argument must be accepted.
There was simply no evidence that could satisfy a jury to the criminal standard that a driver who had not seen the bike before the collision must have felt the force of the collision from the driver’s seat or otherwise have observed its aftermath. The informant did not provide such evidence, and the other evidence to which the respondent referred is insufficient to support that conclusion. Whether contact between the truck and another object or thing would or would not be perceptible to a driver of a prime mover of the size of the applicant’s truck, pulling two trailers, travelling at speed, and when the driver had not seen the object, is not a matter of ordinary human experience. On the facts of this case, a conclusion one way or the other in lieu of evidence addressing this question would involve no more than speculation.
The respondent’s answer that a reasonable person would have been paying attention before the collision and would therefore have been in a position to see the cyclist proceeds from a misunderstanding of the offence provision. The predicate for the operation of s 61(3) is that there has been an accident. It is erroneous reasoning to ascribe attributes to the reasonable person that would have avoided the accident in the first place. Rather, the question is whether, an accident having occurred, a reasonable person in the position of the driver would have appreciated that fact. Here, that depends entirely on what the reasonable driver would have experienced as a result of the collision and what the driver would have made of that experience. And, as already explained, there was no evidence on which the jury could act in relation to the first aspect of that inquiry.
It follows that, on the hypothesis, which could not reasonably be excluded on the evidence, that the applicant did not see the cyclist and remained oblivious of the collision, there was no basis to conclude that she ought reasonably to have known that the accident had occurred and had resulted in the death or serious injury of a person.
The conviction on charges 2 and 3 must therefore be set aside and acquittals entered on those charges.

Sentence appeal

Although the attack on charge 1 has failed, we cannot be satisfied that the sentence on charge 1 was not influenced to at least some degree by the sentences on charges 2 and 3. Although the applicant stood to be sentenced separately on each charge, some of the factors, such as inattention and its relationship to culpability and the objective gravity of the offending, were common to each of the charges. Indeed, in the circumstances, we are persuaded that, because the applicant was sentenced on three charges arising out of the same incident and two of the charges must be set aide, there is an error in the sentence that affects the sentence on charge 1. It follows that this Court should, unless it were satisfied that no lesser sentence should be imposed on charge 1, re-sentence the applicant on that charge.
As noted at the start of these reasons, the offence of dangerous driving causing death is subject to s 5(2H) of the Sentencing Act. In sentencing an offender for a category 2 offence, a court must make an order under div 2 of pt 3 (other than a sentence of imprisonment imposed in addition to making a CCO in accordance with s 44) unless, among other exceptions, there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under div 2 of pt 3 (that is not a sentence of imprisonment imposed in addition to making a CCO in accordance with s 44).[17] Div 2 of pt 3 provides for custodial orders.
[17]Sentencing Act, s 5(2H)(e).
Relevantly, in determining whether there are substantial and compelling circumstances under s 5(2H)(e), the Court:
(a) must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c)      must not have regard to—
(i)the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or
(ii)     an early guilty plea; or
(iii)      prospects of rehabilitation; or
(iv)      parity with other sentences.[18]
[18]Sentencing Act, s 5(2HC).
It follows that the re-sentencing exercise on charge 1 requires this Court to assess for itself whether there are substantial and compelling circumstances that are exceptional and rare and which justify not imposing a term of imprisonment that is not a combination sentence.
Given that it is this Court’s role to re-sentence the applicant afresh, there is no need to explore in any detail the reasons for sentence imposed by the judge.
The applicant relies on the following factors to establish the relevant circumstances, which also serve to moderate any sentence. The applicant had an impressive driving record as a professional truck driver, working for the same company for eight years without complaint or any infringement notice being imposed. On the plea, the applicant relied on references from three colleagues who attested to the applicant’s professionalism, enthusiasm, hard work and honesty. The director and operations manager of the company each attested to the applicant’s professionalism as a truck driver, respectively describing the applicant’s diary records as impeccable and stating that she takes pride in maintaining her truck for the purpose of both appearance and safety.
The applicant is from South Australia and has a close relationship with her mother who lives in Adelaide. The fact that the applicant is incarcerated in Victoria is an additional burden.
From a personal perspective, the applicant is going through gender transition with a number of consequences for any term of imprisonment. First, she says she is unable to have further surgery while in prison. Second, she is incarcerated in a protection unit and suffers multiple mental health problems including a major depressive disorder and a mixed personality disorder. She is prescribed antidepressant and antipsychotic medication in an attempt to prevent further decline in her mental health.
Before the judge, the applicant relied on a very detailed and comprehensive report from Dr Michael Davis, a consultant forensic and clinical psychologist at Forensicare. Dr Davis confirmed a diagnosis of gender dysphoria and major depressive disorder of moderate severity and with anxious distress. Dr Davis considered these conditions to have been exacerbated by the applicant’s remand.
Dr Davis also opined that the applicant had a severe level of impairment based on multiple long-term stresses and a mixed personality disorder with avoidant, obsessive-compulsive, dependent, borderline and schizotypal features. Dr Davis assessed the risk of further offending to be low. Dr Davis considered that the applicant would struggle considerably more with prison life than the average inmate and he noted a deterioration in the applicant’s mental state as a result of imprisonment.
The applicant says that her moral culpability was low given there was no evidence that she was speeding, drug or alcohol affected, driving erratically or fatigued. She takes issue with the judge’s finding that her conduct was not at the low end of seriousness.
In summary, the applicant submits that her personal circumstances are exceptional and rare given her transgender identity, lack of prior criminality, good prospects for rehabilitation, a significant delay between the offending and the trial, her declining mental health and her low moral culpability. In providing a point of comparison, the applicant refers to Parker v The King,[19] a case in which an offender was sentenced to a CCO on a plea of guilty to dangerous driving.
[19][2022] VSCA 207.
In considering whether the statutory threshold has been met so as to justify but not require a non-custodial sentence, the Sentencing Act alters the ability to prioritise various aspects of the sentencing process.[20] A sentencing judge must regard general deterrence and denunciation of the offender’s conduct as more important than other sentencing purposes in s 5(1) of the Act (which include just punishment, specific deterrence, rehabilitation and the protection of the community from the offender),[21] and less weight must be given to the offender’s personal circumstances than to the nature and gravity of the offence.[22] A person’s previous good character (other than an absence of convictions) and prospects of rehabilitation must be put aside.[23]
[20]DPP v Lombardo (2022) 302 A Crim R 329, 343–4 [75]–[79] (McLeish, Niall and Kennedy JJA); [2022] VSCA 204.
[21]Sentencing Act, s 5(2HC)(a).
[22]Ibid s 5(2HC)(b).
[23]Ibid s 5(2HC)(c)(i), (iii).
It is plain both from the nature of the offence, even without the structure of s 5(2H) and the strong terms of ss 5(2H)(e) and 5(2HC)(a), that general deterrence must be a significant matter in sentence. There is a sound reason for that approach: driving vehicles is ubiquitous but the dangers it presents can be grave and the consequences devastating. The present case tragically shows the dreadful consequences of dangerous driving.
As the judge recorded, Judy-Ann Batson, Mr Batson’s partner, expressed her grief at losing her soulmate. She stated that every milestone or happy moment since his death, whether it be holidays, birthdays, or special events, has been tainted by pain. She is still traumatised by the absence of Mr Batson and feels disturbed by the fact that her family is now and always will be incomplete. She has trouble sleeping and suffers from bouts of nausea and lack of appetite. She gets anxious and concerned when she encounters trucks on the road, which triggers horrific imagery in her head and causes her to fear the worst. She was unable to work for just over two years, as she prioritised taking care of her two daughters in the aftermath of this tragedy. She has declined to attend various social events, such as engagement parties, weddings and other celebrations, because it is too painful to attend without Mr Batson.[24]
[24]Reasons, [20].
Mr Batson’s parents and other family members have been devastated by losing him.
Ultimately, we are not persuaded that the circumstances of the applicant, once approached within the permissible confines of s 5(2HC), are substantial and compelling or exceptional and rare.
Like the judge, we would not regard the offending as a low-level breach: it involved a relatively sustained period of inattention while driving a large commercial vehicle. The circumstances do, however, call for a degree of leniency. Further, on re-sentence this Court was provided with some updated materials, which reinforce the burden of incarceration on the applicant.
In the result, we would re-sentence the applicant to a term of imprisonment of 2 years on charge 1. We would set a non-parole period of 14 months.

Disqualification of the applicant from obtaining driver licence or permit

The applicant also had her driver licence cancelled and was disqualified from obtaining a further licence or permit for four years. This was the mandatory minimum period of disqualification consequent upon her conviction on charges 2 and 3.[25] As those convictions will be set aside, it is necessary to consider the appropriate period of disqualification. Section 89(2)(a) of the Sentencing Act imposes a mandatory minimum of 18 months’ disqualification for a dangerous driving causing death conviction.
[25]Section 61(6) of the Road Safety Act imposes a mandatory minimum disqualification period of four years for a first offence under s 61.
As already observed, the applicant has a very good driving record and no criminal history. Although the circumstances of the offence of dangerous driving causing death were such as to preclude a finding that it was a low level example of the offence, there are a number of mitigating features to which we have referred. It is also relevant that the applicant was employed as a truck driver. We would impose a period of 2 years’ disqualification but would order that the period commence on the date of the sentence imposed in the County Court.
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[2024] VSCA 188

30 August 2024