Pershouse v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0079

MICHAEL PERSHOUSE	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL CJ and PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2025
DATE OF JUDGMENT:	25 August 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 189
JUDGMENT APPEALED FROM:	[2024] VCC 397 (Judge Todd)

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CRIMINAL LAW – Appeal – Sentence – Two charges of dangerous driving causing serious injury – Total effective sentence 3 years 2 months – Non-parole period 2 years 1 month – Applicant serving sentences for additional offending – Deprived background – Whether sentence manifestly excessive – Whether principle of totality infringed – Leave to appeal refused.

Bugmy v R (2013) 249 CLR 571; Mill v The Queen (1988) 166 CLR 59; Morgan v The Queen [2013] VSCA 33.

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Counsel
Applicant:		In person
Respondent:		Mr J O’Connor
Solicitors
Applicant:	N/A
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL CJ
PRIEST JA:

On 22 March 2024, the applicant pleaded guilty in the County Court to two charges of dangerous driving causing serious injury and three related summary offences.[1] On 27 March 2024 he was sentenced as follows:
[1]DPP v Pershouse [2024] VCC 397, [1] (‘Reasons’).

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Dangerous driving causing serious injury[2]	5 years’	27 months’	Base
2	Dangerous driving causing serious injury[3]	5 years’	27 months’	9 months’
Related Summary Offences
5	Failing a drug test within three hours of driving[4]	120 penalty units	Fined $400	N/A
6	Driving while disqualified[5]	30 penalty units or 4 months’ imprisonment	2 months’ imprisonment	1 month
8	Contravening a family violence intervention order[6]	240 penalty units and 2 years’ imprisonment	3 months’ imprisonment	1 month
Total Effective Sentence:		3 years 2 months’ imprisonment to be served concurrently with an earlier sentence then being served
Non-Parole Period:		2 years 1 month
Pre-sentence Detention Declared:		Nil.
Section 6AAA Statement:		Total Effective Sentence 4 years 6 months Non Parole-Period 2 years 9 months
Other Relevant Orders: 1. All Victorian licences and/or permits held by the offender be cancelled and that the offender be disqualified from obtaining any such licence or permit for a period of 24 month/s from 27 March 2024. 2. Pursuant to s 89C of the Sentencing Act 1991, the court finds that the offence was committed while MICHAEL PERSHOUSE was under the influence of a drug, which contributed to the offence.

[2]Contrary to s 319(1A) of the Crimes Act 1958.

[3]Ibid.

[4]Contrary to s 49(1)(i) of the Road Safety Act 1986.

[5]Contrary to s 30(1) of the Road Safety Act 1986.

[6]Contrary to s 123(2) of the Family Violence Protection Act 2008.

The applicant, who is unrepresented, seeks leave to appeal on the ground that the sentence imposed by the sentencing judge was manifestly excessive.

Circumstances of the offending

On 10 June 2018, the applicant was driving on Dandenong Road in Murrumbeena.[7] There were four passengers in the vehicle: one adult and three children. The adult was a friend, JA, who was seated in the front passenger seat. The three children were NM and JS, who were respectively the victims of charges 1 and 2 and both aged 12, and the applicant’s stepdaughter CL, aged 13.[8]
[7]Reasons, [4].
[8]Ibid [9].
At the time, an interim family violence intervention order was in force against the applicant in respect of CL. The order included conditions prohibiting the applicant from contacting or communicating with CL. This gave rise to summary charge 8 — contravention of a family violence intervention order.[9]
[9]Ibid [6].
At approximately 1:30 am the vehicle, travelling at approximately 30 km per hour, veered to the left-hand side of the road, mounted the median strip and struck a street sign pole before colliding with a tree, approximately 15 metres away from where the vehicle initially veered from the main carriageway. The vehicle sustained significant damage as a result of the collision.[10]
[10]Ibid [7]–[11].
At the scene, the applicant told police that he had consumed codeine and had fallen asleep at the wheel. At 4:06 am, a sample of blood taken from the applicant was found to contain 0.81 milligrams of methamphetamine per litre and 0.18 milligrams of amphetamine per litre. This formed the basis of charge 5 — failing a drug test within three hours of driving.[11] A ‘substantial amount’ of open alcohol bottles were found inside the vehicle by investigators at the scene. Witnesses from the car also gave statements to the effect that they had observed the applicant consume ‘weed’ and drink alcohol. [12] JS told police that he had been ‘scared’ by the applicant’s driving prior to the collision and was given ‘weed’ and alcohol to calm him down.
[11]Ibid [18].
[12]Ibid [22].
It was subsequently established that the applicant was unlicensed and disqualified from driving. This conduct gave rise to summary charge 6 — driving whilst disqualified.[13]
[13]Ibid [16].
NM was admitted to the paediatric intensive care unit for seven days, suffering abrasions, bruising, large lacerations to her spleen and liver, internal bleeding requiring a blood transfusion, a fractured rib, a deformed T8 vertebra and loss of consciousness. She was absent from school for eight weeks and experienced ongoing pain as a result of her injuries.[14]
[14]Ibid [19].
JS was admitted to hospital in the general ward for four days, suffering abrasions, bruising, multiple splenic lacerations, and contusions to his right lung. He experienced ongoing physical symptoms for eight months and ongoing psychological harm.[15]
[15]Ibid [20].
The applicant also suffered significant injuries as a result of the collision.[16]
[16]Ibid [54].

The applicant’s submissions

The applicant was unrepresented in this Court. His application and written case are discursive but, read fairly, reveal a central complaint that the sentence imposed on him is manifestly excessive. Indeed, in writing, he says he would not complain if the sentence was 2 years and 6 months’ imprisonment but, he says, by reason of the cumulation imposed, the total effective sentence of 3 years and 2 months’ imprisonment is ‘very harsh’ and simply too long.
The applicant further submits that the sentencing judge did not adequately consider factors in mitigation of sentence, including:
(a)the remorse demonstrated by the applicant, particularly in respect of the injuries sustained by the three children;
(b)the increased burden of his imprisonment arising from the significant physical injuries sustained by the applicant in the collision and his mental health diagnoses, including post-traumatic stress disorder (PTSD);
(c)the hardship suffered by the applicant as a result of his being remanded in custody at the time of his mother’s death and being denied the opportunity to visit his mother or attend her funeral;
(d)the enduring impact that his childhood trauma on his moral culpability; and
(e)the strong evidence of rehabilitation the applicant has demonstrated prior to and while in custody, including by maintaining a strong relationship with his former partner, participating in drug rehabilitation programs, complying with methadone treatment and engaging in study.

Consideration

A ground alleging manifest excess is directed to the sentence imposed rather than whether the judge has made a specific error. It requires this Court to examine all of the relevant material in order to assess whether the sentence is manifestly excessive in the sense that it falls wholly outside the range available to the judge in the sound exercise of discretion. Understandably, the applicant focused on a number of aspects of his circumstances which he said, taken together, demanded a shorter sentence. It is useful to have regard to those matters and, in doing so, identify how the judge dealt with them.
Before turning to the matters relied on, it is necessary to say something of the objective gravity of the offending. On the plea the applicant’s counsel submitted that the two charges were ‘mid-level to serious examples of the offence’. The judge described them as falling within the mid to serious range of the offence.[17] Those descriptions are entirely apt.[18] The applicant was affected by drugs, fatigue and the collision resulted from a gross lack of attention. There were four passengers in the car. Apart from the applicant’s appalling driving, there were no other factors that contributed to the accident. The injuries to the two children were serious, particularly those sustained by NM.
[17]Ibid [35].
[18]Cf DPP v Weybury (2018) 84 MVR 53, 165 [33]–[34] (Maxwell P and Hargrave JA), 170–1 [54] (Priest JA).
Compounding matters, the applicant has a poor criminal history including being charged for driving whilst disqualified both before and after the collision. Additionally, having fled the jurisdiction after being charged with these serious offences, the applicant committed further serious dishonesty offences in Queensland.[19] For these reasons, specific deterrence was inevitably an important aspect of the sentencing task.
[19]Reasons, [26]–[28].
The central matters relied on by the applicant in mitigation are totality; the effect that the collision had on his physical health; his deprived background; and remorse.
The applicant submits that the sentence did not reflect a proper application of the principle of totality. The issue arises in three ways. First, at the time of sentence he had recently a sentence of imprisonment in Queensland. Second, he was serving a sentence in Victoria. Third, he was to be sentenced for two charges of dangerous driving arising from a single collision .
As to the Queensland sentence, the following factors are pertinent. The collision that gave rise to the current sentence occurred on 10 June 2018. The applicant was charged shortly after the offending and placed on bail. Whilst on bail he fled to Queensland. While in Queensland he committed dishonesty offences by tendering worthless cheques. The first episode occurred between 5 September 2018 and 12 September 2018, soon after he had escaped to Queensland. The applicant was sentenced for this offending on 27 May 2019 to a total effective sentence of 2 years and 6 months’ imprisonment. This sentence was due to expire on 26 November 2021. On 18 November 2021, the applicant was sentenced for further dishonesty offences committed while on parole between 3 August 2020 and 22 September 2020. That sentence expired on 18 May 2023. On 19 May 2023, the applicant was extradited to Victoria. The applicant contends in his written submissions that he sought to be extradited ‘many many times’ whilst he was serving sentence in Queensland, ‘never getting the approval from Victoria’.
On his return to Victoria he pleaded guilty in the Magistrates’ Court to a number of driving offences, including driving whilst disqualified. That offending occurred a few days after the collision that resulted in serious injury. He was sentenced to 12 months’ imprisonment — a sentence that was due to end in May 2024.
On 27 March 2024 he was sentenced for the dangerous driving offences which had been committed in 2018.
The cumulative effect of the terms imposed in Queensland and Victoria is that the applicant will be required to serve a combined term of imprisonment of 8 years and 6 months.
The judge was alive to the applicant’s predicament. In relation to the Queensland sentence, the judge noted that, as the applicant had been in custody since his departure from Victoria in 2018, the principle of totality required her to moderate the sentence.[20] In relation to the Victorian sentence, the judge said that, as part of the expression of the principal of totality, she would make the sentence concurrent with the balance of the Victorian sentence that was yet to be served.[21] This was around 2 months. In relation to the two charges, the judge said that she would impose a degree of cumulation to recognise the separate victims of the applicant’s offending.[22]
[20]Ibid [61].
[21]Ibid [63].
[22]Ibid [62].
Next, the applicant calls in aid the principles in Bugmy v Queen (‘Bugmy’).[23] The applicant grew up in a violent house and his father was sentenced to a very long term of imprisonment for family violence and sexual offending. The judge said that the applicant had endured severe deprivation throughout his formative years, the consequences of which are ‘clearly and deeply entrenched’.[24] Her Honour noted that the applicant was exposed to criminal violence and sexual abuse, perpetrated by his father against his mother and siblings, as well as sexual abuse perpetrated by a staff member at the applicant’s primary school. She further observed that he had commenced using drugs at an early age and that substance abuse remains an ongoing issue for the applicant.
.[23] (2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
[24]Reasons, [48].
The judge accepted that the principles derived from Bugmy applied to reduce the applicant’s moral culpability of the offending in that his upbringing impaired his maturity, decision-making capacity and ability learn from experience, and thus bore on his circumstances at the time of the offending.[25]
[25]Ibid [52].
The third main aspect relied on by the applicant was his physical infirmity, which is significant. He requires a wheelchair for much of his mobility although he can function without it for short periods and for various tasks such as showering. The applicant’s injuries were relevant in two ways. First, to the extent that the injuries were sustained in the collision, there is a potential for extra-curial punishment. Second, it is relevant to how he will fare in prison when compared to prisoners without his disability. The picture is somewhat complicated by the fact that the applicant also sustained serious injuries as a result of an attack on him by a fellow prisoner which occurred while he was incarcerated in Queensland.
The judge took these matters into account. The judge was not convinced that all of the applicant’s infirmity was a product of the collision and gave some, but little, weight to extra-curial punishment.[26] Of more significance, the judge accepted that the applicant’s ailments contributed to the burden of imprisonment and made him more vulnerable in prison.[27]
[26]Ibid [54].
[27]Ibid [55].
On the question of remorse, the judge found that the applicant had expressed full and appropriate remorse for his conduct, particularly in respect of the injuries sustained by NM, JS and CL. Her Honour found this factor to somewhat moderate the emphasis to be placed on specified deterrence in sentencing.[28]
[28]Ibid [64].
It is in that setting that we turn to consider whether the sentence imposed was manifestly excessive.

Conclusion

As already alluded to, the judge had regard to all relevant matters, including those in mitigation and those requiring the application of totality, and arrived at individual sentences and a total effective sentence that were not manifestly excessive. The judge’s Reasons are careful and detailed. As the applicant submitted, there were a number of significant factors that he could rely on in mitigation of sentence. They were all taken into account. We consider that the judge’s assessment of the individual aspects relied on by the applicant were well open to her and accord with our own assessment.
The mitigatory factors arose in a context where the objective gravity of the offending was serious, the applicant has a very bad criminal history and, given the nature of the offences, deterrence, both general and specific, and denunciation had to be given adequate prominence.
As for totality and delay, the principles are well established and are founded on an appreciation that the combined effect of sentences imposed on either a single occasion or on multiple occasions might lead to a disproportionate or even crushing overall sentence.[29] There is no single way to give effect to the principle and, in many cases, the consideration may pull in different directions. On the one hand there is a sense that serious offending should be reflected in the punishment imposed, and that concurrency can mask separate and distinct offending giving rise to the concern that offending remains unpunished. On the other hand, to treat the different episodes or charges as entirely discrete can lead by a process of cumulation to sentences that exceed a proportionate measure.
[29]Mill v The Queen (1988) 166 CLR 59 (the Court); [1988] HCA 70; Morgan v The Queen (2013) 40 VR 32 (the Court); [2013] VSCA 33.
Recognising that the Queensland offending occurred in two episodes (separated in time) after the applicant had fled Victoria to avoid facing the present charges, and involved quite different criminal activity, totality did not demand any significant moderation of sentence by the judge. The Victorian sentence of 12 months reflected relatively serious driving offending, including driving whilst disqualified which occurred a few days after the collision. The downward effect of totality was offset, to some degree, by the fact that the applicant, by his prior and subsequent offending, showed a willingness to engage in serious criminal activity and merited a sentence that took into account his high culpability and the need for specific deterrence. The applicant’s moral culpability was high in circumstances where he knew he was incapable of maintaining proper control of the vehicle, and had been pulled over by police in the months before the collision yet did not change his behaviour.
We are unable to discern in the sentence imposed any misapplication or misunderstanding of principle and the sentence ultimately imposed can comfortably accommodate some amelioration based on totality.
The judge also took into account the applicant’s physical impairment. The findings she made in that respect were again, well open to her, and although they provided a basis for moderation in sentence, the sentence arrived at does not suggest any error to give appropriate weight to this aspect.
We agree with the judge that the serious nature of driving offences, such as that charged of the applicant, required that any sentence imposed should be such to deter others from engaging in similar conduct while driving. The judge further noted that the sentence imposed on the applicant required consideration of specific deterrence and just punishment, noting that the applicant’s conduct must be denounced as ‘wholly and completely unacceptable’. Also correct was the judge’s observation that community protection, in the case of the applicant, would be brought about through the imposition of a custodial sentence aimed at altering the applicant’s future conduct.[30]
[30]Reasons, [65]–[66].
In conclusion, we are not persuaded that the sentence imposed on each of the charges or the total effective sentence are manifestly excessive. The application for leave to appeal must be refused.
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[2025] VSCA 189

25 August 2025