Ritchie v The King
[2025] VSCA 154
•3 July 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0008 |
| MEGGAN RITCHIE | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | NIALL CJ, KIDD and RICHARDS JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 June 2025 |
| DATE OF JUDGMENT: | 3 July 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 154 |
| JUDGMENT APPEALED FROM: | [2023] VCC 2106 (Judge Carlin) |
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CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal against sentence –Dangerous driving causing death and related summary offence – Driving while under influence of methylamphetamine – Collision with pedestrian causing death – Plea of guilty – Genuine remorse – Prospects of rehabilitation reasonable to good – Seriousness of offending above mid-range – Sentence of 3 years 6 months’ imprisonment with non-parole period of 2 years 2 months – Whether sentence manifestly excessive – Sentence within range consistent with current sentencing practices – Leave to appeal refused.
Sentencing Act 1991, ss 5(2), (2H).
Stephens v The Queen (2016) 50 VR 740; Clarkson v The Queen (2011) 32 VR 361; DPP v Dalgliesh (2017) 262 CLR 428; R v Kilic (2016) 259 CLR 256, referred to.
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| Counsel | |||
| Applicant: | Mr CK Wareham | ||
| Respondent: | Ms EH Ruddle KC with Ms S Goegan | ||
Solicitors | |||
| Applicant: | Galbally & O’Bryan | ||
| Respondent: | Abbey Hogan, Solicitor for Public Prosecutions | ||
NIALL CJ:
I agree with Richards JA.
KIDD JA:
I agree with Richards JA.
RICHARDS JA:
On 9 August 2023, Meggan Ritchie pleaded guilty to one charge of dangerous driving causing death and a related summary offence, and one charge of possession of a drug of dependence. After a plea hearing, Ms Ritchie was sentenced on 15 November 2023, as follows.
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
Indictment M12727177A.1
1 Dangerous driving causing death (contrary to s 319(1) of the Crimes Act 1958) 10 years 3 years 6 months Base Related Summary Offences
7 Contravene a conduct condition of bail (contrary to s 30A(1) of the Bail Act 1977) 3 months or 30 penalty units 1 month N/A Total Effective Sentence
Indictment M12727177A.1
3 years 6 months’ imprisonment Indictment M12727177B.1
1 Possession of a drug of dependence (contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981) 1 year or
30 penalty units$500 fine N/A Total Effective Sentence
Indictment M12727177B.1
$500 fine Total Global Effective Sentence: 3 years 6 months’ imprisonment Non-Parole Period: 2 years 2 months Pre-sentence Detention Declared: 0 days Section 6AAA Statement: Total Effective Sentence 5 years’ imprisonment
Non Parole-Period 3 years
Other Relevant Orders:
1. Driver’s licence cancellation and disqualification for 30 months from 15 November 2023.
2. Forfeiture and disposal order.
Ms Ritchie now seeks leave to appeal against sentence on the ground that the sentence imposed was manifestly excessive.
For the reasons that follow, leave to appeal should be refused.
Circumstances of offending
On 30 December 2021, a car driven by Ms Ritchie struck Julie Barnes. The collision took place in the late morning in Catherine Street, McCrae, near Mrs Barnes’s home. In her sentencing reasons,[1] the judge described the street as a ‘two-way undivided road with no road markings’ and no footpaths. The default speed limit for this ‘relatively narrow street in a residential area’ was 50 kilometres per hour.[2]
[1]DPP v Ritchie [2023] VCC 2106 (‘Reasons’).
[2]Reasons, [17].
At the time of impact, Mrs Barnes was walking on the western side of the street, close to the gutter along a heavily vegetated nature strip. She was walking south-west, facing oncoming traffic.[3]
[3]Reasons, [18].
Ms Ritchie struck Mrs Barnes from behind with the front right (driver’s) side of the car, while travelling at between 44 and 50 kilometres per hour on the wrong side of the road. Mrs Barnes was lifted up onto the bonnet of the car and came to land outside a neighbouring house. She suffered catastrophic injuries, from which she died in hospital later that day.[4]
[4]Reasons, [1], [18].
Immediately after the collision, Ms Ritchie stopped her car and checked on Mrs Barnes. Ms Ritchie then waited in her car while emergency services arrived. Her five year old daughter was in the rear seat of the car.[5]
[5]Reasons, [4].
When Ms Ritchie first spoke to police, she appeared distraught. She told them that she had just turned into Catherine Street when her daughter asked for an asthma puffer, and that she was searching for the puffer and not looking at the road when she hit Mrs Barnes. Other evidence, including from Ms Ritchie’s daughter, confirmed that account.[6]
[6]Reasons, [4], [19].
While Ms Ritchie did not appear to be drug-affected, analysis of a blood sample taken after the collision revealed the presence of methylamphetamine at 0.6118 milligrams per litre.[7] The following matters were agreed, on the basis of a joint prosecution and defence expert report:
(a)Ms Ritchie had used methylamphetamine at some point prior to driving;
(b)her blood concentration of methylamphetamine was high;
(c)at the time of the collision, she would have been experiencing some methylamphetamine-related effects; and
(d)from the drug concentration alone, it could not be determined whether she was experiencing ‘the stimulatory effects of the drug or the effects more consistent with fatigue and tiredness etc based on available evidence’.[8]
[7]Reasons, [5], [8], [20].
[8]Reasons, [20].
Ms Ritchie was also found to be in possession of a syringe, an ice pipe and a small container of liquid 1,4 butanediol.[9]
[9]Reasons, [5].
Sentencing Reasons
The judge introduced her reasons for sentence by outlining the circumstances of the offending[10] and the procedural history of the prosecution of the offences to which Ms Ritchie had pleaded guilty.[11] She then turned to Ms Ritchie’s background and personal circumstances. In summary:
(a)Ms Ritchie was 27 years old at the time of the offending, and 29 when she was sentenced. She was the youngest of four siblings, whose parents separated when she was six years old. During secondary school, Ms Ritchie and her sister lived with their mother, who was a heavy user of alcohol and a ‘no rules’ parent. Ms Ritchie had a poor relationship with her stepfather, who she described as psychologically abusive to her. She was apparently sexual assaulted at the age of 13, but provided no details about that incident.[12]
(b)Ms Ritchie struggled at school and did not complete year 12. Between 2011 and 2020, she worked variously in retail, real estate and hospitality. She had not undertaken paid work since the COVID-19 pandemic.[13]
(c)Ms Ritchie’s first long term relationship was between 2012 to late 2016, with a man who was abusive and a significant drug user. Their daughter was born in 2016, when Ms Ritchie was 22. The man had been imprisoned for assaulting Ms Ritchie in front of their daughter in 2021, and there was a current intervention order against him in favour of Ms Ritchie and their daughter.[14]
(d)Her second long term relationship was between 2017 and 2021. After the relationship ended, Ms Ritchie moved in with her mother, and then was homeless for a time in mid-2021. She received emergency accommodation and placed her daughter with her paternal grandmother as a temporary measure.[15]
[10]Reasons, [1]–[6], [16]–[20].
[11]Reasons, [7]–[15].
[12]Reasons, [22]–[24].
[13]Reasons, [25]–[26].
[14]Reasons, [27].
[15]Reasons, [28].
The judge next set out her findings regarding Ms Ritchie’s substance use:
In terms of your substance use, you have a history of binge drinking and heavy cannabis use, but no longer do either of those things. You have experimented with amphetamines, ecstasy, and cocaine but the main issue is your methylamphetamine use. You started using that drug in 2019. At first it was only occasionally but after your [second long term relationship] ended you started to use more. You also started using GHB from late 2021.
One would have hoped the experience of causing Mrs Barnes death, being interviewed and charged, would have convinced you to stop using drugs, however, instead you started using methylamphetamine and GHB more heavily. In your words, you were ‘on it all the time’. Even the fact you were bailed on condition that you not possess or consume a drug of dependence did not deter you. On 1 February 2022, less than five weeks after the collision, you tested positive for amphetamine, methamphetamine, MDA, and ecstasy.
This positive drug screen led to you being charged with the related summary offence, Charge 7, and also to Child Protection intervention. [Your daughter] was placed in the care of your mother and you had to move out of the home. The separation from [your daughter] was traumatic but at least seemed to provide the impetus for you to stop using drugs.
On 14 February 2022 you voluntarily entered the Hader Clinic, a residential drug rehabilitation program in Geelong and on 15 March 2022 you moved to the secondary care program at the clinic’s Essendon facility, where you completed a two-month program. You went on to enrol in a community services diploma and importantly maintained contact with the Hader clinic, volunteering twice a week at Essendon for approximately seven months between May and December 2022 and also producing clean urine drug screens.
On 7 July 2022 you were referred to an organisation called Taskforce by Child Protection to receive further alcohol and drug counselling as part of a reunification plan with [your daughter]. You had four sessions of counselling. You also attended Narcotics Anonymous meetings.
In late 2022 you returned to the Essendon clinic as a resident, not because you had relapsed but because you were finding it difficult to abstain. After five weeks, you moved out and in with your father where you have lived ever since. He funded all your treatment at the Hader clinic, a total of about $45,000. In January 2023 Child Protection allowed you to care for [your daughter] unsupervised.
You maintain that you have abstained from illicit drugs since your entry into the Hader Clinic in February 2022, and there is nothing to suggest otherwise. You told Dr Borg that ‘too much will go wrong if [you] use again’.[16]
[16]Reasons, [29]–[35].
As to Ms Ritchie’s circumstances at the time of sentencing, she and her daughter were living with her father. Ms Ritchie did not socialise much and cared for her daughter when she was at home. The plan was for her daughter to live with Ms Ritchie’s father while Ms Ritchie was imprisoned, allowing her to remain at the same school. Ms Ritchie was rebuilding her previously strained relationships with her mother and siblings.[17]
[17]Reasons, [36]–[38].
In relation to Ms Ritchie’s mental health, the judge found:
As far as your mental health is concerned, after [your daughter] was born you experienced depression, anxiety, and obsessive-compulsive behaviour. You saw a psychologist, who prescribed Effexor, an antidepressant, however, you stopped taking it after a year, preferring to rely on illicit substances. More recently you commenced psychotherapy and completed four one-hour sessions. You have also attended general practitioner Dr Hammond since January 2023 and have seen her on six occasions for medical and psychological issues. You are currently on Venlafaxine for depression.
Clinical neuropsychologist Dr Linda Borg assessed you on 10 October 2023 and provided two reports to the court dated 11 October 2023 and 30 October 2023. Dr Borg had access to an earlier report completed by a psychiatrist, Dr Kahn, on 11 August 2023. Dr Kahn’s report was not tendered, however, according to Dr Borg he diagnosed you with:
‘Major depressive episode (moderate), ADHD-inattentive type, PTSD “residual symptoms” and a history of polysubstance abuse “now in remission”.’
Dr Borg agreed with these diagnoses. She also assessed your IQ as 91. As to whether your psychological profile contributed to the offending, she opined that:
‘Ms Ritchie's decision-making skills are not appreciably impaired. Therefore, she can effectively reason, adapt behaviour, plan and problem solve enabling considered, flexible and controlled decision making. She does struggle to consistently maintain her focus and can be behaviourally impulsive, meaning she may have a propensity to be more easily distracted in light of her ADHD diagnosis. However, this has not overtly impeded driving performance prior to the current incident and on balance, it does appear that acute contributors more likely influenced her behaviour, namely being distracted by her daughter's care needs and potentially, methamphetamine use. Ms Ritchie's mood disturbance is not considered a contributing factor.’[18]
Objective gravity of the offending and moral culpability
[18]Reasons, [39]–[41].
The dangerousness of Ms Ritchie’s driving was agreed to comprise:
(a)driving with a high level of methylamphetamine in her blood, such that she would have been experiencing some effects from the drug; and
(b)on two separate occasions just prior to the collision, taking her eyes off the road to look for her daughter’s asthma puffer — the first to look in her handbag, the second to look in the glovebox followed by the centre console.[19]
It was also agreed that Ms Ritchie’s distraction was more than momentary.[20]
[19]Reasons, [47].
[20]Reasons, [48].
The prosecution submitted that the offence was a serious example of dangerous driving causing death, while the defence submitted that it was mid-range due to the absence of a number of aggravating factors.[21] The judge observed that the fact that it was possible to envisage worse case scenarios did not detract from the gravity of the offending:
You knew you had consumed methylamphetamine in the days leading up to your driving and even if you did not know that you were still affected by the drug you could not have known that you were not. You were prepared to take the risk of driving whilst possibly affected by methylamphetamine with your young daughter in the car. You then chose to continue driving whilst searching for your daughter’s asthma puffer. It would have been so simple to pull over, if not immediately, then certainly when it became obvious that the puffer was not easily found. That was the safe and obvious thing to do. Instead, you rummaged around first in your handbag, then in the glove box and then in the centre console, only looking up once whilst doing so.
This was not simple inattention or misjudgement, it was a deliberate decision by you to do each of those things whilst driving. Not only did each search require you to take one hand off the steering wheel, you actually had to lean over to the passenger seat to search your handbag and the glovebox. In any driving situation this would have been dangerous behaviour, both because of the potential to lose control in a physical sense, but also because of the loss of concentration on the road ahead. It was especially dangerous in a narrow residential street with cars parked on the side and pedestrians in the area. The consequences of your actions were tragic and completely avoidable.
When one adds to the equation the fact that you were actually affected in some way by the high level of methylamphetamine that was in your system, the conclusion is inescapable that your offending is above the mid-range on the spectrum of seriousness for the offence. All road users have a duty to drive responsibly and safely. You should have been especially vigilant to do so given your prior driving history of driving whilst disqualified and driving whilst suspended, not to mention the fact that you had your five-year-old daughter in the car with you. It was not submitted that there was anything about your personal circumstances or mental health to reduce your moral culpability and I consider it to be high.[22]
Current sentencing practices
[21]Reasons, [49].
[22]Reasons, [50]–[52].
After referring to Court of Appeal authority and legislative changes that meant that dangerous driving causing death would attract a custodial sentence other than in exceptional circumstances,[23] the judge had regard to the most recent Sentencing Advisory Council sentencing statistics for the offence and the comparable cases to which she had been referred by both parties.[24] The judge observed that every instance of dangerous driving causing death is different, as are the circumstances of every offender, and that many of the cases were decided before the introduction of mandatory sentencing for the offence. She had considered all the cases to which she was referred, ‘conscious that [her] duty [was] to impose a just and appropriate sentence on [Ms Ritchie] in the unique circumstances of this case’.[25]
Impact of offending and circumstances of the victims
[23]Reasons, [54]–[58], referring to Stephens v The Queen (2016) 50 VR 740, 745–6 [21] (Redlich, Santamaria and Beach JJA); [2016] VSCA 121 (‘Stephens’); Sentencing Act 1991, ss 3(1) (definition of ‘category 2 offence’, para (eb)), 5(2H).
[24]Reasons, [59]–[60].
[25]Reasons, [60].
The judge summarised the four victim impact statements that were read at the plea from Mrs Barnes’s husband of 50 years, her two children, and her granddaughter.[26] These statements gave depth to the judge’s introductory statement about the loss of Mrs Barnes:
Mrs Barnes was a wife, mother, grandmother, friend and much-loved member of her community. Lest there be any doubt about it, Mrs Barnes was fit and healthy and enjoying life. Her sudden and violent death has caused untold grief to all those who loved her.[27]
Plea of guilty, co-operation and remorse
[26]Reasons, [61]–[66].
[27]Reasons, [2].
The judge said that Ms Ritchie was entitled to a significant discount for her plea of guilty. Because Ms Ritchie had offered to plead to the charge of dangerous driving causing death in June 2022, the judge treated the plea as an early plea.[28] The discount was greater because of Ms Ritchie’s genuine remorse and because she had pleaded guilty during the pandemic and had the benefit of the Worboyes principle.[29]
[28]Reasons, [67].
[29]Reasons, [68], referring to Worboyes v The Queen (2021) 96 MVR 344, 356–7 [39] (Priest, Kaye and T Forrest JJA); [2021] VSCA 169.
As to Ms Ritchie’s remorse, the judge said:
The courts have made clear that true remorse is not anxiety at the prospect of being punished nor simply regretting one’s conduct. True remorse involves a desire to make amends and a determination to change one’s behaviour.[30] You have never resiled from taking responsibility for the death of Mrs Barnes or accepting punishment for it. You apologised in your record of interview and have continued to express remorse ever since, even writing a letter which was tendered at your plea. Often such letters can be painful for victims who view them as too little and too late and an attempt to garner sympathy. However, in your case I do accept that your letter was genuine. Whilst it is concerning that you continued to use drugs for a time after the offending you have since demonstrated a commitment to change. Whether you will be able to maintain that commitment of course remains to be seen.[31]
Character and risk of reoffending
[30]Barbaro & Zirilli v The Queen (2012) 226 A Crim R 354, 365 [36] (Maxwell P, Harper JA and T Forrest AJA); [2012] VSCA 288.
[31]Reasons, [69].
The judge referred to five character references from family and friends of Ms Ritchie, which showed she had ongoing support from extended family and friends. The judge accepted that that support boded well for Ms Ritchie’s future, as did her remorse and her efforts and desire to remain drug free.[32]
[32]Reasons, [71]–[72].
Despite those positive matters, the judge could not agree with the defence submission that Ms Ritchie’s prospects of rehabilitation were excellent, due to her prior criminal history and worrying history of drug use.[33] She said:
[33]Reasons, [73].
In 2020 you were fined for wilfully damaging property during an argument with Christopher Breen’s mother. More significant are your driving offences. Between 2018 and 2019 you drove whilst your authorisation was suspended three times and drove once when you were disqualified. In 2020, you contravened the community corrections order that was imposed in June 2019.
I would not go so far as to say that this history demonstrates an attitude of continued disobedience to the law, but it hardly instils confidence. The concern is compounded by your continued, even increased drug use after this offending. You have now been drug free for about 21 months, which is to your credit, but there is still a long way to go.
Relevantly Dr Borg said this:
‘While she can be behaviourally impulsive, from a cognitive perspective Ms Ritchie is capable of moderating behaviour and responses. Responses to questioning reveal adequate awareness of her current predicament and factors contributing to same. Hence, insight and judgment are preserved.’
As best I can determine, taking into account your protective and risk factors I consider your prospects of rehabilitation to be reasonable to good.[34]
Other matters
[34]Reasons, [74]–[77].
The judge considered that Ms Ritchie was entitled to a small reduction in sentence due to her voluntary attendance at a rehabilitation clinic.[35]
[35]Reasons, [78], referring to Akoka v The Queen [2017] VSCA 214.
The medical evidence did not support a finding that there was a serious risk of imprisonment having a significant adverse effect on Ms Ritchie’s mental health, although there was a risk that her depression would get worse in a general sense. The judge was not satisfied that principles 5 or 6 of Verdins were enlivened.[36]
Conclusion
[36]Reasons, [79]–[83], referring to R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102.
Finally, the judge addressed the purposes of sentencing:
Under the Sentencing Act 1991 the only purposes for which a sentence may be imposed are just punishment, deterrence, rehabilitation, denunciation, and protection of the community.
Generally, a court must not impose a more severe sentence than is necessary to achieve those sentencing purposes. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required. In the case of the offence of dangerous driving causing death those principles, being the principles of proportionality and parsimony, are qualified by the terms of the mandatory sentencing scheme.
The importance of general deterrence and denunciation in sentencing for offences of dangerous driving causing death have been repeatedly emphasised by the courts and are now enshrined in the Sentencing Act by virtue of the provisions prescribing the manner of determining whether there are substantial and compelling circumstances justifying a non-custodial or combination sentence. Members of the community must understand that if they drive dangerously, with consequent loss of life or serious injury, significant punishment will follow.
Further, the sentence must manifest the community’s disapproval of dangerous conduct which results in the loss of human life. Such conduct not only harms the innocent victims, it harms the community as a whole.
Less significant but still necessary in your case is the need for my sentence to specifically deter you from driving irresponsibly again and to protect the community.
Your continued rehabilitation is also important. Indeed, it is the best way to protect the community. I intend to allow for your rehabilitation by setting as low a non-parole period as possible consonant with the seriousness of your crime.
Finally, my sentence must be just and take into account the mitigating factors I have outlined in detail.
Nothing I say or do can bring back Mrs Barnes or alleviate the pain and suffering of her friends and family. I cannot undo what happened that day. The sentence I impose is not to be taken as a measure of Mrs Barnes’ life, it is not. Her life was precious and no value can be placed on it. Rather, my duty is to impose an appropriate and just sentence at law taking into account all relevant matters and the applicable sentencing practices…[37]
[37]Reasons, [85]–[92] (citations omitted).
For those reasons, the judge imposed the sentence that Ms Ritchie now seeks to appeal.
Appeal against sentence on the ground of manifest excess
Ms Ritchie seeks leave to appeal her sentence on the following ground:
In all the circumstances, and when regard is had to:
a) the applicant’s plea of guilty, its timing and inherent utility;
b) the applicant’s demonstrated remorse;
c)significant rehabilitative steps taken by the applicant since the offending;
e) the objective gravity of the offending and current sentencing practices;
the sentence imposed on charge 1 was productive of a total effective sentence and non-parole period which is manifestly excessive.
To succeed on this ground, Ms Ritchie must demonstrate that the sentence was wholly outside the range of sentencing options available to the judge. In other words, it must be shown that the sentencing conclusion reached by the judge was not reasonably open, if proper weight had been given to all the relevant circumstances of the offending and the offender. This is a stringent test. It is not enough that the appellate judges might have imposed a different sentence, or consider the sentence imposed to be stern. Sentencing is primarily the task of judges and magistrates; it is only to be undertaken by an appellate court when clear error has been shown at first instance.[38]
[38]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA, Weinberg JA agreeing at [38]); Papagelou v The Queen (2022) 99 MVR 232, 240 [30] (Priest and T Forrest JJA); [2022] VSCA 53.
Before turning to the arguments put by Ms Ritchie in support of this ground of appeal, it is convenient to make some general observations about the determination of an appropriate sentence for the offence of dangerous driving causing death.
The maximum penalty for the offence is 10 years’ imprisonment, which indicates that the legislature regards it as a serious offence. Since 2018, it has also been a ‘category 2 offence’ for the purposes of the Sentencing Act 1991 (‘Sentencing Act’).[39] That means that the sentencing court must impose a custodial sentence, unless one of the limited exceptions in s 5(2H) of the Sentencing Act applies. Independently of that amendment, in 2016 this Court identified a need to increase the sentences imposed for cases of dangerous driving causing death within or above the mid-category of seriousness.[40]
[39]Sentencing Act, s 3(1) (definition of ‘category 2 offence’, para (eb)).
[40]Stephens (2016) 50 VR 740, 748 [33] (Redlich, Santamaria and Beach JJA); [2016] VSCA 121.
The offence of dangerous driving causing death encompasses a very wide range of conduct, and appropriate sentences vary accordingly. Key considerations in determining the appropriate sentence in a particular case are the dangerousness of the driving that caused death and the offender’s moral culpability.[41] Both dangerousness and moral culpability ‘fall to be assessed by reference to all of the conduct and circumstances of the specific case, including the circumstances of the offender’, and not by reference to a checklist of aggravating factors that may or may not be present.[42]
[41]DPP v Neethling (2009) 22 VR 466, 473 [33], 474 [38] (Maxwell P, Vincent JA and Hargrave AJA); [2009] VSCA 116; Stephens (2016) 50 VR 740, 745–6 [21]–[26] (Redlich, Santamaria and Beach JJA); [2016] VSCA 121; Woldesilassie v The Queen (2018) 86 MVR 414, 420–1 [21]–[26] (Maxwell P and Kaye JA); [2018] VSCA 285.
[42]Stephens (2016) 50 VR 740, [25]–[26] (Redlich, Santamaria and Beach JJA); [2016] VSCA 121.
Ms Ritchie argued that the judge did not give sufficient weight to a number of mitigating circumstances. I will consider each of those circumstances in turn, before reaching a conclusion as to whether the sentence imposed by the judge was not reasonably open.
Plea of guilty
Ms Ritchie noted that she had offered to plead guilty to dangerous driving causing death before the committal mention, but that the offer was rejected by the prosecution in favour of proceeding with a charge of culpable driving causing death.[43] A contested committal was held, at which the sole issue was the role that the methylamphetamine had on Ms Ritchie’s capacity to drive. After the committal, the prosecution and defence experts reached the joint position set out at [11] above. The matter then resolved to a plea of guilty to the offence of dangerous driving causing death. The judge noted that this resolution took place just as the trial for culpable driving was due to start.[44]
[43]Contrary to s 318 of the Crimes Act 1958. The maximum penalty for culpable driving causing death is 20 years’ imprisonment, and the standard sentence for the offence is 8 years.
[44]Reasons, [10].
Although the judge found that the plea was early, had real utilitarian value and entitled her to a significant discount, Ms Ritchie submitted that these findings were not manifested in the ultimate sentence.
Consideration
No specific error was said to have affected the judge’s consideration of Ms Ritchie’s plea of guilty. In keeping with the parties’ agreed position on the plea, the judge accepted that Ms Ritchie was entitled to a significant discount for her early plea of guilty, by which she ‘facilitated the course of justice and took legal responsibility for [her] crimes’.[45]
[45]Reasons, [67]–[68].
Remorse
Ms Ritchie submitted that, from the moment of the collision, she had expressed real and genuine remorse. In addition to her early offer to plead guilty to dangerous driving causing death, she had accepted responsibility for Mrs Barnes’s death. She had apologised during her record of interview and subsequently, including in a letter to Mrs Barnes’s family that was tendered on the plea.
Ms Ritchie said that, while the judge found that her expressions of remorse were genuine, she had tempered that finding by referring to the temporary spike in drug use immediately following the collision. Ms Ritchie submitted that the best evidence of her remorse was her unwavering acceptance of responsibility, the genuine apology offered to the grieving family, and her demonstrated commitment to remain abstinent.
Consideration
The judge accepted that Ms Ritchie’s plea of guilty was accompanied by genuine remorse, which entitled her to ‘an even greater discount’,[46] and made the additional findings set out at [22] above. It is true that the judge also expressed concern that, despite Ms Ritchie’s expressions of remorse, she continued to use drugs for a time after the offending. In my view, that concern was open on the evidence, and reasonable in the circumstances.
[46]Reasons, [68].
On 1 February 2022, Ms Ritchie tested positive for amphetamine, methamphetamine, MDA, and ecstasy. This was just over a month after the collision, despite bail conditions that that she not possess or use a drug of dependence. As a result of the positive drug test, Ms Ritchie’s daughter was temporarily removed from her care. It was this event that provided the impetus for Ms Ritchie to stop using drugs, and she voluntarily entered a residential rehabilitation program on 14 February 2022.[47]
[47]Reasons, [30]–[32].
As the judge observed, one would have hoped that the experience of causing Mrs Barnes’s death by drug-affected driving would have been enough to convince Ms Ritchie to stop using drugs.[48] It was not. While Ms Ritchie’s resort to drugs in the aftermath of the accident may have been understandable, it also diminished her expressions of remorse.
[48]Reasons, [30].
Prospects of rehabilitation
Ms Ritchie drew attention to the significant rehabilitation that she had undertaken between the offending and the plea. She referred to the following evidence on which she had relied:
(a)a psychological report of Dr Linda Borg dated 11 October 2023, and an addendum report dated 30 October 2023;
(b)a letter from Clint Hyett, the manager of the Hader Clinic, dated 3 June 2022; and
(c)a letter from Jackie Paisley, family reunification clinician with Taskforce, dated 30 November 2022.
All of these reports confirmed Ms Ritchie’s successful completion of the initial rehabilitation program, and her abstinence since that time. She emphasised that she had engaged fully in the program, been a positive role model for others, and sought assistance to avoid relapse when she felt her resolve slipping.
Significantly, Ms Ritchie voluntarily returned to the rehabilitation clinic in late 2022, because she was finding it difficult to abstain. She submitted that the judge had placed insufficient weight on this conscious choice to seek help to avoid relapse.
As to Ms Ritchie’s prior criminal history, she characterised this as both minor and entirely unrelated to the offending for which she fell to be sentenced.
Overall, Ms Ritchie submitted that the judge had permitted her drug history and limited criminal and traffic history to overwhelm the sentencing discretion, notwithstanding the excellent progress she has made in addressing her underlying drug abuse issues.
Consideration
No direct challenge was made to the judge’s finding that, taking into account Ms Ritchie’s protective and risk factors, her prospects of rehabilitation were reasonable to good. In my view, that cautiously optimistic finding was open on the evidence before the judge. The evidence certainly did not compel a finding that Ms Ritchie had excellent prospects of rehabilitation.
Looking first at Ms Ritchie’s prior criminal history, I do not accept that it could all be dismissed as entirely unrelated to her dangerous driving on 30 December 2021. On 1 March 2018, Ms Ritchie received a six month good behaviour bond for driving while her authorisation was suspended. On 27 June 2019, she was dealt with again for two more instances of the same offence, and for driving while disqualified. On that occasion, she was sentenced without conviction to a 12 month community corrections order with 50 hours of unpaid community work. On 28 February 2020, she was fined for a breach of that community corrections order. All of these offences related to Ms Ritchie’s driving. While the circumstances that led to her driver’s licence being suspended were not before the judge or this Court, they clearly amounted to more than the occasional minor infringement.
I consider that the judge was justified in finding that this history ‘hardly instils confidence’.[49] In Ms Ritchie’s favour, the judge refrained from finding that her history of driving offences demonstrated an attitude of continued disobedience to the law, although that finding would have been open on the evidence.
[49]Reasons, [75].
Of more concern was Ms Ritchie’s significant drug use before the collision, which increased for a short time afterwards. Her rehabilitation and abstinence between February 2022 and the plea in November 2023 were impressive, and were credited by the judge several times in her sentencing reasons.[50] However, it was also fair to observe that there was ‘still a long way to go’ and that it remained to be seen whether Ms Ritchie would be able to maintain her commitment to remain drug free.[51]
[50]Reasons, [31]–[35], [69], [75].
[51]Reasons, [69], [75].
Objective gravity of offending
On the plea, counsel for Ms Ritchie accepted that the offending fell in the mid-range of seriousness for the offence of dangerous driving causing death, and that a custodial sentence was required. She maintained this position on the application for leave to appeal, on the basis that:
(a)the presence of a high level of methylamphetamine in her system was an aggravating feature of the offending; and
(b)it was not a case of momentary inattention.
However, Ms Ritchie submitted that other significant aggravating factors were absent in this case, which was critical in assessing the objective gravity of the offending.
Consideration
The judge’s findings in relation to the objective gravity of the offending are set out at [18] above. Ms Ritchie did not directly challenge the judge’s finding that the offending was above the mid-range on the spectrum of seriousness for the offence. I agree with the judge that the high level of methylamphetamine in Ms Ritchie’s system at the time of the collision elevated the seriousness of the offending above the mid-range.
Contrary to Ms Ritchie’s submission, there were other features of her offending that elevated the seriousness of her dangerous driving. As the judge remarked, this was not a case of simple inattention or misjudgement.[52] Ms Ritchie searched in three separate places for the asthma puffer, taking her eyes off the road and leaning over to the passenger side to look in her handbag and in the glovebox. She did so in a narrow residential street where she had seen pedestrians, and where she could easily have pulled over. In addition, the fact that Ms Ritchie’s five year old daughter was a passenger in the car was a significant matter.
[52]Reasons, [51], set out a [18] above.
It is trite that moral culpability for an offence is not to be assessed by identifying aggravating features that could have been present but were not; the seriousness of offending must be assessed by reference to all of the conduct and circumstances of the particular case.[53] The judge’s approach to assessing the seriousness of the offending conduct was consistent with authority and has not been shown to be wrong.
[53]Stephens (2016) 50 VR 740, 747 [26] (Redlich, Santamaria and Beach JJA); [2016] VSCA 121.
Current sentencing practices
Ms Ritchie identified five authorities that, in her submission, demonstrated that the total effective sentence and the non-parole period imposed by the judge were outside the range of acceptable sentences. Those authorities all involved sentences for dangerous driving causing death, as follows:
(a)Director of Public Prosecutions v Browne (‘Browne’)[54]
The respondent drove his off-road buggy in a paddock, with his sister and his two year old son as passengers. His son was not wearing a seatbelt, and no one was wearing a helmet. After the respondent had performed several ‘doughnuts’, the buggy overturned, the respondent’s son was crushed and killed, and his sister was injured. The respondent was 31 at the time of the offending, and had no criminal history. There were numerous mitigating factors, including the respondent’s guilty plea, immediate cooperation with police, overwhelming remorse, excellent prospects of rehabilitation, and completion of 64% of the required community work. The sentencing judge imposed a community corrections order with 250 hours of unpaid community work. The Court of Appeal set aside that sentence and resentenced the respondent to 15 months’ imprisonment with a non-parole period of 6 months.
(b)Director of Public Prosecutions v Harvey (‘Harvey’)[55]
The respondent was a 53 year old truck driver employed by a waste management company. While driving a heavy truck on a highway, he collided with a cyclist, who was killed. Aggravating factors were that the respondent drove the truck at speed while sleep deprived and adversely affected by an illicit drug. Mitigating factors were a guilty plea, albeit not early, and a degree of remorse. The Court of Appeal set aside the sentence imposed by the primary judge and imposed a sentence of 3 years and 6 months’ imprisonment, with a non-parole period of 21 months.
(c)Younis v The King (‘Younis’)[56]
The applicant entered an intersection at excessive speed against a red light. A second vehicle collided with the applicant’s vehicle, and a passenger in the applicant’s vehicle was killed. Mitigating factors were the applicant’s guilty plea and his reduced moral culpability in comparison to the driver of the second vehicle. The applicant was sentenced to 1 year and 10 months’ imprisonment, with a non-parole period of 11 months. The Court of Appeal dismissed an application for leave to appeal against sentence.
(d)Director of Public Prosecutions v Ziro (‘Ziro’)[57]
The defendant was the driver of the second vehicle in Younis. He was 18 years old, a probationary driver, and had been drinking alcohol. He entered the intersection at excessive speed from a right turn only lane, swerving around a stationary car to do so. His vehicle collided with the vehicle driven by Mr Younis, killing a passenger in that vehicle. Mitigating factors were the defendant’s youth and immaturity and his early guilty plea. A subsequent traffic infringement cast doubt on the genuineness of his remorse and his prospects of rehabilitation. He was sentenced in the County Court to 2 years and 2 months’ imprisonment, with a non-parole period of 14 months.
(e)Hall v The King (‘Hall’)[58]
The applicant was driving on an undivided highway when she drove into the rear of another vehicle that had just commenced a right hand turn off the highway. The driver of the second vehicle died of head injuries at the scene. The applicant had been distracted by her mobile phone, with data analysis indicating that shortly before the collision she had sent a text and opened and closed Instagram. Mitigating factors were the applicant’s early plea of guilty, her genuine and profound remorse, her excellent prospects of rehabilitation, and the effect of her own and her husband’s fragile mental health on her experience of imprisonment. The applicant was sentenced to 3 years and 4 months’ imprisonment, with a non-parole period of 2 years. The Court of Appeal refused leave to appeal against sentence.
[54](2023) 103 MVR 226; [2023] VSCA 13 (‘Browne’).
[55](2023) 105 MVR 373; [2023] VSCA 234 (‘Harvey’).
[56](2024) 107 MVR 139; [2024] VSCA 64 (‘Younis’).
[57][2021] VCC 1187 (‘Ziro’).
[58][2024] VSCA 255 (‘Hall’).
Ms Ritchie accepted that the sentences imposed in these cases are not precedents, but said that they could assist in assessing where an offence falls on a spectrum of offending. She submitted that, when compared with other cases of objectively more serious offending, the sentence imposed in her case invited scrutiny.
Consideration
Section 5(2)(b) of the Sentencing Act requires a court to have regard to current sentencing practices, as one of the mandatory considerations to be taken into account in sentencing an offender. Current sentencing practices are one of many factors relevant to the sentencing discretion; they are not the controlling factor.[59] Comparable sentences are not precedents, and do not set boundaries on the sentence that a court may reasonably impose. Rather, they are a measure that informs the range of sentences that would achieve consistency in sentencing.[60]
[59]Sentencing Act, s 5(2); DPP v Dalgliesh (2017) 262 CLR 428, 434 [9], 444 [48] (Kiefel CJ, Bell and Keane JJ), 453 [82] (Gageler and Gordon JJ); [2017] HCA 41 (‘Dalgliesh’).
[60]R v Kilic (2016) 259 CLR 256, 267–8 [22]–[24] (Bell, Gageler, Keane, Nettle and Gordon JJ); [2016] HCA 48; Dalgliesh (2017) 262 CLR 428, 444–5 [50] (Kiefel CJ, Bell and Keane JJ), 453 [83] (Gageler and Gordon JJ); [2017] HCA 41.
The comparable sentences referred to by Ms Ritchie did not support her contention that the sentence imposed on her was outside the acceptable range for her offending. Of the cases referred to, Harvey and Hall involved sentences similar to that imposed on Ms Ritchie. Browne had unique features that meant it was of little, if any, assistance as a comparator.[61] The remaining two cases, Younis and Ziro, concerned two dangerous drivers who shared responsibility for the tragic consequences of their collision, in circumstances not readily comparable with this case.
[61]Browne (2023) 103 MVR 226, 248 [103] (Kyrou, T Forrest and Kennedy JJA); [2023] VSCA 13.
In addition, the sentencing judge was referred to a number of other sentences imposed for the offence of dangerous driving causing death, which indicated that the sentence imposed on Ms Ritchie was within a range that was consistent with current sentencing practices.[62]
[62]DPP v Stubbs [2017] VCC 1000; DPP v Elliott [2017] VCC 282; DPP v Weybury (2018) 84 MVR 153; [2018] VSCA 120; Woldesilassie v The Queen (2018) 86 MVR 414; [2018] VSCA 285; Peers v The Queen (2021) 97 MVR 379; [2021] VSCA 264; Hague v The Queen (2022) 98 MVR 503; [2022] VSCA 17.
Conclusion
Of course, the matters raised for consideration by Ms Ritchie were not the only matters that the judge had to take into account in determining the appropriate sentence for the offence. Deterrence, denunciation, and protection of the community were all significant factors in this case, and the judge correctly brought them into account in exercising the sentencing discretion.[63]
[63]Reasons, [85]–[91], set out at [277] above.
Overall, I am not persuaded that the sentence was wholly outside the range of sentencing options available to the judge. I consider that the sentence was reasonably open in all the circumstances of this case, in particular the judge’s unchallenged finding that the offending was above the mid-range on the spectrum of seriousness for the offence. I would therefore refuse the application for leave to appeal.
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