Azzopardi v The Queen [2017] VSCA 299 (19 October 2017)

Last Updated: 19 October 2017

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0157

BRADLEY JOHN AZZOPARDI	Applicant
v
THE QUEEN	Respondent

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JUDGE:	SANTAMARIA JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	19 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 299
JUDGMENT APPEALED FROM:	[2017] VCC 861 (Judge Mullaly)

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

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CRIMINAL LAW – Application for leave to appeal against sentence – Dangerous driving causing death – Failure to stop after accident – Three summary charges – Where vehicle driven by applicant collided with cyclist – Sentence of 7 years and 9 months’ imprisonment with non-parole period of 6 years and 9 months – Whether sentence manifestly excessive – Whether non-parole period disproportionate – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
On the papers

SANTAMARIA JA:

1 The applicant, now aged 26, pleaded guilty to one charge of dangerous driving causing death, one charge of failing to stop after an accident and three summary charges. On 26 June 2017, he was sentenced in the County Court as follows:

Charge on indictment	Offence	Maximum penalty	Sentence	Cumulation
1	Dangerous driving causing death [Crimes Act 1958 s 319(1)]	10 years’ imprisonment	5 years’ imprisonment	Base
2	Failure to stop after accident [Road Safety Act 1986 s 61(1)(a)]	10 years’ imprisonment	4 years’ imprisonment	2 years and 6 months
Summary charges
9	Drive while disqualified [Road Safety Act 1986 s 30]	240 penalty units or 2 years’ imprisonment	6 months’ imprisonment	3 months
10	Resist arrest [Summary Offences Act 1966 s 51]	60 penalty units or 6 months’ imprisonment	2 months’ imprisonment	1 month
16	Possess cartridge ammunition [Firearms Act 1996 s 124]	40 penalty units	$300.00 fine	N/A
Total effective sentence:		7 years and 9 months’ imprisonment
Non-parole period:		6 years and 9 months’ imprisonment
Pre-sentence detention declaration		170 days
Section 6AAA Statement		10 years’ imprisonment with non-parole period of 8 years’ imprisonment
Other relevant orders		Disposal order and forfeiture order

2 The applicant now seeks leave to appeal his sentence.

Circumstances of the offending

3 At the time of the offending, the applicant was a disqualified probationary driver.

4 On 10 May 2015, the applicant drove to his parents’ home in Anakie. He arrived at around 11:30 am and left shortly before 2:00 pm. He drove south on the Geelong-Ballan Road.

5 The victim, Gordon Ibbs, then aged 77, had been riding his bicycle in Anakie. At some stage, he rode from Carrs Road and turned south onto the Geelong-Ballan Road.

6 Ibbs had travelled approximately 30 metres on the Geelong-Ballan Road when the car driven by the applicant, which had been travelling in the same direction as the victim, approached Ibbs and struck his bicycle with the front left headlight area. The impact sent Ibbs flying into the air, almost 40 metres forward of the impact zone. The applicant had failed to take any evasive action before the collision and failed to stop at the scene. He continued driving south towards Lovely Banks and Corio.

7 Other witnesses to the collision, including a qualified nurse, had stopped to assist Ibbs. The nurse’s assessment was that Ibbs had died instantly.

8 An autopsy found that Ibbs suffered extensive trauma to the head, torso and extremities with multiple cranial fractures and a dissociation of the cervical spine. He had multiple rib fractures and a partial amputation of the lower right leg. The cause of death was the multiple injuries that he had sustained after the collision.

9 An investigation later established that, at the time of the collision, the applicant’s vehicle was travelling between 77 kilometres per hour and 100 kilometres per hour. Investigators located a scuff mark some 28 centimetres inside the fog line in the south bound lane; the scuff mark was caused by the bicycle tyre sliding on the road surface when it was struck. Debris recovered from the scene identified the parts as coming from a car that matched the description of the car that the applicant had been driving.

10 After the collision, the applicant drove directly to a friend’s property in Lovely Banks. His car was extensively damaged from the collision. The applicant told his friend that he thought that he had hit someone. He thought that a police helicopter had been circling the vicinity. The applicant and his friend attempted to conceal the car. Later, the car had been taken to a remote place, set on fire and destroyed.

11 Some six months later, on 23 November 2015, the applicant was arrested outside the Geelong Magistrates’ Court. As he was being led to the police station, he began to stand rigid, twisting and struggling with police while spitting and swearing. The struggle called for four police officers to drag and coax the applicant to the police station.^[1] During his police interview, the applicant declined to comment on the incident involving Ibbs.

12 Police later executed a search warrant at the applicant’s premises. They seized a box containing 25 nine-pellet shot gun cartridges and six solid Winchester X shotgun cartridges, which were found in a bedside drawer in a caravan that had been previously occupied by the applicant.^[2]

Personal circumstances of the applicant

13 The applicant was 24 at the time of the offending. He has a younger sister. Both the applicant and his sister were raised by their parents, who support the applicant.

14 The applicant suffers from an eye disease known as keratoconus. He had known of his deteriorating eyesight since 2014. The sentencing judge made extensive reference to the applicant’s poor eyesight, which is summarised below.

15 The applicant had attended a number of primary schools, but struggled both academically and socially. He left school illiterate at the age of 14. The sentencing judge said that the applicant ‘did much better’ after leaving school.^[3] The applicant participated in a programme called ‘Hand Brake Turn’, which helps troubled young men by teaching and encouraging them in all manner of automotive trades. The applicant was described as a good mechanic, and he held a good job as a mechanic for four years.^[4] Because of his illiteracy, the applicant could not or did not feel that he could complete the theoretical components of an apprenticeship, so he did not secure a formal qualification.^[5]

16 The applicant later worked for a relative for a number of years as a nurseryman. He also worked at a local abattoir and had a promising career as an amateur boxer, but his eyesight problem brought that to an end.

17 The applicant has a prior criminal history involving a number of driving offences and trafficking in a drug of dependence.

Sentencing remarks

18 The sentencing judge opened his remarks by describing Ibbs and the impact of his death on his family. He said:

Gordon Ibbs was much loved. He was on all accounts, a thoroughly decent man. In a life well lived, he was a truly dedicated and loving husband, and a caring and engaged father. A picture of Gordon Ibbs given by his wife, his daughter and his elderly sister in their victim impact statements, makes it clear that to Gordon Ibbs, his family meant everything to him.

His other love was riding his bike. He was still an active cyclist at aged 77. On 10 May 2015, Mother’s Day, he set out for a ride, but he never came home. Gordon Ibbs, like all cyclists and all road users, was entitled to believe that everyone else on the road would act responsibly, safely and show proper regard for their fellow citizens.

You, Bradly Azzopardi, fell well below the standards expected of drivers. On 10 May 2015, you chose to drive from your parents’ home in Anakie, towards where you were living in the northern suburbs of Geelong ...^[6]

19 The sentencing judge then said that the applicant had chosen to drive in circumstances where he presented a serious risk to other road users by his impaired vision.^[7] Having referred to the applicant’s eye disease, the judge said that the applicant had attended two appointments in respect of his condition. He said:

You had seen specialists at the Eye and Ear Hospital on 31 March 2015. You had attended an appointment with specialist optometrists at the Australian College of Optometry on 30 April 2015, for the purpose of getting special corrective lenses. This was less than ten days before you killed Gordon Ibbs.

The specialists at both clinics asked you about driving, to which you responded that you had lost your licence for three years. This was not true. While you had lost your licence, the disqualification was for 12 months from October 2014. You went onto tell the clinicians that in effect, as a consequence, you did not drive. In terms of what you did a short while later, this was not true either.^[8]

20 The sentencing judge turned to the applicant’s prior criminal history, which involves a number of driving offences. The judge said:

In fact, you had already displayed a complete distain [sic] for orders that you were not to drive. It seems that whatever licence you had was suspended at a point sometime prior to 23 January 2014. Notwithstanding that suspension you drove and on 23 January 2014, you appeared at the Magistrates’ Court at Geelong on two charges of drive while suspended. This resulted in a court ordered suspension of your licence for two months from 24 April 2014.

You were back before the Magistrates’ Court three weeks later on 10 February 2014 for a further charge of drive while suspended. These court appearances and orders for you not to drive had little if any impact on your behaviour, as you were back before the Magistrates’ Court on 20 October 2014 for two more offences for drive while suspended. As well as one charge of careless driving, and one charge of driving over 100 kilometres in a 60 kilometre zone.

The magistrate sentenced you to two months imprisonment, but mercifully to you, suspended that sentence for a period of 12 months. Importantly, the magistrate cancelled any licence you had and disqualified you from driving for 12 months. Thus at the time of your driving which killed Gordon Ibbs, you were disqualified from driving and you were on a suspended gaol term for similar offending ...^[9]

21 The sentencing judge returned to the topic of the applicant’s eye disease and his attempts to treat his condition following the incident involving Ibbs. The judge said:

It is of note, it was shortly after your driving on 10 May 2015 that you re-attended the Eye Clinic and over the next three months, you appeared to have secured the appropriate hard lens needed to overcome your poor eyesight. The evidence from the eye specialist was that your eyesight was inadequate for driving before the corrective lenses were fitted. You were aware of your significant visual difficulties that led you to see the specialist in Melbourne and ultimately, too late for Gordon Ibbs, to get the appropriate lenses.

Thus, you drove on 10 May 2015, knowing of your poor eyesight ...^[10]

22 The sentencing judge added that the applicant drove also knowing that it was illegal for him to drive at all and that to do so would breach a suspended gaol sentence that had been imposed for illegal driving in the past.^[11]

23 The sentencing judge drew attention to the applicant’s conduct after the collision. He said:

Unfortunately, for the family and for you, your criminality did not stop there. You simply kept driving, not stopping as any decent person would. There can be no other conclusion that you knew immediately that you had hit someone and at the very least, you had caused serious injury. You did not stop as the law requires, but drove off and then set about considerable efforts to hide the fact, that you were the driver that had killed Gordon Ibbs. You learned quickly that Mr Ibbs had died. This fact and with some time to reflect, did not see you come forward. On the contrary, your car was taken to a remote place, set on fire and destroyed.^[12]

24 The sentencing judge said that the gravity of the offending and moral culpability are central to the sentencing process for the offence of dangerous driving causing death.^[13] In assessing these matters, the judge said that he was guided by the principles expressed by the Court of Appeal in the DPP v Neethling^[14] and Stephens v The Queen.^[15] He considered these matters in some detail, as is evident from the following passages:

What is immediately apparent is that by reason of the particular circumstances, some instances of this offence may be more or less serious than others. The absence of some all too common aggravating circumstances such as the excessive speed, alcohol or drugs, at a level that impairs driving, or aggressive driving or driving while fatigue, I do not necessarily render a particular example of dangerous driving causing death as not serious, or less serious, than those offences involving such features.

As was said by the Court of Appeal in Stevens [sic]:

‘Moral culpability in respect to criminal conduct, does not fall to be assessed simply by identifying aggravating features that could have been present and then asserting that the case under consideration cannot be regarded as serious or very serious because of the absence of some of those factors. Both the 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 offending.’

What was said in Neethling was that various criteria, earlier identified in a number of appellate decisions in New South Wales, were applicable to the sentencing task in Victoria. However, in Stevens [sic], the court made clear that these were not to be seen as some simply [sic] checklist, nor an exhausted [sic] list. That said, of the eleven matters set out in those decisions, the following are relevant here.

Firstly, the number of persons put at risk, which in this case must be all road users in your vicinity for the time that you drove. Secondly, the length of time that others were put at risk, which in this case is significant, given how far you had driven. Most particularly from Anakie to the site of the collision with Mr Ibbs.

Thirdly, the ignoring of warnings, which in your case were the self-evident propositions that your eyesight was poor ... Your failure to stop is also a factor set out in the appellant decisions which can add to the gravity and moral culpability. But as I must sentence you for that separate crime, I will vigilantly ensure that you do not suffer double punishment for this conduct.

Also, as is the case generally in sentencing, prior relevant criminal conduct can add to the gravity of the offending. Here you had consistently showed contempt for orders of the court not to drive, unless you are authorised to do so. The appellate courts in New South Wales identified that the presence of some of these criteria could lead to a conclusion that the driver had in effect abandoned responsibility. This concept was adopted in Neethling and spoken of in terms that abandonment of responsibility could occur in a moment, such as the illegal and risky overtaking manoeuvre that was undertaken by the inexperienced driver, Mr Neethling.

Here in my view, you abandoned your responsibility as that phrase is used in the cases I have mentioned. But yours was not a momentary matter, some ill-considered lapse. Yours was a deliberate conscious decision to drive in circumstances where you knew you could not see sufficiently well enough to drive safely. Your decision to drive in all the circumstances was an egregious one.

Prosecution brought to my attention the Court of Appeal decision in Harris v R. In that matter the accused pleaded guilty to negligently causing serious injury, where the danger involved in the driving was that the accused had a risk of an epileptic fit. The Court of Appeal in considering the gravity of the offence and the accused moral culpability concluded that:

‘The risks associated with driving in that condition significantly increases his moral culpability. The Sentencing Judge in careful reasons, rightly concluded that this was an aggravating circumstance that increased the objective gravity of the offending conduct’.

Your counsel argued there were more serious aspects of Harris’ conduct involving deceptions to enable him to drive with his condition. While that may be so, the point is not whether the conduct in Harris was more serious than in this case. Rather that, in knowingly driving in all the circumstances of your inadequate eyesight, that is a matter I can and should see as elevating your moral culpability and the objective gravity of your crime.

Taking into account all the circumstances, together with all the submissions made on the point, in my view, yours is a particularly serious example, of the offence of dangerous driving causing death. As your counsel pointed out ... this was a case where the dangerous driving was particularised as driving where your eyesight was impaired to the point where you struck a cyclist who was visible.

In these circumstances, if it be necessary, given that your plead is an admission of the elements, I make it clear that on all the evidence, including that of the eye clinic specialist, Dr Bruce,^[16] I am satisfied to the criminal standard, that is, I am satisfied beyond reasonable doubt that you drove knowing your eyesight was inadequate to enable you to drive in a safe manner, and that to do so, was to drive in a manner dangerous to the public.

Based on all the matters set out above, I have come to the conclusion that your moral culpability for the crime of dangerous driving cause death was especially high. Nothing of moment in respect of the circumstances of the offence was put forward, nor could there be, to mitigate the high moral culpability involved.

The consequence of my assessment of the gravity and moral culpability is that yours is plainly one of those cases, squarely to be considered in the terms set out by the Court of Appeal in the recent case of Stevens [sic]. There the assessment and view of the court was that:

‘The sentencing practice for serious examples of dangerous driving cause death is inadequate and need to be uplifted’.

I must separately consider the gravity and moral culpability of your crime of failing to stop. In my view, the seriousness of simply continuing to drive so as to avoid your responsibilities, knowing that you had collided with a cyclist at high speed is grave offending.

Also, your failure to stop displayed especially high moral culpability. It was reprehensible and callous behaviour. The fact that, as it turned out, there was nothing that could be done for Mr Ibbs is not a matter of mitigation, but more the absence of an aggravation.^[17]

25 The sentencing judge referred extensively to the victim impact statements that had been prepared by Ibbs’ wife, daughter and elderly sister.^[18] He described the impact upon Ibbs’ immediate family of the applicant’s offending as ‘immense’.^[19]

26 The sentencing judge turned to the applicant’s personal circumstances, which are set out above.^[20] He described the applicant’s work history as ‘solid’ and took into account a favourable reference prepared by the applicant’s uncle,^[21] with whom the applicant had worked as a nurseryman.

27 The sentencing judge also noted that the applicant had pleaded guilty almost two years after the day of the incident involving the victim.^[22] The judge said that the applicant was entitled to a discount for his plea of guilty. However, he added:

Save for the plea of guilty being of itself an expression of remorse, nothing was said or put forward evidencing your remorse. Often remorse is a very prominent feature of cases such as these, and accordingly, sentences are set taking into account the extent of expressed remorse.

It is seen as important in the sentencing mix, both as an appropriate and pathetic [sic] response to the death of a fellow citizen and also as a solid foundation, or indicator, of the offender’s prospects of rehabilitation. In your case, the absence of explicit remorse does not aggravate, but you do not have in your favour, the considerable mitigatory [sic] benefit of genuine remorse.

Our community can often better understand a court extending some mercy, if the offender has made a terrible mistake on the road, taken a life. But the offender is immediately or shortly thereafter expressing appropriate and genuine remorse for what they have done.

Likewise, the community is more likely to endorse a measure of leniency if an offender has in the past, abided by the road rules. That is not the situation here. Your prior driving convictions are most concerning. Elevating the need for deterrence to you and the need to protect the community from you.

Your distain [sic] for court orders to prevent you driving is indicative of an emerging propensity to act as you please, irrespective of the consequences and the requirements of an ordered society, where we are all subject to important road rules. The fact that you committed these offences, including the offence of drive while disqualified, when subject of a suspended gaol sentence is particularly troubling.^[23]

28 In relation to the applicant’s personal circumstances, character and prospects for rehabilitation, the sentencing judge referred to the applicant’s conviction of trafficking in a drug of dependence, for which he was sentenced to two years and four months’ imprisonment with a non-parole period of one year and two months.^[24] Overall, the judge was guarded about the applicant’s prospects for rehabilitation.^[25] He referred to a report prepared in November 2015 by Mr Ian Joblin, a forensic psychologist, and said:

I note from the psychological report of Mr Joblin prepared in November in 2015, for another court hearing, he expresses concern at your admitted impulsive demonstrations of aggression, your various serious problems with binge drinking and Mr Joblin expressed an opinion in late 2015, as I have described, that you have ‘Very serious problems that certainly involve psychological factors’. He concluded, ‘Treatment is an imperative’. Unfortunately, there was no time for treatment as you were remanded in custody on 23 November 2015.^[26]

29 The sentencing judge took into account the principle of totality.^[27] He explained the relationship between the sentences that were to be imposed by him with those that had been previously imposed on the applicant:

I will ensure that my sentences do not operate in combination with the sentences that you are undergoing, so as to result in an overall period of imprisonment that is too severe and crushes your sense of hope and any prospects of reform.

I will fix, as I must, a new minimum non-parole period with these factors in mind. That said, your previous drug trafficking cannot simply be overlooked and simply be absorbed into this sentence. My duty is to ensure that the sentence I impose meets the sentencing purposes that are set out in the Sentencing Act.^[28]

30 The sentencing judge said that denunciation was the dominant purpose of sentencing in the present case.^[29] He discussed general and specific deterrence in the following terms:

Your appalling conduct has consequences and it is now that you must meet your just deserves [sic] in the form of a significant period of time in prison.

I must, by my sentence, also reaffirm for our community the importance of decent values. That is the value of a human life and that those who take a life by dangerous driving, and then try to avoid the consequences by failing to stop, will be sternly punished.

Further, I must, by my sentence, deter you from continuing to commit crimes in the future. Importantly, I must send a message to other road users that taking care is a duty and that all cyclists are entitled as any other road user, to be on the road and to enjoy our roads safely.

Cyclists are more vulnerable to death and injury than most other road users. Thus drivers must take special care to ensure that they are able to see cyclists, as you did not. Then move past them with care and responsibility. In your case, given the circumstances where you drove with inadequate vision, and given your prior driving history, I must also weigh into the mix your sentencing purpose of protection of the community. ^[30]

31 The sentencing judge concluded:

Your rehabilitation is not overlooked and I will allow for a period of potential parole. However, given the matters that I have spoken about, your rehabilitation must yield to the other sentencing purposes. I have, as I must consider the dreadful impact of your crimes on the victims [sic]. I have considered other sentences imposed for these crimes, including those referred to me by counsel.

With that said, I am required by the decision in Stevens [sic], to ensure as far as my sentence can do so, that there is an uplift in sentencing for serious examples of dangerous driving causing death, which this is. I must take into account the maximum term for the offences. As detailed in Stevens [sic], the maximum term for dangerous driving causing death was doubled to ten years. This expression by our Parliament of the greater seriousness of this crime, as was detailed in Stevens [sic], cannot be ignored.

The maximum term for failing to stop was increased in 2005 fivefold, from two years to ten years. The Court of Appeal in a number of cases have made it clear to Sentencing Judges that this offence with a ten year maximum, ought see the imposition of substantial terms of imprisonment.

In respect to the penalties handed down in other cases involving crimes of this nature, and taking into account consistency in sentencing, I confront the complication of your existing sentences, that in the end makes direct comparisons hard. I must also mark separately, your driving while disqualified and your violence in resisting arrest.

As I am about to announce the sentence, I pause to state what is perhaps obvious and that is, the length of the term of imprisonment that I am about to announce, is not to be taken as a measure of the value of the life of Gordon Ibbs. The value of his life, to those who cared for him, was and is immeasurable. My sentence is solely what I consider to be the punishment that is just and appropriate in all the circumstances.^[31]

Proposed grounds of appeal

32 The applicant has proposed the following two grounds of appeal:

Ground 1

(a) the individual sentences imposed on charges 1 and 2 are manifestly excessive;

(b) the order for cumulation of 30 months in relation to charge 2 resulted in a sentence that is manifestly excessive;

(c) the total effective sentence of 7 years and 9 months’ imprisonment is manifestly excessive;

(d) the non-parole period of 6 years and 9 months is manifestly excessive.

Ground 2

It is submitted that the learned trial judge [sic] erred in setting a non-parole period which is 87% of the head sentence, and failed to give reasons for doing so.

The applicant’s submissions

33 In relation to the proposed ground of manifest excess, the applicant contends that a sentence of five years’ imprisonment for the offence of dangerous driving causing death, in circumstances where the applicant has pleaded guilty, is plainly excessive. The applicant argues that this individual sentence is higher than any individual sentence for the offence of dangerous driving causing death that has been considered by the Court of Appeal since 2006.^[32] Many of the cases considered in the past involved drugs, alcohol, speed or a combination of all three factors. According to the applicant, the sentence imposed in the present case ‘is virtually unprecedented’. Moreover, the applicant contends that the sentence imposed on the charge of failing to stop after an accident is equal to the highest sentence of imprisonment imposed for this offence by the Court of Appeal in recent years.^[33]

34 In relation to the second proposed ground of appeal, the applicant contends that the non-parole period is disproportionate to the total effective sentence imposed by the sentencing judge.^[34] The applicant says that the sentencing judge did not give reasons for the non-parole period other than to express that he was guarded in relation to the applicant’s prospects of rehabilitation and that the applicant’s rehabilitation was ‘not overlooked’.^[35]

Analysis

35 The first proposed ground of appeal contends that (a) the individual sentences, (b) the order for cumulation, (c) the total effective sentence and (d) the non-parole period are manifestly excessive. To make good the ground of manifest excess, an applicant must demonstrate that the sentences imposed by the sentencing judge were wholly outside the permissible ranges of reasonable sentences.^[36] The question is not whether some other sentence could have been imposed.^[37] In Director of Public Prosecutions v Karazisis,^[38] Ashley, Redlich and Weinberg JJA said:

As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.^[39]

36 The conduct that resulted in the conviction for causing death by dangerous driving was objectively serious and the applicant’s moral culpability was high. The applicant was driving when, because of his eye condition, he should not have been driving; his eye condition made him a hazard to other road users, which always includes cyclists who are more vulnerable than most. His consciousness of the fact that he was dangerous to other road users is underscored by the lies that he told to various medical practitioners who sought to warn him that he should not be driving. It is also underscored by the repeated findings by various courts in the past that the applicant has driven whilst disqualified. On 10 May 2015, he was aware that he was driving whilst disqualified. The sentence was stern, but it was not wholly outside the range.

37 Similarly, the sentence imposed for charge 2 is not outside the range. The mere fact that a sentence is towards the upper end of the range does not mean that it falls outside the range. In the present case, the failure to stop and render assistance was calculated and callous. Consideration of both general and specific deterrence justifies the sentence that was imposed.

38 The contention that the sentencing judge erred in setting the non-parole period must also be rejected. The relevant comparison was not between the non-parole period and the total effective sentence that he had first imposed, but between the non-parole period and the combined sentences that the applicant was required to serve, which included not only the total effective sentence imposed by the sentencing judge, but also a sentence of two years and four months’ imprisonment that he was already serving for other offending.^[40]

Conclusion

39 I would refuse the application for leave to appeal against sentence.

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^[1] These acts formed the factual basis for the summary charge of resisting arrest.

^[2] These circumstances formed the factual basis for the summary charge of possessing cartridge ammunition without a licence.

^[3] DPP v Azzopardi [2017] VCC 861 [40] (‘Sentencing remarks’).

^[4] Ibid [40].

^[5] Ibid. The sentencing judge described the applicant’s illiteracy and inability to secure a formal qualification as ‘unfortunate’.

^[6] Ibid [1]–[3].

^[7] Ibid [3]–[4].

^[8] Ibid [5]–[6].

^[9] Ibid [7]–[9].

^[10] Ibid [10]–[11].

^[11] Ibid [11].

^[12] Ibid [12].

^[13] Ibid [15].

^[14] [2009] VSCA 116; (2009) 22 VR 466.

^[15] (2016) 76 MVR 90.

^[16] During the plea, counsel for the applicant referred to a report prepared by Mr Adrian Bruce, an optometrist at the Australian College of Optometry, which provided an assessment of the applicant’s eyesight. See Transcript of Plea, DPP v Azzopardi (County Court of Victoria, Judge Mulally, 21 June 2017). The sentencing judge made no reference elsewhere in his remarks to the report, and this Court has not been provided with a copy of that report.

^[17] Sentencing remarks [16]–[30].

^[18] Ibid [32]–[38].

^[19] Ibid [31].

^[20] See [13]–[17] above.

^[21] Sentencing remarks [41].

^[22] Ibid [13].

^[23] Ibid [42]–[46].

^[24] Ibid [47]–[48]. See DPP v Anderson; DPP v Azzopardi [2016] VCC 2071 (Judge McInerney).

^[25] Sentencing remarks [49].

^[26] Ibid.

^[27] Ibid [50].

^[28] Ibid [52]–[53].

^[29] Ibid [54].

^[30] Ibid [54]–[57].

^[31] Ibid [58]–[62].

^[32] The applicant refers to Judicial College of Victoria, Victorian Sentencing Manual (at 15 September 2017) 28 Culpable driving and dangerous driving, ‘VSCA summaries – dangerous driving 2013 to present’ [28.14.2.2].

^[33] The applicant refers to Judicial College of Victoria, Victorian Sentencing Manual (at 15 September 2017) 28 Culpable driving and dangerous driving, ‘VSCA summaries – failing to stop after an accident’ [28.14.3.1].

^[34] In support of this proposition, the applicant cites Diver v The Queen [2010] VSCA 254, in which this Court said (at [32]): ‘It is true that there is no ‘normal or usual’ period of parole. Even so, this Court has on occasions been prepared to conclude that a non-parole period is proportionately so great – and in that sense ‘unusual’ – as to indicate, particularly in the absence of judicial explanation, that something went wrong in the sentencing exercise.’

^[35] Sentencing remarks [49], [58].

^[36] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662–3 [127]; R v Boaza [1999] VSCA 126 [42].

^[37] R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306.

^[38] [2010] VSCA 350; (2010) 31 VR 634.

^[39] Ibid 662–3 [127] (citation omitted).

^[40] See [28] above. Sentencing Act 1991 s 14(1) provides: ‘If—(a) a court has sentenced an offender to be imprisoned in respect of an offence and has fixed a non-parole period in respect of the sentence; and (b) before the end of that non-parole period the offender is sentenced by a court to a further term of imprisonment in respect of which it proposes to fix a non-parole period— the court must fix a new single non-parole period in respect of all the sentences the offender is to serve or complete’. See R v Bortoli [2006] VSCA 62 [49] (Redlich AJA, with whom Maxwell P and Buchanan JA agreed).