DPP v Kenneison [2023] VSCA 321 (14 December 2023)

Last Updated: 18 December 2023

SUPREME COURT OF VICTORIA COURT OF APPEAL

S EAPCR 2023 0081

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
DANNY KENNEISON	Respondent

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JUDGES:	EMERTON P, PRIEST and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2023
DATE OF JUDGMENT:	14 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 321	First Revision: 18 December 2023
JUDGMENT APPEALED FROM:	DPP v Kenneison [2022] VCC 593 (Judge Chettle)

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CRIMINAL LAW – Crown appeal – Sentence – Two charges of dangerous driving causing death – Dangerous driving causing serious injury – Two charges of conduct endangering life – Respondent driver of truck with affixed concrete agitator – Momentarily distracted and failed to brake at traffic lights – Sentenced to three year community correction order – Whether sentencing judge erred in applying s 5(2H) Sentencing Act 1991 – Whether sentence manifestly inadequate – Whether residual discretion to not interfere with sentence should be exercised despite error – Appeal dismissed.

Sentencing Act 1991, s 5(2H); Criminal Procedure Act 2009, ss 287, 288.

DPP v Lombardo [2022] VSCA 204; (2022) 102 MVR 19; DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634 applied. Farmer v The Queen [2020] VSCA 140 discussed.

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Counsel
Appellant:			Ms EH Ruddle KC with Mr G Buchhorn
Respondent:			Mr DA Dann KC with Mr PJ Smallwood
Solicitors
Appellant:			Ms A Hogan, Solicitor for Public Prosecutions
Respondent:			SLKQ Lawyers

EMERTON P
PRIEST JA
TAYLOR JA:

Introduction and overview

1. On 30 March 2023, the respondent pleaded guilty in the County Court to two charges of dangerous driving causing death,^[1] one charge of dangerous driving causing serious injury^[2] and two charges of conduct endangering persons.^[3]
2. The maximum penalty for dangerous driving causing death is 10 years’ imprisonment. The maximum penalty for the offences of dangerous driving causing serious injury and conduct endangering persons is five years’ imprisonment.
3. Dangerous driving causing death, when committed by an adult, is a category 2 offence under the Sentencing Act 1991 (‘Act’).^[4]
4. In sentencing an offender for a category 2 offence, a court must impose a custodial sentence (other than a custodial sentence in combination with a community correction order (‘CCO’)) unless the factors in s 5(2H) of the Act apply. Relevantly, one such factor is where the offender has assisted or has given an undertaking to assist law enforcement authorities in the investigation or prosecution of an offence after sentencing.^[5] Another is where there are substantial and compelling circumstances that are exceptional and rare and that justify not imposing a custodial sentence.^[6]
5. On 14 April 2023, the respondent was sentenced to an aggregate three-year CCO in respect of all charges. The CCO required the completion of 300 hours of unpaid community work over the term of the order and imposed a treatment and rehabilitation condition. The respondent’s driver licence was also cancelled and he was disqualified from obtaining a further licence for a period of 18 months.^[7] The judge declared that but for the respondent’s plea of guilty,^[8] he would have been sentenced to two years’ imprisonment with a non‑parole period of 12 months.
6. The Director of Public Prosecutions (‘Director’) appeals the sentence on the following grounds:

Ground 1 – The learned sentencing judge erred in failing to apply s 5(2H) of the Sentencing Act 1991.

Ground 2 – The aggregate sentence imposed on all charges is manifestly inadequate.

7. For the reasons that follow, both grounds should succeed but the appeal should be dismissed in the exercise of the residual discretion not to interfere with the sentence imposed.

Circumstances of the offending^[9]

8. All five charges arose from a motor vehicle collision on the afternoon of 8 October 2021 at Stawell Road, Horsham, approximately 70 metres south of the intersection with Duff Street. That intersection is controlled by traffic lights.
9. The respondent was driving a Hino truck fitted with a concrete agitator. As he approached the intersection there were vehicles ahead, stationary at the red lights. Seeing them, the respondent began slowing down by taking his foot off the accelerator. He then turned to look at some classic cars parked outside a motel on the western side of Stawell Road. Upon returning his gaze to the road, the respondent saw that the traffic lights had turned green but the vehicles ahead had not begun to move. He applied the brakes of the truck, locking them.
10. The truck continued to move forward. It collided with a Hyundai Tucson SUV. The Hyundai was propelled forward by about 11 metres into a Holden utility, which in turn was propelled forward by about 11 metres. The collision was observed by witnesses.
11. Barbara Mackley was the driver of the Hyundai. Her sisters Fay Barber and Joy Wheaton were respectively in the front passenger seat and in the rear driver‑side seat. Her niece Lynne Mackley was in the rear passenger‑side seat.
12. Fay Barber died at the scene (charge 1 — dangerous driving causing death). Barbara Mackley was extricated from the Hyundai, treated by paramedics and airlifted to the Alfred Hospital but died on 11 October as a result of injuries sustained in the collision (charge 2 — dangerous driving causing death). Lynn Mackley received substantial and life‑threatening injuries including bleeding in the brain associated with traumatic brain injury, a spinal fracture and a neck sprain (charge 3 — dangerous driving causing serious injury). Her treatment at the Alfred Hospital included anti-seizure medication for a head injury, surgery to stabilise a spinal fracture and associated treatment to reduce the risk of a fatal embolism, and the fitting of a cervical collar. Joy Wheaton did not sustain any skeletal injuries or otherwise require surgical intervention (charge 4 — conduct endangering persons).
13. Cheryle Exell was the driver of the Holden utility. She sustained shoulder pain that did not require surgical intervention (charge 5 — conduct endangering persons).
14. After the collision the respondent remained at the scene. He was interviewed by the police later that day. He was not affected by alcohol or drugs.
15. The concrete agitator truck weighed approximately 10,380 kg. It had no mechanical fault or failure. The truck was travelling at about 49 km/h when the respondent began to brake and about 39 km/h at the point of impact. The Hyundai suffered significant back end crush damage from being hit by the truck and moderate front end crush damage from being pushed into the rear of the Holden utility. Its stop lights and tail lights had been illuminated at the time of impact.

Sentencing reasons

16. The sentencing judge commenced his reasons^[10] by noting that the plea summary tendered by the prosecution was an agreed statement of facts and that the respondent was to be sentenced on the basis of those facts.^[11] The judge then summarised the offending as follows.

The court was not provided with details of the timing of the traffic light cycles at Duff Road. It appears that your attention was distracted from the road ahead for a second or two. You were interviewed by the police on the day of the collision and made a complete and frank account of what had occurred. You admitted being distracted by the classic vehicle and conceded that you had not left enough space between your truck and the other traffic.

Your dangerous driving is defined by your failure to keep a proper lookout at the time you were distracted by the classic car. The size of your truck, over 10 tonnes in weight, places a higher duty on truck drivers to be vigilant.

Your case is clearly one of momentary inattention with catastrophic consequences. The prosecutor correctly conceded that your offending represents a low-level example of the offence of dangerous driving causing death. Your moral culpability is, in my view, at a low level. This is, of course, not a reflection on the loss of Fay Barber and Barbara Mackley’s lives. It is an objective judgement as to the seriousness of your offending.

There is no suggestion that you were speeding or using drugs or alcohol. Nor were you sleep deprived or driving in an erratic or aggressive manner. Your conduct did not involve any wilful disregard to the safety and welfare of others on the road. That is, you did not knowingly take any risk.^[12]

17. The judge addressed the impact of the offending on its victims,^[13] noting that a family was ‘destroyed by one tragic incident’ and that their grief was ‘constant and overwhelming’. Ms Exell was traumatised and continued to be frightened on the road. Holly Stevens, a witness to the collision was troubled by assumed guilt. Her victim impact statement demonstrated ‘how widely the trauma associated with catastrophic road collisions extended’.
18. The judge found the respondent’s limited and dated prior convictions to be ‘irrelevant to the sentencing process’.^[14] At the age of 20 years, he had incurred a fine and the loss of his probationary licence for speeding, but had not then offended for nearly 30 years. He had worked as a professional truck driver for 20 of those offence-free years.
19. The respondent’s personal circumstances were summarised. The respondent was 53 years of age, had four older siblings and living, elderly parents. He left school partway through Year 12 to commence an apprenticeship as a locksmith. He worked in that field for eight years. The respondent was then employed as a motorcycle rider training instructor for four years before working as a field technical assistant. He commenced in the trucking and transport industry in 2003 and was an experienced and competent truck driver. The respondent separated from his long-term partner in 2013. They have two daughters. The judge noted that he was the primary carer for his younger daughter.^[15]
20. Personal references tendered at the plea described the respondent as an honest, kind, and caring person and a dedicated father. The judge described the reference from the respondent’s nephew as ‘most helpful’ and ‘most extraordinary’ in describing the positive and supportive role the respondent played in his life.^[16] The respondent was also an involved member of his local community, having taken up executive roles in various recreational and sporting clubs. He was described as ‘committed, dedicated, civil, honest, and generous’ in those roles.^[17]
21. The judge noted that dangerous driving causing death is a category 2 offence and referred to the operation of s 5(2H) of the Act.^[18] The judge found that he was not bound to impose a term of imprisonment because, pursuant to s 5(2H)(a), the respondent had assisted law enforcement authorities in the investigation of an offence by giving a detailed explanation as to how and why the collision occurred.^[19] The judge said that the operation of s 5(2H)(a) was not confined to situations where an offender provided evidence or an undertaking to do so against others.^[20] With reference to Farmer v The Queen,^[21] the judge found that the respondent’s assistance had been greater than the making of ‘mere admissions’.^[22]
22. The judge also found s 5(2H)(e) of the Act applicable. Noting that the test was extremely onerous, almost impossible to satisfy,^[23] the judge concluded that there were six factors which, in combination, established substantial and compelling circumstances that were exceptional and rare and justified not imposing a term of imprisonment.^[24] These were:

(a) Moral culpability of the ‘lowest level possible’ for an offence of dangerous driving causing death. The judge said that the prosecution ‘effectively conceded as much’.^[25]

(b) Parental responsibilities for the respondent’s 11 year old daughter. The judge said that it was ‘highly unusual’ for a father to be in that position.^[26]

(c) ‘Full, frank and valuable’ assistance to investigating police, which was ‘rare and exceptional’.^[27]

(d) The absence of a relevant prior criminal history.^[28]

(e) Genuine and sincere remorse.^[29]

(f) Underlying health issues; coronary artery disease and post-traumatic stress disorder (PTSD), in particular.^[30]

23. The judge concluded:

I have come to this conclusion without having regard to the impressive character evidence in your case. I have not factored in your early pleas of guilty, your excellent prospects for rehabilitation, nor parity with any other sentence I was referred to upon your plea.

I have factored in your clear remorse and the compelling authority you made in ... your letter to the court. I watched you closely when the victim impact material was read. Your distress and anguish was obvious to me.

Having come to the conclusion I have as to both s 5(2H)(a) and (e) of the Sentencing Act your good character, early pleas of guilty and prospects of rehabilitation are all relevant to the determination of an appropriate sentence in your case.^[31]

24. The judge then imposed the CCO referred to above.^[32]

Ground 1 — Error in application of s 5(2H)

25. The Director argued that the judge erred in finding both ss 5(2H)(a) and (e) of the Act applicable, such that he was not obliged to impose a sentence of imprisonment.

Section 5(2H)(a) — assistance

26. It was argued that the judge misconstrued s 5(2H)(a) and misapplied Farmer. ‘Assistance’ does not denote admissions or confessions but refers to information supplied by an offender to bring other offenders to justice or to prevent other crimes occurring. The judge’s construction of the provision was inconsistent with its purpose as identified in Farmer, as well as its text, and the use of the phrase elsewhere in the Act and in related ss 260 and 291 of the Criminal Procedure Act 2009 (‘CPA’).
27. The respondent conceded that having regard to Farmer, his admissions and plea of guilty did not constitute the type of assistance required to engage s 5(2H)(a).

Analysis

28. The respondent’s concession was proper.
29. The respondent’s admissions to police were helpful and did provide ‘[some of] the evidence that under[lay] the case’^[33] against him. But, admissions — and nothing more — they remained. As the Court said in Farmer:

Assistance is treated quite differently to admissions and confessions. Although it is true that an admission is helpful to police, it is not, in the usual sense, treated as assistance in the sentencing context. It does not carry the same burden or stigma on the offender and does not attract the same moderating force. Of course, admissions and pleas of guilty attract their own benefits as evidence of remorse and for their utilitarian value.^[34]

30. And:

By its specific terms, paragraph (a) of s 5(2H) applies where a judge is persuaded that the offender has assisted or has given an undertaking to assist law enforcement authorities in either the investigation or prosecution process.^[35]

31. It follows that the judge was wrong to find s 5(2H)(a) could operate as a consequence of the respondent’s admissions made as to his own offending during his record of interview.

Section 5(2H)(e) — substantial and compelling and exceptional and rare circumstances

32. The Director argued that it was not open to the judge to find the existence of circumstances that were substantial and compelling and exceptional and rare. The six factors identified by the judge to justify the non-custodial sentence were incapable of combining to produce circumstances of that quality.
33. In particular, it was argued that the respondent’s moral culpability was not at the ‘lowest level possible’. At the plea, the prosecution had conceded only that it was ‘at the lower level’. The judge failed to consider the aggravating feature of the respondent’s offending, being the driving of what was, effectively, a lethal weapon. The respondent had extensive experience driving heavy vehicles, including concrete agitator trucks. He had, when interviewed, acknowledged the importance of maintaining a safe distance between his truck and other vehicles on the road and recognised the catastrophic consequences that might result from momentary inattention. He knew there were stationary vehicles ahead of him. These matters elevated his moral culpability.
34. Further, there was no cogent expert evidence demonstrating the additional burden imprisonment would have on the respondent’s physical or mental health. And, there was nothing unusual in the respondent’s status as a parent, his cooperation with police or his remorse and lack of a relevant prior criminal history.
35. The respondent submitted that the judge’s finding with respect to s 5(2H)(e) was open. Commonplace individual circumstances are capable of combining to produce overall circumstances of the requisite character and did so in this case. Further, it was advanced that the appellant’s submissions with respect to moral culpability traversed the concessions and arguments made by the prosecution at the plea.

Analysis

36. The argument of the Director must be accepted.
37. The correct application of s 5(2H)(e) entails a two-step evaluative exercise.^[36] The first requires an assessment of whether the substance and compulsive force of the circumstances justify not imposing the mandatory term of imprisonment. The second, consistent with Parliament’s intention that imprisonment should ‘ordinarily’ be imposed,^[37] involves considering whether such substantial and compelling factors fall wholly outside ‘run of the mill’ factors typical for such offending. In undertaking those evaluations, ss 5(2HC)(a)–(c) and 5(2I) of the Act govern what factors may be considered and how certain factors are to be weighed. General deterrence and denunciation must be given primacy as sentencing purposes. An offender’s personal circumstances must be given less weight than matters such as the gravity of the offending. Regard must not be given to an offender’s previous good character, early guilty plea or prospects of rehabilitation, nor to parity with other sentences.
38. Acknowledging both that s 5(2H)(e) establishes ‘a very high hurdle that will not often be surmounted’,^[38] a ‘requirement [that] is — no doubt quite deliberately — almost impossible to satisfy’^[39] and that such observations ‘must not be treated as a substitute for the statutory language’,^[40] it is plain that the words ‘substantial and compelling circumstances that are exceptional and rare’ have real work to do. The circumstances must be both sufficiently weighty and powerful to justify not imposing a custodial sentence^[41] and ‘wholly outside the ordinary factors typical of the relevant offence’.^[42]
39. In this case, the identified factors fell well short at each stage of the evaluative test.
40. The objective gravity of the offending was high. Through the inattention of a mature, experienced driver cognisant of the risks of being in charge of a truck weighing in excess of 10 tonnes, two people lost their lives, another sustained life-threatening injuries and two more were injured. Witnesses to the incident were traumatised. The judge mischaracterised the concession as to moral culpability made by the prosecution. The personal circumstances of the respondent — which in this context must be given lesser weight than the gravity of the offending — were unremarkable. It is the sad reality that people of otherwise good character who drive in a dangerous manner and cause death often exhibit immediate, genuine and ongoing contrition and are cooperative with police.^[43] They frequently suffer from symptoms of anxiety and PTSD, which a term of imprisonment may exacerbate. Fathers, as well as mothers, often have dependents who will suffer hardship upon their incarceration. In short, there was nothing in the combined circumstances that was so weighty or forceful or wholly outside the factors typical of the offence of dangerous driving causing death that could justify the imposition of a sentence other than one of imprisonment.
41. It follows that ground 1 must succeed.

Ground 2 — Manifest inadequacy

42. The Director submitted that the aggregate sentence of a three-year CCO fell well short of the range reasonably available to the sentencing judge. Dangerous driving causing death (or serious injury) is an inherently serious offence ordinarily resulting in a significant term of imprisonment being imposed.^[44] Cases involving momentary inattention and low moral culpability on the part of an offender may justify a non-custodial sentence, but that disposition is exceptional.^[45]
43. The judge, the Director argued, was required to impose a sentence on each charge that adequately reflected the seriousness of the offending, a proper assessment of moral culpability, the devastating victim impact and the primacy of general deterrence, denunciation and just punishment. The matters in mitigation did not justify such a lenient disposition.
44. The respondent submitted that the judge considered relevant matters of law and fact and arrived at a sentence that was not manifestly inadequate.

Analysis

45. Manifest inadequacy (or excess) of a sentence is a conclusion. Such a ground will succeed only if the appellant can demonstrate that something must have gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.^[46] The question is whether the sentence imposed was wholly outside the range of sentencing options available to the judge.^[47]
46. In this case, it was.
47. The errors made by the judge with respect to the operation of paragraphs (a) and (e) of s 5(2H) are sufficient to make out the ground.^[48]
48. It is convenient, however, to state that if one of the exceptions to s 5(2H) had been applicable, the judge would then have been required to undertake an intuitive synthesis of all matters relevant to all charges to determine the appropriate sentence, including the matters discussed above under cover of ground 1 and also the respondent’s good character, early plea of guilty and prospects of rehabilitation. All factors considered, a proper exercise of the sentencing discretion would not have allowed for the imposition of a sentence other than a term of imprisonment with a non-parole period. Notwithstanding that the collision occurred as a result of momentary inattention and that the respondent’s moral culpability fell at the lower end, he well knew the risks involved in driving a concrete agitator truck. Those risks eventuated in the death of two people and injury to three others. In all the circumstances, an aggregate CCO was simply inadequate to properly reflect the sentencing purposes of, particularly, denunciation, general deterrence and just punishment.
49. Ground 2 must succeed.

Residual discretion

50. The respondent submitted that in the event that either or both grounds of appeal succeeded, this Court should exercise its residual discretion not to intervene. He relied upon the following eight matters to advance that argument:

(a) The respondent retained his liberty following sentence.^[49]

(b) The respondent has served seven months of the CCO and completed all 300 hours of unpaid community work.

(c) The delay occasioned by the appeal being heard over two years after the offending and the Director having ‘waited until the last possible day’ to lodge the appeal. In those circumstances, he was ‘justified in thinking that no appeal would be brought’.^[50]

(d) The Director’s conduct in seeking to advance before this Court submissions as to the objective gravity of the offending and the respondent’s moral culpability that were not agitated before the sentencing judge.

(e) Identification of the error in the application of s 5(2H) does not require the sentence to be disturbed.

(f) Hardship to the respondent’s daughter if he was now incarcerated.

(g) The respondent has made good his excellent prospects of rehabilitation.

(h) Attributes of the respondent’s plea of guilty: it was early, had significant utilitarian benefit and attracted Worboyes^[51] and Markovic^[52] considerations.

51. The Director argued that this Court should ‘correct the injustice’^[53] occasioned by the manifestly inadequate sentence and impose a sentence that would provide guidance to sentencing courts.
52. In response to the matters advanced by the respondent, the Director argued broadly that a rehearsal of the matters urged before the sentencing judge in mitigation of the sentence cannot found the proper exercise of the residual discretion as its function is not part of the process of determining the legally correct sentence but a step taken when the legally correct sentence is no longer appropriate to impose.
53. Specifically in response to the issue of delay, the Director argued that she had complied with all relevant statutory requirements concerning the filing of the appeal and service of the notice of appeal upon the respondent. No ‘reasonable expectation’ that the Director would not appeal the sentence could have therefore arisen. And, the Director argued that she had not advanced matters before this Court that were not already agitated before the sentencing judge. There, the prosecution conceded that moral culpability was at the ‘lower level’ and not the ‘lowest level possible’ and the respondent conceded the relevance of the nature of the vehicle driven by him.

Analysis

54. It is beyond doubt that this Court retains a residual discretion to decline to interfere with a sentence even where a sentencing error is established.^[54] Factors informing its exercise include, but are not limited to:

(a) Whether an offender given a non-custodial sentence complied with its terms over a substantial period of time.^[55]

(b) Whether an offender who has received a lenient disposition has made productive use of it, including by finding ‘employment and stability in their personal life’.^[56]

(c) Whether the offending falls short of ‘criminality of the highest order’.^[57]

(d) Whether there has been a delay between the sentence and the appeal.^[58]

(e) Whether the sentence first imposed enhanced the offender’s prospects of rehabilitation, particularly if he or she is young.^[59]

55. This Court said in Lombardo that in determining whether the Director had negated any reason to exercise the discretion,^[60] it was relevant to consider that the primary purpose of Crown appeals, being to establish sentencing principles and guidance for sentencing courts, may be served by identifying the sentencing error in the reasons given by this Court without disturbing the sentence.^[61]
56. This case warrants the exercise of the residual discretion not to interfere with the sentence imposed.
57. The respondent’s offending, although grave, was accompanied by a low level of moral culpability and did not involve criminality of a high order.
58. He retained his freedom when sentenced to the CCO on 14 April 2023. The term of the CCO was three years and he was required to perform 300 hours of unpaid community work in that time. In the eight months since, the respondent has completed all 300 hours. While the CCO also had a treatment and rehabilitation condition, evidence before the Court shows that the Department of Justice and Community Safety has been unable to determine an ‘offence-specific program’ suitable to him.^[62] While a mental health assessment and treatment condition did not form part of the CCO, the respondent completed such an assessment and is engaged in counselling with a mental health social worker. In addition, the respondent has been working as a handyman whenever possible, reaching worksites by bicycle or by relying on friends and associates for a lift. He has not been charged with any further offences. In short, he has made excellent use of his liberty and justified the confidence of the assessment of his excellent prospects of rehabilitation.
59. Since the sentence was imposed, the personal circumstances of the respondent have also changed. Within a few weeks his former partner had a stroke affecting her movement and speech. That altered the living arrangements of their younger daughter.
    She initially lived with the respondent full-time for about four or five weeks, returning to spend some nights with her mother as the latter received treatment and improved. The evidence demonstrates that she currently lives with the respondent six nights a week and spends Saturday nights with her mother. The respondent’s daughter has performed well scholastically and been admitted to a Select Entry Learning Program at a local school, to start Year 7 in 2024. Given her weeknight living arrangements and evidence of the absence of suitable alternative arrangements, the respondent’s liberty is crucial to his child taking advantage of her academic and life potential.
60. The combination of the respondent’s exemplary conduct whilst subject to the CCO and the situation with his young daughter produces a uniquely compelling situation.
61. Before leaving this ground, it is necessary to address the respondent’s submission that he was ‘justified’ in thinking that no appeal would be brought by the Director because she waited until the last day to file the appeal and he was not served with notice of it until the following day.
62. Section 287 of the CPA invests the Director with a right of appeal against sentence if she considers that there is an error in the sentence and that a different sentence should be imposed and is also satisfied that an appeal should be brought in the public interest. The notice of appeal must be signed by the Director personally.^[63] It must be commenced within 28 days after the day on which the sentence is imposed (unless an extension of time is granted).^[64] The notice of appeal must be served personally on the respondent within seven days after the day on which it is filed.^[65] The Director must provide a copy of the notice to the legal practitioner who last represented the respondent.^[66]
63. Absent evidence of a specific representation made by or on behalf of the Director to the contrary, there can be no basis for an assumption by a sentenced individual that no Crown appeal will be filed until the expiry of the time limits established for both filing and service in s 288 of the CPA. There is nothing improper or unfair in the Director using all of the time within the prescribed statutory limit to determine whether she was satisfied of the matters in s 287.
64. To the extent that this Court in Lombardo said that the respondent in that case was ‘justified’ in thinking that no appeal would be brought because it was filed on the last available day and notice of it served the next day, within the statutory service period, the specific basis for that justification is not apparent. That observation cannot be read as being of general application with respect to the filing of Crown appeals or to the exercise of the residual discretion.

Conclusion

65. The appeal will be dismissed.

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^[1] Contrary to s 319(1) of the Crimes Act 1958 (‘Crimes Act’).

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

^[3] Contrary to s 23 of the Crimes Act.

^[4] See the definition of category 2 offence in s 3(1)(eb) of the Act.

^[5] Act, s 5(2H)(a).

^[6] Act, s 5(2H)(e).

^[7] Pursuant to s 89(1)(a) and (2)(a) of the Act, charges 1–3 being ‘serious motor vehicle offences’ under that Act.

^[8] Pursuant to s 6AAA of the Act.

^[9] The details of the offending that follow are taken from the Summary of Prosecution Opening on Plea, dated 29 March 2023.

^[10] DPP v Kenneison [2022] VCC 593 (‘Reasons’).

^[11] Reasons, [2].

^[12] Reasons, [9]–[12].

^[13] Reasons, [13]–[15].

^[14] Reasons, [16].

^[15] Reasons, [21]–[24].

^[16] Reasons, [26].

^[17] Reasons, [24]–[25].

^[18] Reasons, [17]–[20].

^[19] Reasons, [28]–[29].

^[20] Reasons, [27].

^[21] [2020] VSCA 140 (‘Farmer’).

^[22] Reasons, [30]–[32].

^[23] Reasons, [34]. The judge referred to Buckley v The Queen [2022] VSCA 138, [14] (Maxwell P and T Forrest JA) (‘Buckley’).

^[24] Reasons, [42]–[43].

^[25] Reasons, [36].

^[26] Reasons, [37].

^[27] Reasons, [38].

^[28] Reasons, [39].

^[29] Reasons, [40].

^[30] Reasons, [41].

^[31] Reasons, [44]–[46].

^[32] Reasons, [50].

^[33] Reasons, [28].

^[34] Farmer [2020] VSCA 140, [72] (Maxwell P, Kaye and Niall JJA).

^[35] Farmer [2020] VSCA 140, [79] (Maxwell P, Kaye and Niall JJA).

^[36] DPP v Lombardo [2022] VSCA 204; (2022) 102 MVR 19, 37–9 [65]–[74] (McLeish, Niall and Kennedy JJA); [2022] VSCA 204 (‘Lombardo’).

^[37] Act, s 5(2I)(a).

^[38] Farmer [2020] VSCA 140, [51] (Maxwell P, Kaye and Niall JJA).

^[39] DPP v Bowen (2021) 65 VR 385, 388 [11] (Maxwell P, Priest, McLeish, T Forrest and Walker JJA); [2021] VSCA 355.

^[40] Lombardo [2022] VSCA 204; (2022) 102 MVR 19, 37 [64] (McLeish, Niall and Kennedy JJA).

^[41] Lombardo [2022] VSCA 204; (2022) 102 MVR 19, 37 [66] (McLeish, Niall and Kennedy JJA).

^[42] Lombardo [2022] VSCA 204; (2022) 102 MVR 19, 38 [71] (McLeish, Niall and Kennedy JJA).

^[43] Lombardo [2022] VSCA 204; (2022) 102 MVR 19, 40–1 [88] (McLeish, Niall and Kennedy JJA).

^[44] The Director referred to Stephens v The Queen [2016] VSCA 121; (2016) 50 VR 740, 745–6 [21] (Redlich, Santamaria and Beach JJA); [2016] VSCA 121, Woldesilassie v The Queen [2018] VSCA 285, [23] (Maxwell P and Kaye JA) and Lennon v The Queen [2017] VSCA 85, [41] (Weinberg and Santamaria JJA and Kidd AJA).

^[45] The Director referred to DPP v Neethling [2009] VSCA 116; (2009) 22 VR 466, 471–3 [27]–[31] (Maxwell P, Vincent JA and Hargrave AJA); [2009] VSCA 116.

^[46] Ayol v The Queen [2014] VSCA 151, [30] (Maxwell P), citing Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.

^[47] R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306, 309–10 [13]–[15] (Maxwell P, Eames JA agreeing at 312 [22], Habersberger AJA agreeing at 312 [23]); [2007] VSCA 32.

^[48] Lombardo [2022] VSCA 204; (2022) 102 MVR 19, 41 [92] (McLeish, Niall and Kennedy JJA).

^[49] DPP (Cth) v Gregory [2011] VSCA 145; (2011) 34 VR 1, 21–2 [79] (Warren CJ, Redlich JA and Ross AJA); [2011] VSCA 145 (‘Gregory’).

^[50] Lombardo [2022] VSCA 204; (2022) 102 MVR 19, 45 [111] (McLeish, Niall and Kennedy JJA).

^[51] Worboyes v The Queen [2021] VSCA 169.

^[52] Markovic v The Queen (2010) 30 VR 589; [2010] VSCA 105.

^[53] DPP v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 447–8 [62] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41.

^[54] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 648–9 [52], 652 [73] and 657–8 [100] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350 (‘Karazisis’); Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 471 [24] and 479 [43] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49 (‘Green’).

^[55] Karazisis [2010] VSCA 350; (2010) 31 VR 634, 658 [107] (Ashley, Redlich and Weinberg JJA).

^[56] Karazisis [2010] VSCA 350; (2010) 31 VR 634, 658–9 [108] (Ashley, Redlich and Weinberg JJA).

^[57] Karazisis [2010] VSCA 350; (2010) 31 VR 634, 658–9 [108] (Ashley, Redlich and Weinberg JJA).

^[58] Lombardo [2022] VSCA 204; (2022) 102 MVR 19, 44 [108] (McLeish, Niall and Kennedy JJA).

^[59] Karazisis [2010] VSCA 350; (2010) 31 VR 634, 659–60 [111]–[112] (Ashley, Redlich and Weinberg JJA); Green [2011] HCA 49; (2011) 244 CLR 462, 479 [43] (French CJ, Crennan and Kiefel JJ).

^[60] Lombardo [2022] VSCA 204; (2022) 102 MVR 19, 44–5 [109] (McLeish, Niall and Kennedy JJA), quoting CMB v A‑G (NSW) (2015) 256 CLR 346, 359 [33]–[36] (French CJ and Gageler J); [2015] HCA 9.

^[61] Lombardo [2022] VSCA 204; (2022) 102 MVR 19, 45 [110] (McLeish, Niall and Kennedy JJA), quoting DPP v Currie [2021] VSCA 272, [133] (Beach, McLeish and Walker JJA) and DPP v O’Neill [2015] VSCA 325; (2015) 47 VR 395, 424 [111] (Warren CJ, Redlich and Kaye JJA); [2015] VSCA 325.

^[62] A letter dated 16 November 2023 states that he was found ineligible to participate in ‘The Road Trauma Awareness Seminar’.

^[63] CPA, s 288(2).

^[64] CPA, s 288(1).

^[65] CPA, s 288(3).

^[66] CPA, s 288(4).