SUPREME COURT OF VICTORIA
COURT OF APPEAL	
	
S EAPCR 2023 0247	

JAMIE DEAN BLEAKLEY	Applicant	
		
v		
		
The King	Respondent	

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JUDGES:	NIALL and TAYLOR JJA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	23 April 2024 	
DATE OF JUDGMENT:	8 May 2024	
MEDIUM NEUTRAL CITATION:	[2024] VSCA 88	
JUDGMENT APPEALED FROM:	DPP v Bleakley (County Court of Victoria, Judge Dyer, 23 November 2022)	

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CRIMINAL LAW – Leave to appeal – Sentence – Application for extension of time – Whether judge failed to take into account enhanced utilitarian value of guilty plea during COVID-19 pandemic – No material error where markedly different sentence would not have followed – Whether judge erred by conflating offending in relation to motor vehicles and power boats – No error in having regard to motor vehicle cases – Whether judge erred by inflating gravity of offending – No error established – Proposed grounds meritless – Application for extension of time refused.

R v Koumis (2008) 18 VR 434; Worboyes v The Queen (2021) 96 MVR 344, considered.

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Counsel	
Applicant:		Ms J McColl	
Respondent:		Ms DI Piekusis KC	
	
Solicitors	
Applicant:		Victoria Legal Aid	
Respondent:		Ms A Hogan, Solicitor for Public Prosecutions	

NIALL JA
TAYLOR ja:
1	On 15 November 2021, the applicant, now aged 39 years, pleaded guilty in the County Court to two charges of negligently causing serious injury.
2	Following a plea hearing on 14 November 2022, the applicant was sentenced on 23 November 2022 as follows:
	Charge on Indictment		Offence		Max Penalty		Sentence		Cumulation	
	1		Negligently cause serious injury		10 years		3 years		Base	
	2		Negligently cause serious injury		10 years		2 years and 9 months		3 months	
	Total Effective Sentence:		3 years and 3 months’ imprisonment	
	Non-Parole Period:		2 years	
	Pre-sentence Detention Declared:		N/A	
	Section 6AAA Statement:		4 years and 3 months’ imprisonment	
	Other Relevant Orders: 
1.	Cancellation of any licence held by the applicant under the Marine Safety Act 2010 for a period of three years pursuant to s 171(2) of that Act.
2.	Forfeiture order in relation to seized items (tow rope and biscuit).	
3	The applicant seeks an extension of time to apply for leave to appeal against sentence on the following proposed grounds:
1.	The sentencing judge erred by failing to take into account the enhanced utilitarian value of a plea of guilty entered during the COVID-19 pandemic.
2.	The sentencing judge erred in determining that there was no reason to distinguish between sentences imposed for negligently causing serious injury arising out of irresponsible use of a motor vehicle and a power boat.
3.	The objective seriousness of the offending was wrongly inflated by both counsel for the applicant and the sentencing judge.
4	For the reasons that follow, we would not have upheld any of the proposed grounds and would therefore refuse to grant an extension of time to apply for leave to appeal.
The facts
5	On 1 March 2020, the applicant attended Ludlow’s Reserve on the banks of Lake Hume, Ebden with various members of his family and friends. The applicant brought his ski boat with a biscuit (an inflatable tube) attached.
6	On the day of the offending, the water level of the lake was low, exposing dead trees. The applicant was observed to be drinking alcohol during the afternoon. Throughout the day he operated the ski boat while towing the biscuit.
7	At approximately 4:20 pm, the applicant operated the ski boat with his partner’s son, Dallas Edgar, and a friend of the applicant, Kerrida Rourke, as passengers on the biscuit. The applicant performed a series of loops on the boat, which resulted in Mr Edgar falling into the water on a few occasions and Ms Rourke doing the same on at least one occasion.
8	As the applicant was completing either his fourth or fifth loop with these passengers onboard the biscuit, the applicant drove too close to the shore, resulting in the biscuit with his two passengers striking a tree, which was approximately 5 metres from the shore and near where his group had set up their camp.
9	Ms Rourke struck the tree initially, with Mr Edgar striking the tree directly thereafter. It was estimated that the applicant was driving the boat at a speed of approximately 24 kilometres per hour when the biscuit struck the tree. Given the length of the tow rope, the sentencing judge observed that the boat could not have been more than 20 metres from the water’s edge at that time. The applicable speed limit for the boat was five knots (just over 9 kilometres per hour) within 50 metres of the water’s edge.
10	Both victims were subsequently pulled from the water. Ms Rourke was airlifted to the Alfred Hospital and admitted to intensive care. Mr Edgar was conveyed to the Albury Base Hospital.
11	Police attended at the scene and performed an evidentiary breath test on the applicant. At approximately 5:54 pm, the applicant indicated a blood alcohol concentration of 0.149 per cent. At 6:54 pm, a sample of blood was taken in the Wodonga Hospital, which indicated a blood alcohol level of 0.164 per cent, as well as the presence of the drug Fentanyl. The judge noted the opinion of a forensic physician that ‘a blood alcohol level of 0.164% causes serious adverse effects’ and that, ‘[a]t this level, [the applicant] would have been entirely unable to maintain control of his vehicle’, and that the combination of alcohol and Fentanyl was ‘likely to have increased his impairment’.
12	As a result of the incident, Ms Rourke suffered a severe head injury, was in a coma for eight days and undoubtedly would have died but for appropriate specialist medical intervention. As at the date of sentencing, she had not been able to work following the accident; had extensive rehabilitation with ongoing physical, mental and emotional reactions to the consequences of the applicant’s offending; had ongoing mobility problems in her left side, significant jaw and dental damage; and had been significantly reliant on her father for financial support since the applicant’s offending. Mr Edgar suffered a comminuted and displaced fracture of the left femur and underwent surgery on at least two occasions.
Reasons for sentence
13	In discussing the applicant’s personal circumstances, the judge noted the applicant’s relationship with his children and partner and that he generally has a good work record. 
14	The judge did not regard the finding that the applicant had Fentanyl in his system as an aggravating factor given that the applicant was prescribed that medication as a result of a workplace injury which occurred in 2020.
15	The judge observed that the applicant had shown genuine remorse for his actions and offered support to his victims, particularly Mr Edgar. Further, as a result of uncertainty about the extent of injuries suffered by his victims, among other reasons, there had been some delay in the finalisation of the proceeding. His Honour accepted that the delay must have resulted in anxiety on the part of the applicant as to the uncertainty regarding the outcome of the case.
16	The judge also observed that he was prepared to treat the applicant’s plea of guilty as an early plea and afford him ‘the benefit of that in terms of the sentence’ he imposed.
17	However, the judge noted that the applicant had prior convictions for driving offences, particularly for offences involving the excessive consumption of alcohol. These included four prior convictions for either driving while under the influence of alcohol or refusing to undergo a breath test. With these in mind, the judge said that specific deterrence was relevant.  
18	The judge considered the applicant to have ‘at least good’ prospects of rehabilitation, noting that he had completed a six-month residential rehabilitation program directed towards alcohol abuse since his last offending in November 2012 and that no convictions had been recorded against the applicant since he had been on bail. The applicant also had some positive character references.
19	The judge concluded that Mr Edgar’s injuries were at the lower end of the serious injury range. However, his Honour considered that the applicant’s offending involving Ms Rourke was a serious example of that type of offending. His Honour considered that general and specific deterrence as well as denunciation must play a significant role in the sentencing disposition.
20	The judge noted that he was referred to the cases of Cook v The Queen and Harrison v The Queen, which considered sentencing in relation to negligently causing serious injury, although not in relation to boats. His Honour then observed that:
	[T]here is no valid reason for a sentencing judge to distinguish between sentences imposed for negligence [sic] causing serious injury arising out of irresponsible use of a motor vehicle as against injuries arising from the irresponsible use of a power boat.
21	Ultimately, the judge considered that, having regard to the applicant’s prior convictions,  the manner in which he was driving the boat (close to the edge of the lake and exposed dead trees), the speed at which he was driving the boat, the fact that he had passengers on the biscuit, and that he had a blood alcohol concentration roughly three times the Victorian legal limit, it was necessary for specific and general deterrence to play a significant role in sentencing.
Extension of time
22	The applicant seeks an extension of time to file his notice of application for leave to appeal against sentence. The application for an extension of time was filed on 22 December 2023, more than one year after the applicant was sentenced. The applicant therefore requires an extension of time to be able to file his application for leave to appeal against sentence.
23	The applicant submits that the extension of time should be granted because there were significant delays, for various reasons, in securing representation which were not the fault of the applicant, and on the basis that the proposed grounds of appeal have merit.
24	The respondent opposes the application for an extension of time on the basis that the reasons for the delay are inadequate and that the grounds for the application for leave to appeal are without merit.
25	In considering whether to exercise the discretion to grant an extension of time, the Court may have regard to, among other considerations, the length and reasons for the delay and the applicant’s prospects of success should the extension of time be granted. Even if there is a satisfactory explanation for a delay, it might not justify an extension where the merits of the proposed appeal are very poor. Consequently, it is appropriate to consider the strength of the proposed grounds of appeal in order to determine whether there would be any utility in granting an extension of time.
Ground 1: The submissions
26	By ground 1, the applicant contends that the judge erred by failing to take into account the enhanced utilitarian value of a plea of guilty entered during the COVID-19 pandemic. 
27	The applicant accepts that the judge acknowledged the utilitarian benefit of the applicant’s guilty plea, but contends that he failed to take into account the particular value of such a plea during the COVID-19 pandemic. The applicant argues that, although there was a usual practice of sentencing judges referring to such a discount at the time, whether by reference to the case of Worboyes v The Queen or the principle discussed in that case, the judge made no reference to that case or the principle it discussed (unlike in other cases heard in the County Court on the same day).
28	The applicant further submits that there is no basis on which the Court can infer that the judge took into account the enhanced utilitarian value of a guilty plea, including because there was no reference to the Worboyes principle in the course of the plea and the sentences imposed were, in the applicant’s submission, ‘stern’.
29	The respondent contends that a sentencing judge is not required to refer to each matter taken into account in the sentencing exercise. Even if the judge did not apply the Worboyes principle, the respondent argues that a markedly different sentence would not have followed, noting that the judge gave substantial weight to the plea of guilty, remorse and delay, as reflected in the ‘merciful’ sentences imposed.
Ground 1: Consideration
30	As already noted, the judge referred to the applicant’s genuine remorse and said that he would ‘afford [the applicant] the benefit of’ the early plea. In referring to the benefit of the plea, we take the judge to be addressing both remorse and the utilitarian benefit of the plea. The utilitarian value is a reflection of the willingness on the part of the accused person to facilitate the administration of justice. We do not consider it to be arguable that the judge ignored the fact that a plea of guilty had utilitarian value. It is plain that the benefit of the plea went beyond evidence of remorse on the applicant’s part. This was properly conceded by the applicant. 
31	In Worboyes, this Court concluded that a guilty plea during the COVID-19 pandemic should be viewed as carrying ‘a greater utilitarian benefit than at other times’ and, as a result, ‘as attracting an augmented mitigatory effect on sentence’ that should be ‘actual and palpable’. Although the sentencing judge need not quantify the extent of any discount, it must be ‘perceptible’. Elsewhere this Court has described the necessary discount as being ‘modest’.
32	The judge did not refer expressly in his reasons for sentence to the principle in Worboyes. By the time of the plea, the importance of facilitating justice in the face of the grave impact of the pandemic was well understood. The judge’s reference to the ‘benefit’ of a guilty plea is at least capable of accommodating the utilitarian benefit of such a plea, including in light of the principle in Worboyes. The absence of any mention of the impact of the COVID-19 pandemic by counsel or the judge on the plea does tend against such a conclusion but not conclusively so.  
33	Nevertheless, as this Court explained in R v Koumis:
	The absence of reasons on matters relevant to the sentencing disposition will not of itself vitiate the sentencing decision or provide a ground for review of the sentence. Where the reasons are silent as to a matter, it will be necessary to determine whether it was material to the exercise of the sentencing discretion. If it was, the sentencing judge was obliged to take it into account. The conclusion that the sentencing judge has failed to do so or to give it sufficient weight, will then commonly depend upon whether it can be said that a markedly different sentence would have followed, had the matter been taken into account. It is in that context that it is sometimes said that ‘the failure to give reasons betokens an omission to take the factor into account at all’.
34	Consistent with what was said in Koumis, we do not consider that the sentences themselves indicate that the sentencing judge overlooked the principle in Worboyes. As will appear under the other grounds, the sentences imposed on the applicant for the offences reflect the seriousness of the applicant’s conduct, supported in particular by the injuries sustained by the victims (particularly Ms Rourke), the speed and manner in which he was driving the boat, his high blood alcohol concentration and the fact that the applicant had several prior convictions relevant to the nature of the offending. In that context, the sentences were lenient and certainly reflect a full measure being accorded to the utilitarian value of the plea.  
35	It follows that we would not uphold ground 1.
Ground 2: The submissions
36	By ground 2, the applicant submits that the judge erred in determining that there was no reason to distinguish between sentences imposed for negligently causing serious injury arising out of the irresponsible use of a motor vehicle as compared to a power boat.
37	The applicant contends that it was a material error for the judge to conclude that there was no reason to distinguish between sentences for negligently causing serious injury involving motor vehicles and power boats because of a number of differences between such offences:
(a)	Motor vehicles are owned and used far more frequently than boats.
(b)	Boats are primarily used for recreation, whereas motor vehicles are used for transport.
(c)	The degree of risk involved in the negligent use of a car on a public road is frequently higher than that involved in the negligent use of a power boat on a public lake, due to the proximity of other vehicles, pedestrians and/or structures and the higher speed at which a car travels.
(d)	Motor vehicle use results in a higher number of deaths and serious injuries each year.
(e)	Prosecutions arising out of motor vehicle accidents are much more frequent than for boating accidents.
38	As a result of these differences, the applicant argues that conduct which is objectively serious in a car will frequently be less serious in a boat and that considerations of general deterrence and denunciation should attract more weight in sentencing in relation to motor vehicle use.
39	The respondent submits that the applicant’s attempt to contemplate factual scenarios that seek to establish that offending while driving a car is more serious than offending while driving a boat is artificial. Further, it contends that driving a vehicle almost three times the permissible speed while affected by alcohol with unrestrained passengers is inherently dangerous, particularly where there is an additional danger of such passengers being flung into a body of water, thereby putting them at risk of drowning while seriously injured.
Ground 2: Consideration
40	The applicant raised no objection to the judge’s treatment of cases involving motor vehicle offending to the sentencing judge, and that alone is reason to reject this ground. In any event, as the respondent argued, the degree of risk involved with offending involving motor vehicles and power boats largely depends on the surrounding circumstances, such as the speed at which the vehicle is being driven, whether there are passengers, the driver’s level of intoxication and where the vehicle is being driven. To that end, there is no error in observing that, all other things being equal, a judge may have regard to sentences imposed for negligently causing injury arising out of the negligent use of a motor vehicle when considering sentencing practices in relation to the same offence committed by a driver of a power boat.
41	It is important to observe that other sentences do not stand as precedent, and each case will turn on its own facts. We do not take the judge as impermissibly applying a rule that driving cases involving cars and boats are always interchangeable. It is plain that, in assessing the offending, the judge took into account the extent to which the applicant had departed from acceptable driving practice and took into account the extent of the injuries that were sustained. Cases involving the negligent use of a motor vehicle which involve a very serious departure from safe driving, in the context of intoxication, speed, and failure to drive to conditions, show that substantial terms of imprisonment are commonly imposed. It was legitimate for the judge to take them into account. There is no reason why negligently causing serious injury in the driving of a boat should be treated more leniently than a car, merely because one is a boat and the other a car. The judge was saying no more than that.
42	We would reject ground 2.
Ground 3: The submissions
43	By ground 3, the applicant contends that the gravity of the applicant’s offending was wrongly inflated by both counsel for the applicant and the sentencing judge.
44	In particular, the applicant objects to counsel for the respondent’s submission at the plea hearing that ‘the degree of negligence is in the upper range of seriousness’, which the applicant argues the judge accepted by telling counsel for the respondent that he was ‘pressing against an open door in terms of the negligence being in the upper range of seriousness’. In the applicant’s submission, his conduct must be assessed in its wider context, which included that he held a current marine licence, that the boat was registered and that he took certain precautions to protect the safety of his passengers.
Ground 3: Consideration
45	In the course of the plea, counsel for the applicant conceded that the objective seriousness of the offending was in the upper range but that it was a matter for the Court to determine if it was in the upper mid-range. This Court is generally reluctant to entertain arguments that seek to resile from concessions made or that are otherwise inconsistent with submissions made to the sentencing judge.
46	In assessing the objective seriousness of the offence of negligently causing serious injury, it is necessary to have regard to both the degree of negligence involved and the seriousness of the injuries caused.
47	As the judge observed, and having regard to the circumstances of the offending already noted, the applicant’s conduct ‘brought with it a high risk of injury, or even more calamitous consequences’. That the applicant was licensed to drive a registered boat and took some safety precautions does not detract from the negligence constituted by the speed and manner in which he drove the boat and his level of intoxication. The passengers on the biscuit were in a very vulnerable position. They had no means to steer or control the biscuit and their safety was almost entirely in the hands of the applicant as the operator of the boat. The need for care and the dire consequences of a breach of duty are obvious.
48	The judge also carefully observed the extent of the injuries, noting the contrast in seriousness between the two victims. The injuries to Ms Rourke were grave, life-threatening and had an ongoing impact on her.
49	In our opinion, there was no error in the judge concluding that the negligence was serious and that, taken as a whole, the offending involving Ms Rourke was a serious example of the offending.  
50	Further, in spite of those factors, as well as the victims’ injuries and the applicant’s prior convictions, the judge sentenced the applicant to a sentence of no more than 3 years in respect of each offence, which had a maximum penalty of 10 years’ imprisonment. Those sentences do not suggest any over-inflation by the judge of the seriousness of the offending.
51	Ground 3 must be rejected.
Conclusion
52	The grounds of the applicant’s proposed application for leave to appeal against sentence lack merit. Accordingly, any order to grant an extension of time would lack utility. We would therefore refuse the application for an extension of time.
53	Had any of the grounds been established, it would have been necessary for this Court to resentence the applicant. To that end, the applicant has filed further evidence relating to sentencing. The respondent sought the opportunity to put in further material. In the circumstances, it is not necessary to refer to the applicant’s material and there is no occasion for the respondent to adduce further evidence. We would add, however, that even having regard to the additional material filed by the applicant we would not, in the exercise of this Court’s discretion on resentencing, impose a lesser sentence. Having regard to the gravity of the offending, which we regard as serious, the applicant’s poor history of driving offences and allowing full measure of the mitigation (especially remorse and the utilitarian value of the plea, including in the context of the COVID-19 pandemic where guilty pleas have had additional value to the administration of justice), a sentence of 3 years on charge 1 with 3 months’ cumulation on charge 2 is lenient. We would not have imposed a lesser sentence.  
Pre-sentence detention
54	The sentencing judge made no declaration as to any pre-sentence detention served by the applicant. The applicant submits that he in fact served pre-sentence detention and that he was entitled to a pre-sentence detention declaration of 3 days. The respondent does not oppose that submission. An order should be made declaring that the applicant has served 3 days of pre-sentence detention.
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