Director of Public Prosecutions [DPP] v Lombardo, Joshua [2022] VSCA 204

CRIMINAL LAW - Appeal - Sentence - Crown appeal - Category 2 offence subject to s 5(2H) of Sentencing Act 1991 - Dangerous driving causing death - Momentary lapse in judgement - Respondent turned onto highway while side window fogged and light of oncoming vehicle visible - Respondent youthful and remorseful with no prior convictions and excellent prospects of rehabilitation - Respondent suffering symptoms of anxiety and post-traumatic stress - Respondent reminded of offending by memorial at collision site - Judge found exceptions to s 5(2H) existed, allowing non-custodial sentence - Community correction order with unpaid community work condition - Whether open to find respondent had 'impaired mental functioning' within s 5(2H)(c)(ii) - Symptoms falling short of diagnosed illness at time of sentence inadequate, even if likely to deteriorate in custody - Whether open to find 'substantial and compelling circumstances that are exceptional and rare' within s 5(2H)(e) - Circumstances must be both powerful and wholly outside 'run of the mill' factors typical of relevant offending - Evaluative assessment for sentencing judge - Respondent's circumstances, including memorial at collision site, not 'exceptional and rare' for driving offending - Findings not open.

CRIMINAL LAW - Appeal - Sentence - Crown appeal - Residual discretion - Whether Court should decline to interfere with sentence despite sentencing error - Reasons articulate principles for governance and guidance in future cases - Respondent completed seven months of community correction order, and most of prescribed work hours - Appeal filed on last day of appeal period - Rehabilitative progress would be undone by imposing term of imprisonment - Appeal dismissed.

WORDS AND PHRASES - 'impaired mental functioning' - 'substantial and compelling' - 'exceptional and rare'.

Sentencing Act 1991 ss 5(2H), 5(2HC), 5(2I), 10A; Mental Health Act 2014 s 4(1).

Georgiou v The Queen [2022] VSCA 172, Fariah v The Queen [2021] VSCA 213, Farmer v The Queen [2020] VSCA 140, Director of Public Prosecutions v Hudgson [2016] VSCA 254, Director of Public Prosecutions v Karazisis (2010) 31 VR 634, applied; Buckley v The Queen [2022] VSCA 138, Director of Public Prosecutions v Bowen (2021) 65 VR 385, explained.