Sad times at the County Court yesterday, as a young man was sentenced for culpable driving for the death of a friend in a crash in September of 2007. As if events weren’t tragic enough, both of the young men and their families were from Kinglake, a town that’s had more than its share recently.

These sorts of cases pose a difficult problem for sentencing courts. Balancing the interests of the offender against the need for general deterrence is not easy. This must be particularly true where the family of the victim are pressing the court to show leniency toward the offender.

One of the most difficult questions for a court to resolve is whether the complicity of the deceased person (their willing involvement in the commission of the offence which they become the victim of) can be considered a mitigatory fact. The High Court wrestled with similar questions – in a negligence context – in the case of Joslyn v Berryman (2003) 214 CLR 552. In R v Tran, it was decided that the complicity of a victim can’t be considered mitigatory, but might be considered the absence of an aggravating feature.

Whether it has any effect on the penalty imposed, Callaway JA emphasised [at 34], will turn on the particular facts of a case.