In culpable driving cases, the burden of establishing victim complicity lies on the offender on the balance of probabilities, regardless of whether complicity is characterised as a mitigating circumstance (Howarth) or the absence of an aggravating circumstance (Tran). The weight to be given to established complicity remains a matter for the sentencing judge's discretion. A total effective sentence of nine years for two counts of culpable driving causing death and one count of negligently causing serious injury was upheld for a 19-year-old offender with psychiatric difficulties.
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