Director of Public Prosecutions v Agius

[2025] VCC 993

Eight

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-23-02084
Indictment Number: P10240437

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER AGIUS

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JUDGE:	His Honour Judge Doyle
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2025 and 1 July 2025
DATE OF SENTENCE:	17 July 2025
CASE MAY BE CITED AS:	DPP v Agius
MEDIUM NEUTRAL CITATION:	[2025] VCC 993

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence

Catchwords:              Guilty by jury verdict - One charge of culpable driving causing death - One charge of negligently causing serious injury – Father killed in the collision and son suffered a Traumatic Brain Injury - Gross negligence based of failure to pay proper attention due to continuous use of Snapchat on mobile phone while driving – Verdins - Youth of offender, 21 years old at the time of offence.

Legislation Cited:      Sentencing Act 1991; Crimes Act 1958.

Cases Cited:Hall v The King [2024] VSCA 255; Victorsen v The Queen [2020] VSCA 248; R v Verdins [2007] VSCA 102.

Sentence:                  Total effective sentence of nine years and eight months’ imprisonment with a non-parole period of six years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S. Thomas for Trial and Plea Ms D. Tang for Sentence	Office of Public Prosecutions
For the Accused	Mr J. Miller for Trial Ms E. Clark for Plea Ms. J. Fayman for Sentence	Stephen Peterson for Trial Fayman Lawyers for Plea

HIS HONOUR:

1Peter Agius, on 4 April 2025, after a short trial held in the Latrobe Valley, you were found guilty by jury verdict of one charge of culpable driving causing death and one charge of negligently causing serious injury.

2The maximum penalties are as follows:

·        culpable driving – 20 years’ imprisonment; and

·        negligently causing serious injury – 10 years’ imprisonment.

3The victims in this matter were Adam Sutton, 36 years old, and his son who was eight years old at the time of the collision.

4Adam Sutton lived in Glengarry with his wife Krista Murray and his young children, Stanley[1] and Rebecca[2]. He worked as a livestock agent.

[1]A pseudonym.

[2]A pseudonym.

5On Tuesday, 31 January 2023 at about 3.30pm, Adam Sutton, driving his white Toyota Hilux, collected Stanley from his primary school in Glengarry. He had arranged to meet his brother, Paul, to fix a leaking pipe at a property they were leasing on Farmer’s Road, a few kilometres away. After collecting Stanley, he drove the white Hilux south along the Traralgon–Maffra Road towards Farmers Road.

6You, Mr Agius, had been working that day at LSK Contracting. You left the workplace in Cairnbrook Road, east of Glengarry township, driving an LSK vehicle, a grey Toyota Hilux. You drove to the Traralgon–Maffra Road and then headed south in the same direction as Adam Sutton, some distance behind him.

7The Traralgon–Maffra Road is a bitumen road with one lane of traffic in each direction. The lanes are separated by a broken white line. Famers Road meets the Traralgon–Maffra Road at a T-intersection on the west side.

8As Mr Sutton approached the intersection with Farmer’s Road, he slowed his vehicle and prepared to make a right hand turn into Farmer’s Road.

9You approached his vehicle from behind but failed to see it stopping to make the right-hand turn and continued towards his vehicle without slowing.  When you did see his vehicle, it was too late to avoid a collision. You applied emergency braking and swerved to the left attempting to avoid the white Hilux, but you collided with its back end When you applied the brakes, your vehicle was travelling at approximately 95 kph.

10The impact pushed Mr Sutton’s Hilux forward and caused it to rotate in a clockwise direction and then roll over several times.

11Emily Couling was driving her white MG Wagon towards the Farmers Road intersection from the opposite direction after collecting her daughters from school. She observed the white Hilux slowing to turn into Farmer’s Road and your vehicle veering to the left onto the gravel shoulder. She saw the white Hilux roll into the northbound lane into the path of her vehicle. Her MG struck the roof of the white Hilux, pushing it onto the shoulder of the road.

12Your grey Hilux came to rest on an angle, on its wheels, in the southbound lane. The white Hilux came to rest on its roof largely on the bitumen shoulder of the northbound lane.

13Adam Sutton was trapped in the cabin of his vehicle. Stanley was thrown from the front passenger seat onto northbound lane of Traralgon–Maffra Road. Witnesses Alex Graham and Megan Laidlaw provided first aid to Stanley until paramedics attended and began to provide him with emergency assistance. Megan Laidlaw and Emily Couling called Triple Zero for emergency assistance.

14You remained at the collision scene and called your employer, Luke Smith, and told him that you had been involved in the collision.

15At approximately 4.10pm, police arrived at the collision scene. They became aware that Adam Sutton had died in the collision and notified the Major Collision Investigation Unit.

16Senior Constable Beau Turner and Constable Tina Clarke arrived at the scene at approximately 4.11pm. Senior Constable Beau Turner required you to take a preliminary breath test. No alcohol was detected.

17Senior Constable Turner asked you what you could remember, and you said, “I remember dropping my sunglasses”. He then cautioned you and continued his conversation with you which was recorded by his body worn camera. During the conversation, you said:

I remember dropping my sunglasses, like they blew off me head, so I sort of looked down to grab them, and the car was up a fair way in front. I was sitting on ninety. And then when I looked back up it was pretty much, yeah, couple car lengths away, so I’ve swerved and then braked.

18You also said, “when I looked back up, they were stopped in the middle of the road” and “I remember hitting, I remember the airbags going off”. You were taken to the Latrobe Regional Hospital for treatment. You told the paramedic, “I was reaching for my sunnies, and I didn’t see the car in front”.

19At the Hospital, you told staff, “I dropped my sunglasses, and then I looked down to see if I can pick them right back up, and stopped looking at the road, and I braked and swerved”.

20You were arrested on 31 January 2023, at the hospital, and your iPhone was seized.

21On 6 March 2023, the grey and white Hilux vehicles were examined, with the following conclusions:

(a)   You were not wearing a seatbelt at the time of the collision. There were no mechanical issues with the grey Hilux that could have caused or contributed to the collision.

(b)   The rear taillights, including the stop light of the white Hilux, were illuminated at the time of the collision and there were no issues with the white Hilux that could have caused or contributed to the collision.

22On Tuesday, 31 January 2023, Detective Leading Senior Constable Lindon Walker, a collision reconstructionist with Victoria Police, attended at the collision scene. He analysed the evidence collected at the crime scene, including data from the vehicles’ airbag control modules and data obtained when the scene had earlier been measured, photographed and scanned. That analysis revealed that the collision involved three separate components:

(a)   The first impact occurred between the grey Hilux and the white Hilux on the southbound lane of the Traralgon–Maffra Road, approximately 1.13 metres west of the fog line.

(b)   The second impact involved the white Hilux rolling over after the initial collision with the grey Hilux.

(c)    The third impact occurred between the MG and the white Hilux on the western bitumen shoulder approximately 0.8 metres west of the fog line.

23Detective Walker determined that at the time you applied emergency braking, your vehicle was travelling at approximately 95 kph.  Skid marks made by your vehicle commence around 14 metres prior to the point of impact.  At the point of impact, the white Hilux was moving at 2 kph and the brakes were engaged. He was unable to determine the speed of the MG when it collided with the white Hilux but believed it was not travelling more than the speed limit of 100 kph.

24He considered that having regard to the position of the sun at the time of the collision, it was unlikely that sun glare would have impacted your ability to see what was ahead.

25On Wednesday, 1 February 2023, you were interviewed and made “no comment” when asked about the circumstances of the collision.

26On 15 February 2023, police extracted the data from your mobile phone.

27Investigators also obtained your call charge records for the period leading up to the collision from Telstra. The data extracted from the phone, and the call charge records, were analysed by Dr Matthew Sorell, a Senior Digital Forensics Consultant. He gave evidence at the trial.

28Dr Sorell’s analysis of the data revealed that whilst you were driving the 12–13 kilometres from the LSK worksite to the location of the collision, you received 41 Snapchat messages from 14 different senders and sent 44 Snapchat messages to 12 different recipients. The journey would have taken approximately 12 minutes if you were travelling at around the speed limit.

29Dr Sorell used a mapping product ‘Gmap’ to ascertain and map the various locations of the phone when Snapchat messages were sent and received. The Gmap evidence was presented to the jury via a series of marked maps indicating the frequency of phone use during the journey. They were crowded documents.

30The analysis revealed that you left the worksite at approximately 3.28. 30. Dr Sorell gave evidence that based on Ms Laidlaw’s Triple Zero call at 3.45.47, which she said she made straight away after witnessing the collision, and allowing some time for her to recover her wits, the window of time in which the collision occurred was between 3.45 and 3:45:30 seconds.  This was of course an educated estimate.

31The last outgoing snapchat message from your phone was which was an image was sent at 3.44.18. Messages were received by your phone at 3.44.39, 3.45.11 and 3.45.15. The data does not show whether you looked at those messages.

32Most of the messages you sent were image files as were many of the messages that you received.

Injuries

33Adam Sutton, died from cervicothoracic injuries sustained in the collision.

34Stanley was airlifted to the Royal Children’s Hospital where he underwent emergency surgery. He sustained multiple injuries. Dr Marianne Lobo, from the Victorian Forensic Paediatric Service, summarised Stanley’s injuries as including skin and subcutaneous injuries, skull and facial bone fractures, a traumatic brain injury, a cervical spinal ligamentous injury, an extraaxial spinal haemorrhage, a compound fracture of the left forearm, and intra-abdominal trauma.

35The traumatic brain injury left him unconscious with a Glascow Come Score of 3. He required intubation and mechanical ventilation until 8 February 2023. The injury was life threatening. His recovery has been slow and prolonged. At the time of his discharge from Royal Children’s Hospital on 16 March 2023, he was not ready to return to normal physical activities for a child of his age and needed ongoing rehabilitation.

36The ligamentous injuries of the craniocervical junction were reported to be unstable and placed Stanley at risk of spinal cord trauma from excessive cervical vertebrae movement and, given the high level in the neck of the ligamentous injuries, at risk of death and/or quadriplegia from spinal cord compression. These craniocervical injuries were life threatening. Stanley remained in a hard cervical collar at the time of discharge.

37Emily Couling sustained non-life-threatening injuries. Her 15-year-old daughter, who was sitting in the front passenger seat, sustained a broken hand. Both were treated at the Latrobe Regional Hospital. The other passengers, both daughters of Emily Couling, who were sitting in the back seat, were not injured.

38Paramedics at the scene noted that you had minor injuries including a superficial laceration to the cheekbone and above your eyebrow, pain in your right shoulder, with reduced movement and pain in your right knee. You were treated at the Latrobe Regional Hospital.

The issue at the trial

39To prove gross negligence, the prosecution had to show that the driving fell greatly short of the standard of care a reasonable person would have exercised and involved a high risk that death or serious injury would result.

40The prosecution case to the jury was that you were not paying sufficient attention to other traffic on the road because your attention was on the Snapchat texts you were receiving and sending during the trip from your workplace to the collision location.

41The issue at the trial was whether your driving was grossly negligent or instead met the lesser standard of dangerous driving. Your counsel, Mr Miller, submitted to the jury that your driving did constitute dangerous driving causing death and dangerous driving causing serious injury and that they should convict you of those charges as alternatives. The jury was instructed on the standard required for dangerous driving.

42Mr Miller argued to the jury that they could not exclude the reasonable possibility that you did not see Adam Sutton’s vehicle because you were reaching down to pick up your sunglasses, and that was not enough to constitute the gross negligence required for culpable driving and negligently cause serious injury.

43Ms Thomas, the prosecutor, submitted to the jury that they should reject the sunglasses explanation but that, even if they were not able to, the driving still amounted to grossly negligent conduct. She submitted that it was artificial to separate out the last moments of driving, because the text message evidence shows your mind was not focused on the road from the time you left your workplace; it was on the Snapchat messages.

44She submitted that Dr Sorell’s evidence demonstrated that you were engaging in ongoing communications with multiple people where you were looking at and responding to messages that they had sent you. Therefore if, just before the collision, you were looking down to pick up your sunglasses and not at the road ahead, your conduct was nonetheless grossly negligent.

45Your counsel on the plea, Ms Clark, submitted that the jury must have accepted the prosecution argument that you were using the phone at the time of the collision. Although, in my opinion there was force in Ms Thomas’ alternative argument to the jury that it did not matter if you were picking up sunglasses, I am inclined to agree with Ms Clark’s submission as to what the jury verdict means.

46The primary way in which the prosecution put the case was that the collision occurred because you were distracted by the Snapchat messages and the central submission made by the defence was that reaching for the sunglasses was dangerous driving but not grossly negligent driving. Mr Miller did not argue to the jury that even if they accepted the prosecution submission that the collision was caused by distraction from the Snapchat messages, they should nonetheless acquit you of the culpable driving and negligently causing serious injury offences. Therefore, distraction by the Snapchat messages is the explanation that sits most comfortably with the jury verdict of grossly negligent driving.

47A message was received just over 20 seconds before the window of time in which Dr Sorell postulated the collision is likely to have taken place, which was of course an estimate. Two further messages were received within the time window for the collision. This timeline is consistent with phone distraction as the reason you failed to see Adam Sutton’s vehicle, given that you throughout the trip you were obviously looking at incoming messages.

48Additionally, photographs of the inside of the grey Hilux show the sunglasses wedged into the console at the bridge of the glasses. They must have been placed in that position. The position of the sunglasses is unexplained and not consistent with the account you gave, such as it was. It is also impossible to know why one arm of the sunglasses appears to be in the front passenger footwell, and again this is not explained by your account.

49In my opinion, if aware of a car in front of you, you consciously took your eyes off the road to look down into the footwell, while travelling at close to 100 kph, for long enough to miss seeing an almost stationary vehicle, that of itself would be an act of high inattention, and is unlikely.

50In any case, if you did fail to see Mr Sutton’s vehicle ahead of you because you were looking for your sunglasses and had taken your eyes off the road, that occurred in the context of extreme inattention throughout the whole of the trip. It does not make any real difference to the objective gravity of the offence. Either way, the jury decided your conduct was grossly negligent.

Seriousness of the offences

51The offence of culpable driving causing death is, by its nature, a very serious offence, as it involves the death of another human being. This is reflected in the maximum penalty of 20 years' imprisonment and the standard sentence of eight years.

52Negligently causing serious injury carries a maximum sentence of 10 years' imprisonment.

53Both offences involve acts of criminal negligence, and the objective gravity of such offences is assessed by the extent of the negligence and, for negligent serious injury, the seriousness of the injuries sustained by the victim.

54Stanley’s injuries were both life endangering and substantial and protracted. He was in hospital for six weeks. It seems from the evidence that his traumatic brain injury will have permanent consequences. His injuries were very serious and life altering.

55The seriousness of your driving is underpinned by the length of time over which you were not paying proper attention to the road, having regard to the extremely high volume of text messages on Snapchat you received and sent.

56I accept the prosecution argument that you were participating in back-and-forth exchanges with numerous other people from the time you left your workplace. Therefore, although there is no evidence of overt dangerous driving before the collision, the inference is irresistible that you were a danger throughout the trip, because you simply could not have been paying proper attention to the road. You were an accident waiting to happen.

57The first duty of every driver is to pay proper attention to the road. You didn’t do that. You should have seen Mr Sutton slowing to turn. You should have seen him indicating to turn right. You should have slowed down in response. You failed to not do any of those things because you were not paying attention to the road in front of you.

58In the case of Hall v The King[3] at [37], a dangerous driving case involving mobile phone use, to which I was referred by the prosecution, Priest JA said this:

…the failure to keep a proper lookout arose because the applicant was apparently lost in a virtual, visual medium by manually manipulating a mobile phone whilst in charge of utility travelling close to 100 km/h. In the time she was looking at Instagram the applicant would have travelled a distance of about 200 metres, failing to pay regard to the road and other vehicles on it. That factor, driving effectively blind at 93 km/h for 10 seconds on a two-way undivided country Road, only has to be stated to be understood as underpinning a serious example of this offence.

[3][2024] VSCA 255, [37] (Priest, Taylor and T Forrest JJA).

59Those observations are pertinent to the circumstances of this case, although made in the context of a dangerous driving case, a less serious offence of those which you have been convicted.

60Ms Clark submitted that in assessing the objective gravity of the offending, some common aggravating features, such as extreme speed or alcohol and drugs, are not present in this case and that is true. She submitted that the offending falls into the lower mid-range for criminal negligence driving offences. The prosecution submitted that the offending falls into the mid-range. I do not intend to further divide the categories of seriousness into lower or middle or upper mid-range. I accept the objective gravity falls into the mid-range for offences of this type.

61You have a prior criminal history for driving offences. On 22 March 2022, at the Latrobe Valley Magistrates Court, you were fined and had your licence disqualified for 12 months for dangerous driving while pursued by police. The licence disqualification was backdated to March 2021, no doubt because your licence was immediately suspended when you were arrested for that offence. The offence  involved you being detected by police travelling at over 200 kph between Traralgon and Morwell. Police then pursued you and you drove away from them at a high speed. The offending occurred in January 2021, when you were 19 years old. On the same day, you were also dealt with for careless driving, which occurred in 2020, involving performing a burn-out on a street in Traralgon. You were placed on adjournment without conviction ordered to undertake a road trauma awareness course.

62On 27 February 2024, you were caught driving in Traralgon. You were not supposed to be driving, as your licence was suspended and your bail conditions for this matter included a condition that you were not to drive a motor vehicle.

63Your prior convictions are relevant to your moral culpability for the offending in this case. Twice before this catastrophic collision, you had engaged in incredibly stupid driving offences. The penalties imposed, which included licence disqualification and a requirement you attend road trauma awareness seminar, somehow did not bring home to you an understanding of the duty you owe to other road users. You should have understood the basic duties of driving from those experiences, but you did not.

64The subsequent offending is, in my opinion, relevant to the level of remorse and insight you have into the offending in this case. It is staggering that you drove a motor vehicle when you were on bail with a condition not to drive relating to a case where you had killed a 36-year-old man and seriously injured his son.

65Also relevant to your moral culpability is the evidence the prosecution applied to lead as tendency evidence at the trial. The evidence was that on several occasions at work you were observed using your phone whilst operating machinery, including the excavator, and warned not to do so. I excluded that evidence but, in my opinion, it has relevance to the assessment of your moral culpability in that you had been warned not to use your phone whilst operating machinery, including on the day of the collision and on other occasions. You ignored those warnings and then drove from the worksite either receiving or sending a message approximately once every ten seconds between the worksite and the collision.

66I find your moral culpability to be substantial.

Victim Impact Statements

67Moving Victim Impact Statements were tendered and read in open court by the following people: Krista Murray, Marlee Sutton, Megan Laidlaw, Mikayla Killeen, Raymond Sutton, Leanne Sutton, Luke Smith, Dean Sutton and Paul Sutton.

68What is clear from those statements is that Adam Sutton was deeply loved as a husband, father, son and brother, and a friend to many people.

69His mother, Leanne, says:

In a testament to the person Adam was, and in wonderful support of our family, his funeral was attended by an estimated 1000 people, with almost 2000 people watching online from around the country and abroad. It’s a tragedy that has touched so many people. We received so many floral tributes and cards, that as yet, I have still not been able to read and respond to.

70His death has left an enormous void in the lives of his family and friends. His children have been left without their father and his wife without her husband with whom she expected to have by her side watching their children move through life. His parents have lost their much-loved son. Leanne Sutton described her pain in this way:

To lose a child is torturous and has always been my biggest fear. I’m not sure how I’ve managed to survive. You don’t really live, you exist. People regularly ask, 'How are you?’ My response is I’m doing the best I can to get through the day in the best way possible. My reality is trying to pretend the actual reality isn’t what it is. There are so many emotional scars that I’ll never heal from.

71She describes his loss as “incomprehensible and senseless”. She describes the horror of being at the scene of the incident and the trauma of the hospital with Stanley. She states the “debilitating grief that swamped [her afterwards, rendered [her] basically non-functional”. She speaks of the pain of losing a child, of organising his funeral and saying a final goodbye to Adam. She describes Adam as “strong willed, loving, funny, adventurous, determined and loyal, with a big heart and a wicked sense of humour”.

72Stanley was an innocent eight-year-old whose future has been compromised by the injuries he received.

73Krista Murray describes in detail this incident has had on her life, and her children’s lives. She says Stanley undergoes:

countless ongoing physical challenges, struggles with so many day-to-day tasks and his self-worth as he becomes increasingly aware of his differences between himself and his age-appropriate peers.

And that

Currently Stanley is only able to attend school on a part time basis due cognitive fatigue and overload. We will never really know the full severity and long-term implications of Stanley’s injuries.

74She says she will never forget seeing her son unrecognisable on a stretcher in the back of an ambulance.

75She says Rebecca struggles to comprehend her father’s death.

76She grieves for the future with Adam that she and her children have lost; and the future that Stanley has lost due to his Traumatic Brain Injury.

77She describes feelings of sadness, fear, anxiety, anger, guilt, numbness, rage, despair, and panic, over the last two years and her “overwhelming and crippling hypervigilance, always living in a heightened state”.

78She describes raising her children without Adam as, “simply trying to survive, not only one day or week at a time, but hour by hour”. She feels she has lost control of her life and her independence, relying on her small group of relatives and losing trust in other people.

79Mikayla Killeen, Adams’s sister, says she replays the day of the incident almost daily, as it is “burnt into [her] brain”. She describes the difficulties of daily functioning due to the stress and exhaustion. She must drive past the collision site every day, as there is no alternative route, and says the flashbacks are “forever an issue” and it is a “torture I cannot avoid”.

80She describes the emotional task of looking after Rebecca while Krista was in hospital supporting Stanley. She states she still tries to support Krista, Rebecca and Stanley, although the family no longer feels whole.

81Raymond Sutton, Adam’s father, says that the pain and distress are “indescribable”. He says there is not a day goes by that he does not think of Adam and Stanley and the “life sentence we’ve been given”. He speaks about the destruction of his family happening because of this offending and that life has never been the same as it was before 31 January 2023.

82He has taken time off work due to the psychological impact of this offence and has now worked past a previously planned retirement age to ensure Krista, and the children, are financially provided for.

83He describes Adam’s greatest attribute was caring about others before himself and that he will always love and miss him.

84Luke Smith was your employer at LSK Contracting and gave evidence at the trial. He was also Adam Sutton’s friend for 30 years. He refers to the fact that you had been warned about using your mobile phone at work.

85In addition to his personal loss, he said the incident has affected his company’s reputation. Mr Smith says this:

“Even though I wasn’t the one behind the wheel, I carry a deep and personal sense of guilt. I feel guilty that the vehicle involved was from my business. I feel guilty that I hired someone who showed such disregard for life. And I feel guilty that Adam, a man I’d known and loved for over 30 years, lost his life in a vehicle with my company’s name on it. I’ve replayed that day in my head a thousand times, asking myself if there was something I missed, something I could have done differently to prevent this. That guilt never really leaves

My friend is gone. His children are without their father. And the business I’ve poured my heart into has had to fight to recover from the shadow this has cast over us.

86He says that in addition to being his close friend, Adam Sutton was also an incredible livestock agent and that he was hardworking respected and deeply valued by the community. He said also that he was a proud father: a man devoted to his family.

87Dean Sutton, Adam’s brother and uncle to Stanley, says he sees his family now in “smaller groups because when [they] are all together it highlights that Adam is missing”. He struggled to comprehend Adam’s death, and focused on the daily struggles of Stanley in the hospital. He says he felt the pressure to take on many of the funeral tasks, resulting in him resigning from his role as Deputy Board Chair of Quantum Support Services Gippsland.

88Paul Sutton, Adam’s brother and business partner, describes the strain on his physical and mental health since this offending. He says, “words cannot explain the hurt and anger”. He had just started a farming business with Adam. He says he and Adam were due to go on their annual fishing trip the next day. The thought of the trip is now a reminder of “that day [he] lost [his] brother and best friend”.

89Marlee Sutton, Adam’s sister-in-law, says the impact of going to the scene on the day of the incident has been profound. She describes the 12 months after the incident as complete chaos. She says, “to the outside to the world, I would have looked as if I was coping, while on the inside it felt like my whole world was falling apart”. She speaks of her grief for Adam and the ripple effect it caused to their family.

90Megan Laidlaw, who witnessed the incident and rang triple zero, spoke says she has flashbacks to the collision when on the road. The trauma of that day has made her hyperaware and affected her ability to feel safe in the car. Even though she was able to assist Stanley, she wonders if there was anything else she could have done to help Adam. She says, “Since that day, [she] feel[s] like [she is] constantly carrying the weight of what [she] witnessed”. This has had a lasting impact on her.

91There is nothing that I can say and no sentence I can impose that will bring Adam Sutton back or fix Stanley’s serious injuries. The sentence I impose reflects the large number of factors which judges are required to take into account, one of which is the impact on the victims.

92I emphasise though, that it is understood that the immeasurable effects of this incident will be felt forever by the family and friends of Adam and Stanley; and those other people who were involved in or witnessed the collision.

93The impact of the offending is an important consideration in sentencing in this case.

Personal circumstances

94You were born in October 2001. You were 21 years old at the time of the offences in this case. You are now 23 years old.

95Your parents are both working. You have a close relationship with them. They have attended the court proceedings throughout this matter to support you.

96You are the middle child of five. You have an older maternal half-brother and a half-sister, and two younger biological brothers. You are close to your siblings.

97You were an average student. You transitioned to alternative education in Year 7, only attending English and maths classes. You did not like school. You left after Year 10.

98You have had consistent employment as a machine operator since you left school. You were with one employer for six years before taking on a role at LSK Contracting. Inevitably, you lost that position because of this incident.

99You were subsequently assessed as unfit for work by your general practitioner based on Post-Traumatic Stress Disorder (PTSD), which developed in response to the collision.

100In December 2024, you began working casually in construction one or two days a week. You were still in that role at the time of the verdict in this case, after which you were remanded in custody.

101You have been undertaking courses whilst in custody. You intend to have a job in the prison. 

102At the time the trial took place, you were in a relationship. Your partner attended court during the trial. However, since you were remanded in custody, that relationship has ended. You have been negatively affected by that.

103You do not have any history of alcohol or drug problems or any criminality other than the driving offences which I have already referred.

104Ms Sandra Cokorilo, psychologist, notes in her report that you have suffered from anxiety and depression since you were around the age of 10. Firstly, in the context of separation anxiety from your mother and older brother. This continued after the loss of your grandparents to cancer. You reported chronic depression since childhood to Ms Cokorilo.

105Ms Clark told me and that an incident occurred where you found your older maternal half-brother in the process of a suicide attempt and took him to hospital. Ms Clark told me this also had a significant impact on your mental health.

106You told Ms Cokorilo that you were “devastated, disappointed and sad” when you became aware that Mr Sutton had died in the collision. You told her you have nightmares about the collision.

107Since the collision, you have had recurrent suicidal ideation, but you denied any history of suicide attempts, self-harm or psychiatric admissions.

108She considers that your age-related immaturity was a factor in the offending. She also says that your chronological age functions as a protective factor in considering your prospects of rehabilitation as you mature.

109She conducted psychometric testing which indicated PTSD of moderate severity and depression and anxiety symptoms likely to make imprisonment more burdensome for you than for a person without those psychological issues. She also considers that the reduction in contact with your family is likely to exacerbate symptoms of dysphoria, dysregulation, and isolation; potentially intensifying suicidal ideation and will undermine the natural stabilisation of trauma symptoms over time.

Character

110Several references were tendered from your friends and family which I have considered and which I will briefly summarise.

111Matthew Hille, a friend of yours for the past five and a half years, says in his letter that you are generous with your time and that you are kind and selfless. He has noticed a significant change in you since the incident, in that you have become withdrawn, some days struggling to get out of bed.

112Kaysie McCallum, a close friend, also notes your generous character. She notes you as a “caring, mature and extremely sympathetic young man”. She describes the close relationship you share with her two children, and the strain your remand has put on the children.

113Tahnika Fry, a close family friend, describes your strong commitment to your family. She believes you have remorse and says this has taken a toll on you.

114Selina Patton, another friend, refers to the positive impact you had on her and her children’s lives when you supported them during a difficult period. She says you showed compassion and selflessness. You have a bond with her daughter and your incarceration will be difficult for her. She says you have expressed remorse for what happened and your poor judgement.

115Your older sister, Kiara Miller, says you have always been there for support, and you have been a role model for her children. She says despite your previous charges; you were turning your life around in the time before this collision. She says your mental health declined following the collision and she has been concerned about your mental health since you were remanded in custody. She says you expressed remorse to her.

116Your twin brothers, Matty and Cody Agius, provided a joint reference. You have always had a major role in their lives. They worried about your mental health after the collision, and further when you were remanded. They say the atmosphere of their family home has changed. The whole family is emotionally drained.

117Montana Tatnell, a friend, has only known you since the collision but finds you to be caring and willing to help others. She says she has witnessed the mental and physical impact of the collision on you.

118Regan Sultana, a close friend of yours for 10 years, notes a ‘huge change’ in you since the collision. He says you will have his full support and a full-time position available for you at his business, Sulty’s Construction Crew, when you are released. He says he hopes prison does not change the person you are.

119Your mother, Sharon Agius, refers to the trauma you experienced prior to the collision, witnessing your brother’s attempted suicide and the loss of your grandparents. She says you have worked hard to turn your life around but, since the collision, she watched you devastated and broken by your involvement. She says your mental health declined and you would break down in tears regularly. She says your mental health has declined since being in custody and being away from your family.

Remorse

120Your counsel, Ms Clark, submitted that you are remorseful for this offending. She relied on the passages in Ms Cokorilo’s report to which I have referred and the expression of remorse to the authors of the letters in support.

121The prosecution submitted that your remorse and insight is questionable, having regard to your subsequent conviction for driving in breach of bail, your pleas of not guilty and your continuing denials that your use of Snapchat had any connection to your driving or contributed to the collision. The prosecution submitted that your suggestion to Ms Cokorilo that you did not look at the phone whilst sending Snapchat messages should be rejected.

122Although you ran a trial, it was on an issue that is classically one for a jury to decide and I do not find that excludes remorse. Although, your continued denials of the relevance of the phone use to Ms Cokorilo though are at odds with the evidence in the trial. You suggested to her that you did not look at your phone when you sent the messages. I do not accept that. It is implausible and inconsistent with the verdicts.  Moreover, post-trial accounts of the incident to a psychologist are not of any weight in assessing the factual matters that were before the jury.

123Driving in breach of your bail conditions cuts across claims of remorse and insight. I am sure you regret what took place in January 2023, and the consequences of your negligent driving, but I am not satisfied that at this stage you have developed meaningful insight or true remorse for your actions.

Youth

124Ms Clark submitted that although general deterrence and denunciation must be given considerable weight in sentencing for offences such these, you were only 21 years’ old at the time of the offending, and youth and rehabilitation still have an important role to play in sentencing.

125In Victorsen v the Queen[4], Priest JA said:

Youth of an offender — particularly a first offender — is often a primary consideration in sentencing, so that rehabilitation in the case of a youthful offender will often be more important than general deterrence. This Court has for many years expressed the view, however, that general deterrence must usually be emphasised in sentencing for culpable driving causing death, and that there is correspondingly less scope for leniency on account of an offender’s youth than there may be in the case of some other crimes. That does not mean that there is no scope for youth to influence the sentence — youth will continue to have a bearing on the length of any (and, in rare circumstances, the kind of) sentence imposed — but it cannot be forgotten that lives have been lost.

[4] [2020] VSCA 248, [33] (Priest and Niall JJA) (citations omitted).

126The nature of the offences offences, and the prior convictions, reduce the weight to be given to youth and rehabilitation, but they remain factors which constrain the length of the overall sentence and are important in deciding the appropriate non-parole period.

127Additionally, this is your first time in custody, and this will be your first sentence, and you are still a relatively young man. I accept the transition to custody has been and will be difficult for you and this sentence will heavily on you.

Verdins

128Based on Ms Cokorilo’s report, Ms Clark submitted that Verdins principles 5 and 6 are enlivened, namely that custody will be more burdensome for you than a person without your mental health profile and that there is a serious risk of imprisonment adversely affecting your mental health.

129I accept the submission that I should take these matters in accordance with the principles in Verdins and I do so.

Prospects of rehabilitation

130There are some factors in your case that are unfavourable to you prospects of rehabilitation including your driving history and Ms Cokorilo’s opinion that you exhibit persistent cognitive distortions about safe driving practices including the risks of mobile phone use. She recommends offence specific intervention targeting high risk driving behaviours.

131However, although you have prior convictions for driving offences there is nothing to suggest that you have otherwise been involved in any other criminality and you are a low risk of general reoffending.

132The driving you have exhibited is consistent with immaturity and one would expect that to recede over the period of the sentence I will impose today. You have been employed consistently as an adult, you have a supportive family, and many people have provided references attesting to your positive attributes. You are still a young man.

133Balancing these competing matters, in my opinion, you have reasonable prospects of rehabilitation. 

Standard Sentence

134The period specified as the standard sentence for culpable driving, eight years, is that which, considering only the objective gravity of the offence, is in the` mid-range of seriousness. The standard sentence is a guidepost to consider in deciding the appropriate sentence. It is not the starting point from which to add or subtract. It is one factor amongst the many factors I am required to consider, which I have tried to set out in these remarks.

135When considering current sentencing practices for culpable driving, which I have done some length by reading the sentencing manual case summaries, I must only have regard to sentences previously imposed for the offence as a standard sentence offence, and I have done so.

136In fixing a non-parole period for a standard sentence offence where the sentence is less than 20 years imprisonment, unless it is in the interests of justice not to do so, then I must fix a non-parole period of at least 60 per cent of the relevant term.

Principles

137In sentencing you for this offending I must send the message that drivers who involved in serious collisions caused by mobile phone use will face substantial punishment. Phone use while driving is a prevalent activity and highly dangerous when travelling at speed.

138Specific deterrence, given your previous convictions, requires some emphasis although moderated to an extent by your age. Community protection has some relevance.

139A life was lost, and young child’s life has been damaged by your actions, and I must denounce your offending on behalf of the community through the sentence impose.

140Just punishment is important given the enormity of this incident and the life changing impact on so many people.

141I must also have regard to the need to facilitate your rehabilitation and your reintegration into the community when your sentence ends.

Totality

142Charges 1 and 2 arise from the same grossly negligent actions and, therefore, significant concurrency between the sentences is necessary, but the sentences must reflect the separate and significant harm caused to Stanley and a period of cumulation for the offence of negligently cause serious injury is necessary. The overall sentence must be proportionate to the total criminality of then offending.

Non parole period

143The non parole period is the minimum period justice requires you to serve before becoming eligible for release. It mitigates punishment in favour rehabilitation, but it must be consistent with the objective gravity of the offences. In your case, your age and the need for rehabilitation is a significant matter in deciding the appropriate non parole period and I have allowed for an extended period of supervision on parole.

Sentence

144The sentence I impose is as follows. On Charge 1, you are convicted and sentenced to eight years imprisonment.  On Charge 2, you are convicted and sentenced to four years and six months’ imprisonment. I order that 20 months of the sentence on Charge 2 is cumulative on the base sentence of eight years on Charge 1.  This is a total effective sentence of nine years and eight months’ imprisonment. I fix a non-parole period of six years.

145I declare that 122 days of presentence detention is to be deducted from the sentence I have imposed.

146Pursuant to s 89 of the Sentencing Act 1991, I order any driver licenses that you have are to be cancelled and you not be permitted to be relicensed for a period of six years from today’s date.