Director of Public Prosecutions v Allely
[2021] VCC 2174
•20 December 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-01102
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KYLIE ALLELY |
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JUDGE: | HIS HONOUR JUDGE STUART |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 November, 15 December 2021 (Plea) |
DATE OF SENTENCE: | 20 December 2021 |
CASE MAY BE CITED AS: | DPP v Allely |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2174 |
EX TEMPORAE REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Dangerous driving causing death – Dangerous driving causing serious injury – Reckless conduct endangering persons - No prior criminal history – Insight and remorse – COVID-19.
Legislation Cited: Sentencing Act 1991 ss 6AAA.
Cases Cited: Worboyes v The Queen [2021] VSCA 169.
Sentence: Imprisonment for a period of three years and four months, with a non-parole period of 22 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
For the Accused | Mr R. Nathwani | Furstenberg Law |
| (For Plea) | ||
| Ms Bowden | ||
| (For Sentence) |
HIS HONOUR:
1Kylie Allely, you have pleaded guilty to one charge of dangerous driving causing death, which carries with it a maximum penalty of 10 years' imprisonment. The maximum penalty was increased by Parliament in 2008 from five years to that 10-year maximum period. You have also pleaded guilty to two charges of dangerous driving causing serious injury, being Charges 2 and 3, and conduct endangering persons, being Charge 4. Those last three charges each carry with them a maximum penalty of five years' imprisonment.
2At approximately 3.35 pm on Monday 15 October 2018, you were the driver of a motor vehicle which was involved in a fatal collision on Brown Coalmine Road, Yallourn North. At the time of that offending you were 29 years of age and are now 32 years old. That collision occurred in the eastbound lane of Brown Coalmine Road between Third Street and Quarry Road. The collision occurred when the vehicle that you were driving veered onto the incorrect side of the road, colliding head on with a Honda sedan containing three occupants which had been travelling east, you travelling west.
3There were three passengers in your vehicle, all children: a seven-year-old, a five-year-old and a three-year-old. Your stepdaughter Amber Rose Allen was the seven-year-old and it was she who sustained fatal injuries as a result of the collision, dying shortly after at hospital. She was in the rear passenger seat, as were your two children, Elijah Allen, who was the five-year-old, and Khaleesi Allen, the three-year-old.
4Charge 1, dangerous driving causing death, relates of course to Amber Rose Allen. Charge 2 relates to your child Elijah Allen, who as a result of the dangerous driving suffered serious injury. Charge 3 relates to one of the passengers in the Honda vehicle which your vehicle collided head on with, Ethan Bounds. He also suffered a serious injury as a result of this collision. Charge 4 relates to conduct endangering persons and that includes Khaleesi Allen, your child aged three; Kelly Bounds, the driver of the Honda; and Brett Lucas, who was also a passenger in the Honda vehicle.
5You and Gareth Allen had been in a relationship for some seven years. You had two children of that relationship, Elijah and Khaleesi. He had one child, Amber, to a previous relationship. All lived together until May 2018 when the relationship broke down. Joint custody was agreed, and it was decided that you would have week-on/week-off access to the children.
6On that fateful day, Monday, 15 October 2018, you collected the children from Mr Allen's address sometime around 8.55 am. You conveyed Amber to school and Elijah to kindergarten. You returned to his address with Khaleesi around lunchtime that day but left after an argument with him sometime later. You then were driving a green Holden sedan, which belonged to him.
7At approximately 2.40 pm you reattended at his address to obtain some cigarettes from him. You were in company with Elijah and Khaleesi at the time, having collected Elijah from kindergarten around 2 pm. You were due to collect Amber from Tyers Primary School at about 3.20 pm. You left Mr Allen's address a short time later and collected Amber from school. Having collected her from school at about 3.20, you drove on, travelling west along Brown Coalmine Road towards Yallourn North. Some 15 minutes after collecting Amber this collision occurred at 3.35.
8The driver of the other vehicle, Kelly Bounds, had a rostered day off on that day and she had run some errands locally in the morning before returning to her home address. She left that home address at about 2.40 pm, collecting her son Ethan Bounds and his friend Brett Lucas from school in Newborough before returning home momentarily. At approximately 3.25 she left her address, collected Brett Lucas from his nearby home address, and commenced a journey east along Brown Coalmine Road with the intended destination being Moe via a skate park in Morwell where both Ethan Bounds and Brett Lucas were to be dropped off.
9Your travel from Tyers Primary School to the point of collision along Brown Coalmine Road involved travelling along a road that posed no difficulty in negotiating, given it involved straight stretches and what could only be described as gentle curves. What follows are a series of incidents observed by various people who were either travelling in the opposite direction or, on one occasion, travelling ahead of you.
10The first observations were made by Troy Templeton, who had left his workplace in Yallourn North at around 3.15. He was travelling east along Brown Coalmine Road on his way home. That is of course the opposite direction from which you were travelling. He had just rounded a slight left curve just past Whittles Track and came onto a straight section of road where he observed the green Holden driven by you commencing to veer onto the incorrect side of the road and into his pathway.
11This was the first observed occasion when the vehicle driven by you moved out of your side of the road. It was not until some 5.3 kilometres later that the collision occurred. After Mr Templeton lost sight of you, you drove approximately 2.6 kilometres before a second incident occurred, observed by Jason Cook.
12At approximately 3.30 pm, around 2 kilometres further west, Mr Cook observed a fully laden B-double log truck along Brown Coalmine Road approaching the turn-off at the Tanjil East Road intending to turn right into that road. This is a dedicated right-turn lane at the intersection applicable for eastbound vehicles. The intersection is approximately midway along a 500-metre straight section of road. Mr Cook observed your vehicle coming around a left curve applicable to it approximately 250 metres ahead and your vehicle continued in a wide arc out of that curve and again, a second time, onto the incorrect side of the road.
13The third incident occurred involving observations of Fiona and Gary Rickwood, who were travelling east along Brown Coalmine Road nearing the intersection of Nardinos Road, which is approximately 450 metres further west of the intersection of Tanjil East Road. The Rickwood's vehicle had just rounded a right-hand curve applicable to them and continued on a short straight, both having similar observations of the vehicle being driven by you straddling the centre lines and in the centre of the road as your vehicle rounded the right-hand curve applicable to it.
14Mrs Rickwood had to brake heavily and move as far to her left as she was able so that almost all of her vehicle was on the left shoulder. She then sounded the horn as a last attempt prior to the expected impact. Your vehicle suddenly veered to its left and back onto the correct side of the road and was 'Only about 50 metres ahead' of the vehicle driven by Mrs Rickwood. This is the third observed occasion when your vehicle went onto the wrong side of the road. You had to travel another 1.5 to 2 kilometres before the collision occurred.
15A fourth witness, Tamara Lambe, was travelling from Morwell towards Yallourn North and travelled along Tanjil East Road, turning left onto Brown Coalmine Road. She observed your vehicle on her right as she executed her left turn onto that road ahead of you. Your vehicle was a sufficiently safe distance away from her for her to execute that turn in front of you and travel west towards Yallourn North.
16She observed your vehicle behind, approximately 5 kilometres later, as she entered a reduced speed limit area. She noted that your vehicle was veering around within the lane approximately two to three car lengths behind her. She observed your vehicle by taking regular glances into her rear vision mirror, as she was naturally concerned about the way in which your vehicle was being driven. She maintained a constant speed of her vehicle and observed your vehicle drop back then catch up again continuously over a number of kilometres whilst also veering within the western lane.
17She continued to observe your vehicle in the rear vision mirror and just west of Quarry Road applicable to the westbound traffic there is a gentle right curve. The road travels over a small bridge before a left curve and onto a short straight, where the collision occurred. Ms Lambe was approximately three to four car lengths ahead of your vehicle and noticed that your vehicle failed to properly negotiate the right curve and almost collide with the barrier on the outside of the curve.
18This is the fourth occasion where your car deviated from its proper course, and so I come to the fifth and final incident. Ms Bounds' car was travelling east. She was, as I have said, in the company of her son Ethan Bounds, who was seated in the front passenger seat, and his friend Brett Lucas, seated in the right rear seat. They travelled down a slight decline east of the township onto a straight section prior to Quarry Road and were gradually increasing speed in line with the 100 kilometre speed restriction applicable to that section of the road.
19Mrs Bounds observed your vehicle approximately three quarters of the way into her lane and travelling on a consistent angle across her lane. She began to brake and anticipated that your vehicle would veer back to the correct side of the road. It did not. Your vehicle collided head on with the Honda driven by Mrs Bounds within her lane. The impact between the two vehicles occurred in the approximate centre of her lane.
20The Honda was impacted rearward and rotated in a clockwise direction and came to rest on a slight angle across the eastbound lane facing in a southerly direction. Your vehicle was impacted slightly rearward and anticlockwise, coming to rest at an approximate 45 degree angle across the eastbound lane and facing in a south-westerly direction. As a result of the collision Ethan Bounds, as a front passenger in the Honda, suffered serious injuries and had to be taken to hospital.
21A witness Ariel Kelly was travelling east along Brown Coalmine Road at a distance behind Mrs Bounds' Honda. She observed the collision and saw your vehicle veer to the left side of the road, then sharply veer to the right and into the path of the Honda. She went to your vehicle and attended on your stepdaughter, commencing CPR until emergency services personnel arrived; however, of course, tragically she died from her injuries shortly thereafter. Police attended the scene at about 3.40, providing assistance and waiting for an ambulance.
22I have detailed the observations of those witnesses on those five occasions, the movement of your vehicle into the wrong side of the road as observed by those witnesses. From the point when you were observed first by Mr Templeton to the point of collision, bar some 200 metres around Quarry Road, the centre of the road was marked by tactile strips meaning that if your vehicle crossed those centre line markings the wheels would vibrate and there would be a noise alerting you to the fact that you had crossed over onto the wrong side of the road. Despite the frequency of that type of manoeuvre you continued on.
23Turning to the injuries that were caused as a result of this collision, your stepdaughter Amber Rose Allen died as a result of multiple injuries sustained during the collision.
24Ethan Bounds, a passenger in the other vehicle, had abdominal bruising in the seatbelt distribution and an unstable chance fracture of the second vertebra, L2, with a bony fragment impinging on the spinal cord and the perforation of the small intestine with release of faeculent bowel contents into the abdominal cavity. Dr Odell, having reviewed the medical records, concluded that these injuries were serious and life threatening and thus Charge 3, dangerous driving causing serious injury.
25Elijah Allen, again of course one of your passengers in the rear seat, suffered bruising to both lungs; fractures to the thoracic backbones, ligament damage to cervical spinal ligaments; and left-eye palsy, i.e. weakness; and an injury to the left eye which may require further investigation. Dr Bali, who reviewed his medical records, concluded that the injuries were serious because they were substantial and protracted, thus Charge 2, dangerous driving causing serious injury.
26The investigation revealed that Brown Coalmine Road at this location was a two-lane, two-way bitumen carriageway in a good state of repair. It ran generally in an east-westerly direction. There was a single lane in each direction and the east and westbound lanes were separated by broken white lines overlaid, as I have indicated, at that point by tactile line markings. A solid white edge line denoted the outer edges of both lanes and the bitumen surface ceased effectively at the outer edge of the solid lines on both sides of the road.
27This collision occurred in a straight section of road on a slight, gradual decline as applicable to eastbound traffic. Wide grassed verges abutted the bitumen edges on both sides of the road with fenced farmland on the north side, power station lands fenced by tall cyclone wire fence on the south side. The 100 kilometre speed restriction was applicable as defined by the erection of signs to that effect. The collision occurred in broad daylight. The weather was fine, the road was dry. Visibility was good.
28Detective Acting Sergeant Michael Hardiman, a collision reconstructionist, later attended at the collision scene, conducting analysis of material left at the scene, and provided the following conclusions:
'…at impact the Holden sedan was completely within the eastbound lane of Brown Coalmine Road when it collided head on with the Honda Civic sedan. Neither vehicle was travelling in excess of the speed limit when the vehicles collided'.
29A subsequent investigation of the vehicle you were driving revealed no faults or failures that would have caused or contributed to the collision.
30You also suffered serious injuries as a result of the collision and were taken to the Alfred Hospital for treatment. Whilst at the hospital a blood sample was drawn from you at 6.10 pm that day. This sample was analysed and found to contain 0.03 milligrams per litre of methylamphetamine or, as it is better known, ice.
31Dr Angela Sungaila reached opinions concerning your driving. She noted that some of the witnesses observed your vehicle drifting across lanes and then correcting. This in her opinion was consistent with a driver suffering from fatigue. I have reviewed her statement, which is at p50 of the depositions, and read the whole of her cross-examination at the committal proceedings, she being the only witness called. For my purposes the opinions that are stated on the last page of her statement are of relevance. They read from paragraphs 21 to 24 the following:
'The driving behaviour observed by various witnesses which resulted in the serious crash suggest that Ms Allely was falling asleep, was affected by a sedative drug or suffering a medical event.
If Ms Allely's pattern of methylamphetamine use is as described in the Alfred Hospital medical notes, her earlier use of methylamphetamine would have contributed to excessive fatigue in the days following its use.
Methylamphetamine at the level of 0.03mg/L is a low dose. It is unlikely to cause a stimulant effect which would be impairing. The level suggests that it was used in the days prior to the crash.
Ms Allely's driving behaviour indicates that she was not in proper control of her motor vehicle. Withdrawal from the use of methylamphetamine (if the recorded history of her use in Alfred Hospital medical notes is accurate) and associated fatigue is certain to have caused a degree of impairment; however, I am unable to say whether this factor was solely responsible for Ms Allely's driving impairment and crash.’
32There was some considerable debate during the course of the plea as to why you were fatigued. I cannot say whether it was the rebound effect of your earlier consumption of ice that caused or contributed to your fatigue, nor whether there was some other reason for it. In the end the simple fact is you were fatigued, and you were driving whilst so fatigued.
33And so, I turn to the victim impact statements that have been tendered. The first is a victim impact statement of Elizabeth Allen, who is a grandmother of Amber. She commenced by writing:
'My life has changed irrevocably since that day. A parent should never outlive their child let alone a grandparent outlive their grandchild.’
34A little later she continues:
‘For I can't bear another night seeing the crash site or hearing my grandchildren's screams and being powerless to save Amber. Of waking to the realisation that it was not just a dream. But a living nightmare. A black dog of sorrow that I must learn to walk with.’
35Still later:
'I often have to force myself to go to work. I have such feelings of dread. All I want to do is hide. If I can't be seen, then nothing can happen. I know it's irrational. But it doesn't stop my stomach from churning or me from throwing up multiple times a day.’
36She concludes:
'I want some semblance of acknowledgement of what has been taken away from her and us. Today is a struggle and life will never be the same again.’
37Kelly Bounds, the driver of the other vehicle, in her victim impact statement wrote:
'I am not sure there are or will ever be sufficient words to describe how much of my life has changed since our car accident. I think that anybody who has had a car coming directly towards them at 100km, being slammed all over from 12 airbags deploying, witnessing and hearing the aftermath of two cars colliding, having the jaws of life remove you and someone you love from the wreckage and the absolute horror all around as people were trying to be resuscitated, put in ambulances and helicopters, must be negatively impacted and traumatised'.
38She later on continues:
'I think the hardest thing for me to comprehend is the fact that it was an ordinary day. We were doing a trip we used to do 3 or 4 times a week and in an instant our entire world got turned upside down. On that day, our world as we knew it changed, and no matter how hard we try, we cannot get back what we had. As well as my physical changes, mental struggles and things I have had to give up or change, by far the hardest challenge has been watching Ethan struggle with simple tasks like trying to pick up something off the floor, putting on his socks or shoes, having to give up the sport he loved and struggle to learn at school'.
39And later still:
‘Some days my head is full of images and re-runs of what happened on that day with all the "what if" and "if only" thoughts and it can be a challenge to stop them. I am surrounded by triggers. It can be a smell, hearing an ambulance or helicopter, car crashes on the news, young children crying, watching Ethan with his daily struggles. I get knots in my stomach, feel uncomfortable and sometimes cry'.
40Her son Ethan has also provided a victim impact statement. He writes among other things:
'It has taken 3 years of regular physiotherapy and exercise physiology to get to my present state. It's far from what my body could do before the accident, though I'm grateful to be alive and I can manage my worst days with medication'.
41Later he continues:
'If I do physical activities I tire more easily and usually have to take pain medications that night or the following day.
To this day I struggle with menial tasks that I used to take for granted, like putting on my socks and shoes, drying the lower parts of my body after a shower or picking up an object from the ground level'.
42He then continues:
'I had aspirations of going to university and studying Mechatronics/Engineering and at that point believed that I had the potential to do so'.
43He then sets out his difficulties with study and education, concluding with this quotation:
'I have now successfully completed and passed Year 12 but cannot go to university, instead I would like to learn a skill through an apprenticeship'.
44And for my purposes there are two further quotations:
'I have had visits from friends during my recovery, but my social life is very different now. I was always out riding and socialising in some capacity. I had a big friendship group. I would leave early morning on the weekends and Mum would collect me when it began to get dark. I often stayed over at mates houses or had them stay at my house. I don't have that anymore. I have a small group of friends and we don't do any of the same activities, as both Brett and I aren't able'.
45He concludes with this:
'All the medical experts I have seen during the past 3 years cannot tell me what my future looks like or what is a realistic expectation. Only time will tell'.
46Finally, his friend Brett Lucas also provided a victim impact statement. He writes:
'Unfortunately, after the accident a lot changed, after a short stay in hospital I went home to recover. I had several physical injuries after the accident and have recovered from most of them, however, my worst injuries are mental. I struggle every day to remember things. This has a huge impact on most things I do. I returned to school after having a term off, I really struggled'.
47Later he continues:
'I cannot retain a lot of information due to my short-term memory; I will never be able to follow the career path I wanted and loved, as the information I would need to know is far too overwhelming and detailed for me to learn now'.
48And he too concludes in this way:
'I have never been interested in tattoos. In fact, I had always thought they were gross, but for some reason I felt the need to get a large tattoo on my leg above my knee with the date of the accident as a memorial for the young girl that died in the other car, I will look at this every day and never forget, I will always feel guilt that her life was taken so young, and I lived'.
49And so, I turn to assess the gravity of your offending. This was no momentary or even short lapse. It was dangerous driving that was prolonged. It was driving during which your driving was highly erratic. It involved multiple instances of deviation from your lane. You imperilled all other road users travelling towards you and you also imperilled the three children in your vehicle. It culminated in a head-on collision in which your seven-year-old stepdaughter was killed and two others were seriously injured.
50It was caused by your driving whilst fatigued on a country road where the speed limit was 100 kilometres per hour. The distance you drove whilst so fatigued was 3.5 kilometres. This offending in my opinion is a serious example of driving in a manner dangerous in public and reckless conduct by you driving whilst fatigued.
51And so, I turn to assess your moral culpability for this driving. You were an experienced driver and as such were well aware of the dangers associated with driving whilst your ability to drive was compromised. This is particularly so in any country area where the speed limit is high and the danger of collision, any collision, can be catastrophic. If you needed to be forewarned about the dangers of driving whilst your ability to drive was compromised, they had been drawn to your attention on no less than two occasions when you had been stopped for a random drug test.
52About two and a half months before this collision, on 26 July, the first of the random drug tests was performed. You tested positive for ice on that occasion. When asked to comment upon the positive test you said, 'I didn't realise 12 hours after the fact it would still be in my system'.
53As a result of that positive test an infringement notice was issued on 18 September 2018. That infringement notice was known by you to suspend your licence effective from 17 October for six months, two days after this collision. In addition, 12 days before the collision, on 3 October, you were again drug tested and produced a second positive reading for methylamphetamines. You were forewarned by those two random tests, if you needed any warning at all, of the need for you not to drive whilst your ability to drive was compromised.
54I do not use those two matters as aggravating features of your offending; rather, I use them to assist me in assessing your moral culpability for the offending on 15 October and conclude that your moral culpability for that offending as being high.
55This matter came on for trial in the Latrobe Valley County Court circuit in September. The matter resolved into a plea of guilty. The sticking point as between the prosecution and defence was the then charge of culpable driving in relation to the death of Amber. Sensibly the prosecution accepted your earlier offer to plead guilty to dangerous driving causing death. The other aspects of the matter were also resolved. Whilst these are not early pleas of guilty, the prosecution accepts, and appropriately so, that I must treat these as early pleas.
56I intend to take a short break before continuing.
(Short adjournment.)
57And so, I turn to your personal circumstances. You come before the court without any criminal history. You are entitled to draw from that circumstance in me sentencing you. It is to your credit that this is your first court appearance in effect.
58As I have already noted, you are a 32-year-old woman. Your personal history is unremarkable and is set out in detail, in particular in the psychological report of Patrick Newton, which became Exhibit KA2 on the plea. You were born in Bega in southern New South Wales. You were the eldest of three children. Your parents worked as dairy farmers, typically as tenants or sharefarmers. This was unstable employment and poorly paid and as a result the family suffered financially to a degree. As will be revealed, your parents are supportive of you.
59You attended a number of primary schools across the state of Victoria. You went to Warragul Regional College for your secondary schooling and you were a middle-of-the-road student academically. You completed your Year 11 via VCAL. You have a patchy work history. You have worked in children's services for some six months before ceasing. You have had other employment: as a trainee in dry-cleaning, and cleaner and doing milking and other roles for the dairy farm from time to time. You are, as I have said, a mother of two children. You have recently married.
60As to your mental health, Mr Newton at paragraph 24 wrote:
'Ms Allely told me that the collision of October 2018 has ushered in a profound personal crisis for her. She described symptoms of depression and traumatic anxiety in the aftermath accompanied by intense distress and functional impairment. These symptoms have waned to some extent but continue to trouble her. They are described in detail below'.
61At paragraph 37 Mr Newton opined:
'Ms Allely's depression is sufficiently intense to meet DSM-5 criteria for a major depressive disorder of moderate severity relative to other clinical patients'.
62He is also of the view that you developed post-traumatic stress disorder following the collision and in the 'Opinion' section at paragraph 45 writes:
'Ms Allely's symptoms are sufficiently severe to meet DSM-5 criteria for a major depressive disorder. This persists at moderate clinical intensity and with good medical treatment. There is a genuine risk that her mood could deteriorate if her supports or treatment were to be disrupted'.
63He also observed that you had a significant risk of progressing to develop complex PTSD.
64I have already observed that your parents have been supportive of you and they have written a joint letter which became Exhibit KA5.3. They write among other things:
'When Kylie started a relationship with Gareth Allen, he was the father of a nine-month-old baby girl, Amber Rose. Kylie became her mother in every way, she loved her as her own daughter. Kylie was the only mother that Amber knew, and that never changed when Kylie had two biological children of her own'.
65A little later they continue:
'Kylie is deeply remorseful, and full of guilt, not only for the hurt she has caused everyone who loved Amber Rose but also to the other family involved and the impact it would have on them for the rest of their lives and she hopes one day to tell them how sorry she is'.
66There have been other letters in support, and they are broadly letters which speak in the same way about you: in glowing terms. Barbara Vondracek wrote:
'Kylie was always the reliable one, the one to hold the different branches of the family together, organise get-togethers, parties for everyone's birthdays, and she also made sure all of the next generation of children knew and interacted with their cousins. It is not an exaggeration to say that Kylie is the fulcrum that the whole family rotates around.
To see how Kylie has grieved Amber Rose's passing and been wracked with guilt on top of her grief has been very hard for the whole family to behold. It has nearly killed her, literally'.
67Your endeavours of rehabilitation since this collision have been excellent, as revealed in the letter of nurse practitioner Ms Colvin, Exhibit KA3. She wrote:
'Ms Kylie Allely has been a patient of mine since she was sent to me by her CISP worker Jo James back in January 2020. She attended every appointment and did not miss any. She performed voluntary urine drug screens routinely and these were always negative'.
68As happens in cases such as this when a driver kills a loved one, there is special sadness for all, including you. Part of your written instructions to your solicitors became Exhibit KA6 and I only intend to read from the first portion of it as demonstrating how profound your guilt and remorse is for what you have done. It starts:
‘Honestly there are no words to describe how sorry I am to my baby girl Amber having her short life taken away. There's not a day that passes where I don't think about her, or have something that jogs a memory of her. To Amber's family (including my side) I truly am sorry, I would give anything to have her beautiful light shining again, including my own life. This world isn't the same without her and I feel her absence every morning I wake up knowing my angel is gone and every night I think about knowing my angel is gone, every night I think about her going over and over, that afternoon and the last time I was with her'.
69Your remorse is complete, your insight into your offending is also complete. You have pleaded guilty and are entitled to the full benefit of those pleas of guilty as if early pleas of guilty. If needs be, and I do not think it does, those pleas of guilty are available to me as further demonstration of remorse, but also the utility of the pleas of guilty is always a matter that must be taken into account.
70But more so nowadays as a consequence of the pandemic and the havoc that it has caused in the court systems, trials have only just recently resumed in the County Court in Melbourne. The utility of the pleas of guilty have been acknowledged of course by the Court of Appeal in Worboyes' case. The utility of the pleas of guilty in these times of pandemic cannot be underestimated.
71Your prospects of rehabilitation in my view are excellent. I am of the view that deterring you from further offending is irrelevant. I am satisfied that in the circumstances of this particular case that your remorse, your regret and the consequences of you suffering the loss of your stepdaughter is a matter that I can and do take into account as some extra judicial punishment. I also take into account that you have already been in custody for some 34 days and you will be returned to custody. This adds to the punishment that I impose.
72It is necessary in the circumstances of this case to acknowledge that the pandemic has affected the prison system as well and that you will suffer the restrictions and the confinements that are imposed because of the pandemic in the prison system. These matters were addressed in particular in the written submissions of your counsel at paragraphs 36 and following and I accept those written submissions.
73General deterrence, deterring others from similar offending, is the principal sentencing factor I must take into account. It must be brought home to others who are minded to drive whilst fatigued that should they do so, imprisonment awaits them. There is also a need for there to be just punishment and denunciation of your behaviour in driving whilst fatigued and so compromised in your ability to drive. I also must take into account the need for the sentences that I impose to be in total appropriate.
74Taking all these matters into account I sentence you as follows. Stand up, please.
75On Charge 1, dangerous driving causing death, I sentence you to be imprisoned for two years and four months. This is the base sentence.
76On Charge 2, dangerous driving causing serious injury, I sentence you to be imprisoned for one year. I direct that four months be cumulative upon the base sentence.
77On Charge 3, dangerous driving causing serious injury, I sentence you to be imprisoned for one year and I direct that four months of that period be also served cumulatively upon the previous sentences.
78Finally on Charge 4, conduct endangering persons, I also sentence you to be imprisoned for a period of one year and I direct that four months of that period be served cumulatively with the other sentences.
79This produces a total effective sentence of three years and four months. I set a non-parole period of 22 months. I declare that pre‑sentence detention is 34 days. I also direct that your licence be cancelled for four years from today's date and I state that but for your pleas of guilty I would have sentenced you to five years and set a minimum non-parole period of three years.
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