Director of Public Prosecutions v Cahill

[2025] VCC 394

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01016

DIRECTOR OF PUBLIC PROSECUTIONS

v

KATHLEEN CAHILL

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JUDGE:	BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2025
DATE OF SENTENCE:	31 March 2025
CASE MAY BE CITED AS:	DPP v Cahill
MEDIUM NEUTRAL CITATION:	[2025] VCC 394

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW:

Catchwords:              Sentence - Dangerous driving causing death, dangerous driving causing serious injury – dangerous intersection – low moral culpability – Category 2 offence – substantial and compelling circumstances exceptional and rare – 5(2H)(c)(ii) – low risk of re-offending – no criminal history – prolonged grief disorder and symptoms of PTSD -  disqualification of driver’s licence

Legislation Cited: Sentencing Act 1991 (Vic).

Cases Cited:Farmer v The Queen [2020] VSCA 140, Fariah v The Queen [2021] VSCA 213, DPP v Lombardo [2022] VSCA 204, Dabaja v The King [2023] VSCA 209, DPP v Nasser [2020] VCC 1660, Pan v The Queen [2020] VSCA 42, DPP v Neethling [2009] VSCA 116; R v Whyte [2002] NSWCA 343; Peers v The Queen  [2021] VSCA 264.

Sentence:                  Three year Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr R.  De Vetri	Office of Public Prosecutions
For the Accused	Ms K. Ballard	Stary Norton Halphen

HER HONOUR:

1Tragically, at 4.50pm, on Monday 27 June 2022, 25-year-old Alexandra Baines-Weekes was killed when she was the front seat passenger in a vehicle. Ms Baines-Weekes was on the way home with Bradley and Haylee Dean, they had spent the day in Ballarat shopping and having lunch. Alexandra Baines-Weekes worked as a hairdresser, she was a much-loved only child and grandchild.

2At the outset, I must acknowledge that the death of Alexandra Baines-Weekes has caused deep and profound grief to her mother, her grandparents, her family and all those who knew and loved her. It is my duty to sentence you, Kathleen Cahill, in accordance with the criminal law. The sentence I impose is in no way a measure of the worth of Ms Baines-Weekes’ life nor could it ever be. In the same way the sentence I impose is in no way a measure of the pain and suffering that Bradley and Haylee Dean now endure.

3Ms Cahill, your matter first came before me on 21 August 2024. You sought a sentence indication in relation to one charge of dangerous driving causing death and two charges of dangerous driving causing serious injury. Your application for sentence indication was not opposed and was granted. 

4On 25 March 2025, after two further court hearings where a considerable amount of evidence was presented to the court, I indicated that I would not impose a penalty that required you to serve a term of imprisonment. You accepted the sentence indication and were arraigned. You pleaded guilty to the charges on indictment P10153576. I ordered an assessment as to your suitability for a Community Correction Order. You have been assessed as suitable for such an order.

Circumstances of offending

5At approximately 4:50pm, on Monday the 27th of June 2022, a fatal collision involving two vehicles occurred at the intersection of Finchs Road and Greenhalghs Road, Bunkers Hill. You were driving a Toyota Hilux utility north on Finchs Road and failed to give way at an applicable give way sign and collided with a Holden Commodore sedan, driven by the victim, Bradley Dean, aged 30, who was travelling west on Greenhalghs Road. Mr Dean’s front seat passenger Alexandra Baines-Weekes was killed as a result of the collision. Mr Dean and his daughter Haylee, both sustained serious injuries.

6You were 33 years of age at the date of the collision. You were the holder of a full and current Victorian driver licence. Your three young children were passengers in your vehicle. Neither yourself or your children were seriously injured as a result of the collision, you were all medically checked and cleared at Ballarat Hospital. A blood sample was taken from you and was negative for any drugs or alcohol.

7At the location of the intersection, Finchs Road is a straight section of road, running in a general north/south direction. It is a two-way, single lane, undivided roadway. The road surface was sealed bitumen and was in good condition. The roadway was bordered on each side by a gravel shoulder which abuts to a grass verge with trees and rural property fence lines. Finchs Road was a designated 80km/h zone.

8When travelling north on Finchs Road approximately 210 metres prior to the intersection of Greenhalghs Road,  a reduce speed advisory sign was located on the west side of the roadway. Approximately 150 metres prior to the intersection a give way warning sign was located on the west side of the roadway. At this location the roadway inclines to a slight crest before dipping on approach to the intersection. There was a give way sign located on the west side of the road approximately 10 metres prior to the broken give way line painted on the roadway in the north bound lane and applicable to north bound traffic. These traffic warnings were applicable to you.

9Greenhalghs Road, at this location, is a straight section of road, running in an east / west direction. It has provisions for one lane of traffic to travel in each direction. The road surface was sealed bitumen divided by a broken white line applicable to north bound traffic and a solid white line applicable to south bound traffic. The roadway was bordered on each side by a grass verge with trees and rural property fence lines. The road is a designated 100-km/h zone.

10At the time of the collision, it was still and overcast, visibility was clear, the weather was good, and road was dry.

11Prior to the collision Mr Dean stated “We were singing and we were happy…as we approached Finchs Road I saw a white four wheel drive Ute with a bull bar…I saw she wasn’t stopping, I hit the accelerator and swerved right…I yelled out “hold on”…..I woke up in the paddock”.

12Prior to you reaching the intersection of Greenhalghs Road, you travelled past the reduce speed and give way warning signs. As you approached the intersection, you had the give way sign facing you and give way line markings applicable to you.

13You entered the intersection, failing to give way and collided with the passenger side of the Holden. The impact caused the Holden to spin across the east bound lane of Greenhalghs Road, over the grass verge on the northwest corner, into a solid timber fence causing it to snap in half and through a wire fence before coming to rest facing north in a paddock.

14Your Toyota continued over the east bound lane of Greenhalghs Road and came to rest on the fence line of the paddock located on the northwest corner of Finchs Road.

15There were no eyewitnesses to the collision. Several people arrived shortly after and alerted emergency services.

16Local police and emergency services attended the scene of the collision and took control of the scene. Police identified you as the driver of the Toyota. You were noted to be visibly upset and stated “it was my fault.”

17Police members from the Major Collision Investigation Unit, along with Collision Reconstruction expert Detective Leading Senior Constable Michael Hardiman attended the collision scene. Detectives examined, photographed and measured the collision scene, other relevant information was also obtained, and an investigation commenced.

18Sandy Beach was outside in her front yard at the time of the collision; she walked over to the collision scene. She stated to police “I heard a bang, I knew exactly what it was as its happened before…..I called “000” and raced to the intersection…..a big four-wheel drive thing, it was on the edge of the paddock closer to Finchs Road, facing toward Ballarat. When I got there, I saw a female and three kids…..the female said her name was Kate…..Kate kept screaming “I’ve killed them, I’ve killed them.”

19Helina Gordon was driving west on Greenhalghs Road when she observed the collision scene and pulled over to assist. She told police: “I got out of my car, and I hurried toward the scene, I walked into the paddock, between the guy and the lady, I could hear the guy yelling out, swearing, saying “what the fuck, what the fuck did you do?” toward the lady as she was approaching me. The lady grabbed both my hands, she was small and blonde, her hair was in a ponytail, she was in shock and crying, the first thing she said was “I’ve killed them, oh my god I’ve killed them”.

20Tegan Rowland was driving south on Finchs Road approaching Greenhalghs Road when she observed a Toyota Hilux Ute that appeared to be stuck in a fence on the west side of Finchs Road. She pulled over to assist and noticed a white sedan in the middle of the paddock. She told police: “I ran to the lady, I asked her name and she replied, “I killed someone, it’s my fault”…..she said her name was Kaity…..I got Kaity to talk, I asked her where she was from, and she stated Colac and said she didn’t know this area. She admitted she didn’t stop, and she killed someone.”

21Rebecca Whatmore was driving west on Greenhalghs Road toward Finchs Road. She observed a four-wheel drive on the edge of a paddock on Finchs Road. She stopped to assist the lady she saw at the four-wheel drive with her three children. She told police “When I reached the lady, she was a mess and kept saying, “it was my fault, my fault, my fault I killed someone”.”

22On the 28th of June 2022, you were under police guard at the Ballarat Base Hospital. You told this police officer: “I just remember seeing the give way sign at the last minute and thinking, shit, that’s a give way sign, then I saw the car.”

23Police reconstruction expert DLSC Hardiman provided the following opinion: “…..it is my opinion that the Holden Commodore was travelling in a westerly direction on Greenhalghs Road, approaching the intersection with Finchs Road. For an unknown reason, the Toyota Hilux, travelling in a northerly direction on Finchs Road, approaching the intersection with Greenhalghs Road, past a give way sign and collided with the passenger side of the Commodore. The driver of the Hilux has driven past two clearly visible warning signs in the lead up to the intersection. It is not known why the driver of the Hilux has failed to give way to the Holden Commodore. At impact, the Hilux was travelling at ~56km/h, while the Holden Commodore was travelling at ~94 km/h.”

24As a result of the collision, Alexandra Baines-Weekes, who had been seated in the front passenger seat of the Holden Commodore sustained fatal injuries and was pronounced deceased by Ambulance Victoria at the scene. She was 25 years of age and lived in Sebastapol. At the time of the collision, she was employed full time as a hairdresser and cared for her mother. Ms Baines- Weekes cause of death was noted as ‘multiple injuries sustained in a motor vehicle incident (passenger).

25Haylee Dean was aged 10 years old at the time of the collision and resided in Scarsdale with her father. Haylee was seated in the left rear passenger seat of the Holden Commodore. Haylee suffered bilateral femoral fractures, right tibial fracture, right distal radius and metacarpal fracture and extensive facial fractures and lacerations. She underwent surgery for repair of the femoral and tibial fractures. She had preliminary surgery for her facial wounds on 28 June and definitive surgical repair of the facial fractures on 6 July. Her hand fracture was managed conservatively in a splint.

26The driver of the Holden Commodore, Bradley DE was 30 years of age at the time of the collision and was residing in Scarsdale. He was the holder of a full and current Victorian driver licence. A blood sample taken from Mr Dean was found not to contain alcohol or illicit drugs. He sustained serious injury consisting of a physical injury to his shoulder and psychological injury by way of aggravation of a pre-existing post-traumatic stress disorder.

27Mr Dean had a grade 5 acromioclavicular joint dislocation, a severe joint injury which required two surgical interventions and the functional capacity of his shoulder has been significantly limited. There has been a reduction in degrees of motion in all tested activity planes and Mr Dean has suffered permanent limitations in function with limited improvement expired even with physiotherapy input. Furthermore, Mr Dean experienced adhesive capsulitis, an inflammatory process which slowed his recovery and added to the pain he experienced. Mr Dean experienced pain and an inability to lift, he was restricted from driving and had reduced capacity to conduct activities of daily living such as cooking, cleaning and dressing himself. As primary carer for his daughter his capacity to perform his role was limited. His return to pre-injury full function was significantly protracted and he has been prevent from returning to pre-injury work and has limited opportunities of finding subsequent work.

28Mr Dean also suffered psychiatric injury as a result of the fatal collision. Psychiatric opinion revealed that Mr. Dean had endured significant childhood adversity and trauma, including his brother’s death in a house fire that led to the development of post- traumatic stress disorder, adjustment disorder with mixed emotions and conduct and an alcohol use disorder and cannabis use disorder.

29Upon Mental State Examination after the collision, Mr Dean was irritable and angry, he had grief symptoms, reported flashbacks of the accident, gets anxious when in a car and had ideas of guilt. Based on the history, Mental State Examination, and documentation it was the opinion of Associate Professor Abdul Khalid that Mr. Dean experienced an aggravation of his pre-existing post-traumatic stress disorder and adjustment disorder with mixed emotions and conduct as a result of the transport accident. Further it was his view, that Mr Dean’s prognosis is guarded, as it is unlikely that his symptoms will remit completely, his capacity for employment and leisure activities have been affected. He does have the capacity to attend to his activities of daily living and domestic activities.”

Victim Impact Statements

30I acknowledge that there is nothing I can say or do that might comfort or heal the grief and pain so obviously felt. No sentence imposed can measure the worth of a life lost, nor can it begin to ease the suffering of loved ones left behind. The victim impact statements read to the court are heart wrenching to hear. To Alex’s family particularly her mother and grandparents I give my sincere condolences.

31Norelle Baines, in her victim impact statement, describes her daughter as a miracle baby who became her best friend and soul mate, a beautiful and caring person with a huge heart. Alex was someone who helped her mother with everything. Norelle describes always being proud of Alex, of her career as a hairdresser and her dedication to her clients. Norelle spoke of her enormous love for her only child, whom she cared for as a single Mum from the time Alex was 13 months old. In describing the depth of her loss, Norelle states that Alex was her world and “without her I’m nothing”.

32Alex’s Nan, Beverley Baines also provided a statement in which she describes how Alex was the most beautiful, thoughtful and caring person. Alex was soring ahead with her life, she had finished her apprenticeship, was managing her salon, had travel plans and other plans for the future, as grandparents they were so proud of her. Beverly describes the little things and the bigger things like caring for her mother, that Alex did which had so much meaning. In conclusion she writes ‘We loved and cherished our only granddaughter as she did us. Our lives will never be the same.’

33Alex’s Grandad, Fred Baines describes Alex’s death as the hardest thing he has done in his life. He has Alex’s photo on his laptop, just so he can see and talk to her. He says it is not much of a life for he and his wife.

34Understandably the focus of Bradley Dean’s victim impact statement are his feelings towards his little girl Haylee. He watches her daily struggles wishing he could take away her pain. He is proud of her bravery and resilience.

35Attached to the victim impact statement of Haylee Dean are some photographs of her injuries. They are distressing to look at and one cannot help but feel incredible compassion for her. These same pictures also depict a courageous and resilient young girl who is a survivor of a tragic ordeal. This has been life changing for Haylee, she describes that she has trouble sleeping most nights because of the pain, the nightmares and flashbacks that she suffers. There are days where she is not able to get out of bed and she is now not able to do most sports. She has excruciating headaches. The medical procedures Haylee describes made her feel sick as do the scars she bears and must look at each day. These scars are visible to all and Haylee has been subjected to bullying and feels people stare, point and whisper at her, which makes it difficult for her to go out in public. The physical and mental pains and the pain of losing Alex will remain with her for the rest of her life.

36In sentencing you, I take into account the pervasive, profound and immeasurable loss and pain each of these people continue to suffer as a result of the loss of their dearly loved daughter, granddaughter, family member and friend and the serious injuries they have sustained.

Nature and gravity of offending

37The offences of dangerous driving causing death and serious injury are quite obviously serious offences because of the tragic consequences inherent in the offending. The seriousness with which Parliament view these offences is reflected in the ten year and five year maximum penalties respectively. Dangerous driving causing death is also defined as a category 2 offence under the Sentencing Act.[1] This means that pursuant to s5(2H) of that Act, a custodial sentence must be imposed unless circumstances set out in paragraphs (a) to (e) of the subsection exist.[2] I will return to this issue.

[1] Sentencing Act 1991 (Vic).

[2] Ibid s 5(2H).

38At first blush it appears that you have flagrantly ignored a reduce speed sign, a give way warning sign, a give way sign and give way lines on the road way and proceeded through the intersection with no regard for the safety of other road users and your own children who were your passengers. If this were the case your moral culpability would be high and your inattention would be far from momentary.

39However, that is not the end of the evidence in this case. The intersection at Finchs and Greenhalghs Road was notoriously dangerous. There had been several accidents at the intersection. The speed limit had been reduced and modifications made and signs added because of this history. As itemised by Ms Ballard in her comprehensive submissions, several prosecution witnesses noted their concerns about the intersection. These included;

Sandy Beach - who said:

[4] 'I heard a bang, I knew exactly what it was as it’s happened before, a crash at the intersection'.

Jeremy Wallman - he said:

[2] 'I have lived in the area for 16 years, I know the intersection well, I have nearly been cleaned up a number of times myself driving through the intersection. I don’t recall the intersection changing too much during the time. Since the fires went through a few years back the foliage has grown up and the visibility isn’t as good'.

Rebecca Whatmore - she said:

[9] 'I am familiar with this intersection as I drive this way often. I know it to be dangerous, I am aware of a number of near misses that have occurred, my partner almost got hit there.

[10] I’ve been living in the area for eight or nine years and I am not aware of any changes that have been made to the intersection during that time.'

40Further in direct response to this collision a petition to improve the intersection was signed by over 800 people. The local council received numerous calls from concerned residents and the local paper published several reports detailing the issue. In July 2023, the City of Ballarat announced that it would install rumble strips on the approach to the intersection, replace the give way sign with a stop sign, and install warning signs on both sides of Finchs Road.

41In June 2024, and this is to quote directly from Ms Ballard’s written submissions, Federal Minister Catherine King attended at the scene and announced that Black Spot Funding had been approved and that almost $3 million would be spent on making the intersection safer. The minister explained that the ‘notorious’ intersection had been the scene of ‘at least three serious accidents and fatalities as well’.[3] The Mayor of Ballarat referred to the approach on Finchs Road being ‘a bit of a blind corner with a significant number of trees’ and advised that the upgrade would include the installation of a roundabout. [4]

[3] The Hon. Catherine King MP, Parliament of Australia - Doorstop Transcript, 14 June 2024

[4] Ibid

42Your counsel tendered a report from Mr Johann Tay, a Traffic, Transport and Automotive Engineer. The factual basis and some of the findings of this report were not disputed by the prosecution expert Detective Leading SC Hardiman. However, Detective Hardiman remained of the view that notwithstanding that the intersection geometry and road sign visibility and positioning were not in accordance with best practice it is incumbent on the driver to drive to the prevailing road conditions and pay all due care whilst driving. Any intersection can be dangerous if a driver does not obey the road rules.

43Mr Tay explained there were several things that made this intersection dangerous. Finchs Road was long and straight. At various points for northbound drivers there were crests and dips which made the road appear as though it continued straight ahead, known as a see-through effect. The second crest blocked the view on the intersection and reduced the opportunity for northbound drivers to perceive the crossroad as a hazard. In addition, there were trees that lined both Finchs and Greenhalghs Rd which further hampered the driver’s view of the intersection.

44In terms of the signage on the northern approach the following signs were in location; a reduce speed sign at a distance of 220 metres; a give way ahead sign at 140 metres; an 80kmh speed limit sign at 110 metres and the give way sign at 15 metres. The sequence of these signs is usual, except the 80 kmh sign was out of sequence. This reduced the warning sought to be achieved by the previous signs as well as confusing and distracting the driver. This sign was removed after the collision. Further to this, the give way sign was somewhat hidden or obscured by a ‘Roads to Recovery’ sign on the other side of the intersection. This combined with the fact that a northbound driver would see that sign at a time that the intersection was not yet visible and at a close proximity, reduced the conspicuity and effectiveness of the sign.

45In the 2020 decision of Pan v The Queen[5], a poor design of an inherently dangerous intersection was found to be of fundamental importance in assessing the moral culpability of a driver who does not obey several road signs and other warnings causing a collision, which in turn causes death and/or serious injury. In that case the Court of Appeal concluded that poor road design was a significant factor outside an accused driver’s control that should have compelled a significant reduction in the accused’s moral culpability in that case.

[5] Pan v The Queen [2020] VSCA 42.

46Using this same pathway of reasoning I consider the intersection at Finchs and Greenhalghs Road to have created a situation of dangerousness outside your control, such that your moral culpability should be significantly reduced. A matter which I consider further reduces your moral culpability is that you were completely unfamiliar with the intersection and its inherent dangers. You were not local to the area and did not have the benefit of local knowledge which existed.  

47Further, in your case there was an absence of common and relevant aggravating features.[6] That is, you were not speeding, using your phone, engaged in risky overtaking or lane changes and after the accident, testing revealed that you were neither drug or alcohol affected. While these factors are relevant they do not constitute a checklist. Dangerousness and moral culpability must be assessed in light of the circumstances of each specific instance.

[6] DPP v Neethling [2009] VSCA 116; R v Whyte [2002] NSWCA 343.

48In this case you were fully licenced, your vehicle was in good working order and you had a vested interested in driving safely as you had your three children aboard.  Further, you have no history of prior criminal or traffic offending. But for your failure to heed the give way requirement at this unfamiliar and latently unsafe intersection, your driving was safe. Consistent with this your remorse and acceptance of responsibility for the collision was apparent to those at the scene. You were described by a witness as crying uncontrollably, vomiting and screaming. You repeatedly stated that the collision was your fault and that you have killed someone.

49Although you are responsible for driving dangerously as admitted by your plea and your offending has brought about grave and tragic outcomes, in all the circumstances of this case, I assess your moral culpability as low.

Personal circumstances

50You are now 36 years old. You are not currently in paid employment rather you care for your three children aged twelve, seven and five years as a single mother. You live with your children on a rural property at Werneth, situated between Ballarat and Colac. You are the second eldest of the five children in your family. You have a younger sister, who you see regularly. Tragically your younger brother died in 2022. You have infrequent contact with your parents who are separated.

51From a young age you have lived on rural properties. During your childhood your father was a poultry farmer and your mother ran the household. Together with your siblings you worked with your father on the land. Homelife for you and your family was financially difficult. You father sold poultry at market and his earnings were modest. The family home was largely unhappy as your father worked long hours and your mother became estranged from the marriage and spent time with other men. This caused fighting between your parents which shifted the focus from the children.

52When you were around 15 years old, your family moved onto the farm at Werneth. This farm had been in your father’s family for generations and your paternal grandparents had previously lived there. Your father kept chickens, geese and ducks which he sold and owned pigs, goats, sheep and cows. You often went to market with him and helped with the accounts.

53Eventually in 2015 your mother left your father and the family. Your father struggled to cope and appeared depressed without interest in the farm. After a time he recovered and met another woman and moved away.

54In terms of education you attended Linton Primary school, outside Ballarat. You had some friends and got along well with your teachers. Academically you were not strong and had difficulty retaining information. You acquired basic numeracy and literacy and did better with practical tasks.

55In Year 7 you were enrolled in a high school in Ballarat. You increasingly found learning difficult and felt embarrassed in class. As a result you didn’t attend school regularly. Your parents did not appear concerned by this and in Year 8 you commenced at another school in Ballarat. School continued to be difficult and you stopped attending when you were in Year 9, aged 15. You later attempted a VCAL course and persisted with this for six months. At the age of 16 years you finally left school and spent your time working on the farm.

56After having worked on the farm for at least a couple of years, at the age of 18, you commenced work at an abattoir in Colac. You worked there for a year and for four more years at the abattoir as a drover which involved rounding up the sheep, with your sister. You left this work in 2012 when pregnant with your first child. Over the following years until 2019 you worked casually milking cows in the district, usually for ten to twenty hours a week. Currently, you live alone of the farm and while you care for animals and maintain the property you are reliant on centrelink for financial support for yourself and your family.

57Through your work in the poultry markets, you met your future partner, who is the father of your three children. He moved into your family household, however he drove logging trucks into South Australia, and was away for weeks at a time. You had your first child in 2012, at the age of 23. During this pregnancy your partner moved out and from that point he was more an occasional friend who visited the children than a father and partner. Although you have the three children together, you never really enjoyed a happy relationship with this man as he spent little time at home. However, you have very much enjoyed becoming a mother and raising your children to whom you are very attached. Your eldest son has behavioural problems and has been prescribed medication for possible ADHD.

58Throughout your twenties and early thirties your life centred on your children and running the farm. You were close to two of your sisters and very fond and protective of your younger brother, who also worked and lived on the farm. Since you were a child you have been reserved and anxious. You did not keep any of your friendships after leaving school and preferred the company of your family. You do not like crowds, and have always avoided parties and social gatherings. You have never travelled or been on a holiday. Travelling to Melbourne for court related matters and to attend court has been very difficult for you

59Twelve days prior to the collision which is now subject of these proceedings, your brother was involved in serious car accident and sustained head injuries. He was depressed prior to this time and this depression worsened after the accident.

60On 5 August 2022, five weeks after the collision involving Ms Baines-Weekes and Bradley and Haylee Dean, your brother was killed in another car accident. The loss of your brother in combination with the devastation you have experienced as a result of the death of Ms Baines-Weekes has been crippling.

61Since that time you have been surviving on the family farm. You have become estranged from one of your sisters and have very little connection and support from your parents. You essentially exist caring for your children and have interaction with your sister-in-law and one of your sisters.

Mental health

62At the first hearing of this matter in August 2025 your counsel tendered a psychological report from Mr Guy Coffey. In addition, Mr Coffey gave evidence in court on 22 November 2024. Based on materials provided and seven and half hours of interviews, spread over 4 separate sessions, with you, Mr Coffey gave the following observations and opinions;

(a)   Throughout these sessions you never smiled, you showed no positive emotion whatsoever, you wept and became very distressed when you spoke of the offending or your brother’s death. You were unable to name anything that you derived pleasure from.

(b)   Although you had experienced social anxiety since childhood you had never received any assistance. Prior to the collision you were content to lead a reclusive lifestyle preferring the company of your family.

(c)   In the aftermath of the collision your psychological wellbeing changed dramatically and you were profoundly and immediately distressed. You experienced severe insomnia, post-traumatic symptoms, emotional lability and functional impairment to the point that you struggled to care for your children despite concerted effort.

(d)   When your brother died five weeks later you went into a state of shock and your mental state unravelled further. You experienced a complex bereavement with pervasive and disabling feelings of intense grief.

(e)   Your post-traumatic reaction to the index offending and the loss of your brother have become entwined and the symptoms of each are experienced at various times throughout the day. Initially this had a significant effect on your daily functioning and your ability to get things done. Although the intensity has declined slightly over the last two years, the symptoms of trauma and grief remain active and continue to significantly interfere with your daily functioning. Tasks such as caring for your children have remained effortful.

(f)     You remain absolutely grief stricken about what you have done and are consumed by responsibility and guilt and a sense of wrongdoing. Your symptoms evolved to post-traumatic stress disorder. Although now on a conservative view your symptoms fall just short of the full criteria for that disorder. The more prominent disorder is one of prolonged grief however that is accompanied by quite debilitating post traumatic symptoms and quite debilitating lowered mood.

(g)   You meet the diagnostic criteria for prolonged grief disorder, which is a mental disorder under the DSM-5. Further you are suffering from post-traumatic symptoms and you have a diagnosis of clinical depression. On the whole the symptoms from which you suffer result in a significant disturbance of thought, mood and memory such that you fit within the definition of suffering a mental illness.

63I accept the opinions of Mr Coffey.

Other factors in mitigation

64Your counsel relied on other factors in mitigation including that the court process has been very challenging for you. It is now almost 3 years since the date of your offending. You have faced the uncertainty of what your future may hold and the very real prospect of imprisonment. I accept that this has weighed heavily upon you.

65You were first charged in January 2023 and committed to this court in June 2023. Since that time there have been a number of hearings designed to bring about resolution of the issues in this case. As mentioned your matter came before me as a sentence indication in August 2024. I heard evidence from psychologist Guy Coffey in November 2024 and received further material collated by your lawyers having been obtained via subpoena from the City of Ballarat. In December 2024 after further mention hearings the defence engaged an expert to provide further evidence as to the dangerousness of the intersection. This report was received in February 2025 and after submissions on 25 March 2025 I provided a sentence indication, which you accepted.

66Your plea of guilty entitles you to a sentencing discount. Not only have you spared the court the cost and time of what would have been a very difficult trial, but witnesses have been relieved of the need to relive tragic events. Most importantly, though the family of the deceased and the other victims, Bradley and Haylee Dean have been spared the ordeal of a trial and will now have closure.

67In addition, I accept that your plea of guilty is yet a further expression of your remorse. This is in addition to your expressions of remorse at the scene and those detailed by psychologist Guy Coffey. I accept that your remorse is both genuine and profound. I will allow a significant discount for your plea of guilty.

Category 2 offending

68As previously indicated dangerous driving causing death is a Category 2 offence. This necessitates the application of certain provisions under the Sentencing Act 1991 (Vic). Your counsel Ms Ballard submitted that the exceptions provided under s.5(2H)(c)(ii) and s.5(2H)(e) applied in the circumstances of your case. These provisions relevantly provide

In sentencing an offender for a Category 2 offence, the court must make an order [imposing imprisonment] unless (c) the offender proves on the balance of probabilities that (ii) the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or (e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order of imprisonment.[7]

[7] Sentencing Act 1991 (Vic) s 5(2H).

69At subsection (2HC), the statute goes on to say:

In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court (a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than any other purpose set out in s.5(1); and (b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and (c) must not have regard to (1) the offender's previous good character other than the absence of previous convictions or findings of guilty; or (2) an early guilty plea; or (3) prospects of rehabilitation; or (4) parity with other sentences.

70Subsection (2I):

In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to (a) the Parliament's intention that in sentencing an offender for a Category 2 offence, only an order of imprisonment should ordinarily be made; and (b) whether the cumulative impact of the circumstances of the case justify the departure from such a sentence.

71I have had regard to several Court of Appeal cases where these tests has been considered, in particular the cases of Farmer, Fariah, Lombardo. and Dabaja[8].  In the case of Farmer the Court of Appeal reaffirmed that a combination of factors can come together to satisfy the test in 5(2H)(e).[9] Further to this the Court of Appeal identified that the low moral culpability of an offender can add significant weight to such a combination of factors. Low moral culpability is a very important matter with respect to the Category 2 offence of dangerous driving causing death because it is the level of moral culpability that plays a fundamental role in the instinctive synthesis of what is an appropriate sentence where a death is caused by dangerous driving.[10]

[8] Farmer v The Queen [2020] VSCA 140; Fariah v The Queen [2021] VSCA 213; DPP v Lombardo [2022] VSCA 204; Dabaja v The King [2023] VSCA 209.

[9] Farmer v The Queen [2020] VSCA 140

[10]DPP v Nasser [2020] VCC 1660

72In Dabaja the Court of Appeal agreed with findings of the sentencing judge that although the combination of factors relied upon were substantial and compelling they were not exceptional and rare.[11] To be considered exceptional and rare would require something 'wholly outside the run of the mill factors typical of the relevant kind of offending'.[12]

[11] Dabaja v The King [2023] VSCA 209.

[12] DPP v Lombardo [2022] VSCA 204 [70].

73In your case, Ms Ballard submitted that there were several factors that combined to satisfy the test of substantial and compelling reasons that are exceptional and rare. In summary these factors include; your low level of moral culpability, the significant extra-curial punishment you continue to experience by reason of your ongoing guilt and anguish, your lack of any criminal or traffic prior offending history, your significant and ongoing mental health issues, your particular vulnerabilities were you to be imprisoned, the separation from your three children for whom you are the primary care giver and your plea of guilty, the value of which is informed by reference to your remorse, the utilitarian benefit and finality for the victims.

74I accept the combination of factors relied upon by Ms Ballard are substantial and compelling. That is, I consider them to be weighty, forceful and powerful reasons that justify departure from the imposition of a custodial sentence. In addition, I do find these factors in combination are exceptional and rare. For completeness, I note that this was conceded by Mr DeVietri for the prosecution.

75The evidence in this case reveals that your offending occurred at an intersection with which you were unfamiliar. This intersection was notoriously dangerous for several reasons including the ‘see through’ effect, the crests in the road, the trees and foliage which obscured the cross road, the unusual, distracting and confusing inclusion of an 80km speed sign amongst the warning signs leading to the intersection, and the give way sign obscured by the ’roads to recovery’ sign. The way these features combined revealed the extremely poor design of the intersection that was in reality an accident waiting to happen.[13] These factors were outside your control and are directly relevant to my assessment of your moral culpability which I consider to be very low.

[13]To borrow from Justice Croucher in Pan v The Queen [2020] VSCA 42, [88].

76That the intersection was dangerous was acknowledged by the changes made by the City of Ballarat and by the allocation of blackspot funding for extensive improvements including the installation of a roundabout.

77The personal events that befell you around the time of this collision were horrific. First, your brother sustained a significant head injury having been involved in a car accident. Twelve days later the offending now before the court occurred. Then five weeks later your brother was killed in a further car accident. This sequence of events has caused you to suffer unimaginable trauma, guilt and grief.

78It is the combination of all factors raised by your counsel, but most particularly the two I have just outlined, that in my view rise to the very high threshold required and justify this court not making an order for imprisonment.

79Your counsel, Ms Ballard, also relied on the exception provided is s5(2H)(c)(ii) of the Act. She submitted that the opinions of Mr Coffey established the necessary impairment. In my view it is clear that you suffer from impaired mental functioning within the meaning of the Act, for the purposes of the subsection. This was conceded by the prosecution.

80On the specific issue of whether your impaired mental functioning would result in substantially and materially greater than the ordinary burden or risks of imprisonment, in his report Mr Coffey provided the following opinion,

You have asked me whether Ms Cahill has a mental condition which would render a custodial sentence more burdensome. She does not suffer from a serious mental illness, and therefore that is not a source of additional hardship. a range of psychological vulnerabilities which would make the experience of custody more harsh for her. She is experiencing a debilitating range of grief and posttraumatic symptoms. She tries to cope with her condition by occupying herself with her children and running the household and farm, and through distracting herself. Her ability to avoid becoming immersed in thoughts about her causing death and injury and the loss of her brother will be considerably more difficult in custody; it is likely that during a term of imprisonment her symptoms will intensify. She may become more depressed. She is not an immediate suicide risk but there is potential for her to become so when in custody and separated from her children.

In the context of her grief and loss she has an anxious, protective and interdependent attachment to her children; she would find separation from them very distressing. To a pronounced degree she is a person who avoids and feels uncomfortable with unfamiliar people and situations. She will find the interpersonal arrangements in gaol challenging. She has no experience of the criminal justice system. She requires psychological treatment for her condition which may be difficult to deliver effectively in a custodial setting. Her mental well-being should be closely monitored in the event of her entering custody.

81In his oral evidence Mr Coffey clarified the distinction between a mental disorder such as the prolonged grief disorder and post traumatic symptoms from which you suffer, from a serious mental illness such as schizophrenia or bipolar disorder. It was his evidence that gaol would be challenging and uncomfortable for you given your pre-existing social anxiety. Further, at times you are flooded by the prolonged grief disorder and post traumatic symptoms and you deal with them by pre-occupying yourself with a range of activities which would not be available in gaol, without such tools to distract you, your mental health would be very vulnerable to deterioration, such that you would need good supports. Separation from your children would increase this burden as they have become your life.

82In cross examination when asked about the care you were likely to receive in prison Mr Coffey gave evidence that he had worked with a lot of prisoners who have been in and out of prison who went in with PTSD and came out with PTSD. Although, Mr Coffey agreed that it was speculative to say you would become actively suicidal if imprisoned he did not agree that the risk of serious deterioration of your mental health in a custodial setting was equally as speculative. It was his evidence that if you did not receive appropriate care and treatment then it was likely that your mental health would deteriorate because the protective features in your life, being the commitment to your children and the ability to keep yourself busy in your home environment would be replaced by a completely unfamiliar environment where you would be unable to occupy yourself easily with worthwhile activities and where you would be intimidated by the social setting.

83I have very carefully considered all the evidence presented on this issue including the Forensicare MHARS report from Mr Ian Berrisford. It is apparent that you require treatment for your parlous mental state however the efficacy and value of such treatment is accompanied by a degree of uncertainty, notwithstanding the potential availability of services, as detailed by Ms Shaune from Justice Health. I am mindful of the recent Forensicare report which suggests treatment that is mandated could be overwhelming and is likely to be counterproductive unless you are ready to receive the same.[14]

[14]Peers v The Queen  [2021] VSCA 264

84It is not an easy assessment however with the benefit of all the material and on further reflection I find on balance that you have discharged the required burden and that you would be subject to substantially and materially greater than the ordinary burden or risks of imprisonment.

Sentencing principles

85In addition to the factors I have mentioned thus far I take into account the powerful combination of other mitigatory factors in your case. You are a person of otherwise good character, you have been assessed by both Mr Coffey and the Corrections assessor as a low risk of re-offending. I consider in light of your lack of prior criminal history and your assessed low risk of re-offending that you have excellent prospects for rehabilitation.

86It is necessary that I acknowledge the sentencing principles of just punishment, deterrence and denunciation. The Court of Appeal has repeatedly emphasised the significance of general deterrence and denunciation for offending of this nature.[15] Plainly all drivers are required to drive carefully and attentively paying due regard to the conditions and hazards of the road. The community should understand that unless there are factors that truly fit within the exceptions as provided in the Act then imprisonment will result from dangerous driving causing death.

[15] DPP v Neethling (2009) 2 VR 466 at [54];  DPP v Oates {2007} VSCA 59 at [22].

87I take into account the sentencing guidelines where relevant to your case, as provided in s5 of the Sentencing Act.[16] I have had regard to current sentencing practices and have extensively reviewed cases for dangerous driving causing death. I have found these cases useful in terms of the principles that apply in cases such as this. Of course, each case turns on its own facts and the Courts duty is to impose a sentence that, in all the circumstances is just and appropriate.

[16] Sentencing Act 1991 (Vic) s 5.

Disposition

88Ms Cahill having indicated that I would not impose a term of imprisonment on the charges of dangerous driving causing death and the two charges of dangerous driving causing serious injury you are convicted and you are ordered to undertake a Community Correction Order for 3 years. This is a lengthy period of time and a significant punishment in and of itself. I propose to order that you perform a significant amount of unpaid community work in addition. The conditions of this Community Correction Order include that you perform 300 hours of unpaid community work over that three-year period.

89I have considered whether to impose a condition for mental health treatment but have decided that I will not. The reasons for this are twofold. First your offending was not caused by your poor mental health and second the advice of the Forensicare clinician is that at this time such treatment could be counterproductive.

90Given your low risk status corrections do not consider supervision necessary.

91In addition to the conditions that I have imposed, there are standard conditions that you must comply with.  The first and foremost is that you are not to commit any offences punishable by imprisonment during the 3 year period of the Community Correction Order, so this order will hang over your head for the next 3 years. 

92You need to report within two working days after today to your nearest Corrections office, which is the Ballarat Corrections office.

93You are required to advise your supervising corrections office of any change of address of where you are living or working within two clear working days.  And it is a term of all Community Corrections Orders that you must submit to visits as directed and obey the instructions and directions of the corrections officer.  You cannot leave the state of Victoria without their prior permission.

94Ms Cahill, if you reoffend you will breach the Corrections Order.  You will also breach the Corrections Order if you do not comply with the condition I have imposed and the standard conditions I have just advised you about.

95I can only place you on a community correction order if you agree.  So, firstly, do you understand what is involved in a community correction order.

96ACCUSED:  Yes.

97HER HONOUR:  And do you agree to undertake such an order.

98ACCUSED:  Yes.

99HER HONOUR:  So we will generate that order and I will have you sign it. 

Driver licence order

100Dangerous driving causing death is a serious motor vehicle offence pursuant to s87P(d) of the Sentencing Act and on a finding of guilt the Court must cancel an offender's driver's licence and disqualify them from driving for a period specified by the Court and not less than 18 months.[17] Pursuant to s. 89(2) I therefore cancel your licence and disqualify you from obtaining another for a period of 18 months.

[17] Sentencing Act 1991 (Vic) s 87P(d).

101Pursuant to s6AAA of the Sentencing Act, had you pleaded not guilty and been found guilty the sentence I would have imposed is one of six months in combination with a community correction order in similar terms.[18]

[18] Ibid s 6AAA.

102So we will just print the community correction order and we'll check that and have that signed.  Can you get Ms Ballard to check it and Ms Ballard will get Ms Cahill to sign it.

103MS BALLARD:  Thank you, Your Honour, if I might be permitted to leave the bar table.

104HER HONOUR:  Sure.  Ms Ballard, I'm not sure whether you would like me to allow you and Ms Cahill to leave the court whilst I remain here - - - 

105MS BALLARD:  Thank you.

106HER HONOUR:  And then I'll adjourn shortly.

107MS BALLARD:  Thank you.  I'm grateful for that, thank you, Your Honour, yes, we will.

108HER HONOUR:  And has Ms Cahill got some support with her at court today.

109MS BALLARD:  Yes, she is here with her sister and some family members who will accompany her out.

110HER HONOUR:  Thanks.  Can I just say to the family that I again offer my condolences, and I am sincerely sorry for your loss.

111MS BALLARD:  Thank you, Your Honour, if I might be excused.

112HER HONOUR:  Yes, thank you.  And Ms Ballard thanks very much for all of your hard work and very detailed and thorough submissions.  Mr De Vietri, the same to you, and also pass on my thanks to Mr Batton as well.

113MR DE VIETRI:  Yes, Your Honour, as the court pleases.

114HER HONOUR:  Thanks very much everyone, just take your time that you need.  I'm sure you probably won't want to stay here any longer than you have to.  I will adjourn the court.

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