Director of Public Prosecutions v Cochrane

[2020] VCC 1924

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00011

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE COCHRANE

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2020
DATE OF SENTENCE:	6 October 2020
CASE MAY BE CITED AS:	DPP v Cochrane
MEDIUM NEUTRAL CITATION:	[2020] VCC 1924

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fisher	Office of Public Prosecutions
For the Accused	Mr S. Moglia	Doogue and George Defence Lawyers

HER HONOUR: 

1Shane Cochrane, you have pleaded guilty before to one charge of culpable driving causing death.  The maximum penalty for this offence is 20 years' imprisonment.  You have also pleaded guilty to one charge of failing to render assistance at the scene of an accident where a person has been killed.  The maximum penalty for this offence is 10 years' imprisonment.

2You have also pleaded guilty to the following summary charges which were uplifted pursuant to the provisions of the Criminal Procedure Act:  charges of driving whilst disqualified, the maximum penalty for this charge being two years' imprisonment; one charge of fraudulently using a number plate, the maximum penalty being two months' imprisonment or 10 penalty units; and one charge of driving an unregistered vehicle, the maximum penalty if for a second offence or beyond being 50 penalty units.

3The facts underlying this offending are as follows.  It occurred late on the evening of August 2019 when a car you were driving struck and killed a pedestrian, Nisali Perera, as she crossed the intersection of Wellington Road and Scenic Boulevard in Clayton.  She was 20 years old, the only child of her parents, and had come from Sri Lanka to study at Monash University.  At the time she died she was completing her final semester in a Bachelor of Commerce and Business.

4On 17 July 2018 you were disqualified from holding a Victorian driver's licence for four years.  At about 5.30 pm on 29 August 2019 you drove a blue Mazda wagon belonging to the friend of your co-accused and then-girlfriend, Lauren Heinz, to a nearby supermarket from the unit in Clayton where you and she had spent the previous night.  At about 8 pm you drove from Clayton to Bayswater to drop a friend home.  Heinz was a passenger in the front seat of the car.  You stopped at a McDonald's in Bayswater on the way, eventually dropping your friend home.  You then began to drive back to Clayton.

5At about 9.40 pm red light and speed cameras at an intersection about 2 kilometres from the scene of the fatality recorded you driving along Wellington Road.  At about this time Ms Perera left the Clayton campus of Monash University, where she had been studying, and began the short walk to her home, arriving at the pedestrian lights at the intersection of Wellington Road and Scenic Boulevard at about 9.40.

6She pushed the pedestrian button to cross Wellington Road.  The lights turned red for cars travelling along Wellington Road at 9.41 and the pedestrian signals to cross Wellington Road changed to green.  Ms Perera then began crossing the westbound lanes of Wellington Road.  At about this time a Volkswagen Coles truck was travelling in the centre lane of the three-lane highway.  You were travelling along on Wellington Road.  He was slowing down as he approached the red light at the intersection of Wellington Road and Scenic Boulevard, the driver being one Suraj Upreti.  He also saw Ms Perera walking across the road, using the pedestrian crossing.

7You were travelling in the same in the same direction, that is west, along Wellington Road in the right-hand lane, then you overtook the Coles truck and then immediately crossed three lanes from the far-right lane to the far-left lane.  You did this without indicating and continued to drive at some speed towards the red lights and the pedestrian crossing.  At no stage did you apply brakes or slow down.

8The traffic lights facing you remained red.  You then drove through the intersection against the red traffic lights, by which stage they had been red for 12 seconds.  You struck Ms Perera, who was walking across the road using the pedestrian crossing and was only 2.3 metres from safety, being the other side of Wellington Road.  After colliding with Ms Perera you did not stop and you continued to drive west along Wellington Road.  The car you were driving was damaged to the point that both front headlights had stopped working.

9Meanwhile Mr Upreti stopped his car at the scene and called 000.  While he was still talking to 000 an ambulance that was passing by stopped to render assistance to Ms Perera. 

10The force of the impact to Ms Perera threw her into the air and was so severe that she was propelled 59.6 metres forward, landing in the entrance to the left slip lane for the service road on the south side of Wellington Road.  As a result of being struck by the car you were driving, Ms Perera was killed immediately.  Although paramedics tried to revive her, she was not breathing, she had no pulse and she suffered significant head injuries.  Minutes after attending her, paramedics determined there was nothing more they could do to save Ms Perera and confirmed she was dead.

11Another motorist, Anastasia Skidas, was driving east along North Road towards the intersection of Princes Highway and Wellington Road.  As she approached the intersection she moved into the right lane, intending to turn right into Princes Highway, and as she entered the intersection a green arrow was facing her permitting her to turn right.  At that point she saw a car to her left on Wellington Road that was proceeding through the intersection.  She told police that it was clear to her that this car had gone through a red traffic light.  That car was the car being driven by you. 

12At this point the Mazda you were driving was losing power and leaking fluid from the engine and you continued to drive west along North Road, eventually driving into a service road on North Road and entering the driveway of an abandoned church.  You and Ms Heinz then got out of the car and removed your personal property. 

13You took a jumper, some clothing and electric cables and Ms Heinz took her mobile phone and some other clothing.  The two of you left a mobile phone that belonged to the person you had dropped home in Bayswater on the front passenger seat and a Woolworths name tag bearing the name Lauren in the centre console.  You left no other property in the car.  The two of you then started to walk west along Wellington Road, the opposite direction from which you had come and away from where you had struck and killed Ms Perera. 

14You were seen by another motorist, Shane Butcher, who had driven his car into a nearby service station at the intersection of North and Clayton Road.  He told police that the two of you looked as if you were in a rush, walking very quickly, both carrying numerous items in your hands.  CCTV footage from the service station captured you and Ms Heinz walking across the service station apron carrying numerous items.

15Ms Heinz then used her mobile phone to request a booking through the DiDi ride share application, requesting to be picked up at the intersection of Whitburn Street and Clayton Road, Clayton.  The two of you continued to walk south along Clayton Road.  Ultimately you were picked up by a driver, Prasad Sharma, and he saw you running towards him. 

16He overheard you talking as he drove along.  He told police that he heard you talking about cigarettes, buying a lighter.  He said the female looked really scared and was looking around a lot through side windows at the car and appeared to be ducking down.  Two police cars travelled past the vehicle he was driving on Clayton Road in the opposite direction and he saw both you and Ms Heinz look at them as they went past.  He told police he had a gut feeling that the two of you had done something wrong. 

17As he drove along Clayton Road, Ms Heinz asked him to drop the two of you at the Coles supermarket further down the road.  The two of you then walked to the unit in Clayton where you had been staying.  You left the keys to the Mazda there and then you left the unit, this time in your red 2001 Holden Commodore station wagon.  This had no number plates affixed to it.

18At about 10.45 pm you drove your car to the 7‑Eleven service station at the intersection of Clarinda and Centre Roads in Clarinda.  At the time that you drove in, the car still had no plates on it.  Footage from the service station captured you refuelling the car whilst Ms Heinz went in and paid for the fuel. 

19At about 11.05 pm Leading Senior Constable Anderson was patrolling the area when he saw a fluid trail on North Road leading to the abandoned church.  There he found the damaged Mazda parked in the driveway.  Police attended and it was secured.

20A collision reconstruction expert after examining the scene determined that at the impact the car you were driving was travelling at no less than 84 kilometres per hour and no more than 106 kilometres per hour but most likely between 95 to 102 kilometres per hour at impact with the pedestrian.  The speed limit for the road on that stretch was 80 kilometres per hour.

21Eventually it appears that you drove to the home of a friend in the Clarinda area, where you stayed for several days.  Ultimately police, having in the previous days examined phone records and CCTV footage, viewed camera footage showing that on the morning of 2 September 2019 you driving your Holden Commodore into the shopping centre car park.  At this stage the footage showed a registration plate on the rear of the car but no plate on the front of the car.

22At 12.43 on the afternoon of 3 September 2019 detectives from the Major Collision Investigation Unit attended at 20 Pelham Street, Officer.  There they discovered you and Ms Heinz asleep in bed.  They spoke to you and recorded the conversation, you claiming that 'I was just driving along that road, that's what I'm trying to say, is that I don't know, all of sudden the next thing I know I've - I've hit somebody.  Like, I - I didn't even see her one bit'.

23You and Ms Heinz were taken to the Dandenong police station, later participating in records of interview.  Police also discovered your red Holden Commodore parked on the nature strip outside a child care centre on Brunt Road, Beaconsfield.  In a record of interview conducted on 5 September 2019 you exercised your right to answer no comment to all answers put to you.  By this stage you had been remanded in custody and were being held in the Melbourne Custody Centre.

24On 17 September 2019 police attended the Prison Intelligence Unit and listened to some telephone calls that had been made by you.  Those calls revealed that you wanted to speak to Lauren Heinz and that to avoid detection you would refer to Ms Heinz as Sarah Smith.  On 11 September 2019 one Jacqueline Hurt assisted you to communicate with Ms Heinz by holding two telephones together so you could talk to each other.  At this stage Ms Heinz had been granted bail on strict conditions, one of which was not to contact you.

25On 11 September Ms Heinz attended Ms Hurt's house in Bayswater and spoke to you in three separate telephone calls.  During those calls you admitted that you were the driver of the Mazda at the time it struck Ms Perera.  You said you did not see her before you struck her and you believed you were travelling about 80 to 90 kilometres per hour at the time of the collision.

26At the time that you struck and killed Ms Perera it was dark, the weather was clear and the visibility was good, as there was excellent street lighting illuminating the intersection of Wellington Road and Scenic Boulevard.  Traffic in the area was light and there were some, although few, pedestrians in the areas.  CCTV footage of the collision was obtained and played on the plea hearing. 

27I received a victim impact statement from Ms Perera's mother.  The victim impact statement made for incredibly distressing reading, as was only to be expected.  Nisali had been their only child, as I have already said.  Her mother wrote:

'From the day she was born to our family she brought us joy and happiness.  We took care of her like as if our lives depended upon her.  [And she described her daughter as] a very promising child who performed her studies very well'.

28Tragically she wrote:

'When she gained entrance to the University of Monash in Australia we were in two minds:  whether to let her go from our care and protection, to lead an independent life at the young age of 19.  However, considering her future, we reluctantly let her go so that she could fulfil her dreams and accomplish her life independently'.

29Mrs Perera wrote movingly of the enormous shock of the news of her daughter's death, saying it took her several days before -

'I realised I had lost her forever and she was never going to come back to me.  [Mrs Perera wrote] the feeling of guilt really overcame me for having given her the permission and blessings to go to Australia for her studies.  I still regret the fact that I let her go.  I keep thinking that if I didn't permit her to go Australia but instead kept her back in Sri Lanka that she would have lived.  Irony of the situation is that Nisali had a strong belief that Australia was a very safe country and that she could walk on the road at any time of the day'.

30She continued:

'I am 52 years of age and I don't have any hope of another child.  My only child is gone for good.  Words are not good enough to describe the emotional distress and anguish that I continue to suffer.  The feeling of loneliness and despair is immense.  Every time I meet and see her friends I feel really sad for the fact that the only missing person from that lot is my only child, who is never going to come back to me'.

31She talked about the devastation also suffered by her husband and wrote:

'As we do not have anything to look forward to in the future, I do not make any plans and I feel absolutely helpless'.

32Describing further the impact that this offending had upon her, Mrs Perera wrote:

'In Sri Lanka in our culture we live as an extended family even after marriage, especially a female child after her marriage keeps a close contact with the parents and would come back to the ancestral home to her mother after a childbirth.  When parents get older their grown-up children looked after the old parents.  I had similar expectation from my only child who passed away in this tragic event. 

'I have no hope for the future.  I always thought that when I grow old she would look after us as our earning capacity diminishes.  I wish to humbly state that we had given her the best education possible in Sri Lanka in an international school and Monash College in Sri Lanka.  Thereafter we sponsored her to do her higher studies at Monash University of Australia where she met her untimely death. 

'As I am not engaged in a pensionable employment I face an uncertain future.  The dilemma of facing an uncertain future, not knowing how to face the old age without any support from my daughter, drives me towards absolute despair'.

33Ultimately Mrs Perera concluded:

'After this tragic event our social life changed dramatically.  We stopped going out to social events as we had no joy in attending parties or other similar events.  In order to overcome anxiety and depression we have started taking part in religious events to find solace.  We feel insecure about the future, not having anybody to look after us'.

34I now turn to your personal circumstances. You are 38 years old and endured a childhood which could only be described as tragic.  You are the only child of your parents, who separated when you were about four.  You have two half-siblings through your father.  Both your parents had severe substance-abuse habits.  Your father was alcoholic.  After the separation you enjoyed a good relationship with him on weekends until he repartnered with another alcoholic, who abused you.  Your father died of cirrhosis of the liver when you were 12 and he only 33 and this traumatised you.  You have had no contact with your half-siblings since then.

35Your mother repartnered with an intravenous drug user and became addicted herself.  Due to their continued drug use your home was often raided by police, up to a dozen times before you were 12, on one occasion being loaded into a police divisional van as you left for school.  This terrified you.

36They moved frequently and you often had to move schools.  Your mother would take you with her when she had to sign on to a police station as a condition of bail for offending.  She spent periods of time in gaol.  You recall doing homework in the car while you waited for her to come out from the police station. 

37She was preoccupied with her partners.  She married three times in addition to the relationships with your father and stepfather, was unable to care for you properly and you had to look after and feed yourself.  You attended three primary schools and two high schools, had difficulties focusing in class, played the class clown to gain attention as a way of making friends at each new school and experienced attention difficulties.

38However, you managed to stay out of criminal trouble and you left school part-way through Year 9 to take up a job in furniture manufacturing, working full time in that trade for about a year.  You then worked for a further two years as a furniture removalist, then as an upholsterer and finally as a courier.

39You started using drugs when you were 16 after your mother moved out and left you in the care of a friend she had met in prison.  Other friends of yours moved in and you began using amphetamines and cannabis but only recreationally.  This went on for several years and during this time you maintained work and stayed out of trouble. 

40When you were 19 your mother fell ill due to long-term drug abuse and other medical issues.  She could not look after herself and you moved in with her and became her carer.  She died suddenly of a blood clot.  She was in bed and called out to you, but you did not attend her and then found her dead.  You became devastated with grief and guilt.  You had no family support and then plunged into drug and alcohol abuse as a result.

41Your recreational use of amphetamine became a daily one.  You developed a serious problem with alcohol, which till then you had avoided because of your father's death.  You began using methamphetamine in early 20s and continued to use this on a regular basis up until the time of your arrest for this offending.  You also began regularly using GHB in your early 30s, again using this regularly until the time of your arrest.

42Essentially you never worked again apart from some sporadic courier work soon after your mother's death.  You have had a number of relationships along the way, mostly lasting less than a year.  You have a seven-year-old son with whom you have had no contact for the past two years.  And from 2001, which was when you were about 19, you began offending on a continuous basis, appearing before the courts on 30 occasions, often on consolidations of numerous charges including multiple car thefts, of careless driving, unlicensed driving, numerous charges of drug possession and use of amphetamines, cannabis, ice, cocaine and GHB, of possessing the proceeds of crime, driving whilst disqualified, driving over the speed limit, criminal damage, reckless conduct endangering serious injury, dangerous driving, burglary, theft, attempted theft, handling stolen goods, recklessly causing injury, dealing with the suspected proceeds of crime, unlawful assault, drug trafficking, possessing a controlled weapon without excuse, going equipped to steal, driving at a speed dangerous and committing an offence on bail and so on.

43You have been placed on numerous community-based orders and community corrections orders involving drug and mental health treatment and have usually breached them by further offending and non-compliance and your drug use simply went on and on.  Eventually you were placed on a drug treatment order in 2012, but this was eventually breached in 2014 because of your continued drug use and associated offending.  Unsurprisingly you have been gaoled many times along the way.

44You have an appalling driving record, which includes convictions for dangerous driving, driving at a speed dangerous and driving under the influence of drugs.  The prosecution provided summaries of some of your previous offending. 

45In 2012 and 2015 you were apprehended whilst driving under the influence of drugs.  In 2013 you left the scene of a collision, though it appeared you may not have been at fault, whilst driving an unregistered car.  In January 2018 while under the influence of GHB you drove a car erratically over a traffic island, stopping in the middle of an intersection, taking off and then passing out at the wheel and stopping the car in the centre lane of a major highway, where you were apprehended by police.  At the time you were on bail for charges including reckless conduct endangering serious injury, dangerous driving and failing to stop on request.

46In October 2018, you having lost your licence as I have said for four years that you were detected by police driving at 110 kilometres per hour in a 60 kilometre per hour zone, resulting in a police chase where you reached an estimated speed of 200 kilometres per hour in an 80 kilometre per hour zone before police desisted because of dangers to the public.  They continued to follow you to a major intersection, where you were seen to have collided with another car, and you fled the scene before being apprehended.  An oral fluid test detected methamphetamine in your system.

47At the time of this offending you had been released from prison for about five months and did well for a while, complying with the conditions of a community corrections order and avoiding old drug associates, but the relationship you were in ended suddenly and your former partner took out an IVO against you and you became homeless.  You started using drugs again, which swiftly involved daily use of ice and GHB.  You had used both drugs the night before this offending.

48On the plea I was presented with psychological and neuropsychological reports.  The authors of those reports, psychologist Carla Ferrari and neuropsychologist Jane Lofthouse, also gave evidence on the plea.  Ms Ferrari diagnosed you as suffering ADHD in addition to a substance abuse disorder and recurrent episodes of a major disorder and she believed you had likely experienced post-traumatic stress disorder in the past due to your extremely unstable upbringing and the trauma surrounding your mother's death.  She found you compulsively used drugs to self-medicate against your psychological distress.

49Ms Ferrari believed your ADHD condition, which has not previously been diagnosed or treated, led directly to your offending because it caused innate executive functioning difficulties, that is an inability to focus, distractibility and impulsivity, and poor decision-making particularly in the face of a number of factors to be considered under pressure, which deficits would have been significantly impacted by your drug use.

50She said you told her you were distracted whilst driving, possibly by dropping the phone, then veered sharply across three lanes to avoid a collision with the car ahead, failed to see the red light and the victim crossing, and fatally impacted with her.  Ms Ferrari said research had revealed ADHD sufferers were more frequently involved in motor vehicle accidents due to their distractibility and impulsivity and the condition also prevented a person's capacity to learn from past mistakes.

51Testing by Ms Lofthouse placed you at the low-average range of intelligence with a significant divergence between verbal and non-verbal capacity.  That testing also reveals that you have suffered an acquired brain injury, which Ms Lofthouse thought had most likely been caused by drug abuse, although you have suffered other head injuries in the past.  She stated in her report dated 7 July 2020:

'Mr Cochrane demonstrated intellectual impairment consistent with him  having a mild to moderate level of executive dysfunction coupled with ADHD and a restricted ability to modulate his emotions and behaviour.  These are likely issues that have placed Mr Cochrane at risk of his impulsive behaviour and ill-considered problem solving and contributed to some extent to the behaviour that led to his current charges'.

52Ms Lofthouse also believed your drug use on this occasion would have further destabilised your behaviour, placing you at risk of re-engaging in poorly considered problem solving and increasing your impulsive reactions.  She wrote:

'Mr Cochrane's drug use would have compounded his intellectual deficits and psychological issues and been a further contributing factor in the behaviour that led to his current charges'.

53In evidence she said she could not quantify the extent to which your intellectual difficulties and drug use would have contributed to your offending but said your drug use would have significantly added to your already impaired functioning.  You expressed remorse for this offending to both Ms Ferrari and Ms Lofthouse. 

54Both experts believed you need long-term, one-to-ne psychological and drug treatment for your ADHD and drug addiction and therapeutic interventions to address your grief and loss issues, your trauma history and your depressive symptoms.  Ms Ferrari believed that you were a moderate risk of reoffending without appropriate support.  She wrote:

'Mr Cochrane demonstrates good insight and indicates motivation to reform himself, showing good prospects of rehabilitation if given appropriate supports'.

55I should add this is a very truncated summary of the considerable body of expert material placed before the court. 

56It is not suggested that I could deal with you in any way other than by a sentence of imprisonment to be immediately concerned and it was specifically conceded by your counsel Mr Moglia that this was terribly serious offending and that any sentence imposed would be a long one.  You told Mr Moglia that you knew you had hit something but not that you had hit a person, although it was clear that your passenger, Ms Heinz, did know and I am satisfied that you were quickly made aware of what you had done.  Mr Moglia said that you then immediately panicked and fled the scene, eventually making your way to the house of your friend in Officer, where you stayed until your arrest on 3 September. 

57Mr Moglia submitted that I find your moral culpability for this offending was reduced because of your mental health and intellectual difficulties, specifically your ADHD and acquired brain injury.  Although considerably worsened by your drug use, it meant you are less capable of making appropriate decisions at the time you approached the intersection, became distracted and then dealt with avoiding collision with the vehicle ahead in the way you did.  In other words he urged that I apply limbs 1 and 2 of Verdins.

58He submitted that your underlying innate difficulties meant that every decision you made, such as driving in those circumstances or circumstances where there was divided attention between moving factors, would be a deficit that came into play in your case.  He submitted that all that was required to have your actual circumstances, that is those intellectual impairments, be taken into account was that there was a reasonable connection between them and the offending.  He also submitted that I should find that those conditions will make a service for a term of imprisonment more difficult for you than the ordinary person.

59Both Ms Ferrari and Ms Lofthouse, whilst conceding your mental state in custody appears stable, believed your ADHD, acquired brain injury and psychological injuries put you at risk of impulsively poorly considered behaviour, leading to difficulties within the gaol and both thought you needed careful monitoring of your mental state.  They both believed a term of imprisonment would be harder for you than other people.  This was also accepted by the prosecution and is a factor that I take into account in sentencing you.

60However, the prosecutor Mr Fisher also submitted that the psychological evidence did not sufficiently establish the causal nexus between those conditions for limbs 1 and 2 of Verdins to apply, referring in particular to the concluding paragraphs of s.6.2.2 on the Sentencing Manual, which states:

'The effect of an impairment on moral culpability is a matter of degree.  A court should consider the gravity of the offending and, with the assistance of any expert evidence, the offender's conduct before, during and after the offending to determine the extent of the impairment's contribution to the offending.  The relevant question is whether the evidence establishes that the impairment contributed in a way that makes the offender less blameworthy as a result'.

61The prosecutor pointed, for example, to the fact that you had been driving across Melbourne that day since about 5.30 pm and making those decisions, including the decision to drive at all.  This meant, he submitted, that it could not be said or concluded that the decisions you made immediately prior to the fatal impact were the result of the intellectual impairments that you suffer.

62On the expert evidence, however, I am prepared to accept that your ADHD and ABI have resulted in innate impairments which may well have contributed to the appalling decisions you made in your driving on that night and thereafter.  However, in my view the expert evidence also made it clears that those impairments were significantly worsened by the effects of the drugs you had used.  That must mean that any moderation in sentencing arising from reduced moral culpability must itself be reduced and therefore does not play significantly as a factor in my sentencing of you.

63One can have great sympathy for the terrible difficulties, neglect, hardships and emotional trauma that you have experienced ever since you were a child.  These matters were raised eloquently and comprehensively by your counsel and the experts on the plea.  Despite these and against the odds, in your mid-to-late teens you were on a promising path until your mother's death, when you plunged into a terrible cycle of entrenched drug use to self-medicate against the anguish, grief, guilt and underlying psychological damage that had been done to you.

64However, this has gone on for nearly two decades and I am satisfied that many interventions have been tried over the years, in particular the Drug Treatment Order, which is the most intensive and comprehensive rehabilitation tool for entrenched drug users the justice system provides.  It includes psychological and drug counselling, provision of medical treatment, provision of accommodation.  All those interventions have failed.

65Your recent driving history revealed a dangerous escalation in driving under the influence of drugs in ways which could well have resulted in outcomes as terrible as the events of that fatal night.  You are now responsible for the death of a beloved only daughter who was the centre of her parents' world.  As is clear from the victim impact statement, their lives have been entirely and irrevocably shattered.

66You may have panicked at the enormity of what you had done, but this is the third time you have fled the scene of an accident, this time leaving behind the body of a young woman you had killed.  As I have already said, if you did not realise you had hit a person at the time of this impact, I am satisfied you became aware of this soon after but then made the decision not only not to render assistance but went on in a determined effort to escape detection.

67Your history, particularly recently, also makes it clear that in this sentence protection of the community, that is the community of road users and pedestrians, is particularly significant, as well as the normal principles of general and specific deterrence, just punishment and condemnation of your actions.  I accept you are remorseful and wish to reform.  I accept you are doing well in gaol, refraining from drug use and working as a billet, but the experts also make it clear you have entrenched difficulties which will require much treatment over many years, without which your prospects of rehabilitation are at best guarded.

68Copies of all expert reports will be forwarded to the Post Sentencing Authority and it is my particular comment that as far as possible their recommendations should be implemented as far as possible on your release on parole.  In sentencing you I also have regard to the various authorities submitted by each side.  I have also taken into account the COVID restrictions in services and activities in custody, noting this is to some extent dependent on the facility where you will serve your sentence.

69I also note that the standard sentence for culpable driving is eight years' imprisonment based purely on the objective factors affecting the relative seriousness of the offence.  In sentencing you I take into account your very early plea of guilty.  I neglected to refer to this, but it is accepted by the prosecution that you entered a plea of guilty at the earliest stage.  You have saved the community the time and expense of a trial and witnesses the trauma of giving evidence and you are entitled to utilitarian benefit for this.

70I accept that you are genuinely remorseful for your offending and I accept that you are remorseful for your actions.  I also take into account your extremely difficult upbringing and your intellectual and psychological difficulties.  While I accept their role in your offending and reduced moral culpability as a result, as I have already said, the extent of moderation is much lessened by your drug use on this occasion.  I therefore sentence you as follows.

71On Charge 1, culpable driving causing death, you are sentenced to nine years' imprisonment; on Charge 2, failing to render assistance after a person has been killed, you are sentenced to two years' imprisonment.  On each charge of driving whilst disqualified you are sentenced to six months' imprisonment.  In the charge of fraudulently using a number plate you are sentenced to one month's imprisonment; on the charge of driving an unregistered vehicle you are fined $200.

72The base sentence will be the sentence imposed on Charge 1, nine years' imprisonment, and I order that you one year of the sentence imposed on Charge 2 be served cumulatively to the sentence imposed on Charge 1.  The other sentences will be concurrent.  I order that you serve eight years before becoming eligible for parole. 

73May I ask what is the PSD, please.

74MR FISHER:  Your Honour, it's 355 days not including today.

75HER HONOUR:  I declare that 355 days of this sentence have been served by way of pre-sentence detention.  I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of 12 years and order that you serve a minimum term of 10 years.  You are disqualified from obtaining any licence in relation to - sorry, pursuant to Charge 1, all licences are cancelled and you are disqualified from obtaining any licence for a period of five years. 

76Is there anything further that I have to ‑ ‑ ‑

77MR FISHER:  There was just one other matter, Your Honour, and that was in relation to the drug contribution finding, which the Crown sought.

78HER HONOUR:  Yes.  I find that the offending was contributed to by drug use.  Thank you.

79MR FISHER:  Yes.  thanks, Your Honour.

80HER HONOUR:  Thank you very much.  Yes, thank you, we'll stand down until 10.30.  Thank you. 

81MR MOGLIA:  As Your Honour pleases.

82MR FISHER:  Your Honour pleases.

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