Director of Public Prosecutions v Colverd
[2024] VCC 1639
•23 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01152
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAYDEN COLVERD |
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JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 October 2024 | |
DATE OF SENTENCE: | 23 October 2024 | |
CASE MAY BE CITED AS: | DPP v Colverd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1639 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – sentencing.
Catchwords: Dangerous driving causing death – victim impact – failing to render
assistance – plea of guilty – delay – Verdins – extra-curial punishment.
Legislation Cited: Sentencing Act 1991 (Vic); Road Safety Act 1986 (Vic).
Cases Cited:
Sentence: Total effective sentence of 4 years imprisonment, with a non-parole
period of 2 years and 9 months. Drivers licence disqualified.
Section 6AAA declaration of 6 years imprisonment with a non-parole
period of 4 years and 2 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Kerlin | Office of Public Prosecutions |
| For the Accused | Mr J. Moore | Dribbin & Brown Criminal Lawyers |
HER HONOUR:
1Noah Peacock was only 19 years of age when he died in tragic and wholly avoidable circumstances on the 11 August 2022. You, Jayden Colverd, have pleaded guilty to one charge of dangerous driving causing his death and one charge of failing to render assistance.
2The collision occurred when the vehicle you were driving failed to negotiate a left curved alignment of the road and crossed onto the incorrect side of the highway, colliding with a vehicle being driven by Noah.
Circumstances of offending
3Your offending is outlined in the prosecution opening dated 23 September 2024 and this is the basis upon which I sentence you.
4The South Gippsland Highway at the relevant location is a two-way single lane rural road separated by double white lines. Both sides of the road are grassed areas with vegetation.
5On the day of the offending, the road was wet but the sun was out and visibility was good. The road was in good condition.
6Noah Peacock was driving a silver 2005 Ford Falcon Sedan and travelling in a north-westerly direction. A talented junior footballer, he was on his way to football training. Noah was driving normally, on the correct side of the road, and obeying the road rules.
7You were driving a white 2004 Ford Falcon Station Wagon in a south-easterly direction. The vehicle was registered in your mother’s name.At the time you were unlicensed, having had your licence cancelled and having been disqualified from driving on 18 February 2022 for a period of two years.
8Ms Eleonora Biro was also driving in a south-easterly direction. At about 4:20 pm she was driving along the South Gippsland Highway near Jeetho. She had just passed through the town of Loch and was travelling about 100 km/h as her car approached an overtaking lane and a rise in the road where she would usually back off her speed, when she looked in her mirrors and saw your car approaching quickly from behind. The car was travelling much faster than she was – ‘it was going like a rocket’ – causing her to slow her speed and consider pulling over. Concerned by how fast you were travelling and because you were both approaching the end of the overtaking lane she slowed her speed to let you pass.
9You overtook her close to the end of the overtaking lane as the road bended to the right. She describes that it happened ‘like a flash’ and the white station wagon was gone ‘in the blink of an eye’. She believed it was driving too fast for the road conditions.
10Ms Biro continued driving and followed the road around a left bend. She lost sight of you for a brief moment as you drove around the left bend. As she came around the bend she saw that the white station wagon you were driving had crashed into another car.
11Your vehicle had crossed over the dividing line and hit the silver car being driven by Noah head on. The station wagon had come to rest on the opposite side of the road and was blocking traffic travelling in the north-westerly direction.
12The car driven by Noah had been pushed by the force of the accident over to the left side of the road. It had hit a tree and was ablaze. Debris, including a car engine was in the middle of the road.
13Ms Biro stopped her car, got out, and called 000. Noah’s car was fully alight and Ms Biro couldn’t approach to assist as it was too hot. She saw your car was smoking near the bonnet and believed it too was about to catch fire.
14Ms Biro approached the driver’s side of the car and saw you were sitting in the driver’s seat, with blood on your face, and that you were attempting to push on the car door to get out. She helped you get out of the car and across to the side of the road.
15By this stage other witnesses had stopped their cars at the scene and attempted to provide assistance.
16As Ms Biro was providing details to the 000 operator, you started to run away from the scene of the accident. She yelled out at you saying ‘Stop, you can’t leave, come back, where are you going?’. Ms Julie Hussey approached you after she saw you walk to the side of the road and fall over. She told you to stop moving because she could see you were hurt but you replied ‘I need fresh air’ and continued down the embankment. Other witnesses chased you. You ran west from the scene, across grass towards some trees and shrubs that were a short distance away. They ran after you and called out but you kept running. You fell down an embankment into some blackberry bushes and replied ‘I just need some fresh air.’ You kept going pushing your way through the blackberry bushes and the witnesses were unable to follow you, as it was steep and the scrub was thick. You reached the bottom of the embankment and ran left along Jeetho Road. Witnesses searched for some 15 to 20 minutes but could not locate you.
17At 4:30 pm the first responding police members arrived at the scene of the collision. CFA and Ambulance members arrived moments later. CFA members attended to extinguishing the fire in Noah’s car. It took some time to fully extinguish the flames and make the vehicle safe. Once the fire was extinguished Noah’s body was found in the silver car, badly burned. He had died as a result of the collision.
18At about 4:45 pm Police began a search for you and at about 4:50 pm you were located walking along the shoulder of Jeetho Road. Police asked you to stop. You told them ‘I’ve been in a fight’, provided your name and said ‘my ribs are sore, can I sit down.’ You were arrested and returned to the collision scene so you could be assessed by paramedics.
19On arrival you were placed on an ambulance stretcher and subsequently flown to the Royal Melbourne hospital for treatment. Due to your injuries you were not subjected to a preliminary breath test at the scene.
20At about 7:25 pm members of the Major Collision Unit of Victoria Police attended the scene.
21Collision Reconstruction Expert Dr Jenelle Hardiman determined that:
(a) Gouge marks and scrapes on the road indicated your Ford Wagon had crossed around 1.47 metres onto the wrong side of the road at the point of impact.
(b) There was no way to reliably determine the speed of either vehicle in the collision. It was likely that both vehicles were travelling at a similar speed at the time of the collision.
(c) The road was wet at the time of impact. There were no pre-impact tyre marks from either vehicle identified at the scene but the absence of tyre marks did not exclude the possibility that either car braked prior to the collision.
22Dr Hardiman was unable to determine why the Ford Wagon had crossed onto the wrong side of the road. There was no evidence to indicate it was out of control prior to crossing onto the incorrect side of the road.
23On 17 August 2022 you were spoken to by police at the Royal Melbourne Hospital. Your responses are extracted at paragraph [41] of the opening and include the following -
(a) On the day of the collision you were driving to pick up an Xbox from Leongatha for your nephew’s birthday;
(b) You took your mum’s car before she was awake so you didn’t tell her about it;
(c) She wouldn’t have let you use the car because you didn’t have a licence;
(d) You had a lead for your dog which connected to the seatbelt, which your dog managed to get out of and ended up on your lap. This caused you to look down for two seconds to move him over and meant you could ‘hardly see’.
(e) When told that a witness had said you were speeding and had overtaken her in the lead up to the collision you denied speeding or overtaking anyone;
(f) You ‘might have had a little bit of memory loss’ but believed you were on the speed limit as you didn’t want to get pulled over as you had no licence.
24Investigators located your dog at the scene, but did not locate a lead or collar, and no dog-lead seatbelt attachment was located in your vehicle or at the scene.
25At 7:07 pm on 11 August 2022, whilst you were in hospital, a blood sample was taken from you for the purpose of analysis. The sample was analysed and showed:
(a) The presence of Delta-9-tetrahydrocannabinol (indicating cannabis use) in the amount of 9ng/ml was located.
(b) The presence of alcohol in the amount of 0.010 grams per 100 millilitres of blood was also located. It was estimated that you had a BAC of between 0.037 and 0.064 at the time of the collision.
26In summary, you drove in a manner that was dangerous to the public by virtue of the following factors:
(a) You were knowingly unlicensed at the time of the collision;
(b) You were engaging in risk-taking behaviours in the lead up to the collision (by overtaking Ms Biro at a speed and in a way not appropriate for the wet conditions);
(c) You had consumed alcohol and cannabis prior to driving which combined to impair your ability to drive (but did not prevent you from having proper control of your vehicle); and
(d) You crossed to the wrong side of the road, across double white lines, prior to colliding with Noah’s vehicle.
27Your dangerous driving caused Noah’s death (Charge 1).
28Following the collision you made no attempt to render assistance to Noah, instead fleeing the scene (Charge 2).
29You were arrested on 17 August 2022 and remanded in custody. As at the date of the plea you have been in custody for 798 days.
Victim Impact
30The profound pain and overwhelming grief experienced by Noah’s family, those who knew and loved him, and the broader community he was a part of, is undoubtedly beyond measure. The loss of such a vibrant young man, full of promise and potential, has left a void that cannot be filled. Through their heartfelt words, I have heard of a person whose kindness, humour, and generosity touched the lives of many. The collective sorrow of his family, friends, and community reflects the immeasurable loss of someone who was cherished and respected; a vital thread in the fabric of his family and community, now tragically ripped away.
31It’s important to acknowledge something now, even if it feels small in the face of such grief: the sentence I impose today is not, and can never be, a measure of Noah’s life. No legal judgment and no sentence imposed can measure the worth of a life lost, nor can it begin to ease the suffering of those left behind. My role requires me to consider many factors in imposing sentence and I do so knowing that none of it will soften the impact of this tragedy. To Noah’s family, particularly his mother, whose words capture a sorrow that runs deeper than I can say, I offer my deepest condolences.
32In her Victim Impact Statement Noah’s mum, Michelle Peacock, speaks of her heartbreak and immense and endless pain and how her life has changed forever. Noah was her precious second born son. She states, ‘Noah was such a beautiful caring, compassionate, loyal and considerate boy and even more so as he developed into a young man, he had a heart of gold and always put others before himself.’ They had a special bond; he was compassionate, perceptive and empathetic beyond his years and also fun loving and playful. Her life has not been the same since his death; she is anxious, fearful stressed and suffers nightmares and ongoing trauma. She concludes: ‘I could write forever about our beautiful boy Noah, but nothing can do him justice or take away our life sentence of pain and huge loss.’
33Noah’s dad, Jason Peacock, also provided a Statement in which he expresses how his life has now been destroyed and how your actions have ‘destroyed a family, a group of close mates and a tight knit community.’
34Jake Peacock, Noah’s older brother, referred to the significant impact your offending has had on him and how he has now been diagnosed with PTSD and severe depression. He states ‘nothing in life will ever be the same as it once was.’
35Lisa Jenkin, Noah’s aunt, speaks of the relentless grief caused by your offending and its significant impact on her family life with her young children. She also offers further insights into Noah as someone who, from a young age, would protect and stand up for others, or for what he believed in.
36Nicole Macqueen, mother of Noah’s best friend, states that he was like another son to her. She also speaks of her heartbreak and the pain she’s suffered. Ellie Stewart, Noah’s good friend, speaks of how she will cherish her memories of Noah and refers to the insurmountable loss and heartache she has felt and her ongoing fear, anxiety and anger. Jed Pye, who has known the family for some time and previously worked with Noah, also speaks of the devastating loss suffered.
37In sentencing you I take into account the significant impact of your offending.
Gravity of offending
38The offending is plainly serious as indicated by the maximum penalty of 10 years. Dangerous Driving Causing Death is also a Category 2 Offence under s 3(1) of the Sentencing Act 1991 (Vic). There is no dispute in your case that a term of imprisonment must be imposed and there has been no attempt to rely on any s 5(2H) exception.
39There is also no dispute that Charge 1 is intrinsically serious. Driving will be dangerous where there is ‘some serious breach of the proper conduct of a vehicle so as to be in reality and not speculatively, potentially dangerous to others.[1]’ Your case is not one of momentary or inadvertent lack of attention. The matters elevating the objective seriousness of your offending include that you were disqualified from driving at the time; there was an element of risk-taking behaviour in the time immediately prior to the collision in overtaking a vehicle towards the end of an overtaking lane; and you had crossed to the wrong side of the road across double-white lines.
[1] Stephens v K [2016] at [21]; Director of Public Prosecutions v Neethling (2009) 22 VR 466; Director of Public
Prosecutions v Ebonie Weybury [2018] VSCA 120.
40Further, the prosecution submit driving in this manner was particularly dangerous given the wet conditions and the nature of the road; that is, a single lane in either direction separated by double white lines, with scrub and trees on both sides of the road, and the relevant speed limit (100 km/h).
41Also, relevant to the gravity of your offending and your moral culpability I take into account the evidence of cannabis and alcohol in your system. Your Counsel accepts that you had consumed alcohol some hours prior to driving. As for the consumption of cannabis, although detected in your system, it was disputed that you had smoked cannabis prior to driving and the prosecution accept that this cannot be established to the requisite standard. It is agreed between the parties, and I am satisfied, that it is likely that there was a degree of impairment at the time of driving caused by the presence of these substances though the degree of impairment cannot be precisely known.
42In an assessment of the objective gravity of the dangerous driving and your moral culpability I have also considered the absence of relevant aggravating features, as outlined by your Counsel, including that:
(a) it is not alleged that the vehicle was exceeding the applicable speed limit at the relevant time;
(b) the period of dangerous driving was relatively short as opposed to what is commonly understood to be sustained or a ‘course of offending’;
(c) there was no evading a police pursuit;
(d) no sleep deprivation or the use of a mobile phone; and
(e) the car had no defects of which you were aware.[2]
[2] DPP v Neethling [2009] VSCA 116, [31]-[32]; Defence submissions. 30 September 2024, at [2.4].
43While these factors are relevant, I accept the prosecution submission that the mere absence of such features does not necessarily mean the offending involves low moral culpability.[3] . The relevant factors are not to be reduced to a checklist and dangerousness and moral culpability fall to be assessed by reference to all of the conduct and circumstances of the specific case.
[3] Stephens v The Queen [2016] VSCA 121 at [25]-[27]).
44Although they emphasise different factors, there is substantial agreement between the parties that your offending is objectively serious and falls at the ‘mid-range’ for offending of this type. Your Counsel highlights the absence of various aggravating features, along with your relative youth. The prosecution submit that by knowingly driving unlicensed, in the dangerous way that you did, and with drugs and alcohol present in the system, you displayed a wilful disregard for the safety and welfare of others on the road.
45Turning to Charge 2 there is also sensible agreement between the parties that this constitutes serious offending. In Tokay v The Queen,[4] the Court of Appeal, in referring to the notable increase in penalty for this offence stated:
That maximum penalty reflects serious community concern and disapproval of the failure to stop and render assistance. Several judges of the Court have described the reprehensible nature of the offence…and have referred to the fact that offenders must expect a substantial term of imprisonment.[5]
[4] [2014] VSCA 285.
[5] Ibid [26].
46In my assessment I take into account that you fled the scene after being assisted out of your car by Ms Biro. Despite her and others telling you to stop, you ran from the scene and persisted in your flight when being chased by witnesses. When apprehended by police some 20 minutes later you lied about ‘being in a fight’.
47I accept, even accommodating for a degree of panic that you are likely to have experienced given the terrible situation that had unfolded, it can safely be inferred that you fled to avoid apprehension. The circumstances surrounding your failure to remain and offer assistance require general deterrence to be given considerable weight in the sentencing consideration. I also take into account, as advanced by your Counsel and in an assessment of your moral culpability that when you did flee there were numerous other people already at the site and that this was not a situation where you were the only person present who could have helped but didn’t.[6]
[6] Wassef v R [2011] VSCA 30 [27]-[28].
48Your counsel comprehensively outlined your personal circumstances and canvassed a range of mitigating factors, which were largely uncontested by the prosecution. I now turn to a consideration of these factors.
Personal circumstances
49As to your personal circumstances you were 25 years of age at the time of the offending and are now aged 28. You were raised in Cranbourne by your mother and father and have three older siblings. Your father was the primary income earner. You describe him as a regular drinker and a strict disciplinarian, often resorting to physical punishment. Your childhood was otherwise relatively conventional. Things changed for the worse when your parents separated. They gradually drifted apart and in around 2019, when you were 12 years of age, they divorced. This significantly impacted you as your father left the family home. Although he remained geographically close, he had very little to do with you from this time, causing you to feel abandoned and rejected. In turn your relationship with your mother also suffered. Further compounding this period you described to Forensic Psychologist, Ms Laura Fleming an episode of sexual abuse occurring when you were approximately 12 years of age, as detailed in the report and your Counsel’s submissions at paragraph [3.5]. This is something you have only started to discuss with a prison psychologist.
50You struggled through adolescence, with behavioural problems.. There was an unsuccessful attempt on your mother’s part to obtain some medical assistance when you were around 13 years of age. Over the years you have experienced poor mental health, as suggested by your previous suicide attempts at the age of 16 and then in your early twenties.
51Growing up you had a very close relationship with your maternal grandfather and your mother’s letter provides further insights into this relationship (Exhibit 4). He developed dementia and had to be placed in a home and you would visit him regularly and you were impacted by his death several years ago.
52In terms of schooling, you went to high school until Year 9 but you didn’t do well and you still struggle with numeracy and literacy. Ms Fleming considers it likely that you suffered from undiagnosed Attention Deficit Hyperactivity Disorder (ADHD). You attended Chisholm TAFE where you completed a year 10 equivalency and a pre-apprenticeship program. After school you started a carpentry apprenticeship where your progress was sporadic. Overall, you have worked on and off throughout your life. In addition to your work in your apprenticeship you have also worked for several years as a general labourer at a building business.
53You have a long history of substance use. You started drinking alcohol from around the age of 12 and became a heavier drinker in your late teens and into adulthood. From the age of 12 you have regularly used cannabis, prior to your remand often smoking seven grams in a five day period. You have a significant history of other substance use, including ice between the ages of 14 until 20 and heroin from around 16 into adulthood.
54In the community you have not engaged in any drug or alcohol treatment. In custody you are now on monthly buprenorphine injections and are abstinent from drugs.
55You do not have a history of mental illness but presently your mental health is poor and you are prescribed a range of antidepressant and other medications in custody. You have also recently been diagnosed with ADHD and are due to commence medication (atomoxetine) for that shortly.
56Ms Fleming considered that you present with symptoms for the following conditions: post-traumatic stress disorder, drug use disorder (in early remission in a controlled environment), severe opioid use disorder (on a replacement program) and alcohol use disorder (also in early remission in a controlled environment).
57On the basis of Ms Fleming’s assessment your Counsel submits that the fifth limb of Verdins[7] is engaged. The existence of your PTSD may mean that a term of imprisonment will weigh more heavily on you than it would on a person in ‘normal health.’ This is not disputed by the prosecution and I accept that it has application in your case.
[7] R v Verdins (2007) 16 VR 269.
58Your Counsel also relies on the sixth limb of Verdins based on the opinion of Ms Fleming that
in individuals with trauma, a period of imprisonment would trigger additional deterioration of mental health due to ongoing exposure to triggers, maintaining the fight and flight response, and there is potential for significant mood fluctuation.[8]
[8] (Amended) report of Forensic Psychologist Ms Laura Fleming, 24 September 2024, 139.
59The prosecution submit that the report does not provide a sufficient basis for the Court to accept there is a serious risk that imprisonment will have a significantly adverse impact on your mental health. I accept that while there may be some risk, on the evidence, it doesn’t reach the necessary threshold. In addition, while not determinative in any way and while I accept your Counsel’s submission that one can be at serious risk of worsening mental and still able to access treatment, I do note that you have been in custody for the last 2 years and there has not been a significant decline in your mental health. It appears you have become stable through medication.
60Your Counsel also refers to the ‘significant markers of childhood deprivation’ in your case in support of a submission that the principles concerning the general approach to Bugmy are enlivened which should have some reduction in the assessment of your moral culpability[9]. The prosecution submit that many of the factors are unremarkable and the details of others, including the sexual abuse, don’t provide a sufficient foundation to enable the court to make such findings. The fact that other offenders in other cases may have been subjected to more significant or profound childhood deprivation doesn’t mean that your experiences are not relevant in a general sense or do not warrant some sensible reduction. I consider that there is sufficient detail before the Court as to your experiences of trauma, including of sexual abuse at a young age. Ms Fleming opines that you were:
exposed to destabilisers in your childhood … that resulted in early onset substance abuse, poor mental health and reduced coping abilities … [Your] lack of positive modelling and appropriate boundaries and early disengagement from education would have further limited [your] access to prosocial structures, negatively impacted on [your] life trajectory and undermined [your] emotional, cognitive and behaviour development.[10]
[9] DPP v Herrmann [2021] VSCA 160; Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
[10] (Amended) report of Forensic Psychologist Ms Laura Fleming, 24 September 2024, 128.
61You have a limited prior criminal history and relevant traffic matters. On 18 February 2022 you were fined and your licence was cancelled and disqualified for a period of 2 years for refusing to accompany police for a breath test.
Plea of guilty
62In all the circumstances I accept that your plea of guilty should be treated as an early one. You were originally charged with a more serious offence. You offered to plead guilty to the charges before the Court on 7 December 2022, at the time of the committal mention. With the benefit of further Court processes and discussions, the matter subsequently resolved. Your plea has saved the cost of a trial and prevented witnesses from having to give evidence which would have been a harrowing experience for them. I accept it demonstrates a willingness to facilitate the course of justice.
63Whether your plea also demonstrates remorse was in dispute between the parties. The prosecution clarified at hearing that it did not suggest there was no remorse but rather that your account as to your dog jumping on your lap and distracting you at the time of driving may have been an attempt to minimise the dangerous nature of your driving. Your Counsel submits that, rationally, it could not operate in this way. It is no more than a contributing factor to what occurred and, if anything, is against your interest as it suggests that you were also driving with an unsecured animal inside. In all the circumstances, I accept that you are remorseful for the loss of life that you have caused. In particular, I take into account the early stage of your plea offer, the contemporaneous notes made at the hospital (17 August 2022, Exhibit [9]) when you found out that Noah had died and your obvious distress, and the letter from your mother which states that you relive daily the damage and grief you’ve caused and wish you could somehow change it. I accept your remorse is genuine.
Delay
64I also take into account as an important factor the delay in your case, which is just over 2 years. The delay focuses attention on considerations of rehabilitation and fairness.[11] I take into account that you have had significant uncertainty hanging over your head for this period and that you have used the time available to try and progress your rehabilitation, which I will return to shortly.
[11] R v Todd [1982] 2 NSWLR 517.
Extra-curial punishment
65It was submitted by your Counsel, and I take into account, that the impact of the offending on you has been significant, both psychologically and physically. You were initially taken to the Royal Melbourne Hospital on 11 August 2022 by airlift and were discharged on 18 August 2022 to St Vincent’s Hospital. In total, you were in hospital for two months and suffered a range of physical injuries, as outlined by your counsel, including a head injury and several fractures. I also take into account the psychological symptoms, and exacerbation of your PTSD. The prosecution do not dispute that these matters can be treated as extra-curial punishment but submit they should be assigned less weight given the prominence of general deterrence for this type of offending[12].
[12] Singh v R [2021] VSCA 161.
Prospects of rehabilitation
66Your Counsel submits that your prospects of rehabilitation should be regarded as fair and relies on a number of factors, including your willingness to plead guilty; that this is your first experience of custody; the recent efforts you have made; your good family support and your ‘improving insight’ into the negative aspects of your behaviour. The prosecution submit that in light of your relevant driving and criminal history, and your assessment as a moderate risk of reoffending if you do not address your trauma symptoms, the Court should be guarded against a positive finding in relation to your prospects.
67In my assessment I take into account your previous driving and criminal history. I have also had regard to the subsequent matters as outlined by your Counsel, including the outstanding charges for which you intend to enter a plea of guilty. Given the nature of these charges, I do consider they have some relevance to your prospects of rehabilitation and specific deterrence.[13]
[13] Bellizia v R [2016] VSCA 21.
68I also take into account that you are now well supported by family and have regular contact with your mother, siblings, and niece and nephew, most of whom have also attended Court in support of you.
69In custody you regularly see a prison psychologist and have had at least 20 sessions with her, where you canvass a number of issues relating to your past trauma.
70You have also undertaken a range of programs in custody including welding, catering and IT. Your Counsel outlined the programs you have undertaken (see at [4.8]) and they include substance misuse programs, Changing Gears (15 hours) and Ice and Me (6 hours); courses by Kangan Institute and the YMCA ReBuild program. You also work within industry at Ravenhall Correctional Centre (see Exhibits [5]-[8]).
71Your Counsel submits, and I accept, that if your drug use, trauma symptoms and social circumstances can be meaningfully addressed your prospects will be enhanced. Ms Fleming makes a number of recommendations at the end of her report which may be of assistance to future treatment providers.
Sentencing principles
72The purposes for which sentences may be imposed are just punishment, specific deterrence, general deterrence, rehabilitation, denunciation and protection of the community. The Court of Appeal has repeatedly emphasised the significance of general deterrence and denunciation for offending of this nature.[14] Specific deterrence, protection of the community and just punishment are also important considerations in the sentencing exercise.
[14] DPP v Neethling (2009) 2 VR 466 at [54]; DPP v Oates [2007] VSCA 59 at [22].
73I take into account the sentencing guidelines where relevant to your case, as provided in s 5 of the Sentencing Act1991 (Vic).
74As already noted, there is no dispute that the only appropriate and just sentence is a term of imprisonment. Your Counsel submits this is unavoidable, given the gravity of the offending and the prominence of general deterrence, but that the mitigating factors should operate to considerably moderate the length of any sentence. Also, it was submitted that the minimum non-parole period should be shorter than it might otherwise be to take into account the mitigating factors.
75Given the gravity of the offending and its significant and ongoing impact, I agree that the only just and appropriate sentence is a term of imprisonment. As the higher courts have made clear, a non-custodial sentence should be seen as exceptional in such cases.
76I have had regard to the maximum penalties of 10 years. I have also had regard to the principles of parsimony, proportionality and totality. I do consider that a degree of cumulation is required between charges, to reflect their objective gravity and to mark the separate criminality involved.
77I have had regard to current sentencing practices. As both Counsel indicated, there is some difficulty in finding comparable cases. I have considered the cases referred to and the ‘ranges’ they suggest[15]. 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.
[15] DPP v Harvey [2023] VSCA 234; DPP v Usherwood [2019] VCC 1118; Neskovski v The Queen [2022] VSCA
86.
78Mr Colverd, your actions have left a family and community devastated which is something you will have to live with. Sentencing in a case like this is very difficult. As I have already stated, the sentence that I am about to impose is not a measure of Noah’s life, nor is it a measure of the deep and profound grief of those who knew and loved him. Rather, it is a reflection of a range of factors that by law I am required to take into account and balance, as already canvased.
Sentence
79Synthesising all relevant factors, on Charge 1 dangerous driving causing death you are convicted and sentenced to 3 years and 3 months imprisonment.
80On Charge 2 failing to render assistance you are convicted and sentenced to 2 years and 3 months imprisonment.
81Charge 1 is the base sentence and I cumulate 9 months of the sentence imposed on Charge 2.
82This arrives at a total effective sentence of 4 years. I consider that justice requires that you serve a minimum non-parole period of 2 years and 9 months before being eligible for parole.
83Pursuant to s 18 of the Sentencing Act1991 I declare that you have served a total period of 798 days in custody.
84Pursuant to s 6AAA of the Sentencing Act1991 had you not entered a plea of guilty I would have sentenced you to a total effective sentence of 6 years imprisonment with a minimum non-parole period of 4 years and 2 months imprisonment.
Drivers Licence Order
85Dangerous driving causing death is a serious motor vehicle offence pursuant to s 87P(d) Sentencing Act 1991 (Vic).
86On a finding of guilt the Court must cancel an offender’s driver’s licence and disqualify him from driving for a period specified by the Court and not less than 18 months. On Charge 1, you are disqualified from driving for a period of 3 years. On Charge 2, you are disqualified from driving for the (minimum) period of 4 years (see s 61(6)(a) Road Safety Act1986). These orders will commence today.
87In making a licence cancellation and disqualification order, the Court may make a finding pursuant to s 89C of the Sentencing Act 1991 that the offending was committed ‘under the influence of alcohol or a drug, or both’, which ‘contributed to the offending’. The Prosecution ask for such a finding to be made. The Prosecution rely on the opinions of Dr Jason Schreiber at [9.1] and [9.2] of his report (p.197) and Dr Michael Robinson in his report dated 22 February 2024 at [7].
88This finding is opposed on your behalf. While it is accepted that the evidence relied upon by the prosecution demonstrates that it was likely there was some degree of impairment, the extent of the impairment is unknown. Therefore, to make a finding that you were ‘under the influence’ would involve impermissible speculation.
89The term ‘under the influence’ is not defined and I do not accept, on a plain reading of the section, that it requires proof that a person is incapable of having proper control of a vehicle. I accept the prosecution submissions and, on the evidence, I am satisfied to the requisite degree that you were under the influence of these substances and that they made some contribution, even though the actual degree of impairment cannot be established with precision, to the offending.
90Therefore, pursuant to s 89C(1) of the Sentencing Act1991 I find, and I direct that it be recorded that Charge 1 was committed whilst you were under the influence of alcohol or a drug, which contributed to the offence.
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