Director of Public Prosecutions v Currie

[2020] VCC 1795

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00741

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAYDEN CURRIE

---

JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	8 October 2020, 5 November 2020
DATE OF SENTENCE:	10 November 2020
CASE MAY BE CITED AS:	DPP v Currie
MEDIUM NEUTRAL CITATION:	[2020] VCC 1795

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Culpable driving causing death – Negligently cause serious injury – Conduct endangering life – Spanjol principles - Modest reduction in sentence Charge 1 – Genuine remorse – Young offender – Imprisonment –

Legislation Cited: s. s.22, s. 24, s. 318(1) Crimes Act 1958 - s.145 Criminal Procedure Act 2009

Cases Cited:Spanjol v The Queen [2016] VSCA 317 - DPP v DJK [2003] VSCA 109 - Victorsen v The Queen [2020] VSCA 248 - DPP v Reid [2020] VSCA 247 - R v Franklin [2009] VSCA 77 - Guseli v The Queen [2019] VSCA 29 - Pan v The Queen [2020] VSCA 42 - Arpaci v The Queen [2020] VSCA 81 – DPP vBourke [2020] VSC 130 - Guo v The Queen [2020] VSCA 273 – DPP vDalgliesh [2017] 91 ALJR 1063

Sentence:Total effective sentence of eleven years and six months with a minimum of six years to serve before being eligible for parole. Pre-sentence detention of 32 days declared and with conviction order that the offender’s licence be cancelled and disqualified for a period of two years from 10 November 2020. 

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A Moran	Solicitor, Office of Public Prosecutions
For the Accused	Mr D Hallowes SC with Mr J Anderson (Plea and Further Plea) Mr J Anderson (Sentence)	Robinson Gill Lawyers

HIS HONOUR: 

1Mr Hayden Thomas Currie comes before the Court aged 20.  He was 19 at the time of this accident, having been born on 2 August 2000.  In this matter Ms Moran appeared on behalf of the Director; on behalf of Mr Currie, Mr Hallowes Senior Counsel appeared with Mr Anderson.

2I record that these proceedings have been conducted by way of WebEx.  I thank everyone involved.  Due to the crisis that this community has been enduring there has been no other way to finalise legal proceedings and with the aid of technology and, in particular, the WebEx system, we have been able to finalise this plea.  It has, unfortunately, meant that people have not been present in Court, which is clearly the preferred manner in which a sentence of this importance should take place.  However, we have all had to cope with that.

3Mr Currie pleaded guilty to the charges in Indictment No.K12565420. His counsel on his behalf pleaded guilty to six summary charges referred to this Court pursuant to s.145 of the Criminal Procedure Act 2009.  The plea took place on 8 October 2020.  Subsequently a further hearing took place on 5 November 2020 specifically to consider further evidence tendered on that day as to the operation, if any, of the principles set out in Spanjol v The Queen [2016] VSCA 317. Insofar as that matter is concerned Ms Moran has made further submissions this morning.

4Can I begin this sentence as I did in the plea.  The driving of Mr Currie has caused profound loss to the families of Shannon Juriansz, who was 21 at the time; Jacinta Barnett, who was 19 at the time; owing to their deaths; and serious injury by way of the paraplegia to his best friend, Lucca Smeraldo; and the danger of injury or the actuality of some minor injury and the danger of death to the other passenger in his car, Ms Elizabeth Jackson, who was 18.

5I have listened to and read the victim impact statements set out in:

a.Exhibit C, the victim impact statement of Ms Samantha Barnett, the mother of Jacinta, on behalf of both herself and daughter, Lucy.  Jacinta was the back seat passenger, driver's side of the car driven by Mr Currie; 

b.Exhibit D, the victim impact statement of Leanne Brown;

c.Exhibit E, the victim impact statement of Mr Enzo Smeraldo;

d.In addition, I have read the victim impact statement of Mr Lucca Smeraldo himself, Exhibit H.

6I have also listened to and read the victim impact statement of Royen Juriansz, Exhibit F, and Travice Juriansz, Exhibit G, respectively the brother and father of Shannon, who was driving his 1999 Nissan Skyline when Mr Currie cannoned into him by way of a T-bone at approximately 149 kilometres per hour and killed him.

7I have read the statement in the depositions of Elizabeth Jackson, who remarkably walked away from this accident relatively unscathed physically.  I refer to the depositions, p.95.

8Given the intensity of the collision it appears that both Mr Currie and Ms Jackson were saved from severe injury by the operation of the air bags to the front seats.

9All of the statements tendered by family and friends are powerful, brave expressions made publicly to the Court of the loss and suffering endured as a consequence of Mr Currie's driving.

10As I said at the beginning of the plea, this Court cannot rectify that profound loss and suffering caused predominantly by Mr Currie's culpable driving.  No sentence can bring back Jacinta or Shannon, nor relieve Lucca of his lifetime affliction.  Further, no Court can compensate, as I said to all of the families last time, for their profound loss.  What this Court and the justice system seeks to do is to effect a measure of social rehabilitation as to these crimes.  This was spoken of by Vincent J in DPP v DJK [2003] VSCA 109, [18], where he said:

'The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period.  It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members,  the assertion by society of its values and the public attribution of responsibility for that wrongdoing to the perpetrator' (in this case Mr Currie).

Charges on Indictment No. K12565420

11I want to come then to the charges on the indictment.  Charges 1 and 2 are charges of culpable driving on 29 September 2019 in Oakleigh, which caused the deaths, respectively, of Shannon Juriansz, who was 21 at the time,  driving his Nissan, and Jacinta Barnett, who was 19 at the time, a passenger in Mr Currie's vehicle.

12The particulars in the charges allege negligent driving, in this instance excessive speed, and as a result that such driving evidenced a failure unjustifiably and to a gross degree of Mr Currie to observe the standard of care which a reasonable person should observe.

13The seriousness of these two crimes, that is culpable driving that has caused two deaths, has been recognised by the Victorian Parliament in imposing a maximum penalty of 20 years' imprisonment for a breach of s.318(1) Crimes Act 1958.

14Parliament has also classified, since 28 October 2018, this offence as a Category 2 offence, which pursuant to s.5(2H) must be met with a custodial sentence. Parliament has also prescribed a standard sentence pursuant to s.318(1A) for culpable driving of eight years. I must take that standard sentence into account as one of the relevant factors in your sentence, Mr Currie. Sections 5A, 5B and 11A of the Sentencing Act also apply to your sentence.  The Parliament has thereby taken account of the terrible consequences of your crimes. 

15To assist the Court the learned prosecutor provided at p.7 of Exhibit B, 14 cases as to sentences of culpable driving which have been decided since the introduction of the standard sentencing scheme, and in particular, two sentences of this year, being Victorsen v The Queen [2020] VSCA 248 and DPP v Reid [2020] VSCA 247. I have found all of the cases of assistance and I thank defence counsel for Exhibit 1(a), which was an analysis of such cases.

16Mr Currie also pleaded guilty to Charge 3, being negligently cause serious injury to Lucca Smeraldo in the same accident. As I said, Mr Smeraldo was Mr Currie's best friend and, unfortunately as a result of this accident, has been rendered a paraplegic. This is an offence against s.24 of the Crimes Act for which Parliament prescribes a maximum penalty of 10 years imprisonment.  Mr Smeraldo was 18 at the time and, as I have indicated, very seriously injured.

17The fourth charge on the indictment was by reckless conduct, driving at an excessive speed, Mr Currie placed Elizabeth Jackson, a passenger in his car, in danger of death, an offence against s.22 of the Crimes Act for which Parliament has prescribed a maximum penalty of 10 years' imprisonment. 

18Finally, the fifth charge on the indictment is to have also recklessly engaged in conduct to place persons in danger of death. Again, it is a charge under s.22 of the Crimes Act.  This crime in fact occurred 11 days before Mr Currie's culpable driving. The driving is detailed from an analysis of the dashcam footage on Mr Currie's car, summarised at [39] in Exhibit A.  It involves, amongst other circumstances, five instances of drag racing with a friend of Mr Currie's, in which the following speeds were reached along Ferntree Gully Road:  119 kilometres, 150 kilometres, 160 kilometres, 167 kilometres and 178 kilometres.

19In addition, this charge encompasses two instances of speeding at 113 kilometres per hour in a 60 zone, and 91 kilometres per hour in a 50 zone, on which occasion Mr Currie travelled on the wrong side of a roundabout, and one instance of executing a U-turn against a red traffic control arrow.  Significantly and perhaps unfortunately, as to the drag racing charges, Ms Jackson at pg.90 of the depositions identifies herself and Lucca as being present in the car. The other car being driven, that is in this drag race, by a person called Josh, who she identified as a friend of Mr Currie's and Lucca's.

20Mr Hallowes also pleaded guilty to the six summary charges on behalf of Mr Currie laid under s.64(1) of the Road Safety Act, that is drive at a speed dangerous.  The penalty applicable to such charge is 240 penalty units or two years' gaol.  Three of the instances involved driving at more than 45 kilometres over the relevant speed limit, and as such require cancellation of licence and automatic disqualification for 12 months.

21In regard to the respective speeds in these summary matters I will set them out as follows: 

a.in regard to Charge 28, which occurred on 14 September 2019, travelling at 92 kilometres per hour in a 60 zone;

b.in regard to Charge 33, which occurred on 10 September 2019, travelling at 120 kilometres per hour in a 60 zone; 

c.in regard to Charge 38, which occurred on 9 September 2019 travelling at 90 kilometres per hour in a 60 zone;

d.in regard to Charge 43, which occurred on 3 September 2019, travelling at 103 kilometres per hour in a 70 zone;

e.in regard to Charge 46, which occurred on 31 August 2019, travelling at 120 kilometres per hour in a 50 zone; and

f.in regard to Charge 52, which occurred on 23 August travelling at 160 kilometres per hour in a 90 zone.

22The summary charges, all occurred before 29 September 2019.  While such are not prior offences, they show in Mr Currie's driving a proclivity for gross negligence and excessive speed at and around this time, and demonstrate that his friends and associates were prepared to take risks by being present in his car at such times. Such behaviour demonstrates how hard it is to protect youths or young adults from themselves, who unfortunately seem to consider themselves as ‘bullet proof’.  Tragically as we see, given the circumstances that I am dealing with today, they are clearly not bullet proof.

23Insofar as cases of culpable driving, the then Chief Justice Marilyn Warren in R v Franklin [2009] VSCA 77, at [12], said:

'Cases of culpable driving continue to come too frequently before the Courts.  What is so striking about these cases is that one moment in time can have such devastating consequences...'

24Mr Currie, the victims have suffered death, severe injury or profound needless loss at your hands. Pursuant to s.5(2)(daa) of the Sentencing Act, I must have regard to the impact that your offending has had on Mr Juriansz' family, Ms Barnett's family, Mr Smeraldo himself, his family and also on Ms Jackson.

25Returning to the comments of the Chief Justice in Franklin, she went on to say:

'…culpable driving is punishable by 20 years' imprisonment. Such a severe maximum penalty reflects the gravity of the offences and the culpability of the perpetrator.'

26The Parliament, in order to try to deter this crime increased the maximum penalty for culpable driving to 20 years imprisonment in September 1997.  Despite the words of the Chief Justice and the introduction of the standard sentencing scheme, such crimes have not stopped.  This Court unfortunately continues to deal with such crimes, analysis would show that seems to occur on a weekly basis.

27Chief Justice Warren also said in Franklin at [22] as to culpable driving the following:

'…sentences reflect the gravity of the offences, Parliament's intention and the community's expectation [is] that such offences be dealt with sternly...'

28At [32], however, she warned Judges that:

'…adherence to general deterrence ought not result in a sentence that would be crushing...'

29Similar principles also relate to Charges 3, 4 and 5, albeit inherently not so serious as culpable driving, given the maximum penalties involved.

Mr Currie’s Driving on 29 September 2019

30I want to now come to Mr Currie's driving on 29 September 2019.  This was the Sunday after the AFL Grand Final that year.  Ferntree Gully Road is a three lane road, a major road in the area, which connects Burwood Highway and Dandenong Road.  It is a 70 kilometre zone.

31Mr Currie apparently left Ms Barnett's home at approximately 7:02pm to travel to the Vanilla Lounge in Oakleigh.  Suffice to say there was no urgency involved in such trip.  Mr Currie and his passengers had been staying at the Barnett home the night before for post AFL Grand Final celebrations and had been recovering that day.  Exhibit X, records Mr Currie's car in Fawkner Way, Ferntree Gully at 7:46pm, the driver's side head light does not appear to be on.

32Exhibit Y, records the car at 7:55pm travelling at a huge speed on Ferntree Gully Road, near the IGA supermarket.  Exhibit Z, records Mr Currie at the intersection of Ferntree Gully Road and Stanley Avenue, which is slightly east of the intersection of Carmichael Road and Ferntree Gully Road, by way of a CCTV camera from a house adjoining Ferntree Gully Road. From that CCTV camera, one can see how fast Mr Currie’s car was travelling prior to the accident.  On that CCTV footage, the car is clearly visible driving towards Carmichael Road. 

33Witnesses in the depositions have also given evidence of having seen Mr Currie's car before the accident.  The first of those, referred to by Ms Moran this morning, is Ms Polihros-Sevastas.  In the depositions, at p.136, she was in Macrina Street.  Macrina Street is 100 metres east from the intersection where the accident occurred.  She stopped at a give way sign to Ferntree Gully Road.  She had looked right and she had looked left.  She observed the road was quiet.

34Subsequently, as Ms Polihros-Sevastas says at [12], when she looked right again, she saw a small dark car, travelling west.  It was going very fast.  She described that it was like a flash or a bullet.  She subsequently again looked to her left and believed that she saw the impact and the fire.  Tendered was a subsequent statement, Exhibit CC, which has been discussed this morning.  It is clear, and I will come to this in due course, that as a result of her observations, she did not proceed out onto Ferntree Gully Road into the path of Mr Currie's car.

35The second witness is Mr Bhagat.  His statement is in the depositions at p.107.  He was also driving west in Ferntree Gully Road.  The car driven by Mr Currie drove past him travelling very fast.  Mr Bhagat had seen Mr Currie's car prior to Patrick Street.  Patrick Street being essentially at the top of the decline which goes down to the accident site, an approximate distance of 800 metres.  When he came over the hill, that is approximately at Patrick Street, he could see a fire.

36The third person who saw the car prior to the accident is a Ms Naidoo.  Her statement is at p.115 of the depositions, Exhibit Q.  Ms Naidoo was in her car travelling east and was about to do a U-turn opposite the front of the IGA.  It is difficult, given Ms Polihros-Sevastas’ statement that she saw no other cars Exhibit CC at [7], to quite determine where Ms Naidoo was.  Ms Naidoo says she was outside the IGA.  I am not certain if it was Macrina Street, perhaps further up in Highland Avenue.  However, she saw Mr Currie's car come past her.  Ms Naidoo described Mr Currie's car as ‘flying’.  Significantly, she then looked to her right and she was able from her position ‘out the front’ of the IGA to see car headlights coming out of Carmichael Road.

37In Exhibit K and Exhibit T, Detective Senior Constable MacFarlane identified skid marks on the road.  Upon her calculations, the Mazda must have at least noticed the Nissan when 151.7 metres from the accident.  It would appear on her evidence that Mr Currie applied his brakes and eventually left straight parallel skid marks of 58.57 metres prior to the impact,  I am reading from Exhibit EE, the supplementary report of Ms MacFarlane, which continued in a straight line in the middle lane to the point of collision, where Mr Currie 'T-boned' the Nissan.  I read from the Leading Senior Constable Mottram who made that statement as to T-boning, in the depositions at p.206.

38Ms MacFarlane calculates that prior to braking, Mr Currie was travelling at a speed of 168 kilometres per hour and as a result of the application of the brakes, had reduced his speed at collision to 149 kilometres.  If, or when, Mr Juriansz saw the Mazda, clearly he should not have entered the highway against the give way sign.  But the culpability of Mr Currie is demonstrated from the fact that he was driving at such a negligently gross speed that when an emergency occurred, that is when Mr Juriansz came onto the highway, Mr Currie could not stop to avoid a collision, with the resultant deaths and serious injuries.

39As said in Ms Jackson's statement, the passenger who was essentially uninjured in the car, depositions at p.89 at [15]:

'Just before the accident… Lucca…said, "He is not going to stop."' 

40That is obviously referring to the Nissan.  Ms Jackson then looked up and another car was in front of them, having come from the side street, she said, moving slowly.

41Consistent with that observation, the Nissan had come onto the road at 92 degrees, see p.225 of the depositions, and was travelling at approximately 25 kilometres per hour according to Detective Senior Constable MacFarlane. In the further hearing last week, the Detective indicated that given that speed, the Nissan could not have stopped at the give way sign.

42As submitted by Ms Moran, at [5] of Exhibit B, and not disputed by Mr Hallowes, the driving by Mr Currie is objectively a high-end example of both culpable driving and negligently causing serious injury.

Spanjol Principles

43I then want to come to the operation of the principles in Spanjol [2016] VSCA 317. There were submissions on the original plea date, 5 November 2020 and further this morning. Further written submissions filed by Ms Moran this morning as to the actions of Mr Juriansz, Exhibit DD. The prosecution tendered the CCTV footage that I have referred to, Exhibits W to Exhibit AA, a further statement of the informant and GoPro footage, Exhibit CC, a further statement of Anna Polihros-Sevastas, Exhibit EE, a supplementary report of Detective Senior Constable MacFarlane, Exhibit BB, a toxicology report and Statement of Professor Dimitri Gerostamoulos. Ms Moran made further oral submissions today. The prosecutor also called to give evidence on 5 November 2020, Detective Senior Constable MacFarlane and Professor Gerostamoulos. I have taken all such evidence into account, in particular the further submissions made this morning by Ms Moran.

44Ms Moran submitted in the circumstances that the second proposition set out in Spanjol could not be established on the balance of probabilities.  Mr Hallowes in final submission submitted that the second proposition was enlivened.

45As to Mr Juriansz' driving of the Nissan on that night, he proceeded up Carmichael Road which is an access road to Ferntree Gully Road. It is important in this analysis to understand that Ferntree Gully Road is a six lane road, three travelling west and three travelling east, providing access to the area generally from Burwood Road to Dandenong Road.  Mr Juriansz was facing a give way sign at the end of Carmichael Road.  Regulation 69 of the Road Traffic Rules 2017 requires Mr Juriansz to give way.  Giving way is defined in the dictionary to mean to slow down, and if necessary stop to avoid a collision.

46In oral evidence on 5 November Detective Senior Constable MacFarlane the reconstructionist, concluded that as Mr Juriansz was travelling at 25 kilometres per hour at collision, that he had not stopped at the give way sign prior to the intersection.

47However, the overwhelming obligation provided by such regulation is to avoid a collision.  I reject the submission of the prosecutor in writing, and confirmed today, that the view to the right of the car driven by Mr Juriansz was impeded in any way.  Being night time, driving safely is promoted by a combination of the use and observation of headlights and, in this instance, the give way sign.

48On the basis of Exhibit EE, and specifically Figure 2, when Mr Juriansz drove past the give way sign, or was near the give way sign, had he looked to the right, he would have seen Mr Currie's car on the road, or at least the front light thereof.  I reject the submission of the prosecution that the view to the right was restricted in some way, or impacted by gap acceptance or darkness.  Clearly, Exhibit AA, that is the first two Go-Pro videos therein, demonstrate a capacity to discern lights of vehicles, being one or two lights, travelling west on Ferntree Gully Road.  In fact, such demonstrates the ability to observe lights up the hill, as the road going west descends to the IGA for approximately 600 metres from Patrick Street.

49As Detective Senior Constable MacFarlane said, gap acceptance relates to daytime research and at night time assessing velocity is very difficult.  Hence the importance of the need when driving at night for personal observation and compliance with any traffic signs, which in this instance was a give way sign. Therefore, whether Mr Juriansz did not look to his right, or alternatively did look and failed to see Mr Currie's vehicle, or the one operating light, I find on all the evidence that Mr Juriansz failed to fulfil his obligations under Regulation 69 and that his manner of driving was, on the balance of probabilities, an additional factor outside the control of the offender which was a material contributing cause of Mr Juriansz' death.  In that regard, see in particular Spanjol at [47].

50Further, I find that if Mr Juriansz had in fact looked east as he came to the give way sign, he would have been able to see Mr Currie's car approaching, or at least his light.  I find that this would have been possible at a point much further east than Mr Currie was when he went past the IGA.  Having made such an observation, a prudent driver would then have stopped and not entered onto Ferntree Gully Road.

51For the reasons set out above I reject the prosecution submission in this regard, specifically made in paragraph 8(f) and (j) in Exhibit DD, and further maintained in submissions this morning.

52As to the evidence of Professor Gerostamoulos as to the high post mortem level of cannabis in Mr Juriansz' blood, I accept the submission of Mr Hallowes that I do not have to make a finding on the impact of this upon Mr Juriansz as the failure to comply with Regulation 69 and the imprudent driving is really all that is relevant in the circumstances of this case. That is, I do not have to determine the reason for such failures.

53As was said in Guseli v The Queen [2019] VSCA 29, [69], such additional material cause does not affect the gravity of the offending or Mr Currie's culpability, '…however it can be taken into account in reduction of sentence.' If I can be so bold, I prefer that approach to that of Croucher AJA in Pan v The Queen [2020] VSCA 42, [86], that such additional material cause would have compelled a significant reduction in moral culpability.

54It should be said that the Court remarked in Guseli that the precise scope of the second limb of Spanjol is yet to be fully determined, see [67].  However in the particular circumstances of Guseli at [70] to [76], a modest allowance was made. Further in Arpaci v The Queen [2020] VSCA 81, [254], it was determined that any reduction, on the circumstances of that case, should be very moderate.

55In Pan, the Court of Appeal said at [89]:

'None of that is to say that a judge would not be entitled on a given set of facts to conclude that even where a contribution had been established, there should be little or no reduction in moral culpability.'

56I repeat the earlier reference to Pan that such relates, in my view, to sentence rather than moral culpability.

57The Court in Pan went on to say:

'Such a situation might arise where for example, the offender's serious breach of the proper conduct of the vehicle on the roadway was so flagrant that his moral culpability was unaffected by the external contributing cause - or perhaps in truth, the external contribution was rendered meaningless in the face of the offender's behaviour.'

58As I have described, witnesses that night refer to the speed of Mr Currie's car as ‘bullet like’, ‘so fast’, ‘a flash’, ‘flying’. Can I say that a true apprehension of all of those phrases is obtained from viewing the CCTV footage, Exhibit Z, taken from the house across the intersection of Carmichael and Ferntree Gully Road, just before the collision.  Hence, albeit the finding made as to Mr Juriansz' contribution, I consider upon analysis that such is overwhelmed by the gross negligence of Mr Currie in proceeding down Ferntree Gully Road at 169 kilometres per hour.  Hence, in regard to Charge 1, the finding will operate to allow a modest reduction in sentence.

59In regard to Charges 2 and 3, given the speed and the total failure of duty of care to Mr Currie’s passengers and the inevitable risk of catastrophic consequence, such overwhelms totally the actions of Mr Juriansz. I find no basis for any reduction in sentence in regard to those charges, nor, might I add, was there any submission to that effect by Mr Hallowes.

Plea of Mr Currie

60I come then to the plea.  Mr Hallowes was at pains not to suggest that the driving of Mr Currie did not pose a very high risk of collision and catastrophic consequence, which, as is evident, eventuated.  He took me to Mr Currie's personal background.  Mr Hallowes submitted, as is evident in the totality of his behaviour, that Mr Currie is a simple, naïve, unworldly person (see Exhibit 3, the psychological report of Mr Brian Lavery)  very insecure (see the psychological report of Dr Mathew Barth, Exhibit 4 at [46.3]), and, owing to low self-esteem, inclined to risk-taking to impress his peers.  Hence when you roll such a personality up with driving a car, here we are assessing the tragedy today. 

61Mr Hallowes submitted that I should accept that the remorse that Mr Currie has expressed, as a result of the consequences of his criminality, has been genuine.  Such is confirmed by the statements made by Mr Currie’s parents, his friends and in particular his employer, set out at Exhibit 6.  Mr Hallowes submitted that such remorse is demonstrated by the plea, in particular his apology, Exhibit 2.

62I accept Mr Currie’s words, in that apology, that given the horrific consequences he is responsible for, he will never be able to forgive himself.  One would accept any normal human being feeling such, and that such would prevail for the rest of one’s life.

63Mr Hallowes also raised the issue of the plea, that it was an early plea in the circumstances, was utilitarian and saved the grieving families, Mr Smeraldo himself and his family, the trauma of a trial.  Mr Hallowes also referred to the fact that this plea is taking place during particularly difficult times for the Court when listing pleas is very difficult and Court time is difficult to organise, the impact on delaying trial dates caused by COVID-19 and the circumstances as reported and taking into account, in Bourke [2020] VSC 130, [32], were relied upon. For all of those matters I provide an appropriate discount the plea.

64Mr Hallowes also submitted that Mr Currie was likely to effect rehabilitation.  In particular Mr Hallowes relied upon Mr Currie’s young age and the fact that, despite the assessed personality and risk-taking within it, he comes before the Court with no priors.  Mr Hallowes submits in assessing rehabilitation that I should accept that the consequences of these crimes have had a tremendous impact on Mr Currie, as demonstrated by the letters referred to in Exhibit 6 from Mr Currie’s parents, friends and his employer, and led to self-assessment by this previously very immature person.

65Mr Hallowes submitted that such rehabilitation will be supported by Mr Currie’s family, that he has to date observed quite strict bail conditions, in particular maintained his apprenticeship and employment as detailed by his employer Mr Ryan Dean, Exhibit 6.

66As further demonstration of the impact of Mr Currie’s crimes and the consequences of his driving Mr Hallowes referred to the diagnosis, made by psychologist Mr Brian Lavery of PTSD in Exhibit 3 and, further, the diagnosis confirmed at [46] by Dr Barth in Exhibit 4 of the psychologist's report of 27 August 2020, at [46.3], and as confirmed by the psychiatrist Sullivan in Exhibit 5, a report of 19 September 2020.

67Mr Hallowes also pointed to the issues such a young man, with such immaturity and psychological issues, will encounter in gaol, which I accept. Mr Hallowes also referred to the current COVID-19 burden which Mr Currie will face, which I also accept.

68Mr Hallowes submitted that there were particular considerations relevant insofar as Mr Currie's youth is concerned.  Mr Currie comes before the Court as a man of 20; he only turned 20 in August of this year and, as has been put to the Court, the crimes occurred when he was 19.  Mr Hallowes submitted to the Court and acknowledged the difficult balance before the Court in these circumstances. He comes to be sentenced as a young offender under the Act.

69Mr Hallowes further submitted that given the tragedy and the gross driving involved there is a need for the Court to mark and punish these crimes, that, in those circumstances the impact of youth must be moderated.  But also Mr Hallowes pointed out that it is in the interests of our community for rehabilitation to be effected in persons who have committed crime.  In this regard he referred to the decision of the Court of Appeal in Arpaci, at [272] and [274]. I also refer to the more recent authority of Guo v The Queen [2020] VSCA 273, [29], in which I was the trial Judge.

70I accept that insofar as the sentence of Mr Currie is concerned there is an exquisite balance to be effected between the general sentencing principles relevant to culpable driving, and the mitigatory circumstances put by Mr Hallowes as to his client's age and rehabilitation prospects. 

71Mr Hallowes provided, as I have already remarked, in Exhibit 1(a), the Court with an analysis of the cases that I have referred to.  They are the cases in [7] of the prosecutor's submission, Exhibit B.  Mr Hallowes’ submitted at [39] of his written submissions that given the youth of Mr Currie and his rehabilitation prospects that such should operate so as to moderate the head sentence and provide a larger than usual discrepancy between the head sentence and the non-parole period. Mr Hallowes further submitted to the Court that the sentence, given his client’s age and importance of rehabilitation, should not be crushing despite the obligations upon the Court.

72As to the driving, Mr Hallowes made the point as to the absence of what might be seen as aggravating factors, such as drug taking or alcohol, or, for example, being on the wrong side of the road, as were these type of circumstances referred to in Reid, given to the Court.  But against that of course, while there is no such aggravation, this is high-end offending as I have already found upon analysis.

73I accept that Mr Currie, upon the principles detailed by the High Court in Dalgliesh [2017] 91 ALJR 1063, is entitled to a just and individual sentence, based upon the facts of this case. All of the cases referred to and analysed were post the introduction of the standard sentencing scheme for this offence and are to be seen, and I see them as, guide posts in the individualised process of instinctive synthesis required in this sentence of Mr Currie.

74I thank counsel again for their submissions, they were of much assistance. 

75Again I apologise to the parties for having to go through those matters in such detail, but it was necessary for a number of reasons: 

a.that the reasons for Mr Currie being sentenced are made on the public record.  Hopefully, the period of imprisonment that Mr Currie is to get may help to impact upon young people of his age in their driving; and

b.more importantly, that the reasons for Mr Currie's sentence are publicly recorded so that if there is any need for further assessment of that determination they are available.

76Mr Currie, in the circumstances you need not stand up.  You can sit where you are.

77Mr Currie, having taken account of all of the factors put to me, you will be convicted upon all charges. On the first charge I sentence you to a period of imprisonment of seven and a half years; on the second charge, a period of imprisonment of eight years; on Charge 3 a period of imprisonment of four years; on Charge 4 a period of imprisonment of 18 months; and on Charge 5 a period of imprisonment of 18 months.

78Using the eight years, which was imposed in regard to Charge 2, as the base sentence I order that two years of the sentence imposed on Charge 1 and one and a half years of the sentence imposed on Charge 3 be served cumulatively upon each other and upon the base sentence, making a total effective sentence passed upon you, Mr Currie, of 11 and a half years imprisonment. 

79I order that the non-parole period that should be imposed in regard to this case, that is the period that you must serve prior to being eligible for parole, is six years imprisonment. 

80As to the provisions in the Sentencing Act firstly of s.5B(5), the sentence imposed for Charge 1 relates not only to the objective criminality but all my findings in regard to that charge and all the factors put to me in this plea. As to s.5B(4)(b), can I indicate that the totality of factors referred to by me in this sentence, apart from the objective criminality, have been such that the non-parole period imposed by me is lower than statutorily imposed.

81I then come to the summary matters.  In regard to Charge 28 you will be sentenced to imprisonment of two months; in regard to Charge 33, imprisonment of four months; in regard to Charge 38, imprisonment of two months; in regard to Charge 43, imprisonment of two months; in regard to Charge 46, imprisonment of four months; and in regard to Charge 52, imprisonment of five months.

82Given the objective criminality of those offences, normally one would impose a period of cumulation to mark the seriousness of those offences; however, in all of the circumstances, given the penalty imposed in the indictment and taking into account the issue of totality, I make no order as to cumulation in regard to those summary offences.

83In regard to s.6AAA of the Sentencing Act, Mr Currie, can I tell you, and it is probably having heard the sentence I have just passed on you not something that is significant. But I am required to tell you what the benefit to you of your plea is. Insofar as the sentence passed upon you, you know that I have given you a total effective sentence of 11 and a half years with a minimum period to serve of six years.  Can I indicate, as required by Parliament, what you would have received had you not pleaded guilty. Can I also indicate how difficult this is, because your plea of guilty is only one of the multitude of factors I have had to take into account; however, doing as best I can to comply to Parliament, can I indicate to you that had you not pleaded guilty the sentence that would have been imposed upon you is not one of 11 and a half years with a six year minimum, but I would have imposed a period of imprisonment of 14 years with a minimum of eight years and four months.

84I also order, as I am required, that your licence be cancelled and that you be disqualified from obtaining a car licence for a period of two years.

85Pursuant to s.18 insofar as the sentence imposed upon you I declare that the 32 days you have served by way of pre-sentence detention be deemed as service of this sentence and a declaration to that effect be recorded in the records of this Court.

86Madam Prosecutor, is there any matters as to the sentence that I haven't attended to?

87MS MORAN:  No, Your Honour.

88HIS HONOUR:  Or do you want me to go over any matters or for that matter insofar as that's concerned, Mr Anderson?  Perhaps I'll take the prosecutor first.  Yes, Ms Moran, any issues as to the sentence?

89MS MORAN:  No.  I'm just checking the licence disqualification, if you could just bear with me, Your Honour.

90HIS HONOUR:  Yes.  I must say I had some - is there a longer period under the culpable than I'm required under the statutory matters?  If you could just check that. 

91MS MORAN:  I'm just checking that, Your Honour.

92HIS HONOUR:  While that's being done, Mr Anderson, any issues as far as you're concerned?

93MR ANDERSON:  If Your Honour can just bear with me one minute.

94HIS HONOUR:  Yes, not a problem.  I'll bear with both of you as long as you like. 

95MR ANDERSON: Your Honour, in the setting of the non-parole period it seemed clear to me from what Your Honour said that you'd had regard to s.11A(4) of the Sentencing Act, which requires the non-parole period to be at least 60 per cent of the total effective sentence unless the Court considers it in the interests of justice not to do so. 

96HIS HONOUR: That's what I referred to in my declaration as to s.5B(4)(b).

97MR ANDERSON:  Yes, I thought that was what Your Honour was doing.  It's just because I'm unfamiliar with those provisions being announced that I just wanted to make sure I followed that correctly.  But it seems that ‑ ‑ ‑

98HIS HONOUR:  Well, probably you're quite right that when I pronounced that lower than statutory period imposed and perhaps we should have added formally 'and that I find it was not in the interests of justice to do so'.

99MR ANDERSON:  Yes, I just ‑ ‑ ‑

100HIS HONOUR:  Yes, I accept that.

101MR ANDERSON:  Yes, I agree.  Thank you, Your Honour.

102MS MORAN:  Your Honour, just in relation to the licence disqualification you've made a global order there. I think the summary offences attracted a lower period, but I infer from Your Honour's order that you've made the individual disqualification orders.

103HIS HONOUR:  Well, I have to disqualify and perhaps I need to make that clear.  I have to disqualify in regard to which charges?  I think I have to disqualify in regard to Charges 1 and 2, don't I?

104MS MORAN: 1, 2 and 3 as well as ‑ ‑ ‑

105HIS HONOUR:  HIS HONOUR:  1, 2, and 3 and all of the summary matters.  No, and the summary matters that I've discerned.

106MS MORAN:  Yes, that's right.

107HIS HONOUR:  Which were, let me see - which were the three that were 45 over.  I didn't detail them.  So it's Charges 1, 2 and 3 and summary Charge 33, 46 and 52. 

108MS MORAN:  Yes, Your Honour.

109HIS HONOUR:  In regard to the Charges 1, 2 and 3 is there any requirement for a longer period than two years, Madam Prosecutor?

110MS MORAN:  No, Your Honour.

111HIS HONOUR:  All right.

112MS MORAN:  That's the minimum requirement.

113HIS HONOUR:  Yes.  Yes, again I thank you.  And I thank everyone for their assistance. 

114MS MORAN:  As Your Honour pleases.

115HIS HONOUR:  Yes.  Well, Mr Currie, good luck to you and I hope that you effect the rehabilitation that's been put before the Court.  In the circumstances, given the trauma that you've caused, one would hope in all humanity that you will never be before a Court again and I hope that's true.  Yes, thank you, Mr Tipstaff.

116MR ANDERSON:  Yes, Your Honour, thank you.

117MS MORAN:  As Your Honour pleases.

118HIS HONOUR:  Thank you.

‑ ‑ ‑