Director of Public Prosecutions v Demel
[2015] VCC 1735
•8 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-02025
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NAYANA DEMEL |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 19 and 20 November 2015 | |
DATE OF SENTENCE: | 8 December 2015 | |
CASE MAY BE CITED AS: | DPP v Demel | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1735 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of dangerous driving causing death – failure to keep a proper lookout – failure to give way – remorseful plea of guilty – prior good character – good prospects of rehabilitation – CCO of 4 years
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Coombes | Solicitor for Office Public Prosecutions |
| For the Accused | Mr J Lavery | Tony Danos, Solicitor |
HER HONOUR:
1 Nayana Demel, you have pleaded guilty to one charge of driving a motor vehicle in a dangerous manner causing death. This offence carries a maximum penalty of 10 years' imprisonment.
2 The circumstances of your offending are summarised in the Summary of Prosecution Plea Opening (Exhibit “A”). Your offending occurred on 2 November 2013. At approximately 1.00pm on that day, Mr Girys, now deceased, was driving his car east along Frawley Road, Hallam. You were driving your car north towards Frawley Road in a side street, named Cornwall Street, which is to the south of Frawley Road. You faced a Give Way sign and Give Way line. You drove out of Cornwall Street, across the west-bound lane of Frawley Road and into the east-bound lane, directly into the path of Mr Girys’ car. The front of your car collided with the front driver’s side corner of Mr Girys’ car. The collision occurred on the east-bound lane in which Mr Girys had been travelling, near the entrance to Gunns Road, which runs off Frawley Road to the north. Gunns Road is not a continuation of Cornwall Street, from where you had come. It intersects with the opposite side of Frawley Road a very short distance to the west of the point where you had entered Frawley road from Cornwall Street.
3 Photographs of the accident scene (Exhibit “B”) show that the force of the collision caused the two cars to be moved together in a north-easterly direction, so that the front of Mr Girys’ car mounted the nature strip on the eastern corner of Gunns Road. Your car ended up facing north across the east-bound lane of Frawley Road, with its front passenger side up against the driver’s door of Mr Girys’ car. The front of your car was close to the kerb, with the passenger side end of the front bumper bar having become detached, so that it was resting on the nature strip.
4 Mr Girys suffered multiple injuries as a result of the collision. These included a fractured sternum, fractured first and third ribs, cardiac contusion, pulmonary contusion, laceration to his left foot and bruising and abrasion to his right upper arm. He was admitted to Dandenong Hospital, where his condition worsened in the Intensive Care Unit such that he required intervention in the form of a life support system. He subsequently developed infections relating to intubation and collection of fluid in his lungs. He required antibiotic therapy and his condition continued to deteriorate. Active management was withdrawn on 12 November 2013 and Mr Girys died of multi-organ failure following the injuries sustained in the collision.
5 You were interviewed by police on 30 January 2014. You stated that, shortly before the collision, you had dropped your husband at a house on the south-eastern corner of Cornwall Street and Frawley Road. The address is 59 Cornwall Street. You parked in the driveway of the house in Cornwall Street. You came to a complete stop and then drove forward to Frawley Road, intending to right onto Frawley Road, in order to go to the Hallam Road shops. You stated that you stopped at the Give Way line for one or two seconds and then took off. You looked to your right towards Hallam Road, but did not know if you had looked to your left at all. You stated that you thought it was safe for you to do a right hand turn into Frawley Road because you did not see anything coming from your left hand side. You did not remember having your view to the left blocked by anything. You said it was fair to say that you had a nice clear view of anything coming.
6 In the interview, it was put to you that a witness who was travelling behind Mr Girys stated that it looked as though you were trying to turn left into Frawley Road. You disagreed with this and stated that you definitely wanted to turn right to go to Hallam Road. You later said that you had had a quick look right and then left.
7 You were asked by police why the collision had occurred and you stated that all you could say was that you did not see the other car and you do not know why you did not see it. You were asked whether, if you had been more careful and taken more time to look to your left, the accident would not have happened and you agreed with that. It was put to you that your actions were careless, but you stated that you were never a careless driver. You had earlier stated that you did not see the other car coming but, when you did see it, you were too late and tried to brake hard to stop your car.
8 Mr Girys, when spoken to by the informant at the scene of the collision, told him that your car “came out of nowhere”.[1] There were two eye-witnesses to the collision. Mr Huynh, in a statement to police, said that he was driving east along Frawley Road, travelling at about 50 kilometres per hour (which is the speed limit). Mr Girys’ car was about a car length in front of him. As he approached the intersection with Cornwall Street, he saw your car come out of that street. He said he was about 2 ½ car lengths from the intersection when he first noticed you and it looked like you were trying to turn left because he could see the front of your car. He stated that it did not look like you were slowing down or stopping. He gave an estimate of your speed, which was well in excess of the speed limit.(I agree with your counsel that I should disregard this evidence as unreliable.) Mr Huynh saw your car hit the front of Mr Girys’ car and force it onto the kerb.[2]
[1]Depositions page 89
[2]Depositions page 84
9 The other eye-witness, Mr Rickards, was driving his car west along Frawley Road. He described your car as having “burst out like a rocket” from the side street (Cornwall Street), which was on his left. He stated that it looked to him that you were travelling at high speed and he gave an estimate of the speed as being well over the speed limit. (Again, I agree with your counsel that I should disregard this estimate as unreliable.) Mr Rickards described your car as having come straight out, crossed into the intersection, without slowing or stopping, and then colliding with Mr Girys’ car in about the middle of the road, but more in Mr Girys’ lane. He stated that there was no indication that your car was attempting to turn before the impact.[3]
[3]Depositions page 81
10 I have disregarded the speed estimates of each of the eye-witnesses because each of them was moving at the time and they are lay persons with no evident expertise in the estimate of speed. The prosecution had obtained a report on the collision from Detective Senior Constable Robert Hay, who has a degree in civil engineering. He has worked with the Major Collision Investigation Group for a number of years, where he has been involved in reconstructing collisions where fatalities and serious injuries have been involved. He estimated that, immediately before the collision, Mr Girys’ car was travelling at a speed of 54.4 kilometres per hour and your car was travelling at a speed of 20.6 kilometres per hour. He noted that no skid marks or gouge marks had been detected at the scene. This is consistent with the statement of the Informant, Leading Senior Constable Diamond, who attended the scene of the collision and found no tyre marks or skid marks to indicate that there had been braking prior to the collision.[4]
[4]Depositions page 88
11 Mr Hay noted that the distance that your car had to travel from the Give Way line to the point of collision was 8 metres. He stated in his report that your rate of acceleration was within a range of “normal to harsh” and it was possible that you had stopped at the Give Way sign. If you had stopped, you had taken 2.79 seconds to travel from the Give Way line to the point of collision. He estimated that, in that time, if Mr Girys’ car had been travelling at a constant speed of 54.4 kilometres per hour, it would have travelled 42.12 metres. He opined that there was plenty of sight distance and Mr Girys’ car would have been well within the view of yourself.[5]
[5]Report dated 27 August 2015, pages 12 – 13
12 It is plain from the photographs of the collision scene, the statements of the eye-witnesses, Mr Huynh and Mr Rickards, and the report of Mr Hay that the collision cannot have occurred in the way that you described to police in your Record of Interview.
13 On 16 November 2015, your trial on one charge of dangerous driving causing death and one alternative charge of dangerous driving causing serious injury commenced, with an estimate of approximately five days. The prosecution case was that, whether you stopped or not, you failed to give way by keeping a proper lookout and this was the dangerous driving which had caused the death of Mr Girys. Your defence was that, although you did not see Mr Girys’ car and, thus, had failed to give way to him, this did not constitute dangerous driving. Further, you disputed the causation of Mr Girys’ death by arguing that the prosecution could not prove beyond reasonable doubt that he had died from the injuries sustained in the collision, as distinct from some pre-existing condition.
14 The first prosecution witness was Dr Arora, an intensive care specialist, who was part of the medical team who had treated Mr Girys at Dandenong Hospital prior to his death. Under cross-examination, your counsel endeavoured to establish that Mr Girys’ pre-existing conditions relating to his heart or kidney may have been the cause of his death. Dr Arora stated that the major trauma in the collision which fractured Mr Girys’ sternum and ribs had given rise to contusions to the heart and lung. The fractures, and particularly the contusion to the lung, had resulted in him having difficulty breathing. He developed hypotension and became hypoxic and his respiratory distress was such that he was not able to breathe on his own. Accordingly, he required endotracheal intubation and mechanical ventilation. He developed pneumonia and further infections relating to the intubation procedure, all of which continued to lower his blood pressure. Dr Arora stated that this sequence of events was a common and predictable course for people who receive traumatic injuries like those of Mr Girys. He stated that it is medical experience that people with such injuries will deteriorate after their presentation to the Emergency Department and that is why Mr Girys was admitted to the Intensive Care Unit, rather than a ward. He stated that Mr Girys’ respiratory distress and infections and low blood pressure, despite multiple modalities of treatment, could not be reversed and they ultimately impacted on all organs of the body such that he was in a state of septic shock. The medical decision to withdraw life support was supported by Mr Girys’ family and he died on 12 November 2012. He stated that Mr Girys’ pre-existing condition of atrial fibrillation involved leakage of two valves and this gave rise to a trivial amount of fluid in the heart chamber and was not compromising his heart function. He stated that one can live with that for years and years without having any problem. He also stated that he had mild impairment of his kidney function before the collision but, following the collision, the sepsis and low blood pressure further impaired his kidney function and, indeed, the function of all his organs.
15 On the second day of the trial, at the request of the prosecution, the jury was taken for a view of the collision scene. The view demonstrated that a person driving a car coming out of Cornwall Street, as you were, should have had a clear view of Mr Girys’ car coming from your left. Following the view, discussions were had between the parties and you pleaded guilty to the more serious charge on the indictment, dangerous driving causing death.
16 During the plea hearing, your counsel spent a considerable amount of time endeavouring to minimise your defective driving. At one stage, he seemed to be suggesting that you had made a legal left hand turn but, later, modified his submission to urge that the totality of your dangerous driving was that you had turned right into the east-bound lane in which Mr Girys’ car was driving.
17 Counsel appearing for the prosecution, joined with your counsel’s submission, stating that the prosecution case was confined to you failing to give way to Mr Girys in turning right into Gunns Road. This was a more confined version than that contained in paragraph 8 of the Summary of Prosecution Opening which was tendered as Exhibit “A”, which states: “Mr Girys continued travelling east along Frawley Road. Ms Demel was driving north along Cornwall Street. Ms Demel has driven out of Cornwall Street, at the intersection of Frawley Road, driving across (my emphasis) the west-bound lane of Frawley Road into the east-bound lane, and directly into the path of the car driven by Mr Girys. Ms Demel has attempted to turn right into Gunns Road, failing to give way to Mr Girys’ car in the east-bound carriageway, and, as a result of this failure to give way, has collided with Mr Girys’ car.” Counsel for the prosecution went on to submit that the Court could not be satisfied as to how you came to be there, in spite of the fact that the parties had agreed to the tender of a diagram of the collision scene before the jury, (which later became Exhibit “C” at the plea hearing). This diagram showed your car having travelled in a diagonal path from Cornwall Road across the west-bound lane and centre of Frawley Road to collide with Mr Girys’ car in the east-bound lane. Having agreed with your counsel’s submission that the dangerous driving should be confined to failing to give way to Mr Girys by turning right into Gunns Road, the prosecutor then went on, somewhat confusingly, to state: “This is a case about where (you) had not gauged whether there was sufficient time to cross and had not kept a proper lookout.”
18 Consistent with the circumstances outlined in the Summary of Prosecution Opening, it seems to me that one simply cannot judge the moral culpability of your driving by focussing upon your turning across Mr Girys’ path as an isolated factor without context. I am satisfied of the following matters beyond reasonable doubt:
(1)That you entered Frawley Road from Cornwall Street with the intention of crossing Frawley Road in order to turn right into Gunns Road.
(2)There is no evidence that you did a “normal” left hand turn from Cornwall Street into Frawley Road. There is no evidence that you put on your right indicator, so that your intention to turn right into Gunns Road was evident to other road users. I accept that the description given by Mr Huynh under cross-examination at the committal is the way you entered Frawley Road.[6] The relevant evidence is as follows:
[6]Committal transcript 40
“Q:Did it appear that the car was having any difficulty taking the corner – turning the corner?---
A:It’s like, it’s not actually doing a full turn. It’s only doing like half.
Q:So its veering more than turning, is that what --- ?---
A:Yeah, it’s veering – going ---
Q:Do you understand what veering means?---
A:It’s going – how do you say – it’s not actually – it’s going – sort of, like a normal turn how you go just along that it just goes and goes like that.
HIS HONOUR: The witness is indicating with his hand making a wider turn ---?---
A:Yep, that’s correct.
Q:--- and a sharp turn?---
A:Making a wider turn. That’s how ---“[7]
[7]Committal transcript 40
Later, the evidence was as follows:
“Q:And as best you can say it looks like it’s turning and it’s not a direct turn but it’s more of the veer – the wider angle turn?---
A:Yep, the more they turn – it’s wider than people tend to actually go into their lane.”[8]
(3)Although I am unable to make a finding one way or another as to whether you stopped at the Give Way sign, I am satisfied that you did not stop or slow down once you entered Frawley Road. This is consistent with the evidence of both Mr Huynh and Mr Rickards. Nor did you brake. This is consistent with the evidence of the informant that no markings were found on the roadway.[9]
(4)The collision occurred in the context of you having entered Frawley road, which is a significant traffic thoroughfare. You did so by undertaking a wide left hand turn and, in an uninterrupted manoeuvre, you traversed the west-bound lane onto the wrong side of the road and collided with Mr Girys. This took place within seconds and Mr Girys had no time to avoid the collision.
[8]Committal transcript 48
[9]Committal transcript 58
19 The gravity of your conduct is that, having decided to embark on a potentially perilous course of negotiating a turn from Cornwall Street into Gunns Road in a single manoeuvre within a distance of approximately 8 metres (as indicated by Mr Hay’s report), you failed to look to your left at all. Had you done so, you would have seen Mr Girys easily because he was travelling in the east-bound lane, right before your eyes. Viewed in that context, your driving clearly meets the test of dangerous driving; that is, driving in a manner which posed a real danger to other members of the public in the vicinity, in that you had created a risk that significantly exceeded the risks which are ordinarily associated with driving on the road. It was a serious breach of the proper management or control of your car that created a real risk that a member of the public would be killed or seriously injured. I reject your counsel’s submission that yours is a case of momentary lapse of concentration. Examples of cases in that category include such situations as where, through temporary inadvertence, a driver swerves onto the incorrect side of the road or runs into a car in front of him or her. The context which I have described above makes yours a case at a level of seriousness above such cases of momentary lapse of concentration. However, it is clearly not a case which involves aggravating features of intoxication or at the higher level of gravity of someone who was intentionally driving in a hoon-like manner.
20 Deaths on our roads have been cause for ongoing community concern. Prior to 2004, there was a charge of dangerous driving which carried a maximum penalty of two years' imprisonment. In 2004, a new offence of dangerous driving causing death or serious injury was created. The maximum penalty for that offence was five years' imprisonment. In 2008, the law divided the offences into separate categories of dangerous driving causing death, which carried a maximum penalty of 10 years' imprisonment and dangerous driving causing serious injury, which carried a maximum penalty of five years' imprisonment. The increase in maximum penalties for the offence which you have committed shows how seriously it is regarded.
21 A car is a potentially lethal weapon. To cause the death of another human being is the most serious consequence that driving can have. Unhappily, dangerous driving causing death is a prevalent offence. In sentencing for this offence, the Court must denounce your dangerous driving and place emphasis upon general deterrence and just punishment. The impact of dangerous driving on our community is huge. The impact on Mr Girys’ family has clearly been huge. The evidence before me is that he was ninety years old and functioning very well for a person of his age. It matters not whether the victim of dangerous driving is ninety or nine years old. The law does not place a higher value on one life than another. One would be left in no doubt after hearing Mr Girys’ grand-daughter, Ms Dendroulakis, read out her Victim Impact Statement (Exhibit “E”) that the death of Mr Girys has had a profound effect upon her and other members of the family, several of whom were in Court.
22 Ms Dendroulakis described eloquently and poignantly how the collision occurred on her birthday when Mr Girys was on his way to see his wife in a nursing home, as he did every day. She described her grandfather as being very fit and active for his age and stated that he had cared for his wife for many years in the family home doing all household chores before she moved into a nursing home. Ms Dendroulakis attended the scene of the collision after she received a call that it has occurred. She is haunted by the memory of that scene and her last words to her grandfather. She experiences that pain every time she drives past the scene where the collision occurred. Mr Girys was clearly a much loved father, grandfather and great grandfather. Ms Dendroulakis says that sometimes the pain she feels over his death is so overwhelming that she feels she cannot breathe. The things which have been described by Ms Dendroulakis in her Victim Impact Statement are the foreseeable and understandable consequences of your dangerous driving, which caused the death of Mr Girys.
23 In a plea in mitigation, your counsel told the Court that you were born on 28 March 1962 in Sri Lanka. You are now 53 years old and are married with two adult sons and have two grandchildren. You come before the Court with no prior convictions and no matters pending.
24 You and your husband migrated from Sri Lanka to Australia in 1984 and you have held a driver’s licence since 1991, although you told police, and your counsel confirmed, that, usually, your husband does the driving and you mostly drive from home to the local station to catch a train to work. You were employed for 11 years as a factory worker at a business called “Sleepmaster” until you were made redundant in 2005. In 2006 you undertook a TAFE course to qualify as a personal care attendant. You then obtained employment in that capacity in a nursing home, Cranhaven Lodge at Cranbourne, and worked there on three days per week until 2008. You then obtained full time employment as a ward assistant on an oncology ward at Cabrini Hospital, working five days each week. Recently, you have reduced work to three days per week, so that you can care for your grandchildren, who are aged two years and one year respectively.
25 Your counsel stated that you are known as a compassionate person and, after ceasing your employment at Cranhaven Lodge, you continued as a volunteer there on Saturdays for approximately 10 years. A reference to this effect was provided by Angie Deane, the proprietor of that lodge. She stated that you are a caring and selfless individual whose empathy with the residents made a difference to their lives.
26 Also tendered was a reference from Kirsten Seletto dated 17 November 2015. She was the nurse manager of the inpatient oncology unit at Cabrini Hospital in Melbourne up until March 2015 and had worked with you for seven years. She stated that you are an honest person, who possesses great compassion and consideration for others, and that you are gentle, careful and hardworking and she had never had any reason to doubt your integrity.
27 Two witnesses were called to give oral character evidence on your behalf. Michael James Eggleton is the associate pastor at Living Way Church in North Cranbourne. He has known you since February this year because you are a regular attender of that church. He stated that he regards you as a honest woman who is measured and thoughtful and considerate of others. He has always known you to act responsibly and said that you assist in voluntary work at the church, doing such things as making meals and helping with Bible studies.
28 Another witness, Sinniah Sanmuga, is an elder and lay pastor at Calvary Worship Centre in Heatherton Road, Springvale. This is the church which you used to attend before going to the Living Way Church. He said he met you in 2000 because you were attending his church and, up until 2010, you did so regularly and, also, attended a Bible studies group at his home once per week. He said he has continued to have contact with you and knows that you are regarded as a woman of great integrity and that you contribute to charitable works at the church such as providing food stuffs for programs run by the church in places like Sri Lanka or India.
29 Your counsel submitted that your lack of prior or subsequent convictions, the positive evidence of your good character and contribution to the community as a volunteer indicates that, prior to this offence, you had led an exemplary life and also have excellent prospects of rehabilitation. He submitted that your plea of guilty, though late, should be regarded as a remorseful one and, in all the circumstances, he submitted that a Community Correction Order was an appropriate disposition for your offending.
30 The prosecutor supported your counsel’s submission that a Community Correction Order was appropriate. She urged somewhat emotively that imprisonment would not benefit you or the community, which I found an unhelpful submission.. She also stated that the Court could regard your plea of guilty as a remorseful one. However, I pointed out to her that not one of the character witnesses, either written or oral, made any reference at all to the accident or having discussed it with you or how it had impacted upon you or whether you were remorseful. I found it very difficult to reconcile the glowing accounts of your compassionate, caring and Christian nature with a lack of evidence of remorse, even though you had ultimately pleaded guilty on the second day of the trial. I was troubled by your account given to police of the circumstances of the collision, which bore no relationship to the evidence of how it had occurred. You clearly had not been turning right into Frawley Road. You clearly had not looked, at all, to your left, otherwise you would have seen Mr Girys’ car, and you had not braked, at all, as you claimed.
31 On your behalf, a contested committal had been conducted, the prosecution had been put to the time and expense of having Mr Hay prepare a report into the circumstances of the collision. It seemed that every conceivable point that could be taken to try and avoid legal responsibility for the death of Mr Girys was taken, on your behalf. These included mounting an argument that Mr Girys’ words to the informant that you “had come out of nowhere” should not be admissible and challenging that he had died from the injuries he received in the collision. I simply could not understand how a person of your good character appeared to be in denial about acceptance of legal responsibility for Mr Girys’ death. This was my state of mind when your counsel indicated on 19 November that he had completed all the material that he wished to put forward at the plea hearing and all that remained was for the Victim Impact Statement to be tendered and read the following day. I considered, at that stage, that, in all the circumstances, there could be no appropriate sentence other than an immediate custodial sentence, albeit that it seemed appropriate to make it of relatively short duration, combined with a Community Correction Order.
32 On 20 November, after the reading of the Victim Impact Statement, your counsel tendered a letter from Lynne Irving, counsellor with Road Trauma Support Services Victoria, dated 19 November 2015 (Exhibit “2”). A great deal then became clear at this late stage.
33 Ms Irving reported that you had initially made contact with Road Trauma Support Services on 2 December 2013 and had had six counselling sessions up to 31 March 2014. She stated that you “initially presented for counselling with symptoms commensurate with a post-traumatic stress response. These included a sense of numbing, disbelief and horror at being involved in the death of another person. (You) reported a sense of re-experiencing the crash through flashbacks and rumination over the events of that day. (You) reported confusion as to understanding how the collision could have happened because you had always been such a careful driver and never had an accident in your 22 years of driving. You reported that you were also coping with trying to recover from significant injuries which were very painful and difficult to manage.” She went on to state that you often cried at the enormity of everything that had happened and struggled with the uncertainty of the future.
34 It would have been helpful if the information in Ms Irving’s report had been brought to the Courts attention other than as an afterthought. On the basis of that document, I now am satisfied on the balance of probabilities that, prior to even being interviewed by police or charged with the offence, you did demonstrate symptoms of remorse. Moreover, that document, by describing your post-traumatic stress symptoms and confusion and distress provides an explanation as to why the account you gave to police would be so at odds with what actually occurred, whereas previously it had remained totally unexplained.
On the view with the jury, it was clear to me that you should have had a good view of Mr Girys’ car prior to the collision. At the conclusion of the plea hearing, in response to a question from me, it became apparent that your counsel and your solicitor had given you advice and conducted your defence without ever having inspected the scene of the collision. Your counsel stated that, after having a view with the jury, he gave you advice and you then pleaded guilty to the charge of dangerous driving causing death.
35 I was troubled by the manner in which your defence was conducted. In a case where the prosecution asserts a failure to give way through not keeping a proper lookout, one might expect that a lawyer would view the collision scene at an early stage after receiving instructions in order to be in a position to competently advise his client. Moreover, if your lawyers held concerns on the issue of causation of Mr Girys’ death, it is regrettable that they left the exploration of this issue with Dr Arora until after a jury had been empanelled for the trial.
36 I think it likely that, had you been advised more carefully, this matter would have resolved a long time ago. The legal process would not have been so protracted and costly, and Mr Girys’ family could have begun to move on in their grief, without having the added layer of hurt that the person who caused the death of their loved family member was not accepting legal responsibility for it.
37 Your counsel also submitted on your behalf that the Court should regard it as mitigatory that you had suffered injuries, yourself, in the collision. You had mentioned to police in the Record of Interview that you had broken your leg and, from the Bar table, your counsel mentioned that you had suffered fractured ribs and that you had required six months off work. There was no medical evidence concerning your injuries or the necessity for taking time off work. However, even if there were, I do not consider that such injuries are of a magnitude to be given any great weight as extra curial punishment. The higher courts have made plain that cases in which injuries sustained by an offender through her own wrongdoing will be regarded as a mitigating factor by way of extra curial punishment are infrequent. Where injuries have been regarded in that way, there has been evidence of very significant defects of an ongoing long-term nature, such as neurological impairment. There is no such evidence in your case.
38 It is true to say that often people who cause the death of others on the roads through their bad driving have led otherwise blameless lives. For that reason, prior good character is not necessarily given as much weight in these cases. However, it is appropriate to take into account that you have been a significant contributor to the community in a compassionate and caring way. In the circumstances which are now known to me, I consider that, provided you undergo some further driving instruction, your prospects of rehabilitation are good and that an immediate custodial sentence is not the only sentence capable of achieving the sentencing objectives to which I have referred. As I am now satisfied that the lateness of your plea of guilty is most probably a product of your legal advice, rather than a refusal to accept legal responsibility for your offending, and Exhibit “2” convinces me that you have remorse, you are entitled to a substantial discount on the sentence which otherwise would have been imposed.
39 On one charge of dangerous driving, you are convicted and ordered to undertake a Community Correction Order for a period of four years.
40 The terms of the order are as follows:
(a)that you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b)you must comply with any obligations or requirements prescribed by the Regulations;
(c)you must report to and receive visits from the Secretary during the period of the order;
(d)you must report to the Community Corrections Centre specified in the order within two clear working days after the order coming into force;
(e)you must notify the Secretary of any change of address or employment within two clear working days after the change;
(f)you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
(g)you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
41 In addition, the following conditions apply:
(1)that you undertake 400 hours of unpaid community work;
(2)that you undergo any treatment and rehabilitation recommended by the Secretary in order to address the underlying causes of your offending and, in particular, that you undergo a road trauma awareness program.
42 Ms Demel, I am unable to make a Community Correction Order unless you consent to it being made. Do you consent to an order with the terms and conditions which I have just stipulated?
PRISONER:
43 Yes, I do.
HER HONOUR:
44 Ms Demel, you must understand that, if you do not comply with the Community Correction Order, that, in itself, is an offence punishable by 3 months' imprisonment. Should that occur, then you will be charged with contravening the order and brought back to Court and it may well be that the order that I have made today would be cancelled and a term of imprisonment imposed.
45 Pursuant to Section 6AAA of the Sentencing Act 1991, I state that, had it not been for your plea of guilty, the sentence imposed would have been 3 years imprisonment with a non-parole period of 18 months.
46 Pursuant to s89(1) of the Sentencing Act 1991, all licences to drive are cancelled and you are disqualified from obtaining a licence for a period of 18 months from today.
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