Director of Public Prosecutions v Doeun

[2024] VCC 1423

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00092

DIRECTOR OF PUBLIC PROSECUTIONS

v

OUDOM SENEY DOEUN

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JUDGE:	HER HONOUR JUDGE MORRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	8 July 2024 and 30 August 2024
DATE OF SENTENCE:	20 September 2024
CASE MAY BE CITED AS:	DPP v Doeun
MEDIUM NEUTRAL CITATION:	[2024] VCC 1423

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE

Catchwords:               Two charges of culpable driving causing death, contrary to s318(1) of the Crimes Act 1958; and one charge of recklessly causing injury, contrary to s18 of the Crimes Act – offender drove through intersection against red light increasing speed to 213 km/h in a 70 km/h zone – offender’s passenger warned offender that the light had changed to red but offender continued to accelerate into the intersection – light had turned red approximately 6 seconds before offender entered intersection – offender collided with vehicle that had entered the intersection on the right-turn green arrow killing the driver and passenger of that vehicle – passenger in offender’s car injured – early guilty plea – prior good character – remorse – relative youth – probability of deportation – good prospects of rehabilitation – high moral culpability – serious example of offending – standard sentencing – significance of general deterrence and denunciation of conduct

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Brown v The Queen (2019) 59 VR 462; McPherson v The Queen [2021] VSCA 53; Director of Public Prosecutions v Gany (2006) 163 A Crim R 322; R v Franklin [2009] VSCA 77; R v Verdins; Buckley; Vo (2007) 16 VR 269; The Queen v Guzman [2021] VCC 260; DPP v Teiffel [2024] VCC 1266; Stephens v The Queen (2016) 50 VR 740; McGrath v The Queen (2018) 84 MVR 189; Da Costa v The Queen (2016) 307 FLR 153; Guden v The Queen [2010] VSCA 196; DPP v Josefski (2005) 13 VR 85

Sentence:                   Convicted and sentenced to a total effective sentence of 12 years and nine months’ imprisonment with a non-parole period of eight years. Section 6AAA declaration: 19 years and two months’ imprisonment with a non-parole period of 12 years and nine months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr R de Vietri	Office of Public Prosecutions
For the Accused	Mr P Dunn KC with Ms S Parsons	Doogue + George Criminal Lawyers

HER HONOUR:

1On 15 May 2023, Santosh Adhikari and Pratima Thapa Adhikari were on their way home.  Mr Adhikari was driving, and his wife was the front-seat passenger.  They approached the intersection of Thomas Street and North Road, Caulfield South.  The lights applicable to them as they entered the intersection were green.  They were travelling north.  As their car started to cross over North Road, a car travelling at a minimum of 180 kilometres per hour smashed into them.  The Adhikaris’ car was struck with immense force.  The vehicle came to rest past the intersection of North Road.  Soon after, both Mr and Mrs Adhikari were declared dead.  They had been killed in this tragic collision.

2The vehicle that caused this horrific double fatality was driven by you, Oudom Seney Doeun.  You were not alone in your vehicle.  You had a passenger, Mr Youthtakak Mam.  Mr Mam was injured in this collision. 

3You are now before me to be sentenced in respect of two charges of culpable driving causing death, contrary to s318(1) of the Crimes Act 1958; and one charge of recklessly causing injury, contrary to s18 of the Crimes Act.  The maximum applicable penalty for culpable driving causing death is level 3 imprisonment – that is, 20 years’ imprisonment or a level 3 fine or both; and for recklessly causing injury, level 6 imprisonment, 5 years’ maximum.

4Culpable driving causing death is a category 2 offence under the Sentencing Act 1991. Section 5(2H) of the Act requires the imposition of a custodial order for this offence unless the circumstances set out in paragraphs (a) to (e) of that subsection exist. Culpable driving causing death is a standard sentence offence. The standard sentence for this offence is eight years’ imprisonment. The standard sentence is not determinative of the penalty to be imposed, but is one of the many factors I am required to take into account as part of instinctive synthesis, as I shall later explain.

5You pleaded guilty to all charges when arraigned before me on 8 July 2024.

Circumstances of offending

6At approximately 9 pm on Monday, 15 May 2023, you were at your residence in Ashwood with your friend Mr Mam.  You and Mr Mam, together with your room-mate, all had dinner together at your residence and shared a bottle of red wine.  After dinner Mr Mam left your residence and returned to his own place in Glen Huntly.  Soon after this you called Mr Mam and asked if he wanted to go to the beach.  Mr Mam agreed.  You drove your BMW to Mr Mam’s home in Manchester Grove, Glen Huntly.  You picked him up at approximately 10.30 pm.  Mr Mam got into the front passenger seat of your car.

7You told Mr Mam that you were feeling a bit down and wanted to go to the beach.  The two of you decided to go to Green Point near Brighton Beach.  The path you took from Mr Mam’s house was: from Manchester Grove you turned right into Glen Huntly Road, and then left into Booran Road.  You continued along Booran Road to North Road.  There was nothing untoward about your driving for this period.  You were abiding by the speed limits, and the two of you were chatting.  At the intersection of Booran Road and North Road you turned right onto North Road and continued along North Road towards the bay.  You turned onto North Road still abiding by the road rules.

8Soon after you turned into North Road, you started driving very fast.  You put your foot to the floor, full throttle, and accelerated with the car’s engine revving loudly along North Road.  Two witnesses, Beryl Gdanski and Anthony Andretta, were in a car travelling west along North Road.  You overtook their car at some speed.  In shock, they saw you continue along North Road at a very fast rate of speed and lost sight of your car.

9At first, Mr Mam said nothing to you when you started driving very fast.  He was looking along North Road, and then he saw the traffic lights change from green to red about 100 metres ahead of the car at the intersection with Thomas Street.  Mr Mam warned you that the light had changed, and said ‘There’s a red light, stop’.  You did not slow down at all.  Mr Mam all the while kept repeating ‘Red light, red light’, a few times over.

10At around this time another car, driven by witness Ellie Bechler, was travelling west along North Road and was at the intersection of Thomas Street.  She entered the right-hand-turn lane to turn right onto Bambra Road, the continuation of Thomas Street.  Ms Bechler stopped at the intersection, as she had a red arrow.

11Mr and Mrs Adhikari were in a silver Honda.  They had stopped at the intersection of Thomas Street and North Road, waiting for the red signal at the intersection to change so that they could turn right.  When the light changed to green, they entered the intersection at a normal rate of speed.  At this time, you were speeding at a very high rate of speed towards the intersection against the red light applicable to you.  You continued travelling despite Mr Mam warning you repeatedly that the light was red.  In fact, the red light applicable to you had been red for approximately six seconds before you even entered the intersection.  That does not include the period of time during which the light was amber before turning red.  All the while, you were accelerating. 

12You collided with the driver’s side of the Honda in a T‑bone collision.  The Honda was propelled west along North Road, rolling multiple times and coming to rest upside-down, half on the median strip and half in the third westbound lane of North Road.  Your car continued in a westerly direction and crossed over the median strip and came to rest in the eastbound lanes past the Honda.

13The collision was recorded on Road Safety Camera footage taken from a camera at Thomas Street.  The footage was tendered into evidence as Exhibit C.  The footage shows the Honda entering the intersection in a northerly direction on a green signal, after which the front of your vehicle, travelling in a westerly direction along North Road, strikes the right side of the Honda at high speed, propelling the Honda in a westerly direction along North Road.  Footage was also taken from a CCTV camera at the Thirsty Camel bottle shop on North Road.  Footage was tendered as Exhibit D and played to the court.

14Ms Bechler saw the collision.  She turned into Bambra Road and pulled over to call Triple 0.  Meanwhile, you and Mr Mam got out of the BMW and walked over to the grass verge on the northern side of North Road, where you both collapsed.  This was seen by several witnesses who were together in a car travelling east along North Road.  They saw the BMW in the middle of the road and called Triple 0.

15As it happens, there is a fire station on the corner of North Road and Bambra Road, which is the continuation of Thomas Street over the intersection of North Road.  Fire-fighters heard the collision and immediately ran out to assist.  One of them drove a firetruck out to stop the flow of traffic.

16Fire-fighters Kyle Knights, Kiel Wood, Peter Keck and Mick Childs, approached the overturned Honda.  They saw the victims in the upturned and severely damaged car.  They checked for any response and signs of life.  Both Mr and Mrs Adhikari were dead.  The firefighters then located you and Mr Mam on the verge and provided first aid.  Police and paramedics arrived at the scene shortly thereafter.  You and Mr Mam were taken to the Alfred Hospital by ambulance.  You told paramedics in the ambulance that you were the driver of the BMW.

17Police investigators from the Major Collision Investigation Unit attended the scene and conducted various enquiries.  Detective Sergeant Rob Hay, a collision reconstruction expert, also attended and examined the scene.

18Police undertook various further investigations in relation to the collision, including analysis of the traffic signal sequence report, consistent with the traffic signals operating correctly, the red signal being displayed for eastbound and westbound traffic on North Road at the time of the collision, and a green signal being displayed for northbound traffic on Thomas Street and southbound traffic on Bambra Road; mobile phone analysis, including photos, text messages, and phone calls consistent with the pre-collision events described; DNA analysis of the driver-side airbags in your car showing a single source DNA profile matching you and excluding Mr Mam as the driver; and expert opinion regarding injuries to you and Mr Mam which showed you to be the most likely driver of the vehicle.

19Detective Sergeant Hay downloaded the airbag-control module from your car, which provided a crash data retrieval report.  The report disclosed information about the BMW prior to the impact.  It showed:

(a)   Both you and Mr Mam were wearing seatbelts;

(b)   From five seconds from impact until one second from impact, the accelerator was being pressed at 99 per cent capacity;

(c)   The brake was activated at half a second prior to impact;

(d)   Five seconds from impact the BMW was travelling at 190 kilometres per hour;

(e)   One second before impact the BMW was travelling at 213 kilometres per hour; and

(f)    At the point of impact, the BMW was travelling at 196 kilometres per hour.

20Based on this report and on his expert analysis, Detective Sergeant Hay opined:

(a)   The area of impact was within the intersection;

(b)   The driver’s side of the Honda was struck by the BMW;

(c)   The minimum speed of the BMW at the point of impact with the Honda was 188 kilometres per hour;

(d)   Prior to the collision, the maximum recorded speed of the BMW was between 204 kilometres per hour and 221 kilometres per hour;

(e)   After impact, the Honda commenced to roll and slide on the road surface;

(f)    Tyre marks indicate that the BMW’s tyres locked, either due to braking or damage.  The tyre marks continued to the rest position of the BMW, located approximately 120.8 metres from the area of impact;

(g)   The BMW suffered severe frontal rearward crush.  Both front tyres were pushed rearward into the structure of the BMW and were mechanically locked.  All airbags had deployed; and

(h)   The Honda came to rest approximately 70.8 metres from the area of impact, on its roof.  The Honda had been struck in the driver’s side and was severely bowed and damaged.  The front airbags and driver-side airbag had deployed.  The occupants were held in their seats by their seatbelts.

21On 12 June 2023 your car was mechanically inspected by a qualified police mechanic.  The examination failed to reveal any faults, failures or conditions that would have caused or contributed to the collision.

The collision scene

22The collision occurred on North Road, Caulfield South, at the intersection between North Road and Thomas Street/Bambra Road.  North Road runs in a general east‑west direction.  It is made of bitumen with three travelling lanes in each direction separated by a raised median strip.  Thomas Street runs south of the intersection.  It is made of bitumen and has one travelling lane in each direction.  Bambra Road runs north of the intersection and is also made of bitumen.  It has one travelling lane in each direction.  Each road entering the intersection has an extra lane added for right-turners.

23On each side of North Road there are grass verges, concrete footpaths, and residential or commercial properties.  Being an inner-Melbourne suburb, the area is densely populated.  A speed limit of 70 kilometres per hour applies to the relevant part of North Road where the collision occurred.  The applicable speed limit on Thomas Street was 60 kilometres per hour.  The collision occurred at night-time.  The traffic signals were operating normally.  Visibility was clear, the road was dry, and there was street lighting operating along North Road.

The victims

24Mr Santosh Adhikari was 32 years of age at the time of his death.  His wife, Mrs Pratima Adhikari, was 22 years of age at the time of her death.  They were Nepalese nationals, both in Australia on visas.  They lived together in Glen Huntly and worked together at a retirement village in Brighton.

25Post-mortem examinations were conducted on their bodies on 17 May 2023.  These examinations were by external examination only, and CT scan.  Both examinations showed extensive trauma to their bodies, with the cause of death for both being declared as ‘multiple injuries sustained in a motor vehicle incident’.

26Your friend, Mr Mam, was 22 years of age at the time of collision.  He is a Cambodian national and was in Australia on a student visa.  He was enrolled in Information Technology studies at RMIT.  You and Mr Mam were friends, having known each other since Year 7 when you both attended the same high school in Cambodia.

27As mentioned, both you and Mr Mam were taken to the Alfred Hospital.  Mr Mam arrived at the Alfred Emergency and Trauma Centre with the following injuries:

(a)   small left apical pneumothorax;

(b)   pulmonary contusion;

(c)   small volume peri-hepatic and pelvic free fluid;

(d)   intra-abdominal injury requiring urgent trauma explorative laparotomy; and

(e)   cuts, grazes and bruises to his hands, arms and legs.

28Mr Mam was referred to the Acute General Surgery Unit for management of an evolving intra-abdominal injury and was sent for urgent explorative trauma laparotomy where he had bowel resections, repairs, and washout of contaminants.  Mr Mam remained in hospital post-operatively until he was discharged on 29 May 2023.

Arrest and interview

29You were admitted to the Alfred Hospital Emergency and Trauma Centre for treatment.  Blood samples were taken.  You were arrested and cautioned by Detective Senior Constable Suboticki at the hospital at 12.14am on 16 May 2023.  Your mobile telephone was seized.  You admitted to police that you were the driver of the BMW and that the car belonged to your aunt and was in a company’s name.

30In the collision, you also sustained a number of injuries:

(a)   Left-side rib fractures, 4-6 anterolaterally;

(b)   Fat stranding (swelling) and small mesenteric haematoma and hemoperitoneum (blood inside the abdomen) adjacent to the left descending colon with focal bowel wall thickening;

(c)   Right ankle swelling/bruising;

(d)   Bruising on the upper body including bruising on the left chest wall, extending to the left waist/loin, orientated diagonally in the orientation of the right shoulder to the left waist; and

(e)   Bruising and abrasive-type injuries to your legs.[1]

[1]See Alfred Health Discharge Summary, Exhibit 8

31Upon your discharge from hospital on 22 May 2023, you were taken to Melbourne West police station where you provided a ‘no comment’ record of interview, as was your right.

32You were born in November 1998 and at the time of collision you were aged 24 years.  At the time of offending you were in Australia from Cambodia on a student visa and were enrolled in nursing studies at Swinburne University.  You lived in Ashwood.  You had lived in Australia for the majority of the time since at least 2016 when you were aged 18, and had completed your high school education in Australia.

33At the time of collision you did not hold a Victorian driver’s licence.  You did, however, hold a current Cambodian driver’s licence.  Applicable regulations however only allowed you to drive on your Cambodian driver’s licence for six months.  Accordingly, at the time of collision you were unlicensed to drive.  You have not been charged with unlicensed driving.

34Because you were an unlicensed driver, the applicable prescribed blood-alcohol concentration was zero.  At the time of collision your blood-alcohol concentration was 0.016 grams of alcohol per 100 millilitres of blood.  You have not been charged with exceeding the blood-alcohol concentration and there is no suggestion that alcohol contributed to your offending.

35At the time of collision you were driving a black 2022 BMW M235i sedan.  The car was registered to a company owned by your aunt and uncle.  You had been driving it since approximately July 2022.

Impact of your offending

36A victim impact statement was made by Puskal Bhusal dated 26 June 2022 and was tendered as Exhibit B.  Mr Bhusal read his statement to the court.  He is the cousin of Santosh Adhikari.  His statement was powerful and moving.  Mr Bhusal stated:

“That night, Santosh stayed back for a double shift on request and finished with Pratima at 10:30 pm so they could go home together at the aged care they were working.  It was a short trip home, but you made it the forever trip.  Their colleagues could not believe the news and were calling me frantically for confirmation.  It took me a day and a half to get in touch with someone from the authority to check what had happened.  Next couple of days I had the most horrible time of my life.  I was grieving the loss of these two lovely people while organising their repatriation to Nepal, which took more than two weeks.  I have no idea how I dealt with everything that involved.  Every day I felt drained and terribly exhausted, but I could not sleep.  I lost 4 kilos of my weight because I could not eat.  I had withdrawn from everything, my family, my kids, and my friends, I didn’t want to talk to anyone.  I was finishing my studies at the university and got to the point where I thought I could not carry on anymore.  The fact that this devil walked away with minor scratches after killing our lovely Santosh and Pratima on impact, made me feel helpless.  The news that he was out on bail within 24 hours of killing them and was able to reunite with his family and friends and live his life freely, after taking their lives of two innocent people exasperated my grief.  This is me, only their cousin, I felt so much heartache and pain.  I can’t imagine how their parents living thousands of kilometres away, who sent their dear kids here to live their lives, coped with the pain and heartache.

...

When I broke the news of Santosh and Pratima’s death in this accident, they refused to believe me until I was able to formerly identify them in person.  It took almost 3 weeks to get them home.  Imagine the pain, the heartache, the grief, they had to go through every single day for 3 weeks.  Finally, when they arrived in their home, poor parents were not even able to embrace their kids one last time and cry for their loss because you had their body so badly injured that they were scared to confront the extreme and be left with traumatic memory for the rest of their lives.  Pratima’s mom cried out until she passed out every single day and needed medical attention.  Today, both of her parents depend on medication to battle with depression and anxiety.  ...

Shilpa [Santosh Adhikari’s sister] has told me that the tragic loss of her brother and sister-in‑law in this accident has deeply affected her whole family.  Her father, who was once very socially active and deeply involved in community affairs, now finds it unbearable to face the people he used to spent time with.  ...  This tragedy has left the entire family isolated.  ...  They miss having daily calls and conversations with Santosh and Pratima.  The family was looking forward to welcoming them home that October, but you snatched them away from them.  This incident left the family not only emotionally devastated, but also socially isolated.  ...  The once vibrant and active family is now struggling to cope with an overwhelming sense of loss, grief, and isolation.  The condition of Pratima’s parents is the same, they have also shut themselves in with their grief and sorrow, and struggle to console each other.  With the loss of their baby girl, they are devastated and feel that their lives have been shattered irreparably.

All this because of one senseless man, who decided to have an adventure of riding on the top speed in a quiet suburban street, out of sheer negligence and disrespect of rules, and disregard of safety of his and other people’s lives.  It would be so much easier to get by this pain and grief if you were dead, but we lost the hope and respect for ‘karma’ when we see you alive and getting a chance in life, while you took that chance away from our Santosh and Pratima.  Had you been within the speed limit and failed to stop at the red light, they could have been alive.  You stole joy, happiness, peace and comfort from our lives, and we wish you may never find peace in your life ever.”

Standard sentencing relevant to culpable driving, Charges 1 and 2

37As I mentioned before, standard sentencing is one of the many factors I must take into account when assessing the appropriate penalty. 

38Sections 5A and 5B of the Sentencing Act 1991 relevantly provide:

“5A   Standard sentence scheme

(1)If the Act that creates an offence, or prescribes the maximum penalty for an offence, specifies a period as the standard sentence for the offence, then—

(a)the offence is a standard sentence offence; and

(b)the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

…

(3)For the purposes of subsection (1)(b), objective factors affecting the relative seriousness of an offence are to be determined—

(a)without reference to matters personal to a particular offender or class of offenders; and

(b)wholly by reference to the nature of the offending.

5B   Sentencing for a standard sentence offence

…

(2)In sentencing an offender for a standard sentence offence, a court—

(a)must take the standard sentence into account as one of the factors relevant to sentencing; and

(b)despite section 5(2)(b), must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied.

(3)Subsection (2)—

(a)does not limit the matters that a court is otherwise required or permitted to take into account in determining the appropriate sentence for a standard sentence offence; and

(b)is not intended to affect the approach to sentencing known as instinctive synthesis.

(4)A court that sentences an offender for a standard sentence offence must at the time of doing so state the reasons for—

(a)imposing that sentence; and

(b)any non-parole period fixed in accordance with s11 as part of that sentence if that period is shorter than the period specified in s11A(4)(a), (b) or (c), as the case requires.

(5)As part of its reasons under subsection (4), a court must refer to the standard sentence for the offence and explain how the sentence imposed by it relates to that standard sentence.”

39Culpable driving is a standard sentence offence, and as such the Court must have regard to that fact.[2]

[2]Section 5(2)(ab) Sentencing Act

40These provisions have been explained by the Court of Appeal in Brown v The Queen:[3]

“Conclusion

55Judges sentencing for standard sentence offences should continue to assess offence seriousness in the conventional way, taking into account both objective gravity and moral culpability. The obligations imposed by s5B(2)(a) (to take the standard sentence into account) and by s5(2)(ab) (to have regard to the standard sentence) are indistinguishable from the obligation imposed by s5(2)(a) [of the Sentencing Act] to have regard to the maximum sentence.  They are all ‘legislative guideposts’.

56That the process may involve an element of comparison would seem to follow from what the High Court said in Markarian about the function of the maximum penalty:

“It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.  That having been said, in our opinion, it will rarely be, and was not appropriate for [the sentencing judge in that case] to look first to a maximum penalty, and to proceed by making a proportional deduction from it.  That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case.”

57Just as judges have always had in mind a notion of ‘the worst possible case’, so they must now have in mind a notion of an offence ‘in the middle of the range of seriousness’.  At the same time, the utility of such a comparison is lessened in the case of the standard sentence.  There are two reasons for this.  The first is the narrowness of the definition of ‘objective factors’ which, as McCallum J pointed out in McLaren, is ‘ignorant of’ a range of matters which the judge will need to take into account in assessing the nature and gravity of the subject offending.  The second is the inevitable imprecision of the notion of a hypothesised mid-range offence.  As Basten JA said in Carlton v The Queen:

“As a practical matter, it must be accepted that the middle of a range of seriousness is not a precise point, nor is there any paradigm by which it can be identified.  This follows almost inevitably from the scope and variety of circumstances which can be relevant to considering seriousness.” ”[4]

[3](2019) 59 VR 462

[4]Brown v The Queen (2019) 59 VR 462 at 479 – 480, citations omitted

41The standard sentence:

“… must be given its place in the sentencing calculus — but it is an intangible concept, and judges ought to be wary of affording it too much weight in the sentencing exercise.  In particular, as [the Court of Appeal] has said, judges must avoid engaging in ‘two-stage’ sentencing, whereby a vague, essentially intangible concept is used as a starting point from whence the sentence is adjusted upwards or downwards as the case dictates.  It is a factor in the application of the intuitive synthesis, in the same way that the maximum sentence is.  No more, no less.”[5]

[5]McPherson v The Queen [2021] VSCA 53 at paragraph [31]

42As I am obliged to do, I take these matters very much into account when sentencing you.

Gravity of offending

43Culpable driving causing death is an extremely serious crime.  So much is inherent when regard is had to the maximum applicable penalty of 20 years’ imprisonment and to the fact that Parliament has enacted standard sentencing for this crime.

44In cases such as these, principles of general deterrence, denunciation, and just punishment are ordinarily predominant sentencing objectives.  Personal factors such as prior good character carry less weight than might ordinarily be the case.  As was said in Director of Public Prosecutions v Gany:[6]

“Serious driving offences frequently involve offenders who are of generally good character and who have excellent prospects for reformation.  No-one likes sending people to gaol but there has been much publicity about the consequences for those who choose to drive their motor vehicles in a criminally negligent or reckless manner causing serious injury or endangering other members of the public.  [The Court of Appeal] has said on numerous occasions, frequently when dealing with offences of culpable driving and negligently causing injury, that those who put lives at risk through grossly negligent driving can expect to receive heavy penalties influenced by the sentencing principle of general deterrence.  In such circumstances, sound prospects of rehabilitation will not lead to any significant amelioration of the prominence of general deterrence in the sentencing process.  Denunciation and general deterrence must be at the forefront of the sentencing synthesis.”

[6](2006) 163 A Crim R 322; cited with approval in R v Franklin [2009] VSCA 77 at paragraph [13]

45Many factors must be taken into account when assessing the overall gravity of your offending, including:

(a)   The fact that you caused the death of two innocent victims, whose driving in no way contributed to the collision.  Your driving was the sole cause of their deaths;

(b)   The fact that at the time, other drivers were in the vicinity of the intersection.  So much is evident from the video footage which reveals the presence of a number of other road users including the car you overtook, other cars, motor cyclists and pedestrians.  Furthermore, you were not alone in the vehicle – your friend was seated beside you.  Not only did you put him in danger, but you exposed others and yourself to danger;

(c)   The incredible speed at which you chose to drive through the red light, ignoring your passenger’s repeated warnings that the light was red;

(d)   You kept accelerating, your foot flat to the floor, until approximately half a second before the collision when you applied the brakes;

(e)   You drove at speeds as high as over 221 kilometres an hour in a 70 kilometre an hour zone;

(f)    Your driving at such excessive speed was a conscious and deliberate choice you made disregarding the risks of doing so;

(g)   You were unlicensed; and

(h)   You were over the applicable alcohol limit, although I accept this was not a contributory factor.  It is, however, an indicator of your disregard for the road rules. 

46As to the gravity of Charge 3, recklessly causing injury to your friend Mr Mam, although the injuries he sustained do not qualify as ‘serious’, they are at the uppermost end of the scale of injuries.  As I mentioned earlier, Mr Mam required surgery, and spent from 15 May 2023 to 29 May 2023 in hospital.  He has not made a victim impact statement, but that does not make his injuries less harmful or your offending any less grave.

47As was conceded by your counsel Mr Dunn KC, in all the circumstances the only appropriate response to your offending is the imposition of terms of imprisonment.

Plea in mitigation

48Mr Dunn conceded the gravity of your offending, acknowledging that you consciously and unjustifiably disregarded your obligations as a road user that night, thus directly causing the deaths of Mr and Mrs Adhikari and injury to your longtime friend, Mr Mam.

49In an eloquent plea in mitigation of penalty made on your behalf, Mr Dunn referred to a number of factors which, he submitted, combined to justify taking a more lenient approach when sentencing you.  I now turn to the factors advanced on your behalf.

Guilty plea

50You pleaded guilty at an early stage, before the committal hearing, which ultimately proceeded by way of straight hand-up brief.

51I accept you have never really sought to test or challenge the Prosecution case.  No witness has ever been required to give evidence against you at committal or upon your trial.  Importantly, the family of Mr and Mrs Adhikari have been spared the ordeal of giving evidence, as has Mr Mam.  All other witnesses have also been spared the ordeal and inconvenience of giving evidence. 

52In determining the weight to be given to your guilty plea, I take account of the following factors:

(a)   the timing of your plea;

(b)   you are entitled to a statutory discount because of your plea;

(c)   I accept that your plea is indicative of a degree of remorse;

(d)   you have avoided the cost and inconvenience of a trial; and 

(e)   there is social utility inherent in your guilty plea.

Factors personal to you

53You are now aged 25 years.  You were born in Cambodia and are the youngest of four children born to your parents.  At the time of your birth, your father was working in a low-level government position and your mother was starting her own business.  You lived in a low-socio-economic area of Phnom Penh.  Both your parents worked long hours to support the family meaning that you and your siblings spent a significant amount of time with your maternal grandparents while your parents were at work.

54By the time you were aged 10 years, your father had climbed through the ranks of the Cambodian government and your mother’s businesses had become successful.  Your parents’ newfound financial freedom presented opportunities for the family.  You were the first in your family to attend a prestigious international school in Cambodia.  You recall being teased at school for wearing simple clothes and for your grandfather picking you up from school on a motorbike.

55From an early age, you aspired to live in Australia.  At age 16, you moved to Australia in pursuit of a better education and lifestyle.  For the next three years you studied at a Catholic college in Melbourne, while living with a family friend. 

56After completing Year 12, you moved into your own apartment at Southbank.  You then commenced your first year of study in Foundations of Law at Deakin College, before transferring to a Bachelor of Law degree at Deakin University.

57At the age of 21 years, your mother assisted you to buy your first home in Ashwood, where you were living at the time of offending.

58Your father has not enjoyed good health in recent times.  In 2018 his health deteriorated, and he required a kidney transplant.  You flew with your father to India where the surgery took place.  You stayed at the hospital with your father for three months supporting him in his recovery.  This experience affected you greatly and you resolved to pursue a career in healthcare.

59You returned to Australia and gave up your studies in the law.  Instead, you completed a Diploma of Nursing at La Trobe College. 

60In 2021 your father required a second kidney transplant.  Again, you left Australia and travelled with your father to India where he underwent the second transplant. 

61You returned to Australia after much delay caused by the COVID pandemic.

62At the time of collision, you had completed one year of a Bachelor of Nursing degree at Swinburne University.  You were working part-time as a nurse’s assistant at La Trobe Private Hospital and as a barista at a café in Glen Iris.

63After being charged, you were released on bail, and during this period you continued to live at home alone.  This period gave you much time for reflection of your conduct.  You have not driven a vehicle since then and you have committed no further offences of any kind.  You did not return to paid employment and instead committed your time on bail to serving the community as a full-time volunteer at an aged-care facility.

64Mr Dunn submitted that you are remorseful and that you deeply regret the conduct that has had such a devastating impact on others.  He submitted that you have ‘tried to make good [your] error of judgment’.[7]

[7]Exhibit 1, plea submissions dated 3 July 2024, paragraph [29]

65You have sought counselling and mental health support, attending both a psychologist and a psychiatrist regularly for treatment.  You have been diagnosed as suffering Post-Traumatic Stress Disorder and a Major Depressive Disorder in response to the collision and associated trauma, guilt and shame.

Character references tendered on your behalf

66The following references were tendered on your behalf:

(a)   A letter from your mother, Sitha Men, dated 27 June 2024;[8]

(b)   A letter from your sister, Raksmey Doeun, dated 17 June 2024;[9]

(c)   A letter from your family friend, Sou Ching Le, dated 19 June 2024;[10]

(d)   A letter from your supervisor at Samarinda Ashburton Aged Services, Robert Howell, dated 19 June 2024;[11]

(e)   A letter from your colleague at Samarinda Ashburton Aged Services, David Hart, dated 19 June 2024;[12]

(f)    A letter from you colleague at Samarinda Ashburton Aged Services, Neil Withers, dated 19 June 2024;[13]

(g)   A letter from your family friend, Sandra Seo, dated 17 June 2024;[14]

(h)   A letter from your family friend, Dong Hyun Seo, dated 17 June 2024;[15]

(i)    A letter from your family friend, Sophia Thai, dated 26 June 2024;[16]

(j)    A letter from the Cambodian Ambassador to Australia and New Zealand, Mr Chanborey, dated 26 June 2024.[17]

[8]Exhibit 10

[9]Exhibit 11

[10]Exhibit 12

[11]Exhibit 13

[12]Exhibit 14

[13]Exhibit 15

[14]Exhibit 16

[15]Exhibit 17

[16]Exhibit 18

[17]Exhibit 19

67It is apparent from these character references that you continue to enjoy the support of your family and the community around you.  I note that at your plea hearing the public gallery was almost filled with your supporters.

68The letters written by your friends and family describe you as an independent, hardworking and responsible person who treats everyone with respect and kindness.  It is evident from your chosen career path in nursing that you are compassionate and desire to serve the community by helping as many people as you can. 

69One letter describes you as ‘a model of good behaviour’, and says the ‘unfortunate incident’ is ‘completely out of character’.[18]

[18]Exhibit 12

70Your mother and sister note in their respective letters the devotion you have shown to your father while he underwent his second kidney transplant in 2021 during the period of the COVID pandemic.  You were the only child to accompany your father to India for the procedure and you used your experience in nursing and aged care to communicate with the medical team.  You spent every day in the hospital with your father during his recovery despite the risk of being infected with COVID.  As a result, you had to put your life on hold because the quarantine and lockdown conditions meant you could not return to Australia to complete your studies.  Your mother described this period in your life as follows:

“He is very close and loves his father.  His father has had health problems for some time now.  And because Seney understands more about caring and looking after older people, he knows how to take care of his father.  His father underwent two kidney transplants.  The first one was done in 2018, and the second one was done in 2021.  Seney accompanied his father for both procedures in looking after him.  At the time of the last kidney transplant, Covid was still a major concern around the world.  He flew back to Cambodia to accompany his father to India for surgery.  His father stayed there for several months to recover.  He stayed in the hospital every day.  Due to border closure, he had to give up his Australian visa in order to do so.  With the lockdown and quarantine regulations, he knew that he would not be able to return to Australia and he had to put his life journey on hold.  But he still chose to go.  He was the only person who went.  My other three children did not want to go because they were afraid of being infected with Covid.  My husband’s health was still a challenge and he was still required to be monitored and followed up in India to ensure that the transplant went well.”[19]

[19]Exhibit 10, page 3

71Since October 2023 you have been volunteering at the Samarinda Ashburton Aged Care, which involves undertaking various kitchen-based tasks and serving elderly members of the community.  Your supervisor and colleagues speak highly of your empathy towards elderly clients and other volunteers.  They note your diligence and commitment to ‘do good’.[20]  It is obvious that you are a valued member of the volunteering team. 

[20]Exhibit 15

72All of the letters, in varying degrees, outline your deep remorse and your hopes for redemption.  You clearly appreciate the impact your actions have had on the families of the deceased.  You are now burdened with guilt over the deaths you have caused and this is having a profound impact on your life. 

Mental health issues

Dr Anuradha Sinha

73A report was prepared by your general practitioner, Dr Sinha, dated 23 April 2024 and was tendered as Exhibit 7.

74During your first consultation, which I assume to be post offending, an initial diagnosis was made that you were suffering from severe stress.  You were referred for treatment with a psychologist, Dr Sood, and with a psychiatrist, Dr Hogan.

75A list of your past and current medications are included in Dr Sinha’s brief report.

Dr Reshma Sood

76A report from your treating psychologist, Dr Sood, dated 11 June 2024 was tendered as Exhibit 3.  You have seen Dr Sood on 19 occasions following your offending.

77Dr Sood reported that since the collision you have been experiencing sleep disturbance, depressed and numbed mood, anxiety and worry about your future, reduced hedonic tone, social withdrawal, poor concentration (which has impeded your studies), flashbacks to the collision and heightened anxiety when travelling in a car.  At times you have expressed feelings of hopelessness and passive suicidal ideation.

78Dr Sood opined that you meet the criteria of Post-Traumatic Stress Disorder and at times you have also met the criteria for Major Depressive Disorder.  In addition, you experience a high level of anxiety about the outcome of the sentencing hearing.  You worry about the possibility of incarceration and the impact that this will have on your future prospects of residency in Australia, your career, and on your ability to carry out filial duties to your family.  In particular, you worry about not being able to see your father should his health deteriorate even further or should he die while you are serving a sentence of imprisonment.

79Dr Sood noted that your symptoms have partially responded to prescribed psychotropic medication and that your mental health has benefited from volunteer work in which you had been engaged.

80Dr Sood referred to the effect that the collision has had on you:

“Oudom’s accident and his understanding of the harm that has been caused by it, appears to have given him a different approach to life.  While he has had an interest in serving others for several years, evidenced by his decision to study nursing, more recently this has intensified.  His focus is on being of service to the community through volunteer work and blood donation, and of appreciating time spent with other people who are most important in his life (family and the team and residents at his volunteer service), as well as spending time in nature and in prayer.”[21]

[21]Exhibit 3, page 2

81Dr Sood reported that the approach of the psychology sessions with you have been primarily supportive, with a focus on monitoring your mental health and potential risk to yourself, as well as encouraging you to engage in structured activity and to have contact with supportive people.

82Dr Sood considered that you would benefit from ongoing psychological treatment.  He opined:

“Oudom will benefit from ongoing psychology sessions in the future to assist him with managing the stresses associated with his sentencing and the impact this will have on his life and future prospects, given how different his life was previously.  It is also likely that once the immediate stresses related to the hearing are over, he will likely be left to resolve some of the deeper issues relating to the impact of the harm caused by his actions on the victims and their families, as well as the impact on his own family, which may be difficult for him to come to terms with on his own.”[22]

[22]Ibid, page 2

Dr Geoffrey Hogan

83You were referred to Dr Hogan, consultant psychiatrist, for assessment and management.  You saw him in October 2023.

84In his five-paragraph report, dated 6 November 2023 but apparently signed on 15 March, 2024, tendered as Exhibit 5, Dr Hogan reported that you presented with symptoms consistent with a diagnosis of post-traumatic stress disorder/major depressive disorder.  He noted the dosage amounts of the medication you were currently taking, which he suggested be increased.

85In his subsequent report, dated 20 June 2024, tendered as Exhibit 6, Dr Hogan noted that you attended a number of subsequent appointments with him during which further medications were prescribed to control your post-traumatic stress disorder and major depressive disorder.  You last attended Dr Hogan on 17 April 2024.  Dr Hogan noted that on this occasion there had been a degree of improvement in your mood and energy.  Medication was again increased, and it was suggested that you re-attend for review in three weeks’ time. 

86As at the date of the report you had not re-attended for treatment with Dr Hogan.  Dr Hogan reported:

“I am unaware of his progress since the last consultation.  There were indications of a response to treatment.  I think it is probable that he will show a satisfactory response to treatment assuming that he remains in treatment, given his patchy attendance.  At the time of his last consultation, he indicated that there had been a marked improvement in his levels of pain.”[23]

[23]Exhibit 6, page 2

Carla Ferrari

87In her medico-legal report dated 6 June 2024, tendered as Exhibit 4, Carla Ferrari, forensic psychologist, noted that you denied having any mental health issues prior to your offending other than having a preoccupation and anxiety about your parents’ health.  She noted that you had not previously engaged in any self-harm or suicidal ideation, nor sought any professional help.

88Ms Ferrari noted that since offending, you reported becoming depressed, suicidal, and having fluctuating moods despite being commenced on antidepressant medication, which has been gradually increased due to your worsening depression and anxiety symptoms.  You told Ms Ferrari that the medication has side-effects such as occasionally experiencing visual hallucinations.

89Ms Ferrari observed:

“52.Mr Doeun informed he experiences significant anxiety about the outcome of his Court proceedings and stated he is unsure how he will cope in prison and that he ‘does not know if I would be able to live’.  He reported fleeting suicidal ideation however tended to minimize this, stating ‘I’m unsure as I really don’t know what I’m thinking half the time’.  He reported when he experiences suicidal ideation, he was not sleeping or eating on purpose as an attempt to harm himself.

53.Mr Doeun described his current circumstances as extremely distressing and overwhelming as he has never had any prior criminal association or any legal contact.  He worries if he were to be imprisoned that he would not be able to support his parents and his family should anything happen to them.  He explained that his siblings have their own families and because he is studying nursing he has more of an understanding of his parents’ medical conditions and appointments and can manage this and monitor them if he were there.”[24]

[24]Exhibit 4, paragraphs 52 and 53

90Ms Ferrari recorded your description of the circumstances of offending:

“63.Mr Doeun described his psychosocial circumstances preceding the offending, explaining he was under substantial stress at the time due to his parents’ physical health issues and was considering returning to Cambodia to support them.  He informed that he had his best friend over for dinner as he planned to discuss this with him.  He stated he consumed one teacup of red wine, explaining this oddity as an Asian custom to drink out of teacups.  He denied being intoxicated, and reported his blood alcohol level to be 0.01, under the prescribed limit.

64.Around 10-11 pm, he and his friend drove to a lookout in Brighton that they often frequent to ‘sit and talk about life’.  Mr Doeun advised on the drive there, he was describing to his friend how stressed he was with work and university, explaining he had been struggling to keep up with his assignments, his mood had started to deteriorate in the context of his family’s health problems, and he was finding it increasingly difficult to focus on his own obligations due to preoccupation with his parents’ health.  He again described his parents as ‘a living god in our culture, they are the ones who give us life and our sole purpose in life is to make them happy and proud’.

65.He informed that he was speeding (Mr Doeun informed consistent with the Prosecution Summary that this was 196 kilometres an hour at the time of collision) in an attempt to make it through a yellow traffic light, however realized he would not make it as the light turned red, and reported he tried to brake.  Mr Doeun’s vehicle collided with the driver’s side of the deceased couple’s vehicle that was entering the intersection.

66.When asked why he was travelling at such high speed, Mr Doeun informed his vehicle, a BMW M Sport is extremely powerful and quick and the vehicle is sensitive to acceleration.  He acknowledged however his own error in believing he could speed to get through the orange light.  Mr Doeun reflected that he ‘put all my stress, hate, and worry into the car and pushed the car at that time, I knew I was speeding, I didn’t consider what could happen’.

67.It is also noted that Mr Doeun was unlicenced, however he reported having taken the learners test two months prior but had not been able to secure an appointment for the practical driving test with VicRoads until a date that was after the accident.  He informed that he was unaware he was not permitted to continue driving until the test, as he still had an International Driver’s Licence which he thought to be valid.

68.Mr Doeun stated that he believes that there was a malfunction with his vehicle which contributed to the accident, describing it should prevent collisions and would usually display a warning and beep.  Mr Doeun informed he had only had a major brake service two weeks prior, as a warning sign for the brakes had been red, indicating its urgency, and he contacted BMW Berwick immediately and took the vehicle for repair.

69.Mr Doeun also advised that due to his likely plan of returning to Cambodia (noting he was 80 per cent certain he would return), he had already started looking to sell his vehicle.  This is supported in the unofficial police summary in which a deposit had been paid for the vehicle earlier on the date of the offence, with plan to transfer possession the next day.

70.He reported that on impact, the airbags deployed and the seatbelts restrained him and his friend who was in the passenger seat.  The automated SOS feature on the vehicle advised that there was a crash and that paramedics were en route.  Mr Doeun described self-extricating and then helping his friend to exit the vehicle, before they both collapsed on the sidewalk, describing shock and the adrenaline ‘kicking in’.  Emergency services arrived within minutes and both were taken to The Alfred Emergency and Trauma Centre for medical treatment.

71.He was aware that his friend had undergone surgery from their mutual friends, however had no other information pertaining to this.  The Prosecution Summary notes Mr Mamm required bowel resections, repairs, and washout of contaminants, and was discharged on 29 May 2023.  He reported being unable to support his friend, Mr Mamm who was the passenger in the vehicle, or speak to him has been difficult.

72.The Prosecution Summary also notes Mr Doeun was admitted to The Alfred between 15 and 22 May 2023, sustaining 4-6 anterolateral left-side rib fractures, swelling and small mesenteric haematoma and hemoperitoneum adjacent to the left descending colon, swelling and haematomas to his upper body from shoulder to waist, right ankle swelling and haematoma, and haematomas and abrasions to his legs.

73.Mr Doeun stated he was unaware that the victims of the other vehicle were deceased until facing Court after he was released from hospital.  He reported being in shock, extremely sad and remorseful, and described he continues to pay his respect to the deceased and prays for them, explaining that he is of Buddhist faith and practices daily.

74.Mr Doeun expressed genuine remorse for the impact of his actions and wishes he could ‘take it all back and prevent it from happening’.  He also noted he wished he had made the decision to return to Cambodia sooner, as the accident would have been avoided.  He cried discussing the offending, the impact on the victims and their families, and on his future if he is unable to care for his parents whom he remains extremely worried about, particularly if he is incarcerated and their health worsens.

75.Mr Doeun described that he has ‘lost the fire inside him, doesn’t want to do anything, has lost his will to live’.  He reported his actions as ‘a very big and bad mistake that he will live with daily for the rest of his life’.  He is extremely sad and sorry for what has happened, and stated ‘I cannot get over it, it is very traumatizing’.

76.He reported withdrawing and becoming reclusive for several months after the accident, only ordering food to the house and not wanting to go out in public as he was fearful of being around others.  He reported his mother stayed with him for two months after the accident once he was discharged from hospital but he would not want to communicate.  He described being ‘zoned out from everything, I didn’t want to talk about it, I didn’t want to be around anyone’.  He reported ongoing sleep disturbances due to nightmares, ruminating, and constantly feels worried.  Mr Doeun described feeling as though his life is ‘a timebomb, I don’t know when it will explode, I don’t know that the future holds’.”

91Ms Ferrari opined that you presented with a major depressive disorder and post-traumatic stress disorder which appear to have developed in response to your offending.  She also considered that in the period preceding your offending you appeared to be suffering from an Adjustment Disorder in the context of excessive preoccupation, worry, and anxiety about your parents’ health.

92Ms Ferrari referred to the possible effects of depression and anxiety which can alter cognition and behaviour, impairing the ability to rationalise, consider alternative responses, and affect decision-making.  I note however that this opinion was expressed in a general form and did not specifically refer to the function of your decision-making.[25]  In any event, in this type of offence relative youth is a sentencing factor that must attract less weight.  That is not say that relative youth is irrelevant.  It is still a matter to be accorded appropriate, moderated weight. 

[25]See for example paragraphs 140 – 142 of Exhibit 4

93Ms Ferrari noted that since offending, you have continuously engaged in psychosocial and psychiatric treatment and that you have complied with pharmacotherapy as directed by your general practitioner and psychiatrist.  Despite this, she considers the severity of your symptoms remain severe and are likely being protracted by the current legal proceedings and associated uncertainty of your future.

94As to the risk of you reoffending, Ms Ferrari assesses this to be low given you have no prior criminal history, you have complied with your bail conditions, there is no evidence of an antisocial peer group, no indication of a lack of support, nor a criminal attitude or orientation.

95Ms Ferrari opined that imprisonment is likely to have a negative effect on your development and future behavioural outcomes through loss of positive social structures and educational and vocational access, and exposure to negative peers at your impressionable developmental stage.  It was her opinion that imprisonment would weigh more heavily on you than a person who does not suffer from your conditions.  Furthermore, she was of the view that a custodial sentence would likely be a negative experience for you.  She considers you to be at risk of exploitation by other offenders in custody and your naivety to the prison environment and criminal associates generally places you at a higher risk than others.  Further she considered that there is a significant risk of your mental health worsening in such an environment, evidenced by your ongoing severe depression, anxiety and trauma symptoms.

96Ms Ferrari opined:

144…  Incarceration is likely to cause him further distress, increase his already excessive worry around his parents’ health, and is likely to contribute to increasing rumination and preoccupation about the offences which will reinforce his depression, anxiety, trauma, and associated guilt and shame.  It is also noted that Mr Doeun is currently experiencing suicidal ideation on an almost daily basis, with this being concerning in the event he is placed in custody and his mental state further deteriorates.

97The Prosecution did not challenge the opinions expressed by Ms Ferrari in this regard.  I accept that gaol will be more onerous for you and that your mental health conditions might worsen in a custodial setting.  Accordingly, two of the Verdins[26] principles, limbs 5 and 6, are engaged and apply in your case.

[26]R v Verdins; Buckley; Vo (2007) 16 VR 269 at paragraph [32], principles 5 and 5

98Mr Ferrari made the following recommendations:

“Mental Health

a.If a custodial sentence is imposed, Mr Doeun requires regular monitoring of his mental state, particularly in light of his suicidal ideation which is likely to worsen if incarcerated.  Mr Doeun should continue pharmacological treatment of his depressive symptoms.

b.If remaining in the community, Mr Doeun should continue his regular private psychological treatment to develop his skills to manage his depression and anxiety symptoms, though as previously mentioned it is likely that these are being further perpetuated by his legal proceedings and uncertainty regarding his future.

c.Once his depression and anxiety symptoms have stabilized somewhat, his PTSD can be addressed, however it is not recommended that this is targeted until his mental health is stable and he has a good repertoire of techniques to manage emotional distress, otherwise he is vulnerable to further decompensation.  Cognitive behavioural interventions with exposure or eye movement desensitization and reprocessing (EMDR) therapy are recommended to address his PTSD, as well as aiming to improve his capacity to cope with stressors and regulate his emotions.

d.Mr Doeun should continue pharmacotherapy in the community and reviews with his treating psychiatrist.  It may be worth considering the appropriateness of medication to assist with his PTSD symptoms, to reduce his nightmares and flashbacks.”

99As to employment and study, she made recommendations regarding this and transitional support which I will not repeat here.[27]

[27]See Exhibit 4, sub paragraphs 146(e)-(g)

Prospects of rehabilitation

100Mr Dunn submitted that you have good prospects of rehabilitation given your prior good character, your subsequent engagement in volunteer work, and Ms Ferrari’s unchallenged opinion that your risk of reoffending is low.  Moreover, you have obtained treatment to address your mental health issues.

101I further note that you have used your time on remand wisely, undertaking a number of programs, all of which are designed to enhance your prospects of living a law-abiding and healthy lifestyle when you return to the community.[28]

[28]Exhibit 22 – bundle of certificates relating to programs completed successfully whilst on remand.

Assessment of gravity of offending

102Mr Dunn submitted that although your offending is serious, it does not fall into the worst-case category for this type of offending.  He compared the circumstances of your offending with other sentences imposed for culpable driving causing death.  Only sentences imposed after the standard sentencing provisions came into force are relevant to the question of current sentencing practice.

103Mr Dunn identified a number of matters both personal to you and relevant to the circumstances of offending that he contended must be counted when assessing where on the scale of seriousness your offending falls:

(a)   Your reckless conduct was confined to a very short period of time, namely approximately 15 seconds, during which you covered a distance of approximately 800 metres.  He readily agreed that this conduct was sufficient to result in disastrous consequences.

(b)   Your relative youth.

(c)   Your personal circumstances at the time.  You had only recently returned from an overseas trip to Cambodia.  While there, visiting your family, you discovered that in addition to your father’s serious health problems, your mother had been suffering from diabetes for some time.  When you returned to Australia you began to contemplate returning to Cambodia to be with your parents.  The distance from your family added to your worry about them and you felt guilty over retaining your life in Australia and your sense of duty to return to care for your parents.

(d)   In the period leading to the collision you had had dinner with your friend Mr Mam and a housemate.  Over dinner the group shared a bottle of wine, although you only consumed a small quantity.  After dinner Mr Mam returned to his home.  According to your counsel, at this point you were becoming increasingly despondent about the impending changes in your life.  You called Mr Mam and invited him to go for a drive to Green Point, a lookout in the Brighton area.  Apparently, this is something the two of you did often when you wanted to discuss personal issues.  You collected Mr Mam from his home in Glen Huntly and headed to Brighton.  While driving along North Road, you accelerated, increasing your speed until you drove well in excess of the applicable speed limit of 70 kilometres an hour.

(e)   At the time of collision, you were not street racing in competition with other vehicles.  Nor were you in a high-speed police chase.

(f)    Although you had consumed alcohol prior to taking control of your vehicle, your offending was not aggravated by the presence by alcohol or illicit drugs.

(g)   You have no prior history of driving offences or of criminal or antisocial behaviour.

(h)   In all likelihood, after serving your sentence of imprisonment, you will be deported.[29]

(i)    Since your offending you have engaged in volunteer work and have given blood regularly.[30]

(j)    You are truly remorseful.

[29]See letter dated 2 July 2024 from Jessica Williamson, migration lawyer and partner in the firm WLW Migration Lawyers tendered as Exhibit 9

[30]See letter from Australian Red Cross Life Blood dated 27 June 2024 tendered as Exhibit 20

104Mr Dunn acknowledged the limited utility of comparing sentences imposed in other cases since no two cases are identical.  He did however refer to a number of cases, placing particular emphasis on two cases in which sentences were passed by judges of this court; namely, The Queen v Guzman[31] and Director of Public Prosecutions v Teiffel.[32]

[31][2021] VCC 260

[32][2024] VCC 1266

105In Guzman, the offender was aged 20 years at the time of offending.  He held a P2 probationary licence to drive.  Just after midnight in July 2019 he was driving home on a relatively new road in an urban area which was not built up but it passed through an area of light brush and tussocks.  It was a single carriageway road divided by a continuous white line.  The victim had left his parents’ home and was riding a mountain bike without any lights in the opposite direction.  A collision occurred on a new section of carriageway where the street lighting was not operating and just after a newly-constructed bridge had been built over Kororoit Creek.  At the point of impact, the offender was on the wrong side of the road.  He collided head-on with the victim who was thrown onto the offender’s windscreen.  The car continued for 80 metres before it came to a stop, with the cyclist under it.  The victim suffered multiple injuries and died at the scene.  After the collision the offender immediately contacted Triple 0.  He told the operator that the cyclist had come out of nowhere and that he did not see him.  The offender waited until police and ambulance arrived.  He told them that all of a sudden he saw the cyclist’s helmet and hit him ‘dead on’.  The offender had not consumed any alcohol.  Enquiries were unable to determine the speed at which the offender was travelling other than to find it was travelling at a high speed.  A reconstruction expert opined that at the time of the collision the offender was travelling at about 112 kilometres an hour.  The learned sentencing judge noted the offender was travelling at more than twice the applicable speed limit.  It was accepted that many of the factors present in culpable driving cases were not present in that case.

106Addressing the factors personal to the offender, it was noted that he pleaded guilty at the earliest opportunity, he accepted responsibility for his conduct, he made full admissions at the scene, and he obviated the need for a committal and for the calling of witnesses.  He was also given credit for the social utility inherent in his plea entered during the period of the COVID-19 pandemic.  The sentencing judge accepted that the offender was remorseful and that he was supported by ‘impressive references’.  The offender was of prior good character.  He had very good prospects of rehabilitation.  Two psychological reports were tendered evidencing the treatment that the offender had undertaken post offending.  The offender was suffering from chronic Post-Traumatic Stress Disorder and the psychologist was working with the offender to assist him to address ‘significant physical and psychological distress’.  The psychologist also found the offender to be suffering from moderate depressive and anxiety symptoms and severe stress.  She assessed his risk of recidivism as low.

107The offender fell to be sentenced under the standard sentencing provisions.  On the single charge of culpable driving causing death, the learned sentencing judge sentenced the offender to seven years’ imprisonment with a minimum term of three years and nine months to be served before becoming eligible for parole.  The sentencing judge acknowledged that the sentence was below the standard sentence. 

108In Teiffel, the offender was charged with two counts of culpable driving causing death.  The deaths occurred in a single vehicle collision.  The victims were the offender’s 16-year-old brother and his 26-year-old cousin.  There was a further relative in the car who was injured in the collision, but no charges were laid in respect of this.  At the time of offending the offender was 23 years of age.

109The offender had invited his passengers into his vehicle after speaking about its performance, including how it was a ‘high-performance car and had eight gears’.  In the space of nine and a half minutes the offender drove out to the Wangaratta-Whitfield Road.  He then drove some distance at various speeds, consistently over the applicable 80 kilometre and 100 kilometre speed limits, at one point reaching 152 kilometres an hour.  The surviving passenger described the rapid rate of speed at which the vehicle took off, saying it was a speed that ‘kind of throws you back in your seat’.  As the vehicle crossed the Hume Freeway, the surviving passenger took his phone out to record the speed.  The recording showed a display of 246 kilometres an hour on the speedometer.  Less than 250 metres past Clarks Lane, while the vehicle was travelling on Greta Road, the road curved to the right.  At this point the applicable speed limit was 80 kilometres an hour.  There was also a 75-kilometres-an-hour advisory sign for the bend and multiple chevron signs aligning around the bend.  As the vehicle passed the 80-kilometres-an-hour sign, it was still travelling at about 222 kilometres an hour.  The vehicle veered slightly to the left before entering the bend at about 205 kilometres an hour.  The offender then lost control of the vehicle through the bend.  He was still driving at a speed between 172 and 186 kilometres an hour.  The vehicle crossed the opposite lane, entered the roadside grass verge and sideswiped a tree with its passenger-side.  At the point of impact with the first tree, the Jeep was still travelling at between 95 and 102 kilometres an hour.  The impact caused the car to rotate anticlockwise before sliding sideways into a paddock and hitting another tree with the driver’s side.  The vehicle then continued side-sliding for a short distance before rolling onto its roof.

110The offender was cooperative with police at the scene, admitting he had been speeding at the time of the collision and also advising police that he had consumed alcohol earlier that day.  He expressed considerable concern about his passengers, enquiring about their welfare.  Despite the alcohol reading, it was not suggested that it played a role in his culpable driving.  His culpability arose from the excessive speed prior to the collision.

111The learned sentencing judge accepted the offender’s motivation for driving at such a speed appeared to have been to demonstrate the capacities of his car of which he was so proud, rather than seeking the thrill of the chase, or pursuing some other lawful conduct.  Her Honour also accepted that the offender’s driving lacked a number of other egregious features that are often seen in culpable driving cases.

112Her Honour accepted that the offender was remorseful.  He had written a letter of apology to the family of the victims.  He pleaded guilty at an early stage, prior to a contested committal.

113A number of references were tendered, which her Honour accepted showed the offender to be a person of good character who had the love and support of many.  He had devoted many hours over the years to helping others, including by taking on volunteer roles and activities at school and in his community.  Her Honour also noted the extra-curial punishment suffered by the offender which included disciplinary action by his church involving exclusion from church services.  Part of his punishment meant he could not enjoy meals of any type with his community including with members of his family and co-workers.

114A psychological report was tendered showing that the offender regularly engaged in psychological treatment.  The psychologist noted that the offender suffered from a number of symptoms including recurrent distressing memories and flashbacks of the collision and its aftermath, recurrent nightmares that related to the collision, and a deep and pervasive sense of shame, remorse and guilt in respect of the collision, the loss of his brother and cousin, the injury caused to his other cousin and the distress suffered by his family and his cousin’s family, a sense of emotional isolation and low self-worth with loss of identity in response to being withdrawn from his community, recurrent major depressive episodes on a background of chronically low mood, and pervasive anxious worry in respect of the emotional well-being of his parents.  Testing showed he presented with clinically severe depressive symptoms, clinically severe symptoms of anxiety worry and a generally harsh and negative self-evaluation with a high level of self-doubt and shame.  The psychologist opined that the offender suffered from a number of comorbid mental disorders, being complex post-traumatic stress disorder with survivor guilt and shame syndrome and recurrent major depressive episodes, prolonged grief disorder with melancholic features, and adjustment disorder with depressed mood.  Additionally, the psychologist opined that the offender’s level of social and emotional maturity was at a lower level of development then his IQ, likely as a result of his age and the insulated community in which he was raised.

115The psychologist identified the offender as being an emotionally vulnerable and socially isolated young man who would likely experience a far greater level of hardship as a correctional inmate than would otherwise be the case.  Further, he acknowledged his quite significant concerns about the offender’s long-term mental health prognosis.

116Her Honour noted that the standard sentencing provisions applied, and came to the view that objectively the gravity of the offending fell above the middle of the range for this kind of offending.  She reasoned:

“However, there are significant mitigating features which you can call in aid in sentencing including, but not limited to, your early plea of guilty, the genuine remorse which you have demonstrated for your offending, the extra-curial punishment which you have suffered as a result of your offending, your youth, your prior good character, the additional burden of imprisonment upon you by reason of your mental health issues and your concerns about your parent’s ongoing welfare, your excellent prospects of rehabilitation, and the minimal weight to be given to specific deterrence and community protection in sentencing you.”

117Her Honour noted that the sentence she was about to impose was lower than the standard sentence for those charges.  She stated:

“I have considered the standard sentence as one of the factors in my instinctive synthesis of the relevant facts and principles, however having regard to all of the relevant factors including the seriousness of the offending and the extensive mitigatory material in this case, I am of the view that a sentence lower than the standard sentence on each charge is appropriate.”

118On each of the two charges of culpable driving causing death, her Honour convicted and sentenced the offender to six years and nine months’ imprisonment.  She directed that two years of the sentence imposed on the second charge of culpable driving be served cumulatively upon the sentence imposed in respect of the first charge.  That resulted in a total effective sentence of imprisonment of eight years and nine months.  She directed that the offender serve a minimum period of five years and four months’ imprisonment before becoming eligible for parole.

119Mr Dunn submitted that the sentences imposed in these two cases should be taken into account when determining the appropriate penalty in your case.

120I do not consider that these two cases set the ‘tariff’ of current sentencing practice for culpable driving causing death.  I take them into account, but I am not bound to impose the same sentences as were imposed in those cases.  Each case must turn on its own facts.  There are simply too few cases to say that there is a current discernible sentencing practice.  Sentencing practice is not established by a second judge blindly imposing the same sentence imposed by the first judge who imposed the very first sentence under a new sentencing regime.  To follow such a practice would mean it is the first and only judge who determines current sentencing practice. 

121In Stephens v The Queen,[33] a case involving dangerous driving causing death, the Court of Appeal observed:

“[26]Moral culpability in respect of criminal conduct does not fall to be assessed simply by identifying aggravating features that could have been present and then asserting that the case under consideration cannot be regarded as serious or very serious because of the absence of some of those factors.  Both the dangerousness and moral culpability fall to be assessed by reference to all of the conduct and circumstances of the specific case, including the circumstances of the offender.

[27]Offending by a person who has knowledge of the risks associated with particular driving, will ordinarily be adjudged more blameworthy than offending by one who is without that knowledge.  The degree to which particular consequences of the offender’s acts were, or should have been, foreseen by him or her will inform the question of moral culpability.”[34]

[33](2016) 50 VR 740

[34]Stephens v The Queen (2016) 50 VR 740 at paragraphs 26 – 27 citations and footnotes omitted

Prosecution submissions

122Mr de Vietri submitted that a substantial term of imprisonment must be imposed to reflect the sentencing purposes of general deterrence, denunciation and just punishment.  He conceded that your rehabilitation is also a factor to be considered, and that specific deterrence is not a dominant sentencing factor in your case.

123Mr de Vietri referred to the Court of Appeal’s judgment in McGrath v The Queen[35] where Osborn and Priest JJA observed:

“Insofar as general deterrence is concerned the appellant was, like many who commit offences of the type in question, an immature man affected by alcohol, driving at excessive speed.  These characteristics give rise to a need for the Court to send a clear message by way of general deterrence of similar behaviour.  That message must be that no matter who is driving a car the community will not tolerate driving by a person under the influence of alcohol or driving at excessive speed.  The tragic consequences of the appellant’s behaviour graphically demonstrate the need for ongoing deterrence of similar conduct.”[36]

[35](2018) 84 MVR 189

[36]McGrath v The Queen (2018) 84 MVR 189 at paragraph [68]

124In Director of Public Prosecutions v Gany[37] the Court of Appeal emphasised the significance of general deterrence in cases such as this.  Chernov, Vincent and Redlich JJA observed:

“The eloquent and comprehensive plea in mitigation advanced by Mr Carter before his Honour and in this Court emphasised that there were powerful mitigating circumstances.  But the respondent’s extreme remorse, his steps towards rehabilitation and the respondent’s suffering and deprivation during his earlier life had to be considered in conjunction with other important sentencing principles, including general deterrence.  Serious driving offences frequently involve offenders who are of generally good character and who have excellent prospects for reformation.  No-one likes sending such people to gaol but there has been much publicity about the consequences for those who choose to drive their motor vehicles in a criminally negligent or reckless manner causing serious injury or endangering other members of the public.  This Court has said on numerous occasions, frequently when dealing with offences of culpable driving and negligently causing injury, that those who put lives at risk through grossly negligent driving can expect to receive heavy penalties influenced by the sentencing principle of general deterrence.  In such circumstances, sound prospects of rehabilitation will not lead to any significant amelioration of the prominence of general deterrence in the sentencing process.  Denunciation and general deterrence must be at the forefront of the sentencing synthesis.”[38]

[37](2006) 163 A Crim R 322

[38]Director of Public Prosecutions v Gany (2006) 163 A Crim R 322 at paragraph [35], footnotes omitted

125Mr de Vietri contended that your offending arises from deliberate conduct constituted by a form of ‘hooning’ and can be contrasted with culpability arising from gross negligence through fatigue or inattention.  He submitted that your offending falls well above the mid-range in terms of objective gravity.  He referred to Da Costa v The Queen,[39] a case in which the driving was conscious and deliberate.  The collision occurred when the offender drove through one of the busiest intersections in the Melbourne metropolitan area at ‘an absurdly high speed’ at least 18 seconds after the light had turned red.  In their joint judgment Maxwell P, Redlich and Priest JJA observed:

“As this Court pointed out in R v Towle, the sentencing court’s assessment of the dangerousness of a person’s driving is informed by the extent of the risk which it created.  The extent of the risk includes both the likelihood that something will go wrong, and the extent of the harm which will result if it does.  In the present case, according to the respondent —

the risk of a collision was as high as it gets — inevitable; the risk of catastrophic consequences was as high as it gets — inevitable.”[40]

[39](2016) 307 FLR 153

[40]Da Costa v The Queen (2016) 307 FLR 153 at paragraph 61, footnote omitted

126Mr De Vietri submitted that your offending was bound to result in catastrophic consequences.  He noted the presence of some aggravating features in your case, including that you drove whilst unlicensed, that you drank while alcohol was present in your system and that your speed was extremely high, approximately three times over the applicable speed limit, in a built-up metropolitan area.  Significantly, Mr de Vietri noted that you have offered no satisfactory explanation for ignoring all the warning signs in this case.  As Mr de Vietri put it:

“23.… The traffic signals had been red for approximately 6 seconds before the accused entered the intersection.  The intersection was well lit, visibility conditions were clear, and the other cars using both roads were using headlights.  Mr Mam, the passenger sitting next to the offender, saw the traffic lights change from green to red about 100 meters ahead of the car.  Mr Mam warned ‘there’s a red light, stop’.  The Accused did not slow down and Mr Mam kept saying “red light, red light” a few times over.  None of these warning signs resulted in the offender decelerating the car.  The speed analysis from the BMW’s own onboard computer shows that 5 seconds from impact the BMW was travelling at 190 kilometres an hour and 1 second from impact the BWM was traveling a 213 kilometres an hour.  There is no sign of the driver taking evasive action until the brake was activated 0.5 seconds from impact.  The inevitable inference from this collection of facts is that, as well as intentionally ‘flooring’ the accelerator to propel the car to an outrageous speed, the offender also made a deliberate choice to drive through the red light.  He took that conscious and deliberate risk while in full control of his car and his faculties (albeit feeling ‘a bit down’).  This feature of the driving must materially inform the Court’s assessment of the overall objective gravity of the offending.  It is significantly aggravating. 

24.The combination of the extreme speed together with this offender’s voluntary decision to drive through a red light, make the risk of catastrophic consequences almost inevitable.  Like in Da Costa, the very high likelihood of fatal consequences flowing from the conduct of the offender must guide the Court’s assessment of the objective gravity of the offending. 

25.Taking into account all the features of this offending, it must be that this offending falls well above the mid-range in terms of objective gravity.  Whilst there are some common aggravating features absent (drug use, intoxication, fatigue, long journey et cetera), these factors do not constitute a mere checklist that the absence of one or more of them means that the case cannot be regarding as serious or very serious.  As the Court of Appeal has recently said in a dangerous driving sentence appeal ‘the primary focus in assessing the gravity of an offence is on what the applicant did and how he drove the vehicle, rather than on what was not present’.  The main features of this offending (particularly the speed and degree of risk) indicate a high level of objective gravity.”[41] 

[41]Exhibit E, paragraphs 23 - 25

127Mr de Vietri submitted that your claim of accepting responsibility for your actions is at odds with your claim to Ms Ferrari that a vehicle malfunction contributed to the collision.  The objective evidence proves there was no such mechanical defect.  He also submitted that your explanation that you were trying to make it through the yellow light is inconsistent with the objective evidence that the light had turned red some six seconds before you entered the intersection. 

128Mr de Vietri conceded that you must receive the benefit of your guilty plea and that you are truly remorseful and regret the impact of your conduct.

129Addressing the factors personal to you, Mr de Vietri conceded that you are entitled to the benefit of your prior good character and that at the time of your offending you were aged 24 years.  He submitted however that you are at the ‘outer cusp’ of being described as ‘youthful’.  At any rate, what is important is the level of your maturity and experience in life.  Contrary to Ms Ferrari’s opinion that you lacked maturity, Mr de Vietri contended that the evidence tendered on your behalf upon your plea portrays you as an intelligent, mature, self-sufficient and independent person.  In support of this submission Mr de Vietri drew attention to a combination of facts:

(a)   You owned your own home and have lived independently in Australia since the age of 18 in 2017. 

(b)   You were a Second Lieutenant in the Cambodian National Police and had undertaken a police training course at age 22. 

(c)   You had completed foundational studies in law at Deakin University. 

(d)   You had commended studying a Bachelor of Laws at Deakin University. 

(e)   You had completed a Diploma of Nursing. 

(f)    You had become an enrolled nurse. 

(g)   You were in the process of completing your final year of further nursing studies (Bachelor of Nursing). 

(h)   You were working part-time as a nursing assistant at La Trobe Private Hospital. 

(i)    You had strong positive role models in your early life, including your father who was Secretary of State for the Ministry of the Interior for Cambodia. 

(j)    You scored in the 53rd percentile in the UPPS-P administered by Ms Ferrari, indicating ‘moderate’ difficulties with impulsivity.

130Mr de Vietri submitted that in any event, your personal circumstances are not such as to warrant a reduction in the importance of general deterrence and denunciation of this type of offending. 

131Mr de Vietri conceded that limbs 5 and 6 of Verdins were engaged, but that limited weight should be given to these factors as they arise solely as a consequence of your offending.

132Mr de Vietri submitted that your moral culpability must be assessed as high in view of the fact that although you did not intend the consequences of your actions, you certainly made the conscious and deliberate choice to drive in the manner and at the speed you did.  No other person or external event contributed to your offending or its consequences. 

133Mr de Vietri agreed that your prospects of rehabilitation are good and that you pose a low risk of reoffending.

134On the question of the likelihood of your deportation, Mr de Vietri conceded that this will weigh heavily on you and make your time in custody more onerous.

135Addressing current sentencing practice, Mr de Vietri referred to the Table of Cases extracted from the Sentencing Manual published by the Judicial College of Victoria between 2020 and the present.  He reminded the Court that the primary focus in assessing the gravity of the offence of culpable driving is on what the driver did and how he drove the vehicle.  Referring to the decision in Teiffel, Mr de Vietri noted that at the time of the further plea hearing on 30 August 2024, which was listed so that your counsel could make further submissions addressing the relevance of that case to yours, this Court only had access to an unrevised copy of the reasons for sentence and that the appeal period had not expired.  In conclusion Mr de Vietri submitted:

“70.The Prosecution submits that Charges 1 and 2 represent a serious example of a serious offence.

71.The Prosecution respectfully submits: 

a.On Charge 1, a substantial term of imprisonment is the only appropriate sentence. 

b.On Charge 2, a substantial term of imprisonment is the only appropriate sentence. 

c.On Charge 3, a term of imprisonment is the only appropriate sentence. 

d.The sentence ought be structured in a way that balances the need to recognise the separate gravamen and impact of each individual offence, while also taking into account the fact that each offence was committed within the same relatively confined episode of offending.  Therefore, there ought to be substantial amount of concurrency between the sentence on each offence with a moderate or ‘sensible’ degree of cumulation between the sentence on each offence. 

e.The Court ought to fix a non-parole period of at least 60 per cent of the head-sentence.”[42] 

[42]Exhibit E, paragraphs 70 and 71

Analysis

136I have referred to the applicable principles and the submissions made by counsel for both sides.

137I take account of all of the factors personal to you.  I make the following findings:

(a)   I accept you pleaded guilty at an early stage and that you are entitled to the benefit of that in the manner and for the reasons earlier mentioned;

(b)   I accept that you are a person of prior good character and that there are no other matters pending;

(c)   I accept that at the time of offending you were aged 24 years.  I do not accept that there is satisfactory evidence to establish that by reason of your age you lacked maturity or were more prone to making rash decisions.  I have already noted that in this regard Ms Ferrari spoke in terms of generalities and did not address why the general applied to you.  I agree with Mr de Vietri that the objective facts establish that you have sufficient experience in life here in Australia, including living an independent life, owning a home and successfully completing education and undertaking employment to hold that at the time of offending you were, apparently a responsible, independent well‑grounded resident;

(d)   I accept that you enjoy the love and support of your family and friends;

(e)   I accept that you are truly remorseful for what you have done and the impact that it has had;

(f)    I accept that limbs 5 and 6 of Verdins apply;

(g)   I accept that your prospects of rehabilitation are good and that you pose no real risk of reoffending;

(h)   I accept that you will likely be deported,[43] although I am unable to take into account what executive decisions might be made in this regard.  I note however, that the fact of your probable deportation will make your imprisonment more onerous for you;

(i)    I accept that you pose little risk of reoffending and that specific deterrence is not required;

(j)    I do not accept the explanation you gave to Ms Ferrari about your attempt to beat the yellow light.  It had turned red for approximately six seconds before you entered the intersection, and Mr Mam repeatedly warned you that the light was red.  You chose to ignore those warnings.  In fact, the data taken from the computer in your car showed that the accelerator was depressed 99 per cent during this time, effectively having your foot flat to the floor, only applying the brakes half a second before the collision.  And I do not accept that a mechanical fault in your car contributed to the collision, contrary to the explanation you gave to Ms Ferrari. 

[43]Guden v The Queen [2010] VSCA 196

138In all the circumstances, I consider your moral culpability to be high, given your driving was deliberate, and the gravity of your offending must also be regarded as high on the scale of seriousness for this type of offending.  Under the standard sentence provisions, I assess the relative seriousness of these charges as above the middle range of the seriousness for culpable driving causing death offences. 

139I am bound to take account of all the factors personal to you; however, I am also required to pay regard to all of the other matters to which I have also referred including the need to deter others from engaging in like conduct.  I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and to impose a just punishment.  I am also required to take into account the standard sentencing provisions that apply to the charges of culpable driving causing death.

Sentences to be imposed

140On the charges, I have no alternative to the imposition of terms of imprisonment.

141On Charge 1, culpable driving causing death, you are convicted and sentenced to eight years’ imprisonment. 

142On Charge 2, culpable driving causing death, you are convicted and sentenced to eight years’ imprisonment

143I have arrived at these sentences not because they happen to be the standard sentence for culpable driving causing death, but because, after balancing all relevant factors, I consider them to be the appropriate sentences.

144On Charge 3, recklessly causing injury, you are convicted and sentenced to 18 months’ imprisonment.

145On the question of cumulation, I note there is a degree of overlap; however, total concurrency would, in my view, fail to do justice.  Some concurrency is, however, warranted in all the circumstances.  Accordingly, I direct that four years of the sentence imposed in respect of Charge 2, and nine months of the sentence imposed in respect of Charge 3, a substantial term of imprisonment, is the only appropriate sentence be served cumulatively upon the sentence imposed in respect of Charge 1, the base sentence, and with each other.  That results in a total effective sentence of 12 years and nine months’ imprisonment. 

146I now turn to the question of the non-parole period. 

147In determining the non-parole period in your case, I am required to take in account the purpose of fixing a non-parole period, which is ‘to provide for mitigation of punishment in favour of [your] rehabilitation through conditional freedom’.[44]  The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question of when you should be eligible for release.  The relevant factors I am required to take into account are:

(a)   that a non-parole period has a penal element;

(b)   that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and

(c)   that the prisoner’s prospects of rehabilitation are almost always a significant consideration.’[45]

[44]        See DPP v Josefski (2005) 13 VR 85 paragraph [43]

[45]        Josefski, paragraph [43]

148In addition, I am required to take account of the standard sentencing provisions as they relate to the fixing of the non-parole period for Charges 1 and 2. 

149In fixing the non-parole periods referable to Charges 1 and 2, the culpable driving charges, the court must pay regard to s11A of the Sentencing Act, which relevantly provides:

“11A  Fixing of non-parole period for standard sentence offence

(1)This section applies to a court when fixing, in accordance with s11, a non-parole period—

(a)for a standard sentence offence; or

(b)in respect of a total effective sentence imposed in respect of two or more sentences, at least one of which is for a standard sentence offence.

…

(3)However, this section only applies to a court when fixing a non-parole period for a standard sentence offence if s5B applied in relation to the sentencing for that offence.

(4)Unless the court considers that it is in the interests of justice not to do so, the court must fix a non-parole period of at least—

…

(c)60 per cent of the relevant term if that term is a term of less than 20 years.

(5)In subsection (4) the relevant term is—

(a)if a non-parole period is being fixed for a standard sentence offence, the sentence for that offence; and

(b)if a non-parole period is being fixed in respect of a total effective sentence referred to in subsection (1)(b), that sentence.

(6)Nothing in this section affects the fixing of a non-parole period for an offence that is not a standard sentence offence or in respect of a total effective sentence imposed in respect of 2 or more sentences, none of which is for a standard sentence offence.”

150Turning to the applicable non-parole period in your case, I have found that you have good prospects of rehabilitation, and that this, particularly in light of your age, must be considered when fixing the minimum non-parole period. 

151Balancing all of these factors, I direct that you serve a minimum of eight years’ imprisonment before becoming eligible for parole. 

Pre-sentence detention declaration

152Under s18(4) of the Sentencing Act 1991, I declare that the period of 74 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the Court.

Section 6AAA Sentencing Act statement

153Had you pleaded not guilty to the charges, I would have sentenced you to a total effective sentence of 19 years and two months’ imprisonment.  I would have directed that you serve a minimum of 12 years and nine months before becoming eligible for parole.  I direct the fact of this declaration and its details be entered into the records of the Court.

Ancillary orders

154A mandatory period of driving disqualification of not less than 24 months is applicable by virtue of s89 of the Sentencing Act.  I order that your licence to drive, if you hold one, is cancelled.  You are disqualified from driving for a period of 24 months.  This period shall commence on the day you are released from custody. 

Disposal Orders

155Two draft form orders were submitted for my signature, one draft order has one less item or disposal than the other.  Which of the disposal orders is the correct one and does the defendant’s counsel agree to the disposal order?

156MR DUNN:  I do, Your Honour, yes, Your Honour.

157HER HONOUR:  Thank you very much, Mr Dunn.

158MR DE VIETRI:  Your Honour, it’s just the one with the one less.

159HER HONOUR:  So there’s no iPhone.  The iPhone’s not - - -

160MR DE VIETRI:  The iPhone has been returned on the request of defence.

161HER HONOUR:  Thank you.  Do either of you wish me to read the disposal order into the transcript?

162COUNSEL:  No, Your Honour.

163

HER HONOUR:  Very well.  I will sign the order.  Just changing the date please.  In the draft that was submitted for my signature but noting that the date is

20 September, today’s date.  Please double check that this is the correct order, first Mr de Vietri and then Mr Dunn.

164MR DUNN:  Thank you, Your Honour.

165HER HONOUR:  Thank you.

166MR DE VIETRI:  Thank you, Your Honour.

167HER HONOUR:  Are there any further matters that need to be raised?

168MR DUNN:  No, Your Honour.

169HER HONOUR:  Welfare matters.  I think we have already provided copies of the psychological report to the prison authorities but the order will note that the reports are again to be provided to the authorities, if you wish.

170MR DUNN:  Thank you, Your Honour.

171HER HONOUR:  And that there are those welfare concerns.  Very well, if there is nothing further, please remove the prisoner.

172MR DUNN:  Nothing further.

173HER HONOUR:  Thank you.

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