Director of Public Prosecutions v Duhan
[2023] VCC 1901
•18 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-00307
Indictment No. N10071808
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHIT DUHAN |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 23 August 2023 | |
DATE OF SENTENCE: | 18 October 2023 | |
CASE MAY BE CITED AS: | DPP v Duhan | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1901 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Two charges of dangerous driving causing death, one charge of dangerous driving causing serious injury – pleas of guilty – the charges of dangerous driving causing death Category 2 offences – application of s5(2H) of the Sentencing Act 1991 – whether the exceptions under s5(2H)(c)(ii) and (e) are applicable – significant mitigating factors – Community Correction Order made
Legislation Cited: Crimes Act 1958 s319(1); s319(1A); Sentencing Act 1991, s3(1); s5(2H); s87P(d); s89(2)(a).
Cases Cited:Worboyes v R [2021] VSCA 169; Guden v R (2010) 28 VR 288; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Fariah v R [2021] VSCA 213; Director of Public Prosecutions (DPP) v Lombardo [2022] VSCA 204; Director of Public Prosecutions (DPP) v Oates [2007] VSCA 59; R v Barci & Asling [1994] VSC 544; R v Tey [2003] VSCA 169; R v Talia [2009] VSCA 260; R v Tran, Levchenko & Fucile [2013] VSC 363; Markovic v R; Pantelic v R (2010) 30 VR 589; Director of Public Prosecutions (DPP) v Hill (A Pseudonym) [2023] VSCA 84; R v Skura [2004] VSCA 53; Stephens v R (2016) 50 VR 740; Director of Public Prosecutions (DPP) v Harvey [2023] VSCA 234; Director of Public Prosecutions (DPP) v Neethling (2009) 22 VR 466; R v Jurisic (1998) 45 NSWLR 209 ; R v Whyte (2002) 55 NSWLR 252; Peers v R [2021] VSCA 264; Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 309 at 377; Georgiou v R [2022] VSCA 172;
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Malobabic | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms A J Beech | Galbally Parker |
HIS HONOUR:
1On 23 August 2023, you pleaded guilty to the following charges on Indictment No. N10071808:
Charge 1 – that you, at Laharum in Victoria on 27 December 2021, by driving a motor vehicle that was dangerous to the public, having regard to all the circumstances of the case, caused the death of Roslyn Johnson.
Charge 2 – that you, at Laharum in Victoria on 27 December 2021, by driving a motor vehicle in a manner dangerous to the public, having regard to all the circumstances of the case, caused the death of Sonia Panwar.
The offence of dangerous driving causing death is contrary to s319(1) of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
Charge 3 – that you, at Laharum in Victoria on 27 December 2021, by driving a motor vehicle in a manner dangerous to the public, having regard to all the circumstances of the case, caused serious injury to Denton Djurasevich.
The offence of dangerous driving causing serious injury is contrary to s319(1A) of the Crimes Act 1958 and carries a maximum penalty of five years’ imprisonment.
2The offence of dangerous driving causing death (that is, the offences constituted by Charges 1 and 2) is a category 2 offence, as defined in s3(1) of the Sentencing Act 1991. Accordingly, pursuant to s5(2H) of the Sentencing Act 1991, the Court must sentence you to a term of imprisonment (not including a combined sentence involving a community correction order) unless one of the relevant exceptions apply. Your counsel relies on the exceptions set out in s5(2H)(c)(ii) and/or s5(2H)(e) of the Sentencing Act 1991.
3Furthermore, pursuant to s87P(d), of the Sentencing Act 1991, offences contrary to s319 of the Crimes Act 1958 are “serious motor vehicle offences”. Accordingly, an order must be made suspending your driver’s licence for a period to be determined by the Court, but not less than eighteen months pursuant to s89(2)(a) of the Sentencing Act 1991.
The circumstances of the offending
4Counsel for the prosecution initially tendered the following documents:
(a) a document headed “Summary of Prosecution Opening for Plea”, dated 2 August 2023 (exhibit 1);
(b) camera footage of the collision, the subject of the offending (exhibit 8).
5I will not repeat all the contents of exhibit 1, but highlight the following important matters.
· You are presently thirty-two years old, having been born in January 1991. At the time of the subject offending, you were thirty years old and resided in Hoppers Crossing with your wife, Sonia Panwar, and three-year-old daughter, Mayra.
· At the time of the collision, you held a full Victorian driver’s licence.
· The “victims” in this matter are:
§Your wife, Sonia Panwar, who was thirty-four years old and fifteen weeks pregnant at the time of the collision. Your wife was a passenger in your vehicle, a Toyota Kluger (“Kluger”), sitting next to your daughter, Mayra, in the back seat of that vehicle. Your wife died as a result of the injuries sustained in the collision.
§Roslyn Johnson, who was sixty-eight-years old at the time of the collision and married to Denton Djurasevich, was a passenger in the front seat of Mr Djurasevich’s Kia Sportage (“Kia”). She died upon impact as a result of the collision.
§Denton Djurasevich was sixty-eight-years old and the driver of the Kia. He sustained serious injuries as a result of the collision.
The circumstances of the offending
· The collision between the Kluger and Kia occurred on Monday, 27 December 2021, at about 10.20am on a straight section of the Western Highway near Laharum in Western Victoria.
· The Western Highway in the area of the collision is a major sealed road with a single lane in each direction. A rest stop was positioned on the northern side of the highway, with the collision occurring close to its southern entrance.
· The two opposing lanes are divided by broken white lines containing raised tactile rumble strips in the centre of the road. The outer edges of the lanes are marked by a single white fog line with raised tactile rumble strips which divided the bitumen road surface from the gravel road shoulders. The area is rural, with grass reserves, with trees on either side.
· The speed limit along the section of the Western Highway where the collision occurred is 100 kilometres per hour.
· Immediately prior to the collision, you were driving the Kluger in a northwest direction on the Western Highway towards Horsham. You were travelling in a line of traffic comprising of several vehicles at around the posted speed limit of 100 kilometres per hour.
· At the same time, Mr Djurasevich and his wife were travelling on the Western Highway in a southeast direction ꟷ the opposite direction to you. They were travelling from Adelaide to Melbourne, having stayed overnight at Horsham, and had been driving for about thirty minutes.
· The road was dry and driving conditions excellent.
· As the vehicles approached each other, you veered across the centre dividing white line and into the path of the southeast bound traffic, and collided head on with the Kia vehicle driven by Mr Djurasevich near to the fog line on the northern side of the road. The collision caused the Kluger to spin in a clockwise direction and it came to rest in the southeast-bound lane facing north. The collision also forced the Kia backwards, into a clockwise spin, coming to rest in the grassed area between the northern side of the road and a rest area.
· Witnesses driving behind you described the driving conditions as good, traffic as being busy, and your vehicle manoeuvring or swerving from the left side of the road, across the centre line, and smashing head on with the Kia, with the vehicles lifting into the air and spinning. No brake lights or indicators were observed being used by you. One witness driving directly in front of your car observed it to swerve a little to the left, immediately prior to it turning right onto the wrong side of the road and colliding with the Kia.
· The collision was captured on dashcam situated on another vehicle. The Court has viewed such film.
· You were trapped in the driver’s seat of the Kluger due to the doors being locked and your daughter was safely restrained in her child seat. However, your wife, who was wearing a seatbelt, was thrown forward into the rear footwell, sustaining critical injury..
· You and your daughter were transported by air ambulance to The Alfred and Royal Children’s Hospital. Your wife was removed from the Kluger and died at the scene from her injuries.
· Mrs Johnson, who was a passenger in the Kia, died on impact.
· Mr Djurasevich was trapped in the driver’s seat of the Kia for about ninety minutes due to damage to the vehicle and had to be freed from the wreckage. He was treated at the scene and transported to The Alfred hospital by air ambulance.
The collision investigation
6Members of Victoria Police Collision Investigations Unit attended the collision scene from approximately 3.00pm on the day of the collision and the following was noted:
(a) The road was observed to be generally in good repair, with no obvious fault or damage;
(b) The Kluger was observed to have come to rest in the southeast lane, with the front facing in an easterly direction, approximately 1.43 metres northwest of the area of impact. It had sustained severe frontal damage concentrated towards the driver’s side of the vehicle, although there was no impact damage across the front of the vehicle. Airbags had been deployed;
(c) The Kia was observed to have come to rest on the grass shoulder on the eastern side of the highway, facing in a westerly direction, approximately 7.6 metres northwest from the area of impact. It sustained a severe front impact concentrated towards the driver’s side, but extending across the front of the vehicle. Airbags had been deployed;
(d) Following review of the collision scene, the Victoria Police reconstructionist observed there was no visual evidence of any pre-impact emergency braking from either the Kluger or the Kia;
(e) Following a review of data obtained from both vehicles, it was determined that from 4.8 to 0.8 seconds prior to impact, the speed of the Kluger had remained constant at 98 kilometres. At 0.3 seconds prior to impact, the brakes had been applied and speed reduced to 90 kilometres per hour. On impact, the Kluger was travelling at 82 kilometres per hour;
(f) When the vehicles collided, the Kluger had gently steered to the right until 0.3 seconds prior to impact, when a sudden left-hand steering input was recorded;
(g) The Kia was driving straight until one second prior to impact, when the driver also made a sudden left-hand steering input, attempting to avoid a collision;
(h) The reconstructionist concluded that, at the time of the collision, the Kluger veered across the centre white line and onto the southeast traffic line. It had begun to cross over the fog line on the southeast lane when it impacted the Kia coming in the opposite direction. The area of impact was located on either side of the fog line. On impact, both vehicles rotated clockwise, with the Kia being forced backwards. The sudden left-hand steering inputs at the last moment were consistent with both drivers attempting to avoid a collision.
I refer to a series of photographs taken after the collision by the reconstructionist (exhibit 9).
Arrest and interview
7You were treated by paramedics at the scene and flown by air ambulance to The Alfred hospital in Melbourne.
8Prior to being transported to hospital, you had a brief conversation with police, which was recorded on a body-worn camera. You were cautioned and stated the following:
(a) You were driving at 100 kilometres per hour and your wife and child were seated in the rear passenger seats;
(b) Your wife was sleeping;
(c) Your daughter was awake and talking a lot. She was calling out to you, but you were looking straight;
(d) You were driving in your line near the white middle-lane strip;
(e) You did not know what happened, then just “bang”.
9On 10 January 2022, you attended Werribee Police Station by arrangement and was arrested in relation to this offending. You participated in a no-comment record of interview and was bailed to appear at the Melbourne Magistrates’ Court on 13 January for a filing hearing.
10You have not spent any time in custody in relation to this matter and have no prior convictions for any offending.
11I set out a chronology prepared by counsel for the prosecution.
DATE
EVENT
OUTCOME
27 December 2021
Date of offending
Offender arrested and charged. Bailed to filing hearing
10 January 2022
Date of arrest
Committal mention listed
13 January 2022
Filing hearing
Committal mention listed
19 May 2022
1st committal mention
Adjourned for further committal mention
16 June 2022
2nd committal mention
Adjourned for further committal mention
30 June 2022
3rd committal mention
Adjourned for further committal mention
31 August 2022
4th committal mention
Adjourned for further committal mention
16 December 2022
5th committal mention
Adjourned for further committal mention
3 March 2023
6th committal mention
Matter resolved. Committed SHUB plea of guilty
23 August 2023
Plea hearing
Victim Impact Statements
12The following Victim Impact Statements were tendered by counsel for the prosecution:
(a) the Victim Impact Statement of Denton Djurasevich, declared on 13 July 2023 (exhibit 2);
(b) the Victim Impact Statement of Ms Joanne D’Arbry, declared on 20 March 2023 (exhibit 3). Ms D’Arby is one of the sisters of Roslyn Johnson;
(c) the Victim Impact Statement of Mr Jaikaran Panwar, declared on 31 May 2023 (exhibit 4). Mr Jaikaran Panwar is the father of Sonia Panwar;
(d) the Victim Impact Statement of Ms Sudesh Bala, declared on 31 May 2023 (exhibit 5). Ms Bala is the mother of Sonia Panwar;
(e) the Victim Impact Statement of Mr Parveen Panwar, declared on 11 August 2023 (exhibit 6). Mr Parveen Panwar is the brother of Sonia Panwar;
(f) the Victim Impact Statement of Ms Monika Panwar, declared on 11 August 2023 (exhibit 7). Ms Monika Panwar is the sister of Sonia Panwar.
13Mr Denton Djurasevich read his Victim Impact Statement by way of Zoom at the sentence hearing. Such statement was essentially divided into two parts – the first part detailing the various injuries and treatment he has undergone as a result of the collision. I quote this part of the Statement, as to summarise it would not do justice to its contents. Mr Djurasevich stated:
“As a result of the accident, I was flown to Alfred Hospital in Melbourne. Over the following ten days I had seven operations, involving orthopaedic and plastic surgery. The main injuries were: broken right thigh bone; multiple breaks of the fibula and tibia; smashed right ankle; fractured pelvis. There were numerous minor breaks, and extensive bruising. In addition, the impact of the crash precipitated a heart attack.
I was in hospital for a month and then in rehab at Epworth for a further ten weeks before flying home to Adelaide. Roslyn was cremated while I was in Melbourne. I was able to attend the small service, having been released the day before from Covid isolation (I contracted Covid while in rehab). I was half in a daze, disbelieving, and half in pieces with grief.
The injuries have had a major impact on my daily life, although continuing with physio-related rehab has been extremely helpful. Simple things like getting up and having a shower, feeding the cats and making breakfast still tire me out, all these months later. I am unable to drive and, given the trauma of the accident, have no desire to get behind the wheel of a car. While I have been fortunate to have had wonderful family support, everyday life is simply much harder. Before the accident I was a perfectly fit person, doing a couple of Pilates sessions a week. As a result of my injuries, I feel catapulted into old age. I feel much frailer, I am more tentative operating in the world, I frequently feel exhausted even though I have done very little.
Initially I expected (and this view was supported by the medical and physiotherapy staff at Epworth Rehab) that I might be able to walk without a crutch or walking stick by October last year (2022), but it was around that time I started to notice some difficulty making simple movements, like bending down or reaching for something on a high shelf. A series of x-rays and CT scans revealed that the bones in the right thigh and lower left leg had not healed, so in November 2022 my orthopaedic surgeons outlined a series of three operations that I needed to have in 2023: the first on my right thigh, and the second and third on my lower left leg. The second and third operations are quite complex as they need to lift a skin flap, so a plastic surgeon was involved as well. At the time of writing, I have had two of these operations. The final operation will be on 1 September 2023. (All up, I will have ten operations as a result of my injuries.)
These operations have been incredibly disruptive. Psychologically, it was like I was taken back to the beginning. Being alone, without Roslyn, in such circumstances, has been painful. Indeed, this has been one of the most difficult things: being alone when I was going through something difficult, like having a stent put in just before I was released from rehab, or having the staples removed from my injuries or, over the last months, having CT scans and angiograms and multiple blood tests. I hate medical intervention, have a fear of needles and a neurotic response to blood being taken from me. Roslyn knew this and would comfort me, albeit with humour as I am quite wimpy. But this takes me to what is perhaps the most painful thing - the moment when I turned towards her after the accident and realised that she was dead, had been killed. I was unable to reach her, unable to touch her, to comfort her, for whatever good it would have done at the time. She died beside me, and I could do nothing. I was dragged out of the car and flown to Melbourne, and she was left there with strangers. This memory and a myriad of thoughts and feelings I agonised over as I lay in various hospital beds over the following months have left a deep imprint.”
14The second part of his Victim Impact Statement describes, in a very poignant and moving way, the relationship with his wife from the time he first met her when they were both eighteen-year-olds in first-year university, over the years, right up to the conversation they were having immediately prior to the collision. Mr Djurasevich described their relationship as one in which they were “inseparable”, “intense” and that they were “deeply in love”. In particular, he describes her as the most “important person in [his] life” and states:
“In short, this has been terrible. Absolutely devastating. I have never known such suffering - indeed, on occasion I can barely recognise myself in my grief, the sudden onrush of it, its physical impact, the debilitating exhaustion, the sense of being hollowed out. I could say more, but it would feel as if I was parading things that are essentially too private.”
15Mr Djurasevich also notes that, from a work perspective, he has been unable to rebuild his consulting practice and also has struggled to finish a book which he had been writing for the previous five years. Furthermore, he notes that he has needed to move house – whereas prior to the collision he and his wife lived in a large two-storey house with a garden and pool – now it is simply too much.
16I also refer to the last paragraph of his Victim Impact Statement, which is magnanimous in nature. He states:
“Finally, I have found it extremely helpful that there has been an acknowledgment of guilt by the driver of the other car. But I would not find it helpful if he receives further punishment - in particular, a prison sentence, separating him from his daughter and family for a period of time. That would distress me terribly. There has been too much suffering already, and there will be enough in the future without that.”
(My emphasis.)
17The Victim Impact Statement of Ms D’Arbry was read by the prosecutor during the sentence hearing. In that statement, Ms D’Arbry refers to her sister, Roslyn, as “the force and life around which our extended family in Adelaide revolved”. Ms D’Arbry recalls having to ring her elder sister, niece and cousin, to let them know what happened in the collision, compounding her own stress, and grief and anxiety, as did the days waiting to see what would happen to Mr Djurasevich.
18She also describes how her social life has been curtailed, as she does not want to go out as she used to. Furthermore, she has become an anxious passenger, unable to drive anywhere to visit family who live in the country. In particular, she states:
“… I get angry that I can never talk to Roslyn again, go to her for advice, hug her, reminisce about our childhood, laugh till the tears run down our face over something absurd, have her support when I have major cardiac surgery soon, enjoy together watching our nieces, great nieces and great nephews grow up, to grow old together with our partners and enjoy our retirement plans. My grief is ever present, and I still require fortnightly Counselling sessions.”
19In his Victim Impact Statement, Mr Jaikaran Panwar describes that his whole life is “broken into pieces and now I have to live with that grief” and that his daughter not coming back “breaks him from inside”. In particular, he describes his daughter, Sonia, as a “responsible, intelligent and caring” and that she was “the one [he] was never worried about” as to whatever she turned her mind to she would be successful. He describes her as achieving in so many things involving work and sports-related activities.
20In her statement, Ms Sudesh Bala, states that she recalls the day of the accident when her son, Parveen, called to try and convince her about the accident, but she was not ready to accept it at any cost. She states that it put her in:
“… shock from where I have no idea how to retrieve myself, control myself, behave myself, But being parents we had to look after the kids and make sure they don’t lose their hope to live… .”
She states that, until the funeral, she had no idea what was really going on, but:
“… whenever everyone went back to the normal lives, that time felt I have lost a big part of my heart which will never be fixed, never be cured. … .”
She describes her daughter to be the “charm” in the family and she was the caring person of the family looking after the interests of others.
In particular, she states:
“I had no idea that it will impact my life this hard because my inner voice is always keep saying that there is something missing And which cannot be filled again. I always wanted to retire and live a happy life with all my kids in the house but now this dream is shattered because, the One I loved the most my will not join us ever. It feels like my whole life has no meaning for working hard or planning what’s coming in the future. … .”
21In his Victim Impact Statement, Mr Parveen Panwar, the youngest brother of Sonia Panwar, describes his older sister as:
“… my sister, mother, friend, guide comfort zone. Who was always there when I was going down the line. Ever since I moved with her, I felt another level connection with her like she was my mother in past lives. Now every day I feel I have not spent enough time with her.”
He later says in his statement that:
“Every memory even plan. The moment I entered in the hospital. And one of our friend informed me that she is No more. Everything in front on my eyes just stopped, my view getting faded. I could not even cry for may be an hour. Because I had no idea how to pursue these type of feelings to lose someone, I have never seen someone lost in my life and when God decided to take someone. God took the best one. I still feel stuck back in time, because everything just shattered … Every day I convince myself that I have to live without her. But I don’t know how to apply it. From the day the accident happened. My life, especially my emotional part went upside down. Because I believe in nurturing the relationship by investing emotions, energy and time. I was in shock. Like my whole nervous system stops working. I don’t want to believe anything. Just want to see her and tell her to wake up. Because it was so sudden. We were preparing for new one but, we lost the one we have.”
(sic)
22In her Victim Impact Statement, Ms Monika Panwar, the sister of Sonia, states in part that:
“I lost my everything(best friend,sister,was motherly figure to me). She was there for me and for my family in thick or thin as she was the oldest daughter.she looks after me like her own child. When she was 5 or less my mother use to tell me stories she started taking care of me from there and till the day she was more than mother to me. All the memories we had in childhood, the little things which made us happy back in days no longer exist, She was the with whom I can fight, get angry but the moment we see each other next day we do not even think like we had a fight. I feel now it was the thing we made our bond so strong. I remember all the memories in childhood when she gave up her toys/dolls so that can be happy and she knew that I am stubborn but from childhood she accepted me for who I am and now I feel that I lost my identity or worth. … .”
(sic)
Your personal circumstances and background
23Your counsel tendered the following documents:
(a) A document headed “Defence Plea Submissions”, dated 18 August 2023 (exhibit “A”). Such exhibit also contained an Annexure containing what were referred to as “comparable case summaries” involving various sentences in respect of the offence of dangerous driving causing death;
(b) The report of the psychologist, Dr Mathew Barth, dated 10 August 2023. Such report involves a psychological assessment of you undertaken on 14 June 2023 for two hours and 12 July 2023 for one hour (exhibit “B”);
(c) Reports from the psychologist, Ms Pree Arora, dated 10 July 2023 and 21 August 2023 (exhibit “D”). Ms Arora has been the treating psychologist of Mayra, your daughter;
(d) Psychological report from the forensic psychologist, Dr Julianne Read, dated 28 July 2023. Such report involved an assessment of your daughter Mayra;
(e) Letter to you from Commercial Passenger Vehicles Victoria, dated 2 February 2022 (exhibit “E”). Such letter advises you that, as a result of the collision, your driver accreditation is to be suspended from 2 February 2022 and that you are not to provide a commercial passenger vehicle service unless your driver accreditation is re-instated.
(f) A series of references, made up of the following:
· Reference from Satish Satsangi, dated 30 July 2023.
· Reference from Sudhir Kumar, dated 30 July 2023.
· Reference from Sahil Jakher, dated 1 August 2023.
· Reference from Sandeep Hooda, dated 28 July 2023.
· Reference from Varum Kandu, dated 26 July 2023.
· Reference from Jyoti Punia, dated 26 July 2023.
· Reference from Rajkumar Malik, dated 2 August 2023.
· Reference from Sudesh Rani, dated 2 August 2023.
· Reference from Deepak Duhan, undated.
·Reference from Meeraj Kalia, secretary of the Sri Durg Arts/Cultural and Educational Centre, dated 7 August 2023.
·Reference from Gulab Singh Duhan and Santosh Rani, dated 31 July 2023.
· Reference from Monika Pooni, dated 1 August 2023.
· Letter from Hamish Yadav, dated 22 July 2023.
· Reference from Ritu Yadav, dated 23 July 2023.
· Reference from Vijay Kumar Kondepudi, dated 27 July 2023.
· Reference from Arun Kumar, dated 1 August 2023.
· Reference from Vaishali Solanki, dated 1 August 2023.
·Reference from the registered psychologist, Mr Archana Bhat, dated 8 August 2023. Mr Bhat treated you in respect to psychological issues on referral from your general practitioner.
·Reference from Mr Steven Cook, contract manager of Ron Finemore, dated 1 August 2023. This reference relates to work undertaken by you with Ron Finemore between 15 March 2021 to 24 December 2021.
·Reference letter from Kuldeep Sembhi and Sarbjit, dated 28 July 2023.
· Reference letter from Lakshay Kadeyan, undated.
·Reference from Dr Amar Bhatnager, dated 11 August 2023. Dr Bhatnager was your treating general practitioner from August 2018 to March 2022, when Dr Bhatnager was working at the Q1 Medical Hoppers Crossing.
·Reference from Cindy Goh, the toy library session coordinator at Little Buddies Toy Library, dated 3 August 2023;
I have read all twenty-three character references. I was informed by your counsel that of those referees, sixteen had attended court, and there were two online watching the proceeding.
The references come from a wide range of people and there can be discerned various themes running through such references:
(i)That you are considered to be a very kind, compassionate and devoted family man leading up to this tragic collision. Furthermore, you are considered to be of good character, who has helped a variety of people in many ways;
(ii)Prior to the collision and particularly after the collision, you have devoted much time and effort to the care of your young daughter and many of your referees referred to your ongoing concerns about your daughter Mayra;
(iii)Various workmates of you, when you were driving taxis or trucks, have described you as a hardworking employee, who was a good driver and who obeyed road rules. In particular, I refer to the reference from Steven Cook, contract manager of Ron Finemore Transport, who states that you were employed by that company as a HC driver from 15 March to 24 December 2021. In particular, Mr Cook states:
“During this time [you were] employed as a HC Driver and reported to [him]. [He found you] regular, punctual to the time who has always carried out [your] job diligently, carefully and with great responsibility. [You bear] a good moral character.
[You have] completed successfully on job safety trainings required by this position with heavy loads.
[You have] a great safety record with [them] and never has difficulties to cover any driving destinations and routes interstate or local. [You] have complied well with all Environment, Health and Safety (EHS) regulations as required by the company policies.
[You are] well qualified and I understand [you are] prepared to venture a job more according to [your] qualifications and interests.”;
(iv)Several of the referees refer to your great remorse and sadness in relation to the consequences of your driving on 27 December 2021. In particular, I refer to the reference from Dr Amar Bhatnager, a general practitioner, who records that you were a patient of his from August 2018 to March 2022, when he was working at a clinic at Hoppers Crossing. He has not seen you since March 2022, as Dr Bhatnager joined a different practice. In particular, he records, on 11 August 2023, that:
“[He] was treating as a family doctor of [you, your] late wife Mrs. Sonia and [your] daughter Mayra from August 2018 till March 2022. Treating [your] family for 4 years has given [him] insight into [your] behaviors and personality in general. [You have] always come across very humble person whenever [you] attended medical practice either for [yourself, your] late wife or [your] daughter. [You have] always been presented as a very respectful and humble person.
[You], after being discharged from Royal Melbourne hospital immediately after [your] unfortunate accident, presented to [him] and [he] came to know about the accident. [You], on the very first visit, post discharge from the hospital after the accident, expressed deep emotional sorrow and remorse for other party involved. It has been hard for [you] to accept what has happened however as the time has passed, [you have] gracefully accepted [your] circumstances and [have] been diligent in doing the right thing. Since the accident [you have] been feeling very guilty and at a loss trying to understand why and how things happened. It is fair to say that [you are] anxious about the proceedings but not because [you] could be sentenced for the charges against [you], rather because of its adverse impact on [your] daughter.
There has always been a deep bond and connection between Mayra and [you], but this has only intensified further over the last year. [He still remembers] when Mayra would not leave [you] for few minutes post passing of Sonia, and used to hide behind [you] even though, she knew [him] well and was comfortable with [him] at all times.
[You are] the only stable support for Mayra who has been [your] strength during this time as [you] attended to the numerous medical demands in the past year. Considering the loss Mayra has also suffered, [your] presence around her in this past year has assumed significant importance.”;
(sic)
(g) I also refer to the reference from Dr Archana Bhat, who is situated at Palmers Medical Centre Hoppers Crossing. In his reference, he records that he commenced treating you in January 2022 on referral from your then treating general practitioner, Dr Bhatnagar (to which reference has already been made). He describes that you have been diligent in your attendance and that regular contact has allowed Dr Bhat to get to know you quite well. He describes you as a very respectful and conscientious person, who is well-regarded in your social circle.
He also notes that you come from a devout and deeply religious and respectful family background, with strong family values of integrity, honesty and moral standards. He also notes that you have volunteered at the Shri Durga Temple at Deanside and Wyndham Little Buddies Toy Library at Werribee (both organisations have also given references forming part of that bundle of references already referred to).
Dr Bhat states:
“Over the past year [you have] expressed remorse over the accident and sincerely [regret] what has happened unwittingly. [You have] gracefully accepted [your] circumstances and been diligent in doing the right thing. … There was always a deep bond and connection between [you and Mayra], and this has only intensified further over the last year. [You have] not had the opportunity to grieve over the loss of [your] wife and [have] on many occasions reflected about the loss felt by the other party feeling helpless in many ways. Legal conditions have prevented [you] from contacting the other party, otherwise [you are] very willing to apologize for the unspeakable agony this accident has caused all involved.
Since the accident [you have] been feeling very guilty and at a loss trying to comprehend the significant turn in [your] life. It is fair to say that [you are] anxious about the proceedings but not because of the possibility of sentencing, rather its impacts on [your] young daughter and the probability of further harm. [You are] the only stable support for Mayra and her primary caregiver. Considering the loss Mayra has also suffered, [your] presence around her in this past year has assumed significant importance. She is indeed very attached to [you] and fears losing [you], hence the separation anxiety and associated behaviours. [You have] strived to create a safe place for Mayra, providing her with care and comfort during these difficult times. These are the tenets to building a secure attachment base for a young child who has lost a parent. The acute possibility of Mayra suffering complex trauma because of [your] absence plagues [you] frequently, and [your] counselling has focussed on this many times. The risk of [your] own mental health deteriorating is a possibility that needs consideration. [He believes your] dedication to [your] daughter’s wellbeing in the face of such crisis, and [your] dignity in the way [you have] managed [yourself] in these past months is a testimony to [your] disposition and character.”;
(h) Letter of apology from you, dated 23 August 2023. In that letter, you state, among other things that:
“After this accident, I feel lost, hopeless and guilty as I know I am the cause not only of Sonia’s death, but also of Ms Johnson’s loss of life loss of (sic) and the injuries caused to her husband. It was very difficult to me to come out of this mindset. I almost lost hope to live. I always prayed to the God if He could do a miracle and take my life and everybody else could have survived. I cried and drenched myself in tears and had sleepless nights many times after this incident. If my daughter Mayra wasn’t there, I would have lost all the hopes for my own life.”;
Later in that letter you state:
“I am extremely sorry to the (sic) all the persons who lost their lives in this accident and their family, relatives and friends who are affected and loss their loved ones by this accident.
I wish to apologise with heavy heart to my wife Sonia, her parents Mr. Jai Karan & Mrs. Sudesh Bala and her brother Parveen and Harish Panwar and her sister Monica and their family and friends. I also wish to apologise to my daughter Mayra for this big and unforgettable loss.”;
I specially wish to submit my condolences for Roslyn and extend my deepest sympathy to Denton and his family. If Denton and his family allows me, both I and my daughter will like to pray for Roslyn and offer flowers in her memory.”
(sic)
24Partly based on some of the documents tendered on your behalf, and partly based on various submissions made by your counsel, I note the following:
· You were born and raised in a small town in Northern India, with your father employed in government services and your mother performing home duties. You have two older sisters, and described to the psychologist, Dr Barth, that you had a close relationship with your family.
· Over your younger years, your family relocated to various parts of India due to your father’s employment, although you made clear to the psychologist this did not have a negative impact on your development. In particular, you described your family as “being quite conservative and [our] Hindu faith has always been central to [our] lifestyle”.
· You completed your schooling in India and that you had acquired functional literacy and numeracy skills without undue difficulty. You also described yourself as being an average student, but progressed through your grades without any significant problems. Over the years, you attended several schools due to the family’s regular move and, despite this, you reported to the psychologist that you suffered no significant academic, behavioural or social issues.
· Following your secondary schooling to Year 12, you completed a Bachelor of Arts and a Master’s in Business Management (Human Resources and Marketing) – the latter brought about by participating in a scholarship exam and completed within two years.
· On obtaining your degrees, you obtained employment in India with a large manufacturing company in an administrative role and was with this company for a year, but subsequently decided to immigrate to Australia in search of better educational and employment opportunities.
· Your only relationship has been with your wife, Sonia Panwar, who you met at university when you were approximately twenty-four years old. A relationship was commenced, and although it was traditional for you to participate in an arranged marriage, you discussed the relationship with your future wife, with your parents, and they “gave us permission to get married”. You married in 2014 and were together until your wife’s death as a result of the collision.
· Your daughter, Mayra, who was born in Australia in 2018, was, at the time of the consultation with the psychologist, five years old. You confirmed that, at the time of your wife’s death, she was fifteen weeks pregnant with your second child. You described the marriage to the psychologist in “positive terms” and that your relationship with your wife was both “loving and supportive”, with the only source of conflict between you being the conduct of one of your wife’s sisters, whose behaviour was volatile and erratic.
· You immigrated to Australia in July 2015, after which you lived in Canberra for a brief period, but was unable to find suitable work. You then moved to Melbourne, where you obtained employment with “Tyre Power”, as a tyre fitter, but did not enjoy this work and consequently obtained work as a delivery driver. You also drove for several large companies, including Orlando’s Fresh and Woolworths. Furthermore, you also worked as a taxidriver for a short period for additional income.
· You and your wife purchased a property at Hoppers Crossing and because of the resulting mortgage it was necessary for you to earn extra money, which prompted your work as a taxidriver.
· Your most recent employment was with Ron Finemore Transport as a truck driver, and such work involved regular interstate driving, and you obtained accreditation to drive heavy-duty vehicles. You informed the psychologist that you had worked very long hours to support your family, and the work was demanding. You informed the psychologist that you struggled being separated from your wife and daughter during such interstate trips.
· You have not worked since the collision on 27 December 2021. After the collision, you did not drive your vehicle for some time and the Transport Accident Commission provided, among other benefits, driving lessons to rebuild your confidence to drive a motor vehicle. You participated in eight driving lessons to rebuild that confidence and realised that you had to drive to assist Mayra in her various treatments. However, you informed the operation managers at your last employer, Ron Finemore Transport, that you could not drive, and such notification was prior to you receiving the cancellation of your commercial licence to drive heavy vehicles or taxi vehicles.
· You described yourself to the psychologist as a “very mild social drinker” and denied experiencing any dependence on alcohol. Furthermore, you stated you had never used any illicit substances.
· You informed the psychologist that, before the collision in December 2021, you had experienced no significant psychological problems, but did describe periods of stress due to the long work hours required by you to spend time away from your wife and daughter as a long-haul truck driver, and any arguments you had with your wife regarding her sister’s erratic behaviour.
· As a result of the collision you have suffered psychological issues, causing you to attend your general practitioner, who, in turn, referred you to a psychologist for treatment. Also, as a result of the collision, you suffered soft-tissue injuries in your chest area and suffered a slipped disc in your back, causing you to receive physiotherapy twice a week, and hydrotherapy, which was initially funded by the Transport Accident Commission.
· At the time of the examination by the psychologist, that, is, in June and July 2022, you were in receipt of Centrelink payments, namely Parenting Payment Single and Family Assistance Benefits. You expressed to the psychologist that you had been very focused on caring for your daughter and expressed anxiety about your capacity to financially support your daughter in the event you are required to serve a lengthy period of imprisonment. Also, you told the psychologist that you are motivated to return to work in the future.
· You described to the psychologist that you sought out a children’s psychologist to treat Mayra and that Mayra has now been treated by the psychologist, Ms Pree Arora on a one-to-one basis twice a month. Furthermore, Mayra undergoes play-based therapy twice a week at the PTSD Clinic at the Sunshine Hospital.
· After the collision, you parents travelled from India and had been living with you pursuant to a limited visa. Furthermore, one of your sisters, Monika, has also came to Australia after the collision on a student visa, which runs until 2026. It is her intention to stay only if she is required to care for your daughter Mayra. Your sister, herself, is married and has a fourteen-year-old son in India. Your mother suffers from diabetes and high blood pressure and your father also suffers from high blood pressure and a back injury. Neither of your parents speak English fluently.
· At the time of the collision, and to date, you were a permanent resident in Australia, eligible for citizenship, but have not made that application yet.
25When queried by the psychologist as to the background to the subject offending, you informed the psychologist that you and your family (that is, of course, your wife and daughter) were travelling to Adelaide by car for a family holiday. You informed the psychologist that you and your family had left home about 6.00am and you felt well rested. You had stopped at a 7/Eleven soon after to warm up Mayra’s milk and you informed the psychologist that Mayra was unsettled and your wife decided to sit in the back middle seat. You also recall that your wife and Mayra consequently fell asleep.
26You also reported that you stopped again at Hungry Jacks near Stawell, where you had a break and the family had something to eat, and then left to continue on your journey to Adelaide. You also reported that your wife fell asleep again, but Mayra was awake, and that she was “quite excited” and making some noise. You asserted that you were verbally engaged with Mayra, although adamant that your focus remained on driving.
27You asserted it was around this time that the collision occurred and that you have no recollection of the immediate moments before the collision and your only memory was “seeing the car (which was travelling from the opposite direction) in front of me, then all [you] remember was the smell of burning, Mayra bleeding from her mouth and [your] wife asking [you] what happened”.
28In particular, you informed the psychologist that you were at a “complete loss” to explain how the collision occurred. Furthermore, you expressed your distress and guilt that you were responsible for the deaths of your wife and Ms Johnson, and the injuries suffered by her partner, Mr Djurasevich. You also lamented the loss of your unborn child and the impact on Mayra. In particular, you stated:
“I feel bad all the time, for my daughter, for the other family. He (Mr Djurasevich) lost his wife. I would like to say sorry to him. Mayra has lost her mother. Most of the time I sit in the garage alone and cry.”
The evidence of the psychologist, Dr Mathew Barth
29When assessed on 14 June 2023 and 12 July 2023, Dr Barth records that he carried out a comprehensive evaluation of your mental status, including your mood, your thought processes, and your personality and behavioural adjustment. He also reviewed salient aspects of your personal history. He performed the psychological testing of the Personality Assessment Screener (“PAS”), which screened for psychological dysfunction, behavioural disturbance and personality problems in adults.
30Dr Barth reports that, following the collision, you suffered a profound emotional response, characterised by a range of symptoms associated with acute trauma-related anxiety. He reported that these included frequent intrusive memories of the immediate aftermath of the collision, hypervigilance when driving, psychomotor agitation, emotional numbness and sleep disturbance.
31Dr Barth noted that you consulted with Dr Bhatnagar (a general practitioner to whom reference has already been made), who noted that you were presenting with symptoms of anxiety, depression and post-traumatic stress disorder (”PTSD”). Dr Bhatnagar provided you with a mental health plan and referred you for psychological treatment to Dr Bhat, a psychologist (to whom reference has already been made). You had been consulting Dr Bhat since August 2022 and this treatment has primarily focused on trauma-related interventions and supportive counselling to assist you in the stress of this legal matter and raising your daughter without your wife. Various results of the testing indicated that your emotional stress has mainly oscillated from between the “extremely severe” to “severe” range.
32Under the heading “Professional Opinion”, Dr Barth opined that:
“40.[You are] a 32-year-old man who participated in a psychological assessment for [your] upcoming plea. As a result of a comprehensive analysis of [your] mental health and [your] personality and behavioural adjustment the following conclusions were reached:
1) [You are] suffering noteworthy symptoms of depression that cause [you] continued distress. The causes of these symptoms can be traced to the collision of December 2021 and the impact on [your] life since this time. [You are] sad and pessimistic with regards to the future and [experience] little pleasure or joy in [your] life. [You] also reported prominent physical symptoms of depression such as lethargy and a pre-occupation on [your] pain in [your] back and thighs. These symptoms intensify [your] distress.
2)While [your] trauma-related symptoms have reduced to an extent, [you continue] to experience ongoing anxiety. [You ruminate] about the prospect of being separated from [your] daughter and the long-term impacts on her mental-health, in addition to the guilt [your experience] due to the gravity of [your] offending. [You feel] tense, worried and [suffer] from intense sleep disturbance.
3) Following a detailed review of [your] personal history, [your] results to psychological testing and [his] observations of [you] during the assessment process, [he is] of the opinion that [you meet] DSM-5-TR criteria for the diagnosis of a ‘Major Depressive Disorder – With Anxious Distress of Moderate Severity’. Psychological treatment is clearly required.
4) [You] manifested the effects of [your]distress through some mental clouding which impacted [your] concentration at times. [You were], however, lucid and orientated throughout [the] consultations. [You were] able to discuss [your] situation logically. There was no indication of psychosis or formal thought disorder. [You are] estimated to be of normal intelligence.
5) [Your] personality and behavioural adjustment is normal. [You are] a sensitive and pro-social man who aspires to high standards and strives to express positive personal values in [your] life. [You are] introverted by nature and [your] current emotional distress has contributed to intense social withdrawal and detachment. This has left [you] vulnerable to significant depression.
6) [Your] general impulse control is stable and [you] disavowed any generalised risk-taking or stimulus-seeking behaviour. [You] expressed respect for lawful authority and pro-social attitudes more broadly. Specific investigations revealed no evidence of any antisocial or psychopathic personality traits. [Your] stable behavioural adjustment is a positive indication for any risk of future involvement with the Courts.
…
41.[You present] as a man who is experiencing significant emotional turmoil and guilt for [your] involvement in this matter. [You have] clearly been deeply affected by the collision and [continue] to manifest significant depression and anxiety which require ongoing treatment. Without such treatment, there remains a genuine risk that [your] condition will continue to deteriorate.
42.From a rehabilitative perspective, [your] risk of experiencing further involvement with the criminal justice system is very low. Primarily, [your] involvement with the legal system has been distressing, [you experience] a profound sense of remorse, [you enjoy] the close support of [your] family, there is no evidence of any antisocial tendencies on [your] part, [you have] a stable employment history and there are no indications of behavioural pathology that would act as potential criminogenic factors to precipitate any offending on [your] part.
43.Speaking in terms of [your] psychological well-being, there is a strong need for [you] to continue [your] participation in treatment to address both the traumatic anxiety [you have] experienced in response to the collision and [your] depressive symptoms. Furthermore, grief-related counselling for the loss of [your] wife and unborn child would be important in the long-term. While medical treatment of [your] depressive symptoms would be readily available in custody, access to regular counselling is considerably more limited. Moreover, [he] would anticipate that in a custodial context it would be quite difficult for [your] to receive the intensive treatment which is most central to [your] needs.
44. As noted above, [your] emotional response to this incident has been intense. [You are] likely to internalise the punitive aspects of sentencing in a particularly severe manner and there is a significant risk that [your] mental state could deteriorate in the period immediately after sentencing. Thus, were the Court to consider an immediate custodial disposition to be appropriate, [he] would anticipate that [your] experience of adjusting to the custodial context would be particularly difficult. [You] would require intense professional support during the initial period in custody and would be vulnerable to both more regular and more intense bouts of mood disturbance than would a prisoner who does not suffer with [your] mental-health problems. When also considering the circumstances of [your] legal matter and the separation from [your] daughter, the effect of imprisonment on [you] is likely to be particularly onerous.” (See report of Dr Barth, dated 10 August 2023 at paragraphs [41]-[44])
(My emphasis.)
Evidence of the psychologist, Ms Pree Arora and that of the forensic psychologist, Dr Julianne Read
33In her report dated 10 July 2023, Ms Pree Arora, a registered psychologist practising at the New View Psychology, states that she has been giving Mayra, your daughter, regular psychological counselling. She notes that Mayra presented with anxiety, behavioural issues and psychological trauma as a result of the collision and the death of her mother. At that time, you told Ms Arora that Mayra had difficulty regulating her emotions and exhibits anxiety and outbursts. She often appeared distant and inattentive at home and at school. Again, you informed Ms Arora that when Mayra becomes agitated or irritable, she is unable to follow instructions, which may result in outbursts.
34Furthermore, you described how Mayra initially avoided discussing her challenging experiences, but has started to open up. Occasionally Mayra becomes easily irritated and sobs when something upsets her.
35At the time of her report on 10 July 2023, Ms Arora describes Mayra as being hypervigilant during sleep and is fearful of being alone in her room at night. She struggles to sleep on her own and often sleeps with you. In particular, if she senses that you are not nearby at midnight, she would awaken, sobbing and anxious. Mayra reported to Ms Arora that she fears you will leave her and never return and also presents with some symptoms of separation anxiety.
36You described Mayra as very clingy with you at home and often exhibits struggles going to bed without you. Initially school drop-offs were a hardship for Mayra and would become extremely anxious in the morning, but now has made some progress by going to school with her aunt and making new friends.
37Dr Arora described that the type of intervention treatment provided to date has included psychoeducation, use of grounding techniques, regular breathing pattern, and regulation techniques to regulate the arousal zone of regulation. It was also emphasised that when establishing a rapport with Mayra and expanding her emotional vocabulary, Mayra was encouraged to recognise various emotions and articulate her thoughts and feelings. This is achieved through play therapy, role plays, video, modelling and social stories. Various strategies have assisted Mayra in adjusting to the “new reality”, as well as adaptable methods for remembering her mother. Mayra has been engaged and cooperative during her psychological treatment. Ms Arora noted you have been assisting Mayra in providing the optimal recuperating environment, which has been observed in the sessions where you have been proactively engaging in therapy activities and practising suggested skills with Mayra outside of sessions. Mayra has been articulating her emotions and beliefs. In contrast to her previous avoidance of discussing her mother, she has begun to pose questions and demonstrate receptivity towards others.
38I refer to the report of the forensic psychologist, Dr Julianne Read. Dr Read is a registered psychologist endorsed in forensic psychology. She has a Bachelor of Arts and a Bachelor of Science from Monash University (2006), a Bachelor of Psychological Science (Honours) from Griffith University (2007) and a Doctor of Psychology (Forensic) from Deakin University (2011). She has clinical experience in forensic settings and has published research in the areas of investigative interviewing. She was Chair of the Australian Psychological Society’s College of forensic Psychologists (Vic Branch) between 2014 and 2016, having held positions on the committee since 2010.
39She holds a senior psychologist position at Monash Health in the adolescent and adult mental health sector and at the Children’s Court Clinic, and currently maintains a private practice. She has spent the majority of her career assessing and treating young people who present with a wide range of clinical and forensic issues.
40Her report involves an assessment of your daughter Mayra. Dr Read reports that the following material was available to her to assist in the composition of the report:
(a) two-hour video conference with you on 5 June 2023,
(b) one-and-a-half hour face-to-face sessions with Mayra and you at the psychologist’s rooms on 6 June 2023 and a twenty-two minute telephone conversation with Mayra’s teacher, Ms Maddison Spry, on 6 June 2023;
(c) twenty-five minute telephone conversation with Mayra’s current treating psychologist, Ms Pree Arora on 16 June 2023,
(d) twenty-minute telephone conversation with Mayra’s paternal aunt, Monika, on 4 July 2023;
(e) phone call to the centre manager at Mayra’s first childcare centre, Montessori Beginnings, when she was advised that no educators at the centre worked there at the time Mayra attended on 13 July 2023;
(f) ten-minute telephone conversation with Mayra’s kindergarten teacher Ms Mirella Villani, from Yerambooee Kindergarten, Hoppers Crossing on 14 July 2023;
(g) thirteen-minute telephone conversation with Mayra’s previous kindergarten teacher, Ms Catherine Azzopardi, Community Kids Hoppers Crossing, on 14 July 2023;
(h) twelve-minute telephone conversation with consultant psychiatrist, Dr Claire Cody, Western Health, on 17 July 2023;
(i) Email correspondence from you on 17 July 2023, clarifying dates of Mayra’s enrolment at Community Kids Hoppers Crossing; and
(j) an eighteen-minute telephone conversation with general practitioner, Dr Madhur Suri on 27 July 2023.
41Various histories were obtained from Mayra, you, her teacher and from Mayra’s treating psychologist, Ms Arora (who, at the time of Dr Read’s report, had consulted with Mayra on fourteen occasions, all of which save one, were attended by you).
42Dr Read performed various psychometric testing of Mayra and also had you complete the Parent Rating Scale.
43On the basis of such material, she set out various opinions and recommendations, to which I make reference:
“78.Mayra presented as a friendly, bubbly five-year-old girl. By all accounts there were no concerns about her physical, social and emotional development prior to the accident. She was a typically developing almost four-year-old girl at the time she experienced a profoundly traumatic event being a passenger in a head-on collision where her mother and unborn baby brother were killed in a vehicle driven by [you]. The facts of the case are known to the Court and further exploration of the details of the accident were beyond the scope of the current assessment. The current assessment focused on the impact of the accident on Mayra’s psychological functioning and whether there would be an exacerbation of psychological difficulties should [you] be sentenced to a term of imprisonment. The Terms of Reference are addressed specifically, below.
Any psychological conditions Mayra has as a result of the collision and death of her mother;
79.Mayra currently meets criteria for Post-Traumatic Stress Disorder (PTSD) for children 6 years and younger (PTSD-6Y) according to the DSM-5. Specifically, the symptoms Mayra currently experiences in relation to her direct exposure to the traumatic event include intrusive symptoms (dissociative reactions/loss of awareness of present surroundings), avoidance symptoms (avoidance of conversations that arouse recollections of the accident), negative alterations in cognitions (socially withdrawn behaviours, increased frequency of negative emotional states) and alterations in arousal (sleep disturbance, problems with concentration as a result of loss of awareness of surroundings, exaggerated startle response).
80.Mayra’s symptoms are causing clinically significant impairment in her functioning, her learning, and distress in her relationship with [you] (marked separation anxiety).
81.Although the onset of some of these symptoms were immediate, it appears that full expression of the condition was delayed (i.e. more than six months after the event).
82.It is also worth noting that while Mayra may not have shown or show intense psychological distress at exposure to internal or external cues that symbolise or resemble aspects of the traumatic event, she presents with a high frequency of somatic complaints. In the absence of a serious physical health problem, this is indicative of high levels of internal distress manifesting as physical symptoms (colds, headaches, stomach complaints, pain).
83.Additionally, spontaneous and intrusive memories may not necessarily appear distressing and may be expressed as play re-enactment. This is particularly the case for younger children and there was evidence of this occurring during 2022 (both at home and during play-therapy sessions with her treating psychiatrist at the time).
Whether the condition is of a temporary or permanent nature;
84PTSD in children is treatable and therefore not a permanent condition if it is treated effectively and in the absence of ongoing trauma, including the sudden loss/absence of a parent.
How is the condition likely to affect [Mayra] in the future;
85.Mayra’s prognosis will depend on the active presence of her primary attachment figure (“you”) in her everyday life. Additionally, experiencing security and stability will be critical to her recovery, which will also be enhanced through access to regular and effective therapeutic intervention, meaningful engagement in a supportive education environment and access to broader social/familial networks for support and sense of belonging.
Whether the condition would be likely to adversely affect the ability of Mayra to cope with [you] being imprisoned/ Whether the condition would be likely to deteriorate as a result of [you] being imprisoned;
86. Losing [you] is exactly the thing Mayra fears most (as evidenced by her separation anxiety, her need for reassurance of [your] presence even while she goes to the toilet). If [you are] imprisoned, this would be experienced by Mayra as another sudden loss of a parent, and thus traumatic and detrimental for her.
87. Mayra is a very young child who thus has very few resources to cope with further trauma, and this is compounded by her existing experience of living with PTSD. If [you] were to be imprisoned this would very likely not only exacerbate her PTSD, but profoundly negatively impact her psychological functioning and her development more globally.
Treatment of the condition currently or previously undertaken and its effectiveness;
88. Mayra is currently engaged with psychologist Ms Pree Arora who has seen her on 14 occasions. Mayra is likely going to need ongoing psychological intervention to process her trauma that includes, most significantly for her, the sudden loss of her mother. Mayra appears to be suitably engaged in the process, and has demonstrated improved engagement and independence in her sessions since she commenced. Her ability to participate in her session with [Dr Read] in the absence of [you], having never met [her] before, bodes very well for her ability to establish therapeutic relationships and respond to intervention. Ms Arora noted that there have been improvements observed since Mayra commenced treatment. [You] also [appear] to have benefitted from the parenting support [you] received during Mayra’s participation with Western Health and with Ms Arora.
A proposed plan should [you] be sentenced to a term of imprisonment;
89. If [you are] sentenced to a term of imprisonment, [Dr Read’s] understanding is that Mayra will live with her paternal aunt Monica, in Melbourne. Further, that this arrangement could continue for the next three years of Monica’s visa and thereafter the living arrangements would be reviewed. [Dr Read has] not observed Mayra with Monica and Mayra’s paternal grandparents, but by [your] and Monica’s account, the family are willing to work together to care for Mayra. However, Mayra’s paternal family (including her aunt and grandparents) are not permanent residents of Australia, and their primary residence is in India. Monica has a husband and son living in India. Whether or not relocating to India is in Mayra’s best interests would be a consideration for an assessment in due course if the question is raised. Currently it would appear that remaining in Melbourne under the care of her immediate family would offer the most stable, secure and predictable environment for Mayra.
90. [Dr Read is] also not aware of any suitable care alternatives for Mayra – for example the maternal family have reportedly not remained in contact with Mayra and the details surrounding this and their eagerness or otherwise to be a part of Mayra’s life are not known to me.
Any other matters you consider relevant.
91. It is respectfully recommended that Mayra continue to access regular psychological intervention that includes parenting support for [you].
92. It is respectfully recommended that Mayra be encouraged to participate in an extra-curricular activity from Grade 1, particularly one that encourages physical movement (swimming/dancing/sport/gymnastics etc). Rhythmic movement can be particularly beneficial for individuals who have experienced trauma.” (report of Dr Read, dated 28 July 2023, paragraphs 78-92)
(sic)
(My emphasis.)
Matters in mitigation of your sentence
44Your counsel submitted various matters in mitigation of your sentence for the subject offending. Of course, it must be recognised that even if one or more of the exceptions do apply in relation to Charges 1 and 2 on the Indictment (dangerous driving causing death), many of the matters referred to by counsel have relevance to an appropriate disposition in relation to those charges. She referred to the following matters:
(a) Your pleas of guilty
It was submitted that you had indicated an intention to plead guilty at the earliest stage after medical investigations into a potential neurological explanation for the collision were complete. In particular, it was submitted that such pleas of guilty:
(i)Had “strong utilitarian benefit”, as such pleas obviated the need for a lengthy and complex trial, which would involve the need for some witnesses to give evidence – particularly Mr Denton Djurasevich – and be forced to relive the tragic circumstances of this collision;
(ii)Had subjective value as an “acceptance of responsibility and a demonstration of your willingness to facilitate the course of justice”;
(iii)Also such pleas had further utilitarian value, as they were made in the context of the COVID-19 Pandemic. Reference was made to Worboyes v R [2021] VSCA 169 (“Worboyes”) at paragraph 39, wherein the Court of Appeal, consisting of Priest, Kaye and T Forrest JJA, stated in part:
“For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.”;
(b) Remorse
It was submitted that you have suffered “great remorse”, profound sadness and guilt about the effect of your actions. Reference was made to the report of Dr Barth (exhibit “B”) and, in particular, at paragraph 32, wherein he states:
“[You were] at a complete loss to explain how the collision occurred. [You] expressed [your] distress and guilt that [you were] responsible for the deaths of [your] wife and Mrs Johnson and the injuries suffered by her husband Mr Djurasevich. [You] also lamented the loss of [your] unborn child and the impact on Mayra. [You] stated:
‘I feel bad all the time, for my daughter, for the other family. He (Mr Djurasevich) lost his wife. I would like to say sorry to him. Mayra has lost her mother. Most of the time I sit in the garage alone and cry’.”
I also add that several of the referees comment on your remorse in relation to the offending and, in particular, in his reference, Dr Amar Bhatnagar (the general practitioner who treated you from August 2019 to March 2022), recorded that, when you attended him the first time after discharge from the Royal Melbourne Hospital, you expressed “deep emotional sorrow and remorse for the other party involved” and that:
“… it has been hard for [you] to accept what has happened however as the time has passed, [you have] gracefully accepted the circumstances and [have] been diligent in doing the right thing.”;
(c) Application of Verdins
Your counsel submitted that the evidence of the psychologist, Dr Barth, enlivened Principles 5 and 6 as set out in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269, a decision of the Victorian Court of Appeal and, in particular, paragraph 32. In that decision, Maxwell P, Buchanan and Vincent AJA, stated:
“32 Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1. …
2. …
3. …
4. …
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”
In relation to Principles 5 and 6, your counsel notes that Dr Barth diagnosed you to be suffering from Major Depressive Disorder – With Anxious Distress of Moderate Severity. She refers generally to paragraph 44 of his report (to which reference has already been made), whereat Dr Barth states, in part:
“44. As noted above, [your] emotional response to this incident has been intense. [You are] likely to internalise the punitive aspects of sentencing in a particularly severe manner and there is a significant risk that [your] mental state could deteriorate in the period immediately after sentencing. Thus, were the Court to consider an immediate custodial disposition to be appropriate, [he] would anticipate that [your] experience of adjusting to the custodial context would be particularly difficult. [You] would require intense professional support during the initial period in custody and would be vulnerable to both more regular and more intense bouts of mood disturbance than would a prisoner who does not suffer with [your] mental-health problems. When also considering the circumstances of [your] legal matter and the separation from [your] daughter, the effect of imprisonment on [you] is likely to be particularly onerous.”
Your counsel also referred to paragraph 34 of Dr Barth’s report, wherein the psychologist describes your mental state to be characterised by prominent depressive symptoms, the experiencing of a comprehensive range of symptoms and your life being characterised by an abiding sense of unhappiness and abiding pain. He also notes that you feel that your life has changed irrevocably and you can sometimes lapse into hopeless rumination regarding the difficulties ahead which, in turn, intensifies your distress and impacts upon your capacity to concentrate and think clearly.
(d) Good character
Your counsel submits that the subject offending is your first involvement with the criminal justice system and that, of course, you have had no prior convictions of any kind and, for that matter, no subsequent convictions after the subject offending. She refers to the various references in support of your character and submits that you must be viewed as a person of good character up to the subject offending.
Furthermore, she submits that you come to this court with a “blemished free driving record”, which is submitted to be “significant”, given that you have “been employed as a driver” (both of heavy vehicles and passenger vehicles) since you arrived in Australia in 2015;
(e) Extra-curial punishment
It was submitted by your counsel that two types of extra-curial punishment are relevant in a consideration of any sentence – first, the psychological and physical injuries suffered by you and secondly, what is referred to as a “loss of career”.
In this respect, it is submitted that, clearly, on the evidence, you have suffered as a result of the collision, psychological issues and physical injuries (particularly involving your lower back).
Your counsel made reference to the following matters:
In particular, it was submitted that the courts have recognised that psychological and physical injuries brought about by offending can constitute mitigation. In particular, the following cases were referred to:
(i)R v Barci & Asling [1994] VSC 544, wherein the two appellants had committed a series of very serious armed robberies and were caught following the last one at an airport. A third offender was shot and killed by police. Barci was also shot a number of times, receiving a very serious and disabling injury. On Appeal, Barci’s sentence was reduced on account of the very serious injuries which directly resulted from the commission of the crime itself, the court noting that they would, for the rest of his life, serve as a savage reminder of his criminality and be regarded as constituting some punishment for that criminality;
(ii)Director of Public Prosecutions (DPP) v Oates [2007] VSCA 59 (“Oates”), an appeal by the DPP against a community-based order imposed for dangerous driving causing death and serious injury, where mitigating factors include psychological effects from the accident (see paragraphs 11, 12 and 26 – leading judgment given by Neave JA, with Warren CJ and Nettle JA agreeing);
(iii)R v Teh [2003] VSCA 169. This matter involved an appeal against sentence for culpable driving and a number of accounts of negligence causing serious injury, in which the appellant’s daughter had died and his son had suffered serious injury at his hands. Vincent JA, with whom Winneke ACJ and Callaway JA agreed, stated:
“There are a number of respects in which the fact that the perpetrator of an offence personally experiences distress, injury or loss as a consequence of its commission can assume relevance in the determination of an appropriate sentence. Generally it will take its place as one of the matters to be taken into account in the development of an appropriate synthesis. It may assume significance in the assessment of the just punishment required, the weight to be given to expressions of remorse or to general and specific deterrence in the circumstances of the particular matter. There have been, for example, many situations addressed by the courts in the course of their daily operations in which perpetrators have brought upon themselves serious suffering and loss, sometimes involving an order of effective punishment that no civilized society could ever require as just punishment. Hopefully, there would be few who would not experience deep remorse for the death of a child as a consequence of their irresponsible behaviour, whether their own or the child of someone else. The prospects of successful rehabilitation and the weight to be given to deterrence, both general and specific, would often need to be assessed against such a background. Clearly I have not attempted to exhaust the possible ways in which loss and suffering experienced by the offender himself may be taken into account, or the weight that should be attributed to it in any given situation, but rather point out that, according to the circumstances, the personal consequences to the offender may assume significance. This simply represents an application of the principle that the determination of an appropriate sentence requires a sentencing judge to give appropriate weight to each of the relevant sentencing considerations having regard to the particular circumstances of the offence and perpetrator involved.” (See Tey (op cit) at paragraph [20]).
Your counsel noted that you had been employed as a driver of both commercial and private vehicles over the years since your arrival in Australian in 2015. As already noted, after release from hospital, you resigned from your role at Ron Finemore Transport, where you were employed as a truck driver, and in February 2022, your heavy vehicle accreditation was suspended. Your counsel submits that:
“As a result of this incident [you] have] been forced to accept that [your] career as a professional driver has come to an end, at least for the foreseeable future.”
Your counsel made reference to R v Tran, Levchenko & Fucile [2013] VSC 363 (“Tran”), wherein Lasry J recognised that the loss of a chosen career can amount to extra-curial punishment (see Tran (op cit) at paragraph [46]).
Counsel also referred to the Victorian Court of Appeal decision of R v Talia [2009] VSCA 260 (Talia), wherein the Court of appeal determined an appeal against sentence where the offender was a real estate agent who purchased property from a client at an undervalue and was likely to be disqualified from work as an estate agent as a result. The court stated that the sentencing judge would have been entitled to give the disqualification some weight as a circumstance of mitigation, but he was not bound to do so. The court distinguished the facts of the case before it from a situation where the criminal conduct is remote from the accused’s employment. The court said that, where the offending is remote from the employment from which the offender is precluded, there might be a considerably-stronger argument in favour of the loss of employment being treated as a circumstance of mitigation (See Talia (op cit) at paragraph 28).
(f) I accept that, given your status as a “non-citizen”, you do face the prospect that you will be deported from Australia if convicted and sentenced to more than twelve months’ imprisonment and accordingly:
(i)during your period of imprisonment you will have the prospect of deportation hanging over your head; and
(ii)at the time of your prison release, deportation has significant consequences, including the break up of your family (Mayra being a citizen of this country);
(g) I do accept that the impact on Mayra if you were incarcerated would be an “exceptional” circumstance within the meaning of Markovic (op cit) . Dr Read is unequivocal in her report – particularly at paragraphs 79 to 80 and 85, as to the effect on Mayra if you were incarcerated. It must not be forgotten that this young girl has been involved in the death of her mother, has been receiving psychological treatment since the collision, which is continuing, and would suffer greatly in the absence of you.
Although I accept that the impact of your sister, Monika, would be significant, I do not consider that can be characterised as “exceptional” within the meaning of Markovic (op cit) . However, this must be seen in the context that Dr Read, although appreciating that if you are incarcerated Monika may look after Mayra – she considered that situation not to be optional, given the concern she has if you are not available to be with Mayra.
I also accept, in a general way, that you would clearly suffer hardship in prison above and beyond any other matter in relation to your concern as to the health of your daughter and her inability to cope in your absence;
(h) I consider that you have excellent prospects of rehabilitation and would pose no risk to the community. In this respect I refer to, again, the report from the psychologist, Dr Barth, particularly at paragraphs 30, 39 and 42;
(i) I also give some weight to the Victim Impact Statement of Mr Denton Djurasevich, but am conscious of what was said by Smith AJA in Skura (op cit), that judges must be careful that they do not allow the contents of a victim impact statement to unbalance the sentencing process so as to cause a miscarriage of the judicial sentencing discretion. However, I consider that some weight has to be attached to such statement, bearing in mind who the maker of the statement is.
79As already recorded, the offence of dangerous driving causing death (that is the offences constituted by Charges 1 and 2) is a category 2 offence, as defined in s3(1) of the Sentencing Act 1991 and, accordingly, the Court must sentence you to a term of imprisonment (not including a combined sentence involving a community correction order) unless one of the relevant exceptions apply. Again, as already recorded, your counsel relied on the exceptions contained in s5(2H)(c)(ii) and s5(2H)(e) of the Sentencing Act 1991.
80I refer to s5(2H) of the Sentencing Act 1991, which states:
“(2H) In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—
(a) the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence; or
(c) the offender proves on the balance of probabilities that—
(i)subject to subsection (2HA), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender’s culpability; or
(ii) the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
(d) the court proposes to make a Court Secure Treatment Order or a residential treatment order in respect of the offender; or
(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
(2HA)Subsection (2H)(c)(i) does not apply to impaired mental functioning caused substantially by self‑induced intoxication.
(2HB) In subsections (2GA), (2GC), (2H) and (2HA)—
‘impaired mental functioning’ has the same meaning as in section 10A;
‘self-induced intoxication’ has the same meaning as in section 322T(5) and (6) of the Crimes Act 1958.
(2HC)In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—
(a) must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1) ; and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to—
(i) the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or
(ii)an early guilty plea; or
(iii) prospects of rehabilitation; or
(iv) parity with other sentences.
(2I)In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—
(a) the Parliament’s intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and
(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
(2J) …
(3) …
(4) …
(4B) …
(4C) …
(5) …
(6) …
(7) ….”
81In particular, the first exception sought to be relied on is that set out in paragraph (c)(ii), which provides that the exception applies if an offender proves, on the “balance of probabilities”, that the offender has “impaired mental functioning” that would result in the offender being subject to “substantially and materially greater than the ordinary burden or risks of imprisonment”.
82“Impaired mental functioning” is defined to have the same meaning as in s10A of the Sentencing Act 1991. Section 10A of the Sentencing Act 1991 defines “impaired mental functioning” to mean a variety of things, but in particular, a “mental illness” within the meaning of the Mental Health Act 2014. In s4(1) of the Mental Health Act 2014, the term “mental illness” means “a medical condition that is characterised by significant disturbance of thought, mood, perception or memory”.
83It is clear that the exception set out in s5(2H)(c)(ii) is a higher bar than which attracts the principles enunciated in Verdins (see Peers (op cit) at paragraph 52). In this respect, the exception makes plain that it is only applicable in respect of “impaired mental functioning”, as defined, and that it must be established, as a matter or probability, that such “impaired mental functioning” would result in an offender being subject to “substantially and materially greater than the ordinary burden or risks of imprisonment”.
84Turning now to the further exception relied on; that is, the exception set out in paragraph (e) of s5(2H) of the Sentencing Act. Paragraph (e) reads:
“There are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).”
85In distinction to the exception set out in paragraph (c)(ii), there is no onus on you to establish, on the balance of probabilities, the existence of “substantial and compelling circumstances” that are “exceptional and rare”. Rather, it is an evaluative judgment for the Court to make once the relevant underlying facts have been established in accordance with settled principle (see Fariah v R [2021] VSCA 13, at paragraph 24).
86I again refer to the relatively recent Victorian Court of Appeal decision of Lombardo (op cit), which was an appeal by the DPP in relation to the sentencing of the defendant for the offence of dangerous driving causing death. Such offence, being a “category 2 offence”, required that there be a custodial sentence (other than a custodial sentence imposed in addition to a community correction order) unless a relevant exception applied.
87The Court of Appeal (consisting of McLeish, Niall and Kennedy JJA) set out the legislative history of s5(2H)(e) of the Sentencing Act 1991. In particular, I note:
“57.A ‘substantial and compelling circumstances’ exception to a mandatory sentencing provision first entered the Act on 1 July 2013 when the Crimes Amendment (Gross Violence Offences) Act 2013 introduced ss 10 and 10A. These provisions required that a custodial sentence be imposed for certain offences, unless a court found that a special reason existed, including because there were ‘substantial and compelling circumstances’ justifying such a finding. In the relevant second reading speech, it was explained that this ‘substantial and compelling circumstances’ exception was intended to accommodate cases involving ‘rare and unforeseen circumstances where it would be clearly outside the intention of the Parliament’ that a custodial sentence be imposed.
58. In part by reference to this second reading speech, this Court in Director of Public Prosecutions v Hudgson concluded that the ‘substantial and compelling circumstances’ exception in s10A required that the circumstances identified be atypical. The exception, the Court stated, requires ‘powerful circumstances of a kind wholly outside … “run of the mill” factors typically present’ in offending of the relevant kind.
59. On 20 March 2017, mandatory sentencing provisions in respect of category 2 offences were introduced into the Act. The Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 defined a set of ‘category 2 offences’, which did not at first include dangerous driving causing death. It also introduced s5(2H). In its original form, the s5(2H)(e) exception was substantially the same as the s10A exception: it required ‘substantial and compelling circumstances that justify’ not imposing a term of imprisonment.
60. …
61. The narrowing phrase ‘that are exceptional and rare’ was introduced because of a perception, articulated in the relevant second reading speech, that the courts were finding that ‘substantial and compelling’ circumstances existed not merely in rare or atypical circumstances, but in ‘conditions or situations that afflict a large number of Victorians’. The introduction of the ‘exceptional and rare’ requirement can therefore be seen to reflect parliamentary dissatisfaction with the stringency of the existing judicial application of the provision.
62. …
63. More generally, the introduction of the ‘exceptional and rare’ requirement made explicit this Court’s approach to the existing ‘substantial and compelling circumstances’ requirement — namely, that the circumstances must not only be powerful, but also ‘wholly outside’ the ‘run of the mill’ factors seen in offending of the relevant kind.” [Lombardo (op cit), paragraphs57 to 63]
(My emphasis.)
88Later in the judgment, the Court of Appeal set out the meaning of s5(2H)(e) and stated:
“65.When we turn to the statutory language, it is apparent that the inquiry under s5(2H)(e) has two key steps.
66. First, the court must identify whether there are ‘substantial and compelling circumstances’. In that context, ‘substantial and compelling’ means that the circumstances are weighty and forceful or powerful.[54] The issue is whether the circumstances are substantial and compelling so as to justify not imposing a custodial sentence. That is the criterion by which the substance and compulsive force of the circumstances are to be assessed.
67. The second critical step, if the circumstances are substantial and compelling in the sense described above, asks whether they are also ‘exceptional and rare’. In our view, this is to be regarded as a composite phrase imposing a single test, rather than as two discrete tests. That is because the meanings of the two words overlap; in particular, ‘exceptional’ means ‘out of the ordinary course, unusual, special’, which includes that which is ‘rare’. In that situation, a separate test asking whether something that is ‘exceptional’ is also ‘rare’ would be redundant. Instead, the two words operate together and each influences the meaning of the overall phrase.
68. The ‘exceptional and rare’ language is not merely a description of the empirical outcome of applying the law of sentencing to a collection of offences. It is a threshold which must be met before it is open to impose a non-custodial sentence. The question then is the meaning of the language used.
69. In construing the phrase ‘exceptional and rare’, it is relevant that, in the context of deciding whether circumstances are ‘substantial and compelling’, Parliament has stated its intention that imprisonment should ‘ordinarily’ be imposed for a category 2 offence: s5(2I)(a). This statement of intention is expressed in moderate terms, suggesting that the ‘exceptional and rare’ requirement has a meaning closer to ‘out of the ordinary’.
70. On the other hand, the expression ‘out of the ordinary’, while capable of describing something that is ‘exceptional’, as well as something that is ‘rare’, does not fully capture the force of the phrase ‘exceptional and rare’. Both the expression ‘exceptional and rare’ and the legislative object that imprisonment should ‘ordinarily’ be imposed are, however, consistent with earlier case law, such as Hudgson, which described provisions such as the present as requiring circumstances of a kind ‘wholly outside “run of the mill” factors typical of’ the relevant kind of offending.
71. Accordingly, in our view that language properly captures the meaning of the phrase ‘exceptional and rare’ in this context.[57] It refers to circumstances that are wholly outside the ordinary factors typical of the relevant offence, in this case dangerous driving causing death.
72. Applying the two steps of the mandated analysis calls for the sentencing judge to make an ‘evaluative judgment’ once the underlying facts have been established, and unaffected by notions of burden of proof.[58] It is possible that a set of circumstances may engage the exception in combination, even where the constituent circumstances are mainly, or even wholly, ‘relatively common’.
73. …
74. …
75. In making the assessment as to substantial and compelling circumstances, the Act imposes a number of further conditions. First, the judge must regard general deterrence and denunciation of the offender’s conduct as more important than other sentencing purposes in s5(1) of the Act (which include just punishment, specific deterrence, rehabilitation and protection of the community from the offender): s5(2HC)(a).
76. Next, the judge must also give less weight to the offender’s personal circumstances than to the nature and gravity of the offence: s 5(2HC)(b).[
77. Thirdly, the judge must not have regard to the matters in s 5(2HC)(c), which include the offender’s previous good character (other than an absence of convictions), any early guilty plea and prospects of rehabilitation.
78. Fourthly, the judge must have regard to Parliament’s intention that in sentencing an offender for a category 2 offence, only an order for a custodial sentence ‘should ordinarily be made’: s5(2I)(a). We have already referred to this requirement in the context of the ‘exceptional and rare’ criterion.
79. Finally, the judge must have regard to whether the cumulative impact of the circumstances of the case would justify a departure from a custodial sentence: s 5(2I)(b). This last requirement appears to do no more than restate the task under s 5(2HC)(e) itself. It confirms, however, that it is the cumulative effect of the relevant circumstances which is significant.
…
87. We turn then to the ‘exceptional and rare’ requirement. Here, we must respectfully part company with the sentencing judge. It is true that the subjective evaluation required in this context may well be informed by the sentencing judge’s experience and observation of the panoply of cases which come before the courts at first instance. It is also true, as the respondent submitted, that this Court sees only a ‘skewed sample’ of those cases, and should be cautious as a result not simply to substitute its own assessment of what is exceptional and rare.”
(My emphasis.)
89After a consideration of all of the evidence, I consider that you have discharged your onus in establishing the exception pursuant to s5(2H)(c)(ii). I have reached such conclusion on the basis of the evidence of the psychologist, Dr Barth. First, Dr Barth found you to be suffering from “Major Depressive Disorder – With Anxious Distress of Moderate Severity” – clearly satisfying the requirement that you presently suffer “impaired mental functioning” within the meaning of the Sentencing Act 1991.
90Secondly, Dr Barth, also expressed the opinion, at paragraphs 43 to 44 of his report, that:
“43.Speaking in terms of [your] psychological well-being, there is a strong need for [you] to continue [your] participation in treatment to address both the traumatic anxiety [you have] experienced in response to the collision and [your] depressive symptoms. Furthermore, grief-related counselling for the loss of [your] wife and unborn child would be important in the long-term. While medical treatment of [your] depressive symptoms would be readily available in custody, access to regular counselling is considerably more limited. Moreover, [Dr Barth] would anticipate that in a custodial context it would be quite difficult for [you] to receive the intensive treatment which is most central to [your] needs.
44. As noted above, [your] emotional response to this incident has been intense. [You are] likely to internalise the punitive aspects of sentencing in a particularly severe manner and there is a significant risk that [your] mental state could deteriorate in the period immediately after sentencing. Thus, were the Court to consider an immediate custodial disposition to be appropriate, [Dr Barth] would anticipate that [your] experience of adjusting to the custodial context would be particularly difficult. [You] would require intense professional support during the initial period in custody and would be vulnerable to both more regular and more intense bouts of mood disturbance than would a prisoner who does not suffer with [your] mental-health problems. When also considering the circumstances of [your] legal matter and the separation from [your] daughter, the effect of imprisonment on [you] is likely to be particularly onerous.”
(My emphasis.)
91I consider that the evidence of Dr Barth satisfies the requirement that your “impaired mental functioning” in you being subjected to substantially and materially greater risks than the ordinary risks of imprisonment.
92Also, after a consideration of all of the evidence, I have formed the view that the exceptions set out in paragraph (e) also has application.
93After a consideration of all of the evidence, I consider that the following matters are “substantial and compelling circumstances”, in that they are weighty and forceful, or powerful enough to justify not imposing a custodial sentence. In this respect, I am conscious of the considerations the Court must take into account in coming to such view, as set out in Lombardo (op cit).
94I set out the relevant “substantial and compelling” circumstances:
(a) your “impaired mental functioning”;
(b) the short duration of your dangerous conduct;
(c) the absence of any aggravating features in your offending;
(d) your immediate acceptance of responsibility;
(e) your lack of any prior convictions;
(f) your stable work and family supports; and
(g) the low objective gravity of the offending, together with your low moral culpability.
But the greatest of all of the “substantial and compelling circumstances” relates to your daughter, Mayra. In this respect, she has been receiving psychological treatment from the date of the collision and such treatment is continuing. As I have already found, I consider that if you were incarcerated, she would suffer third-party hardship on the basis of the evidence of, in particular, Dr Read. Again, I refer to her evidence at paragraphs 85 to 87, where she states:
“85.Mayra’s prognosis will depend on the active presence of her primary attachment figure ([you]) in her everyday life. Additionally, experiencing security and stability will be critical to her recovery, which will also be enhanced through access to regular and effective therapeutic intervention, meaningful engagement in a supportive education environment and access to broader social/familial networks for support and sense of belonging.
Whether the condition would be likely to adversely affect the ability of Mayra to cope with [you] being imprisoned/ Whether the condition would be likely to deteriorate as a result of [you] being imprisoned;
86. Losing [you] is exactly the thing Mayra fears most (as evidenced by her separation anxiety, her need for reassurance of [your] presence even while she goes to the toilet). If [you are] imprisoned, this would be experienced by Mayra as another sudden loss of a parent, and thus traumatic and detrimental for her.
87. Mayra is a very young child who thus has very few resources to cope with further trauma, and this is compounded by her existing experience of living with PTSD. If [you] were to be imprisoned this would very likely not only exacerbate her PTSD, but profoundly negatively impact her psychological functioning and her development more globally.”
95Furthermore, I am of the opinion that such circumstances taken together, or even relying on the circumstances of Mayra alone, must be seen as “exceptional and rare”, in that such circumstances are “wholly outside of the ordinary factors typical of the relevant offence” (see Lombardo (op cit) at paragraph 71).
96I do accept that many of the circumstances which have been put as “substantial and compelling”, taken individually, would not be seen as “exceptional or rare”, but taken together and, again, particularly relying on Mayra’s circumstances, I consider that part of the exception is made out.
Disposition
97The Court arranged for you to be assessed for a community correction order and this was undertaken on 28 August 2023. The author of the Assessment Outcome Report states that you were assessed as being “low risk of re-offending according to the Level of Service Risk Assessment Tool”. Furthermore, it was reported that you engaged with the officer and showed an understanding of the requirements of a community correction order. In particular, it was noted that you “demonstrated remorse for [your] actions as well as insight into [your] offending behaviour”. The officer was also informed by you that you have been receiving counselling ever since the incident occurred, due to the “turmoil it caused to [your] mental health”.
98He also recommended that, pursuant to the guidelines applicable, you did not require supervision, given that you are at a low risk of re-offending and that whether there should be a condition regarding your mental health will depend on the assessment made by the County Court Mental Health Advice & Response Service.
99Such an assessment occurred on 5 September 2023. In that report, you reported that you take oral antidepressant tablets daily and also daily nerve pain medication, but was not sure how effective the antidepressant medication was. You identified a positive benefit from participating in psychological counselling and treatment with the psychologist, Dr Bhat, and that you had been attending him since January 2022, all of which was covered by the Transport Accident Commission. It was recommended that ongoing assessment or treatment of your mental health be made a condition of the Community Correction Order in order to promote wellbeing and reduce the likelihood of re-offending.
100I consider that general deterrence and denunciation are important considerations in determining an appropriate sentence. I do not consider that specific deterrence plays any meaningful role. Furthermore, insofar as general deterrence and denunciation of such offending is relevant, I consider that, given the circumstances of this matter and bearing in mind your low moral culpability, such factors are not as powerful as it would be in cases involving aggravating factors.
101After careful consideration, I have come to the decision which I might add was not reached easily that in all the circumstances it is appropriate to sentence you to a community correction order, rather than impose a sentence of imprisonment. I do this in the knowledge that the offence of dangerous driving causing death, in particular, generally attracts a period of imprisonment. However, running through the cases from Oates (op cit), it is recognised that cases involving low moral culpability can attract a non-custodial sentence – more so given the application, as I have so found, of s5(2H)(e) of the Sentencing Act 1991.
102I refer to the leading case of Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 309), which made clear that a community correction order can be made in appropriate circumstances for serious offending and, furthermore, it can be a vehicle for general deterrence and just punishment.
103I might add, both counsel for the prosecution and your counsel referred me to various decisions, some of which apply to circumstances prior to the introduction of s5(2H) of the Sentencing Act 1991. Clearly there are cases where community correction orders have been given in the circumstances of these types of offences.
104I am also conscious of the powerful mitigating circumstances in this matter set out earlier in these Reasons.
Your sentence
105Please be upstanding:
(a) In relation to Charges 1, 2 and 3, you are convicted and sentenced to a community correction order of four years, commencing as from today. Within two days, you are to report to Werribee Community Correction Service at 87 Sinnott Street, Werribee, Victoria; telephone number 9974 4500.
In addition to the standard conditions, the following conditions apply:
(i)Pursuant to s48C of the Sentencing Act 1991, you are required to perform 250 hours of unpaid community work during the currency of the Order;
(ii)Pursuant to s48D(3)(e) of the Sentencing Act 1991, you are required to undergo treatment and rehabilitation specified by the Court and/or the Secretary in respect of any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital;
(b) Pursuant to s89(4) of the Sentencing Act 1991, your licence to drive a motor vehicle is cancelled and you are disqualified from obtaining a further licence for a period of eighteen months from this date;
(c) I declare that, in the absence of your pleas of guilty, I would have sentenced you to twenty-four months’ imprisonment with a non-parole period of eighteen months.
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