Director of Public Prosecutions v Dyer

[2023] VCC 2091

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No.  CR-23-00493

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW DYER

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2023
DATE OF SENTENCE:	23 November 2023
CASE MAY BE CITED AS:	DPP v Dyer
MEDIUM NEUTRAL CITATION:	[2023] VCC 2091

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Plea of guilty – Culpable driving causing death – Reckless conduct endangering life – Commit an indictable offence whilst on bail – Drive while unlicenced – Use an unregistered motor vehicle – Fraudulently use a registration label or plate – Charge 1 and 2 very serious examples of the offences – High level of moral culpability – Disadvantaged childhood – Relevant prior criminal history – Involved mental and physical health – Post Traumatic Stress Disorder – Stimulant Use Disorder – Alcohol Use Disorder – Borderline Personality Disorder – Limited degree of genuine remorse – Verdins – Bugmy – Prospects of rehabilitation only fair – General and specific deterrence – Just punishment – Denunciation – Community protection – Totality – Standard sentence on Charge 1 – Some cumulation to reflect the separate conduct and separate victims.

Legislation Cited:      Crimes Act 1958; Bail Act 1977; Road Safety Act 1986; Sentencing Act 1991.

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Biba v The Queen [2022] VSCA 168; Bugmy v The Queen (2013) 249 CLR 571; Director of Public Prosecutions v Herrmann [2021] VSCA 160; Newton (a pseudonym) v The King [2023] VSCA 22; Sabbatucci v The Queen [2021] VSCA 340

Sentence:                  Total effective sentence of 10 years and 3 months imprisonment, eligible for parole after serving 7 years and 6 months. Disqualified from obtaining a licence for 8 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J McCarthy	Office of Public Prosecutions
For the Accused	Mr C Oldham	Balmer & Associates

HIS HONOUR:

1Mathew Dyer, you have pleaded guilty to:

(a) one charge of culpable driving causing death contrary s 318(1) of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 20 years imprisonment (Charge 1); and

(b) one charge of reckless conduct endangering life contrary to s 22 of the Crimes Act, which carries a maximum penalty of 10 years imprisonment (Charge 2).

2You have also pleaded guilty to the following related summary offences:

(a) one charge of commit an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977 which carries a maximum penalty of 3 months imprisonment or 30 penalty units (Summary Charge 5);

(b) one charge of drive while unlicenced contrary to s 18(1)(a) of the Road Safety Act 1986 (‘Road Safety Act’) which carries a maximum penalty of 6 months imprisonment or 60 penalty units (Summary Charge 8);

(c) one charge of use an unregistered motor vehicle contrary to s 7(1)(a) of the Road Safety Act, which in this instance carries a maximum penalty of 50 penalty units (Summary Charge 9); and

(d) one charge of fraudulently use a registration label or plate contrary to s 72 of the Road Safety Act, which carries a maximum penalty of 2 months imprisonment or 10 penalty units (Summary Charge 10).

3You have also admitted your Criminal Record.

Circumstances of the offending

4A prosecution opening was tendered on the plea and may be summarised as follows:

5Your offending arises out of a motor vehicle collision that occurred on 27 August 2022, after you drove a silver SAAB sedan through a red light at the intersection of Ferntree Gully Road and Cambden Park Parade, colliding with a Nissan Dualis driven by Xiaoyi Ge and a white Toyota Landcruiser driven by Dirk Fisher. 

6You were 44 years old on the date of your offending.

7Nicole Woollard, the victim in relation to Charge 1, was 39 years old at the time of your offending.

8The victims in relation to Charge 2 are Dirk Fisher, Xiaoyi Ge and Ms Ge’s young son. Mr Fisher was 58 years old and Ms Ge was 32 years old at the time of your offending.

Collision scene

9Ferntree Gully Road is a four lane, two-way divided road, with additional dedicated right and left hand turn lanes. The carriageways were aligned northeast and southwest. Separated from the lanes of travel were service lanes in both directions.

10Cambden Park Parade intersected Ferntree Gully Road at an angle of approximately 80 degrees. It was a two-way, two lane divided road. It terminated at Ferntree Gully Road and extended to the northwest from Ferntree Gully Road. At the intersection with Ferntree Gully Road, the southeast bound lane was divided into a right-hand turn lane and a combined left turn and through lane.

11Opposite Cambden Park Parade was Windemere Drive. It was effectively the extension of Cambden Park Parade but renamed. It intersected with Ferntree Gully Road at approximately 85 degrees. It was effectively a two-lane, two-way road. At the intersection with Ferntree Gully Road in the north west bound lane there was a dedicated right hand turn lane, a through lane and a left turn slip lane.

12For right hand turn vehicles both from and to Cambden Park Parade and Windemere Drive, there were white broken painted lines on the road to guide turning vehicles.

13There were no defects in the road surface that caused or contributed to the collision.

Offending

14On 27 August 2022 at approximately 5:30pm, Ms Samantha McKnight was driving along Scoresby Road and stopped at the traffic lights at the intersection of Burwood Highway and Scoresby Road.

15Ms McKnight observed a Sedan, now known to be the car driven by you, stop next to her in the left lane. Not long after the lights turned green and she continued driving, and observed your vehicle take off “really fast”.

16At 5:35pm on the same day, Senior Constable Ashleigh Westerhoff and Senior Constable Rebecca Munzel were travelling in a police vehicle on Scoresby Road. A radar speed detection device fitted in their police vehicle recorded your vehicle travelling south on Scoresby Road at 94 km/h. The speed limit on this road was 60 km/h.

17Senior Constable Westerhoff activated emergency lights and performed a U-turn in an attempt to intercept your vehicle.

18You continued to drive South on Scoresby Road. Senior Constable Westerhoff looked at the speedometer of his police vehicle at or around this time and recalls his vehicle was travelling “around 110 – 115 km/h”. 

19You turned left onto Ferntree Gully Road and travelled east. 

20Senior Constable Westerhoff formed the view that you were trying to evade police and began to ‘pull over’ the police vehicle to the left of Ferntree Gully Road, intending to cease the police pursuit.

21As you were beginning to pull over, Senior Constable Westerhoff saw your vehicle drive through a red light at the intersection of Ferntree Gully Road and Cambden Park Parade, causing the collision.

22Senior Constable Westerhoff immediately turned back out onto Ferntree Gully Road, drove to the intersection and exited the vehicle to render assistance.

Collision

23Ms Nicole Woollard was a passenger in the front seat of your car.

24At approximately 5:36pm, your car collided with the Nissan approximately 16.7 metres from the stop line of the intersection. You were travelling a minimum of 159 km/h when you collided with the Nissan.

25The Nissan spun out of the collision with your car for approximately 9 metres at a post impact speed of 36 km/h.  

26Your car then collided with the Toyota within the intersection.

27The Toyota rotated approximately 8.7 metres post impact into a traffic control signal pole.

28After the impact with the pole the Toyota rotated clockwise around the pole to rest approximately 2.7 metres from the pole.  

29Your car was travelling at a minimum of 113.7 km/h when it hit the Toyota.

30The minimum post impact speed of the Toyota was 25.5 km/h .

31The tray of the Toyota came to rest in the left hand northeast bound lanes at the eastern pedestrian crossing.

32Your car came to rest facing northeast in the right hand northeast bound lane of Ferntree Gully Road. After the impact with the Toyota, your car travelled approximately 38 metres to rest, whilst spinning and then skidding, with the front passenger tyre locked. Your car was spinning for approximately 22.7 metres. The spinning terminated at an area of disturbed earth, where your car changed direction, after which you travelled a further 15.5 metres with the front passenger tyre locked.

33The Nissan came to rest facing approximately south in the northern corner of the intersection on the footpath between traffic control signal poles.

34The Toyota came to rest facing approximately west near the traffic control signal pole between the northeast and south west bound lanes on the eastern side of the intersection.

35The speed limit for the relevant part of Ferntree Gully Road was 80 km/h .

36Ms Sue-Ann Miller was a front passenger of another vehicle that was stationary in the right turn lane at the intersection of the Cambden Park and Windermere intersection. She observed the collision.

37In her statement dated 10 September 2022, she stated:

“The force of the impact showered our car in debris and battery acid, the battery landed under the car, the bumper from the offending car ended up near our rear driver side wheel …”.

Attendance of ambulance officers

38An ambulance was coincidentally parked at the intersection at the time of the collision and paramedics attended the scene almost immediately.

39Ms Woollard was treated by paramedics but was pronounced dead at the scene of the collision at approximately 6:22pm.

40You remained at the scene and were conveyed to the Alfred Hospital.

Damage to vehicles

41All three vehicles involved in the collision incurred significant damage which is particularised in the report of Detective Sergeant Robert Hay dated 21 October 2022.

Dash camera footage

42Dash camera footage installed in the police vehicle driven by Senior Constable Westerhoff recorded the collision.

43Mr Hongming Liang was stationary at the intersection. Mr Liang had a dash camera installed in his car that recorded the collision.  

44Mr Fisher also had a dash camera installed in his vehicle which also recorded the collision.

Related summary offences

45At the time of this offending, you were on bail for charges of theft, possess methylamphetamine, and fraudulently use a registration label or plate (Summary Charge 5). 

46You were not licenced to drive a motor vehicle at the time of the offending, with your licence having expired on 28 August 2013 (Summary Charge 8).

47Your car was also not registered. The correct registration number was 1SI 2MZ and that registration had been cancelled on 26 January 2022 (Summary Offence 9).

48The car you were driving at the time of this offending displayed registration plates ‘TPA 749’. Those registration plates were from a different vehicle being a 2000 Moffet F Lift (a forklift) (Summary Charge 10).

Arrest and drug testing

49You were taken to the Alfred Hospital by Ambulance.

50A sample your blood was taken at 7:30pm on the day of the collision at the Alfred Hospital. Your blood showed positive results for methylamphetamine (0.34 mg/L), amphetamine (0.05 mg/L) and alcohol (0.015 grams of alcohol per 100 millilitres of blood).

51In a report dated 27 October 2022, Dr Jason Scheiber of the Victorian Institute of Forensic Medicine opined:

(a)   “Mr Dyer was using methamphetamine. This drug has the potential to significantly impair driving”;

(b)   “The methamphetamine level found in his blood was high, and the effects were likely to impact on his driving”;

(c)   “Mr Dyer’s risk – taking behaviours with speeding and accelerating away from police, as well as misjudging traffic situations with running a red light can be attributed to the impairing effects of methamphetamine”;

(d)   “Mr Dyer also had a low blood alcohol concentration which can compound the effects of methamphetamine, in particular euphoria and disinhibition”;

(e)   “Even low blood alcohol concentrations increase the risk of being culpable for collisions”; and

(f)    “Methamphetamine at this level would have prevented Mr Dyer from having proper control of a motor vehicle, possibly aggravated by alcohol”.

52Sergeant Christopher Pepperall arrested you at hospital at 8:48pm.

Mechanical testing

53Your car was examined by Acting Sergeant Daniel Pearce on 3 September 2022.

54Acting Sergeant Pearce’s examination did not reveal any faults, failures or conditions that in his opinion, could have caused or contributed to the collision.

Particulars of culpability (charge 1) 

55You drove culpably by:

(a)   Driving negligently in that you drove your car through a red light at the intersection, travelled at a minimum of 159 km/h at the point of collision and caused a collision with the Nissan Dualis and Toyota Landcruiser; and

(b)   Driving under the influence of methamphetamine and amphetamine to such an extent as to be incapable of having proper control of your car.

Cause of death of Nicole Woollard and injuries to Mr Fisher and Ms Ge

56On 29 August 2022, Dr Victoria Francis of the Victoria Institute of Forensic Medicine examined Ms Woollard’s body.

57Dr Francis observed that Ms Woollard had significant left lower limb injuries, bruising and abrasions and further injuries including skull, leg and rib fractures. 

58She formed the view that Ms Woolard died as a result of “injuries sustained in a motor vehicle collision”.

59Mr Fisher initially reported a sore right shoulder. As outlined in an addendum to the summary of prosecution opening tendered on the plea, Mr Fisher later sought medical attention in relation to his shoulder. He was diagnosed with a soft tissue injury to his right shoulder that ultimately required surgery, being a right shoulder arthroscopic slap debridement and acromioplasty.

60In relation to injuries sustained by Ms Ge, she stated:

“I recall that as I stopped spinning on the side of the road, I had lost feeling down the right side of my body and I was unable to get out of the car … I then went with the Ambulance to the Maroondah Hospital where I stayed for about 24 hours … I had some scratches and bruising to different parts of my body. Whilst these injuries have healed, I still have a sore leg and I continue to get headaches regularly”. 

61You declined to participate in a record of interview.

Nature and gravity of the offending

62The offence of culpable driving causing death is by its nature a very serious offence as it involves the death of a human being. In this instance Mr Oldham who appeared on your behalf, conceded that your offending is very serious. Mr McCarthy who appeared on behalf of the Director of Public Prosecutions submitted that Charge 1 is a serious example of culpable driving causing death.

63In assessing the seriousness of your conduct in relation to Charge 1, I take into account all of the circumstances including: that you drove through a red light at a busy intersection at high speed; that your speed at impact of the Nissan was 159km/h and 113.7 km/h when you struck the Toyota; that you had a ‘high level’ of methylamphetamine in your system together with amphetamines; that the damage to the vehicles was significant and that the motivation for driving in such a manner was to avoid apprehension by police. Further, while subject to separate related summary charges, I note that you were unlicenced, using an unregistered motor vehicle with fraudulent registration plates and that Charge 1 was committed while you were on bail.

64You made a deliberate choice to drive while under the influence of drugs which, as particularised, rendered you incapable of having proper control of the car you were driving. Further, with a passenger in your car - who you refer to as a friend - you acted in an entirely selfish manner driving in the way described in order to avoid apprehension by police with absolutely no regard for the safety of your passenger or the other road users.

65In my view, your offending represents a serious example of culpable driving and your moral culpability is high.

66Charge 2 relates to the driver of the Nissan and her young son, and the driver of the Toyota. While there is clearly overlap between the two indictable charges, when assessing the seriousness of your conduct, Charge 2 is a separate offence particularising the three victims whose lives you endangered. Mr Fisher and Ms Ge also both suffered injuries as noted above. In my view Charge 2 is also a serious example of reckless conduct endangering life.

Victim Impact Statements

67Victim impact statements from Nicole Woollard’s mother, father, brother, daughter and sister-in-law were tendered together with a victim impact statement from Dirk Fisher, the victim injured in the Toyota.

68There is a clear and consistent theme in the victim impact statements relating to Nicole Woollard, being that she was a reliable, supportive, understanding and loving daughter, sister, mother and friend. Raymond and Helen Woollard, Ms Woollard’s parents, explained the devastating moment they were told their daughter had died, which was made all the more painful after the loss of their son some nine and a half years ago. Mr Woollard described his daughter as having ‘a heart of gold’ and that there is not a day that goes by where Ms Woollard is not thought of and missed. Helen Woollard described losing her only daughter as ‘beyond anything [she] could have ever imagined’. She ‘fell apart’ after her daughter’s death and her relationships have become strained. Ms Woollard explained that major milestones and celebrations are now ‘horrible’ without her children and that she misses the support she received from Ms Woollard. Ms Woollard eloquently and simply concludes ‘I miss her'.

69Ms Woollard’s brother and sister-in-law also detailed the devastating and unimaginable loss of a beloved sister and sister-in-law and the ongoing impact her loss has had on both their and their children’s lives. Mr Woollard’s brother explained that he has found it difficult adjusting to life as an only child.

70Ms Woollard’s daughter, Tayla, described her mother as her best friend, role model and the person she could go to for ‘absolutely everything’. She articulately explained the ‘soul crushing’ way she was told her mother had died, having only dropped her off an hour before the collision, and the realisation that her life was never going to be the same thereafter. Since her mother’s death, she has lost stability in many areas of her life, her mental health has declined and now has strained relationships with her family. She also feels the consuming loss of no longer having her mother to tell her that everything will be okay. She described the difficult process of vacating the home she shared with her mother soon after the collision ultimately experiencing periods of homelessness. She too spoke of the difficulty now celebrating milestones without her mother.

71Dirk Fisher, the victim of Charge 2, described how he struggles to reconcile that he was involved in an event that resulted in the death of a person. After the collision he has had difficulty sleeping, has become more emotional and relies more heavily on his partner’s support. He now struggles to enjoy his leisure activities due to the shoulder injury he sustained from the collision. He also experiences financial stress after funding a new car and the loss of work as a self-employed plumber. He is now overly cautious when driving and is concerned about the ongoing effect the collision will have on his mental and emotional health and on his finances.

72I wish to direct some comments to the family of Ms Woollard.

73There is nothing this Court can say or do that will bring back Nicole Woollard, or heal your significant grief and pain. The sentence I must impose can in no way be a measure of the worth of the life of Ms Woollard. Rather, the sentence I must impose is a reflection of a large number of factors which judges are required by law to take into account, only one of which is the impact on victims.

Personal circumstances

74You were 44 years old at the time of your offending. You are now 45.

75You were born and raised in Lilydale with your two older brothers. Your father was a caravan engineer and your mother worked in child care. You did not have a positive relationship with your father due to him being what you describe as an ‘abusive alcoholic’. You were the recipient of and witnessed physical violence within the home, reporting that your father would essentially ‘torture’ you and your family. Your mother left your father when you were around six years old and you did not see him again until you were 16. Your mother struggled to financially support three children as a single mother. She never re-partnered.

76You have a good relationship with your mother and middle brother but reported that you and your older brother do not get along. Your father passed away a few years ago, with you having little contact with him at the time of his death. You lived with your mother at the time of your offending and care for her as she has been unwell for some time.

77Your primary schooling was unremarkable however you exhibited some behavioural problems. You reported being both physically and verbally bullied. You completed Year 11 at Lilydale Technical School although you were suspended on multiple occasions for fighting. You were expelled in Year 12 for smoking cigarettes and commenced a chef apprenticeship soon after.

78You completed the apprenticeship however you injured your back and were diagnosed with scoliosis which impacted your ability to consistently work as a chef. Nonetheless you worked as a chef for approximately 10 years, on and off, before completing a roof plumbing apprenticeship. You maintained a positive working relationship with your employers but have been dismissed from three or four employers for drinking while working. Your longest period of employment was four years, working at the Lilydale International as a chef. You have worked primarily as a handyman for the last five years.

79You have a relevant prior criminal history dating back to 1996. Your history relevantly includes prior drug and driving offences including unlicensed driving and driving while disqualified, breaching an alcohol interlock condition and failing to stop a vehicle after an accident.

80You have one long term intimate relationship. You and your fiancé have been together for approximately 11 years. You have described your relationship positively. You have a five year old daughter together who has been diagnosed with autism. Your fiancé has been diagnosed with polycythemia, a rare form of blood cancer, and has been given a seven-year life expectancy. Your fiancé is unable to visit the prison as she has a prison Correction Reference Number and there is no one else who can bring your daughter. You have however had the opportunity to communicate with both of them by telephone and video calls every couple of days. Your fiancé is not currently employed due to your daughter’s caring requirements.

81In terms of your physical health, you have also been diagnosed with scoliosis, which leaves you bedridden at times, emphysema from smoking and gout in your arms and legs. You report that you had one of your kidneys removed about ten years ago due to drinking. You receive treatment for these aliments in custody however report that you have been unable to take pain medication as a result of your poor kidney function. You received a fractured skull in the collision and were hospitalised for three weeks before being transferred to prison. You report that you also fractured your leg which will need to be reset with two screws, although I note there was no material presented as to the nature of your injuries.

82A report prepared by Dr Alana Harridge, forensic psychologist, dated 21 May 2023 was tendered on the plea. The psychometric testing results supported diagnoses of Post Traumatic Stress Disorder (PTSD), Stimulant Use Disorder (Amphetamine type), Alcohol Use Disorder of moderate severity and Borderline Personality Disorder. Your Stimulant Use Disorder and Alcohol Use Disorder are in early remission in a controlled environment. At the time of interview you were also experiencing symptoms of anxiety and depression.

83Dr Harridge is of the view that it is likely that your exposure to childhood trauma contributed to the development of symptoms associated with your Borderline Personality Disorder.

84In terms of the offending before this court, Dr Harridge concluded that a number of factors likely affected your functioning at the time and contributed to your offending including your lack of prosocial supports and association with substance-using peers, emotional dysregulation which was exacerbated by your life stressors, your limited capacity to implement appropriate coping and problem solving strategies and your substance use which caused impaired decision making.

85Dr Harridge assessed your risk of reoffending as moderate to high noting:

He presents with a lengthy criminal history, history of education and employment problems, antisocial peer associations, history of problems with substance use, problems with emotional regulation, history of risk taking predominantly associated with driving offences, poor problem solving, and historical lack of prosocial supports.

86Two character references were tendered; one from your mother, Rosemary Dyer and one from your brother, Daniel Dyer. Your mother speaks of your remorse and self-inflicted punishment since the accident. She said that you are extremely hardworking, confirmed by your unwavering support as her carer. Losing you as a carer since your remand in custody has made completing her day to day activities more difficult. Your brother, who has physical and mental disabilities, states that you have also supported him where you can. He described you as a helpful and community orientated man who despite your difficulties with alcohol and methylamphetamines, have always been willing to help others. He also speaks of the enormous guilt you feel as a result of your conduct. It is clear from both letters that your mother and brother will continue to support you. 

Sentencing considerations

87Mr Oldham highlighted a number of matters in mitigation.

88First is your early plea of guilty. Your plea carries significant utilitarian value, sparing the time and expense of a jury trial and saving witnesses from having to give evidence. While the backlog of cases as a result of the pandemic has now eased, there are still some pandemic related delays and thus a moderate amelioration in sentence is still able to be taken into account.[1]

[1] Worboyes v The Queen [2021] VSCA 169, [39]; Biba v The Queen [2022] VSCA 168, [26].

89It was submitted that you have demonstrated genuine remorse as evidenced by your comments to Dr Harridge, where she states that you expressed remorse for your behaviour, especially at having caused the death of your friend, together with the comments in the personal references. I also take into account the views of Dr Harridge, where she notes that you have developed a degree of insight as to how your substance use continues to place you in positions of risk taking, in this instance significantly contributing to your conduct resulting in the death of Ms Woollard. As such I accept that you have, to a limited degree, expressed genuine remorse.

90Mr Oldham submitted that Verdins principle 5 has application relying on the conclusion of Ds Harridge that as a result of your current mental health vulnerabilities, in particular your PTSD symptoms, imprisonment would likely weigh more heavily on you. I accept that submission however I note that you are settled in custody in the mainstream, working as a billet and engaging in courses. Nonetheless in my view Verdins principle 5 is able to be taken into account in the sentencing discretion.

91Mr Oldham also submitted that your dysfunctional childhood and adolescence enliven principles in cases such as Bugmy v The Queen[2] and Director of Public Prosecutions v Herrmann[3]. Mr McCarthy, who appeared on behalf of the Director of Public Prosecutions, submitted that while your negative childhood experiences should be taken into account as part of your personal circumstances, they do not rise to the level of ‘profound childhood depravation’. However as noted recently by the Court of Appeal in Newton (a pseudonym) v The King:[4]

The High Court then observed that ‘the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending’. Nothing in this part of the Court’s judgment, however, imposed any requirement that childhood deprivation must be ‘profound’ before a sentencing judge is able to consider whether that deprivation might be relevant to the assessment of moral culpability. As was subsequently said in Sabbatucci:

Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[5]

[2] (2013) 249 CLR 571.

[3] [2021] VSCA 160.

[4] [2023] VSCA 22, [37].

[5] [2021] VSCA 340, [6].

92In my view your social disadvantage is clearly a relevant matter that I do take into account. However, properly analysed in the circumstances of this case, I am also of the view that the weight to be given to the Bugmy principles only reduces your moral culpability to a limited degree.

93I turn now to your prospects of rehabilitation. You have a long and relevant criminal history that involves driving offences, dishonesty and other drug related offending. You have been given opportunities to address your drug and psychological issues through community based orders and you have also served a number of periods in custody. You are 45 years of age and clearly at this stage you need significant treatment, support and supervision to properly address the issues that led to your offending. You have however settled in custody and are engaging in courses offered to you and you have a sportive partner. Nonetheless, in my view your prospects of rehabilitation can only be assessed as fair and depend on your continued and long term engagement with supports and services offered to you in prison and upon your release.

94Deterrence, both general and specific, just punishment, denunciation of your conduct and community protection are all prominent sentencing considerations in this instance. A very clear message must be conveyed that conduct such as yours that caused the death of your passenger and put innocent road users at serious risk will be met with stern consequences.

95In addition to the matters that I am required to take into account under s 5(2) of the Sentencing Act 1991 (‘Sentencing Act’), I must also take into account that Charge 1 is a standard sentence offence. The standard sentence for culpable driving causing death is 8 years imprisonment. Further, when fixing a non-parole period for a standard sentence offence, pursuant to s 11A(4)(c) of the Sentencing Act unless the court considers it is in the interest of justice not to do so, the court must fix a non-parole period of at least 60% of the relevant term.

96Having identified and considered the relevant factors in assessing the appropriate sentence as part of the instinctive synthesis, including the maximum penalty, the standard sentence and the serious nature of your offending, in this instance I have formed the view that the sentence I will impose on Charge 1 falls above the prescribed standard sentence.

97Finally, as you also fall to be sentenced on Charge 2, which placed others at risk of death as a result of your dangerous driving, I am mindful that some cumulation must be ordered to reflect the separate conduct and separate victims. However I accept that Charge 2 is part of the same conduct that gave rise to Charge 1. Further, in consideration of the overall gravity of your conduct represented by the two charges on the indictment, I also take into account the principle of totality.

Sentence

98Mr Dyer, would you please stand.

99Mathew Dyer, on Charge 1 culpable driving causing death, you are convicted and sentenced to 9 years and 6 months imprisonment.

100On Charge 2, reckless conduct endangering life, you are convicted and sentenced to 3 years imprisonment.

101On Summary Charge 5, commit indicatable offence while on bail, and Summary Charge 8, driving unlicenced, you are you are convicted and sentenced to 1 month imprisonment on each charge.

102On Summary Charge 9, use unregistered motor vehicle, and Summary Charge 10, fraudulently use a registration label, you are convicted and fined $500 on each charge.

103I direct that 9 months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1, making for a total effective sentence of 10 years and 3 months. I direct that you serve 7 years and 6 months before becoming eligible for parole.

104Pursuant to s 18 of the Sentencing Act, I declare that 358 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

105In relation to Charge 1, pursuant to s 89(1)(c) of the Sentencing Act you are disqualified from obtaining a licence for a period a period of 8 years from today. Further, pursuant to s 89C of the Sentencing Act, I formally find that that Charge 1 was committed while you were under the influence of a drug which contributed to the offence.

106In relation to Charge 2, as the offending arose out of the driving of a motor vehicle while you were under the influence of a drug, pursuant to s 87P(f)(iii) of the Sentencing Act, it is a serious motor vehicle offence and as such you are also disqualified from obtaining a licence for a period a period of 8 years from today in relation to Charge 2.

107Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 13 years imprisonment with a non-parole period of 9 years and 6 months.