Director of Public Prosecutions v Ehalape-Gamage
[2022] VCC 554
•29 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01183
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THARANGA EHALAPE-GAMAGE |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 03 March 2022 | |
DATE OF SENTENCE: | 29 April 2022 | |
CASE MAY BE CITED AS: | DPP v Ehalape-Gamage | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 554 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Dangerous driving causing death – Dangerous driving causing serious injury – No early plea of guilty – Custody management with physical ailment – Term of Imprisonment whilst on permanent residency visa
Legislation Cited: Sentencing Act 1991 (Vic); Migration Act 1958 (Cth).
Cases Cited:R v Verdins [2007] 16 VR 269; Farmer v The Queen [2020] VSCA 140; Pan v The Queen [2020] VSCA 42; Peers v The Queen [2021] VSCA 264; Singh v The Queen [2021] VSCA 161; DPP v Mica [2021] VCC 1876
Sentence: Total effective sentence of 3 years imprisonment, with a non-parole period of 18 months.
Driver’s licence cancellation and disqualification for a period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. O’Doherty (Trial) | Office of Public Prosecutions |
| Mr D. Porceddu (Plea & Sentence) | ||
| For the Accused | Mr J. Shaw Mr M. Radzaj | D & M Lawyers |
HER HONOUR:
1On 9 December 2021 a jury found you guilty of two charges of dangerous driving death and one charge of dangerous driving causing serious injury.
2These offences occurred on 7 April 2019 when you were driving home to Mildura, from Swan Hill. You, your wife, your mother, and your two children had attended a festival in Swan Hill the day before. You had stayed the night in Swan Hill, and the material before me indicated that you were sufficiently rested.
3You left Swan Hill in the early afternoon with the plan to get the children back to their mother by 6 pm. You mother was sitting in the front seat, your three year old son was sitting in a booster seat behind you, and your five year old daughter, Vinuthi, was also in a booster seat, sitting behind your mother.
4Approximately 30-40 minutes into the drive, your son began to vomit, so you pulled over, cleaned him up, and changed his clothes. When you got back into the car you made sure the seatbelts on each child were properly closed and in place. Each child also had a strap across the forehead to hold their head up if they fell asleep.
5Your recollection of the drive effectively ceases from that point.
6As you were approaching Robinvale another car was travelling behind you driven by Mr McFarlane. He thought you were driving at a reasonable pace, so he drove behind you at a distance of around 50 metres, travelling just below the posted speed limit of 100 kph. He said that as far as he observed you were driving normally.
7Approaching Robinvale on the Murray Valley Highway there are a series of crests. Due to these crests, visibility ahead can be blocked by the rises and dips in the road. As you drove down the incline of one of these crests your vehicle moved wholly onto the wrong side of the road. It is unclear why this happened. Mr McFarlane’s evidence was that he did not see your car move onto the wrong side of the road, although you were driving closer to the centre line than he was. In view of the distance that he was behind your vehicle, and the similar rate of travel, the period of time during which your car was out of his view was only a few seconds.
8Mary Williams was driving in the opposite direction to you. She was driving at the speed limit. She was very familiar with that portion of the highway. As she drove over one of the crests she saw your car in her lane, very close to hers. She reacted by starting to steer to her right and then the impact between your vehicles happened. Both cars reacted to the impact with Mrs Williams’ car coming to rest across the middle of the road close to the impact site and yours close by, partially off the left of the road.
9One of the issues in the trial was why your vehicle was on the wrong side of the road. The prosecution case was that for unknown reasons your car was on the wrong side of the road, and that whilst Mrs Williams’ car was slightly over the centre line at the point of impact, this was because she was trying to avoid your car. The physical evidence placed your vehicle wholly in the wrong lane at least 14.8 metres[1] before the point of impact, and with the left front of your car impacting the right front of Ms Williams’ car just into what ought to have been your lane of travel.
[1]Length of tyre mark 1, which commenced on the far-right fog line - see Transcript 269.26, and scale plan of scene.
10Mr McFarlane’s evidence was that from his perspective, which allowed him to only see the roof of Mrs Williams’ car, the oncoming vehicle appeared to be somewhat across the centre line of the highway. His estimate of the distance between your and Mrs Williams’ car when he made this observation was 16-20 meters, and he said that the collision occurred shortly thereafter. This evidence is difficult to correlate to the physical evidence and Mr McFarlane’s other evidence most notably that he did not see your vehicle in the wrong lane at all. It is consistent with Mrs Williams’ evidence that she, on seeing your car in her lane, began to veer to the right to avoid you.
11The impact caused fatal injuries to your daughter and to your mother. Your son was conveyed to hospital but did not suffer serious physical injury.
12Mrs Williams’ was transported to Mildura Hospital and then to the Alfred Hospital in Melbourne. She suffered spinal injuries and damage to her ribs, with consequential injury to her lungs, requiring them to be re-inflated. She also had broken bones in her hand and heel. She was in intensive care for a week and then spent another 10 days in the trauma unit before being moved onto rehabilitation, where she spent 6 weeks. At the time of the trial she had continuous pain, due to the orthopaedic repair hardware in her spine.[2] Being able to walk again without support took many months, and she continues to take part in exercise classes and physiotherapy to aid her recovery.[3]
[2]Transcript 75
[3]Transcript 76
13You were also injured in the collision. You required surgical reconstruction of your right knee and ankle, part of your bowel had to be removed and even at the time of your plea hearing you still had in place a colostomy bag. The hospital records state there was a blow to your head, but no loss of consciousness.[4]
[4]See Report of Dr Sullivan [30].
14The jury were entitled to accept and act upon Mrs Williams’ evidence, and to reject the scenarios raised by Dr Richardson, and your counsel. Their verdicts indicates that they rejected as a reasonable possibility that you had moved onto the wrong side of the road to avoid Mrs Williams’ car.
Gravity of Offending
15The evidence shows that in the space of the 2 or so seconds between Mr McFarlane losing sight of your car, and the collision, your car moved wholly into the wrong lane of the two-lane highway. Mrs Williams’ saw your car did not have time to move her car out of her lane to avoid you. The tyre marks left by your car show that the driver’s side wheels of your car were on the outer line of the right hand side of the road, from the perspective of your direction of travel. They then curved to the left, showing some steering input towards the centre line with the impact shortly after.
16There is no evidence that you were fatigued. You did not have any alcohol or drugs in your system. Mr McFarlane thought you were driving normally for the period he was following you, and you were not exceeding the speed limit.
17There is no known explanation for why you were on the wrong side of the road. I can make no finding as to whether you were distracted by something, or merely inattentive. Whatever the reason, for the period of time it took your vehicle to move wholly onto the wrong side of the road, until just before the collision with Mrs Williams’ car, you were driving in a dangerous manner.
18You were driving on a two lane road, near the speed limit of 100 kph, with three passengers. There is always a need to take care when driving, and the speed at which you were travelling on a highway meant that the risk of harm to others was all the greater if there was some fault in your driving. Taking into account the circumstances of the driving, I consider that your culpability in failing to stay on the correct side of the road was above the lowest level of culpability for this offence. At the same time, the absence of aggravating factors means that your culpability was not in the mid or high range.
19The consequences of the collision were significant and tragic. Your mother, Kusumawathi Eramudugoda-Gamage, and your daughter Vinuthi lost their lives unexpectedly. Each has had cut short the opportunity to live, to enjoy the varied emotions and experiences of life, to learn, and to enrich their own lives and the lives of others.
20You and your wife have lost your daughter, who was just starting her life. Vinuthi was a bright, joyous girl, beloved by her family.
21Mrs Williams’ has suffered serious injuries to multiple parts of her body which have required significant treatment. Even with her recovery proceeding well she still suffers constant pain and discomfort.
22Mrs Williams’ provided a victim impact statement. The physical injuries she has have a significant impact on her life. She is not able to care for her grandchildren as planned, is less social, and is upset that her scars frighten her grandson. She is fearful and wary when driving, with her anxiety escalating when she has passengers in her vehicle. She has struggled psychologically from the trauma, from the impact of the physical injuries on her quality of life, and with being a survivor when others died.
23Your son, who is now 6 years old, is sad that his sister died, and feels very sad when he thinks about her. He also misses his grandma. He remembers the event and that he could hear you screaming for someone to help your daughter. He could not breath. He drew a picture of himself and his sister as happy and colourful when together, and one of himself as sad and colourless without her.
24A psychological report was provided about your son. The author reports that:[5]
Following the trauma of the motor vehicle accident, he presents with childhood traumatic grief, a greater than usual sadness and upset and a more intense reaction with PTSD. Following the sudden and catastrophic death of his sister and grandmother he experienced secondary adversity, that being the loss of contact with his father for a prolonged period of time. His father is no longer living with the family and the interactions he now has with his father have been irregular.
The family dynamic has changed and identification with his deceased sister and father causes distress. [He] no longer has his sister to play with and his father and mother are estranged. Following the trauma, he initially showed agitated and confused behaviour, having physical symptoms such as asthma, problems concentrating, anger, denial and worry about not being loved by his father.
He has demonstrated lowered self-esteem and feelings of displacement, telling his mother that his father does not see him/love him because he only loves “sister.” These symptoms interfere with his ability to grieve and to have comforting memories of his sister who died.
…
When he starts to remember, he tends to segue into thoughts about the terrifying manner in which the grandmother and sister died in the transport accident, for example, thinking about how his sister and grandmother died and how his father was “screaming.” [He] told me that “grandmother fell…sister fell…dad screaming” and will say no more.
[5]Report of Donna Robertson dated 24 August 2021, page 1-2
25The mother of your children provided a victim impact statement in which she described her initial grief and reaction to the loss of her daughter, and the difficulty of coping and grieving when she also had to look after her son. This process was made more difficult and complex due to the separation between you at the time of the collision, and since. She has felt conflicted about maintaining some loyalty to you in the face of the events, and the difficulties in your relationship. She struggles with caring for her surviving child, both in practical terms but also in dealing with his response whilst trying to manage her own grief. She encapsulated her emotions by saying:
There is no feeling of wellbeing or enjoyment in my life and I feel there may never be with almost always sensing the loss of my child. I felt a part of my life had been completely stripped away, while the other part feels a strong sense of responsibility for the growth and wellbeing of my son.
26She is stressed, anxious and depressed. She has to balance work with caring for her son, and going to appointments to assist with their mental health and grief. She greatly misses her daughter and grieves for the life milestones that Vinuthi will never have and which she cannot share with her. A report from a consultant psychiatrist from August 2019 opines that her initial acute grief and stress had been evolving into chronic PTSD, and that she was also suffering a Major Depressive Disorder with anxious distress. She was also suffering from protracted unresolve grief. Updated reports from 2020 showed that the process of coping and recovery from the disorders noted above was slow, which is reflected by her Victim Impact Statement.
27Your mother was 70 years old when the collision occurred and she died. She had lived in Sri Lanka all her life, looking after her family and children, and running a school. She came to Australia to visit when your children were born and was visiting you and your family again in 2019. You have lost your mother, your son has lost his grandmother, and with her death your brother, who lives in Sri Lanka, has lost his remaining close family member, aside from you.
Personal Circumstances
28At the time of collision you were 36 years old, now you’re 39. You were born and raised in Sri Lanka. Your father worked as a farmer and your mother raised the children and looked after the family. She was also involved in running a Buddhist school.[6] You have one younger brother, who still lives in Sri Lanka, although he visits you when he can.
[6]Report of Dr Sullivan [7].
29You completed secondary school and then obtained a qualification to be a mechanic. You found work in this area in Sri Lanka initially, and then in Dubai from 2007. You applied to come to Australia, in 2012.
30In 2011 you married your ex-wife by an arranged marriage. She had employment as a government officer, in Sri Lanka. You moved to Australia together in August 2012. Your wife did not work, and you continued to work as a motor mechanic. You were able to get a permanent residency visa.
31Your daughter was born in July 2013, and your son in January 2016. Your relationship with your wife was marred by incidents of domestic violence by you, and you had court appearances in March 2016 and July 2019 for incidents of domestic violence. You and your wife had separated in February 2019, and at the time of the collision an intervention order was in place. On account of this order you, your mother and your children travelled separately from your wife to the festival in Swan Hill. When this collision occurred, your wife was also travelling from Swan Hill to Mildura, by bus.
32You are now divorced and whilst you are permitted have contact with your son pursuant to Family Court orders, you have not had contact with him for some time due to an intervention order being in place.
33You have a good work history, and but for the injuries you suffered in the collision you would, I expect, still be working. It is to be hoped that once these legal proceedings have concluded, and your physical recovery has progressed, that you can return to work. Being out of work has had a significant impact on your financial position. You are still suffering from the injuries you received, with ongoing pain, a colostomy bag, and the need for regular physiotherapy.
34At the time of the collision, and now, you live with friends in Mildura. You made friends in Mildura and the surrounding area, and were involved in the local Sri Lankan community events.
Mental State
35Following the collision you sought assistance for your mental health from a counselling clinic in Mildura. Over the period of May 2020 to August 2021 you had 21 counselling sessions. A report from that psychologist noted that you presented with symptoms that met the criteria for a diagnosis of PTSD, arising from the trauma of the collision.[7] You also experienced chronic feelings of loss and grief for the deaths of your mother and daughter.
[7]Report of Mr Webster; see also report of Ms Robertson dated 15 June 2019.
36Your psychologist considered that your mental health would worsen if you were imprisoned, including because this would mean loss of contact with your son.[8] He noted an improvement in your mental state over the treatment period, with you being less likely to cry and your mood having improved. He noted that your improved physical state had a role in your improved mental state.
[8]Report of Mr Webster, page 3
37You were assessed by Dr Sullivan in January 2022. You reported recurrent headaches since the collision, in addition to the physical injuries. You reported problems with memory and word-finding, and that when you tried to do employment related courses you were unable to manage the tasks of study.[9] At the time of the assessment you were taking prescribed anti-depressant medication and paracetamol as needed.
[9]Dr Sullivan [15]
38You reported to Dr Sullivan that you were experiencing profound grief and loss, intrusive flashbacks, intrusive thoughts and feelings impacting your driving, difficulty sleeping, nightmares, loss of appetite, tearfulness, and general sadness.
39Dr Sullivan considered you meet the diagnostic criterial of PTSD, and for Major Depressive Disorder, recurrent episode, moderate severity.[10] As to the latter diagnosis, Dr Sullivan said:
The contributing factors to this involve grief and loss, chronic pain and impairment in functioning, and the effect of protracted legal matters. Also contributing is a conflicted relationship with his ex-wife and limited access to his son, as well as financial problems, unemployment and social isolation. It is also likely that mood disorder contributes at least mildly to his subjective experience of pain.
[10]Dr Sullivan [50], [51].
40Regarding your cognitive functioning, Dr Sullivan thought it possible you suffered a mild traumatic brain injury in the collision, although this has not been assessed by a neuropsychologist, or possibly that your clinically significant mood disorder was impairing your cognitive performance. [11]
[11]Dr Sullivan [49], [52]
41As to your prognosis, Dr Sullivan said:[12]
If his physical impairments improve over time, it is likely that he will achieve at least a modest recovery, although it is unlikely that he will return to his premorbid level of functioning. He has some resilience factors, in particular religious faith. He has been able to use treatment effectively, complying with medication, seeking help and implementing strategies and interventions recommended by psychologists.
[12]Dr Sullivan [58]
42As to the potential impact of imprisonment upon your mental and physical health, Dr Sullivan said:[13]
I consider that incarceration would be more burdensome for Mr Gamage, due to mental disorder. He would not have access to the same evidence based treatment such as eye movement desensitisation and reprocessing. He would not have access to the same frequency or intensity of psychological support compared to the community. His physical impairments and colostomy would also cause significant problems for him in custody, and he would likely be vulnerable to bullying and negative treatment in the correctional system, particularly by other prisoners.
[13]Dr Sullivan [30]
Verdins
43Defence counsel made a number of submissions based upon Dr Sullivan’s opinions, which I will deal with, in turn:
(a) I accept that your mental state is relevant to the kind of sentence to be imposed and the conditions in which it should be served, but note that this is not a factor which will overwhelm other sentencing principles;
(b) For the reasons I have addressed earlier, in view of your positive history and lack of criminogenic traits, I will not be giving any weight to specific deterrence in sentencing you;
(c) I accept that by reason of your mental health a sentence of imprisonment would weigh more heavily on you than a person without your mental health issues. I have noted Dr Sullivan’s opinion on this issue. I will mitigate your sentences to a moderate degree on this basis;
(d) Dr Sullivan, an experienced and skilled provider of reports in the forensic context, does not say that there is a serious risk that your mental health would be significantly adversely affected. Whilst I accept that there would be some negative impact on your mental health, the report of Dr Sullivan, and the other material does not in my view establish that there is a serious risk that imprisonment would have a significant adverse effect on your mental health.
Extra-Curial Punishment
44The collision caused by your dangerous driving has had a significant impact on you. You have lost your mother and daughter. The collision and its consequences, as well as the separation from your wife, have had a significantly negative impact on your relationship with your son. Furthermore, you yourself suffered significant injuries and are still in recovery. I was told you are having physiotherapy weekly, and you still have a colostomy bag.
45I take into account that you have also suffered, in these ways, from the offending.
Rehabilitation
46An issue that arises in any case is the rehabilitation of the offender, and in association with that the need to deter the offender from other criminal behaviour in future.
47In your case, there was no drug or alcohol use, or other poor driving behaviour, nor are you a person with a poor driving record. Your rehabilitation and deterrence do not give rise to any concerns.
48Whilst your history of offences involving domestic violence are a concern, I do not think it appropriate or necessary that the sentences I impose for this offending carry any aspect of deterring you from other offending.
Delay
49The collision occurred on 7 April 2019, and you were finally charged in May 2020. This passage of time whilst regrettable, is not unusual in cases of motor vehicle collisions, which are complex to analyse and assess. Due to the pandemic, adjournments to enable your legal representatives to get the expert report, and the difficulty of listing matters on circuits, the trial did not commence until late November 2021. Whatever the causes of the delay, it is now just over three years since the collision.
50I accept that period of time has been made more stressful for you, with the legal proceedings being at first in potential, and then in actuality hanging over your head.
51Another aspect of delay can be established rehabilitation. In your case, this is not really an issue, as you are not a person at risk of committing this type of offence again.
Remorse
52I accept that you greatly regret having caused the deaths of your mother and child, and the injuries to Mrs Williams. Whilst you ran a trial, this does not detract from the sorrow you feel for the consequences of your driving. In circumstances where you do not recall the collision, and where you received legal advice about your prospects of being found not guilty, I do not treat the running of a trial as detracting from your remorse. Dr Sullivan said[14]
“Mr Gamage appears devastated by the death of his daughter and his mother and is tormented daily by this. His regret for the other driver’s injuries appears genuine. I note that his distress is exacerbated by difficulties in contact with his son related to marital disputation.”
[14]Dr Sullivan [61]
References
53References were provided from three of your friends, and from your brother. Your friends describe you as decent and hardworking and praise your involvement in the Sri Lankan community. You have been helpful to your friends and people in your community and are a trusted friend. Your love for your son is noted, as well as the difficulties you have had since the collision.
54Your brother stayed with you when you were released from hospital and describes you as “extremely depressed and heartbroken with the unexpected loss of our loving mother and niece.” He says you “found it very difficult to cope up with the physical disabilities while bearing the loss of [your] beloved mother and [your] 6-year-old daughter.”
Deportation
55You are still on a permanent residency visa. If you are sentenced to terms of imprisonment which in aggregate exceed 12 months, your visa will be cancelled. Because you have lived in Australia for less than 10 years, in view of this and your earlier offending the Minister could order your deportation, even without the trigger of a prison sentence. The cancellation of your visa can be reviewed but the process of cancellation is put in place by the Migration Act 1958 (Cth).
56I accept that if you are sentenced to a term of imprisonment, particularly one that exceeds 12 months in aggregate, this will cause you significant concern. Deportation would bring the life you have been making here since 2012 to an end and would separate you from your surviving child, and your friends and community here in Australia.
Burden of Imprisonment
57An Affidavit was provided by the prosecution regarding access to medical care whilst in custody.[15] As a new prisoner you will be assessed on going into custody, and referrals and plans made. There would, I anticipate, be some interruption of your treatment for your physical and mental health. Whilst a prisoner can, at their own expense and subject to approval, access their own treaters, this would be more complicated than accessing treatment in the community.
[15]Affidavit of S Swanwick affirmed 21 April 2022, Affidavit of J Hosking sworn 20 April 2022
58I accept that the ongoing physical impairments you are coping with, and the pain, as well as the colostomy will present difficulties for you well beyond those experienced by a person in custody without those issues. Whilst Justice Health provides needed treatment, this will not be the same as the care you are currently receiving in the community.
59I accept Dr Sullivan’s opinion that your physical issues would make you vulnerable to bullying and negative treatment in custody.[16] The affidavit of Ms Hosking addresses how prisoners are assessed when coming into custody. No pre-judgment can be made of how you will be classified or placed in custody.
[16]Dr Sullivan [60]
60I consider that being imprisoned will be very difficult for you, for a number of reasons including that it would be your first time in custody, custody is stressful and upsetting and would likely cause some deterioration in your mental state, you are likely not to have the same access to treatment that you are presently receiving, you would also be burdened by your physical injuries, you would be concerned about your potential deportation, you would be isolated from friends and have limited family support, and there is a reasonable likelihood you would not see your son whilst incarcerated.
61The effect of the pandemic on persons in custody is another relevant issue. Corrections Victoria had to limit personal visits, and whilst efforts have been made to ensure that prisoners can use online communication tools, this is by no means the same as an in person visit. Furthermore, lockdowns or restricted time out of cell has been common, and there is reduced access to courses.
Mercy
62Defence counsel submitted that yours was a case where the court could and should act mercifully. By reason of a short period of dangerous driving you ended the lives of two people whom you loved, caused serious injuries to an innocent passer by, Mrs Williams, and yourself suffered significant physical injuries. The effect of the collision has been profound on your life, and future.
63Mercy can have a significant impact upon a sentence and may lead to a result which otherwise would seem to not give proper effect to other sentencing principles. In this case, however, I am required not only to consider the normal common law and legislative provisions, but also the provisions of s5(2H) of the Sentencing Act 1991.
Section 5(2H)
64Charges 1 and 2 are category 2 offences under the Sentencing Act 1991. Section 5(2H) provides that when sentencing on a category 2 offence I must impose a sentence of imprisonment which is not combined with a CCO, unless one of the exceptions applies. Your counsel relied on the exceptions under s5(2H)(c)(ii) and (e).
Section 5(2H)(c)(ii)
65This exception requires you to establish on balance of probabilities that you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
66The impaired mental functioning relied upon are the diagnoses of PTSD, and Major Depressive Disorder. I accept that these conditions amount to impaired mental functioning for the purposes of this section. The issue is whether the evidence establishes that because of these you will be being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
67Defence counsel pointed to the symptoms you are experiencing regarding your mental health and submitted that the combined effect of these, in the context of reduced treatment access in custody, meets the legislative requirement.
68I note that whilst Dr Sullivan said that incarceration would be more burdensome on you, by reason of the mental disorders, he does not address the extent to which that is so.
69I must make my own assessment, based on the evidence before me. As I have previously said, I accept that prison will be more burdensome on you, for many reasons, including your mental health. I do not, however, consider that on the balance of probabilities you have established that your mental health means that you would be subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
Section 5(2H)(e)
70Your counsel also argued that the range of factors relied upon on the plea in combination amounted to substantial and compelling circumstances which are exceptional and rare, justifying me not making an order for imprisonment which is not combined with a CCO. He argued that a wholly non-custodial disposition was open.
71In making this evaluation I am required by s5(2HC) of the Sentencing Act to:
(a) Regard general deterrence and denunciation of your conduct as having greater importance than the other sentencing purposes set out in s5(1) of the Sentencing Act;
(b) Give less weight to your personal circumstances than to matters such as the nature and gravity of the offence;
(c) Not have regard to your previously good character, other than taking into account your absence of prior convictions, if that were the case;
(d) Not have regard to your prospects for rehabilitation;
(e) Have regard to Parliament’s intention that an order for imprisonment not combined with a CCO should ordinarily be made; and
(f) Consider whether the cumulative impact of the circumstances of the case justify a departure from such a sentence.
72The exception requires me to consider whether the combination of circumstances before me are substantial and compelling and exceptional and rare so as to justify departure from Parliament’s intention as to the type of sentence which should be imposed for the offence of dangerous driving causing death. This is a high test.[17] The Court of Appeal has said:[18]
In many cases, given the type of offences within category 2, a term of imprisonment will be inevitable. In some cases, the operation of s 5(2H) will be harsh. … To a degree paragraph (2H)(e) guards against the risk of injustice. But the stringency of the test cannot be avoided.
[17]Farmer v The Queen [2020] VSCA 140, [51].
[18]Ibid, [52]
73Yours is a very tragic case. By reason of a short period of dangerous driving you caused the death of two people and have permanently and profoundly changed your life, and the lives of your former wife, your son, and Mrs Williams’. Your culpability for these offences is at the lower although not the lowest end. In making this assessment I must have regard to the circumstances of the offending, and its impact upon the victims, as well as your personal circumstances.
74Taking into account all the facts of the case, and the requirements of s5(2HC) and s5(2I)), I cannot conclude that the combination of circumstances justify departure from Parliament’s intention as to the type of sentence to be imposed for the offence of dangerous driving causing death.
Current Sentencing Practice
75I have considered the facts and sentences in several cases.[19] These cases provide some assistance as to current sentencing practice, but do not set upper or lower limits on the range of sentences which might be appropriate in any particular case. A factor that the offenders in those cases were able to rely upon, which you cannot, is that they pleaded guilty and were given a discount in sentence for the utilitarian benefits of not running a trial.
[19]Pan v The Queen [2020] VSCA 42; Peers v The Queen [2021] VSCA 264; Singh v The Queen [2021] VSCA 161; DPP v Mica [2021] VCC 1876
Other Sentencing Factors
76General deterrence is an important factor in this sentencing exercise. When driving on the highway at or near 100 kph, on a two lane road, the potential of harm to other people, even if only by reason of short periods of inattention, is very real. Members of the community must understand that if they drive dangerously and cause death or serious injury, in addition to the natural grief they may feel they face the very real prospect of a term of imprisonment.
77I must also give effect to the sentencing purposes of just punishment and denunciation of your conduct.
Sentences
78The sentences are:
§Charge 1 – 2 years imprisonment
§Charge 2 – 2 years imprisonment
§Charge 3 – 1 year imprisonment
79Nine months of sentence on Charge 2 and 3 months of sentence on Charge 3 are to be served cumulatively upon each other and on the sentence on Charge 1. The total effective sentence is therefore 3 years. I set a non-parole period of 18 months.
80There is no pre-sentence detention to declare.
81Pursuant to s89(2)(a) of the Sentencing Act 1991, your driver’s licence is cancelled and you are disqualified from obtaining a licence for a period of 18 months, to commence today. This applied to Charges 1, 2 and 3.
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