Director of Public Prosecutions v Fagan
[2023] VCC 1434
•18 August 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne KOORI COURT DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02040
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALISHA FAGAN |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 March 2023, 9 May 2023, 15 May 2023 | |
DATE OF SENTENCE: | 18 August 2023 | |
CASE MAY BE CITED AS: | DPP v Fagan | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1434 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: Koori Court Jurisdiction – Drive in a manner dangerous causing death – Possession of a drug of dependence – Related summary offences – Plea of guilty – Category 2 offence – Application of Bugmy principles – Application of Verdins principles – Youth – Extra-curial punishment – Akoka time – Cultural engagement
Legislation Cited: Sentencing Act 1991
Cases Cited:DPP v Browne [2023] VSCA 13; Peers v R [2021] VSCA 264; DPP v Lombardo [2022] VSCA 204; Bugmy v The Queen 249 CLR 571; Akoka v The Queen [2017] VSCA 214; Verdins v The Queen (2007) 16 VR 269.
Sentence: Total effective sentence of 2 years’ and 6 months’ imprisonment with a non-parole period of 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Churchill | Office of Public Prosecutions |
| For the Accused | Mr M Murphy | Leanne Warren & Associates |
HIS HONOUR:
1Alisha Fagan, you have pleaded guilty before me in the Koori Court jurisdiction to a charge of dangerous driving causing death. You have also admitted relevant summary charges:
· Driving whilst suspended
· State false name and address
· Exceed prescribed concentration of alcohol
· Possess controlled weapon
· Failure to give information about the driver of a vehicle/
· Charges of contravening bail conditions and committing an indictable offence whilst on bail.
2Dangerous driving causing death carries a maximum penalty of 10 years imprisonment. You have no criminal record. You do have a very relevant Road Safety Act prior history. You were on four sets of bail for pending matters at the time of the offending.
Circumstances of Offending
3At approximately 12:45 a.m. on the 9th June 2022 you were driving when you shouldn’t have been because your learner’s permit had been suspended due to an appalling recent driving record.
4You were driving with alcohol in your system. This exceeded the prescribed PCA for someone in your circumstances. You caused a fatal collision by speeding through a residential street and failing to give way at an intersection, colliding with another vehicle, killing the sole occupant. You were 21 at the time.
5Your dangerous driving caused Sedat Hassan’s death. He was driving home. He was 69 years of age, a retired father and grandfather, loving and much loved husband, living in Sunshine West at the time of his death.
6The collision occurred on Glengala Road where Links Street intersects in Sunshine West. Links Street is a residential street. The applicable speed limit is 50 km/h and this was well sign-posted at the time. At the intersection the appropriate signs and line markings were present to indicate the need to give way to traffic. The point of impact was located within the intersection in the eastbound lane of Glengala Road.
7You had been drinking wine earlier in the evening. You had friends in the car with you. At approximately 12:45 a.m. you were travelling north, in excess of the speed limit, on Links Road, facing the Give Way signs. You failed to give way and sped through the intersection. At the point of impact with the deceased’s Honda sedan it is estimated your speed was 78 km/h.
8Your car impacted the driver’s side of the Honda causing substantial damage and the tragic and untimely death of Mr Hassan. The force of the collision caused both vehicles to spin out of control and collide with a further two vehicles which were parked in the shopfront parking on the north-east side of the intersection causing substantial damage. The Honda came to rest approximately 25 metres from the point of impact. Your vehicle travelled 16 metres from the point of impact.
9Your passengers fled the scene. You remained at the scene until emergency services attended. You told a bystander that you were not the driver of the car but a rear seat passenger.
10When police attended you maintained that fiction. You also provided a false name and address. You also told police at the scene that four males you did not know were in the car with you, one being the driver, and that you did not know their names. You were further interviewed at Sunshine Police Station and maintained your false version.
11You were breath-tested at the scene indicating a BAC of .027%. You gave a blood sample several hours later revealing a BAC of .011%. You of course shouldn’t have been driving at all. If authorised to drive, which you weren’t, you would have been required to drive with a 0% BAC.
12You were on bail at the time of the commission of the offence. A 10pm curfew was one of the conditions of that bail. A further condition of that bail that you breached was a condition prohibiting you from driving a motor vehicle.
13You were remanded in custody on 9 June and granted bail 76 days later on 24 August 2022.
Victim Impact Statements
14Sedat Hassan was a much-loved member of his family. The significant loss experienced by his family is eloquently detailed in the victim impact statements.
15The impacts to Cemal Hassan, Kadir Hassan, and Balkiz Hassan are devastating and enduring. The enormity of their loss, their grief and the far-reaching and permanent disruption to every aspect of their life, cannot be summed up in words. Their statements are moving and worthy of deep reflection on their loss.
16I take the far reaching and devastating impacts upon each of them into account. The sentencing process in cases such as these can never reflect the enormity of their loss.
Gravity of Offending
17Dangerous driving causing death is an inherently serious offence given the devastating impacts. The community is deeply concerned about instances of this offence. Where the subjective responsibility for the dangerous driving is other than low a jail term involving a head sentence and a non-parole period will almost always follow.
18This was emphasised in February this year in a Court of Appeal case of DPP v Browne.[1]Browne was a case where the dangerous driving of a buggy caused the death of the driver’s 2 year old son.
[1] DPP v Browne (‘Browne’) [2023] VSCA 13
19The Court in Browne stated at [40]:
“In Stephens the Victorian Court of Appeal stated that , although the offence of dangerous driving causing death encompasses a very wide range of conduct, it ‘is likely to receive a significant term of imprisonment.’ The Court went on to say that, where an offender’s level of moral culpability is low, it may be appropriate for the sentencing court to depart from the usual disposition of a custodial sentence.”
20And at [44]:
“The inappropriateness of a CCO as a sentencing disposition for the offence of dangerous driving causing death in the vast majority of cases was emphasised by this Court more recently in Peers.
The case of Peers involved a young female offender who attempted to overtake a truck on a two-lane road which narrowed to a single lane road. The speed of the vehicle was estimated at 128.7 kilometres per hour, the speed limit was 100 kilometres per hour. When the offender realised that she did not have sufficient time to overtake the truck, she applied the brakes suddenly and lost control of her car, resulting in it going off the road, impacting a large tree and rolling over. Her front seat passenger died as a result of the collision. She suffered from a number of mental conditions, including PTSD.”
21In Peers v R[2] the sentencing judge assessed moral culpability as neither high nor low. The sentence imposed was 30 months’ imprisonment with a 12 month non-parole period. On appeal Ms Peers was re-sentenced to 20 months’ imprisonment with an 8 month non-parole period.
[2]Peers v R (‘Peers’) [2021] VSCA 264
22The Court in Browne referred with approval to the following statement from Peers:
“This Court has previously noted that the offence of dangerous driving causing death is a serious one, and ‘it is difficult to see how any sentence other than one of immediate imprisonment could possibly meet the needs of general deterrence, adequate punishment, and denunciation’.
[E]ach case must be considered having regard to its own facts. In our view, a term of imprisonment is required. The speed at which the applicant drove and the overtaking manoeuvre plainly rendered the driving dangerous and general deterrence is important ... It is the necessary reality for offending of this kind that people with unblemished records, undoubted remorse, and with little or no prospect of re-offending, will receive an immediate term of imprisonment”[3]
[3]Browne at [46]
23In DPP v Lombardo[4] it was observed that non-custodial dispositions are exceptional and that the exception applies ‘where the offender’s moral culpability is low, such as where there has been momentary inattention or mis-judgment.
[4]DPP v Lombardo (‘Lombardo’) [2022] VSCA 204 at [100].
24What flows from the decisions in Browne, Peers and Lombardo is that a key consideration in determining the appropriate sentence is an assessment of subjective culpability for the dangerous driving that resulted in the death of another. This assessment is also relevant to the evaluation required when considering the exception relied upon in s5(2H).[5]
[5]Sentencing Act 1991
25The objective gravity of your offending is at least mid-range. You were an inexperienced and unlicensed driver, driving at 28km/h over the speed limit in a residential street at night. You drove through a give way sign at this speed, failing to give way and colliding with vehicle travelling appropriately along the carriage way.
26You were unlicensed. You should not have been driving at all. Further, you were on four sets of bail relating to prior instances of high-speed driving. Your bail conditions prohibited you from driving. You had alcohol in your system whilst driving. Your subjective culpability must also be assessed as at least mid-range.
Category 2 Offence
27Dangerous driving causing death is a Category 2 offence. In sentencing an offender for a category 2 offence, I must sentence you to a term of imprisonment, other than a sentence of imprisonment imposed in addition to a community correction order, unless, there are substantial and compelling circumstances that are exceptional and rare and that justify not making such an order.
28When making the evaluative assessment of whether there are substantial and compelling circumstances that are exceptional and rare in this case, it is necessary to have regard to the sentencing considerations applicable to cases of dangerous driving causing death – since in order to justify not imposing imprisonment the circumstances would need to surmount those principles.
29In determining whether there are substantial and compelling circumstances under subsection (2H)(e), I —
(a) must regard general deterrence and denunciation of your conduct as having greater importance than the other purposes set out in section 5(1) of the Sentencing Act;
(b) I must give less weight to your personal circumstances than to other matters such as the nature and gravity of the offence; and
(c) I must not have regard to an early guilty plea, prospects of rehabilitation, or parity with other sentences.
30In determining whether there are substantial and compelling circumstances under subsection (2H)(e), I must have regard to the intention of Parliament that a sentence of imprisonment should ordinarily be made; and whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
31The Court of Appeal in Lombardo outlined the application of section 5(2H) and the exception contained in s5(2H)(e). The Court considered the statutory language and identified two key steps in the enquiry as to whether the exception was satisfied:
“First, the court must identify whether there are substantial and compelling circumstances. This has been interpreted as circumstances that are weighty and forceful or powerful. 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.
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 meaning of the words overlap; in particular, ‘exceptional’ means ‘out of the ordinary course, unusual, special’, which includes that which is ‘rare’…….the two words operate together and each influences the meaning of the overall phrase.
…exceptional and rare refers to circumstances that are wholly outside the ordinary factors typical of the relevant offence …”[6]
[6]Lombardo at [66]-[67], [71].
32There are many factors personal to you, and events and circumstances that have arisen since the commission of the offence that are very much to your credit. They are deserving of leniency, and some mercy. I accept that you have turned your life around.
33I accept that a return to jail serves no sentencing purpose other than denunciation, general deterrence and the operation of s52H Sentencing Act 1991. You have achieved a lot over the past 14 months, you have suffered a lot also. You have also overcome personal difficulty to maintain strong progress toward rehabilitation. You have shown genuine and appropriate remorse. Your circumstances are deserving of leniency and mercy.
Personal Circumstances
34You are a proud Wadawurrung woman through your father’s line. Your father, and your grandfather, Bert Fagan who attended Koori Court with you, are traditional owners of Wadawurrung Country which extends west from the Werribee River and encompasses Geelong and Ballarat regions.
35It is an historical fact that in this jurisdiction First Nations peoples suffered decimation, dispossession and destruction of culture and way of life within the first decades of European settlement and beyond. None suffered this decimation and destruction more so than the Wadawurrung people.[7] Of this you are acutely aware. You are also aware of the enduring traumas suffered by the Wadawurrung people through the generations.
[7] Broome, Richard, Aboriginal Victorians, Allen and Unwin p.91.
36Your family’s story is one of resilience and survival in the face of these traumas wrought by settlement, pastoral takeover, violence, racism, government control of Aboriginal lives, forced child removal and failed policies of segregation and assimilation. You discussed intergenerational trauma and its impacts upon others during the sentencing conversations that you engaged in. You have expressed a desire to contribute in a positive way to addressing inter-generational trauma and its effects within the prison population.
37I was told your parents separated when you were 5. You understood your father had battled mental illness and a traumatic early development. I was told your mother suffered substance dependence issues prior to your birth and throughout your childhood years. Your mother was also being treated for kidney illness at the time of your birth. Your birth was traumatic.
38I accept that when you came into the world you were experiencing opiate withdrawal. This is but one factor in your life which attracts the mitigation often referred to as Bugmy mitigation.[8] You had a childhood that instilled fear and insecurity in you due to instability, and exposure to family violence and other negative impacts.
[8]Bugmy v The Queen (‘Bugmy) 249 CLR 571.
39The details of your early life and teenage years are summarised in your Counsel’s thorough submissions dated 3 March 2023, as well as in the report of psychologist Alison Mynard (Exhibit 7) and at pages 5-7 of the Neuropsychological report of Jane Lofthouse (Exhibit 17). I was told that your father battled alcohol and substance dependence and could exhibit extreme violence toward your mother and within the household. I was told that he spent time in prison on more than one occasion during your childhood.
40Without going into the details that are set out in Ms Mynard’s report at paragraphs [10]-[19] , and [29]-[30], and pages 5-7 of Ms Lofthouse’s report, I accept that your life was attended by instances of significant and enduring trauma, dysfunction and anxiety provoking contexts which have shaped you throughout your life. These experiences have impacted your education, your cognitive and emotional functioning, your use of alcohol and other substances, and the general instability in your life leading to the offence.
41There may well be a connection between childhood traumas (from infancy) and mental health infirmities such as your anxiety and PTSD. The prosecution accept that this finding is open to me and that a reduction in your moral culpability for the offending flows from it, in the Bugmy sense.
42You struggled at school, finding it difficult to concentrate on subjects that you were not interested in. Your difficulty in maintaining attention in all likelihood has a connection with your life experiences and your cognitive functioning.
43You have been employed as a cultural heritage officer with your paternal grandfather at the Aboriginal Co-Op. This involved digging for artefacts, excavating and picking out stone tools. You enjoyed this and felt connected to your Aboriginal heritage and culture. Your sister works at the Co-Op as a traditional owner and you plan to work there again in the future also.
44In the lead up to the offending your lifestyle was at times erratic and without purpose. You commenced alcohol use when you were around the ages of 12-14. By the time you were twenty you were drinking daily. You lived in the city and many of your friends were using substances and alcohol also and in your own words ‘always at a party.’
45You had taught yourself to drive, telling Ms Mynard that there was no-one else to teach you. At some stage you had a learner’s permit.
Post-Offence
46After the offence you were remanded in custody and this was extremely difficult for you. I accept that custody was harder for you than most due to your anxiety and PTSD symptoms.
47Ms Mynard writes at paragraph [34] :
“She had self-harmed when in custody and has self-harmed from a young age but is not currently suicidal or engaging in self-harm. Her insight about her own mental health and her own trauma history was very good and she was open to learning more about herself.”
48At paragraphs [35]-[36]
“Ms Fagan stated that she has anxiety, and is often overthinking and feels very overwhelmed. She is often short of breath. She has been practicing bringing herself out of a sate of vigilance, by distracting herself and drinking water. Ms Fagan has been talking to her psychologist about her triggers to feeling anxious and how to recognise that she is in ‘fight or flight’ mode.
She thinks she has been anxious since she was five years old.”
49At paragraph [38] of her report Ms Mynard writes that you struggled in custody. Your mood deteriorated and you felt distant, cut off and isolated from your family and the community. You were ruminating on your thoughts and were unable to ‘get out of your head.’
50You told Ms Mynard that you spent around 6 weeks on your own in isolation and then a further two weeks in COVID lockdown. You told Ms Mynard that you felt you had been ‘driven insane’ and delirious, you felt that you were ‘not real.’ You were engaged in the Wadamba prison to work program whilst in custody (see Exhibit 4).
51I accept that your experience in custody as a first time remandee was terrifying and traumatic. As a punishment and a deterrent I am satisfied that the impact upon you of those 76 days in custody was very significant.
Extra-curial Punishment
52Around the time of your bail application you attracted a lot of media interest and publication. Your distress at being in custody was reported upon. In particular you were subjected to hurtful and threatening comments on media sites. Some of these comments were racist and ridiculed your cultural heritage. You were very distressed by these reports and comments, in particular those advocating self-harm.
53Ms Mynard writes that you are easily startled, she wrote: ‘Alisha reads comments on social media about the accident and feels very distraught. She reads comments that she should kill herself which leads to feeling suicidal.’
54I am satisfied that a degree of extra-curial punishment has flowed from the publicity in this case. I refer to my reasons given in relation to the suppression order application and I take that extra-curial punishment into account.
Remorse and Trauma symptoms
55You told Ms Mynard that you don’t go a day without thinking about the accident and you want to use this experience to change for the better. You told Ms Mynard that you continue to have intrusive memories of the collision.
56You acknowledged to Ms Mynard that you must be accountable for your actions. You stated that you can never forgive yourself for the collision . You have struggled to sleep.
57At paragraph [69] she notes:
“Ms Fagan presented as insightful and intelligent young woman who has been through significant traumas in her life, and she is extremely keen to show her remorse and rectify many things in her life.”
58I accept that the overwhelming guilt and sadness Ms Mynard identifies in you was genuine.
Complex PTSD/Borderline Personality Disorder
59I accept Ms Mynard’s opinion as to your complex PTSD resulting from various experiences of childhood abuse.
60Ms Mynard explains Complex PTSD at [65]:
“Complex PTSD has developed because she was frightened and unable to rely on anyone in her childhood and adolescence for protection. Ms Fagan suffers from complex PTSD which was in the context of having an unsafe and insecure environment at home where she was frightened of her father, the person she was meant to go to for safety and security. Furthermore, her mother was physically present but inconsistent in her connection with Ms Fagan, was often ‘on the nod,’ not available to her emotionally. When a child is exposed to such extreme trauma from an early age, such as Ms Fagan has been, this impacts her in terms of her inability to self-regulate, because she has not had co-regulatory and self-soothing skills, Ms Fagan has turned to substances such as alcohol in attempts to regulate herself.”
At paragraph [66]:
“As a young adult, she admitted that she finds it difficult to identify and manage her emotions. She lacks a sense of identity and coherent sense of self. This complex PTSD has become a pervasive manifestation in her life, with more difficulty managing her emotions, struggling to self-soothe, finding it very difficult to trust others and have relationships, and not knowing her sense of self or identity.”
61Further, I accept that you have experienced hyper-vigilance, emotional dysregulation and interpersonal difficulties due to complex PTSD.
62I also accept Ms Mynard’s opinion as to likely Borderline Personality Disorder with traits of emotional instability, instability of relationships, instability of identity. You have tended toward substances to self-soothe and you have been impulsive, dissociative and engaged in self-harming.
63PTSD and Borderline Personality Disorder are functioning issues that, together with Bugmy factors explain the lifestyle you were leading at the time and in particular explain your alcohol use, the party lifestyle and disregard for court orders prohibiting you from driving. They are conditions that are, in part, explanatory of some of the circumstances of offending.
64You have reported that you have not touched alcohol since the collision. I accept this.
‘Inattention’
65Your lack of concentration and attention at the time of the offending may have been contributed to by alcohol use, others in the car, your lack of regard for road rules given your driving history, your youth and disadvantage. There may also have been a cognitive processing element. Ms Mynard draws a link between opiate withdrawal in infancy and impulsivity and executive functioning.
66She also notes ADHD symptoms in your case without reaching a formal diagnosis.
67At paragraph [68] Ms Mynard opined that you had been drinking daily for months prior to the offence, and this would have ‘slowed her reaction time, impaired her judgement significantly and caused an inability to focus properly on the road.’
68Ms Mynard also writes:
“Her judgment was highly impaired at the time of the offending due to her poor mental health and her intoxication with alcohol. Her low attentional skills may have also impacted her at the time of her offending.”
69I make no finding of cognitive functioning contributing to the offence in a causal sense, however on balance I accept Ms Mynard’s assessment as relevant to an assessment of your personal circumstances and the circumstances of the offending in an explanatory sense.
Verdins - Limb 5
70Ms Mynard formed the opinion that. ‘There is a risk of deterioration in your mental health upon a return to custody,’ (paragraph [75]).
71Neuropsychologist Ms Lofthouse noted at page 17 of her report:
“Ms Fagan however demonstrates psychological symptoms which are likely to deteriorate under the added stress of being incarcerated and in particular coupled with being pregnant. Ms Fagan’s psychological state is likely to impinge on her ability to complete a term of imprisonment in comparison to persons who do not suffer from psychological issues.
As noted above Ms Fagan has been able to benefit from engaging with appropriate rehabilitation services which has allowed her to achieve stability in her day to day life. Ms Fagan has also been able to secure assistance with her pregnancy and ongoing care after the birth of her baby. Ms Fagan is probably better able to access an appropriate level of monitoring and ongoing treatment whilst in the community as opposed to during a period of incarceration.”
72I am satisfied that your experience of custody will be far harder than for another who does not experience your myriad psychological conditions and matters personal to you that cause stress and anxiety.[9]
[9]Verdins v The Queen (2007) 16 VR 269.
Release on Bail
73You were released on bail on 25 August 2022. You resided at Bunjilwarra Healing Centre, a Drug and Alcohol residential facility. Bunjilwarra provides a strict environment for personal development, drug and alcohol counselling, psychological counselling and engagement with Aboriginal culture.
74You successfully completed your stay there. Part of the program there involved one-on-one counselling, and group therapy through Taskforce Community Agency (Exhibit 5). You also engaged in artwork creating several pieces one of which is permanently on display at Bunjilwarra. You discussed your artwork in depth during the sentencing conversation. A laminated copy of Karrang Larr, in Wadawurrung language, I was told meaning ‘Place of Sharing’ was exhibited during the first sentencing conversation.
75I received several testimonials as to your progress in Bunjilwarra. Kylie Weiss provided three letters to the Court (Exhibit 6). Ms Weiss and other Bunjilwarra staff provided post-exit support as you transitioned through Bridgehaven and then Cornelia House, up to the present.
76Ms Weiss writes,
“In my interactions with Ms Fagan I have found her to be a genuine, pleasant, open and honest young Aboriginal woman who has made significant efforts to improve her life and provide a nurturing environment for her infant daughter. In my own opinion, Ms Fagan continues to gain maturity and self-awareness through time spent in therapeutic environments and in regularly accessing appropriate supports within the community.”
77Pete Dawson writes:
“It was a pleasure to work with Ms Fagan during her period of time at Bunjilwarra, to observe her growth as a young Aboriginal woman and to witness her increased capacity to manage emotional and psychological challenges. I believe that while at Bunjilwarra Ms Fagan genuinely made the first steps towards truly understanding the tragic impact of her past actions and of initiating the process to take responsibility for this impact. It is the opinion of this writer that with the right community and culturally based supports Ms Fagan has the capacity to continue on a trajectory of developing into a positive and responsible member of the community.”
78Psychologist Melanie Canning writes:
“Alisha has voluntarily taken part in this aspect of the program and has used the opportunity to address past traumas and difficulties. Alisha has made significant progress working through this and is able to identify the links between trauma, offending and drug use. Alisha is committed to remaining drug and offence free and has utilised this opportunity to commence study in community services, learn regarding culture and develop insights into her behaviours and coping mechanisms…
It is my opinion that Alisha’s time at Bunjilwarra has had a positive impact on her life, allowing her to take these skills and strategies into the outside world. In her short time at Bunjilwarra I have seen Alisha reassess her priorities and options in life with determination and commitment.” (Exhibit 3)
79Manager of Bunjiwarra, Uncle Pat Farrant attended both sentencing conversations and your further plea hearing and he confirmed your progress. He also impressed upon you the importance of accountability.
80You have demonstrated strong progress toward rehabilitation, if not complete rehabilitation during your period on bail. You also utilised the opportunity in Bunjilwarra to connect further with your culture.
81You spent 5 ½ months in the Bunjilwarra program. From Bunjilwarra you entered the Salvation Army’s Bridgehaven Women’s Residential Treatment program. You entered Bridgehaven residential program on 2 February 2023 as a direct transfer from Bunjilwarra. You spent two months in the Bridgehaven program. You engaged well there with Aboriginal groups run by VAHS, and Ngwala Willumbong (see Exhibit 9). You moved from Bridgehaven to the Cornelia Program as part of the Royal Women’s Hospital maternity services where you currently reside.
82In all you spent over 7 months in residential rehabilitation. These periods of residential rehabilitation entitle you to the distinct mitigation often referred to as recognition of Akoka time.[10] These periods, in combination with my findings as to remorse and insight, the salutary experience of incarceration, your commitment to the Cornelia program and your re-engagement and investment in your cultural heritage lead me to the conclusion that you are also entitled to significant mitigation for the positive steps and reform you have engaged in during the delay between the commission of the offence and sentence. You have stayed the course over this difficult period, with the prospect of re-incarceration hanging over your head.
[10]Akoka v The Queen (‘Akoka’) [2017] VSCA 214,
83I received Exhibit 10 being the YSAS complete record including over 70 urinalysis drug screens which provides further evidence of your conduct on bail. You have also commenced a Certificate III in Community Services during this period. You have also engaged fully in two Sentencing Conversations in this Court.
84Excerpts from the following testimonials support my finding as to your response to the offending, your response to custody and your hard work and engagement with rehabilitation.
85You had the support of Katie Miller from VAHS upon your entry to Bunjilwarra, throughout your time there and up to the present. I accept her opinion that through the services VAHS has been able to provide and with which you have engaged you have increased your sense of wellbeing, cultural connections, self-awareness of substance use and how this has impacted your life.
86Your Aunt, Jaye Thompson writes:
“since the accident I have seen this drive and need in Alisha to be better, to do better. I believe the accident has opened Alisha’s eyes to the fact that her actions have consequences not only for her but for others around her. The last few times I have seen Alisha it is like I am speaking and observing this whole other person, one that is driven and wanting to do her best not only for herself but for her child.”
87Your mother describes you as having transformed from a confused, reckless, irresponsible young woman into an amazing young lady.
Pregnancy and Birth
88You became pregnant during your stay at Bunjilwarra. Your daughter’s father Mr Baker was also at the facility at that time. He attended both Koori Court sentencing conversations with you. He continues to support you through this very stressful time for the both of you and your child.
89For the past 10 months or so you have had the stress of worrying about what will happen to you and your child. You have stayed the course and availed yourself of every rehabilitative and health support available. This is to your credit.
90I deferred sentence, on your application, in order to provide the optimum environment for the birth of your daughter which occurred in July. I was provided with comprehensive material which supported my finding that sentencing should be deferred to allow your supports to continue up until the present.
91You had been attending VAHS midwives since 6 December 2022.Throughout your engagement you demonstrated a genuine commitment to becoming the best mother you could be. I gratefully received the report of Clinical Midwife Specialist Paraskevi Loupis involved with the Baggarrook Caseload dated 12 May which set out the supports, in particular the cultural supports, that were available to you in the antenatal and perinatal stage. I also received the letter from Rebecca Bianchin, Cornelia Program Midwife which set out the extent of the support that was available to you in the community, including the 12 month supported housing lease.
92I also received at that time the helpful and comprehensive report from Beck Chapman, Flat Out Outreach Support and Advoacy Program which also highlighted not only the disparity between the supports available to you in the community as opposed to custody regarding your pregnancy and childbirth, and the cultural supports and rights available that would not be available in custody, but also provided what I’ll call a cultural, historical, inter-generational, socio-economic and self-determination perspective.
93As part of the materials I received the Legislative Council Legal and Social Issues Committee, Inquiry Into Children Affected by Parental Incarceration Final Report together with two detailed Submissions to the Inquiry.[11] I also received a letter dated 11 May which set out the RWH Maternity Care team which supported you.
[11] Submission 11 to the Legislative Council Legal and Social Issues Committee, Inquiry Into Children Affected by Parental Incarceration, University of Western Sydney (Dr Gribble) 25 April 2022; Submission 16 to the Legislative Council Legal and Social Issues Committee, Inquiry Into Children Affected by Parental Incarceration Dr Tatiana Corrales, 28 April 2022.
94You gave birth to your daughter in early July, I was told. Toni Bahler, Clinical Midwife Specialist working at VAHS as part of the Koori Maternity Program, has informed me in her letter dated 3 August that you have a deep desire to be a loving provider for your child. Ms Bahler strongly supports your wish to keep your baby with you in custody.
95She writes:
“Both Alisha and A are extremely attached to one another. In my opinion it would be incredibly distressing and destabilising for both if they were not permitted to remain together during this very important early parenting period. I sincerely hope that Alisha and her daughter are permitted to stay as a family unit.”
96I have now been provided with further expert material in relation to your current situation. You continue to be wonderfully and comprehensively supported through the RWH Cornelia Program, VAHS, and Flat Out. Your supports include Katie Miller, Helen Bonello and Karen Jansen Cornelia Program, Kylie Weiss, Balit Djerring Mental Health Services, Bek Chapman and Flat Out, Wirraway, Mums Matter (psychology), Baggarook RWH.
97I received a further report from Katie Miller which emphasises the importance of you and your daughter staying together. As does the letter dated 7 August from Helen Bonello RWH, and the further letter from Bek Chapman, Flat Out.
98I accept that a number of matters have placed you under inordinate stress and anxiety due to the uncertainty regarding your future, including:
· Whilst you have applied to have your daughter with you in custody no decision was made on your application, until perhaps a day or two ago. I have been updated with that.
· Djirra’s Legal Team reports that over the last decade they have not had any successful applications for a pregnant mother to keep her baby with her in prison, and that the application process disproportionately impacts on Aboriginal and Torres Strait Islander women. You had to progress with that knowledge and the stress it creates.
· Even if approved there have been concerns that there may be a period of separation whilst you make your way to Tarengower prison after reception at Dame Phyllis Frost Centre. That is something that has weighed on your mind.
· The impact of parental incarceration on young children is significant and documented, particularly where First Nations families are concerned. The disproportionate rates of parental incarceration in First Nations families is shocking.
· Aboriginal child removals continue at a disproportionate rate. The inter-generational impacts of forced child removal throughout the Victorian Aboriginal population is well documented (see the Bringing Them Home Report). Your family has immediate and inter-generational experience of this trauma.
· Even if your daughter stays with you in custody there is also the concern of separation for some reason beyond your control.
· All of these stresses have had an effect on your mental health, understandably, and I am told there are concerns as to post-natal depression.
· Entering custody also deprives you of the strong family and other supports you have in the community.
99Everyone in this Court room understands that the best place for you and your daughter is together, in the community, with the support of loved ones and professionals. The requirements of the law, and in particular considerations of general deterrence, denunciation and the operation of s5(2H) of the Sentencing Act pull in the opposite direction.
100You are currently leading an exemplary and positive life, you are a young mother doing everything right. You have expert support who are able to provide expert assessments in that regard. Based on the material before me there should be no reason why the Living With Mum program is not available to you and your daughter. That is my expectation, and that is my understanding at present.
101The stress of all of this, hanging over your head, and the crippling uncertainty you have been dealing with, has significant mitigatory effect. This factor, together with the other experiences on bail to which I have referred, gives rise to an occasion for mercy and leniency. Hardship to your daughter is also a matter that must be weighed in the sentencing exercise.
Other Factors in Mitigation
Remorse
102Melanie Canning:
‘Alisha has made significant progress during her time at Bunjilwarra and utilised counselling to work through many of her past issues that have ultimately led to poor decision making and in this tragic circumstance, death. Alisha is remorseful that her actions have caused such tragedy and has spent significant time reflecting on how her actions have ultimately effected the fulfilment and happiness of the lives of the family and friends of the deceased, as well as the sudden ending of life for the deceased. I expect that Alisha will continue to feel remorse for the remainder of her life.’
103Your letter of Apology ( Exhibit 2) is honest and heartfelt. I accept that based upon the documentary evidence of remorse and the palpable evidence of remorse during the sentencing conversations.
Plea of guilty
104You have pleaded guilty at an early opportunity. There is a very significant utilitarian benefit to that plea, particularly given it was at a time when this Court was only just returning to normal trial loads. It is also reflective of remorse and contrition.
Cultural engagement and commitment to working with Aboriginal youth
105I am satisfied that your commitment to educating yourself, via the Certificate 111, and other means, in order to work for your people and contribute to addressing inter-generational trauma and custodial experience in particular. It is significant you have embraced and explored your culture over the period in custody and on bail. Commitment to culture can be a powerful rehabilitative force for you.
Sentencing Conversations
106You participated in two very difficult and emotive sentencing conversations. These were very confronting experiences for you. You gave yourself to the exercise in full.
107The court room was full during your first Sentencing Conversation. You had many people there in support: mother, father, grandparents, sister, stepmother, your partner Nathan, Katie Miller, Bunjilwarra workers and manager Uncle Pat Farrant. Members of the media were also present. The deceased’s family, his sons, his wife and other supporters were also present. It was a stressful and to an extent, for you, oppressive environment.
108It was also stressful and oppressive for others, and proceedings were interrupted when the wife of the deceased man became unwell during the prosecution opening. You had been hyper-ventilating prior to this event. Ms Miller in support was trying to calm you. You were crying and emotional. It appeared as though you were on the verge of a panic attack – such presentation is consistent with the descriptions contained in your mother’ reference, and in Ms Mynard’s report.
109The circumstances of the brief adjournment are set out in paragraphs [38] of the Defence Submissions dated 8 May. I accept it as an accurate summary. Upon resumption you spoke with Auntie Faye and Uncle Wally about your offending, and your experience in custody and your insight into the effects of incarceration on the Aboriginal community. You showed insight into the effects of inter-generational trauma. You spoke about your artwork and your progress on bail. You spoke about your pregnancy and what you hoped for the future.
110Katie Miller spoke during the conversation about how you had “completely changed.” Your mother also spoke during the conversation of the change in you, but also how the offending impacted the family. Pete Dawson and Kylie Weiss also spoke during the conversation in very positive terms. Uncle Pat Farrant, Manager Bunjilwarra spoke about your progress and the importance of accountability. You exhibited genuine remorse.
111You participated in a further Sentencing Conversation on 15 May 2023. You also engaged fully on this occasion. Again there were many participants and you faced your Elders Aunty Faye and Uncle Wally.
112It is recognised that participation in a Sentencing Conversation is more difficult than a General List Plea hearing. It is confronting. You are held accountable and you have to speak for yourself. You also demonstrated a strong commitment to your culture, as a Wadawurrung Traditional Owner, and your community. Such a sense of purpose can be a great source of rehabilitative strength. For your participation in the Sentencing Conversations and my assessment of your genuine remorse, contrition and desire to reform you are entitled to significant mitigation of sentence.
Youth
113You are still a young woman. 21 at the time of the offence and now 22. A young woman without prior convictions, although I have mentioned the serious driving record revealing a history of driving at outrageous speeds.
Submissions regarding 5(2H)
114Your Counsel Mr Murphy submitted a combination of mitigatory factors, some of which amount to powerful mitigation standing alone, as capable of satisfying the test of ‘substantial and compelling that are exceptional and rare’ and that justify imposing a non-custodial or combination sentence.
115In summary Mr Murphy relied upon:
(a) Plea of guilty (not the ‘early’ stage of the plea which is excluded from my consideration).
(b) Youth at time of offending and at time of sentence.
(c) You were single at the time of the offence. You are now in a relationship with a young Aboriginal man and you have a 1 month old daughter together.
(d) What is described as a deprived and traumatic upbringing (Bugmy and PTSD factors)
(e) Traumatic relationship history (Bugmy/PTSD)
(f) Aboriginality (relevance of inter-generational trauma, commitment to culture, culturally appropriate dispositions and therapy, Aboriginal parental overrepresentation in custody, Stolen Generation trauma)
(g) Diagnosis of PTSD (hardship in custody)
(h) Persistent Depressive Disorder diagnosis (hardship in custody).
(i) Borderline Personality Disorder diagnosis.
(j) Substance and alcohol use history from 12 -14 up to the collision (again I find this relevant to Bugmy factors). You have since ceased alcohol and substances.
(k) 76 days in adult custody (Pandemic restrictions).
(l) 7 months participation in residential treatment programs – Akoka time.
(m) Exceptional voluntary participation in two Koori Court Sentencing Conversations.
(n) Extra-curial punishment from media attention resulting in on-line attacks.
(o) The stress and uncertainty resulting from being a mother to a newborn, who is well-supported, yet who faces two prospects upon incarceration – either being separated from your daughter, or caring for her in custody. Neither of these scenarios are optimal.
116In relation to the last point, in my view this is multi-layered. The issue can’t be removed from the context – a young Aboriginal mother, and an Aboriginal infant, becoming statistics of either incarceration or separation, against the historic and personal backdrop of the Stolen Generations and the inter-generational trauma that flows from child removals, and the overrepresentation of Aboriginal women in custody. It is also my view that this point in particular, in combination with the other positive and mitigatory matters, gives rise to an occasion for mercy.
117Mr Murphy sets out correctly that it is my evaluative assessment of this combination of factors that I am entitled to have regard to. You bear no onus to satisfy me that the test is met. Mr Murphy calls in aid the Prosecution concession that the factors in combination may be considered ‘substantial and compelling’, but not ‘exceptional and rare’ (see Further Prosecution Submissions on Sentence at paragraph [6]).
118To my mind, the Akoka time, progress on bail, and the multi-layered aspect regarding your child are major matters in mitigation. In the plainest sense of the words they are substantial and compelling. The factors relied upon, taken together, are ‘substantial and compelling’ and could probably be described as exceptional – but where the test falters in my assessment is whether they ‘justify’ making an order other than imprisonment.
119The test requires me to focus on a number of sentencing considerations, including whether the circumstances ‘justify’ a non-custodial disposition or combination disposition. The important principles of general deterrence and denunciation loom large. Given the objective gravity and the subjective culpability involved in your offending, it is my evaluative assessment that the combination falls short of justifying a disposition that doesn’t require a return to custody, but the combination is deserving of significant leniency and gives rise to an occasion for mercy.
120I find you have excellent prospects of rehabilitation. I find that your experience of custody will be significantly harder than it would otherwise be due to your mental health challenges, and the additional stress of concern for your daughter in the custodial environment, and the fear of separation.
121I sentence you as follows:
Sentence
122On the charge of Dangerous Driving Causing Death you are sentenced to 2 ½ years’ imprisonment.
123On Charge 2: possess drug of dependence – you are convicted and discharged.
124On the summary charge of – possess controlled weapon – fined $200.
125Summary charges 3 and 12 contravene condition bail: 2 months’ aggregate.
126Summary charge 4, commit indictable offence on bail – 1 month imprisonment
127State false name and address – fined $250
128Charge 7 – fail to give information about driver – 14 days imprisonment and an order against license.
129Exceed Proscribed Concentration of Alcohol – fined $1000.
130Drive whilst suspended – 1 month imprisonment.
131Pursuant to s 89 Sentencing Act and in relation to summary charge 7 Your Licence is cancelled and disqualified for 24 months.
132Declare pre-sentence detention of 76 days.
133The total effective sentence is 2 ½ years’ imprisonment.
134In the compelling and exceptional circumstances of your case I propose to fix an unusually low, but justifiable in all the circumstances, non-parole period of 6 months.
135Pursuant to s 6 AAA if it were not for your plea of guilty, I would have sentenced you to a term of imprisonment of 3 ½ years with a 2 year non-parole period.
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