Director of Public Prosecutions v Foelmi
[2025] VCC 251
•28 February 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 24-00555
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RENEE FOELMI |
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| JUDGE: | HER HONOUR JUDGE QUIN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 September 2024, 22 October 2024 |
| DATE OF SENTENCE: | 28 February 2025 |
| CASE MAY BE CITED AS: | DPP v Foelmi |
| MEDIUM NEUTRAL CITATION: | [2025] VCC 251 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charge of dangerous driving causing serious injury – licence cancelled and disqualified for a period of 2 years
Legislation Cited:
Cases Cited:
Sentence: Community Corrections Order of 2 years with 30 hours of Community work and Mental health treatment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms B. Goding | OPP |
| For the Accused | Ms A. Sharpley | Leanne Warren & Associates |
HER HONOUR:
1Renee Foelmi, after a sentence indication hearing on 22 October last year, you pleaded guilty to one charge of dangerous driving causing serious injury. The maximum penalty for this offence is five years and the minimum mandatory licence disqualification period is 18 months. The circumstances of your offending are set out in the summary of prosecution opening for sentence indication hearing, dated 21 October 2024, Exhibit A, and can be summarised as follows.
2You were driving a Jeep Cherokee, the Jeep, and Shevan Widjarathna, then aged 3 years 10 months, was in a child’s seat in the rear of a Toyota Corolla Hatchback, the Toyota, driven by Suranga Kulasinghe. His wife, Shimali, was also in the Toyota, sitting in the front passenger seat. Shevan had spent the day at a daycare business operated by the Kulasinghe family, who had arranged with his parents to care for him until they were available later in the evening. Shevan’s mother had injured her ankle and required hospitalisation earlier in the day.
3A collision occurred when you, travelling on Princess Highway, went through a red light into the intersection, hitting the passenger side of the Toyota that was executing a right turn onto the Monash Freeway ramp with a green right turn arrow. The circumstances of the collision are best illustrated on the video or dash cam footage from the Toyota and photographs of the relevant area. It is apparent from those materials and from subsequent police investigation:
4That a red light applied to all traffic that was travelling in your direction. You failed to obey the light and went straight through the intersection. At the same time, the Toyota, facing a green arrow, was turning right in the intersection. Clearly those in the Toyota were aware of the impending collision due to your failure to stop;
5The lights facing the Jeep changed from green to yellow approximately 14 seconds before impact when you were approximately 288 metres from the intersection;
6The red light appeared 8 seconds before the Jeep arrived at the intersection and you were approximately 177 metres from it;
7The Jeep was travelling about 68 kilometres an hour when it impacted with the Toyota. At five seconds prior to impact, the Jeep was travelling at 81 kilometres an hour. You applied the brakes at 2.3 seconds from the time of deployment of the Toyota’s airbags; and
8At the time of collision, sun glare may have affected your ability to observe the lights at the intersection and the Toyota turning across your path. The dangerousness relied upon by the prosecution is failure to keep a proper lookout, inattention and travelling through a red light.
9Neither Shevan or Mrs Kulasinghe, who were both in the Toyota on the side of impact, were responsive immediately after the collision. Witnesses went to assist both of them and triple 0 were called. Mrs Kulasinghe was conveyed by ambulance to the Alfred and was discharged within 24 hours. She received a closed head injury, retrograde amnesia, loss of consciousness, and a left midfoot soft tissue injury. She has required the assistance of a psychologist and neurologist and continues to suffer neck pain and headaches.
10Shevan was unconscious and conveyed by a helicopter to the Royal Children’s Hospital in a life-threatening condition. I will refer to his injuries in a moment.
11You attended the Narre Warren police station on 31 March 2022 and provided a no comment record of interview.
12No doubt Shevan’s injuries were serious. I received updated material regarding his current situation at the plea hearing. Shevan remained in intensive care from the time of the incident until 12 April.
13Initial radiological examinations revealed lung collapse, concerns for pancreatic injury and duodenal perforation, ameliorated kidney and multiple fractures on his ribs and back. He was diagnosed with a severe acquired traumatic brain injury and ultimately admitted to rehabilitation at the Royal Children’s Hospital where he remained for about a month. During this time, he presented with cognitive fatigue, behavioural difficulties, inattention, impulsivity, initial left side weakness and difficulties in motor planning, consistent with his level of post traumatic brain injury. His brain MRI displayed diffused axonal injury. He received multidisciplinary treatment, including from a neuropsychologist, physiotherapist, occupational therapist, dietician, speech pathologist, and social worker. Many of these supports have continued since he returned to the care of his parents.
14The most recent update on Shevan’s condition was provided in a report from neuropsychologist, Dr Claire Kempnich, dated 18 February 2025. She has treated Shevan since May 2022. In her report she outlines the physical, cognitive, behavioural, emotional and fatigue issues that Shevan still experiences. She notes he still requires intensive multidisciplinary supports to develop skills and to manage his symptoms and complications from his traumatic brain injury. Dr Kempnich also outlines the functional challenges that Shevan experiences with school attendance, social friendships and the impact of his condition on the family unit. She concludes Shevan has shown remarkable resilience in his recovery and is fortunate to have the ongoing support of a loving family, despite the challenges due to his injury.
15Shevan’s parents, Supipi and Marlon Widjarathna, have written victim impact statements, as has Shimali Kulasinghe, the other passenger in the Toyota.
16Supipi and Marlon Widjarathna’s victim impact statements reflect on the impact on their lives and how it has irreversibly changed since March 2022. Marlon speaks of the heartbreak as a parent seeing his very young son in hospital and the lengthy rehabilitation process that Shevan went through. It is clear he is fearful of leaving his children in the care of others or alone in case something happens to them. He is conscious of the normal experiences of development and growing up, which Shevan will not experience.
17Supipi speaks of the conflict she felt when Shevan was first hospitalised, struggling with the idea of seeing her child in such a critical condition in hospital while she was also recovering from her own injury. She described watching Shevan go through rehabilitation for his injuries as heart-wrenching, and that his changed behaviour left the family feeling challenged. Clearly, the family have had difficulties coping with his behaviours and making the necessary adaptions.
18Supipi suffered her own mental health difficulties following the offending and still has nightmares.
19The transition of Shevan to kindergarten and school and those new environments has caused significant anxiety and challenges for both Shevan and the family. She’s concerned about being able to protect Shevan from the obstacles that lie ahead. She is conscious of the social impact and development in new environments and him not meeting developmental milestones. Both Marlon and Supipi speak to the financial impact of the offending on their family, which has been significant. No doubt, the emotional impact on the family has been devastating.
20In the most recent letter from Shevan’s parents, they note, ‘this accident did not just leave our son, Shivan, with severe injuries and permanent brain injury. It has completely shattered our lives, leaving us in a constant battle for survival, justice and a future for our child. We’re deeply afraid of what the future holds for Shevan’.
21Mrs Kulasinghe’s victim impact statement speaks to the guilt and helplessness she felt at not being able to protect Shevan when he was under her care. She still blames herself for having suffered injuries in the collision and not being there for Shevan and his parents immediately afterwards. She feels her reputation suffered as a caregiver to children and she also continues to suffer neck pain and headaches.
22In respect of your personal circumstances, I received the following material: Report from Aoife Dunne, psychologist, dated 4 April 2024, letter and addendum from Amanda Fillingham, mental health social worker, dated 18 October 2024, mental health advice and response service summary, 14 February 2024, relevant certificates, re early childhood education and aged care, a bundle of character references, child protection and medical documents regarding your children, medical material relevant to your pregnancy.
23You are currently aged 28 and grew up in Melbourne with your four siblings. Growing up, you witnessed significant violence being perpetrated on your mother by your father, resulting in your mother and siblings staying in refuges and crisis accommodation on numerous occasions, but then returning to the family home. When you were 14, child protection became involved and you were placed in residential care, where you remained for about a year. When you returned home, the family violence continued and you assumed childcare responsibilities for your younger siblings, particularly at times when your mother had fled domestic violence and gone to New Zealand.
24You ultimately left home when you were about 16. I was informed that you were suffering significant mental health issues at that time and attempted suicide. You were an inpatient at the Monash Medical Centre in the psychiatric unit. You left high school shortly after Year 10, though your progress through school was marred by absenteeism due to the situation at home. You have, however, obtained a number of Certificates in Childcare and Early Education, Aged Care and Aged Support, and you have worked in those fields. You have had gainful employment for most of your life, however more recently with the birth of your fourth child and the court proceedings, I was informed you are currently not working.
25Your first serious relationship commenced soon after you were released from the psychiatric unit. Due to violence in that relationship, it was necessary for you to obtain an intervention order against your partner when it ended. You were then in a relationship with the father of your first two children from the time you were 18. That relationship was also troubled with your partner abusing substances. I understand that he has recently resumed contact with his children, currently having them stay on weekends each fortnight under Family Court orders.
26In 2020 you commenced a relationship with Zeb Reed and he is the father to your two youngest children. Your four children are aged eight, five, two and two months respectively. I understand though Mr Reed remains supportive of you and the children - sorry, I understand though Mr Reed remains supportive of you and the children, you live separately from him and you are not, at the moment, in a formal relationship.
27I was informed that you have never had issues with drug abuse or alcohol.
28As to your mental health, you received care in the community for a period of about four years after you were released from the psychiatric unit. Ms Dunne opined that you battled periods of severe depression with suicidal ideation, and suffer from depression and anxiety, as well as complex PTSD, and these matters have been entrenched since your childhood.
29You have no prior criminal matters, no driving offences recorded, nor any outstanding matters.
30As to your current relationship with your parents, I was informed that you have limited or no contact with your mother, and that you recently obtained an intervention order against your father, who had attended your house recently. I understand on the day of this incident, you had previously been at your parents’ house, and at the time of driving, you were upset about a conflict that had occurred at that time. Your counsel submitted that your childhood experiences were such that you suffered a disadvantaged background.
31In reliance on Bugmy, it was submitted that your experience of growing up in a deprived and abusive environment had compromised your capacity to mature and learn from experience. It was submitted that the relevance of childhood deprivation applied to the assessment of your moral culpability for this offence, that being raised in a community surrounded by alcohol abuse and violence should mitigate your sentence because your moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way. That is, as a consequence of the impact of your upbringing, your moral culpability for this offence should be reduced.
32In the course of the plea, I raised with counsel that your childhood history was relevant to take into account as part of your overall personal circumstances, but it was difficult to see how your offending in this instance could adequately explain, even in a general sense, this offence, such as to lessen your moral culpability for it.
33In the Bugmy sense, your counsel accepted that your background was more relevant to your personal circumstances and that it was a question of weight to be given to that factor.
34Your counsel submitted that the psychological material filed enlivened the Verdins Principles in relation to limbs 1, 5 and 6. In respect of limb 1, Ms Dunn, in her report, opined that due to your mental state and trauma symptoms at the time of the offending, you would have been in a heightened state of distress due to the interaction at your parents’ house immediately preceding the offence.
35Your counsel relied on her opinion that your trauma and increased stress felt at that time led to an impaired capacity for decision making at the time of the incident and may have caused you to be momentarily inattentive at the time of entering the intersection. It was submitted that in no circumstances your moral culpability for this offence should be reduced. The prosecution disputed that the relevant nexus had been established. I accept that you may have been upset and distracted as a consequence of events that occurred at your parents’ house prior to the collision. And I take that into account in consideration of the circumstances in which the offending occurred. There is, however, only a limited connection between the offence and your level of functioning so as to reduce your moral culpability.
36I accept that limbs 5 and 6 apply. That is, your level of mental functioning will make prison more burdensome for you, and there is a likelihood of your mental health deteriorating whilst you are serving any term of imprisonment.
37There were extensive negotiations to resolve this matter in an early stage. I take into account your plea of guilty. It has a utilitarian value and has saved the community the time and cost of a trial. It has also saved witnesses from giving evidence which would have required them to relive this traumatic experience.
38Your plea is also indicative of remorse and the guilt that you have experienced over the injuries you have caused to Shevan. That was consistent with your presentation in court, but also as expressed by you to professionals and to the authors of your character references.
39There has been extensive delay in this matter. The initial delay of almost 12 months from the offending to charge is not attributable to you. The prosecution conceded that the uncertainty during this period would have weighed upon you, particularly when you were interviewed by police on 31 March, a week after the incident. You have been left in a state of uncertain suspense and burdened with concern regarding the court outcome, particularly for the term of your pregnancy and birth of your child in January this year.
40It was submitted that there will be significant hardship visited upon you and your four children should you be imprisoned That your children have been subjected to child protection intervention and have issues as outlined in the materials.
41All of the children live with you and rely heavily upon you. The eldest two have some limited contact with their father, which has only recently been established. The father of the younger children has not had the care of their children overnight. All of your children have battled illness and developmental issues of varying difficulty.
42It is noted your eldest daughter has reduced cognitive capacity, ADHD, and is registered with NDIS to assist in her developmental delays. I accept that the effect on you of the experience of imprisonment would be significantly burdensome on you due to your anguish and being unable to care for your children, including your newborn, and in them being required to live in foreign and less protective environments. This is particularly so when viewed in the context of your own troubled upbringing.
43It was submitted you had strong prospects of rehabilitation given your lack of prior history, including for driving offences, and no outstanding matters, your relatively young age of 28 years, your plea of guilty and significant remorse, support in the community from the father of your children and the family violence organisation WAYYS, and commencement of counselling for mental health issues, and you expressing a willingness to continue. I accept rehabilitation prospects are very good.
44It is recognised the offence of dangerous driving encompasses a very wide range of conduct. In determining the appropriate sentence, both the objective dangerousness of your driving and your moral culpability must be taken into account. There are a series of factors that serve to aggravate this offence, many of which are not present in this case. This includes the absence of speed, absence of intoxication or substance abuse, no erratic or aggressive driving, you were not escaping police pursuit, you were not driving while sleep deprived, and you did not fail to stop after the accident.
45However, in respect of your case, in assessment of the seriousness of it, is the extent and nature of injuries inflicted, the number of people you put at risk, and you ignoring relevant road markings and signals. These are all highly relevant matters.
46The impact of your driving on this occasion has been devastating. The injuries suffered by Shevan were grave and no doubt very serious. His injuries have had lasting and profound impact on his and his family’s day-to-day lives.The victim impact statements eloquently set out the suffering of Shevan and significant changes the family has had to make as a consequence of your offending.
47This was a major, busy, and wide road, and there were a number of other cars on the road at the time whose occupants were exposed to the risks with your driving. You failed to pay attention to the road and conditions ahead. Such inattention was not momentary as reflected by the calculations regarding the timing of the light sequence and distance you travelled before the intersection. It is imperative drivers remain in control of their vehicle and concentrate whilst driving, given the inherent dangerousness of traveling in a motor vehicle.
48Whilst the sun glare that was evident operates to reduce your moral culpability to some extent, the dash cam footage shows the sun was low and that you were driving into it on a straight stretch of road. I note the prosecution expert opined that such glare could result in ‘disability glare’ and thus is relevant to an assessment of your level of inattention, and that the glare was not a matter that was under your control. However, it is not apparent that you changed your speed or proceeded with more caution with your visibility potentially limited.
49As I indicated, I watched the dash cam footage. You had time to see the intersection and take responsible action. You fail to do so and caused drastic consequences to other road users. Your moral culpability is not high, it could not be said to be, however, it could not be said to be at the lowest end, even taking into account the sun glare.
50Both parties referred to comparative cases and relevant sentencing practices in cases for this offence but given the varied circumstances that exist in the commission of this offence and different personal circumstances, they provide some guidance, though they are of limited assistance.
51The relevant sentencing principles applicable are well known. General deterrence, denunciation and protection of the public are to be accorded particular weight in respect of driving offences. I accept the specific deterrence has limited application in your circumstances. These must be balanced against matters personal to you and other matters in mitigation.
52The prosecution submitted that the only appropriate sentence was a term of imprisonment. Your counsel submitted, relying on the principles in Bolton, that all sentencing purposes could be met with the imposition of a community correction order. I had you assessed as to your suitability for such an order and received a favourable report.
53Cases of this kind are difficult. A young boy has suffered serious injuries with the physical, social and emotional impact likely to continue. Similarly, his family have been impacted. The future for their son and plans for themselves have been drastically altered. No sentence can bring back the life that they once had. However, considering the seriousness of this offence, your personal circumstances, particularly your background, and your responsibility for the care of your four young children, the delay, your plea, coupled with significant remorse, I propose, as I indicated at the sentence indication hearing, to place you on a community correction order.
54The order will be for a period of two years. You will be required to do 30 hours community work, and there will be a treatment and rehabilitation condition regarding your mental health. I will include in the order a note regarding my view that you qualify for exceptional circumstances in terms of the method of the way you would serve the community work. Your licence is cancelled and you are disqualified for a period of two years from obtaining a licence.
55Ms Foelmi, could you just stand up for a moment? Are you prepared to comply with the community correction order? You must understand that if you commit another offence, this order may be breached, and you will come back before me and it would be necessary for me to re-sentence you for this matter.
56OFFENDER: Yes.
57HER HONOUR: That is particularly so in respect of driving. You must understand that. Is your license currently cancelled? Has it been cancelled since the accident? No, all right. So the cancellation commences today. Here is the order, thank you, Lisa.
58ASSOCIATE: Is this your signature?
59OFFENDER: Yes.
60HER HONOUR: Thank you. I’ll just stand down.
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