Director of Public Prosecutions v Frost
[2023] VCC 1394
•14 August 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02104
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID FROST |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 July 2023 | |
DATE OF SENTENCE: | 14 August 2023 | |
CASE MAY BE CITED AS: | DPP v Frost | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1394 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentence
Catchwords: Guilty plea – two charges of dangerous driving causing death – one charge of dangerous driving causing serious injury – collision occurred after driving onto the wrong side of a highway into oncoming traffic – culpability related to driving whilst fatigued with methylamphetamine detected upon testing following the collision – subsequent diagnosis of severe sleep apnoea (OSA) – both OSA and methylamphetamine use contributed to fatigue but unable to determine whether either played a lesser or greater role – remorse – diagnoses of PTSD – burden of imprisonment – very good prospects of rehabilitation – general deterrence, denunciation and just punishment highly relevant sentencing considerations
Legislation Cited: Crimes Act 1958 (Vic), ss319(1), 319(1A); Sentencing Act 1991 (Vic), s 5(2H).
Cases Cited:Worboyes v The Queen [2021] VSCA 169; DPP v Neethling (2009) 22 VR 466; Stephens v The Queen (2016) 50VR 740; R v Barcu (1994) 76 A Crim R 103
Sentence: Five years, six months’ imprisonment with a non-parole period of 3 years, six months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B.D Nibbs | Office of Public Prosecutions |
| Victoria | ||
| For the Accused | Mr N Papas KC | Schembri & McCluskys |
HER HONOUR:
1On the morning of 24 December 2020, 16-year old learner driver Erynn Job was driving with her mother, 43-year old Megan Grayling and her 15-year old partner, Jacinta Atchison east on Portland-Nelson Road, Mount Richmond. The three planned to go into Portland to shop for Christmas day. Ms Job was driving her mother’s 2015 Holden Trax wagon with ‘L plates’ attached. Her mother was seated in the front passenger seat and Ms Atchison was in the left rear passenger seat. Although the speed limit was 100 km/h, Ms Job was driving at between 60-70 km/h.
2At the same time, you David Frost, were driving your 2014 Jeep Grand Cherokee wagon west along Portland-Nelson Road, travelling at a speed of approximately 104 km/h. You were 50 years old at the time and the holder of a full and current Victorian driver’s licence. You were travelling to Port MacDonnell in South Australia to purchase some crayfish. However, due to the effects of fatigue, the causes of which I will return to later in my reasons, you drove over the centre dividing line and onto the wrong side of the road, directly into the path the Holden Trax wagon being driven by Ms Job.
3Although both drivers sought to take last minute evasive action, the Jeep collided head-on with the Holden Trax wagon, causing extensive damage to the front of both cars. Tragically, Ms Job and her mother, Ms Grayling lost their lives as a result of the collision, and 15-year old Jacinta Atchison was seriously injured.
4Arising from these events, you have pleaded guilty to two charges of dangerous driving causing death, the maximum penalty for which is 10 years’ imprisonment and one charge of dangerous driving causing serious injury, the maximum penalty for which is 5 years’ imprisonment.
Circumstances of offending
5The circumstances of your offending are set out in the Summary of Prosecution Opening dated 3 July 2023, as amended at the plea hearing.[1]
[1]The prosecutor did not seek to rely paragraph 37 of the Prosecution Opening dated 3 July 2023.
6Portland-Nelson Road is a two-way, two lane, undivided road with a single lane in each direction. The road runs in a general east to west direction. The road has a white dividing line, with a solid white line applicable to west-bound traffic and a broken white line applicable to east-bound traffic. The road has a bitumen surface which was in good condition at the time of the collision.
7The Portland-Nelson Road is a major route for vehicles travelling between Portland and Mount Gambier. At the time of the collision, it had a posted speed limit of 100 km/h.
8Megan Grayling lived with her daughter, Erynn Job, together with her two sons, Jayden and Callum, and her husband, Lelent Grayling, in their home at Mount Richmond. For several months prior to the collision, Ms Job’s partner, Jacinta Atchison had also lived with the family.
9On the morning of 24 December 2020, Ms Job drove out of the driveway and turned left onto Nelson Road to drive to Portland. As a learner driver, she was accompanied by her mother with Ms Atchison seated in the rear. After turning left Ms Job drove east along Portland-Nelson Road, travelling at approximately 60-70 km/h. It was not raining and the road was dry.
10At approximately 10.21am, you were driving west along Portland-Nelson Road, towards the intersection with Comptons Road. You were travelling at a speed of just over 100 km/h. As the two vehicle approached each other, you drove over the white dividing line onto the wrong side of the road. In an attempt to avoid a collision, Ms Job steered to her right, however you simultaneously sought to swerve your vehicle to the left, resulting in the Jeep colliding head-on with the Holden being driven by Ms Job.
11The severe impact of the collision forced the Holden backwards before it came to rest on the south side of the shoulder of the road, facing north west. The Jeep Cherokee wagon you were driving continued west whilst rotating from the force of the impact before coming to rest in the west bound lane.
12A car driving behind Ms Job’s Holden managed to slow their vehicle, and pull off the road to avoid a collision with the Holden and the Jeep. One of the occupants of the car went to assist the occupants of those vehicles, while another called emergency services.
13Ms Job had survived the impact and spoke to those assisting her, saying she could not feel anything. Ms Grayling was also conscious. Ms Atchison managed to open the door of the Holden, and was assisted from the car by witnesses. Her breathing was shallow at that time.
14Amelia Berry is a registered nurse who was outside her nearby property at the time of the collision. After hearing the collision, Ms Berry ran to the scene and spoke to emergency services by phone. She then attended upon each of the occupants of the two vehicles, and updated emergency services as to their conditions. She commenced CPR on Ms Job while she was still in the driver’s seat of the Holden, before returning to Ms Grayling who was trapped in the front passenger seat. She told Ms Berry she was unable to breathe. Ms Berry is to be commended for her efforts to assist each of the victims.
15Lelent Grayling, the husband of Megan Grayling and the step-father of Erynn Job, was the first Country Fire Service volunteer to arrive on the scene. Mr Grayling immediately recognised that it was his wife’s Holden and was assisted to move away from the scene.
16The police, paramedics and other emergency services arrived shortly after and attended to the occupants of both vehicles. Ms Job and Ms Grayling were still trapped in the Holden. Sadly, both succumbed to the significant injuries they sustained in the collision and were declared deceased at the scene.
17Ms Atchison was treated and stabilised and was conveyed to the Royal Children’s Hospital by Air-Ambulance for treatment.
18Ms Atchison suffered a fractured thigh bone, multiple fractures of the sternum and ribs, and bleeding in her chest cavity. She also sustained spiral fractures of the bones in her right hand. Ms Atchison was treated in intensive care for five days and required surgical intervention for injuries to her sternum and thigh bone, bilateral chest drains, and blood transfusions. She remained in hospital for 17 days followed by rehabilitation. Dr Maryanne Lobo, a consultant paediatrician with the Victorian Forensic Paediatric Medical Service assessed Ms Atchison’s injuries as protracted, substantial and life threatening.
19You were also conveyed by Air-Ambulance for treatment at the Alfred Hospital. At 3.25pm that day, a blood sample was taken from you by doctors and was subsequently analysed and found to contain 0.31 mg/L of Methylamphetamine and 0.04 mg/L of Amphetamine.
20Investigators commenced their investigation of the collision scene at 2.20pm that day. Dr Jenelle Hardiman of the Victoria Police Reconstruction Unit also attended the scene and removed the airbag control modules from both vehicles. Based on the data obtained from each vehicle, Dr Hardiman formed the following conclusions:
“In my opinion, the silver Jeep was travelling west along Portland-Nelson Road, Mount Richmond, towards the intersection with Comptons Road, when the vehicle crossed onto the incorrect side of the road for an unknown reason. When the vehicle crossed onto the incorrect side of the road it was travelling about 104 km/h. At the same time, the blue Holden was travelling east along the Portland-Nelson Road, Mount Richmond towards the oncoming silver Jeep. The blue Holden was travelling about 58 km/h.
As the two vehicles approached, the driver of the blue Holden steered right into the west bound lane and the driver of the silver Jeep steered left back towards the east bound lane. At impact, the silver Jeep was travelling about 101 km/h and the blue Holden was travelling about 59 km/h. Based on all the available evidence, the driver of the blue Holden steered right in response to the silver Jeep having crossed onto the incorrect side of the road and into its path. There is no evidence that the silver Jeep was out of control prior to the collision. I am unable to determine why the silver Jeep crossed onto the incorrect side of the road.”
Objective gravity and moral culpability
21By your plea, you accept that the manner of your driving was dangerous to the public having regard to all the circumstances. The consequences of you driving in this manner involve tragedy and loss for the family of Megan Grayling and Erynn Job and significant trauma, both physical and emotional, for Ms Atchison. Knowing you are responsible for the deaths and serious injury of others is a heavy burden that you must now carry.
22In sentencing you, I am required to assess the objective gravity of your offending and your moral culpability for your conduct. In doing so, it is necessary to consider the degree of risk of harm caused by your manner of driving. This assessment is made having regard to all the circumstances of your driving, as offending of this nature encompasses a wide range of factual circumstances and criminal culpability.
23In this case, the following factors are relevant to my assessment of the objective gravity of your offending. It is not disputed that you drove whilst fatigued. You made the decision to drive, whilst fatigued, on Christmas eve, on a road that is a major route between Mount Gambier and Portland. Due to your fatigue, you drove onto the wrong side of the road in the face of oncoming traffic with disastrous consequences.
24There is no evidence that you were driving erratically or at excessive speed or that your driving was out of control prior to the collision. Based on the pre-collision data obtained by Dr Hardiman, five seconds prior to impact you were driving the silver Jeep “gently to the right, although travelling on an essentially straight section of road”. At about one second before impact, you steered left. Dr Hardiman states the “steering angle changed from 6 degrees to the right to 10 degrees to the left in 0.2 seconds” and that in the ‘1.0 second before impact’ you “released the accelerator pedal and steered left up to 80 degrees causing the electronic stability control to activate”. You did not apply the brakes of the vehicle prior to the collision.
25Dr Hardiman explains that the action of steering to the left in the 1.0 second prior to the collision was “consistent with an emergency steering manoeuvre”.
26I accept that the effects of fatigue caused you to drive onto the wrong side of the Portland-Nelson Road, when you were driving at a speed of just over 100 km/h. Although this happened in a matter of moments and despite making a last minute attempt to swerve out of the way of the oncoming traffic, you were unable to avoid a head-on collision with the Holden driven by Ms Job.
27The gravamen of your offending relates to the fact that you drove on the Portland-Nelson Road whilst fatigued. The factors causing or contributing to your fatigue at the time of the collision, including the role played by your use of methylamphetamine, were the main focus of your plea hearing.
28Upon being hospitalised following the collision, hospital staff suspected you were experiencing obstructive sleep apnoea and commenced treating you with continuous positive airway pressure therapy (CPAP). A diagnostic sleep study was conducted on 11 August 2022 at the Alfred Hospital and you were diagnosed by specialists with ‘very severe apnoea with a high hypoxic burden’.[2]
[2]Exhibit 1 - letter from Dr Chris Yu, Respiratory and Sleep Consultant, Alfred Health dated 19 September 2022
29Dr Chris Yu, your treating respiratory and sleep physician, gave evidence on your plea and his detailed report dated 14 February 2023, was tendered.[3] In that report, Dr Yu explains that obstructive sleep apnoea (OSA) is characterised by recurrent episodes of complete (apnoea) or partial upper airway obstruction during sleep causing fatigue and insomnia. Dr Yu states that untreated OSA is a significant contributor to motor vehicle collisions, stemming from excessive daytime sleepiness and cognitive impairment due to “sleep fragmentation” associated with OSA.[4]
[3]Exhibit 2 – report of Dr Chris Yu, Respiratory and Sleep Consultant, Alfred Health dated 14 February 2023
[4]Ibid, at page 3
30As to the role played by amphetamine in the context of your diagnosed OSA, Dr Yu expressed the following opinion:[5]
In my opinion, it is not possible to accurately envisage the impact of amphetamine on driving in a patient with severe OSA. Individually, they are both associated with motor vehicle accidents. However, the cumulative effect is difficult to predict. It would be important to know the dose, frequency, time of onset and chronicity of amphetamine use in this case.”
[5]Ibid, at page 4
31At the plea hearing, Dr Yu stated that you had reported pre-existing symptoms suggestive of OSA, but clarified that the symptoms are “non-specific” and can relate to a range of conditions, such as cardiac ischemia or asthma. It is only after the diagnostic sleep study was conducted in August 2022 that your severe OSA was diagnosed following the collision.
32At the plea hearing, Mr Papas, who appeared on your behalf, agreed that by your plea you accept that your manner of driving onto the wrong side of the road could not be characterised as involuntary. It was also accepted that the fatigue was caused by both your diagnosed OSA and your use of methylamphetamine. However, Mr Papas submitted that the prosecution could not prove to the requisite standard what proportion either played in contributing to your fatigue that day. This submission was accepted by the prosecution. Mr Nibbs, appearing for the prosecution, fairly conceded that the prosecution could not prove whether the use of methylamphetamine played a greater or lesser role than your diagnosed OSA in causing your fatigue.
33On a plea, the prosecution bears the onus of establishing any aggravating feature of an offence beyond reasonable doubt. The difficulty that arises in assessing the objective gravity of your offending and your moral culpability is that, on the evidence before me, I am unable to determine the extent to which either factor contributed to your fatigue, or whether one played a more significant role than the other. The criminality of your offending relates to your decision to drive whilst fatigued having consumed methylamphetamine but I accept that the degree which the methylamphetamine caused your fatigue cannot be determined with precision.
34I find that your offending was characterised by inattention and due care in the manner of your driving, due to fatigue, resulting in your act of driving onto the wrong side of the road. You should not have been driving when fatigued. Your moral culpability for doing so could not be assessed as low. Undoubtedly, the presence of methylamphetamine as a contributing factor to your fatigue is an aggravating feature of the offending. However, the role played by your OSA is not.
35As stated, there is no evidence that your manner of driving before steering onto the wrong side of the road was otherwise erratic or dangerous. It is not clear why you drove onto the wrong side of the road, other than due to the effects of fatigue. However, the consequences of that fatigue resulting in the momentary loss of proper control of your vehicle has had catastrophic and enduring consequences. It cannot be forgotten that two lives were lost as a result of your actions and that Ms Atchison was seriously injured.
36The profound impact of your offending is borne out by the victim impact statements of Ms Atchison and the family of Megan Grayling and Erynn Job.[6]
[6]Exhibit B – Victim Impact Statement of Jacinta Atchison dated 25 July 2023; Exhibit C – Victim Impact Statement of Lelent Grayling dated 17 July 2023; Exhibit D – Victim Impact Statement of Jayden Job dated 17 July 2023, and Exhibit E – Victim Impact Statement of Callum Grayling dated 17 July 2023.
Victim Impact Statements
37It is readily apparent from those victim impact statements that Megan Grayling was a much-loved mother, wife and friend who will be greatly missed. Erynn Job was a cherished daughter, partner and sister. Their sudden and untimely deaths have left their family and Ms Atchison bereft. The victim impact statements make it clear that anniversaries, birthdays and special family events will forever be a reminder of their absence.
38Mr Lelent Grayling, the husband of Megan Grayling and Erynn’s step-father, speaks of the unimaginable anguish of attending on the scene as the first responder, only to recognise his wife’s car. He says he is haunted by what he did and did not do at that time, now wishing he had taken that opportunity to tell his family how much they were loved. Understandably, the loss of his wife and daughter has had an immeasurable impact on his emotional wellbeing, leading him to isolate himself from family and friends. He says his heart is broken having to witness the impact the crime has had on his children.
39Jayden Job and Callum Grayling both cherished daily contact, hugs and the reassurance provided by the presence of their mother, and describe a profound sense of loss at her passing. They now fear the approach of Christmas, which is no longer a cause for celebration. Both speak of their lives changing forever and the inability to share special times, such as graduations, with their mother and sister.
40For Jacinta Atchison, her injuries are not the only reminder of that day. She now struggles to form close relationships and finds it difficult to trust others. She fears that those she cares for most will be taken away from her in an instant. She has difficulty sleeping, experiencing recurrent nightmares. She eloquently describes a loss of stability and sanctuary provided by Megan Grayling, who she says was like a mother to her. She is forever grateful she had Erryn and Megan Grayling in her life but now feels socially isolated. She finds it difficult to think about a future.
41I have taken the profound impact of the loss of Erynn Job and Megan Grayling into account in sentencing you, in addition to the enduring impact the collision has had on the life of Ms Atchison.
Personal circumstances
42I turn now to discuss your personal circumstances, much of which I have derived from the information you provided to Gina Cidoni, psychologist, who assess you for the purposes of your plea on 10 and 24 May and 21 July, 2023.[7]
[7]Exhibit 3 – Psychological report of Gina Cidoni dated 22 July 2023.
43You were born in Portland in January 1970 and are now 53 years old.
44You were raised by your parents on a 400-acre cattle farm, that had been purchased in 1975. You have a younger sister, who is now married with children, living in Hayword.
45You completed your secondary school education to Year 10 at Portland Technical College. As a teenager you participated in tennis and football, representing Portland in the Under 18 football league, and then for the seniors team in Tyrendarra.
46After leaving school, you commenced a motor mechanic apprenticeship, which you successfully completed over a period of five years. After completing your apprenticeship, you found alternate work as a bricklayer which you undertook for a period of five months before sustaining a workplace injury when you fell into a 4-metre pit. Following this accident, you were unable to work for a period of 8 years due to an injury to your spine.
47A long-term family friend of yours, Heather Curran, has described this as a very difficult period for you, leading to you ceasing all work and sport.[8]
[8]Exhibit 4 – Letter of Heather Curran dated 15 July 2023
48Following your recovery, you found employment at the Portland wharf as a crane driver, where you worked for a period of 27 years. In a letter provided by your employer, QUBE Ports Portland, dated 4 May 2023 you are described as a reliable employee, holding the position of foreman/shift manager between 1986-2007 and then Operations Manager between 2007-2021.[9]
[9]Exhibit 4 – Letter from David Bothe, QUBE Ports Portland dated 4 May 2023
49In 1995 you purchased the farm next door to your parents, and together with them, you worked the two farms together.
50You are not married and have no children although you have had relationships in the past. You now have a close friendship with a female in your local community who has provided you with strong emotional support.
51Your father died in 2019 having suffered a cardiac arrest whilst driving. After your father’s passing, you ultimately resigned from your long-term employment on the wharf to assist your mother, who is now aged 72, to manage the family cattle farm.
52Your father’s sudden passing was a difficult time for you and your family. Although you began using cannabis and experimented with amphetamines as a teenager, following your father’s death you reported to Ms Cidoni that you resumed methamphetamine use sporadically over a period of two years, including two days prior to the collision.[10] Mr Hemingway, who provided a reference on your behalf, also refers to you experiencing a period of depression following your father’s death, stating you did not socialise during this time, and began using illicit drugs on a recreational basis.[11]
[10]Exhibit 3 – at [48]
[11]Exhibit 4 – letter of Mark Hemmingway dated 24 July 2023
53You informed Ms Cidoni that you had never tested positive for illicit drugs during your working life prior to your father’s death. This is supported by the letter provided by your former employer at QUBE Ports, which states that you were required to undertake frequent, random drug and alcohol tests during your employment on the wharfs and that you never returned a positive test result.[12]
[12]Exhibit 4 – letter from Mark Bothe of QUBE Ports dated 4 May 2023
54Between the period 1988 and 2010 you committed a number of traffic-related offences, including three instances of driving under the influence of alcohol. Dating back to 1988-1990, you had been fined on three occasions for careless driving. On 17 September 1991, you were fined and your probationary licence was cancelled for driving with a blood alcohol content of .160%. You were 21 at the time of this offence.
55Between 1993-2002 you were fined and your licence was suspended for exceeding the speed limit on four occasions and in June 2003 you received a traffic infringement notice for exceeding the prescribed concentration of alcohol whilst driving. On 1 June 2005, you were fined and your licence was cancelled for driving with a blood alcohol content of 0.132% and for failing to keep to the left of double lines. Your last traffic infringement, for exceeding the speed limit, was in September 2010. Until this point in time, you had demonstrated a poor level of compliance with your obligations as a licenced road user.
56Whilst these driving offences are relevant to my sentence, particularly the matter from June 2005, it is notable that these offences are now dated and that you did not committed any driving offence or receive any traffic infringements in the ten years prior to this offence.
57You have two other minor criminal matters from 1991 and 2003, being a charge of behaving in an offensive manner in a public place and an offence relating to your obligations as a dog owner, for which you were fined. These matters have no relevance to the sentence I am to impose for this offending.
58Following your release on bail on 10 August 2022, your OSA has been treated, and until your recent remand, you have lived with your mother on the family farm and emersed yourself in the physical work of running the family cattle farm to lessen the demands on your 72-year old mother.
Matters relevant in mitigation
59A number of significant matters were raised on your behalf in mitigation of sentence.
60First and foremost, you pleaded guilty to the charges before the court, at the earliest reasonable opportunity. Your plea signifies the fact you have accepted responsibility for the dangerous manner of your driving and saves the court and the community the cost and expense associated with a trial. More significantly, the fact you entered a guilty plea to the charges saved witnesses, particularly Ms Atchison, the ordeal of reliving these events in court or from being cross-examined. In a case such as this, I attach particular weight to this consideration.
61Further, the utility of your guilty plea is heightened at a time when delays to the criminal justice system continue in the wake of the pandemic.[13] You are entitled to, and will receive a significant sentencing discount in light of your guilty plea.
[13]Worboyes v The Queen [2021] VSCA 169
62I also accept that your plea is accompanied by genuine remorse for your offending.
63On your behalf, Mr Papas submitted that remorse is reflected in the fact you entered a guilty plea notwithstanding advice that you had a viable defence to the charges. This submission is based on the potential that the prosecution could not have rebutted an argument of involuntariness based on your diagnosed OSA. Without expressing a view regarding the merits of this argument, I accept that entering a plea having received such advice is demonstrative of remorse.
64Moreover, you have repeatedly expressed remorse for your conduct to family and friends, as reflected in the reference material provided on your behalf. For instance, your mother Marilyn Frost writes that your “guilt has been significant” and that you “could not cope mentally” on remand where she says you struggled to receive any counselling.[14]
[14]Exhibit 4 – letter of Marilyn Frost dated 24 July 2023
65Erica Mather writes that during your time in isolation on remand, “there was considerable time for deep personal reflection and regret for the lives so tragically lost on December 24th, 2020. This regret remains deeply felt and ongoing”.[15]
[15]Exhibit 4 – letter of Erica Mather dated 18 July 2023
66Mark Hemingway, who has known you and your family for 37 years states he has spent many hours with you both before and after you were remanded, during which he says your “guilt and remorse for the family and friends of the victims has been obvious to me.”[16] It is clear to me that your guilty plea is accompanied by significant guilt and remorse and I have regard to that fact in the sentence I impose.
[16]Exhibit 4 – letter of Mark Hemmingway dated 24 July 2023
67It is also relevant to your sentence that you too, suffered an injury due to the force of the collision. Dr Yu, in his report dated 19 September 2022, reports you sustained a fractured sternum with an associated haematoma, a fracture to your lumber spine. Your right forearm was fractured and lacerated. You were treated in hospital for a week before being remanded in custody.[17] Ms Cidoni reports that your back condition worsened whilst in custody, requiring use of a wheelchair. Although you are responsible for the collision, the law regards the injury you sustained as being relevant to your sentence in two ways: first, the ongoing effects of your injury added to the burden of your time in custody and secondly, constitute a form of extra-curial punishment.[18] I have taken this matter into account to a limited degree.
[17]Exhibit 1 – letter of Dr Mark Yu, Respiratory and Sleep Consultant, The Alfred, dated 19 September 2022
[18]R v Barci (1994) 76 A Crim R 103
68There are additional matters that add to the burden of your time in custody.
69As stated previously, you were remanded in custody following your discharge from hospital on 4 February 2021 and were twice refused bail. You remained in custody on remand until being granted bail, in an application that was not opposed by prosecution, on 10 August 2022. This was a period where conditions in custody were modified significantly to respond to the risks posed by COVID-19, including periods in quarantine, extensive periods in lockdown, restrictions on face-to-face visits and limited access to programs.[19] In the reference provided by family friend, Erica Mather, she states that the ‘numerous COVID lockdowns… necessitated total physical isolation from his mother, Marilyn and sister, Kathy. It was an emotionally bereft period for all concerned”. I accept that the restrictions associated with COVID-19 added to the burden of this period in custody.
[19]Exhibit 6 – Letter from Jenny Hosking, Sentence Management Division, DJCS dated 12 August 2023.
70In her report, Ms Cidoni expresses the view that you are “struggling to come to terms” with these tragic events and having conducted psychometric testing, Ms Cidoni diagnosed you with a Post-Traumatic Stress Disorder. Ms Cidoni further states that on neuropsychological testing, you demonstrated trouble with reasoning, concept formation, and an ability to sustain attention or concentration.[20]
[20]Exhibit 3 – at [76]
71Ms Cidoni concludes that “the cumulative impact of these factors, alongside the inherent stress of imprisonment, could have severe implications for [your] overall health and wellbeing.” More specifically, Ms Cidoni states that the environment of prison “may intensify [your] PTSD symptoms, leading to a marked increase in psychological distress”. [21]
[21]Exhibit 3 – at [117], [119]
72Although neither your PTSD nor your level of cognitive functioning operate to reduce your moral culpability for your offending, Ms Cidoni’s opinion regarding the cumulative burden these conditions will add to your experience of custody enliven limb 5 of the authority of Verdins[22] as a matter that is relevant in moderating your sentence to some extent.
[22]R v Verdins & Or (2007) 16 VR 269
73You are also conscious of the difficulties faced by your mother due to your absence in custody. This is borne out in the refence material. During your time on remand, your mother was left to run the farm single-handedly, sustaining injuries to her arms and ribs in the cattle yard in addition to shouldering feelings of grief and shame caused by your offending. Ms Mather states that your mother was initially reluctant to accept help on the farm from neighbours, contractors and other members of the community. Although Mr Papas accepts that the hardship experienced by your mother could not be characterised as exceptional, I am satisfied that your concern for your mother’s safety and wellbeing in your absence adds to the burden of your imprisonment and will continue to do so.
74I have taken each of these added burdens of imprisonment into account in mitigation of your sentence.
Other sentencing considerations
75I now turn to other relevant sentencing considerations.
76As the authorities make clear, the sentencing principle of general deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.[23] To give effect to this principle, the Court of Appeal in the case of Stephens stated there was a need for a gradual increase in the sentences imposed for cases of dangerous driving causing death which fall within or above the mid-category of seriousness.[24]
[23]DPP v Neethling (2009) 22 VR 466
[24]Stephens v The Queen (2016) 50 VR 740
77In sentencing you, I must send an unequivocal message to other drivers who may be tempted to drive while fatigued, that if they drive in a dangerous manner that causes loss of life, they can expect to be imprisoned.
78In my view the sentencing principle of specific deterrence has less of a role to play than the sentencing considerations of general deterrence, denunciation and just punishment. Although you had a poor driving record in the past, I note that prior to December 2020, you had not committed any traffic offence for a period of ten years. You have demonstrated a strong work ethic throughout your life, having spent over 26 years as a valued employee working on the wharfs, and have a strong motivation to assist your mother when you return to the family farm. You continue to have the support of your family, long-term family friends and since being bailed in August 2022, you have complied with strict conditions of bail. I assess you have very good prospects of rehabilitation, although it will be important for you to remain abstinent from all illicit drug use into the future.
79Neither counsel were able to refer me to any comparable cases for the offence of dangerous driving causing death or serious injury. The offence of dangerous driving causing death is a Category 2 offence for the purposes of s 5(2H) of the Sentencing Act 1991, requiring the court to impose a sentence of imprisonment unless an exception is made out under that provision. In this case, Mr Papas appropriately concedes that a sentence of imprisonment with a non-parole period to be fixed is the only available sentence to be imposed.
Sentence
80Balancing the matters to which I have referred, whilst guided by the maximum penalty for each offence, I sentence you as follows.
81Charge 1 – Dangerous driving causing the death of Megan Grayling – you are convicted and sentenced to 4 years’ imprisonment.
82Charge 2 – Dangerous driving causing the death of Erynn Job – you are convicted and sentenced to 4 years’ imprisonment. This is the base sentence.
83Charge 3 – Dangerous driving causing serious injury to Jacinta Atchison – you are convicted and sentenced to 2 years’ imprisonment.
84Although the charges arise from the one event, it is appropriate that there be cumulation of the sentences to reflect that more than one life was lost and the Ms Atchison was seriously injured by your offending. I order that 12 months of the sentence imposed on charge 1 and six months of the sentence imposed on charge 3 be served cumulatively upon the sentence imposed on charge 2 and upon one another.
85This gives a total effective sentence of five years, six months’ imprisonment. I fix a non-parole period of three years, six months’ imprisonment.
86Pursuant to s 18 of the Sentencing Act 1991 I declare 565 days be reckoned as the period of imprisonment already served under the sentence I have imposed.
87Pursuant to s 89 of the Sentencing Act 1991, your licence is cancelled and you are disqualified from driving for a period of three years.
88Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty, the total effective sentence I would otherwise have imposed is a sentence of seven years imprisonment with a non-parole period of five years.
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