Director of Public Prosecutions v Gavin

[2014] VCC 1756

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 14-00141

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOLLY GAVIN

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	14 October 2014
DATE OF SENTENCE:	17 October 2014
CASE MAY BE CITED AS:	DPP v GAVIN
MEDIUM NEUTRAL CITATION:	[2014] VCC 1756

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Mandie
For the Accused	Mr R. Davis

HIS HONOUR: 

1Molly Gavin, on 14 October 2014 you pleaded guilty to one charge of driving in a manner dangerous, which caused the death of Richard Annal.  The maximum penalty for this offence is ten years' imprisonment.

The background and circumstances of your offending.

2You were born on 19 January 1989.  Ms Gavin, you were the driver of a silver Ford sedan involved in a fatal collision.  You were the holder of a current Victorian driver's licence.  There were no conditions or endorsements attached to that licence.  The licence was due to expire on 17 April 2013. 

3Richard Annal was the rider of a Giant brand road bicycle.  As a result of the collision, Mr Annal suffered fatal injuries and died at the scene from multiple injuries suffered in the collision.  Mr Annal was a retired pensioner.  He was the father of four and grandfather of eight. 

4On the day of the collision he was riding a newly purchased bicycle, training for an upcoming charity bicycle event.  At approximately 9.40 am on Monday 3 September 2012 the fatal collision occurred on the Princes Highway at Nar Nar Goon.  The collision occurred on the westbound lanes of the Old Princes Highway.

5The collision occurred when a Ford driven by you collided into the rear of Mr Annal's cycle whilst he was riding the bike in the left lane of the westbound traffic.  The vehicle driven by Ms Gavin was examined after the accident and described in as new condition.  There were no identified faults in the vehicle which would have contributed or caused the collision.  The Princes Highway, Nar Nar Goon at the scene of the collision was a dual-lane carriageway which ran generally in an east and west direction.  The east and west carriageways were separated by a grassed and treed reservation of approximately 40 metres in width.  The collision occurred on the westbound carriageway, which is a bitumen construction and in good state of repair.  The bitumen surface was approximately 7.6 metres in width and the lanes were separated by broken white lines.  There were tactile line markings defining the outer edge of both lanes and the bitumen surface extended past the tactile markings on the south side of the road to form a paved shoulder.  The bitumen surface on both sides of this carriageway was bordered by grass verges which then led up to a steep earthen embankment with trees on them.  The road was rural in nature and the speed limit at this area was 100 kilometres per hour, which was applicable for this length of road as defined by the erection of signs to that effect.

6The collision occurred on the approach side of a crest of a slight to medium incline and a straight section of road between a roundabout at the end of Bessie Creek Road, located approximately 750 metres east of the collision scene, and Mount Ararat Road, which is located approximately 730 metres to the west.  Large semi-rural properties border the roadside reserve on both sides of the carriageway, and the terrain is a combination of flat and gentle undulating open farmland.  Photographs 1 to 12 of Exhibit C show the scene of the roadway and the collision. 

7On Monday 3 September 2012 you were travelling, as I say, along the Old Princes Highway towards Pakenham when the collision occurred.  You had left your home in Warragul and were en route to Cockatoo in a company-owned car, which is a Department of Human Services car, to collect a client in the course of your employment with the DHS.  You had left your home address at approximately 9.05 am.  You travelled west along the Princes Highway, stopped for petrol at the Caltex Service Station at Longwarry and then continued your journey west along the Princes Highway towards Pakenham.  You then exited left from the Princes Highway at the Nar Nar Goon exit and negotiated three roundabouts in order to access the Old Princes Highway.  Exhibit B, which is the map plan, shows the area that you travelled on.

8At the third roundabout you veered to the left at the first exit and then travelled west along the Old Princes Highway with the intention of travelling to Cockatoo via Army Road, which intersects the Old Princes Highway several kilometres to the west.  You were travelling in the left of the westbound lanes when the collision occurred. 

9The deceased regularly rode his bicycle along the Old Princes Highway, utilising this road as a training route.  This regular training route consisted of travelling along the eastbound carriageway from Pakenham to the roundabout at Bessie Creek Road and then returning to Pakenham along the westbound carriageway, as he was doing on this day.  The deceased was riding his recently purchased Giant road  bicycle in the left westbound lane and was wearing a high visibility fluorescent-coloured vest when the collision occurred.  Given the straight unimpeded stretch of road and slight to medium incline of approximately 730 metres from the exit from the third roundabout to the collision site, you would have had a clear view of all vehicles in the westbound carriageway including the deceased cycling in the left westbound carriageway. 

10I note here that in Photographs 6, 7 and 8 of the photographs, they show a line of yellow wattle trees in full bloom near and adjacent to the point of the collision.  The yellow Hi Vis vest worn by the deceased was a similar colour to the background trees from a distance.  Your vehicle, at some point prior to the collision, veered to the left across the tactile edge line markings, causing the left side of the vehicle to travel along the paved shoulder, while the right side of the vehicle remained within the left travelling lane.  A sudden and severe right steering input by you caused the left side tyre to the Ford to yaw in an arc in that direction and across the tactile markings on the road.  Your vehicle then impacted the rear of the deceased's bicycle as it travelled west in the left lane adjacent to the tactile edge markings. 

11It appears from Photographs 11 and 12 that the left wheels of your vehicle were only approximately one wheel width or thereabouts left of the tactile line on the side of the road before veering in a right direction.  The photographs do not show for what distance the car wheels were on the left of the tactile line before moving to the right, creating the yaw marks referred to by the expert.

12While there is no physical evidence of braking by your vehicle, the vehicle was fitted with a ABS braking system and so it does not necessarily leave evidence of braking, such as skid marks.  However, if the brakes were applied, this must have happened too late to prevent the yaw, causing a sudden and severe steering to the right. 

13The left front bumper of the Ford below the left headlight impacted the rear wheel of the bicycle.  As a result of this impact with the rear of the bicycle, the deceased was projected, first of all, onto the bonnet of the Ford and impacted the left side of the windscreen and then the roof, causing considerable crush damage to both.  The deceased was carried by your car for a distance before falling from the vehicle to the left and impacting heavily on the road.  As a consequence of the momentum gained by the deceased during the initial collision, he slid along the road surface for some distance before coming to rest in a facedown manner diagonally across the left lane.  The impact with the road resulted in the deceased's bicycle helmet breaking, dislodging from his head.  The deceased's dentures, which were also dislodged in this impact, were located on the road surface in several pieces, as were the deceased's spectacles and watch. 

14Several vehicles arrived at the scene of the collision between yourself and the deceased, and the occupants assisted at the scene.  However, there were no witnesses to the actual accident. 

15The only evidence in this case comes from yourself and the photographs of the scene and the accident reconstructionist's opinion based on the observations and your statements and admissions made to the police.

16Ms Gavin, you were spoken to by police at the scene and provided a statement to them at the scene.  In that statement to police you described the events leading up to the collision in this way: 

"I was driving in the left lane.  I noticed that there was a red ute with flashing lights on it stopped on the side of the road not far from the roundabout.  As I continued along the line of the road I sipped on a coffee that I had in the car.  The sun was really bright and I was deciding whether or not to put my sunglasses on.  I reached up with my right hand and pulled the sun visor down and tried to keep the sun out of my eyes.  As I was pulling the visor down, I saw a flash of yellow on the left side near the front of the car.  I immediately swerved 'cause I didn't know what it was.  There was a bang and then all the glass started coming into the car from the windscreen.  It all happened so quick, and I think that after I seen the yellow flash, I knew that it was probably a cyclist.  He would have been just inside the white line on the side of the road but in my lane."

17You then also told police at the scene that you had checked your Facebook account via your mobile phone as you had reached the first roundabout after exiting the Princes Highway, and further, after checking your phone, you had left it on your lap.

18Ms Gavin, in your record of interview on 12 December 2012 you stated as follows:

"At the third roundabout I stopped.  There were two cars coming through it.  They both had their indicator on.  They went toward the highway but I didn't know if they were gonna come in front of me.  I was - I again checked - picked up my phone and looked on the Facebook when I'd stopped.  My phone was then sat onto my lap.  As I turned left and went - made my way onto the Old Princes Highway, I seen a red -I think it was an X-Trail ute, and it had a flashing light on its roof.  When I seen that I put my phone, I picked my phone up off my lap and put it in the centre console - like, not the centre console but a little bit under the radio in the car.  I continued up the road looking in the rear view mirror several times back at the car with the flashing light.  I recall changing the radio station.  I think it was between Nova and 101.1.  I remember having a sip of coffee.  I glanced back at my rear view mirror a few more times at the car with the flashing lights and then, as I made my way to the crest of the hill, I remember looking in the rear view mirror again, and I'm not sure if it was like, I remember something, like it was quite glary ahead of me but it was - I think it was more like, you know, a glare of light - not a light, but like a bit of sun that I was looking at in my rear view mirror. 

At that stage I put the sun visor down my right hand.  As I was putting the sun visor down, I seen the cyclist in front of me.  I would say it seemed to me like he was on the road.  I'm not too sure if he was or if he wasn't.  I tried it brake and swerve and I hit him, and then I remember stopping the car."

19Ms Gavin, you, at no stage, have tried to avoid your responsibility for this collision or blamed some other person or factor.  The expert reconstruction of this collision was conducted by Detective Leading Senior Constable Janelle Mehegan, the collision reconstruction person.  She conducted an analysis of the materials collected at the collision scene and formed this opinion: 

"The likely point of impact between the car and the cyclist was approximately 11.4 metres after the commencement of the yaw marks.  The cyclist was travelling at .26 metres to the right of the audible tactile strips on the westbound lane.  It is my opinion that when the Ford impacted the cyclist, the vehicle was travelling between 93 kilometres and 96 kilometres per hour.  The impact occurred within a short distance of the commencement of the yawing.  When the vehicle commenced to yaw, the left side of the vehicle was wholly on the bitumen shoulder.  The right side of the vehicle was within the westbound lane travelling."

20As I said earlier, Princes Highway at Nar Nar Goon at the scene of the collision is 100 kilometre speed limit.  At the time of the collision it was clear and a sunny day.  The road was dry and the traffic flow was light.  It was submitted that the time delay between the commencement of the yaw mark and the point of impact was less than half a second. 

21The evidence points to a case of momentary inattention and misjudgement by you, Ms Gavin, with catastrophic consequences for the deceased and his family. 

The legal process.

22On 12 December 2012, Ms Gavin, you were interviewed by police about this collision.  You made admissions and expressed remorse and sorrow for the family of the deceased in that interview.  On 4 May 2013, that is some five months later, you were charged by the police and released on bail.  On 28 January 2014 a committal hearing was conducted in this matter.  The matter was then listed for trial in the court here on 26 May 2014.  The matter remained in the list here at Latrobe while it was listed for a plea hearing before me on 14 October 2014.  It is regrettable that this case has taken so long to come to finality.  I am sure that it has been difficult for the deceased's family.  They said so in their victim impact statements.  It has also been very difficult for you and your family to have the uncertainty that you had been facing since that day. 

Victim Impact Statements.

23I received evidence from members of the deceased's family in the form of victim impact statements.  Some of the statements were read into court, others were tendered as part of the exhibit.

24First of all, Maria Annal, who is the widow of the deceased.  Ms Annal spoke of the overwhelming loneliness she now endures in the absence of her life partner.  She outlines the physical difficulties of sleeplessness, headache, nausea and chest pains.  Mrs Annal outlined that the extreme distress at cleaning out her husband's tool shed and other personal items.  She outlined that driving a car is a challenge for her and that her dream of caravanning around Australia in her retirement is now gone.  She had relocated to be closer to members of her family, which had the effect of the financial cost of moving house and dislocation from the home that she had lived in with her husband.  She had to change her employment of some 23 years and now is forced to work on a contract only basis with its attendant uncertainties.  Mrs Annal speaks of her dream that Rick, that is her husband, will return and also flashbacks of the accident.  Overwhelmingly, the prospect of being alone is her biggest fear and challenge for the future.

25Naomi McGregor, the deceased's daughter, set out how her life and that of her family was changed forever by this accident.  She spoke of her sons, Josh, aged 12, and Jye, aged ten, missing their involvement with Poppa.  "Swimming lessons and basketball games just don't have the support and advice from Poppa anymore."  She speaks of the support her husband Steve and she gives to her mother, who now goes home to an empty house.  She spoke of the grief and void occasioned by her father's death.  She did not get the chance to say goodbye and tell him how much they all loved him.

26Shona Pallis is also a daughter of the deceased. The deceased was grandfather to her children, Taylor, Miller and Zali.  "Miller was only five months old at the time and will not remember Poppa."  She says she will miss watching local sport with her father, the Melbourne Storm and going to the Australian Tennis Open with her father.  She and her husband will miss the wise advice about the conduct of their sporting business which the deceased had offered them over the years.  She outlines the hardest thing has been watching her mother deal with the deep hurt and loneliness.  "The leader of the family has now gone, it is a just a void", she says.  She finished with a poem about jumping higher and laughing louder. 

27Juanita Farrell.  Ms Farrell is the daughter of the deceased and mother of three of the grandchildren, Tiarni, Riley and Nate.  She says that Nate will miss his Poppa as a Friday carer.  Tiarni and Riley will not have Poppa's support at their sporting events.  She will miss the support of her father has given her in the conduct of her business.  Her husband Paul will miss the special relationship that he had with the deceased.  The biggest impact is she describes the ache of the heartbreak and emptiness.  She says that laughter in the family has now gone. 

28Conrad Annal, the son, and only son of the deceased, has two sons of his own, James and Zac.  He states that James was too young to get to meet his grandfather.  "Zac was taken to swimming lessons by Poppa from the earliest of age.  Poppa was a very special life mentor to Zac about life matters.  Zac and James will miss an amazing role model", he says.  The opportunity of three generations of Annals, Poppa, Conrad, Zac and James, to go camping, fishing, hiking, cycling and water skiing are gone forever.  He described the deceased not only as his father but his best mate.  He also outlined frustration and anger at the delay of the court process. 

29I have already spoken directly to him about that during the hearing. 

30Carol Henzer is a sister-in-law of the deceased.  She was also one of the people who stopped to offer assistance after the accident that took the deceased's life.  She speaks of the anguish and pain she experienced at the scene of the death itself.  She formally identified the deceased.  She, at times, has nightmares and sleeplessness as a result of this experience.  She states she is now anxious about her own family's safety.  She has a constant sense of dread.  The impact of Rick's death will be with her forever.

31The reading of these victim impact statements had an obvious effect on you, Ms Gavin.  Consistent with your statement to the police immediately after the accident, the character evidence given by your sister, Cara McIntosh, and your own letter of apology to the deceased's family, there can be no doubt about your grief, sorrow and remorse for this offence in respect of the deceased's family. 

32I now turn to the character evidence given on your behalf.

33In the course of the plea, a number of character references were tendered in support of you, and I will list them by name.  There was a reference from your father, Paul Gavin, from your sister, Kelly Gavin, from your brother, Alexander Gavin, from your sister, Cara McIntosh, Chris Blackwood, Dianne Blackwood, Dean McFarlane, Corey McMahon, Daniel Hilton, Lee Sheehan, Kylie Gray, Karina O'Brien, Maree Noonan, Melissa Price, Marita Borten, Chris Ayres, Amanda Cant, Laura McCullough, Lisa Rowe, Scott McIntosh and Peter Croft.  I also heard evidence from Cara McIntosh, Kylie Gray and Melissa Price.  Each of these witnesses have provided written references.

34The overwhelming theme or commonality that is throughout these references are you are selfless in dealings with other people, be them family, friends or work colleagues or children, with your wider family network or with the children that you work for or work with in protection.  The majority of the written references and the evidence given in court spoke of your overwhelming grief and concern for Mr Annal's family.

35Your sister Cara stated that immediately after the accident you were brought to her house and your concern was that you had ruined the family life of the deceased.  Your concern was not for yourself but for them.  The letter of apology to the Annal family, which is Exhibit 4, is a clear example of your concern for them.  The letter is an open, heartfelt apology written by you and not with any lawyer input or legal reason for doing it.  It is the clearest example of your remorse, which each of your witnesses address in their references.

36The character witnesses speak of the impact that the accident has had upon you as well.  They describe that you have become withdrawn and quiet, your engagement to your fiancé has broken down since this accident.  They describe how you have thrown yourself into your work and helping your sisters with their children.

37It is clear from the evidence that you are a person of good character prepared to put yourself out for the benefit of others, be them either family, friends, work or sporting clubs, in particular netball.  You have no prior convictions.

38Your superior, Ms Price, spoke of your passion for child protection work and your ability to communicate with the most challenging of child clients you have been charged to protect.  Ms Price describes how you are always available to go the extra mile for the work.

39I turn to your personal circumstances. 

40You are now 25 years old.  At the time of the offence you were 23.  You are the youngest child of a family of four.  You have two older sisters, Kelly and Cara.  You have an older brother with whom you currently live.  You come from an extremely close family, as between the four children and your father. 

41From the age of about ten or 11 years old, you, in effect, became the carer for your mother, who suffers from alcoholism.  Your mother had been physically abusive towards you despite the fact that you were the main carer for her.  On occasions you have found your mother comatose and called the ambulance.  You were aware of your mother's infidelities.  You acted as her protector in the hope of minimising the hurt your mother would visit upon your father and the other members of the family. 

42In the words of Dr Simon Kennedy, psychologist:

"It could be said that she developed high levels of responsibility, as she had to effectively parent herself and also care for her mother at various points when her mother was alcohol-affected."

43It is clear you had a difficult childhood where you could not take friends to your home when you were growing up.  At the age of 19 you left home, and your father, at or about the same time, divorced your mother and has moved on into a new relationship in his life.

44The closeness and support of your family was demonstrated by their attendance at court to be with you on the plea hearing.  Consistent with the difficult relationships you have had with your mother, she remained at home. 

45You initially attended Nilma Primary School and then completed your primary education at St Joseph's in Warragul.  You then completed your secondary education at Marist Sion College in Warragul.  Your Year 12 was in 2007.  You reported loving your school years at Marist Sion to Mr Kennedy. 

46After school, you attended Monash University here at the Churchill campus.  You have completed a psychology and social community welfare degree.  Whilst studying, you worked part-time in a real estate office to pay your own way.  In your final year of study you commenced with the DHS.  You were working as a contact worker at the time of the accident.  You now work in a case management team for Child Protection and currently responsible for some 15 children.  You are good at your job.

47You make a valuable contribution to society through your work, according to your work colleague, Kylie Gray, and your superior, Melissa Price.  Since leaving school and university, you have been in constant employment and have developed a career at child protection work.

48At the present time you live with your brother Alex and his partner in Warragul.  Since the accident you have withdrawn so that your interest in activities are either to do with your siblings and their children or you have thrown yourself into your work with a passion for helping the underdog.  I am quoting Ms Price now.

49The downside is that you have separated from your fiancé earlier this year.  At times, due to the stress of this case, you have taken days off work because you are unable to cope.  Your employers at the DHS have been able to accommodate your needs in this regard.  You have retained your involvement in the local netball and football club.  You have coached netball at a junior level over the years.

50Your psychological wellbeing has suffered directly as a result of this accident. 

51Dr Simon Kennedy, psychologist, has examined you and he prepared a report which is dated 29 September 2014, which is Exhibit 1 in this plea.  In his report he notes that you fully blame yourself for the incident and take responsibility for it.  You expressed your guilt about Mr Annal’s death and the effect it has had on his family.  Dr Kennedy was of the opinion that you were genuine and that the high levels of emotional distress reflect ongoing depressive symptoms that you suffer.  He assesses your remorse as being genuine. 

52Dr Kennedy has diagnosed you as suffering from post-traumatic stress disorder.  He notes you have been prescribed antidepressants and have been receiving counselling.  Dr Kennedy's opinion is your treatment should be advanced to the level of a psychiatrist to deal appropriately with your depression levels and to correct your medication to deal with that condition.  He states that your level of guilt is in part preventing your recovery from post-traumatic stress disorder.

53In December 2013 you were placed on a general practitioner's Mental Health Care Referral Program.  You have been counselled by Amanda Clarke for some ten sessions between then and now.  Ms Clarke has counselled you for the management of your shame and guilt.

54Ms Clarke says that your recovery process has been hindered by your remorse and guilt.  Ms Clarke confirms that you have become withdrawn and isolated except for basically your work setting. 

55I accept that you are deeply remorseful, wracked by guilt and sorrow for causing the loss of the life of Mr Annal and the impact that has had on his family.  I accept that your letter of apology to the family, which was Exhibit 4, is a genuine reflection of your attitude.

56I now turn to sentencing considerations.

57

In cases of dangerous driving causing death there are a number of factors which are relevant to assessing the seriousness of the actual offending.  They are:

(1)  the extent and nature of the injuries inflicted;

(2)  the number of people put at risk;

(3)  the degree of speed;

(4)  the degree of intoxication or substance abuse;

(5)  the erratic or aggressive driving;

(6)  competitive driving or showing off;

(7)  length of the journey which others were exposed to the risk;

(8)  ignoring warnings;

(9)  escaping police pursuit;

(10) degree of sleep deprivation; and

(11) failing to stop.

58These indices of seriousness were first enunciated in the authority of R v Jurisic, which is a New South Wales case and revised in R v Wiley, which is also a New South Wales case.

59In the recent case of DPP v Jansen, reported here in the Victorian Court of Appeal, those factors were approved as appropriate to assess the seriousness of an offence under this charge.

60In this case the relevant sentencing factor is that Mr Annal was killed as a result of this accident.  There is a lack of any of the other factors in the driving by you, Ms Gavin.  The driving is dangerous because of the momentary inattention and misjudgement, which is made up of looking in the rear view mirror at the vehicle on the side of the road, drinking or sipping a cup of coffee, and adjusting the sun visor as you approached where Mr Annal was riding his bike.  Simply put, you did not see him until it was too late.  The result of the collision is catastrophic.

61At the relevant time, there is no suggestion of speed, alcohol or drugs being used by you, recklessly or aggressive driving, fatigue, or inattention brought about by the use of a telephone or other device.  You did not intend to hurt anyone and in such a case where there is an unintentional harm caused to another, I, as a sentencing judge, must be careful to ensure that a catastrophic consequence such as the death of Mr Annal, does not swamp or overrun all the other considerations in sentencing.

62I accept that your offending falls at the bottom of the scale of culpability for offending of this nature.  It is caused by a momentary to inattention and misjudgment.  That is not to say your offending is not serious.  Your offending is serious.  Your conduct was clearly dangerous. 

63The law is that a sentence imposed for dangerous driving causing death must take into account of the variations in moral culpability of those who commit this offence.  It is also the law that a custodial sentence will usually be appropriate for an offence of dangerous driving causing death, unless the offender has a low level of moral culpability as in the case of moment to inattention or misjudgement.  The authority for that is DPP v Oates.

64The basic purpose for which a court may impose a sentence are punishment, deterrence; both specific and general, rehabilitation, denunciation, and protection of the community.  In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances, and those of your victim and his family. 

65I am required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure as far as possible, that you, the offender, are rehabilitative and reintegrated into society.  The principle of general deterrence is of significant importance in cases of this kind.  The principles of denunciation, just punishment are also important in this case.  I have taken those into account in this sentence. 

66It has long been accepted that denunciation of criminal conduct is a relevant factor in the sentencing process.  In the course of such denunciation, courts do and should have regard to the moral sense of the community and to the community expectations of appropriate punishment.  Courts are however aware that the requirement of justice and the requirements of mercy are often in conflict as we live in a society that values both justice and mercy.

67This case is one where justice and mercy ought to be applied in equal measure.  I take into your account your mental health issues of post-traumatic stress disorder, which would necessarily make any time in custody for you to be deleterious to your health.  I accept that you grief for the deceased and your remorse for your offending are genuine and profound.  I take into account you have pleaded guilty and I suspect would have done so at an earlier stage had it not been for the appropriate, but conservative legal advice you were given, which resulted in a committal hearing.

68I accept that you are of good character and generous to other people.  You are hardworking and I do not think specific deterrence has a large part to play in the sentencing of you for this offence.  You are not likely to offend in this way again.  You are a young person and you were younger at the time of the offence. 

69I have had regard the current sentencing practices in this court and the superior courts here in this state.  The learned prosecutor and counsel for you referred me to a number of cases and case summaries.  In particular, I was referred to the cases of Chloe Jarman, which was reported as a summary in the Victorian County Court, Evie Trikilidis, Rick Morrell and Rae Meyer.  Each of these cases had similar factual backgrounds to the current case, but bearing in mind each case is distinguishable from any other, I have regard to the principles set out in the authority of DPP v Neething, DPP v Oates and DPP v Jansen, when fixing a sentence in this case.

70Mr Marshall, on your behalf, submitted that the appropriate disposition was a wholly suspended sentence.  The applicable law at that time allows for a suspended sentence in your case.  I am sure that, whilst the public expectation is that for offences of this type, where a person is killed, a sentence of immediate custody is required.  An informed understanding of the particular circumstances of this particular case and the offences, combined with a fully informed understanding of you the offender, would agree that you should not have to serve an immediate custodial sentence.  I will suspend the sentence I impose upon you.  If you would stand, please. 

71On Charge 1, you are convicted and sentenced to 18 months imprisonment.  I propose to suspend the sentence of 18 months for an operational period of two years.  Before I do that, I am obliged to inform you that you have been convicted and sentenced to a term of imprisonment of 18 months, but you will not have to serve that sentence immediately.  However, if you commit an offence in Victoria or elsewhere punishable by imprisonment, you may be brought back before this court to be further dealt with and absent exceptional circumstances, you will be ordered to serve the suspended sentence.  Do you understand that.

72OFFENDER:  Yes.

73HIS HONOUR:  In that case I will suspend the sentence of 18 months for an operational period of two years. 

74Under s.89 of the Sentencing Act I cancel your licence and you are disqualified for a period of two years. 

75Under s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to a term of imprisonment of two and a half years. I am not sure that the sentence would not have been suspended after a trial. I just do not know at this stage. That would depend upon what happened during the course of the trial, therefore I do not declare a non-parole period for the s.6AAA.

76Is there anything else?

77MS MANDIE:  Your Honour, there is one matter.  There were four related summary charges that were uplifted and we seek to have them dismissed.

78HIS HONOUR:  Right.  I have not seen them. 

79MS MANDIE:  I can pass them up to Your Honour.

80HIS HONOUR:  Thank you.

81MS MANDIE:  They are Charges 2 to 6.

82HIS HONOUR:  Yes.  Thank you.  You can take a seat, Ms Gavin.  The uplifted charges, Summary Charges 2, 3, 4, 5 and 6, those charges are dismissed.

83MS MANDIE:  Thank you.

84MR DAVIS:  Thank you, Your Honour. 

85HIS HONOUR:  I will just hand those charges back.  You can step out of there, Ms Gavin.

86Does that finalise all the matters in this case?

87MS MANDIE:  It does, Your Honour.

88HIS HONOUR:  Thank you, Mr Davis, for attending.

89MR DAVIS:  Thank you, Your Honour.

90HIS HONOUR:  Thank you very much, Ms Mandie, for your assistance in this case.  It is very difficult.  I hope everyone present can try and move on.

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