Director of Public Prosecutions v Guseli
[2018] VCC 291
•14 March 2018
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01184
DIRECTOR OF PUBLIC PROSECUTIONS Prosecution
v
MICHAEL GUSELI Defendant
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JUDGE: HIS HONOUR JUDGE MURPHY
DATE OF HEARING: Trial: 29 – 31 January 2018; 1 – 7 February 2018
Plea: 6 March 2018
DATE OF SENTENCE: 14 March 2018
CASE MAY BE CITED AS: DPP v Guseli
MEDIUM NEUTRAL CITATION: [2018] VCC 291
REASONS FOR SENTENCE
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CRIMINAL LAW – Sentence – Culpable driving – Gross negligence – Verdict after trial – Excessive speed – Plea of not guilty – Upper range of seriousness – Victim not wearing seatbelt – Pasnyk v The Queen (2014) 43 VR 169; Spanjol v The Queen (2016) 79 MVR 33; R v Kilic (2016) CLR 256; Director of Public Prosecutions v Dalgliesh (A Pseudonym) (2017) 91 ALJR 1063; Stephens v The Queen (2016) 50 VR 740, considered
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APPEARANCES: Counsel Solicitors
For the Crown Mr J Singh Mr J Cain, Solicitor for Public
Prosecutions
For the Defendant Mr M McGrath Slades & Parsons
HIS HONOUR:
Michael Guseli, after an eight day trial, on 7 February 2018, a jury found you guilty of culpable driving causing the death of Eddie Kocjancic at Port Melbourne on 7 November 2014. The jury deliberated for less than one day.
You were first tried in October 2017 when the jury was unable to agree on a verdict. I am now required to sentence you according to law in accordance with the jury verdict. The maximum penalty for culpable driving is 20 years' imprisonment.[1]
[1] Crimes Act 1958 (Vic) s. 318.
Eddie was a good man. On 7 November 2014, in the early hours of the morning, he had commenced his occupation as a truck-owner driver where he would drive his prime mover towing a tanker trailer delivering cement to various batching plants throughout Victoria from the Cement Australia facility. Eddie had just completed filling his tanker with cement from the silo located on Lorimer Street in Port Melbourne, which is located at a wharf on the banks of the Yarra River. That morning, he had already completed a job on the Mornington Peninsula.
The combined mass of the prime mover and fully loaded trailer was nearly 46 tonnes.
Eddie drove his rig from the silo/weighbridge towards the exit gate on Lorimer Street. He was on his way to make a delivery in Warragul. He drove towards the gate, which opened automatically, and proceeded to commence a left-hand turn at a crawling pace of less than 10 kilometres an hour into Lorimer Street, heading east towards the city.
At that point, Lorimer Street is a divided carriageway, with two lanes each way, divided by a tree-lined median strip. Due to the size of the prime mover and trailer, to execute the turn he was required to swing into the right-hand of the two lanes of the carriageway, heading east. It was 5.22am and still dark outside, despite it being daylight saving. The weather conditions were dry.
As Eddie executed the left-hand turn into Lorimer Street, he had a clear view for approximately 400 metres up Lorimer Street, towards the west.
You were living with your then partner and your son in a unit only a kilometre further east, just off Lorimer Street. Your son was four months old at this time.
You had been preparing to open a restaurant you had recently acquired and were renovating in Carlton. You were driving a 2013 Chrysler SRT 6-litre V8 sedan east on Lorimer Street towards the city.
10.As Eddie swung his prime mover onto the carriageway of Lorimer Street, you collided with the driver’s side of the prime mover, just below the driver’s side door with the impact being taken by the fuel tanks attached to the chassis at that point.
11.There was a glancing impact by your vehicle and it proceeded to do a 180 degree rotation anticlockwise before crossing the median strip, hitting a tree and coming to rest on the west-bound carriageway facing west. The front seat airbags were deployed and, as a result of the impact, the entire front left wheel assembly and suspension were torn from the vehicle, but there was minimal protrusion into the footwall of the cabin. A small fragment of the truck cabin was lodged in the passenger side pillar of your vehicle.
12.You walked from the vehicle uninjured. Immediately after the impact, the prime mover and trailer continued rolling for about 35 metres until it came to a rest after colliding with a tree on the northern edge of the east-bound carriageway.
13.As a result of the impact to the diesel fuel tank on the prime mover, the fuel was vaporised and, because the fuel came into contact with a hot object (likely the exhaust pipe), a diesel fuel blaze commenced that ultimately proceeded to a conflagration totally destroying the prime mover and substantially damaging the trailer.
14.A security guard on his way to work travelling west along Lorimer Street observed the initial blaze and immediately stopped. He approached the cabin of the prime mover noting that the door was already open. He reached up and stood onto the step leading into the cabin looking for the driver. The cabin was empty, and he was forced to retreat due to the encroaching flames.
15.A passing truck driver also stopped and checked for the driver of the prime mover. You also checked the prime mover cabin and could not see the driver. You spoke to those who first attended. As the fire grew in size, police were called and arrived shortly thereafter. The MFB were not far behind. At the trial, mobile phone photographs of the rapidly developing fire were taken by three people who attended the scene, and vision from a CCTV camera located nearby showed the developing conflagration.
16.The MFB officers applied foam to the fire and eventually extinguished it while police cordoned off the area. The ambulance service was also in attendance.
17.Sometime after the blaze was under control, an MFB officer located the body of Eddie underneath his tanker trailer, about 14 metres from the initial impact spot. It was common ground that, as a result of the collision, Eddie, who was not wearing his seat belt, was ejected from his cabin onto the road, where he was run over by the wheels of either his prime mover or the trailer. He died instantly as a result of catastrophic head injuries. His body also suffered burns as a result of the fire.
18.You appeared shaken and shocked by the collision. Police administered a preliminary breath test that returned a negative result. Ambulance officers took you home shortly thereafter. Sometime later, a senior police officer had you brought back to the scene of the collision and a field interview was conducted, where you told police that you were travelling at the speed limit, which was 60 kilometres per hour. You denied that you were suffering from fatigue or were under the influence of drugs.
19.Investigators retrieved the Airbag Control Module (‘ACM’) from your vehicle. The Module records data – like a ‘black box’ – about the speeds of the vehicle in the five seconds before an event where the airbags are deployed.
20.The data, which was not challenged on the trial, indicated that five seconds before the collision the engine was at full throttle and you were travelling at 174 kilometres an hour. You continued accelerating to a point where, at 3.8 seconds before impact, your speed was recorded at 182 kilometres per hour, with the engine peaking at 5909 revolutions per minute. At this point, your vehicle would have been about 138 metres from the point of impact.
21.Thereafter, the acceleration stopped and the brakes were engaged, reducing the speed of the vehicle in the next 3.7 seconds to 93 kilometres per hour at impact. As a result of the impact between your vehicle and the prime mover, there was a reduction in speed of your vehicle of 54 kilometres an hour, as it rotated and came to rest.
22.Approximately one month after the collision you were again interviewed by police. In this interview, notwithstanding the data retrieved from the ACM, you maintained that you were travelling at the speed limit, and confirmed your account in the field interview taken on the day of the collision. You admitted that you had full vision of Eddie’s truck before the collision.
Subsequent events
23.You were charged with culpable driving and, on 9 July 2015, committed for trial. The trial was listed to commence on 2 May 2016. It was a condition of your bail that you not drive a motor vehicle. It was common ground that you adhered to this condition.
24.As a trial date approached there were a number of funding mention hearings as you sought to obtain funding for the trial. Ultimately, the trial date was vacated and your then solicitors ceased to act for you. A new trial date was fixed for 6 February 2017. Your new solicitors then sought an adjournment to obtain an expert to challenge the prosecution crash reconstruction evidence and the data from the ACM. You secured funding for a recognised expert, and his report was not prepared and served until August 2017, with the trial rescheduled again for 9 October 2017.
25.The expert retained on your behalf did not dispute the evidence retrieved from the ACM, but opined that a cause of Eddie’s death was that he had not been wearing his seatbelt and had been ejected from the cabin as a result of forces operating on his truck in the collision.
26.The prosecution reconstruction expert did not really dispute that as a result of a failure to wear a seatbelt, Eddie may have been ejected from the cabin in the collision. Due to the destruction of the cabin in the fire it was difficult to definitively ascertain whether the seatbelt was in use, and the autopsy report did not show seatbelt injuries.
27.The prosecution maintained its position that your grossly negligent driving was a significant and substantial cause of Eddie’s death and thus, it was open to the jury to find you guilty of the charge of culpable driving as distinct from the lesser alternative of dangerous driving causing death.
28.At your first trial your counsel put the seatbelt theory to the jury. The jury, as I said, was unable to agree upon a verdict.
29.At the second trial, your counsel again put to the jury the seatbelt causation theory, and also put to the jury that Eddie was failing to keep a proper look out, and this too was a cause of the accident and his death.
30.As I said, the jury took less than a day to bring in a verdict of guilty, and I am required to sentence you in accordance with the jury verdict.
Seriousness of the offence
31.The offence of culpable driving can be committed in a number of ways. Reckless driving causing death has sometimes been said to be more serious than causing death by gross negligence. It is clear, however, that there is no hierarchy of seriousness.[2] A single offence was created and each case must be considered on its specific facts.
[2] Pasnyk v The Queen (2014) 43 VR 169; [2014] VSCA 87.
32.While culpable driving by recklessness or gross negligence may both involve an act of omission, the particular circumstances must be carefully considered. In a particular factual circumstance, conduct involving gross negligence may be more serious than one involving recklessness. This is such a case given the circumstances of the offence here.
33.It is first necessary to characterise the seriousness of the offence. The offence of culpable driving by gross negligence requires the prosecution to prove that the victim’s death was a result of you having driven in a way that fell far short of the standard expected of a reasonable person in the circumstances and which held a high risk of death or serious injury. ‘Gross’ is to be given its ordinary meaning.
34.Your conduct, which involved accelerating this high performance vehicle at 100% of the throttle to what must have been close to the engine’s highest revolutions, before it reached 182 kilometres per hour, is a very gross falling below the standard required by a driver on the roads. Your own expert opined in his report that it may have taken six seconds to get to that speed from a standing start.
35.Here, your counsel did not dispute the speed at which your vehicle was travelling. He submitted, however, that the offending should be seen as being in the ‘mid-range’ or ‘upper mid-range’ for offences of this type on the basis that there was an absence of aggravating factors, such as drugs or alcohol, driving whilst disqualified, driving for an extended period at an excessive speed, failing to stop or fatigue.
36.In his address to the jury, Mc McGrath on your behalf maintained that you should not be convicted of culpable driving by gross negligence on the basis that Lorimer Street, at that point along the road, was a divided carriageway, there was limited traffic at the time, and there were no intersecting roads on the northern carriageway, and as such, your driving did not pose a high risk of death or serious injury. The jury must be taken to have rejected this case put on your behalf.
37.While there may have been little traffic at that time of the morning, this was a commercial and industrial area. The Concrete Australia facility was a 24-hour facility and CCTV footage in the trial shows vehicles and light commercial vehicles in the vicinity at the time. Another concrete truck was about to follow Eddie onto Lorimer Street.
38.Lorimer Street itself is a B-Double truck route. The speed limit, as in most of the metropolitan non-residential area, was 60 kilometres per hour. This reflects the mixed range of vehicles using the area and the need for drivers to be in a position to give and take on crowded roads.
39.You were familiar with the area as you had been living nearby and regularly used this route.
40.It requires a conscious and sustained act to accelerate a vehicle to what must be close to its maximum revolutions. You must have been accelerating that vehicle flat to the floor for some seconds to get it to 182 kilometres an hour before you saw Eddie’s truck, reacted, and sought to brake to avoid the collision. It is one thing to exceed a speed limit. It is another thing to accelerate a high-performance vehicle to 182 kilometres an hour, triple the speed limit, in a built-up area, while it was still dark. It is axiomatic that at that speed in the event of an accident there is a high risk of death or serious injury. This is what happened here. Eddie Kocjancic did not stand a chance.
41.In terms of your culpability for this offence, the offence itself must be considered in the upper range of seriousness for this offence, approaching a worst-case.
42.It follows from this that I reject your submission that the fact that Eddie was not wearing a seatbelt and may have survived the collision if he was so wearing a seat belt is a matter of mitigation.
43.Eddie Kocjancic was blameless and entirely unassociated with your conduct and the events which led you to commit this offence. It would be an affront to common sense to somehow or other reduce your culpability on the basis that Eddie had not affixed his seat belt in circumstances where his driving did not present any risk to other road users.
44.You owed a duty to all road users including truck drivers just inching their rigs out of a loading facility onto the carriageway even if they had not fastened their seat belt prior to substantively commencing their journey. Your driving was the substantial cause of Eddie Kocjancic’s needless death and it is pure casuistry to seek to reduce your responsibility on the basis that he was not wearing a seatbelt. On any common sense approach he was the innocent victim of your grossly negligent driving.
45.Your counsel relied on the case of Spanjol[3] to support the argument that the failure of Eddie to wear a seatbelt is a matter in mitigation. I regard that case as confined to its facts and it does not address the case here where there is no prior connection between you and Eddie.
[3] Spanjol v The Queen (2016) 79 MVR 33; [2016] VSCA 317.
Victim Impact
46.The impact of a criminal offence is a matter that goes to its seriousness and must be taken into account in sentencing. In circumstances where a death has occurred, no sentence will replace the loss that has been suffered. At the same time, those impacted by a crime must have their voices heard as part of the sentencing process. Only full repetition of the six victim impact statements that were read out on the plea would do justice to the impact that your crime has had on Eddie’s family and friends.
47.Eddie was a dutiful only son to his elderly parents and parents-in-law, a brother to his sister, a dutiful husband to his wife of nearly 20 years, a father to his now 19-year-old son with autism and a 16 year old daughter, who will not have her father to walk her up the aisle on her wedding day.
48.He was a friend to many including a long-time friend, Mr Evans, who referred to the wide range of people who attended his funeral. In his victim impact statement, Mr Evans said at the funeral there were all types of people:
"Blue and white collar workers, young and old, wealthy and battlers, rough diamonds and more gentle people."
49.He goes on to describe his attributes.
"What I want to say is that besides being a truck driver, Ed had also been a sign writer, bottle shop attendant, advertising salesman for Leader Newspapers, a restaurant owner and manager and a handyman during his life. His signwriting skills were exceptional."
50.He referred to his spontaneous kindness and could have provided numerous examples. He referred to him taking his family out and his own son out on boating trips.
51.In her victim impact statement, Eddie's wife said this:
"For me every day is a constant struggle. Two months before our 20th wedding anniversary Eddie was killed. I lost my partner, my best friend. We used to call each other several times throughout the day when we heard something on the news or ran into someone we knew. Now, when this happens, I think to myself Eddie would have liked this, but he's not there to talk. The grief, the pain, the anger, the sadness, every emotion is still there, it never goes away and, of course, there is the loneliness. Being the parent of a special needs child means I am a full-time carer now, which means I never go out. My parents and Eddie's parents are all in their eighties, so, therefore, they are not able to help out as much as they would like to, nor should they have to. They should be enjoying their final years. This is also worrying to me now because, without Eddie here, I will have a great difficulty in the future looking after my elderly parents as well as my adult autistic son."
52.She elaborates then on the intangible and tangible damage to the family unit of which Eddie was the centre, which has been destroyed by your mindless, thoughtless and inexplicable act. The little platoon at which he was at the centre, and which allowed a special needs child to be cared for, a family to be provided for, elderly parents and parents-in-law to be assisted, has been irrevocably disrupted by this offence. Costs and inter-family transfers that were part of that family unit are now likely to be borne by the community at large.
Prior convictions
53.You have admitted a limited, but relevant, criminal record. You were born on 13 August 1974 aged 40 at the time of this event. When you were 25 at the Shepparton Magistrates' Court your licence was suspended for four months and you were fined $300 for driving at a speed exceeding the speed limit.
54.In April 1999, you were placed on a 12-month good behaviour bond for careless driving and registration infringements. At the Melbourne Magistrates' Court on 7 June 2006 you were fined an aggregate sum of $700 for leaving the scene of an accident and unlicensed driving. On 8 January 2008 at the Melbourne Magistrates' Court for exceeding the prescribed concentration of alcohol you were fined $750 and your licence was cancelled and you were disqualified from driving for 20 months.
55.On 28 April 2010 at the Melbourne Magistrates' Court for driving whilst disqualified you were sentenced to one month's imprisonment, suspended for a period of 12 months and your licence was cancelled and you were disqualified from driving for seven months. On the same date for exceeding a 90 kilometre speed sign by between 25 and 35 kilometres per hour, your licence was cancelled and you were disqualified from driving for one month and fined $250.
56.Your driving record indicates that over the 15 years before this accident your licence had been cancelled or you had been suspended on three occasions. You have two speeding convictions, an appearance for careless driving and two for unlicensed or driving whilst disqualified.
57.This offence occurred just under four years after you became eligible to be relicensed after your cancellation and disqualification for drink-driving.
58.While this record is not the worst seen in many of these cases, your blemished driving record, plus your plea of not guilty, means that considerations of specific deterrence have some salience here.
Personal circumstances
59.Your personal circumstances were outlined on the plea and are set out in more detail in a report from Carla Lechner, clinical psychologist, that was tendered on the plea and which I incorporate by reference. You are now aged 44. Your parents are of Italian extraction and came to Australia to work on the Snowy Mountains Scheme. You have two older brothers. Your parents separated when you were about seven years of age, and both your parents remarried and you have two younger step-brothers. After the separation you resided with your father in the Shepparton area.
60.You were schooled in the Shepparton area and were subject to some bullying on account of your parents' membership of a religious sect and your own Italian background. This caused loss of self-confidence and, at times, bad decisions and choosing bad friends. You were able to remain in school until partway through year 11 when you joined your father’s family business in swimming pool construction. When you were 26 years old you married and moved to Melbourne. You have no children from this marriage and it continued for five years before you separated. When you arrived in Melbourne you worked as a subcontractor for swimming pool companies and also sold musical instruments.
61.You advanced your qualifications by obtaining TAFE certificates and achieving builder’s registration. In 2004 you established a pool installation business which continued for over a decade and employed up to 15 people. I note a very good reference from one of your employees and also an employee who you sponsored under a section 457 visa. In 2013 you purchased a pizza restaurant and were proceeding to renovate and refurbish it and were due to open it shortly after this accident.
62.In 2009 you partnered with Rachel Ernst. Your son, Milan, was born in July 2014. The two of you were living together in a unit very close to the scene of the collision.
63.Subsequent to the collision your relationship with her deteriorated and you have amicably separated, although you have continued contact with her and your son, and she supported you throughout the trial. You also have the support of a number of family members, including brothers, step-brothers and parents, who are present here today and were present on the plea.
64.In the period since the collision you have sought to maintain your business and the restaurant business that you had purchased. However, under the pressure, both businesses have failed and you have been working as a labourer in construction in recent times and are currently single.
65.Your personal history and the two references that were tendered on the plea indicate that you have a good work record and have been a productive member of the community, which supports your prospects of rehabilitation notwithstanding your plea of not guilty and thus the lack of full remorse.
Prospects of rehabilitation
66.It is always in the community’s interest that offenders be rehabilitated into society. Your counsel submitted that you have good prospects of rehabilitation given that you have family support, you have not reoffended in the period since the offence, your work history, your relatively limited driving record, and your age.
67.The learned Crown prosecutor submitted, however, that your prospects should be assessed as at best, guarded, given your plea of not guilty and lack of remorse.
68.I regard your prospects as fair to reasonable. The delay between the date of the offence and the present has allowed you to remain in the community and you have not reoffended, which supports a conclusion that upon release, notwithstanding your plea of not guilty, your prospects of not reoffending are fair to reasonable.
69.Also relevant is the report of Ms Lechner, who indicates that you do have some insight into your offending and some victim empathy. There is much in her report that indicates regret and reactive anxiety as a result of the predicament that you have found yourself in. To date this has not been the subject of any treatment.
70.Ms Lechner also indicates that you are remorseful for your conduct, and that is also indicated in the two references that were tendered by your counsel and is also reflected in the apology that was made on your behalf by your counsel on the plea. There is always a spectrum of remorse and your conduct in taking this matter to verdict indicates that you are not fully remorseful. I accept that there was an offer to plead to the lesser charge, however, this was rejected by the Director and you did not plead to the lesser offence before the jury. Thus, while there is some evidence of remorse, you are not fully remorseful for your conduct, and this, as I have indicated, has some relevance for your prospects of rehabilitation.
71.I do, however, give you recognition and credit for your apology and the apology tendered on your behalf by your mother as just referred to by your counsel.
72.Ms Lechner also indicates that you are suffering from a major depressive disorder and post-traumatic stress disorder. At this point you have not sought treatment. It is appropriate that you seek to access treatment. It is clear that this condition is a consequence of the collision. Your counsel did not rely on it as reducing your moral culpability or seek a reduction in sentence on account of a mental health issue, and this is not surprising given that you are the author of your own difficulties in this regard.
Sentencing considerations
73.In sentencing, I am required, under s. 5 of the Sentencing Act 1991, to have regard to a number of considerations. The High Court has emphasised in recent decisions the importance of considering the maximum penalty for an offence. In this case it is 20 years' imprisonment. This reflects the seriousness of an offence that has resulted in the loss of an innocent life.
74.I must also have regard to current sentencing practices. Your counsel referred me to the Sentencing Snapshot and a number of cases. The High Court has also recently emphasised that current sentencing practices are only one consideration under s. 5 of the Sentencing Act, and they are not determinative.[4] Further, in cases that are in the upper level of seriousness, current sentencing practices do not provide a band within which a sentence is to be imposed.
[4] See R v Kilic (2016) 259 CLR 256 (‘Kilic’); Director of Public Prosecutions v Dalgliesh (A Pseudonym) (2017) 91 ALJR 1063; [2017] HCA 41 (‘Dalgliesh’).
75.Further, in considering current sentencing practices, I note that in recent cases the level of sentences for culpable driving has drifted up, particularly following increases in sentences for the lesser offence of dangerous driving causing death.[5]
[5] Stephens v The Queen (2016) 50 VR 740; [2016] VSCA 121.
76.While I have had regard to a number of the cases referred to by your counsel as illustrating current sentencing practices for the offence of culpable driving where the form of culpability is gross negligence, each case must be determined on its own merits, particularly in the light of the emphasis in Dalgliesh and Kilic. The maximum penalty must be taken as a yardstick against which to consider any particular proposed sentence. Current sentencing practices do not represent a band within which a sentence ought to be imposed. The Court of Appeal has indicated that past sentences are not precedents.
77.I was referred to a number of recent cases by the prosecutor where sentences in the high single digits were imposed for culpable driving involving speed and/or alcohol, usually on pleas of guilty.
78.As I have said, each case is confined to its own facts, although in Harrison[6] the Court of Appeal indicated that cases involving negligently causing serious injury by driving usually have common features of speed, alcohol, prior convictions and youthful offenders.
[6] Harrison & Rigogiannis v The Queen (2015) 49 VR 619; [2015] VSCA 349.
79.In this case the factor of youth is absent but you do have a relevant criminal history. This makes comparing cases difficult, but consistency of approach to sentencing is an important consideration.
80.In sentencing you and considering other cases, you also do not get the benefit of leniency accorded to a plea of guilty.
81.The victim impact as a result of a death caused by a motor vehicle will also vary in its magnitude. Here, as I have sought to indicate, the impact has been very significant.
Conclusion
82.I have had regard to all the matters put on your behalf by your counsel in a comprehensive plea. I have also had regard to the principle of parsimony. I also accept the submission of your counsel that, notwithstanding your plea of not guilty, the trial was run expeditiously and you are entitled to some benefit for that.
83.In sentencing you, I regard considerations of just punishment as very important. This is an aspect of denunciation and social rehabilitation that I referred to on the plea hearing.[7] As I have already noted, your conduct has had a major impact on a functioning, law-abiding, well-respected and self-reliant family. It has profoundly disrupted their lives and will continue to do so. No sentence of the court will replace their loss, but the sentence must provide something of a balm for their loss.
[7] See Chaplin v The Queen [2010] VSCA 145 citing Director of Public Prosecutions v DJK [2003] VSCA 109, [16] per Vincent JA.
84.Similarly, your conduct has affected the wider society looking in upon those who have suffered immediate loss. Again, the wider society must be placated by the sentence and be satisfied that societal values have been vindicated.
85.Further, general deterrence also has significance. With the proliferation of high performance vehicles on our crowded roads, the sentence must send a signal to all who seek to test the performance of such vehicles, and indeed any vehicle, that they can become lethal weapons, that a duty is owed to all fellow road users, and that when the risks created by grossly negligent conduct come to fruition resulting in death or serious injury, then heavy punishment will follow. It needs to be noted that this State leads the world in its attack on the road toll, and the sentences of the courts have played and must continue to play their role in sending a signal that irresponsible driver behaviour on the roads leading to death and injury will not be tolerated.
86.As I indicated earlier, considerations of specific deterrence have some relevance given your prior record and your plea of not guilty.
87.Finally, I must consider your prospects of rehabilitation. As I have indicated, I regard them as fair to reasonable and this imposes a downward pull on the sentence.
88.I am required to cancel your licence and disqualify you from driving for a period of at least 24 months.[8] I have taken into account that you have been disqualified from driving as a condition of your bail since December 2014.
[8] Sentencing Act 1991 (Vic) s. 89(2)(b).
Sentence
89.On the charge of culpable driving causing death, you are sentenced to 11 years' imprisonment.
90.I order that you serve a period of seven years before being eligible for parole.
91.I direct that all licences you hold be cancelled and you be disqualified from driving for a period of seven years from this date.
92.I declare 33 days pre-sentence detention.
93.I also make an order pursuant to s. 464ZF of the Crimes Act 1958 for the taking of a forensic sample having regard to the seriousness of the offence. The authorities are permitted to use reasonable force if you do not comply.
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