Director of Public Prosecutions v He

[2024] VCC 1954

IN THE COUNTY COURT OF VICTORIA

AT HORSHAM

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00870

DIRECTOR OF PUBLIC PROSECUTIONS

v

MINGEN HE

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September & 1 November 2024
DATE OF SENTENCE:	28 November & 4 December 2024
CASE MAY BE CITED AS:	DPP v He
MEDIUM NEUTRAL CITATION:	[2024] VCC 1954

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence                   

Catchwords:              Dangerous driving causing death – inability to maintain control – failure to navigate right-hand bend – erratic driving in lead up – victim died at scene – lack of common aggravating features – failure to appear at first sentencing hearing – absconscion from the jurisdiction

Legislation Cited:      Road Safety Act 1986 (Vic); Sentencing Act 1991 (Vic); Migration Act 1958 (Cth); Bail Act 1977 (Vic)

Cases Cited:Hall v The King [2024] VSCA 255; DPP v Neethling [2009] VSCA 116; R v Whyte [2002] NSWCA 343; R v Verdins [2007] VSCA 102; Guden v R (2010) 28 VR 288; DPP v Oates [2007] VSCA 59; Azzopardi v The Queen [2011] VSCA 372

Sentence:                  Term of imprisonment of 2 years and 4 months with a non-parole period of 16 months; licence cancelled and disqualified for 18 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. O’Doherty (plea) Mr J. Johnston (sentence)	Office of Public Prosecutions
For the Accused	Mr A. Malik	Hiways Lawyers

HER HONOUR:

1Tragically, at 7.52 am, on Friday 20 May 2022, 53-year-old Pauline Smith was killed as she drove home after working night shift as a paramedic. Pauline Smith was formerly a sworn police member, she was a wife, a mother of three children, a much-loved friend and family member, and a greatly valued member of the community.

2Unfortunately, Mr He, as a result of your inability to maintain proper control of your vehicle, your inattention and your failure to properly navigate a right-hand bend in the road you overcorrected your steering and collided with Ms Smith's car, thereby causing her death.

3On 13 September 2024 you pleaded guilty on indictment P10811480 to one charge of dangerous driving causing death.

4At the outset, I must acknowledge that the death of Pauline Smith has caused deep and profound grief to her family and all those who knew and loved her. It is my duty to sentence you in accordance with the criminal law. The sentence I impose is in no way a measure of the worth of Ms Smith's life nor could it ever be.

Circumstances of offending

5

The agreed factual basis upon which you are to be sentenced is detailed in the prosecution opening dated 31 July 2024. In summary, at approximately 5:00 am on 20 May 2022, you left Melbourne and travelled along the Western Highway towards Horsham, for work. At approximately 6:45 am, CCTV from a supermarket in Beaufort captured vision of you stopped in your vehicle for approximately

10 minutes. You then continued your journey.

6Approximately 60 kilometres from Beaufort, witness Gurwinder Singh was travelling with his wife and two children in their Ford Everest along the Western Highway. Mr Singh observed you and described your vehicle as being driven erratically. He observed you to slow to 40 Ks in a 60 K speed zone; to veer left over the white fog line then veer right back into your lane. You continued to drive at this speed and in this manner through the town of Great Western.

7On the Stawell side of Great Western the speed zone increased to 80 kilometres an hour, and then 100 kilometres an hour. Mr Singh asked his wife to record your driving on her mobile phone. This footage was tendered on your plea and captures 1 minute and 7 seconds of driving and depicts your vehicle on a portion of the highway where the speed limit increased from 80 to 100 kilometres an hour. For the length of the video, you are seen to veer left close to and over the white fog line and then veer right, close to and on the markings in the centre of the road separating opposing traffic. At one stage, your vehicle is driven well outside the solid white line on the left-hand side of the road and in a turning lane, before you straighten up, and continue to sway. You sped up, slowed down and braked for no apparent reason; you were still travelling well below the speed limit during this time.

8You continued in the same erratic manner in the 100 K speed zone. There were a couple of times where your vehicle veered across the double white lines in the centre of the road onto the path of oncoming trucks. Mr Singh waited for an opportunity to overtake your vehicle and stayed some distance behind you because of his concern about the way you were driving. When there was a clear area between the two overtaking lanes, Mr Singh overtook.

9Witness Brianna Hyslop was also travelling west along Western Highway towards Stawell. She had been behind Mr Singh from Great Western; Ms Hyslop was travelling directly behind your vehicle after Mr Singh had overtaken.

10Ms Hyslop observed that your vehicle was travelling well below the speed limit when Mr Singh overtook, and that you appeared to speed up and almost match the speed of Mr Singh's vehicle during the overtaking manoeuvre. Ms Hyslop caught up to your vehicle on approach to the Adelaide-bound overtaking lanes and intended to overtake. She observed your vehicle to gradually veer from left to right repeatedly for the entire length of the overtaking lane. Just before the lanes merged, your vehicle veered to the left further than it had previously and gradually veered to the centre of the road very close to the double white lines where the lanes became one.

11At approximately 7:52 am, immediately prior to the collision, Ms Hyslop observed your vehicle veer to the left and over the white fog line and onto the road shoulder on the outside of a gentle right-hand bend. Your vehicle appeared to overcorrect to the right quickly and then spun across the road into traffic travelling from the opposite direction. Ms Hyslop took evasive action to avoid the impending collision and veered left into a dirt track and off the road. In the process, she observed your vehicle collide with Ms Smith's vehicle.

12Witness Wayne Lording was also travelling on the Western Highway at the relevant time. He too saw your erratic driving in the lead up to the offending, and the events immediately prior to the collision. He described that your vehicle veered left off the road before 'severely' overcorrecting and sliding across into the oncoming lane at an angle and colliding with Ms Smith's vehicle.

13After the collision, flames were observed coming from the front of your vehicle. This fire was put out by civilians assisting at the scene. Ms Smith's vehicle was unable to be unlocked; Mr Lording smashed the rear passenger window and gained entry. He and others remained with Ms Smith until emergency services arrived.

14Ms Smith died at the scene from the injuries she sustained in the motor vehicle accident.

15You were conscious and breathing. You were removed from your vehicle and treated at the scene by ambulance paramedics. You were required to undergo a preliminary breath test pursuant to s51(1) of the Road Safety Act 1986.[1] Alcohol was not present in your breath. You also underwent a preliminary oral fluid test for illicit or prescribed drugs; they too were not present in your oral fluid.

[1] Road Safety Act 1986 (Vic) s 51(1).

16You were airlifted from the collision site and taken to the emergency department of the Royal Melbourne Hospital for treatment of spinal injuries you sustained. You remained in hospital for approximately four days under police guard before you were discharged on 24 May 2022.

17Victoria Police collision reconstructionist Detective Senior Constable Zhao attended the collision scene and conducted an examination. In his opinion, your vehicle was travelling northbound on the Western Highway when it veered off road onto the gravel shoulder and lost control because of an overcorrection to the right whilst navigating a slight curve in the road. Your vehicle went into a yaw, then transitioned into a general spin on the bitumen and slid across the road into the southbound lane at approximately 99 kilometres an hour, colliding with the victim's vehicle travelling south.

18The front of your vehicle collided with the driver side front of the victim's vehicle near the fog line. The victim's vehicle was travelling at a speed of 94–95 kilometres an hour when the collision occurred, it rotated anticlockwise and entered the roadside grass verge where it came to rest. Your vehicle rotated clockwise and came to rest north of the area of impact in the southbound lane facing north. He was unable to determine why your vehicle veered off the road before losing control.

19Your vehicle was mechanically inspected by police after the offending; it did not reveal any faults or failures which would have caused or contributed to the collision.

20

You participated in a record of interview on 15 June 2022. You said you had departed La Trobe Street at about 4:50 am and drove one to two hours. You arrived in a small town where you rested with your eyes closed for about 10 minutes, but did not sleep, and then kept driving for another 20 to 30 minutes and that is when the collision happened. You felt normal before you stopped to rest. You also stated you were feeling energetic when you stopped at this town and normal when you started driving again. You did not have music on in the car. You were driving in your own lane, then there was a small turn, and then the other car rushed towards you, and you collided. The collision happened very fast. Your hands were tightly gripping the steering wheel and one foot was trying to step on the brake but there was not enough time. There was 'some kind of movement' within the lane happening, but nothing like what the police demonstrated. When informed that cars behind observed you veering within the lane over a

2-3 kilometre period, you said you could not remember. You remember being focused on the road. You thought the other car had come into your lane.

Victim impact statements

21Your offending has had a profound impact on Ms Smith's family members and friends. Ms Smith had a close bond with those who loved her and they are heartbroken that she has been taken away so suddenly. They still find it very hard to accept, and Ms Smith is missed every day.

22Caitlyn, Ms Smith's daughter was only 14 at the time of the collision. She now has to navigate life without the guidance of her mother. Special milestones, like her 21st birthday, her university graduation, fulfilling her dream of becoming a paramedic, and her marriage, will all be experienced with her mother absent. Caitlyn thinks about death often and worries that the same fate might occur to other family members.

23Sharlene Hellewell described a deep and debilitating loss as a result of the death of her dear friend. Ms Hellewell described Ms Smith as a person who always had her back and was always there for her. The loss of her friend and the unfulfilled dreams have been emotionally overwhelming.

24Guilia Cornale was a childhood friend of Pauline Smith, and godmother to each of Pauline's children. Two years on Ms Cornale is still tearful most days as she thinks about the loss of her loyal and loved friend.

25

The collision has also had a significant impact on witnesses Ms Hyslop and

Mr Lording. Mr Lording was a civilian first responder at the scene of the collision. He described that he will never forget removing Ms Smith from her vehicle and assisting to keep her alive before paramedics attended. Both Ms Hyslop and

Mr Lording have memories that will never leave them, and which continue to cause them anxiety.

26

I acknowledge that there is nothing I can say or do that might comfort or heal the grief and pain so obviously felt. In sentencing you, I take into account the pervasive, profound and immeasurable loss each of these people continue to suffer as a result of the loss of their dearly loved mother, family member and friend. Further, I acknowledge that your failure to appear at the sentencing hearing on

28 November 2024 has exacerbated the suffering of the family and friends of

Ms Smith.

Moral culpability and objective dangerousness of the driving

27The offence of dangerous driving causing death is quite obviously a serious offence because it involves the death of another person. The seriousness with which Parliament view the offence is reflected in the 10 year maximum penalty and also in the fact that it is defined as a category 2 offence under the Sentencing Act.[2] This means that pursuant to s5(2H) of that Act, a custodial sentence must be imposed unless circumstances set out in paragraphs (a) to (e) of the subsection exist.[3]

[2] Sentencing Act 1991 (Vic).

[3] Ibid s 5(2H).

28The prosecutor, Mr O'Doherty submitted in determining the objective gravity of your offending, the most important factor for the court to consider, was your poor driving in the lead up to the collision and the numerous warning signs you ignored. He submitted there were clear warnings that would have been obvious to you and that you should have pulled over, stopped, slowed or taken some sort of action to compensate for your poor driving. To this extent Mr O'Doherty submitted that this was an avoidable situation and the inevitable and serious consequences of a term of imprisonment must follow as the only appropriate sentence.

29Your counsel, Mr Malik, conceded that your moral culpability is increased as a result of your poor driving shortly before the collision. He submitted that your vehicle was not veering over the road for the entirety of the observation however, conceded that one witness was concerned enough about your driving that he asked his wife to make a video. I accept his submission that there was no evidence that you were suffering fatigue, however you were on notice that your vehicle was not under your proper control and you should have pulled over. This is particularly so in circumstances where you were driving in a 100km/h zone where accidents at such speeds are likely to be catastrophic.[4]

[4] Hall v The King [2024] VSCA 255.

30In an assessment of the objective gravity of your dangerous driving I also accept the submission of your counsel that there was an absence of common and relevant aggravating features in your case.[5] That is, you were not drug or alcohol affected, you were not speeding, and you were not using a mobile phone. Further, you were fully licenced, and your vehicle was in good working order.

[5] DPP v Neethling [2009] VSCA 116; R v Whyte [2002] NSWCA 343.

31While these factors are relevant they do not constitute a checklist. Dangerousness and moral culpability must be assessed in light of the circumstances of each specific case. In your case, it is your poor driving for some kilometres prior to the collision in a 100km/h zone and your lack of action to pull over or take remedial action in response that increases the objective gravity of your offending. I do not consider this to be a case of a momentary inattention, rather I consider this to be a serious example of the offence of dangerous driving causing death.

Personal circumstances

32I turn now to your personal circumstances. You are now aged 25 and you were 23 at the time of the offending. You were born in a rural area of China. Your parents were construction workers and survived and provided for your family on a limited income. You have one older sister.[6]

[6] The date of birth of Mingen He had been mistakenly stated in defence submissions and the defence psychological report as 03/03/1993. Mingen He’s date of birth is 03/03/1999.

33You completed your primary and secondary education locally and achieved excellent academic results. After graduating from high school in 2017, you decided to study abroad whilst working part-time. You made this decision for several reasons. You wanted to alleviate your family's financial burden; achieve your own economic independence; and make enough money to subsidise your family's household income while obtaining an overseas education. You were the first in your family to study abroad.

34You arrived in Australia in April 2018 and your overseas study began. You enrolled in language courses to help you adapt to Australia. To cover your study and living expenses, you started working part time. Your first job was on a construction site. Your duties included plastering and other construction-related tasks. You found the work physically demanding and not without risk to your safety. You applied yourself diligently and viewed this as an opportunity to train yourself and gain experience. Your positive work ethic was recognised by both colleagues and employers.

35In October 2018, you applied for a subclass 866 Protection Visa. After receiving a bridging visa, you switched to full-time work and continued to develop your skills in the construction industry. You demonstrated strong communication skills and team spirit in your interaction with colleagues and clients. Additionally, you worked a second job as a delivery driver.

36You met your partner, Ms Zhang in October 2021, through mutual friends. Your relationship developed quickly, you fell in love and began living together. On 24 October 2022, Ms Zhang gave birth to your first child, a daughter He. Notwithstanding your busy work schedule, you are fully committed to family life: you take care of picking up and dropping off your daughter at daycare daily and attentively look after her daily needs. Your counsel described that you have forged a strong emotional bond and simply adore your daughter. You spend as much time as you can looking after her and she eagerly awaits your return home every day.

37The emotional and financial pressures brought about by this case have caused, you and your family to live with Ms Zhang's parents. Ms Zhang now works part time to help alleviate some of the stress on the family's financial situation. You maintain contact with your parents and sister in China. You have continued to work as a plasterer six days a week to provide as much support and security for your family. You have maintained supporting your parents financially by sending over money to assist with their medical expenses.

38At the time of your offending, your partner was four months pregnant, you were in love and you were working very hard to support your family here and in China. You had no prior convictions and could only be described as a thoroughly decent young man who was trying his hardest to build a future, not only for himself but also for his family. Your work mate, Yanming Zhang, provided a testimonial that describes your diligence and commitment to work, your reputation of honesty and trustworthiness and your devotion to your wife and child. Further, Mr Zhang describes you as an emotional and financial pillar for your family and a family man who dedicates his time to creating precious memories through outings and time spent together.

39Although your offending occurred on 20 May 2022 it was not until 18 April 2023 that you were arrested on a charge of culpable driving and remanded in custody. You unsuccessfully applied for bail on 16 May 2023 and remained in custody until released on bail 15 June 2023. Your time on remand had a profound impact on your mental health which I will turn to now.

Mental health

40A psychological report dated 5 July 2024 and an addendum report dated 13 August 2024 authored by Dr Jinyuan (Queenie) Wu were tendered on your plea. Dr Wu conducted her assessment via Telehealth conversation.

41Dr Wu undertook a clinical interview and psychometric tests to assess your mental health condition. Based on the results, she opined that you meet the criteria for Major Depressive Disorder and Generalised Anxiety Disorder. Your testing results indicated that you experience a severe level of symptoms relating to depression and anxiety and a severe level of psychological distress. Although, Dr Wu found the presence of trauma related distress she opined that you did not currently experience symptoms, such as flashbacks and hypervigilance.

42Dr Wu found that your mental health condition has significantly deteriorated since the accident. You reported to Dr Wu that you have been experiencing feelings of fear and isolation, persistent tiredness, low energy, loss of motivation and difficulty sleeping and eating, all of which have adversely affected your daily life. Your cognitive functioning is similarly affected, having been compromised by sleep disturbances and constant worry, leading to poor concentration and impaired judgment.

43Your period on remand between April and July of 2023 significantly impacted your mental health in that you were unable to eat and sleep and were constantly worried about your family, you were fearful of humiliation and taunting due to your poor English language skills and experienced feelings of fear and isolation. Upon release your mood improved however the possibility of returning to prison has exacerbated your anxiety and associated symptoms leading to increased irritability, social withdrawal and an inability to relax. This prospect of the return to prison has triggered severe anxiety. Dr Wu also opined that imprisonment poses a significant psychological burden for you and you are deeply concerned about the impact of your absence upon your family in particular your young daughter. Your experience in gaol will be made more challenging as a result of your poor English skills and will likely leave you vulnerable to isolation, bullying and exploitation by others.

44In her addendum report Dr Wu opined that the psychological burden of incarceration is likely to be significantly greater for you that for an individual without such impairments. Further, Dr Wu was of the opinion that the prison environment will likely exacerbate your anxiety and will increase the risk of panic attacks and severe depressive episodes. Your prior experience in custody provided critical insight into the potential impact further imprisonment may have and she considered that the likelihood of a further decline in your mental health during an extended period of imprisonment was substantial.

45Initially, your counsel Mr Malik submitted that Dr Wu's opinion enlivened an exception under s5(2H)(c)(ii) of the Sentencing Act that would open up all sentencing options in your case.[7]

[7] Sentencing Act 1991 (Vic) s 5(2H)(c)(ii).

46In the adjourned period from September to November, 2024 the court was provided with information from the General manager of Sentence Management Operations and an affidavit from Justice Health. This information revealed that you have worked as a unit billet, you did not participate in any programs, and there were no incident reports relating to you. Further there was no documented reports of you being the victim of bullying or assaultive behaviour. The affidavit from Justice Health disclosed that your mental health was assessed upon reception into custody with the use of a Mandarin speaking interpreter and that you had been seen on other occasions by a Mandarin speaking psychiatric nurse. It would appear that there were occasions when you were assessed without the assistance of an interpreter.

47The test under s5(2H)(c)(ii) is an onerous test that must be met on the balance of probabilities.[8] In light of the further information of your experience on remand, your counsel did not persist with his submission that the exception was enlivened in your case.

[8] Ibid.

Verdins

48Mr Malik did submit that limbs 5 and 6 of Verdins were enlivened in your case.[9] This submission was not disputed by the Crown. I accept the evidence from Dr Wu that, given your chronic anxiety and depressive symptoms, the psychological burden of incarceration is likely to be significantly greater for you than that of an individual without your impairments and further, that the likelihood of a further decline in your mental health during extended imprisonment is substantial.

[9] R v Verdins [2007] VSCA 102.

49Further I accept the submission of Mr Malik, that during your previous experience in remand between 18 April 2023 and 15 June 2023 you experienced pronounced sleep disturbances, heightened anxiety and significant social withdrawal. Your existing anxiety and depressive symptoms were exacerbated and contributed to your overall mental health decline. Seeking mental health treatment had been a challenge for you due to cultural stigma, and when you were last remanded a relatively limited mental health assessment was conducted.

Onerous conditions in custody

50In addition to this it is my view that a sentence of imprisonment will be likely to impact your mental health in a more general way. You will have the worry of being separated from your partner and daughter, who very much depend on you financially. You are the primary income earner in your family, and you pay for your daughter's childcare expenses and your partner's tuition fees. You also assist your parents in China financially and pay for their medical treatment. Imprisonment will result in you not being able to work and provide an income for your family.

51Further, I accept that imprisonment will be difficult for you in circumstances where you speak limited English. You are likely to experience significant isolation and fear in custody.

Deportation

52Further to this you are not an Australian citizen. You are therefore very much at risk of deportation. In his written submissions, your counsel Mr Malik identified that, a sentence of 12 months' imprisonment or more triggers the mandatory cancellation provisions of the Migration Act and places you at risk of deportation.[10]

[10] Migration Act 1958 (Cth).

53As noted previously, you came to Australia from China and have lived here since 2018. You came to Australia to study and enrolled in language courses. You have been successful in gaining employment. Since late 2018 you have held a subclass 866 Protection Visa. Although your family of origin still live in China you have met and commenced a relationship with Ms Zhang. In October 2022, Ms Zhang gave birth to your daughter, thus creating your own family here in Australia. Ms Zhang has made clear her intention to stay in Australia with your daughter.

54In these circumstances, I accept that the prospect of deportation made your previous time on remand and will make the service of the sentence I will impose today, more onerous. I also accept that deportation, should it occur, would constitute an additional punishment because it would destroy the opportunity for you to settle permanently in this country. The courts have recognised that the impact of deportation may vary depending on the offender's circumstances.[11] In your case the risk is that you will be deported and permanently separated from your first-born child and your partner both of whom you love dearly. I take into account the likely consequences of the risk of deportation in your case. However, I note that such consequences cannot replace or stand as a proxy for the imposition of an appropriate sentence reflecting the nature and gravity of the offending before a court.

[11] Guden v R (2010) 28 VR 288.

Delay

55Delay is another mitigatory factor I take into account in your case. Your offending occurred approximately two and half years ago and the court proceedings have remained unresolved since that time.

56You have had to live with the worry and strain of this case, initially whilst remanded, and it has caused you enormous anxiety and stress. Since this time, you have not known what your future would hold in terms of your liberty and have had the very real prospect of a return to gaol hanging over your head. The evidence of Dr Wu reveals that you have found this to be extremely difficult and it has had a very negative impact on your mental health. I accept Dr Wu's opinion in this regard.

57The delay has also allowed you to demonstrate that you have an ability to foster rehabilitation. You have committed yourself to work and providing for your family. You have not driven and have relied on your work mate Mr Zhang to drive you to and from work. I accept that you are unlikely to reoffend in the future both because you have no prior convictions and because you have not reoffended in the last two and half years.

Plea of guilty

58A further matter in mitigation is your early plea of guilty. Although I understand your case was listed for a contested committal no witnesses were cross examined and you indicated your plea in the Magistrates’ Court. In these circumstances I consider your plea of guilty to be a plea entered at the earliest opportunity. Your plea has significant utilitarian value as you have spared witnesses the harrowing ordeal of reliving the collision through giving evidence and you have spared the court the time and cost of a trial. In addition, I consider your plea is evidence of your desire to facilitate the course of justice and I intend to allow an appropriate discount for these reasons.

Remorse

59Your counsel also submitted that you are extremely remorseful for your offending. This submission was supported by your plea of guilty and your deep expressions of remorse repeated in the psychological report of Dr Wu, and the testimonial from Mr Zhang tendered on your behalf.

Failure to appear  

60At your sentence hearing the prosecution submitted that your absconsion does not aggravate your offending or elevate your moral culpability, however it was submitted that it impacts matters raised on your behalf in mitigation. In particular, Mr Johnston who appeared for the Crown today contended that it is relevant to an assessment of the weight that ought be given to remorse and to your acceptance of responsibility for your offending and should be seen as an attempt to frustrate rather than facilitate the course of justice.

61Mr Malik on your behalf submitted you had instructed it was your intention to go to Queensland for work for a period of four to five months so as to leave a financial safety net for your partner and young child. You had hoped to earn in the order of $40,000 to provide some financial security for them. Mr Malik conceded that your actions do impact the weight that I can give to your acceptance of responsibility for your offending however he did not concede that it should impact upon my assessment of your remorse.

62In my view the two concepts are very closely connected. By leaving the jurisdiction you have not assisted yourself. I do consider that by effectively running away from your responsibilities to the court it does lessen the weight I can give to your acceptance of responsibility for your wrongdoing and therefore the true level of your remorse. That is not to say that I find that you are not sorry for driving in a dangerous manner and causing the death of Ms Smith but I do give it less weight.

63I am mindful that you have committed an offence against the Bail Act for which you can be charged and punished.[12] In these circumstances I have carefully weighed the impact that your absconscion has on the sentence I will shortly announce.

[12] Bail Act 1977 (Vic).

Sentencing principles

64The purposes for which sentences may be imposed are just punishment, specific deterrence, general deterrence, rehabilitation, denunciation and protection of the community. The Court of Appeal has repeatedly emphasised the significance of general deterrence and denunciation for offending of this nature.[13] Specific deterrence, protection of the community and just punishment are also important considerations in the sentencing exercise.

[13] DPP v Neethling (2009) 2 VR 466 at [54]); DPP v Oates [2007] VSCA 59 at [22].

65I take into account the sentencing guidelines where relevant to your case, as provided in s5 of the Sentencing Act.[14] I have had regard to current sentencing practices and have reviewed cases for dangerous driving causing death generally. I have found these cases useful in terms of the principles that apply in cases such as this. Further I have considered the sentencing statistics relevant to this offence. I am mindful of the limitations of such statistics however I have found them helpful in terms of the sentencing landscape they expose. Of course, each case turns on its own facts and the Courts duty is to impose a sentence that, in all the circumstances is just and appropriate.

[14] Sentencing Act 1991 (Vic) s 5.

66Mr O'Doherty for the prosecution submitted the only appropriate sentence was one of imprisonment that involves the imposition of a head sentence and a non-parole period. Your counsel has conceded that a sentence of imprisonment was inevitable. However, your counsel relied upon a powerful combination of mitigating factors that in my view operate to moderate the length of any sentence.

67I have had regard to the maximum penalty of 10 years' imprisonment. I have also had regard to the principles of proportionality and parsimony. Proportionality requires that I impose a sentence proportionate to the gravity of the offence considered in light of the circumstances, including the maximum statutory penalty, the degree of harm caused to the victims, the method of committing the offence and your culpability. Parsimony requires that my sentence should be no more severe than is necessary to achieve the sentencing purposes.

68In addition I take into account that at the time of your offending and now at sentence you are a youthful offender. You do not meet the definition of a young offender as defined in the Sentencing Act 1991 but the principles that apply to youthful offenders as enunciated in the case of Azzopardi do have application in your case.[15] In some respects it is likely your youth and immaturity, in part informed your decision to leave the jurisdiction.[16]

[15] Azzopardi v The Queen [2011] VSCA 372.

[16] The youth of Mingen He was a matter discussed at the plea hearing. It was raised by defence at the sentence given the confusion as to Mr He’s date of birth and his true age.

69Mr He your actions have left a family and a community devastated, which is something that you will have to live with. As I have already stated, the sentence ultimately to be imposed is not a measure of the life of Pauline Smith, but a reflection of all the factors as already canvased that I am required to take into account.

Disposition

70Mr He on the charge of dangerous driving causing death you are convicted and sentenced to be imprisoned for a period of 2 years and 4 months and I order that you serve a minimum of 16 months before being eligible for parole.

71I declare that you have served 65 days by way of pre-sentence detention and this will be deducted from your sentence.

Driver licence order

72Dangerous driving causing death is a serious motor vehicle offence pursuant to s87P(d) of the Sentencing Act and on a finding of guilt the Court must cancel an offender's driver's licence and disqualify him from driving for a period specified by the Court and not less than 18 months.[17]

[17] Sentencing Act 1991 (Vic) s 87P(d).

73Pursuant to s6AAA of the Sentencing Act, had you pleaded not guilty and been found guilty the sentence I would have imposed is one of three years and six months with a non-parole period of 20 months.[18]

[18] Ibid s 6AAA.

74COUNSEL: As Your Honour pleases.

75HER HONOUR: Is there anything further?

76MR JOHNSTON: Nothing further, Your Honour.

77MR MALIK: No thank you, Your Honour.

78HER HONOUR: I don't know what to say to the members of the family. There's probably nothing I can say. I am really sorry for your loss.

79Mr He needs to leave the court and Mr Interpreter, if you can come out of the dock thanks. We will adjourn the court.