Director of Public Prosecutions v Hennessey

[2022] VCC 1600

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE 

CRIMINAL JURISDICTION

CR 22-00339

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER HENNESSEY

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2022
DATE OF SENTENCE:	19 September 2022
CASE MAY BE CITED AS:	DPP v Hennessey
MEDIUM NEUTRAL CITATION:	[2022] VCC 1600

REASONS FOR SENTENCE

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Subject: Culpable driving causing death. Conduct endangering life x7 (some rolled up) Conduct endangering serious injury x1, drug affected driver driving for a distance on the wrong side of Nepean Highway. High speed - 130KPH and many motorists endangered. Ran off the road over nature strip across service lane and killed a 16-year-old boy who was walking his girlfriend home along the footpath. Related summary offence of unlicenced driving; 32 years old. Very brief criminal history; early guilty plea; Worboyes v The Queen [2021] VSCA 169 – COVID-19. Remorse; COVID-19 increased burden.

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Glynn	Office of Public Prosecutions
For the Accused	Ms A. Brennan (at Plea) Ms D. Dempsey (at Sentence)	Victoria Legal Aid

HIS HONOUR:

1Christopher Hennessey, on Sunday the 15th August 2021, you were under the influence of drugs and incapable of having any proper control of a car.  You plainly should not have been anywhere near a car but instead, you foolishly chose to drive one.  In doing so, you endangered a number of other motorists as you drove at high speed in the wrong direction along the Nepean Highway in Mentone and you then left the road at high speed, travelled right across the slip lane and struck and killed a pedestrian on the footpath.

2It was a young boy of great promise and potential, Lachie McLaren.  A boy who later that very evening in fact, should have been surrounded by his mother, father and brother, at a happy event blowing out the 16 candles on his birthday cake to celebrate that milestone, but who instead, breathed his last at that horrible scene, all of your making.  You have in those brief moments forever altered the lives of his loved ones.  You have also quite drastically altered the course of your own life of course, for you will spend a very lengthy time in prison owing to the gravity of this offending.  Well I suppose that is the way the briefest summary of this matter might be worded but of course I need to say much more than that and will return to the facts in more detail in one moment.

3You pleaded guilty last Wednesday to one charge of culpable driving causing death, seven charges of conduct endangering life and one charge of conduct endangering serious injury.  You have also pleaded guilty to a single related summary matter of unlicenced driving.

4The maximum penalty for culpable driving causing death is 20 years' imprisonment.  It has been what is described in the Sentencing Act as a ‘standard sentence offence’ since 1 February 2018.  That is to say, for offences committed on or after that date.  The fact that the charge of culpable driving is a standard sentence offence has a number of consequences or ramifications for the sentencing process which I will deal with much later in these reasons.

5The conduct endangering life charges each have a 10 year maximum prison term and the single conduct endangering serious injury charge has a five year maximum prison term.  The summary matter, the unlicenced driving in the circumstances here, has a six month maximum prison term.

6You are 32 years of age with a very brief prior history before the courts.

7The prosecutor Mr Glynn opened the matter to me last Wednesday in accordance with a written plea opening that was dated 7 September of 2022.  Your counsel, Ms Brennan told me that the written plea opening was an agreed summary and so that was marked as Exhibit A on the plea.  It references materials within the depositions which of course I had read.  There was no need for instance, for the photographs attached to the depositions to be marked as exhibits.

8It was quite a lengthy opening and as it is an agreed statement, there really is no point in my descending to the full detail as to the sentencing facts in these my reasons. They will be quite long enough as is.  I will sentence in accordance with that agreed document but I will say something relatively briefly now as to those facts, expanding upon my brief summary at the outset of these reasons. 

9This was unmistakably serious offending as was of course readily conceded by your counsel.

Facts

10You had rented a HiLux Utility on 14 August 2021 and intended to use it to move some belongings of your friends.  I do not know where from or where to or why you were the person renting a car or driving it.  You were not even licensed to drive in this State as your Queensland licence had been suspended owing to the
non-payment of fines.

11On Sunday 15 August when you drove that vehicle in the wrong direction along the Nepean Highway, you were death on wheels, quite literally.  That is how bad your driving was.  It was really a matter of who you might kill or injure.  Would it be one of the many motorists who came face to face with a speeding vehicle travelling in the wrong direction along the Nepean highway?  If so, how many might you kill or maim?  Would it be some other unlucky innocent person in a car elsewhere on the road or someone in the vicinity of the road, perhaps a pedestrian at the lights.  Or perhaps someone completely outside the field of play.  Someone with no connection to the road or the cars on it at all.

12It might seem harsh to say it, but the reality is probably the best case scenario was that you might just injure yourself with no other unfortunate victim caught up in this madness.  But as so often happens, some other poor soul pays for the stupidity of a motorist and here the ultimate price was paid by poor Lachie McLaren.  He was 16 years of age not just to the day but almost to the minute.  But he is now dead because of you.  He was walking his young girlfriend Ella home at 5 pm on a Sunday afternoon.  They were on the footpath.  Hand in hand they walked in what should have been of total and complete safety.  But of course, they were not safe and nor was anyone who had the misfortune to be anywhere near the vehicle that you chose to drive on that afternoon.

13The ariel photograph at page 204 discloses just how far removed Lachie and Ella were from any dangers posed by any driver on the Nepean highway, even a remarkably foolish one.

14You were under the influence of drugs.  That is the ground of culpability alleged here.  You were incapable of having proper control of a car owing to the drugs you had consumed. There could hardly be a clearer picture of that incapacity as was painted by your acts and the movement of that car.

15You were travelling north along the Nepean Highway in towards the city.  Three lanes in each direction in Mentone with a median strip separating those lanes.  A motorist who was travelling in that same direction that you were travelling in had seen you travelling north along the Nepean Highway towards the intersection of the Nepean Highway with Parkers Road and Imes Street.  There were stationary cars in each of the three northbound lanes because there was a red light there. 

16That motorist was alarmed to see that without slowing, you moved into the right-hand turning lane and then just veered back over into the southbound lanes of the Nepean highway to continue your forward journey.  You were then clearly not unawake to your surrounds.  You just wanted to proceed northwards and so you took that extraordinary action to do that.  

17Of course, with that move, you now were still travelling north but were in the southbound lanes.  You were travelling in completely the wrong direction.  You travelled on the wrong side of the road for about 800 metres and many observed you from a variety of vantage points.  Given the speed that you were travelling at, we are not talking about minutes. The prosecutor, Mr Glynn, who must be better than I at maths, but that would not be too hard, he suggested that it might have been for about half a minute or something in that vicinity and Ms Brennan who appeared for you did not challenge that suggestion.  The precise time is not critical to my task and it really cannot be calculated because we do not know exactly what speed you were travelling at throughout that distance.  On any view of it though, it was a quite brief period.

18All who saw you described you travelling at a fast rate of speed and data from the airbag module disclosed that you at one point reached a speed of around 134 kilometres per hour.  You stayed in the left lane which, of course for southbound traffic, was the right-hand lane closest to the median strip.  You moved to the centre lane, you came around the curve to your left, and from that point you endangered all and sundry in the various cars travelling in the correct direction.  Seven of those have been identified, but more than seven people as two of the charges are rolled up charges relating in each case to three occupants.  Alarming near misses at high speed.  Emergency action taken to avoid what would have been head on impact.  

19You were travelling at around 130 kph with oncoming motorists driving in the correct direction in the 80 kilometre speed zone.  There is not too much left after a high-speed head on impact with cars meeting at those speeds.  You were under the influence of drugs and I have in that way set out the particulars of the conduct endangering charges.  Excessive speed, travelling on the wrong side of the road and intoxication.  What a trifecta.

20The summary sets out some of the near misses.  Darren Anderson was in the middle lane coming around that bend and was confronted by your car.  
Mr Compton had his daughter Holly and one of Holly's friends Cassia in the car.  Well, both of those motorists slowed down to avoid a collision.  You did not, and swerved to the right of those two cars to narrowly avoid impact.  Again it is plain enough you were able to process what was ahead of you and to do something.  You did not stop though.  

21Mr Robin Dayes was the next to be confronted.  He swerved to his right to avoid a collision.  Frances Barton was in the middle lane and you passed her driving very fast in the adjacent lane.  That was the conduct endangering serious injury charge.  Nicholas Stewart saw you come into his lane.  You made no effort to slow or move lanes.  He veered to his right to avoid impact.  Eolo Finnochiaro was in the centre lane.  He was in the car with his wife and his son and he had to swerve to avoid a head on collision.  Mr Vlachokyriakos was in your lane but of course it was not your lane. He was travelling in the right direction.  It was his lane.  He slowed down when he saw you. He did not know what to do.  At the last moment you moved to the right over the nature strip which separated the main traffic lanes from the slip lane.

22These motorists saw you and somehow avoided a catastrophic impact and looked in the mirror to see what would happen next.

23Had any of these near misses that I have described not been near misses, there would likely be some other desperately unlucky grieving family sitting in this court, assuming of course that you might have actually survived that style of head on impact to be able to be charged and sit in the dock of a court, which is very doubtful indeed, given the speeds that I have described.  At the very least, impact further south down that road, even if not involving catastrophe, would have spared what happened next.  But that is not the way this played out.

24As I have said, Lachie McLaren was on the footpath walking hand in hand with his girlfriend of 17 months, Ella Mahoney.  They were in the vicinity of the loading dock at Woolworths.

25It is not a matter of him being in the wrong place at the wrong time.  He was walking on the footpath.  He was in the right place.  You were in the wrong place, and you were doing the wrong thing.  You were behind the wheel.  You were driving. You were drugged. You were fatigued. You were in the wrong lane and as though that is not bad enough, you left the wrong lanes travelling still further to the right after you had narrowly avoided Mr Vlachokyriakos, your foot pressed literally flat to the boards on the accelerator.  You were doing 130 kilometres per hour and you left the road. You crossed over the nature strip colliding with and driving over a small tree, continued the whole way across the slip or service lane and onto the footpath and struck this young boy.  He had left home only minutes before to walk
Ella Mahoney safely home.  Ella describes them hearing and then seeing the car, freezing and not knowing where the car was going or what to do.

26Almost his last conscious movement was to squeeze her hand or nudge her and in this manner, to rouse her or encourage her to move to safety.  Those who know him are not surprised at this last selfless act.  Ella was struck a glancing blow by the Ute as it went past her.  Lachie had probably saved her life but he could not save his own, because he was struck and struck with great force and he never regained consciousness.  Your car continued into the loading bay and ran into some rubbish bins.

27Stunned bystanders came to the boys aid.  As I have said, Ella had been struck a blow by your vehicle and she was both injured and distraught when she got onto the phone.  A motorist who had seen this chaos drove from the other side of the Nepean Highway to do what he could do.  This was
Jason Ewer the person who had seen the bizarre and dangerous manoeuvre when you entered into the wrong lanes from the right hand turn lane.  He was a firefighter, off duty though, but he swiftly went to Lachie's aid and performed CPR and continued that right up until the paramedics arrived.  I commend him for his actions. In fact, I commend those others who tried their best to assist Lachie but of course he died at that scene.

28You got out of your vehicle and you remained at the scene and you admitted you were the driver.  You were spoken to by the ambulance members and by the police.  You appeared to be alcohol or drug affected.  There was a negative preliminary breath test conducted and you were then arrested.  You were behaving very strangely and were not making any sense.  See paragraph 25.  You had no apparent injuries.  You were taken under police guard by ambulance to hospital.  A blood test was taken.  You were unfit to be interviewed but were fit by the next day.

29At that time, you provided no comment responses in the police interview as was your right.

30The results of the reconstruction are set out at paragraph 27 of the opening.  High speed.  Prior to impacting the tree on the nature strip you had been travelling at around 134-136 kilometres per hour.  For around six seconds prior to that impact you had been travelling around 130 kilometres an hour, and for most of that time the accelerator was as I said, flat to the boards.  So flat to the board of a rental Ute loaded up with objects including furniture.  You had ice and cannabis in your system and there was an opinion provided as to the impact of drugs on your ability to drive.  See paragraph 30.  An examination of your phone disclosed that you had less than four hours per night over four nights actually available for sleep.  The impairment relied upon here is however the drug use.  See paragraph 31 and of course the particulars of culpability alleged in Charge 1.

31The summary sets out the chronology of the court listing of this matter.  You have been in custody since that day.  There was a plea at the earliest of stages.

32So much then for my brief summary of the facts.  That is all it is.  I will sentence in accordance with the far more detailed agreed statement of the facts marked as Exhibit A.

Victim Impact material

33My treatment of the facts to this point has involved for the large part a somewhat clinical, dry and factual narrative of what took place on this day.  Let me turn now though to the impact of your crimes. 

34With the exception of Ella Mahoney and her parents, there are no impact statements from or in relation to the various named victims who were actually endangered.  I hardly need them.  This was a frightening event.  I told the parties that I had read the depositional material which included the formal written statements including Ella Mahoney's video audio recorded interview.  Some of the statements speak of the fear in the moment and in some cases, the relief at actually surviving.  

35Obviously, these people will never forget this day that they came face to face with a potentially catastrophic event which placed them at risk of death or serious injury The fact that a young boy died within moments of their lucky escape will surely ensure that they never forget this day.  I cannot work on the assumption of there being any long term impacts for those named victims.  For whatever reason they have chosen to not make impact statements and that of course, was their right.

36However I have a large body of impact materials which have been filed.  Victim impact statements, from Lachie's mother and father and brother.  From his grandmother. From Ella Mahoney and from her parents.  From a number of school friends and from his basketball coach, who was also a family friend.  One from the school principal and one from Jason Ewer, who I mentioned a short time ago.

37Perhaps I could say in a broad and stark statement 'I take into account the impact of these crimes' and then move on in my remarks to the matters raised by your counsel on the plea.  That just seems totally inadequate here given the nature of the impact statements and the dimensions of this tragedy.  I will turn to those matters raised on the plea soon enough.  Matters about you. Your plea, your remorse, your background, your experience of prison, yes, your prospects of rehabilitation.  I will come to all of that in due course.  Your past, your present, your future.  You have a future but have taken away this boy's future and have deeply damaged the lives of so many others.  This is not all about you.

38This process involves me sentencing you for your crimes and the impact of them is an important consideration.  This is the only opportunity that the victims have to speak as to the impact and is not just some tokenistic matter, I can tell you.  The impact of a crime is one of the many matters that I am actually required as a matter of law to take into account and I do.

39Lachie McLaren was edging towards the pointy end of his schooling.  He was a straight A student with obviously much promise.  He was excitedly considering and making subject selections for the first year of VCE, which was due to start earlier this year.  The future for him stretched out ahead.  On that Sunday afternoon, as his parents were preparing a birthday dinner for him, he left his home to walk Ella home and he was dead in an instant, because of you.

40I have read all the impact statements again since the plea.  There was a montage of photos which was played without objection on the plea and that was marked as part of Exhibit B.  Some of the impact statements attached photographs of Lachlan.  Yes, his death will no doubt be recorded in the road toll statistics but of course he is not just a statistic.  Not at all.

41There is a deep and unrelenting grief felt by those who loved him.

42I am not going to go into the full detail of the various impact statements.  It would do none of them any real justice.  I will mention just some aspects of some of them.  It would really be quite impossible for me to descend to the full detail in these reasons in any event.  His mother and father's statements span very many pages.

43Lachie's family have been totally devastated by their loss and the manner of his death.  It seemed and seems so unreal. So unnatural. So unnecessary.  So wasteful.  So sudden.  So raw.  And that is because it is all of those things.  The impact materials touch upon this deep sense of loss and grief felt by his mother and father, his older brother, his grandmother and his friends including his girlfriend Ella.

44He is so deeply missed by so many.

45His death was so sudden.  It was so unexpected.  It was so shocking.  It was so random and it was so wasteful.  He was only 16.  There is no way of preparing for that sort of sudden and unexpected loss.  One where the boy was just totally innocent and so desperately unlucky.

46He was not driving a stolen car.  He was not at fault.  He had not been diagnosed with a serious illness where there could be some mental preparation for the sad end of a young life.  A death in such a setting as either of those, would still represent a massive, massive blow to any parent but there is just the added blow provided by the suddenness and the brutality and the complete wastefulness of his death and his complete lack of fault.  His total lack of any contribution.

47His parents read their impact statements out aloud.  What a task, reading them.  What a task trying to put into words that sort of loss.  We might all think we can imagine what it must be like to suffer that sort of loss but of course, we really cannot.

48His parents impact statements are hard to hear because their loss is almost impossible for them to bear.  They are heartbreaking.  Some people have difficulty putting into words the impact of a crime.  Some people cannot articulate it.  Well, Carey and Michelle McLaren are obviously highly intelligent people who are able to articulate many aspects of their loss.  I say many aspects for no doubt they could pick up the pen next week or next month and write pages dealing with other aspects of the impact.  It will be an ever shifting landscape for them as they negotiate this new life thrust upon them by you.  Their ability to articulate their loss makes it a confronting experience listening to them read their impact statements.  It feels almost invasive to hear these innermost thoughts.

49Lachie's father speaks of the enjoyment and fun almost being leeched out of their lives.  He recalls his son saying 'I'm just walking Ella home to make sure she is a safe' and with that his younger son left.  He describes the panicked call from Ella's parents and he and his wife Michelle rushing to the scene.  Leaving pots on the boil and Lachie's brother Luis awaiting an update at home.  Sprinting across the lanes of the Nepean highway and being met by what is every parent's worst nightmare.  Chaos.  Numbness.  A sheet or blanket over someone on the ground and though told that Lachie was that someone and was dead, the father just had to satisfy himself and was then at the scene holding and kissing his lifeless still warm body, that was his son.  His youngest son was gone.  

50The total shock of that, so much so that Lachie's mum at the scene was physically sick.  She could hear screaming and it seems likely it was her own.  It is a nightmarish scene and one that plays back on a never-ending loop including Lachie's brother Luis, coming to the scene and collapsing when he learnt the dreadful news.  Calling the grandparents.  Dealing with friends when the news broke.  The days beyond in a blur.  The father attending the Coroner's office with Lachie's brother Luis to view the body.  Dealing with the limitations to the funeral given the lockdowns that were then in place in this State, a maximum of
10 people.  Dealing with the practicalities of it all.  Getting a death certificate which remains unopened.  A new digital Medicare card without his name on it.

51Lachie's mother speaks of the need to attend to some of these practical things such as closing a phone or a bank account and amending health insurance policies but all of it feels like he is in a way being erased and many of these tasks would require that death certificate to actually be opened and opening it would convey that grim finality that it speaks of.  There is an empty room now in that house, one that the mother and father and brother visit to in some way connect with Lachie, his mother to wear some of Lachie's clothes and to smell his ever-fading scent.

52This family live only moments from this site and must pass it frequently.

53There is the awkwardness of friends and colleagues.  People not knowing what to say or do or ask.  Work for each of these parents is a thing of the past.  There is a deep all-consuming grief but also a pride that he stepped up for Ella in those last seconds.  Both parents speak of their dreams and their hopes being dashed, grandchildren from Lachie, gone.  Lachie being an uncle to Luis' kids and vice versa, gone.  Laughter no longer sounds in that house.  The parents worry about each other and they worry deeply about Luis.

54There is the guilt of living and they speak of that.  The world turns and life goes on without Lachie.  It does not seem right.  There is the sad finality for Michelle of writing the impact statements, it is another step along this sad journey, one spelling the end of at least the legal chapter.  There are the mixed emotions of seeing others live on and achieve milestones, the milestones that they looked forward to sharing with Lachie, things which will never be achieved.  All the memories they have and none of the new ones that they expected would be created in the years ahead.

55Michelle says that their lives are unrecognisable.

56     Her impact statement is a moving testimonial to Lachlan, speaking of all of his many qualities and the sheer disbelief that he is gone in the blink of an eye, almost 16 years to the minute that he was born.  She says that day is now marked out forever with the joy of seeing him for the first time as a newborn baby and the despair of seeing him for the last time and the terrible shortness of that journey in between, and her knowledge of the brutal and wasteful way it ended.  She sets out all the things she misses, all that she grieves for, all that she is angry about.  She describes it as a soul crushing grief with joy in life having evaporated. They are broken.  She says they just survive, and they fumble through each day.

57     Each have strong anger towards you.  They express it pretty directly in their impact statements.  Of course, I do not act on that.  The father speaks with some resentment about the legal system and the strangeness or oddness of him having to extend sensitivities to the offender in the content of his impact statement.  There is a raw, all possessing grief and anger and rage that their son is gone and that their life has been torn apart.  This family has altered forever and they and Luis speak of that fact.

58     Well, as to Luis, he did not want his impact statement read out aloud so I won’t descend in much detail to describe what he said in his statement.  It was and still is just quite unreal to him, this whole event.  Just a numbness to this whole event and that aftermath and all this taking place as he was gearing up for his Year 12 exams last year.  The attendance at the scene, the Coroner's office, the funeral, a school memorial.  The unreality of all of it.  He describes a quietness and sadness that has descended over this house.  He has lost his younger brother.  He has lost his friend.

59     He will not see him grow up.  He will not see him have children.  He will not be an uncle.  When he has them, Luis's children will not have Uncle Lachie.  There is sadness, deep sadness at every phase.  Questions now in his mind as to whether he has to live now for two, to somehow achieve not just for himself but also for Lachie, for he believes Lachie was going to achieve so much in his life.

60There is a sentiment in Carey and Michelle's and Luis's impact statements and in his grandmother's impact statement, that is Margaret Puls’s statement, as to this sadness in not seeing him fulfil the great promise that he displayed.  Where would life have led him?  What might he have become?  Well, they will never know.  From the impact materials placed before me, not just from the immediate family but from friends and his basketball coach, he was surely on the trajectory for success in the life that lay ahead.  

61He was a force it would seem, this boy who, on my piecing together fragments of information from his mother's and also from Ella's fathers' impact statement, was learning how to snow ski in Winter 2021 and yet trying out some black runs in that same winter up at Mt Hotham.  He had a bit of a drive to him.

62He was a fine young teen by all accounts with qualities aplenty and no one is at all surprised by his last act in saving Ella.  He cared greatly for others and he checked in with those who were struggling.  His mother says many of the stories of the extent of that concern for the wellbeing of others really only surfaced after his death.

63His grandmother speaks of the anger and deep grief and the hurt and the broken lives of her loved ones, the smashed family that has been altered forever.

64There is a limit to how much detail I can descend to.  I have to this point focussed my attention in these reasons to the impact upon Lachie's family but of course it went much, much further than that.

65There were sad impact statements from Ella Mahoney and her parents, Ian and Helen.  Well obviously, Ella has suffered great impact.  It was a life changing event for her.  She was hurt physically, and that impact is spoken of in those impact statements. The emotional toll has been quite enormous.  She describes going from having one of the best days in her life to the worst day ever.  It has been an awful experience for a young person to go through.  The hurt and grief are still so raw and we are 13 months down the track.  She misses so much about Lachie.  She is comforted but at the same time haunted by her memories.  That is not surprising as one of her memories will be that scene on 15 August of last year.  She describes losing both the boy that she loved and part of herself that day.  

66Her father, who is an engineer is used to fixing or solving problems, says this is just unfixable.  He is dealing with the loss of Lachie, he is dealing with the impact upon his daughter at the same time.  He and his wife attended at that scene.  I have already described that scene in some detail. I will not do it again.  What a scene and for him, it involved a daughter who had been injured and Lachie who was plainly in a far worse way with CPR being performed upon him.  He could not leave the boy alone and he was there when Lachie's parents arrived and that dreadful news was relayed to them.  Well he misses Lachie and the bonds he observed with his daughter. He speaks of his many quantities.  Ella's mother tries to comprehend the loss, a loss that Lachie's parents are enduring.  She has in a way had to almost park her grief for Lachie off to the side, to deal with Ella's grief and her physical and emotional issues.

67There are also impact statements from his basketball coach, Bradley Gillespie and even the school principal, Mal Cater.  They were read aloud to me.  I see no need to set out further details from those impact statements.  I take them into account.

68There are also some very sad impact statements from some of Lachie's school friends.  They did not want them read out aloud, so again I will not descend in any great detail to describe what they said.  Lachie's young friends Pippa Bethune and Jett Spence and Hayden Cooley and Meg Lewis in their individual way spell out how they grapple with the enormity of this loss.  These are real impacts on young people.  Just a big hole in their lives, affecting them each in differing but significant ways which they describe.

69No doubt the impact statements from friends represent just a small sample of many others who have been affected and who could have prepared impact statements but have not.  Lachie was a cadet.  He played sport.  He was an active student at Mentone Grammar.  His life would have intersected with so many others.  I note that there were many other friends and relatives who attended court the other day and again today, and there is a vast range of people who are joining the hearing today by way of Webex.  He will be missed by a great many and that much is very clear.

70There was an impact statement from Mr Ewers who provided that first aid that I described, including the CPR.  He was a firefighter but not on duty.  He ‘stepped up’ on this day.  Though he did not know Lachie or Lachie's family, he feels somehow entwined as he was there for the lad's last moments.  He has been deeply affected by the events of that day.  He constantly thinks of the incident and questions in his mind whether there is any more he could have done to secure a different or a better outcome.  

71I was worried when I read that in his statement and I wanted him to be assured that the answer was of course, 'No'.  He did all that we could expect of someone witnessing what he witnessed, in fact, far more actually.   He did not leave it to others, he stepped up.  He had expertise and he felt that obligation to act.  He changed direction and drove to the scene and attended promptly to Lachie.  He cared for him in his last moments.  That is worth a lot.  These injuries were simply not survivable and nothing could have altered that outcome.

72So I have touched upon a few aspects of the impact statements.  I take into account the more complete documents.  This happy, strong, engaged and achieving family have been rocked to their very foundations.  How do you put into words the impact of this kind of loss?  Well more than one of the authors comments on the difficulty of that task and the sheer inadequacy of words.  It is almost impossible really to put these things into words, though the McLaren family and Ella and her family and the friends and the coach and the principal and Mr Ewers have done a pretty fine job actually.

73It is a sobering experience as a judge reading this sort of material alone in chambers, more so actually hearing it read aloud in open court by the actual author.

74There is a rawness of grief here.

75It is why this offence of culpable driving is as serious as it is.  It is culpable driving causing death.

76Lachie McLaren's life has been tragically cut short.  He was 16 and he should not have died on this day.  He should be doing his Year 11, he should be thinking about Year 12 and Uni beyond.  Instead he is dead and that is because of your choices Mr Hennessey and there is a trail of wreckage, not at the scene off to the side of the Nepean Highway, but a trail of wreckage in the lives that are left behind.

77The impact of a crime is one of a large number of matters that I must take into account.  There are of course many other matters that I must have regard to including the various matters in mitigation that were raised on the plea. I will soon turn to those.

78I must not let the impact of your crimes swamp my consideration of the other sentencing factors in this case, and I do guard against that.  I am not here to act emotionally.  I put aside suggestions that you were a murderer or acting deliberately or intentionally.  The notion in Mr McLaren's impact statement that you probably did not care much about the impact statement he was reading and were probably more concerned about what was for your lunch, well I do not act on that. It does not accord with my assessment at all.  Nor the notion posed sarcastically that your family must be proud of you.  From my observations, there was scarcely a dry eye in court during the reading of these impact statements.  Your own mother became upset and had to turn her own camera off.  No one is taking this lightly.

79I do not act on any of the suggestions as to what I should do by way of sentence or act upon or get caught up in feelings of anger or hatred or vengeance or of what they hope life ahead for you is like.  I am not, by the way, being critical of Lachie's mother or father, these are understandable sentiments from a grieving parent but they do not assist my task at all and I must put them aside.  Indeed part of
Mr McLaren's impact statement dealt with the way he had changed and the fact that he had these uncharitable thoughts, thoughts he had never held before and almost a sense of dismay at that alteration in him.  An alteration brought about by this crime.

80I do take into account though the impact of your crimes as I am required to.  It has been profound.  The consequences of your acts will no doubt haunt the McLaren family for the rest of their days and nothing that you say or do or feel will alter that one jot.  Nor I suppose anything that I can say actually.  Their lives will be very different from the lives that they imagined, from the lives that they had mapped out. It is not a matter of 'moving on'.  How is that possible?  How do you move on?  They must somehow plunge back in and strive to live again.  For their own sake. and for Luis's sake and for Lachie's sake.

81That day in August of last year will no doubt haunt Ella and her family forever.  Again, though Ella will need to strike out and try to rediscover the joy and excitement in life again.  Everyone would desperately want that for her.

82This tragic event must not become more tragic still with gloom the staple diet for all of those principally affected by your acts.  That would just magnify the tragedy.

83From what I have learnt of Lachie and his high level of care and concern for others, what he would so clearly want for Ella and for his own family, for his mother and father and Luis, is for a new life ahead for them, for all of you to proceed with some sense of optimism as to what lies in the future.

84Perhaps the end of the legal chapter might permit some move in that direction. I hope that it can.

In Mitigation

85Let me then turn to the plea which was realistically conducted by Ms Brennan on your behalf.  She had prepared a written outline of plea submissions dated
12 September 2022.  There was also a report from a psychiatrist Dr Darjee and a character refence from your mother Colleen Mann.

86Either by way of oral submissions or from what was contained in the plea outline or Dr Darjee's report or the letter of your mother, I have been informed about your personal background including your family, educational and work history.  Also your long history of drug use.  Ms Brennan made submissions as to the relevant purposes of sentencing and as to the objective gravity of this offending.  She told me something of your past criminal conduct and your motor car licence history up in Queensland.

87She made submissions as to your prospects of rehabilitation.  In truth there were not that many matters in mitigation in this case.  She relied chiefly upon the following matters in mitigation: 

·     Your early guilty plea; 

·     The presence of some remorse; and

·     Some increased custodial burden arising from the COVID-19 pandemic and the way that has been managed in a prison setting.

88Ms Brennan had raised your disadvantaged background in her written submissions.  The prosecutor had filed some written submissions and raised some challenge to the extent of that submission.  Ms Brennan very explicitly withdrew any reliance upon the so called Bugmy[1] principles which had been flagged in the written submissions that she had prepared.  Correctly so in my view when one has regard to the extent of the disadvantage required to enliven those principles.

[1]Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (“Bugmy”)

89She conceded on your behalf the gravity of the offending and the need to pay regard to the multiple victims.  She conceded that the culpable driving fell above the mid-range.  She conceded the need for condign punishment with a substantial prison term the only option here.  She made submissions as to the standard sentence scheme as well as the importance of totality of sentence, though conceded that a measure of cumulation was required owing to the many and different victims.

Prosecution

90The prosecutor Mr Glynn had prepared some written submissions dated
13 September which have been marked as Exhibit C.  He also made some brief oral submissions as well.  The submissions were really pretty uncontroversial.
 I do not intend to set them all out.

91The prosecutor took me to some of the aspects of the seriousness of this offending and to a number of examples of other sentences imposed for culpable driving.
 Mr Glynn submitted that the culpable driving was a very serious example of the offence.  So too the endangerment offences, he argued.

92The Director was calling for a substantial term of imprisonment with a non-parole period but so much had already been readily conceded by your own counsel.

Background

93I turn to your background.  I am going to do this quite briefly as there is no reason for me to doubt it.  It is set out in the report of Dr Darjee as well as in your counsel's written submissions and your mother's letter and there is just no point my restating to you your own background.  It really has actually nothing to do with your offending.

94You were born in August of 1990 so were 30 years of age at the time and
 32 years of age now.  So you were not some silly teenager.  You were a 30 year old grown adult exercising adult choices on this afternoon.  Very bad ones as it happens.

95You were born and brought up in Queensland with four younger brothers and two younger sisters.  Your parents separated when you were in Grade 3 and your mother went on to re-partner four or so years later.  Yours was not an ideal background as is made clear in your mother's sad letter and in the report of
Dr Darjee.  It was not the best background but by no means was it the worst.  You have always had a mother who has loved you.  There was some family violence as you grew up and there was later movement between the two houses.  There is a report by you of some physical abuse at the hands of your father for a few years.  There is the reference in your mother's letter to some emotional abuse or pretty unpleasant, disengaged or dismissive parenting by your father.

96You were educated to Year 9 at which point you were expelled from school.  You have a very limited work history mostly in unskilled fields with transitory jobs.  You have moved around constantly and homelessness has been an issue from time to time.  Drugs have been a big issue over very many years.  

97At the time of the offending you were using a large quality of cannabis daily as well as Ice which had been problematic since your early twenties.  I was told that there had been a few hospital admissions over the years for some mental health issues with some diagnoses that had been made.  Dr Darjee in his report, speaks of the current diagnoses but there is no reliance at all on any of the principles from the well-known decision of R v Verdins.[2]

[2]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ('Verdins')

98Well you certainly did not have an ideal background.  Few prisoners do.  Few people do.  There was the separation of your parents and some level of domestic violence towards your mother and even to you.  Sadly, that is not too uncommon.  It does sounds like your father had a pretty unpleasant and dismissive attitude to you and to parenting and there was likely some emotional abuse as well.  Well of course, that is not something I ignore. I do not ignore any aspect of your background.  There was some disadvantage.  I take into account your background in a general way as submitted by your counsel.  That was never dependent upon reaching that high Bugmy threshold.  As I say, I will not ignore any aspect of your personal circumstances.  Your counsel is not suggesting and was not suggesting that there is any reduced culpability in this case and she is right.

99There is one matter in your formal prior criminal history being an armed robbery in company committed as a 19-year-old.  I was told by your counsel of an earlier Children's Court appearance for an assault upon your father.  That is not a formal prior matter before me, however.  You have no traffic prior convictions in Victoria though I was told by Ms Brennan that in Queensland you have had your licence suspended five times since 2007, once for demerit point accumulation and once, the most recent time, for non-payment of fines.  The reason for the other suspensions is not clear, nor for that matter, the nature of the fines.

100So there is that short history comprising that one appearance of no real relevance to my task.  You do not fall to be sentenced a second time for any past matter of course.  You have been dealt with in the past.  It is a matter of what weight I give to that matter as I have to make judgements as to your prospects of rehabilitation and the risk of reoffence.  I have to make judgements as to the need to deter you and to protect the community from you.  Those things are not informed by that single appearance.  It is of no real weight to my task at all.

101You have been in custody since the day of this offence and whatever might be said of the impact of COVID-19 upon prisoners, I am told you have used your time wisely doing courses and working.  According to Dr Darjee, you seem to have settled in pretty well.  You have maintained contact with your family.  There have been some ramifications posed by the response to the COVID-19 pandemic in a prison setting.  See paragraph 65 of the written submissions.  Your counsel qualified that written submission owing to the observations of Dr Darjee as to your experience in prison and how you were fairing.

102I turn now then to some of the other matters that have been raised in mitigation on your behalf.

Guilty plea

103I turn firstly then to your guilty plea.  It is a plea at the earliest stage.

104That is a matter of real importance and your early guilty plea must be adequately rewarded.  That is the law.

105You have taken this early responsibility for your crimes.  Not everyone does.  Well you did.  You have facilitated the course of justice and I must reward you for that.  The community has been saved the time, cost and effort associated with a committal in the court below or a trial conducted up in this court.  All the witnesses and the McLaren family, and Ella Mahoney and her family, they have been spared the experience of giving evidence in any hearing or awaiting the outcome of such a hearing up in this court, an outcome that can take a very decent period indeed to be achieved given the listing uncertainties in this court.  You have swiftly admitted your guilt.

106I take into account your guilty plea.  You also pleaded guilty amidst the disrupted operations of this court brought about by the global pandemic.  There is a large backlog of cases and yours has never been one of them.  There is a heightened value for a guilty plea in these times for the many reasons set out in the
Court of Appeal decision of Worboyes v The Queen [2021] VSCA 169.

Remorse

107I turn then to the issue of remorse or contrition.  Sometimes a court has a letter of apology from an accused, or an accused is called on a plea to express an apology or there might be expressions of remorse in an interview conducted with the police.  Well I have none of those things here.  Your counsel relies on your guilty plea as implying some remorse as well as references to remorse or contrition which exist in Dr Darjee's report.  A guilty plea is usually indicative of some remorse and here it was, as I have said, an early one.  I pondered out aloud during the plea why would there not be remorse in a case such as this?  

108This is not some ‘line ball’ act of carelessness where you might be sitting there seeking to justify your own actions or to somehow blame someone else for what took place.  You know and have known for over a year how horrible your driving was and how enormous the ramifications of it.  Of course, you know now, how deep the impacts run.  You know and have known that you have killed a totally innocent young boy and endangered many others.  It is true that Dr Darjee speaks of a level of detachment but he explains the reasons for that in his report.  Having viewed the materials before me and the submissions made, I am satisfied that there is some actual remorse in this case, and I do take that into account in mitigation.

COVID-19:  Increased burden

109Your counsel argued there was an increased custodial burden upon a prisoner during the global pandemic.  I need no convincing of that fact.  There is no doubt that the COVID-19 virus and the response to it by those who run the prisons has increased the burden felt by prisoners.  Prison has been a more stressful environment for prisoners, whether they are held under sentence or on remand.  Social distancing has not been easy.  There has no doubt been a worry about catching the virus in such a setting as that and, unlike someone in the community, there is just no level of autonomy at all.  There have been no visits and also limited courses for a large portion of the global pandemic.

110You have been held since August of last year.  Undoubtedly then, you have felt an increased burden.  I was told that you had spent some time in quarantine and there had been some lockdowns.  I am required to take that into account as a matter of law.  The absence of visitors owing to the pandemic has been less of an issue for you though given that your family are interstate and likely would not have been frequent visitors in any event.  You have been having video calls with your mother and contact with others and you seemed to have settled in pretty well according to Dr Darjee.  You adjusted well to having a roof over your head and a number of square meals provided.  You have also been able to work and to do some courses.

111As to what lies ahead on the pandemic front for prisoners, it is really impossible for anyone to know.  I am not free to guess about that.  The impacts of the virus upon prisoners has been lessening.  Visits re-commenced in March of this year.  But we are clearly not beyond the reach of the virus.  There will be lockdowns and there will be quarantines from time to time in a prison setting.  It will undoubtably continue to bring about some level of uncertainty in the minds of prisoners.

112Now, those whose job it is to run the prisons will be able to reflect on the impact of any past and any ongoing limitations on a case-by-case basis.  They would have the power to address any increased burden in your case by conferring emergency management days upon you.  I cannot know if that will take place or not, and I do not proceed on the assumption that it will.  I just do not know and I cannot speculate about that either.

113I do take into account that it seems likely that there will be some restrictions and some limitations that will continue into the future, at least in the next several months.  That would no doubt produce some uncertainty and add to your custodial burden.  So I take into account the increased burden posed by the response to the COVID-19 virus in the ways contemplated by your counsel in the submissions that she made to me.

114The disconnection geographically from those who might visit you is also of some relevance to my task.  I give it some weight.  That arises quite independently of the pandemic.  It is just a fact and one that does undoubtedly make prison more onerous for you.  You will not have visitors ‘on tap’.  One unintended benefit of the prison response to the pandemic is the ability now to at least have video visits which is useful for one with interstate relatives such as you.

Rehabilitation

115I turn then to your prospects of rehabilitation.  You might recall your counsel was hesitant to select an adjective to describe those prospects.  She ultimately submitted that you had some prospects of rehabilitation.  You do not have a lengthy criminal history at all or a shocking driving history.  So this conduct stands out.  You do have family support, but you always have and you have seemingly not taken up your mother's strong recommendations over the years that you get some mental health treatment.  You have a very patchy employment record and it would seem few skills.  You are at least using your time usefully in prison.  You have pleaded guilty at an early stage and you are to a degree remorseful.

116No doubt the time you have served already in prison and the significant time which lies ahead in prison will serve to deter you into the future.  I have the report of
Dr Darjee and it is clear that ongoing illegal drug use would pose the greatest risk.  Well that has been a serious issue for close to two decades for you and you have not addressed it.  This long-term addiction to drugs connected up with the psychological diagnoses or personality features spoken of casts something of a shadow over your future prospects.  

117You are making the right noises about not resuming drug use but the right noises are pretty easy to make sitting in a custodial setting and the test will come as it always does upon your ultimate release which is, as I may say, many years hence.  I am though prepared to accept your counsel's submissions that you have some prospects of rehabilitation.  In fact I think they are reasonable but much will depend on whether you can abstain from illegal drug use.  If you cannot, those prospects will plummet.

Dr Darjee

118I have referred to the report of Dr Darjee.  I see no need to descend into the detail of that report.  I accept the submissions made as to it.  It has some useful personal background details and suggestions as to future risk and treatment needs.  Also there is mention of your response to the offence.  How you feel about it, the extent of your remorse.  It sets out various diagnoses.  It is not relied upon as enlivening any of the principles from the case of Verdins.  I take the report into account.

General

119I will now make some general statements as to the crimes and the relevant sentencing principles in play.

120Culpable driving causing death is an inherently serious offence.  It is punishable by a 20-year maximum term of imprisonment.  Conduct endangering life and serious injury are also serious offences though less serious for obvious reasons.  There is no death or actual serious injury as the law defines that term.  There is instead the creation of the relevant risk.

121Culpable driving can encompass a very wide range of conduct but of course it will always involve a death.  There is always that tragic outcome and almost always a dire impact upon relatives of the person who has been killed.

122The cases demonstrate though that there can in fact be sizeable differences in the gravity of the offence.

123I am sure it must seem pretty odd to grieving relatives sitting in a court to watch lawyers and a judge try to plot the particular crime somewhere on the spectrum of offence seriousness, a crime that after all has killed a loved one.  Adjectives are employed.  Low level, mid-range, high end.  As I say it might seem bizarre to those sitting off to the side as however the offence might be categorised by the lawyers, it has killed someone. It has killed that relative.

124The explanation is that as inherently serious as the offence no doubt is, the court still needs to engage in an assessment of the gravity of the instant offence.  We are required to perform that task as judges.

125I was referred to the case of Whyte[3], a NSW decision from 2002 which provides a non-exhaustive list of features that may aggravate the gravity of driving offences that cause death or serious injury. These features may include:

[3]R v Whyte (2002) 55 NSWLR 252

·The extent and nature of injuries inflicted;

·The number of people put at risk;

·The speed;

·The degree of intoxication or of substance abuse;

·Erratic driving;

·Competitive driving or showing off;

·The length of the journey during which others were exposed to risk;

·Ignoring warnings;

·Escaping police pursuit;

·Sleep deprivation;

·Failing to stop.

126As I say this is a non-exhaustive list and the case law makes clear that these factors do not constitute a checklist such that it can be asserted that the absence of one or more of these features means that a case cannot be regarded as serious or even very serious.

127Your counsel conceded that this culpable driving fell above the mid-range.  The prosecution argued it fell well above mid-range and was in fact a very serious example of the offence.  I have in the days since the plea considered the various submissions, as well as all the available material placed before me.

128This is in my view a very serious example of culpable driving.  You left the wrong side of the road at high speed, you continued across a slipway/service lane and you killed a young boy who should have been entirely safe on the footpath.  He was not even close to 'the field of play' if I may use that term.  Not that the word 'play' should suggest that driving is some sort of game.  It is not.  I use that term 'field of play' merely to disclose how far removed, Lachlan McLaren should have been from any risk posed by any driver, even a particularly foolish one.  That is how extraordinary your conduct was.  See the aerial photograph at p204 of the depositions that plots your movement.

129You were clearly intoxicated by drugs.  You were unlicenced.  You must have known how incapacitated you were.  You must have known you were not in a fit state to drive.  I am satisfied of that beyond reasonable doubt.  You chose to take the drugs.  You had no proper control of a car that you chose to drive.  The lead in to the culpable driving presented many opportunities to stop.  To park.  To reconsider the risks that you were creating.  High speed and erratic driving for a decent distance along the wrong side of a large highway with endangerment of many along the way and a complete lack of any sensible control over the car.  Multiple head on collisions were narrowly avoided.  I do recognise it was a tight timeframe but you just kept driving.

130The impact which is something I must have regard to, has been vast.  This instance of culpable driving is in my view way above the least serious examples of the offence, and they are of course serious enough given the inherent seriousness of the offence generally.  In my view, it is a very large measure above the median or mid-range in terms of an assessment of the objective gravity of the offence, without factoring in matters personal to you.

131I suppose one can almost always imagine a worse example of any offence but that says nothing at all about the level of seriousness of the offence actually before the court, especially one with as many aggravating features as exist in this case.

132It is in my view a particularly grave example of the offence viewed objectively.

133The conduct endangering life and serious injury offences are also most serious.  
I note that two of the conduct endangering life charges rolled up into the one charge three victims, this is Charge 3 and Charge 8.  There were many near misses.

134Endangerment offences such as these have a very broad scope.  The offence of conduct endangering life can cover a broad range of circumstances.  It can be committed where the conduct in question results in quite serious physical injury to the person or persons who are actually endangered, but can also embody conduct which does not lead to anything other than apprehension, or distress, on the part of those victims and it applies as well, to conduct that is viewed as endangering others who are not even identified, and who may never have even come forward.  They may not have sustained any physical or psychological injury at all.  Indeed, they may not even have appreciated that they were ever even at risk.  That is how broad the endangerment offences are.  They can cover a multitude of settings.  See the case of Reid[4].

[4] [2020] VSCA 247 at [101]

135These instances of the offence, did not involve some theoretical risk.  These were acts by you causing serious immediate risks of death or serious injury, often averted only at the last moment.  Risks that were immediately appreciated by that victim.  The setting was of you an unlicensed driver under the influence of ice, travelling in the wrong direction at around 130 kilometres per hour, towards motorists who were entitled to be travelling at 80 kilometres per hour towards you, on a major road in Melbourne on a Sunday afternoon.  Head on catastrophe was narrowly avoided with these many near misses that are described in the summary.

136In fact, of course for Ella who is the victim of the subject of Charge 2, it was not even a near miss.  She was not even a motorist on the road.  She was struck and injured by your out-of-control car as she walked on the footpath.  She is lucky to have survived but she had a number of physical issues as a result which are spoken of in the materials.

137These are high end endangerment offences as well.  There are many matters of aggravation.

138I have to consider a number of purposes of sentencing.  I must pay regard to your prospects of rehabilitation.  I have already commented on those prospects.  Those prospects are reasonable.  They will be very much dependent on your ability to leave illegal drugs behind you.  Only time will tell on that score.  Rehabilitation is only one of the purposes of sentencing that I must have regard to.  There are many other purposes.

139I must punish you justly and proportionately.  Punishment is of obvious importance in this sort of case.

140I must also denounce your conduct.  Again, that is of obvious real significance here.

141I must pay appropriate weight to specific deterrence.  Specific deterrence relates to the need for the court to deter the offender, you, from future offending.  Given the nature of your crimes, that must assume some weight here.  It would no doubt be given far more weight if you had a relevant criminal history or an appalling driving record or had breached many court sentencing orders in the past.  But that is not the position at all.  You regret your actions and you have no doubt been deterred to a degree and that process will continue over the course of the lengthy sentence which I will soon pronounce.  There can at least be some moderation of specific deterrence.

142General deterrence is important.  In fact, it must loom large in my task.  This concept, general deterrence relates to the need to deter other potential future offenders.  It is a matter of real importance in this sort of case.  I must send a clear message to other road users in the community.  The roads are dangerous enough places at the best of times even with people doing their very level best to drive appropriately.  It is probably the most dangerous thing we all do.  Drivers must understand that significant punishment await those who by their criminal acts cause a death or who endanger other road users or pedestrians.  

143How many times has the TAC sent the message about drugged drivers and the dangers and risks?  Well the message must be sent loud and clear by the sentences imposed by the courts in this style of case, a message sent to future potential offenders.  It is of high importance given the potential tragic consequences which are so amply displayed in this case.

144I must have regard to the maximum penalties., I have already mentioned those, 20 years' imprisonment for culpable driving, 10 years' imprisonment for the conduct endangering life and five years for conduct endangering serious injury.

145As I have said, I must also pay regard to the impact of your crimes.  Well it has been profound.  I have spoken of that at length.

Standard Sentence Scheme

146The Standard Sentence Scheme applies only to one of the matters before me being the charge of culpable driving, and I must have regard to that standard sentence.

147The effect of that scheme has been discussed in a number of cases including in the case of Brown[5] to which I was referred by both parties.  I also have regard to the discussion of the provisions set out in the Judicial College of Victoria's Sentencing Manual.  Also, it is discussed in a number of the cases that I have looked at including the case of Victorsen[6] from 2020.

[5]Brown v The Queen [2019] VSCA 286

[6]Victorsen v The Queen [2020] VSCA 248 (“Victorsen”)

148Pursuant to these relevant Sentencing Act provisions, the period of eight years is the standard sentence for the offence of culpable driving.  That period is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness, see s5A(1)(b).  That is to say, without reference to purely personal matters, see s5A(3)(a).

149Well it is my view that this instance falls well above the mid-range taking into account only those objective factors affecting the seriousness of the offence.  Viewed objectively, it is a grave example of the offence in my judgment.

150What is plain from the Act itself and from those decisions interpreting the SentencingAct provisions, is that the standard sentence is only one of a number of matters that I am required to take into account, see s5B(3)(a) and (b).  Where it does apply, I must and do take it into account as one of the factors, but this scheme was not intended to interfere with the intuitive synthesis that is at the heart of sentencing in this State, nor to lead to any consideration of two-stage sentencing processes.

151It does not have any primacy over other factors which must be taken into account.  It introduces an additional factor in the form of this legislative guidepost.

152It does not and it must not represent a starting point from which the sentence should be fashioned or structured.  I do not start at that point in relation to
Charge 1 culpable driving and then work my way either up or down from that standard sentence figure making adjustments in either direction.

153Nor does the scheme otherwise affect the matters that a court must take into account.  It does not change the requirement to, or means of assessing the seriousness of the offence.

154These amendments do however quite deliberately impact upon the consideration of past sentencing practices.  When considering sentencing practices or looking at comparable sentences, I must only have regard to sentences imposed for the offence when it was dealt with as a standard sentence offence.  Sentences imposed for crimes which predate the scheme are not to be taken into account but of course that does not impede my talking into account statements of principle from cases predating the scheme.  That is a very different proposition and is in no way prohibited.

155Further, the standard sentencing regime also has consequences for the setting of a non-parole period and the ratio of the non-parole period to the head sentence.  See s11A(4).

156With that important qualification in regard to current sentencing practice for culpable driving and the importance of the date of any past offence, I must pay regard to current sentencing practices.

157It is not a single controlling factor.

158The Sentencing Advisory Council snapshot for culpable driving, that is snapshot No. 250 of 2021, has data that spans the period from 2015-2016 to June 2020 so plainly involves a large number of sentences imposed for crimes that would have been committed before the commencement of the Standard Sentence Scheme which took effect from 1 February 2018.  I have looked at the more up to date Sentencing Advisory Council on line data but again that data spans the period from July 2016 to 30 June 2021, so there is still a very decent period where the scheme had not come into force or where at least sentences imposed would still relate to offending which predated the scheme.  

159Those up-to-date statistics disclosed what appeared to be an increase in sentences with by then, a small percentage (4.5 per cent) of sentences falling between 12 years and less than 13 years.  I had serious doubts as to the accuracy of those figures, I had raised them in the course of discussions, but as was made clear from the email received from the Sentencing Advisory Council, that explanation lies in the four sentences which were imposed by a Supreme Court judge in Singh[7]'s case back in 2021.  The case involving the truck driver who killed four police out on the Eastern Freeway near the Chandler Highway exit.  

[7]R v Singh [2021] VSC 182; 95 MVR 444

160Those 12 years sentences were in fact successfully appealed recently in the
Court of Appeal and reduced to 10 years each but that was as a result of the undertaking to give evidence, and not as any recognition that 12 years was otherwise too long.  The Sentencing Advisory Council online statistics have not yet been updated to reflect that successful appeal.  As far as I can determine, from my researches, those 12 years' sentences, prior to that successful appeal, represented the longest individual sentences ever imposed in this State for the offence of culpable driving.

161What one can observe from that sentencing snapshot that I have mentioned is that over the years relating to that data so 2015-16 to 2019 2020 ending June 2020, though the offence was punishable by a 20-year term and though undoubtedly there were very serious examples of the offence dealt with in the courts, the greatest sentence out of those 66 sentences fell between 10 and 11 years.  This is the same sort of problematic compression of sentences spoken of in the

[8]Director of Public Prosecutions v Dalgliesh (a pseudonym) [2016] VSCA 148

Court of Appeal decision of Dalgleish.[8]  How could there be no broader range of sentences given the maximum term and the varying degrees of seriousness of offending represented.  

162Well in any event, I do not need to concern myself with those past sentencing practices or that seeming compression of the sentencing band which is disclosed in that data.  That is because I must not have regard to any sentence imposed for the offence of culpable driving where the offence took place before
1 February 2018.  Those historical sentencing practices must not be taken into account by me.

163Parliament saw fit to designate this offence as a standard sentence offence and in doing so to deliberately remove from the court's consideration those then existing past sentencing practices, so those before 1 February 2018.  That was quite deliberate.  This scheme was not designed to reduce sentences, that is for sure.  It was designed in part to break free of the apparent constraint brought about by past sentencing practices.

164There are no sentencing snapshots for the other offences that I have before me but I have looked at the online data for conduct endangering life and serious injury.  The most common sentence for conduct endangering life where prison was selected fell in the band from three to less than four years.

165I have also looked at the relevant portions of the Judicial College of Victoria Sentencing Manual at 2.1 and 5.5.  There are summaries not just of a large number of Court of Appeal decisions, but also of many sentences passed by judges of this court.  Again though, for the culpable driving, there is the need not to pay regard to sentences which did not involve the application of this standard sentencing scheme.

166The fact is there have not been too many examples of sentences passed for culpable driving where the standard sentence scheme applies or for that matter the review of such sentences in the Court of Appeal.  I have looked at the various cases.

167I have looked at the 10 cases referred to in the prosecution submissions.  None is on all fours.  I note for instance that a number involve youthful offenders.  Victorsen was 19 years of age with some really significant personal issues from an early age and an obviously increased custodial burden.  Phongthaihon[9] was 21 years of age with Verdins factors.  Reid[10] was 21 years of age at the time of his awful driving and the Court of Appeal indicated in that Director's Appeal that he had in fact been dealt with leniently.

[9]Phongthaihong v The Queen [2021] VSCA 317; 98 MVR 143

[10]DPP v Reid [2020] VSCA 247

168There are a range of differing matters in mitigation and aggravation as disclosed in the various cases.  There were some with Verdins or Bugmy factors and Singh,[11] which I have referred to, had the issue of co-operation and an undertaking to give evidence and some very unusual mental health issues in play as well.

[11]Mohinder Bajwa Singh v The Queen [2022] VSCA 178

169There are in fact probably too few cases for me to actually discern a sentencing practice existing post this scheme coming into effect, but in any event, there are differences ‘all over the shop’ in terms of the features of the offence and the offender in the cases that do exist.

170I am exercising a sentencing discretion in your case.  No amount of looking at other cases or statistics will ever provide the answer to my task.  Other cases are not precedents.  Statistics have inherent limitations in every case but of course far greater limitations when dealing with the standard sentence scheme for the reasons that I have described.

171There is no such thing as one correct sentence.  There are always a range of differing aggravating and mitigatory features in every case.  The statistics will never disclose those things.  Well, I must assess those matters in this case as I am exercising an individual sentencing discretion in your case, not any of these others.

172Prison is a disposition of last resort. That is always the position.  But of course, it is inevitable here as is correctly conceded by your counsel.

Totality

173I take into account the principle of totality of sentence and I have engaged in a last look at the sentences imposed by the court and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you and to ensure that the overall effect is commensurate with your overall criminality.  That short sentence sets out broadly this concept of totality, a principle which is so important.

174To comply with the totality principle, I must determine an appropriate sentence for each charge, taking the applicable sentencing considerations into account, and then I must designate the highest term and nominate that as the base sentence.  Well obviously in this case, that will be the sentence passed on the culpable driving charge, Charge 1.

175I must then determine the extent to which there should be cumulation regarding the other sentences.

176Then there is that third step.  It is that 'last look' that I have described.  I must 'stand back' and consider, in light of the totality principle, what is an appropriate total effective sentence.

177If applying the first two steps produces a total effective sentence that infringes totality, then the court should moderate the extent of cumulation to ensure the total effective sentence complies.

178It is inescapable that there must be a level of cumulation here.  Even though this was a very brief period when you were driving, you have killed one young boy, you have endangered the lives of 11 others.  I say 11 as Charge 3 and 8 roll up three victims.  You also placed Ms Barton in danger of serious injury.  So, of course, there is a strong temporal connection here and an overlap in the conduct.  Ella was struck as you struck Lachie McLaren.  

179The lead in to the culpable driving was the driving on the wrong side of the road at excessive speed and whilst intoxicated with drugs, with those various people endangered. It was a course of conduct, your driving in that very tight timeframe, but these are each separate crimes in the sense that there are separate victims and no doubt separate impacts. I cannot just wave away victims and make them meaningless statistics.  They are not.  They are not a job lot.  They must be meaningfully reflected by the sentences that I impose and marked out at least, by a level of cumulation.  

180    Again though, totality is an important consideration and it compels very sizable moderation of the extent of cumulation when I stand back as I must, and look at the overall effect, sometimes even to a point where the amount of cumulation might appear to be almost derisory, given the seriousness of the offence.  Just bear with me. 

Sentence

181Well, I am sorry to all concerned that I have spent so long in delivering these sentencing remarks.  But it is important that all concerned know why I am doing what I am doing.

182There are never any winners in a case like this.  None.  You did not wake up that morning on 15 August 2021 and decide to kill someone or endanger the lives of others.  However you did use drugs.  That was your choice.  You put yourself in a position where quite aside from your unlicenced status in this State, you should never have got behind the wheel of a car, and given your actual state, you had no business being anywhere near a car as a driver and yet you chose to drive.  Owing to your being under the influence of drugs, you had no proper control of that vehicle.  

183You killed Lachie McLaren and as a result the McLaren family, well they have been changed forever.  They will never be the same.  They will never be whole.  Ella's life has altered very dramatically, as well.  As a result, you are in prison and you will be for many years.  So as I say, there are just no winners in this sort of case. None.

184I am sure it has been explained and I trust and hope that the McLaren family and all those who had a connection to Lachie, will understand that my sentence on the culpable driving charge is not to be taken as some attempt by me to measure out the worth of their son's life.  That is not my sentencing task.  It would be impossible.  The fact is Lachie's life was priceless.  It was irreplaceable.  He will be missed forever by his family and by his friends and that is not something that I can in any way alter.  There will I am sure be no comfort or solace for them in the sentence which I will now impose.  I suppose the best that might be said is that at least it brings to an end this legal chapter which they no doubt have been focusing upon for some time.  That will now at least come to an end.  Perhaps focus can be devoted elsewhere now.

185But what remains to be done is for me to pass an appropriate sentence upon you for your serious crimes, taking into account all of the relevant matters that have been placed before me.

186If you were in court I would have you stand up but you are not and I will have you remain seated.

Actual sentences

187On Charge 1, the charge of culpable driving causing the death of
Lachlan McLaren, I convict and sentence you to 12 years' imprisonment.

188On Charge 2, conduct endangering the life of Ella Mahoney, you are convicted and sentenced to four and a half years' imprisonment.

189On Charge 3, conduct endangering the lives of the three people in
Brendan Compton's car, you are convicted and sentence to three and a half years' imprisonment.

190On Charge 4, conduct endangering the life of Darren Anderson you are convicted and sentenced to three years' imprisonment.

191That same sentence of three years is imposed on Charge 5, conduct endangering the life of Robin Dayes.

192Charge 6 relates to conduct endangering serious injury to Frances Barton, so it is a less serious offence with half the maximum penalty of the conduct endangering life.  You are convicted and sentenced to 12 months' imprisonment.

193On Charge 7, conduct endangering the life of Nicholas Stewart, you are convicted and sentenced to three years' imprisonment.

194Charge 8 conduct endangering the lives of the three Finocchiaro's you are convicted and sentenced to three and half years' imprisonment.

195On Charge 9, conduct endangering the life of Stavros Vlachokyriakos, I convict and sentence you to three years' imprisonment.

Summary offence

196On the summary offence of unlicenced driving I convict and sentence you to seven days' imprisonment.

Base

197The base sentence is therefore the 12 years that I have imposed on Charge 1.

Cumulation

198I direct that,

·   18 (sic)*[12] months of the sentence imposed on Charge 2 relating to
Ella Mahoney, and

·   three months of the sentences imposed on each of Charges 3, 4, 5, 7, 8 and 9; and

·   one month of the sentence imposed on Charge 6

is to be served cumulatively, that is on top of that base sentence and upon each other.

[12] *Note that this was amended to 17 months, see paragraph [206] to [207] below

199The seven day term imposed on the unlicenced driving will be served concurrently with all other sentences.  You are probably losing track of the mathematics of that, let me tell you what it amounts to. 

TES

200These orders both as to the base sentence and the extent of cumulation produce a total effective sentence of 15 years' imprisonment.

Non-parole period.

201I am required as a matter of law to fix a non-parole period.  I am prohibited from speculating as to whether you will be released on parole.  The Adult Parole Board will make that decision as to whether you can be released or not.  It has got nothing to do with me.

202Unless it is in the interests of justice not to do so, I am required to fix a non-parole period of at least 60 per cent of the relevant term.  The relevant term is the total effective sentence, in this case the 15 years that I have announced.

203I do not believe it is in the interests of justice to fix a lesser ratio in this case.  Your counsel was not suggesting it was.  In fact, I believe it is appropriate to fix a higher ratio in the circumstances.

204I fix a period of 11 years during which you will not be eligible for release on parole.  

Section 18 pre-sentence detention.

205It is 402 days is it, I think?  Yes.  You have already served 402 days by way of pre-sentence detention, and that is to be entered into the

206MR GLYNN:  Sorry, Your Honour it is actually 400 days.  Agreed between the parties it was 395 last Wednesday.

207HIS HONOUR:  Was it?  All right.  Well, I've got that wrong, I've said my maths wasn't great.  I'll just need to do a couple of things.  I need to do the maths in terms of the PSD and the orders for cumulation it is my intention to produce a 15 year term with an 11 year non-parole period, whether my maths is correct in terms of that, I will have to consider.  Just give me one moment.  All right, well I think you're right in terms of the 400 days, I'm just considering the orders for cumulation and the total effective sentence, as I say, it was my intention and desire to achieve that outcome of 15 years with a non-parole period of 11. 

208I think when I look at those sums the orders for cumulation produced an extra month in terms of the total effective sentence.  So, I'm in error in that respect and what I'll do is I'll cumulate 17 months of the sentence imposed in relation to Charge 2 upon the base and other cumulative sentences.  That produces a total effective sentence to 15 years with a non-parole period of 11 as I intended.

209You have served already 400 days by way of pre-sentence detention and that will be entered into the records of the court.

Licence order

210I had to make orders against your licence.  In a way it's almost academic really.  On the major charge here, that is the culpable driving, there is a mandatory requirement to make an order against your licence.  There is a minimum period of 24 months.  A licence order has both a punitive, but also a protective effect.  Well you are going to prison for a very substantial period.  Whenever you are released, you will need to try to establish yourself back in the community.  You are receiving very sizeable punishment by virtue of the prison sentences that I have just pronounced.

211In the circumstances of this case, given the length of the prison term I am imposing, I do not believe there is any point deferring the licence order to take effect upon your ultimate release which is something I often do do, for shorter sentences.

212On the charge of culpable driving causing death, I cancel all licences to drive held by you and disqualify you from obtaining any another permit or from driving in this State for a period of five years commencing from today.

Section 89C

213I find pursuant to s89C of the Sentencing Act that the offence of culpable driving was committed by you whilst you were under the influence of a drug of dependence.  That will also be noted in the records of the court.

214On each charge of conduct endangering life, I cancel all licences and disqualify you for a period of two years on each of those charges commencing from today.

Section 6AAA

215I have taken into account your guilty plea.  If you had pleaded not guilty and been found guilty of these offences, I would have convicted and sentenced you to
17 and a half years' imprisonment.  I would have fixed a non-parole period of
13 and a half years.  That statement is to be entered into the records of the court. 

Disposal Order

216There's a disposal order as well.  Thank you.  There is a disposal order sought pursuant to the provisions of s78 of the Confiscations Act relating to some cannabis referred to in the schedule.  There's no issue taken with the making of this order.  I am satisfied the conditions for the making of the order are made out.  I order the forfeiture to the State of that property referred to in the schedule, it is to be dealt with and handled and managed in the way contemplated by that signed order.

217I must also make a statement pursuant to s5B(4) and (5) of the Sentencing Act. Section 5B(4) requires a court sentencing an offender for a standard sentence offence, to state the reasons for imposing that sentence. Section 5B(5) requires me to refer to the standard sentence for the offence of culpable driving and explain how the sentence I have imposed on you relates to the standard sentence.

218I am required to identify the facts, the matters and the circumstances which bear upon the judgment I have reached as to the appropriate sentence.

219I believe that my lengthy reasons to this point will explain the reasons why the sentence imposed in relation to the single offence covered by the Standard Sentence Scheme is higher than the standard sentence specified.

220By the process of instinctive or intuitive synthesis, I have arrived at what I regard as the appropriate individual sentence, taking into account all the matters I am required to take into account, including the existence of the Standard Sentence Scheme.  It is, as I have said, but one of many of the factors that I must have regard to.

221Let me just see if there is anything else, I need to deal with.  Firstly the mathematics of the order.  Are you all comfortable at least with the mathematics for 15 and 11, do we get to that with the various orders?  Yes.  And I have made the s18 declaration for the time in custody.  Are there any other matters that I need to deal with at all from anyone's perspective?

222COUNSEL:  No, Your Honour.

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