Director of Public Prosecutions v Holt (a pseudonym)
[2021] VCC 1655
•14 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARC HOLT (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 September and 14 October 2021 | |
DATE OF SENTENCE: | 14 October 2021 | |
CASE MAY BE CITED AS: | DPP v Holt (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1655 | |
REASONS FOR SENTENCE
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Subject:Criminal law - sentence
Catchwords: Plea of guilty – culpable driving causing death – engaging in conduct endangering life – not sentenced as principal offender but as a person complicit in the offending – child at the time of offending – combination of exceptional circumstances exist to warrant a period of detention in a youth justice centre
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Worboyes v. The Queen [2021] VSCA 169; Bugmy v. The Queen (2013) 249 CLR 571; R v. Mills (1998) 4 VR 235; Eric Victorsen v. The Queen [2020] VSCA 248; Lowe v. The Queen (1984) 154 CLR 606
Sentence: Total effective sentence of three years and 10 months detention in a youth justice centre
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Katherine Hamill (plea and sentence) | Office of Public Prosecutions Victoria |
| For the Accused | Mr Lachlan Cameron (plea and sentence) | Daniel Taylor Lawyers |
HER HONOUR:
1Marc Holt[1], you have pleaded guilty to two charges of engaging in conduct endangering life contrary to s 22 of the Crimes Act 1958 (‘the Act’) and one charge of culpable driving causing death contrary to s 318 of the Act.
[1]The name of the accused is anonymised as he was a child at the time of the offending.
2The offending giving rise to these charges was committed on 14 September 2018. In sentencing you for this offending, I must have regard to the maximum penalty for each of the offences you have committed. The offence of engaging in conduct endangering life carries of a maximum penalty of 10 years' imprisonment; and the charge of culpable driving carries a maximum penalty of 20 years' imprisonment.
3You were born in September 2001. At the time of the offending you were 16 years old and had no prior criminal history.
Circumstances of offending
4Victor Kostiuk was a Detective Senior Sergeant who had served with Victoria Police for 38 years. His son, Felix Kostiuk is also a Detective Senior Sergeant in the Victorian police force. Together, they and other members of the force, and supporters were participating in the ‘Wall to Wall Remembrance’ ride from Melbourne to Canberra in September 2018. The Wall to Wall Remembrance ride is a charitable event in honour of fallen colleagues in the lead up to National Police Remembrance Day.
5Victor Kostiuk was a much loved and respected husband, father and colleague. Tragically, Mr Kostiuk is the victim in respect of charge 3 - the offence of culpable driving causing death.
6The circumstances of your offending are detailed in the Summary of Prosecution Opening dated 12 January 2021, which is the agreed basis upon which you are to be sentenced.
7
At 7.30am on Friday, 14 September 2018, Victor Kostiuk and his son left
Mr Kostiuk’s Aspendale home to ride to Canberra as part of the Wall to Wall Remembrance Ride. They intended to take the Princes Highway to Merimbula, stopping overnight, before heading to Canberra to meet up with other police colleagues from across the country. Mr Kostiuk was an experienced motorcyclist and was riding his 2014 BMW motorbike.
8At around 8.30am that same day, you received a call from a friend of yours, 21 year-old, Jesse Reid. Mr Reid’s partner had gone into labour earlier that morning, and he wanted company on the drive from Merimbula to Melbourne to visit his newborn child. At the time, Mr Reid held a P2 Victorian Drivers Licence subject to a zero blood alcohol limit, and as a result of a prior court appearance, alcohol interlock conditions.
9Jesse Reid picked you up at about 8.40am and at 10.16 am began driving back to Melbourne. Mr Reid was driving his 2002 Holden Commodore which had been fitted with an alcohol interlock device. By this time, Mr Reid was aware his son had already been born, and had received messages from his partner’s mother saying, ‘OK, drive safe’. Mr Reid replied that he was ‘going as fast as I can’. His partner’s mother wrote back, ‘take your time and drive safely’ and ‘OK, don’t speed’.
10Mr Reid drove from Merimbula to Eden and stopped to visit some friends. While in Eden he smoked ice and consumed alcohol. From there, you started the car and you drove from Eden to Kiah arriving at 12.37 pm.
11
Mr Reid took over the driving when you left Kiah. The alcohol interlock device required a ‘zero alcohol’ sample to be furnished before the vehicle could start. You provided a blood alcohol result of zero at 12.44 pm, starting the ignition and
Mr Reid then began driving.
12At 12.59 pm, the interlock device required a random running retest and you provided a second sample of breath, although it was Jesse Reid who was driving.
13A third random running retest was required at 1.31 pm. Mr Reid provided a sample of breath at that time with the result showing a ‘Running Retest Sanction high blood alcohol concentration of 065’. This caused the vehicle to shut down and enter a lockout state preventing it from starting for five minutes.
14At 1.36 pm, you provided a third blood alcohol concentration result of zero enabling Mr Reid to drive off. Again at 1.52 pm, a further random running retest was required, and you provided a fourth ‘zero alcohol’ breath to start the car once more for Mr Reid to continue driving.
15At 2.17 pm, the device recorded an event of ‘Power Off’ which accords with the time of the collision.
16Although the trip from Kiah to the collision scene, throughout the trip from Kiah to the collision scene, the vehicle was seen by a number of witnesses and was captured on dash cameras travelling at high speeds, overtaking vehicles over double white centre lines and travelling around blind corners on the incorrect side of the road.
17You and Mr Reid recorded a number of videos on his mobile phone. The first shows you driving the car with Mr Reid in the front passenger seat. He is recorded saying ‘When you’re too fucked to drive and your baby’s been born, your mates comes through’.
18At 1.18 pm, you filmed the second video. Shockingly, it captures Mr Reid driving at speeds of between 190 and 200 km/hour.
19At 1.23 pm, you filmed the third video. It again captures Mr Reid driving at excessive speed – the speedometer shown in the video displays a speed of 180 km/hour as the vehicle approaches the rear of a semi-trailer, towards the end of an overtaking lane. The driver of the semi-trailer was so concerned by the speed of the vehicle that he called 000 to report the incident.
20At 1.25 pm, you filmed the fourth video. It shows Mr Reid driving at speeds of between 140 and 190 km/hour. As the vehicle approached a bend in the road, a 70 km/hour advisory sign could be seen. As the vehicle entered the bend, the speedometer displayed a reading of about 160 km/hour. The vehicle was seen crossing double white centre lines, and partially intruding into the opposite lane. The car continued to travel in that lane as it approached another bend in the road. An oncoming Volkswagen camper van, with two occupants, was forced to take evasive action to avoid a collision, this is the conduct that gives rise to charge 1 (charge 1 – reckless conduct endangering lives). At that point the video shows you The video shows you saying, ‘Go, Go, Go, Go, Go’ and ‘Keep going, keep going’ shortly afterwards.
21At 1.26 pm, you filmed a fifth video. This shows Mr Reid driving at a speed of between 190 and 200 km per hour and you can be heard saying, ‘Go, Go, Go, Go, Get better’.
22During this time, the vehicle passed a dozen or so vehicles, all whilst Jesse Reid was driving at great speed. This was observed by a number of witnesses. In statements to police, they described the speed at which the vehicle was travelling as ‘going so quick it was floating around on the road’, ‘[flying] out of sight’ and that the driver had not ‘back[ed] off [his speed] at all’.
23The observations of other witnesses were detailed in the summary of prosecution opening read today. I have summarised some, but not all of the observations set out in that summary.
24Peter Donovan was driving a concrete truck west on the Princes Highway when he was passed by the vehicle and said, ‘I think he was doing in excess of 140kms as there was dust and soot flying up from the rear of the car and passed me like I was standing still and just flew out of sight’.
25Leonard and Jill Keen were towing their caravan west along the Princes Highway at Club Terrace in Victoria when they were overtaken by the vehicle at high speed and over double white centre lines as they approached a blind right-hand bend. This driving was captured on their dash camera, which was played again in court.
26Shane Douglas was travelling west along the Princes Highway at Bellbird Creek when he observed the vehicle coming up behind him, with its hazard lights activated and states, ‘As we were going up the hill there was a blind corner to our left, I couldn’t see if there were any cars coming in the opposite direction. As we were halfway up the hill the vehicle crossed to the incorrect side of the road and overtook me, I couldn’t believe someone would overtake where he did. It was extremely dangerous’.
27Some distance ahead, the group of motorcycle riders that were part of the ‘Wall to Wall Remembrance ride’ were traveling eastwards along the Princes Highway. Members of that group also witnessed the vehicle travelling at a high rate of speed, straddling the double lines. That section of the Princes Highway is a two-way road, running east-west with a moderate downhill gradient for vehicles traveling west. The applicable speed limit is 100 km/hour. The opposing lanes are separated by a broken white line. The bitumen was in good condition and the road dry and visibility was good.
28Wayne Reynolds is a Detective Leading Senior Constable of Police who was off duty and was participating in the Wall to Wall Remembrance ride. His account of the lead up to the collision was as follows:
Whilst approximately mid-way through the sweeping left curve, I observed [the vehicle] travelling in the opposite direction at a very fast rate of speed. The Commodore was approximately 50‑60 metres from me and I observed it to be straddling the double white lines which separated the east and westbound lanes with approximately half to three quarters of the Commodore within the oncoming right eastbound lane. I estimated the speed of this vehicle at this point to be 140–145 km/h. I moved slightly to my left, still within the right lane as the Commodore continued to approach me at a very fast rate of speed. I observed a green P plate displayed on the windscreen of the Commodore and observed it veer sharply and suddenly to the left, toward the correct side of the road for it. I continued to observe the Commodore as it approached and then pass me still travelling at a very fast rate of speed. I observed the Commodore in my right side mirror after it passed me and I observed that it had commenced loss of control. The rear of the Commodore began to rotate clockwise as the vehicle overcorrected from the sharp left movement whilst attempting to negotiate the sweeping right bend applicable for it. The rear of the Commodore continued to rotate in a clockwise direction, the left rear wheel travelled onto the southern gravel shoulder, the vehicle then slid sideways across the westbound lane still at speed, and toward the eastbound lanes.
29Felix Kostiuk was riding east along the Princes Highway, in Cabbage Tree Creek when he observed the vehicle traveling towards him. His account of the lead up to, and of the accident itself, was as follows:
As we approached this bend, a car appeared all of a sudden in front of me. It was in the bend, travelling towards us. It appeared to be out of control, I had seen a puff of what looked like dust come from the rear left wheel of the car. The rear of the car appeared to have been off the road and on the gravel shoulder on the south side of the road. The rear of the car was skidding and had lost traction. I could hear the sound of tyres skidding and I could see tyre smoke, the rear left of the car was rotating towards us faster than the front. Within milliseconds, the front lost control as well, and the car was coming towards us, almost on a 45 degree angle. The car was a green Holden Commodore wagon with P plates displayed on the front.
I took evasive action and swerved to my left, hugging the north shoulder of the road. I saw dad’s brake lights come on and him swerve to the right … it appeared as though the car was going to pass between us. He was in the eastbound overtaking lane, I was heading in the direction of the front left corner of the car in the left lane, dad was in the process of crossing to the westbound lane to avoid the car. Compared with the previous westbound traffic passing us, this car was coming towards us at a far greater speed than those other cars.
As the car was about 5–10 metres away from us, it suddenly spun and rotated approximately 180 degrees clockwise, heading back across to the westbound lane. As it did this, I heard dad say ‘Fuck, fuck fuck’, and I saw him impact the front right corner of the car. I heard a loud smash, saw glass and metal fly everywhere, and I saw dad get ejected from the bike, over the front of the car. He was cartwheeling vertically. I distinctly remember his arms flailing in the air.
After the car hit dad, the back of it kept rotating, and slid past me to a stop in the westbound lane, facing south west, partially off the road to the south side. Dad kept flying through the air and landed face down in a ditch on the southern side of the road, directly under the street sign for Tower Rd.
30The conduct that began with the vehicle losing control on the bend and ultimately resulting in the collision gives rise to charge 2 - reckless conduct endangering life and charge 3 culpable driving causing death.
31Felix Kostiuk immediately tended to his father after calling 000. As he was preparing to start CPR, a number of witnesses including Felix Kostiuk, observed Jesse Reid emerge from the car, behaving in an erratic and aggressive manner. When Felix Kostiuk said, ‘what the fuck did you do?’ Mr Reid was observed to clench his fists and walk towards Felix Kostiuk saying, ‘Excuse me cunt’. Felix Kostiuk said, ‘You killed my fucking dad’.
32Mr Reid was arrested by an off-duty police officer and taken to hospital for minor injuries. At the hospital, his BAC was recorded as being 0.015. Forensic analysis indicates that his BAC at the time of the collision had been between 0.05 and 0.08. Analysis of his blood sample also detected methylamphetamine in the amount of 0.06mg/L and diazepam and its metabolites (Valium). In the opinion of the forensic expert, Mr Reid’s driving ability was impaired by the detected drugs at the time of the collision and as a result, he would have been incapable of having proper control of the vehicle.
33Victor Kostiuk was treated at the scene by other riders and paramedics. Sadly, his life could not be saved and he was declared dead one hour later.
34You were uninjured. You were spoken to by police after the collision. You said that as you were coming around the corner, Mr Reid was driving pretty fast. Although you did not see the speedometer, you said you told him to slow down but that, as soon as you said this, the car was already spinning and the collision happened. You told police that as the car went around the corner, Mr Reid overtook a car on the wrong side of the road in the face of oncoming vehicles, at which point he pulled too far to the left, before trying to correct and spinning out. You also told police Mr Reid had not consumed any drugs or alcohol, to your knowledge, whilst driving.
35The Major Collision Investigation team of Victoria Police conducted a road accident reconstruction at the collision site. In his report, Detective Leading Senior Constable Mick Hardiman concluded that at the commencement of the visible tyre mark, the Holden was in a yaw, caused by the right steering input of the driver, and the vehicle was travelling at a minimum of 131 km/hour. The vehicle yawed whilst rotating in a clockwise direction, before transitioning into a spinning skid. After impact, the vehicle rotated in an anticlockwise direction before coming to rest. At the time of the collision, the motorcycle ridden by Victor Kostiuk was travelling at approximately 91 km/hour.
36Immediately before the collision, the vehicle driven by Mr Reid was straddling double white lines. Mr Reid steered hard to the left to avoid a collision with two motorcycles driven by Wayne and Tyler Reynolds in the east bound lane. They, together with Felix Kostiuk, are the victims of charge 2 – conduct endangering life. The vehicle then travelled onto the southern shoulder where Mr Reid steered to the right hand, causing him to lose traction and control of the vehicle. The vehicle then rotated in a clockwise direction as it travelled west and into the right hand eastbound lane. Victor Kostiuk and his son were travelling east and were forced to take evasive action however, Mr Kostiuk struck the driver side front door, guard and suspension of the vehicle driven by Mr Reid. At the point of impact, the vehicle had rotated in excess of one hundred and eighty degrees and was effectively travelling backwards and still rotating.
Nature and gravity of the offending
37I turn now to discuss the nature and objective gravity of your offending.
38The offence of culpable driving causing death is an inherently serious offence as it involves the death of another person. That this was undeniably serious offending, with catastrophic consequences, was accepted by your counsel. This is so even though you are not being sentenced as the principal offender (the principal offender was the driver, Mr Reid) but as a person complicit in his offending. The law regards a person who is complicit in the offending of a principal offender as equally guilty of the crime and subject to the same maximum penalty, regardless of the role played by each in the crime’s commission.
39The seriousness of the offence of culpable driving causing death is also gauged by the maximum penalty of 20 years’ imprisonment prescribed by Parliament.
40As highlighted by the prosecution’s submissions, your conduct was essential to the commission of this offence. It was your conduct in blowing into the interlock device that enabled Jesse Reid to drive the vehicle. It is aggravating that you did so not once, but on four separate occasions each time a retest was required, including after Mr Reid had provided a sample that disabled the car. On each occasion, by overriding the interlock device you facilitated the car starting and it follows, Mr Reid’s continued erratic, high-speed and dangerous driving.
41You also actively encouraged his driving conduct in the manner captured in the four videos, including yelling words of encouragement while he was driving at incredibly high speeds, including at the time he overtook the Volkswagen Transporter driving onto the wrong side of the road around a blind corner, at approximately 160 km/hr. This is the conduct that is the subject of charge 1.
42
These acts of assistance and encouragement occurred over a not insubstantial period of time. You provided the four zero alcohol breath samples between
12.44 pm and 1.52 pm. The footage was shot between 1.18 pm and 1.26 pm, during which time you can be heard to urge Jesse Reid to “Go, go, go”. You did so, after an earlier video was recorded where Jesse Reid is heard to say he is “Too fucked to drive”. In urging and encouraging his erratic and dangerous driving, the law regards you as complicit in, and equally responsible for, his criminal conduct.
43By your plea, you accept that your encouragement and assistance was given in circumstances where you knew or believed that Jesse Reid was going to drive in a manner which disregarded the substantial risk that the death or significant injury of others would result from his driving. That risk materialised, tragically, with the death of Mr Kostiuk. The impact on his death on his family, friends and colleagues has been profound.
44In addition to the 12 original victim impact statements, Mr Kostiuk’s wife, Pauline his son, Felix Kostiuk and Wayne Reynolds provided updated statements as did Felix Kostiuk’s wife, Nicole. These further victim impact statements were read aloud in court today. I have closely read all the victim impact statements and taken the content of those statements into account in sentencing you.
45For Wayne and Tyler Reynolds, the impact of the offending has been significant. As is apparent from their victim impact statements, they are frustrated by the impact of a collision that could so easily have been avoided. It has impacted on their sense of safety on the road. Understandably, Mr Reynolds is still angry and remains hypervigilant and concerned about the impact of the collision on his son.
46Overwhelmingly, the victim impact statements depict Victor Kostiuk as a remarkable man, who was much loved by his family and respected by his colleagues in Victoria Police. Moreover, he committed much of his professional life to addressing the impact of family violence and had developed a new policing model that was adopted Statewide. In Felix Kostiuk’s powerful victim impact statement, he acknowledges the impact family violence had on your life, but says through your actions he has now lost an incredible father and the community has lost a “true soldier in the battle against family violence”.
47Mr Kostiuk’s wife, Pauline was also a senior member of Victoria Police and served for 35 years reaching the rank of Superintendent. She had been married to Victor Kostiuk for 40 years. Her recent victim impact statement tells of the enduring nature of her profound sense of grief and loss. The offending has had a devastating impact on every aspect of her life. It is clear from her statement that, together, she and her husband enjoyed a full and rewarding life. They shared simple pleasures, such as music, motorcycle riding and travel. But now she feels she has lost all control over her life. She suffers depression and feels she can ‘find no way out’ of her grief. Both Ms Kostiuk and her son, Felix speak of your decisions that day – saying that without your intervention this senseless tragedy would never have happened.
48Before I move to sentence you, I wish to address the family of Victor Kostiuk here in court. I again express my sincere condolences for your loss. There is nothing this Court can say or do that will heal the grief and pain suffered by you. The sentence I impose is in no way a reflection of the worth of his life. It is clear he was a much-loved and respected man who made an invaluable contribution to the community throughout his life. Rather, as I have indicated, the sentence I am about to impose reflects many factors which I am required by law to consider and balance, one of which is the impact on the victims.
Personal circumstances
49I turn now to your personal circumstances and background.
50You were born in Grafton in September 2001 and grew up in Paynesville. As stated, you were only 16 years old at the time of the offence. You have two brothers, one aged 21 and the other 13, to whom you are close. You have two older half-sisters with whom you have had no contact for several years.
51Your upbringing was marked by significant dysfunction and deprivation.
52Much of this background is contained in the psychological report of Mr Jeffery Cummins dated 26 April 2021 that was prepared for the purposes of these proceedings.
53For most of your childhood, both of your parents were addicted to drugs and alcohol. You describe your father as a ‘raging alcoholic’.
54From a young age, you were exposed to his violence. Your parents fought often, both verbally and physically. You were exposed to the outcome of that violence living with broken windows and holes that had been punched into the walls of your home. You were also subject to regular violence at the hands of your father, including having objects thrown at you and being pushed into walls and furniture.
55Given your exposure to harm, child protection services became involved with the family when you were young. As a result, both you and your brother were removed from the care of your parents and placed in your aunt’s care when you were 5 years old. Between the age of 5 and 7, you were transitioned back into the family home.
56Unfortunately, both of your parents gradually slipped back into drug and alcohol abuse, including an addiction to prescription medication including Endone, oxycontin, benzodiazepine and Valium.
57Due to the family relocating frequently, your early education was significantly disrupted. You attended a number of primary schools in east Gippsland and the NSW south coast. You completed part of Year 7 at Lakes Entrance High School but this was punctuated by the family relocating to Pakenham, whereafter you completed Years 7 and 8 at Kambrya College. The family relocated to Nethercote, NSW where your parents purchased a property and you attended Eden High School for Year 9 and part of Year 10.
58In the year prior to the offending, when you were 15, you began to associate with negative peers, drinking alcohol and experimenting with drugs. This began with cannabis, and later prescription medication and methylamphetamine. You had issues with other students, including fighting. This, in turn, lead to difficulties and ongoing truancy from school. In 2017 you were expelled from Eden High School.
59Shortly after, at the age of 16, your father kicked you and your mother out of the family home in Nethercote. You lived with your mother in a motel and repeated one month of Year 10 at Sapphire Coast Anglican College before leaving school altogether. From the beginning of 2018 you were unemployed and in receipt of Centrelink payments.
60Then, in early 2018, your mother returned to live with your father in Nethercote but you did not follow. From that time you were effectively homeless, ‘couch surfing’ with friends until you moved in with the family of a friend in Merimbula. It is notable that despite your difficult upbringing, you have no prior criminal history.
61It was during this period, having been forced out of the family home, that you first meet Mr Reid through an ex-girlfriend. You and Mr Reid grew close and you confided in him about the difficulties you had experienced with your family, school and lack of stable accommodation. At times you would travel to Melbourne to stay with Mr Reid in Cranbourne. Mr Reid was five years older than you. You began spending a lot of time with him and he became someone you looked up to. You told Mr Cummins that you ‘idolised’ Mr Reid at this time.
62After the collision, you found it difficult to cope and began to abuse alcohol, cannabis and prescription medication. You continued living with your friend’s family, before they relocated to Queensland, leaving you homeless again. After couch surfing for a period, you returned to live with your mother in Nethercote as she had finally separated from your father.
63In late 2020, you moved to Melbourne to ‘get your life back on track’ and to escape all negative peer influences. You now live in Rowville with a friend and remain close to your mother, who is currently in remission following treatment for cancer. You have very limited contact with your father. Your mother has recently been diagnosed with cancer, and your father has returned to live with her to provide care while she undergoes chemotherapy.
64You have ceased abusing all prescription medication, and last used methylamphetamine on the day of the collision. You have done so without participating in any drug treatment program.
65After the collision, you found odd jobs in painting and carpentry which you secured through friends. Significantly, since your move to Melbourne you obtained full-time employment as a roof tiler, working five days a week, and have now commenced an apprenticeship with an employer, J&C Roofing which, whilst aware of these charges, remains supportive of you.
Mental heath
66Your mental health deteriorated significantly following the collision. You were prescribed anti-depressant medication and engaged in monthly counselling at a youth centre for twelve months, however you struggled to discuss your problems. You attribute this to the way in which you were taught to deal with your father’s issues growing up. You did however, tell Mr Cummins you were prepared to engage in further counselling.
67
The deterioration in your mental health led to multiple suicide attempts, including by hanging and by overdosing on prescription medication. These events are detailed in the report of Mr Cummins. You told Mr Cummins that you were found by a friend on one occasion, and on the other, the tree you were using to hang yourself, broke. You are awaiting an MRI for a potential brain injury caused by self-harming behaviour where you repeatedly hit your head against a wall, however
Mr Cummins did not assess you as falling within the borderline range of intellectual functioning or suffering a cognitive deficit.
68Mr Cummins did conclude that you present as psychosocially immature for your age and psychologically unsophisticated. Mr Cummins states your symptoms are characteristic of a Borderline Personality Disorder, but concludes they most likely reflect the trauma of your dysfunctional upbringing. Mr Cummins also concludes that you suffer symptoms of a Post-Traumatic Stress Disorder (‘PTSD’) as a result of the collision and the aftermath. You continue to have frequent negative ruminations regarding both the collision and the trauma of your upbringing. You told Mr Cummins you feel you have little to live for.
69In relation to the offending, you told Mr Cummins you deserved to be punished for the offending. You said that you had not given enough consideration to the dangerousness of the situation when you encouraged Mr Reid to drive faster and to overtake cars. Mr Cummins says that you are still struggling, in a psychological sense, to come to terms with the fact that you are legally complicit in the culpable driving offence, but says you expressed guilt for encouraging Mr Reid to drive in the manner in which he did. In Mr Cummins’ view your offending was related to your lack of maturity and the influence of a negative peer on your behaviour.
70In Mr Cummins’ assessment, your mental health will deteriorate significantly when you are incarcerated and that your learned aversion to dealing with your feelings will increase the probability of such a decline in your mental health.
Sentencing considerations
71I turn now to other sentencing considerations. In careful and detailed written submissions, expanded upon at today's plea hearing, both counsel highlighted a number of matters they submit should be given weight in the sentence I impose.
Guilty plea
72First and significantly is your plea of guilty. It is accepted by the prosecution that whilst your plea was not entered at the earliest possible opportunity, it is still an early plea. It has significant utilitarian benefit. At the committal hearing, only the informant and a technical expert were required to give evidence. In pleading guilty at this stage, you spared the victims the ordeal of giving evidence in court and the community the time and expense of running a trial. The value of your plea is heightened against a COVID-19 background where an early plea carries even greater weight in mitigation than a similar plea entered in other times[2]. The plea is also indicative of remorse.
[2]Worboyes v The Queen [2021] VSCA 169, [35]-[39]
73I accept there are other indications of remorse in your case, consistent with your reports to Mr Cummins. He states your feelings of depression and guilt following the collision led to multiple suicide attempts. You told Mr Cummins you ‘deserved to be punished’ for what happened. As the prosecution submissions fairly disclosed, earlier plea offers involved your acceptance of responsibility for the collision. Against this, you were not entirely forthright with police immediately after the collision, downplaying your knowledge of Mr Reid’s consumption of drugs and alcohol. However, unlike Mr Reid, you did not behave in a way the sentencing judge in his case described as “callous and reprehensible” following the collision. In stark contrast, witnesses describe you as being upset and in shock. Some of the witnesses comforted you at the scene.
74Your guilty plea, in all the circumstances, entitles you to a significant sentencing discount.
Application of Bugmy principles
75In the decision of Bugmy, the High Court explained the relevance of childhood deprivation to a sentencing decision. As the Court stated[3]:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise a person’s capacity to mature and to learn from experience. It is a feature of a person’s make-up and remains relevant to the determination of the appropriate sentence…
[3]Bugmy v the Queen (2013) 249 CLR 571 (Bugmy)
76It is no overstatement to characterise your upbringing as one marked by significant dysfunction. In the context of your parent’s drug and alcohol abuse, you were exposed to significant family violence in your formative years. Even though you were a child, you were not exempt from physical violence at the hands of your father. This environment led to you and your brothers being placed in the care of an aunt. Upon your return to the family home at the age of 7, your parents descended once more into drug and alcohol abuse. Your childhood was impacted by neglect, dislocation and exposure to violence. You ceased all schooling at the age of 16 years. Mr Cummins concludes that your childhood trauma is responsible for symptoms you displayed that are characteristic of those with a Borderline Personality Disorder, although you do not meet that diagnosis..
77l accept that this background of significant disadvantage attracts the Bugmy principles and that your moral culpability for these offences is less than that of a person or an offender whose formative years have not been marred in this way[4]. You are entitled to moderation in the sentence I impose having regard to these principles.
[4]Bugmy, [40]
Youth, delay and prospects of rehabilitation.
78You were a 16 year old at the time of time of the offending. The law regards you as a child at that age. The authorities recognise that youth is relevant to sentencing in a number of ways[5]. First, youthful offenders are generally more immature and prone to impulsive decision making. Secondly, the importance of rehabilitation assumes greater significance for younger offenders. Thirdly, the benchmark for offending warranting adult imprisonment is higher for young offenders, particularly first time offenders.
[5]R v Mills (1998) 4 VR 235
79I also note that Mr Cummins assessed you as relatively psychosocially immature for your age.
80The relevance of youth in sentencing for offending such as this was discussed by the Court of Appeal in Victorsen, where it stated[6]:
Youth of an offender – particularly a first time offender – is often a primary sentencing consideration in sentencing, so that rehabilitation in the case of a youthful offender will often be more important that general deterrence. This Court has for many years expressed the view, however, that general deterrence must usually be emphasised in sentencing for culpable driving causing death, and that there is correspondingly less scope for leniency on account of an offender’s youth than there may be in the case of some other crimes. That does not mean there is no scope for youth to influence the sentence – youth will continue to have a bearing on the length of any (and, in rare circumstances, the kind of) sentence imposed – but it cannot be forgotten that lives have been lost.
[6]Eric Victorsen v The Queen [2020] VSCA 248, [33]
81Whilst accepting that youth will be given less weight in cases of culpable driving, in the circumstances of this case – in particular, having regard to the less significant role you played in the offending – I accept that the sentencing principles of general deterrence, denunciation and community protection are moderated by your youth at the time of this offence. As your counsel highlighted, without detracting from the disastrous outcome of your actions that day, your conduct bespoke of immature behaviour. However, it is precisely because of the tendency of young people to act this way when driving (or being driven) with other young people, that deterring others remains important to prevent the very consequences that occurred here. General deterrence, just punishment and protection of the community are not extinguished by your youth, and still have a significant role to play in the sentence I impose.
82You are now 20 years old. The delay in the finalisation of these charges has been considerable. You were not charged until June 2019 and for various reasons, including the cancellation of a circuit due to COVID-19, your case did not resolve until the sentence indication hearing in August 2021, some two years after you were charged. This is a considerable period over which these matters – and the prospect of imprisonment – have been hanging over your head. In saying this, I acknowledge that this delay will also have been difficult for the victims. However, the burden of the delay, is relevant in mitigation. Moreover, and importantly, you have used this time to demonstrate your strong prospects of rehabilitation.
83As stated you had no prior criminal or traffic history. You have no subsequent or pending matters, although you received police cautions, and a fine, when living in NSW. Of significance, since moving to Melbourne in late 2020, you have removed yourself from negative peers and have maintained some stability in your life, particularly in obtaining and maintaining full time employment. You continue to have the support of your mother and older brother, as demonstrated by the references they provided to this Court.
84Maintaining abstinence from drugs, particularly methylamphetamine, will also be important to your long-term prospects of rehabilitation. Given you have abstained from drug use since this offending, particularly ice use, and are prepared to engage in counselling to address the risk of relapse, I assess your overall prospects of rehabilitation to be good.
Burden of Imprisonment
85
As a first time offender, your time in custody will be all the more difficult and stressful due to the impact of COVID-19, including increased lock-downs to act as a form of quarantine and limits on face-to-face contact with family. In addition,
Mr Cummins assesses that your mental health will deteriorate, and “significantly so”, when you are in custody. Consistent with this assessment, implicit in which is that your mental health is compromised and the symptoms of PTSD he said resulted from the collision, I accept that both limbs 5 and 6 of the authority in Verdins are enlivened. Your experience in custody is likely to be more difficult than that of someone without these mental health issues, particularly noting your past history of suicidal behaviour. Accordingly, this added burden of your detention is relevant in mitigation of sentence.
Sentence parity
86I turn now to the principle of parity in sentencing. As the prosecution submissions emphasised, an offender who is sentenced on a complicity basis is not necessarily entitled to a lesser sentence than the principal offender, all other factors being equal. Here however, your circumstances are quite distinct from Mr Reid, who was sentenced to 10 years’ imprisonment with a non-parole period of 7 years. Mr Reid was five years older and befriended you at a time when you were effectively homeless. It is in that context, you told Mr Cummins that you ‘idolised’ Mr Reid. This is not a situation where you had an inherent advantage or a degree of control over the principal offender; to the contrary.
87Moreover, the role you played in the offending is relevant to the sentence to be imposed. As Gibbs CJ stated in Lowe v The Queen[7]:
It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as … the part which he or she played in the commission of the offence, have to be taken into account.
[7]Lowe v The Queen (1984) 154 CLR 606 at 609
88It was Mr Reid who was responsible for the erratic and dangerous driving, your role in the offending was one of assisting him to undertake that driving and of encouraging. Moreover, you had no prior criminal history, whereas Mr Reid had highly relevant priors. You did not behave in a “callous and reprehensible” manner at the scene. Significantly, at the age of 16, you were a child in the eyes of the law. Mr Reid, at 21, was a youthful offender but not a child.
89As culpable driving causing death is a category A serious youth offence, you cannot be sentenced to a youth justice centre order unless I am satisfied exceptional circumstances exist that justify me doing so. I am satisfied exceptional circumstances exist by reason of a combination of factors, including:
(a) your youth;
(b) your background of significant disadvantage;
(c) your lack of prior or subsequent convictions;
(d) your role in the offending;
(e) your good prospects of rehabilitation;
(f) your plea of guilty;
(g) your mental health condition, and
(h) the burden of imprisonment and risk of deterioration in your mental health condition in custody, noting your history of suicide attempts and self-harming behaviour.
90The prosecution has provided references to a number of cases as guidance to current sentencing practices. However, the prosecution accepts that whilst these cases dealt with child offenders, they are limited to offenders who pleaded guilty or were found guilty of the offence of culpable driving as the principal offender. As a result, and noting that all cases differ, these authorities are of limited assistance in sentencing you.
91This is a difficult sentencing exercise. The sentence I impose must not only denounce your conduct and send a clear message to others who may be minded to offend in this manner, but also acknowledge your young age and promote your rehabilitation. For this reason, I adjourned the plea hearing for you to be assessed as to your suitability for youth detention. The Youth Justice assessment report dated 12 October 2021, found you suitable for detention in a youth justice centre, stating:
[Marc Holt] presents with strong prospects of rehabilitation and is assessed as likely to be vulnerable and impressionable to more entrenched offenders within an adult prison setting. Given that [Marc Holt] has never been in custody, has no prior criminal history and expressed his willingness to engage in educational and therapeutic programs, it is the assessment of the writer that [Marc Holt] would benefit from being placed in a youth justice facility rather than an adult prison.
92For the reasons I have discussed, I accept this recommendation, and am satisfied that both criteria for youth detention in s 32 of the Sentencing Act 1991 are met.
93The prosecution accepts that a youth justice centre order is within range. Defence counsel submits that a youth justice centre order considerably below the maximum term of four years is appropriate. However, whilst the matters in mitigation of your sentence are considerable, I do not consider a term of detention considerably below the maximum would appropriately balance all other relevant sentencing considerations and reflect the gravity of your offending behaviour.
Sentence
94Marc Holt will you please stand.
95Balancing the matters to which I have referred, and having regard to the maximum penalty imposed for each offence, I sentence you as follows:
96On charge 1 – conduct endangering life, you are convicted and sentenced to 2 years’ detention in a youth justice centre.
97On charge 2 – conduct endangering life, you are convicted and sentenced to 2 years’ detention in a youth justice centre.
98On charge 3 – culpable driving causing death, you are convicted and sentenced to 3 years, six months’ detention in a youth justice centre.
99I order that the sentence imposed on charge 3 is the base sentence. I order that 2 months of the sentence imposed on charge 1, and 2 months of the sentence imposed on charge 2 be served cumulatively upon the sentence imposed on charge 3 and upon each other.
100This gives a total effective sentence of three years, 10 months’ detention in a Youth Justice Centre.
101Pursuant to s 89 of the Sentencing Act 1991, any licence or permit you hold is cancelled and you are disqualified from driving in the State of Victoria for a period of 3 years from today.
102Pursuant to s 6AAA of the Sentencing Act 1991, but for your plea of guilty the sentence I would have imposed is a sentence of 6 years imprisonment with a non-parole period of four years. Please have a seat.
103Mr Cameron, I intend to note as custody management issues, the matters raised by Mr Cummins in his report?
104MR CAMERON: Yes, Your Honour.
105HER HONOUR: Are there any other matters?
106MR CAMERON: No, Marc Holt, I confirm this morning, that he's not currently on any medication, so there's no medication to note.
107HER HONOUR: All right, thank you. Do either counsel have any other matters?
108MS HAMMILL: No, Your Honour.
109HER HONOUR: Can I thank you both again for your assistance, and can I acknowledge all who have been in attendance at this hearing today. To the family of Mr Kostiuk, I am grateful to you for your attendance in person today. I also want to acknowledge those that have been listening to the hearing today, including Marc Holt’s family, who have been here to provide him with support as best they could. Thank you. We will adjourn the court.
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