Director of Public Prosecutions v Joannidis
[2025] VCC 17
•23 January 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01648
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER JOANNIDIS |
---
JUDGE: | HIS HONOUR JUDGE MEREDITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 November 2024 | |
DATE OF SENTENCE: | 23 January 2025 | |
CASE MAY BE CITED AS: | DPP v Joannidis | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 17 | |
REASONS FOR SENTENCE
---
Subject:Dangerous Drive Cause Death x 5. Plea of guilty, lack of prior history, intercepted for exceeding speed limit shortly before collision and warned of dangers inherent in road; Intersection inherently dangerous due to rise 39m before intersection; signage before rise; offender’s deteriorating mental health; offender subject to substantially and materially greater than ordinary burden of imprisonment.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: TES 5 years and 6 months, NPP 3 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Porceddu | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr P. Smallwood | Gallant Law |
HIS HONOUR:
1Mr Joannidis, you have pleaded guilty to five charges of dangerous driving causing death occurring on 20 April 2023. Each of these offences has a maximum penalty of 10 years’ imprisonment, and is what is known as a Schedule 2 offence, which requires that a term of imprisonment be imposed absent a community correction order unless a legislatively designated special reason is found to exist.
2The circumstances of your offending were canvassed on the plea hearing and are set forth in a Summary of Prosecution Opening. In addition, police bodycam footage of an interaction between yourself and officers a short time prior to the collision, GoPro footage of the approach to the collision scene, and dashcam footage from the prime mover which impacted on your victim's vehicle form part of the opening.
3The Summary of Prosecution Opening will remain on the Court file and, accordingly, I will summarise the circumstances of your offending somewhat more briefly.
4At the time of your offending, you were 29 and held a full Victorian driver's licence. You were the driver of a Mercedes Benz C180 sedan.
5At about 2.20 pm on Monday 20 April 2023, you were travelling north along Labuan Road and passed through two applicable 'Give Way' signs at the intersection of Labuan Road and the Murray Valley Highway in Strathmerton. Your vehicle struck a Nissan Navara utility which was travelling from your right. This caused the Nissan to spin out of control into the path of a semi-trailer travelling in the opposite direction.
6The driver of the Nissan, and her four passengers and dog were killed instantly.
7The victims of your offending are Zhi-Yao Chin, Pin-Yu Wang, Wai Yan Lam, and Hsin-Yu Chen. These four people were Hong Kong and Taiwanese nationals who were in Australia on a working holiday. Deborah Markey who was the driver of the Nissan was also killed.
8Ms Emily Theeboom, aged 20, was your front-seat passenger and survived the collision.
9The semi-trailer, a Kenworth prime mover was driven by Mr Andrew McCluskey. He is in no way at fault at all. He was towing two trailers laden with milk for delivery. Dash camera footage from the Kenworth was played as part of the opening of this matter. Mr McCluskey was not seriously injured as a result of the offending.
10The four passengers who were travelling with Deborah Markey were being driven to their lodgings, having been collected from their work. In regards to all five deceased, autopsy revealed the cause of death as multiple injuries sustained in a motor vehicle incident.
11By way of background, at about 1.45 pm on the same day in the afternoon, two police officers, Fisher and Slaney, were performing traffic patrol duties. As they were travelling south on Labuan Road, they saw your vehicle travelling in the opposite direction. Fisher estimated that you were driving at about 115 to 125 kilometres per hour, which is over the applicable 100 kilometre per hour speed limit. She used the onboard radar to accurately check your speed at 118 kilometres per hour. You were duly intercepted and issued with a ticket for speeding at 118 kilometres per hour in a 100 zone. This interaction was captured on body-worn camera. Fisher told you that you were travelling in a 100 kilometre per hour zone, and you said you thought it was 110. You did however acknowledge that the default speed limit in Victoria is 100 kilometres per hour. Fisher told you that the road toll in the area was nine in the last 19 months. She said:
Basically people don’t see ‘Give Way’ and ‘Stop’ signs it’s really not made for 110 and it’s not really not even made for a 100.
12Fisher and Slaney, after warning you of the dangers of the road, allowed you to go on your way and a short time later, they heard via the police radio that there had been a collision between a truck and two cars at the intersection of Labuan Road and the Murray Valley Highway.
13
The Murray Valley Highway at the collision scene is aligned in an approximately east-west direction and is a two-lane, two-way designated 100 kilometre per hour zone road. Both travel lanes are separated by a broken white line. Labuan Road at the intersection where the collision occurred was a two-lane, two-way designated 100 kilometre per hour road and is aligned approximately
north-south.
14Your collision occurred on a relatively straight stretch of road which was dry and where the weather conditions were generally fine.
15
Approximately 575 metres prior to the intersection, there is an advisory sign for the existence of rumble strips. Approximately 373 metres prior to the intersection are a series of rumble strips. Following the rumble strips at a distance of approximately
302 metres is a second set of rumble strips. Approximately
256 metres from the intersection, reduced speed warning signs are located. Approximately 232 metres from the intersection is a third set of rumble strips and further, at a distance of approximately
200 metres from the intersection, 'Give Way' advisory signs are located. Approximately 144 metres from the intersection, town directional signage is located. At this location, 'Give Way' signs at the intersection are said to be clearly visible. 'Give Way' signage is further located approximately 10 metres from the intersection.
16At a compulsory examination hearing of your front seat passenger, Ms Theeboom, she recounted that she had noticed a reduce speed sign, recalled going over rumble strips, observed a yellow square give way sign ahead, and the green town directional signage, prior to the collision.
17Mr McCluskey was driving the Kenworth prime mover east along the Murray Valley Highway at about 90 kilometres per hour. He noticed your vehicle coming from his right-hand side along Labuan Road. He was concerned that your car was not going to stop in time at the intersection. Mr McCluskey observed the Nissan coming towards him and believed that you were going to stop.
18As Mr McCluskey approached the intersection with Labuan Road, he saw your vehicle hit the Nissan. He applied the brakes on the Kenworth and felt the truck hit the Nissan as the truck lifted off the ground. The Kenworth came to a stop and he observed your vehicle crashed in the middle of the road and could see lots of car parts scattered around, but could not see the Nissan. On alighting from his truck, he saw that the Nissan was beneath it and could see body parts sticking out from it.
19At the time of impact your vehicle is estimated to have been travelling at a minimum speed of 27 kilometres per hour.
20Bystanders duly stopped and emergency services were contacted. Police arrived and blood samples were taken from various persons, including Mr McCluskey and yourself. Neither of these returned any concerning findings.
21You were travelling north on Labuan Road and failed to give way to the Nissan, which was travelling west. The front of your vehicle collided with the rear passenger side of the Nissan. The impact forced the Nissan into the path of the truck travelling east.
22A considerable number of victim impact statements have been received in the hearing of this matter. I turn to them now. Family members and a friend of the deceased women as well as the son of Debby Markey have all been deeply impacted by your offending. The victim impact material serves as tragic testimony to the profound and ongoing impacts of your driving. The authors speak of their overwhelming sadness, emptiness, and hopelessness at the loss of loved ones.
23Mr McCluskey the driver of the truck, and his wife, have both been deeply impacted as a result of your offending, as detailed in their impact statements.
24I will have regard to the relevant and admissible portions of the victim impact material which has been placed before me.
25My task in sentencing you does not represent a value being placed upon the lives of those who have died, or the pain and suffering of those left behind. My role in sentencing is to address the fundamental sentencing aims of punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. I must balance matters such as the seriousness of the relevant offence, your culpability for it, your personal circumstances, the community's interest in deterring and denouncing your conduct, along with the community's interest in ensuring that so far as possible you are rehabilitated.
26Whilst it is accepted that the consequences of your driving were unintended and unforeseen by you; your pleas of guilty are an acceptance that your driving was in a manner dangerous to the public, such that it involved a serious breach of the proper management or control of your vehicle, creating a real risk that members of the public in the vicinity would be killed.
27In your case, this risk crystallised with the tragic deaths of the five occupants of the Nissan.
28The dangerousness of your driving is informed by the degree of risk of harm being caused and the extent of potential death.
29Your offending is not merely an example of momentary inattention. It has had catastrophic impacts on your victims and your culpability is underpinned by the fact that a short time prior to the collision, you had been warned by Fisher and Slaney that there were fatal accidents in the area as a result of people travelling through 'Give Way' and 'Stop' signs without stopping. The roads and intersection were properly marked and sign posted. The weather was fine and it was daylight. You travelled past two 'Reduce speed' signs that were applicable to you, on each side of the roadway, and travelled past two yellow rumble strip signs applicable to you, as well as travelling over three sets of rumble strips. You travelled past two warning signs in advance of the intersection of Labuan Road and the Murray Valley Highway, one on each side of the road, advising drivers that there were 'Give Way' signs applicable at the intersection. You failed to abide by these signs and thus, as a result of your failure to keep a proper lookout this collision occurred. Failing to keep a proper lookout in such circumstances carries with it a significant risk of collision and if there is a collision the likelihood of death as a result of failing to abide by applicable road signs must be said to be significant.
30This intersection, however, has had a history of collisions which are detailed in the report of Dr Shane Richardson.
31I was told that a coronial inquest had commenced regarding collisions at this intersection however this had been 'suspended' until the conclusion of the prosecution of you.
32Upgrades of signage in the lead up to the intersection were made shortly before your collision. Apparently further upgrades have been earmarked for the intersection, as well as the removal of a rise or a hump in the road, situated some approximately 40 metres prior to the intersection. In particular Dr Richardson in his report states:
The rise that is on Labuan Road which blocks the view of the Murray Valley Highway is approximately 39 metres from the give way line at the intersections of the Murray Valley Highway and Labuan Road.
33He further states:
The design of the intersection in combination with the hump approximately 39 metres South of the give way line at the intersection, speed limit of 100 kilometres per hour and approaching a give way is a contributing factor in the cause of this collision.
34The rise or hump, means that the driver of an approaching vehicle does not get an actual view of the intersection until the hump has been crested. This means that despite the existence of signage, what is a visual cue for a driver is not reached until about 40 metres prior to the intersection, when the driver is able to see the actual intersection.
35Making due allowance for this however, it would be apparent to a driver keeping a proper lookout; from what appears to be readily visible signage prior to the rise or hump, that an intersection is imminent.
36The intersection itself however cannot be seen, until the rise or hump is crested.
37It is not in dispute that red and white coloured reduce speed signs and orange imminent give way signs, both of which are on each side of Labuan Road, and a green town directional sign with arrows pointing both East and West are readily visible and apparent. Approximately 144 metres from the intersection, where the town directional signage is located, at this location, 'Give Way' signs at the intersection are also said to be visible. These are all prior to the rise or hump.
38These are aside from the effect of any rumble strips situated further South of the rise or hump.
39Notwithstanding this however, I accept that the rise does obscure a drivers vision of the intersection until it has been crested, and this is demonstrated in the GoPro video of police driving along the route of your travel, and I accept that to an extent the design of the intersection, meaning that the intersection is not actually visible to a driver until the rise has been crested, in combination with it's 100 kilometres per hour limit up to the intersection, contributes to the dangerousness of the intersection.
40Given the attributes of the intersection, in the context of there having been an operative speed limit of 100 kilometres per hour, I do allow for some reduction of your moral culpability[1], however the extent of your moral culpability is informed by the fact that you had in effect received a warning by police a short time before the collision, and it would be apparent to a driver keeping a proper lookout; from what appears to be readily visible signage prior to the rise or hump, and the existence of rumble strips, that an intersection is imminent.
[1] See generally Pan v The Queen [2020] VSCA 42.
41Turning next to matters of your background. Much of these are contained in the psychological assessments of Simon Candlish dated 17 September 2024 and the psychiatric assessment of Associate Professor Andrew Carroll dated 3 November 2024, as well as material provided by treating practitioners. This was further supplemented by your counsel.
42You are currently 30 and were 29 at the time of your offending. You have no criminal history.
43You have pleaded guilty to these offences, and given the realities of your forensic position, this occurred at what I will treat as an early time, you were for example initially presented in this court on the more serious charges of culpable driving. Your guilty pleas have facilitated the course of justice and an aspect of that is that as a result of your guilty pleas you have done away with the need for witnesses to appear and relive this horrific collision in the presence of a jury. I further accept you are remorseful and that if you could you would turn back time and never embark on a driving episode of this nature.
44Returning to your background you are the youngest of three brothers. Your father migrated to Australia from Macedonia when he was a child. You describe your father as a hard man who was 'caring in a strange way', insensitive, and occasionally physically aggressive. You recall your father punching you in the ear after discovering beer bottles in your room, locking you outside at night after a discussion about the football team you barracked for and, after you accidentally urinated on the toilet seat, pushing your head into the urine.
45
You describe your mother as very caring and supportive, and often stressed or worried. Your mother suffered a stroke when you were around 14 and your father blamed your deteriorating mental health as the cause of your mother's stroke. You report that your mother had severe depression and anxiety for a period and took
anti-depressant medication for this, although her mental health has now improved.
46You report that you get along well with your middle brother.
47Your father operated a bottle shop and then worked as a driver for the NDIS. Your mother worked as a secretary and in the family bottle shop. You indicated that your parents do not have a history of substance abuse, offending behaviour or any serious financial issues.
48You report that you mother had a stroke when you were about 14, requiring rehabilitation for some months. You lost your childhood friend to leukaemia when you were around 16.
49You attended two primary schools due to your family relocating and two secondary schools. You commenced a new secondary school in Year 11 due to not sharing the same religious beliefs with your prior secondary school, and you graduated after completing Year 12.
50After finishing school, you commenced a Certificate IV in Business Studies however, dropped out after six months. You then worked in hospitality at a pizza shop for about a year. Then at a café for seven years after having left school. You left to work at a different café for a year before having what you described as a breakdown and taking a number of months off. You were unemployed for about 18 months before commencing at another café as a barista, which was impacted by COVID. You then commenced full-time employment at a coffee roasting company for about six months prior to the collision.
51
You commenced regularly consuming alcohol from about age 14 in social contexts. You developed a problem with alcohol in your
mid-20s which coincided with the cessation of your psychotropic medications. You would drink alcohol alone and were consuming three quarters of a bottle of spirits each day. After the collision you were drinking half a bottle of spirits daily, you report. You ceased alcohol consumption in early 2024 but have since started and stopped drinking again. You reported that you would drink up to five beers three times per week to help with flashbacks arising from the collision.
52You have been smoking cannabis initially from the age of 19 but report you have not done so since the collision. You have used some other drugs in a recreational fashion.
53You have been in a number of relationships since you were 13, all lasting between one and three years. You have been with your current partner for two years and report that she is supportive of you.
54Your friendships with your school peers ceased when you were about 21 and you had a close friend since adolescence and you were on your way to this friend's wedding where you were to be the best man when the collision occurred.
55Whilst you do not have a history of psychiatric admissions or past symptoms of psychosis or mania, you have experienced difficulties with your mental health.
56
You developed obsessive and compulsive behaviours at around the ages of eight or nine and required medical attention to treat your damaged skin from washing your hands compulsively. You report that you have experienced multiple mental breakdowns and panic attacks throughout your life. You report commencing self-harming at about 14 years of age and threatened to end your life on various occasions. You have tried a number of anti-depressant and
anti-psychotic medications.
57You also report a stomach ulcer, for which you have been treated with proton pump inhibitors in the past.
58In your matter a number of personal references were tendered on your behalf and I have had regard to them. In addition, you have written what is essentially an apology to those who have lost loved ones and I have also had regard to this.
59Given your lack of a criminal history and the matters generally before me I assess your rehabilitative prospects as positive.
60Associate Professor Andrew Carroll assessed you on 29 October 2024, and his initial report is dated 3 November of that year.
61He recites you having a history of troubles with your mental health.
62At paragraphs [35–45] he recounts your presenting symptoms including a worsening persistent low mood, lack of joy, and reduced motivation. You reported at times suicidal thinking, lack of sleep and nightmares.
63At paragraph [163], he states that you manifest persistent low grade depressive and anxiety symptoms and have done so since childhood, which at times are more severe in response to stressors, stating that you have a persistent depressive disorder with anxious distress and intermittent major depressive episodes.
64At paragraphs [48-53] he states that you present with symptoms of Post Traumatic Stress Disorder (PTSD), these include flashbacks of the collision and victim's faces, nightmares, that you are not driving and that you had become reclusive. You reported feeling numb and detached from the world. You reported being hypervigilant, anxious, and prone to panic attacks.
65At paragraph [164] Dr Carroll states that secondary to the trauma of the collision you have PTSD, with worsening symptoms.
66At paragraphs [54–56] he states that you have experienced an aggravation of your pre-existing Obssesive Compulsive Disorder (OCD), with associated thoughts that touching certain things is bad luck, a pre occupation with the settings of the washing machine, needing to wash your hands if you touch certain things, and the need to carry out certain activities in a particular order. You report finding these symptoms exhausting.
67At para [162] he says that you are diagnosable with OCD, manifested by intrusive, recurrent, distressing irrational thoughts and associated compulsive behaviours about various issues including cleanliness. That your symptoms have fluctuated over the years but at the time of his assessment they were severe.
68At paragraph [188] Dr Carroll opines that for a number of reasons you will be more vulnerable in custody than another prisoner without your presentation. These include your OCD, PTSD, and depression each of which are likely to be aggravated by the custodial environment as well as what he describes as your passive nature and the potential for you to be exploited, and that you are intermittently suicidal.
69At paragraph [193] he states that you are likely to deteriorate in custody.
70I have also had regard to the other material dealing with your various conditions, history and treatment. Given that Dr Carroll had access to all of this material I have focussed, as did your counsel, on his report.
71At the conclusion of the initial plea hearing on 27 November last year I remanded you into custody.
72Dr Carroll has now provided a further supplementary report dated 9 January 2025, and also gave evidence before me today, 23 January.
73Suffice to say that his evidence did not lead him to depart from his conclusions expressed in his initial or for that matter his supplementary report of 9 January.
74In summary in his supplementary report written after I had remanded you into custody he references matters such as the following. Under the heading 'current symptoms' he writes::
Mr Joannidis clearly articulated that his most prominent symptoms relate to his OCD, which he described as 'just ridiculous in intensity'. Currently his intrusive obsessional thoughts focus on themes of contamination and infection. Amongst other things he is concerned about co-prisoners or staff touching his things, and the possibility of acquiring blood borne infections. He has associated compulsive handwashing. He is currently washing his hands over 20 times a day.
75On the Y-BOCS scale he scored in the severe range. He explains that that is a widely used validated measure of symptom severity in OCD, that he rated you as 28/40, which is within the severe range, and the highest range is that of extreme which is rated when a score is 32 or greater. Dr Carroll goes on to say you showed poor insight into the fact that your concerns about contamination and infection are excessive, that your concerns were almost at delusional intensity. He said you also described an associated deterioration in jaw clenching, known as Bruxism, where the muscles controlling the mandibular joint are excessively tense and cause pain.
76He says you also described ongoing symptoms of PTSD, however these did not appear to have deteriorated following your incarceration. That you described ongoing problems with flashbacks every few days, ongoing problems with being triggered into flashbacks by seeing a car crash on television, post-traumatic nightmares from which you wake up shaking, approximately half of the nights, a persistent feeling of being on edge. That you described ongoing depression of mood, saying that you feel terrible, just not coping and you did not identify any sources of pleasure.
77You reported sleeping a little bit better but still have insomnia. That your appetite is diminished due to your concerns about food contamination, that you describe prominent guilt in respect of the incident leading to the charges, and you reported 'I wish it was me that had died. I wish my partner had never met me'. You also lamented that you had not successfully died by suicide in your teens. You expressed strong feelings of pessimism, described some escalation in suicidal thoughts since having been in prison, however said that you denied any currently active plans in that regard.
78Under the heading 'opinion', Dr Carroll said there has been some deterioration in your mental health following your incarceration. He says:
There has been some deterioration in your major depressive disorder manifesting as more prominent suicidal thinking albeit without any stated active intent.
79There is no clear evidence that your PTSD symptomology is any worse than when you were in the community, but most clearly there has been a deterioration in your OCD. This appears to be primarily due to the custodial environment itself. For example, you inevitably have to mix closely with people, you feel obligated to shake hands with strangers, you are subject to communal living in terms of matters such as showering and so on, and you are uncertain that you may eventually be forced to share a cell. That all of these issues are unusually aversive for you, given the particular content of your OCD symptomology which revolves around themes of contamination and infection.
80Dr Carroll says:
I consider his OCD to be at the severe end of the spectrum. He is constantly preoccupied by his obsessional thoughts and significantly disabled by his compulsive rituals. He has poor, almost absent, insight into the fact that his contamination concerns are excessive.
81He diagnoses you as having obsessive compulsive disorder with poor insight. He reports that you have been offered evidence-based pharmacology for your OCD in the form of both antidepressants and low dose antipsychotics. That you express concerns about side effects based on your own previous experience of having taken these medications and that you have declined that option. Dr Carroll says:
Psychiatrically, Mr Joannidis is complex with three distinct diagnosable conditions. As outlined above, in my opinion there is good evidence that one of those conditions, especially his OCD, has deteriorated as a direct result of his placement within the custodial environment. [He says] In my opinion the combined effect of all of his psychiatric conditions and the various challenges in terms of optimising his treatment for them whilst in custody, mean that he experiences imprisonment as significantly more burdensome than the average prisoner.
82In this regard Dr Carroll emphasised in particular your OCD. Dr Carroll's opinion was that your own experience previously of low dose antidepressant and antipsychotic medication was that it had not assisted you. Dr Carroll was of the opinion that such medication would not necessarily alleviate your symptoms however, evidence suggests that in some patients these medications have been of assistance.
83The prosecution have tendered a report of 31 December 2024, from Ms Ashmore, the clinical director of Adult Health Services at Justice Health. This outlines the availability and type of treatment available for mentally ill offenders in custody. In summary she says:
People in prison custody have the right to access reasonable medical care and treatment necessary for the preservation of health and other necessary special care treatment. DJCS aims to ensure that every person in custody has access to healthcare of a standard equivalent to that provided in the community through the public health system. People in custody requiring secondary healthcare such as psychiatry services which are not available on site are referred to the public healthcare system generally through St Vincent's Hospital. With approximately one third of prisoners having a mental health diagnosis, mental health services are a key component of custodial health services. As such, prisoners have access to a range of mental health services as required. Alternatively, a person in prison can seek approval from the Department's principal medical officer to have a registered medical practitioner of their choosing, such as a psychiatrist, provide services to them while in custody at their own expense. A prisoner can also receive services from a private psychologist who is not a registered medical practitioner subject to approval from the general manager of prisons.
84The report of Ms Ashmore however is of a generic nature and does not address your particular circumstances nor your particular mental health difficulties. Accordingly it has it's limitations.
85Your mental health is relevant to the sentence I impose on you in two ways.
86Firstly, in R v Verdins[2] the Court of Appeal have set out a series of principles which must be considered in formulating an appropriate sentence when an offender presents with impaired mental functioning ('Verdins principles').
[2] [2007] VSCA 102; (2007) 16 VR 269 (‘Verdins’).
87In Verdin’s the court set out a non-exhaustive list of six propositions in which an offender’s impaired mental functioning could influence the sentence as set out in R v Verdins. I will repeat them:
88Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.[3]
[3] Ibid [32].
89In light of Dr Carroll's evidence I accept that limbs 3, 5 and 6 of Verdins have some application in your case. They do not however operate to remove or do away with the need for the application of punitive sentencing considerations in the circumstances of your case. Some sensible moderation is appropriate. I have also given consideration to limb 2 in my sentencing of you.
90Secondly, your mental health is said to constitute a special reason which operates to negate the legislative requirement that you receive a term of imprisonment either with or without a correction order combined. I will deal with this shortly, however, at this stage it is necessary to say something of the sentencing principles which govern this type of offending.
91So far as sentencing for this type of offending is concerned, Superior Court authority mandates that general deterrence features prominently in the sentencing process. Prior to dangerous driving being designated a Schedule 2 offence, a number of authorities emphasised this.
92In the 2007 case of Director of Public Prosecutions v Oates[4], a case involving a non-custodial disposition where the driving was found to be a result of momentary inattention, and where the driver had taken steps to alleviate fatigue, Neave JA (with whom Warren CJ agreed) said:
…general deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury. Members of the public must recognise that a person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment. As the New South Wales Court of Criminal Appeal said in Whyte, a custodial sentence will usually be appropriate for an offence of this kind, except in cases where the offender's level of moral culpability is low.
[4] [2007] VSCA 59.
93As long ago as 2009, in the case of DPP v Neethling[5], at paragraph [29], the Court endorsed the NSW approach in the case of Jurasic,[6] that a non-custodial sentence for the offence of dangerous driving causing death should be seen as exceptional. At paragraph [30], the Court confirmed the principles enunciated by Neave JA, in Oates’ case as follows:
1) General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.
2) A person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment.
3) The sentence which is imposed must take account of variations in the moral culpability of the person responsible.
4) A custodial sentence will usually be appropriate for this offence, except in cases where the offender's level of moral culpability is low.
[5] (2009) 22 VR 466.
[6] (1998) 45 NSWLR 209
94These sentencing considerations have been further underpinned by dangerous driving causing death now being designated a schedule 2 offence. This means that a term of imprisonment without a community correction order combined with it must be imposed unless a special reason as set forth in the legislation is found to exist.
95Here your counsel argues that the relevant special reason and legislative provision is as follows:
Section 5(2H)(c)(i)[7] it provides:
(c) that the offender proves on the balance of probabilities that—
……………………….
(ii) the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; ...
[7] Sentencing Act 1991 (Vic) s 5(2H)(c)(i)-(ii).
96Whilst considering this test involves in part a prediction of future outcomes, in light of Dr Carroll's evidence I accept this to be the case.
97Paying due regard to all sentencing matters, in particular, the sentencing principles of parsimony and totality, I cannot however agree with your counsel that a non-custodial or custodial sentence combined with a correction order is appropriate in your case. For the matters which I have already endeavoured to set forth in these reasons, in my view an appropriate proportionate sentence requires that nothing other than a head sentence and non-parole period are to be imposed.
98In this regard, as I did when I remanded you into custody, I direct that your legal advisers contact and alert relevant custodial authorities of any risk factors and provide them with any necessary documentation and/or reports concerning you.
99Whilst it is the one act of dangerous driving which has led to the death of five persons, a degree of cumulation with respect to each of your victims is required. This in part reflects the fact that a premium is placed on human life and general deterrence is an important factor in sentencing for dangerous driving offences. Here your driving has ended the lives of five people and occurred in circumstances where you had effectively been warned of the need for caution and failed to have proper regard to a number of warning signs prior to the collision as I have already detailed.
100I will impose a total effective sentence of five years and six months and I will fix an appropriate non parole period which will reflect what in my view is the minimum term required to be served in all the circumstances of your case, namely three years.
101On each of the five charges I impose a sentence of two years and 10 months' imprisonment. Charge 1 is to be the base sentence and I cumulate on it and on each other eight months of each of the sentences imposed on Charges 2–5 inclusive.
102This makes a total effective sentence of five years and six months' imprisonment and as I have said, I will fix a non-parole period of three years.
103I will declare 59 days served by way of pre-sentence detention.
104Regarding the period for which I cancel your licence, I must reflect:
(a) the need for the period of disqualification itself to serve its part as a punitive element in the context of the total punishment imposed; and
(b) the need to provide protection to the public from the dangers of possible future lawless motor vehicle driving by you; which in your case however I find to be negligible, and
(c) considerations of personal hardship, including your dependency on a driver licence, and in particular to ensure that your prospects of rehabilitation are not overly hampered.
105Balancing the need to reflect the seriousness of your offending and the need to foster your rehabilitation and other relevant matters I will cancel any licence to drive on Victorian roads held by you for a period of three years from today's date.
106Finally, I am required to state the sentence which I would have imposed but for your guilty pleas in this matter. I note that it is a highly artificial exercise seeking to pluck one matter out in isolation and ascribe a value to it. Nonetheless doing the best I can, but for your guilty pleas I would have sentenced you to a total effective sentence of eight years' imprisonment and directed that you not be eligible for release on parole until the expiration of five years.
107MR SMALLWOOD: As the court pleases.
108MR PORCEDDU: As Your Honour pleases.
109HIS HONOUR: Is there anything further required?
110MR PORCEDDU: Just the declaration of the pre-sentence detention which is 59 days, Your Honour.
111HIS HONOUR: Yes, I thought I had already done that.
112MR PORCEDDU: Sorry, Your Honour.
113HIS HONOUR: In any event I will do that, 59.
114MR SMALLWOOD: No other matters, Your Honour. Thank you.
115HIS HONOUR: If Mr Joannidis can be taken back into custody.
116Thank you for your assistance.
- - -
0
6
2