Director of Public Prosecutions v Kenny

[2021] VCC 168

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-19-01184

DIRECTOR OF PUBLIC PROSECUTIONS

v

RYAN KENNY

---

JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2020, 1 February 2021
DATE OF SENTENCE:	24 February 2021
CASE MAY BE CITED AS:	DPP v Kenny
MEDIUM NEUTRAL CITATION:	[2021] VCC 168

REASONS FOR SENTENCE

---

Subject:  Criminal law

Catchwords:              Culpable driving causing death; negligently causing serious injury; destruction of evidence (conceal)

Legislation Cited:      Sentencing Act 1991;

Cases Cited:R v Verdins & Ors (2007) 16 VR 269; Brown v The Queen [2020] VSCA 60; R v Whyte (2002) 55 NSWLR 252

Sentence:Total effective sentence of 13 years imprisonment, with a non-parole period of 8 years and 9 months.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Churchill (at Plea) Mr A. Lew (at Sentence)	Office of Public Prosecutions
For the Offender	Mr R. Gipp (at Plea) Mr M. Kotsifas (at Sentence)	JK Legal

HER HONOUR:

1Ryan Kenny, you have pleaded guilty on indictment to five charges arising from a collision that occurred on the Murray Valley Highway at Brimin on Friday
2 November 2018 at around 9:45 pm. 

2Those charges are as follows:  Charge 1, culpable driving causing the death of Amanda Kilmister; Charge 2, culpable driving causing the death of Harrison Kilmister; Charge 3, negligently driving a motor vehicle causing serious injury to Paul Kilmister; Charge 4, negligently driving causing serious injury to Austin Kilmister; and, finally, destruction of evidence.

3In sentencing you for your crimes I must have regard to the maximum sentence for each of the offences which you have committed. 

4The maximum penalty for culpable driving is one of 20 years imprisonment.  The maximum penalty for negligently driving a motor vehicle causing serious injury is 10 years imprisonment and a charge of destruction of evidence carries a maximum penalty of five years imprisonment.  These maximum penalties reflect the seriousness with which Parliament regards these offences.

5In addition, and a matter to which I will return, the charge of culpable driving causing death is subject to the standard sentencing scheme. It is also a Category 2 offence and Division 2 of Part 3 of the Sentencing Act1991 applies.

6The circumstances of your offending were set out in a document entitled "Prosecution Opening for Plea" dated 29 October 2020 .  After plea hearing on 14 December 2020 and further plea on 1 February 2021, the original plea opening was clarified and a document entitled "Amended Plea Opening" dated 9 February 2021 was filed over to replace the document dated 29 October 2020.  The amended plea opening is a detailed document.  It represents an acceptance by you of all the elements of the offences to which you have pleaded guilty and the factual basis on which I am to sentence.  I will go through some of those circumstances in my reasons for sentence but have had recourse to the entire document.

The Victims

7Amanda Kilmister was 37 years of age on 2 November 2018.  She lived with her husband, Paul, and four children, Felix, Harrison, Morgan and Austin, in Bundalong. 

8On 2 November 2018 Amanda Kilmister was driving the family vehicle, an Audi Q7, with four members of her family.  Her husband, Paul, was in the passenger seat, Harrison was seated in the back seat behind his mother, Austin was in a baby seat in the middle of the rear seat, and Morgan was seated behind his father in a booster seat.  Her son Felix was not in the vehicle as he was staying with a friend for the night. 

9The Kilmister family had been to the Corowa RSL to have dinner with some friends.  Amanda Kilmister was the designated driver and had not been drinking.  The family left the RSL at around 8:45 pm, stopping at a friend's house for five to ten minutes before continuing their journey home along the Murray Valley Highway.

10Meanwhile, you, Ryan Kenny, were driving a Prime Mover east towards Wodonga on the Murray Valley Highway transferring offal and animal body parts from the Tongala abattoirs to the Wodonga rendering plant.  This was your second such run for the day.  You held a full Victorian driver's licence at the time with the necessary endorsement to drive a multi-combination vehicle. 

11The Western Star Prime Mover you were driving is categorised as a fatigue-regulated heavy vehicle.  Such a vehicle is subject to legal limitations regarding driving time and rest time.  It must be operated in accordance with standard work/rest hours. 

12Those regulated hours are set out in the Crown opening but include a maximum of 12 hours work in any 24-hour period and a requirement to have a minimum seven hours stationary and continuous rest in that same 24-hour period.

13Further restrictions require the driver of such a vehicle to record all work and rest in a National Drive Work Diary when operating outside 100 kilometres from the driver base. 

14You had been a professional driver for many years and would have been well aware of those requirements.

The Collision

15At 9:48 pm on 2 November 2018 you were travelling east on the Murray Valley Highway near the township of Brimin, a semi-rural location.  The Murray Valley Highway is a bitumen road with signposted speed limit of 100 kilometres per hour.

16In the lead-up to the collision you had been working long hours with little rest in breach of the standard work/rest conditions.  In the day prior to the collision you had not slept for a total of 19 hours and had driven for a total of 14 hours and six minutes. 

17Your Prime Mover was travelling in an easterly direction when it travelled into the westbound lane on the wrong side of the road and collided head-on with the Audi Q7 being driven by Amanda Kilmister.  She was driving in a westerly direction with four members of her family in the vehicle.  She would have had little, if any, chance to avoid that collision. 

18On impact, the Audi Q7 has spun around and ended up on the grass verge on the northern side of the road.  Your truck continued a short distance before jack-knifing and coming to rest on the grass verge on the southern side of the highway. 

19The collision killed Amanda Kilmister and her 12-year-old son Harrison, forming Charges 1 and 2 on the indictment, culpable driving.

20The collision also resulted in serious injuries to her husband Paul, then 44 years, and baby Austin, only eight and a half months.  Morgan, aged two years, sustained minor injuries.  The impact on Paul and Austin Kilmister formed the basis for Charges 3 and 4, negligently causing serious injury.

21Another motorist, Mr Michael Long, happened upon the collision scene and aided the occupants of the Audi.  In the course of helping, Mr Long heard Amanda Kilmister say "'He was on our side of the road' or "He hit us".  Similar comments were heard by another witness, James Canfield.

22Emergency services arrived shortly after.  Amanda Kilmister and her son Harrison died at the scene.  Paul Kilmister was airlifted to The Alfred Hospital and Austin to the Royal Children's Hospital, both with serious life-threatening injuries.  Morgan was also airlifted to the Royal Children's Hospital and was ultimately treated for minor injuries.

23Paul Kilmister suffered the following injuries as a result of the collision:

a.a traumatic brain injury;

b.a subarachnoid haemorrhage;

c.injuries to the spinal cord and vertebra;

d.broken sternum;

e.multiple broken ribs.

24Just pardon me a moment.  I understand Mr Kilmister is having difficulties connecting in and would like to be present.  I am going to stand down temporarily.

(Short adjournment.)

25HER HONOUR:  Thank you.  I am going to start at the paragraph that I just left.

26Paul Kilmister suffered the following injuries as a result of the collision:

a.traumatic brain injury;

b.subarachnoid haemorrhage;

c.injuries to the spinal cord and vertebra;

d.broken sternum;

e.multiple broken ribs;

f.broken pelvis;

g.tears to the kidney and internal organs;

h.right fractured ankle;

i.fracture to the wrist; and

j.a pulmonary embolism. 

27According to documents filed, Paul Kilmister now has an acquired brain injury which impacts on his impulse control, emotional regulation and memory - a reality which is likely to be permanent.  He also continues to suffer from chronic pain. 

28Austin Kilmister suffered the following injuries:

a.cervical spine injury associated with right-sided muscle weakness resulting in poor movement;

b.fractured second cervical vertebra;

c.fracture to the spine;

d.fractured collarbone;

e.traumatic brain injury requiring life support and intensive care for six days;

f.seatbelt injury to the neck, chest and abdomen (now resolved);

g.left clavicular fracture;

h.intracranial injury; and

i.ventilator assisted pneumonia (also now resolved). 

29Austin spent about six weeks in the Royal Children's Hospital.  A letter tendered as part of Paul Kilmister's victim impact statement authored by Associate Professor Scheinberg, dated 30 November 2020, confirms that he is making physical and intellectual progress but still has evidence of ongoing disability related to the injuries sustained on 2 November 2018.

30You were fortunate to sustain only minor injuries. 

Arrest and Interview

31Police at the scene placed you under arrest.  An oral fluid test revealed the presence of methylamphetamine.  You were taken to Wangaratta Hospital, where a blood sample was taken which confirmed the presence of methylamphetamine and amphetamine.  Amphetamine is often present in the illegal and impure production of methylamphetamine. 

32You were interviewed by police on 3 November 2018, during which you told them that you had been driving straight and the next minute a car was coming towards you and that you had gone right to avoid them.  You denied taking any illegal drugs in the previous 48 hours.

The Investigation

33The Major Collision Investigation Unit commenced an investigation into the cause of the collision.  Neither the truck nor the Audi Q7 were identified as having any fault that could have caused or contributed to the collision.  In her conclusions, the reconstruction expert Dr Hardiman opined:

"The prime mover was travelling at about 85 kph and the Audi was travelling at a maximum of 109 kph.  When the two vehicles collided the Prime Mover was travelling essentially straight in an easterly direction in the west bound land.  The Audi was travelling west in the west bound lane.  The Audi was steered right shortly before impact between the two vehicles.  Neither vehicle was out of control prior to the collision."

34On testing, the sample of blood taken from you post-accident contained methylamphetamine at 0.17 milligrams per litre and amphetamine at 0.05 milligrams per litre. 

35In the uncontested opinion of Professor Morris Odell:

"Once the stimulant effect wears off a person will move into the rebound phase and experience tiredness, extreme fatigue and may even fall asleep uncontrollably.  The rebound phase can exist whilst there is still a detectable drug level in the blood.  This is the opposite of the stimulated state and exacerbates the effects of sleep deprivation with a capacity to perceive and respond to the environmental cues is greatly limited.  This is a very dangerous situation in a demanding task such as driving where the ability to concentrate and respond very quickly is essential."

36Professor Odell's expert opinion is that methylamphetamine is a drug capable of rendering a person incapable of having proper control of a motor vehicle at the blood concentration found in your case. 

37The Crown case is put, and it is accepted by your counsel, that at the time of the collision you were fatigued to such a degree that you knew or ought to have known that there was an appreciable risk that you would fall asleep or lose control of your vehicle.  Further, you were driving under the influence of methamphetamine to such an extent as to be incapable of having proper control of your vehicle in the way outlined.

38The Prime Mover had been searched by police but the diary belonging to you could not be located.  The diary was found about four weeks later, on
29 November of 2018, approximately 140 metres from the collision scene.  It was found hidden in a tree along with a beanie containing cotton buds and a quantity of crystalline substance in a small plastic bag and a glass smoking implement.  This forms the basis for Charge 5 in relation to destruction or concealing of evidence.

39I accept that the hiding of your diary and drug paraphernalia was likely to have occurred whilst you were in a state of panic post-accident, but it is most disturbing that your priority immediately after the accident was to protect your own interests.

Victim Impact Statement

40It is perhaps trite to say that the impact of your offending on the Kilmister family has been catastrophic.  Victim impact statements have been filed. 

41The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.  In this case the victim impact statements of Paul Kilmister, Christine Kilmister, Felix Kilmister, Cheryl Sheridon and Erica Gwynne were read to the court.  The profound impact of your offending on their daily lives both then and since cannot therefore be lost upon you.  Victim impact statements of Deanna and Noel Gwynne were also tendered.

42I will speak to them only briefly but have had recourse to each and every one of those documents.

43Paul Kilmister remains struggling with significant physical injury, which includes the acquired brain injury to which I have already referred.  He has lost his employment and cannot at this stage envisage being able to manage any future work.  The mental and emotional impact upon him is in an entirely different category.  He understandably continues to have enormous difficulty coping with the loss of his wife and child, and has genuine difficulty and anguish maintaining the responsibilities that remain as a father and family member.

44Felix Kilmister, the only child not present for the crash, reads as a particularly mature young man who speaks of the sheer distress of seeing his brother and father in hospital whom he describes as "bloated, bruised and hooked up to machines".  He describes such visions as leaving him "scarred forever".  Understandably, he has noticed a significant difference in his father, both physically and mentally, and still struggles to come to terms with the loss of his mother and brother and never having had the chance to say goodbye.

45For the Kilmister family, there is nothing this court can say or do that will bring back your loved ones or heal your significant and unmeasurable grief, pain or injury.  The sentence I must impose can in no way be a measure of the worth of the lives of those you all love and have lost.  Rather, the sentence I must impose is a reflection of a large number of factors which judges are required by law to take into account, one of which is the impact on victims.

46I do acknowledge the dignity and respect the family has given to the necessary criminal process, which in this case has been somewhat protracted.

Personal Circumstances

47I now turn to your personal circumstances. 

48You, Mr Kenny, were born in Shepparton.  Your parents reside in Tatura, with your father usually working as a truck driver and your mother in retail.  You have a close relationship with each of your parents. 

49An older brother also lives close by and operates a house rendering business. 

50You attended Tatura Primary School and were educated to the start of Year 11 at Mooroopna Secondary College, leaving school to commence working at an abattoir.  You worked at that abattoir for two and a half years as a labourer, before commencing work with Dowell Windows for about 12 months. 

51It was then that you obtained your heavy rigid truck licence and, since the age of 21 years, have worked as a truck driver for a number of employers in your local area. 

52You were an avid football player until the age of 26 years, when an injury meant you were unable to keep playing. 

53You are now aged 33 years.  You married your wife, Ashlee, in 2015 and you have two children together:  a daughter, Harper, aged five years, and a son, Tyler, aged three years.

54A reference was provided by your wife, Ashlee.  She talks of trying to assist you in the struggle that you have faced since the accident, but the COVID-19 pandemic meant it was difficult to access necessary counselling.  You have not been able to work due to your bail conditions and she has borne the brunt of being the sole breadwinner, a burden she will now bear for some time.  She maintains her support for you and looks forward to the time that you can return to your family.

55Reference material was also tendered from your mother, Sharon Kenny.  She speaks of your close bond and her continuing support.  She describes you as being deeply affected by the events of 2 November 2018. 

56A letter was also tendered authored by Ms Kimekia Hansen, who has worked with your wife but also formed a friendship with you.  She describes yours as a close family unit and speaks of your sense of guilt for what you have done.

57You are properly described as a hardworking family man.  You are clearly well supported by friends and family.  This offers you a solid base for your eventual return to the community.  I do take the contents of the reference material into account.

58I also take into account your plea of guilty.  The chronology outlined would indicate that you were charged on or about 3 November 2018 but did not indicate your plea until a directions hearing held in the County Court on
7 November 2020.  As you had little memory of the incident, an expert report was commissioned to explore the circumstances of the crash.  On receipt of that report, subsequent discussions between the parties led to resolution of the charges and the factual basis.

59Whilst not a plea at the earliest of stages, I certainly accept that your plea has utilitarian value and at all stages has saved the witnesses the need to give evidence and relive traumatic and painful events.  Your plea of guilty in the context of the COVID-19 pandemic also has additional utilitarian value as it now provides certainty and finality to all parties in circumstances where the court's operations have been significantly disrupted and many trial dates remain as yet unfixed. 

60Based on the materials before me I do accept that your plea of guilty is one of genuine remorse.  All of these factors will be taken into account in your favour.

61You have a limited criminal record, but it does have some relevance.  On 5 May 2014 you appeared at the Shepparton Magistrates' Court in relation to failing to wear a properly adjustable fastened seatbelt.  Without conviction, you were placed on an adjourned undertaking for a period of four months.  You have no other court appearances.

62The next two matters referred to in your criminal record involve traffic infringement notices, one of which is dated 6 August 2016 and the other
27 August 2016, and each of which were for driving a motor vehicle while a prescribed concentration of drugs was present in your blood or oral fluid.  On each of those occasions, you would have been fined as a result of the traffic infringement notices and your licence was suspended for a period of three months.  It would appear at least that those traffic infringement notices represent an opportunity for you to learn something of the risks associated with driving a motor vehicle with drugs in your system.  You are not said, however, to be a habitual user of drugs, and you are otherwise accepted to be a person of good character.

63You instruct that 2 November 2018 was the first occasion on which you had driven that particular Prime Mover and the first occasion that you had driven for that particular employer.  You had apparently been asked to fill in for the usual driver who had called in sick. 

64In the days leading up to the collision you were working for another transport company.  It is this company whom you say encouraged you to breach the heavy vehicle national laws, especially those in relation to driving a fatigue-regulated heavy vehicle, and to have been reticent in completing your national driver work diary properly.

65You have in fact made a statement to police dated 24 November 2020 detailing this encouragement and your response to the same.  You have given an undertaking to this court to give evidence in accordance with that statement, if called upon to do so. 

66You should receive some discount in sentence for being prepared to commit to such a document.  For public policy reasons, it gives both you and others willing to undertake such a pathway clear recognition in the sentencing process of the benefits in so doing.  It is very much in the public interest that those who commit offences receive encouragement from the courts to provide such information, the courts having long recognised the community interest and value in so doing. 

67Many factors are relevant to the exercise of the discretion.  There is no recognised mathematical or mechanical process for fixing the value of the cooperation.  Rather, the discount is determined according to a range of factors which include the nature and extent of the cooperation, any willingness to give evidence, and any danger flowing from the cooperation. 

68Whilst it is difficult to understand the statement's importance in the absence of other information, the prosecutor concedes that it is of assistance to a current investigation.  It is said to be of benefit to the prosecution of two companies and of value. 

69In addition, I see your offer to cooperate as genuine regardless of whether or not it ultimately comes to be used.  It does represent, in my view, a further expression of remorse and a desire to foster positive change in the industry in which you found your profession as a truck driver, an industry which, for very good reason, needs to be held to high standards and encouraged to comply with legislative standards.

70A psychological assessment authored by Mr Jeffrey Cummins, clinical and forensic psychologist, dated 8 November 2020 was tendered at your plea on
14 December of last year. 

71You told Mr Cummins that you had never been dependent on drugs, but you did intermittently use amphetamine and methamphetamine to keep yourself alert whilst truck driving.

72Perhaps not surprisingly, Mr Cummins finds that you are struggling psychologically to come to terms with your current situation.  He assesses you as severely anxious, and mildly depressed.  He also describes you as suffering from reactive depression and overwhelming feelings of guilt, regret, and remorse.  You feel guilt and shame for the hurt you have caused your own family, as well as the Kilmister family.  These responses are perhaps not unexpected in light of what transpired on 2 November 2018.

73In that report, Mr Cummins expressed concern that you may suffer from a very severe form of post-traumatic stress disorder that you were supressing.  He expressed concern for a deterioration in your mental state in the custodial setting.  You were in fact remanded by me into custody at the time of your initial plea on 14 December 2020.

74Now, a supplementary psychological report dated 19 February 2021, also authored by Jeffrey Cummins, has been tendered.  He has now had the benefit of assessing you since your remand.  You presented to him as distressed and tearful.  You continued to express concern for the Kilmister family and, understandably, your own family's welfare, given your separation from them and your inability to financially provide for them.

75Mr Cummins opines that you are at the very early stage in the process of coming to terms with your offending behaviour.  You are adjusting to the gaol environment by staying physically active by walking and going to the gym and you have completed a fitness course. 

76You are currently unmedicated in the custodial setting, but have spoken to two different psychiatric nurses and have requested the assistance of psychiatric intervention, which is unfortunately yet to take place.

77Mr Cummins opines that you are now diagnosed with post-traumatic stress disorder directly related to the collision of 2 November of 2018.  He opines that your mental health will inevitably deteriorate as a result of being sentenced to a lengthy period of imprisonment.  He sees it as crucial that you receive appropriate mental health treatment in a timely manner, with preference for the same therapist as opposed to continual changes in those offering such services.

78Your counsel calls into your aid the principle of R v Verdins & Ors (2007) 16 VR 269, specifically limbs five and six of that decision. These limbs refer to, firstly, the existence of an impairment - in your case, your diagnosed post-traumatic stress disorder - at the time of sentencing which may mean that a specific sentence may weigh more heavily upon you than it would on a person in normal health; and secondly, as a mitigating factor, that there is a serious risk that imprisonment will have a significantly adverse effect on your mental health.

79The Crown concede that these two limbs have application based on the unchallenged expert opinion of Mr Cummins, and I do accept their relevance to the sentencing process. 

80The impact of the COVID-19 pandemic has also been raised on your behalf. 
I have had recourse to recent decisions in terms of this pandemic and it is relevant to sentencing.  In Brown v The Queen [2020] VSCA 60, Priest and Weinberg JJA considered how the pandemic might impact on sentencing in ways other than those I have already described. Their Honours stated:

"In the absence of any adequate material concerning the impact of the virus upon the correction system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this court (and others) should deal with this crisis as regards to its effect upon relevant sentencing principles. We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved in the particular facts of any individual case."

81On your initial remand, you were required to quarantine for 14 days, as does every new prisoner.  Whilst you have been able to stay active in the way I have described, you have not yet accessed treatment despite being in custody for two months.  Your contact with family, your only resource, and an important one to you given the closeness of it, has only taken place remotely over Zoom and with the presence of other prisoners undertaking their own family contact in the same way.  For any prisoner, let alone someone facing their first exposure to that environment, lack of access to treatment and physical contact with family does add to the pressure and stress of that environment, and I do take it into account in a general sense.

82I have already referred to the standard sentencing scheme which operates in relation to Charges 1 and 2 on the indictment, that being culpable driving.  The standard sentencing scheme became effective on 1 February 2018 and only applies to offences committed after that date. 

83The period specified as the standard sentence 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". 

84The standard sentence for the offence of culpable driving is one of eight years.  In determining the objective factors, the court must consider only the nature of the offence and not your personal circumstances.  This determination is only intended to give content to the hypothesised mid-range offence.  Nothing in the scheme circumscribes the manner in which the court is to assess the seriousness of the offence. 

85Pursuant to s.11A(4)(c) the court is required to set a non-parole period of not less than 60 per cent of the head sentence, if the court is sentencing the offender to a head sentence of not less than 20 years, unless it is not in the interests of justice to do so.

86The Court of Appeal has said that the key requirement is for the court is for the court to take into account the standard sentence as a relevant sentencing factor but, as with the maximum penalty, it is a legislative guidepost.  It does not affect the instinctive synthesis, it does not permit "two-stage sentencing", or otherwise affect matters the court may or must consider when sentencing.  A court does not start by asking whether or not the standard sentence should be imposed and then work its way up or down. 

87Consideration of current sentencing practices is necessarily limited by the sentences previously imposed if the offence in question was subject to the standard sentencing scheme.  I have been referred to 19 cases of culpable driving subject to the same scheme.  Principles established in past cases of course remain relevant.

88I have been assisted somewhat by referral by the Crown to the decision of R v Whyte (2002) 55 NSWLR 252, which does detail a non-exhaustive list of features relevant to assessing the objective gravity of indictable driving offences. That decision has been referred to in our Court of Appeal.

89The prosecution submit, and I do accept, that factors relevant to assessing the objective gravity of your offending include:

a.    Firstly, that the vehicle driven by you was a large truck, requiring extra care because of the capability of causing significant harm, harm which obviously eventuated in your case;

b.    I look to the number of victims.  Your driving put all five occupants of the vehicle at significant risk.  Two occupants died, and two were seriously injured;

c.    The injuries sustained were catastrophic and not survivable by two victims.  The injuries sustained by Paul Kilmister and his young son can only be described as both severe and, unfortunately, enduring; and

d.    Finally, whilst a professional driver, you were driving a vehicle which was unfamiliar to you, requiring, in my view, additional care.

90I accept the Crown submission that the risks associated with driving a heavy vehicle whilst fatigued and impacted by methamphetamine use to the extent of being incapable of having a proper control of that vehicle represents a very grave circumstance.  The court, of course, is informed by the extent of risk your driving created.  That risk refers to the likelihood that something will go wrong, and the extent of the harm which will result if it does.  The risk, of course, in your circumstances, was high.

91Whilst the Crown also submits I should take into account the length of the journey you had undertaken, and that it was likely you had been driving for a long period of time whilst exposing other road users to risk, the evidence at this stage is insufficient for me to form the view that it is a relevant factor to take into account.  I am not in a position to determine when this factor came into play, other than the obvious time of around 9:45 pm on 2 November 2018.

92I accept that there is no evidence of excessive speed or erratic driving in the period prior to your collision with the Kilmisters' Audi Q7. 

93You were licensed at the time and did remain at the scene, as the community would expect.  It just does not always occur.

94Given your status as a professional driver, your understanding of the requirements that role entailed and your previous infringements for
drug-driving, I do find your moral culpability to be at the high end. 

95I accept the unchallenged prosecution submission that, when viewed as a whole, your offending was within at least the mid-range. 

96In considering all factors, the totality principle clearly has a role to play, whilst at the same time there is a need to reflect the separate offences and victims before the court.  The totality principle requires that where an offender is being sentenced to multiple terms, or is otherwise to serve multiple sentences, then the sentencer should ensure that the total sentence remains what is described as "just and appropriate" for the whole of the offending.

97It is trite to say that your offending is extremely serious and has clearly devastated the Kilmister family.  It has left yours without a husband and father figure.  As the prosecutor rightly points out, a single moment in time can have such devastating and long-lasting consequences.

98I accept that general deterrence is one of the primary sentencing considerations for this offending, as are factors of denunciation and just punishment.  The message needs to be understood that such offending does attract condign punishment in order to deter others from behaving in the same way, given the potential for such profound impact on those accessing our roads and their entitlement to do so as safely as possible. 

99The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation, and protection of the community.  In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances, and those of your victims. 

100I am also required to balance the interest of the community in denouncing criminal conduct, with the interest the community still has in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.

101Taking into account your solid support base, your lengthy work history, your limited history of court appearances, and what I assess to be your genuine remorse for your offending, I do assess your prospects for rehabilitation as favourable.

102Whilst specific deterrence still has a role to play in this context, less weight should attach to both it and protection of the community.  In my view, your rehabilitation needs to be supervised by a lengthy period on parole, to reduce the risk of re-offending and to enhance your future prospects which also affords the community protection.

103I have also taken into account the relevant sentencing guidelines, referred to in s.5 of the Sentencing Act1991 where relevant to your case.  I have referred to the principle of totality, and also have given due account to the principle of proportionality. 

104Given today's amendment, I make the ancillary order as sought for the disposal of scheduled items. 

105I note also that culpable driving is a serious motor vehicle offence, pursuant to s.87P of the Sentencing Act; the court is required to make an order pursuant to s.89(1) of the Act for a period of not less than 24 months and that order relates to your licence.  I also make a finding pursuant to s.89C of the same Act that your offending was under the influence of a drug, which contributed to the offence.  In relation, therefore, to each of the charges of culpable driving, all licences held are cancelled and disqualified for a period of five years. 

106I do now turn to sentence.

107In relation to Charge 1, culpable driving causing the death of Amanda Kilmister, you are convicted and sentenced to eight years and six months imprisonment, which is the base sentence.

108In relation to Charge 2, culpable driving causing the death of Harrison Kilmister, you are also convicted and sentenced to eight years and six months imprisonment.

109On Charge 3, negligently causing serious injury to Paul Kilmister, you are convicted and sentenced to four years imprisonment.

110On Charge 4, negligently causing serious injury to Austin Kilmister, you are convicted and sentenced to four years imprisonment.

111On Charge 5, the evidence related offence, you are convicted and sentenced to six months imprisonment.

112The term on Charge 5 does relate to separate offending, however, I am of the view that the principle of totality directs a requirement for concurrency in relation to that particular charge.

113Otherwise, two and a half years on Charge 2 is cumulative on Charge 1; 12 months on Charges 3 and 4 are cumulative on each other and the other sentences imposed.

114This leads to a total effective sentence of 13 years imprisonment. 

115I direct that you serve a minimum of eight years and nine months before being eligible for parole, and 75 days will be reckoned as having been already served.

116Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges.  If not for your pleas of guilty, you would have been sentenced to a total effective sentence of 15 years and nine months, with a minimum of 11 years before being eligible for parole.

117Mr Lew, any matters arising?

118MR LEW:  No, Your Honour.  Sorry, am I mute?  I am not on mute.  No, Your Honour.

119HER HONOUR:  Mr Kotsifas, any matters arising?

120MR KOTSIFAS:  No, Your Honour.  Thank you.

121HER HONOUR:  Thank you, I will close the court until tomorrow.

---