Director of Public Prosecutions v Kur
[2023] VCC 2425
•22 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00328
Indictment No. N11456842
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EMANUEL ABEL KUR |
---
JUDGE: | His Honour Judge Trapnell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2023, 2 October 2023 | |
DATE OF SENTENCE: | 22 December 2023 | |
CASE MAY BE CITED AS: | DPP v Kur | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2425 | |
REASONS FOR SENTENCE
---
Subject:Criminal Law
Catchwords: Sentence – Culpable driving causing death by recklessness – Conduct endangering life – Committing indictable offence whilst on bail – Standard sentence – Category 2 offence – Offences committed whilst offender highly intoxicated – Offender drove at high speed and erratically on Westgate Bridge during heavy traffic – Serious examples of offences – High moral culpability – Early pleas of guilty – Worboyes discount – Genuine remorse – Youthful offender – Socially disadvantaged background – Verdins principle 5 engaged – Verdins principles 1 to 4 and 6 not engaged – Non Australian citizen – Deportation risk – Injuries causing TBI – Extra-curial punishment – Poor driving record – Guarded prospects of rehabilitation
Legislation Cited: Crimes Act 1958 – Sentencing Act 1991 – Road Safety Act 1986
Cases Cited:R v Withers [2003] VSCA 176 – R v Franklin (2009) 52 MVR 544 – DPP v King (2008) 187 A Crim R 219 – R v Verdins (2007) 16 VR 269 – Johnston v The Queen [2013] VSCA 362 – Bugmy v The Queen (2013) 249 CLR 571 – Balshaw v The Queen [2021] VSCA 78 – Marrah v The Queen [2014] VSCA 119 – Newton v The King [2023] VSCA 22 – DPP v Herrmann [2021] VSCA 160 – Sabbatucci v The Queen [2021] VSCA 340 – Lennon v R (2017) 80 MVR 71 – Director of Public Prosecutions v Hill (2012) 223 A Crim R 285 – R v Sherpa [2001] VSCA 145
Sentence: Total effective sentence – 9 years’ and 6 months’ imprisonment – 6 year non-parole period
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Hogan Ms A Dearman | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms H Anderson | Valos Black & Associates |
HIS HONOUR:
1Emanuel Abel Kur, you have pleaded guilty to an indictment containing one charge of culpable driving causing death by driving a motor vehicle recklessly (Charge 1)[1] and one charge of conduct endangering life (Charge 2).[2] Charge 2 is a rolled-up charge relating to five named victims whose lives you recklessly endangered.[3]
[1] Contrary to Crimes Act 1958 (‘CA’)s 318(2)(a).
[2] Contrary to CA s 22.
[3] See R v Jones [2004] VSCA 68 [13] (Charles JA, Phillips JA and Bongiorno AJA agreeing); McCray (a pseudonym) v The Queen [2017] VSCA 340 [17]–[18], [29]–[30] (Maxwell P and Croucher AJA; Crawford v The Queen [2018] VSCA 113 [43]–[44] (Maxwell P and Kyrou JA); R v Richard [2011] NSWSC 866 [102]–[109] (Garling J).
2You have also consented to this Court dealing with one transferred related summary offence of committing an indictable offence whilst on bail (Summary Charge 7).[4]
[4] Contrary to Bail Act 1977 (‘BA’) s 30B.
3The maximum penalty for culpable driving causing death is 20 years’ imprisonment.[5] The maximum penalty for reckless conduct endangering life is 10 years’ imprisonment.[6] The maximum penalty for commit an indictable offence whilst on bail is 30 penalty units or three months’ imprisonment.[7]
[5] Pursuant to CA s 318(1).
[6] Pursuant to CA s 22.
[7] Pursuant to BA s 30B.
4Upon conviction for the charge of culpable driving causing death and the charge of reckless conduct endangering life arising out of the driving of a motor vehicle while under the influence of alcohol, any driver licence or learner permit must be cancelled and you must be disqualified for a period of not less than 24 months.[8]
[8] Pursuant to Sentencing Act 1991 (‘SA’) s 89(2(b)).
The Facts
Background
5You were 21 years old at the time of the offending conduct and held a current Victorian learner permit under section 22 of the Road Safety Act 1986 (‘RSA’). You are now aged nearly 23 years.[9]
[9] The prisoner’s date of birth in January 2001.
6On 5 July 2022, you were driving a 2009 Ford Falcon XR6 sedan (‘the Ford’). The registration of this vehicle had expired on 26 February 2022, over four months before the present offences were committed. It was an offence under the RSA for you to be using this motor vehicle on a highway at the relevant time.[10] This is an uncharged act.
[10] See Road Safety Act 1986 (‘RSA’) s 7(1).
7The registration plates last applicable to the Ford were not fitted to it at the time of the offending. Instead, ‘false’ registration plates were fitted. This was no doubt because the registration of the Ford had expired at the time. These circumstances also involve you committing another offence by driving the Ford with ‘false’ registration plates fitted.[11] This is a further uncharged act.
[11] See Road Safety (Vehicles) Regulations 2021, reg 280(1).
8Your front seat passenger, Kuol Jock Deng, who was aged 22 years at the time, was not the holder of a ‘full’ Victorian driver licence; rather, he was disqualified from holding a Victorian learner permit. By driving the Ford as a learner driver, without an appropriate supervising driver seated next to you, you committed yet another offence against the RSA.[12] Moreover, you did not have ‘L’ plates fitted to the front and rear of the vehicle you were driving. Thus, yet another offence against the road safety laws of this State was committed by you.[13] These are further uncharged acts.
[12] See RSA s 18AB(1).
[13] See Road Safety (Driver) Regulations 2009, reg 48(1).
9Also present in the Ford and seated in the rear passenger seats were Dak Wuor, aged 23 years; Lek Tito, aged 19 years; and Waadnyah Kawi, aged 20 years.
10Eric Jackson, aged 58 years, was the driver of a Hino truck that was the only other vehicle involved in the collision. He had a passenger, James Du aged 22 years, who was seated in the front passenger seat of his vehicle.
The offending
11At 10:30 am on 5 July 2022, you were driving the Ford on the West Gate Freeway in a westerly direction. Your driving was captured on CCTV traffic cameras. As you were approaching the West Gate Bridge, you were driving in the left-bound lane travelling at a speed clearly in excess of the vehicles around you. You moved from the left lane into a supplementary left lane, overtaking slower moving vehicles and weaving between lanes. A speed limit of 80 kilometres per hour applied at the time of the offending.
12Mr Harry Avdoulas was driving on the West Gate Freeway and was approaching the Todd Road service station when you drove past him. He described your driving as folllows:
(a) ‘The silver ford flew past me on the left-hand side. I didn’t see him in my mirror, he came up so quick I didn’t even see him, he just swooshed past. … I was doing 90 and they went past me.’
(b) ‘When he got in front me, within a couple of seconds he went flying from one side of the road to the other at a ridiculous speed, in one swoop. Like he didn’t do one lane then another then another, he did it one swoop. That was from the left to the right. Then he proceeded up the hill of the bridge.’
13Mr Mark Fagg was also driving on the West Fate Freeway towards the West Gate Bridge when he observed your car. He described your driving as follows:
(a) ‘I recall checking my rear-view mirror and saw nothing of note. And then suddenly a silver Ford Falcon came screaming past me in the far-right lane. … It passed me to the right and then swung across all four lanes of traffic to the left in one fast motion.’
(b) ‘I continued to watch the Ford going up the bridge. Within ten seconds it was at the halfway mark of the bridge and then I lost sight of it.’
14You travelled onto the West Gate Bridge where you were captured by CCTV driving in lane three. You moved across lane two into lane one, overtaking a slower moving prime mover.
15Mr Ethan Doe was travelling on the West Gate Bridge at the time and observed you driving past his vehicle. He described your driving in these words: ‘A silver/grey Ford sedan suddenly sped past us on our right, in the third lane. As soon as it blasted past us, we could tell how fast it was going. We were travelling at 80km/h and the Ford was so close in proximity to us that I felt the entire chassis of our car shake as it went past.’
16One witness who observed you driving said, ‘he overtook us at a very high speed on our left on lane W2. We both felt our car shook as the car overtook us.’ Another witness said, ‘I’ve never seen a car go that fast, it was insane…[w]e both said “Jesus” when we saw it go by.’
17You then travelled down the decline of the West Gate Bridge. At one point you were travelling in lane five and in one movement travelled from lane five into lane two, split between a Lexus SUV that was travelling in lane three and a Honda sedan that was travelling in lane two.
18You sped past the Lexus into lane two and swerved back into lane three, to the rear of the Hino truck. Whilst maintaining your high speed, you then attempted to split the Hino truck and a silver Toyota sedan that was travelling slightly to the rear of the Hino truck in lane two. It was at this stage that you lost control of the Ford and the front driver side of the vehicle collided with the rear passenger side cargo box corner of the Hino truck.
19The impact caused the truck to rotate clockwise and roll onto its left side. The truck continued to rotate in a clockwise direction while sliding and then rolled a further one and a half times. The truck came to rest driver side down on the road surface across lanes one and two, facing the centre barrier.
20After impact, the Ford rotated 540 degrees in a clockwise direction and slid to rest in lane three, facing oncoming traffic.
21The driver of the Hino truck described the collision as follows:
We were on the way down the other side of the Westgate bridge, and I remember hearing a loud bang and a jolt, and suddenly the truck started to turn sideways. As we turned sideways, I remember seeing the centre metal rail of the Westgate Bridge that divides the city bound lanes to the western suburbs bound lanes. The rail was right in front of us, and I remember thinking that if we hit the rail, it was going to hurt. Then I felt the truck starting to turn over. We were on a 45-degree angle, and everything suddenly went dark because we were spinning around.
22Immediately following the collision, the rear passengers in the Ford exited the vehicle. They went to the front passenger door where they removed Mr Deng from the vehicle and laid him on the ground. You were trapped inside the vehicle. They attempted to remove you, but witnesses stopped them and told them to wait for emergency services to arrive. Two occupants of other vehicles started performing CPR on Mr Deng
23Mr Jackson and Mr Du were assisted out of the Hino truck. Mr Jackson was uninjured and Mr Du suffered minor injuries, including whiplash and cuts to his head. In his statement to police he said, ‘I still can’t close my hand properly and haven’t been able to go back to work since the collision.’
24Emergency services arrived at the scene and paramedics treated you and Mr Deng. You were both conveyed to the Royal Melbourne Hospital (‘RMH’) with life threatening injuries.
25Mr Deng died that evening from injuries he sustained in the collision. An external post-mortem examination confirmed that he died as a result of ‘complications of multiple injuries sustained in a motor vehicle incident (passenger).’
26Detective Senior Constable Yuxing Zhao, an investigator with the Collision Reconstruction and Mechanical Investigation Unit of Victoria Police attended and examined the scene. He opines that the Ford was travelling at approximately 119km/h when its front passenger side collided with the rear passenger side corner of the Hino truck. He concluded that, ‘the true speed of the Ford prior to the collision is likely to be higher as its speed loss in impacting the Hino is not able to be established, therefore cannot be included in the speed calculation.’
27A blood sample was taken from you at 11:55 am on 5 July 2022. The toxicology report produced from analysis of the blood sample states you had a blood alcohol concentration of 0.209%, nordiazepam 0.03% and ondansetron 0.22%.
28Dr Sanjeev Gaya of the Victorian Institute of Forensic Medicine was requested to provide an expert opinion on the effect of alcohol found in your blood and whether you would have been capable of having proper control of a motor vehicle at the time of the collision.
29In relation your ability to drive a motor vehicle in these circumstances, Dr Gaya opines that ‘A BAC of 0.209% would significantly and adversely impact the cognitive skills important for driving. At this level, Mr Kur would have been incapable of having proper control of a motor vehicle.’
30Because of your injuries, you were unable to be interviewed on 5 July 2022. You were arrested as an inpatient of RMH on 7 July 2022. Through your legal representatives, you declined an interview on 13 July 2022.
31At the time of the offending conduct you were on bail in relation to two matters, one at the Heidelberg Magistrates’ Court and one at the Latrobe Valley Magistrates’ Court, both involving alleged dishonesty offences and one an alleged drug offence. This gives rise to Summary Charge 7, committing an indictable offence whilst on bail. At the time of this offending you were also released on summons for driving offences.
Victim impact
32Victim impact statements (‘VIS’) prepared by Mr Deng’s mother, Tereza Yiak,[14] and father, Jock Deng,[15] were tendered by the prosecutor at the plea hearing.
[14] Ex P2.
[15] Ex P3.
33It is clear your offending has had a devastating impact on Mr Deng’s family. To Mr Deng’s family, I want to say on behalf of the Victorian community how tragic the loss of your son is in these circumstances, or any circumstances for that matter. The sentence I impose is that which the law properly, in my assessment, lays down for me to impose and obviously it cannot do anything to ameliorate your loss. I want to make clear, it is in no way a measure of the worth of Mr Deng’s life.
34In her VIS, Ms Yiak describes the emotional and physical impacts of Mr Deng’s death. The loss of her son has caused a type of pain beyond description. She feels as though her family has been robbed of the opportunity to see her son develop into the remarkable young man he was becoming and they are robbed of the joy of having him brighten their day.
35Ms Yiak says the day Mr Deng died will forever be engraved in her mind — the memory of him giving her a hug and fist bump goodbye will always stay with her. Losing one of her five children has left a hole in her heart that can never be filled. Ever since that dreadful day, her life has felt like a dream and her memory has been clouded. She often forgets where she is, who she is and what she is doing.
36Ms Yiak describes feeling very drained and low in energy since the incident. She often finds herself having hot and cold sweats, shaking uncontrollably and having difficulty standing. Any type of physical activity is hard for her. When she thinks of her son, she suffers from headaches and severe muscle cramps and aches. Her sleep is very irregular and she often finds herself going days without sleep or food.
37Ms Yiak describes there having been a wedge driven between her and her children, as well as between each of them. While trying to cope with the death of Mr Deng, everyone has isolated themselves. Ms Yiak says her son was the peace maker in their household — the light in the dark — and without him they have all been left in the dark.
38In his VIS, Mr Deng describes still being in shock that his son is gone. He continues to struggle with acceptance of this situation.
39Mr Deng describes his son as a kind and loving person and said he experiences intense pain from his loss. He often thinks about him and feels as though he has lost a part of himself.
40It is difficult for him to process his grief as he has had to continue working so he can provide for his family. Mr Deng finds it difficult to concentrate at work as thoughts of his son are always racing through his mind.
41Mr Deng feels as a father and husband it is his responsibility to be strong, so he avoids sharing his pain with his wife and family. He describes himself as always feeling sad but not wanting to burden his family with his pain. As a result he suffers from a sense of loneliness as he grieves silently for his son. He finds himself shutting down and turning inwardly because he feels so much pain. The thought of never having the chance to celebrate his son’s future successes and milestones is a source of great sadness.
42Mr Deng describes himself as no longer being a social person and feeling isolated. All of his thoughts have been taken over by thoughts of his son and how he will never be able to see him again. The loss of his son has left a gaping hole in his heart that will never be filled. He loved his son completely and cannot think about his life moving forward without him. He is haunted by his son’s last moments and continues to suffer with images of what this would have been like. Mr Deng says he would give his life for his son to return.
Offence seriousness
43Culpable driving causing death, by its nature, is a very serious offence carrying a maximum penalty of twenty years’ imprisonment. It is a category 2 offence under the Sentencing Act 1991.[16] This means, some irrelevant exceptions aside, a sentence of immediate imprisonment must be imposed for this offence.[17] These two factors indicate the seriousness with which the legislature on behalf of the Victorian community views this offence and of Parliament’s intention that a substantial term of imprisonment should normally be imposed.
[16] SA s 3 definition of ‘category 2 offence’ (ea).
[17] SA s 5(2H).
44The Victorian Court of Appeal has emphasised on numerous occasions the seriousness with which culpable driving is viewed and that general deterrence is the principal sentencing consideration in cases of this type.
45In R v Withers,[18] Vincent JA, with whom Winneke ACJ and Eames JA agreed, observed:
There is no need to recite yet again the many expressions of the seriousness with which the crime of culpable driving is viewed by this Court. They can be found in such cases as Wareham, Soloman, O’Connor and Scott. The offence is now regarded as a species of involuntary manslaughter and in this context it must be borne in mind that the legislature has fixed a maximum penalty of imprisonment for 20 years, the same as that available for manslaughter … Time and time again the Court has emphasised the importance of general deterrence as a sentencing consideration in cases of this type. Hopefully, as a consequence of the stance taken, as set out in the authorities to which I have referred, there will be increased understanding on the part of those who may be tempted to adopt the kind of culpably irresponsible behaviour that resulted in the death of the victim in this case, that it will simply not be tolerated by the community and will be likely to result in the imposition of very substantial terms of imprisonment. General deterrence is a powerful sentencing consideration in relation to this type of behaviour.[19]
[18] [2003] VSCA 176.
[19] Ibid [15] (citations omitted).
46And in R v Franklin,[20] Warren CJ, with whom Redlich JA and Forrest AJA agreed, observed:
Cases of culpable driving continue to come too frequently before the courts. What is so striking about these cases is that one moment in time can have such devastating consequences. As already observed, culpable driving is punishable by 20 years’ imprisonment. Such a severe maximum penalty reflects the gravity of the offence and the culpability of the perpetrator.[21]
[20] (2009) 52 MVR 544.
[21] Ibid 547 [12].
47Moreover, culpable driving causing death is a standard sentence offence.[22] The standard sentence fixed for the offence is imprisonment for eight years.[23] In sentencing you for this offence, I must have regard to the standard sentence[24] which ‘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’.[25] It is a matter I must have regard to as one of the factors relevant to the sentence I impose on you on Charge 1.[26] However, the standard sentence is just another factor I must consider; it is not determinative and does not interrupt the operation of my instinctive synthesis.[27] In fact, the relevant legislation specifically approves the instinctive synthesis approach to sentencing.[28] It is to be treated as a ‘legislative guidepost’, as is the maximum penalty.[29]
[22] Sentencing Act 1991 (‘SA’) s 5A(1).
[23] CA s 318(1A).
[24] SA s 5(2)(ab).
[25] SA s 5A(1)(b).
[26] SA s 5B(2)(a).
[27] Brown v The Queen (2019) 59 VR 462, 464 [4], (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) (‘Brown’).
[28] SA s 5B(3)(b).
[29] Brown 464 [4], 479 [55]–[57] (applying Muldrock v The Queen (2011) 244 CLR 120, 132 [27] ((French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
48The prosecution particularised recklessness as the mental element in the category of culpable driving committed by you.[30] By pleading guilty to this charge, you have admitted that you consciously and unjustifiably disregarded a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from your driving. Tragically, in this case, that risk eventuated and your recklessness caused the senseless and wholly avoidable death of Mr Deng, who was your close friend.
[30] CA s 318(2)(a).
49Whilst section 318 of the Crimes Act does not create a ‘statutory hierarchy of seriousness between the manifestations of the offence, with recklessness sitting at the apex’,[31] your state of mind at the time you drove remains a relevant sentencing consideration.[32] In my opinion, the fact that, by your own admission, you drove a motor vehicle in circumstances whereby you consciously and unjustifiably disregarded a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from your driving increases your moral culpability above that observed in many other cases of this type.
[31] Pasznyk v The Queen (2014) 43 VR 169, 182 [57] (Priest JA, Redlich JA agreeing). See also DPP v Reid (2020) 94 MVR 103, 117 [55] and fn 21 (Priest, T Forrest and Weinberg JJA).
[32] Ibid.
50In determining an appropriate sentence, I must take into account the objective gravity of your offending conduct as well as your moral culpability for it. As Redlich JA, with whom Chernov and Vincent JJA agreed, observed in DPP v Bright:[33]
The objective gravity of the offence must be assessed otherwise other relevant sentencing considerations, and in particular subjective factors, may be given undue weight in arriving at the sentence, rendering it unlikely that the sentence will be commensurate with the seriousness of the crime.[34]
[33] (2006) 163 A Crim R 538.
[34] Ibid 543 (citations omitted).
51In my opinion, this is a grave example of culpable driving and exhibits many of the indicia of culpability seen in the worst category of offending. Moreover, I assess you moral culpability as being at a very high level. In my opinion, your crimes call for the imposition of condign punishment.
52You were highly intoxicated at the time of committing the offences, possessing a blood alcohol concentration (‘BAC’) of 0.209% — more than four times the prescribed limit for the holder of a full driver licence,[35] which you were not. Rather, as the holder of a learner permit[36] your lawful BAC was limited to zero.[37] Dr Sanjeev Gaya, a senior forensic physician employed by the Victorian Institute of Forensic Medicine, opines this blood alcohol concentration would have left you incapable of having proper control of the motor vehicle.
[35] RSA s 3 definition of ‘prescribed concentration of alcohol’.
[36] See RSA s 22.
[37] RSA s 52(2).
53I am satisfied your level of intoxication was such that it significantly adversely affected the skills you required for driving thereby rendering you incapable of having proper control of the motor vehicle you were driving.
54Moreover, you drove the motor vehicle at a grossly excessive speed, travelling at approximately 119km/h in an 80km/h speed zone, through heavy traffic over the West Gate Bridge. To add to the extreme dangerousness of your conduct, you drove highly erratically. This involved you weaving in and out of lanes over the bridge in heavy traffic and in daylight hours. In the process, you cut off other vehicles.
55I have viewed the CD compilation of CCTV and dash cam footage recording the progress of your vehicle as it erratically sped across the West Gate Bridge in heavy traffic.[38] It is truly terrifying to watch. It is difficult to envisage a more reckless example of driving.
[38] Ex P4.
56As noted earlier, to make matters worse, if that be possible, at the time of committing these offences you held only a learner permit and you did not have an appropriate supervising driver seated next to you. The car you were driving was unregistered and was displaying ‘false’ number plates. These are aggravating circumstances of your driving which, although there are no relevant charges, I am entitled to take into account in assessing the overall objective gravity of your offending conduct. This is because these facts constitute less serious offences than culpable driving causing death and conduct endangering life, and the unlawful acts you committed by driving in these circumstances ‘so belonged and gave meaning to the offence[s]’.[39] For these reasons, in my opinion it is not unfair to take these matters into account in assessing the gravity of the present offences.
[39] See R v Nobile [2006] VSCA 211 [8] (Nettle JA), [45], [52] (Coldrey AJA, Bell AJA agreeing); R v Henderson-Drife [2007] VSCA 211 [13]–[18] (Whelan AJA, Chernov and Vincent JJA agreeing); DPP v Gonzalez
57Finally, it is be observed that the present offending occurred while you were on bail, which is another aggravating factor.[40] It also means specific deterrence and protection of the community need to be given significant weight in my sentencing calculus.[41]
[40] Zarghami v The Queen [2020] VSCA 74 (‘Zarghami’) [33] (Kaye, T Forrest and Osborn JJA).
[41] Marku v The Queen [2012] VSCA 51, [46] (Williams AJA, Buchanan and Bongiorno JJA agreeing); Osborne v The Queen [2018] VSCA 160, [42] (Maxwell ACJ, Priest and Kyrou JJA agreeing).
58However, since you also fall to be sentenced on the related summary offence of committing an indictable offence whilst on bail[42] I must avoid the imposition of double punishment.[43]
[42] Summary Charge 7.
[43] Zarghami [25]–[33].
59However, the fact these offences were committed by you whilst released on bail in relation to other offences means the presumption of concurrency between sentences is rebutted.[44] Although, the totality principle must still be applied in sentencing you for these offences.
[44] SA s 16(3C).
60What all this demonstrates is that on 5 July 2022 you were completely lawless. You consciously and deliberately acted as though no laws or societal norms applied to you. Tragically, your friend, Mr Deng has paid the ultimate price for your outrageous behaviour.
61There is little positive that can be said about your driving on this occasion. Nonetheless, I do accept your counsel’s submission that your offending lacks some of the aggravating factors which commonly occur in this type of offending. You did not ignore warnings or attempt to escape police pursuit, nor did you fail to stop after the collision.
62Your offending constituting reckless conduct endangering life is also inherently serious. Charge 2 is a rolled-up charge, encompassing endangerment to the lives of the three surviving passengers in your vehicle and to the lives of Mr Du and Mr Jackson who were travelling in the truck you collided with.
63As this offence concerns recklessly engaging in the forbidden conduct, any assessment of the seriousness of this offence requires a consideration of both the degree of recklessness involved in the offending conduct and the probability that death is likely to result.[45]
[45] See in the context of the analogous offence of dangerous driving causing death: Board v The Queen [2013] VSCA 190 [34](3) (Maxwell ACJ, Buchanan JA agreeing) citing Towle v The Queen (2009) 54 MVR 543, 563 [66]–[68] (Maxwell P, Buchanan and Ashley JJA). See also Stephens v The Queen (2016) 50 VR 740, 745 [20] (Redlich, Santamaria, Beach JJA).
64For the reasons previously adumbrated your driving was extremely reckless and the nature and degree of the risk you created by the manner in which you drove was not theoretical. Your driving caused a serious risk of death to all five victims as is clear from the tragic fact your driving resulted in the death of Mr Deng. It is also clear from Mr Jackson’s statement that he immediately comprehended that risk and, as a result of your conduct, Mr Du suffered physical injuries, albeit relatively minor ones.
65Moreover, because Charge 2 is a rolled-up charge it includes more than one episode of criminal conduct. By your plea of guilty to this charge you admit your conduct endangered the lives of five people. Necessarily, the criminality involved is greater than with a charge in which only one episode of criminal conduct is relied upon, thereby significantly increasing the criminality involved in committing this offence.[46]
[46] See R v Richard [2011] NSWSC 866 [65(f)] (Garling J); R v De Leeuw [2015] NSWCCA 183 [116] (Johnson J, Ward JA and Garling J agreeing); Garcia v The King [2022] NSWCCA 172 [134](2)(d) (Walton J, Macfarlan JA and Rothman J agreeing).
66Nonetheless, I have not disregarded the fact it is the single action of driving a motor vehicle in the manner admitted which is relied upon to support the criminal acts underlying both charges on the indictment; although, the consequences of those criminal acts for the victims of each charge are, sadly, entirely different.[47] I am also mindful I must be careful to ‘separate the bases of punishment’ given two offences have been ‘committed within the ambit of a single incident or enterprise’.[48]
[47] See R v Bekhazi (2001) 3 VR 321, 330 [14] (Winneke P, Charles JA agreeing), 332–333 [22]–[24] (Vincent JA). See also Dang v The Queen [2014] VSCA 49 [51]–[57] Tate JA (Weinberg JA agreeing).
[48] R v Lacey [2006] VSCA 4 [24] (Vincent JA, Callaway and Chernov JJA agreeing); R v King [2007] VSCA 38 [7] (Redlich JA, Vincent JA and Habersberger AJA agreeing); R v Singh [2011] VSCA 317 [11] (Neave and Hansen JJA and Beach AJA).
67My conclusion is that these are very serious examples of culpable driving causing death and conduct endangering life. Both offences involved a high degree of moral culpability on your part and demonstrated a breathtaking disregard for the safety of other road users. Through your ‘pointless and profligate crimes’[49] Mr Deng’s young life was tragically cut short. This immeasurable loss was completely avoidable.
[49] See Pasznyk 171 [4] Nettle JA.
68Clearly, just punishment, general deterrence and denunciation must all be given great weight in sentencing you for these offences.
Personal circumstances
69Three psychological reports were provided to the Court to which I have had regard in sentencing you.
70You were initially assessed by Dr Alana Harridge on 17 May 2023 and 19 May 2023 at the request of your legal representatives. She prepared a ‘Confidential Psychological Report’, dated 4 June 2023, which was tendered at the plea hearing by your counsel (‘the Harridge report’).[50]
[50] Ex D2.
71You were also assessed at my request by Dr Simon Vincenzi, a Forensicare clinical and forensic psychologist specialising in problem behaviour, on 17 July 2023. Dr Vincenzi prepared a ‘Psychological Court Report’, dated 23 August 2023 (‘the Vincenzi report’).[51]
[51] Ex C1.
72As a result of some matters raised in the Harridge report, at the request of your legal representatives you were assessed by Ms Bronwyn Hall, a clinical neuropsychologist, who prepared a ‘Confidential Neuropsychological Assessment Report’, dated 27 August 2023, which was tendered at the further plea hearing by your counsel (‘the Hall report’).[52]
Personal history
[52] Ex D6.
73You were born and raised in Sudan for the first few years of your life. You are the youngest of seven siblings. You have two brothers (one who is deceased) and four sisters. Your family fled Sudan to Egypt when you were about four years old.
74You described Egypt as a ‘dangerous country’. You feared for your life during these early formative years, in the context of war and conflict. At the age of four or five years, you witnessed your older cousin being killed when he was shot in a park.
75Soon after your cousin’s death, your family immigrated to Australia, except for your father, who remained in Africa. Your father later remarried, and you harbour resentment towards him for perceived abandonment. You reported to Ms Hall that you were unsure of your father’s whereabouts and said it had ‘been a while’ since your last contact with him.
76Your transition to Australia was difficult, and you faced challenges of assimilation and financial hardship. You lived in difficult circumstances resulting from limited income and food, as well as brief periods of homelessness during late childhood. Your mother worked as a cleaner to support her family.
77You disclosed to Dr Vincenzi that throughout your childhood you experienced feelings of low self-worth and a sense of being unwanted. You had a strained relationship with your older brother, whom you believed had been favoured by your mother. Your mother, whom you reported has since been diagnosed with dementia, struggled with your father’s absence.
78In 2015, when you were aged 14, your oldest brother died. You reported to Ms Hall that your brother was found in his bed in the family home. It appears he died of a drug overdose. You informed Ms Hall that you had been very close to your brother, and that you are still struggling to function and cope following his death. You reported to Dr Vincenzi you feel a sense of responsibility over your brother’s death, as you believe you should have checked on him that night.
79Your currently have a good relationship with your mother and you speak with her every couple of days. You enjoy a positive relationship with your siblings and speak to some of them daily. I note your mother and other members of your family are present tin court today.
Education and employment history
80You attended an English language school for one or two years when you first arrived in Australia. You subsequently commenced primary school education from Grade Two or Three at a school in Dandenong. You then attended Baden Powell College in Tarneit for your secondary schooling. Dr Vincenzi notes you faced challenges in the Australian school system owing to learning difficulties and bullying, and that the physical and verbal bullying you experienced led to suicidal ideation.
81When asked about your academic performance by Ms Hall, you said your grades were not very good, and expressed the belief, ‘I’m pretty dumb, to be honest’. You reported that you ‘didn’t really do high school’. You completed Year Nine and were then expelled in Year Ten, which you attributed to not participating in class. Ms Hall notes the death of your brother occurred when you were in Year Nine, which she opines is likely to have contributed to your self-described disengagement during your secondary schooling.
82You partially completed an apprenticeship in carpentry but ceased after one year reportedly experiencing racism from a teacher. You completed a traffic management course.
83You reported working in a warehouse, civil construction and then traffic control for a few months before your alcohol and illicit substance use escalated and you were unable to continue working. You were not employed at the time you were remanded for the present offending.
Drug and alcohol history
84Substance abuse became an escape for you as you struggled with low mood and anxiety. You first tried alcohol at 18 years. You consumed alcohol occasionally from this time, increasing in quantity and use to age 19. You reported to Ms Hall that from age 19 you consumed alcohol to the point of intoxication nearly daily in order to ‘block everything out’. You said that there were occasional days you did not consume alcohol because of bad hangovers.
85You told Ms Hall you were trying to block out ‘depressing stuff’, and when asked to elaborate you said ‘everything I’m trying to do never works out … try to find a job, no one wants to hire me … I want to help my family … and I was struggling with my brother’s death’.
86You commenced using cannabis at 10 or 12 years of age. You started smoking daily from 14 or 15 years of age and would consume more than a bag (28 grams) over the course of a week. You ceased cannabis use at 19 years of age.
87You began using ecstasy when you were aged about 17 or 18, using twice a month for two or three months. You used cocaine approximately three times a week from age 19 to 21. You smoked methamphetamine on a couple of occasions from age 18, estimating that you used 1.7 ‘points’ during a session at these times.
88You used Xanax ‘pretty often’ for a few months from age 20. You ceased using Xanax because you were having difficulty recalling your actions during the times you were using it. You reported having smoked heroin ‘two or three times’. You used inhaling gas bulbs (‘nangs’) daily for an undefined period during 2019 to 2020, and last used these in early 2022. You denied any intravenous drug use and any history of nicotine dependence.
Medical history
89Your medical history is most notable for the injuries you sustained secondary to the motor vehicle collision on 5 July 2022 the subject of the present proceedings. You reported to Ms Hall you were ‘really drunk’ and that your last memory before the crash was ‘walking towards the car’. You reportedly do not recall which seat you got into, you remember ‘waking up for a few seconds … seeing a lot of glass and blood everywhere’ and experiencing feelings of panic. You report your next recollection is being in hospital.
90Records from Ambulance Victoria indicate you were alert and confused on their arrival at 10:56 am. A Glasgow Coma Score was recorded as 14/15 and was consistent at all points. ‘Mild confusion, amnesia of events and poor short-term memory’ were all noted, as well as ‘smelled of alcohol’. Extrication from your vehicle took more than 30 minutes, after which you were conveyed to the RMH.
91RMH medical records indicate you underwent a CT brain scan on 5 July 2022 and again on 6 July 2022. Ms Hall opines that having regard to personal and collateral accounts of your injury, you sustained a complicated mild traumatic brain Injury.
92You sustained a series of other injuries resulting from the crash, comprising multiple facial fractures, right eye injury, non-displaced fracture of the right anterior 1st rib, back fractures at C7 to T2 and facial lacerations.
93Regarding other head injuries, you reported to Ms Hall you had experienced ‘a lot of head injuries’ in the context of other car crashes and assaults but had not attended hospital for intervention in relation to any of these.
94You reported experiencing ‘two or three’ seizure events whilst in custody, however when pressed about the details of these, you reflected that ‘they might have been panic attacks.’
Mental health
95Dr Vincenzi opines that you meet the DSM-5 criteria for a posttraumatic stress disorder diagnosis with dissociative symptoms (depersonalisation and derealisation). He notes that your developmental history was marked by exposure to the deaths of close relatives and upheaval, as you were forced to relocate multiple times as a refugee.
96Dr Vincenzi observes:
Mr Kur's mental health problems have persisted and been exacerbated by the realisation that he is responsible for his friend’s death and the social isolation externally imposed — and, to some extent, self-imposed — in custody. He described symptoms of depression, anxiety, and what appear to be panic attacks, leading to this social isolation and suicidal ideation.
97He reported you perceived your father’s choice to remain in Africa as a personal abandonment. This event, in addition to your perception that your mother favoured your older brother, left you feeling unwanted. Your self-worth was further impacted by bullying and learning difficulties at school. You attempted to cope with these feelings of abandonment and low self-worth by abusing substances from a very young age. In his opinion, ‘Substance abuse became an escape for him as he struggled with low mood and anxiety.’
98Dr Vincenzi opines the trauma you were exposed to from a young age led to the development of posttraumatic stress disorder. You experience the dissociative symptoms associated with this disorder. Consequently, your mind attempts to distance itself from reality as a means of coping. He notes you often appear distracted and can struggle to focus. Your preference for depressive substances also serves a similar function and you reported they tend to ‘block out’ uncomfortable or traumatic memories.
99Dr Vincenzi opines:
Mr Kur’s mental health issues around the time of the offending likely had an indirect impact on his offending behaviour via contributing toward his substance abuse, however, his PTSD does not appear to have directly contributed toward the offending. Mr Kur’ [sic] mental health issues have contributed toward his time in prison weighing more heavily on him than what it would if he did not meet criteria for a diagnosis of PTSD. His mood has been very low while in custody and he has felt isolated from his family and from people who can act as supports for him. (emphasis supplied)
100So far as your understanding that consumption of alcohol was the major contributing factor to the offending conduct, Dr Vincenzi observes:
He appeared to have some insight into his offending behaviour, viewing it as primarily related to his alcohol use (he stated, ‘I’ve never been that drunk before’). He denied being able to recall any significant elements of the offending after entering the car and before waking up to seeing paramedics.
101Dr Vincenzi notes:
He stated that he has never been that intoxicated before or after that day. According to Mr Kur, he did not realise the risks involved with driving in that state, due to his judgement being affected by alcohol. He insisted he would have understood the seriousness of driving in such a state if he were not intoxicated. Upon engaging in a discussion, he appeared to understand that his poor judgement while intoxicated meant that it was his responsibility not to become that intoxicated and, thereby, expose himself and other people to that risk.
102In her report, Dr Harridge diagnoses you as suffering three ‘clinical disorders’ namely, posttraumatic stress disorder, stimulant use disorder (amphetamine type substance), in early remission in a controlled environment and alcohol use disorder, in early remission in a controlled environment. She also posits a provisional diagnosis for major depressive disorder (based on the ‘brief tool’ – PHQ-9) and a provisional diagnosis for generalised anxiety disorder (based on the ‘brief measure’ – GAD-7).
103In her report, Ms Hall echoed Dr Vincenzi’s summary of your tumultuous upbringing involving your exposure to conflict in Sudan and Egypt, the perceived abandonment by your father and the trauma of the death of your brother. Ms Hall opines:
This all occurred in the context of instability in living arrangements and persistent difficulties assimilating to the Australian culture. Symptoms have then been further exacerbated by the events occurring on 5 July 2022. On this background, and with consideration to his self-reports of ongoing trauma-related symptoms (e.g., regular nightmares), I agree with Dr Harridge’s opinion that Mr Kur meets DSM-5-TR criteria for Post-Traumatic Stress Disorder (PTSD).
104During your assessment with Ms Hall, you expressed the belief your symptoms of depression commenced shortly after the death of your bother in 2015, on a background of pre-existing hardship and trauma. She notes your risk taking behaviours appear to have escalated around this time. She opines your mental health difficulties have persisted for at least seven years, and her impression is that you would satisfy DSM-5-TR criteria for a diagnosis of Major Depressive Disorder.
105Ms Hall notes your symptoms of depression are likely to have intensified your maladaptive self-coping strategies, compromised your judgement and impacted your ability to engage in future-oriented thinking. Her ‘impression’ is that your mental health and coping-related difficulties more broadly are ‘likely’ to have played a substantial role in your offending behaviour.
106Ms Hall notes your alcohol use disorder appears to have played a clear role in the current offending, as well as contributing to the perpetuation and exacerbation of your mental health issues.
107So far as your intellectual functioning is concerned, during extensive testing conducted by Ms Hall you performed in the borderline range on an overall measure of your intellectual ability and you obtained a full-scale IQ of 74 (4th percentile). I note your reading skills were assessed at a Year 5 primary school level. Nonetheless, Ms Hall opines ‘there was limited indication [you] suffer from impairment in areas of adaptive function.’ Consequently, she considers you do not meet DSM-5-TR criteria for intellectual development disorder (intellectual disability).
108Although you do not meet criteria for an intellectual developmental disorder, Ms Hall opines your cognitive profile reveals longstanding cognitive weaknesses, particularly in language-based skills, with your overall intellectual functioning being poorer than 96% of young adults your age in the wider community. She notes your results indicate you have longstanding difficulties with comprehension, expressive language, verbal reasoning and judgement.
109Ms Hall opines you appear to have ‘some understanding’ of the concepts of right and wrong, however your ability to comprehend some of the consequences of your actions and behaviours can be considered ‘questionable’ given your cognitive weaknesses. She considers you have reduced ability to engage in consequential thinking due to your cognitive limitations, and consequently your ability to make reasoned and appropriate judgements in some situations is likely to be deficient. She observes your ability to control your emotions and behaviour would be even further impaired at times when you are substance affected or adversely influenced by others. Ms Hall opines these impairments would have been evident at the time of the offending, and you will experience them into the future.
110Ms Hall notes you sustained a head injury at the time of the offending secondary to the collision, with evidence on medical imaging of skull fractures and intracranial lesions in the right tentorial area and left superior frontal gyrus. On the basis of current international classification guidelines, personal and collateral accounts of the injury, as well as information obtained from medical records, Ms Hall concluded you likely experienced a complicated mild traumatic brain injury (TBI) as a result of the collision.
111Regarding your anticipated recovery trajectory, Ms Hall notes that individuals who sustain a complicated mild TBI may experience ongoing residual cognitive deficits. She considers you are unlikely to experience long-term disability, however, she notes some aspects of your aetiology may indicate residual cognitive deficits associated with your TBI. She opines the severity and permanency of these deficits remain equivocal at the present time and there is presently insufficient evidence to suggest you present with a permanent acquired brain injury resulting in significant disability.
Risk assessment
112Dr Vincenzi conducted a risk assessment of you using the Level of Service/Risk, Needs, Responsivity (LS/RNR) tool and assessed your risk of general recidivism as falling in the ‘high risk/need category’.[53] Dr Vincenzi observed your profile indicates elevations in the areas of education and employment, leisure and recreation, and alcohol and drug.
[53] Vincenzi Report p 4 [19].
113Ms Hall opines you have a moderate risk of reoffending in the longer-term. She considers your factors for recidivism include your persistent mental health issues, vulnerability to being misled by others, prior breaches of community-based orders and your executive dysfunction and difficulty with consequential thinking which means you have a tendency to engage in erratic behaviour without forethought for consequences.
114Dr Harridge opines your risk of reoffending is generally considered moderate.
115In light of two experienced practitioners assessing your level of risk/needs as being ‘moderate’, I will sentence you on that basis. Considering your offending conduct, prior criminal history, level of risk/needs and personal circumstances, I consider I must give significant weight to specific deterrence and protection of the community in sentencing you for these offences.
Prior criminal history and driving record
116You have a relatively limited ‘formal’ prior criminal history dating back to 19 February 2019 where you were sentenced in the Werribee Children’s Court to a good behaviour bond, without conviction, for ten months on one charge of possess cannabis, one charge of unlicensed driving and one charge of use unregistered motor vehicle on a highway.
117On 15 October 2019, you were again sentenced in the Werribee Children’s Court to another good behaviour bond for six months, without conviction, for one charge of theft.
118On 16 January 2020, you were sentenced for the first time as an adult in the Werribee Magistrates’ Court to an adjourned undertaking for 18 months, without conviction, on one charge of theft, one charge of obtain property by deception and one charge of failing to answer bail.
119On 5 January 2022, you were convicted and sentenced in the Toowoomba Magistrates’ Court in Queensland to a total effective sentence of nine months’ imprisonment which was suspended for an operational period of 12 months, on one charge of unlawful use of motor vehicle and one charge of fraud – dishonestly obtain property from another value of or over $30,000.00 but less than $100,000.00.
120In written submissions, your counsel argued you do not have any criminal priors relating to speeding or driving in a dangerous or reckless manner. In order to rebut this submission the prosecution tendered a certificate under s 84(a) of the Road Safety Act 1986 which records a traffic infringement notice issued to you on 7 July 2021 for exceeding the speed limit by 30km/h or more but less than 35km/h.[54]
[54] Ex P7.
121Without objection, the prosecutor also tendered a VicRoads document headed ‘Complete Demerit Point Extract’ dated 2 June 2023 which additionally shows that between 4 October 2020 and 9 October 2021 you incurred a total of 12 demerit points for six offences of exceeding the speed limit.[55]
[55] Ex P8.
122I take your driving record as disclosed in these two documents only into account as part of my assessment of your character as a driver and not as forming part of your prior criminal history. Clearly, you have an appalling driving record for one so young and inexperienced.
Character references
123Character references from your older sister, cousin and members of your community were tendered at the plea hearing.[56] I have had regard to these references which all speak highly of your general good character.
[56] Ex D3.
124Your sister, Ms Achun Kur, writes you were a ‘sweet and humble’ child. She describes how your deceased brother was like a father to you, and that after his death you were traumatised and depressed. She writes you started hanging around with the wrong group of friends in 2017 and began making bad decisions, resulting in you getting into trouble. She describes the support you have given to your family and how you cared for your nieces and nephews after your brother died. She believes you have isolated yourself from your friends while in custody because you don’t want to annoy them. You asked her to tell Mr Deng’s family you are very sorry and that you will never forgive yourself.
125Your cousin, Ms Bec Maloth, writes you are incredibly remorseful for the situation you put yourself and your friends in. She writes it is not in your character to hurt anyone and that you would never do anything to put yourself or others in harm’s way. She considers your offending is out of character, and she describes you as a loving, caring, supportive and kind cousin, friend, brother, uncle and son.
126Mr Aidan Stephenson, whom you know through the Sudanese Australian Integrated Learning program, writes that he has known you since you attended the program from 2007 to 2013. He observed you to be a kind, quiet and intelligent young man. He writes that you socialised well with your peers and were a very well-adjusted person. He considers you are a very bright and caring individual who made the most of challenging circumstances faced by a young refugee. He is also aware that the loss of your older brother had a significant impact on you.
127Mr Riak Kiir, whom you know through the Ngok Lual Yak Community Association, writes that you were well known for your quick integration in the new school community and were a respectful boy. He describes you as participating in activities as a teenager and as being a very active member of the association.
128Mr Kiir writes that you were very close to your older brother, and appeared shocked and unfocused on life after his death. He states you were living a traumatised life without your father and older brother and that you have cared for your older brother’s family. He describes you as having an abundance of positive qualities and he believes you will learn a great lesson from this experience.
129Ms Shadia Ahmed, whom you know through the South Sudanese community, writes that the present charges came as a shock to her as she knows you as an astute, personable young man. She describes you as having been an active young member of your South Sudanese community and the wider Christian community. You participated in sports events and worked closely with faith leaders. She considers you showed immense regret and a desire to turn your life around.
130Mr Adut Malleth, whom you also know through your community, writes that you have shown remorse and are sorry for what happened. The situation has caused you distress owing to the close relationship you had with Mr Deng. He writes you are very caring and always feel obliged to help your loved ones. He also describes how the death of your older brother caused you to turn to alcohol and drugs. He believes your brother’s death traumatised you and you did not deal with it in a healthy way.
131Mr Malleth describes you as caring, thoughtful and kind hearted, and always putting your family first. He writes your offending is out of character as you would not want to put people in danger.
Mitigating circumstances
Timing of the guilty plea, remorse, and custodial hardship
132You pleaded guilty to the present charges at a committal mention in the Magistrates’ Court. I accept your pleas are entered at the earliest opportunity.
133Your pleas have utilitarian benefit, particularly in the COVID-19 environment.[57] They also indicate an acceptance by you of responsibility for your offending conduct and a willingness to facilitate the course of justice. Importantly, you have saved the witnesses the trauma of having to given evidence in court.
[57] Worboyes v The Queen (2021) 96 MVR 344, 356–7 [22], [34]–[39], [2021] VSCA 169 (Priest, Kaye and T Forrest JJA); Chenhall v The Queen [2021] VSCA 175 [29]–[30], [33]–[35] (Priest, Kaye and T Forrest JJA); Tran v The Queen [2021] VSCA 278 [59] (Kaye and T Forrest JJA); Rossi v The Queen [2021] VSCA 296 [13]–[16], [19] (Priest and T Forrest JJA).
134You have been remanded in custody since 5 July 2022. You spent the first few weeks in custody in hospital because of the injuries you sustained in the collision. Much of the remainder of your time in custody has been spent in COVID-19 conditions. This means the time you have already spent in custody has been more onerous on you than it otherwise would have been.[58]
[58] See e.g., The Queen v Madex [2020] VSC 145 [52] (Incerti J); R v Kelso [2020] NSWDC 157 [45] (Norrish QC DCJ); Brown (aka Davis) v The Queen [2020] VSCA 60 [48] (Priest and Weinberg JJA); Astbury v The Queen (No 2) [2020] VSCA 158 [33] (Kaye, Niall and Weinberg JJA).
135Your counsel submitted that the injuries you suffered as a result of the collision may be considered as a form of extra curial punishment. It is well established that a physical injury sustained by an offender during the course of an offence may serve to mitigate the sentence imposed. As Redlich JA opined in DPP v King:[59]
Justice tempered by compassion required that the severe and permanent injuries sustained by the [offender] in this criminal act should ‘be regarded as some punishment for that criminality’. The injuries thus bear upon the weight to be given to both general and specific deterrence.[60]
[59] (2008) 187 A Crim R 219.
[60] Ibid 230 [35].
136The prosecutor conceded that the injuries you sustained during the collision are a matter in mitigation. However, at the further plea hearing, she submitted your case is distinguishable from King on the basis that the injuries you sustained are less severe and that this has allowed you to positively engage in a number of programs while in custody. In written submissions the prosecutor also submitted that given the importance of general deterrence and denunciation for this offending, little weight should be given to your injuries.
137I accept your injuries are a form of extra curial punishment. You sustained fractures to your spine, neck, facial injuries and a resulting complicated TBI. I do however agree with the prosecutor’s submission that your injuries are not as severe as those sustained by the offender in King, and your TBI may completely resolve with time. I note Ms Hall’s opinion that there is presently insufficient evidence to suggest you present with a permanent acquired brain injury resulting in significant disability. Accordingly, I will moderate the weight I would otherwise have given to general and specific deterrence to a limited extent.
138I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you. However, I must decide whether you demonstrate true contrition and remorse for your offending conduct.
139In accordance with the decision in Barbaro v The Queen,[61] you must satisfy me you demonstrate ‘genuine penitence and contrition and a desire to atone’.[62] True remorse is a question of fact and is determined on the balance of probabilities.[63] In many cases the most compelling evidence of remorse comes from offender’s testimony.[64]
[61] (2012) 226 A Crim R 354 (‘Barbaro’).
[62] Ibid 365 [38] (Maxwell P, Harper JA and T Forrest AJA).
[63] R v Cooper (1998) 103 A Crim R 51, 55 (Winneke P, Tadgell JA agreeing); R v Gillick [2000] VSCA 127 [20] (Callaway JA, Chernov JA agreeing).
[64] Barbaro 365–66 [38], [40]; Bonacci v The Queen (2012) 224 A Crim R 194, 202 [44] (Neave, Mandie and Harper JJA).
140In Phillips v The Queen[65] Harper JA observed that ‘genuine remorse’:
indicates realistic prospects of rehabilitation and a reduced need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy – in the form of a very substantial reduction in what would otherwise be an appropriate sentence – is very likely due.[66]
[65] (2012) 37 VR 594.
[66] 621 [101].
141Ms Hall opines you expressed genuine remorse about the outcome of your offending, and that during your assessment you said, ‘I feel very bad … like a bad person. I hurt a lot of people … I’m not happy about all the pain and trouble I caused to all the families.’ Dr Harridge opines you expressed remorse and grief at your offending and did not seek to minimise your role nor excuse your behaviour.
142I have had regard to the letter you wrote to the Court[67] which I consider expresses your genuine and heart-felt emotions. You write you are remorseful for the pain, damage, hurt and the ‘void’ you have created in the lives of Mr Deng’s family and of those involved in the collision. You write that the death of your close friend has put you in a ‘dark place mentally’ and that the collision replays in your head every day. You recognise that you have not dealt with your past trauma and that drugs and alcohol have exacerbated your mental health. You also write that over the past year you have developed a closer relationship with God.
[67] Ex D7.
143On the basis of these expressed sentiments and the testimony of your character referees, I find you are genuinely remorseful for your offending conduct.
Application of Verdins principles
144Your counsel submitted Verdins principles 5, and to a lesser extent, principles 1 to 4 are engaged in your case.[68]
[68] See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’).
145Verdins principle 2 cannot possibly apply in this case. That principle provides: ‘The condition could have a bearing on the kind of sentence that [is] imposed and the conditions in which it [is] to be served.’ As your counsel accepted, it is beyond augment that the only appropriate sentences on Charges 1 and 2 must be sentences of imprisonment with non-parole period being fixed.
146Your counsel based the submission in relation to principle 5 on Dr Harridge’s diagnosis of post-traumatic stress disorder and her opinion that imprisonment:
Would likely weigh more heavily on Mr Kur than a person without his current mental health vulnerabilities, in particular, the ongoing symptoms he experiences associated with PTSD.
147Moreover, Dr Vincenzi in his report opines:
Mr Kur’[s] mental health issues have contributed toward his time in prison weighing more heavily on him than what it would if he did not meet criteria for a diagnosis of PTSD.
148Accordingly, I accept Verdins principle 5 is engaged in your case by reason of your level of intellectual functioning and mental health conditions. The prosecutor fairly accepted this to be the case.
149So far as Verdins principles 1, 3 and 4 are concerned, in oral submissions at the further plea hearing your counsel relied on Dr Vincenzi’s opinion, quoted above,[69] to the effect your mental health problems around the time of the offending likely had an indirect impact on your offending behaviour by contributing to your substance abuse. However, Dr Vincenzi also said your PTSD does not appear to have directly contributed towards the offending. Your counsel argued an indirect connection between an offender’s condition and the commission of an offence may constitute a ‘realistic connection’ between the condition and the offending conduct sufficient to engage Verdin’s principles 1, 3 and 4.
[69] Above at [99].
150Your counsel did not seek to engage the principles expressed by the high Court of Australia in Muldrock v The Queen.[70]
[70] (2011) 244 CLR 120.
151It is also noteworthy that Ms Hall opines:
On the whole, my impression is that Mr Kur’s mental health and coping-related difficulties more broadly are likely to have played a substantial role in the offending behaviour in 2022. (emphasis supplied)
152Because Ms Hall’s opinion is based only on an impressionistic likelihood and is not based on any rigorous analysis of the contributing factors present at the time you chose to drive, I prefer Dr Vincenzi’s opinion regarding the impact of your mental conditions on your offending behaviour.
153Dr Harridge considers that it appears your untreated post-traumatic stress disorder and associated mood symptoms, emotional dysregulation and impaired decision making associated with alcohol use, likely contributed to your engagement in the offending. However, once again, she provides no rigorous analysis of how these various factors interrelated or the extent to which each contributed to your decision to drive whilst severely intoxicated.
154In arguing against the application of Verdin’s principles 1, 3 and 4, the prosecutor relied on the approach adopted by the Victorian Court of Appeal in Rakatau v The Queen.[71] In Rakatau, the Court held that because the onus was on the applicant to establish, on the balance of probabilities, that his cognitive deficits contributed to the offending in such a way as to render him less morally blameworthy for the offending conduct than a person who did not suffer from those deficits, he had to show there was a ‘realistic connection’ between the two.
[71] (2021) 95 MVR 347 (Maxwell P and McLeish JA).
155The Court held the applicant had failed to do so because first, there was ‘compelling evidence’ that the applicant’s ‘very significant state of intoxication’ was the causal factor in the offending and, secondly, ‘the neuropsychological evidence simply did not establish a connection between his cognitive deficits and his decision-making about whether to drive, and how to drive, on the evening in question.’ The applicant’s level of intoxication being a causal factor in the offending and the lack of neuropsychological evidence to establish a connection between his cognitive deficits and his decision-making about whether to drive, resulted in the applicant being unable to show a realistic connection between his cognitive deficits contributing to the offending.[72]
[72] See also Thomas v The Queen [2021] VSCA 97 [31] (Maxwell P, McLeish and Sifris JJA); Carroll v The Queen [2011] VSCA 150 [17] (Maxwell P, Buchanan JA agreeing); Johnston v The Queen [2013] VSCA 362 [14]–[15] (Redlich JA, Priest JA and Robson AJA agreeing).
156The present case is closely similar. It was your ‘very significant state of intoxication’, your excessive speed and the highly erratic manner in which you chose to drive which were the causal factors in your offending. You yourself recognised this when you told Dr Vincenzi, in effect, that you realised your offending behaviour was ‘primarily related to [your] alcohol use’ stating ‘I’ve never been that drunk before’. And as you told Ms Hall, you were ‘really drunk’.
157In Johnston v The Queen,[73] Redlich JA (with whom Priest JA and Robson AJA agreed) explained the correct approach to the resolution of an issue such as the one raised here when his Honour opined:
For a sentencing judge to be satisfied that an offender was affected by a particular mental condition so as to reduce his moral culpability, there must be a ‘realistic connection’ between the mental condition and the commission of an offence. It must have ‘caused or contributed’ to the offending or have been ‘causally linked’ to it. The argument raised here — that the appellant’s moral culpability should be reduced on the basis of an indirect causal link between the offence, his drug addiction, and an underlying mental disorder — must be rejected.
Where offending occurs in circumstances where the offender was affected by drugs or alcohol, his substance abuse is not generally to be regarded as a factor in mitigation. Circumstances must be quite exceptional before the effects of drugs or alcohol at the time of offending can mitigate the offender’s moral culpability. The underlying reason sometimes advanced is that where a crime is the predictable consequence of a rational choice to take the drug, that choice establishes moral responsibility for the condition at the time of the offence. Where a person’s mental state is affected by voluntary drug-taking, it will only constitute a mitigating factor in the rare circumstance where it is established that the offender did not have any foreknowledge of the mental state that would be induced by the taking of drugs. Where an offender suffers from a mental disorder, the disorder is not to be treated as a mitigating factor because it explains the offender’s recourse to drugs.[74]
[73] [2013] VSCA 362.
[74] Ibid [14]–[15]. See also R v Shafik-Eid [2009] VSCA 217 [24]–[27] (Lasry AJA, Nettle and Redlich JJA agreeing); Wright v The Queen (2015) 257 A Crim R 261, 271–274 [41]–[53] (Maxwell P, Redlich and Osborn JJA) (‘Wright’).
158Your counsel did not suggest any exceptional circumstances are present in your case which would apply to reduce your moral culpability in light of your very high level of intoxication at the time of committing the present offences.
159It beggars belief that any adult member of this community could be unaware of the obvious and serious risks involved in deciding to drive a motor vehicle when one is ‘really drunk,’ as you admit you were on this occasion.
160However, I do not need to speculate as to what your state of mind might have been as you approached the driver’s door of your vehicle on that fateful day, because you have pleaded guilty to an indictment which charges that you drove the motor vehicle ‘recklessly’, that is to say, you admit by your plea of guilty to Charge 1 that you ‘consciously and unjustifiably disregard[ed] a substantial risk that the death of another person … may result from your driving’.[75] Likewise, Charge 2, a charge of recklessly engaging in conduct that placed others in danger of death, requires you foresaw that an appreciable risk of death was a probable consequence of your conduct. That is, you knew that your actions would probably create a real risk of death.[76]
[75] CA s 318(2)(a).
[76] See R v Campbell [1997] 2 VR 585, 586 (Phillips CJ), 592–3 (Hayne JA and Crockett AJA); DPP Reference No 1 of 2019 (2021) 274 CLR 177, 202 [59] (Gageler, Gordon and Steward JJ, Edelman J agreeing).
161These admitted states of mind are sufficient to refute the application of Verdin’s principle 2, and principles 3 and 4, so far as they relate to the effect of your conditions on your mental capacity at the time of the offending. Neither your level of intellectual functioning nor your mental conditions contributed to the offending in such a way as to render you less blameworthy or morally culpable than a person who did not suffer from those conditions.[77] Nor do any of these conditions operate to make you an unsuitable vehicle for the application of the principles of general deterrence or require any moderation in the application of the principle of specific deterrence.
[77] See Wright 271 [41].
162Regarding Verdins principles 3 and 4, so far as they relate to the effect of your condition on your mental capacity at the time of sentence is concerned, I am satisfied that your level of intellectual functioning and your mental conditions are not of sufficient severity to warrant any moderation in the weight I give to general deterrence or specific deterrence in sentencing you for the present offences.
Rehabilitation
163Material was placed before me regarding the efforts you have made towards your rehabilitation whilst you have been in custody on remand for the present offences. You have successfully completed a twenty-four hour drug and alcohol program, three-hour program on drug and alcohol and communication and a three-hour program on drug and alcohol and anger reduction. You have also worked in the horticulture unit whilst in custody at Marngoneet Prison.
164Moreover, random urine drug screens conducted whilst you have been on remand covering the period 17 August 2022 to 9 March 2023 detected no illicit substances or alcohol.
165In am satisfied that you have some insight into your offending. While Ms Hall considers you have limited insight regarding your poor mental health as a precipitant for your alcohol use and, consequently, your offending behaviour, Dr Harridge opines you demonstrate reasonable insight into your substance use and mental health and the association between these and your present and past offending. Dr Vincenzi opines you have some insight into your offending, viewing it as primarily related to your alcohol use.
166You expressed to Ms Hall that upon release from custody, you plan to live with your family until you obtain employment and to maintain significantly reduced alcohol use. Clearly, your post release plans are on the basis you will remain in this country, which is unlikely.
167I am satisfied you are developing insight into the factors contributing to your offending behaviour. However, I can only assess your prospects of rehabilitation as guarded at this time. Much will depend on your ability to remain drug and alcohol free upon your eventual release from custody.
Youthfulness
168At 22 years of age – you were 21 years old at the time of the offending – you are a ‘youthful offender’. Accordingly, rehabilitation is usually a significant sentencing consideration in cases such as this.[78] For youthful offenders, rehabilitation is usually far more important than general deterrence.[79] But this is only a general principle and does not apply automatically. The weight to be given to an offender’s youth and their rehabilitation decreases as the seriousness of the offence for which they are to be sentenced increases. In Lennon v R,[80] a case involving a 22 year-old man convicted of two charges of dangerous driving causing serious injury and one charge of reckless conduct endangering person, the Victorian Court of Appeal opined:
For offences of this kind, a sentence involving immediate custody is generally to be expected. The judge was also right to emphasise the need for general deterrence in sentencing for this kind of offence. Offences of this kind are frequently committed by young offenders, with otherwise good character, who have no criminal history and good prospects for rehabilitation. The applicant meets that description. It is because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight.[81]
[78] See R v Mills [1998] 4 VR 235 (‘Mills’); Azzopardi v The Queen (2011) 35 VR 43 (‘Azzopardi’).
[79] Mills 241 (Batt JA, Phillips CJ and Charges JA agreeing); Balshaw v The Queen [2021] VSCA 78 [54]–[57] (Kaye and T Forrest JJA).
[80] (2017) 80 MVR 71.
[81] Ibid 83 [49] (Weinberg and Santamaria JJA and Kidd AJA).
169Moreover, in Director of Public Prosecutions v Hill[82] the same court observed:
Unfortunately, the offence of culpable driving is one which is frequently committed by young drivers. If general deterrence is to be meaningful, it must be directed towards this class of offenders and cannot be regarded as irrelevant because of their youth.[83]
[82] (2012) 223 A Crim R 285.
[83] Ibid 299 [51] (Neave and Osborn JJA and King AJA).
170The Victorian Court of Appeal has made clear that deterrence must usually be given primacy in sentencing for culpable driving causing death, and that correspondingly the mitigatory effect of youth does not ordinarily outweigh the emphasis which must be placed on deterrence and denunciation.[84] However, that is not to say there is no scope for leniency owing to your youth. As Callaway JA observed in R v Sherpa:[85]
General deterrence must usually be emphasised in the punishment of this offence and there is correspondingly less scope than in the case of some other crimes for leniency on account of an offender's youth. That does not mean that there is no scope for youth and concomitant prospects of rehabilitation to influence the disposition. Even if an immediate custodial sentence is warranted, as it almost always is, those factors may still have a bearing on the kind of sentence to be imposed (in particular the choice between imprisonment and youth training where the latter is a realistic option), the length of the sentence and the time that must necessarily be served. But it is not to be forgotten that a life has been lost.[86]
[84] Ibid.
[85] [2001] VSCA 145.
[86] Ibid [11] (Callaway JA, Ormiston JA and O’Bryan AJA agreeing).
171I will apply these principles in sentencing you for the present offences. Your youthfulness remains a mitigating factor but I must, nonetheless, give significant weigh to just punishment, general deterrence and denunciation in my sentencing calculus.
172I accept this is your first time in custody and your young age and immaturity make you more vulnerable in the prison environment. As Dr Harridge opined in her report ‘he is at greater risk of harm and may be more vulnerable to negative influences through the individuals with whom he is placed in custody.’
Socially disadvantaged background
173Your counsel submitted, and the prosecutor fairly conceded, because you come from a socially disadvantaged background and suffered significant childhood trauma and deprivation, the principles adumbrated by the High Court of Australia in Bugmy v The Queen[87] are engaged in this case. I accept they are.
[87] (2013) 249 CLR 571 (‘Bugmy’).
174In Marrah v The Queen (‘Marrah’),[88] the Victorian Court of Appeal confirmed the relevance of a disadvantaged background as follows:
Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences. … Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.[89]
[88] [2014] VSCA 119 (‘Marrah’).
[89] Marrah [16] (Redlich and Tate JJA) citing Bugmy 586–9 [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
175Importantly, the Court held in Marrah that when sentencing an offender, the court should not consider that an ‘offender’s social disadvantage has the same mitigatory relevance for all of the purposes of punishment’.[90] Social disadvantage does not ‘diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending’.[91]
[90] Ibid.
[91] Ibid.
176When discussing the Bugmy principle in Newton v The King (‘Newton’),[92] the Victorian Court of Appeal said:
Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[93]
[92] [2023] VSCA 22 (‘Newton’).
[93] Newton [36]–[37] (Beach and Macaulay JJA).
177That Court further observed in DPP v Herrmann:[94]
The significance of the ‘general’ approach enunciated in Bugmy is that the relevance of deprivation to sentencing does not depend on proof of such a nexus. ... ‘the impact of disadvantage is complex, multilayered, non-linear and not easily “diagnosed” or measured’. The High Court’s recognition that serious childhood deprivation is likely to make an offender less morally culpable than ‘an offender whose formative years were not marred in that way’ reflects the principle of equal justice.[95]
[94] [2021] VSCA 160.
[95] Ibid [45] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA). See also Jawahiri v The Queen [2021] VSCA 287 [73(s)] (Priest and T Forrest JJA).
178In applying the Bugmy principle, I do not need to find the disadvantage you suffered was ‘profound’. In Sabbatucci v The Queen (‘Sabbatucci’),[96] the Victorian Court of Appeal said that the sentencer must evaluate whether the disadvantage warrants the offender being viewed as ‘less morally blameworthy’ than someone who commits the same offence but does not have the same disadvantaged or deprived background.[97] According to Sabbatucci, coming to this conclusion does not depend on being satisfied that the circumstances establish ‘profound disadvantage’ or ‘profound deprivation’ because in every case, ‘it will be a question of fact and degree’.[98]
[96] [2021] VSCA 340.
[97] Ibid [22] (Maxwell P and Emerton JJA).
[98] Ibid.
179I do not doubt that your formative years were marked by exposure to violence, conflict and personal trauma. You witnessed the death of your cousin after your family fled to Egypt, a country you described as dangerous and where you reported seeing ‘dead people on the floor’. Soon after this event, you and your family immigrated to Australia and experienced the unenviable challenges involved with assimilation, periods of homelessness and financial instability. Your older brother died in 2015 in your family home, this occurring in the context of your pre-existing trauma.
180It is clear the violence, conflict and death you experienced and witnessed as a child led to you developing a number of mental health conditions and maladaptive coping mechanisms, and has contributed to the circumstances surrounding your commission of the present offences. Moreover, your childhood deprivation, being somewhat causative of the present offending, means the level of your moral culpability is somewhat reduced, albeit it remains reasonably high. Your mental health conditions are inextricably linked with your substance abuse issues. However, it is unescapable that you made the decision to drive whilst being highly intoxicated knowing the devastating consequences that could and did result.
181While these personal factors require me to moderate the weight I would otherwise have given to general deterrence, denunciation, and the punitive aspects of the sentences I impose on you, these complex factors at the same time increase the weight I must give to specific deterrence and protection of the community in sentencing you. Because of your recourse to drugs and alcohol to ‘block out’ your symptoms, your limited (albeit developing) insight into your offending and your moderate risk of general reoffending, I must give significant weight to specific deterrence and protection of the community in sentencing you.
182Moreover, I can only assess your prospects of rehabilitation as being guarded. Much will depend on the support you receive upon your release from custody, your willingness to engage in therapeutic measures and your ability to remain free from alcohol and illicit substances and to avoid the detrimental influence of anti-social peers.
Risk of deportation
183You are not an Australian citizen. In written submissions, your counsel submitted that the burden of imprisonment is more onerous in your case owing to the prospect of you being deported following sentence.
184Without speculating as to the likelihood you will be deported, I accept the uncertainty associated with the prospect of deportation once you are sentenced to imprisonment for a term of 12 months or more, as you will be, may well mean you will serve your sentence more onerously. I take this into account in your favour.
185You have resided in Australia since you were four or five years old. You have strong and enduring family ties to Australia. By reason of committing these offences, you have lost the opportunity to settle in Australia and make a life for yourself here. The authorities accept this is a form of extra-curial punishment, which I also take into account in your favour in sentencing you for this offending.[99]
[99] Guden v The Queen (2010) 28 VR 288; Magedi v The Queen [2019] VSCA 102 [47], [55]–[60] (Maxwell P and Weinberg JA); Nguyen v The Queen (2016) 261 A Crim R 1, 15–16 [35] ((Redlich JA, Whelan JA agreeing); Allouch v The Queen [2018] VSCA 244 [39] (Beach and Weinberg JJA); Loftus v The Queen [2019] VSCA 24 [65], [79] (Whelan and Niall JJA).
Application of sentencing principles
186I have had regard to current sentencing practice in relation to the present offences as informed by the decisions of the High Court of Australia in R v Kilic[100] and DPP (Vic) v Dalgliesh (a Pseudonym)[101] and the Victorian Court of Appeal decision in DPP v Zhuang[102] and DPP (Cth) v Thomas.[103] I am precluded by s 5B(2)(b) of the Sentencing Act 1991 from taking into account sentencing practices which predate the introduction of the standard sentencing regime on 1 February 2018.[104]
[100] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[101] (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
[102] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[[25] (Priest and Kyrou JJA) (‘Williams’).
[103] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
[104] Brown 491 [110].
187While current sentencing practice under the standard sentence regime is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing just sentences in your case.[105]
[105] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
188Moreover, it is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain any assistance from so-called ‘comparable cases’, I have sought to do so in your case.
189Culpable driving causing death is a ‘Category 2’ offence as defined in the Sentencing Act1991.[106] Accordingly, a court must impose a sentence of imprisonment to be immediately served unless the exceptions specified in s 5(2H) of the Sentencing Act apply. Your counsel did not submit any of the exceptions apply in your case.
[106] See SA s 3(1) definition of ‘category 2 offence’ paragraph (ea).
190The basic purposes for which a court may impose a sentence are just punishment, deterrence – both specific and general, rehabilitation, denunciation, and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the impact of the offences on the victims, and your personal circumstances.
191I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society, albeit most likely not the Australian society.
192Denunciation, general deterrence and just punishment, sensibly moderated by reason of the matters I have previously referred to, must be given real weight in sentencing you for these offences. Moreover, I consider some weight needs to be given to specific deterrence and protection of the community given the nature of your offending conduct, your prior criminal and related matters and your risk of reoffending. Finally, I assess your prospects for rehabilitation as being guarded.
193I accept totality is an important consideration in sentencing you given the overlapping nature of the offences. I must also avoid the imposition of a crushing sentence on you. These considerations will be particularly reflected in my orders for cumulation.
Stand up Mr Kur
On Charge 1, culpable driving causing the death of Mr Deng, you are convicted and sentenced to imprisonment for eight years.
On Charge 2, conduct endangering life, you are convicted and sentenced to imprisonment for four years and six months.
On Summary Charge 7, commit an indictable offence whilst on bail you are convicted and sentenced to imprisonment for seven days.
I am required to state the reasons for imposing the sentence I have on Charge 1.[107] They are contained in these reasons for sentence. I am also required to explain how that sentence relates to the standard sentence of eight years’ imprisonment.[108] The sentence imposed on Charge 1 is equal to the standard sentence for that offence.
[107] See SA s 5B(4)(a).
[108] See SA s 5B(5).
Recognising these offences were committing during the one episode of criminal offending, and in order to give effect to the totality principle and avoid imposing a crushing sentence on you, among other considerations, and despite the operation of s 16(3C) of the Sentencing Act 1991, I order eighteen months of the sentence imposed on Charge 2 be served cumulatively with the sentence imposed on Charge 1. The sentence imposed on Summary Charge 7 is to be served wholly concurrently with the other sentences. This makes a total effective sentence of 9 years’ and six months’ imprisonment.
I order you serve a minimum of six years’ imprisonment before becoming eligible for parole. This minimum term is slightly more than the 60 per cent ratio provided for in the Sentencing Act for a standard offence of this length.[109] I do not consider it is in the interests of justice to impose a lesser non-parole period in your case considering the seriousness of your offending conduct, your level of moral culpability, your personal circumstances and the mitigating factors present in your case.
[109] See SA s 11A(4)(c).
I declare 535 days[110] (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made, and its details, be noted in the records of the court.
[110] This includes two days before the prisoner’s formal arrest when he was in hospital under guard and handcuffed to his bed.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have sentenced you to a total effective sentence of eleven years’ imprisonment with a non-parole period of eight years.
Pursuant to s 89 of the Sentencing Act 1991, as you have been convicted of an offence against s 318(1) of the Crimes Act 1958, any licences or permits you hold under the Road Safety Act 1986 are cancelled, and you are disqualified from obtaining any further ones for a period of seven years commencing from today.
0
68
0