Director of Public Prosecutions v Lewis
[2019] VCC 1174
•31 July 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-19-00272
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA LEWIS |
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2019 (plea) | |
DATE OF SENTENCE: | 31 July 2019 | |
CASE MAY BE CITED AS: | DPP v Lewis | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1174 | |
REASONS FOR SENTENCE
Catchwords: CRIMINAL LAW - Sentence – Dangerous driving causing death – 18 year old offender subject to a learner’s permit – Driving without an experienced driver and at excessive speed on a gravel road surface – Loss of control following braking and oversteering – 15 year old front seat passenger sustained fatal head injuries after vehicle left roadway and collided with a large tree – Victim impact statements from the members of the victim’s immediate and extended family revealed the profound and wide-ranging consequences of the offending - Early plea by a youthful offender who had developed a serious and debilitating post-traumatic disorder after killing his girlfriend –– Principles 5 and 6 of Verdins case engaged – Sentenced to a period of 4 years’ detention in a youth justice centre.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr K Doyle | Office of Public Prosecutions |
| For the Accused | Mr P Kelly | Michael Ambrose and Associates |
HIS HONOUR:
Introduction
1 Joshua Lewis, you have pleaded guilty to an indictment alleging one charge of dangerous driving causing death. That offence carries a maximum penalty of 10 years’ imprisonment. In respect of such an offence, the sentencing court is required to cancel any driver’s licence and disqualify the offender from obtaining any other licence or permit for at least 18 months.
2 I note that you have also consented to this court hearing and have pleaded guilty to a related summary offence of failing to properly display L Plates. The maximum penalty for that offence is a fine of 3 penalty units.
3 Those two charges arise from a single vehicle collision that occurred on Evans Road in Longwarry on the morning of 21 February 2018. As a result of the dangerous driving in which you engaged, your only passenger, a teenager named Georgia Larsen, sustained a fatal head injury. At the relevant time, you were aged 18 and she was 15.
Circumstances of the offending
4 There is no real dispute about the circumstances in which the collision occurred. The typed prosecution opening[1] was acknowledged by your counsel to be an agreed statement of facts for sentencing purposes.
[1]. Exhibit A.
5 At approximately 8.35 am, on approach to the intersection of Evans and Knights Road in Longwarry, you lost control of the vehicle that you were driving at approximately 102 kph on the gravel surface of Evans Road. It collided with a large tree. As a result of that impact, your young front-seat passenger, Georgia Larsen, sustained multiple serious injuries from which she did not survive. By contrast, you received relatively minor physical injuries.
6 Before describing the nature of your driving in more detail, I note the following relevant matters by way of background.
7 Georgia was born on 25 July 2002. Up until her untimely death, she had resided in the family home in Garfield with her parents and two older sisters.
8 The two of you had been in a relationship for approximately 13 months. The fatal collision occurred when you were driving Georgia to Drouin Secondary College, where she was a Year 10 student.
9 Mr Lewis, I note that you were born on 3 January 2000 and therefore aged approximately 18 years one month and three weeks at the time of your offending. You had mostly lived at your family home in Longwarry but also, at times, at the Larsen’s Garfield home. That was in fact the case in the days immediately preceding this collision. You had held a learner’s permit since 2016. As such, you were legally required to have a full licence holder with you whenever you drove a motor vehicle.
10 You had earlier told Georgia’s mother, Tracy Larsen, that you had been having driving lessons and had also been driving with your mother. On about 10 January 2018, you told Mrs Larsen that you were booked in for a licence test on 24 January 2018. Georgia advised her mother on that date that you had been unable to go for your full licence as you didn’t have your own car or that of a licenced instructor. The following day, Georgia told her mother that you had been able to sit the test that day due to a cancellation and you had passed the test. Thereafter, Mrs Larsen believed you to be the holder of a probationary licence. Operating under that mistaken belief, engendered by you Mr Lewis, Georgia’s parents gave you permission to drive their daughter to school on a number of occasions as well as to a shopping centre. You were able to do so because you had access to an old white Mercedes vehicle which your then employer had loaned to you in the mistaken belief that you had a probationary driver’s licence. As was the case with Georgia’s parents and your own mother, you lied to that employer by telling him that you had a driving licence.
11 You had obtained that employment on about 8 January 2018, at the Yallourn North cattle farm owned by a man named Wayne Besanko. After you had been working there for a short time, he offered you the unrestricted use of his spare vehicle, but only after you had told him that you had your licence but not a car.
12 In February 2018, Mrs Larsen became aware that you had been fined for unlicensed driving in Warragul the previous month. Apparently, your father found the fine in your bedroom and confronted you about it at the Larsen family home where you were staying at the time. Despite those circumstances, you insisted that you did have a probationary licence. You went on to explain that you were unable to get the original copy of that licence from your home because of the problems that you were having with your father and so had made arrangements for a new copy to be mailed to you by Vic Roads. Clearly, Georgia’s parents accepted what you said at the time such was the trust that they placed in you. It was because of those difficulties you said you were having with your father that Mrs Larsen told you that you could stay at their house for a few days.
13 Then, on 21 February 2018, Georgia asked her mother if you could drive her to school. You indicated that you were able to do so as you were already intending to go to Vic Roads in Warragul to see if your licence was there. Mrs Larsen gave you that permission, but only because she believed, based on your earlier assurances, that you were licensed. The fatal collision occurred a short time later as you were driving Georgia to school.
14 Evans Road in Longwarry is approximately 3.6 kilometres in length and runs in a straight south-east direction from Bunyip River Road to Koo Wee Rup–Longwarry Road. The collision occurred at the Knights Road intersection, approximately 2.35 kilometres west of Koo Wee Rup–Longwarry Road.
15 At the relevant time, Evans Road was approximately 3.8 metres in width and constructed of loose stone and gravel. It was heavily corrugated and in poor condition. At the collision scene it ran in a straight path in a northwest to southeast direction. The entire length of Evans Road had a default speed restriction of 100 kilometres per hour.
16 The carriageway was bordered on the north by a grass shoulder and then a deep drain while the south of the carriageway was bordered by a grass shoulder. It was a rural farming area.
17 Knights Road runs north-south off the southern side of Evans Road. A driveway runs off Evans Road opposite Knights Road. The tree that was impacted in the collision was situated 20 metres to the east of that driveway. At the time of the collision, the road surface was dry and visibility was good.
18 There were no eye witnesses to the collision.
19 However, a local resident happened upon the tragic scene moments after the collision. That person was Mrs Proposch. As she was driving to work, she noticed the damaged white Mercedes in the drain adjacent to the tree it had obviously impacted. She also noticed you, Mr Lewis, walking from that area waving your arms above your head. As you were to later explain to a psychologist, you were frantically trying to wave down a passing car after having tried to revive Georgia.
20 Senior Constable Paul Staley of Cardinia Highway Patrol was one of the police who attended at the scene. He noted while driving along Evans Road, that he could feel his vehicle floating and wandering on the road surface and that it significantly limited his ability to control the vehicle. He attributed that to the roads’ “poor condition and severe corrugations”. In his opinion, 80 kph was an appropriate speed for most of the unsealed section of Evans Road.
21 Those observations receive some support from the local resident, Mrs Proposch. She was in the habit of restricting her speed on that road to 80 kph because of its poor condition. In addition, when able to do so, she usually drove in the centre of the road so as to avoid the build-up of loose stones, gravel and corrugations on the edges of the road.
22 Paramedics arrived at the scene shortly after 9 am. You were examined there before being taken via ambulance to hospital. En route, you said that you had been driving at 80 kph when you felt the tyres become loose in the gravel and then lost control of the vehicle when you braked. Apart from the reference to your speed, the remainder of your account would seem to be supported by the expert’s examination of the collision scene and some of the police photographs taken shortly after the collision.
23 The collision scene, including several tyre marks leading to the point of collision, was examined, photographed and measured by members of the Major Collision Investigation Unit.
24 After conducting a collision reconstruction, Detective Leading Senior Constable Hardiman concluded that the Mercedes had been travelling in an easterly direction on Evans Road, on the right-hand side of the carriageway, until the driver commenced an excessive steering manoeuvre to the left. That steering input then caused the vehicle to yaw, rotate in an anti-clockwise direction and move across and off the left side of the road before colliding with a large tree. He calculated that at the commencement of the yaw mark, the vehicle was travelling at approximately 102km/h.
25 Because of the impact with the tree, the Mercedes suffered extensive impact damage to the front and induced damage to the sides and roof. It was transported from the collision scene and later inspected by a member of the Victoria Police Mechanical Investigation Unit. That mechanical inspection found no fault with the vehicle that may have caused the collision.
26 As is clear from the wording of the indictment and from the manner in which the case was opened at the plea hearing, the prosecution case is that Mr Lewis’ driving was relevantly ‘dangerous’ because he was driving at a speed that was excessive having regard to the road conditions and because he was driving without a full licence holder, as required by his learners permit.
Interview
27 When police sought to interview Mr Lewis about this matter on 13 April 2018, he exercised his legal right to give ‘no comment’ answers.
Charged and Bailed
28 When Mr Lewis was finally charged on 24 July 2018, it was for one charge of dangerous driving causing death and a number of associated summary charges
29 On that same day, he was released on conditional bail. One such condition prohibited him from driving any motor vehicle.
New Bail Undertaking
30 When committed to this Court on 11 February 2019, Mr Lewis was bailed on similar but not identical terms to those on which he had been released on 24 July 2018. Once again, he was made subject to a condition prohibiting him from driving a motor vehicle. At the plea hearing, I was informed by his counsel that he had abided by that condition since it was first imposed and I have no reason to think otherwise. Thus, by virtue of his bail conditions, Mr Lewis has, at the very least, been prohibited from driving as a supervised L Plater for a period of just over 12 months; that is, from 24 July 2018 until the present time.
Early Plea
31 I accept that this case resolved at an early stage of these proceedings. Negotiation discussions commenced on 3 December 2018 and concluded on 31 January 2019. Those discussions revolved around the basis on which the charge of dangerous driving causing death would be alleged rather than the withdrawal of a more serious and different charge. The resolution meant that there was no longer any need to proceed with a contested committal hearing on 11 February 2019. Instead, the matter proceeded as a straight hand-up-brief committal on that date and Mr Lewis was committed to this court for a plea hearing on 14 June.
Victim impact
32 At the plea hearing, seven victim impact statements were tendered by the prosecution. Those statements were made by various members of Georgia’s immediate and extended family, including her mother, Tracey Larsen, her father Shannon Larsen, her two older two sisters, Molly and Madeline, her grandmothers, Lynette Larsen and Florence McGuiness and her uncle, Dean Larsen. I note that the statement from Mrs McGuiness was made on 1 March 2019, while the remaining statements were made on 17 May 2019.
33 I have re-read those statements since the plea hearing and take them into account to the extent permitted by law. Each of the authors has, in their own way, articulated the impact that this offence involving the tragic death of a much loved and loving girl has had on them. Viewed together, they are a powerful and eloquent testament to the devastating and profound impact that this offending has caused to what is obviously a very close family. It is clear to this court that the passage of further time will never erase the profound pain and suffering that Georgia’s parents and sisters continue to feel. It is also likely in my view that her grandmothers and uncle will never fully recover from this tragedy.
34 Notwithstanding the nature and extent of that victim impact, it must be remembered that the principal victim of this offending is Georgia herself. The life of a bright, effervescent and very loving girl was prematurely ended in the most tragic of circumstances. She never got to fulfil her undoubted potential nor experience the joys and challenges of a life fully lived. She was also prevented from sharing in the lives of her family and friends. Part of the tragedy rests in the fact that, like all such cases of dangerous driving, the situation was avoidable. Mr Lewis should not have been driving at all without a supervising licensed driver and he knew that. This did not have to happen. It only occurred because Mr Lewis chose to drive a vehicle on that day, and to do so dangerously. It is he and only he that must take responsibility for his selfish behaviour and its consequences.
Personal circumstances
35 I will now briefly describe your personal circumstances, Mr Lewis.
36 Those circumstances were helpfully outlined at the plea hearing by your counsel and, to some extent, by your mother and current employer. Further assistance was provided by the reports of the clinical psychologist, Erin Dolan dated 22 November 2018 and 8 May 2019[2], and in the affidavit from your sister dated 13 June 2019.[3]
[2] Exhibit 1.
[3] Exhibit 5.
37 You are now aged 19 and have returned to live in the family home with your parents and sister.
38 Although you completed Year 10 at Drouin Secondary College, you struggled with the academic demands of secondary school. You were, however, a talented sportsman, and so commenced Year 11 at a sports academy in Traralgon. You left before completing that year. After working at McDonald’s for a time, you commenced a tiling apprenticeship in approximately mid-2016. After completing one year of that, your employer let you go when a more experienced apprentice returned to the business. You were then unemployed for the second half of 2017.
39 As already noted, you commenced part-time work with Mr Besanko in the early part of January 2018. He ran an automotive parts business principally from his farm in Yallourn North. You undertook data entry tasks for that business and also performed some manual labouring work on the farm. You ceased working for Mr Besanko for a number of weeks following the collision but have since returned. You are therefore currently employed.
40 As a result of the collision, you received some injuries to your head and leg for which you were treated at hospital. More significantly, in the aftermath of that event, you developed a post-traumatic stress disorder. It would appear clear that you are very remorseful for what you did and have been wracked by guilt and depression since Georgia’s death.
41 Given your symptomology in the aftermath of the collision, you were referred for psychological counselling by the GP, Dr Khan, on 27 February 2018. You then attended nine counselling sessions with the psychologist Lisa Johnson, with whom you were able to build some rapport. When Ms Johnson resigned from her position, you were transferred to the clinical psychologist, Ms Dolan. She saw you on two occasions in late 2018; first on 8 October and then on 20 November.
42 In her reports, Ms Dolan notes the following, inter alia. You had felt a close bond with Georgia and expressed remorse and took responsibility for what you did. You had felt like killing yourself when you learnt that Georgia had died. On your account to her, you came to be staying at Georgia’s home in the days preceding the collision because you were feeling isolated within your own family.
43 Ms Dolan concluded that you suffer Post-Traumatic Stress Disorder symptoms as a result of the collision which led to the death of your girlfriend. Subsequent to that collision, you have developed a number of coping strategies such as severe self-harm, suicide ideation, isolation and avoidance as a way to minimise the repetitive memories and trauma symptoms. In her opinion, your grief is complex, guilt based and preventing you from addressing your trauma symptoms. In the context of having caused Georgia’s death, you believe that you need to be punished and do not deserve to live. You have only a limited sense of future and remain concerned about the court outcome, community hatred and living with the knowledge that you killed your girlfriend. More recently, you have attempted to regain control, focus on work and set goals. However, you remain remorseful and are willing to accept the consequences for what you did. You believe that you do not deserve forgiveness.
44 In her report, Ms Dolan concludes that your presentation was consistent with a diagnosis of Post-Traumatic Stress Disorder. Relevant testing revealed significant psychological distress, including depressive and anxious symptoms and increased arousal. Your repetitive thoughts of self-hatred, guilt, grief and vivid images of the collision have caused clinically significant impairments to your life and you remain a high risk of completing suicide.
45 In Ms Dolan’s opinion, future counselling should involve, among other things, trauma focused cognitive behavioural therapy to help reduce depressive symptoms and increase your ability to self-sooth and self-regulate, and assisting you to reintegrate into society.
46 As regards the impact of any incarceration, Ms Dolan stated that given your struggle to self-regulate, it is likely that there would be an exacerbation of your PTSD symptoms and an increase in your suicidal ideation and participation in self-harming behaviours. Furthermore, she is of the view that your recovery on the recommended treatment plan would be impeded by any such incarceration.
47 You have not seen Ms Dolan since late 2018 but have been seeing a counsellor at a local Mental Health Clinic. I also note that you presented with suicidal ideation at Warragul Hospital on 4 October 2018 after having engaged in self-harming behaviour. At that time you were still taking anti-depressant medication. Since then, you have ceased taking it on account of the severe side-effects that you experienced. The Hospital arranged for you to attend an appointment at the Warragul Mental Health Service that same afternoon and to see a psychologist, presumably Ms Dolan, on 8 October. Before being discharged into the care of your mother, you were prescribed Valium.
48 In terms of your driving history, some things are clearly established by the evidence while others are not. It is not in dispute that you obtained your learner’s permit on 5 January 2016. As your mother explained in her evidence at the plea hearing, she supervised you driving for three hours while your father did so for two hours. They had also paid for you to get three hours of professional lessons which I am willing to accept that you received. That amounts to a total of 8 hours of supervised driving. Whilst you told your mother and instructed your legal representatives that a former employer, not Mr Besanko, had also supervised you driving, no evidence to that effect was produced, either by calling that person or by producing the Log Book. Given your professed lack of knowledge about having to provide a vehicle for the driving test, I am not willing to simply accept your instructions to your counsel to the effect that you knew you had to have 120 hours of supervised driving to sit the test or that you had in fact undertaken all of those hours. In that context I note that your mother never sighted any completed Log Book and none was produced or tendered at the plea. In any event, absent evidence from that former employer, this court is entitled to be sceptical about you having completed the 120 hours. Among the reasons for that are your preparedness to tell repeated lies to others about the fact that you were licensed and the observation made by Mr Besanko in early 2018 about the unorthodox way in which you held the steering wheel while driving. It is hard to conceive that the dangers associated with that would not have been corrected had you received as much supervision as an L plater as you claim.
49 In the end, therefore, this court is left in a position where it cannot accept at face value that you had completed all of the required 120 hours of supervised driving before the date of this collision. Similarly, this court cannot accept at face value that you were as experienced a driver as you claim. There are factors that point in the opposite direction, including the manner in which you drove in the immediate lead up to this collision.
50 In any event, as you had never sat a driving test, there is no evidence as to the level of your competency as a driver, whatever be the extent of your driving experience.
51 I have been told and accept that you have not driven since the date of this collision.[4]
[4] In any event, such driving was prohibited since 24 July 2018 due to one of the bail conditions.
52 The affidavit from your older sister confirms that you had rebooked your driving test after having failed to sit the test in January. It also includes a photograph of the laceration you received to your head as a result of the collision.
53 Before leaving the topic of your driving history, I should note that there were other occasions in early 2018 apart from the date of this collision, when you drove Mr Besanko’s white Mercedes without a full licence holder present to supervise that driving. Apart from the other occasions on which you admit to having driven Georgia to school and the occasion when you drove her to go shopping, there is also the occasion witnessed by Mr Besanko and the occasion on which you were intercepted by police while driving alone in Warragul.
54 As to the latter, I note that after being intercepted just after midnight on 22 January 2018, you admitted to having driven in knowing contravention of the conditions of your learner’s permit. The explanation you gave for driving on that occasion, namely that you were going to see your girlfriend, provides absolutely no excuse or justification for driving as you did. Police issued you with a traffic infringement notice on that occasion.[5] I have no doubt that the fact that they did so together with the amount of the fine ($793.00) would have brought home to you the seriousness of driving without an experienced driver present.
[5] Exhibit E.
55 As noted during the plea hearing, you are not to be separately punished for those other occasions. One is tantamount to a prior conviction for which you have already been punished while the others are uncharged acts. In respect of all of the occasions, they provide a realistic context to the occasion for which you now fall to be sentenced. They prevent it being said on your behalf that the subject occasion of driving without an experienced driver was a ‘one-off’, or isolated occasion or that it was spontaneous in nature. As for the charged occasion, it illuminates your moral culpability. Despite knowing that it was against the law to do so, and despite having the seriousness of such conduct reinforced by the response of the police, you made a calculated decision to again drive without an experienced driver only 4 weeks or so later, with tragic consequences.
56 In her evidence, your mother confirmed that there was conflict between you and your father about you obtaining full-time employment. As she explained, when there were arguments, you would go and stay with a friend for a few days and then return to the family home. You are now living back at the family home which is located approximately 10 kilometres from where the Larsen family lives. Your mother also confirmed that you became depressed and withdrawn following the collision, for which you consulted a GP, a psychologist and a counsellor. To her observation, the side-effects of your anti-depressant medication included nausea, insomnia, and on other occasions when you were asleep was interrupted by nightmares.
57 In his evidence, Mr Besanko told the court that he first met you on 4 January 2018 and that you commenced to work for him on 15 January. He offered you the use of one of his spare cars, the white Mercedes, in part to assist you to travel to and from his farm for work purposes. Before making that offer, he was told by you that you had a probationary licence. Despite that lie, he has been prepared to give you a second chance and you remain in his employ. To some extent, he has also witnessed the emotional toll that this event has taken on you.
Matters in mitigation
58 In your case, Mr Lewis, there are a number of important matters in mitigation upon which you can rely. In particular, there is your young age, early plea, genuine and profound remorse, and the associated development of a debilitating post-traumatic stress disorder.
59 You had only just turned 18 a short time before offending.
60 Apart from the driving incident resulting in the traffic infringement, you have no other prior convictions or findings of guilt. Nor have you been charged with any later offences.
61 For the most part, you have managed to obtain and maintain some form of paid employment since leaving school, which is to your credit.
62 You have entered an early plea which has spared witnesses and Georgia’s family from the ordeal of a trial. It has also saved the community from the cost and time that such a trial would have involved.
63 I am well satisfied that the remorse which you have for this offending is genuine and deeply felt.
64 In those circumstances, you are entitled to and will receive a significant discount in your sentence, the extent of which I will make clear later in these sentencing reasons.
65 Apart from the physical injuries that you sustained as a result of this collision, you have also developed a post-traumatic stress disorder. As is clear from Ms Dolan’s reports and as was discussed at the plea, your condition is complex and nuanced. In my view, principles 5 and 6 of Verdin’s case are established on the evidence, although the weight to be given in this case to them is less than in some other cases.
66 As noted by Ms Dolan, you will likely find any incarceration more difficult than someone who does not suffer from PTSD and your condition is likely to worsen under such conditions. I think it reasonable to assume that adult imprisonment would be more onerous and pose more of a threat to your physical and mental wellbeing than detention in a youth justice centre would. That is something to which this Court can and should have regard when determining the appropriate disposition in this matter, although it is by no means determinative.
67 I note that once charged, you were bailed on conditions, one of which was that you were not to drive a motor vehicle in Victoria. That bail on those terms has continued to this day. I am satisfied that such a condition, by which you have abided, itself represents a degree of punishment for your offending. I have had regard to that matter when assessing the nature and extent of any licence disqualification orders. Those orders will have a reduced punitive effect than they otherwise would have on account of the fact that you have been prevented from driving for the past 12 months or so. That has necessitated me taking a different approach to a number of aspects of the disqualification issue than I otherwise would have; for example, the length of the disqualification period for Charge 1, the issue of cumulation as between the two disqualification orders and the starting date of those orders. Given the period that you have already spent off the road, I see no point in exceeding the 18 month mandatory minimum period of disqualification, or in making those orders cumulative to any extent or, indeed, in delaying the commencement date of those orders.
68 You appear to have some supports within the community, in particular from your family, Mr Besanko and those treating you.
69 As best I can determine on the available material, your prospects of rehabilitation are reasonable in all the circumstances. I have no doubt that they would be enhanced in the event that you were able to undertake and complete the type of treatment plan recommended by the psychologist, Ms Dolan.
70 Whilst I will give what weight I can to your personal circumstances, including your youth and lack of any significant criminal history, they are not the only sentencing considerations to which I must have regard. Nor can your youth and limited criminal history be given full weight in a case such as this where offenders are often youthful and of previously good character, and where general deterrence must be emphasised.
71 One of the other important considerations is the objective gravity of your offending. It is to that matter that I now turn.
Gravity of the offending
72 It must first be acknowledged that any offence of dangerous driving causing death is intrinsically serious. So much is apparent from the fact that a life has been lost and the maximum penalty is relatively high, 10 years’ imprisonment.
73 In assessing the relative gravity of this instance of that type of offence, I must have regard to the dangerousness of the driving in which you engaged.
74 Your degree of moral culpability for that offence is another relevant consideration.
75 The following matters appear to me to be relevant in any assessment of the gravity of this offending.
76 You should never have been driving the victim Georgia Larsen on that day given the fact that you did not have an experienced driver. As such, you made a deliberate decision to drive in contravention of the road rules which are designed to ensure that our roads are as safe as possible. Your decision to drive on that fateful morning was a calculated rather than a spontaneous one. It was not a ‘one-off’ decision on your part.
77 Furthermore, you had previously driven on Evans Road and must have been aware of its generally poor condition. Notwithstanding that fact, you chose to drive at or just over the maximum speed limit of 100 kph and to do so with two of the tyres on the edge of the carriageway where the gravel road surface was likely to have been the worst of all. I am well satisfied based on the evidence of Mrs Proposch and Senior Constable Staley that a safe speed for those road conditions was in the vicinity of 80 kph.
78 The dangerousness of your driving was exacerbated by the fact that it occurred without you having the benefit of an experienced driver to supervise your actions. In my view, it is inconceivable that a competent and experienced driver tasked with supervising a learner driver on this stretch of corrugated gravel road would not give some instruction about the need to drive at a safe speed given those less than optimal road conditions and the relative inexperience of the driver in charge of the vehicle.
79 It is also important to have regard to the very serious and wide-ranging impact that this offending has had on Georgia’s immediate and extended family.
80 As for your moral culpability, Mr Lewis, I consider it relevant that you only came to be driving Georgia as you did because you lied to her parents about being licensed. Your conduct therefore involved a gross breach of the trust that they placed in you. That breach of trust is even more difficult to fathom given the kindness that they had extended to you.
81 In all the circumstances, I agree with the prosecution submission that the level of dangerousness of this driving does not fall at the high or low end of the spectrum of seriousness for this type of offence. In my view, that is also the case for the level of moral culpability shown by Mr Lewis in driving as he did.
82 As for the related summary charge of failing to properly display L plates, it is far from a trivial offence. Rather than an oversight or innocent mistake, your actions were, in my view, undertaken in order to try and avoid detection while driving in breach of the conditions of your learner’s permit. The particular condition you breached is, in part, designed to alert other road users of the inexperience of the learner driver and to make allowance for it. That in turn is designed to promote road safety. Deterrence, both general and specific, as well as denunciation and punishment are all relevant sentencing considerations for this offence.
Relevant Sentencing Principles
83 There was some discussion about the relevant sentencing principles in this case at the plea hearing.
84 When sentencing an offender for dangerous driving causing death or serious injury, a court must give great weight to general deterrence.[6] Other road users who are tempted to drive dangerously in whatever fashion must be discouraged from doing so by the knowledge that were they to proceed, the courts will take a stern view of that conduct and sentence accordingly. In this way, courts are seeking to minimise the damage caused on the roads.
[6] See for example, Board [2013] VSCA 190, [34] point 4.
85 Denunciation is another important consideration. This court, on behalf of the community, must make clear that such driving is totally unacceptable and to be denounced and condemned.[7]
[7] See Neethling at [56] and Towle at [76].
86 In the particular circumstances of this case, I consider specific deterrence to be a relevant albeit not a weighty consideration. That is so because on the one hand this was serious offending that occurred in circumstances of deception and against a background of other instances of driving without an experienced driver. On the other hand, it is clear that the tragic consequences of this offending and the impact that it has had on Mr Lewis suggest that there has already been a measure of personal deterrence effected upon him.
87 The law requires this court to punish Mr Lewis to an extent and in a manner that is just in all the circumstances. Those circumstances include matters relevant to the offending and to him personally, all of which must be considered in the context of the relevant sentencing principles. Given the nature and seriousness of this offending and notwithstanding the matters upon which Mr Lewis can rely in mitigation, the punishment required to be imposed in this case is relatively significant.
88 I must also have regard to Mr Lewis’ youth and reasonable prospects of rehabilitation.
89 Given those prospects, and the remorse and strong self-reproachment displayed by Mr Lewis, I consider that the need to provide protection to the community from him is limited.
Comparable cases
90 It was acknowledged by counsel at the plea that there do not appear to be any truly comparable cases. Even had there been, sentences in other cases are not precedents, to be followed unless able to be distinguished. In many cases, there can never be one correct sentence. Such is the case where sentencing involves the exercise of a discretion by the court imposing sentence.
91 In the end, I must apply individualised justice by having regard to the particular circumstances of this offending and this offender.
Sentencing submissions
92 In his sentencing submissions, Mr Kelly properly acknowledged the seriousness of this offending. However, he submitted that in light of the mitigating features of this case, in particular Mr Lewis’ youth, early plea, PTSD condition, and the especially adverse impact that adult imprisonment would likely have on him, a period of detention in a youth justice centre was both open and appropriate.
93 For their part, both before and following the provision of a Youth Justice Centre suitability report, the prosecution conceded that such a disposition was open, albeit the period of such detention would need to be significant if all of the relevant sentencing objectives were to be adequately recognised and properly weighted.
94 At the conclusion of the plea hearing, I ordered a suitability report. The authors of the resultant report, dated 8 July, have assessed Mr Lewis as suitable for a senior Youth Justice Centre Order on account of the fact that he has no prior involvement with the criminal justice system, demonstrates impressionability and is likely to be subjected to undesirable influences in adult prison. They consider that for a number of reasons, including his PTSD condition, he would be likely to be vulnerable in the adult system. In short, they were of the view that the criteria in s. 32(1)(a) and (b) of the Sentencing Act 1991 were established in his case.
Analysis
95 I have carefully considered the submissions of the parties and the matters upon which they were based.
96 In the end, I agree with what was in effect a joint submission by the defence and prosecution that a significant period of detention in a youth justice centre is within the available range of sentencing options in this case.
97 Even where, as here, some form of confinement or loss of liberty is called for on account of the seriousness of the offending, sentencing an offender, particularly a young offender with a very limited criminal history, to adult imprisonment must only be done if there are no other alternative dispositions open.
98 Clearly, a lengthy period of detention in a youth justice centre, while not as punitive as a term of adult imprisonment, is not a soft option.
99 In my view, such a disposition is open in the particular and rather unusual circumstances of this case. In coming to that conclusion, I have particularly borne in mind Mr Lewis’ young age, his early plea, his significant PTSD condition, and the particularly onerous experience that adult imprisonment would likely represent given his particular vulnerabilities.
Sentence
100 After carefully considering the relevant sentencing matters that arise in this case, I have therefore decided to convict Mr Lewis of each charge and sentence him as follows. Please stand up Mr Lewis.
101 On Charge 1, dangerous driving causing death, to a period of 4 years’ detention in a youth justice centre.
102 On the related summary charge of being a learner driver and failing to display L plates, he will be convicted and fined the sum of $300.00.
No PSD
103 For the sake of clarity, I note that there is no pre-sentence detention to be declared in this case.
6AAA Declaration
104 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had Mr Lewis pleaded not guilty to the charge of dangerous driving causing death and been convicted at trial, he would have been sentenced to a total effective sentence of 3 ½ years’ imprisonment with a non-parole period of 2 years and 3 months.
Licence Disqualification.
105 In respect of the charge of dangerous driving causing death, I cancel any driving licences or permits held by Mr Lewis and disqualify him from obtaining any other for a period of 18 months, effective from today. In respect of the related summary charge, I make an identical order, save the disqualification period will be for one month. As I have already in effect indicated, those periods will run concurrently.
Forensic Sample order
106 In the exercise of my discretion, I grant the prosecution application for a forensic sample order as I am satisfied that such an order is warranted given the nature and seriousness of this offence of dangerous driving causing death.
Custody Management Issues
107 Mr Kelly, what custody management issues, if any, do you wish the court to have noted on the relevant documentation that will accompany your client into custody?
108 MR KELLY: None, Your Honour.
109 HIS HONOUR: Really? He has been diagnosed with a serious PTSD condition and a significant risk of suicide. Shouldn’t that at least be noted together with this being the first time he has ever been in custody, so that the authorities who manage his care in custody can take appropriate steps?
110 MR KELLY: Of course, Your Honour, yes.
111 HIS HONOUR: All right I will have my associate make those necessary notes. Is there anything that either you Mr Doyle or you Mr Kelly wish to raise at this stage either in relation to the sentence or my sentencing reasons.
112 MR DOYLE: No, Your Honour.
113 MR KELLY: No, Your Honour.
114 HIS HONOUR: Very well, Mr Lewis can now be taken into custody, thank you. Can I just check, Mr Prison Officer?
115 PRISON OFFICER: Yes, Your Honour.
116 HIS HONOUR: You understand, do you not that the sentence is one of youth detention so Mr Lewis will need to segregated from adult prisoners and also can you please make sure those people downstairs are aware that my associate will be forwarding documentation which will indicate that Mr Lewis is at particular risk in detention and that steps need to be taken to ensure his safe care in custody.
117 PRISON OFFICER: Yes, Your Honour.
118 HIS HONOUR: Thank you. Adjourn the court sine die.
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