Director of Public Prosecutions v Livingston

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-01251
Indictment No: M1268797.1

DIRECTOR OF PUBLIC PROSECUTIONS

MATTHEW LIVINGSTON

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	26 and 27 June 2023
DATE OF SENTENCE:	30 June 2023
CASE MAY BE CITED AS:	DPP v LIVINGSTON
MEDIUM NEUTRAL CITATION:	[2023] VCC 1168

REASONS FOR SENTENCE
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Subject: Culpable driving causing death; 2-year-old child killed. Negligently Causing Serious Injury x2; parents of deceased child seriously injured including brain injuries. Conduct endangering serious injury x10; many other motorists as well as younger sister of deceased child. 43 tonne prime mover and trailer ran up the rear of stationary or near stationary vehicles. Many warning signs overlooked. Earlier very poor driving in previous half hour; Related summary offences (all rolled up between dates offences) relating to fail to record information in work diary, recording false or misleading details and working for more than maximum period and missing required breaks. 44 years of age. Brief prior traffic offence history; early guilty plea; Worboyes v The Queen [2021] VSCA 169; Remorse; Verdins limb 5; co-operation and undertaking. s5(2AB)

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward	Office of Public Prosecutions

For accused Mr P. Bloemen Pica Criminal Lawyers

HIS HONOUR:

1Matthew Livingston, on Monday 6 December 2021, Felicity Stewart, her husband Simon Peckitt and their two young girls Harriet and Jemima were travelling back towards Melbourne on the Calder Freeway in the family car. It was a fine and sunny day and visibility was good. They were returning from a long weekend away. The parents had weathered pretty much the worst of the pandemic and that weekend they had been up looking around the Macedon ranges for towns to relocate to in 2023 by way of something of a tree change. They were on their way home. There was much to look forward to, including for Ms Stewart, a new job waiting in the wings. They were a very happy family. They were doing nothing wrong and of course they were completely oblivious to the events that would soon completely alter their destiny.
2For in an instant, their lives changed forever as you drove your prime mover and trailer into the back of their car killing their precious 2-year-old daughter Harriet and seriously injuring each of her parents. Owing to your negligent driving, you have forever altered this family. The impacts of your crimes will be keenly felt forever.
3You have pleaded guilty to culpable driving causing the death of Harriet. That is a crime that is punishable by a maximum term of 20 years imprisonment. You have also pleaded guilty to negligently causing serious injury to both of her parents.
4Further, it was not just this family who have been offended against. There are also 10 charges of conduct endangering serious injury relating to a number of other unfortunate victims caught up in this disastrous and totally avoidable event. Some were other motorists, some were passengers in other vehicles. One of the charges relates to Harriet's baby sister Jemima, who was 12 months of age.
5There are also a variety of summary matters relating to failing to record information in your work diary, recording false or misleading details in a work record and working for more than the maximum period and missing the required rest breaks that were specified.
6My task is to sentence you for these crimes and what is readily apparent is that in that same instant that you have forever damaged this family and caused impact to some of these other victims who I have mentioned, you have also very significantly altered the course of your own life. That is because the crimes to which you have pleaded guilty are of such a level of seriousness as to require you to spend many years in prison.
7At the end of some Court cases, I am bound to say they are mostly in the civil jurisdiction, we have a distinct winner and we have a clear loser. As I look out into the body of the Court during a case such as this one, as I did in the course of the plea and I do again today, it is plain there are no winners. Just a sea of people sitting on either side of the court, people damaged by your crimes: Some are your family. Some are obviously the family members of Harriet or those supporting that family. Some are the other victims who were themselves endangered. Though there are plainly no 'winners' in a case such as this, there can be no doubt as to whose loss is the largest. It is not yours. It is not your family.
8For after the very sizable interruption which will be posed by the substantial prison sentence which I must impose upon you, you will be released. You will reshape your life or you will try to. Yes, you will lose a number of years of your life to prison; that is unavoidable. Yes, because you are actually a decent man, you will no doubt carry with you the guilt of killing this young child and damaging the lives of her loved one's, as you go about the business of reshaping your life upon your ultimate release from prison. I am not suggesting any of this will be easy. It will not. But the events will fade to a degree, and you will learn to live again as you should; as you must. But Harriet will not, and those who knew and loved her will always experience a deep emotional rawness. Time will not salve their grief at all. It will be with her mother and her father and her sister and her extended family forever. Long after this case is but a distant memory for so many others connected with it, they will still be met by the great sadness of her loss and the sheer wastefulness of it all. There is nothing that you or I or anyone can say or do to alter this sad reality for this family: Life will never be the same for them and that can be put down entirely to your actions. It is that simple.
9That is why culpable driving causing death is such a serious offence. There is a death, it is a totally avoidable one, and here it was a little girl of 2 years of age. What a complete tragedy and all of it owing to you.
10Let me leave behind then what has really been a broad and sweeping executive summary and descend to a bit more detail as to the facts in this case. Once I have dealt with the facts, I will return in much greater detail to the impacts of your crimes. I will then move to your background. I will move to the matters in mitigation and aggravation and then I will deal with matters of sentencing principle and the purposes of sentencing which I must apply, before finally passing sentence upon you. This will all take a good deal of time. I believe well upwards of 1 ½ hours if not 2 hours. I make no apologies for the length of my remarks as it is important that Mr Peckitt, Ms Stewart and their families, you and your family and the legal practitioners, and the broader general public have an understanding as to the basis upon which I am passing sentence.
11Mr Hayward who prosecutes on behalf of the Director of Public Prosecutions of this State opened the matter to the Court earlier this week in accordance with a very lengthy written amended opening dated 17 February. The document itself set out some matters that were apparently in dispute on the plea. Mr Bloemen who appeared for you told me that the written plea opening was an agreed summary, save and except for those matters dealing with the issue of fatigue that were flagged as disputed.
12That lengthy written document has been marked as Exhibit A on the plea. The opening draws certain material from the depositional statements and cites page numbers of statements within those depositions. I told the parties that I had read the full set of depositional material in this case. Further there are references in the agreed opening to the report of Detective Sergeant Hay, the major collision reconstructionist, as well as statements from a variety of other motorists who have made relevant observations. For instance, Mr Cole who had dashcam of the collision and the lead up to it, and Mr Tuckerman who took dashcam footage of your manner of driving about 20 minutes before the collision. The observations of Mr Symonds and Mr Gordes and his wife, Dianne Kloe, were also referenced in the opening. Again, these were observations of the highly unusual movements of your prime mover in the period closer still to this collision. There were many photographs within the depositional material as well as the drone footage of the collision site that has been separately marked.
13It is a forlorn exercise for me sitting up here simply to slavishly restate all the agreed facts in this case. I will not, though I will describe your driving in a little bit of detail. There is of course the various footage that I have referred to. It is as plain as day that you were not in a fit state to be driving on this afternoon. Your conduct in the preceding half an hour had been sufficiently worrying if not frightening to have two motorists independent of each other try to establish if you were unconscious or asleep or having some form of episode behind the wheel. I regard the factual dispute as being something of a distraction, for the movements in the half hour preceding the ultimate collision as observed by Mr Tuckerman, Mr Symonds and Mr Gordes and his wife were not in any way in dispute. Either you were having a microsleep or were heavily fatigued or you were not. The plea proceeded on the basis that it would be an aggravating feature if you had been sleep fatigued. Well if you were not, I wondered out aloud the other day, how could the various actions observed by Mr Symonds, Mr Tuckerman and Mr Gordes and his wife not alert that driver to the need to take a break. Either way, it seemed to me that you would have been very much forewarned as to the risk in continuing to drive. Of course, I had not reached any firm view as to that and I then had to wait for the evidence and submissions to be placed before me. I will come to this area in a bit more detail later in my remarks.
14You admit by your guilty plea driving negligently which in this area has a particular meaning.
15A person drives with 'gross negligence' - and that is what is required here - if his or her driving falls greatly short of the standard of care that a reasonable person would have exercised, and involved a high risk that death or serious injury would result. This is an objective test. That means that there is no need to establish any intent on your part or even any realisation or awareness that your conduct was negligent. What matters is what a reasonable person in your situation would have known and done.
16The element is made out if a reasonable person in the accused's situation would have realised that his driving created that high risk of death or serious injury.
17Well gross negligence is admitted here by your plea.
18The existence of a diagnosis of sleep apnoea was not in dispute.
19Let me move back to some of the facts leading into the collision
20You were employed by Hendy Holdings Pty Ltd up in St Arnaud. The vehicle which you were driving was a 43-tonne prime mover and trailer. Given the size of that vehicle, it was a fatigue related heavy vehicle and there were serious obligations imposed upon you the driver, as set out at paragraph 17 of the agreed summary. Obligations it seems you were content enough to breach as discussed in the succeeding paragraphs 18-25 and the separate summary that pertains to those particular summary offences. Those charges are between dates and they roll up a number of individual breaches.
21The agreed summary before me sets out the time that you started up the ignition of your truck on 6 December 2021 and your hours of work, as well as the opportunities for rest and sleep that you had the preceding night with texts sent at 9.50 pm by you on 5 December and one sent by you at 3.50 am into the morning of the 6th.That allowed for a maximum period of 6 hours sleep assuming that you dropped off to sleep immediately upon sending the text and woke up immediately before sending the text the next morning . Neither of those propositions is at all realistic.
22I mentioned Mr Tuckerman. There is the dashcam footage marked as Exhibit B and references in the summary to the observations at paragraphs 27-29. None of those observations are in dispute; the footage speaks for itself. There were multiple departures from your lane including what was a dangerous departure to the left of your lane as you approached a car and boat that was pulled over to the left of the road. Incidentally, this was the same car and boat that was ultimately very seriously damaged at the later collision site. There was nothing on the road to explain what were the repeated movements of your truck and trailer out of your lane in both directions. This was only 20 or so minutes before the collision. Mr Tuckerman can be heard to tell his wife that you are all over the road. The alarm in her voice can be heard when she, in her superior position off to the left, sees what she thought was a caravan parked to the left of the road. She said in reference to your vehicle ‘Oh shit move over’. It was in fact not a caravan. It was Mr Bourke's boat and his car. His two children were standing near the grass shoulder of the road as your truck passed. Mr Tuckerman is heard to say 'there could have been an accident'. You were all over the road and for no apparent reason. Professor Naughton says such conduct has all the hallmarks of a microsleep. That the repetition would not suggest it was merely distraction or inattention.
23Mr Tuckerman overtook the truck to see if all was well with the driver. He was a prime mover driver himself in his vehicle and wondered if you were having an episode or were asleep. As he passed your vehicle everything looked fine. Your driving was not. He then turned off the freeway.
24The tale is picked up by Johnathon Symonds who saw the truck in front of him and this was about 7 ½ kilometres shy of the impact site. He noticed your truck go off the road to the left for a few seconds. It was about half the truck width that went off the road. He saw a repetition of that closer to the overpass after he had driven past you; he did that to give you as much space as he could.
25Next up was Mr Graeme Gordes in the Diggers Rest area. He was travelling with his wife in the same direction as you. He saw your truck swerve off into the left breakdown area, again for no apparent reason, and then move back into its lane. The truck seemed to drift towards the side barrier, it threw up dirt and it recovered and moved back into its left lane. He was shocked by the movement. You did the same thing again about a kilometre down the road swerving or veering off the road into the left breakdown lane but this time you moved back to your lane and then you moved further right into the next lane. He too was concerned as to what was happening. He was concerned as to whether you were asleep. He overtook you to get clear of you as he thought there was an accident risk. He was of course entirely right. You looked okay as he passed but he was distinctly uncomfortable when he came to a stop up near the collision site and this anxiety was owing to his concern that the truck he had seen behaving in that way, and had passed, would come back into his sphere. Well, his fears were well justified. For it did and there was a catastrophic collision. You were the sole cause of it.
26I have already mentioned Duncan Cole. He was travelling in his Mazda on the Calder Freeway towards Melbourne and he too had a dashcam fitted. The footage was taken at a real time of about 2.30 pm, and it is also part of Exhibit B. That footage shows various cars overtake him, cars which later were in fact to be involved in the collision or the concertina effect of that initial impact. So Antony Brown's Mitsubishi Express, Ken Gray's white Hilux. Shane Bourke's Commodore pulling the trailer and boat and the VW Tiguan driven by Felicity Stewart. The footage shows your truck drifting over to the right fog lane as you passed Mr Sarmiento who had entered the freeway. It shows you pull into the left lane but with wheels over the centre dividing line.
27That footage captures the lay of the land in the approach to the actual impact site. It was a long stretch of dry road on a sunny, fine afternoon. No obstructions to the view looking forward and of course your view would be from the elevated position of your prime mover cabin.
28Paragraph 36 of the summary sets out the order of vehicles ahead of you.
29The Freeway had to that point been a 110 kilometre per hour zone with 4 lanes, two in each direction. There were some road works south of the Bulla-Diggers rest overpass. There were 80 kilometre per hour speed restriction signs about 402 metres shy of the collision site on each side of the lanes upon which you were travelling. The signs also indicated roadworks ahead. You did not slow. These road works had started on 22 November 2021.
30170 metres shy of the impact site there were yellow 'road work ahead' signs and also a sign warning of the approaching 40 kilometre per hour zone ahead.
31Then there was the 40 kilometre per hour zone marked out at around the site of the impact. Again, it is apparent that you did not slow and were not slowing. Your speed at impact was 86 kilometres per hour, or no less than that.
32In your police interview you said you had not seen any 40 kilometre per hour sign or warning signs.
33In fact, the actual road works themselves were about 317 metres further south along the Freeway. That was the area where there had been reflective cones assembled in the right lane commencing at that point to close off in a tapering fashion the right lane and funnelling the freeway down to a single left lane at that point.
34Well you were the driver. You paid no regard to any of these obvious warnings. You did not react to anything clearly observable to any driver. So the roadwork warning signs that had been erected, the reduced speed limit signs, the advice as to further restrictions ahead. The 40 kilometre per hour sign. None of it registered with you at all.
35Of course, it was not only those warning signs which should have alerted you. There were a number of other cars on the road and unlike you, they were responding to the signage and the roadworks. They were braking and they were slowing They were not invisible but seemingly they were to you. For the fact is that a number of cars became stationary or near stationary near the bridge or just under the bridge. This was presumably courtesy of the funnelling arrangement 317 metres further south owing to that lane closure that I have spoken of. It was all completely lost on you.
36Mr Sarmiento approached the overpass in his little Mazda. He saw the road works signs and the signs to slow down to 80 kilometres per hour and then to 40 kilometres per hour. He obeyed them. Cars were slowing down in front of him. They were obeying the signs. He stopped. He looked in his rear-view mirror and did not much like what he saw, for what he saw was your truck, a truck looming large behind him and plainly travelling too quickly to stop. In a split moment he engaged in an emergency manoeuvre, steering quickly out into the right-hand lane to avoid that imminent impact. After the incident, he was in shock. He could not believe that he was alive. Well he had good reason to thank his lucky stars for without that manoeuvre, he would have taken the full impact of your vehicle. But his good fortune was no friend to Ms Stewart and Mr Peckitt for of course their VW Tiguan now took the first and full impact of your prime mover and trailer. Their car was severely damaged and it was pushed into Shane Bourke's Commodore. Mr Bourke had his two young children in the car with him. Mr Bourke was the person who was pulling the boat on a trailer. He had reduced his speed and stopped owing to the roadworks signs. His was the vehicle with the boat seen in the earlier incident observed by Mr Tuckerman 20 or so minutes earlier. He probably had not even noticed your prime mover and trailer move inexplicably out of the lane and towards his stationary vehicle at that earlier stage. Well, he was not so lucky at the overpass. He was stationary when his vehicle was struck by the VW courtesy of the force of the of impact from your vehicle. His car and boat were very badly damaged as the pictures make clear. Pretty much destroyed. He and his two boys survived without any physical issues. After striking the VW Tiguan, your truck then swerved to the right and then back to the left and it collided into Ken Gray's Hilux. Mr Gray had also responded to the road works signs and also to other traffic. He had slowed and he had stopped. Once you struck his Hilux, the Hilux in turn collided with a Mitsubishi express driven by Antony Brown.

37Mr Gray's Hilux was crushed. It was turned upside down and he was trapped initially unconscious in his vehicle with his two little dogs. His vehicle was inundated by the grain which had tipped from your trailer which had itself tipped over. He described in his impact statement the experience of regaining consciousness upside down trapped in his vehicle with his mouth and nose filling up with grain. He was trapped for a pretty decent period. He ultimately was rescued from the vehicle and went by ambulance to hospital. He was fortunate to have sustained only some cuts and scrapes and seatbelt bruising and a whiplash type injury to his shoulder. One of his dogs had to have a leg amputated.
38His car struck the Mitsubishi Express driven by Antony Brown. Mr Brown was yet another motorist who had responded to the reduced speed limit and the road works signs, and he was stationary or near stationary. Mr Gray's Hilux was pushed into his vehicle and then Mr Brown's Mitsubishi Express in turn struck a Falcon utility driven by Mr Shelley. Mr Shelley had a passenger, Mr Marlais. Mr Shelley thinks he was travelling at about 10 kilometres per hour when he was struck. He sustained some pain in his neck and his foot.
39Ms Nicole Carland was driving in front of Mr Shelley's Falcon Ute and she recalled hearing the sounds of the collision behind her. She looked in her rear-view mirror, saw the truck approaching and she, like Mr Sarmiento, quickly pulled into the right lane in an emergency manoeuvre and was fortunate indeed not to have been struck.
40Well I have taken some minutes to describe the final event that of course took seconds. The dust settled on the scene and those who could, no doubt took a deep breath. Mr Cole rang Triple 0 at 2.31. We can hear him make that call in the dashcam footage. Ms Carland was also making a call. Even as Mr Cole made that call, as luck would have it, an ambulance, I believe associated with the Royal Flying Doctor Service, arrived at the scene. Other members of the public stopped to assist as did some of those I have mentioned who had been caught up in the concertina effect of this calamity. For calamity it most certainly was.
41Harriet Peckitt was dead at the scene. There is nothing that anyone could have done to save her. Her injuries were simply not survivable and I infer that she would have died on impact. As is the way sometimes though, there is a miracle set amongst a tragedy, as there was here for miraculously, her baby sister, 12-month-old Jemima, survived pretty much unscathed with some bruising to her legs. She was discharged from hospital the following day into the care of her grandparents. Though relatively physically unscathed, of course she was in the backseat of the crumpled vehicle alongside her dead sister, with both her parents' unconscious in the front of that car.
42The summary describes the injuries that each of the parents sustained. Life threatening injuries for Ms Stewart including a severe head injury, a variety of fractures including to aspects of her cervical spine and a high-grade splenic injury as well. She required much treatment in the short and the long term. The short‑term efforts no doubt were to ensure that she survived. It was and is a severe brain injury. There has been ongoing acute brain injury rehabilitation. There is a further document marked as Exhibit H which by agreement between the parties goes into some of the further details of treatments and the saga of her ongoing recovery and rehabilitation. There is still a long long road ahead but her but her dedication has been immense and she has much to be proud of.
43Mr Peckitt sustained serious injuries including a subarachnoid haemorrhage, a rib fracture and a variety of facial fractures. He needed to be intubated and that was owing to one of the facial fractures and the need to actually protect his airways. There is also a medical report attached to the impact statement and that separate exhibit dealing in his case with some of the later and ongoing issues. I will return to discuss the ongoing impacts soon enough.
44Police attended at this scene. You tested negative on preliminary testing for any drugs of dependence or alcohol. You were arrested and taken to the nearby Sunbury police station where a blood sample was provided. You were co-operative with the police and you were visibly distraught when you were informed that a 2‑year-old child had died at the scene. I have mentioned already it was a bright sunny day and the road was dry and conditions really could not have been better.
45The drone footage marked as Exhibit C gives a better sense of the road conditions. So too Mr Coles footage which is marked as part of Exhibit B.
46Though in his written submissions Mr Bloemen seemingly relied to some extent on the observations of Mr Dahlstrom, Mr Haycraft and Mr Barton, as to the inadequacy of the signage and perhaps there being some contribution posed by it to this event, that submission was completely abandoned in the course of the plea. Correctly so, if I may say so. I asked Mr Bloemen about it towards the end of the plea as those written submissions had not featured at all in the oral submissions made to me. Your counsel, when I asked him, conceded that it was obvious that you were not paying any regard to external factors. These things included the distance in which you could have seen the first speed sign reducing the speed to 80 kilometres per hour, the period during which you could have seen the warning as to the impending 40 kilometre per hour zone and the actual 40 kilometre per hour sign as well as the various roadworks signs and the indicia of road work that lay beyond the bridge. The fact is that other motorists were responding to these arrangements and were clearly visible on the road to anyone looking. Further there were some strong statements in the opinion of Detective Sergeant Hay dealing with the appropriateness of the signage and the adequacy of the level of warnings extended to motorists. In any event I will spend no further time on the topic as it was completely abandoned in the course of the plea and correctly so. It avoids the need for me to spend any further time dealing with the submissions including the quite odd fact that Mr Barton's statement, which was being relied upon, related to a quite different date and likely a different place and setting where there were no speed or roadworks warning signs erected at all. That was on 3 December. I am dealing with this collision scene on 6 December. Anyway, it is correctly conceded that the signage placement has no mitigatory or even explanatory role to play here. You were the driver. It can all be put down to you. The arrangements in place on the road explain why it was that vehicles were funnelling down into one lane and why it was that vehicles were either stationary or near stationary or slowing. It provides no explanation at all as to why you drove in the way that you did and saw none of these things.
47The agreed summary sets out the opinions of Mr Hay and reproduces some of the photographs. Detective Sergeant Hay I should say, says that had you commenced to slow when you should have, at the 80 kilometre speed reduction sign, 402 metres prior to the area of impact, there would have been no collision. You did not. Had you commenced controlled slowing you could have stopped from 195 metres out. You did not. You could have applied emergency braking 89 metres out from impact or 5.84 seconds to 6.46 seconds prior to impact. You did none of these things.
48Instead you were travelling at a minimum of 86 kilometres per hour at the time of impact. As I say, it is unclear if the impact was just within the 40 kilometre per hour zone or just outside it. It does not matter. You were not responding to it either way and you had done nothing to slow your vehicle and if the accident was not within the 40 kilometre per hour zone it was only metres from it and you were just travelling too fast.
49Your first braking was less than a second prior to impact. It was as though it was a sudden emergency, when of course it never should have been. By then of course, it was too late. You were inattentive for a minimum time of between 10 to 14 seconds.
50Your vehicle had no faults contributing to the collision.
51The agreed summary sets out some of the details from your interview. I have already said you were co-operative with the police. I take that into account in your favour, as I must. I have read the full interview. You described how you had kept a safe distance and how a car jumped in ahead of you, lessening your breaking opportunity. That is not what happened at all. You told police that you were aware of roadworks and the need to merge to the left and you started to slow down but were not aware of passing any signs. You told the police you thought the speed limit was 80 kilometres per hour but that you had seen no other signs. You described seeing cars slow down and stop suddenly and that a car quickly came in front of you and that you were left with no time to do anything other than quickly brake. Again, that is not what happened. You said that you were familiar with the road and the truck. You told the police that you did not see the 40 kilometre per hour sign. When you were confronted by what could be seen from the dash cam footage and the obvious absence of any car darting in front of you, you were at something of a loss to explain what happened. You denied being fatigued. You were at a loss to explain what had happened when you were speaking to Mr Newton. You are still at a loss. I should say none of this is said by me to suggest that you were deliberately misleading or somehow lying to the police in the course of the interview. You did not know what had happened as you were obviously completely ‘zoned out’ from all of the external events that should have informed your decision making. No doubt when your concentration ‘kicked back in’ again, for want of a better term, there was indeed an emergency braking setting, as by then, you had well and truly sailed past the point of no return. There is no explanation as to why you were driving in such a way. Nor has any explanation been provided to me by your counsel as to the earlier acts of errant driving in the preceding half hour. I will come back to them a little bit later.
52The prosecution sentencing submission sets out the chronology of the court listing of this matter. You have been in custody only since my remand of you on Tuesday of this week. Your guilty plea was an early one with no committal being conducted. This was a plea at what I will treat as the earliest of stages. That is important.
53So much then for what is only a summary of the summary. I will sentence in accordance with the far more detailed agreed statement of the facts which footnotes the various statements and photographs. I have regard also to the exhibits including the footage which I have referred to. I am yet to pronounce my findings in relation to the disputed aspect of the plea but that will also obviously form part of the facts upon which I sentence.
Victim Impact material
54Let me turn away from those facts and now deal with the consequences of your criminal acts in a bit more detail.
55There are a number of victims who have chosen not to make impacts statements which of course is their right. That is the position for most of the victims of the conduct endangering charges. The exception being Mr Gray and Ms Carland. Well it was the right of victims not to make an impact statement but this was unmistakably a shocking event. As I have indicated, I informed the parties that I had read the depositional material, which included the formal written statements of the various victims including those who have chosen not to make impact statements and unsurprisingly some of those statements set out the understandable immediate impacts at the scene. For instance a feeling of shock as the events took place or relief at surviving physically unscathed, as is described by Mr Sarmiento.
56No one caught up in this event will ever forget it and each of those who have chosen not to make an impact statement, so the people who escaped without any significant physical issues, will know how lucky they were to escape unscathed. Each victim other than Jemima would know how close they were to an event which placed them at risk of serious injury and their reference point will be the very sad loss of a child in that very same collision. They will never forget this day. However, they have chosen not to make an impact statement and so it would be wrong for me to then factor in the existence of any long-term impacts in their cases. I just do not know.
57I do however have a number of impact statements placed before me. So, victim impact statements, from Harriet's mother Felicity Stewart and her father Simon Peckitt, one from the little girl's maternal grandmother Suzanne Stewart as well as one made by Felicity Stewart on behalf of Jemima. I also have a victim impact statement from Mr Kenneth Gray and also from Nicole Carland.
58I often say in the course of this sort of case that I could I suppose in a broad statement, indicate that I have read and taken the impact statements into account and leave it there and then move on to discuss the matters that have been raised on your behalf. Some judges approach their task in this way, and I do not say they are wrong and I am right. It just occurs to me though that a fleeting or glancing recognition of the impact material is inadequate in a case such as this, given the nature of that impact and the dimensions of this tragedy.
59So rest assured I will turn to those matters raised on the plea soon enough. They are matters about you, about your plea, about your remorse, about your background, about your likely experience of prison, and of how your family will fare without you, about your prospects of rehabilitation. About the objective gravity of your offending. I will come to all of that in due course. Things dealing with your past, your present and your future. You have a future but by your actions you have taken away Harriet's future altogether and you have also dealt a savage blow both physically and emotionally to her family members.
60I have to sentence you for the crimes that you have committed and I must take into account a large number of matters and one of those matters includes the impact of your crimes. An impact statement is the only opportunity that a victim has to relay the effect of the crime upon them.
61Well Harriet was a 2-year-old girl. She was the much-loved daughter of Felicity and Simon, and obviously a much loved granddaughter. A loving sister to little Jemima and without any warning she has gone. How can anyone put these impacts into words. What a task. Well Jemima cannot. She is still only a toddler. So her mother Felicity read out an impact statement in relation to Jemima. The mother speaks with great sadness as to the different life which she says lies ahead for her surviving daughter. That little girl will progress, become a teenager and then a woman. She will do all these things and have no older sister with her along the journey of life. All the bonds and the closeness that would have and should have existed, they will not exist. She speaks of the unfairness of this. She does not like to think of the unfathomable experience for Jemima as she sat in the backseat of the tangled car alongside her dead sister, with both her parents' unconscious and covered in blood in the front seat.
62Harriet's parents read their impact statements out aloud. What a task.
63I am not going to descend into the full detail of what was contained in the impact material placed before me or even that much of it. Rest assured I have read the impact statements again since the plea and I would suggest that no one who was present in Court could ever forget Harriet's parents reading their own impact statements or for that matter, Harriet's maternal grandmother reading her sad impact statement. These impact statements are very hard to hear and that is because the loss that they describe is so difficult for them to bear. They were hard for you to hear and they were hard for your family to hear. I do not think there were really very many dry eyes in the Court in the course of that process.
64Let me start with Suzanne Stewart one of Harriet's grandmothers. She described the tragedy of losing a precious child. Not just that but learning that her daughter and son in law had been so severely injured. She speaks of learning of her daughter lying unidentified and critically ill and then attending and seeing her intubated and fighting for life. She describes then having to identify Harriet and then thrust by these circumstances into the position of having to take all the important steps and make all those important decisions that had to be made. Decisions that normally would be taken by a parent but they could not be taken by either parent because Felicity and Simon lay unconscious in hospital beds. She describes that long process of rehabilitation and the setbacks for Felicity and the harsh reality of being told that her daughter had suffered what was described as a ‘catastrophic brain injury’. She describes hospitals, the acquired brain unit and then home where the real rehabilitation could begin but having to then break the news that Harriet was dead, this being done 54 days after the event. She became her daughter's carer for a time. Suzanne Stewart has observed her daughter's struggles and she marvels at her efforts at rehabilitation. She correctly recognises that there is just nothing the Court can do to compensate. It is impossible. She says this is something the family will never recover from.
65Mr Peckitt read his impact statement. He describes losing his first child. He describes Harriet's funeral being the first funeral he had ever had to attend. He looks back to days of love and happiness with his daughter and says that his world just changed on that date, the 6 December. The loss of Harriet has been devastating. He woke up in Intensive Care in a state of delirium. He had no idea what had happened. Ms Stewart's parents broke the dreadful news to him. He then had to see his daughter in the funeral parlour and owing to his wife's predicament he had to keep from her the details of the death of Harriet. What a burden for him to carry, grieving in isolation from his wife. Then he then had to tell her. He suffered the unnatural event of losing a child and in such a way as this and he thinks about fate. One small alteration to their plans or itinerary and he would not be the author of a victim impact statement. As though the impact of the loss of his daughter was not enough, he also had to deal with the impact of his own very serious injuries as well as the devastating injures sustained by his wife. There is the additional material before me as to his medical predicament and also the ongoing issues which were placed before me by agreement in a brief document marked as part of Exhibit H. The plan to tree change up to the country has of course been shelved. There has been a process of trying to stabilise and consolidate and then hopefully deal with the grief and the physical impacts. Financial issues have arisen as neither he nor his wife are back at work full time. Mr Peckitt is a technical account manager in IT and has not been able to fully return to work. He speaks of some of the residual effects of his brain injury. He looks back at the good place he and his family were in just before the accident. He says he is not the same person. His family is not the same family.

66Felicity Stewart's impact statement likewise makes for very sad reading. She read it out aloud herself. Again it must be read in conjunction with the additional material marked as part of Exhibit H, which sets out some of the treatment and accommodation and logistical issues. She says that in an instant her life changed forever. She has such wonderful memories of her daughter Harriet and their travel overseas. There is obviously such sadness as these are memories that will never be built upon now. There is devastation in the loss of her child at such a young age and to such an avoidable and unnecessary act. They were returning from a weekend away exploring that tree change move up to the country to live in the Macedon Ranges in 2023. Ms Stewart was a VCE history and English teacher. She had a new job. Her thoughts were for her children's future and then in an instant, one of her children had no future and her own future was very much dimmed. The loss of her dear daughter. The loss of the dear sister to Jemima. She imagines as does her husband what life lay ahead for Harriet. It is all gone. She describes the process of being airlifted and the physical injuries and all the treatment and surgery required and the 54 days of post traumatic amnesia and then learning about Harriet's death.
67Her injuries included a severe acquired brain injury and she is left with a slurred and quiet voice, slow speech and balance issues. She was in a wheelchair for a decent time. She has struggled with vision and balance issues since the accident and her prospects of returning to life as a successful VCE English and history teacher seem very uncertain. She is sometimes enveloped by feelings of hopelessness. She could not pick up her surviving daughter Jemima for a year owing to those balance issues I have described. She says that she was a prisoner in her own body and home for the last 18 months. She is still very embarrassed by her voice. Well of course she should not be, but she just is. She is not who she was or at least she feels that way. She recalls feeling happy earlier this year venturing out to the shops on her own for the first time. She has limited social contact owing to the alteration in the way that she perceives herself. Embarrassment at her voice and her walk. She does not want to shock people and she certainly does not want their pity. As a teacher and one aware of the process of early childhood development, she is worried about her inability to model speech for her daughter Jemima.
68There are also the financial uncertainties spoken of.
69She describes some of the day-to-day physical issues. She has had to compartmentalise her grief to deal with her own recovery. In a way she feels like she has not been able to appropriately grieve for Harriet owing to her brain injury. Her grief will be lifelong.
70As she says, 'all the things that Harriet was meant to be, do, feel and see are no more.' There is a stark finality to that statement that is dreadful to entertain. Putting those sentiments into words must be heartbreaking for her. She and Mr Peckitt have had to deal with their own recovery and rehabilitation whilst dealing with the loss of their child. The dynamic of their own relationship has altered. How could it not? The dynamic of the family has altered. She describes the very happy memory of becoming engaged to Simon Peckitt over in Switzerland. It was a memorable day next to a beautiful mountain with baby Harriet strapped to Mr Peckitt's chest. This was only in 2019 and the world seemed to be at their feet. She says that the promise and the hope that they shared for the future on that day seems so far away and something they will struggle to regain.
71Let me say how remarkable that impact statement is and that of Mr Peckitt's for that matter. What a journey they have been on since December 2021. It is a journey one would not wish upon one's very worst enemy. The strains and the stresses and the grief have been overwhelming and the efforts of this couple and the determination apparent from the steps that they have taken, both together and alone, is quite incredible.
72Then there was the impact statement from Mr Gray. He read it aloud. It is a remarkably precise and factual statement. Almost understating his experience as he is so aware of the dreadful impact sustained by the Peckitts. Mr Gray and his Hilux were flipped through the air. He lost consciousness. He regained consciousness hanging upside down trapped and under threat of drowning in the grain inundating the cabin and going into his mouth and nose. It is the stuff of nightmares. He was unable to move his body but thankfully he could move one of his two arms and he was able to keep his airways clear as the difficult and dicey process of rescuing him was undertaken over a significant period. The memory of the collision has remained with him since. He did go to hospital but he was released without anything sizeable, physically at least. He has had some ongoing shoulder issues. Rarely a day goes by though when he does not think about all the possibilities, of how things might have turned out for him. Of those whose lives would have been altered had he not survived as he did. He is sad that one of his pets lost a leg in the collision and he feels responsible for that. Of course he should not. He speaks of the psychological impact. He had stepped back from a legal career to pursue new, challenging and interesting work opportunities and to mix that in with activities with his wife and his kids and his grandchildren. This collision has given him a bit of a glimpse into his own mortality. He has been personally exposed to an event that has taught him that life can end so suddenly. He now takes greater notice of media reports and sees reports of deaths at his age. He describes becoming more aware that death at 62, his age at the time of this collision, would not be considered a death at a particularly young age. I must say, speaking as a 62-year-old, I cannot thank him for reminding me of that fact.
73This collision, your crime in relation to him has had significant impact.
74There was also an impact statement from Ms Nicole Carland who was one of the very lucky ones at the scene, in the sense that she managed to avoid physical contact. Her impact statement was read aloud by Mr Hayward. Now Ms Carland took almost instinctive emergency action, she was one of those who drove off to the right and somehow avoided contact. She was exposed to a large risk obviously enough. Though not physically injured, she has been overwhelmed by being caught up in such an event as this. She describes a loss of sense of joy in life and having constant flashbacks to these events. She thinks of the collision every day. She analyses and over analyses her conduct and her decisions at the scene and she is really very self-critical. She describes her feelings of being torn up with intense guilt and feeling like she should have done more. That she thought there was something she should have done to save the little girl, a reference to Harriet. She returned to that topic saying she so badly wished she could have done more. That she had this immense guilt that she should have done more. It was a constant theme in her impact statement and I must say it worried me. Be kinder to yourself Ms Carland. You were involved in a very frightening incident. From your statement it is readily apparent to me you were in shock at the scene. You were physically shaking. There were motorists who kept driving. You did not. You rang Triple 0. Despite your own shock, you jogged to the various vehicles answering questions including as to the apparent state of Mr Peckitt and Ms Stewart. I have seen the photographs of that VW so trust me when I say this. You could not have physically got into that car if you had tried. That would have been impossible. You gave information about what you could see. And of course, you were relieved within seconds by members of the Royal Flying Doctor service. You were then told by the Triple 0-call dispatcher to get yourself into a safe position, to get off the road, to climb over the barrier but you did not. For you comforted Mr Shane Bourke, you comforted his two distraught young boys at the scene. This was the man towing the boat. You tried to assist Mr Gray in the upturned Utility, though he may not even remember it, I do not know one way or the other. You took one of his dogs and tried to get it to drink some water.
75I want to make it clear, as I hope I did during the plea, that you should dismiss all and every feeling of guilt. You did everything that you could do at the scene. There was nothing that could be done for Harriet and the professionals were there literally within seconds and were helpless to save her. You must put those negative thoughts and those self-critical assessments and 'what if's' out of your head. There was no ‘what if’. As I say, these injuries were simply not survivable, and nothing could have altered that outcome.
76Further, from my analysis of all the materials in this case, it is quite apparent to me that you were, in the face of what was a very frightening event which you were caught up in yourself, paying little if any regard to your own fragile position and you were instead devoting yourself to assisting many others who seemed to be in need. As I say, be kinder to yourself. You went above and beyond at the scene as far as I can see. Move on with your life knowing that you did all that you could do.
77It is a sobering experience as a judge reading this sort of material alone in chambers, more so actually hearing it read aloud in open court by the actual authors including, in this case, the mother and the father who were themselves so seriously damaged themselves physically.
78It is why the offence of culpable driving is as serious as it is. It is culpable driving causing death. Here the death of Harriet Peckitt.
79Her life has been tragically cut short at such a young age and your crimes have caused massive impact.
80I have spent a fair bit of time dealing with some aspects of the impact statements. People must understand that the impact of a crime is but one of a large number of matters that a Court is required to have regard to. There are many other matters that I must have regard to including the various matters in mitigation which were raised on the plea and which I will deal with soon enough.
81I will not let the impact of your crimes swamp my consideration of the other sentencing factors in this case. It is not my job to act emotionally.
82In relation though to the Stewart/Peckitt family and their extended family, the impact has been profound. Their lives will never be the same.   Others have been deeply affected by your crimes. Whilst I now leave this area of impact and turn to the various matters raised on your behalf, I do not lose sight of the impact of your crimes. It is a matter I must have regard to.
In Mitigation
83I will turn now to the plea conducted on your behalf by your barrister Mr Bloemen. He relied upon an outline of submissions dated 16 February 2023. He filed a report from a psychologist, Mr Newton (Exhibit 5). He also filed a large bundle of character references marked as Exhibit 6. I will not descend to the detail of all of those references in these my reasons. I have read them all again and take them into account. Indeed, I have read them again much earlier this morning. There was also a written statement made by you on the second day of the plea and Mr Bloemen called you to give an undertaking in relation to assisting if called upon in due course. Of course, that matter given the timing, was not mentioned in the February written submissions. He made oral submissions to me as to the worth of that statement and the mitigatory effect of your stance. He also filed material in relation to the contested issue on the plea and he engaged in the cross examination of Professor Naughton on that issue.
84He placed before me details of your personal and family background including your educational, employment and relationship history.
85He made some submissions as to the objective gravity of the offending as well as to the relevant purposes of sentencing in this case. He spoke of your response to the offending as disclosed to Mr Newton and to others, and your determination not to drive prime movers ever again.
86He made submissions as to your favourable prospects of rehabilitation and the absence of matters of real relevance in your past history before the Courts. He did not spend too much time on that brief history but told me something of those past matters. Most of them were obviously very dated.
87Mr Bloemen relied upon the following matters in mitigation:
·     Your guilty plea;
·     The early stage of that plea;
·     The presence of actual remorse in this case; and
·     The mitigatory effect of your co-operative stance;
·     The application of limb five from the case of Verdins[1];
[1]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ('Verdins')
88Now his written submissions contained those passages dealing with the appropriateness of the signage at the site. See p2 to mid-way through p4. I have said already, he entirely withdrew any submission as to there being inappropriate signage playing any role in this collision. I also raised with him what seemed to me at least to be pretty ambitions claims in terms of the COVID-19 driven increased custodial burden that was mentioned in his written submissions. He cited cases from 2020 speaking of the then current severe restrictions which were in place. I had made similar allowances myself back then, but I raised with Mr Bloemen my understanding as to the relaxation of most of the restrictions. He submitted that there would be quarantine imposed upon your reception. That was not my understanding and I provided to Mr Bloemen and the prosecutor the current Corrections protocol which I then had marked as Exhibit G.   He conceded that there had been very sizeable relaxations and essentially withdrew any real reliance on a COVID 19 increased custodial burden in this case.
89He addressed me as to the standard sentence scheme and the nature and gravity of the offending. Though not suggesting for one moment that the culpable driving fell at a low level viewed purely objectively, he challenged the prosecution contention that it fell at a high level of objective seriousness. He argued against any finding being made that you were asleep and or fixed with any sense of your own tiredness or incapacity in the lead into the collision such as to have provided some warning to you that you ought to desist from driving. He said that you were not fatigued. He placed before me a few examples of other sentences imposed by other judges, in other cases for culpable driving where the standard sentence scheme had applied, though he was not suggesting that any of those were particularly comparable to this case. He conceded that there was only one option here; that is a substantial term of imprisonment with a substantial non-parole period. Though conceding the seriousness of the offending, the obvious deep impact and the inevitability of a level of cumulation to reflect each individual victim, he reminded the Court of the need to adequately take into account the principle of totality of sentence. Your one act had brought about all of these results.
Prosecution
90Mr Hayward on behalf of the Director of Public Prosecutions made a number of submissions, both oral and written. There was a lengthy set of written submissions dated 17 February 2023 and so of course those submissions did not deal with the co-operation evident in the statement and the undertaking that was given. Mr Hayward placed before me the view of the investigators as to the high worth of your statement and the reasons why that was so. Plainly there had to be some allowance made to reflect your stance though of course the stance related to an investigation into possible offences committed by Directors or other employees of a much lower level of seriousness than the ones you had committed and the Directors were in no way co-accused or in any way responsible for the decisions that you made on 6 December.
91I do not intend to set out everything raised by the prosecutor.
92He argued that I should be satisfied beyond reasonable doubt that you were fatigued or sleepy or otherwise not in a fit state to continue driving and you were aware of that fact. He took me to the footage, to the observations of the other motorists and the actual final phase here. It was all consistent with micro sleeps. But whatever term was employed, whether microsleeps or just a failure to concentrate, whatever tag was employed, you must have been aware of your actions. You must have been subjectively aware of the issues in your driving. You were a professional driver. If these were micro sleeps as Professor Naughton said they were very likely to be, the Prosecutor said you would have been aware of them. If microsleeps, you must have awoken to find your prime mover and trailer halfway off the road in the Tuckerman footage and the Gordes observations. You have taken active steps to bring it back onto the road. If not a micro sleep, you must have been awake to the whole process of drifting or swerving throughout. Either way the prosecution argued you were on notice. That was the nature of the submission. You were they said a professional driver of some decent experience, in control of a large prime mover and loaded trailer. You were not in a fit state to drive and you knew that prior to the collision and this aggravated the offending. You should have stopped. You chose not to, despite the very obvious warnings and here we all are. He argued that therefore your moral culpability which already was high, was increased.
93Mr Hayward argued though that irrespective of those conclusions, that culpability was high enough. A professional driver with a vehicle with the size and mass of the truck and trailer that you were handling, a person who was familiar with that vehicle and the road. The road was the Calder Freeway. It was not you hitting the verge of some small thin country road that was hard to negotiate. It was the Calder Freeway, a good road surface and in a position where there was a very good view of what lay ahead of you. You were not coming around some bend being confronted by something. It was all there to see.
94The collision occurred despite all the signage on the road. The prosecution argued there were clear warning signs which you inexplicably paid no heed to at all. Nor any heed to what was occurring on the road before you, until it was too late. There were the road conditions, the weather conditions. It was not at night; it was broad daylight. It was all there for you to see. All there for you to respond and react to. He argued you had not responded until 0.91 seconds from impact which was many seconds past the point of no return as you then drove into the VW at no less a speed than 86 kilometres per hour. The prosecution argued that this was prolonged inattention even if focusing only on that last phase as depicted in that Cole footage. The prosecutor argued that viewed purely in terms of the objective features of seriousness, that the culpable driving was a high-level offence. As to the negligently causing serious injury and the conduct endangering serious injury charges, the same arguments as to culpability were germane to those offences and the consequences in terms of the negligently causing serious injury have been dire. The prosecutor referred me to the principles set out in Neethling’s case. He made some submissions as to the standard sentence scheme and the need to pay regard to totality. He accepted that there were matters in mitigations here - this was the earliest of pleas, you were remorseful and that you did have good prospects of rehabilitation, and that prison would not be easy for one such as you with the condition spoken of.

95The Director was calling for a term of imprisonment with a non-parole period but so much had been conceded by your own counsel in the course of the plea.
Background
96I have said really nothing to this point as to your background. Your background is set out in detail in Mr Newton's report. It is also covered quite expansively in Mr Bloemen's written submissions from page 8-14. There is no great utility in my restating now all that I have learnt about you. I accept the personal and family background and provide now only a brief nutshell.
97You are 44 years of age. You were born in Warracknabeal in February 1979. Your mother and father are still alive and attended court the other day and again today. You father was a farmer. He had a farm when you were first born, and the family moved into Donald when you were 5 years of age or so. I am told that your father was a pig farmer for some 25 years and he overcame some significant obstacles posed by contracting polio at a young age. Your parents still live in Donald. You have a close relationship with your parents. You had a decent upbringing, positive memories of it and that sets you apart from so many who sit in your position down in the dock of the court. You have one older brother.
98You were educated in a regional secondary school to part way through Year 11. You were not that academically inclined but you had no particular behavioural issues. You left school and you started an apprenticeship. That was an apprenticeship at a bakery firstly in Donald, which you completed in Ballarat. The outline sets out various jobs you have had. I am not going to set them all out. It is obvious to me that you have had a very good employment record. Again, that sets you apart from many who sit in the dock of a court. You have been a hardworking and contributing member of society. You went into the trucking industry to better provide for your family. But for that decision, you would have been most unlikely to have ever sat in the dock of a court. You have not had issues with drugs. There were some issues with alcohol many many years ago, but not for decades. There is a strong work and personal reference from your last employer Kooka's Country Cookies. I say last employer in that you were working until I remanded you on Tuesday. You are obviously an excellent worker.
99The relationship history is set out before me. You were married to Rebecca in 2001. There are four children from that relationship which ended in 2017. Three girls and one boy. The two oldest girls are 22 and 21, they have children themselves and they live independently. The young boy is 17, he is doing an apprenticeship and the youngest, Chloe is 15 and she is still at school. The two youngest live with you and your partner, your partner being Rose Bungey. Your going to prison is a massive event for you and of course for your family. It has all sorts of ramifications including financial ones and it will not be easy for you or for them.
100You are in decent health though you have exhibited some features of anxiety since the collision, which is hardly that surprising and of course you have sleep apnoea that has been referred to.
101There is the history of your appearances before the courts and it assumes really no importance in my task, even though the matters previously dealt with are driving related matters. Most of them are very old, and the most recent matter seemed to relate to something of a misunderstanding in terms of your capacity to drive your car in the course of the VicRoads suspension following the 2019 collision. The penalty imposed by the Magistrate very much supports that view. So, that prior record before the courts does not really inform my task in the way that sometimes it does. Sometimes a criminal record speaks of a continuing strong disregard for road rules and obligations and duties to other motorists such as to very sharply focus the courts mind on the need for community protection and specific deterrence. That is not the position here at all. Given the age of most of the matters in that record and your occupation as a professional driver for many years it is a very modest record indeed and everything else I have learnt about you suggests that you have positive and decent values. I say everything else, as I do have that large variety of strong references placed before me. References that speak of your many qualities and also your response to this incident. References from your mother, from your partner, from your daughter Monique and a cousin as well, as well as a range of others who know you well and speak of your character.
102Let me turn then to the matters that have been raised in mitigation in the course of the plea conducted on your behalf.
Guilty plea
103I will deal firstly with your guilty plea, one made at the earliest stage.
104You have taken early responsibility for your crimes. That may not seem like much to the various victims as they sit there but let me tell you, not everyone takes responsibility in the way that you have. Well, you have and that has not altered at all as a result of the submissions made by your counsel as to the aspect of fatigue or the cross-examination in that area. These were legal matters but made in the setting of someone who from very early on, had admitted by their plea the existence of gross negligence in this case. So you have facilitated the course of justice. I must reward you for that. That is the law. The community has been saved the time, and the cost and all of the effort associated with a committal in the Magistrates Court or a trial up in this Court. All witnesses have been spared the experience of giving evidence in Court. That is no minor thing. Reading an impact statement can be harrowing enough, as I am sure we have all seen. Giving evidence can be especially harrowing in this sort of setting. Each witness would have been required to relive in court the collision and describe their memories of it. The various victims including Mr Peckitt and Ms Stewart, and in their case, perhaps even their extended families, would have felt a need to attend the hearing and would have been riding the roller-coaster that is ridden in the course of any contested trial. A trial that may have not taken place for some time given the impact of COVID-19 on our backlog of cases. All those uncertainties were removed and that was because you swiftly admitted your guilt. It is not that unusual for people to take their chances in front of a jury in culpable driving cases. Hoping for a complete acquittal whatever the deficiencies of their driving. Perhaps hoping for a verdict on a lesser or alternative charge of dangerous driving causing death or serious injury. Again, that did not occur here. You have put your hand up. You admitted your culpability. You have taken your responsibility and it is plain enough from the references placed before me that you submit yourself for due punishment.
105I take into account your guilty plea as I must and the early stage of that plea. I take into account also your cooperation at the scene and in the course of the interview.
106Over and above all of this, you have pleaded guilty amidst the disrupted operations of this Court that has been brought about by the global pandemic. A large backlog of cases arose during that pandemic. We are still dealing with that backlog even though we seem to have reached a point where there are no ongoing restrictions increasing the pressure on the Court. There is a heightened value for a guilty plea in this case for the reasons set out in the Court of Appeal decision of Worboyes v The Queen[2] and many cases since which follow that decision. The same rationale exists even though the pandemic crisis has eased. The backlog remains and your case was never part of the backlog.
[2]Worboyes v The Queen [2021] VSCA 169
Remorse
107I can deal with the issue of remorse very briefly. A guilty plea is usually indicative of some remorse and here it was a plea made at the earliest time. I have your conduct at the scene upon learning that you had killed a child. I have all the material in the character references speaking of remorse. I have Mr Newton and what you told him and what he observed. I will not set it all out now or even when I deal with his report. You are not an expansive individual; you are quite a stoic man. When pressed by Mr Newton you told him that you felt sick to the stomach every time you thought about it. You have a sense of deep distress knowing that you have caused the death of a young child. You tell Newton you cannot even imagine what the girls' family are going through. This is not an exercise of wallowing in self-pity. That is not what I detect at all.
108You seem more concerned for your own family and how they will cope without you than pondering on your own fate and you express remorse for the other family and your acts. Well none of this is too surprising to me. The fact is it would be a truly remarkable individual who could be involved as you were in causing the death of a child and the serious injuries to the parents and not have a sense of distress at those consequences. Remarkable in a bad way. You are not that person. You are a decent contributing member of the community. The references describe you variously as a gentle and generous and caring person. Your own girls have themselves children, your grandchildren and they are young, a couple of them are around 2 years of age including a granddaughter. How could you not process the enormity of your actions and the loss caused by those actions by reference to your own family? How could you not appreciate the enormity of the loss and damage you have caused? Of course, you do. Of course, you are remorseful. I have no doubt about that at all.
Rehabilitation
109This is as good a time as any to deal with the submissions made as to your prospects of rehabilitation. Again, I can be brief. You have none of the issues that so often impede a person's prospects of rehabilitation for instance an addiction to illegal drugs or unstable background or pressing serious mental health concerns. None of that exists here. There is in fact no challenge taken by the Prosecution as to your having good prospects of rehabilitation. I will not set out all the materials I have before me. I have your early plea. I have all the material in the references, I have Mr Newton's report. I have the absence of any serious criminal history. I have your level of remorse and your vow not to drive a Prime Mover again. You have been damaged by this offending though obviously not in anything like the same way as Mr Peckitt and Ms Stewart. You have been a contributing member of the community and the community frankly has not needed protection from you in the past and nor will it in the future. You will none the less serve a very substantial prison term. You will never forget the day that you killed Harriet and seriously injured her parents and marred their lives. There is much more I could say and much more material I could place into my reasons, but I think you are getting a sense that these reasons are already perhaps overly long. I have no doubt that you have favourable or good prospects of rehabilitation and a very low risk of ever offending in this way again.
Mr Newton - Verdins Limb 5
110I am not going to spend much time dealing with Mr Newton's report and the submissions made as to it. I accept the submissions. People in court would have heard reference to the decision of Verdins and what was said to be the modest engagement of limb 5 from that case. That decision (Verdins) is a decision of our Court of Appeal dealing with the impact upon the sentencing process of various conditions existing either at the time of offending or sentence or both. That is no doubt a gross simplification of those principles, but it is sufficient for present purposes. Limb 5 from that case relates to an increased custodial burden brought about by the existence of a relevant condition. I take the report into account. Obviously, no condition existed at the time of the offending. However, your counsel relies on the report to show that you have developed an adjustment disorder. In part it is reactive to the uncertainty of your own unhappy present position but there are other reasons for it. You ruminate on your involvement in the death of Harriet and your role in that and the damage that has caused. There is a theme of self-punishment in your mindset referred to in that report and also in some of the references. There is the diagnosis of an adjustment disorder with anxiety and Mr Newton speaks of the impact upon a person such as you in prison with that sort of condition. Mr Bloemen was not suggesting that this is a large matter in the scheme of things here. It is not. He submitted that there could be a modest allowance made in the sense that here, there is an increased burden felt by one with such a condition. I will make some modest allowance for it consistent with the limb 5 submission made by your Counsel. I also factor in that you are going to prison for the first time aged 44 and of course you will be worried about the predicament of your partner and your family. I cannot have any regard to the impact upon any of them, for to do that, any hardship would need to be exceptional and it just is not here. However, none of this will be at all easy for you as you adapt to life in prison. Of course you will be concerned for their predicament and I do pay some regard to that as well, even though no separate submission was made to me on that score.
COVID-19
111Finally though your counsel withdrew the submissions founded on an increased COVID-19 impact in prison and that withdrawal was owing to the relaxations which have been made to the restrictions, I do not believe it is unreasonable to think that prisoners may yet have some more minor issues thrown up by the COVID-19 virus in the short term. For instance, there still might be the occasional lockdowns and/or quarantine upon a positive test. I take that into account. It is not a major matter and it does not come close to the increased burden which undoubtedly did exist at the height of the pandemic where there were no personal visits, no courses or programs in person and much increased time locked in cells.
112What lies ahead in the future on the COVID front for prisoners is really impossible for me to determine. Mr Bloemen agrees I am not free to guess in that area. Those whose job it is to run the prisons will be able to reflect on the impact of any past and ongoing limitations on a case-by-case basis. They would have the power to address any increased burden in your case by way of conferring emergency management days in relation to the sentence I am about to impose. I cannot know if that will take place or not. I make it clear I do not proceed on the assumption that you will be credited with emergency management days. To take that into account in that way would be for me to contemplate future executive action, which is prohibited to me.
113I take into account the increased burden imposed by the response to
COVID-19 in the very limited manner that I have described which is consistent with ultimately what was urged upon me after discussions with your counsel.

Assistance/undertaking
114I turn to the statement that you made on the morning of the second day of the plea on Tuesday of this week and the undertaking that you gave to give evidence if called upon and to assist the investigation and if it comes to it, the prosecution of your employers or the Directors of the company. I am urged to take that into account and it is plain that I must. It is a matter of the weight to be given to this.
115Many factors are relevant to the exercise of the discretion in this circumstance. There is no mathematical or mechanical process for fixing the value of the cooperation discount. There is nothing standard or set in stone. The discount will always be determined according to a large range of factors, including but not limited to the nature and extent of the co-operation, any willingness to give evidence against co-offenders, and any danger flowing from the cooperation. The extent of any sentencing discount will always vary from case to case.
116You are not an informer providing the information that an informer is providing and with the high level of risk that comes with that territory deserving of sometimes very sizeable percentage reductions in sentence. That is not the setting in this case at all. Those who might be investigated and charged, if they are, are not co-accused. The assistance you are promising (and hence your statement) relates to a potential investigation into your former employers and Directors of that company in terms of their failure to comply with mutual obligations and appropriate training, education and induction and the like. So the deficiencies in training and in the way in which rest breaks and work times are calculated. This material is said to be of significant interest to the investigators. The investigation potentially might unearth evidence sufficient to lay charges, including indictable offences. It has no actual connection to your driving on this day or their having any culpability for any of the decisions you took on 6 December 2021. So the potential charges against your employers or Directors of the company, if any are ever laid, would be in relation to far more minor offences under the relevant regulatory regime set up for heavy vehicles. It is for me to make judgements about the allowance I make but in terms of the value of the information, I have to depend to some extent on what I am told. I read the statement. I perhaps was a bit dismissive of the statement upon first reading it. It did not strike me at first blush as having much value.
117However, the prosecutor informed me that it is judged by the heavy vehicle unit to be of high value. They wanted it. They asked for it. You gave it and you then gave the undertaking, and they say that it is valuable. I will act on that assessment. I accept the submissions made by your counsel on this topic. There must be some allowance made in your favour, that much is clear. Your counsel though conceded it is nothing like the case of Singh where the Directors were being dealt with for culpable driving themselves. Here though of high value, it would relate to far more minor charges if any are ever laid. Your counsel spoke of the role this stance could have in terms of making judgements as to your rehabilitation. I have no doubt about your having good prospects, I have already pronounced upon those. As to risk it struck me as odd that all this was being done in open Court without any step being taken to close the court or suppress any publication of this specific detail. On reflection it perhaps was not that odd. Typically, a prisoner giving information might expose that very person to some risk. Sometimes, the risk is extremely high and all sorts of steps are taken to shield the prisoner from exposure. None of those steps have been taken in this case by very experienced practitioners which surely must be a recognition by them of the very minimal risk posed to you here. Prisons are strange places with a strange moral code. You are not promising to assist in relation to a criminal co-accused in an armed robbery or to blow the whistle on some international drug cartel. You are providing a statement to be used in an investigation of your employers and Directors of a transport company. They are hardly going to attract much sympathy I would have thought nor your conduct much censure from those around you. I accept your counsel's submissions though that there must be some reduction in your sentence owing to your cooperation but it is a very long way removed from those cases which speak of sizeable percentage reductions . However, there is a reduction, I make that very clear.

145I have scarcely mentioned the summary offences. Though they have no causative link to the major offences I am dealing with, they are serious between dates rolled up offending where you saw fit to repeatedly fail to correctly record details 28 times, recorded false or misleading details 26 times and chose not to take the appropriate rest break 9 times and worked for more than the maximum time on 5 occasions. That last conduct is what is referred to as a critical risk breach. All this in a couple of weeks. These requirements exist because of the object of avoiding drivers of heavy vehicles from driving whilst fatigued. They are not recording requirements to be fudged and ignored. The risks upon a collision involving a heavy vehicle are potentially catastrophic.
146Let me turn to the various purposes of sentencing.
147I have to consider a number of purposes of sentencing. One of those purposes is your prospects of rehabilitation. They are good. There are many other purposes though my finding as to your very low risk of reoffending and having good prospects informs the weight I give to some of these other purposes of sentencing.
148I have to punish you but I must do that justly and proportionately. Punishment is obviously an important sentencing purpose here.
149I must also denounce your conduct. Again, that is important.
150I must pay appropriate weight to specific deterrence. That concept relates to the need for a court to deter the offender from future offending. It is not a matter of great weight here at all given my favourable findings. In a different setting, a different case with a different offender, one with for instance a dreadful driving record before the courts, one could easily see how it would be a very powerful purpose indeed. That is not the position here at all. You have good prospects of rehabilitation, a very low risk of reoffending, and it stands to reason that there can be very significant moderation of this purpose. It drops away very significantly in my task. The same can be said for community protection for the same reasons.
151General deterrence is however a very different proposition. It is very important. It looms large in my task. That concept relates to the need to deter other potential future offenders. It is a matter of real importance in this sort of case, as is readily conceded. It is regrettably not that uncommon to see fatigue regulated heavy vehicles involved in serious and fatal collisions. There are many instances of charges of culpable driving committed by such drivers. Fatigue and lack of concentration are not uncommon aspects of the cases brought before the courts. The Judicial College of Victoria sentencing case collection confirms that it is not at all unusual. In fact, I was referred to a number of such instances by your own counsel. Drivers of these vehicles must somehow get the message as to the inherent danger engaged in driving those vehicles, of the danger of driving when fatigued or not in a fit state to continue driving. Of the high importance of focus and concentration. They must understand the need to break a journey whatever the demands that might be being placed upon them by their employers. The roads are a dangerous enough place at the best of times even with people doing their best to drive appropriately. All drivers, not just heavy vehicle drivers, must understand that significant punishment awaits those who by their criminal acts, cause a death or who endanger other road users or pedestrians. The risks posed by the culpable driving of larger vehicles is an increased one. It is just a matter of the physics of the exercise, and the mass of the vehicle and the destruction that they can cause.
152The message has to be sent loud and clear by the sentences imposed by the courts in this style of case. That message is of high importance given the potential tragic consequences which are so amply displayed in this case.
153I have to have regard to the maximum penalty, here 20 years' imprisonment for culpable driving, 10 years' imprisonment for negligently causing serious injury and five years for the conduct endangering serious injury.
154I must also pay regard to the impact of your crimes. I have spoken of that at length. Devastating impact for Harriet's family. Devastating impact for her parents independent of the loss of Harriet, given their own serious injuries. A yawning gap in Jemima's life and so on.
Standard Sentence Scheme
155As I said earlier, the standard sentence scheme applies only to one of the matters before me, being the charge of culpable driving. The standard sentence for culpable driving is 8 years.
156I must have regard to that standard sentence.
157The effect of that scheme has been discussed in a number of cases amongst them the cases of Brown[7], Victorsen[8] and also in a case of Quah.[9]
[7]Brown v The Queen [2019] VSCA 286
[8]Victorsen v The Queen [2020] VSCA 248 (“Victorsen”)
[9]Quah v The Queen [2021] VSCA 164; 290 A Crim R 136 (“Quah”)
158I also have regard to the discussion of the provisions set out in the Judicial College of Victoria Sentencing Manual.
159That standard sentence of 8 years 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, see s5A(1)(b). That is to say, making that assessment without reference to purely personal matters, see s5A(3)(a).
160Viewed objectively, for the reasons I have provided, this is a serious example of the offence of culpable driving in my judgment falling well above the mid-range viewed objectively.
161What is plain from the SentencingAct itself and from these decisions interpreting these provisions, is that the standard sentence is only one of a number of matters I am required to take into account. Where it does apply, I must take it into account as one of the factors, but this scheme was never intended to interfere with the intuitive synthesis that lies at the heart of sentencing nor to lead to any consideration of two-stage sentencing.
162It does not have primacy over other factors which must be taken into account. It introduces an additional factor, in the form of this legislative guidepost.
163It does not represent and must not represent a starting point from which the sentence is to be fashioned or structured. I am not and must not start at that point in relation to Charge 1 culpable driving and then work my way either up or down from that standard sentence figure, making a series of adjustments in either direction.
164Nor does this scheme otherwise affect the matters that a court must take into account. It does not change the requirement for me to assess the seriousness of the offence or the means of assessing the seriousness of the offence. I have set out my approach in that regard in some detail.
165The provisions do impact upon the consideration of past sentencing practices for the crime covered by the scheme. When I consider current sentencing practices or I look at comparable cases, I must only have regard to sentences that have been imposed for the offence of culpable driving when it was dealt with by a court as a standard sentence offence. Sentences imposed for crimes which predate that scheme are not to be taken into account though that does not impede my talking into account statements of principle from cases which happen to predate the scheme. That is perfectly permissible.
166The standard sentencing regime also has consequences for the setting of a non‑parole period and the ratio of the non-parole period to the head sentence. See s11A(4).
167With that important qualification in regard to current sentencing practice for culpable driving and the importance of the date of any past offence, I must pay regard to current sentencing practices.
168It is not a single controlling factor.
169The Sentencing Advisory Council snapshot for culpable driving, that is snapshot No. 275 of June of this year is produced from data that spans the periods from 2017-18 to 2021-22. That data would cover many sentences that are not the subject of the scheme that came into force in February of 2018. I must not have regard to those earlier sentences. As I mentioned in discussions earlier this morning, a new feature of that Snapshot is the ability to see some representation of the sentences imposed for examples of the offence covered by the standard sentence scheme. The online data held by the Sentencing Advisory Council has probably a better and newer feature being a section that actually hives off the statistics pertaining only to standard sentence matters. It is more user friendly and I have viewed that data. I have looked at online statistics for the other offences. I have looked at a number of examples of sentences passed for culpable driving when dealt with as a standard sentence including the cases I have been referred to. I have looked at a range of examples of sentences imposed for negligently causing serious injury and conduct endangering serious injury as set out in the Judicial College of Victoria case collection.
170As I indicated I have looked at those cases to which I have been referred by Mr Bloemen. None of those cases is on all fours and he was not suggesting they were.
171There are a range of differing matters in mitigation and aggravation, which is almost always the position.
172I am exercising a sentencing discretion in your case. No amount of looking at other cases or statistics could ever provide the answer to my task. Other cases are not precedents. Statistics have inherent limitations
173Nor is there even any such thing as one correct sentence. There are always a range of differing aggravating and mitigatory features in every case. The statistics never disclose those things.
174What I have to do is assess these matters in your case. I am exercising an individual sentencing discretion in your case, not any of those others.
175Prison is a disposition of last resort. It always will be, it always has been. A substantial prison term is inevitable here as your counsel concedes. For that reason I have not given any coverage of the status of this offence as a Category 2 offence. Despite your co-operation it is plain that you must go to prison and that is conceded, so I do not further discuss those provisions.
Totality
176I take into account the principle of totality of sentence. I have engaged in a 'last look' at the sentences imposed by the court and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you and to ensure that the overall effect is commensurate with your overall criminality. That short sentence sets out broadly this concept of totality, and it is a principle which is plainly important to my task.
177To comply with the principle of totality, what I have to do is to determine an appropriate sentence for each of these individual charges, taking the applicable sentencing considerations into account, then I must designate the highest term and nominate that as the base sentence. Well obviously, in this case, the base sentence will be imposed on the culpable driving charge, which is Charge 1.
178I must determine though the extent to which there should be cumulation regarding the other sentences, the extent to which they should run together or add to the base sentence.
179Then there is that third step. It is an important one here, as I am dealing with 13 charges on the indictment arising out of one incident. It is the taking of that 'last look' which I have referred to. So I am really required to 'stand back' and to consider, in light of the principle of totality, what is an appropriate overall total effective sentence.
180If applying the first two steps produces a total effective sentence that infringes totality, then what I must do is moderate the extent of cumulation to ensure that the total effective sentence complies with this principle.
181It is inescapable that there must be a level of cumulation here. That is conceded. It is inescapable that you must receive a substantial prison term here. That is conceded.
182Even though your end driving near the underpass has had the effect of causing all this grief, it was your one act. I am not dealing with you for some incident 2 days or 2 hours or 20 minutes earlier with a separate act and a separate victim. I am not dealing with someone who commits an act on the road and then flees the scene and does not provide assistance. I have the one act but of course I have all these separate consequences. I have multiple separate victims.
183You have killed two-year-old Harriet. You have seriously injured her parents. The negligently causing serious injury charges are plainly the second and third most serious crimes on the indictment. That much is obvious. They are in my view serious instances of that crime with large physical and emotional impacts and a mechanism replete with features of aggravation which I have spoken of at some length. There must be meaningful cumulation for the negligently causing serious injury offences owing to the gravity of those offences and the extent of the impact.
184Then I have the other 10 people that you have placed in danger of serious injury. So, one act but multiple offences and victims and consequences.
185Those 10 endangerment offences are each separate crimes in the sense that there are separate victims and no doubt separate impacts. The prosecutor referred me to the case of Towle[10] that deals with the notion that victims must not become meaningless statistics. They are not. They are not a job lot. They must be meaningfully reflected by the sentences that I impose and marked out at least, by some level of cumulation.
[10]R v Towle [2009] VSCA 280; 54 MVR 543
186Again though, totality is an important consideration and it compels very sizable moderation of cumulation for the conduct endangering serious injury offences when I stand back as I must, and look at the overall effect. So for those matters, I have taken the view that there must be very large concurrency as between the individual sentences, failing which the total effective sentence quickly assumes a crushing dimension. I have been to a degree troubled by the extent of the concurrency demanded in this case. It is so small in relation to most of the endangerment offences that it might almost be viewed as dismissive or derisory given the seriousness of those offences. However, I believe that this is the correct approach to take in this case, to cumulate greater periods of the more serious conduct relating to the negligently causing serious injury. They are very serious offences.
Sentence
187I said earlier, there are no winners in cases like these. There truly are none.   For all I know, when I adjourn in a short moment from now having passed sentence upon you, there might be disappointment and sadness and it might spread across, not one, but two families who are sitting in Court; yours and the Peckitt/Stewart family. It is probable, if not likely, that no-one will be happy. Why would anyone be happy in the setting of this case? But I have to pass an appropriate sentence here.
188You did not wake up early that morning up in St Arnaud thinking it was going to be a day that would shape your life or dent the hopes and dreams of others. But it did all those things. You did not envisage this horrible outcome when you drove on after that earlier bad driving.
189Your life changed in the moment that you ploughed into these vehicles. In that same instant, of course, the Peckitt/Stewart family has been dealt a shattering blow. Not just the loss of Harriet and all that comes with that but a substantial alteration in the quality of their own lives. They remain deeply affected physically and emotionally. They will never forget this day. Nor will any of the other victims who were caught up in this collision, all of your making.
190You will never forget what you have done. I have said already, you are a decent man. You would probably do anything to take back your act or to mend their family if you could but, of course, that is impossible. The culpable driver cannot substitute out the innocent victim. The act cannot be taken back. It is why we demand such high standards of driving and heavily penalise such gross departures from that standard as yours. These consequences cannot be taken back.
191It is a given, indeed Harriet’s grandmother's impact statement recognises this fact, that my sentence is not to be taken as some attempt by me to measure out the worth of Harriet’s life or somehow to compensate for the damage done. That is not my sentencing task at all and it would be quite impossible to do that. No value can be assigned to a human life. Harriet’s life was priceless. She cannot be replaced. She will be missed forever by her many loved ones. There will be no comfort at all for any of them in the sentences which I will now impose.
192But what remains to be done is for this Court to pass an appropriate sentence for these serious crimes. That is what I will now do.
193Mr Livingston, I will have you stand up now, if I could. If you would stand up, please and I will now pass sentence upon you.
Sentences
194On Charge 1, that is the charge of culpable driving causing the death of
Harriet Peckitt I convict and sentence you to 8 and a half years' imprisonment.
195On Charge 2, negligently causing serious injury to Felicity Stewart you are convicted and sentenced to five years' imprisonment.
196On Charge 3, negligently causing serious injury to Simon Peckitt you are convicted and sentenced to four and a half years' imprisonment.
197On Charge 4, this is the charge relating to Jemima Peckitt you are convicted and sentenced to 18 months' imprisonment.
198On Charge 5 relating to Ken Gray you are convicted and sentenced to 18 months' imprisonment.
199On Charges 6, 7 and 8 the charges relating to the Bourke family, so father and the two children, on each charge I convict and sentence you to 18 months' imprisonment.
200On Charge 9 relating to Antony Brown I convict and sentence you to 15 months' imprisonment.
201On Charge 10 and 11 relating to Mr Shelley and his passenger Mr Marlais, on each charge I convict and sentence you to 15 months' imprisonment .
202On Charge 12 relating to Mr Sarmiento I convict and sentence you to 15 months' imprisonment.
203Likewise for Ms Carland the subject of Charge 13, I convict and sentence you to 15 months' imprisonment.
Summary offence
204The summary offences are not even amenable to prison terms. They are all between dates and they were all serious enough and all I have at my disposal is a fine.
205On Charge 22 you are convicted and fined $1,000.
206On Charge 24 you are convicted and fine $2,500.
207On Charge 25 you are convicted and fined $2,000.
208On Charge 27 I convict and fine you $2,500.
Base
209The base sentence therefore is the 8 and a half years that I have imposed on Charge 1.
Cumulation
210I make a number of orders for cumulation. You and others will lose track of what this all amounts to; I will tell you at the end in terms of the total effective sentence. I direct that,
·   16 months of the sentence imposed on Charge 2 relating to
the serious injuries caused to Felicity Stewart,
·    14 months of the sentence imposed on Charge 3 relating to

the serious injuries caused to Simon Peckitt,
·   3 months of the sentences imposed on each of Charges 4 and 5, so the charges relating to Jemima and also Mr Gray,
·   2 months of the sentence imposed on each of Charges 6, 9,10, and 13
·   1 month of the sentence imposed on each of Charges 7, 8, 11 and 12
is to be served cumulatively upon the base sentence and upon each other.
Total Effective Sentence
211These orders are intended to bring about a total effective sentence of 12 and a half years' imprisonment.
Non-parole period.
212I am required to fix a non-parole period. The Adult Parole Board will be the body making the decision as to whether you can be released or not. It has got nothing to do with me. In fact, I am prohibited from speculating as to whether you will be released on parole or not.
213Unless it is in the interests of justice not to do so, I am required to fix a non-parole period of at least 60 per cent of the ‘relevant term’. The ‘relevant term’ is that total effective sentence, which I pronounced, which is 12 and a half years.
214I do not believe it is in the interests of justice to fix a lesser ratio in this case. Your counsel was not submitting that it was. I do though have a decent gap between the head sentence and a non-parole period.
215I fix a period of 7 and a half years during which you will not be eligible for release on parole.
Section 18 pre-sentence detention.
216You have already served 3 days in custody by way of pre-sentence detention, and that is to be entered into the records of the Court
Licence order
217I must also make an order against your licence. Culpable driving causing death is a ‘serious motor vehicle offence’. There is, as a result, a mandatory requirement to make an order against your licence. I must cancel and disqualify your licences and that is for a period of no less than 24 months. A licence order, when it is made by a Court, is protective but it also operates as a form of additional punishment because it engages punishment.
218You are going to prison for a very substantial period of time. Whenever you are released, you will need to try to establish yourself back in the community. A licence is obviously an asset in the job market generally. You will likely be living where you have always lived, in a regional town where it assumes even greater importance. You are receiving very sizeable punishment by virtue of the prison sentence that I have just pronounced. I have already spoken of the way in which community protection and specific deterrence have dropped away very significantly in my sentencing task. You have also been deprived of your right to drive a heavy vehicle since the medical review on 1 February 2022, though that has not been problematic, as you vow never to drive a prime mover again.
219The reality is that the mandatory minimum disqualification period of 24 months would have no tangible impact upon you at all, given the sentence that I have imposed. I have considered whether I should make an order in such terms as to link it to your release date, whenever that should be, in the manner discussed in cases such as Tran[11] and Caldwell[12]. That sort of order could be tailored to bring about a period of disqualification which would be awaiting you upon your ultimate release from prison, whenever that is. That release date is many years hence.
[11][2002] VSCA 52
[12][2004] VSCA 40
220I have queried the utility of taking such a step as that, which would probably only impede your reintroduction back into the community especially in a setting where there is such sizable punishment already meted out and little weight given to community protection.
221On the charge of culpable driving causing death then, I am going to impose a licence order that really will have no tangible effect upon you. I cancel all licences to drive held by you. I disqualify you from obtaining any another permit or from driving in this State for a period of five years commencing from today. I will let you have a seat, I think. I have got something else I need to say, but grab a seat if you want.
5(2AB) statement
222I have taken into account your undertaking to give evidence and to assist the authorities if called upon to do so. I have reduced your sentence accordingly.
Section 6AAA
223I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences, I would have convicted and sentenced you to
15 years' imprisonment. I would have fixed a non-parole period of
10 years. That statement must be entered into the records of the court.
Statement as to Standard sentence.
224Finally, I must also make a statement under the provisions of s5B(4) and (5) of the Sentencing Act. Section 5B(4) requires a court sentencing an offender for a standard sentence offence as I am here, to state the reasons for imposing that sentence. Section 5B(5) requires me to refer to the standard sentence for the offence of culpable driving and explain how the sentence I have imposed on you relates to the standard sentence.
225I am required to identify the facts, the matters, the circumstances which bear upon the judgment I have reached as to the appropriate sentence for that crime.
226Well I believe that my lengthy reasons to this point, reasons that span approximately 20,000 words, will surely explain why the sentence imposed in relation to the single offence covered by the Standard Sentence Scheme is slightly higher than the standard sentence specified. I regard this instance of culpable driving as being a serious example of that offence driving, one in fact falling well above the mid-range looked at purely objectively.
227Of course, my sentencing task is not limited just to an examination of the objective seriousness of the offence. There are many other matters that come into play including the subjective matters in mitigation which have been raised before me. They must be factored into my task.
228By a process of what is described as instinctive or intuitive synthesis, I have arrived at what I regard as the appropriate individual sentence, taking into account all the matters I am required to take into account, including the existence of the Standard Sentence Scheme. It is, as I have said, just one of the factors that I must have regard to.
229Let me just see if there is any matter that I have overlooked. Mr Hayward, any other matters I need to deal with at all?
230MR HAYWARD: No, Your Honour.
231HIS HONOUR: From your perspective, Mr Bloemen, any other matters?
232MR BLOEMEN: No, Your Honour.
233HIS HONOUR: I am not sure if you have been sitting there, we are probably all lawyers because none of us can do maths. There are no issues in terms of the arithmetic of all of that?
234MR HAYWARD: Can Your Honour just please rehearse the figures again please? The cumulation (indistinct) the cumulation.
235HIS HONOUR: The cumulation, yes, all right. The cumulation, so the base sentence is the 8 and a half years. Sixteen months of the sentence imposed on Charge 2, 14 months of the sentence imposed on Charge 3. So those two orders produce 2 and a half years cumulation to that point. Three months of the sentences imposed on each of Charges 4 and 5; so that produces an additional 6 months. Two months of the sentences imposed on each of Charges 6, 9, 10 and 13. So that is eight. And 1 month of the sentence imposed on Charges 7, 8, 11 and 12; so that is 4. So my intended result was 12 and a half years which, by my shoddy mathematics is achieved, but let me know if I am - the computer at least agrees so that is something. So I will go with the computer, I think.
236MR HAYWARD: May it please the Court.
237HIS HONOUR: You both look a bit hesitant, is there some issue or not in terms of it?
238MR BLOEMEN: No, no, I think Your Honour is right, but again that's not my - - -
239HIS HONOUR: That's why we are all lawyers, all right. Yes, all right. So look I've asked you, any other matters I need to deal with or not?
240MR BLOEMEN: No, thank you, Your Honour.
241HIS HONOUR: Custody management, anything? I dealt with the other day with what I needed to deal with, no need to repeat that?
242MR BLOEMEN: No need, Your Honour.
243HIS HONOUR: All right, well look thanks each of you for your efforts. They are very difficult cases for all of us to be engaged in and I think I will sign the records down in chambers actually, so thanks for your efforts and thanks for all of those who have been engaged in Court who have behaved appropriately and with dignity. So I have, I regret to say, an appeal list that I now need to deal with. I'll have to leave the Bench and come back onto the Bench and deal with an appeal list. I'll come back onto the Bench at 12.30. Thank you, I will stand down.
244Sorry, Mr Livingston, if Mr Livingston can be removed now. You'll see him downstairs, I'm assuming.
245MR BLOEMEN: I will, Your Honour, yes.
246HIS HONOUR: And you'll go downstairs, your counsel will come down, he'll explain what's occurred and go through your rights in relation to the sentence, Mr Livingston. So Mr Livingston can be removed, thank you.
- - -

[2023] VCC 1168

30 June 2023