Director of Public Prosecutions v Lombardo
[2022] VCC 93
•9 February 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-02322
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA LOMBARDO |
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| JUDGE: | HIS HONOUR JUDGE CAHILL |
| WHERE HELD: | WARRNAMBOOL |
| DATE OF HEARING: | 21 January 2022 |
| DATE OF SENTENCE: | 9 February 2022 |
| CASE MAY BE CITED AS: | DPP v Lombardo |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 93 |
REASONS FOR SENTENCE
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Subject: Dangerous driving causing death.
Catchwords: Guilty plea – Failed to give way to a motorcycle when turning onto a highway – Foggy car window– No alcohol, drugs, fatigue or excessive speed – low-end offending – 23 year old 1st offender – Category 2 offence – substantial and compelling reasons (s 5(2H)(e)) increased risks of imprisonment (S 5(2H)(c)(ii)) established
Legislation Cited: Sentencing Act 1991 (Vic); Road Safety Act 1986 (Vic).
Cases Cited:Stephens v The Queen [2016] VSCA 121; DPP v Mahmood [2021] VCC 997; DPP v Tran [2020] VCC 1882; DPP v Neethling [2009] 22 VR 266, DPP v Oates [2007] 43 MVR 483, R v Teh [2003] VSCA, Farmer v The Queen [2020] VSCA 140; Peers v The Queen [2021] VSCA 264; Bell v The Queen [2018] VSCA 281; Farmer v The Queen [2020] VSCA 140; Fariah v The Queen [2021] VSCA 213; Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen [2014] VSCA 342; Williams v The Queen [2018] VSCA 171.
Sentence:Community Correction Order for 3 years; 250 hours unpaid community work; Cancellation and disqualification of licence for 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R Harper | Office of the Director of Public Prosecutions |
| For the Accused | Mr T Marsh | Farrelly Legal |
HIS HONOUR:
1Joshua Lombardo, you have pleaded guilty to one charge of dangerous driving causing death.
2The maximum penalty for the offence is 10 years imprisonment.
Circumstances of Your Offending
3The circumstances of your offending are described in the Summary of Prosecution Opening for Plea.[1]
[1] Exhibit A.
4On 30 March 2020 you had been staying at your girlfriend’s home at Hopkins Highway Bushfield.
5Around 6:50 am you got up and got ready to drive to work at Cobden.
6When you got into your car it was dark.
7You drove from the house along the driveway to Hopkins highway intending to turn right. When you got to the end of the driveway you slowed down.
8You then proceeded to make a right hand turn onto the highway across the path of an oncoming motorcyclist, Aaron Flack, who braked but could not avoid the collision. His motorcycle collided with the tray of your car.
9After the impact you completed your turn and stopped on the shoulder of the road.
10You got out to help Mr Flack and you called 000. When the operator asked you what happened you said, “I pulled out and my windows were fogged up and a motorbike… had its lights real dim and it’s just come and hit my tray.”
11With some other persons who stopped, you tried to give Mr Flack CPR. When one of them asked you what happened, suggesting the motorcyclist may have been at fault, you said, “No, no. It’s all my fault”.
12When police arrived and asked what happened you said, as you approached the road, you saw a dim light, which looked far away, so you pulled out onto the road and, when you got halfway across, the motorcycle hit the tray of your truck. When asked how you felt you said, “Terrible”.
13Tragically, Mr Flack suffered fatal injuries and died at the scene.
14You were arrested and taken to Warrnambool police station.
15At interview, you said, when you got into your car the windows were fogged up, you turned on your wiper blades and the demister which defogged the windscreen but not your side windows. You said you looked to your right and saw a light in the distance, you went to wind down your driver’s window but instead you proceeded because the light was very dim and looked like it was far away.[2]
[2] Record of Interview, at 109, 117 and 137.
16When asked to describe your visibility you admitted it was “poor, very poor”.[3]
[3] Ibid, at 114 and 115.
17By your guilty plea you admit, by commencing your turn when your visibility was poor, your driving was dangerous.
18I have seen a bundle of police photographs of the accident scene.[4]
[4] Exhibit H.
Victim Impact
19Mr Flack was a 46 year-old married mechanic and father of three teenage children.
20He did not contribute to the collision in any way.
21Victim impact statements of his wife, children and parents were read to the court.
22Mr Flack was a loving and loved husband, father, and son. As they wrote, words cannot adequately describe or explain their heartbreak and grief.[5]
[5] Exhibit B (Statement of Lauren Flack); Exhibit C (Statement of Maddyson Flack); Exhibit D (Statement of Jorjah Flack); Exhibit E (Statement of Amy Flack); Exhibit F (Statement of John Flack).
Criminal Record
23You have no criminal record.
Personal Circumstances
24You were born in March 1998. You were 22 years old when you offended. You are now 23.
25You are the oldest of three children. Your parents separated when you were 8 years old. After living with your father for several years, when you were a teenager, you went to live with your mother and her partner, and your younger brother, at Warrnambool. Your sister has moved back to Geelong.
26You have a good work record. While you were at school you had part-time work at a local supermarket.[6] After you finished Year 12, you did two years of a diesel mechanic apprenticeship. You decided you preferred to work outdoors and you got work on a dairy farm. For the last 3 years, you have worked as a heavy vehicle machine operator. Your employer, Glenn Logan, described you as “a likeable, easy-going young person with good values and a strong work ethic.” He was shocked when he heard of the accident because he has always observed you “to have a high regard for safety in the workplace and on the roads.” He has supported you with ongoing employment.[7]
[6] Exhibit 7.
[7] Exhibit 6.
27You have been with your girlfriend for three years.[8] Her parents value your help around their home and on the farm.[9]
[8] Exhibit 4.
[9] Exhibit 5.
28All your referees, including family and friends,[10] regard you highly as a hard-working, caring and helpful young man. They describe you as deeply anguished by the accident you caused and remorseful for it. A cross at the accident scene and regular visitors to it, are a constant reminder to you.[11]
[10] Exhibit 8 and Exhibit 3.
[11] Exhibit 3.
29Your uncle wrote, as the oldest child, you have been a huge support to your mother, helping raise your younger sister and brother. He described your father as largely absent.[12]
[12] Exhibit 9.
30Your mother gave evidence. You are very close. She said when she saw you, after the accident, you hugged her and you were shaking and really quiet. When you learned Mr Flack had a young family you broke down. She said you feel sick and wanted to reach out to his family but didn’t know how they would respond. She described you as withdrawn at home and, “at times just sitting there and sort of shaking”.[13]
[13] Transcript of Plea hearing dated 21 January 2022, T 28/3.
31She said, because your father has a history of mental illness, including depression and anxiety, she has tried to help you “open up” to deal with your own anxiety.
32Carla Ferrari, forensic psychologist, assessed you on 11 January 2022.[14]
[14] Exhibit 2.
33You told her you are an irregular drinker and have never used illicit drugs.
34You told her you are devastated at your actions and their consequences and suffer disturbed sleep thinking about them.
35In her assessment, you have developed symptoms of worsening anxiety and PTSD which are currently below the diagnostic threshold for Generalised Anxiety Disorder (‘GAD’) or Post Traumatic Stress Disorder (‘PTSD’).
36In Ms Ferrari’s opinion, incarceration would likely weigh more heavily on you than a person without your conditions, and it will exacerbate both your anxiety and trauma reaction.[15]
[15] Exhibit 2, at [88], [89] and [92.a and c].
37In her opinion, maintaining your social and family interactions, your relationship and your employment has supported your mental health from worsening and she recommended continuation of that routine and structure to prevent you from severely decompensating. She also recommended you get a mental health treatment plan for psychological counselling to manage your anxiety.[16]
[16] Exhibit 2, at [92.d].
38Your counsel, Mr Marsh, in comprehensive written[17] and oral submissions, acknowledged the law requires the Court to impose upon you a sentence of imprisonment, without a community corrections order, unless one of the statutory exceptions is established.[18]
[17] Exhibit 1.
[18] Sentencing Act 1991 (Vic), s 5(2H).
39He submitted that the “dangerousness” of your driving was commencing a turn in circumstances where, because your visibility through the driver’s door window was impaired, you could not be sure your path was clear of approaching vehicles.
40He submitted your conduct was a “momentary oversight”, similar in moral culpability to cases of momentary inattention.[19]
[19] Exhibit 1, at [10].
41He submitted your remorse was immediate and is substantial.
42He also submitted your early plea, absence of any other offending, supportive family and partner and good work history demonstrate you have excellent prospects of rehabilitation.
43He submitted, relying on Ms Ferrari’s opinion, Verdins limbs 5, greater burden of prison on you, and 6, adverse effect of prison on your mental health, are engaged.
44He also submitted that I should conclude that your impaired mental functioning would result in you being subject to “substantially and materially greater than the ordinary burdens or risks of imprisonment”.[20]
[20] Sentencing Act 1991 (Vic), s 5(2H)(c)(ii).
45Additionally, he submitted the combination of:
(a) the absence of any prior convictions;
(b) your stable work and family support;
(c) absence of alcohol or substance abuse;
(d) absence of any aggravating features to your offending;
(e) the short duration of your dangerous misconduct;
(f) your immediate acceptance of responsibility; and
(g) the presence of ongoing reminders of the fatality and its effect on Mr Flack’s family and friends.
are substantial and compelling circumstances that are exceptional and rare, and justify not making an order for imprisonment.[21]
[21] Ibid, s 5(2H)(e).
46Overall, he submitted that the circumstances of your case engage two statutory exceptions to mandatory imprisonment requirement and that it is open to the Court to impose a sentence other than immediate gaol.
Prosecution Submissions
47Ms Harper, who appeared for the prosecution, in helpful written[22] and oral submissions, acknowledged you made full admissions when police spoke to you and you entered an early guilty plea.
[22] Exhibit G.
48She accepted you are remorseful, of prior good character and have good prospects of rehabilitation.
49She did not challenge Ms Ferrari’s opinions nor did she challenge your Counsel’s submission that your offending is a low-end example of the offence of dangerous driving causing death.
50She did challenge your counsel’s submission that statutory exceptions to mandated imprisonment have been established.
51She submitted, while Verdins limbs 5 and 6 may be engaged and could operate to “somewhat” moderate your sentence, because, in Ms Ferrari’s opinion, your symptoms are mild, I could not be satisfied you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
52She also submitted the combination of circumstances, put forward on your behalf, fall short of the stringent test of ‘substantial and compelling reasons that are exceptional and rare’, and justify a non-custodial sentence. She submitted none of these factors could be considered rare or exceptional, alone or in combination.
53Ms Harper referred me to the Court of Appeal judgement in Ricky Stephens v The Queen, a case of very high moral culpability.[23] She also referred me to two sentences of this Court, DPP V Tayyeb Mahmood[24] and DPP v Hung Tran[25] where prison terms of 2 years’ and 4 months’ and 8 months’, respectively, were imposed.
[23] Stephens v The Queen [2016] VSCA 121, at [33].
[24] DPP v Mahmood [2021] VCC 997 (Judge Todd).
[25] DPP v Tran [2020] VCC 1882 (Judge Murphy).
54I have read the cases referred to and other cases, including the recent Court of Appeal decision in Amber Peers,[26] which involved dangerous driving causing death. Making appropriate adjustment for differences in the circumstances of the offending and the offender, I have had regard to them, and I sentence you in the landscape.
[26] Peers v The Queen [2021] VSCA 264.
Consideration
55The taking of a human life by driving a motor vehicle dangerously is a serious crime. The substance of the offence is not just dangerous driving; it is the dangerous driving in association with the taking of a human life.[27]
[27] DPP v Neethling [2009] 22 VR 466, at (28).
56Ordinarily, a sentence of imprisonment must follow.
57However the sentence which is imposed must take account of the variations in the moral culpability of an offender.[28] In cases where the offender’s moral culpability is relatively low, a non-custodial sentence may be open.[29]
[28] DPP v Oates [2007] 47 MVR 483, at 486, [21].
[29] DPP v Neethling [2009] 22 VR 466, at [28] – [32], Bell v The Queen [2018] VSCA 281, at [54].
58Nonetheless, under s 5(2H) of the Sentencing Act, for the offence of dangerous driving causing death, as a Category 2 offence, a term of imprisonment, not combined with a community corrections order, must be imposed unless a statutory exception is met.[30]
[30] Sentencing Act 1991 (Vic), s 5(2H).
59In Farmer v The Queen, a case which considered the test of substantial and compelling circumstances that are exceptional and rare, the Court of Appeal said:
“In many cases, given the type of offences within Category 2, a term of imprisonment will be inevitable. In some cases, the operation of s 5(2H) will be harsh. In other cases a term of imprisonment or youth detention would be entirely unjustified, counter-productive from the viewpoint of rehabilitation and work a serious injustice. That may be particularly so for young offenders. To a degree paragraph (2H)(e) guards against the risk of injustice.”[31]
[31] Farmer v The Queen [2020] VSCA 140, at [52].
60Whether there are substantial and compelling circumstances that are exceptional and rare is an evaluative judgement for me to make.[32]
[32] Fariah v The Queen [2021] VSCA 213, at [24].
Moral Culpability
61You had not been speeding. You were not affected by drugs, alcohol or fatigue. Your car was in good condition. Because your view was obscured through your driver’s window, you misjudged the distance between your car and the motorcycle and failed to give way to it, with dreadful consequences.
62As you acknowledged to police, because your driver’s window was fogged up, you should have wound it down before you commenced your turn. Yours was a momentary lapse in judgement.
63I assess your moral culpability to be at the low end of the range for a crime of this type.
64I do not lose sight of the terrible consequences of your crime for Mr Flack’s family. They have been burdened and shocked by his death and the loss for them has been profound. Their victim impact statements speak movingly of the burning impact of their heart-breaking loss.
65You are a relatively youthful offender. Your family and work life has been exemplary.
66I am satisfied, from the moment of the collision, you were genuinely remorseful for your crime. You stopped and gave Mr Flack all the assistance you could. You immediately admitted your wrongdoing and accepted responsibility for it. Every time you go to your girlfriend’s home, the accident scene is a stark reminder of your conduct.
67Your guilty plea has substantial utilitarian and practical value, particularly given the increased backlog of trials in the wake of the current pandemic.[33]
[33] Worboyes v The Queen [2021] VSCA 169, at [35]-[39].
68I am satisfied symptoms of Generalised Anxiety Disorder and PTSD would make your time in custody more burdensome and would likely deteriorate severely in prison. Verdins principles 5 and 6 are enlivened.
69I am also satisfied you are very unlikely to reoffend. Your prospects of rehabilitation are excellent.
70However, the test of substantial and compelling circumstances is a stringent one.[34]
[34] Farmer v The Queen [2020] VSCA 140, [52].
71In determining whether there are substantial and compelling circumstances:
· I must regard general deterrence and denunciation of your conduct as having greater importance than other sentencing purposes;[35]
· I must give less weight to your personal circumstances than to the nature and gravity of the offence;[36]
· I must not have regard to your previous good character or prospects of rehabilitation;[37] and
· I can and do have regard to your absence of previous convictions[38] or findings of guilt and the nature and gravity of your offending.[39]
[35] Sentencing Act 1991 (Vic), s 5 (2HC)(a).
[36] Ibid, s 5 (2HC)(b).
[37] Ibid, s 5(2HC)(c).
[38] Ibid, s 5(2HC)(c).
[39] Ibid, s 5(2H).
72I must have regard to Parliament’s intention a sentence of imprisonment, without a community corrections order, should normally be made.[40]
[40] Sentencing Act 1991 (Vic), s 5(2I)(a).
73And I must also have regard to whether the cumulative impact of the circumstances of the case would justify a departure from such a prison sentence.[41]
[41] Ibid, s 5(2I)(b).
74Generically, the factors Mr Marsh relied on are not unusual.
75However, although each of the factors are not uncommon, in my view, the accumulation of the detail of those factors, together with the Verdins limbs which are engaged, is exceptional and rare and compels the conclusion that imprisonment is not justified in your case.
76Therefore, I am satisfied the exception under paragraph 5(2H)(e) of the Sentencing Act is established.
77I am also satisfied your symptoms of anxiety and Post-Traumatic Stress, although currently mild, would likely be severely exacerbated if you are imprisoned.
78Consequently, I am satisfied the exception under paragraph 5(2H)(c)(ii) of the Sentencing Act is also established, that is, your impaired mental functioning would result in you being subject to substantially and materially greater than the ordinary burden nor risks of imprisonment.
79The offence of dangerous driving causing death is serious.
80General deterrence is a principle sentencing consideration.
81A community corrections order can enable the punitive and rehabilitative objectives of sentencing to be served at the same time even in cases of very serious offending.[42]
[42] Boulton v The Queen [2014] VSCA 342; Williams v The Queen [2018] VSCA 171, at [47].
82Overall, I am satisfied a community corrections order can achieve all sentencing purposes in your case.
83I have had you assessed for a community corrections order and you have been found suitable.
84You told the assessing officer you are sorry for the consequences of your crime on Mr Flack’s family. You said, “not a day goes by that I don’t think about it”.[43]
[43] Community Corrections Order Report dated 24 January 2022, page 2.
85You were assessed as a low risk of reoffending and I accept the assessing officer’s recommendation that minimal order conditions are an effective way of maintaining your low risk of recidivism.
86Please stand Mr Lombardo.
87By the sentence I impose I must announce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.
88Considering the circumstances of your offending, your personal circumstances and antecedence, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of dangerous driving causing death, you are convicted and ordered to undertake a community corrections order which will commence today. The duration of the order will be 3 years’.
89In addition to the mandatory conditions, I order that you complete 250 hours of unpaid community work.
90I remind you that a condition of the order is that you attend the Warrnambool Community Corrections Service within two working days of today's date.
91As s.89(1A) of the Sentencing Act requires me to do, I order all licenses and permits held by you under the Road Safety Act be cancelled and you are disqualified from obtaining any further license or permit for the statutory minimum period of 18 months’ from today.
92While there is some artificiality in the process, doing the best I can, I declare, but for your plea of guilty, I would have sentenced you to 2 years’ and 6 months’ imprisonment and imposed a minimum non-parole release period of one year and 3 months.
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