Director of Public Prosecutions v Lorkin
[2022] VCC 1490
•6 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00287
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW JAMES LORKIN |
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| JUDGE: | HER HONOUR JUDGE ELLIS | |
| WHERE HELD: | Melbourne | |
| DATE OF HEARING: | 30 August 2022 | |
| DATE OF SENTENCE: | 6 September 2022 | |
| CASE MAY BE CITED AS: | DPP v Lorkin | |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 1490 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: one charge dangerous driving causing death – plea of guilty – substantial and compelling circumstances – low moral culpability – category 2 offence
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Criminal Procedure Act 2009
Cases Cited:Farmer v The Queen [2020] VSCA 140; Buckley v The Queen [2022]
VSCA 138; DPP v Nasser [2020] VCC 1660; Stephens v R [2016] VSCA 121; DPP v Neethling [2009] 22 VR 466; Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen [2014] 46 VR 308
Sentence: Community Correction Order for 2 years with conviction and 300 hours of community service
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F. Holmes Ms E. Zelez | Office of Public Prosecutions |
| For the Accused | Mr. J. Taaffe Ms M. Deighton | Doogue & George Pty Ltd |
HER HONOUR:
1Matthew James Lorkin, on 3 August 2022, after receiving submissions at an earlier hearing, I granted your application for a sentence indication. I indicated that, should you plead guilty to dangerous driving causing death, then pursuant to s207(1)(a) of the Criminal Procedure Act2009, I would impose a sentence of a specified type, being a community correction order alone. You then pleaded guilty on arraignment. A plea hearing took place on 30 August 2022.
2Mr Lorkin, you have pleaded guilty to:
· one charge of dangerous driving causing death contrary to s319(1) of the Crimes Act 1958, which attracts a maximum penalty of 10 years' imprisonment.
Circumstances of offending
3The circumstances of the offending are set out in a detailed summary of prosecution opening. Just after 6.30 pm on 16 June 2020 you were driving your vehicle, a small Ford Ranger utility along Henry Street, Greensborough, when you struck a pedestrian, Brendan Stanley Newcombe, who was then aged 44 and also a resident of Greensborough in Vermont Parade. As a result, Mr Newcombe sustained life-threatening injuries. He later died in hospital on Friday,
19 June 2020.4At the time, you were returning home to your family after collecting pre-ordered takeaway food from a local restaurant. You performed a right-hand turn from Henry Street into Vermont Parade. You gave way to oncoming traffic and, in order to take advantage of a gap in the traffic, made the right turn but did so in advance of the white dividing line in Vermont Parade. In doing so, you cut the corner. Sadly, as you turned into Vermont Parade, you struck Mr Newcombe, who was crossing the road to travel west along Vermont Parade. At this time he was in the eastbound lane.
5It is the prosecution position that Mr Newcombe was crossing Vermont Parade having travelled south down Henry Street.
6Henry Street is a two lane, undivided bitumen road running in a general north to south orientation. At the collision location the road was marked with long broken white lines down the approximate centre. The carriageway is abutted by concrete kerbing, grass nature strips and concrete footpaths on both sides. Residential properties are positioned on either side of Henry Street. There were no apparent obstructions on the road for southbound traffic.
7Approaching the collision scene in a southbound direction, the road is relatively straight. The section of road where the collision occurred had a gradual slope that travels down and through the collision scene and continues downhill to a T‑intersection.
8The area was lit by means of street lighting erected at regular intervals along the eastern side of Henry Street that were operating correctly at the time of the collision. Vermont Parade, the intersecting road to the west, is a two lane, undivided bitumen road running in a general east to west orientation. The carriageway is abutted by kerbing, grass nature strips and concrete footpaths on both sides. This too is a residential street. A solid white line painted down the approximate centre of the roadway connects with a broken white give way line on Vermont Parade. Approaching the collision scene in an eastbound direction, the road is relatively straight. The section of road where the collision occurred had a gradual incline travelling up and through the intersection.
9The speed zone applicable to the collision scene location on both Henry Street and Vermont Parade was 50 kilometres per hour. At the time of the collision visibility was dark with street lighting, the weather was fine and the road was dry.
10The area of impact occurred approximately one metre north of a solid white line in the approximate centre of the roadway and approximately two metres west of a broken white give way line on Vermont Parade at the intersection. The victim had not crossed past the line separating east/west lanes when struck by the
Ford Ranger. Impact was at slow speed and as a result, the victim was thrown forwards a short distance on Vermont Parade and sustained serious head injuries as a result of the collision. He was taken to hospital by ambulance but tragically died from those head injuries.11You stopped immediately after the collision, got out of your car and called Triple 0 at 6.31 pm. You told the call taker, 'Mate, I've just run someone over, turned the corner didn't see him'. You stayed with the victim and remained on the phone to emergency services awaiting assistance.
12At 6.35 pm local police and emergency services attended the collision scene and took control of the scene.
13At the scene, you had a conversation with Senior Constable Jason Flinn. The conversation was recorded on body worn camera and you stated:
'Came home, had a shower, then went and got dinner.'
14You also said:
'Got dinner and then coming home turned right into Vermont Parade. I didn't even see him. And then I just - I heard him yell and I - I knew I - I felt him hit the car. And I stopped straight away.'
15You were later interviewed by investigators. You stated that whilst in Henry Street waiting to turn, you were concentrating on another vehicle coming up Henry Street in the opposing lane and that you stopped or slowed down for that car to pass before turning right into Vermont Parade. You further stated that just after turning right into Vermont Parade you heard the victim yell, observed him on the bonnet and stopped.
16Police conducted an investigation and examination of the scene.
Detective Leading Senior Constable Michael Newman of the
Collision Reconstruction Unit concluded that your vehicle was travelling between 28 kilometres an hour and 32 kilometres an hour when it impacted Mr Newcombe.17By your plea of guilty, you accept that by turning your vehicle right into
Vermont Parade, and cutting the corner so as to be in the incorrect lane, you had turned in a manner where it can be inferred that you did not see Mr Newcombe and this was inherently dangerous and that this dangerous driving caused the death of Mr Newcombe.
Victim impact
18I have received victim impact statements from Irene and Allen Newcombe, Brendan Newcombe's parents, and from his brother Warren Newcombe.
19Each of the victim impact statements describe the profound impact the loss of their son and brother has had upon their lives. I am unable to do those statements justice here, but I note that Mrs Newcombe speaks of her feeling of deep sorrow and the loss of her youngest son who had lived with her all his life. Her home is quiet and lonely without him and she misses him terribly. She speaks of the close and loving relationship they shared. Brendan's kindness and generosity, and the sense of loneliness she now experiences. Mrs Newcombe is finding it very difficult to cope with his loss and has difficulty sleeping through the night. She has been seeing a psychologist weekly to help her cope with her feelings of loss and grief.
20Mr Newcombe is unable to sleep and he keeps reliving the memory of seeing his son lying in the road. He finds it hard to cross the road even today.
21Likewise Warren Newcombe, who describes the heartbreaking moments of watching his brother struggling for life in the street. Mr Newcombe describes the fear and horror that he experienced watching his brother suffer and the sadness of having to tell his children what had occurred and that their uncle, who was so proud of them, had passed away.
22I take into account the victim impact statements. Mr and Mrs Newcombe have lost their much loved son. Warren Newcombe and his family have lost their cherished and loved brother and uncle as a consequence of your driving on this occasion.
Procedural history
23The offending occurred on 16 June 2020. You were not charged until
14 June 2021. It is unclear why there was a delay of almost 12 months given that police had already spoken with you and you had admitted to being the driver of the vehicle. I appreciate, however, that an investigation including reconstruction can take some time. You were committed to this court without a contested committal on 28 February 2022. Accordingly no witnesses have been cross-examined.
Prior Criminal History
24At the time of this offending, you were 39 years of age. You have admitted one previous summary offence from 2006.
Personal Circumstances
25Turning to your personal circumstances. You are now 41 years of age. You were born in Melbourne in 1981 and raised in Watsonia. You grew up alongside two sisters and both of your parents were teachers. Your father taught in the high school you attended and your mother, at primary school. Your family growing up was largely stable. You grew up in a religious household with clear rules and expectations. Your relationship with your father was difficult at times, resulting in occasional physical violence. You maintain though that you felt safe and loved growing up.
26You attended Catholic schools in both primary and secondary school. You graduated from Year 12 and worked in hospitality for eight years. You did not undertake any post-secondary study. You are currently employed within road construction and you have been so employed in this industry since you were 25 years of age. You have a strong work ethic and you enjoy your employment at the company you work for. Among the character references received was a letter from your employer, Brendan Skiba and other staff at Bild Infrastructure who attest to your significant contribution to the workplace and the high regard with which you are viewed by your colleagues. You are described as a much loved and valued member of the Bild Infrastructure team who has continued to perform this role and fulfil your responsibility despite the stress this event has placed upon you. Other colleagues describe your kindness towards fellow workers; you are said to be a man who is generous and caring.
27You have been married for 10 years and have two children aged 11 and 15. Your wife, Sarah Lorkin, speaks of your involvement within the local community. She describes you as a kind and generous father and husband. Mrs Lorkin gave evidence during the sentence indication hearing about the way in which your family rely upon you, with respect to the care of your children and their education, noting that your son has auditory processing dyslexia. She also stated that without your income your family would be unable to meet their mortgage repayments and as a consequence they would need to move house and your children would need to change schools.
28Another character referee, Ms Charbel, said you are an upstanding member of your neighbourhood, referring to the time you spend within the community, coaching your children's sports teams, volunteering at their schools and within the local parish. You are described as an exemplary role model for your son's teenage football team, and a man whose family means everything to him.
29In July 2021, you suffered a heart attack which resulted in you being placed in an induced coma for five days. There is no direct evidence that the heart attack was as a consequence of stress but given the timing of this medical episode, it occurred within weeks of you being charged with this offence, there may have been some correlation. You reported to psychologist, Ms Sorotos, that you had a blocked artery which has now been rectified with a stent. You had otherwise been of good health. Upon being discharged from hospital you underwent six months of occupational therapy due to difficulty concentrating, and at times, an inability to coherently construct a sentence. Your heart attack had a significant and traumatising impact upon your family. Your wife and children were preparing for you to die.
30You do not use illicit drugs and only tend to drink alcohol while in social environments. You do not experience any mental health problems. Ms Sorotos, who conducted a psychological assessment of you, considers that you have some unresolved traumatic stress which could improve through psychological intervention.
Legislative Framework
31The offence of dangerous driving causing death is a category 2 offence under the Sentencing Act1991, which requires the court to impose a term of imprisonment unless the court is satisfied that certain criteria set out in s5(2H) of the Act are established. Here your counsel submitted that s5(2H)(e) is made out namely that, there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order for imprisonment.
32As I have indicated at the sentence indication hearing, I find that there are substantial and compelling circumstances that are exceptional rare and that justify not making an order for imprisonment. As I explained at that hearing, in determining whether there are substantial and compelling circumstances, there are a number of matters to which I must give consideration, pursuant to s5(2HC), and I do so.
33Furthermore, I must have regard to Parliament's intention that in sentencing an offender for a category 2 offence, only an order of imprisonment should ordinarily be made. I must consider whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence when determining whether there are substantial and compelling circumstances. Although I have previously given my reasons for reaching this conclusion at the sentence indication hearing, it is necessary that I do so again.
Substantial and Compelling Circumstances - s5(2H)(e)
34It was submitted here that your moral culpability is low. Your counsel, Mr Taaffe, who appeared for you at the sentence indication hearing, referred to a number of factors which are relevant to the assessment of moral culpability. Namely that you were not speeding, you were not driving under the influence of alcohol or drugs, your judgment was not impaired, nor were you driving erratically, your vision and other physical capabilities were not compromised and there is no suggestion that inattentiveness was involved. You were fully licenced and driving a registered vehicle that was in good working order.
35This low moral culpability, combined with other matters to which I shall refer in a moment, was said by your counsel to amount to substantial and compelling circumstances that are exceptional and rare which justify the court imposing a non‑custodial disposition.
36Ms Holmes, on behalf of the prosecution, submitted that on the spectrum this offending falls right at the lower end. Therefore, it is agreed that your moral culpability here is low. However, the prosecution submitted that this is not sufficient to meet the requisite criteria as prescribed by s5(2H)(e), and accordingly, she submits that substantial and compelling circumstances are not made out.
37In Farmer v The Queen [2020] VSCA 140, the Court of Appeal considered this provision noting that the exception under s5(2H)(e) establishes a very high hurdle that will often not be surmounted. It is a burden not lightly discharged. What is required are circumstances that are not run of the mill. The stringency of the threshold was emphasised more recently in Buckley v The Queen [2022]
VSCA 138, with respect to the same requirement under s10A.38However, the court in Farmer affirmed that the criteria may be met by a combination of factors and that the factors which operate to lower an accused's moral culpability could be an important factor to the conglomeration of factors that go to satisfying the criteria of substantial and compelling, rare and exceptional.
Assessment of the Gravity of Offending
39Moral culpability and offence gravity are relevant to a determination of s5(2H)(e). When considering a charge of dangerous driving causing death, the objective gravity of the offending is to be assessed by the dangerousness or level of risk of the driving, rather than by the result, despite the fact that it is the most serious result, the death of another human being. Offence gravity is therefore closely associated with an assessment of moral culpability.
40Mr Taaffe referred to comments made by Judge Mullaly in DPP v Nasser [2020] VCC 1660 in which His Honour noted at paragraph 33 that the issue of moral culpability is a very important matter with respect to the category 2 offence of dangerous driving causing death:
'Because it is the level of moral culpability that plays a fundamental role in the instinctive synthesis of what is an appropriate sentence where death is caused by dangerous driving.'
41In Stephens v R [2016] VSCA 121 at paragraph 20 the Court of Appeal explained that:
'Driving will be dangerous where there is some serious breach of the proper conduct of a vehicle so as to be in reality and not speculatively, potentially dangerous to others. The driving must have some feature which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by a person who may on occasion drive with less than due care and attention. A court’s assessment of the dangerousness of the driving will be informed by the extent of the risk which the driving created, as well as by the extent of potential harm should the risk materialise.'
42Therefore, this requires an analysis of the extent to which the offender should have foreseen the consequences of their driving behaviour. Moral culpability is higher where an offender knowingly takes a risk. Objective dangerousness requires an identification of the extent of the risk that the driving creates and that, in turn, is measured by the likelihood that something will go wrong and the extent to which harm will result if something does.
43In DPP v Neethling [2009] 22 VR 466 the Court of Appeal set out factors relevant to assessing the level of risk.
i.the nature and extent of the injuries inflicted;
ii.the number of people put at risk;
iii.the degree of speed;
iv.the degree of intoxication or substance abuse;
v.erratic or aggressive driving;
vi.competitive driving or showing off;
vii.the length of the journey during which others were exposed to risk;
viii.any ignoring of warnings;
ix.any escape of police pursuit;
x.any degree of sleep deprivation; and
xi.failing to stop.
44Here, the feature which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by a person who may, on occasion, drive with less than due care and attention, is that you made a right turn into Vermont Parade in advance of the white line and did not see Mr Newcombe.
45The following matters were submitted by Mr Taaffe as relevant to assessing the level of risk:
a) There was only one person put at risk;
b) Your speed was well under the speed limits and was reasonable for the purpose of crossing a lane of oncoming traffic;
c) You were not intoxicated nor drug affected;
d) Your driving was not erratic or aggressive;
e) You were not engaged in competitive driving,
f) The risk you posed by being in the wrong lane was of momentary duration;
g) There were no warnings that you ignored;
h) There was no police pursuit;
i) You were not sleep deprived and you stopped immediately upon realising what had occurred, called Triple 0 and moved your vehicle to ensure no other risk was created.
46Your counsel submitted that I must have regard to the roads themselves. Specifically, that Henry Street runs downhill as it approaches Vermont Parade with a downhill gradient of three to four per cent, such that it would require a more conscientious effort from a driver not to cut the corner than had the two streets been completely level. This is compounded by Vermont Parade being a narrow street of three car widths.
47It is submitted that the driving in this case did not involve even a moment of inattention, rather that your attention was directed towards the oncoming traffic, including a passing car that would have obscured your view into Vermont Parade, and you were was manoeuvring into Vermont Parade without the benefit of a traffic light.
48In assessing the gravity of the offending and culpability, the court must also consider whether the result came about due to factors outside the offender’s control. Here it is submitted that Mr Newcombe was struck on a July evening when it was dark. He was wearing dark clothing and there was limited street lighting at that particular intersection. The location of the nearest street light was on the east side of Henry Street opposite Vermont Parade. All of these factors are said to contribute to the difficulty you would have had seeing a pedestrian. This is not in any way intended to be in a criticism of Mr Newcombe who was doing what he was entitled to do, walking home from the shops and crossing the street. But it forms part of the circumstances of the collision which I must consider.
49It was submitted that your conduct did not involve any wilful disregard to the safety and welfare of other road users. That you did not knowingly take a risk.
50Bearing in mind the legislative purpose of the category 2 sentencing requirement, being denunciation and general deterrence, it is submitted by your counsel that there is little utility in denouncing a person's failure to observe a pedestrian in circumstances where they were otherwise being a cautious driver.
Other matters going to substantial and compelling
51Your counsel also submitted that there are other considerations relevant to the court's sentencing exercise in determining whether there are substantial and compelling circumstances, in addition to the other relevant factors for sentence which I will discuss in a moment. Reliance is also placed on the following matters:
(a)Your profound remorse – this is discussed in detail in the psychological report of Dr Angela Sorotos, as well as in the many character references tendered on your behalf. It was also confirmed in the evidence of your wife, who describes you as distressed, devastated and extremely remorseful. You have purportedly experienced enormous guilt and those close to you describe the deep impact that this offending has had upon you. I accept that you are extremely remorseful for your offending.
(b)Your responsible conduct immediately after the collision in calling Triple 0, moving your vehicle to protect Mr Newcombe and to prevent other vehicles from approaching the street, and your frank discussions with police at the scene and in a record of interview.
(c)You have no prior criminal convictions.
(d)Your personal circumstances and the impact a custodial sentence would have on your family, adding to your burden of imprisonment.
(e) That there has been some delay, whereby you were not charged until almost a year after the offending, two days shy of the anniversary of the collision. This has been stressful and has weighed heavily on you.
52I have already set out your personal circumstances. Whilst I am obliged to give less weight to an offender's personal circumstances than other matters, they are nonetheless relevant. These additional matters relied upon, whilst individually do not amount to substantial and compelling circumstances, are part of the conglomeration of factors that go towards satisfying the requisite criteria.
53In support of the submission that your moral culpability is low and thus the offence gravity in this case is exceptional, Mr Taaffe referred me to a number of
County Court cases which resulted in non-custodial orders being imposed following a consideration of s5(2H)(e). I have read each of those cases. In each instance a feature involved a finding of low moral culpability. However, each case is different. Some of those County Court decisions also involved an accused having mental health issues, impaired mental functioning, or being a youthful offender. As I say, each case turns on its own facts. However, these decisions are helpful in that they provide examples of cases involving low culpability.
Objective gravity of offending
54As required, I have had regard to the objective gravity of the offending which is to be assessed by the dangerousness or level of risk of the driving. This is, as discussed, very closely associated with the assessment of your moral culpability. Although the consequence of this offending is the loss of human life the result, as I have said, is not the measure of the gravity of the offending. In saying this, I am in no way minimising the significance of the loss of Mr Newcombe’s life.
55It is common ground that your moral culpability is low. You were not affected by alcohol or drugs nor was your judgement otherwise impaired. You were not speeding nor driving erratically. You were not sleep deprived, did not lose concentration nor did you apparently ignore any warnings. The dangerousness of your driving is that, having given way to oncoming traffic, you performed a right‑hand turn into a relatively narrow side street and in doing so cut the corner. It was dark, there was a single streetlight adjacent to the intersection and sadly, you failed to see Mr Newcombe on the road, which arguably may be related to a combination of dim lighting, the fact you had just given way to an oncoming vehicle and that Mr Newcombe was wearing dark clothing.
56Given your low moral culpability, as evidenced by these facts, in conjunction with the other matters raised namely;
·your lack of prior criminal history, or history of careless or improper driving;
·your remorse;
·your conduct after the offending;
·the delay; and
·your personal circumstances, including the burden of knowing the impact that a term of imprisonment might have upon your family emotionally and financially. That is, that imprisonment would be more burdensome for you knowing the impact that this would have on your family, namely that your wife and children would be required to move from their home without your financial contribution.
I consider that together, these do amount to substantial and compelling circumstances that are exceptional and rare. In my view, these combined matters justify a departure from the legislated intention to impose a custodial sentence.
Other relevant considerations
57I now turn to other matters relevant to the sentence to be imposed in this case, distinct from the question of substantial and compelling circumstances, noting that many of these matters are expressly precluded from consideration of s5(2H)(e), such as good character, prospects of rehabilitation and a plea of guilty.
Prospects of rehabilitation
58Given your lack of prior criminal history, the assessment by Dr Sorotos is that you present as a very low risk for criminal recidivism and the effect that this offending has had upon you, I accept that you have excellent prospects of rehabilitation. Further, given these matters, you are not a vehicle for specific deterrence. Specifically you do not need to be persuaded through the imposition of punishment, to avoid an incident like this occurring again. The burden of guilt at having taken a human life is an enormous deterrent. I accept that you are deeply remorseful, and you have clearly expressed your remorse to those who know you.
Plea of Guilty
59I take into account your plea of guilty. Although this was not a plea of guilty entered at the earliest opportunity, it is nonetheless of significant utilitarian value. You have spared the community the significant expense of a trial and importantly, not only have you spared witnesses from having to relive the experience, you have spared Mr Newcombe’s family the difficulties associated with waiting for a trial and verdict. Your plea demonstrates a willingness to facilitate the course of justice. It is also evidence of remorse.
60Your guilty plea has an additional value given that it was entered during the COVID-19 pandemic, where the court has faced a substantial backlog resulting from the suspension of jury trials. Accordingly, as the Court of Appeal articulated in Worboyes v The Queen [2021] VSCA 169 your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic's effects. Your plea of guilty should result in a perceptible amelioration of sentence. You are entitled to a substantial discount in sentence both for the plea itself and taking into account that this plea has occurred during the pandemic.
Relevant Sentencing Factors
61The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence. These include the seriousness of the offending, your culpability, the effect of the offending on victims and your personal circumstances. I must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, where possible, offenders are rehabilitated. I must also have regard to principles of parsimony.
62The law says that general deterrence is to be given considerable weight in the sentencing process for the offence of dangerous driving causing death. However, for reasons I have already outlined, I consider that your moral culpability is low. A sentencing judge must take into account all the relevant considerations in the specific case before them. As I have already noted, specific deterrence is not a matter that looms large here.
63The law says that a court must always regard imprisonment as a disposition of last resort and may consider, even in cases of serious offences, that a community correction order is a punitive disposition which is capable of addressing all relevant sentencing considerations.
64As the Court of Appeal noted in Boulton v The Queen [2014] 46 VR 308 a community correction order may be suitable even in cases of relatively serious offences which might previously have attracted a term of imprisonment.
65A sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned community correction order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[1]
[1] Boulton v The Queen [2014] 46 VR 308, [131].
66As I indicated at the previous hearing, I am satisfied that, for all of the reasons I have identified, the sentencing objectives could be met here with a community correction order.
67You have been assessed by corrections as suitable. You are considered a low risk of re-offending by Corrections and accordingly, minimal conditions are recommended by Corrections.
68I appreciate that you work full-time and as a consequence there may be difficulties in performing unpaid community work. However given that the alternative was gaol I would expect that you will find a way to make this work.
69A consequence of your conviction for this offending is that you will lose your driver's licence for a mandatory period of 18 months. I am told this will have a significant effect on your ability to remain employed with Bild Infrastructure, as your role as a civil construction supervisor requires you to perform duties which are contingent upon your ability to maintain a valid driver's licence. This too would obviously impact on your ability to provide sufficient income to meet mortgage repayments, however, there is the prospect of you finding alternative employment whilst you are in the community.
70If you could stand up please, Mr Lorkin.
Sentence
71On the charge of dangerous driving causing death, you are convicted and sentenced to a community correction order for a period of two years. There are a number of core conditions that attach to any community correction order which I will now go through.
·you must not commit any other offence punishable by imprisonment during the two year period;
·you must comply with any and all obligations or requirements;
·you must report to and receive visits from Corrections;
·you must report to your local community corrections centre,
South Morang, within two clear working days from today;·you must let a community corrections officer know within two working days of a change of address or job; and
·you must not leave Victoria without first getting permission and you must obey all lawful instructions from Corrections.
72They are the mandatory core conditions that attach to any
community correction order.73The particular conditions of this community correction order will be as follows:
·You are to perform 300 hours of unpaid community work over two years.
74Mr Lorkin, if you were to breach any conditions of the order, then it is likely that you would be brought back before me on a breach and I would need to re-sentence you for the offending.
75As s89(1A) of the Sentencing Act requires me to do, I order all licences and permits held by you under the Road Safety Act be cancelled and you are disqualified from obtaining any further licence or permit for the statutory minimum period of 18 months from today.
S6AAA
76Finally, I declare pursuant to s6AAA of the Sentencing Act that had this matter proceeded to trial and you been found guilty, I would have sentenced you to two years' imprisonment and imposed a minimum non-parole period of 15 months' imprisonment.
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