Director of Public Prosecutions v Lossev
[2012] VCC 2093
•14 December 2012
| IN THE COUNTY COURT OF VICTORIA | (Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01112
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEX LOSSEV |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 December 2012 | |
DATE OF SENTENCE: | 14 December 2012 | |
CASE MAY BE CITED AS: | DPP v Lossev | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2093 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Elston | Office of Public Prosecutions |
| For the Accused | Mr P. Lawrie | Kliger Partners |
HER HONOUR:
1 Alex Lossev, you have pleaded guilty to one charge of culpable driving causing death by driving negligently. The maximum penalty applicable to that offence is 20 years’ imprisonment.
2 Your crime arises out of events which took place on 24 November 2010 and involved the victim of your offending, Robert Kym Sykes.
3 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious.
4 I note the basis of the charge to which you have pleaded guilty is that you drove your motor vehicle negligently. This involved you falling asleep whilst driving, being aware at the time you were fatigued. These are very troubling circumstances.
5 You have admitted one prior matter on 7 November 2008, of exceeding the speed limit. At that time your car licence was suspended for one month from that date, as was your bike permit or licence. This was dealt with by way of a traffic infringement notice.
6 At the time of your offending before me on 24 November 2010 you were still a probationary driver.
7 I turn then to a brief summary of your offending.
8 On 24 November 2010 at approximately 3.20 pm you were driving your Holden vehicle when you collided with a pedestrian, Mr Sykes. Mr Sykes suffered massive injuries at the scene and died on 26 November 2010 at the Alfred Hospital.
9 Mr Sykes was 54 years of age. He was employed with the City of Casey as a drainage labourer, and was going about his work at the time of this collision.
10 Mr Sykes had started work at 7.30 am that day and was rostered to work with Mr David Harvie. They had finished their allocated local jobs by lunchbreak. At approximately 3.10pm Mr Sykes and Mr Harvie went to a property in Endeavour Hills for a further job requiring investigation.
11 The council vehicle they were driving was an Isuzu truck, with Mr Sykes the driver. Upon arriving at Kennington Park Drive, Mr Sykes pulled over to the southern side of the road facing west and parked up against the kerb in the parking lane. He activated the yellow warning lights on the top of the truck, and both he and Mr Harvie got out of the vehicle and went towards the property at No 97. They spoke to the owner about a water seepage problem. Mr Harvie inspected the meter, looking for evidence of water damage. As he was doing this, Mr Sykes walked back to the work truck, to the driver’s side of the vehicle. He was wearing council work-clothes, which included a yellow reflective top.
12 Approximately 25 metres from the council vehicle on the opposite side of the road was Berwick Bus Lines driver Mr Simon Sayer. Mr Sayer had stopped his bus on Kennington Park Drive, waiting for students to alight. He saw the Casey Council workers on the other side of the road. He observed a worker from the truck standing on the road on the driver’s side of the parked truck, up tight against it as he was making his way to the rear of the truck. Mr Sayer then noticed in his driver’s side rear-view mirror your vehicle approaching from behind. As he was preparing to pull his bus back onto the roadway he looked out the front of the bus and saw your vehicle come around him on the incorrect side of the road. You then pulled back onto your correct lane in front of the bus.
13 Mr Sayer then observed your vehicle slowly veer across onto the incorrect side of the road towards the council truck, he estimated travelling at around the speed limit. He watched your car as it continued towards the council truck and struck Mr Sykes, who was at the back corner of the truck.
14 After the impact your car veered back onto its correct side of the road and drove down the street about a hundred metres before you stopped. At that point you got out and started walking back to where the collision had occurred. The bus driver called 000.
15 At the time of the collision the road was dry, traffic light and visibility good. It was clear and daylight.
16 Mr Harvie, who had been working with Mr Sykes, heard the impact but did not see it. He saw your car pull up and you return to the scene.
17 You were heard to say to a number of people that you had worked 16 hours the day before and had had only 3 hours’ sleep before being called back to work. You said to one of the neighbours, Teresa Colville, you could not remember the collision happening, and that you had fallen asleep.
18 When you were examined at the scene by ambulance officers you confirmed again you had only had 3 hours sleep the night before after working a 16-hour day. You said you had been drinking Red Bull energy drinks during the day.
19 Another resident of the area, Ms Popov, sat with you while waiting for the ambulance to arrive. You again confirmed that you had worked a 16-hour day and that you were tired. Your phone rang during that conversation, and you were heard to say you were not going to be going in to work tomorrow, that you had fallen asleep in the car and hit someone.
20 Police and ambulance arrived, and Mr Sykes was taken to the Alfred Hospital with extensive injuries, to which he ultimately succumbed.
21 Your motor vehicle was examined, and there was nothing that could have caused or contributed to the collision.
22 Police made further enquiries into your mobile phone usage at the time, and were able to establish you were in regular telephone contact with a young lady, Alicia McDowall. In particular, on 24 November 2010 at approximately 3.06:42 pm you sent her a note saying that you were falling asleep at the wheel. Ms McDowall asked you at 3.12:24 pm “How come you’re so tired?”, and 3.13:03 you replied “Not enough sleep.” Further, at 3.13:46 Ms McDowall sent you a note “So I shouldn’t ring you tonight”, and at 3.14:28 you replied “Na ring me.” Further, at 3.16:12, the response was “Are you sure?”, and at 3.16:40 you replied “Yer so three”. Further, at 3.17:44 she asked “Huh?”, and at 3.25 you replied “Yer I’m sure.” The next message you sent was at 3.35:25, at which time you said “Baby I just fell asleep at the wheel and had a serious car accident.” It is very clear from the messaging at 3.06 pm you were aware you were tired and that you had been “falling asleep at the wheel”. It is on the basis of this knowledge you have pleaded guilty to the charge before me.
23 Police attended the scene and you underwent a preliminary breath test, which was negative.
24 You were taken to William Angliss Hospital in Ferntree Gully as a precaution. You provided a blood sample to see if there was any alcohol or drugs in your system. The tests proved negative.
25 On 12 January 2011 you participated in a record of interview with police and exercised your right to answer “no comment”. You did, however, express remorse in relation to the death of Mr Sykes.
26 Turning to the circumstances of this offending, Mr Lawrie, on your behalf, submitted at this time you were travelling home from Greensborough, which was a distance of approximately 43 kilometres. The scene of the collision with Mr Sykes was just 1.4 kilometres from your home. Such a trip would ordinarily take you about 45 minutes. On the way home you had stopped at the Shell service station and purchased some Red Bull. This was at approximately 3.06 pm when you sent your text message to Ms McDowall.
27 Mr Lawrie conceded when you got back into your car and recommenced your journey you were well aware you were tired/fatigued and that it could impact your ability to drive. Nevertheless, despite this warning you got into the car and drove.
28
A number of victim impact statements were placed before me from Marilyn Joy Phillips, sister of Mr Sykes, dated 29 October 2012, Raeleen Margaret Condon, sister of Mr Sykes, dated 29 October 2012, and Kerry Logan,
sister-in-law of the deceased, dated 28 November 2012. The victims of your offending have suffered considerably, and I shall return to pass some remarks on that in due course.
29 You acknowledged through Mr Lawrie the devastating impact of your offending upon the family of Mr Sykes. You were desperately sorry for the trauma, loss and grief you had caused his family, and you offered your apology. Not surprisingly, you wished you could reverse the passage of time. Unfortunately you cannot.
30 You have pleaded guilty to this charge and are entitled to have that fact taken into account in your favour, and I do so. The community by your plea of guilty has been spared the time and cost of a trial. Witnesses have been spared the need to give evidence upon your trial, and the family of Mr Sykes have also been spared a trial. Your guilty plea was indicated at the directions hearing on 8 October 2012. I have taken into account the fact of your plea of guilty and the stage at which it was entered in your favour.
31 Whilst your offending was in 2010, it was not until 6 December 2012 this matter was finalised in court following provision of a neuropsychological report having been received at the suggestion of Mr Joblin.
32 Returning to your plea of guilty, in the circumstances I am prepared to accept it also indicates remorse for your actions. Further, I accept you have expressed your remorse to others consistent with the material placed before me by your counsel during the course of the plea hearing.
33 Yet again, the court is required to sentence a young man, in your case 23 years of age at date of sentence, for a very serious offence involving the driving of a motor vehicle which has led to the death of a member of our community.
34 I have been told something of your personal history and circumstances.
35 You are, as I have said, 23 years of age, and you have previously spent some time in the Army. During that time it seems you were involved in three incidents involving a motorbike. On two of those occasions it would appear you were concussed and taken to hospital. When Mr Joblin became aware of that at your initial conference with him in November 2011 he discussed that with your legal representatives, and a decision was made that there be further investigation to access any medical records held about those incidents and to obtain a neurologist’s opinion. I have previously referred to the delay in this hearing as a result of that investigation. The opinion was ultimately received from Professor Helme, who concluded there was no neurological impairment which could have contributed to the collision that involved Mr Sykes.
36 Whilst delay in final determination of a matter can assist an offender’s prospects of rehabilitation, unfortunately I have some concerns about your rehabilitation prospects, given your subsequent court appearances for driving offences.
37 Returning to your background, you were born in Moscow. At the age of 5 you and your family came to Australia. You attended Yeshivah College and remained there until 2001, then moving to Gleneagles Secondary College and then Hallam Secondary College.
38 You initially lived in St Kilda, attended Ripponlea Primary School and learnt English at that school.
39 In court was your mother, father, stepfather, brother and girlfriend to support you during your plea hearing. Your mother separated from your father in 1998.
40 You completed the first three months of Year 11, your main interest being in trade-based skills.
41 You joined the Army in August 2006 and underwent three months of training. Your march-out parade was in October 2006 and you have spent time stationed at Singleton and Townsville.
42 Referring again to the three incidents involving a motorbike, they occurred on 15 May 2007, 8 June 2007 and 9 March 2008 whilst you were in the Army.
43 You were discharged from the Army in October 2008, and in 2009 returned to Melbourne. You began work as a panel-beater, also tiling and pool installation. Ultimately your plans were to obtain a trade qualification and/or run your own handyman business.
44
As a result, it seems, of a personal loan you had obtained in relation to your motorbike, you at some stage had difficulty meeting repayments, requiring a debt collector attending regularly whilst you were employed, I gather at Toyota, and as a result you had to leave that job. In 2010 you moved to Perth to do some roof tiling, and for three weeks prior to the collision involving
Mr Sykes in November 2010, whilst in Perth you instructed you had worked every day.
45
You returned to Melbourne on approximately 5 November, then working for
Mr Trent Gibson as a subcontractor laying vinyl flooring. This work was heavy manual work, and the hours you were required to work were long. I was told that on 20 November 2010 you were at a job site in the CBD for eight hours, then on 22 November at another job site in Greensborough for eight hours. On Tuesday, 23 November 2010, you worked from 7.30 am until 5.00 pm, before going to another worksite in Ringwood where you worked until 11.00 pm, thus the approximately sixteen hours work that I was told about without a break.
46 On 24 November 2010, the date of this collision, you started work at 7.00 am, after only three hours’ sleep.
47 Before me was a report from Mr Ian Joblin, Forensic Psychologist, who saw you initially on 10 November 2011, and most recently on 19 October 2012. His report was dated 22 October 2012.
48 He provided details of your background, much of which I had been told by Mr Lawrie. Your father worked in the security industry and apparently also taught swimming. You had regular contact with him, albeit your parents were separated. Your mother was in employment as a mortgage broker. At the time of interview in October 2012 you described your relationship with your mother’s de facto partner at that stage as positive.
49 You attended Yeshivah School at St Kilda for Year 7 and then when the family moved to Endeavour Hills you changed schools. You said you were bullied at school and felt strongly intimidated, and as a result you believed you needed to improve your self-esteem and confidence, and decided to join the Army. After you left the Army in October 2008 you remained in Townsville for a short time working as a landscaper.
50 In late 2008 and into 2009, from your self report, whilst you previously had a number of jobs, at that stage you did not have any particular direction, deciding rather to learn a number of trades so that you could offer employers various skills. You reported that following some employment with Mr Gibson you left that in early 2011 before returning to Perth and then back to Victoria later in 2011. At the time of the interview with Mr Joblin in October 2012 you were still working long hours. You said work was extremely important to you, and that you had almost a compulsive attitude to it.
51 At the time of interview with Mr Joblin in October 2012 you were living with your girlfriend and her family in Wantirna, and you described a good relationship with your girlfriend’s mother, stepfather and siblings. Not surprisingly, both you and your partner were distressed over a recent miscarriage of your child.
52 Turning to your alcohol and drug use, you acknowledged at times you had had problems with alcohol, but I note, as did Mr Joblin, that that was not relevant to your offending before me. At times it would appear you dealt with distress by drinking. Earlier you acknowledged you had smoked cannabis at times in the past to assist with sleeping, and acknowledged you had experimented with illegal drugs when younger. Again, drugs are not relevant to your offending before me.
53 Mr Joblin referred to your recent use of Duromine tablets which you would take to help you stay awake. You understood that these would help you to not fall asleep when driving. In the opinion of Mr Joblin there was some difficulty with your logic, as it was inappropriate to be driving after having taken quantities of Duromine. Following this collision on 24 November 2010 you stated you believed that in order to avoid further difficulties with staying awake, Duromine may be of assistance. You, in that response to Mr Joblin, did not appreciate the need to address your long work hours.
54 Mr Joblin referred to a subsequent court appearance by you in March 2011 and that you had not attended the programs to which you were then directed.
55 In the opinion of Mr Joblin any driving charges since this incident did not indicate a lack of remorse or contrition on your part, when considering the offence that is before me. You did not attempt to minimise the seriousness of this offence.
56 Turning to your medical history, you reported you had had a history of suicidal ideation and had in late October or early November 2011 attended Dandenong Hospital in relation to a suicide attempt. No further details were provided.
57 Mr Joblin concluded you did not have an anti-social personality. At both interviews with him you indicated considerable remorse.
58 Mr Joblin also referred to your contrition, and stated you are very aware of the wrongfulness of your behaviour, which in his opinion at a cognitive level defined contrition. In his opinion, self-evaluation was more the province of remorse. You were very conscious and aware of the emotional factors associated with the collision and the effects of it. You were aware of the damage you had occasioned the family of Mr Sykes, were aware of the impact of that damage and that you were responsible for it.
59 In his opinion there was a basis to consider the presence of both remorse and contrition. In his assessment, Mr Joblin noted it was unfortunate that you were still at that stage trying to work long hours and deal with fatigue by taking medication.
60 Mr Joblin also gave evidence before me and confirmed that following his initial interview with you in November 2011 he felt it necessary to arrange for further investigations in relation to any potential head injury sustained in Queensland as a result of the motor bike collisions. He was subsequently made aware of the report of Professor Helme to which I have previously referred.
61 Regarding the work you were doing on this particular day, you said you needed the money, and you were also working hard as you wanted to be upwardly mobile, and to demonstrate to your parents you were successful.
62 Mr Joblin concluded, as I said, you did not have an anti-social personality, that you had insight into your culpable driving, and expressed remorse and contrition, as he defined in his evidence. In Mr Joblin’s opinion you were remorseful for your offending and had expressed suicidal feelings at his most recent appointment with you.
63 In cross-examination, Mr Elston, who appeared for the prosecution, referred to your use of Duromine to stay awake. Mr Joblin conceded that medication would perpetuate the problem, and also reflected some insight by you into the fact you knew you were tired.
64 Regarding your prospects of rehabilitation, Mr Joblin was aware of that court appearance on 21 March 2011 for offending on 24 August 2010, approximately three months prior to this incident involving Mr Sykes. You appeared at Dandenong Magistrates’ Court in March 2011 for driving offences, which as a result, your licence was disqualified for six months and you were fined $600. Further, you were ordered to complete a road-trauma awareness course and a defensive training program. You did not complete either program, nor did you commence them either. This is concerning.
65 In addition, Mr Joblin was made aware of three occasions on which you were apprehended by police for driving whilst disqualified, specifically on 7 October 2011, 25 November 2011 and 31 November 2011. Mr Joblin did not apparently know about all these matters, and as such considered any answer about the offending relevant to contrition and/or remorse would be speculative on his part.
66 Your mother, Helen Lossev, gave evidence and confirmed details given to me by Mr Lawrie in relation to your background and history. After leaving the Army you lived with her, and confirmed you now live with your girlfriend, and have been for five to six months.
67 You had discussed this offending with her, and she described that being a constant and ongoing conversation, with an awareness by you of the adverse impact on the families involved. She was aware of you on one occasion having driven when you were not permitted, and was aware your car had been impounded for four days in August 2010.
68 She gave evidence you had nightmares regarding the collision and death of Mr Sykes. In the future you had plans to start your own business, that you were a hard worker, with very little leisure time.
69 Your partner, Jackie Gaunberg, gave evidence that she met you in June 2012 and had been living with you from about that time. You had been talking about a family. She was pregnant to you, but unfortunately suffered a miscarriage in October 2012. You had plans to obtain full-time work and move away from Melbourne to be together. She referred to the positive impact of her relationship with you, which had resulted in her ceasing use of illicit substances.
70 Mr Darren Davies gave evidence. He is the partner of your mother. He met your mother approximately six years ago and said he had a friendship relationship with you. You had discussed with him the effects of your offending on both Mr Sykes and his family, and that had been a regular discussion. You said you were sorry it had happened. He was unaware of your three driving-whilst-disqualified matters, and also it appears your March 2011 appearance. Regarding the March 2011 appearance, he did not know you were required to undergo the programs to which I earlier referred.
71 There were also a number of written references placed before me.
72 The first from Katrin Serebnitski dated 15 November 2012. She had known you and your family since you came to Australia when you were 5 years old, and had regular contact with you and your family. She described you as always being very hardworking and a good person. You were always doing what you could to better yourself and your family, and she was shocked to hear of this offending.
73 There was also a reference from Alexei Koukotine dated 5 December 2012, the owner of Lexa Tiling, who had known you for approximately 12 months. He described you as a very hard-working young man, always punctual, reliable, and happy to do overtime if required. As a result of your work he had made you supervisor on a lot of his jobs, as he trusted you with those jobs. He described you as responsible, hardworking, and with a caring attitude towards your girlfriend. You had talked about a future with her, and also of having a family. The recent loss of your baby had had a profound effect upon you.
74 There was a reference from Anna Moss dated 19 October 2012, a cousin of your mother. She always found you to be a caring, kind young man, particularly with family and friends. You had told her of the collision and death of Mr Sykes. You were distressed over your actions, and had expressed concern for the wellbeing of the family of Mr Sykes. You would like one day to become a professional tradesman.
75 There was a reference from Umut (Jack) Gokcek dated 3 December 2012, a friend. He described you as being kind at heart and always trying to help others, even if you did not know them. He was shocked to hear of your offending. He was aware you were remorseful and distressed about the death and the impact it would have on the deceased’s family and children. You had always been a hard worker and took great pride in your trade. He described your relationship with Jackie in positive terms.
76 There was also a reference from Serguei Lossev dated 12 November 2012, your father. He described you as a hardworking young man who was sensitive. You enjoyed your work and had great pride in it. He had spoken to you about this incident, and you had expressed that you felt guilty for it and upset that you were responsible for the death of another person. You had stated you accepted full responsibility for the death.
77 Finally there was a reference from Vasile Opris dated 31 October 2012, proprietor of Roman Tiling and Flooring. He had previously engaged you on a number of tiling jobs. You had told him of the collision in which you had caused the death of another. He described you as an easygoing young man, reliable and hardworking. You had shown a willingness to learn new skills and had expressed concern for the family of the deceased.
78 Regarding your rehabilitation, I have some concerns, particularly as a result of your driving offending behaviour since the incident involving Mr Sykes. However, I am conscious that in particular given your age, I must when sentencing you, seek to maximise your chances of rehabilitation as they may be.
79
I now turn to the contents of the victim impact statements. It is difficult in these brief sentencing remarks to do justice to those statements. They are eloquent. However, it is clear that your offending has had a profound effect upon all members of Mr Sykes’ family. Ms Kerrie Logan, in her statement sworn 28 November 2012, was speaking on behalf of her sister, Robyn,
Mr Sykes’ partner of more than 30 years. The pain felt by Robyn and their children regarding Mr Sykes’ death was palpable and raw. Robyn thought of her partner continually and had flashbacks to the emotions she felt when told of the collision and being taken to the Alfred Hospital to see him. Robyn mourned the loss of her soul mate and not being able to grow old with him. The decision to take Mr Sykes off life support was difficult. Ms Logan spoke of her sister’s dependence on Mr Sykes as a result of her own ill health. The children missed him. Important life events would never be the same.
80 There was a Victim Impact Statement from Raeleen Condon, sister of Robert Sykes, sworn 29 October 2012. She described the person who was Robert Sykes. She said there were many people who loved him. To receive the news of the collision was devastating. Following turning off his life support her brother’s organs were donated making a lifetime impact on five dangerously ill people. She was proud of her brother in life and death. She missed regular contact with her brother.
81 Her brother loved life and had a sense of humour which was infectious. She described seeing the gut-wrenching effect of her brother’s death on Robyn and their children, Loryn and Ashlee.
82
There was also a Victim Impact Statement from Marilyn Philips, sworn
29 October 2012, which was read into the transcript. Ms Philips is the sister of Mr Sykes. She described seeing her brother in hospital and the distress of his daughters, and she continued to remember that scene. She mourned her inability to have regular contact with her brother. She thought of him daily. She would miss him forever.
83 The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am, however, conscious I must not allow the effects upon a victim to swamp the sentencing process. There is no doubt that any sentence I impose will never in their mind be enough.
84 Mr Lawrie submitted your driving could best be described as falling at the low end of the scale of gravity, although not at the lowest end. I discussed this with him. In my opinion, your offending falls into the mid-range category.
85 Mr Lawrie conceded general deterrence was a primary sentencing consideration, and following discussion of the authorities relating to youthful offenders charged with culpable driving, as I understood it, he accepted the authorities as set out most recently in the decision of DPP v Hill [2012] VSCA 144 as applicable which includes reference to cases such as Mills[1] and others, and I shall return to some of these authorities in a moment.
[1]R v Mills [1998] 4 VR 235
86 I do however note, as he urged upon me, there were no aggravating features of your offending sometimes seen in these cases, such as alcohol/drugs/speed.
87 As I said to Mr Lawrie, I am conscious when sentencing you, you are still a youthful offender at 23. I am also very conscious of the fact you have not spent any time in custody previously.
88 Mr Elston submitted your offending fell in the mid-range. I agree. He referred to the touchstones of the sentencing process as outlined in Hill for offences of this type.
89 He further expressed concern regarding your rehabilitation prospects, given your subsequent driving offending.
90 It is difficult comparing cases factually, as circumstances vary enormously case to case, as do all matters in mitigation of offending and of offenders. In the end I have to determine an appropriate sentence based on the facts and circumstances in this case, of course being mindful of your personal background, circumstances and in particular matters in mitigation as well as the applicable sentencing principles.
91 I turn then to some of the principles referred to succinctly in Hill.
92 The Court referred to R v Withers [2003] VSCA 176:
“There is no need to recite yet again the many expressions of the seriousness with which the crime of culpable driving is viewed by this Court. They can be found in such cases as Wareham, Solomon,[ O'Connor and Scott. The offence is now regarded as a species of involuntary manslaughter and in this context it must be borne in mind that the legislature has fixed a maximum penalty of imprisonment for 20 years, the same as that available for manslaughter. The conduct of the applicant before this Court" - I am referring to Withers - "can be described as grossly culpable, using the word "culpable" in a
non-technical sense, and as constituting a particularly serious example of the offence."
93 I digress and note that was relating to Withers, and further.
“Giving appropriate weight to all considerations which could operate in mitigation of penalty, that level of seriousness had to be reflected through the imposition of a substantial term of imprisonment. Time and time again the Court has emphasized the importance of general deterrence as a sentencing consideration in cases of this type. Hopefully, as a consequence of the stance taken, as set out in the authorities to which I have referred" - again I am referring to Withers - "there will be increased understanding on the part of those who may be tempted to adopt the kind of culpably irresponsible behaviour that results in a victim… . General deterrence is a powerful sentencing consideration in relation to this type of behaviour.”
94 In Hill they referred to R v Franklin [2009] VSCA 77 in which Warren CJ stated:
“Cases of culpable driving continue to come too frequently before the courts. What is so striking about these cases is that one moment in time can have such devastating consequences. As already observed, culpable driving is punishable by 20 years’ imprisonment. Such a severe maximum penalty reflects the gravity of the offence and the culpability of the perpetrator.”
95 Also in Hill, reference to DPP v Gany (2006) 163 A Crim R 322:
“Serious driving offences frequently involve offenders who are of generally good character and who have excellent prospects for reformation. No-one likes sending such people to gaol but there has been much publicity about the consequences for those who choose to drive their motor vehicles in a criminally negligent or reckless manner causing serious injury or endangering other members of the public. This Court has said on numerous occasions, frequently when dealing with offences of culpable driving and negligently causing injury, that those who put lives at risk through grossly negligent driving can expect to receive heavy penalties influenced by the sentencing principle of general deterrence.22 In such circumstances, sound prospects of rehabilitation will not lead to any significant amelioration of the prominence of general deterrence in the sentencing process.23 Denunciation and general deterrence must be at the forefront of the sentencing synthesis.” - 24#24
96 Again referring to Franklin:
“The nature of imprisonment and its impact on many offenders in culpable driving cases may often be relevant. Frequently, the offenders are from a good background and are meaningful contributors to the community. They are often young, stable, employed and lack any substantial relevant prior offending, or any prior offending at all. The individuals through a brief, often inexplicable error, destroy the lives of others and ruin their own. Everyone is damaged. Ultimately, the offender ends up in prison with all its deprivation and hardship. This factor is a critical aspect of general deterrence. One foolish mistake results in a stern sentence of imprisonment.”
97
The Court has also referred to youth and culpable driving referred to in
R v Tran(2002) 4 VR 457:
“In R v Sherpa8 the applicant, who was 20 at the time of the offence, pleaded guilty to one count of culpable driving causing death. The form of culpability was negligence. There were mitigating factors in addition to his youth which led this court to reduce a sentence of seven years’ imprisonment with a non-parole period of five years’ to a sentence of five years’ imprisonment with a non-parole period of three years."
98 I digress and note that is a decision of 2002.
99 The following was said at [11]:
"General deterrence must usually be emphasised in the punishment of this offence and there is correspondingly less scope than in the case of some other crimes for leniency on account of an offender's youth. That does not mean that there is no scope for youth and concomitant prospects of rehabilitation to influence the disposition. Even if an immediate custodial sentence is warranted, as it almost always is, those factors may still have a bearing on the kind of sentence to be imposed (in particular the choice between imprisonment and youth training where the latter is a realistic option), the length of the sentence and the time that must necessarily be served. But it is not to be forgotten that a life has been lost." [Emphasis added.]
100
Referring to the principles in Mills, the Court noted observations made in
R v Bellby O’Bryan AJA
“[I]t seems necessary to state again that the general propositions accepted in R v Mills...are just that — general propositions. They are, as their terms show, not of universal or automatic application. True it is that they may apply not infrequently, but each case depends upon its own circumstances, including, it is to be noted, the circumstances of the offence as well as those of the offender.
101 I accept the rehabilitation of youthful offenders, where practicable, is an important objective of the law, however it is not the only objective. There are cases where other objectives prevail. There are cases where just punishment, general deterrence and other sentencing objectives are at least equally important.
102 Turning to the offence of culpable driving constituted by negligence. In DPP v Johnstone (2006) 16 VR 75, Warren CJ stated:
“Culpable driving constituted by negligence consists of driving involving “such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances, involving such a high risk that death or serious injury would result, that the driving merited criminal punishment”. The maximum penalty of 20 years’ imprisonment for culpable driving reflects the gravity of the view taken by Parliament in relation to the offence of culpable driving. In turn, the courts have reflected the seriousness of the offence by the imposition of longer terms of imprisonment as “the community will not tolerate the taking of human life by acts of gross negligence”.3
103 Her Honour further went on:
"The courts have also recognised that the circumstances of culpable driving will vary and courts should take account of the individual circumstances of each case.”
104 I have not lost sight of that.
105 Yet again this is another tragic case before the court involving the death of yet another citizen of our community and involving a young person who has worked hard and yet has committed the serious offence of culpable driving. The flow-on effects to Mr Sykes’ family, your family and you will no doubt last forever. The law, however, is very clear about this offending and the seriousness with which the courts regard it. General deterrence and denunciation are very important sentencing considerations even when sentencing a youthful offender.
106 As well as matters personal to you, including your prospects of rehabilitation, I must also take into account matters such as general deterrence, which is of considerable importance in a case such as this.
107 There is also an element of specific deterrence when sentencing you, in that you do have a prior court appearance for a driving offence.
108 I must also consider the need to protect the community from you, and bear in mind the likelihood of your re‑offending. The latter causes me some concern, given your subsequent offending.
109 I am also called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
110 On Charge 1 you are convicted and sentenced to 5 years and 6 months’ imprisonment, and I set a non-parole period of 3 years and 6 months' imprisonment.
111 Pursuant to s.18(4) Sentencing Act 1991 I direct that you have spent a total of 8 days in custody (from 6 December 2012 to yesterday, being 13 December 2012) by way of pre-sentence detention. I would like that confirmed. And I direct that this be entered into the records of the court.
112 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of this charge following jury verdict I would have sentenced you to a term of imprisonment of 7 years with a non-parole period of 5 years.
113 Pursuant to s.89 Road Safety Act 1986, I order your licence be disqualified and you be cancelled from obtaining any licence for a period of 4 years and 6 months from today's date. I am mindful, when imposing the duration of that cancellation, of authorities which refer to rehabilitation prospects, in essence, not being quashed by lengthy periods of disqualification following release from custody (see R. v. Lefebure [2000] 112 A.Crim.R. 41).
114 Did I get the PSD right?
115 MR ELSTON: Yes, Your Honour.
116 HER HONOUR: Were there any other orders?
117 MR ELSON: I think I noted last time that there are some summary matters still on the system.
118 HER HONOUR: Are there?
119 MR ELSTON: Yes, and they should be withdrawn.
120 HER HONOUR: Yes, all right. What are they? Can we have a look at those, Ms Jackson? You don't object to that, obviously?
121 MR BALL: No, Your Honour.
122
HER HONOUR: No, all right. Do you know anything more about them,
Mr Elston? Is there any documentation? Was it uplifted?
123 MR ELSTON: They should be on the system somewhere. I don't have the details with me. I became aware of them after the last hearing.
124 HER HONOUR: No, that's all right. What we might do, unless there is any objection from the defence, I will ensure that they are withdrawn.
125 MR ELSTON: Yes.
126 HER HONOUR: We will make our enquiries today. If we have any problems, we'll notify your instructor.
127 MR ELSTON: Yes.
128 HER HONOUR: I have a jury out at the moment, but I'll have some time.
129 MR ELSTON: I appreciate that.
130 HER HONOUR: So we will make whatever enquiries we can. Can your instructor please liaise with the defence?
131 MR ELSTON: Yes.
132 HER HONOUR: And I won't require you both to come back unless there's a problem. If there's a problem - well, let's try and avoid a problem.
133 MR ELSTON: I don't anticipate there will be any difficulty. We will get the details and ensure there's contact with Your Honour's associate.
134 HER HONOUR: Yes, and I will order that all of those charges - - -
135 MR ELSTON: Be withdrawn.
136 HER HONOUR: - - - however many there are, will be withdrawn, noted as withdrawn by the prosecution, i.e. that there are no further charges to be dealt with in relation to this matter.
137 MR ELSTON: Thank you.
138 HER HONOUR: All right. Now is everything else correct as far as - - -
139 MR ELSTON: Yes, Your Honour.
140 MR BALL: Yes, Your Honour.
141 HIS HONOUR: All right, thank you very much. Can I thank counsel for their assistance. Yes, could you please remove Mr Lossev. Thank you very much.
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