Director of Public Prosecutions v McKernan

[2019] VCC 1610

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT SHEPPARTON
CRIMINAL JURISDICTION

CR-19-00551

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACK MCKERNAN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:	3 October 2019
DATE OF SENTENCE:	3 October 2019
CASE MAY BE CITED AS:	DPP v McKernan
MEDIUM NEUTRAL CITATION:	[2019] VCC 1610

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Offender	Mr M. Dempsey	Tony Hargreaves & Partners

S E N T E N C E

1HIS HONOUR:  Jack William McKernan.  You have pleaded guilty to one charge of dangerous driving causing death and one charge of conduct endangering a person.  Those crimes carry a maximum penalties of 10 years and 5 years respectively.  You have also pleaded guilty to one uplifted charge of exceed the appropriate blood alcohol level and that carries a maximum penalty, I think, of a monetary penalty.  Insofar as that matter is concerned, it is part and parcel of all this.  I will simply fine you $200, cancel your license and disqualify you for a period of three months.

2Next, pursuant to s.464(z)(f) of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.

3The situation is that you, at the time of the offending, were 19 years of age.  You pleaded guilty at the earliest reasonable opportunity.  I accept on the material before me that you have profound remorse for what occurred on that night.  You must also get the utilitarian benefit of that plea of guilty and your obvious intention to assist the process of justice. 

4The reason that the matter has taken so long to come on is that there are a number of parts to that.  There was a committal where your counsel very properly tested the .05 evidence or the blood alcohol ruling.  The original reading that was reported to be put by the Crown was a high one that was reduced at committal. 

5Delay in your situation is a very, very important factor in my view.  And on the day of the collision you admitted to the driving.  Your blood test was taken at the time.  The circumstances surrounding it were relatively well known at that point.  You were not charged for some eight months.  We do not need to go into the reasons for that, but the fact of the matter is that you spent eight months as a teenage boy wondering whether you would be charged and, if so, with what.

6In any event, you were charged in July, 2018.  A committal was set down for 28 November, 2018 at which point you would have still been a couple of months under the age of 21.  The witness who was to be cross-examined was the witness who related to the breath analysis or the blood alcohol analysis, Dr O'Dell, he was unavailable.  And accordingly, the committal was adjourned to 20 March of 2019.  Of course, by the time your counsel was then able to test those findings, you had already turned 21.

7Indeed, the committal as I understand it, took place on 20 March 2019 and a plea offer was made on your behalf within something of the order of a fortnight.  That plea offer was accepted within a few weeks.  So accordingly, once the committal had been included and that matter had been tidied up, it proceeded rapidly.  Unfortunately, in that period of time, you had turned 21 and the disposition of youth justice was not available. 

8I make it very clear in these circumstances where it is common ground that you do have to undergo a form of custody, that had you been brought before me prior to your 21st birthday, I would have imposed a significant youth justice order.  I am no longer able to do that.  You must go to an adult gaol.

9The benefits of a youth justice order are clear.  You are with people roughly your own age.  The programs clearly are much better and it's a far better place for a young person to rehabilitate and undergo their sentence.  I point out that at that period of time, had I been able to sentence you pursuant to youth justice, a sentence in the order of two to three years could have even been given.  If that had been the case, that, as I say, is no longer possible.

10Insofar as that is concerned, I refer to the decision of Borg, which your counsel relied upon during the course of the plea that took place.  In Borg, the Court of Appeal found there was a very significant factor that the opportunity of youth justice had been lost due to the delay.  And there is also the matter of Scammil which I have read overnight, which also relates to that. 

11I think it has to be understood that we are looking at the prospect of – or the question of delay in your case.  And what Mr Justice Nettle said in the case of Turnbull some 10 years ago:

'As against that, however, the authority is clear, that the incarceration of a young persons in adult persons should be avoided if possible.  For the obvious reason that an adult gaol has the potential to cause damage of a kind for which the offender and the community will pay dearly in the long run.  Hence, in most such cases [and I will refer to them in a moment] rehabilitation remains a primary consideration so long as there is a realistic chance of rehabilitation.'

12That opportunity of undergoing or sentencing using youth justice has been denied through no fault of your own and it is a factor that I take in these circumstances very much into account.

13Subsequent to your being charged, you have not been charged with any other matters and you have complied with bail conditions.  Prior to you being charged, you had no prior convictions at all.  All those matters go very much in your favour. 

14I then turn to the circumstances of the offending and again, discussion took place at some depth as to this during the course of the plea.

15At the time of the offending on 5 November 2017, you were 19 years of age.  You resided in Euroa and held a probationary driver's license at the time.  Clearly you were not allowed to drive with alcohol in your system.  The young victim in this matter, Riley Bjorksten, was also aged 19 years of age.  He was a very close friend of yours at that time. 

16The collision in which he lost his life, occurred on Faithfuls Creek Road in Balmattum at 2.12 am on Sunday 5 November, 2017.  The collision involved a single vehicle which you were driving.  There were three occupants inside that utility and two unrestrained passengers seated in the tray of the vehicle.  As it was travelling west on Faithfuls Creek Road, it progressed through a series of left and right hand curves that formed similar to an S shape. 

17The collision resulted as the ute exited the right-hand curve wide towards the left side of the gravel road.  You over-corrected the ute to the right and then to the left.  You rotated anti-clockwise, tripped and rolled over with the driver's side first along the gravel road.  It continued to roll over until it came to rest lying on the passenger side front.  The two young men in the back were ejected.  Riley Bjorksten was trapped under the rear tray of the ute.  He subsequently died.

18The lead up to it was that on the Saturday 4 November, you had played cricket during the day.  Later that evening, you attended a hotel or hotels in Euroa where you met up with friends, Nathan Adley, Riley Bjorksten, Mitch Penman and man known as Justin Gilliland, Curtis Hall and Zack Gleeson. 

19I note from what I was told form the Bar table that Mr Gilliland would appear to have not been a regular member of your group of friends and was significantly older.  The vehicle, in fact, would appear to have been his and whilst his role in all this is a bit blurry, it's one of concern, not only to me but obviously to some of the people who've put in references on your behalf. But be that as it may. 

20You had been drinking.  Mitchel Penman, your friend, said:

'Jack was a bit pissed.  He was energetic.  I'd seen him drinking during the night.  He was drinking beers and then he swapped to bourbon and coke while we were at the middle hotel.  I saw him have three pots of bourbon and coke at the Middle Hotel.  I don't know how much beer he had before that.'

21Later in that evening, the group of you took a taxi ride to Gilliland’s mother's house and after a period of time, you all got into the back of the ute.   You then drove to Gilligan's house on Shehans Creek Road.  In a statement that he made to the police at the time, young Mr Penman said the following:

'It was me in the front passenger seat.  Jack McKernan was driving and Justin Gilligan in the middle seat.  The others got into the back of the tray.  They were Zack Gleeson, Andrew Hill, Nathan Adley, Riley Bjerksten and Curtis Hall.  Andrew Hill said it took about 10 minutes to get there and we wouldn't have gone more than 80 kilometres an hour.'

22It was then decided to drive to Gilligan's father's house to obtain more alcohol.  Young Mr Gleeson, Mr Hall and Mr Hill remained at the house, while the rest got into the ute.  You were driving, Mr Penman was the front passenger and Gilligan was in the middle seat, with the two others, Mr Bjerksten and Mr Adley were in the tray.

23Again, in his statement, Mr Penman says:

'It seemed like Jack and Justin forgot that Riley and Nathan were in the back.  Justin was just directing Jack where to go.  Jack was driving pretty fast.  It felt like 90 to 100 kilometres an hour.  I was shitting myself as we went.  Some of the corners were getting taken way too fast.  He lost it a little bit first and the car started to slide sideways.  It was sliding driver's side first.  Jack tried to correct it and overcorrected.  It made it worse.  The car tipped up on its side, driver's side first and rolled completely over.  When it stopped it was on its side with my side down the road.'

24At the committal, being cross-examined as I would assume, he said:

'I believe that not knowing the road, some of the corners were getting taken quick, but not - he wasn't driving fast on purpose, just the corners got taken quickly at some spots.  I never felt unsafe to be in the vehicle.'

25I'm not going to buy into the circumstances of the somewhat different description that he gave to police immediately after the event when he made his statement.  In any event, after the vehicle had rolled, you, Mr Gilligan and Mr Penman climbed out and found young Riley trapped under the tray.  He was extracted from underneath the vehicle and you contacted 000 and were given advice over the telephone to perform CPR. 

26I am told - I am not going to play it - that the tape of you talking to the people at 000 while you were trying to give CPR to your dying friend is gut-wrenching to use the vernacular.  Clearly at that point in time, you were in a state of shock, you were trying to give CPR with a broken arm and Nathan Adley said he heard you say, 'I fucked up’ a couple of times.  He was treated by ambulance staff at the scene, but that proved unsuccessful.

27Mr Adley, who was also thrown from the back of the vehicle suffered minor physical injuries.  That gives rise to Charge 2 of reckless conduct, placing a person in danger of serious injury.  There is something of a dilemma in terms of how I deal with that charge, bearing in mind that the first charge is one of dangerous driving causing death.  The dangerous driving causing death is an objective test. 

28The reckless endangerment is subjective.  But after discussion with counsel, my understanding is that the reckless endangerment is the driving with the person unrestrained in the back of the ute.  That being Mr Adley and that the dangerous driving causing death is the way in which the vehicle was being driven in those circumstances. 

29If that was the basis of the reckless endangerment, I would not have incarcerated you.  That is not the situation with the dangerous driving causing death.  You, in any event, completed a preliminary breath test that gave a positive reading.  You initially stated that Gilliland had been driving, that you had been in the middle seat.  Whether that was done out of the sheer shock of the situation that you were in, I don’t know. I was given some minor detail from the Bar table, that in fact, Gilliland would appear to have been changing gears.  I have no idea what that is all about.

30Counsel for the Crown said it was obviously an unfortunate, and an aggravating feature, but it was simply not persisted with and I do not understand the Crown to be pursuing that line with any real force.  The fact of the matter is that you did within a short time afterwards own up to being the driver of the vehicle and you, when spoken to by police gave a description as to what had occurred. 

31Insofar as the blood reading was concerned.  Ultimately, the Crown opening is that the lowest possible reading was .043 grams.  That clearly is not in excess of .05, but the fact of the matter is because you were on a probationary license, you should have been driving with any alcohol in your system.  How much effect it had is debatable.  But clearly it must have had some effect upon you.

32No drugs were detected and in young Mr Bjerksten, his blood showed a reading of 0.130.  The vehicle was examined by Senior Constable Gardiner and he said it had excessive steering but said it was fully functional and operating correctly prior to the collision and the inspection did not reveal any vehicular failure that would have caused the collision. 

33I am told and accept that indeed that vehicle was a farm vehicle where three of the wheels were different to the other one, and that that was a matter that would have then caused it to be unstable particularly on an unsealed or uneven road or in cornering.  You had been driving the vehicle for a period of time on gravel roads and I do not hear it to be said that it has been put that somehow or other the mechanical condition of the vehicle caused the collision.  It is also a situation where after the unfortunate situation occurred that the counsel put up signs that said S-bends ahead or whatever it might be.  Again, I do not think it can be put here that the road caused this. 

34You were in a situation where you had been drinking.  You knew you should not have been driving at all.  You were driving a vehicle with gears, when you only held an automatic license.  You were affected by or would have to be at least, by alcohol.  Clearly from what young Mr Penman said, even allowing for the diminution of his evidence sometime later, you were going around bends and it was clear that the vehicle was going too quickly for those bends.  I do not find that you were doing over 100 or anything like that.  But you were clearly going too quickly and it must have been obvious.

35And it is in those circumstances, with your friends in the car, with alcohol on board, and you should not have even been driving and driving in that manner, that you caused the vehicle to roll over and that gives rise to the charge of dangerous driving causing death. 

36The situation is a very difficult one in terms of trying to determine moral culpability and the factors that are taken into account.  In R v Neethling, the matters that should be taken into account were listed and I have no difficulty with any of these and as neither did your counsel, it is common ground that certainly in other states and in this state that general deterrence must be given considerable weight in sentencing an offender for this driving, causing death.  A person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment.  The sentence which is imposed must take account of variations in the moral culpability of the person responsible and a custodial sentence will usually be appropriate for this offence, except in cases where the level of moral culpability is low.  I would agree, as I think everybody does, with all those propositions as being the state of the law in Victoria.

37It was also listed in Neethling, as had been pointed out in New South Wales decisions and in DPP v Oates in this state that a list of the features that you can take into account which can be aggravating or can just be part of the process, are the extent and nature of the injuries inflicted.  Well, that is patently clear.  The number of people put at risk.  I am concerned about that aspect of this because it seemed to me that one of the reasons I would not have imposed a custodial sentence for the endangerment is that it would amount to a double punishment, because clearly you have put in this situation - one person is deceased, but there were five who were at risk.

38The level of speed and I have mentioned that.  The degree of intoxication or substance abuse.  You should not have been drinking and it is clearly circumstantial.  It must have had some effect on you.  Erratic or aggressive driving; I am satisfied that is not the case.  Competitive driving or showing off; I am satisfied that that is not the case.  The length of the journey in which the others were exposed to risk – I am told it was some three or four kilometres, most of which was on a gravel road.  Ignoring of warnings, that is not the case here.  Escaping police pursuit, that is not the case here.  Degree of sleep deprivation, not the case here.  And failing to stop, not the case here.  So those aggravating features, there is not a lot that play a significant part in the sentencing in relation to you. 

39The offending, if we even talk about the effect on other people has to be regarded as serious.  I am very reluctant to make findings as to lower or higher ends of the circumstances where a young man has lost his life in these circumstances.  But I have certainly seen dangerous driving causing death that were far worse than this and I have seen dangerous driving causing death which were not as serious.

40It calls for the application, obviously as pointed out in Neethling, of general deterrence.  Specific deterrence, I am satisfied that you will not ever do this again.  There has to be denunciation and there has to be an appropriate punishment.  The simple fact of the matter is that on that day, whilst there was a group of you and you had clearly all had been drinking which can cause group decisions to be made which are very foolish and sometimes end in tragedy, that this young man in the back of the ute obviously would have been aware that you were drinking and had been drinking himself.  But he trusted you not to drive dangerously and that trust was breached to a level where, putting it bluntly, you killed him.

41The victim impact statements before me are from his mother, his brother, from his girlfriend and his girlfriend's mother.  Each of those victim impact statements sets out the absolute devastation that your offending has occurred.  Not just to the family of the victim, but also the whole town of Euroa. 

42This sort of offending can cause real problems within a town and can cause division.  People have all sorts of views on it and the town suffers the loss of a young person such as this young person. Clearly he was a well-respected and liked member of the community, a good footballer and participator in the operation, I suppose you could call it, of how that town worked. 

43Clearly, the loss of one so young is always a dreadful thing.  Yet, the loss of a future is a dreadful thing and is irreplaceable.  In these circumstances, whilst it is a difficult thing to do, I think I should just in short compass just read something from the victim impact statement of his mother which I think clearly and very articulately and very courageously too, if I may say so, outlines the sense of loss that she and many others I have no doubt have suffered. 

44She said:

'Saturdays aren't the same anymore.  I miss his lightning speed on the wing and his amazing ball skills.  To retire No.7 was never an option.  It's now worn by his best mate, Jaman, which Riley would love.  After having 12 months off work after losing Riley, I now travel to Benalla for work.  I drive Riley's Commodore now and going past the cemetery each morning is devastating.  I cry most days all the way to Benalla, thinking he should be going in the other direction to work in Avenal. 

Working is a constant struggle.  It's extremely hard to try to be normal, to fit in with your work colleagues.  When I get out of the car, I put my happy mask on and take it off again when I leave to go home.  On a daily basis, sometimes two or three times a day, I go and sit with him.  Tell him what everyone is up to, read out the footy teams and results and play him songs on his phone which destroys me more and more each day to have to turn and leave him there.

I miss packing his footy bag, I miss packing his cooler bag for work.  I miss his thumping music coming in the driveway.  I miss, 'Mum, what's for dinner?'  I miss his regular messages wanting money, or 'goldies' for Macccas.  I miss calling his phone and always having to call him twice as he never answered. 

I miss seeing his bedroom door closed in the morning when I get up, but most of all I miss Riley.  I long to see him again.  To talk to him.  Riley was such a great fun-loving kid who enjoyed life, his family, his girlfriend, and his mates.  I will never ever accept that this has happened.  There is a huge gaping hole in my heart which can never be mended.'

45I think no words I can use can replace what his mother had to say in this courtroom.  Gaol in this situation is inevitable.  YTC would have been inevitable had you not turned 21.  It's conceded very properly, I might say by your counsel that gaol is the only option, but it should be what's known as a combination sentence.  A combination sentence for these purposes is one where a sentence is no more than 12 months' imprisonment.  It's imposed with a community corrections order to follow. 

46The decision in the Court of Appeal of Bolton outlines clearly that a community corrections order is a punitive disposition and makes it clear that in certain circumstances, a combination sentence can be appropriate.

47The Crown in these circumstances have said that a combination sentence is not within the range.  Obviously, I'm not bound by a Crown submission, nor am I bound by a defence submission.  I have become concerned over recent years as to concessions and the like in these matters and I simply by way of example refer to a couple of matters.  One was the matter of Charleton which I was involved in. 

48In that particular matter, a woman of mature years driving a car with a horse float and a horse in it attached to the back, over a period of in excess of 20 seconds went through three sets of tactile line markings and a number of signs, advisory signs, double lines, the direction advisory sign at the – direction at the intersection and approximately 1 kilometre before that intersection she had been seen to be driving on the wrong side of the road for a few seconds and then forced back on to the correct side by another driver.  A man's vehicle was T-boned in that situation and devastation occurred and he was killed.

49In that circumstance the Crown conceded a combination sentence and when I sentenced I expressed my view that was a very generous concession indeed and I would have not done so had they not conceded.  In a matter of Munday - this was in Bendigo in August of 2016.  This is a simple example.  At 12.15 am on New Year's Day a 37 year old at a property near Kyabram was celebrating New Year's Eve with others.  At around 12.15 am on New Year's Day he and the deceased began riding two trail bikes up and down a road outside the property. 

50The night was described by witnesses as being pitch black and neither trail bike was fitted with lights and neither the accused or the deceased were wearing helmets.  Both had been drinking alcohol.  A later estimate was that the accused's blood content at the time was .049 and .087 and the blood alcohol of the deceased was between .065 and .110.  To be in that situation with motorbikes in the pitch black with no headlights, no helmets and both swerving to avoid each other and one dies, I would have thought the moral culpability involved in that was worse than what you did.

51In that case, however, the Crown conceded that a non-custodial sentence was open for a 37 year old.  So I think in these circumstances a lot of it is in the eye of the beholder, I fear, but the fact of the matter is there is no doubt in my mind that in this circumstances you do have to go to gaol.  As I have already indicated at least once, your counsel has very properly conceded that.  In my view a combination sentence is within range.  I am well aware of the concept of general deterrence.

52And well aware of comments that have been made in the past about how often the offenders in these situations are young men of your age who have made silly decisions when in drink, as would have been said years ago and they are clearly group decisions because you had all been drinking and you all participated in it.  You were the one driving and therefore you were the one that goes to gaol, and unfortunately young Riley is the one who died.  In the decision of Tomngeun, handed down some time ago, referred to a decision of the DPP v Leach, I think it was Mr Justice Eames, where he said:

'It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped.  That, after all, may be a decision which rebounds very much to the benefit of the community.'

53The president of the Court of Appeal said in The Queen v Tokava:

'A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in the case of a serious offence, if in the long term the community's interest will be best served by that course.  This Court should seek to promote public understanding of the fact that apart from the interest of the individual whom it is sought to rehabilitate, an important interest in itself, there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime.'

54Those comments are in my view are pertinent here. That causes the extremely difficult tension between the need and desperate need for general deterrence in these circumstances, that somehow or other young men have got to be stopped from killing each other and the individual circumstances of the particular accused person.  I think it is a situation where I am prepared to exercise a degree of mercy and it is part and parcel of what I am saying.

55The reasons for all that are contained within the submissions put on your behalf by your counsel.  Tendered on your behalf was a report from Mr Newton, a psychologist, who is well known to me, and a report from a psychologist, Ms Nihill, who has been treating you and talking to you as others have been subsequent to this occurring.  Since this has occurred you have continued to work.  As I have said you have committed no further crimes.  You have done a drink driving course. 

56You have undertaken all sorts of psychological treatment and it is quite clear from the materials that you are suffering, in partial remission, from a post-traumatic stress disorder.  The circumstances of that day I have no doubt will live with you forever.  Also tendered on your behalf were dozens of testimonies.  Dozens of references.  Each of these speaks highly of you.  It speaks of a very good work ethic, of basically a good young man who this is – for this type of offending would be totally out of character.  You are a very good sportsperson.  You contribute in cricket, football and all sorts of other sports within the town.

57You are community minded.  Your family is well known within the town and well known within the area.  You come from an excellent family, all community minded, all gainfully employed as you at the moment still are doing an apprenticeship and it is just a dreadful scenario that this has occurred. 

58The matters put by your counsel in very simply terms that – on your behalf were your youth and clearly that's a relevant matter, delay and I have discussed that, the lack of prior convictions and subsequent matters, previous good character, I'm aware that that does not play such a great part in these circumstances, lack of subsequent or pending matters, high level of family and community support that you enjoy, and indeed for the transcript I point out there are many people here in court today, not only those who have put in references. 

59It is clear now that you have insight and you have I think very profound remorse and you obviously have the diagnosis of the post-traumatic stress disorder.  That will be a difficult proposition for you in a custodial environment.  You are not the sort of young person who normally ends up in a custodial environment and I have no doubt that you will find it very challenging indeed and I take that into account.  I think the limbs 5 and 6 of Verdins are both brought into play in terms of being more difficult for you than it would for I would say the majority of other young people that I am called upon to sentence.

60And I think there is a real risk that your mental health may deteriorate in those circumstances.  The prospects of your rehabilitation I think are excellent. I take into account the work that you have done since and the work that you propose to do in the future.  You intend to complete an apprenticeship and I think that you will do very well.  The risk of you reoffending, I think, is low and indeed that is confirmed by the Corrections people who undertook the assessment of you.  You were essentially brought up in Euroa, and as I have already indicated played a wide range of sports from a young age.

61You were chosen for the Murray Bushrangers.  To be playing in the TAC Cup is usually a sign that young person is of good character.  Those organisations are very careful as to who they choose and who they associate with and who they get to play football with other youngsters.  I have already described the circumstances of your family.  You commenced an apprenticeship as a carpenter after leaving school and having endeavoured to work with the Richmond Football Club for a period of time that became difficult and you are now working in another situation.

62When you turned 15 you were working at the local IGA supermarket and you did that up until the time that you finished your VCE.  You have also done work in your father's engineering business and that is all to your credit.  You have given assistance to your grandparents and you have given assistance to other people within the town.  Clearly you are of excellent character and have excellent prospects.  In terms of the lack of judgment, I have discussed this with your counsel in some detail. 

63It was pointed out it was an unfamiliar vehicle, it was on an unfamiliar road, consumed alcohol, relatively inexperienced driver and in a manual car when only licensed to drive an automatic.  It is a situation where, at the risk of repeating myself, every young person who gets a vehicle in the country is told to be careful of gravel.  Everyone is aware of the dangers of driving too fast or cornering too quickly when on gravel, and in these circumstances it is the overcorrection which has in fact caused the vehicle to roll, but putting it bluntly you should have known better.

64I think I should in these circumstances quote from the report of Mr Newton, bearing in mind the submission of the Crown as to the psychological impact of all this and the psychological impact in particular obviously on you.  He said:

'Mr McKernan's inner dialogue alternates between a sense of hopeless and irreversible grief and a deep sense of responsibility and guilt for the role he played in the death of his friend.  These thoughts underpin his depression and are rendered more intense by his experience of trauma.

Mr McKernan reports that he still finds his mind drawn back most days to his experiences at the time of the collision.  These thoughts can take the form of intrusive recollections which sometimes reach the proportion where he becomes mildly disassociated from his environment.  He also described a clear experience of depersonalisation.  That is a sense of being alienated and cut off from his own experience.  These experiences are distressing and cause Mr McKernan ongoing anxiety. 

Beyond such experiences he reported that he finds his sleep to be disturbed from time to time.  Mr McKernan also reported a generalised state of hyperarousal and strain.  He noted he is more tense than used to be the case and he finds it difficult to relax.  Mr McKernan does not currently manifest the avoidance behaviours typical of those suffering post-traumatic stress.  He told me that he initially found it very difficult to return to driving and that it had taken considerable determination to overcome this. 

Mr McKernan was clear that after the initial period of being able to return to his everyday activities.  In my opinion it is clear that Mr McKernan developed post-traumatic stress disorder in response to the collision of November 2017.  The combination of the treatment which he has participated in and the support he has received from his family has led to some reduction of the severity of his symptoms.  So that this condition is now specified to be in partial remission.  Such comments notwithstanding, it is clear to me that Mr McKernan continues to experience a range of intense and distressing symptoms, and that further support and treatment will be required for some time yet.'

In addition to his anxiety related symptoms, Mr McKernan's mental state is characterised by typical emotional, cognitive, physical and behavioural symptoms of depression.  He reported ongoing episodes of deep sadness and described significant pessimism about his future.  Beyond work Mr McKernan has found it very difficult to motivate himself to undertake any positive activities or engage in recreational events.  Such persistent low energy is indicative of continued depression. 

Mr McKernan's distress is not motivated primarily by his concerns regarding the consequences that he might face.  While he is under no illusions about the gravity of his situation and the potential outcome of his case or is naturally concerned about some aspects of this.  The main focus of his depression is his grief at the death of his friend in the sense that no matter what he does there's no way of restoring him to life.  At times the hopelessness that this inspires wells up within Mr McKernan to result in bouts of intense suicidal ideation. 

While he denied any active intent to harm himself (sighting his love for his family as a reason to remain alive), the strength of his suicidal ideation suggests it would be prudent for appropriate precautions to be in place to protect him from impulsive acts of self-harm.  Such precautions will be most important during the period immediately following sentence, and especially so if Mr McKernan were to receive a custodial sentence at that time. 

While Mr McKernan's depressive symptoms cause him noteworthy distress, I do not consider they are significantly intense to warrant the diagnosis of a comorbid depressive disorder.  That is I consider they are sufficiently accounted for by the post-traumatic stress disorder, which has developed in the wake of the collision of November 2017.  It would nevertheless be important for Mr McKernan to continue to receive treatment for his depression.'

65Later on he said:

'Beyond such considerations, Mr McKernan's emotional response to this incident has been intense.  He is therefore likely to internalise the punitive aspects of sentencing in a particularly severe manner.  As a result there is a significant risk that Mr McKernan's emotional state will deteriorate in the period immediately after sentencing.  Thus were the court to consider an immediate custodial disposition to be appropriate, I would anticipate that his experience of adjusting to the custodial context will be likely to be particularly difficult. 

I consider it likely that he would require relatively intense profession support during the initial period in custody and be vulnerable to both more regular and more intense bouts of anxiety and mood disturbance than would a prisoner who did not suffer from his pre-existing problems.  To this extent the effect upon Mr McKernan and any term of imprisonment which the court might see fit to impose is likely to be more onerous than is typical.'

66I have no reason to doubt any of those assertions from such a well-respected psychologist and I take them very much into account.  The report from the treating psychologist who had been dealing with you for some period of time, indeed a number of half a dozen or so sessions, was where it was indicated that there were symptoms of post-traumatic stress disorder, I do not think I need to go through it.  That report was confirmed very much by the report of Mr Newton.

67In the last 48 hours hours I have – and I do not need to discuss these with counsel - read literally dozens of sentencing discussions and the modes of the sentence imposed, often custodial, sometimes non-custodial, often combinations.  There is one I read where the Crown opposed a combination so the learned sentencing judge gave a sentence of two and a half years with a minimum terms of eight months.  I do not propose to engage in that type of approach to avoid the Crown's submission.  I will face it squarely. 

68I think that this situation does warrant custody, clearly, and it has to be a length of custody that is not just regarded as derisory.  A very much loved and very much missed young man is dead because of your actions.  I take into account that in these sorts of circumstances where you are going to go to gaol, and bearing in mind the matters that were described by Mr Newton of internalising the punitive aspects of this, that you will be very conscious of the grief and distress that will be caused to your family during that period of time.

69They will, as all families do in these circumstances, and I would have thought in this situation particularly, yours will think about you and be worried about you for the entire time.  You will be thinking likewise about them.  However, as I indicated it is a serious offence and must carry custody.  I also make it very, very clear that these situations are almost impossible.  When one imposes a custodial sentence, even for someone as young as yourself, it would be a situation where the family of the deceased person cannot help but see that as some sort of evaluation of the worth of their child.

70That is simply not the case.  A thousand years in gaol would never replace a child, and a thousand years in gaol would never bring a child back.  I fully understand that and I sentence according to, as best as I understand it, the law – and there is nothing that any court can ever do to restore or fix the type of thing that has happened here.  The best that can be done is to endeavour to impose a just sentence and to hope that the imposition of custodial sentences will somehow get through to young men such yourself either alone or in groups and at least one of you say, 'Let's not do this.'

71I understand in these circumstances that you, as is so dreadfully common the case were driving because, I am assuming, the older man was too 'pissed'.  It is not uncommon for that to occur and it is just – it is madness and young men have just got to understand that it is madness.  I do not think I need to go into the details of any other comparable cases.  I have seen the charts.  I have seen all the cases and as I have indicated I think this is a situation where even if it does involve me exercising a degree of mercy and I think I am perfectly entitled to do so, bearing in mind the comments made in Tomngeun.

72Also in this particular situation because of, as I understand it, the dangerous driving causing death is mandatory loss of licence of two years, that means that you will spend a significant period of time after your release with no licence.  I am fully aware that in the country that is a very difficult thing to do.  If you are trying to work as an apprentice, if you are trying to get jobs, things like that it becomes very, very difficult to be able to do that.  That is an additional punishment.  It is one that is mandatory and there is simply no choice about it, but I simply take that into account as an additional punishment on top of all this.

73I have had you assessed for a community corrections order and that report is to hand.  I am assuming no counsel wants to say anything about it.  Basically it find that you are suitable.  It says you are a low risk of reoffending.  A proposition which I would agree with, and recommends that after custody, bearing in mind they were aware that I was going to do that, the following conditions were recommend:  community work, treatment and rehab and alcohol, treatment and rehab of programs to reduce reoffending.

74In summary what they have said is this that they have had discussions with you and the report says:

'Whilst the psychological report tendered to the court from Patrick Newton indicates that Mr McKernan's mental health concerns have largely developed following the collision for which he is before the courts rather than being present at the time of the collision, it is evidence however that he find the current sessions he is having with Ms Kristy Neal beneficial.  It is clear for Mr McKernan to move through the stages of grief related to this collision, the death of his friend and his involvement in it, he should be supported to continue with his treatment and with his progress through this treatment to be monitored through the course of an order.'

75They will keep in touch with you whilst you're in custody as I understand it, and there will be a preparation for your ultimate release.  As I indicated during the course of discussion the other day, I have real concerns about giving community work in circumstances such as this.  You are about to spend a significant period of time with people that you would rather not be with.  To then be released and then have to work in community work gangs and the like does not assist anybody. 

76But the fact of the matter is that in circumstances where I am working on the principles enunciated in Boulton that a community corrections order is punitive, it is going to have to be punitive.  So what I am going to do is I will include community work, and I will order that – assuming that you agree to all this that there be treatment and rehab for alcohol and treatment and rehab for programs to reduce reoffending.  In these circumstances they do not suggest – they do not request supervision and therefore I will not impose it.

77What I will do is I will order that any hours spent doing programs is to be deducted from the community work component of that community corrections order.  All right.  If you agree to do that.  All right.  Accordingly – and you will be asked to sign this in a moment if you agree.  In all these circumstances, I mentioned reoffending and coming back to youth and all those factors, I do not think I need to go into that again.  Because of the nature of the offending and the need for general deterrence on Charge 1 you are sentenced to be imprisoned for a period of 8 months.

78On Charge 2 and Charge 1, upon your release, be placed on a community corrections order.  It will be with conviction.  It will for three years.  There will be 200 community hours.  That I think is clearly an ongoing and very significant punishment.  In doing the community hours, again as I have indicated not only is it work but a loss of a licence cause but doing the community hours is a difficulty too but that is a significant punishment and you will therefore have been – bearing in mind you have been on bail now for two years almost, you will have been under supervision of the courts for a period of five years. 

79If you get through that without having reoffended, and I have virtually no doubt that you will, it will have been a very significant punishment indeed, in my view.  All right.  If you wouldn't mind accompanying her to the dock, thanks, Mr Brown.  All right.  The community corrections order will commence when you leave prison.  You understand that if you do not comply with it, or if you commit any offending whilst that community corrections order is in place you are brought back before me to be resentenced and you will clearly understand that if you are brought back before me to be resentenced on anything remotely like this you will be receiving a very significant gaol sentence indeed.

80So that order is made.  There is no PSD?  Clearly not, no.  All right.  So in as far as section 6AAA is concerned, I say this, the difficulty here – what I would have done with youth justice I would have given more than this I suspect, but for your plea of guilty I would have sentenced you to be imprisoned for a period of two years and six months with a minimum term of 15 months.  All right.  There's no other order I need to make, Mr Brown?  No other orders I need to make, Mr Dempsey?

81MR DEMPSEY:  No, Your Honour.

82HIS HONOUR:  No.  All right.  All done.  Okay.  Yes.  Thank you.  Yes, all right.  We will stand down.

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