Director of Public Prosecutions v Milon
[2022] VCC 2147
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00298
Indictment No M10909385
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASPER MILON |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 November 2022 | |
DATE OF SENTENCE: | 8 December 2022 | |
CASE MAY BE CITED AS: | DPP v Milon | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2147 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence - Plea of guilty - No prior convictions - Characterisation of offending close to lowest end of scale of seriousness - Low moral culpability - Substantial and compelling circumstances that are exceptional and rare - Role played by victim’s pre-existing medical conditions
Legislation : Sentencing Act 1991
Cases Cited:DPP v Lombardo [2022] VSCA 204; DPP v Neethling [2009] VSCA 116; Bell v The Queen [2018] VSCA 281; Farmer v The Queen [2020] VSCA 140; Hudgson [2016] VSCA 254
Sentence: Convicted and sentenced to Community Corrections Order 2 years’ duration with supervision and unpaid community work - Ancillary order Licence cancellation - s.6AAA Sentencing Act 1991 declaration
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms V. Jones | Office of Public Prosecutions |
| For the Accused | Mr H. Moodie | James Dowsley & Associates |
HER HONOUR:
1Jasper Milon, you have pleaded guilty to one charge of dangerous driving causing death, which has a maximum penalty of 10 years’ imprisonment.
2I must factor in the maximum penalty in sentencing you, as this reflects the seriousness with which Parliament regards this offence. Further, this offence has been added to the list of category 2 offences under the Sentencing Act 1991 whereby a court must determine that there are substantial and compelling circumstances that are exceptional and rare which justify the imposition of a non-custodial sentence (‘the relevant test’), which further reflects the seriousness with which Parliament regards this offence.
3At a sentence indication hearing, I indicated that I was satisfied that your case qualified under the relevant test and had you assessed for a community corrections order after you were arraigned in respect of the charge. Therefore, a good deal of my sentencing remarks focus on this aspect, as will be apparent.
4The facts giving rise to your offending are as follows:
5You were 20 years old at the time of the collision, and you are now 22. You were the holder of a probationary driver’s licence at the time of the collision.
6The deceased, Heather Tucker, was 75 years old at the time of the collision.
7The collision occurred on Tuesday, 10 November 2020.
8You were driving a Toyota Hilux utility which was equipped with a bull-bar and registered to your father. The deceased was driving a white Mazda 121 Metro.
9On the day of the collision, at about 1.52pm, you collected your friend, Charlie Burns, while driving the utility, and together you went to the beach at Bonbeach. At about 6.55pm, you drove together in the utility, with you driving and Mr Burns sitting in the front passenger seat. Mr Burns was using Google Maps to direct you. You were travelling south on Station Street for approximately 100 metres before reaching its intersection with McLeod Road.
10At this time, Mrs Tucker was driving her car north on Station Street, Carrum. Your car and hers were travelling on Station Street towards each other as you each approached the intersection with McLeod Road, Carrum. As each of you approached, a green light was displayed for traffic travelling along Station Street in both directions at that intersection.
11CCTV footage from Carrum Railway Station shows your car approach the intersection travelling south in the through lane, before indicating and moving into the right-hand-turn lane over the “keep clear” sign painted on the road, approximately 25 metres from the stop line. You continued to drive slowly, but, without stopping and giving way, you made a right-hand turn across the path of Mrs Tucker’s car, which was proceeding straight through the intersection. Her car was about halfway through the intersection when you collided with it. The centre of the utility collided into the front right side of the Mazda. There were no other cars in the intersection at the time of the collision. You then reversed the utility after impact and parked on the footpath.
12A reconstruction of the collision performed by Victoria Police determined that your car was travelling south at a minimum of 19 kilometres per hour when it collided with Mrs Tucker’s car, which was travelling north at about 55 kilometres per hour.
13Although it had been a hot day, and at the time of the collision the sun was setting, police determined that the sun was not a contributing factor to the collision. There was no indication of you braking before the collision, whilst there was evidence of pre-impact emergency braking by Mrs Tucker.
14As a result of the collision, Mrs Tucker suffered extensive and life-threatening injuries and was taken to The Alfred Hospital in a critical condition. Sadly, two days later, on 12 November 2020, she passed away from the injuries sustained in the collision.
15Dr Gregory Young of the Victorian Institute of Forensic Medicine found the cause of her death to be multiple injuries sustained in a motor vehicle incident (driver).
16I shall refer to evidence given by Dr Young at the committal hearing in due course which elaborates in respect of Mrs Tucker’s cause of death.
17You and Mr Burns were not injured in the collision. You remained at the scene of the collision and spoke to police, as I understand the situation. You were taken to Moorabbin Police Complex, where you were interviewed and a blood sample was taken. There were no drugs or alcohol detected in your blood.
18The prosecution opening goes on to set out the layout of the intersection, and records that the roadways where the collision occurred were in excellent condition. The speed limit for Station Street was 60 kilometres per hour, and the street was a flat level road with extended visibility in both directions.
19As I said, this matter initially came before me as a sentence indication hearing. Before conducting that hearing, I viewed the footage of the collision and photographs of the scene before the collision. I factored in my observations in respect of that footage in giving the sentencing indication that I did and in sentencing you now.
20Your counsel told me that you had seen Mrs Tucker’s car when it was further back from the intersection; however, you miscalculated how close it was, and commenced your right turn, focusing on your view ahead as you turned right, rather than appreciating the position of Mrs Tucker’s car on the roadway. I understand that this is in line with what you told police who attended the scene. Essentially, you failed to give way to her car when you ought to have done so.
21In sentencing you, I must take into account the impact on the victims in this matter.
22As you are well aware, the impact on them has been immense.
23Shane Tucker, who was married to the Deceased, said that the incident had greatly impacted he, his daughter, and two granddaughters. He said that he lost his wife in tragic circumstances only 12 months after he lost his son. He and Heather Tucker had been married for 52 years, and he was her carer for many years due to a health issue.
24He said that the incident had taken a toll on his health and wellbeing, as he and Mrs Tucker rarely spent time apart. He said that it was hard to live alone in the unit without his wife, and it was very isolating. He said that he went to pieces when he had to talk about his wife’s death, and was struggling with his own health issues, having to manage these on his own without support from Mrs Tucker.
25He said that Mrs Tucker was the one who looked out for everyone in the family, so her loss was immense. She had been an Army nurse and helped deliver one of his grandchildren. He feels inadequate that he cannot fill the gap that Mrs Tucker left for the family.
26He said that the court matters had been driving him crazy when he needed to concentrate on his health. He said that he had tried counselling, but this was not for him, as he missed talking with his wife.
27He was still upset that he did not get to the hospital to say goodbye to his wife.
28He said that he was angry about what had happened to Mrs Tucker; however, as time had gone by, he had to accept what had happened, noting that nothing would bring her back. He visits his wife’s grave on a regular basis to feel close to her, and misses her every day, as she was the backbone of their family.
29Tayla Tucker also made a victim impact statement in this matter. She said that she felt angry, sad and depressed after this first happened, and she could not sleep or eat. She said that her daughter would grow up and not know her great grandmother. She said she was scared to get her licence, and that now every day she wakes up nearly crying, as she had lost her soulmate. She said she did not feel safe driving or being a passenger in a car. She had distanced herself from her family and friends, as she could not function.
30As you will appreciate, Mr Milon, these are the very real effects of your offending, and I must take these into account in sentencing you.
31Mr Milon, your offending is serious and deserving of a punishment which is just in all of the relevant circumstances. Your conduct must be appropriately denounced.
32However, it is accepted by the prosecution in this case that there are a number of features to your offending which support the characterisation of it as an instance of the offence at the lower end.
33These are as follows:
(a) The low speed of your vehicle prior to impact.
(b) You were not affected by drugs or alcohol at the time of the collision.
(c) You were not driving erratically or aggressively, nor were you distracted at the time of the collision.
(d) The collision occurred due to inattention and a failure to give way.
34In oral submissions at the plea hearing, the prosecutor, Ms Jones, submitted that your inattention was steady rather than momentary, although she accepted that this was in the context of an incident which occurred in seconds.
35However, she submitted that the offending was not at the lowest end for the following reasons:
(a) You were driving a heavy-duty utility with a bull-bar, whilst Mrs Tucker was driving a small Mazda vehicle which stood little chance against the bull-bar of your car, despite the slow rate of speed.
(b) There was no indication of any pre-impact emergency braking by you, which she said supported her submission that this was a case of steady rather than momentary inattention.
(c) While not as severe as the intentional risk taken by the accused in DPP v Lombardo [2022] VSCA 204,(a case to which I shall further refer in due course) the failure to give way, where you decided to turn right without properly assessing the gap in oncoming traffic, did amount to a calculated intentional risk.
36Your counsel, Mr Moodie, pointed to the considerations in DPP v Neethling [2009] VSCA 116 [31], referred to with approval in Bell v The Queen [2018] VSCA 281. He submitted that your moral culpability was at the lowest end of the scale, and that the collision with Mrs Tucker was an example of an accident caused by truly momentary inattention.
37Referring to Neethling, Mr Moodie listed the considerations set out by the Court of Appeal in that case for assessment of the objective seriousness of an offence of dangerous driving causing death, namely:
(i) Extent and nature of the injuries inflicted.
(ii) Number of people put at risk.
(iii) Degree of speed.
(iv) Degree of intoxication or of substance abuse.
(v) Erratic [or aggressive] driving.
(vi) Competitive driving or showing off.
(vii) Length of the journey during which others were exposed to risk.
(viii) Ignoring of warnings.
(ix) Escaping police pursuit.
(x) Degree of sleep deprivation.
(xi) Failing to stop.
38In referring to the first factor, Mr Moodie accepted, as indeed he ought to have, that the accident caused serious injuries to Mrs Tucker. However, he noted that Mrs Tucker was a 75-year-old woman with significant pre-existing health problems, suffering from severe asthma and end-stage chronic obstructive pulmonary disease, and her mobility was limited to a few metres. She was prescribed anti-coagulant medication to address deep-vein thrombosis and had previously been intubated for pneumonia. The Alfred Hospital concluded that a contributing factor to Mrs Tucker’s death was end-stage chronic obstructive pulmonary disease, and Dr Young, the forensic pathologist who conducted the post-mortem on Mrs Tucker, gave evidence at the committal hearing that her pre-existing health problems may have played a significant role in her death, and that her use of anti-coagulant medication may have predisposed her to an increased risk of death.
39In respect of the other factors set out by the Court of Appeal in Neethling, Mr Moodie submitted that these were not relevant to your offending. In respect of the length of the journey during which others were exposed to risk, Mr Moodie submitted that your inattention was momentary, as was the risk created by your conduct. He referred to your explanation to police at the scene of the accident that you saw Mrs Tucker’s car approaching, but misjudged how far away she was, before directing your attention towards McLeod Road as you turned right.
40He submitted that in relation to each factor set out in Neethling there was an absence of aggravation, and that this meant that the alleged offence was properly described as being at the very lowest end of the scale of seriousness, and that your moral culpability was “remarkably low” for an offence of this type.
41Having viewed the CCTV footage, the slow speed of your vehicle, what you told police, and noting that the impact to the other car was sufficient to damage the right front corner of the vehicle, however not so severe as to activate the airbags or to apparently damage the interior of the vehicle, including the driver’s side and seat, and factoring in the medical evidence relating to the victim to which I have previously referred, in my view, all things considered, the objective gravity of your offending comes close to being at the lowest end, albeit that it does not quite reach that.
42The fact of the matter is that you did see Mrs Tucker’s car before you started your right turn, and you were in a car which had the potential to readily inflict damage to another vehicle which was not nearly as sturdy. However, as I have said, the impact appeared to be relatively gentle to my observation, although it obviously was sufficient to cause multiple injuries to a victim whose state of health prior to the collision was most precarious. The fact that you initially saw the car but determined to make a right turn in front of it as it approached the intersection amounts to a miscalculation on your part which unfortunately has led to a tragic outcome for all involved.
43The learned prosecutor submitted that your decision to turn right without properly assessing the gap in oncoming traffic amounted to a calculated intentional risk. It seems to me that there was little in the way of calculation about it, in circumstances where you slowly moved through the intersection, albeit that this was clearly a lapse of judgment on your part. Unlike the driver in Lombardo, you were travelling at a slow speed and your windows were not fogged up as was the case in Lombardo. It seems to me that you lacked appropriate judgment in assessing the distance that the other driver was from you when you commenced your turn, and this amounted to a momentary lapse of judgment on your part at a time where however it was crucial for you to give way to oncoming traffic. Of course, the outcome of that lapse of judgement had tragic consequences for the victim in this matter, who, as I have already said, was already in a most fragile state of health. The impact did not suffice to activate her airbag, nor did it appear to affect the internal integrity of the driver’s seat area or immediate surrounds as I have previously referred to.
44In all of the relevant circumstances in your case, I find that your moral culpability is low.
45As set out in your counsel’s submissions, on 28 October 2018 Parliament saw fit to add dangerous driving causing death to the list of category 2 offences, which meant that a court must send an offender to jail unless the offender proved, on the balance of probabilities, that there were “substantial and compelling circumstances that are exceptional and rare” and that justify the court not sending the person to jail. The offence is the least serious of the offences in the list in Category 2, as reflected in the maximum penalty.
46Section 5(2HC) of the Sentencing Act provides:
“In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—
(a) must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to—
(i)the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or
(ii)an early guilty plea; or
(iii)prospects of rehabilitation; or
(iv)parity with other sentences.”
47Section 5(2I) also provides that:
“In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—
(a) the Parliament’s intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and
(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.”
48In DPP v Lombardo [2022] VSCA 204, these legislative provisions were considered.
49At paragraph [63] of that decision, the Court said:
“More generally, the introduction of the ‘exceptional and rare’ requirement made explicit this Court’s approach to the existing ‘substantial and compelling circumstances’ requirement — namely, that the circumstances must not only be powerful, but also ‘wholly outside’ the ‘run of the mill’ factors seen in offending of the relevant kind.”
50In support of this proposition the Court cited Farmer v The Queen [2020] VSCA 140 [47]-[50].
51The Court in Lombardo went on to observe that the relevant subsection applied to:
“…..multiple offences and the degree of difficulty in satisfying the exception may vary according to which offence is under consideration. For example, both culpable driving causing death and dangerous driving causing death are category 2 offences, but the former offence is, by definition, more serious than the latter.” [64]
52The Court again in Lombardo went on to say that “the inquiry under s 5(2H)(e) has two key steps”:
“First, the court must identify whether there are ‘substantial and compelling circumstances’. In that context, ‘substantial and compelling’ means that the circumstances are weighty and forceful or powerful. The issue is whether the circumstances are substantial and compelling so as to justify not imposing a custodial sentence. That is the criterion by which the substance and compulsive force of the circumstances are to be assessed.
The second critical step, if the circumstances are substantial and compelling in the sense described above, asks whether they are also ‘exceptional and rare’. In our view, this is to be regarded as a composite phrase imposing a single test, rather than as two discrete tests. That is because the meanings of the two words overlap; in particular, ‘exceptional’ means ‘out of the ordinary course, unusual, special’, which includes that which is ‘rare’. In that situation, a separate test asking whether something that is ‘exceptional’ is also ‘rare’ would be redundant. Instead, the two words operate together and each influences the meaning of the overall phrase.
The ‘exceptional and rare’ language is not merely a description of the empirical outcome of applying the law of sentencing to a collection of offences. It is a threshold which must be met before it is open to impose a non-custodial sentence. The question then is the meaning of the language used.
In construing the phrase ‘exceptional and rare’, it is relevant that, in the context of deciding whether circumstances are ‘substantial and compelling’, Parliament has stated its intention that imprisonment should ‘ordinarily’ be imposed for a category 2 offence: s 5(2I)(a). This statement of intention is expressed in moderate terms, suggesting that the ‘exceptional and rare’ requirement has a meaning closer to ‘out of the ordinary’.
On the other hand, the expression ‘out of the ordinary’, while capable of describing something that is ‘exceptional’, as well as something that is ‘rare’, does not fully capture the force of the phrase ‘exceptional and rare’. Both the expression ‘exceptional and rare’ and the legislative object that imprisonment should ‘ordinarily’ be imposed are, however, consistent with earlier case law, such as Hudgson, which described provisions such as the present as requiring circumstances of a kind ‘wholly outside “run of the mill” factors typical of’ the relevant kind of offending.
Accordingly, in our view that language properly captures the meaning of the phrase ‘exceptional and rare’ in this context. It refers to circumstances that are wholly outside the ordinary factors typical of the relevant offence, in this case dangerous driving causing death.
Applying the two steps of the mandated analysis calls for the sentencing judge to make an ‘evaluative judgment’ once the underlying facts have been established, and unaffected by notions of burden of proof. It is possible that a set of circumstances may engage the exception in combination, even where the constituent circumstances are mainly, or even wholly, ‘relatively common’.” [66]-[72]
53The Court went on to cite examples where the Court of Appeal had considered a combination of factors which enlivened the exception, and cases where it did not.
54The Court then referred to the further conditions imposed by the relevant legislation in respect of the primacy or irrelevance of various sentencing considerations, then said that finally the judge must have regard to whether the cumulative impact of the circumstances of the case would justify a departure from a custodial sentence: s5(2I)(b), observing that ‘this last requirement appears to do no more than restate the task under s5(2HC)(e) itself. It confirms, however, that it is the cumulative effect of the relevant circumstances which is significant’. [79]
55The Court then said in the case of Lombardo that it was open to the sentencing judge to find that the circumstances in that case were substantial and compelling.
56The Court then listed the circumstances of the respondent in that case which were of ‘the most mitigating kind’; namely, that the offender was youthful and had no criminal history. He took immediate responsibility for his conduct and its terrible consequences, by which he was naturally haunted. His plea of guilty was evidence of him taking responsibility and his remorse. He had strong family, social, and employment supports, and he suffered from anxiety and post-traumatic stress, according to Ms Ferrari, psychologist, which were likely to be exacerbated if he were imprisoned and would make prison more difficult than would otherwise be the case.
57In that case, the Court did not accept the Director’s submissions that some of the considerations to which they just referred were foreclosed by operation of s5(2HC)(c). They said:
“…..In particular, most of these matters bear on specific deterrence and the need to protect the community from the offender, which remain relevant sentencing considerations. They may be taken into account without treating them as bearing on the respondent’s prospects of rehabilitation. His guilty plea is also relevant, without taking into account its early character.
Moreover, the legislative injunction to give less weight to these matters and more to the nature and gravity of the offence does not dictate an answer to the ultimate question where the balance lies. To the contrary, in a case such as the present where the respondent’s moral culpability is low and the offending is agreed to be at the lower end of the range for the offence, consideration of the ‘nature and gravity of the offence’ tends to justify rather than negate the invoking of the exception.” [82]-[83]
58The Court went on to say that they did not accept the respondent’s submission that this was at the very lowest end of the range; accepting that while it was true that the case involved a momentary lapse of judgment, the respondent had taken a calculated risk by proceeding onto the highway in the face of an oncoming vehicle that he could not properly see due to the very poor visibility through his fogged-up side window. They said that this was not merely careless driving, or a dangerous example of inattention, but the taking of a terrible risk that constituted dangerous driving “…..near, but not at the bottom of, the range of that offending”. [84] The Court then said:
“Finally, we also do not consider that the requirement to regard general deterrence and denunciation of the offender’s conduct as more important than other sentencing purposes points to any different conclusion regarding ‘substantial and compelling circumstances’. General deterrence and denunciation are always important in these cases, which is why non-custodial sentences are exceptional. But the strength of those considerations, again, is influenced by the nature and gravity of the offending. They are stronger in cases where the offending is more egregious.” [85]
59In that case, the Court went on to find that the sentencing judge’s assessment that the circumstances were exceptional and rare was not made out. The Court indicated that it had long been recognised that the offence was often committed by young people of previously impeccable character who are racked with remorse and grief for what they had done, and have the best prospects for rehabilitation. The Court held that such offenders can often be expected to suffer from symptoms of anxiety and post-traumatic stress, which a term of imprisonment may tend to exacerbate. The Court did not accept that the respondent having to drive past a memorial in respect of the deceased in that case was a feature which tipped the balance to take that case out of the ordinary tragic case of the offence. They held that it was impossible for them to conclude that it was open to the sentencing judge to find the circumstances of that case exceptional and rare. However, the Court exercised its residual discretion and did not interfere with the sentence imposed by the learned sentencing judge.
60The Court of Appeal made the following observation in relation to s5(2H)(e) and the offence of dangerous driving causing death:
“We should not pass from this ground without noting the potentially unintended consequence of treating dangerous driving causing death as a category 2 offence. In circumstances where only instances of that offence involving low moral culpability, typically cases of momentary inattention or misjudgement, have ever been thought suitable for a non-custodial sentence, the effect of the ‘exceptional and rare’ requirement is to target those very cases as ones calling for imprisonment. That places this offence in the same position as the significantly more serious offence of culpable driving causing death, whereas cases of this kind are in truth closer to cases of mere carelessness. On one view, this introduces an unfortunate anomaly into the law governing sentencing for these offences, and warrants reconsideration.” [104]
61In any event in your case, in determining whether there are substantial and compelling circumstances, as required, I have given greater importance to consideration of general deterrence and denunciation of your conduct- having found that your offending falls at nearly the lowest end of objective seriousness, and that in all the relevant circumstances, your moral culpability is low, this means that you are not a suitable vehicle for the full weight that would otherwise attach to general deterrence-in the absence of my findings in this regard, the weight attaching to general deterrence would be strong, however I substantially reduce the weight that attaches to this in your case; my findings also impact the weight that might otherwise attach to denunciation and punishment, which I have also substantially reduced.
62Applying the relevant provisions and their interpretation in Lombardo, I take into account that you have no prior convictions, no subsequent matters, and the character references tendered on your behalf indicate that you are of otherwise exemplary character. The character references provided to the Court describe you as thoughtful, diligent, polite, conscientious, well mannered, and kind hearted. In keeping with the relevant provisions and their interpretation by the Court of Appeal, this aspect, save for your lack of prior convictions, cannot be taken into account directly in determining whether there are substantial and compelling circumstances but they are relevant to the weight that I attach to specific deterrence and protection of the community.
63I take into account your background, again bearing in mind the strictures imposed upon me in respect of the weight that attaches to matters personal to you in determining substantial and compelling circumstances, but also bearing in mind their relevance to specific deterrence and protection of the community.
64You completed Year 12 at a local secondary school, and subsequently obtained an apprenticeship as an electrician. Your current employer, Mr Glenn Cross, provided a character reference describing you as reliable and hardworking. You have a solid work history, and strong pro-social family support. Your parents were in court to support you at the sentence indication hearing and the plea hearing and I can see that they are here again today.
65I understand that you sought treatment from a doctor and a psychologist to deal with the aftermath of the accident and Mrs Tucker’s death. I was told that you only attended one psychological session, but felt that this did not really assist you, so you have discontinued such treatment. According to the Forensicare report dated 4 October 2022, you continue to experience stress and distress arising from the collision and court proceedings. You have appropriate insight in respect of the need to address mental issues in the future if these arise, but you are looking to your community supports, work and leisure activities which adequately address wellbeing needs.
66After the collision, you completed a road trauma awareness seminar which focused on further increasing your awareness of the impact that road trauma has on people’s lives.
67Again, these matters are relevant to the weight that I attach to specific deterrence and protection of the community. Whilst the Forensicare report was not to hand at the sentencing indication stage, it only serves to enlarge upon matters which were raised on your behalf at that stage.
68In sentencing you, and bearing in mind the relevant provisions, I take into account that you have pleaded guilty to the charge -it was not an early plea of guilty; if it were, I could not factor in that it was early in determining substantial and compelling circumstances.
69Although you ran a contested committal hearing which might be relevant to the question of remorse, I accept that in your case, there were real issues to be examined at the committal stage, and that these have assisted in the resolution of this matter and characterisation of the objective seriousness of your offending. I understood the learned prosecutor to accept that this was the case.
70It is evident from the letter of apology which was handed to me and addressed to the Tucker family, as well as the character references provided on your behalf, that you are genuinely sorry for your offending, and you have appropriate insight in respect of the seriousness of it and how it impacts the victims. I accept that you are acutely aware of the pain and suffering that the death of Heather Tucker has caused, which is reflected in the character references, indicating that you have described to those people your sadness, regret, and distress that you have experienced about this. I was told that you have also experienced anxiety about the impact that the court proceedings have had on your parents.
71In my view, since the offending, you have done all you can to address what you have done and pave a solid path of rehabilitation.
72All these matters are relevant to my evaluation of the weight which needs to attach to specific deterrence and protection of the community.
73In taking the course that you have, I am required to allow for a real and palpable discount because you have contributed to the reduction in the backlog of trials that this Court faces due to COVID‑19. I do not understand this aspect to be impacted negatively by the relevant provisions of the Sentencing Act.
74I have also had regard to current sentencing practice, although this is somewhat limited, as it comprises sentences imposed since Dangerous driving causing death was added to Category 2, and also bearing in mind that current sentencing practice is but one factor, but not a controlling factor.
75As to consideration of whether substantial and compelling circumstances which are rare and exceptional have been made out, I previously indicated at the sentence indication hearing that they had.
76At the sentence indication hearing, there was the following exchange between Mr Singh, for the prosecution, and me:
“HER HONOUR: Could the inside of the car - I mean, the airbag had not been deployed in the victim’s car.
MR SINGH: That’s right.
HER HONOUR: And the inside of the car seemed to be intact. It must have been the impact itself and - - -
MR SINGH: That side was crushed, Your Honour. There are photos.
HER HONOUR: Yes, I’ve seen them and I’ve seen the footage too. We thought it best for that not to be replayed for the benefit of the victim’s husband and family.
MR SINGH: Yes.
HER HONOUR: A most tragic outcome, that’s for sure.
MR SINGH: Terrible.
HER HONOUR: And one would think in circumstances of that nature ordinarily you wouldn’t expect this sort of outcome.
MR SINGH: Perhaps, Your Honour, that might of itself be one of the elements that would be rare and exceptional. That outcome is not something ordinarily one might expect from that sort of motor vehicle accident, one travelling at 15 K (sic), the other travelling at 55 K, but it did, the fact is it did.”[1]
[1]Transcript (“T”) 6, Line (“L”) 24 to T7, L14
At that hearing, it was evident that although Mr Singh maintained that the objective seriousness was low but not at the lowest level, he conceded that there were substantial and compelling circumstances and he did not stress the rare and exceptional aspect, inviting me effectively to factor in the unexpected outcome of such a low impact collision as being an element which would be rare and exceptional.
77At the plea hearing, the learned prosecutor, Ms Jones, who adopted the Crown’s previous submissions at the sentence indication hearing, including those given orally by Mr Singh, submitted that they ‘maintained their view’ that substantial and compelling circumstances which were rare and exceptional had not been made out. However, the learned prosecutor said, in her written plea submissions, which she adopted at the plea hearing, the following:
“ There are certain aspects of the offending [which] might be considered particular or indeed “rare”, specifically:
5.3.1.The condition of the deceased: Mrs Tucker’s age and pre-existing medical conditions, making her vulnerable to cardiac arrest. The final mechanism of death was cardiac arrest caused by multiple injuries sustained in a motor vehicle accident. While the law requires an offender to take their victim as they find them, Mrs Tucker’s vulnerability increased the severity of the impact of the collision.
5.3.2.The force of the impact, while capable of crushing Mrs Tucker’s vehicle, was not sufficient to activate the release of her air bag. And yet the multiple injuries sustained in the motor vehicle accident were fatal in any event.”
78Therefore, it appears that Ms Jones, for the prosecution, accepted that there were “particular or rare” aspects of the offending but ‘maintained’ that substantial and compelling circumstances which were rare and exceptional had not been made out.
79Bearing all of this in mind, and the fact that the Court of Appeal made it clear that the phrase, ‘rare and exceptional’ was a composite one, and not to be fragmented as the prosecution has effectively sought to do at the plea hearing in my view, it seems to me that the Prosecution has effectively conceded the point, despite avowals to the contrary.
80In your case I am satisfied that there are substantial and compelling circumstances which justify the imposition of a non-custodial sentence, as follows:
(a) My finding that the alleged offending is near the lowest end of the scale of seriousness, having regard to the various factors set out in Neethling, and my finding that your moral culpability is low.
(b) As I have found that your offending is near the lowest end of the range of seriousness, your case is one where the emphasis directed towards the nature and gravity of the offences as required by s5(2HB) tends to justify rather than negate the invoking of the exception.
(c) Your personal circumstances, which are powerfully mitigatory, and I accept that despite s5(2HC) I am able to take into account your youth, your plea of guilty, without observing the stage at which it was entered, your absence of prior convictions, and your genuine remorse.
(d) Specific deterrence and protection of the community are still relevant factors, and in this regard I accept that you are of excellent character, you have genuine remorse and insight, you have a strong work history and work ethic and solid pro-social family and community support. You have stable accommodation and stable mental health; you do not abuse alcohol or illicit substances; you have done what you can after the collision to accept responsibility, to improve your knowledge and awareness in respect of road trauma, and to lead a law-abiding life which is what you were doing before the collision. You have no criminal history nor do you have a subsequent one. I accept that in view of all of these matters and the nature of the offending on this occasion, there is no need to place any weight on specific deterrence or protection of the community.
(e) My findings in respect of the objective seriousness of your offending, your low moral culpability, and the weight which ought attach to general deterrence, denunciation, and just punishment.
(f) In keeping with Lombardo, and factoring in that dangerous driving causing death has the lowest maximum penalty of all category 2 offences, I accept that substantial and compelling circumstances are easier to establish for this offence than other category 2 offences which are of a more serious nature.
(g) The Prosecution’s concession in respect of this aspect.
Further, I accept that, in combination, the following circumstances of your case are exceptional and rare-that is, they are circumstances which place your offending wholly outside the “run of the mill” case, warranting a non-custodial disposition:
A. My findings that your offending was near the lowest end of the spectrum of seriousness (lower than the offender in Lombardi) and that you have low moral culpability.
B. The CCTV footage bears out that the collision between your car and Mrs Tucker’s involved a rather gentle impact. The speed of your car on reconstruction was only about 19km/hr. It was an impact which damaged the front right corner of Mrs Tucker’s car but did not serve to activate the airbag, nor did it appear to affect the structural integrity of the driver’s seat area.
C. The significant role that Mrs Tucker’s pre-existing health conditions played in her demise. In saying this, in no way do I blame Mrs Tucker or cast any aspersions on her-clearly she was driving properly and legally and you must take the victim as you find them and drive with care no matter what; however, in this case, I accept that, if not for Mrs Tucker’s pre-existing health issues, this would have likely been a relatively minor traffic accident.
D. Your conduct was entirely distinguishable from risky, aggressive, distracted or intoxicated driving which the offence routinely captures.
E. The prosecution’s considerable concessions in this regard.
81Therefore, I am satisfied that there are substantial and compelling circumstances which are exceptional and rare in your case which justify a non-custodial disposition. In my view, it is appropriate to impose a community correction order, and you have been found suitable to undergo such an order. The only condition recommended by the assessing officer in your case was unpaid community work which would serve as a punishment.
82The learned prosecutor, Ms Jones, suggested that I might also impose a condition that you are assessed for mental health treatment. However, when you were assessed, the Forensicare report provided by Mr Gregory Lane, registered psychiatric nurse, indicated that you did not require ongoing assessment or treatment for your mental health to be court-mandated, and so I have decided that I will not do so. However, I strongly advise you to engage with your general practitioner and any other mental health professional in the future if the need arises.
83You are convicted of the offence.
84Your licence is cancelled and you are disqualified from driving for 18 months.
I intend to impose a CCO upon you but I cannot do so unless you agree to being placed on the order, so please listen carefully to the terms and conditions of the order that I would impose:
1.The CCO would run for a period of 2 years.
2.The conditions of the CCO would be as follows:
3.The mandatory terms that apply to all Community Correction Orders are:
4.You must not commit another offence for which you could be imprisoned during the time that the order is in force;
5.You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;
6.You must report to, and receive visits from, the Secretary to the DOJ (or his or her delegate);
7.You must report to the Pakenham Community Corrections Centre before 4 pm within 2 clear working days of today,
8.You must let a community corrections officer know within two clear working days of you changing your address or job;
9.You must not leave Victoria without first obtaining permission to do so from the Secretary to the DOJ (or his/her delegate);
10.You must obey all lawful instructions from and directions of the Secretary to the DOJ (or his/her delegate).
11.The conditions that apply in addition to the mandatory terms listed are:-
Community Work
12.You must undergo 150 hours unpaid community work within 2 years.
Supervision
13.You must be under the supervision of a Community Corrections Officer for a period of 2 years.
14.If you wish to vary any of the conditions of the order, then you must apply to the Court to do so.
15.Do you consent to the terms and conditions of the order?
16.I should tell you that if you do not comply with all of the requirements of this CCO then you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charge -in which case you may well be sentenced to gaol. I would regard a breach of the CCO as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.
17.Do you understand this? Do you maintain your consent to the order?
18.Therefore in relation to the charge you are sentenced to the CCO in the terms and conditions that I have previously announced.
19.If not for your plea of guilty, I would have sentenced you to 2 years imprisonment with a non-parole period of 12 months.
20.I’ll ask your Counsel to assist you with the signing of the CCO.
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