Director of Public Prosecutions v Mitcham

[2023] VCC 464

IN THE COUNTY COURT OF VICTORIA

AT WARRNAMBOOL

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-22-02385

DIRECTOR OF PUBLIC PROSECUTIONS

v

COURTNEY MITCHAM

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Warrnambool
DATE OF HEARING:	14 March 2023
DATE OF SENTENCE:	29 March 2023
CASE MAY BE CITED AS:	DPP v Mitcham
MEDIUM NEUTRAL CITATION:	[2023] VCC 464

REASONS FOR SENTENCE
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Subject:Criminal law – Sentence  

Catchwords:              Guilty Plea - culpable driving causing death – negligently causing serious injury – driving whilst suspended and with a blood alcohol concentration of 0.140% - vehicle left roadway and collided with tree – early plea – culpability related to driving whilst intoxicated - youthful offender – remorse – reasonably good prospects of rehabilitation – dysfunctional childhood through exposure to significant parental alcohol abuse - general deterrence moderated.

Legislation Cited:      Crimes Act 1958 (Vic), ss 318(1), 22; Road Safety Act 1986 (Vic) ss 30(1), 49(1)(g), Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; The Queen v Williamson [2009] VSCA 2009 at [20], Azzopardi v The Queen [2011] VSCA 372; R v Sharpa [2001] VSCA 145; DPP v Hill [2012] VSCA 144; Lockyer (a pseudonym) v The Queen [2020] VSCA 32; DPP v Reid [2020] VSCA 247; Eric Victorsen v The Queen [2020] VSCA 248

Sentence:                  Seven years, three months’ imprisonment with a non-parole period of four years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr B Nibbs	Office of Public Prosecutions Victoria
For the Accused	Ms A Dixon	James Dowsley & Associates Pty Ltd

HER HONOUR:

1In the early hours of Saturday 30 July 2022, after leaving the Wheatsheaf Hotel in Terang where you had been drinking with friends, you decided to drive yourself and two friends home. Soon after leaving the hotel, you crashed the car after failing to navigate a bend on the Cobden-Terang Road, Dixie. You drove onto a grass verge that bordered the road, before colliding with a cluster of trees. The collision caused the car to partially flip and rotate, before exploding into flames and being destroyed by fire. Tragically, 23 year old Adrian Phipps, who was seated in the front passenger seat lost his life as a result of the collision, and 21 year old Megan Radley, who was seated in the rear of the vehicle, was seriously injured.

2Arising from these events, you have pleaded guilty to one charge of culpable driving causing death, the maximum penalty for which is 20 years’ imprisonment and one charge of negligently causing serious injury, the maximum penalty for which is 10 years’ imprisonment.

3You have also pleaded guilty to two related summary offences of driving whilst suspended, the maximum penalty for which is 2 years’ imprisonment and exceeding the prescribed concentration of alcohol, the maximum penalty for which is a fine not exceeding 20 penalty units.

4You were 19 years old at the time of the collision and your probationary licence had been suspended for speeding. You had no prior criminal history.

Circumstances of offending

5The circumstances of your offending are detailed in the Prosecution Plea Opening dated 10 March 2023, which is the agreed basis upon which you are to be sentenced.

6On Friday 29 July 2022 you met with Mr Phipps and Ms Radley at Mr Phipps’ home in Mepunga, Victoria. Mr Phipps lived with friends and was employed as an apprentice boilermaker at a dairy farm. Ms Radley lived with her family and was employed as a nurse in Warrnambool. They were friends of yours and you had arranged to go to the Wheatsheaf Hotel together that night.

7At this time, you were the owner of a white Jeep Grand Cherokee, however your probationary licence had been suspended with effect from 27 April 2022 for a period of six months for speeding.

8When Ms Radley saw you drinking from a bottle of Jack Daniels and Cola at the house, she asked why you were drinking. She questioned you because it had been pre-arranged that you would be the nominated driver that night.

9After being at the house for 15 minutes, the three of you left the house and you drove your friends to the Wheatsheaf Hotel. During the drive, Ms Radley saw you showing off by using your knees to steer the car a number of times, forcing her to grab the steering wheel and telling you to stop. She also saw you changing songs on your mobile phone while driving.

10The drive to the hotel took approximately 30 minutes. Ms Skye Shrubb was working a shift at the hotel that evening. She saw you, Mr Phipps and Ms Radley enter the hotel at approximately 8.00pm. Ms Shrubb had known you for around four months and spoke to you when the three of you sat at the bar. Mr Phipps purchased the first round of drinks from another member of the bar staff, ordering two Jack Daniels and Coke and a Gordon’s Gin. Ms Shrubb served the group of you thereafter.

11Ms Shrubb estimates that you and Mr Phipps each consumed approximately seven bottles of Jack Daniels and Cola through the evening, whilst Ms Radley drank gin. She also served the group four additional shots, in 30ml shot glasses, with a mixture of liqueurs.

12Another patron at the hotel, Mr Adam Fowler recalls seeing you drink approximately 3-4 bottles of Jack Daniels and Cola between 11.30pm and 12.30am.

13Ms Shrubb described your level of intoxication as being “pretty normal” stating that you usually do not drink the last 30mls of each bottle. Mr Fowler described you as “pretty tipsy” at around 11.30pm but says you appeared “fairly normal” and were not slurring your words when he spoke to you at 12.30am.

14The group of you remained at the hotel until closing time. At approximately 12.30am, Mr Phipps ordered two last drinks of Jack Daniels and Cola and brought them out to the front of the hotel. At 12.45am, you asked the hotel publican, Mr Darren Cole for “traveller drinks”, which he refused to give you. Ms Shrubb refused a similar request.

15At this time, Ms Radley tried to avoid getting into the car with you and called her friends to ask for a lift. Mr Phipps told her you were fine, and offered to sit in the front passenger seat. You entered the driver’s seat of the Jeep Cherokee to drive home. Mr Phipps was in the front passenger seat and Ms Radley was in the back passenger seat.

16At 12.55pm, Mr Cole left the hotel and observed your Jeep Cherokee turn right into Escort Street, the road leading to the Cobden-Terang Road, Dixie.

17Mr Fowler also left the hotel at closing time. On his way home, he received a Snapchat image on his mobile phone that had been sent by you. The image captures your hands holding the car’s steering wheel with the indicator of the speedometer pointing ‘vertically upwards’, indicating you were driving at the time. Mr Fowler received a second Snapchat image from you, largely identical to the first, after he arrived home.

18The Cobden-Terang Road is a two-way divided bitumen road, which runs reasonably straight and flat leading up to the site of the collision, which is off the left-hand shoulder when traveling in a south bound direction, where it approaches a sweeping right-hand bend. At this right-hand bend, the road has a gradual downhill gradient. It is governed by a posted speed limit of 100 km/hour.

19As you approached the right-hand bend of Cobden-Terang Road, you failed to navigate the bend, causing the car to leave the roadway and veer onto the grass verge and tree-lined shoulder to the left of the roadway. The Jeep Cherokee then collided with a cluster of trees, causing the car to partially flip and to fully rotate on impact.

20Ms Radley was the first to regain consciousness following the collision. She has no memory of the drive before this. She screamed to try to awake you and Mr Phipps. As her eyes adjusted to the darkness, she saw Mr Phipps unconscious, bleeding from his face, and trapped in the vehicle. She also detected a strong chemical smell. You then woke and used the light from your mobile phone to throw light on the interior of the car. Ms Radley yelled at you to call emergency services, which you did, while she attempted to release Mr Phipps from the vehicle, despite having suffered a broken wrist.

21Your call was received by emergency services at 1.09am, during which you stated:

Mitcham: “No, we don’t know the address. I was driving.

Operator: “OK”

Mitcham:  “I crashed”

Operator:  “How many vehicles are involved?’

Mitcham:   “Just one” and “I crashed into a bush I think”.

22As you were speaking to emergency services, the cabin of the Jeep Cherokee began to fill with smoke and the smell of chemicals. The doors of the Jeep could not open, so Ms Radley broke the rear window of the vehicle and extracted herself, assisting you to do likewise, before the Jeep exploded in flames.

23As you and Ms Radley waited in an adjacent paddock for emergency services, you filmed yourself on your mobile phone at the collision scene, where you were seen crying and bloodied, and the Jeep is captured on fire surrounded by a cluster of trees. You sent this footage to Mr Fowler, Ms Shrubb and another friend. You had also sent Mr Fowler an earlier recording of you in the driver’s seat with the airbag deployed, showing your hands bleeding.

24Ms Radley was taken by ambulance to Warrnambool Base Hospital for treatment following the collision. She suffered serious injuries and was treated for a left parietal scalp haematoma, bilateral neck pain, lacerations to both hands, a badly broken right wrist requiring surgery, a partial extensor tendon injury to her right hand and lacerations to her feet and right knee.  She remained in hospital until 2 August 2022. Your conduct in negligently driving your motor vehicle causing serious injury to Ms Radley is the subject of charge 2.

25Mr Phipps was pronounced deceased on arrival by attending Ambulance paramedics (charge 1 – culpable driving causing death).

26During their investigation of the collision, police observed a set of tyre marks on the left-hand grass shoulder at the commencement of the right-hand bend on Cobden-Terang Road. The tyre marks continued along the left-hand grass shoulder, leading to the debris left after the Jeep was destroyed by the fire.

27Police experts reconstructed the collision and concluded that the Jeep had been travelling south on Cobden-Terang Road and upon entering the right-hand bend veered into the roadside grass verge where it continued travelling before hitting the cluster of trees. At impact, the expert estimated you were travelling at a minimum speed of between 84 km/hr – 109 km/hr. The police expert was unable to ascertain why the Jeep left the road and travelled onto the grass verge. There was no evidence to conclude that the vehicle was out of control prior to leaving the road.

28Police investigators recorded your conversation with paramedics at the scene of the collision. When asked what had happened, you told paramedics you were “drink driving”. When asked if you remembered the accident, you said, “No, I remember a branch in front of me, that’s it”.

29In the ambulance, you had a conversation with police, stating “I drink-drove with them both in my car, I’ll admit to that”.

30You underwent a Preliminary Breath Test at 2.07am which indicated the presence of alcohol. Dr Sanjeev Gaya, a forensic physician with the Victorian Institute of Forensic Medicine, reviewed these results and concluded that your blood alcohol level would have been between 0.140% - 0.152% at the time of the collision. He also expressed the opinion that you would have been incapable of having proper control of a motor vehicle at this level of intoxication.

31On 31 July 2022, you were interviewed by police, during which you made a number of admissions to driving your vehicle that evening, arriving at the Wheatsheaf Hotel with Mr Phipps and Ms Radley where you drank, played pool and smoked cigarettes, and driving after you left the hotel. You said you had drunk about 3 or 4 stubbies of Jack Daniels and Coke, and had three shots. You said you had not eaten that evening. You said you were feeling fine at the time you drove away from the hotel at 1am.

Nature and gravity of offending

32The offence of culpable driving causing death is inherently serious offending, as it is offending that involves the loss of a human life. Here, your culpability arose from the fact your level of intoxication meant you were incapable of having proper control of your vehicle, with devastating consequences. The seriousness of the offence is also reflected in the maximum penalty of 20 years’ imprisonment prescribed by Parliament. As the Court of Appeal has observed:[1]

The starting point in this case as in every case of culpable driving is the  offence is a species of involuntary manslaughter and it must be treated as such.

[1]The Queen v Williamson [2009] VSCA 2009 at [20], citing DPP v Clarke [2005] VSCA 2, [12] and R v O’Connor [1999] VSCA 55, [19]

33By your plea, you also accept that your negligent conduct caused Ms Radley to sustain injuries that are substantial and protracted.

34Your counsel conceded that your offending was “clearly very serious”.

35There are a number of features that aggravate your offending on that evening.

36Firstly, your licence was suspended at the time of the offence for speeding. You should never have been behind the wheel of a car that night.

37Secondly, as the holder of a P1 licence (when not suspended), it was a condition of your licence that you have a blood alcohol content of zero. Here however, you had a blood alcohol content of at least 0.140% which is close to three times greater than the legal limit permitted for drivers on a full licence. You had been drinking spirits at the hotel for hours before deciding to drive home with your friends, knowing you were over the legal limit.

38Moreover, this was not an instance where your decision to drive was spontaneous or was a choice made in the face of an emergency. Rather, you had planned to drive that evening, and refused to deviate from that plan even though you knew you had been drinking steadily at the hotel and despite being questioned by Ms Radley about your drinking earlier in the night.

39Finally, although there is no evidence that your use of your mobile phone played any role in the collision, you had nonetheless driven irresponsibly in other ways that evening, both on the way to the hotel and in the course of the short drive prior to the collision, including steering with your knees and using your mobile phone to send two Snapchat messages to Mr Fowler while you were driving.

40There were many opportunities during the course of that night where you could readily have made the obvious decision not to drive. Ms Radley had questioned your decision to drink when you were driving, yet you continued to do so. The consequences of your decision to drive that night were both entirely avoidable, and utterly tragic.

Victim impact

41The magnitude of the harm caused by your conduct is reflected in the victim impact statements of Ms Radley and those of Adrian Phipps’ parents, Jane and Douglas Phipps, and his younger brother, Neil Phipps.

42Mr Phipps’ parents are shattered by the loss of their son. His mother, with whom he had a particularly close relationship, says her world fell apart that night. Both parents describe Adrian as caring, lovable and genuine who always put others before himself. He was a bit of a larrikin, who had come through difficult times with his own mental health, and was looking forward to the future. They speak of social gatherings, anniversaries and birthdays that will pass them by, leaving them in dread, because they will not be joined by their son. His brother says he has lost ‘his best friend, his sounding board, his older brother’. He will be very much missed.

43Megan Radley says she too lost her best friend. Her life has been profoundly impacted by your actions. She describes suffering ‘agonising pain’ from her injuries, being wheelchair bound for two months. Her physical scars are a constant reminder. Your conduct has caused her mental trauma. She now has a fear of losing other loved ones and a belief that she will never recover from the incident.

44I would like to acknowledge how very bravely Ms Radley responded as these traumatic events were unfolding. By her actions and despite her significant injuries, she did everything she could possibly do to try to free Mr Phipps from the front passenger seat where he was trapped. When it became clear the vehicle was filling with fumes, she assisted you both to exit the car and reach safety before it exploded. There is nothing more she could have done to help Mr Phipps.

45Your offending is undoubtedly serious. You bear significant moral culpability for your conduct that night, however the degree to which this is the case is also informed by your personal circumstances and background, to which I now turn.

Personal history

46You were born in November 2002 and are now 20 years old.

47You were born in Melbourne, the youngest of three children. Your father worked as a forklift driver when you were young and your mother stayed home to care for the children. At the age of 3, the family moved to Warrnambool, where you have lived ever since.

48Your older sister Caitlin was born with significant health issues. She has a rare congenital condition known as Goldenhar syndrome, and has required close to 40 operations to treat this condition. She has also been diagnosed with ADHD, short-term memory loss and was born deaf. Her medical condition has also manifested in behavioural difficulties, and as a child she struggled to manage her emotions, often “yelling and throwing things” in the house.

49Your mother acknowledges that as a consequence of her need to focus on Caitlin’s medical and behavioural issues, neither you nor your brother received as much time or attention as may have been ideal.

50Of significance, your childhood was also marred by the fact that both of your parents abused alcohol excessively, with the family home often filled with alcohol-fuelled arguments. Both of your parents drank heavily most days throughout your childhood. Your father lost his job when you were in Grade 5, after which his consumption of alcohol increased significantly. You recall him being drunk at home “all the time”.  You say you first tasted alcohol as a child, having a “drink from dad’s cup”.[2] Ultimately the conflict in your parents’ relationship led to their separation approximately four years ago, when you were in Year 10.

[2]Exhibit 1 – Psychological Report of Marlese Bovenkerk dated 8 March 2023, page 4 [41]

51Neither of your parents has modelled responsible behaviour in relation to alcohol. In addition to alcohol-fuelled tensions that dominated your home environment, your father recollects losing his licence for driving under the influence of alcohol on four previous occasions; your mother once. Both have had an alcohol interlock condition imposed on their licences, although your mother’s last offence was committed a decade ago, and she has not reapplied for her licence since that time. Your siblings have also committed driving offences, with your sister convicted for dangerous driving in the recent past.

52You attended Warrnambool Primary School but struggled academically. In Grade 5, you were diagnosed with dyslexia and received additional educational support. You moved to Brauer College in Year 7 but continued to find school difficult. In early secondary school up until Year 9, you also experienced bullying at school which left you distressed, until that group of girls left the school.

53In Year 10, you commenced a pre-apprenticeship in construction through TAFE, which you finished in October that year. After this, you found work as apprentice chef at a restaurant in Warrnambool.

54You lived with your mother after your parents separated, but around this time your relationship with your mother quickly deteriorated. You found your mother overly strict, which led to increased conflict between the two of you. Towards the end of your apprenticeship, you decided to move out with your boyfriend, in part to move away from the difficulties you were experiencing at home. However, you began to miss shifts at the restaurant and failed to complete the apprenticeship. You then returned to live with your mother.

55At the age of 18, you began an intimate relationship with a female partner. Your mother disapproved of the relationship, largely because of a disparity in age between the two of you and the fact you were mixing with an older age group. By the time of the offending, you were estranged from both your mother and sister, leading to family violence intervention orders being made against one another. You had not spoken to your mother for approximately eight months prior to the collision.

56Your relationship with your partner ended in December 2021. This was an emotionally difficult time for you. As a consequence, you were drinking heavily between December 2021 and February 2022, reporting you were drinking “between 15 to 20 drinks on a night out” at this time.[3] By the time of the collision, you had reduced your alcohol consumption to an extent, but continued to drink on weekends.

[3]        Ibid, at page 4, [42]

57Throughout 2021 and the first half of 2022, you worked in various jobs, including at Midfield Meats for a period, and undertaking labour work at various dairy farms. At the time of this offending, you had found part-time work at a dairy farm near Cobden. However, this work was infrequent, averaging two shifts per fortnight. You lived alone in a farmhouse on the dairy farm, without much to do, much of the time. This was a lonely experience for you, disconnected from family after your first serious relationship had ended.

58You were assessed for the purposes of your plea by forensic psychologist, Ms Marlese Bovenkerk on 20 February 2023. Although she concludes that you do not suffer from any diagnosed mental illness, Ms Bobenkerk reports that you demonstrate certain symptoms associated with a post-traumatic stress disorder, which she considers ‘are reflective of “survivors’ guilt”.[4] Ms Bovenkerk states your feelings of ‘shame, guilt, horror and fear’ following the collision is consistent with the development of “a negative cognitive appraisal that [she was] undeserving of surviving the incident”.[5]

[4]Ibid, page 10, [93]

[5]Ibid, page 10, [93]

Matters in mitigation of sentence

59In detailed and helpful written submissions filed on your behalf, Ms Dixon highlighted a number of matters to be given weight in mitigation of your sentence. Ms Dixon expanded upon these at the plea hearing.

60First and foremost, you pleaded guilty to the charges at an early stage, without the need for a contested committal hearing. Your plea signifies the fact you have accepted responsibility for your offending and also saves the court and the community the cost and expense associated with a trial.  More significantly, the fact you entered an early plea to the charges saved witnesses, particularly Ms Radley, the ordeal of reliving these events in court or from being cross-examined. Further, the utility of your guilty plea is heightened at a time when delays in the criminal justice system continue in the wake of the pandemic.[6] You are entitled to, and will receive a significant sentencing discount in light of your early guilty plea.

[6]Worboyes v The Queen [2021] VSCA 169

61Moreover, I accept that you have repeatedly expressed remorse for your offending. Mr Phipps was also your friend. Immediately following the collision, when speaking with emergency services, you told the operator, “I killed him, I killed him”, repeating this at least another ten times.[7] You can be heard to say, “Megan, I am sorry”, during the call. You immediately accepted responsibility for what had occurred, telling police who arrived at the scene that you, “drink-drove with them both in my car – I will admit to that” and that “if he dies I wanna…admit to anything”.[8]

[7]Depositions, page 231-234, 236

[8]Depositions, page 252, 279

62Ms Bovenkerk also states that you demonstrated “a high degree of guilt and shame” for your actions and their impact. She assesses you as genuine in your remorse, stating you did not attempt to minimise or justify your behaviour during her assessment.[9]

[9]Exhibit 1 – page 10, [96]

63Both of your parents have reflected on your grief and remorse in the letters they have written to the court. Your father, Tony Mitcham, writes that “the accident has left her devastated… she wishes it had been her, not her friend who had died”. Your mother, Amanda Mitcham, with whom you have reconciled since being in custody, states:[10]

“Now she has to live every day knowing that she has killed one of her best friends, even sharing the same birthday as Adrian. And knowing that Megan is suffering and will never get over what happened that morning.

This is haunting her. So are her memories from that morning. She wishes that she [was] not alive. She knows how many lives have been affected by this tragedy and wishes she could erase what she has done.”

[10]Exhibit 3

64At your plea hearing, submissions addressed the relevance, if any, of the fact you sent Snapchat images to friends immediately following the collision. As Ms Dixon’s submissions conceded, your conduct in doing so appears inexplicable at first. However, Ms Dixon submitted that when analysed, your actions are explained by the fact that following the collision you were in shock and unable to give the operator the precise location of the vehicle. You then sent the images to friends in order for them to assist in locating you.

65This justification is consistent with the record of your call to emergency services, where you first state, “No, we don’t know the address. I was driving” and explains the arrival of Mr Fowler at the scene shortly after receiving the Snapchat images. In the circumstances the prosecution concedes, and I accept, that this conduct is neither aggravating nor inconsistent with a finding of remorse.

66I find that your guilty plea is accompanied by genuine and palpable remorse for your conduct. This finding is relevant to your sentence in two ways. Firstly, it enhances the weight that attaches to your plea and secondly, moderates the need for the sentence to operate to specifically deter you from offending into the future.

67Your youth at the time of your offending, and at the date of your sentence, is also highly relevant to your sentence. As noted, you were only 19 years old at the time of the offence, and are now 20. Ms Dixon informed the Court that, when remanded, you believed you were the youngest person held in custody at the Dame Phyllis Frost Centre.

68The principles that apply when sentencing young offenders are well-established.  In 2011, in the case of Azzopardi v The Queen, Redlich JA distilled the principles from the established authorities, stating:[11]

“Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’.   They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.

Secondly, courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’.   This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour.  No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’.

Thirdly, courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation.” 

[11]Azzopardi v The Queen [2011] VSCA 372 at [34] –[36]

69These observations are echoed in the psychological report of Ms Bovenkerk who, after setting out the generally recognised psychological immaturity of young offenders and the impact of youth in increasing impulsivity and poor decision-making, states:[12]

“…it is noted that imprisonment may have potential criminogenic effects on Ms Mitcham given her impressionable developmental stage and young age. A lengthy term of imprisonment may reinforce criminal identity and exposure of susceptible young offenders such as Ms Mitcham with no priors or antisocial attitudes to those with entrenched offending behaviour patterns.”

[12]Exhibit 1 – page 10, [98] and page 11, [100]

70I accept that your youth and immaturity operates to moderate your moral culpability for your conduct to a degree for these reasons. Given your age, your youth also means that the sentence should be structured to best support your prospects of rehabilitation and eventual re-integration into the community. It is well-recognised there is a community interest in the effective rehabilitation of young offenders, as community safety is enhanced where this occurs. There is a risk that your future rehabilitation may be undermined by a lengthy period of imprisonment in an adult prison for the reasons outlined by Ms Bovenkerk.

71In cases involving culpable driving, the sentencing principles of general deterrence, denunciation, just punishment and the protection of the community will ordinarily be strong considerations. That is the case because of the need for the court, when sentencing for this offence, to send a clear message to others that a significant sentence of imprisonment can only be expected in cases of culpable driving causing death due to intoxication. However, the law recognises that these sentencing considerations are moderated to a degree by the fact of your youth. But it cannot be forgotten that  a life has been lost by your actions.[13] As the Court of Appeal observed in DPP v Hill:[14]

“Driving is an ‘adult responsibility’. That responsibility involves the necessity to make adult decisions and choices, and an awareness that a failure to do so will result in the same consequences that apply to mature adults. Those who have the privilege of holding a drivers licence must ensure that they make decisions carefully and responsibly, because the failure to do so may have catastrophic consequences, including the death of others.

…

Unfortunately, the offence of culpable driving is one which is frequently committed by young drivers. If general deterrence is to be meaningful, it must be directed towards this class of offenders and cannot be regarded as irrelevant because of their youth.” (emphasis added)

[13]R v Sharpa [2001] VSCA 145, [11]

[14]DPP v Hill [2012] VSCA 144

72For the reasons enunciated by the Court of Appeal in Hill, the need for the sentence to deter others from such conduct, including other young people, remains significant here. Whilst the principles that apply in respect of young offenders have application to your case, the mitigating effect of your youth does not extinguish the need for appropriate weight to be given to general deterrence, just punishment and denunciation.

73I have also had regard to the submissions made on your behalf regarding the impact of your childhood exposure to parental alcohol abuse on your behaviours. It is submitted that these matters contributed to a dysfunctional childhood, marked by alcohol-fuelled conflict and poor role modelling in respect of alcohol, particularly drink-driving.

74In the case of Bugmy v The Queen,[15]the High Court articulated two different ways that childhood disadvantage may be relevant in assessing an offender’s moral culpability.[16]  The first – more general – proposition is in the following terms: [17]

“The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.”

[15] Bugmy v The Queen [2013] HCA 37.

[16] See generally discussion in Direction of Public Prosecutions v Herrmann [2021] VSCA 160, [36]; Newton v The King [2023] VSCA 22, [36].

[17] Bugmy v The Queen [2013] HCA 37, [40].

75The case of Bugmy related to an offender’s culpability for alcohol-fuelled violent offending. However, the broad proposition is not to be limited to those circumstances. Here, you were raised in a family where alcohol abuse was the norm and where the adult role models in your life exercised poor decision-making in repeatedly driving when intoxicated. I consider the general proposition has application to your case. Your moral culpability as a 19-year-old could not be equated with an offender whose formative years have not been shaped by exposure to alcohol abuse. Although your childhood experiences do not excuse your offending behaviour, I give them some limited weight in mitigating your moral culpability.

76It was not submitted that the second - more specific – proposition in Bugmy applies to the circumstances of your case. Ms Bovenkerk assesses that you engaged in binge drinking when you had difficulty coping and managing your emotions. However, there is no basis to conclude that your offending behaviour was specifically, or causally connected to your childhood dysfunction, other than in the broad sense. I do not consider the more specific proposition in Bugmy applies in mitigation of your sentence.

77Finally, it was submitted that you have reasonably strong prospects of rehabilitation that are best promoted by fixing a ‘relatively short’ non-parole period. At the time of this offending, you had no prior criminal history. You had demonstrated a willingness to work hard since leaving school, having done so in various roles. You had been employed on a part-time basis at the last dairy farm for 19 months prior to being remanded.

78Since being remanded, you have engaged in counselling with WestCASA, which provides a specialist trauma service for those in custody at Dame Phyllis Frost. In a letter provided to the court,[18] your counsellor with WestCASA states that you referred yourself for counselling following your remand. She states you never missed an appointment to address the ‘wealth of shame and distress’ associated with your offending, and concludes that you have displayed a ‘strong capacity for self-reflection’ and in accepting responsibility for your actions.

[18]Exhibit 2, Report of Molly Lovatt, WestCASA dated 7 February 2023.

79Since being in custody, you have taken the opportunities available to you to  complete a number of rehabilitative programs and vocational courses. You also undertake work in the prison café.

80You have been licensed to drive from the time you turned 18. Although you have no criminal prior history, it is concerning that you had received two infringement notices for speeding in that short period. There remains a need for the sentence I impose to deter you from irresponsible driving in any manner into the future.

81At the age of 20, you are to be sentenced as a person who, with the exception of the speeding matters, has otherwise been of good character. You are described by your parents as loving and caring, with a strong creative streak and a willingness to work hard. You have the ongoing support of your parents, as demonstrated by their attendance at your plea hearing.

82Ms Bovenkerk assessed you as a low to moderate risk of future offending. She highlights the importance of stable family relations, structured employment and counselling to improve your coping skills as critical to your long term rehabilitation. Clearly, treatment to address your problematic drinking is also warranted.

83Overall, I assess you have reasonably good prospects of rehabilitation and have taken that into account in sentencing you, specifically in my consideration of an appropriate non-parole period.

Other sentencing considerations

84I now turn to other relevant sentencing considerations.

85The offence of culpable driving causing death is a standard sentence offence. The applicable standard sentence is 8 years’ imprisonment. The standard sentence is a ‘legislated guidepost’ for offending that is in the middle of the range of seriousness for that offence, having regard only to the objective factors affecting the relative seriousness of the offence.  Objectively, I do not consider the circumstances of your offending elevate this case above the mid-range of seriousness for the offence of culpable driving.

86As highlighted by the Court of Appeal in Lockyer v R:[19]

“It must be understood that the standard sentencing regime…does not in any way diminish the importance of giving proper weight to relevant mitigating factors. These include the personal circumstances of the offender, his or her prospects of rehabilitation and, where appropriate, the need to give due weight to a plea of guilty (particularly if coupled with remorse).

If the standard sentencing regime is not approached in accordance with the principles laid down in both Drake and Brown, it will have replaced ‘instinctive synthesis’ with ‘two-tiered’ or ‘starting point’ sentencing. It is clear this was not the intent of the Parliament.”

[19]Lockyer (a pseudonym) v The Queen [2020] VSCA 321, [67]-[68]

87Under this sentencing scheme, the court may only have regard to sentences previously imposed for a standard sentence offence in assessing current sentencing practices. Further, when fixing a non-parole period for a standard sentence offence, s 11A(4)(c) of the Sentencing Act 1991 requires the court to fix a non-parole period of at last 60% of the relevant term, unless the court considers it is not in the interests of justice to do so.

88Neither counsel were able to refer me to any comparable cases imposed under the standard sentencing regime for the offence of culpable driving.

89Two other cases, whilst not comparable, do highlight the range of circumstances that have bearing on the objective seriousness of the offence of culpable driving. Both were sentences imposed subsequent to the introduction of the standard sentencing regime.

90In DPP v Reid,[20]  the offender was sentenced to 9 years’ imprisonment for one charge of culpable driving (and to three years for two charges of conduct endangering life) giving a total effective sentence of 10 years’ imprisonment with a non-parole period of 7 years. In that case, the offender was aged 21 at the time of the offending with a long history of drug abuse. The offender had a dysfunctional upbringing that contributed to a post-traumatic stress disorder.

[20]DPP v Reid [2020] VSCA 247

91The offender was probationary licence holder who was subject to an ‘alcohol interlock’ condition arising from two prior court appearances for summary drink driving offences. The offender engaged in erratic driving for over an hour, including driving at extremely high speeds whilst crossing over double white lines along the Princess Highway. He was drug and alcohol affected at the time, with other drivers being forced to take evasive action. His passenger had circumvented the operation of the interlock device in the car on several occasions before the collision that resulted in the death of another road-user.

92The Court of Appeal acknowledged that whilst the sentence imposed in Reid could be regarded as lenient, the mitigating factors personal to the accused were not insubstantial, including the offender’s early plea, his youth, his personal circumstances and reasonable prospects of rehabilitation. The sentence, whilst lenient was within range.

93In the case of Victorsen v The Queen,[21] the offender was sentenced to nine years’ imprisonment on each of two charges of culpable driving and two years’ imprisonment for a charge of failing to render assistance, giving a total effective sentence of 13 years’ imprisonment with a non-parole period of eight years.

[21]Eric Victorsen v The Queen [2020] VSCA 248

94In that case, the offender was aged 19 when he drove a stolen motor car into an intersection against a red light at ‘breakneck speed’, colliding with another vehicle and killing its two occupants. The offender had a significant prior criminal history, described as being ‘most likely connected to the very difficult circumstances of his upbringing and compromised intellectual functioning’.  He was assessed with poor future prospects. The Court of Appeal rejected a submission that the sentence was manifestly excessive.

95As can be seen, the circumstances of your case differ significantly from these two cases. For instance, there is no suggestion that speeding or otherwise erratic driving contributed to the collision. There was no evidence that your driving was out of control prior to leaving the Cobden-Terang Road. Rather, due to your level of intoxication, you failed to navigate a turn in the road, leading to devastating consequences.

96The sentence I have imposed for the charge of culpable driving falls below the standard sentence of eight years’ imprisonment. This is because of the weight I have attached to your early guilty plea, coupled with your remorse, your youth and my assessment of your positive prospects of rehabilitation. As stated, a guilty plea entered at this time is of greater utility than prior to the pandemic.

97Finally, as you also fall to be sentenced on charge 2 in respect of Ms Radley, I am mindful that some cumulation must be ordered to reflect the impact of your offending on the separate victims. However, I accept that both charges arise from the same conduct and that, in sentencing you, I must reflect the overall gravity of your offending whilst having regard to the sentencing principle of totality.

Sentence

98Balancing the matters to which I have referred, whilst having regard to the maximum penalty for each offence and the standard sentence for the offence of culpable driving, I sentence you as follows.

99On charge 1 – culpable driving causing death, you are convicted and sentenced to 6 years, six months’ imprisonment. This is the base sentence.

100On charge 2 – negligently causing serious injury, you are convicted and sentenced to 3 years’ imprisonment.

101On summary charge 2 – driving whilst suspended, you are convicted and sentenced to 6 months’ imprisonment.

102On summary charge 7 – exceeding the prescribed concentration of alcohol, where the maximum penalty is a fine not exceeding 20 penalty units, you are convicted and fined $900.00.

103I order that 9 months of the sentence imposed on charge 2 be served cumulatively upon charge 1. I direct that the sentence imposed on summary charge 2 be served concurrently.

104This gives a total effective sentence of 7 years, 3 months’ imprisonment. I fix a non-parole period of 4 years. In doing so, I am satisfied that it is in the interests of justice to fix a non-parole period of less than 60% of the head sentence, primarily due to the weight that attaches to your age, your vulnerability in an adult prison and to best promote your prospects of rehabilitation into the future, as benefits you and the community more broadly.

105Pursuant to s18 of the Sentencing Act 1991, I declare that 242 days be reckoned as the period of imprisonment already served under the sentence I have imposed.

106I am satisfied your offending was committed while you were under the influence of alcohol, which contributed to the conduct giving rise to charges 1 and 2. Pursuant to s89 of the Sentencing Act 1991, your licence is cancelled and you are disqualified from driving for a period of six years from today.

107Pursuant to s6AAA of the Sentencing Act 1991, if not for your plea of guilty, the total effective sentence I would otherwise have imposed is a sentence of ten years’ imprisonment with a non-parole period of seven years.

108Finally, the prosecution applies for an alcohol exclusion order pursuant to s 89DE of the Sentencing Act 1991. That application is opposed and I heard submissions in respect of that application today. I intend to hand down my decision regarding the prosecution application on a later date.