Director of Public Prosecutions v Mobourne

[2025] VCC 137

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-01206

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYRONE MOBOURNE

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 December 2024
DATE OF SENTENCE:	21 February 2025
CASE MAY BE CITED AS:	DPP v Mobourne
MEDIUM NEUTRAL CITATION:	[2025] VCC 137

REASONS FOR SENTENCE
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Subject:Criminal law – Sentence

Catchwords:              Theft of motor vehicle – Failing to stop after a motor vehicle accident – Failing to render assistance after a motor vehicle accident – Criminal history of dishonest and driving offences – On bail and unlicensed at the time of the offending – Relatively poor prospects of rehabilitation - Mild intellectual disability enlivening limbs 1, 3 and 4 of Verdins - Profound childhood deprivation – Totality.

Legislation Cited:      Crimes Act 1958; Road Safety Act 1986; Sentencing Act 1991.

Cases Cited:Bankal v The Queen [2019] VSCA 171; Bugmy v The Queen (2013) 249 CLR 571; Chaplin v The Queen [2010] VSCA 145; DPP v Chhatre [2014] VSCA 280; DPP v Street [2020] VCC 1987; Neskovski v The Queen [2022] VSCA 86; Panourakis v The Queen [2021] 97 MVR 349; Pollard v The Queen [2010] VSCA 156; R v Mohamed [2009] VSCA 158;Varghese v The King [2024] VSCA 115; Verdins v The Queen (2007) 16 VR 269; Tokay v The Queen [2014] VSCA 172; Wassef v The Queen [2011] VSCA 30.

Sentence:                  Total effective sentence of two years and six months’ imprisonment with a non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D Brown Mr M Thackaberry	The Office of Public Prosecutions
For the Accused	Ms C Marcs Mr S Cooper	Kurnai Legal

HIS HONOUR:

Introduction

1Tyrone Mobourne, you have pleaded guilty to three charges on Indictment number P10462132.1.[1] These charges are as follows:

(i)Charge 1, theft, contrary to section 74 of the Crimes Act 1958.

(ii)Charge 3, failing to stop after a motor vehicle accident, contrary to section 61(1)(a) and 61(3) of the Road Safety Act 1986.

(iii)Charge 4, failing to render assistance after a motor vehicle accident, contrary to section 61(1)(b) and 61(3) of the Road Safety Act 1986.

[1]The pleas of guilty were entered before a jury at the commencement of your trial on 14 October 2024. The only charge for the jury’s determination was one of dangerous driving causing death. The jury were unable to agree on a verdict in respect of this charge. This charge was subsequently discontinued on 11 November 2024.

2All three charges each carry a maximum penalty of 10 years’ imprisonment.

Circumstances of the offending

3I have had regard to the circumstances of your offending and the background details set out in the prosecution summary dated 16 December 2024.[2]

[2]Exhibit A.

4This matter resulted in the tragic death of a 36 year old family man, Corey Sullivan. Mr Sullivan lived with his wife, their 3 young children and 2 children from Mrs Sullivan’s previous relationship in Flint Court, Maffra (the Flint Court property).

5Unfortunately, in late 2022, Mr Sullivan relapsed into methylamphetamine use and by late January 2023, he was using heavily. On occasion Mr Sullivan also sold methylamphetamine to others in the area. Mr Sullivan’s increased drug use caused some difficulty in his marriage and in early February 2023 he was served with a Family Violence Safety Notice prohibiting him from being within 200 meters of the Flint Court property.

6At the time of the offending, you were 22 years old and lived in Sale. You were also a regular user of methylamphetamine.

7You and Mr Sullivan had a mutual friend, Priscilla Carstairs. Ms Carstairs lived very close to Mr Sullivan’s home, at Morison Street, Maffra (the Morison Street property). On the afternoon of 4 February 2023, you contacted Ms Carstairs to see if she could facilitate the purchase of some methylamphetamine for you. Ms Carstairs arranged for Mr Sullivan to provide the methylamphetamine to you in Sale.

8You remained in the Sale area and in the evening visited Jeremy Moar’s house with Ms Carstairs, where the three of you smoked methylamphetamine. You and Ms Carstairs left Mr Moar’s house to return Ms Carstairs’ mother in law’s car to Maffra.

9On the drive back to Maffra, Ms Carstairs told you that her partner, Nick McMillan, had managed to get a key to the Sullivan’s Kia Carnival. The Kia Carnival was registered in Mr Sullivan’s name, however, was primarily used by Mrs Sullivan to drive the children around. Ms Carstairs suggested that the key could be used to steal the Kia Carnival in order to get some cash.

10You picked up Ben McClements, telling Ms Carstairs he would assist in the theft of the Kia Carnival. Upon arriving at the Morison Street property, you found Mr Sullivan and Bailey Smith talking to Mr McMillan in the shed. Mr Sullivan and Mr Smith left the house first, travelling to McDonald’s in Sale and then visiting a friend. After they left you told Mr McMillan you were “thinking about rolling Corey’s joint”. Sometime later you and Mr McClements walked to the Flint Court property and stole the Kia Carnival which was parked in the driveway.[3]

[3]Charge 1.

11Having stolen the Kia Carnival, you and Mr McClements drove to Michael Flannagan’s home in Sale. You awoke Mr Flannagan and the three of you left in the Kia Carnival. You then drove to Mr Moar’s house, where Mr McClements stole Mr Moar’s Ford XR6. Mr Moar observed his vehicle being stolen and also observed the Kia Carnival being driven away from his home.

12You dropped Mr McClements off, and sometime later you and Mr Flannagan drove back to the Morison Street property.

13Mr Sullivan received a phone call from Mr Moar who advised him his Ford XR6 had been stolen and that a grey Kia Carnival, matching the description of the Sullivan’s vehicle, appeared to have been involved in the theft. Having received this call Mr Sullivan wanted to go to the Flint Court property to determine whether the Kia Carnival had been involved in the theft of Mr Moar’s car.

14Mr Sullivan and Mr Smith drove back to Maffra and parked behind the houses in Stam Court, in the flood way. In quick succession Mr Sullivan attended the Flint Court property, where he filmed a video at 3:15 am stating the kids were home but Mrs Sullivan and the Kia Carnival were not there. Shortly thereafter Mr Sullivan attended the Morison Street property, where he told Mr McMillan the same. In fact Mrs Sullivan was at the Flint Court property, asleep and unaware the Kia Carnival had been stolen.

15Shortly after Mr Sullivan left the Morison Street property you messaged Ms Carstairs stating you were out the front. Mr Smith saw you cruising towards the Morison Street property in the Kia Carnival and ran up McAdam Street to tell Mr Sullivan. You picked up Ms Carstairs who sat in the middle of the rear seat of the Kia Carnival, whilst Mr Flannagan was in the front passenger seat. Mr Smith met Mr Sullivan on McAdam Street some 50 meters from the corner of Morison Street and delivered the news.

16Mr Sullivan ran off towards Morison Street, cutting through the front yard of the house on the corner. Mr Smith followed him. When Mr Smith got to the front yard of the corner house, he heard a car accelerating heavily along Morison Street towards McAdam Street. He also heard tyres screeching.

17Although he did not see the Kia Carnival strike Mr Sullivan, Mr Smith observed Mr Sullivan on top of the bonnet and hitting the windscreen before falling onto the road. Following the collision you did not stop the Kia Carnival and drove off towards the sports grounds on Morison Street.[4]

[4]Charge 3 and Charge 4.

18Mr Smith having dragged Mr Sullivan off the road, ran to the nearby home of Mr Sullivan’s parents from where he called an ambulance.

19Ms Carstairs who was leaning forward between the two front seats, noticed Mr Sullivan on the road in front of the Kia Carnival waving his hands trying to get your attention. Ms Carstairs states that the Kia was not travelling fast at this time, however you accelerated, and the Kia Carnival hit Mr Sullivan.

20Mr Flannagan states he did not see Mr Sullivan until he was over the bonnet. He estimated the speed of the Kia Carnival to be around 40 kilometres per hour at the time of the collision.

21Paramedics attended and observed that Mr Sullivan had suffered severe and life-threatening head injuries. Mr Sullivan was airlifted to Alfred Hospital, where he was pronounced dead at 10.22 am on 5 February 2023.

22Following the collision, you drove around the streets of Maffra for a while before parking the Kia Carnival in Roberts Court. You then walked to Morison Street where you jumped the fence into the Morison Street property where you spent the night.

23A collision reconstruction expert, Detective Leading Senior Constable Lindon Walker, attended the scene. From the physical evidence at the scene, DLSC Walker concluded that the Kia Carnival was travelling at an absolute minimum speed of 32 kilometres per hour at the time of impact.

24You were arrested on 1 March 2023 following your attendance at Morwell Police Station. You exercised your right to silence in the interview that followed.

Criminal history

25I have had regard to your criminal record. Your past court appearances commence in November 2015. I note that you have a significant history of dishonest offending. In particular, you have committed some 28 offences of theft. Out of those 28 offences, six relate to theft of motor vehicles. You also have a history of driving related offences, including six offences of unlicensed driving, two offences of using an unregistered motor vehicle, and an offence of failing the prescribed concentration of alcohol and drugs within three hours of driving. You also have a prior for stating a false name when requested.

26You have been sentenced to a Community Correction Order (CCO) on four previous occasions on 11 July 2018, 4 May 2020, 13 August 2021 and 10 March 2022.[5] Three of these orders included a Justice Plan condition.[6] You contravened all four orders.

[5]Two of the orders were standalone and the other were made in combination with a term of imprisonment.

[6]The CCO imposed on 13 August 2021 did not contain a Justice Plan condition.

27On 5 September 2022, you were sentenced to an aggregate term of three months’ imprisonment for a number of offences, including two offences of unlicensed driving, two offences of theft, two offences of contravening a family violence intervention order, one offence of theft of a motor vehicle, one offence of failing to have proper control of a vehicle, as well as one offence of criminal damage, and one offence of unlawful assault.

28The offending before me was committed shortly after your release from this three month sentence.

29I also note that on 1 November 2023, you were sentenced to 300 days in respect of offending which included an aggravated burglary, 12 offences of theft, including five offences of theft of a motor vehicle, and seven offences of driving whilst disqualified.

Victim impact

30I have taken into account the relevant and admissible parts of the victim impact statements filed by Mr Sullivan’s parents,[7] wife,[8] and sister.[9] The family have lost a son, a partner, and a brother. Naturally, it has caused them profound grief. However, this is not a case where I am sentencing you for an offence implicating you in the involvement in Mr Sullivan’s death.

[7]Exhibit B and D.

[8]Exhibit C.

[9]Exhibit E.

31Accordingly, I must not take into account expressions of grief resulting from a loved one’s death.[10] As was stated in R v Mohammed:[11]

It goes without saying that because there is nothing in this sentence which goes to the driving or the actual cause of death cases such as this are very unsatisfactory from the point of view of the victims, but the law can only punish the conduct the particular offence prohibits or otherwise makes criminal.

[10]Varghese v The King [2024] VSCA 115 at [47] to [59].

[11]R v Mohamed [2009] VSCA 158 at [18] (per Coghlan AJA).

Personal circumstances

32You are an Indigenous man who has endured an extremely challenging upbringing. These challenges are outlined in the psychological report of Megan Rodgers dated 31 October 2023.[12] You are the only child born to your parents’ union, although you have younger paternal half siblings.

[12]        Exhibit 9.

33You lacked stability from a young age as you were moved between residential care, kinship placements, and living with your mother. You were first placed in care at the age of nine due to concerns regarding domestic violence and substance abuse in the family home. There were several subsequent placements.

34You had a close relationship with your mother and accordingly her passing away when you were aged 14 or 15 was a traumatic event. You believe that an abusive relationship led to your mother’s death. Upon her passing, you lived with an uncle in Moe.

35You describe yourself as having gone “off the rails” following your mother’s death.[13] You were not in education or working and were consuming illicit substances and committing crime.

[13] Exhibit 9 at [18].

36You have lived throughout the Gippsland area, including in Moe, Morwell and Traralgon. You attended a number of different primary schools. You received additional assistance at school as you struggled with many aspects of education, including reading, spelling and learning. Having completed grade 6 you do not recall engaging in secondary education.[14] You have never been engaged in paid employment and have been in receipt of a Disability Support Pension for some years.

[14]Exhibit 9 at [16] - Ms Rodgers suggests at least some attendance at the Woolum Bellum Koori Open Door Education.

37You began using cannabis on a regular basis from around the age of 12. Your mother’s passing precipitated the commencement of your methylamphetamine use at the age of 14 or 15. You have also occasionally used speed, heroin and cocaine.

38You have engaged spasmodically with drug and alcohol rehabilitation services, including attending substance rehabilitation at Baroona Healing Centre in Echuca in 2015. However, you have continued to abuse methylamphetamine. You told Ms Rodgers in 2023 that you would be willing to commit to a placement at Wulgunggo Ngalu Learning Place to assist with substance rehabilitation.[15]

[15]Exhibit 9 at [21] - As well as developing life skills.

39You were in a fairly long-term relationship and that relationship produced a daughter in 2019. Your daughter is now around six years of age.

Gravity of the offending

40At the very least, as conceded by your counsel, you would have known that it was highly likely that your victim would have been seriously injured as a result of the collision.

41Failing to stop and render assistance following the forceful impact of one’s vehicle with a pedestrian, in circumstances in which the pedestrian travelled over the bonnet of your moving vehicle, hit the windscreen and then fell onto the roadway, has been rightly described by the courts as a “despicable and cowardly act”, as “inhumane” and “morally and legally reprehensible”. It was your legal responsibility to remain at the scene following the collision. The well-being of Mr Sullivan should have been at the forefront of your mind, requiring you to provide him with assistance, at the very least, by calling the emergency services.

42In Tokay v The Queen, Redlich JA said:[16]

By their very nature, collisions between motor vehicles and pedestrians are likely to cause serious injuries with lasting consequences. The objective seriousness of the offence must be informed by what a reasonable driver in the position of the offender would have apprehended were the likely consequences of the accident. The applicant in this case felt a forceful impact against his vehicle and saw somebody ‘fly over’. Any reasonable person in his position would have realised that the injury sustained by the victim were likely to be serious, as indeed they were. His failure to stop therefore represents a significant failure to discharge his obligations to his fellow road-users. It was a serious example of failing to stop after an accident.

[16]Tokay v The Queen [2014] VSCA 172 at [23].

43The collision occurred in the early hours of the morning around 3.30 am. Given the time of the morning, it is quite possible that Mr Sullivan may have been lying on the side of the road for a significant amount of time before being discovered. The fact that Mr Smith was nearby and able to assist did not in any way negate your legal responsibility to stop and render assistance.[17] In fact, as was appropriately conceded by your counsel, your offending is aggravated in that you could not have been aware of Mr Smith’s presence nearby in the early hours of the morning.

[17]Bankal v The Queen [2019] VSCA 171 at [21] to [23].

44In addition to these offences you also committed the offence of theft. I have already noted the relevant and persistent history of dishonest offending on your criminal record, including numerous appearances for theft of a motor vehicle.

45Your offending is aggravated by the fact that you were on bail at the time for an offence of theft of a motor vehicle and you were unlicenced. In fact you have never held a driving licence. Further, as already noted, this offending occurred shortly after your release from a three month sentence of imprisonment. At the time of the collision, you were in a stolen vehicle.

46In assessing your moral culpability, I have taken into account your cognitive impairment and the impact of shock following the collision. However, these were clearly not the only factors at play which contributed to your failure to stop and render assistance. Indeed, you told the author of the Pre-Sentence Assessment Report, you “freaked out because [you were] in a stolen car and drove off”.[18]

[18]Exhibit G, pg.1.

47You have a significant criminal history which includes dishonesty and driving matters. You have failed to take advantage of the multiple opportunities afforded to you by being sentenced in the community with a Justice Plan condition. I am of course not sentencing you for your prior matters and they do not in any way increase the objective gravity of the offending before me. However, your prior history is relevant in assessing your moral culpability, the objective of specific deterrence and your prospects of rehabilitation. The subsequent matters on your record shed light on your prospects of rehabilitation.

48I make it plain that it is not suggested that your driving contributed to the occurrence of the accident. I am not sentencing you nor suggesting in any way that you bear responsibility for the tragic loss of Mr Sullivan’s life.

Defence submissions

49Ms Marcs and Mr Cooper appeared on your behalf. I was assisted by comprehensive written,[19] and oral submissions. In addition to the written submissions and a table of comparative cases,[20] the following material was tendered:

(i)Remand report;[21]

(ii)National Disability Insurance Agency (NDIS) plan approval;[22]

(iii)Letter from Victorian Aboriginal Childcare Agency (VACCA) authored by Kiam Rose dated 5 April 2024;[23]

(iv)Letter from Relive authored by Ruvy Bangaar dated 15 April 2024;[24]

(v)Letter from Liverty authored by Mr Kip Nicholas dated 28 August 2024;[25]

(vi)Neuropsychological report prepared by Mr Martin Jackson dated 4 November 2019;[26]

(vii)Psychological report prepared by Ms Megan Rodgers dated 31 October 2023;[27] and

(viii)Justice Plan dated 10 December 2024.[28]

[19]Exhibit 1.

[20]Exhibit 2.

[21]Exhibit 3.

[22]Exhibit 4.

[23]Exhibit 5.

[24]Exhibit 6.

[25]Exhibit 7.

[26]Exhibit 8.

[27]Exhibit 9.

[28]Exhibit 10.

50Ms Marcs relied upon the following matters in mitigation:

(i)Pleas of guilty accompanied by at least a degree of remorse;

(ii)Mild intellectual disability enlivening limbs 1, 3 and 4 of Verdins;[29]

(iii)Profound childhood deprivation giving rise to Bugmy considerations;[30]

(iv)Totality;

(v)A degree of extra curial punishment; and

(vi)The prospects and the importance of rehabilitation.

[29]Verdins v The Queen (2007) 16 VR 269 (‘Verdins’).

[30]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).

51Ultimately, the defence submitted that a term of imprisonment in combination with a CCO, attaching a Justice Plan condition was appropriate and within range.

52It was known that you would be pleading guilty to the theft charge at an earlier stage. The pleas to failing to stop and render assistance were indicated and entered at a late stage.[31] Nevertheless, your pleas narrowed the issues at trial. It was known that no issue was taken in respect of you being the driver of the Kia Carnival. I accept your pleas evince a willingness to take responsibility and facilitate the course of justice. I am prepared to accept that your pleas of guilty indicate some limited remorse.

[31]Although during negotiations, you offered to plead guilty to Charges 3 and 4 should the prosecution agree to withdraw the charge of dangerous driving causing death.

53I accept that you have endured significant hardship from a young age. This has included parental separation, exposure to family violence and substance abuse, as well as instability in living arrangements including homelessness. In circumstances where you grappled with cognitive deficits, the lack of stability and emotional support clearly impacted your education. Your disadvantaged background engages the Bugmy principle and allows me to moderate your moral culpability in a general sense.

Neuropsychological assessment

54I have had regard to Mr Jackson’s assessment conducted on 1 November 2019, the results of which are outlined in his report dated 4 November 2019.

55Mr Jackson’s assessment revealed your Full Scale IQ to be 67. That falls in the Extremely Low range and is consistent with a mild intellectual disability. Mr Jackson described your intellectual disability as “long standing”. He identified additional cognitive impairments due to your substance abuse, noting “it is of concern that you may actually have a mild acquired brain injury due to substance use”.[32]

[32]        Exhibit 8, pg.13.

56Mr Jackson identified that:[33]

[your] verbal intellectual abilities (vocabulary, general knowledge and verbal abstract reasoning) and perceptual intellectual abilities (attention to visual detail, construction and visual logical thinking) were mostly in the Borderline range, apart from verbal abstract reasoning and visual logical thinking, which were Extremely Low. In terms of working memory abilities, whilst [your] immediate memory span was in the Low Average range, [your] sequencing span was in the Borderline range and [your] working memory span was in the Extremely Low range. Mental arithmetic was in the Borderline range and [you] could only do single digit addition and subtraction. Processing speed varied from the Borderline to Low Average range with [your] better performance being on a visual matching task.

[33]        Exhibit 8, pg.7.

57Mr Jackson noted you have:[34]

particularly impaired abstract and logical thinking and therefore, [have] very limited ability to think of solutions to problems or different ways of behaving. This could well be related to what appears to be a somewhat lack of understanding of the seriousness of [your] actions.

[34]        Exhibit 8, pg.13.

58However, Mr Jackson stated that you do understand the unlawfulness of your actions, although it was difficult to gauge your understanding of the seriousness of these actions. You indicated to Mr Jackson that you needed to change your life and that you could seek to do this by, for example, not associating with others who offended, going to TAFE, looking after your daughter and moving away from Moe.

59Mr Jackson opined, quite obviously, that alongside the assistance you will require to live independently in the community, you must remain abstinent from substance use. That is something you have not been able to do. Mr Jackson also refers to putting in an application to NDIS to provide appropriate support. NDIS is now in place.

60Mr Jackson further noted:[35]

[your] executive skills are poor, although mostly consistent with a mild intellectual disability. It is noted that [your] thinking is particularly concrete and [your] problem solving is quite poor. Even though [you] can express reasonable goals as to what [you] might need to do to reduce or cease offending, [Mr Jackson is] concerned that [you] do not actually have the cognitive abilities to achieve these goals on [your] own. A person with this type of cognitive profile is at high risk of returning to previously learned behaviour because of the lack of executive skills. If [you] returned to the same community around the same people, then the risk of returning to previous behaviour is significant. [You] will need support from community services to develop pro-social behaviours and activities to reduce the likelihood of reoffending.

[35]        Exhibit 8, pg.14.

61I accept your counsel’s submission that there is a realistic connection between your intellectual disability and the offending. You have a limited ability to consider solutions to problems, including the positive and negative outcomes of situations. Unlike a person without cognitive limitations, you did not have the same capacity for thinking through the consequences of your actions in that brief period following the collision.

62Your intellectual disability allows me to moderate your moral culpability. Further, I am able to reduce the importance of general and specific deterrence. I accept that limbs one, three and four of Verdins are enlivened. However, I make it plain that although reduced, your moral culpability remains high. The objectives of deterrence, both general and specific, remain important.

Prospects of rehabilitation

63You are now 26 years old. You remain relatively young and I must take into account your rehabilitation in addition to the punitive sentencing purposes of general and specific deterrence, denunciation and community protection.

64In respect of your rehabilitation, your counsel pointed to the generous NDIS package that entitles you to $141,660.55 for support services over two years. Ms Marcs submitted that the level of support available to you upon your release suggests that your prospects of rehabilitation are more positive than they may initially appear.

65Ms Marcs further submitted, referring to Mr Nicholas’ letter, that you will have access to Liverty Disability Services for four hours a week to address housing and budgeting, as well as alcohol and drug issues. You will also have support from VACCA to assist you with developing a case plan, setting future goals and obtaining referrals to programs that will address your needs in a culturally safe setting.

66It is of course encouraging that you will have supports in place upon your release. However, considering your prior criminal history, in conjunction with the numerous previous opportunities afforded to you by community dispositions involving a Justice Plan condition, which you have not taken, I regard your prospects of rehabilitation as being quite poor.

67In his report authored in 2019, Mr Jackson noted that being sent to prison had been a key factor in making you realise that your behaviour was a problem and that it needed to change. You told Mr Jackson in 2019 that you did not like being in prison and were keen to stay out so that you could raise your daughter.

68Despite that apparent realisation and corresponding sentiments expressed by you to Mr Jackson, you have continued to commit offending and have returned to prison.

69As submitted by Ms Marcs, I bear in mind the principle of totality. I note that a charge of failing to stop is a distinct and separate offence from that of failing to render assistance. In Pollard v The Queen the Court of Appeal said:[36]

…conduct in failing to stop after the collision was both conceptually, and legally, separate from [an offender] having failed to render assistance…There is clearly a difference between not stopping, and failing to render assistance. These are separate offences under s 61(1)(a) and (b) of the Road Safety Act 1986. It goes without saying that a person may stop at the scene of an accident, but still fail to render assistance. The converse is also true.

[36]Pollard v The Queen [2010] VSCA 156 at [29] (Maxwell P and Weinberg JA); See also Neskovski v The Queen [2022] VSCA 86 at [30] to [31] (Maxwell P, Emerton and Whelan JJA).

70In considering totality, I take into account that you have been in custody since March 2023. However, the pre-sentence detention for the offending for which I am sentencing you commenced on 24 December 2024. This is because you were sentenced to a term of 300 days’ imprisonment for other offending by the Magistrates’ Court on 1 November 2023.

71I was told by Ms Marcs that it was culturally important for you to attend your cousin’s funeral. At the time you were on remand for this offending. The prison authorities denied you permission to attend the funeral. Ms Marc submitted that this denial amounted to an extra-curial punishment. I will give some limited mitigatory weight to this fact. Of course, the facts of Chaplin v The Queen were very different to the circumstances here.[37]

[37]Exhibit 1 at [27]; Chaplin v The Queen [2010] VSCA 145, at [13].

Prosecution submissions

72I have had regard to Mr Brown’s oral and written submissions.[38] In contrast, to the defence position, Mr Brown submitted that having synthesised all relevant matters and circumstances, a term of imprisonment comprising a head sentence and a non-parole period was the only appropriate sentence.

[38]Exhibit F.

73Mr Brown took no issue with your personal background as set out in your counsel’s submissions and the reports of Mr Jackson and Ms Rogers. He accepted that limbs 1, 3 and 4 of Verdins were enlivened and that your disadvantaged background gave rise to the Bugmy principles in a general sense.

74Whilst Mr Brown noted that your pleas of guilty to charges 3 and 4 were properly characterised as late, he conceded that those pleas did narrow the issues at trial. Further, it was known for some time that there was no dispute that you were the driver of the stolen Kia Carnival when the collision occurred.

75Mr Brown submitted that this was a serious example of what is a serious offence. The serious nature of the offence is underlined by the fact that in 2005 Parliament increased the maximum sentence from 2 years to 10 years’ imprisonment. In Wassef v The Queen,[39] the Court of Appeal stated that as a result of the increase in the maximum penalty, offenders convicted of such an offence should expect the imposition of a substantial term of imprisonment.

[39]        Wassef v The Queen [2011] VSCA 30.

76Mr Brown noted that the collision occurred in the early hours of the morning. Whilst the collision occurred in a residential area, bearing in mind the time of the morning, it was possible that Mr Sullivan may have been left lying on the side of the road for a lengthy period before being discovered by someone and assisted.

77I have also taken into account as a relevant sentencing factor, current sentencing practices. I have read the sentencing decisions referred to me by both the prosecution and the defence.[40] Ultimately each case turns on its own unique facts and circumstances.

[40]Varghese v The King [2024] VSCA 115; DPP v Chhatre [2014] VSCA 280; R v Mohamed [2009] VSCA 158; Panourakis v The Queen [2021] 97 MVR 349; DPP v Street [2020] VCC 1987; Wassef v The Queen [2011] VSCA 30.

78I have given careful consideration to your counsel’s submission on sentence. However, having distilled all relevant factors and considered all the circumstances, I have determined that a term of imprisonment involving a non-parole period is the only appropriate sentence in this case. In respect of each charge you are convicted and sentenced as follows:

·        On Charge 1, theft, you are sentenced to six months’ imprisonment.

·        On Charge 3, failing to stop after an accident, you are sentenced to two years and three months’ imprisonment.

·        On Charge 4, failing to render assistance after an accident, you are sentenced to two years and three months’ imprisonment.

79The sentence on charge 4 will be the base sentence. One month of the sentence on Charge 1 and two months of the sentence on Charge 3 will be served cumulatively upon each other and upon the sentence on Charge 4. Therefore, the total effective sentence is one of two years and six months’ imprisonment.

80I set a non-parole period of 18 months.

Licence Cancellation

81Any licence or permit you hold to drive a motor vehicle is cancelled. In respect of Charges 3 and 4, you are disqualified from obtaining a licence or permit to drive a motor vehicle for a period of four years.

82In respect of Charge 1, you are disqualified from obtaining a licence or permit to drive a motor vehicle for a period of 12 months.[41]

[41]The two periods will run concurrently. Therefore the total period is one of four years.

Pre-sentence detention

83Pursuant to s 18 of the Sentencing Act 1991, the period of 425 days of pre-sentence detention is declared as having already been served in respect of this sentence.

S 6AAA declaration

84Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 3 months.