Director of Public Prosecutions v Nicholls

[2025] VCC 1426

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00745

DIRECTOR OF PUBLIC PROSECUTIONS

v

BLAKE NICHOLLS

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2025
DATE OF SENTENCE:	29 September 2025
CASE MAY BE CITED AS:	DPP v Nicholls
MEDIUM NEUTRAL CITATION:	[2025] VCC 1426

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Dangerous driving causing death – Prior criminal history – Under the influence of THC cannabis – Genuine remorse – Verdins – Bugmy – Very good prospects of rehabilitation.

Legislation Cited:      Crimes Act 1958 s 319(1); Sentencing Act 1991 ss 5(2H), 5(2H)(c)(ii), 6AAA, 18, 44, 48CA, 89(2).

Cases Cited:

Sentence:                  Imprisonment for a period of 6 months with a Community Correction Order for a period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D Hogan (Plea) Ms S Fetherstonhaugh (Sentence)	Office of Public Prosecutions
For the Accused	Ms H Anderson	Greg Thomas

HIS HONOUR:

Introduction

1Blake Nicholls, you have pleaded guilty to one charge of dangerous driving causing death contrary to s 319(1) of the Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment.

2You have also admitted your Criminal Record.

Circumstances of the offending

Introduction

3You were aged 36 at the time of the offending. You were employed by Forking Trucks as a driver for about six months. Your role included transporting scaffolding in a truck between work sites.

4At the time of the offending you were the holder of a full and current heavy rigid Victorian Drivers Licence. You were required to have a zero blood alcohol level.

5The vehicle driven by you was a white 2016 Nissan Tray Truck. The truck was a heavy rigid truck designed to carry a forklift fitted to the rear of the vehicle with a hydraulic lift. At the time of the collision the truck was not loaded but had a forklift fitted to the rear and had a total weight of approximately 10,956kg.

6The primary victim in this matter is Kaye Rubineek. She was 77 at the time of the collision and lived with her husband. The victim was driving a 2015 Mazda CX3.

7The second victim is Shane Tobin. He was 58 at the time of the offending and was driving a 2022 white Nissan Nivara utility.

8On Monday 16 January 2023 at approximately 3:42pm, the truck driven by you, was travelling northwest on Frankston Flinders Road Somerville between Helington Court and Westminster Court when it crossed onto the incorrect side of the road. The Nissan, driven by Mr Tobin was travelling southeast on the road toward the truck. The Nissan was impacted by the truck in a side swipe type impact. After the impact, the truck continued northwest on Frankston Flinders Road whilst on the Southeast bound lane before colliding head on with the Mazda driven by the victim. The Mazda had been travelling southeast behind the Nissan.

9Post impact, the truck collided with a metal guard rail before coming to rest on the road shoulder. The Mazda was forced rearwards whilst rotating clockwise before coming to rest in the Southeast bound lane whilst facing north.

10You committed the offence of dangerous driving in that you drove in a manner that was dangerous to the public having regard to all the circumstances of the case in that you failed to have proper attention while driving a heavy rigid truck, under the influence of THC cannabis, and drove across double white lines onto the wrong side of the road, colliding with the Mazda which was driven by the victim and caused her death.

Movements priors to collision

11On 16 January 2023, you commenced work at 6:00am.

12At the time of the collision you were the owner of an Apple iPhone which was seized from the truck following the collision. An analysis of the phone showed that prior to the collision two messages were sent between you and your partner at 12:23pm and again at 12:49pm. You then called your friend, Tim Mulder on his mobile.

13Your last delivery of scaffolding was picked up from Tooradin and delivered to Hastings at around 1:20pm. You took photographs of your final scaffolding job in Hastings at 1:20pm.

14At around 2:00pm, you drove the truck to Mr Mulder’s house in Hastings. Very shortly after you arrived, you drank a Rivet brand beer which has an alcohol content of 4.6% and is classified as 1.2 standard drinks. Shortly after, at the same location, you smoked two bongs of cannabis.

15At about 2:30pm you drove to the tobacconist next door to the Westernport Hotel with Mr Mulder as your passenger.

16At around 3:00pm, you parted ways with Mr Mulder. Mr Mulder understood that you were intending to drive the truck back to the depot. At this time you had one quarter of an ounce of cannabis in your possession.

17At 3:15pm you received a text message from your partner that stated, ‘how long till your home’. At 3:22pm you replied ‘just heading back to the yard from Hastings’ and ‘I had to wait for Tim’s dad to get home as he was picking up’.

18At approximately 3:40pm, the collision occurred.

Eyewitness accounts of the collision

19The second victim, Shane Tobin was travelling south on Frankston-Flinders Road at around 80km/h and was just past Deanswood Drive when he observed the truck, which was about ten feet in front of him, veering into his lane. The truck collided with the front right of the Nissan and continued down to the rear door and spun the Nissan around nearly 360 degrees. The side airbag activated. Mr Tobin hit his head and his ear was ringing. You approached Mr Tobin and said ‘I am so sorry. I hit a pothole and it steered me into you.’

20The prosecution opening summarises other witness accounts which I will not reproduce in these reasons however I note that a number of witnesses heard you say words to the effect that you had hit a pothole.

21The collision with the Nissan was captured on dash camera footage from a car that was a couple of cars behind your truck. The truck is recorded as crossing onto the incorrect side of the road and impacting the Nissan which was travelling in the southeast bound lane. The dash camera footage is not consistent with the truck being effectively steered to the left after the truck crossed over to the other side of the road.

22The subsequent impact with the Mazda is not visible in the dash camera footage.

23Leading Senior Constable Tarrant Jones attended the scene at approximately 4:00pm and activated body worn camera (BWC). LSC Jones observed the Mazda stuck well into the trees at the side of the road.

24You were arrested and provided with your formal caution and rights and made a number of statements that were recorded on the BWC including:

(a)   ‘I can’t believe I just killed someone. I’m so sorry. I’m so fucking sorry; and

(b)   ‘…look at the big dip in the road there, I just hit it and it just sent me sideways and I’ve tried to bring it back and I couldn’t. There was nothing I could do’.

25You made a number of similar statements in relation to the ‘dip’ or ‘pothole’ in the road.

26You were transported by ambulance to the Frankston Hospital where a sample of your blood was taken by a nurse at 5:15pm, 1 hour and 35 minutes after the collision. This blood sample was analysed and the following substances were detected in your blood:

(a)   Delta-9-tetrahydrocannabinol (THC): 12 ng/mL;       

(b)   11-0H- delta-9-tetrahydrocannabinol (11-hydroxy THC): 3ng/mL;

(c)   11-nor-delta-9-tetrahydrocannabinol (THC-COOH): 85 ng/mL;

(d)   Clomipramine: .01 mg/L;           

(e)   Desmethylvenlafaxine: .15mg/L; and

(f)    Mirtazapine .02 mg/L

Collision reconstruction

27Collision Reconstructionist, Detective Sergeant Dr Jenelle Hardiman, attended the collision scene on the evening of 16 January 2023.

28Dr Hardiman determined that the truck had collided with two vehicles: the Nissan and the Mazda. She concluded that the impact between the Nissan and the truck occurred first and the impact between the truck and the Mazda occurred second.

29Dr Hardiman examined the collision scene and made a number observations and conclusions which are detailed at length in the tendered Summary of Prosecution opening which I will not reproduce in these reasons.

30Dr Hardiman also supervised and evaluated the collision reconstruction exercise on 20 February 2023 and concluded that based on her research: observations of the drive throughs conducted at the site in a comparable vehicle; the volume of other vehicles that have travelled through the collision scene before and since the collision without incident; and the fact that the driver of the truck had no need to move laterally out of the rutting, in her opinion, it is unlikely that the rutting would result in a loss of control for a driver having a firm grip of the steering wheel with two hands.

31Dr Hardiman considered the report and opinion prepared by Shane Richardson on your behalf. Dr Hardiman did not change her opinions in respect to the collision.

32Dr Sanjeev Gaya from the Victorian Institute of Forensic Medicine reviewed your toxicology and other relevant material and concluded that:

(a)   your prescribed medications are unlikely to have adversely impacted your driving at the time of the collision;  

(b)   Delta-9-tetrahydrocannabinol (THC) was detected at a level that suggests recent consumption of cannabis, even in a regular user of the drug;

(c)   the detected THC was at a level that has been shown to have detrimental effects on driving as to increase the risk of collisions. The level of THC could have been higher at the time of the collision;

(d)   your driving posed an appreciable risk to the occupants of your vehicle or other road users; and

(e)   he did not believe that the drugs identified in your blood impaired you to the extent that you were incapable of having proper control of a motor vehicle.

33You were interviewed at Frankston Police Station following your discharge from hospital.

Nature and gravity of the offending

34The offence of dangerous driving causing death is, by its nature, a serious offence as it involves the death of a human being. The seriousness of the offence is also reflected in the maximum penalty set by parliament, being 10 years imprisonment and its classification as a Category 2 offence.

35In assessing the nature and gravity of your offending this instance it is necessary to address the basis of the dangerousness upon which the prosecution rely.

36As noted above, you drove in a manner that was dangerous to the public having regard to all the circumstances of the case in that you failed to have proper attention while driving a heavy rigid truck, under the influence of THC cannabis, and drove across double white lines onto the wrong side of the road, colliding with the Mazda which was driven by the victim causing her death.

37While it was apparent that the road surface did in fact reveal evidence of ‘rutting’, when trials were conducted using a truck of similar size and weight, no sideways pulling force on the steering wheel was experienced. Further, as detailed in the prosecution opening, vehicles were observed from a drone above the same section of road for a period of some 31 minutes. Of the various types of vehicles (including trucks) that used that section of the road, no vehicle was observed to react adversely to the road condition. Thus, it is case that despite your comments at the scene that a pot hole had caused the collision, the evidence is consistent with you simply failing to pay proper attention in all the circumstances.

38As to the presence of THC in your system, it is a factor that is taken into account in all the circumstances. You were required to have no drugs in your system. The findings of the expert indicates that the level of THC in your system posed an appreciable risk as to increase the risk of collision. The expert also concluded however that the level of drugs in your system would not have impaired you to the extent that you were incapable of having proper control of the truck. Ms Anderson who appeared on your behalf submitted that your use of cannabis in the circumstances elevates to a degree your moral culpability. I accept that submission.

39Ms Anderson also points to what may be referred to as a lack of aggravating features; you were not speeding, there is no evidence that you were using your mobile phone and, other than your inattention leading to the collision, there is no evidence of other unsafe or erratic driving.

40In all the circumstances in my view the gravity of your offending falls in the mid to low range.

Victim impact

41A victim impact statement prepared by Kerryn Burch, niece of the victim, was read out on the plea.

42Her statement expressively speaks to the pain and shock she feels due to her auntie’s passing and the wider impact it has had on her family. 

43She feels anxious when she sees trucks on the road, has difficulties watching and listening to the reporting of road accidents and took indefinite leave from work due to her fear of breaking down. Ms Burch notes that despite the time that has passed, the pain and suffering is still present in many aspects of her life and that celebrations are not the same now that her auntie is gone.

Personal circumstances

44You were born in Sandringham and raised in Mornington. You lived in commission housing and state you were frequently exposed to violence and substance abuse from a young age. You are the youngest in a sibship of three. Your parents separated when you were four following instances of family violence and instability. You report that you have no meaningful relationship with your father.

45Your mother struggled with alcohol and prescription medication abuse throughout your early childhood and you felt that your physical and emotional needs were rarely met. You report that your relationship with your mother improved following the birth of your children. Your mother died in tragic circumstances in July 2023.  You report your sister also developed significant substance use and mental health problems and you have minimal contact with her and your brother.

46You experienced severe bullying and learning difficulties in school. You report that you engaged in disruptive and inappropriate behaviours in an attempt to be removed from class and left school during year 9.

47You left the family home at 18 and met your current partner in your early 20’s. Your partner has chronic health issues, and you have provided support to each other to create a stable relationship for one another. You have had three children together. Your first child was born in 2018 with chronic health issues and sadly passed away unexpectedly when he was 13 months old. Your second son was born within two to three days of your first child’s death. You describe the profound difficulty of grieving for one child and caring for a newborn. Your daughter was born in 2021.

48At 17 you commenced and completed an apprenticeship. You remained employed as a plasterer for fifteen years, working consistently over that time. You ceased your plastering work to care for your son full time in 2018. You report engaging in occasional contract work following the birth of your son and commenced working as a truck driver six months prior to the offending.

49You commenced using non prescribed benzodiazepines when you were 12, taking them from your mother without her knowledge. You commenced using cannabis at age 13 and report consistently using throughout your life to reduce experiences of stress and assist with sleep. Your amphetamine use commenced in your early 20’s however you report you are now abstinent due to the negative impacts on your friends and family. You speak of your desire to achieve and maintain complete abstinence from cannabis in the future.

50You report you first engaged with mental health supports when you were 27 as a result of experiencing panic attacks and symptoms of depression and have consistently engaged with psychologists in the community over time. You have previously received diagnoses of Post Traumatic Stress Disorder (PTSD), Depression and Anxiety. You have undertaken Cognitive Behavioural Therapy (CBT) and are currently prescribed Pristiq, Mirtazapine and Clomipramine to manage these symptoms.

51A report of psychologist Austin Campbell dated 8 June 2025 was tendered on the plea. Mr Campbell opines that you appear to lack the skills to identify and manage your symptoms of psychological distress which are exacerbated due to unresolved traumatic experiences. He notes you are at risk of suicidal ideation and behaviours and will continue to experience intrusive symptoms without the appropriate treatment. Importantly, your prospects of rehabilitation, as assessed by Mr Campbell, are positive given your engagement and motivation to improve your mental health and functioning capacity to care for your family.

52Your treating psychologist Courtney Fry provided a report dated 7 August 2025. She notes you have engaged consistently with her since November 2016 and have faced significant trauma including adverse childhood experiences and the loss of your first child. She also notes that you have had periods of suicidal ideation and behaviours in the past, including a recent suicide attempt and a recent admission to Frankston Hospital Psychiatric Assessment and Planning Unit due to deteriorating mental health. She opines that your current symptoms are the most severe she has seen in her 11 years of treating you.

53You have limited criminal history and continue to enjoy the support of your partner and your children. You have demonstrated a willingness to improve your life and provide a stable environment for your children, in contrast to your own upbringing. You have expressed a desire to undertake tertiary study to work with disadvantaged and vulnerable youth and continue to remain motivated in your efforts to better manage your mental health. 

Sentencing considerations

54I first take into account your plea of guilty. Your plea was entered following a sentence indication before me. Your plea has saved the court considerable time and expense, bringing the matter to an early conclusion, for which you are entitled to a discount in sentence.

55Over and above your plea of guilty it was submitted that you have demonstrated genuine remorse. It was submitted that your remorse was evident in the immediate aftermath of the collision in your comments to various witnesses and in your comments made to assessors in the psychological reports. Further, in the assessment report prepared for the court by Corrections Victoria, you stated to the writer: ‘I feel immensely for her family, beyond comprehension for the loss that her family has endured’. In the circumstances I accept that you have demonstrated insight and genuine remorse.

56Taking into account your complex mental health profile, it was submitted that Verdins principles 5 and 6 have application. You have a number of identified conditions including PTSD, major depressive disorder and substance use disorder. You were also recently admitted to a psychiatric unit following a suicide attempt. The prosecution accepted that Verdins principles 5 and 6 are enlivened and I too accept that they should be given weight in the sentencing discretion.

57I also take into account the disadvantages you suffered in your childhood years as detailed in the psychological material. As such Bugmy principles are able to be given some application in the general sense.

58Turning to your prospects of rehabilitation, you come before the court with a limited prior criminal history where no convictions have been recorded. You have a supportive partner and you have a positive relationship with your two children aged six and four, both of whom require significant care. You are accepting of treatment in relation to your cannabis use and your mental health concerns. In all the circumstances I assess your prospects of rehabilitation as very good.

59In cases such as this, general deterrence remains a prominent sentencing consideration. Driving always carries significant responsibility and requires constant attention and focus. A failure to pay proper attention can result in tragic consequences as it did in this case. Otherwise responsible and experienced drivers must be reminded that they will face significant consequences when their failure to pay proper attention gives rise to dangerous driving causing death or serious injury.

60As you have pleaded guilty to a Category 2 offence, a term of imprisonment (without the option of a combination sentence) is mandatory unless an exception pursuant to s 5(2H) of the Sentencing Act 1991 (‘Sentencing Act’) is able to be established. Based on the material tendered, you relied on s 5(2H)(c)(ii), that you have impaired mental functioning resulting in you being subject to substantially and materially greater burden of imprisonment.

61The prosecution conceded that it would be open to the court to find that in the circumstances of this case the s 5(2H)(c)(ii) exception is established. I too am of the view that based on the psychological material, the exception is established. Nonetheless, having considered the relevant sentencing matters, including the need for general deterrence, in my view a term of imprisonment still must be imposed together with a community correction order.

62I had you assessed for a community correction order and you have been found suitable.

Sentence

63Mr Nicholls would you please stand.

64Blake Nicholls, on Charge 1, dangerous driving causing death, you are convicted and sentenced to 6 months imprisonment as part of a combination sentence pursuant to s 44 of the Sentencing Act.

65Upon your release from custody you will be placed on a community correction order for a period of 2 years. In addition to the standard conditions that apply to all community correction orders you will be required to complete 100 hours of unpaid community work, you will also be required to undergo treatment and rehabilitation in relation to drug use, mental health and programs to reduce reoffending. You will also be subject to supervision.

66Pursuant to s 48CA of the Sentencing Act, I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation conditions, may be credited as hours of unpaid community work.

67Pursuant to s 18 of the Sentencing Act, I declare that 20 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

68Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 20 months imprisonment with a non parole period of 14 months.

69Pursuant to s 89(2) of the Sentencing Act, as the charge is a serious motor vehicle offence, any driver licence you hold is cancelled, and you are disqualified from obtaining a further one for a period of 18 months from today.