Director of Public Prosecutions v Nigatu
[2025] VCC 629
•22 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01143
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NASIFAY NIGATU |
---
JUDGE: | HIS HONOUR JUDGE S JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 April, 19 May 2025 | |
DATE OF SENTENCE: | 22 May 2025 | |
CASE MAY BE CITED AS: | DPP v Nigatu | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 629 | |
REASONS FOR SENTENCE
---
Subject: Criminal Law Sentence
Catchwords: Dangerous driving causing death – Plea of guilty – substantial and compelling circumstances that are exceptional and rare made out – refugee and victim of torture – PTSD – significant hardship in custody – remorse – hardship arising from teenage son’s care – risk of visa cancellation - low culpability
Legislation Cited: Sentencing Act 1991
Cases Cited:DPP v Bowen (2021) 65 VR 385 Farmer v The Queen [2020] VSCA 140 DPP v Kenneison [2023] VSCA 321; DPP v Lombardo 102 MVR 19; Pan v The Queen [2020] VSCA 42; Peers v The Queen [2021] VSCA 264; Markovic v The Queen (2010) 30 VR 589.
Sentence: Three-year Community Corrections Order
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms P Thorp | Office of Public Prosecutions |
| For the Accused | Ms T. Casey | Victoria Legal Aid |
HIS HONOUR:
1.Nasifay Nigatu, you have pleaded guilty in this Court to a charge of dangerous driving causing death, which is a Level 5 offence. The maximum penalty for this offence is 10 years' imprisonment.
2.The offence of dangerous driving causing death is a Category 2 offence under Part 2 Sentencing Act 1991 (Vic) (‘Sentencing Act’).
3.You have no prior criminal history. You have no subsequent matters or matters outstanding. You have no driving infringement record recorded.
4.You are now 35 years of age.
Circumstances of Offending
5.The Prosecution relied upon a revised Summary of Prosecution Opening dated 3 April 2025, which was Exhibit A on the Plea, and forms part of these reasons for sentence. Dashcam footage of your driving failure and the fatal collision that resulted has also been tendered and viewed in open Court.
6.I was also provided with photographic exhibits and a ‘drive through’ video.
7.Together, these materials provide the basis on which I am able to assess the objective gravity and level of moral culpability of your offence.
8.On 25 June 2023, on the afternoon of the collision, you were driving a Volkswagen Golf as part of your employment. You were employed at the time as a Disability Support Worker. The vehicle was registered in your name, you were the owner of it, and you held a full and current drivers’ licence.
9.You had two passengers in your car; a 22 year old man with disabilities who was in your care on that afternoon, and another Disability Support Worker who was assisting you as a carer on that day.
10.The principal victim of your dangerous driving, Annette Wyatt, was a front seat passenger in the car being driven by her daughter, Tricia. Ms Annette Wyatt, aged 80, received fatal injuries in the collision. Tricia Wyatt also received extensive and painful injuries.
11.Your vehicle and Ms Wyatt’s vehicle were travelling in opposite directions on the Tylden-Woodend Road. Tricia Wyatt was driving her vehicle in an easterly direction. Her and her mother had enjoyed a family lunch earlier that day at a winery near Musk. They left there at around 3:45 and were driving towards Woodend.
12.You and your co-worker had been caring for your passenger since 9 a.m. You were at the Sunbury Library between approximately 12:30 and 3:20 pm, at which time you left to drive the person in your care back to his home.
13.You knew the road well having driven it many times.
14.The fatal collision occurred at 4:14 p.m. You were approaching a right-hand bend in the road. This curve in the road is depicted in Figure 3 in Exhibit A. You were approaching the bend too fast for the conditions, and faster than the 85 kph advised by a road sign situated prior to the curve.
15.The bend sits on a juncture with Falloons Road which is a gravel road (as depicted in Figure 3). The white line on the bitumen is partially obscured by the intersection of gravel and bitumen. You entered the gravel as you approached the bend. It appears you lost control, over-corrected, and lurched onto the wrong side of the road at speed.
16.Tricia Wyatt had a split-second to see what was unfolding and tried to take evasive action, but had no chance. Your car hit her vehicle head-on.
17.The collision was captured on the dash cam camera of the Wyatt vehicle. This visual representation provides the best account of what happened, rather than my summary.
18.You were travelling at an estimated 108 kph at the point where your car entered the gravel prior to the bend, however, for the purposes of sentencing, I must consider you to be travelling at the lower end of the possible range, being 104kph. This was a 100 kph zone. The crash scene reconstruction expert Dr Hardiman concluded that you reacted to entering the gravel shoulder of the road by oversteering to the right, which caused your vehicle to yaw to the right before being oversteered back to the left. Your vehicle was yawing back to the left and on the wrong side of the road when it hit Ms Wyatt’s vehicle.
19.Ms Wyatt’s vehicle had been travelling at 79kmph, well below the 100 kph limit, and had slowed to 29 kph at the point of impact.
20.There was light rain falling at the time and the road was wet.
21.Your serious breach of the proper management or control of your vehicle caused the death of a much-loved woman, a “beautiful and caring lady”[1] in the words of her daughter. A woman who had an exceptional bond with her daughter, a woman upon whom her daughter depended very much.
[1]Victim Impact Statement of Tricia Wyatt, daughter of the victim, Exhibit “C”, page 3.
Victim Impact Statement
22.Tricia Wyatt suffered significant injuries in the collision: a broken right ankle that required surgery, a fractured left shoulder, fractured collarbone, and three fractured ribs. She was hospitalised for 10 days, spent a further three weeks at a rehabilitation hospital, and many more weeks trying to recuperate fully.
23.They are the physical injuries, and they illustrate the risks presented by your driving to others, as well as the direct impacts of your offence.
24.The enormity of the loss experienced by Tricia Wyatt, so eloquently expressed in her Victim Impact Statement, is a matter I must and do take into account.
25.Tricia Wyatt and her mother had an exceptionally close bond. Her Mum was her best friend and she now feels lost. In the years leading up to this loss she had been living with her Mum as she underwent treatment for ovarian cancer.
26.Her mother was her support person and carer. The void can never be filled. Tricia Wyatt writes “I can’t put into words how much I miss my Mum.”[2]
[2]Victim Impact Statement of Tricia Wyatt, daughter of the victim, Exhibit “C”, page 3.
27.No words can express such loss. I take the very significant impacts into account.
Objective Gravity of Offending
28.Dangerous driving causing death is an inherently serious offence given that it involves the loss of life. The impact of the outcome of instances of dangerous driving causing death of loved ones, family, friends and the wider community is difficult to express in words.
29.Whilst acknowledging the enormity of the consequence of dangerous driving that causes death, it remains the task of the Sentencing Court to assess the extent of the driver’s failure to uphold standards of driving, and, to assess the moral culpability associated with the dangerous driving that caused the loss of a life.
30.Such assessments involve an analysis of the extent to which your driving involved a serious breach of the proper management or control of a vehicle which created a real risk of death or serious injury.
31.The maximum penalty of 10 years is reflective of the objective seriousness of the offence, as is the fact that it is a Category 2 offence. The community is frustrated, dismayed and outraged over the loss of life on our roads due to hoon driving, alcohol and drug affected driving, speeding, risk taking, failure to obey traffic signals, failure to concentrate and pay full attention to what is happening on the road ahead, and failure to take care to drive to the conditions and circumstances of the road.
32.You were exceeding the speed limit by at least 4 kph upon commencing to enter the bend, but you were not engaging in what could be described as risk-taking or hoon driving. You were not distracted by shifting your attention elsewhere, such as to a mobile phone for example.
33.Your driving record is unblemished up to 25 June 2023.There is some evidence as to your driving behaviour in the lead-up, but I have not been able to conclude to the requisite standard that your driving was erratic – potholes along the road may have accounted for some of the description of your driving.
34.You approached this bend too fast for the conditions and all of the circumstances. You entered the gravel shoulder and may have lost control momentarily. Your efforts to correct saw you lunge onto the opposite carriage way with tragic results. It was a poor piece of driving in the conditions and circumstances of the juncture and bend.
35.Your Counsel, Ms Casey, drew my attention to evidence demonstrating the poor condition of the Tylden-Woodend Road, its reputation regarding safety and condition, and the record of incidents at the junction of Falloons Road and the highway.
36.It is clear the road was not well maintained, and the gravel intersection with Falloons Road on the bend presents a hazard. These are the sorts of hazards and conditions road users do and must navigate routinely on country roads. The conditions did not contribute to your offence, however, that is not to say that Ms Casey’s submissions on this point, and the facts she drew my attention to, were not appropriate circumstances to consider when assessing your driving and the extent of your breach.
37.Your Counsel stated in Exhibit 1, the Defence Outline of Submissions, that your dangerous driving could be described as follows:
Ms Nigatu approached the right bend at a speed which compromised her ability to properly pay attention to judge, navigate and execute the bend safely, having regard to the conditions.
This error led to a tragic chain of events over mere seconds: the passenger side of her vehicle veered onto the left gravel shoulder, she oversteered to the right into the wrong side of the road and collided with the oncoming vehicle.[3]
[3] Defence Outline of Written Submissions, dated 2 April 2025, Exhibit “1”, page 1.
38.On the available evidence, this is an adequate summary of the circumstances of dangerous driving.
39.The Prosecution place your driving in the range of lower mid-range for this offence.
40.Having regard to the range of circumstances that can constitute the offence, and the spectrum of risk and extent of breach the offence encompasses, it is my assessment that the objective gravity of your offending and your moral culpability falls toward the lower end.
Personal circumstances.
41.You are 35 years of age. You arrived in Australia in February 2020 under Australia’s refugee and humanitarian program holding a ‘woman at risk’ visa.
42.You took steps soon thereafter to arrange for your son (“David”)[4] to reside here also. This did not come to fruition until June last year.
[4] ‘David’ is a pseudonym.
43.You were born in a rural town in the Welega region of Ethiopia. You are the eldest of five children. Both parents were school teachers. You are part of the Oromo ethnic group, a suppressed minority in Ethiopia, and are of the Christian Orthodox faith.
44.You were a good student and had a happy early childhood, however, when you were 14, you and your younger sister began attending a school that was 200kms from your home. Things became difficult. You lived together with your sister, separate from your family and only travelled home once a year.
45.When in year 10, at the age of 15, your life took a tragic turn. You participated in an anti-government political rally, along with other students. You were arrested and held with other girls and women in a prison. You were physically mistreated and indecently assaulted, many women were raped.
46.After finishing year 10, you enrolled in a nursing course and graduated when you were 19. During your final year you became pregnant. Your boyfriend wanted you to terminate the pregnancy. In 2009, you gave birth to your son and you lived by yourself with your baby in a bedroom you rented. Friends sometimes visited and brought you food and a landlady gave you advice about caring for your child. You lost contact with your family. Pregnancy outside marriage brought condemnation and shame and was a taboo subject.
47.You earnt money at this time by cleaning shops, and you took your baby with you while you worked.
48.When your son was 11 months old, your father came to the town where you were living, found you and took you and your son home. Your parents were hostile toward you. You didn’t feel comfortable appearing in public because the local community were critical of you being an unwed mother. You felt very ashamed.
49.I was told that you had been breast-feeding your son, and things were going well, but due to the stress of your situation , including political pressures due to the Oromo experience, you stopped lactating and became more distressed at your circumstances. You made a decision , which still weighs heavily upon you, to leave your son with your parents and return to Nekemte.
50.You worked for a year as a cleaner and then went to Addis Ababa and lived with friends you had met in Nekemte. The household you stayed in was political and, between 2011 and 2015, you helped in the running of a radio station that reported on the situation of Oromo people. You became involved in producing political songs and dramas which were placed on YouTube.
51.In 2015, you were imprisoned because of your political activism. I was told by your Counsel this was an underground prison and you spent 11 months there with no light. You were also the victim of extreme sexual violence there and you were grossly mistreated. I refer to paragraph [21] of the report of Clinical Psychologist Guy Coffey.[5] You became very unwell. The Red Cross intervened and had you transferred to hospital. To avoid being transferred back to prison, friends bribed police and you were discharged into the community. You and a male and female friend immediately left Addis Ababa.
[5] Report of Guy Coffey, clinical psychologist, Exhibit “2”.
52.On the Plea, your Counsel relayed the descriptions of Mr Tesema, who attended both days of your plea hearing, as to the experience of Oromo political activists, and the surveillance and terror which you and others were subjected to.
53.For three weeks, you and your two friends took a journey by bus and on foot to Khartoum, Sudan; You spent many days walking across desert, usually at night. You spent two months in Khartoum, supporting yourselves by selling coffee in the street. You then travelled with about 30 others by truck to Egypt. During the trip, which took nearly three weeks, your female friend died of dehydration.
54.The journey finished in Aswan, Egypt. You spent three weeks in Aswan with other survivors of the trip. Again, you and other women were the victims of extreme sexual violence by people smugglers. The perpetrators recorded and uploaded this violence onto social media. You then travelled to Cairo in a truck carrying fish and ice.
55.After 19 months in Cairo, the UNHCR found you to be a refugee. On 6 February 2020 you arrived in Australia. In December 2020, you made application to bring “David” here under your visa.
56.For the first three years in Australia, you lived in rental accommodation with other Ethiopians. In 2021, you worked as a cleaner in a shopping centre and studied to be a disability support worker one day a week.
57.In 2021, you also undertook a 120 hours placement as part of your disability support course. You also did Uber deliveries, followed by work as an Uber driver for six months. From early 2023 you worked full-time as a disability support worker with an NDIS provider; caring for people with physical and mental disabilities. You sent a sizable portion of your earnings to your family in Ethiopia.
58.In October 2023, you returned to Ethiopia to attend your grandmother’s funeral. Although you and your son had been in regular contact since you arrived in Australia, this was the first time that you had been together since he was an infant. You stayed for less than a month and didn’t feel safe, generally staying indoors.
59.You have not driven, nor worked since the fatal collision.
60.You are currently receiving WorkCover entitlements, but once you recover, you will not be able to return to disability support work due to the NDIS exclusion and revocation of your NDIS clearance subsequent to being charged.
61.Since the collision, you have developed increased symptoms of PTSD and experience mild to moderate depression. Since your son arrived here in October last year, your life revolves around meeting his needs, and it appears that when he is at school or in bed you are otherwise listless, tired, depressed and suffering the distracting and ruminative symptoms of PTSD.
62.Mr Tesema writes “I am aware of the unfortunate incident that has led to her court appearance. This has deeply affected her, as she is devastated by the loss of life involved in the accident. Since the incident, she has been mourning, struggling with overwhelming guilt and sorrow. It is clear that she carries a profound sense of responsibility and remorse for what has happened.”[6]
[6] Character reference of Ruphael Tesema, dated 2 April 2025, Exhibit “6”.
63.I received a report from Guy Coffee, an expert of considerable renown in the field of refugee trauma and experience.
64.Mr Coffee writes[7]:
“Ms Nigatu said that her life changed dramatically after the index offending. She ceased working, experienced physical pain from her injuries, and her anxiety, depressive and posttraumatic symptoms became much more pronounced. She became inactive and withdrew socially.
Ms Nigatu described her daily routine. She wakes between 6 and 7am, helps her son prepare for school, and travels with him to school on the bus. Until her son returns she said she doesn’t do a lot. She does a few house chores; her back pain interferes with doing the laundry and cleaning. Her friend and housemate, Raphael does the shopping. She has her first meal of the day about 3pm. She comes home with her son on the bus. She speaks with her son after school. When she feels up to it she cooks but often gets takeaway. She sometimes has another meal in the evening. She prays several times a day. She watches YouTube recordings from her church. She goes to bed between 1 and 3am. Once or twice a week she attends a protestant Ethiopian church. She said she keeps to herself there whereas previously she was gregarious. She said she finds other worshippers’ questions about what is happening for her and why she no longer works difficult to answer. She attends a number of medical appointments each week to treat collision related injuries and pain. Her days are characterized by a low level of activity and social isolation, getting only essential things done to care for her son and run the household.
Ms Nigatu’s friend, Raphael confirmed that the decline in her mental well-being had been precipitous after the accident. He said that during her first years in Australia she was outgoing and active; the effects of her history were evident, she would become distressed, for example, by direct reminders of traumatic experiences, but she worked productively and participated in the church community. Raphael said that since the accident she is very different: she largely confines herself to the home and avoids her friends; she looks distressed and cries often; she eats little; she wanders around at night; she is difficult to engage in conversation; and she will often dress in black and sit alone – reflecting, Raphael said, an Ethiopian mourning ritual.”
[7] Report of Guy Coffey, clinical psychologist, Exhibit “2” at [41]-[43].
65.Mr Coffee has diagnosed you with PTSD. He is well placed, given his expertise and experience, to assess the impact of the ‘enduring sexual and physical violence,’[8] you have suffered.
[8] Report of Guy Coffey, clinical psychologist, Exhibit “2” at [45].
66.He noted that up to the time of his assessment of you, you had never received treatment for a mental health condition.
67.He opines at [44]:
Ms Nigatu has suffered a series of significant traumatic experiences, including repeated sexual violence, loss, severe material hardship and prolonged exposure to unsafe circumstances, the cumulative effect of which has produced posttraumatic stress symptoms since her adolescence that have waxed and waned according to immediate stressors and the security of her situation.
68.He notes at [53] that ‘…since the accident Ms Nigatu has suffered daily periods of inattention and self-absorption due to an increase in the severity of her post-traumatic symptoms.’
69.He went on at [69]-[73]:
“She said that since the offending her past has returned to her; each day she experiences vivid images of the violence she suffered accompanied by racing heart and panic; sometimes the memories come spontaneously, especially when she is unoccupied, at others times they are invoked by a direct reminder in conversation or the media, or an unexpected sound. She said that before the accident she had begun to feel safe in Australia and her past was starting to recede.
Almost daily, when absorbed in a traumatic memory, she becomes unaware of her surrounds. She said on a number of occasions, when internally absorbed, she has scorched her hands on hot kitchen utensils, has burnt food she is cooking and has found herself standing in a room for no apparent reason. She said she rarely became absorbed in her thinking in this way during the years in Australia prior to the accident.
She said that she has been advised that she could be repatriated; she said this idea also causes her fear.
Every night she dreams of the accident or suffering violence; the nightmares wake her, sometimes cause her to scream, and her sleep is broken. Due to fear of nightmares she avoids falling asleep until after 1am.
She was sleeping in total for three or four hours.”
Hardship in Custody
70.Mr Coffee opined at [87] as to hardship in custody:
‘In my opinion by reason of personal characteristics, her traumatic history and her mental disorders, a term of imprisonment will be additionally burdensome for her. She has no experience of the criminal justice system. She has never had any association with criminally inclined people other than having been a repeated victim of criminality. She will find the separation from her son distressing, having so recently been reunited with him. It is common for posttraumatic conditions to become more severe in environments where the sufferer lacks productive activity to occupy themselves, where they feel unsafe and where their usual social supports are absent. Finally, in prison it is unlikely Ms Nigatu would receive specialized psychological treatment for her posttraumatic mental disorder, but if she did, it is likely the benefits will be more limited than if treatment was received in a non-custodial setting.’
71.As to recommended treatment he stated at [86]:
‘In my opinion she will benefit from psychological treatment which should be delivered by a female psychologist who is experienced in treating refugees with histories of sexual violence, displacement and loss. The treatment should occur weekly for at least a year in order to ensure she derives benefit.’
72.Given his expertise and experience, and his reputation for candid, circumspect opinion, I accept unreservedly Mr Coffee’s opinion as to these matters.
73.You have commenced the process of obtaining treatment through Foundation House. I received a letter from Foundation House which stated you will require a minimum of 20 sessions due to your extensive history of torture and trauma, in addition to the current stressors you are experiencing in Australia.
74.The author of the letter, Ms Wolf, also wrote that you ‘presented with significant psychological distress, including symptoms consistent with post-traumatic stress, such as low/dysthymic mood, persistent worry and rumination, chronic sleep difficulties, nightmares and flashbacks…Ms Nigatu also presented with overwhelming feelings of guilt, shame and remorse in relation to the accident, as well as intense worry in relation to the future of her 15 year old son…should she be incarcerated as a consequence of the accident.’[9]
[9] Letter from Michelle Wolf of Foundation House, The Victorian Foundation for Survivors of Torture, dated 15 May 2025, page 1.
Matters in Mitigation
Family Hardship
75.It was submitted by your Counsel that hardship to your son in the event of your incarceration, was a matter I could have regard to due to the exceptional nature of that hardship. The Prosecution disputed the existence of exceptional circumstances that would enliven my consideration of third-party hardship.
76.You and your son, your only child, have had an unconventional bond and relationship. The bond between mother and son must be viewed in the context of the story of your life, which includes your traumas and travels. You nurtured him until he was around a year old, just the two of you. You then left him in the care of your family, but you always remained in contact, I was told, and spoke with him regularly. You were reunited with him in a physical sense in 2023.
77.Since he arrived here in 2024, again, it has just been you and him. I accept based upon the evidence before me that he is entirely dependant upon you. You are his only parent, his only family in this new country for him.
78.He is only learning to speak the language. “David” attended English language school when he first arrived due to Oromo and Amharic being his spoken languages.
79.Since April, he has been attending secondary school. I received a letter from the principal of the school providing an important insight into David’s vulnerable circumstances and the negative impacts upon him if his mother were to be incarcerated.
80.Mr Tesema also provides insight in this regard:
‘David is a very shy soccer player. His level of English is good, but if his mom were to be sentenced to imprisonment, it would be unbearable for him. I can’t imagine the type of psychological impact this might have on him, given the ups and downs he has gone through to get to where he is now. If he were to be separated from his mother again, the emotional toll on him would be unimaginable.’[10]
[10] Character reference of Ruphael Tesema, dated 2 April 2025, Exhibit “6”, page 2.
81.Counsel for the Prosecution, Ms Thorp, submitted that “David’s” circumstances do not meet the ‘exceptional’ test confirmed in Markovic v The Queen.[11] I was referred to more recent authority also of DPP v Hill[12] and the observation of Hargreave JA at [28] that:
‘In light of the statement in Markovic that family hardship can only be taken into account ‘in the exceptional case, where the plea for mercy is seen as irresistible’, such evidence should not be left to presumption or inference, as happened in this case.’
[11] (2010) 30 VR 589.
[12] [2023] VSCA 84.
82.In the case of Hill, there was an absence of evidence as to whether the accused’s dying wife wished to be cared for by, the at that time convicted of heinous offences, Mr Hill.
83.In the present case, I have no doubt that “David” has an extremely strong bond with his mother, held all the more tightly given the years of separation. He is here on a humanitarian visa, trying to find his way in a new country, a new school, as a child of 15/16. He is here because his mother came here five years ago due to the degradations and traumas, she fled in her own country, and the struggles she went through to get here. He faces the prospect of separation again from his mother, with no other familial or parental support.
84.I am satisfied on the evidence before me, that in all of its circumstances, this is an exceptional case of hardship where the plea for mercy is irresistible.
Hardship in Custody
85.I am satisfied that on the basis of Verdins limbs 5 and 6, you are entitled to mitigation due to the hardship you will experience in custody due to your PTSD and mild to moderate depressive disorder. I am satisfied that there is a likelihood of deterioration of your conditions if incarcerated, particularly your PTSD.
86.Over and above Verdins limbs 5 and 6 mitigation, I am satisfied that your experience of custody would be substantially harsher than for another due to:
·English being your third language, after Oromo and Amharic, you would therefore be more isolated than English speaking prisoners;
·Your traumatic history, particularly your prison experiences and the extreme sexual violence and mistreatment you suffered;
·The additional distress of being separated from your son, having so recently been reunited with him;
·Worry regarding your visa status and, in turn, that of your son;
·The fact you do not have the benefit of family who could visit or support you;
·You have no prior convictions or criminogenic experience, other than as a victim.
Extra-curial punishment
87.I accept that for the reasons set out by your Counsel, some slight mitigation flows due to the loss, of your chosen career as a disability support worker, due to your offending.
Visa status
88.The prosecution submits that the only available sentence in your case is a head sentence with a non-parole period. Such a sentence must necessarily be in the order of at least 12 months. A sentence of that length would enliven mitigation due to the stress associated with cancellation of your visa status, and that of your son, and the possibility of deportation.
89.The prospect of loss of the opportunity to settle in this country would also weigh upon you in such circumstances.
Bugmy
90.There is no doubt that the Bugmy principle applies in your case in the general sense. Your exposures to extreme traumas and dangers from your teenage years has impacted and shaped you in the ways described by Mr Coffee and Mr Tesema.
91.These experiences give rise to an occasion for the application of mercy in the sentencing exercise.
92.Whilst not necessarily fitting entirely snugly within Bugmy reasoning, the injustice and harshness of being imprisoned for 11 months in horrific circumstances, and subjected to mistreatment and extreme sexual violence, for political and discriminatory reasons – engages the principle of mercy.
Plea Guilty
93.You pleaded guilty after a limited committal hearing, and after a case conference in this Court, your plea attracts mitigation due to its utilitarian benefit. It also reflects your contrition and acceptance of wrongdoing.
Remorse
94.I accept that you are appropriately remorseful and have expressed genuine remorse. I do so on the basis of the testimonial from Mr Tesema, the letter from Foundation House, the contents of the Coffee report, and your letter of apology read by you under oath in open Court.
95.The extended Pre-Sentence CCO Assessment I received also provided a basis for finding genuine remorse.[13]
[13] Extended Pre-Sentence Assessment -Outcome Report p.2.
Prospects of Rehabilitation
96.I accept that your prospects of rehabilitation are excellent.
Previous good character
97.Your previous character is unblemished. The offence is completely out of character. The testimonial of Mr Tesema makes that clear. You have no prior convictions, no pending matters and no driving infringements. I note you were an Uber driver, and an Uber delivery driver for a period. Unfortunately, many cases of dangerous driving involve drivers of exemplary prior character. General deterrence remains very important in order to emphasise to all drivers, that care must be taken at all times when behind the wheel.
Section 5 2H
98.Dangerous driving causing death is a Category 2 offence as I have stated.
99.In sentencing an offender for a Category 2 offence, I must sentence you to a term of imprisonment, other than a sentence of imprisonment imposed in addition to a community correction order, unless, there are substantial and compelling circumstances that are exceptional and rare and that justify not making such an order.
100.When making the evaluative assessment of whether there are substantial and compelling circumstances that are exceptional and rare in this case, it is necessary to have regard to the sentencing considerations applicable to cases of dangerous driving causing death, since in order to justify not imposing imprisonment, the circumstances would need to surmount those principles. Typically, it is only in cases involving low moral culpability that the test can be met.
101.In determining whether there are substantial and compelling circumstances under sub-s(2H)(e), I must regard general deterrence and denunciation of your conduct as having greater importance than the other purposes set out in s5(1) of the Sentencing Act 1991.
102.In doing so I must keep at the forefront of mind that your offence involves the loss of a precious life by your driving conduct, the greatest of losses. Annette Wyatt suffered the ultimate loss, and Tricia Wyatt has been robbed of enjoyment and joy in life, and sharing years with her Mum. Denouncing the cause of such a loss, and deterring others from a similar failure of care has greater importance than other sentencing purposes.
103.I must give less weight to your personal circumstances than to other matters, such as the nature and gravity of the offence; and I must not have regard to an early guilty plea, prospects of rehabilitation; or parity with other sentences.
104.In determining whether there are substantial and compelling circumstances under sub-s(2H)(e), I must have regard to the intention of Parliament that a sentence of imprisonment should ordinarily be made, and whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
105.The Court of Appeal in DPP vLombardo[14] outlined the application of s5(2H) and the exception contained in s5(2H)(e). The Court considered the statutory language and identified two key steps in the enquiry as to whether the exception was satisfied:
First, the court must identify whether there are substantial and compelling circumstances. This has been interpreted as circumstances that are weighty and forceful or powerful. The issue is whether the circumstances are substantial and compelling so as to justify not imposing a custodial sentence. That is the criterion by which the substance and compulsive force of the circumstances are to be assessed.
The second critical step, if the circumstances are substantial and compelling in the sense described above, asks whether they are also, "exceptional and rare". In our view [that's the Court stating], this is to be regarded as a composite phrase imposing a single test, rather than as two discrete tests. That is because the meaning of the words overlap; in particular, "exceptional" means "out of the ordinary course, unusual, special", which includes that which is "rare" … the two words operate together and each influences the meaning of the overall phrase.
[14] [2022] VSCA 204 at paragraphs 66-67.
106.Also in Lombardo[15] the Court stated that exceptional and rare 'refers to circumstances that are wholly outside the ordinary factors typical of the relevant offence'.
[15] [2022] VSCA 204 at paragraph 71.
107.And more recently in the case of DPP v Kenneison, the Court of Appeal considered the test with regard to dangerous driving cases.[16]
[16] DPP v Kenneison [2023] VSCA 321
108.At [37], following on from considerations of the passage of Lombardo I have just referred to, the Court stated:
Acknowledging both that s5(2H)(e) establishes "a very high hurdle that will not often be surmounted",[17] a "requirement [that] is — no doubt quite deliberately — almost impossible to satisfy’[18] and that such observations "must not be treated as a substitute for the statutory language",[19] it is plain that the words "substantial and compelling circumstances that are exceptional and rare" have real work to do. The circumstances must be both sufficiently weighty and powerful to justify not imposing a custodial sentence[20] and "wholly outside the ordinary factors typical of the relevant offence".[21]
[17] Farmer v The Queen [2020] VSCA 140, [51] (Maxwell P, Kaye and Niall JJA).
[18] DPP v Bowen (2021) 65 VR 385, 388 [11] (Maxwell P, Priest, McLeish, T Forrest and Walker JJA); [2021] VSCA 355.
[19] DPP v Lombardo (2022) DPP v Kenneison, 37 [64] (McLeish, Niall and Kennedy JJA).
[20] Ibid, 37 [66] (McLeish, Niall and Kennedy JJA).
[21] Ibid, 38 [71] (McLeish, Niall and Kennedy JJA).
109.Your Counsel submits that s5(2H)(e) has application in your case due to a combination of factors.
110.Your Counsel also relies upon the exception set out in s 5(2H)(c)(ii) relating to impaired mental functioning and the burden of imprisonment.
111.Under that limb, it is submitted that your impaired mental functioning would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
112.Your Counsel relies upon the conclusions of Mr Coffee at [44] and [86]-[87].
113.I am unable to find the test in s5(2H)(c)(ii) satisfied. Whilst I have concluded that your experience in custody would be substantially and materially greater than the ordinary burden or risks of imprisonment, this is due to a combination of factors, summarised by Mr Coffee at [87], not due to mental illness alone.
114.On the basis of the evidence before me, and the opinion of Mr Coffee, this test is not met.
115.In your case, I have found that due to a combination of circumstances, the test in s5(2H)(e) is met, and that those circumstances are wholly outside the ordinary factors typical of the relevant offence, and, they are sufficiently weighty and powerful to justify not imposing a custodial sentence.
116.First, the overall assessment of the combination of circumstances involves my assessment of the objective gravity and moral culpability of your driving as lower end, not the lowest category, but lower end.
117.Were your moral culpability higher, the test would likely not be met in your case.
118.Second, I find the following circumstances in combination satisfy the test of substantial and compelling circumstances such as to justify not imposing a custodial sentence:
·Hardship in custody due to a combination of factors including Verdins limbs 5 and 6;
·Bugmy mitigation and in particular the mercy this principle attracts;
·The application of mercy due to your previous experience of imprisonment;
·The application of mercy due to family hardship;
·No prior convictions or driving history;
·The availability of optimal treatment for your PTSD in the community as compared to custody;
·Remorse;
·Risk of visa cancellation and deportation;
·Extra-curial punishment.
119.Having regard to the many cases of dangerous driving causing death that come before this Court and the Court of Appeal, and having regard to the many cases where s5(2H) is enlivened that do not involve driving – it is my assessment that the substantial and compelling circumstances in your case are exceptional and rare.
120.Of course, that is not the end of the matter. Having found the exception satisfied, it does not simply follow that a non-custodial disposition is the outcome – see Peers[22] at [73]. A combination sentence is something I have given careful consideration to.
[22] Peers v The Queen [2021] VSCA 264
121.I sought an extended pre-sentence report in your case and I have found it a helpful resource in considering the appropriate sentence.
122.You were assessed as suitable for a CCO and considered low risk of reoffending. A CCO can involve a considerable punitive element in the form of work hours. I must give considerable weight to general deterrence and denunciation. I have determined that in all of the circumstances, applying mercy to your case for the reasons I have stated, the principles of general deterrence and denunciation can accommodate the imposition of a non-custodial disposition.
123.I do not take this decision lightly. I am acutely aware of the intention of Parliament and the impact of loss on the Wyatt family and friends.
124.I consider that anyone , contemplating your case, would be deterred from driving with anything other than the utmost care and attention considering your proximity to a gaol sentence, which has been hanging over your head for some time now, and given you will now be required to undergo a lengthy and onerous corrections order.
Sentence
125.Ms Nigatu, on the charge of dangerous driving causing death you are sentenced to a Community Corrections Order of 3 years' duration with conviction. You are to perform 275 hours of unpaid community work as a special condition of that order.
126.Other special conditions of the Order are:
·That you be subject to mental health assessment and treatment.
·That you be subject to programs to reduce reoffending.
·That you be subject to judicial monitoring.
127.In addition to the Community Corrections Order you are also fined $1000.
128.I will also make an order against your licence pursuant to s.89(1) and (2)(a) of the Sentencing Act 1991. Your licence is cancelled and you are disqualified from attaining another for 18 months from today’s date.
129.Pursuant to s6AAA, were it not for your plea of guilty I would have sentenced you to two and a half years jail with a non-parole period of 18 months.
- - -
0
11
0