Director of Public Prosecutions v O'Brien

[2023] VCC 505

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-20-01391

DIRECTOR OF PUBLIC PROSECUTIONS

v

PATRICK WALTER O'BRIEN

‑‑‑

JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2022, 15 March 2023
DATE OF SENTENCE:	28 March 2023
CASE MAY BE CITED AS:	DPP v O'Brien
MEDIUM NEUTRAL CITATION:	[2023] VCC 505

REASONS FOR SENTENCE
‑‑‑

Subject:CRIMINAL LAW      

Catchwords:   Sentence – one charge of culpable driving causing death;               related summary charges of driving whilst disqualified,

driving whilst the prescribed concentration of drugs is present in the blood.

Legislation Cited:  Sentencing Act 1991 (Vic);

Cases Cited:R v Daetz (2003) 139 A Crim R 398; Chaplain v The Queen [010] VSCA 145; Verdins v DPP (2007) 16 VR 269; R v Franklin [2009] VSCA 77; DPP v Gany (2006) 163 A Crim R 332; R v Tawle [2009] VSCA 280; Brown v R [2019] VSCA 286; DPP v Drake [2009] VSCA 293;Warboyes v R [2020] VSCA 169.

Sentence:  Total effective sentence of six years and eight months imprisonment with a non-parole period of four years and three months imprisonment before parole eligibility; 110 days of presentence detention to be reckoned as a period of imprisonment already served under this sentence, which is to be deduced administratively; 6AAA declaration – seven years and eight months imprisonment with an order for parole eligibility.

‑‑‑

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S.Clancy with Ms L. Gurry	Office of Public Prosecutions
For the Accused	Mr C. Terry	Adrian Paull Criminal Lawyers

HER HONOUR:

Introduction

1Patrick Walter O'Brien, you have pleaded guilty to an indictment containing one charge of culpable driving causing death, which carries a maximum penalty of 20 years' imprisonment.

2Related summary offences were uplifted into the hearing of the plea in mitigation of penalty, and you pleaded guilty to those charges, namely driving whilst disqualified, which carries a maximum penalty of two years’ imprisonment or 240 penalty units; and driving whilst the prescribed concentration of drugs is present in the blood, which in your case carries a maximum penalty of a fine of not more than 60 penalty units.

3The circumstances in which you came to commit those offences are set out in the Summary of Prosecution Opening Upon Plea dated 1 December 2022 (Exhibit A).  The prosecution also relied upon:

·        Victim Impact Statement of Rebecca Bailey dated 5 December 2022 (Exhibit B);

·        Criminal record/history from 1 December 2022 (comprising Magistrates' Court appearances which post-date the offending, Exhibit C);

·        Prosecution Submissions on Plea (Exhibit D);

·        Prosecution Further Submissions on Plea dated 14 March 2023 (Exhibit E);

·        Extracts from depositions comprising photographs of scene at pages 24-26 and 161-164 (Exhibit F);

·        Corrections material concerning prisoners with Acquired Brain Injury (Exhibit G).

4In addition to the matters developed in oral argument, your counsel relied on:

·        Defence Submissions on Plea dated 6 December 2022 (Exhibit 1);

·        Neuropsychological report by Dr Matt Treeby dated 5 August 2022 (Exhibit 2);

·        Psychological report by Carla Ferrari dated 19 August 2022 (Exhibit 3).

5I have had careful regard to all exhibited documents, as well as the matters addressed in the days of oral hearing of the plea in mitigation of penalty.

Circumstances of your offending

6At about 6.20am on 19 December 2018, you were driving a red Holden utility and crossed double white lines on the Healesville-Koo Wee Rup Road at Yellingbo, ending up on the wrong side of the road.  In this position, you passed through a slight right bend and hit a black Ford utility being driven by Peter Terkeurs in the opposite direction.  As a result of the collision, you killed him. 

7At the time of your offending, you were 24 years of age and had recently relocated from the residence of your girlfriend's parents in Coldstream to an address in High Street, Bayswater.  You were employed as a fencing contractor by  Marcus Chandler, and had been in Mr Chandler's employ for about five years.  Mr Chandler lived and worked from his property in Nangana, which runs off Healesville-Koo Wee Rup Road.  You had driven yourself to work at the property six days a week for three and a half years prior to the incident, and were accustomed to starting work at 6.00am or 6.30am.

8That morning, you were driving from your address in Bayswater to Mr Chandler's property.  However, on 18 January 2017, you probationary P2 driver's licence had been cancelled and you had been disqualified from driving in Victoria as a result of a drug driving offence where you tested positive to cannabis on 26 May 2016 and in the interim you had not produced a Drug Driving Education Certificate.  Prior to that cancellation, you had been unlicensed since 5 November 2016.

9Mr Terkeurs, at the time of his death, was 60 years of age, and was the holder of a full and current Victorian driver's licence. He was driving from his home in Yellingbo to his workplace in Lilydale.

10The location of your offending was a section of Healesville-Koo Wee Rup Road between Kookaburra Lane and Smiths Road, which allows a single lane carriageway for each of north and southbound traffic.  It has a bitumen surface and was in a good state of repair at the time of the collision.  Single fog lines indicated the edge of each running lane, and the lanes were divided by two continuous white lines.  The section of road, when travelling southerly, which was the direction that you were travelling, is straight, leading to a gradual rise up the roadway, continuing into a gentle right hand bend before continuing into another straight.  The road is set in a rural area with a metre of grassy shoulder before a sleeper wall on the northbound side and 3 metre grass down grading to paddocks on the south side. 

11A witness was driving her car north from Cockatoo to Wandin.  At about 6.20am, she was approaching Yellingbo on Healesville-Koo Wee Rup Road, and had just come around a bend into a long straight section of the road, when she first saw a dark coloured ute towards the end of the straight in front of her.  For a split second, she saw a red car directly in front of the dark coloured ute, and the two cars then impacted head on in the northbound lane.

12The witness drew up to the collision point and stopped, calling 000, as others stopped to assist.  She did not see anything on the road or in the vicinity that may have caused the red ute to travel onto the wrong side of the road.

13Another witness had been travelling in the vehicle behind the first witness and had seen your red ute travelling on the wrong side of the road immediately prior to the collision.

14This witness approached your victim, Mr Terkeurs, who remained conscious and was not restrained or pinned by any deformation to the cabin of his ute.  Your victim remained in his car until he was transferred to hospital from the scene.  Mr Terkeurs told the second witness that he was travelling to work and then all of a sudden there was a car in front of him on his side of the road and he had nowhere to go. 

15The damage to your red ute was more extensive, such that the cabin deformation and damage kept you pinned in the wreck until you were extracted.  Your face was impaled into the steering wheel, with an observer noting that you were struggling to breathe.  You were later extricated using the jaws of life device.

16Police from the Yarra Ranges Highway Patrol attended at the scene and ambulance attendance was also arranged.

17The injuries suffered by Mr Terkeurs were initially not considered to be life-threatening and he was conveyed to the Royal Melbourne Hospital Emergency Department for treatment.  However, he unfortunately died three days later due to a large left middle cerebral artery territory ischemic stroke (which is the death of brain tissue in the left half of the brain due to reduced blood supply), due to a left internal carotid artery dissection that occurred as a result of your high speed motor vehicle collision.

18As a result of your collision, you suffered life-threatening injuries and you were air lifted to the Royal Melbourne Hospital for treatment.

19A sample of your blood was taken at the Royal Melbourne Hospital pursuant to the Road Safety Act 1986 at 10.35am on the day of the collision. That blood sample was later conveyed to the Victorian Institute of Forensic Medicine, where analysis indicated that your blood contained 0.30 milligrams per litre of the illicit drug of dependence, methamphetamine. You were ultimately transferred to the Caulfield Hospital Acquired Brain Injury Rehabilitation Unit, where you remained for over a year.

Investigation and collision reconstruction

20At the time of the collision, the road was dry, the weather was fine, visibility was good and traffic was light.  It was daylight and there were no obstructions on the carriageway.  The applicable speed limit was 100 kilometres per hour.  Police technicians examined both vehicles after the collision, and neither had any mechanical faults, failures or conditions which could have caused or contributed to the collision. 

21Detective Sergeant Dr Janelle Hardiman conducted a scene reconstruction of this collision within her expertise in collision reconstruction, and stated:

"It is my opinion that when the two vehicles collided, the red Holden utility was either wholly or almost wholly on the incorrect side of the road.  The black Ford utility was wholly in the northbound lane, but the driver may have steered left towards the road shoulder just before impact. …

When the two vehicles collided, the Holden utility was travelling faster than the black utility.  It is likely that the Ford utility was travelling less than 100 kilometres per hour and the red utility was travelling about 100 kilometres per hour."

22Dr Hardiman concluded that there was no physical evidence of either vehicle braking, such as skid marks.

23Police retrieved your mobile phone at the collision scene, and investigators conducted a download of all of the call and message information stored on the handset, as well as obtaining call charge records from your service provider.

24Leading Senior Constable Dawn Pascoe from the Major Collision Investigation Unit analysed the supplied records, and used the data to create a timeline chart for the period between 12.00am on Wednesday, 12 December 2018 and 6.20am on Thursday, 19 December 2018 for outgoing mobile phone activity.  The data demonstrated late night and very early morning mobile phone activity occurring on a regular basis for a period of just over seven days, as well as regular activity being recorded over extended periods of time each day.

25On 28 May 2021, Detective Leading Senior Constable Matthew Hunt created an extraction report from your mobile phone for the dates 5 December 2018 to 19 December 2018.  The following text messages, sent by you, were recovered:

18 DEC 18 – 12.04 am - Text: 'Sorry mate was nodding off on the way down and had to pull over'.

18 DEC 18 – 2.00 am - Text: 'Come one [sic] I'm leaving in 3 and a half hours' [referencing work]

18 DEC 18 – 3.28 pm - Text: 'Man I didn't even fucken sleep last night again but yeah I'll let you know'

18 DEC 18 – 3.32 pm - Text: 'No it's fine I'm just getting over not sleeping even when I try to'

Snapchat activity from 19 DEC 18 - 12.08 am – 12.24 am

19 DEC 18 – 12.45 am - Text: 'No shit I might pop in. I don't know I need sleep tho'

19 DEC 18 – 1.07 am - Text: 'Trying to decide if j get sleep or not'

19 Dec 18 – 1.09 am - Text: 'If I get sleep'

19 DEC 18 – 1.19 am - Text: 'I know I wanted to sleep tonight but I can't get to sleep'

19 DEC 18 – 1.26 am - Text: 'it suxks:'

19 DEC 18 – 1.27 am - Text: 'Last 2 nights'

19 DEC 18 – 1.37 am - Text: 'Just been way busy, tired and sore plus work.'

19 DEC 18 – 1.39 am - Text: '…I'm trying to decide if I want to sleep or not'

19 DEC 18 – 1.40am - Text: 'Have to leave in 4 hrs for work'

19 DEC 18 – 1.43 am - Text: 'No way on the couch for sure haha'

And here I interpolate that just that last text was sent only a matter of four and half hours before the accident.

19 DEC 18 – 5.37 am - Text: 'Hey bud, just wondering if I can meet ya At the job this morning?'

19 DEC 18 – 5.48 am - Text: 'Wait all good mate I'll see ya at 6.30'."

26Witness, Ryan Byrne, later told police that he allowed you to sleep overnight on his couch, and that you had an Ice pipe with you that evening.  You told Mr Byrne that you could not sleep, and Mr Byrne stated you were not going to get any sleep "smoking that stuff", which was a reference to methamphetamine.  Mr Byrne went to bed at about 12.30am-1.00am, and you were still awake at that time.

27Mr Byrne woke you up in the morning, and you indicated that you wanted to go to work, but Mr Byrne told you that you should not be driving because you had not had much sleep and because you had been smoking methamphetamine the night before and into the morning.  He told you to have a shower, but you were in a hurry to get to work and you left. 

28The collision occurred approximately 31 kilometres from Mr Byrne's Bayswater address.

29In the minutes before your fatal collision, you had drifted onto the wrong side of the road into the path of an oncoming vehicle, before swerving back onto the correct side of the road.

30This incident occurred at about 6.18am, and caused the other driver to need to swerve left off the road towards the gravel edge to get out of your way.  The witness expressed the opinion that if you had not managed to swerve back onto your side of the road as you went past him, you would have hit him head on.  This is approximately 4 kilometres from the subsequent collision site.

31Professor Matthew Naughton, respiratory and sleep disorders physician, was provided with witness statements and investigative documents by police, as well as Leading Senior Constable Pascoe's analysis table setting out your phone activity in the eight days prior to the incident.

32Professor Naughton opined that your sleep during the week prior to the collision was characterised by reduced quantity of sleep, in that you slept on average 4.8 hours per night; your sleep was fragmented, in that you experienced 2.5 interruptions per night; and you experienced reduced quality of sleep as a result of your consumption of illicit drugs, namely methamphetamine. 

33In Professor Naughton's expert view, poor sleep quality and quantity would cause poor judgement, a profound and overwhelming desire to sleep, delayed response times and a significantly increased risk of falling asleep at the wheel of a car.

34In Professor Naughton's view, you were suffering significant sleepiness due to reduced sleep quantity, or sleep deprivation in other words, and reduced quality of sleep, fragmented as demonstrated by your telephone usage and influenced by your consumption of illicit drugs of sufficient severity to contribute to the collision.  In Professor Naughton's view, the nature of the collision was characteristic of fatigue.

35Dr Angela Sungaila, a forensic physician at the Victorian Institute of Forensic Medicine, analysed the circumstances of the case and opined that, given the long half-life of methamphetamine, it can be inferred that the level of methamphetamine in your blood approximated 0.30 milligrams per litre at the time of your collision.

36Dr Sungaila provided the following opinion on the impact of methamphetamine on sleep/wake cycles:

"Methylamphetamine has profound effects on sleep/wake cycles … The rebound sleep after use of amphetamines is sudden and irresistible, often referred to as a 'crash'.

… The exhaustion or 'crash' has been compared to the effects of sedative drugs. The 'crash' after heavy stimulant use has been considered by some authors to be more of a threat to traffic safety compared to driving after an acute dose.

A 'crash' can occur in the presence of high blood levels of methylamphetamine. This is in situations where the use of methylamphetamine repeated over a period of time for the purpose of staying awake has so depleted the neurotransmitters responsible for alertness and cognitive functioning, that sleep becomes inevitable."

Effect on the victim

37As a result of your offending, you killed Peter Terkeurs, a 60 year old gentleman who was preparing to retire from work.

38I received a Victim Impact Statement in this case from Rebecca Bailey, Mr Terkeur’s daughter.  She spoke of the profound loss and grief that you have caused her.  It is difficult to do justice to the way in which that loss is articulated without reading directly from her statement, which is what I intend to do.

39Ms Bailey told me:

"My Dad Peter was an amazing person. At the young age of 23 he married my mother and took on her 4 children. Raising us to become respectful and wellrounded adults.

In 2014 my mother fell ill with Cancer. Peter was there making sure she had everything she needed. When she was placed into palliative care he was at the hospital every day by her side.

…

On the 15th of December 2018 Peter turned 60. He had one week of work left before he retired …

On the 19th December, four days after his 60th birthday, I received a phone call telling me my dad had been in a head on collision with another car that was driving on the wrong side of the road.

…

Since the death of my father in December 2018 I have been full of pure anger, frustration and pain. He was taken, not due to illness or something he had done, but by someone who could not abide by simple laws.

…

The last 3½ years have been the biggest challenge of my life, having to make decisions a daughter should never have to make. I had to watch my father dying for three days knowing there was nothing I could do about it. I had to watch my elderly grandmother fall apart with grief then and still to this day.

I cannot reminisce about the good times i had with Peter because as soon as I start, I'm in tears, the pain is still very relevant and i have not been able to move passed (sic) it.

…

Counselling has been offered, I thought that I could work though my emotions but as time goes by, I realise that I'm only getting angrier and more withdrawn from the world."

40Ms Bailey told me that, as a result of your offending, she has become the prime carer of her 89 year old grandmother as a result of her father's passing.  She does not see friends or go away on holidays anywhere, in case her grandmother needs her.

Plea of guilty, timing

41As I have mentioned, you were hospitalised for a significant period as a result of your collision.  You were charged in December 2019, a week short of 12 months after the incident.  The matter proceeded through contested committal in October 2020, involving the cross-examination of witnesses. 

42You were committed to stand trial and the matter was listed for trial commencing in May 2022.  However, it was adjourned at the application of defence counsel based upon issues with availability.  The matter was relisted for trial commencing October 2022, but in the fortnight prior to commencement of trial you indicated to the prosecution your intention to plead guilty to the major charge of culpable driving, and the matter resolved and proceeded as a plea in mitigation of penalty before me. 

43I accept and take into account that your pleas of guilty were entered at a late stage but prior to the commencement of trial, and you have saved the court, the witnesses and the community the time and expense of what could well have been an arduous trial.

44Not only is your plea of significance in its own right, but it is also of very considerable significance in the current era, where the effects of the COVID-19 pandemic continue to linger upon the listing of trials.  Moreover, I consider that your plea is indicative of an acceptance of responsibility for your offending and of your cooperation in the process. I mitigate sentence on each of these bases.

Personal circumstances

45As I have mentioned, at the time of your offending you were aged 24 and you are now 29 years of age.

46You are the second of four children born to your parents, and you have an older sister who is three years older than you, and two younger brothers who are two and four years younger than you.  You also have a maternal half-sister and an older paternal half-sister. 

47Your father had previously been a professional cyclist and otherwise worked as a handyman and painter, and your mother worked as a carer, cleaner and gardener. 

48Unfortunately, you have reported that your father was an alcoholic who was often aggressive and, as a result, you moved out of the family home when you were aged 13-14 and resided with a male schoolfriend and his family for two years, then another school friend and her family until you were aged 18.  Your parents separated at about the time you moved out of the family home. 

49Your father passed away from a brain aneurysm in November 2012, and you consider your relationship with your mother to be distant.  However, your mother is now your administrator and she visits you monthly, and has since you sustained the Acquired Brain Injury in your offending.

50You maintain a relationship with your siblings over social media. 

51You experienced significant difficulties at school in terms of attention, learning and behaviour.  In this case, I have the benefit of a psychological report prepared by Carla Ferrari, forensic psychologist, and she reports that you told her that you were unable to concentrate, could not settle in class, and were often reprimanded for hyperactive behaviour including talking, and an inability to remain seated.  You would often ask to leave the classroom.

52You were able to make friends easily, but you associated with the wrong crowd during secondary school and this led to truanting and smoking.  You were expelled twice.  You then attended an alternative school in Bayswater, eventually leaving school after Year 10.  You commenced a roof tiling apprenticeship.  However, you fell off a roof and fractured your collarbone and shoulder, as well as hitting your head.  You did not attend for medical treatment after this injury.

53You then worked in roof tiling for five years before commencing as a sub-contractor in the field of fencing. 

54You would generally work as a fencer six days per week, averaging 10-12 hours a day.  You were working in this position at the time of your offending.  However, you have been unable to work since due to your Acquired Brain Injury and the associated impact on your mental and cognitive health and functioning.

55Until you were remanded in connection with your plea, you were supported by TAC payments.

56You entered a relationship with a woman from the age of 17-23, and you have two children now aged 10 and 9.  This relationship ended approximately six years ago. 

57You began using cannabis at the age of 12 and, by the age of 15, you were smoking approximately 3 grams daily.  You also consumed alcohol from the age of 14 on weekends, and as you moved into fencing this became a daily habit.  Alcohol has been problematic for you at times, and you have been banned from several pubs due to fights while intoxicated. 

58You report that you commenced using methamphetamine in the form of Ice approximately 12 months prior to this incident.  You have been unable to confirm whether you were using daily due to you having little recollection of the period prior to the incident.  However, you have told Ms Ferrari that you would use at least half a gram every few days.

59You have experimented with GHB on five occasions, and you have also experimented with mushrooms, LSD and MDMA.

60Since being charged with this offending, you have continued to use 2-3 grams per week of cannabis and half a gram of methamphetamine per week.  You have in the past attempted residential rehabilitation.  However, you only stayed one month as you were unable to comply with the non-smoking requirement of the facility.

61I have summarised the circumstances which led to your disqualification from driving at the time of your offending.  Additionally, in May 2018, you were convicted of the charge of unlicensed driving in the Ringwood Magistrates' Court and you were fined with a further suspension of licence. 

62Since committing this offence you have been convicted of charges of fail to answer bail in May 2021 and numerous further charges of unlicensed driving, driving whilst authorisation suspended, and other driving offences in September 2022.  I was told that your commission of these offences predates the offence before me. I have not taken your subsequent history into account in evaluating your character prior to the offence. 

63Dr Matt Treeby, clinical neuropsychologist and clinical psychologist, assessed your presentation and history. 

64I understand that as a result of your offending, you caused yourself significant brain injury, and upon first admission to hospital you were observed to have multiple abnormalities including prominent bifrontal haemorrhagic contusions, right parietal haemorrhagic contusion, and parafalcine subdural haematoma.  You also sustained displaced ribs, herpetic lacerations, facial fractures, pneumothorax, external clavicle widening, lumbar spinal fractures, sacral and pelvic fractures, multiple bilateral lower limb fractures, common femoral artery thrombus, iliac fossa seroma, ventilator associated pneumonia, deranged liver function tests, and a sacral pressure wound.

65MRI brain scans at the time showed injury.  You sustained post-traumatic amnesia, which continued to fluctuate over several months.  You developed an organic psychosis in May 2019.  The treatment for your complicated traumatic brain injury could, in Dr Treeby's view, be classified as severe.  You have received outpatient occupational therapy, physiotherapy, psychology and exercise physiology from the time of your discharge, as well as ongoing psychiatric monitoring. 

66When asked how you felt about what Dr Treeby called the "accident", you told him "I feel pretty terrible.  I don't know how it all happened.  I just can't believe the other guy lost his life".

67You told Dr Treeby that you have experienced memory difficulty since the time of the incident, and you find it hard to concentrate and focus your attention. 

68In Dr Treeby's view, your premorbid intellectual function was estimated to have fallen in the low average range.  Now, your overall level of intellectual ability was well-below expectation and fell in the extremely low to borderline range, relative to your similar aged peers.

69Your verbal comprehension skills were limited and fell overall in the borderline range, and the same characterisation attached to your expressive vocabulary and general knowledge store.  Your abstract reasoning skills were severely impaired and fell in the extremely low range. 

70In Dr Treeby's view, due to your brain injury, you now struggle with learning and remembering both verbal and visual information, and you suffer from markedly slowed information processing speed.  You also have difficulties with generating and expressing thoughts.  You are likely to encounter significant difficulties when you are required to effectively resolve conflict, negotiate and communicate effectively with others.

71In Dr Treeby's view, you will experience lifelong disability as a result of your Acquired Brain Injury and you will require some degree of permanent multidisciplinary assistance and support to ensure that your functioning is optimised.  You will likely require permanent accommodation in a supported residential setting where you receive assistance with complex activities of daily living as required.  You have been approved for NDIS funding and have received this support for the 18 months prior to your plea, and it is hoped and expected that you will again be supported with NDIS funding at the conclusion of the sentence that I am imposing today.

72These cognitive impairments can be regarded as permanent.  In Dr Treeby's view, for your own safety and the safety of others, it is strongly recommended that you do not resume driving at any stage in the future, and that a medical report notification is made to Vic Roads.

73Ms Ferrari administered relevant empirical testing as to your mental health presentation and noted that, although currently sub-threshold, there is evidence of Post-Traumatic Stress Disorder stemming from your offending, which appears to be stabilised by your medication regime, namely Brexpriprazole 2 milligrams per day, Valproate 200 milligrams, and Sertraline 100 milligrams per day. 

74Ms Ferrari noted in you, no evidence of acute perceptual disturbances or other psychotic phenomena; observed that your cognitive functioning appeared to be impaired which, in her view, was consistent with your previous neuropsychological testing and Acquired Brain Injury, and opined that you function below average range and that there was evidence of memory impairment also identified.  In her view, you displayed fair insight into your mental health, substance use, and a link to your offending behaviour notwithstanding that you continued to use substances.

75You described to her neurovegetative disturbances associated with depression, including poor sleep, appetite, concentration, low energy and motivation and anhedonia.  You also experience ongoing trauma symptoms, although these appear to have subsided to a degree due to medication.  You denied, in her conference with you, suicidal ideation, plan or intent.

76Ms Ferrari notes that you experience depression as a result of your Acquired Brain Injury and have a cannabis use disorder, a stimulant use disorder, and untreated Attention Deficit Hyperactivity Disorder symptoms from childhood.

77In Ms Ferrari's view, you are a low to moderate risk of future re-offending "particularly if he is under the influence of alcohol or substances".  In her view, you present with several significant risk factors including a prior history of similar criminal offending (driving related); untreated mental health conditions; and a severe Acquired Brain Injury which exacerbates your emotional regulation/behaviour/cognitive functioning; a pattern of chronic substance abuse from age 13 which has continued post-offending albeit in a lesser frequency and quantity; limited supports outside your immediate family; limited involvement in leisure activities; reduced ability to work as a result of your Acquired Brain Injury; and there are emotional and personal factors inherent in your psychiatric condition which elevate your risk profile (impulsivity, risk taking behaviour, poor problem solving, and self-regulation issues).

78Ms Ferrari observes that you remain compliant with your medication regime, and you recognise the benefit that medication has had in stabilising your mental state.  You were also willing to engage with treatment and supervision conditions, and you would benefit from regular psychological interventions to address your mental health issues, improve your functioning and quality of life, as well as reducing your reliance on substances to cope. 

79With respect to the impact of your Acquired Brain Injury on the conditions of serving your sentence in custody, I have had the benefit of receiving extracts from the Sentence Management Manual, and Deputy Commissioner's Instruction from Corrections Victoria as to facilities and programs available for prisoners with a disability.  I share the view of defence counsel that these documents do not particularly assist me to infer, on a day to day basis, how any difficulties that you may experience will be managed.  However, I am satisfied that there are some processes in place.

80The policy documents reveal that the Sentence Management Unit of Corrections Victoria is responsible for determining a prisoner's placement within the prison system and, amongst the factors contributing to the decision as to where to accommodate a prisoner, the unit is obliged to take into account vulnerabilities or needs, including medical or psychiatric conditions, physical limitations or disability.  A prisoner who has a physical and/or sensory disability must be classified to a location where the disability can be managed appropriately.  Prisoners with a cognitive impairment are not excluded from having a minimum security rating or placement by virtue of their disability and can be classified to any of the current minimum security prisons (provided they meet the eligibility criteria for a minimum security rating).  There are standards for public prisoners in managing prisoners with a disability and a variety of supports, treatments and programs are available to prisoners with a disability.  I am told that prisoners with a disability are also provided with a range of employment opportunities.

81Your defence counsel has confirmed that whilst you have been on remand for this offence you were assaulted by another prisoner and you were not sure why.  You may need to learn to deal with a hostile environment.  However, there are no structural barriers to accessing programs.

82In my view, as pressed by your counsel and accepted by the learned prosecutors, the injuries suffered by you as a result of your incident, including your Acquired Brain Injury, are properly regarded as constituting some punishment for your offending.

83You have suffered a severe traumatic brain injury in your collision.  The impacts are permanent.  I have summarised Dr Treeby's analysis of the difficulties that you have experienced in the years following the collision, and I am prepared to mitigate sentence significantly on the basis of the injury that you have caused yourself as amounting to extra curial punishment.

84I also find that imprisonment will weigh more heavily upon you by virtue of your Acquired Brain Injury than it would on a prisoner who does not suffer from the same impairment.  Given that you are at risk of harm, manipulation, and influence from others within the prison system, and that there is the clear and significant potential for you to experience significant mood fluctuations in the prison environment.  I therefore moderate sentence significantly on account of this factor in accordance with the fifth limb of Verdins.[1]

[1]R v Daetz (2003) 139 A Crim R 398, [410]-[411]; cited with approval by Maxwell P and Neave JA in Chaplain v The Queen [2010] VSCA 145, [13]; R v Verdins (2007) 16 VR 269

85I note that you have expressed your remorse to Dr Treeby in his analysis, and I find that your plea is accompanied by some remorse and I mitigate sentence on this basis as well.

Objective seriousness of the offending, moral culpability

86You have pleaded guilty to one charge of culpable driving causing death.  Your very significant negligence lies in you driving to work on the morning of 19 December 2018 whilst you were fatigued to such an extent that you knew, or ought to have known, that there was an appreciable risk of you falling asleep while driving or of losing control of the vehicle.  Your fatigue was as a consequence of the combination of your methamphetamine use over the week prior to the incident, and its effect on the fragmentation of your sleep, evidenced by your persistent late bedtimes and early rises. On the night before the incident, you had consumed methamphetamine and had had no more than four hours sleep.

87Your offending occurred during a period of disqualification.  Your driving was erratic in the minutes prior to your collision.  Though you were travelling within the speed limit, you were driving in an area that you knew to have a high speed limit, and you continued to drive, even though you had drifted onto the wrong side of the road in the minutes prior to your collision.  You had been warned not to drive on the morning of the collision by Mr Byrne because of your impaired state, in as many words.  However, you ignored this warning and also the warning imposed by you straying onto the wrong side of the road in the minutes prior to killing the victim. 

88I accept the prosecution submission that the likely consequences of falling asleep whilst driving a car at 100 kilometres per hour are obvious, and had been acutely brought to your attention in the minutes prior to the collision with your near miss.

89As a result of your gross negligence, you killed a much loved gentleman, reaching a point in the prime of his life where he was getting ready to retire.

90Though you are remorseful for the effect of your behaviour, you have continued to consume the same drug which impaired you in this way in the lead-up to this court hearing.

91I am well-familiar with the statements of principle in cases like yours relied upon by the prosecution and accepted by your counsel.

92In R v Franklin,[2] Warren CJ stated:

"Cases of culpable driving continue to come too frequently before the courts. What is so striking about these cases is that one moment in time can have such devastating consequences."

[2][2009] VSCA 77, [12]

93I accept your counsel's submission that some significant aggravating factors, which unfortunately have appeared in other cases, are absent in this case.  In my view, this is a serious example of the offence of culpable driving, though not at the higher end of seriousness, and your moral culpability lying in your utter indifference to the safety of others is high.

Purposes of sentencing

94As the Court of Appeal has observed, one of the reasons for community revulsion for this kind of offending is "a general recognition of the needless waste of human life together with sorrow and distress that is usually [its] concomitant".[3]

[3]R v Penn, cited in R v Tawle(supra); R v Tawle [2009] VSCA 280, [76]-[77].

95Denunciation and general deterrence must be at the forefront of the sentencing synthesis.[4] 

[4]DPP v Gany (2006) 163 A Crim R 322, 333-4.

96Focusing upon general deterrence for a moment – this means that I am required to send a message to the community generally to deter others from engaging in this type of behaviour.  I must denounce your behaviour and punish you for your offending.  I must also impose a sentence that specifically deters you from acts of further dangerous driving.

97This is your first period in custody, and I trust and infer that it will be of salutary effect upon you.  You were only 24 years of age at the time of offending, an adult, but still young, and I am reminded of the need to foster and encourage young offenders by allowing opportunities for rehabilitation as part of the sentencing process.

98I was told that the period in excess of five years since the commission of the offence has weighed on your mind, and has caused you anxiety.

99I am cautious about your prospects for rehabilitation given your continued use of drugs, which place you at risk of other offending, even if your physical disabilities and the practical support you receive may minimise the risk of you getting behind the wheel of another car for a significant period.  I intend to impose a sentence that supports you on your rehabilitative journey, and I share the view expressed in particular by Dr Treeby that case management support and ongoing monitoring with respect to your substance use is strongly recommended.  If you are able to abstain from the use of drugs, your risks of future re-offending are significantly moderated.

Sentencing submissions and relevant sentencing principles

100The offence of culpable driving causing death is a Category 2 offence under the Sentencing Act 1991 (Vic). A term of imprisonment must be imposed upon you unless one of the exceptions in s5(2H)(a) to (e) can be established. This is a moot point in your circumstances as, were I to undertake an analysis of whether you might technically fall within one of the statutory exceptions to the obligation, and you did, I would still impose a term of imprisonment.

101The standard sentencing regime applies in your case to the offence of culpable driving causing death, and the standard sentence for this offence is eight years' imprisonment.

102The standard sentence for an offence is the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.  In considering the impact of standard sentencing on your case, I have considered the decisions, inter alia, of Brown v R,[5] and DPP v Drake.[6]  In particular, when sentencing for a standard sentence offence, I must take the standard sentence into account as one of the factors relevant to sentencing.  This requirement, therefore, is to be treated as a legislative guidepost, having the same function as the maximum penalty.  It does not allow the standard sentence to be viewed as a starting point.  It does not affect the established "instinctive synthesis" approach to sentencing, nor does it require or permit "two‑stage sentencing" and does not otherwise affect the matters which I may or must take into account.

[5][2019] VSCA 286.

[6][2019] VSCA 293.

103Pursuant to s5A(2)(b) of the Sentencing Act, having regard to current sentencing standards in relation to the standard sentence offences, I can only pay regard to sentences previously imposed where culpable driving was the subject of a standard sentence scheme. I am of course familiar with those sentencing standards, and have read the recent cases drawn to my attention by your counsel in his helpful, and very detailed table.  

104After careful reflection I will indicate that, whilst I agree with the prosecution contention as to the characterisation of the seriousness of this example of that offence, the sentence that I am about to impose in respect of Charge 1 is less the standard sentence. I have had regard to the application of s11A of the Sentencing Act relating to the calculation of a minimum period of parole eligibility.

105As I consider the behaviour the subject of your related summary offences aggravates your culpable driving, I have ensured concurrency of sentences to avoid the impression of double punishment.

106It was appropriately conceded by your counsel that I am confined to a sentence involving a head sentence and minimum period before parole eligibility.

107Culpable driving causing death is a "serious motor vehicle offence" under s87P of the Sentencing Act, and I must disqualify you from driving for a period of at least 24 months.  I intend to disqualify you for a period well exceeding that period as part of your sentence, such is my concern about the linkage between your usage of drugs and your offending, your driving history, the fact of your disqualification from driving at the time of your offending, and the seriousness of your conduct. Pursuant to s89C(2) of that Act, I find that your offence of culpable driving was committed whilst you were under the influence of a drug, which contributed to the offending.

108As I have mentioned, your plea of guilty was entered at a time when the court system in Victoria was experiencing significant impediments as a result of the unfortunate effects of the COVID‑19 pandemic.  There was a significant utilitarian benefit in you entering a plea of guilty to the proceeding charge.[7]

[7]Worboyes v R [2020] VSCA 169

Sentence

109I now impose the following sentences:

110On Charge 1, of culpable driving causing death, you are convicted and sentenced to six years and eight months' imprisonment; all licenses are cancelled and you are disqualified from driving for a period of ten years from today. On the related summary offence of driving whilst suspended, you are convicted and sentenced to nine months' imprisonment. On the charge of driving whilst the prescribed concentration of drugs is present in the blood, you are convicted and discharged.

111This is a total effective sentence of six years and eight months' imprisonment, and I order that you serve a minimum of four years and three months before parole eligibility.

112I will reckon as served 110 days pre-sentence detention.

113Were it not for your plea of guilty in this case, had you proceeded to jury trial on the charge of culpable driving but been found guilty, I would have imposed a sentence of seven years and eight months' imprisonment with an order for parole eligibility.

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