Director of Public Prosecutions v Panourakis

[2020] VCC 1798

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02613
Indictment No. J11301446.2

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANASTASIA STACEY PANOURAKIS

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2020
DATE OF SENTENCE:	10 November 2020
CASE MAY BE CITED AS:	DPP v Panourakis
MEDIUM NEUTRAL CITATION:	[2020] VCC 1798

REASONS FOR SENTENCE
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Subject: failing to stop after motor vehicle accident; Fatality of other driver who had got out of car; Requisite state of mind arose further down the road; 34 years of age; Multiple past licence orders; suspended driver at time; no criminal history; early plea; remorse; increased custodial burden for variety of reasons including separation from 2 ½ year old child; evidence from psychologist as to causal link between PTSD and conduct; Verdins.

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton	Office of Public Prosecutions
For the Accused	Mr D. Dann QC	Tony Hargreaves & Partners Lawyers

HIS HONOUR:

1Anastasia Stacey Panourakis, you have pleaded guilty to a single charge of failing to stop after an accident.  That offence carries a 10 year maximum term of imprisonment.  In addition, you have pleaded guilty to a single related summary offence of driving whilst suspended, which carries a two year maximum prison term.

2The offending occurred on 14 December 2017.

3You were born on 21 November 1985 so will be turning 35 years of age in a couple of weeks.  You were 32 at the time of the offences.  You have a short but relevant driving record.  There is no past criminal offending at all.

4The matter was opened to me last Friday, 6 November, by the prosecutor,
Mr Hutton, in accordance with a written summary dated 16 September 2020.  That document was marked as Exhibit A.  Your counsel, Mr Dann, told me this was an agreed summary.  That summary references by footnote the various statements within the depositional material.

5Consistent with my usual practice, I had read the full depositional materials before coming onto the Bench and made that clear to the parties.  In the course of the plea, Mr Dann, saw fit to take me to a number of the statements and even to what some of the witnesses had said at the committal hearing.  For instance, I was taken in detail to the evidence touching upon how you appeared when the police attended at your parent’s house as well as when the ambulance officer attended.  Also the observations of Mr Bannister at the collision scene.  There was some discussion about aspects of some of those and other statements, and also some of the evidence given at the committal.  Your counsel was also relying on the two calls made by you which were referred to in the letters from your mother and also from your husband.  I asked on Friday as to the timing of those calls, there was some discussion on that topic and I was referred to the call charge record chart at page 174.  Though I had read the depositional material, I had obviously not descended to the details of that chart.  Once it was brought to my attention, I raised aspects of it with your counsel on Friday and again a short time ago today.

6I see no great need to set out all the facts as I will sentence in accordance with the agreed summary and these other matters flagged in discussion or incorporated by that summary.  As a result, I will say something only very briefly as to the facts.

7As is acknowledged, you had no business being on the road at all on the
14 December 2017.  You chose to drive on that day.  Your licence had been suspended for a six month period taking effect from 27 August 2017.  That was owing to an excessive speed infringement notice issued for travelling in excess of 35 kph but less than 40 kilometres over the limit on 29 July 2017.

8If I may jump ahead, I have no doubt at all that this foolish decision to drive whilst suspended was connected up to your far worse decision to leave the scene in the way described in the summary.  To not stop.  I know there are other reasons advanced in the defence materials and submissions, and I will come back to discuss this topic in more detail later in my reasons.

9You should not have been behind the wheel of a car on 14 December 2017.  That must be a terribly bitter pill for the deceased’s family to swallow, for had you not been, Mr Fata would not have died on that day.  However, I want to make it very clear that though your car was involved in an accident on that day and you should not have been behind the wheel, you do not in any way fall to be sentenced for the actual driving or any culpability arising from the driving other than the decision not to stop.  I am dealing with you for an offence of failing to stop, not with culpable driving causing death or dangerous driving causing death.  That is critical to my task.  It must not be overlooked.  It will be difficult for the family of Mr Fata not to overlook this distinction but as I say, it is critical to my task.  As Coghlan AJA said in the case of Mohamed:

'It goes without saying that because there is nothing in this sentence which goes to the driving or the actual cause of death, cases such as this are very unsatisfactory from the point of view of victims, but the law can only punish the conduct the particular offence prohibits or otherwise makes criminal'.[1]

[1]R v Mohamed [2009] VSCA 158 (“Mohamed”)

10Well that applies here.  There is no component of my sentence dealing with you for causing Mr Fata’s death.

11Vincenzo Fata was 77 years of age and had left his home on the afternoon of 14 December 2017.  The accident occurred at the intersection of Ferntree Gully Road and Huntingdale Road.  Ferntree Gully Road was a 70km per hour, six lane road with three lanes in each direction as well as right hand turning lanes at that intersection.  Mr Fata had stopped his car at the intersection.  You stopped behind his car.  You were both, as I understand it, in the middle through lane.

12We will never know why Mr Fata got out of his vehicle at that red light and turned his attention to your car.  He walked to the back of his vehicle and was seen to be pointing at your car.  He had his hazard lights on.  There were differing observations as to how he appeared as well as differing accounts of the actual mechanism of the collision.  That is perfectly normal.  It would be far stranger if there was uniformity of accounts.  Witnesses have differing physical positions, differing abilities to perceive and, for that matter, to recall. One motorist at the scene but on the other side of the road (Mr Bannister) made observations as he started to drive off.  He thought it might have been a ‘nose to tail’ or a road rage incident as he thought the man who was out of the car looked aggressive and threatening in the way he was pointing.  In that, he was a lone voice.  Others had formed no such impression at all including one driver positioned immediately behind your car.  However, clearly Mr Fata was outside his car.

13As the lights facing you turned green, you drove to the right of Mr Fata’s car and accelerated at the same time as he had moved up to the right of his vehicle and into your path. You struck him with your car, he was carried a distance before being deposited onto the road surface, coming to rest in a prone position in the right-hand turn lane.  You continued driving through the intersection and rapidly away from this scene.  The movement of your car then, and later, is described at paragraph 16 and 20.

14Another motorist Mr Viswanathan pursued you and caught up with you at the intersection with Dandenong Road.  You were stationary.  He got out of his car and came up to your car and said; 'You hit him, he’s dying, how could you do that?'

15You replied; 'I’m coming back'.  You also said you were pregnant and stressed and something about being scared as to Mr Fata’s angry manner of approaching your car.

16Despite saying you were coming back, you did not.  You drove off without making any effort to return.  That is the point of the commission of the offence.

17It is accepted by the Crown that this was the stage when you had the requisite knowledge of the seriousness of the accident.  That it was at that stage that you knew or ought to have known that the accident had caused serious injury to
Mr Fata.

18There was discussion on the plea as to some of your later conduct.  Your counsel took me to some.  So did the prosecutor.  Conduct occurring thereafter can in no way aggravate the actual offence itself.  The offence was complete upon your failing to stop at that point.  See the case of Chhatre[2].  Conduct after the event might be relevant to aspects of remorse or to be relied upon to extrapolate from that later conduct your likely mindset or capacity at an earlier point.  Conduct after the event, for instance those cases where there is conduct taken which produces a long interval between the accident and the discovery of the offender may also have a role to play in increasing the impact upon the victims.  See the case of Mohamed.

[2]DPP v Chhartre [2014] VSCA 280 at [17]

19You accelerated away, weaving in and out of traffic and swerving from the middle lane across into Atkinson Street.

20Meanwhile others came to the aid of Mr Fata.  An ambulance attended and despite their best efforts, he died en route to the hospital.

21Your registration details had been obtained and provided on to the police.  You did not go to your nearby home in Clayton.  Instead you went to your father’s home in Black Rock and police found you there at 3.09 pm.

22The accident had occurred at around 1.30 pm, thereabouts.  That seems apparent given the materials before me, including the sending of a message by Mr Loh at 1:30pm and the evidence from various police as to the point in time when they were first on notice of the event.  The accounts of Egan (1:36 pm) and Fryters (1:35 pm.)

23When police attended at your parent’s home you appeared physically unwell.  Your husband was also present.  You told family members you should not have been driving. You were arrested and cautioned.  Owing to your pregnancy and concern for your health, you were taken to the Sandringham Hospital by ambulance but not admitted.

24A preliminary breath test and blood sample disclosed that there was no alcohol or illegal drugs in your system.

25Following discharge from the hospital, you were taken to the police station.  As was your right, you no commented to any questions dealing with the collision or leaving the scene but admitted that you had been in possession of the Mazda and had driven it in the vicinity of your home that day.

26The reconstruction evidence is set out at paragraph [29]. There is no evidence that there had been contact between the two cars. You were travelling at less than 25 kph at the point of contact in the third of the four lanes and were steering to the right.

27The chronology is set out in the agreed summary.  Other charges had been laid including dangerous driving causing death and fail to render assistance.  A trial date had been obtained for March of this year.  The matter settled on the trial date and you were arraigned a few days later.  The case was adjourned for plea to 8 September.  There was a bit of a hiccup on that day as to the basis of the charge.  That was sorted out and the plea was conducted before me last Friday.  I will say more about the stage of the plea when I come to deal with the value of your guilty plea.  Let me first though deal with the victim impact materials placed before me.

Victim impact

28There are a number of victim impact statements.  They have been read aloud.  They made for very sad reading and even sadder listening.  For me and I am sure for you.  Mr Fata’s daughter Jo read her mother’s impact statement as well as her sister Roberta’s impact statement.  She also read her own.  She represented her family with dignity.  So too Mr Fata’s son Luigi, who read his own impact statement.  It is no easy business reading these statements.

29I have already mentioned the significant limitations that arise courtesy of the charge that I am actually dealing with.  It has nothing to do with the causing of death.  It is a charge of fail to stop.  I must sentence only for that matter as well as the drive whilst suspended.  I must only take into account the relevant impact and in doing so, of course I must act free from emotion.  I mentioned the case of Mohamed which gives guidance on the topic at paragraphs 17 and 18. The case of Harding[3] gave earlier similarly cautionary guidance.

[3]R v Harding [2008] VSCA 124

30The death of Vincenzo Fata has led to sorrow across the board for his loved ones.  It has been a devastating loss for his wife of 50 years and for his children.  The loss is just incalculable.  I must take into account only the impact of your crime.  Your crime is not the killing of Mr Fata either by way of culpable driving or dangerous driving.  No doubt his grieving family members blame you for his death.  That is perfectly understandable by the way, but what I must not do is sentence you for any role in that death.  I am not here to punish you for your manner of driving either at the particular intersection where he was struck, or before or after, other than in one particular.  That is failing to stop in the manner particularised.  That is the crime I am dealing with you for and I am sure this will be terribly difficult for the grieving family to understand.  They mourn a departed husband or father.  The impacts run deep but it is not the impact that I can have regard to.  He was a much loved, much valued family member.  His death has been both sudden and shocking.  He is greatly missed.  Part of the impact will be to know that the motorist who struck their loved one left him at the scene and did not even return when told of the seriousness of the accident.  That is the crime that I am dealing with but it would be almost superhuman for a grieving relative to distil from their entirely understandable grief and distress that particular component.  His son Luigi comments on that aspect.  That someone could leave his father on the side of the road, how could anyone do that?  Is that what we have become as people?  So does his daughter Jo, who ponders how any human could have such a disregard for another human.  It has haunted her and caused her to lose faith in human beings.

31To do what you did can shake a person’s faith in human nature and has done so here.  So it is not just the death and the loss and the grief.  Those things are natural.  A road fatality is always a shocking and sudden blow for those who are left behind.  I am not dealing with the loss or the impacts arising from it.  There is the jarring note that the person who struck the loved one did not do the decent thing and stop.  I see no real purpose in setting out the impact statements in detail.  I have read them again since they were read before me the other day, I do not doubt them for one moment but there is that very important aspect that I have mentioned.  I am not dealing with the impact arising from Mr Fata’s death in the way that I would be if I was sentencing you for dangerous driving causing death or culpable driving.  I take into account the impact arising from the crime I am dealing with you for.

In Mitigation

32Mr Dann conducted the plea on your behalf.

33He had prepared detailed written submissions on the plea dated
14 October 2020 which were marked as Exhibit 1.  He took me to your family and personal background as well as to your relationship and work history.

34Your counsel placed before me a large range of written materials including a report form a psychologist Mr Newton, a report from your GP Dr Kotsirilos as well as two reports from a psychotherapist Frank Zoumboulis.  There were a large number of character references including references from your mother, father, sister, husband, aunt, a school friend and work colleagues of you and your father.  Also your own letter of apology to the court and a letter of apology to the grieving family of Mr Fata.  Mr Dann made submissions as to the circumstances and level of gravity of the offence.

35He relied principally upon the following matters in mitigation;

·The guilty plea;

·The early stage of that plea;

·The presence of remorse;

·The limited prior history and your favourable prospects of rehabilitation;

·The delay in the finalisation of this matter and the impact upon you of that delay and your efforts at rehabilitation in the meantime; and

·An increased burden if sent to prison arising from:

i.the prison authorities’ response to the COVID-19 virus,

ii.being separated from your young child,

iii.as well as the fifth limb from the case of R v Verdins[4].

On that mental health issue, he argued that three additional limbs from the case of Verdins applied, being the first, the third and the fourth limbs.

[4] [2007] VSCA 102; 16 VR 269; 169 A Crim R 581

36Earlier today another matter was added to that long list of matters in mitigation, that is the impact of the mandatory licence order that arises in this setting where I am required to make an order for a period of at least four years and there evidently is no power to backdate such an order, that has been discerned by either of the parties before me.  Judges have done it in the past, it would seem, but they have hunted and no one can find any statutory basis to backdate such an order.  That is relied upon by Mr Dann in this sense. You were suspended at the time of this act of driving. That suspension ended.  At the time of the filing hearing you were admitted to bail and a condition of bail, and one that you have been the subject of ever since 18 May 2018, that you not drive.  It follows then that there is a significant period during which you have not been able to drive, the subject of that bail condition and which cannot be given credit in relation to the order that I must make.  It is a setting where I do not have the power that exists in other provisions.  For instance, in the immediate suspension provisions of the Road Safety Act 1986.  So Mr Dann asks me then to take that aspect also into account as another matter in mitigation.

37Whilst accepting that the fail to stop was very serious offending and one where usually a prison term was imposed, he submitted that there were some matters of aggravation absent here and some matters that made this a very unusual case.  Though he submitted that a prison term was the usual outcome, he said there were also examples of offenders dealt with by way of a non-custodial disposition.  He referred for instance to the case of Chhatre[5].  He focussed to some extent on the case of Mohamed[6], not so much for the disposition which was a custodial one, but rather as to the statements made in that case as to the impact of that man’s post-traumatic stress disorder and the role that had in the reduction of his culpability.

[5] Ibid

[6] Ibid

38Mr Dann argued that a stand-alone community corrections order was open here or failing that a term of imprisonment in combination with your release onto a suitably conditioned community corrections order down the track.  A prison term with a non-parole period was the least favoured option.

Prosecution

39The prosecutor, Mr Hutton had prepared written sentencing submissions - I am not sure I marked them actually.  I mark them now as Exhibit C.  He also made oral submissions late on Friday.  Together they dealt with some of the matters raised by your own counsel in mitigation and some of the matters that the court must have regard to including the relevant purposes of sentencing and current sentencing practices.  There was reference to statements made by the Court of Appeal in the case of Bankal[7].

[7]Bankal v The Queen [2019] VSCA 171

40The prosecutor on behalf of the Director of Public Prosecutions of this State challenged the application of the first, third and fourth limbs of the case of Verdins.  They submitted that you had well and truly left the vicinity of the collision scene, so that you were well away from the person who was said by you to be threatening.  You were approached some 700 metres or so up the road and at that stage you were safe.  You were well removed from the immediate scene and were told of the seriousness of the event at that point.  You told that motorist that you were coming back.  Rather than do that, you just drove away.  The prosecutor submitted you did not go to your own home which was in nearby Clayton, nor to your husband’s business which was nearby in Oakleigh.  Nor was any call made to the police.  Though it had been suggested by your counsel that the police were always going to be called, the prosecutor submitted that the fact is, they were not and they turned up at your father’s house at 3.09 pm.  I was taken to the phone chart and again there has been some discussion about that late on Friday and again earlier today.

41The Crown argued there was no reduction in your moral culpability here at all.  They accepted some application of the fifth limb of increased burden from the case of R v Verdins as well as a heightened burden arising not just from
COVID-19 but also from your own personal circumstances of being a mother with a toddler.

42They submitted this was a serious instance of failing to stop and that neither a standalone community corrections order or for that matter, one made in combination with a term of imprisonment was open here.

43The Director of Public Prosecutions of this State submitted that a prison term was required and one with a head sentence and a non-parole period.

44Whilst of course I have regard to all submissions placed before me, I am not bound by that submission, no more than I am bound by any of your own counsel’s submissions as to penalty or generally.  The parties were addressing arguments to me.  They do not bind me.

45I have to exercise my own sentencing discretion.

Background

46I turn now then to your background.  Your personal history is detailed in the written submissions.  It is set out in greater depth still in the report of Mr Newton.

47I have no reason not to accept the family background and I see no need to set it all out in these my reasons, which will be quite long enough.  I set out only some brief detail then.

48You were born on 21 November 1985 and will be turning 35 in a couple of weeks.  Your parents were Greek immigrants.  They provided a comfortable and stable home environment for you and your two siblings.  Your parents were both accountants.  It was a close-knit family.  You attended Mentone Grammar throughout your schooling.  You were a good student but did not get the marks you thought you would in your VCE year.  All in all then, it was a pretty uneventful childhood with no great issues.  In your teens, there was some rebelliousness and some experimentation with drugs but nothing too disastrous at that point.  It may have had some role in reduced attendances and effort toward the end of your schooling and may explain why you fell short of your expected marks.

49You had some part time work as a teenager and went on to work in retail for a number of years.  Your work history is set out on p.2 of the submissions.  You studied a naturopathy degree which took quite some time to complete.  There were some changes of course along the way but ultimately you obtained that health sciences degree in 2015.  You have worked as a naturopath first in a clinic and then from home.

50One of the reasons for the long delay in completing your tertiary study was the fact of two sexual assaults which are described in Mr Newton’s report and which I will not further describe.  They took place when you were 21 or 22 and then later at around 24 and they took a toll on you and led on to some treatment at the hands of various mental health professionals at the time.  You have in fact been seeing Mr Zoumboulis for many years.  I have his two reports marked as Exhibit 4.

51So as pleasing as your background had been, there were some distressing life experiences along the way.  The issue with drugs had spanned the period from your late teens until your mid 20’s.  It has not been an issue at all for close to a decade.  Drug use was implicated in each of the sexual assaults.  I was also told of a few other incidents.  An assault back in 2009 and an overdose leading to hospital admission in that same year.  Mr Newton says that contemporary reports suggest the motivation, in terms of the overdose, was more focussed on obtaining attention.  Mr Newton describes a significant history of psychological disturbance.  Your Doctor describes you in these terms,

'She was an extremely healthy happy vibrant woman… she has always been a relatively relaxed happy person and there were no major mental health issues raised during these early consultations'.

52She had been seeing you since September 2013.  She spoke of the change since the accident.  Undoubtedly though, you have had some distressing experiences well prior to December 2017 and they have exacted a toll.

53You had a turbulent relationship in around 2005-2006.

54You commenced a relationship in 2013 with Peter Laspas and went on to marry in 2016.  He works in real estate.  You have a child Harrison who is now two and a half years old, born in March 2018.

55You have a short but pretty unimpressive driving history.  Most of it by traffic infringement notice.  Multiple speeding offences with speeds high enough such as there were multiple orders made against your licence.  Five such suspensions with the last in late August 2017 for driving in excess of 35 but less than 40 kph over the limit.  That is the period of suspension you were driving in on 14 December 2017 when this calamity took place.

56There is only a single court appearance back in 2009 for driving whilst suspended and using a hand-held phone.  So, there is the complete absence of any criminal history.  Since the event, you went on to have your son, as I have mentioned.  You remain in a stable relationship with your husband.  You have obvious strong family support.  This hearing has been conducted in the midst of the COVID-19 restrictions placed upon attendance upon the court.  As a result your husband is present again providing support, the prosecutor joins me by way of Webex.  Mr Dann of course is present and so are you.  But no doubt had there been no restrictions the court would have been heaving with people here to provide support for you.  Your father, for instance, is joining the Webex of this hearing.

57You have been on bail, as I have said, but with a condition prohibiting any driving.  It has been a stressful time awaiting the finalisation of this matter and it has taken a toll, as the various materials including the expert reports make very clear.  There was an incident in March 2019 which was mentioned by your counsel and which is mentioned in the various reports.  You held a knife and were threatening self-harm and were admitted to hospital but discharged.  I have mentioned only some aspects of the history placed before me but I take into account all that has been raised.

58I turn then to some of the other matters that have been raised in mitigation.

Guilty plea

59You have pleaded guilty at what I will treat as the earliest stage in that it was the earliest practicable stage.  It will not feel like an early stage to the relatives of Mr Fata or even to you.  However, in making judgements as to the stage of the plea, I cannot ignore the fact that there was the charge of dangerous driving causing death which had been laid.  That was the stumbling block.  There had been discussions pre-committal as to the dangerous driving causing death charge and whether that really had to proceed.  Evidently the Crown said that it did.  Mr Dann does not suggest there was any formal plea offer made, there was not.  A contested committal was then conducted in December 2018 and you were committed to this court despite the submissions made by Mr Dann that you ought be discharged altogether.  Then he told me there was an application for discontinuance in February 2019.  That was rejected.  Then a plea offer to the lesser version of fail to stop under s.61.  That was also rejected.  The matter resolved on the trial date on 6 March, this year, on the terms now before me.

60You have admitted your guilt and in doing so you have taken what I will treat as this early responsibility for your crime.  You have by pleading guilty facilitated the course of justice. Your counsel was not suggesting there was added weight to the plea owing to the disruption of the operation of the court brought about by COVID-19.  The matter settled in fact just before the roof came crashing down upon the operations of the court.  Trials were suspended from 16 March, so the COVID-19 virus and court disruption had no role to play.  Those trials which had started kept going but some of those collapsed owing to the issues connected up with the virus . No new juries were empanelled from that Monday.  However, you have maintained that plea amidst the disruption, I have regard to that.  Had the trial actually proceeded, there is the real chance that a jury might have been discharged.  Some juries were at that early stage, as the crisis unfolded.  This case could easily then have limped into the new year and who knows what would have occurred then?  It is possible, given the backlog that I am aware of, that the relatives of Mr Fata would have been held in suspense until 2022.  They have at least been spared that.  The community has been saved the time, cost and effort associated with a trial.  It was your right to run the committal and that cannot be held against you.  Witnesses have been spared the experience of giving evidence at trial and none of Mr Fata’s family had to give evidence at all.  Those unfortunate motorists who observed this event were spared the experience of giving evidence at trial.  I take into account your early guilty plea in mitigation in the ways contemplated by the case law in this area and in the ways urged upon me by your counsel.

Remorse

61I turn now then to the issue of remorse.

62I do not need to spend long dealing with the issue of remorse.  I have an early guilty plea which is usually indicative of remorse.  I also have the material touching upon your background and the sort of person that you are.  Even without anything more, considering the nature of the event, why would you not feel regret?  I also have your letters of apology as well as the observations of you made by others.  Family, friends, colleagues, the GP, Mr Zoumboulis and Mr Newton.  The descriptions of the sort of person you are demonstrate how the act is so out of character.  So foreign to what is described as your caring and compassionate nature.  There is the material which speaks of how you dwell on what you have done and the impact upon the deceased’s family.  Nor should it be forgotten but easily could be that you were making enquires as to him on the day of the actual crime.  Why would anyone doubt the existence of remorse here?  I do not.  Your own letter is, I am sure, genuine.  I have no doubt you are actually genuinely remorseful.  That is not just my drawing an inference from your plea and implying remorse from that plea.  You are actually remorseful and your letter and some of the other materials convince me of that fact.  I take into account your remorse.  It is important.  You deeply regret the offence.  That is relevant in a number of ways including as going to your prospects of rehabilitation and the risk of committing such an offence as this ever again.

Rehabilitation and delay

63That is a convenient point for me to pronounce my views as to your prospects of rehabilitation.  You are 34 years of age and have no prior criminal history.  There have been no offences committed subsequently.  There is the driving record which, though of some relevance, would, I believe, assume more significance if I was dealing with you for an act of dangerous driving.  I am not.  However it cannot be said as it was in some of the cases I was referred to that you have an unblemished driving record.  You do not.

64You are a married woman.  You obviously have a supportive husband and family.  You have a two and a half year old child.  You have been employed.  Again, I could walk my way through the various written materials placed before me including all the character references.  There is no need to and these sentencing remarks as I have said will already be quite long enough.  This conduct, being the fail to stop, does stand as being starkly out of character.  You call in aid then your past good character.

65On the day of the event, you were 23 weeks pregnant and that next and exciting phase of your life lay ahead.  Then this calamity.  A foolish decision to drive, the accident and then the failure to stop.  Your life had changed in an instant.  From that time, there has been much uncertainty in your life.  Of course, one cannot compare this to the predicament of the Fata’s and you recognise that in your own letters.  But it has not been easy for you as you have awaited the finalisation of this matter.  You have lived with the dark cloud represented by these criminal proceedings and the very unhappy prospect of it ending with a prison term.  You have complied with your bail conditions, one of which prohibited driving.  That has not been easy in the setting of a new child.

66I take into account the delay as a form of separate penalty.  These things are spoken of in your counsel’s submissions on p.4 as well as in the various reports and letters.  It is the impact upon you which is important.

67You have also stayed out of trouble and tried to re-order your life.  Had you been committing offences in the near three years since these crimes were committed, well delay would be of no assistance to you at all but that is not the position.

68Mr Dann relies upon the twin benefits of delay which are spoken of in the case law.

69There is no mystery as to why I am dealing with you in November 2020.  I set out the chronology earlier.  There was the dangerous driving causing death charge, you were fighting that, as was your right, there was then a contested committal and then the matter came up to this court for trial.  Then it ultimately resolved.  That fills in the period and at each step you were simply doing what you were entitled to do.  This is not a case where anyone is saying that a party was acting unreasonably, either an accused deliberately drawing the matter out or the prosecution sitting on their hands with an overly leisurely approach to the finalisation of the matter.  In any event, the case law in this area makes it clear that it is an unprofitable exercise conducting an audit as to the reasons for delay.  There is no need to here as it is all very clear.  The delay is just a fact.

70Ultimately, what is important is the impact of the delay and the efforts at rehabilitation occurring in the period that has elapsed.  I take into account delay in the two ways urged upon me by your counsel.

71When I reflect on your future prospects of rehabilitation, well again I think I can be brief.  Again, I see no need to set out the various materials.  One would never have expected you to commit a crime as serious as this and yet you did.  There was nothing at all spontaneous about driving in the period of your suspension.  You had a prior appearance for driving whilst suspended and were just prepared to take the risk on this day and drive, for no good reason.  You recognise that.  I will discuss the views of Mr Newton and what I make of them in one moment but even without factoring those in, it is as clear as day that the fail to stop was a decision taken in the moment as they always are.  A very bad one taken in a moment of stress.  No planning.  A shocking decision as you well recognise.  The charges have been hanging over your head.  The uncertainty as to how this will all end for you has been a constant.  There is the remorse I have spoken of and also your ongoing rehabilitation. You have been deeply affected by this event.  I am not dealing with you for causing Mr Fata’s death but you know that contact with your car has led to his death.  That plays on your mind heavily.  I would be surprised if you ever offended again in this way.  I would be surprised also if it did not change the way you drive and it would need to, as your history in that respect is less pleasing.

72You have no criminal history.  You will be deterred by the whole experience of being arrested and charged and brought to court and then being required to serve the sentence I will soon pronounce.  Your risk of reoffending is, as
far as I can determine, low.  Your future prospects are very good if not
excellent.

Increased burden

73I turn now to the various submissions made by your counsel as to an increased custodial burden.

COVID-19

74There is no such thing as a good time to be sent to prison.  I am sure that is true but this is a particularly bad time to be sent there.  The COVID-19 virus and the response to it by those running the prisons has changed prison life to a degree.  Prison is currently a more stressful environment.  Prisoners cannot make a decision to self-isolate.  Social distancing is not easy in a prison setting.  No doubt there is worry about catching the virus in such a setting where there is no level of autonomy at all.  It is very difficult for me to know precisely how the virus or the response to it by those running the prisons would impact upon you in the future.  There have been some lockdowns but I certainly cannot conclude that they would necessarily apply to you in the future if sent to prison.  That would be pure speculation.  I do not need to speculate as to the current position with personal visits.  They have already been suspended and there has also been some interference with the full range of courses with some of those being done using the Zoom platform.  I cannot know how long those things will persist.

75It is actually impossible for me to forecast the impact of this virus either on those in the community or those in prison.  Reading some of the earlier decisions from the Court of Appeal or from single justices in the Supreme Court, there had been understandable fears of a massive spread of this virus in a prison setting.  That has not occurred.  There have actually been very few cases and they have been very well contained.  Out in the community, since March of this year, we have moved into, out of and then back into lockdown.  We are now being released from the strictest of the lockdowns.  We have had a number of days of zero infections, I think 11 in a row as of today.  The curve has been well and truly flattened and we are emerging back to a more normal way of life.  There has been a gradual opening up of businesses with further relaxations announced a few weeks back, and some additional relaxations which came into effect yesterday.  Further relaxations are on the way in a couple of weeks as I understand it.  So, things have looked up a great deal.  These improvements still do not suggest to me that there will be any prospect in the short term of the prison conditions being returned to the pre COVID-19 setting.  The virus will probably not go away. We are being told to be cautious and it would surprise me if those running the prisons did not take a similarly cautious or conservative approach.  We are all adjusting to a new COVID normal, which will be anything but normal.

76So I am prepared to find that prison life is tougher for those who are sent there with the prospect or risk of less time out of cells, less access to the full range of programs and courses and importantly, no access for the moment to any in-person visits.  Also a 14 day isolation when first received as a prisoner.  None of this is easy for any person.  You would be a first time prisoner with a massive adjustment ahead of you without factoring in anything else.  Not just that, but a mother with a two and a half year old child who you would be leaving for the first time.  The fact is, even without any of the limitations arising from
COVID-19, sending a first-time parent with a young child to prison would itself obviously increase the burden on such a person.  It would in your case, and that would be so even if in-person visits were available.  I accept your counsel’s submission to this effect (see page 3).  But the present reality of no visitors at all is a pretty grim prospect.  Undoubtedly it represents an increased burden.  Prison is a tougher proposition for all these reasons.

77Now things are being done to try to compensate for the lack of in person visits with access to video or virtual visits but they are just not the same.

78I take into account in your favour the increased burden arising from these various matters.

Separation from child

79I have already made it clear that I take into account the fact of your separation from your young son if sent to prison.  You would be worried about him and your husband and be anxious for them.  The separation would be disturbing for you.  This would increase the burden of imprisonment in the way argued by your counsel.  In the absence of exceptional circumstances, I cannot take into account third party hardship.  There are no exceptional circumstances here as your counsel explicitly and correctly conceded.  So, the undoubted impact upon your son or your husband or others who would step into the breech is not something I can consider.  But I can take into account the increase in your prison burden.  It would undoubtedly increase the burden of imprisonment for you.

Verdins – Fifth Limb

80I come now then to the fifth limb of the case of Verdins.

81In a moment I will consider the broader submissions made as to the mental health conditions, the role of your post-traumatic stress disorder and anxiety and the various ways I am asked to have regard to those matters over and above an increased prison burden.  For the moment I am focussing purely on the impact of the conditions upon the custodial experience, so the fifth limb of the case of Verdins which you heard discussed.  You are experiencing a level of anxiety.  It would be quite incredible if you were not.  Much of it is reactive to your court predicament.  However there are residual aspects of post-traumatic stress disorder from your past sexual assaults.  Mr Newton speaks in
paragraph 8 of the likelihood of a greater burden of imprisonment and the reasons for that.  Some of those aspects are not related to your mental health at all, for instance your lack of exposure to prison and unfamiliarity with the sort of people who reside there.  However, it goes beyond that as there is also some pre-existing anxiety that has been bubbling away for many years, predating these events.  Mr Newton believes that this, in combination with the non-mental health issues would increase your custodial burden and I am prepared to act on that opinion and so give some weight to the fifth limb of that case.

Verdins – other limbs

82I leave behind me now then those issues of increased custodial burden.  In summary then, I have found in your favour in relation to each matter pressed by Mr Dann including the fifth limb of Verdins.

83What then of the other limbs of the case of Verdins that he relies upon?  
Mr Dann commenced by taking me through the observations of those who had come upon you at your parent’s house.  So the police and then an ambulance officer.  You were obviously unwell.  You were plainly distressed, physically and emotionally.  He spoke of the concerns of the ambulance officer.  He took me to that statement of the ambulance officer.  I note that Ms Boswell suggests that her assessment was not easy as you were upset and she was trying to obtain a history of what had happened which was met with hostility by family members.  She had no idea what had really happened but needed to know.  She was trying to understand the mechanism.  That ambulance members would be taking a very cautious approach to a pregnant woman who may have been in a car accident is completely unsurprising.

84Mr Dann took me to the observations of the police members and their lack of preparedness to disclose the fact of the death lest it cause you some harm.  Again, hardly surprising given the setting.  A pregnant woman in distress.  Of course they waited for the ambulance before breaking that news.

85You were ultimately taken to hospital and not admitted and were back in police custody reasonably quickly.

86Mr Dann was relying upon these observations as giving some picture of how you must have been much earlier at the time of the commission of the offence.  He was relying also on the account given in your mother’s letter and your husband’s letter.  As I said earlier today, I must say, I had the impression of a single phone call in each instance and no sense of the duration of your trip or the number of calls.  Or the duration of some of them.

87What does that state at your father’s home in Black Rock say about your state when you chose not to stop?  Very little in my view.  It is so much later.  Even had you been in this state in the car, what does that really say as to the explanation of the condition?  It would be equally consistent with someone who had been involved in an accident as a suspended driver and left the scene and was recognising the enormity of the act.  It seems to me highly unlikely that in the car, you were in the physical state ultimately observed by the police when they came to your parent’s house.  You travelled away from your own home and your husband’s work place.  You must have travelled past hospitals and police stations for that matter.  You made a large number of phone calls.  I had not appreciated that you had spoken to your husband for 12 minutes at one point (1:39pm) and not one call to the police by you or anyone on your behalf.  Had you been in such a state, you surely would have been told to stop there and then.  Or to go to your house.  Or for him to join you at the scene.  Or go to the police station.  Or to ring the police.  None of those things occurred.

88Why were you reacting in the way that you did at the initial scene, that is Ferntree Gully and Huntingdale Road?  If you were panicking, why were you panicking?  And more importantly, why did you fail to stop at the relevant point which is at the later intersection of Dandenong Road?

89Mr Dann conceded that there were three possibilities open but argued that any conclusion as to your licence status having a role to play would need to be established beyond reasonable doubt.  As to the three possibilities he named them, saying it was all down to your being suspended and having been involved in such an incident, was it all down to the post-traumatic stress disorder 'kicking in' in the manner described by Mr Newton or was it perhaps a combination of reasons.

90Mr Newton saw you on two occasions each many years after the event.  He has received your account of what took place.  I have no account from you in the interview conducted contemporaneously.  The account you gave to Mr Newton is untested.  However you did say something to the motorist who pursued you about your perception of Mr Fata’s anger as he approached the vehicle and to being scared.  You mentioned stress and your pregnancy.  So these are not things dreamt up long after the event.  Nor for that matter is your past mental health history.  It is documented.

91You describe to Mr Newton feeling threatened and confronted by Mr Fata when he approached your car at the intersection.  Mr Newton says at paragraph 40 that ‘the witness accounts are divergent on this point but that at least some of the witnesses also saw his behaviour in these terms’.  He is wrong in that respect.  A single witness said that he thought it was a nose to tail incident or a road rage incident and that the man’s conduct was aggressive and threatening.  Not one other witness saw it in those terms.  Mr Fata had stopped his car and put on his hazard lights and had got out and was gesticulating at your car.  Of course there is the aspect of seeing someone out of their vehicle and approaching yours when you are in a seated position and I recognise that alone can give rise to at least some concern or alarm.  But at least viewed objectively you were safe enough in your car.

92Mr Dann makes the valid point; that is not how Bannister saw it but far more importantly, not how you saw it. He submitted that it may well be that you have misread the situation. What is important is what was in your mind, even if it involved a misreading of the situation. That is true.

93You described to Mr Newton panicking after the collision at the intersection. I don’t doubt that for one moment.  Who would be composed after hitting a pedestrian with their car?

94Mr Newton is of the opinion that for one with your past experiences of PTSD, even minor challenges can trigger your experience of trauma and cause you to view those around you as potential attackers and make you feel vulnerable and powerless. So to respond to even minor levels of confrontation with overwhelming feelings of distress. He says based on your account to him of the collision and the events leading up to it, it is likely that this led you to perceive Mr Fata as threatening and confronting, this would have produced in you a feeling of distress and heightened anxiety and would have impacted on your ability to exercise your usual judgement and reasoning skills. He says that these things impacted on your ability to reason with calm composure and settled reflection. They compromised your decision making abilities. Hence he said these things were instrumental in your leaving the collision scene to seek out and obtain safety at your parent’s home. I accept the opinion up to a point.

95It may well have explained why you would have tried to drive past or around this person at the first intersection. But you knew you had struck him with your car at that point. Mr Dann conceded you knew that. You then left him behind you, travelling across the intersection in your car. I am not dealing with you for a crime at that point. Undoubtedly though, striking him with your car would have produced a level of panic. You knew you had no business being on the road at all. You were suspended from driving and knew that fact.

96Some distance down the road as you drove away from that collision site, you were then fixed with knowledge that this man was seriously injured. Another motorist got out of his car and told you that the man you had struck was dying. You were several hundred metres away.

97You told that motorist who had got out of his car that you were coming back. You did not.  You continued to drive. At that point, you knew you had been involved in what, on any view of it, was a serious incident and that you were suspended as a driver. That was an obvious stressor and I have no doubt at all that it, your licence status, had a sizeable role in your panicked state and your decision at that point not to stop. I am satisfied of that beyond reasonable doubt.

98The Crown seemingly don’t challenge the diagnosis of post-traumatic stress disorder and the possible role in the initial event at the first intersection but submit that it had no role at all to play in the critical decision not to stop once informed at the next intersection.

99It seems to me that if a person is acting in that way with some contribution from that heightened state, that it may well have some influence only a handful of minutes later. It strikes me as unrealistic to suggest that it would completely dissipate.

100I am then prepared to accept that the post-traumatic stress disorder had some role to play in this event. I certainly don’t accept that it had a dominant role. If it heightened your anxiety at the time of the approach to the car and I am prepared to find that it did, it is not realistic to think that this sense would have altogether dissipated or that you were fully in control of your judgment a short distance up the road when Mr Viswanathan spoke to you. You were still saying you were stressed. However, I have no doubt that a good deal of the stress at that point arose from your knowledge that you were a suspended driver who had been involved in a serious incident. So, in a way I accept neither counsel’s submissions. I do not accept your counsel’s submission that (1) the post-traumatic stress disorder was the central cause and (2) that your suspended status had no role to play in your failure to stop. I am satisfied beyond reasonable doubt that your licence status had a good deal to do with your response at the critical point. That is not to say you were thinking clearly. You weren’t. You were panicking and a component of that I put down to your post-traumatic stress disorder. I am satisfied beyond reasonable doubt that a large component related to your licence status and just the general and understandable confusion and stress and panic arising from such an event as this. It was a nightmare, as you were later to say to the police. A number of the cases that I have looked at speak of panic being almost an invariable feature of this sort of crime. Of course it is and it was here, and that was not driven by your post-traumatic stress disorder. Virtually no-one committing this crime, that is failing to stop, is acting in a calm and rational manner or exercising optimum judgement. You had the aspect of your post-traumatic stress disorder and the understandable normal panic but on top of that you knew you were suspended. As I say, I am satisfied beyond reasonable doubt that this had a large role to play in your panic and your reprehensible decision not to stop.

101I don’t accept the Crown’s submission that the condition, that is the post-traumatic stress disorder had no role at all at the critical point and that there should be no reduction of your culpability.

102I believe I can give some limited weight to the first limb of Verdins. So some modest reduction in your culpability as well as some moderation of general and specific deterrence. The fact is, specific deterrence is not a powerful factor in this case quite independent of this finding, owing to my favourable views as to your low risk of reoffence. Though there can be some modest reduction, general deterrence is far from eliminated. In fact, it is still an important consideration here. No direct submission was made as to the application of the second limb from Verdins but of course one has regard to the condition when considering the appropriate outcome here.

The offending

103It is conceded by your counsel that the fail to stop is a very serious crime.  He is right. It is. It is a critical task for any motorist involved in an accident to comply with their obligations as a driver. Stop. Render assistance.  I will not restate all that I said about the basis of this fail to stop. I have to deal with you on the factual basis alleged, that is having the requisite state of mind when spoken to by Mr Viswanathan. I am not dealing with you for bad driving or causing
Mr Fata’s death. It is unusual in the sense that I am not dealing with you for the immediate decision to drive away at the collision site. Someone at that early stage is immediately in the panicked setting. There is no ability to really think any matters through at all. You drove away knowing you had hit someone but without at that stage having the requisite state of mind as to the level of injury. You were then fixed with that knowledge several hundred metres up the road, said that you would return, but then drove away.

104It was a terrible decision.

105It can be contrasted to leaving someone on a lonely road at night, as that sort of conduct would be aggravating but it is not mitigatory that other people stepped in. You should have stopped and returned to the scene. Not doing so was a serious crime as is conceded. Whilst it would not have altered in any way the disastrous outcome, it might have given some very limited comfort to
Mr Fata’s family that the motorist did stop.

106It is true that you are not in that class where there have been prolonged and active steps to avoid liability. Mr Dann took me to cases where people had replaced car parts, and other cases mention people who engage in elaborate and calculated conduct after the event. That sort of thing occurs after the crime has been committed and I mentioned earlier in these reasons how it can be taken into account. The simple answer is I am not dealing with you for those sorts of things.  Mr Dann pointed to the fact that it was not as though many people had not seen the vehicle and the registration plate. That is a common enough setting and yet does not impede people from fleeing the scene. It is true you did not have alcohol or drugs in your system. Those things were not operative at all. However your licence status most certainly was. I am satisfied beyond reasonable doubt that it contributed significantly to your decision not to stop. To the sense of panic that you felt.

107As to the drive whilst suspended, you had no good reason to be anywhere near a car. None. You just were. You were taking a calculated risk as you have done before.

Purposes

108I have to consider a number of purposes of sentencing.  Sentencing would be a far easier business if a court only had to consider the interests of the accused. His or her rehabilitation. It is far more complex than that. It does not involve me just focussing on you and what is best for you and for your family. Of course it is not in your best interests to be sent to prison.

109There are other purposes of sentencing at play.

110I must pay regard to your prospects of rehabilitation.  I don’t ignore them. As I have said, I view them very favourably and that to some, extent provides the answer as to the weight to be given to some of the other purposes of sentencing.

111I am required to punish you for your crimes.  I must do that justly and proportionately. 

112I must also denounce your conduct. That is an important purpose in this sort of case. It is a reprehensible and callous thing to fail to stop in the circumstances when fixed with the required knowledge or awareness that a person has been seriously injured. You should be ashamed of yourself. I believe you are. That is at least a positive.

113I must give appropriate weight to specific deterrence. That purpose relates to the need to deter you from offending in the future.  I believe that this purpose can be moderated in your case owing to my very favourable views as to your future prospects. You have no criminal history before the courts. You have the driving history, mostly by way of infringement notices. In the fail to stop, you have committed a serious crime, but one which is deeply regretted by you.

114I have said already that I believe you are unlikely to offend in that way ever again.  

115Whilst I cannot just ignore this sentencing purpose, I give it far less weight than I would give in a case involving an offender with a relevant past criminal history or someone with less favourable prospects of rehabilitation.

116For the same reasons, the weight given to community protection can also be significantly moderated here.  I cannot ignore it, but I have in your case reached those favourable views.

117It just stands to reason then that community protection has a greatly reduced role to play in your case than in for instance, a case of someone with a long criminal history before the courts, or someone who had breached past court orders or someone who was remorseless for their crime. In those sorts of cases, there would be less favourable prospects of rehabilitation and a greater need to deter specifically. That sort of person would be more likely to re-offend and the community would need to be protected from them.

118The community really has never needed protection from you in the past and, in my judgment, is unlikely to in the future.

119So there can be this sizeable reduction in the weight given to specific deterrence and community protection. I have already mentioned the Verdins moderation by way of limb 4.

120General deterrence is however still a highly relevant purpose of sentencing in this case notwithstanding some moderation owing to the application of the third limb of Verdins. This Court must send a very clear message to others in the community. To other drivers. They must be reminded of their duties as a driver in the setting of an accident and the seriousness of the ramifications of failing to stop when there has been a serious accident.  We as a community depend on motorists complying with their obligations. The message must be sent by the Courts to likeminded future potential offenders in an endeavour to deter them from doing what you did. It is serious and reprehensible conduct and will not be tolerated by the courts.

121The Courts must convey the message loud and clear through the sentences imposed that people who fail to stop after serious car accidents will be dealt with seriously when brought before a Court. It is a serious offence as the maximum penalty surely makes plain.

122The case law in fact tracks the way in which the maximum penalty was increased fivefold, back in 2005. That sort of penalty increase is almost unheard of and was generated by community concern about people leaving accident scenes. It has undoubtedly become a more serious offence.

123It is plain that general deterrence is a very important purpose in this sort of case (see the cases of Sarikaya[8] and Wassef [9] as well as Simpson[10]).

[8]Sarikya v The Queen [2015] VSCA 236

[9]Wassef v The Queen [2011] VSCA 30

[10]Simpson v The Queen [2015] VSCA 210

124I must have regard to the maximum penalty and to the impact of your crime.  

125I am required to take into account the principle of totality of sentence and to ensure that the overall effect of my sentence is commensurate with your criminality and not crushing upon you. Here, the summary offence hardly rates another mention. It is a serious enough offence to drive whilst suspended but the fail to stop is the major offence by a mile.

126I also have to pay regard to current sentencing practices.  That is not a single controlling factor.  There is no Sentencing Snapshot for this crime. I have looked at the relevant SACSTAT data as well as overviews of cases from the new Judicial College of Victoria sentencing manual (2.3.1 & 2). I have also looked at the case referred to by the prosecutor. Mr Dann took exception to the Court being taken to that single case of Bankal. He was seemingly concerned as to the ‘numbers’ mentioned and as I understand him, had concerns about the Court somehow treating those numbers as the appropriate sentence. I am not just going to latch onto the ‘numbers’ spoken of in that or any other case. I had read the case prior to coming onto the Bench. The case spoke of the increase in penalty and also the increase in sentences. The Court of Appeal said in that case the following:  “that in more recent times, all other things being equal, it had not been unusual for sentences of three to four years' imprisonment to be imposed for the offence of failing to render assistance after a motor vehicle accident in which a person was seriously injured or killed, sentences of a similar order routinely being imposed for the allied offence of failing to stop after an accident (although it must be acknowledged it is also not unusual for lesser sentences to be imposed)”.

127I had before the plea read all of the cases in the various footnoted sections. Both the cases where sentences of that dimension had been imposed as well as the cases where lesser sentences had been imposed including non-custodial sentences. In Wassef the Court of Appeal said ‘that a sentence of a little over one third of the maximum sentence may be within range without the presence of aggravating features’.

128In the same case the Court of Appeal said the following; “drivers who in breach of their duty depart the scene of an accident in circumstances where it is likely to be inferred that they did so to avoid the consequences of unlawful conduct cannot expect that the courts will give weight to any exculpatory explanations for why they have done so which are proffered after the event. They must expect the imposition of substantial terms of imprisonment” see para [31]. Well as I hope I have made plain, I have given some weight to your explanations offered after the event and of course there was also reference on the day to fear at the scene.  I have taken those matters into account.

129Whilst Mr Dann was troubled by the reference to that one case of Bankal, he should not have been. The quote from the Court of Appeal was very balanced in admitting that there were many exceptions. They were not setting out anything resembling a hard and fast rule. In fact, none of the cases do.

130The case law speaks with one voice though as to the seriousness of the crime itself and the weight to be given to general deterrence. As the Court of Appeal said in Sarikaya,  “a number of decisions by this Court have emphasized the importance of the moral and legal obligation of a driver to remain at the scene after an accident and the gravity of the offence for which the appellant has been found guilty” (see para [33] of the decision). They went on to say that the increase in the maximum penalty was designed to dissuade persons from leaving the scene. The Court of Appeal adopted and endorsed the statements made in the cases of Wassef and Tokay[11]. Mr Dann, no doubt wishing to square the ledger, took me to the case of Chhatre. It served no great purpose taking me to that case. It was a most unusual one. A driver striking an extremely drunk pedestrian wearing dark clothes in the middle of the road at 10 pm at night. The driver having a totally unblemished record and none of the usual reasons or incentives for not stopping. No alcohol, or drugs or driving offences or licence status issues. The Court of Appeal said the following at para 31: “Incentives to escape from the scene are not confined of course to a concern about drugs or alcohol. Such concerns may also arise out of commission of driving offences , the fact that the driver is unlicensed or the fact that the driver has a poor driving record”.  Chhatre had no such incentives. I am satisfied beyond reasonable doubt your licence status played a significant role in your decision not to stop.

[11]Tokay v The Queen [2014] VSCA 285

131Further, Chhatre received an invalid sentence being a community correction order and a suspended sentence and by the time the Court of Appeal came to deal with him, he had fully complied with the community correction order and had done the lion’s share of the unpaid work.  That alone was a very powerful factor and explained the ultimate decision to impose a fine which ordinarily would have had no application in such a case as that, as the Court of Appeal made very plain.

132Mr Dann spent a fair amount of time examining Mohamed and the impact upon the sentencing discretion of the post-traumatic stress disorder in that case. Well there were differences in every direction. Mohamed, in a dark street at 3am, had the misfortune to run over an extremely drunk man who lay unconscious on the road. He left the scene. He had a number of experiences from his background in a war-torn nation. The expert evidence suggested he was in a state of near automatism derived from his post-traumatic stress disorder. Indeed, the Court of Appeal in concluding that the sentencing judge had given inadequate weight to that evidence suggested that the accused had foregone a possible defence of automatism. There are no parallels at all here. He had no other incentive or reason to leave the scene and a large and unchallenged contribution arising from his post-traumatic stress disorder which sizeably reduced his culpability. He, with all the mitigatory benefits available to him from those findings, received a 20 month prison term, admittedly with a large portion held in suspense.

133One must also understand that many of the past sentences including the one I have just mentioned, Mohamed, took place in a setting where current sentencing practice had a far greater role or purchase as it certainly did pre Dalgleish[12]. That decision of Dalgleishwas not delivered by the High Court until late 2017.

[12]DPP v Dalgleish (a pseudonym) [2017] HCA 41

134Many of the cases I have looked at also post-date the decision of Boulton[13] that I will discuss in one moment.

[13]Boulton & Ors v The Queen [2014] VSCA 342

135What all these cases disclose is that which, as a judge, I know already. That the circumstances surrounding the commission of this offence will vary greatly and that it will always be necessary to consider the given case and the circumstances of given offender. I must pass the appropriate sentence in this case.

136I am exercising a sentencing discretion in your case, not any of these others.  No amount of looking at other cases or statistics will provide the answer to me.  Other cases are not precedents and statistics have inherent limitations and for that matter, nor is there any such a thing as one correct sentence.

137I take into account all of the submissions that have been made by your counsel and by the prosecutor.  I take into account all of the many written materials placed before me. I have not seen the need to extract portions of the reports or references into these my reasons.

CCO

138Mr Dann was arguing that it was open to place you onto a stand-alone community corrections order. He submitted that the last resort of prison was not reached here. Failing that, that a term of imprisonment could be followed by release onto a suitably conditioned community correction order. The Crown challenged the availability of either outcome.

139As I said earlier, I am not bound by those sentencing submissions made to me by either side. I must exercise my own sentencing discretion as a judge. Though Mr Dann wanted me to call for a community correction order assessment, I took the view that there would be little doubt that you would be assessed as suitable. I had a large amount of material before me already and did not think that a very brief assessment report would add much, if anything, to that. I extended your bail but told you that you must take no comfort at all from that fact.

140I told you that what I wanted to do was to review all of the materials to reflect on whether a community correction order was open here, either on a stand-alone basis or if not, in combination with a prison term. In such circumstances, I could always then call for an assessment if I reached that position.

141I have read all the materials again since Friday. I have reread the various cases including those footnoted in the portion of Bankal I referred to earlier.

142I can tell you I have anxiously considered the materials before me.

143Sending a person such as you to prison, a person with your many qualities, a 34 year old mother with no criminal history, taking such a step and separating you from a 2 ½ year old son is not a step anyone would or could take lightly. It is a momentous decision.  If it can be avoided, it must be. That is because prison is a disposition of last resort. It always has been.

144I must not confine any person unless the purposes for which sentence is imposed cannot be achieved by a lesser disposition, one not involving confinement. That is the law. If a suitably conditioned community correction order would achieve those purposes then confinement would not be open. See s.5(4C) of the Sentencing Act  1991.

145This sort of case is a hard one for any judge. I do not pretend that this is an easy task or decision.  It truly is not.

146Though not referring to the case at length, Mr Dann was obviously relying on the case of Boulton.  The Court of Appeal spoke in that decision of the dramatic change in the sentencing landscape brought about by the availability of a community corrections order either on its own or in combination with a prison term.

147That decision of Boulton directed judges to revisit our conventional wisdom as to when it is appropriate and necessary to actually jail an individual.  The Court of Appeal stated that the sentencing landscape had changed dramatically by reason of that new disposition as it was at least at the time of that decision. They said that sometimes it will be open to place a person on such an order even for offending that previously might have been visited with a substantial (medium) term of imprisonment. 

148The precondition to such an outcome though was if it was appropriate in the particular circumstances of the particular case.

149It is obvious that not every offender for every crime can or should be admitted to such an order. There are some crimes where the purposes of sentencing cannot be given adequate weight by use of such an order.

150So in this case, as in so many cases coming before the Court, there are the obvious tensions that exist as between the various purposes of sentencing. That is actually why sentencing is not that easy.  You are a person who has no past criminal appearances at all. You are 34 years of age. There is abundant and impressive material placed before me on the plea. There are a variety of matters in mitigation. All the many things I have spoken of. Undoubtedly, prison will be a damaging experience for you.

151Undoubtedly though, the fail to stop was a serious offence.

152Many of the cases I have dealt with in my reasons, as I have said earlier, post-dated the case of Boulton.

153There is a need to adequately reflect denunciation, punishment and general deterrence. Community protection and specific deterrence can be significantly moderated for the reasons I earlier announced. That is, your very favourable prospects of rehabilitation and a low risk of re-offending.

154The case law makes it plain that a community corrections order can provide substantial general deterrent effect. It can also be very punitive.

155As I said earlier, Section 5(4C) of the Sentencing Act 1991 prohibits the imposition of a sentence of confinement unless the Court concludes that the purposes of sentence cannot be achieved by a community corrections order to which specified conditions are attached. 

156I need to pay careful attention to the purposes for which sentence is to be imposed in this case and whether they can actually be achieved by a stand-alone community corrections order. 

157The Court of Appeal suggested in that case of Boulton that Judges in my position ask the following question, and it is the question I have posed:

"Given that a CCO could be imposed for a period of years with conditions attached, which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment with all its disadvantages is the only option?"[14]

[14]Boulton at para [121]

158Unfortunately, I have no doubt at all that this question must be answered in the positive in your case. I do not believe that it falls within my sentencing discretion to place you onto a standalone community corrections order for this offending.  This offending demands that you serve a sizeable enough term of imprisonment. It is, in my view, simply unavoidable.  

159I do not believe that such a disposition, that is a community correction order on its own can meet all the relevant sentencing purposes, especially general deterrence.  As far as I am concerned, it would send quite the wrong message to those others who might be tempted to abdicate their duties as a driver at a serious accident scene, as you most certainly did.

160Nor, I regret to say, do I believe that I have a combination type order available to me in the sound exercise of my sentencing discretion in this case. You have spent no time at all in prison. There is then no pre-sentence detention to call upon. There is then a limit of 12 months' imprisonment that can be combined with such an order in this case.

161General deterrence, denunciation and punishment are significant purposes of sentencing here and would not in my view be adequately reflected or achieved by either of the dispositions urged upon the Court by your counsel. General deterrence in particular.

162I believe there is no alternative at all other than to impose a term of actual imprisonment upon you and one of a dimension which precludes a combination type order. I will be fixing a head sentence.

163Given the dimensions of the sentence I am imposing, I am required by law to fix a non-parole period. That non-parole period will provide for the possibility of your early release. That is all it is, a possibility. I cannot speculate as to whether you will be released on parole or not. In fact I am prohibited from even turning my mind to that issue. The Adult Parole Board will make the decision as to whether you can be released and it will be between you and them.  It has nothing to do with me but they will be armed with the various reports placed before me. In addition, I will provide to them my detailed sentencing reasons which will inform them of my very favourable assessments of your future rehabilitative prospects. It will then be up to them to consider whether you can be released at some point after the non-parole period has been served.

464ZF

164I meant to ask you, Mr Dann, what is the attitude in relation to the 464 order? There is no opposition? All right. Application is made for you to undergo a forensic procedure under the provisions of s.464ZF of the Crimes Act.  There is no opposition to the making of that order, I am satisfied that it is appropriate to make the order, that it is justified owing to the seriousness of the offending, the fact that it is not opposed and that I judge it to be in the public interest.  What I am dealing with here is a requirement that you will be asked to run a swab around the inside of your mouth.  I am certifying or the ordering the taking of a scraping from your mouth.  Not the more onerous taking of a blood sample.

165I order that pursuant to the relevant provisions of the Crimes Act 464ZF(2) that you undergo the forensic procedure for the taking of a scraping from your mouth in accordance with the relevant provisions until a sample of sufficient standard is obtained for placement on the database.  Notwithstanding the present lack of opposition to the making of the order, I have to tell you that the people who will be taking this sample can use reasonable force to ensure that the sample is obtained.  It should not be an invasive procedure.  It is not difficult at all, no doubt if there are any issues, the authorities would be back before me making application for a blood sample but I always authorise the least invasive process and that's what I have done here so I have signed that formal order.

166I am sorry I have taken so long to get to this point. I will have you stand up now please Ms Panourakis.

Sentence

167On charge 1 on the indictment, that is the charge of failing to stop, you are convicted and sentenced to 30 months or two and a half years' imprisonment.  That is the base sentence. 

Summary offence

168On the related summary offence of driving whilst suspended, I am going to convict and sentence you to a period of seven days' imprisonment.  In all the circumstances, that sentence will be served concurrently upon the sentence imposed on the fail to stop charge.

Total effective sentence

169This results then in a total effective sentence of 30 months or two and a half years' imprisonment.

Non-parole period

170I fix a period of 16 months or one year and four months during which you will not be eligible for release on parole.

Section 18 pre-sentence detention

171There is no pre-sentence detention to declare.

Section 6AAA

172I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences, I would have convicted and sentenced you to four years' imprisonment.  I would have fixed a non-parole period of two years 8 months in such a setting.

Licence order

173Finally there is the aspect of the licence order.  I mentioned this earlier in my reasons and have taken into account the unfortunate aspect of the requirement for me to make the order and the present inability as far as I am advised by counsel to backdate the order and therefore the inability to take into account at least in terms of the licence order, the credit that would accrue owing to the fact that you have been off the road since May of 2018.

174So I have taken that aspect into account in a general way as a matter in mitigation in the way contemplated by your counsel earlier in his submissions made today. 

175I have no choice in that.  I have a mandatory minimum period. I can go beyond that period, of course, but choose not to.  As I am convicting you and have convicted in relation to a charge of fail to stop all licences to drive are cancelled and you are disqualified from obtaining another licence for a period of four years.

176Now, ordinarily I would make an order such that the licence order would take effect and be connected up to the point of your release from prison. Otherwise in such a setting, given the non-parole period, I could make no judgments about whether you would be released on parole. I know as a matter of certainty that you would be in custody at least until the non-parole period and that's a period of 16 months where the licence order has no effect upon you. You are not in a position to drive. There can be no impact upon you in that timeframe. So ordinarily I would make an order in the fashion of the order in the case of Tran v The Queen[15], connecting up the licence order to a point in time upon your first release from prison whenever that may be.  In the circumstances here, I recognise that you have been off the road already from May of 2018 as a condition of your bail.  There has been a sizable period already that I cannot credit, in terms of the licence order.  As a result, all I am going to do is have that order take effect from today's date.  So all licences to drive are cancelled.  You're disqualified from obtaining another licence for a period of four years, effective from today's date.

[15] [2002] VR 457

177Let me just see if there are any other matters to deal with.  I'm not sure if I did it formally the other day but summary Charges 5 and 6 are marked as withdrawn.  They're the other summary matters that are not proceeding.

178Now are there any other matters from your perspective, Mr Hutton?

179MR HUTTON:  No, Your Honour.

180HIS HONOUR:  Any other matters I need to deal with?  I'll come to Mr Dann in a moment and any sort of custody management issues.  But any other matters that I've overlooked or need to deal with?

181MR HUTTON:  No, you've covered everything, Your Honour, as far as I can tell.

182HIS HONOUR:  All right.  Mr Dann, in terms of custody management are there any other matters you want me to raise at all or not?

183MR DANN:  Well, Your Honour, I think it's necessary to indicate that it's my client's first time in custody.

184HIS HONOUR:  Yes.

185MR DANN:  And she is vulnerable and there's been a history of concern around self-harm, cause that's documented.

186HIS HONOUR:  All right.

187MR DANN:  I think that is necessary if you can, Your Honour.

188HIS HONOUR:  I'll say whatever you want me to say, really.

189MR DANN:  Yes.

190HIS HONOUR:  I mean you can and those instructing you can take steps as well.  But it really depends upon what you ask me to do.  It's her first time in custody.  She suffers from - - -

191MR DANN:  That there's been a history of self-harm.

192HIS HONOUR:  She's vulnerable, there's history and concern - history of - - -

193MR DANN:  History of self-harm.

194HIS HONOUR:  Self-harm.

195MR DANN:  And there is a concern as - a continuing concern as to that issue of self-harm.

196HIS HONOUR:  A concern as to that and do you want me to provide them the report of Mr Newton or not?

197MR DANN:  No, that's - - -

198HIS HONOUR:  You don't?  Do you want me to give them any of the reports then at all or not?

199MR DANN:  No, Your Honour.

200HIS HONOUR:  All right.  You'll need to go down - you'll go down and see your client downstairs.  It's a pretty grim time, as I've said, to be going into custody.  Normally I would be asking you to speak to her about the ways in which she can get visitors on logs and the like.  But, look, they're doing what they can do.  They've brought up I think pretty much the supply of ‘tablets’ so that they can have virtual visits.  So you'll speak to her and deal with such matters as you can deal with in terms with acquainting her to some of these things anyway.

201MR DANN:  Yes, Your Honour.

202HIS HONOUR:  All right, I'll just sign that formal order.  Just grab a seat then for a moment, I'll - - -

203MR DANN:  Yes.

204HIS HONOUR:  Look, I've signed that formal order.  Let me just look at the custody management issues.

205MR DANN:  If Your Honour please.

206HIS HONOUR:  I've simply put it in these terms, 'This is the first time in custody, please take all care.  She has a history of self-harm and there was concern as to that'.  So yes, all right.  Well I've signed that formal order so - - -

207MR DANN:  As Your Honour pleases.

208HIS HONOUR: I'll have Ms Panourakis taken downstairs.  Mr Dann will come down and see you downstairs, Ms Panourakis, all right?  So if Ms Panourakis could be taken downstairs please.

20910.15 tomorrow then, thank you.

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