Director of Public Prosecutions v Parker

[2022] VCC 681

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-20-01825

DIRECTOR OF PUBLIC PROSECUTIONS

v

KATRINA PARKER

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JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2022
DATE OF SENTENCE:	20 May 2022
CASE MAY BE CITED AS:	DPP v Parker
MEDIUM NEUTRAL CITATION:	[2022] VCC 681

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE

Catchwords: Dangerous driving causing death – Category 2 offending – Prosecution and defence in agreement in relation to the relevance of exceptions in s 5(2H)(a)-(e) of the Sentencing Act 1991 (Vic) – Offender overwhelmed by remorse and contrition – Offender developed generalised anxiety disorder as a consequence of the offending – Objective seriousness and moral culpability towards the lower end – Little need for specific deterrence - Significant utilitarian benefit in the plea of guilty during a period of COVID-19 occasioned delays.

Legislation Cited:      Sentencing Act1991 (Vic).

Cases Cited:Boulton v The Queen [2014] VSCA 342; Bell v The Queen [2018] VSCA 281; Farmer v The Queen [2020] VSCA 140; Worboyes v The Queen [2020] VSCA 169; Peers v The Queen [2021] VSCA 264.

Sentence:                  Community Correction Order for a period of 2 years, 250 hours of community service.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C. Parkes	Office of Public Prosecutions
For the Accused	Mr J. Williams	Tony Hargreaves & Partners Lawyers

HER HONOUR:

1Dr Katrina Parker, you have pleaded guilty to an indictment containing one charge of dangerous driving causing death, which carries a maximum penalty of 10 years’ imprisonment. The circumstances in which you came to commit that offence are set out in the summary of prosecution opening for plea dated 1 April 2022, which was read into evidence at your hearing.

2The prosecution relied on an outline of submissions on sentence dated 1 April 2022 (Exhibit B), the victim impact statement of Deborah Pashley dated 19 February 2021 (Exhibit C), the victim impact statement of Henry Pashley dated 24 February 2021 (Exhibit D), the victim impact statement of Karin Francis dated 30 March 2022 (Exhibit E), a bundle of dashcam and enhanced dashcam footage (Exhibit F), an aerial map from page 132 of the depositions (Exhibit G), photographs 1 to 27 from the depositions (Exhibit H), and footage of a drive-through conducted by Victoria Police (Exhibit I). Since the conclusion of the plea in mitigation of penalty, I have received a Community Correction Order Assessment Outcome Report dated 19 April 2022, indicating your suitability for and willingness to undertake a Community Corrections Order, which I will now receive and mark as Exhibit J.

3In addition to the matters developed in oral argument, your counsel relied on the defence outline of submissions of plea dated 1 April 2022 (Exhibit 1), a psychological report prepared by Patrick Newton dated 4 March 2021 (Exhibit 2), a report by Patrick Newton dated 9 March 2021 (Exhibit 3), a report by Patrick Newton dated 1 March 2022 (Exhibit 4), a letter from treating psychologist Danielle Sellick dated 25 February 2022 (Exhibit 5), a report by Dr Danielle Sellick dated 10 December 2020 (Exhibit 6), an affidavit of Mr Broderick Wilson sworn on 3 March 2022 (Exhibit 7), a bundle of character references (Exhibit 8), and a further bundle of updated character references filed on 4 March 2022 (Exhibit 9), your curriculum vitae (Exhibit 10), position description (Exhibit 11), and an expert report prepared by Dr Shane Richardson (Exhibit 12). Since the conclusion of your plea in mitigation of penalty, I have received a further outline of submissions on the impact of criminal sanction upon your registration as a psychologist dated 19 April 2022, which I will now receive and mark into evidence as Exhibit 13. I also received via email to my chambers at 4pm yesterday an indication that the authority of Peers v The Queen [2021] VSCA 264 would be relied upon, which I have read and incorporated into my reasons.

4I have had careful regard to all exhibited documents, as well as the matters referred to in oral submissions when determining the appropriate sentence in your case.

Circumstances of your offending

5At approximately 8:20am on 28 February 2019, you were driving your usual route from your home in Camberwell to your workplace in Ringwood East, where you were scheduled to start work at 8:30am.

6Driving through the suburb of Ringwood, you turned into Railway Avenue, and you drove for approximately 1 kilometre, before reaching the point at which you anticipated that you would turn right into the intersection between Railway Avenue and Morinda Street. You entered the right hand turning lane on Railway Avenue, and commenced to cross the solid white line onto Railway Avenue into Morinda Street.

7At the same time, your victim, Magda Pashley, was crossing Morinda Street with the aid of a walking frame. She was 81 years of age.

8She had made her away across the southbound lane of Morinda Street, which was the side of the lane into which you might have expected to turn, and was in the process of completing her cross to the other side in the northbound lane, when you entered Morinda Street.

9As you moved through the right hand turning lane, you crossed over into the northbound lane of Morinda Street, which was the incorrect side, and collided with the victim as she attempted to complete her crossing.

10You continued down Morinda Street before coming to a controlled stop, approximately 30 metres from the intersection. You exited your vehicle looking shocked and distressed.

11You phoned emergency services and went over to the victim. Members of the public had gathered to assist her as she lay on the road. I understand that you told bystanders that you did not see the victim because the sun was in your eyes.

12The collision was witnessed by Kimberly Maher, the seventeen year old passenger of a vehicle driven by her mother, which was stationary and waiting to turn left at the intersection of Railway Avenue and Eastfield Road, and was also captured by a dash camera in a vehicle travelling in the opposite direction driven by Carol Cook. I have viewed the dashcam footage from that car travelling in the opposite direction.

13Emergency services attended at the scene of the collision, and treated your victim before she was transferred to the Alfred Hospital with life-threatening injuries. Unfortunately, she passed away from the injuries you caused her on 6 March 2019. The cause of death was later determined to be head injuries sustained in the motor vehicle accident.

14At the scene, you underwent a preliminary breath test at the request of police which returned a negative result. You were arrested at the scene and transported to the Ringwood Police Station where a blood sample was obtained from you, which was later analysed revealing negative results for alcohol and drugs.

15At the time of the collision, the weather was sunny and the road was dry.

16Police at the scene asked you what happened, and you replied, “Turning right, blinded by the sun rising, didn’t see her until the last second.” 

Investigation and interview

17The 2014 Mazda CX5 that you drove at the time of your offending underwent a mechanical examination which revealed no default or failure that would have caused or contributed to the collision. Detectives from the Major Collision Investigation Unit attended at the scene of the collision a short time after the incident on 28 February 2019. They were unable to identify any pre-impact brake marks from your vehicle, but they noted a number of scuff marks on the road surface of Morinda Street. Their analysis of the scene determined that the impact with the victim occurred in the northbound lane of Morinda Street, ie the wrong side of the road into which you turned, which I understand to have been in full sunlight from the dashcam footage.

18Detective Leading Senior Constable Michael Hardiman calculated that you were most likely travelling at a speed between 23 and 28 kilometres per hour when you collided with her, and your impact caused her to be thrown to the ground, which led to her fatal injuries.

19On 2 March 2019, police officers conducted a video recorded drive-through of the collision scene from the route taken by you. They drove the route three times. Each time, the sun was in front of the driver at above and slightly to the right hand side. Sun glare was evident but not enough to restrict the view of Morinda Street. The footpaths on either side of Morinda Street were in the shade but the pedestrians were still visible.

20You were a fully licensed driver at the time of your collision, and had been driving for 16 years.

21You were interviewed by police on 28 February 2019, and answered questions regarding the circumstances of your involvement, but exercised your right to silence in response to questions concerning the collision itself.

22You admitted that you were the driver of the vehicle at the time of the collision, and told police that you were travelling your normal route to work.

Effect on the victims

23As a result of your offending, Magda Pashley was killed.

24I received three victim impact statements in this case, from Ms Pashley’s daughter, Deborah Pashley, Ms Pashley’s son, Henry Pashley and Ms Pashley’s daughter-in-law, Karin Francis. Each of the three spoke of the profound loss and grief that you have caused them. It is difficult to do justice to the way in which that loss is articulated without reading directly from the statements themselves, which is what I intend to do.

25Ms Deborah Pashley told me:

“I have been experiencing acute and frequent anxiety since Mum was injured and died in this way. I seem to be unable to adjust to the smallest of changes without becoming overwhelmed, and needing the calming support of my partner and friends. I resigned from my permanent position as a registered nurse in September 2020 as I was unable to cope with the stress of the job requirements on top my inability to manage my own anxiety related to the circumstances of Mum's death.

I want to sustain my memories of Mum, and reflect on our moments together, but my thought process always leads me to that day when our lives ended, and inevitably the way in which it occurred.

Whenever I think about Mum, I have been and still am consumed by worry and heartbreak that Mum had this terrible incident happen to her, and that she was alone. My Mum was an exceptionally private and independent lady, so that even having Good Samaritans near her in such a vulnerable position would have been awful and embarrassing for her. I have been feeling worried, and at times physically sick when I think that Mum was in pain, scared, confused, and could not move on the road. All alone without Henry or I there, or even knowing that she was injured and dying. I have been unable to change my feelings or thoughts about this in particular. I don't know how to. I believe that this is the manner in which my Mum died, nothing will ever change that, and so it will be with my memory of her for the rest of my life.

I am so sad for my Mum that this happened to her, and then I am sad every time I think about her.”

26Mr Henry Pashley provided a victim impact statement as I have mentioned, and also read that statement aloud in the course of the plea in mitigation of penalty.

27He told me:

“My Mum was a force of nature - it's hard to describe her in a mere handful of words. She was an energetic, happy soul. She was strong and in excellent physical and mental health. She was determined and independent, she loved to laugh and chat and it seemed like she knew everybody. She was enjoying life and loved her family - especially her granddaughter, my daughter - and our love for her was just as strong. Mum's family is very long-lived; she many years ahead of her to share with us.

…

I was at work when I was told Mum was badly hurt and in hospital. I was numb with shock and disbelief; I couldn't comprehend how anything like this could have happened to her. Even as we were being led to Mum's bed in Intensive Care, I remember thinking that it wouldn't really be Mum, that there'd been some sort of terrible mix-up. And yet, there she was, a fiery, strong, bright soul, my Mum, unconscious with black eyes and horrible, bloody bruising on her face like she'd been savagely beaten. … My wonderful Mum, so full of life and intelligence and quick wit was now so small and helpless, bruised and brutalised.

…

Mum died shortly after life support was withdrawn on the evening of Wednesday 6 March 2019 with my sister and I holding her hands. She never regained consciousness.

She never had a chance to talk with us again, I'll never know if she heard anything of what I said to her in the hours before she died: how much I love her, how proud I am of what she achieved in her life and how grateful to her I am for everything she's done for me. The right to have any sort of conversation with Mum had been snatched away from us, and now Mum is gone.

…

Even after the funeral, I had trouble comprehending that Mum was gone. I'd repeatedly think to call her about a question I wanted to ask her, I'd set aside time to visit her on the weekend or I'd recall things I wanted to tell her about that would make her laugh. … I can't adequately describe the pain, sadness and loneliness that came with that realisation.

…

We are constantly reminded of the hole that has been torn in our lives. Family occasions such as birthdays, Easter and Christmas are now forever changed and they are always accompanied by a feeling of loss and emptiness. Mum's parties, with balloons and cakes and silly party hats are gone now. The places in our hearts that she'd fill with happiness, singing and celebration are now silent. Remembering those times now brings pangs of deep sadness.

…

I received counselling from Road Trauma Support Services Victoria and from our own independent counsellor, but my suffering continues. Every day I talk to Mum telling her how much I miss her and how much I wish she was still here with us. Every day I tell her that I love her, that I'm proud of her and I thank her for everything she's done for me. Every day I hope that she can hear me, somehow, but just like on that awful night she died, I'll never know, and that leaves me feeling sad.

…

Mum had many years ahead of her to share with us and as a direct result of the offender's actions, her happy life, peacefully enjoying her retirement, was suddenly and brutally cut short. Mum would have loved to have seen her granddaughter grow up into a young woman, but that experience has been taken away from her. Mum had goals she wanted to achieve and things she wanted to do, things she loved to do, but she has been denied the chance to complete them. Mum deserved better.”

28Karin Francis provided me with a statement which she read aloud. Within that statement, she told me:

“I am still trying to stop this awful event from overshadowing our lives. understand that parents pass away, sadly both Henry's and my father have passed, but the terrible way Magda died has created damage that is proving hard to heal. The immense distress that the sudden, violent nature of Magda's death has created is something entirely different. The only way I can describe it is that it is beyond normal sadness - it feels like a wound.

I have been reflecting on why that might be, and I believe the way Magda died has irrevocably altered our view of the world. For my daughter, Magda's death has demonstrated in a way no seven-year-old should have to understand, how fragile and potentially dangerous the world and the people in it really are. I work every day to make sure she feels safe, protected and loved but she intimately understands that terrible things can happen without warning.

Finally, I want to describe a very personal grief I feel when 1 watch my daughter go through her wonderful milestones toward adulthood and know that she will never hear her grandmother's stories, never dive into the history of her Dutch heritage or understand her Oma's world as a woman of that generation. She will never share in the family experiences that would have helped her form her identity and would have linked her to the long line of tough, resilient, independent women that came before her. The deep pattern of story, experiences and guidance - a heritage that only Magda could give voice to - has been prematurely and unnaturally silenced.” 

29Each of those victims has lost a cherished and extremely dear family member, and have experienced enduring trauma and grief as a result of your criminal conduct. 

Plea of guilty, timing, introduction to remorse

30You were charged some seven months after your offending, in October 2019, and the matter proceeded in the committal stream of the Magistrates’ Court.  You were eventually committed for trial in December 2020. In March 2021, you sought an indication as to the likely sentence if the matter resolved as a plea of guilty before me, and with the outcome being my indication that immediate custody would be imposed, the matter was eventually set down for trial to commence in March of this year.  On 7 March 2022, which was the scheduled first day of trial, you sought a second sentence indication hearing, as a result of new facts and circumstances. 

31The outcome of that hearing was my variation of my earlier indication of the likelihood that immediate custody would be imposed on a plea of guilty, and I indicated that I would impose a sentence other than a sentence to be served immediately. That indication of penalty was made with the support of the prosecution. You accepted that indication, and entered a plea of guilty to the charge.

32I accept and take into account that your plea of guilty was entered prior to a jury being empanelled to try the issues in your case, which has saved the Court, the witnesses and the community the time and expense of a trial. 

33Albeit that this is a late plea of guilty, your plea is of very considerable significance in the current era, whether the effects of the COVID‑19 pandemic continue to linger upon the listing of trials.

34Moreover, I consider that your plea is accompanied by considerable remorse and insight, which is a topic to which I will return.  I mitigate sentence on each of these bases.

Personal circumstances

35You were 34 years of age at the time of your offending, and are now thirty-seven. You are the elder of two children, born to loving parents. Your father worked in engineering, and your mother was a careers counsellor at a large school. You describe your family as close knit and supportive, and your childhood as stable and happy.

36When you were in primary school, your family moved to Kuala Lumpur for six months, and aside from during that period you went to a local primary school in Burwood. You then attended Camberwell Girls Grammar School for your secondary education, where I am told you excelled at your studies and participated in extracurricular activities including sport and music.

37You obtained excellent results in your Year 12 studies, then spent a gap year working with vision impaired children in the United Kingdom.

38You then undertook an Arts Degree at Monash University, eventually graduating with First Class Honours. I am told that you majored in Psychology, with studies in French and Business Management.

39You worked briefly in organisational roles before progressing to studies towards a Doctor Degree in Clinical Psychology, which you completed, specialising in the field of Child and Family Psychology.

40You have occupied increasingly senior clinical roles, and have also undertaken research and other professional activities at a high level.

41In October 2018, you commenced employment as a senior clinician with the Intensive Mobile Treatment Unit at the Eastern Health Child and Youth Mental Health Services, which was where you were employed at the time of your offending, and where you have continued until the present time. Your current role requires that you provide outreach case management, assessment and therapy to young people with mental health difficulties. Your role also includes providing clinical supervision to psychologists completing the Registrar program and interdisciplinary supervision within the team.

42You are in a loving and supportive relationship with your long term partner, and I am told that you have a son who is now about 20 months old, and you are newly pregnant with your second child.  

43Six years ago, your partner was misdiagnosed with ulcerative colitis, after months of painful and bloody bowel motions, and was treated for that condition for approximately three years, before being correctly diagnosed with Crohn’s disease, a different inflammatory bowel disease.  He has been treated with varying levels of success in the years since, with steroids, an immune suppressant drug, and other regimes.  He still experiences, on a daily basis, extreme fatigue, the need for frequent trips to the toilet, stomach pain, insomnia and extreme sun sensitivity.  He also requires hospital day procedures and regular specialist review appointments.  The stress of the current proceedings as a result of your criminal conduct has inflamed his condition. I understand that the looming prospect of immediate custody weighed heavily upon you in the 12 months after my initial indication, and that the two of you struggled to contemplate how your toddler might be cared for if I were to impose immediate custody, which is to be fair the sentence that the legislature urges upon me in cases of this nature, where no particular statutory exceptions apply. This is a topic to which I must return.

44You have no prior criminal history, and at the time of your offending you were of impeccable character, a high achiever in your academic and professional endeavours, loved and respected by family and friends.

45I have been provided with a considerable number of character references given to me by those who know you, all of whom speak so highly of you. I have read and considered each of them carefully, and whilst I do not propose to refer to each, I interpolate that it is most unusual for a person charged with an offence which has caused such catastrophic consequences as the one you have committed, to find so many referees to speak thoughtfully and sympathetically on an offender’s behalf.

46Your partner describes you as being considerate, empathic, methodical, a person who is not one to make hasty thoughtless decisions, genuine, caring and selfless. He describes you as having a high level of commitment, a strong work ethic, and a person who has experienced considerable grief and anxiety as a result of your crime.

47Your parents take pride in your exemplary personal attributes and values, and describe you as honest and completely trustworthy in your dealings with all you encounter. They told me that since your school days, you have contributed to the wider community including volunteering with the Salvation Army as part of the Duke of Edinburgh Award and undertaking a placement working with visually impaired boarding students in the United Kingdom, to which I have referred. They consider you to be a respectful and caring family member. They observe your remorse as does your husband.

48Your sister described you as compassionate and empathetic, honest, caring and reliable. She considers you to be well skilled in your role as a senior clinical psychologist, given that the role requires patience, empathy, sensitivity, trust and resilience, which you exhibit daily, she tells me.

49I was told by a school friend, that you are thoughtful, compassionate and always looking out for others. She describes you as hardworking in your studies and in your professional life, an active part of your community and a person who honours your commitments and takes your responsibilities at home, work and with friends seriously. She describes you as being the most responsible person that she knows, and considers that the offence is completely out of character. She also describes that you have shown “deep remorse and regret for the accident.”

50Your work colleague considers that you provide extremely high quality support and intervention to the young people with whom you work, and support to those who assist them such as child protection workers. Since you returned from maternity leave in July 2021, I was told, you had been working in a pivotal senior clinical role at your work, and I was reminded that COVID-19 has created a significant increase in demand for mental health intervention for young people. I understand that you perform your difficult clinical work with a calm compassion and creativity. Another member of your work team considered you to be hardworking, honest, reliable, trustworthy and respectful.

51Your family friends described you as being a woman of utmost integrity and moral character, honest and kind without exception, and very hardworking, well suited to the profession that you have chosen. I was also told of your kindness and sincerity.

52I understand that following your offence, you informed the Australian Health Practitioner Regulation Agency, and sought feedback from your employers about any impact that they may see on your work with clients. You have been allowed to continue to hold your authorisation to practice, though there is some uncertainty about the effect of today’s sentence as to future rights of practice, which weighs upon you, and which I take into account in mitigation of penalty.

Mental health assessment

53After this incident, you commenced regular psychological therapy sessions in August 2019, with principal clinical psychologist, Danielle Sellick. I have received a report from Ms Sellick who notes that your therapy sessions continue to the present time. You were initially diagnosed with Adjustment Disorder with anxious features, reactive to what she describes as “the traffic accident.”  I understand that you now meet the criteria for generalised anxiety disorder as a result of your offending, and you are currently medicated for this. Ms Sellick advises that “the continuing court process has likely contributed to [your] ongoing mental health concerns”, and I trust and infer that this sentence will allow some level of closure for you, and it may be that the resolution will assist in your recovery from this diagnosis.

54Patrick Newton, clinical and forensic psychologist, assessed you for the purpose of this exercise and has provided me with a series of reports.

55In March 2021, Mr Newton carried out a comprehensive evaluation of your mental status, including your mood, your thought process, your personality functioning, and your degree of insight.

56I understand that you told Mr Newton that you found the collision to be deeply distressing and profoundly upsetting, and reported that you experienced a state of intense shock and distress at the time. You noted that at the time of that report that the intensity of your emotional response ebbed and flowed.

57Mr Newton observed, at that time, that you presented as troubled by noteworthy symptoms of anxiety, which caused you a moderate level of distress. In Mr Newton’s view, while you would not meet the full criteria for Post-traumatic Stress Disorder, that is in March 2021, your then symptoms of anxiety continued to cluster around the characteristic post-traumatic syndrome of distress and reminders of the collision, a generalised state of heightened anxiety, and repeated attempts on your part to avoid situations or stimuli which might evoke thoughts of the collision. At that time, you had been troubled by intrusive memories which had no discernible trigger.

58Mr Newton observed your sense of regret and sorrow which had interacted with your anxiety to challenge your sense of self and upset your sense of equilibrium.

59Mr Newton concluded that, as at March 2021, you would meet the DSM-5 criteria for an Adjustment Disorder with anxiety, and the condition had been contained by good treatment.

60Your personality adjustment was assessed by Mr Newton as being normal in all respects, and there was no indication of psychopathic or antisocial personality traits in your personality. He opined that you were a woman of well above average to superior intelligence, with well developed reasoning skills in both verbal and non-verbal domains, and your capacity to solve problems is excellent.

61By March 2022, which was the month in which your trial had been scheduled, there was a deterioration in your mental state, and Mr Newton provided a further report. In this report, Mr Newton noted that your mental state had experienced a marked deterioration in the 12 months between observations and he stated that your “anxiety related symptoms had become considerably more intense and were causing greater impairment of [your] functioning as well more severe distress.”He noted that whilst you would still not meet criteria for what he summarised as PTSD, that you continued to experience noteworthy distress in response to the collision, and that it was clear that the process of recovery for you remains incomplete.

62Your mental state in March 2022 was characterised by significant anxiety and emotional distress at a level that was causing you noteworthy problems, and your presentation was marked by elevated anxiety and intense physical tension. You were beset with rumination of your problems, and felt under strain and pressure. In Mr Newton’s expert opinion, in March 2022, you manifested the core features of a generalised anxiety disorder as defined in DSM-5, which represented a significant deterioration in your mental health compared with your condition when he reviewed you in 2021. In Mr Newton’s view, there was a clear need for you to continue with both medical and psychological treatment, and a genuine risk that if such treatment were to be interrupted you would suffer a severe deterioration in mental health.

63In Mr Newton’s expert opinion which I accept, you would be a vulnerable prisoner on a number of grounds, in that it is almost certain that you would experience a marked deterioration in your mental health if you were placed in that custodial environment, which may involve the cessation of treatment, and a significant increase in your level of stress as a result of your election to be separated from your child and face dramatically reduced access to your sources of informal support. I accept and take into account your mental health presentation in mitigation of penalty in the manner submitted as appropriate by your counsel.

Objective seriousness of the offence, moral culpability

64You have pleaded guilty to a charge of dangerous driving causing death, and the dangerousness of your driving was characterised by your failure to keep a proper lookout for pedestrians, your failure to observe the victim, the fact that you effectively cut the corner at the time of your collision, and as a result you failed to give way to the victim who was on the wrong of the road from the perspective of your driving and thereby you collided with her and caused her death.  If you had observed any one of those standards, you would not have killed her, as she was able to be seen, she was not shrouded in shadow, and she had successfully passed the point in the road that you would have been entitled to use in any event. 

65In the course of the sentencing submissions in the plea in mitigation of penalty, I understand that your previous counsel initially maintained that the victim was in shadow, which she was clearly not as can be seen from the dashcam footage, and then reliance was also made upon the position of the sun at the time of the collision.  I understand that at the scene of the accident, you told police that you were temporarily blinded by the sun rising.  The drive through of the collision by the police experts showed that sun glare was evident, which supports your account, but not sufficient to restrict the view of the street into which you turned.  It was also submitted that there may have been a moment of blindness whilst you executed the turn and then transitioned to looking into a shaded area.  I admitted in the course of oral argument that I struggled with this submission as whilst it may have explained and possibly contextualised your momentary failure to see the victim, it still does not explain why you were on the wrong side of the road at the point of executing your turn, which I have described as cutting the corner.

66That area of Ringwood, as you well know from it being your journey each morning to work, involves dappling of light and shadow as a result of the trees in the area.  But also at 8:20am, it is a busy area, with cars, pedestrians, elderly people obtaining their exercise, as in the case of your victim, and children on their way to the nearby private school. This requires real caution at each point in your journey which you failed to observe on this particular day.

67I accept the view as submitted by defence and substantially accepted by the prosecution, that the objective gravity of your offending falls towards the lower end of matters coming before the court, as does your moral culpability.  This was a case of momentary inattention, complicated by the position of the sun which is unfortunately, broadly, a scenario that may come before the Court when Judges have the responsibility of sentencing upon conviction for this offence.[1]

[1]Bell v The Queen [2018] VSCA 281.

68This case though lacks some of the features that mark more serious instances of the offence, in that you were sober, driving to work and observing the speed limit. 

Purposes of sentencing

69In cases of this nature, the need for general deterrence is high; in order words, I am required to send a message to the community generally to deter others from engaging in this type of behaviour.  I must give significant emphasis to this objective of sentencing, as well as the need to denounce your behaviour and to punish you for your offending.

70On the other hand, the sentencing exercise also obliges me to have regard to other purposes of sentencing, specifically, specific deterrence, that is the need to deter from other similar conduct, and also to allow for your rehabilitation.  In my view, the need to specifically deter you from other similar conduct is very low. 

71Consistent with the view of the Office of Corrections, I accept that you have excellent prospects for rehabilitation, as a result of the combination of the following factors:

·        the fact that this is an offence involving only momentary inattention by you, followed by revisitation and rumination upon your misconduct ever since;

·        your lack of any criminal history, in the context of an otherwise blameless life, of industry, of community work and support to vulnerable members of our community, and support to your family, friends and colleagues;

·        that you are genuinely remorseful and contrite for the severe pain and profound loss suffered by others as a result of your offending, evidenced by the views that you have expressed to the authors of the character references, to your family and to your psychologists; and

·        that you have strong support from your family and friends and your current employer.

Sentencing submissions, and relevant sentencing principles

72The offence of dangerous driving causing death is a Category 2 offence under the Sentencing Act1991 (Vic). A term of imprisonment must be imposed upon you unless one of the exceptions in s 5(2H)(a) to (e) can be established. A sentence involving a combination of custody and a Community Correction Order is not permitted. You bear the burden of establishing one of the statutory exceptions on the balance of probabilities, though in this case it was accepted by the prosecution that an exception was established by the circumstances. Whether an exception is established in accordance with settled principle is an evaluative judgment for me, which I have been grappling with for the 12 months of my involvement in this sentencing exercise. [2]

[2]        Peers v The Queen [2021] VSCA 264, [62]; see, also, Fariah v The Queen [2021] VSCA 213, [24].

73One of the exceptions is if an offender suffers from impaired mental functioning that would result in her being subject to substantially and materially greater than the ordinary burden of imprisonment,[3] or if there are “substantial and compelling circumstances that are exceptional and rare” that justify not imprisoning an offender,[4] though in considering this category, the legislation and case law indicates that I am bound by the following propositions:

(a)   General deterrence and denunciation are to be treated as the most important sentencing considerations;[5]

(b)   Consideration of the offender’s personal circumstances must be subjugated to consideration of other factors such as the nature and gravity of the offence;[6]

(c)   Prior character aside from an absence of priors, an early plea, prospects of rehabilitation and parity are prohibited considerations;[7]

(d)   Consideration must be given to the legislative intent that imprisonment should normally be imposed;[8]

(e)   Consideration must be given to whether the cumulative impact of the circumstances of the case justify departure from the prima facie position, which may occur from the accumulation of a series of features.[9]

[3]Sentencing Act1991 (Vic) (‘Sentencing Act’) s 5(2H)(c)(i).

[4]Ibid s 5(2H)(e).

[5]Ibid s 5(2HC)(a).

[6]Ibid s 5(2HC)(b).

[7]Ibid s 5(2HC)(c).

[8]Ibid s 5(2I)(a).

[9]Sentencing Act (n 3) s 5(2I)(b); see also Farmer v The Queen [2020] VSCA 140, [51], [55], [67].

74I note without hesitation that imprisonment should normally be imposed for this crime, and I have already noted and applied the proposition that general deterrence and denunciation must be treated as the most important sentencing considerations. However, after having careful regard to the cumulative impact of the circumstances of your case, and disregarding the parts of the case for which I am not permitted to consider, I find that the prima facie position should be departed from and conclude that I am prepared to impose a Community Correction Order in the circumstances of your case.[10]

[10]        Sentencing Act (n 3) s 5(2H)(e).

75You killed a much loved, much worthied senior citizen of our community, and you have caused lasting grief and trauma to her family and her circle.  However, that is not the end of this complex analysis. This particular example of that terrible crime involves objective seriousness and moral culpability towards the lower end.  There is little need for specific deterrence.  You have been overwhelmed by remorse and contrition for your wrongdoing, and have developed a generalised anxiety disorder in consequence of your revisitation of your own behaviour.  The cumulative impact of the circumstances of this case justifies that departure in the way that I have outlined.

76I note and accept a number of submissions that your counsel has made in the course of the plea in mitigation of penalty.

77There has been a significant delay in the finalisation of the matter, of over three years, during which you have not reoffended.  I understand that the prospect of jail has weighed heavily upon you.

78As 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 preceding charge.[11]

[11]Worboyes v The Queen [2020] VSCA 169.

79I have been reminded of the oft cited principles, initially outlined by the Victorian Court of Appeal in Boulton v R,[12] indicating that a Community Correction Order ought not be considered a soft option, and properly tailored to the circumstances of a case, can satisfy the competing purposes of sentencing, even in relation to a serious crime.  I intend to make that order against you and in doing so I intend to impose a very significant period of unpaid community work, to punish you and to reinforce the purposes of sentencing that I have summarised as carefully as I can. 

[12] [2014] VSCA 342.

Sentence

80The sentence that I will impose if you are willing to agree is on Charge 1, you will be convicted and sentenced to a Community Correction Order to run for a period of two years from today. I accept the recommendation from the Office of Corrections that the only condition that I need to impose on you that requires my discretion is unpaid community work and I will oblige you to complete 250 hours of unpaid community work as that condition.

81Should you breach this order in any way, I am likely to be asked to resentence you for this offence.

s6AAA Sentencing Act1991 (Vic) declaration

82Were it not for your plea of guilty in this case, I would have imposed a sentence of 2 years’ imprisonment.

Ancillary order

83All licences will be cancelled and you will be disqualified from driving for a period of 3 years from today.