Director of Public Prosecutions v Paulson

[2023] VCC 703

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02687

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMALA PAULSON

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2023, 1 May 2023
DATE OF SENTENCE:	4 May 2023
CASE MAY BE CITED AS:	DPP v Paulson
MEDIUM NEUTRAL CITATION:	[2023] VCC 703

REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence – plea following trial – driving offences

Catchwords:              Dangerous driving causing death – failure to stop – failure to render assistance – truck collided with cyclist from behind – failure to keep proper lookout – ought to have known of collision – offender undergoing gender transition – no criminal history – good character – significant delay – general deterrence.

Legislation Cited:      Crimes Act 1958 (Vic); s 5(2H) Sentencing Act 1991 (Vic); Road Safety Act 1986 (VIC).

Cases Cited:McBride v The Queen (1966) 115 CLR 44; McBride v The Queen (1966) 115 CLR 44; Whyte (2002) 55 NSWLR 252, 286; DPP v Neethling [2009] VSCA 114; Verdins v R (2007) 16 VR 269; Brown v R [2020] VSCA 212; Parker v R [2022] VSCA 207; Lee v R [2021] VSCA 156; Koukoulis v R [2020] VSCA 19; Al-Anwiya v R [2022] VSCA 181; Pan v R [2020] VSCA 42; DPP v Hanson [2022] VCC 2007; Woldesilassie v R [2018] VSCA 285.

Sentence:Total effective sentence: 3 years and 4 months with non-parole period of 20 months; 64 days pre-sentence detention reckoned as already served; licence disqualification 4 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	A. McKenry	OPP
For the Accused	C. Thomson	James Dowsley & Assoc

HIS HONOUR:

1Amala Paulson, on 1 March 2023, you were convicted by a jury of 12 following a trial of dangerous driving causing death, failing to stop and failing to render assistance after the fatal collision between your truck and cyclist Liam Batson on 19 December 2019.

Summary of offending

2In accordance with this verdict, you are to be sentenced based in the following facts.

3At the time of offending, you were employed by an interstate transport company and had been for many years. You regularly drove the route between Adelaide and Melbourne. On the morning of 19 December 2019 you were coming into Horsham from Nhill just after dawn driving a prime mover towing two trailers.

4You had departed from Salisbury Plains, just north of Adelaide at 10:30pm the night before. You had stopped a Nhill for a lengthy rest break and there was no allegation that you were affected by fatigue.

5The GPS on your vehicle showed you travelling just below the 100kph speed limit on the highway and slowing to under the 80kph speed limit where it changed part way along Dimboola Rd, after the intersection with Obrees Road.

6The weather was fine with no wind and good visibility.

7Mr Batson had left his home soon after 6am for his regular bike ride before work. He was wearing high visibility cycling gear.

8The GPS on his bike shows that he turned from Obrees Road onto Dimboola Road and rode back into towards town at about 6:22am – a minute or two before you got to the location. Another truck driver observed him just after he did so, riding about 300 mm inside the fog lines. He had concerns about the risk Mr Batson was taking by riding there, but drove around him easily enough.

9As Mr Batson continued to ride down Dimboola Rd, past the 80kph sign, you approached his location from the same direction. At 6.24am, the front left hand corner of your bull bar collided with the back wheel of his bike, throwing him and his bike off to the left and onto the gravel verge without being run over (Charge 1, dangerous driving causing death).

10The GPS data shows that your truck continued along Dimboola Rd without stopping (charge 2, failing to stop; charge 3, failing to render assistance).

11Within the next minute or so, Helen Richardson drove along in the same direction approaching the collision site and saw Mr Batson and his bike at the side of the road. She dialled 000 at 6:26 AM and at about 6:34 AM, police arrived at the scene.

12During that time, you had reached a spot on the side of the road commonly used by drivers to pull over, opposite the Horsham Secondary College. You stopped there at about 6.25am, got out of your cab, stretched your legs and then continued to drive on to Melbourne.

13Ambulance officers arrived at the scene and pronounced Mr Batson dead at 8:28 AM. An autopsy later confirmed that he died from a pattern of injuries consistent with a collision as I have described.

14An expert, Det SC Melanie McFarlane of the Victoria Police Collision Reconstruction and Mechanical Investigation Unit attended the collision site at about noon that day. She observed there to be no pre-impact or post-impact tyre marks, no gouges in the bitumen road surface, and no glass field or fluid spill. She analysed the evidence at the scene, photos, video, 3D scan data and the available GPS data, and concluded that the deceased was travelling east on Dimboola Road at an unknown speed, when he was struck from behind by a vehicle also travelling east at between 76 kilometres and 99 kilometres per hour. She was unable to say where on the road the impact occurred or anything about the conduct of either vehicle in the crucial moments before impact.

15Later that day at about 4:50 PM, police attended your transport depot in Truganina and located your truck. They found scuffs and other markings on the lower left corner of the bull bar. A forensic examination identified a series of gouges there consistent with the cassette of sprockets on the back wheel of a bicycle indicating the location of the impact.

16In the above circumstances, the prosecution alleged you engaged in a serious breach of the proper management or control of your truck. Firstly, it was alleged that you did not see Mr Batson because you failed to keep a proper lookout as you drove along Dimboola Rd or secondly if you did see him you failed to keep a safe distance from him as you passed, either way resulting in you striking him from behind and causing his death.

17As to charges 2 and 3, the prosecutor alleged that immediately following the collision, you either knew it had occurred and failed to stop and render assistance or if you didn’t know, you ought to have known and then failed to do so.

18According to the jury’s findings, you live now knowing that your driving has caused the death of another member of the community. It is a burden you will bear for the rest of your life.

19That burden is felt all the more keenly by Mr Batson’s loved ones. The impact of your offending is described in their victim impact statements (Exhibit A).

20Judy-Ann Batson, Mr Batson’s partner expressed her grief at losing her soulmate. She stated that every milestone or happy moment since his death, whether it be holidays, birthdays, or special events, has been tainted by pain. She is still traumatised by the absence of Liam and feels disturbed by the fact that her family is now and always will be incomplete. She has trouble sleeping and suffers from bouts of nausea and lack of appetite. She gets anxious and concerned when she encounters trucks on the road, which triggers horrific imagery in her head and causes her to fear the worst. She was unable to work for just over 2 years, as she prioritised taking care of her two daughters in the aftermath of this tragedy. She has declined to attend various social events, such as engagement parties, weddings, and other celebrations, because it is too painful to attend without Mr Batson.

21Her daughter stated that she misses spending time with Mr Batson, who treated her like his own. She has been forced her to confront the finality of death at a young age. She was so physically and emotionally sick, she was not able to attend his funeral. Like her mother, she is disturbed by his absence and wishes she could go back in time to create more memories with her best friend.

22Narelle Janetski, Mr Batson’s mother, states that she struggles every day with the loss of her son. Like Ms Batson, she has trouble sleeping and is reminded of the incident when she sees trucks and cyclists on the road. She has PTSD, anxiety, and depression, and is seeing a psychologist and taking anti-depressants. She struggles with events and celebrations and feels socially isolated.

23Mr Batson’s father Michael Batson described the last 3 years as the darkest and most gut-wrenching period of his life, trapped in a cycle of heartbreak, torment, anger and sleepless nights. He stated that family adventures and gatherings will never be complete again in the absence of his eldest son.

24Ann Marie McConville, Mr Batson’s mother in law, described the immense grief she feels whenever she is reminded of that horrible day. She finds it unimaginably gut wrenching to watch her daughter and granddaughters go through life without her son in law. She is also seeing a psychologist to help her manage her trauma and grief.

25Friend, Jayson Agustin stated that, to him and his family, Mr Batson is irreplaceable. He has not only lost a friend and a workmate, but a brother who was always there to assist and help when needed.

26The grief and loss felt by Mr Batson’s family and friends is something they should not have had to suffer. As is regularly seen in cases like this, despite there being no suggestion that you set out on this day or at any time had any ill will towards Mr Batson, let alone an intention to do harm, the consequences of collisions on the road remain immense. While I expect that the result of any court hearing such as this will do little to lessen their pain, I thank Mr Batson’s family and friends for their courage and honesty.

Procedural history

27When police came to the depot that afternoon, you provided a statement. You detailed your stop opposite the Horsham Secondary College and that you did not notice anything out of the ordinary. You stated that at no time did you believe that you hit a cyclist or were involved in a collision.

28Nevertheless, you were charged about a year later on 3 December 2020. A contested committal hearing was conducted on 15 and 16 December 2021.

29By the time of your trial, a little over 3 years has passed – a substantial delay. In acknowledging this, I am indicating no blame against either party, who like everyone else during these last few years have been struggling with the consequences of the COVID-19 pandemic.

30Your trial finally commenced on 21 February 2023 and upon being convicted on 1 March 2023, you were remanded in custody, where you have remained.

31Your time in custody since then has not been easy, for reasons that I will spell out in a moment.

Personal circumstances

32You were born in 1987 to your mother Wendy and father Ross. So, you were 32 years old at the time of the collision and are now 36.

33Your family is a close and loving one. Your mother is also a truck driver and you have regularly driven together. You have one younger brother Daniel, who works for a logistics company in Adelaide. Tragically, your father Ross was killed in a road accident in 2000, which affected you terribly. Since then, your step-father Peter has become part of the family and you now have a step-sister Susie-May who lives at home with her partner and child. You all, including your now partner Kate, are very close and supportive.

34You attended primary and high school in Adelaide’s north. You left high school in Year 11 to take up an apprenticeship as a chef. You finished your four-year apprenticeship and worked for a time but it overwhelmed you and in 2014 you began driving trucks.

35Your family and workmates have provided statements in support of you and to help the Court understand your background (Exhibit 1).

36You have worked for the same trucking company for about 8 years. Your colleagues Ashutosh Sharma, Despina Kypreos and Toby Mitchell speak of their great respect for you, your professionalism, enthusiasm, hard work and honesty.

37Ms Kypreos recalls the day of the collision and that you seemed your usual self, not distressed or concerned about anything, which was markedly different to what she saw of you after the police informed you of the collision and the weeks and months that followed. As to your driving history, she manages the company’s infringement notices and reports that you have not been the subject of any complaint or fine notice in the whole time you have worked there.

38The Director and Operations Manager at the transport company, Gurpreet Singh and Manpreet Sangha wrote of your strong work ethic, honesty, and efficiency in a professional setting. You take pride in your work and the equipment you use, maintaining logs fully and accurately, which is a core safety feature of long-haul truck driving. They described you as a mentor to new staff and a great communicator with clients. In all the years you have been driving since 2014, they say your record has been impeccable.

39Your step-father Peter reports a conversation with you after police had spoken with you and how distressed you were by the suggestion that you could have caused the collision with Mr Batson. He described you as always having been a reserved person, careful, attending to detail. He has driven with you and observed you to be a safe and careful driver, stopping to assist others in trouble on the road. Since the allegations were made, he has observed you to become depressed.

40Your mother Wendy has of course been your closest observer of the years. She describes you as a quiet child with a small friendship circle growing up. Of the collision, she describes your reaction to the idea that you caused the death of someone on the road – it shocked and distressed you. She has witnessed you descend into suicidal thoughts since you were charged. As to your driving, you and you mother had regularly driven together. She describes you as an ‘old school’ driver for your courtesy when driving and habit of stopping to help people who seem to be in need on the road. You were known as drivers who funded your own emergency medical kit in case you needed to respond to crises on the road, as indeed you have often seen over the years.

41Significantly, your family have supported you in recent years over a different kind of journey, as you came out as a trans woman and have embarked on what can only be described as a profound process of change.

42Since about 2010, when you were 23, you have struggled with dysphoria relating to your gender. Until about 5 years ago you dealt with this alone and felt very isolated. Since then, you have progressively shared this aspect of yourself with your family and friends. In early 2020, you approached Shine SA for support and to commence the process of gender transition. Since then, you have commenced and remain on gender-affirming hormone therapy. In February 2022, you changed your name to Amala and in December 2022 underwent breast augmentation surgery. You had hoped to engage in further surgery during 2023, but this is now on hold.

43Your mother said that, comparing you before and since you have commenced these changes, you are amazingly different, happier, not reserved, not withdrawn, positive, confident and that it was ‘obviously meant to be’.

44Your partner Kate describes you as open, honest, and family orientated, and having a strong bond with her children. Since the verdict, she has observed a return in you to being very stressed and reserved, with walls around you emotionally. As a trans woman she observes you facing ongoing mental and hormonal challenges that need to be addressed daily with medication and counselling forming essential parts of that routine.

45All of your family members expressed extreme concerned for your mental health and general welfare in the custodial setting. They observed your distress at not having been provided your necessary medication to maintain your treatment following your remand. They described you seeming as if you were broken and are deeply worried about the return of your suicidal thoughts.

46Counsellor at Shine SA, Zac Cannell provided a letter dated 12 December 2021 (Exhibit 2), confirming your contact and treatment there, stating that the anxiety and stress inherent in the transition process has likely been exacerbated by that relating to the charges and trial process.

47Upon your remand, you were placed into 23 hour a day lockdown for an extended period of weeks in the prison for your own protection based on your trans status, not due to any concerns about your own behaviour. There was a delay in obtaining your necessary medication because prison health authorities would not let you use the sealed medication you took into prison with you, even though you also had legitimate prescriptions for them. During this time your mental health has deteriorated very considerably.

48Consultant Forensic and Clinical Psychologist, Dr Michael Davis has provided a pre-sentence assessment and report on you dated 24 April 2023 (Exhibit D). His assessment of you was very thorough and I find you to have been candid with him.

49Dr Davis confirms your diagnosis of Gender Dysphoria (post-transition). Further, founded on neuro-developmental difficulties, including your long-standing gender dysphoria and experiences of trauma as a child with which you are only starting to engage, you are now diagnosed with Major Depressive Disorder (moderate severity, with anxious distress). These conditions have been exacerbated by your remand.

50Based on your complex psychological history and specific long-term stresses and other influences, he also describes you as living with a Mixed Personality Disorder (with avoidance, obsessive-compulsive, dependent, borderline, and schizotypal features) constituting a severe level of impairment. He also suggests you have a likely diagnosis of Social (Pragmatic) Communication Disorder, very similar to an autism spectrum disorder. Nevertheless, he observes you to have a positive attitude to accepting personal responsibility.

51In relation to this case and your empathy for Mr Batson’s family, he reported you as remembering the trauma you experienced when you lost your father in a motor vehicle collision and that you do not wish that on anyone.

52Dr Davis regards you as struggling very significantly with how you could be responsible for the death of Mr Batson and the idea that you have inflicted your own nightmare on another family.

53As to your future risk of offending, he conducted relevant testing and assessed you as being at the lower end of the low risk category.

54Dr Davis found it clear that you will struggle considerably, more so with prison life than the average inmate and from all accounts he observed that your mental state has been made worse by your imprisonment.

55The Court received two affidavits from officers of Corrections Victoria about your placement and treatment since being remanded, namely, the affidavit of Kyra Low (Exhibit B) and the affidavit of Jennifer Ann Hosking (Exhibit C).

56Upon your arrival at the Dame Phyllis Frost Centre on 3 March 2023, you were detained in a restrictive lockdown unit permitting you to leave your cell for only 1 hour per day and minimal if any contact with others.

57The prison’s private health service provider commenced the process of approving your hormone replacement therapy medication, which has since been approved and provided to you, albeit not immediately.

58Bearing in mind the importance of monitoring your medication and hormone levels, particularly after a period in police custody and upon arrival at prison when your medication was not provided, I note that on more than one occasion, including 8 and 9 March, your appointments for pathology collection were cancelled due to prison operational matters. You finally had your appointment on 12 March. When stable, you require hormone level monitoring at a minimum of once every two months. If permitted, you can engage in some self-administered monitoring, which I understand to have commenced.

59You repeatedly raised concern with psychiatric nursing staff about the deterioration of your mental health while held in 23 hour lockdown.

60I also note that you submitted a medical request in relation to a dental problem on 19 March and were, after a cancellation due to prison operational reasons, finally able to attend a dentist, only in mid-April.

61A month after your initial remand, and in the absence of any concerns about your behaviour, you remained under lockdown.  On 28 March 2023, you again raised this with a psychiatric nurse along with a triggering episode relating to childhood trauma during an interaction with a guard in a confined setting where you were kept. You do not suggest the guard did anything wrong.

62On 6 April 2023, upon review with a mental health nurse, you were referred urgently for suicide and self-harm risk assessment and placed on hourly observations.

63Six weeks after initial reception, you were transferred to a Protection Unit on 13 April 2023 where you have been permitted to interact with other women in the Unit at work and during programs, education, and leisure activities. Your counsel reported that you feel accepted by this group and you have not been subjected to any harassment or discrimination based on your transgender status. You are eligible for employment for up to five days per week and have access to the gym, library and indoor sporting activities and games the leisure centre every Wednesday and Sunday for a total of five hours per week.

64Despite the transfer to the Protection Unit, your mental health continues to deteriorate. On 26 April 2023, you were prescribed anti-depressant and anti-psychotic medication and scheduled to start one-on-one counselling on 2 May. You have been placed on a waiting list further counselling in relation to other trauma.

65In response to your gender dysphoria diagnosis, the first appointment that has been made available with an appropriate service is not until June and the next not until a telehealth appointment in September 2023. In that context and with increasing suicidal thoughts, you have had to seek out online help from your counsellor Zac Cannell at Shine SA in Adelaide, with whom you have been able to connect online twice. Perhaps unsurprisingly, you feel frustrated, stuck, and helpless. Any question of you progressing your transition this year surgically will not be possible while you remain in custody.

Sentencing issues

66The maximum penalty for dangerous driving causing death is 10 years imprisonment. The maximum penalty for failing to stop after an accident and failing to render assistance is 10 years, each.

67Dangerous driving causing death is a category 2 offence under the Sentencing Act 1991, requiring a sentence of imprisonment to be imposed, and not a combination sentence, unless specified exceptions apply.

68Dangerous driving involves a serious breach of the proper conduct of a motor vehicle upon the road, one that is ‘so serious as to be in reality and not speculatively, potentially dangerous to others’.[1] In assessing the dangerousness, I will have regard to the likelihood of harm occurring and the extent of that harm if it occurs as a result of the driving.

[1] McBride v The Queen (1966) 115 CLR 44, 72 (Barwick CJ); McBride v The Queen (1966) 115 CLR 44.

69The courts have also recognised various factors that may aggravate the seriousness of an episode of dangerous driving, without requiring them to be applied in any rigid manner.[2] Unfortunately, this Court sees cases all too often where a multiple of these factors are involved. Those factors are:

[2] Whyte (2002) 55 NSWLR 252, 286 [216]–[217]; see further, Neethling (2009) 22 VR 466, 473 [31].

(i)The extent and nature of the injuries inflicted.

(ii)The number of people put at risk.

(iii)The degree of speed.

(iv)The degree of intoxication or of substance abuse.

(v)Erratic or aggressive driving.

(vi)Competitive driving or showing off.

(vii)The length of the journey during which others were exposed to risk.

(viii)Ignoring of warnings.

(ix)Driving to escape police pursuit.

(x)Sleep deprivation.

(xi)Failing to stop.

70As can be seen, only the first and last is of obvious relevance in your case. However, the Courts have recognised that this is not an exhaustive list of things that make dangerous driving more serious. In your case, you were an experienced driver, in charge of a very heavy vehicle and Mr Batson was by comparison without protection if a collision were to occur.

71There are two questions that arise from the verdicts, related to the seriousness of your offending, that the prosecutor and your counsel submit I must decide. First, whether you actually saw Mr Batson as you approached him and, secondly, whether, after the impact, you actually knew it had occurred when you failed to stop and assist.

72It seems to me that to find that you actually saw Mr Batson and yet hit him as you passed would amount to a circumstance of aggravation and as such, I should not determine that to be the case unless I am satisfied beyond reasonable doubt that it was. This is not to say that failing to see him, in the circumstances, is not serious – it most certainly is.

73The prosecutor submitted that you simply must have seen Mr Batson. The stretch of road was straight, the conditions fair, visibility good, Mr Batson’s riding gear was bright, at least from some angles, and the time and distance over which you could have seen him was not short.

74I am not, however,  satisfied beyond reasonable doubt that you actually saw him. You told police that you didn’t. There were no tell-tale marks on the road indicating evasive action, braking or movements of the truck’s wheels in response to an impact even upon expert examination. Your use of the internet soon after was innocuous and not indicative of any concern about a collision. Your driving history and attitude to others on the road is impeccable and your demeanour on arrival at your destination a few hours later did not reflect any consciousness of hitting anyone. I accept that sometimes, drivers just do not see what they should.

75Importantly, however, failing to see Mr Batson does not mean your driving was low on the scale of dangerousness or that your culpability for that driving was not high. The opportunity to see him was over a significant time and distance as you approached. As an experienced driver, it was highly dangerous that you drove without observing who was ahead. Not seeing him in reality means that you were not in proper control of your vehicle during that period of time, which is regarded as a matter attracting considerable culpability.

76Secondly, as to whether you knew you had collided with Mr Batson following the impact, similarly, I regard this to be a question of whether I am satisfied beyond reasonable doubt that you did. For similar reasons, I am not so satisfied. A driver of your reputation and experience, known for stopping to help others and who carries an emergency kit for that purpose, in my view would have pulled over there and then. You did not display any signs of knowing when speaking to others, and you were obviously distressed when police informed you that you may have hit someone. There was no evidence to suggest the comparative weights of the truck and Mr Batson would have resulted in you feeling the impact. You denied knowing of the collision at the time and while your stop about a kilometre down the road may indicate you pausing for thought about going back, having considered it, I am not sure.

77I repeat, however, that you ought to have known. While you were entering a town on a dual carriageway with vehicles coming the other way at any moment, I accept that your eyes were likely ahead and to your right, if anywhere, rather than across the cab to check behind. However, you are experienced and skilled and should have been monitoring better than you did.

78Mr Thomson submitted that a feature of Dimboola Rd, even one that has long been recognised, is that it needs replacing, particularly to separate trucks from other traffic into and through Horsham. This may be true. However, if the state of the road means that you faced greater demands on your attention as you drove and therefore made it more likely you did not see a cyclist, then it may also be said that your attention was thereby heightened making it more likely that you would. I do not find that the nature of the road significant in my determination of the matters I must decide.

79As to the gravity of the offences of failing to stop and failing to render assistance, it must be said that these are two highly important duties placed on drivers. In recent years the maximum penalty has been increased to 10 years, requiring higher sentences to be imposed. The primary purpose of doing so is to deter people from simply driving away when a person is seriously injured or killed on the road. In some cases, although tragically not here, timely intervention by a driver stopping and assisting someone injured can save a life.

80The offences for which you have been found guilty, invariably, but not always result in imprisonment. Chief among the reasons why is to deter others from causing danger to others on the road, a place that is already a place of risk to its users. Many regard this as being the reason for great reductions in road fatalities over the years in Victoria, a result worth achieving.

81In response to the provisions in s 5(2H) of the Sentencing Act 1991, your counsel, Mr Thomson submitted that there are substantial and compelling circumstances in your case that are exceptional and rare, justifying the imposition of a gaol term of less than a year followed by a community correction order.

82In favour of this contention, he submitted that your offending fell at the lower end of the scale of seriousness, particularly given the glare of the sun rising in your eyes as you drove down Dimboola Rd, the nature of the roadway and the likelihood that you just did not see Mr Batson, all resulting in a lower moral culpability for the collision. Further, he submitted that you being a first time offender and prisoner, being placed in 23-hour lockdown because of your transgender status, not being permitted to be held in mainstream and the consequent deterioration of your vulnerable state of mental health, when combined are substantial and compelling circumstances that are exceptional and rare. He compared your case to others that display a greater range of those common aggravating features that I set out above.

83I note that the authorities have acknowledged that this test is very high, indeed it has been compared to an impossibility.

84After much anxious consideration, I am not satisfied that your circumstances fall within the very narrow category that the law requires. Your conduct as determined by the jury was not at the low end of seriousness. While your introduction to custody was extremely rocky and is perhaps still far from smooth, I find that your progression into a Protection Unit and participation with other women in work and other activities is acceptable. I am concerned about your mental health, however, you have recently been commenced on new relevant medication and engaged in other treatment.

85I do have grave concerns about the adequacy of the support you will receive for your ongoing transition, however, I am, perhaps barely, satisfied that it is adequate to keep you from harm and maintaining a status quo until you are able to return to South Australia and the services that will help you progress. I am in this respect somewhat heartened by the contact you are having with Shine SA and that shortcomings in your day to day care, if they should occur, can therefore be made known to experts in the field and rectified.

86This finding does not mean that I will not take all of the matters raised by your counsel into account.

87I will take into account your forced relocation from SA, and the attendant isolation from your intimate support network that it will require, when arriving at your sentence. I will also give weight to the hardship you have experienced in custody and the uncertain future of your treatment there as your sentence progresses. Similarly, I will have regard to the interruption you will experience in your gender transition and that this is a profoundly important aspect of your life. It is a process that is lengthy, one that has been ongoing for a considerable time with multiple stages, a significant number of which you have completed. It is something that should be supported to the maximum extent possible, consistent with other sentencing principles.

88Dr Davis provided an opinion that prison will be more onerous for you and that your mental health will likely, as it already has, deteriorate for being there. As was agreed by the parties, I will moderate your sentence in line with limbs 5 and 6 of the principles set out in the case of Verdins.[3]

[3] Verdins v R (2007) 16 VR 269; Brown v R [2020] VSCA 212, [59].

89In arriving at your sentence, I have balanced the need to denounce, and deter others from offending of this kind, the requirement to impose just punishment with the need to impose no greater sentence than necessary and to promote your recovery and rehabilitation.

90You have no relevant criminal history and were at the time of this incident a person of good character. You are at low risk of further offending and so I do not propose to give any significant weight to deterring you from further misconduct or the need to protect the community from you.

91I regard the delay in this case as being very significant. It is now nearly 3 ½ years since the collision. With your good character, having a trial and the almost certainty of prison hanging over your head if convicted will have been a heavy toll and perhaps one that is hard to understand until you experience it. During that time, you have shown that you are a contributor to the community, a worker, a loving family member and a woman with an ever brighter future. It is clear also that during that time, you have been sorely affected by what occurred and I expect that regardless of any goal time, that will continue.

92As conceded by the prosecutor, I will not cumulate sentence as between charge 2 and 3. However, I will order a moderate degree of cumulation of the sentence on charge 2 upon that for charge 1, bearing in mind the need to ensure that your total sentence should remain proportionate to the total of your conduct and no higher.

93Both your counsel and the prosecutor invited me to consider comparative cases. To that end, I have had regard to the following that involved drivers whose dangerousness arose from a failure to pay proper attention alone, who had a good driving history and no criminal history. I do not regard any of them as being on par in all respects with your case and I have not permitted them to constrain my assessment of a just result in your case. I acknowledge that none of these sentences were imposed following a trial.

(a)   In Parker v R [2022] VSCA 207, an application for leave to appeal, the dangerous driving occurred in good conditions, although somewhat hampered by sun glare, when the driver cut a corner and failed to keep a proper lookout for pedestrians over a relatively short period. A community corrections order only was imposed that was described as very merciful.

(b)   In Lee v R [2021] VSCA 156, the dangerous driving occurred in light traffic with good visibility when the driver went through a red light having failed to pay proper attention for over about 15 seconds over 150m, hitting a pedestrian who was crossing on a green light and causing serious injuries, not death. The dangerousness was described as high as was the driver’s culpability. A sentence of 6 months was described as merciful.

(c)   In Koukoulis v R [2020] VSCA 19, the dangerous driving was the failure of a heavy vehicle, a bus driver to keep a proper lookout when entering an intersection resulting in hitting a pedestrian. The driver was distracted by looking at a document as he moved off from lights at low speed. A combination sentence was imposed, although only the licence disqualification period was the subject of the appeal.

(d)   In Al-Anwiya v R [2022] VSCA 181, the dangerous driving arose in good conditions and out of a failure, for an indeterminate period, to keep a proper lookout for a pedestrian who stepped out onto the road at an appropriate place, albeit one not controlled by lights. The driver suffered from PTSD such that imprisonment would be substantially and materially more burdensome. A combination sentence of 10 months and a CCO was held to be lenient, extremely moderate but well within the range.

(e)   In Pan v R [2020] VSCA 42, the dangerousness consisted of driving through a stop sign at a notorious intersection with a failure to have proper regard to a reduce speed sign and rumble strips. A Sentence of 2 years 4 months with a non-parole period of 12 months was substituted on appeal.

(f)    In DPP v Hanson [2022] VCC 2007, not an appeal case, a heavy vehicle driver collided with the rear of a car that had stopped to turn right, due to a failure to pay proper attention, and not having time to move out of the lane so as to avoid a collision. The inattention was prolonged and due to the driver having a sip of coffee and putting the coffee cup in a holder as he approached the turning car. The sentence was 2 years 10 months.

(g)   In Woldesilassie v R [2018] VSCA 285, the dangerous driving occurred in cold rainy conditions when the driver failed to pay proper attention to a red light for about 10 seconds over 120m while passing a number of other cars that had slowed and stopped, before hitting two pedestrians – one died and the other was seriously injured. The driver was distracted by ruminations about his family situation. The sentence for causing the death was 3 years 6 months.

94I called for and received an assessment by Community Corrections about your suitability for a community corrections order, if one were to be imposed.  You were, unsurprisingly given your lack of criminal history, suitable.  However, that does not determine whether or not that order would be appropriate. 

95Having regard to all that I have set out above and in all the circumstances of the offending, I have decided that only a sentence attracting a non-parole period is appropriate.  However, it will be one that permits you to engage in supported reintegration back into the community at an early stage of the overall sentence.

96I sentence you as follows:

(a)   On charge 1, dangerous driving causing death – 2 years 5 months

(b)   On charge 2, failing to stop – 1 year 8 months

(c)   On charge 3, failing to render assistance – 1 year

(d)   Eleven months of the sentence on charge 2 is to be served cumulatively upon the sentence in charge 1, making a total effective sentence of 3 years 4 months.

(e)   I fix a non-parole period of 20 months.

(f)    I declare that you have served 64 days pre-sentence detention and direct that this be reckoned as a period already served under this sentence.

Ancillary orders

97In accordance with s 61 of the Road Safety Act 1986 (VIC), I cancel any Victorian driver licence you hold and disqualify you from obtaining another for a period of four years. That is the minimum that the law permits, and I will not go beyond it.

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