Director of Public Prosecutions v Perry
[2023] VSC 761
•18 December 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0012
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| SHANE WILLIAM PERRY | Accused |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 June, 2 October, 30 October, 12 December 2023 |
DATE OF SENTENCE: | 18 December 2023 |
CASE MAY BE CITED AS: | DPP v Perry |
MEDIUM NEUTRAL CITATION: | [2023] VSC 761 |
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CRIMINAL LAW – Sentence – Dangerous driving causing death – Dangerous driving causing serious injury – Whether circumstances justify any of the exceptions to s 5(2H) Sentencing Act1991 being applied for Category 2 offence – Low objective gravity – Psychologically vulnerable offender due to childhood rejection and abuse – Severe psychological sequalae following fatal collision – Delay – Extenuating circumstances based on family and personal hardship – CCO for 3 years and driver’s licence cancelled for 2 years – Sentencing Act1991 ss 5(2H), 5(3).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R de Vietri | Office of Public Prosecutions |
| For the Accused | Mr F Cameron | Borchard & Moore |
HER HONOUR:
Introduction
Shane Perry, on 20 April 2023, a jury found you guilty of one charge of dangerous driving causing death[1] (‘charge one’) and one charge of dangerous driving causing serious injury[2] (‘charge two’). Both charges resulted from a motor vehicle collision that occurred on 21 February 2020 at the intersection of Wells Road and Gilchrist Way in Aspendale Gardens.
[1]Pursuant to s 319(1) of the Crimes Act 1958 (Vic) (‘Crimes Act’).
[2]Pursuant to s 319(1A) of the Crimes Act (n 1).
For charge one the victim was Eileen McDonald, and for charge two the victim was Nicole Muller.
The maximum sentence for dangerous driving causing death is ten years’ imprisonment. Regarding charge two, the maximum sentence is five years’ imprisonment.
Documents tendered on behalf of Crown and defence[3]
[3]The Court also received written submissions from the parties regarding the recent Court of Appeal decision of DPP v Kenneison [2023] VSCA 321 (Crown submissions received 18 December 2023; Defence submissions received 15 December 2023).
Mr Albert for the Crown tendered the following documents at your plea hearing:
(a) Submissions on sentence;[4] and
(b) Victim impact statements.[5]
[4]Exhibit P1: dated 15 June 2023.
[5]Exhibit P2: Victim impact statements of Jennifer Kay Page, Michelle Anne Pieters and Jennifer Louise Muller.
Mr Cameron, acting on your behalf, tendered:
(a) Defence plea submissions;[6]
[6]Exhibit D1: dated 12 June 2023 (‘Defence Plea Submissions’).
(b) Psychiatric report of Associate Professor Danny Sullivan (‘Assoc. Prof. Sullivan’);[7]
[7]Exhibit D8: dated 27 September 2023 (‘Sullivan Report’).
(c) Psychological report of Penelope Karvelis;[8]
[8]Exhibit D2: dated 18 May 2023 (‘Karvelis Report’).
(d) A letter of apology written by you;[9]
[9]Exhibit D3: dated 9 June 2023.
(e) A child protection report relating to your children;[10]
[10]Exhibit D4: dated 4 November 2019.
(f) A notice of conciliation conference relating to your family;[11]
[11]Exhibit D5: dated 19 March 2020.
(g) An intervention order made against your wife Kim Perry on 31 March 2020;[12]
[12]Exhibit D6.
(h) A bundle of character references;[13]
[13]Exhibit D7: Kim Perry; Christopher Murphy; LP; BP; EP; Kathryn Mackay; and Paul Russo.
(i) Supplementary defence plea submissions;[14]
[14]Exhibit D9: dated 30 September 2023 (‘Defence Supplementary Plea Submissions’).
(j) Radiology notes of Dr Mark Hamlin regarding a chest and abdomen CT scan in relation to Kim Perry, received over the weekend of 30 September 2023;[15]
[15]Exhibit D10.
(k) Letter from Oakwood School, Noble Park regarding your daughter;[16]
[16]Exhibit D11: dated 2 October 2023 and relating to EP.
(l) Email dated 9 October 2023 from Dr Jeremy Neeman (Medical Oncology Registrar at Monash Health) regarding Kim Perry’s biopsy results;[17]
[17]Exhibit D12.
(m) Headspace documentation in relation to your daughter;[18]
(n) Further supplementary defence submissions;[19] and
(o) A letter from Dr Sophie He (Dandenong Hospital General Medicine Intern) provided on 11 December 2023 regarding Kim Perry.[20]
[18]Exhibit D13; relating to EP.
[19]Exhibit D14: dated 27 October 2023.
[20]Exhibit D15.
Circumstances of the offending
The circumstances of your offending are as follows. At 12:05 pm on Friday 21 February 2020, you were driving your Holden Commodore sedan in a south-easterly direction on Wells Road, Aspendale Gardens. Wells Road had a speed limit of 80 kilometres per hour and was a dual carriageway separated by a wide median strip with two lanes running in each direction.
Shortly before the collision occurred, Jennifer Muller, aged 55, was driving a Mitsubishi Lancer in a north-westerly direction along Wells Road. Eileen McDonald, aged 95, was seated in the front passenger seat, and Jennifer’s 24-year-old daughter, Nicole, was seated in the rear behind Eileen McDonald.
You entered the designated right turn lane, which led to a gap in the median strip for right-turning vehicles. You intended to turn right from the right-hand turn lane across two traffic lanes before entering Gilchrist Way. The gap in the median strip was also available for north-westerly bound drivers who were intending to perform a U-turn. At the time you intended to turn right you were faced by a give way sign, and there was a painted broken give way line. You were required to give way to oncoming traffic travelling north-west along Wells Road.
You commenced your right turn, passing through the gap in the median strip and entering the north-west lane of Wells Road thereby crossing into the path of Jennifer Muller’s Mitsubishi Lancer, and colliding with her vehicle. The front of Ms Muller’s Lancer contacted the passenger side of your Holden Commodore sedan.
Shortly prior to the collision, Richard Johnson was driving his SsangYong Musso 4-wheel drive vehicle north-west on Wells Road. Mr Johnson drove into the far right U-turn lane of Wells Road, towards the same gap in the median strip that you were in before you commenced your right-hand turn. Mr Johnson intended to perform a U-turn, but did not complete that manoeuvre due to the collision between your car and the Lancer.[21]
[21]An overhead view of Wells Road and Gilchrist Way – showing the area of impact, and the direction of travel of each vehicle prior to the collision – was supplied as Figure 1 in the statement created by Crown expert D/L/S/C Hardiman (tendered by consent before the jury).
Following the collision, you told a number of people at the scene that you could see a ute or a 4-wheel drive,[22] but did not see the Lancer until moments before the collision.
[22]Taken to be a reference to the SsangYong Musso.
Eileen McDonald sustained multiple fractures and internal injuries in the collision. These injuries led to her death some days later, on 25 February 2020. Nicole Muller suffered a broken leg that required multiple surgeries, including the insertion of a steel rod in two places. She also fractured four vertebrae in the collision and needed to wear a neck brace for six weeks. Her front teeth were damaged and she received extensive bruising. At trial you conceded that the injuries suffered by Nicole Muller met the definition of ‘serious injury’ for the purposes of charge 2. Jennifer Muller received some injuries in the collision but was not seriously injured.[23]
[23]She received a broken wrist, whiplash and extensive bruising.
Victim impact statements
Victim impact statements were received from Jennifer Kay Page, Michelle Anne Pieters and Jennifer Louise Muller. Jennifer Page is the 30-year-old great-granddaughter of Eileen McDonald and had a special bond with her great-grandmother. She said of Mrs McDonald that, although her body was slowing down, her mind was still alert, and that Mrs McDonald had a big heart. Ms Page conveyed the grief that she felt as a result of her great-grandmother’s passing.
Michelle Pieters was the granddaughter of Eileen McDonald, and feels her loss immeasurably. She felt blessed to have had her grandmother in her life for 46 years, and said there is not a day that passes when she does not think of her in some way.
Jennifer Muller described the emotional impact of the accident on her, and finds it very difficult to drive since the accident. She experienced grief over the loss of her friend, Eileen McDonald. The accident was a life-altering event for her, and she believes it was also a life-altering event for her daughter Nicole.
I have taken the abovementioned victim impact statements into account in considering your sentence in this case.
Nature and gravity of the offending
At trial, there was no dispute that the death of Eileen McDonald and the serious injury to Nicole Muller were caused by the collision between two vehicles, in which you were one of the drivers. The issues for the jury to determine were whether your manner of driving at the time of the collision was ‘dangerous’ according to law, and whether it was your dangerous driving that caused Eileen McDonald’s death and Nicole Muller’s serious injury.
You did not dispute that your failure to give way to Jennifer Muller’s vehicle involved some degree of blameworthiness, but you raised an issue as to whether the Crown could establish that your manner of driving involved a serious breach of the proper management or control of a vehicle which created a real risk that members of the public in the vicinity would be killed or seriously injured.
The Crown did not allege that your speed was excessive prior to the collision,[24] but they emphasised that you bore an obligation to give way and to exercise caution if your view was impeded by the larger vehicle. The Crown relied on admissions you made at the accident scene where you said that you did not see the car you collided with because there was a ute in the way.
[24] The evidence of D/L/S/C Hardiman as to estimates of speed prior to impact was that at the time of the collision the Lancer was travelling at an estimated speed of 67–79 kilometres per hour, and the Commodore was travelling at an estimated speed of 36–48 kilometres per hour.
The fact that Mr Johnson’s SsangYong Musso was a larger than normal vehicle did not alter your obligation to give way or stop before commencing to turn across the oncoming lanes of traffic in Wells Road. Mr Albert submitted that your failure to give way, or to keep a proper lookout or slow down or stop to avoid the risk of colliding with a vehicle that had the right of way, involved a gross breach of your responsibility as a driver. He argued that you should have waited for the larger vehicle to move to a position that was not obscuring your view, or that you should have inched forward slowly to ensure a better view before commencing to cross through the lanes of traffic.
Ultimately, the jury must be taken to have been persuaded by Mr Albert’s arguments on these matters.[25] Notwithstanding arguments advanced by your counsel as to the absence of indicia of dangerousness that might be observed in other cases – such as the effects of alcohol or drugs, sleep deprivation, mobile phone use, or distracted driving – the jury convicted you on both charges.
[25]There was no contribution to the collision from poor road conditions, poor weather or visibility, poor vehicle condition, or the driving of others.
Mr Cameron emphasised that although you pleaded not guilty, there was an issue to be tried and your trial was run as narrowly and efficiently as possible to minimise distress to the victims. Mr Albert conceded that your trial was conducted in an expeditious manner, focused on the only real issue as to whether the Crown could establish beyond reasonable doubt that your driving was relevantly dangerous prior to the collision. I accept that your trial was conducted very expeditiously.[26]
[26]Openings and Agreed Facts were put before the jury on Day 1, a jury view occurred on Day 2, and then on Day 3 (following brief evidence called by the Crown) the Crown closed its case. Following an unsuccessful no-case submission, the final stages of the trial occurred on 18–20 April 2023, with the jury commencing their deliberations at 3.22pm on 18 April 2023 and returning verdicts at 12.13pm on 20 April 2023.
In advancing the plea in mitigation, Mr Cameron submitted that your conduct falls within the lowest range of objective gravity for cases of dangerous driving causing death or serious injury. He referred to comparative cases where a potential or actual risk was, or could be, observed by the driver in advance of a collision and sought to distinguish the facts in this case.[27] I have had regard to those cases, but note that questions of objective gravity turn on matters of fact and degree in each individual case.
[27]DPP v Lombardo (2022) 102 MVR 19 (‘Lombardo’); DPP v McKinnon [2023] VCC 88; DPP v Di Fuccio [2022] VCC 949; R v Duong [2022] VSC 816; DPP v Bell [2021] VCC 114; DPP v Lorkin [2022] VCC 1490. See Defence Plea Submissions (n 5) [18].
Mr Cameron pointed out that it is common ground you were not speeding at the time of the collision or showing other behaviour of distraction or carelessness, and the issue of fault was narrowly focused on your manner of driving moments before the collision when you failed to give way. The vice in your driving was a failure to consider the possible existence of a vehicle travelling in the position the Lancer was in, because your view was obscured by the larger SsangYong Musso.
It was put that this case did not involve a prolonged failure to pay attention, but instead there was a failure to consider that your view might be obscured. Therefore, Mr Cameron submitted that your moral culpability was reduced compared to many other cases of dangerous driving.
It was plainly open to the jury to be satisfied beyond reasonable doubt that your manner of driving did involve a serious breach of the proper management or control of your vehicle, based on your decision to turn through lanes of potentially fast-moving oncoming traffic at a time when your view was obscured by the SsangYong Musso.
However, I accept that the objective gravity of your offending falls very much at the lower end of the scale of seriousness for each charge, and that your moral culpability for the offending is also low. The seriousness of each offence is not determined by the level of injury or hurt suffered by each victim. Rather, it is the driving itself which is the key matter when compared to other cases of dangerous driving causing death or serious injury. The sentences I impose must take account of variations in the moral culpability that attaches to persons charged with these offences.[28]
[28]DPP v Neethling (2009) 22 VR 466, 472 [30] (Maxwell P, Vincent JA and Hargrave AJA), citing DPP v Oates (2007) 47 MVR 483, 486 [21] (Neave JA, Warren CJ agreeing).
Whilst you made a significant error of judgment in attempting to turn across lanes of potentially fast-moving oncoming traffic[29] at a time when your view was impeded by Mr Johnson’s SsangYong Musso, there were no other aspects of your driving or your behaviour after the collision that aggravate the offending. Indeed, Mr Albert conceded that the offending was at the low end of the scale for these types of offences, although he disputed the defence submission that it was at the lowest end of the scale.[30]
[29]. As indicated earlier, the speed limit in Wells Road was 80 kilometres per hour. Ms Muller’s vehicle was estimated to have been travelling at a speed of between 67–79 kilometres per hour prior to the collision.
[30]Transcript of Proceedings, The King v Shane William Perry (Plea) (Supreme Court of Victoria, S ECR 2022 0012, Jane Dixon J, 16 June 2023) 11 (‘Transcript’).
Procedural history
Mr Perry, you were charged by police on 21 January 2021, which was 11 months after the date of the motor vehicle collision leading to those charges. You were granted bail and you have remained on bail until now. Committal proceedings took place in the Magistrates Court on 10 September 2021, but no witnesses were required by you and the matter proceeded on the basis of submissions only. A charge had originally been laid in relation to injury to Ms Jennifer Muller, but you were discharged on that charge at committal. On the remaining indictable charges, you were originally committed to the County Court, but the matter was transferred to this Court as a result of listings pressures in the County Court caused by the COVID-19 pandemic.
Various procedural steps took place prior to your trial being commenced on 12 April 2023.[31] Verdicts of guilty on each charge were delivered by the jury on 20 April 2023. Your solicitor had filed a report from your treating psychologist Ms Penelope Karvelis in advance of your plea hearing which commenced on 16 June 2023, but the Crown sought her attendance for cross-examination. Owing to difficulties with her availability – and a decision reached by the defence that it would be desirable to obtain a forensic psychiatric assessment and gather further material about your family circumstances – the matter was adjourned to 2 October 2023.
[31]The first directions hearing occurred in this Court on 28 January 2022, and there was a brief s 198B hearing in relation to one witness on 24 June 2022. A case conference was conducted by Lasry J on 13 September 2022 and ultimately the matter was listed for trial on 12 April 2023.
On resumption of your plea on 2 October 2023, Ms Karvelis was called to give evidence, but some further concerns about your family circumstances had emerged while the matter was part-heard. On 1 October 2023 Kim Perry provided to your solicitors a CT scan of her chest and abdomen which suggested that she may have lung cancer. She was booked for an urgent biopsy, and it was considered that some further information would be available after the biopsy; and also that some more concrete information should be obtained about the welfare of your two adolescent daughters BP and EP. The matter was therefore adjourned to 30 October 2023.
On that day, the Court was informed that Kim had been diagnosed with small cell lung cancer that was described as an aggressive form of cancer, requiring her to immediately commence radiotherapy. Also, further documentation about the welfare of your 14-year-old daughter EP was put before the Court.[32]
[32]Letter from Oakwood School, Noble Park (Exhibit D11) and Headspace documentation (Exhibit D13).
I decided to call for a Community Correction Order (‘CCO’) assessment. An extended pre-sentence assessment was sought, and a report was made available in advance of the final part-heard plea date of 12 December 2023. The findings of that report were favourable to you, and you were assessed as suitable for a CCO. In particular, the report noted your stable accommodation, full-time employment and family circumstances as being protective factors in your favour, and that you were willing to comply with the requirements of the order.
I received a further medical report filed on 11 December 2023 regarding Kim Perry, indicating that she had suffered a stroke during admission to hospital between 2–8 December this year. I was told that, as a consequence, Kim’s radiotherapy treatment for her lung cancer has had to be suspended. These developments regarding Kim’s ill health crystallised after the provision of the evidence and reports of Ms Karvelis and Assoc. Prof. Sullivan, but obviously add further weight to the concerns expressed by them regarding your family’s welfare should you be imprisoned.
There has been unavoidable delay between the time of the collision and the date of your sentencing. This has in part been due to the charges being contested, but there have been other factors at play, including a delay before you were first charged, court backlogs created by the COVID-19 pandemic, delays in the provision of expert reports, and the unfortunate recent developments concerning your wife’s ill health.
During the period that you have been on bail, you have engaged in rehabilitation by attending regular psychological counselling. You have not reoffended in any way. These factors are favourable to you, and I consider that with appropriate psychological support and social support for your family, you are unlikely to reoffend.
I have read the testimonials put forward by various family members expressing their support for you.[33] It is clear from reading those letters that your contributions as a father, stepfather and husband are valued, and your family depend upon you both emotionally and materially.
[33]Exhibit D7: character references of Christopher Murphy (stepson), LP (daughter), BP (daughter), EP (daughter), Kathryn Mackay (daughter-in-law) and Kim Perry (wife).
Your employer, Paul Russo, also provided an employer’s reference in support of you. He spoke highly of you, describing you as a hard and industrious worker, and an honest, fair and dependable employee.[34]
[34] He states that you are a hard and industrious worker and an honest, fair and dependable employee who has worked for Hermes Abrasives Australia Pty Ltd since August 2013.
Regarding the question of remorse, Mr Cameron drew attention to your letter of apology[35] as evidence of remorse. Your treating psychologist, Ms Karvelis, suggests that your expressions of remorse and regret are genuine and that the accident reinforced your view of yourself as worthless and hopeless. It seems that you cannot forgive yourself, and you feel unable to move forward with your own life, seeing little hope for improvement in your circumstances.[36]
[35]Dated 9 June 2023.
[36]Ms Karvelis indicates that suicide was seen as the only option at times of great despondency.
The Crown did not dispute that you are remorseful towards the victims of the collision, although it was pointed out that this was not a case where you pleaded guilty to the offences.
Whilst you have some prior convictions for dishonesty and nuisance offences committed over 30 years ago, they are not relevant to the offences currently before the Court.[37] I was informed, favourably to you, that you have a good driving record.
[37]Sentenced to probation for 2 years in the Melbourne County Court in 1983 for receiving and unlawful possession, theft of a motor vehicle and criminal damage. Fined $100 ($50 on each charge) for refuse to state name and address, force doors of vehicle and indecent language in the Melbourne Magistrates Court in 1990. Sentenced to 15 months’ imprisonment with a minimum of 9 months in the Melbourne County Court in 1992 for handle/receive/retention stolen goods. Sentenced to 6 months’ imprisonment (paroled on 28 August 1992) in July 1992 for unlawful possession in the Melbourne Magistrates Court in 1992; and received a further suspended sentence for further unlawful possession offences on an appeal in the Melbourne County Court in August 1992.
Personal history and forensic assessments
Turning to your personal background, the 18 May 2023 report of Ms Karvelis indicated that, when seen by her, you were a 58-year-old man who had been referred by your doctor in September 2021 for management of severe post-traumatic stress disorder (‘PTSD’) and depression. You attended weekly intervention sessions.
Ms Karvelis described you as a deeply withdrawn and distressed individual reporting an unhappy life and being completely overwhelmed by the stresses you had faced in your life. You described feeling ‘empty’ and having no energy or motivation and viewing your life as meaningless. Your upbringing was identified as a primary source of your depression and sense of hopelessness and lack of self-worth.
Ms Karvelis opined that the fatal accident had primary significance in triggering your already severe and extensive psychological symptomology and that you showed signs of severe PTSD symptoms.
In summarising your upbringing, Ms Karvelis reported that you are the oldest of three children with a sister who is aged 55. Your younger brother is deceased. You had a traumatic upbringing, and recalled your early life as being ‘plagued with child protection investigations as well as care and protection orders’. You told Ms Karvelis what you knew of an early childhood fall from the balcony of your family’s public housing apartment, leading to child protection staff becoming involved with your family. When you were 14 years of age you were placed in a boys’ home for care and protection. You felt rejected by your parents during your adolescence.
Your parents argued frequently, and when you were 20, they divorced. At 24, you were residing in a flat with your 18-year-old brother when you discovered that he had died unexpectedly from a prescription drug overdose. You became severely depressed after the death of your brother, and felt helpless and hopeless that you could not save him. You continue to feel guilty about this, as you were unaware that your brother was abusing prescription medications.
Regarding your education and employment history, Ms Karvelis stated that you only attained Year 9 at secondary school, and that your formal education was interrupted by periods in care and protection homes, including Turana Youth Training Centre (‘Turana’). After secondary school you gained employment as a supermarket trolley collector and were promoted to a night-fill worker. In 1992, you served a prison sentence relating to possession of stolen goods, and following release you commenced employment as a process worker. You remained with the same company for about 20 years before joining your current employer in the abrasives industry where you have worked for some 10 years.
Ms Karvelis noted that your description of your first marriage suggests that the union was distant and detached, echoing your parents’ relationship, and that you seemed to have viewed yourself as powerless to change the direction of your life. You tended to gravitate towards disaffected peers engaging in antisocial behaviour. You missed the birth of your eldest daughter due to being imprisoned, but after serving that sentence you gained employment and established a strong work ethic. Although you had another daughter with your first wife, the marriage dissolved and in the year 2000 you met your current wife, Kim. Kim was pregnant with a child to her former partner at the time you met her.
You have been together with Kim for 21 years, and have been married to her for several years. You told Ms Karvelis that you and Kim have four children: SP (22), LP (21), BP (16) and EP (14).[38] SP, the oldest of the four, has a different father and is therefore your stepdaughter.
[38]I note that the ages of SP and LP as recorded in Ms Karvelis’ report (as well as in other materials before the Court) were inaccurately said to be 20 and 19 respectively; their correct ages were gleaned during the plea hearing on 12 December 2023.
I interpose here that the various reports and documents before the Court have referred to children from your first and second marriage, as well as your wife’s children from her previous marriage, in ways that were confusing at times. Mr Cameron clarified those matters when you were last before me, explaining that references to your stepchildren contained in the various materials before the Court were references to SP, as well as to the two children from Kim’s previous marriage, Chris and Samantha Murphy.[39]
[39]It was further clarified that Kathryn Murphy (‘Mackay’), the author of one of your character references, is the wife of Chris Murphy.
You described to Ms Karvelis a positive and close relationship with your stepchildren, although each of them was estranged from Kim. Your adult children from your first marriage live independently with their own families.
Your marriage to Kim was characterised as being marred by dysfunction and discord. Kim reportedly suffers from borderline personality disorder (‘BPD’), which has manifested in episodes of self-harm, suicide attempts and aggressive behaviour towards her children and others. Your wife’s mental health condition has resulted in ongoing involvement from child protection workers. Sixteen year-old BP and fourteen year-old EP have largely depended on you for safety and security. You are also the only financial provider for the family.
You told Ms Karvelis that in 2019, only months before the accident, you were informed by BP and EP (who were then 10 and 11) that Kim was cutting her wrists in their presence while you were at work. You worked with the Department of Health and Human Services to provide safety for your children. Your wife was made subject to an intervention order for a period of time, prohibiting her contact with the children or you. She breached the order on multiple occasions, and on one occasion physically attacked you. She changed her name from Kim Perry to Riley Gibbs. Since that time the situation settled somewhat and Kim resumed her married name.
As a result of Kim’s behaviour, you described experiencing suicidal ideation, noting, ‘she just doesn’t stop’. You described an extreme sense of helplessness and feeling that you had no control over your life. Ms Karvelis considered that your social and occupational functioning would have been impaired at that time.
In support of the family history you provided to Ms Karvelis, Mr Cameron tendered copies of family violence intervention orders and child welfare documentation evidencing the family disruption caused by your wife’s psychological illness during 2019 and 2020. Before discussing the diagnostic conclusions of Ms Karvelis, I will refer to the psychiatric report obtained from Assoc. Prof. Sullivan.[40]
[40]Associate Professor Danny Sullivan is a Consultant Forensic and Adult Psychiatrist.
Assoc. Prof. Sullivan assessed you and prepared a report dated 27 September 2023. He confirmed relevant details about your background, noting your disrupted schooling and that, due to behavioural and home problems, you were placed in Travancore School.[41] You also attended the Bouverie Centre,[42] and were then placed at Turana. You told Assoc. Prof. Sullivan that at the age of 14 your parents were unable to provide care for you and you were deemed ‘uncontrollable’. You recalled being in Baltara Reception Centre for around two weeks after you had ‘a blow-up’ and were in and out of Turana for around three years.
[41](A school for children experiencing mental health, emotional or behavioural issues).
[42](A family therapy clinic).
Subsequently, you were placed in a hostel, but you struggled with that placement and absconded. You had some involvement with St Martin’s Hostel and Western Youth Welfare and eventually were placed in detention at Poplar Cottage, a high security detention facility.[43] You found this awful. You were the victim of sexual abuse in Turana. Assoc. Prof. Sullivan referred to collateral information from Turana, noting that you were made a ward of the State on 19 April 1979 as your parents found you difficult to manage. The documentation records that your parents rejected you, and tended to lay blame on you whenever something went wrong within the family. It was recorded that:
Shane’s parents do not impress as particularly caring toward Shane. They say that he is a liar and they cannot trust him. They requested to have him removed from the home… Shane appeared to be at considerable risk. He is unhappy and quite depressed.[44]
[43]A welfare report from July 1979 described you as having been placed in St Martin’s Hostel from Turana and commencing at ERA School, but then absconding. It stated: ‘Shane is a very insecure, disturbed boy who seems to handle his problems by running away. He has little support from his family situation’: refer Sullivan Report (n 6) 7 [43(c)].
[44]Ibid 7 [43(b)].
A further report described you as a very confused boy.[45]
[45]Dated 18 October 1979: refer Sullivan Report (n 6) 7 [43(d)].
Assoc. Prof. Sullivan opined that your upbringing was marked by hostile and unloving parenting, increasing behavioural disturbance and an early exit from school. You described having seen a psychiatrist, Dr J Hollander, in the past and having a diagnosis of PTSD related to your detention in Turana.
After leaving the care system, you worked in carpet-laying and other manual work. You admitted to being imprisoned in 1992 for 15 months in Pentridge D Division and Won Wron. After being released from prison, you worked for 20 years at a printing press in Clayton but were made redundant 12 years ago and since then worked at Hermes Abrasives in Braeside.
Assoc. Prof. Sullivan observed that your relationship history was marked by two marriages to women with significant mental health and/or personality difficulties associated with consequent behavioural problems and mental health difficulties for the children. You described a previous relationship with Jenny from 1990 to 1993, with three children born of that relationship.[46] Collateral documentation[47] mentioned concerns about Jenny’s parenting ability in respect of the three children, and the relative endorsement of your ability to care for the children of that relationship.
[46]Paul, Alysha and Chloe.
[47]From previous family law proceedings which included mental health assessments of you and observations of your family life dating back to 2000 and 2001.
Your relationship with Kim was also referred to, noting your description of Kim as ‘volatile’ by reference to her BPD and significant anger problems. You disclosed that at the time of the collision you were dealing with Headspace for your youngest child, and child protection were involved regarding the welfare of both BP and EP.
Assoc. Prof. Sullivan said that collateral information showed that you had been a stable and positive parent in comparison to your partners, but that currently your two teenage daughters have ongoing mental health difficulties and are in contact with professional services, which you facilitate. Despite restrictions on Kim’s contact with the children in recent years from time to time, you remained the protective parent.[48]
[48]The Sullivan Report (n 6) referred to the report of Ms Karvelis, which explained further detail about current issues in your family due to your wife’s BPD and its impacts on the younger children of the marriage.
Assoc. Prof. Sullivan had regard to a summary of your offending and your description of the symptoms you were experiencing before and after the relevant collision.[49] He observed that since the accident you had developed a significant mood disorder and were prescribed medication. You had engaged solidly and intensively with a clinical psychologist. He relevantly stated:
I considered that Mr Perry would meet a diagnosis of post-traumatic stress disorder (PTSD) as set out in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). PTSD is attributable to the accident with which he had been charged, although it is noted that he may have also satisfied such a diagnosis previously, related to traumatic childhood experiences in boys’ homes. …
He would also meet a diagnosis of recurrent depressive disorder, moderate to severe. This seems to have onset following the accident, but he is predisposed to mood disorder due to early development marked by adverse childhood experiences.
…
There is no indication that mental disorder was causally associated with the events which have resulted in charges against Mr Perry.
I consider that Mr Perry’s subsequent course has involved significant deterioration in mental health, as a direct cause of the accident.[50]
[49]The Sullivan Report (n 6) noted your engagement with a psychologist, your diagnosis with PTSD in relation to the accident that led to the charges, and that you also described significant depressive symptoms: feeling sad all the time, being disappointed in yourself, taking little pleasure in things, being self-critical, often feeling suicidal, and feeling markedly restless and suffering very poor sleep.
[50]Sullivan Report (n 6) 8 [57]–[58], [62]–[63] (bolded and italicised emphasis in original).
Assoc. Prof. Sullivan opined that, if imprisoned, your mental health would deteriorate significantly; you would not be able to receive evidence-based treatment for PTSD, and you would have the ongoing concern for the mental health of your younger children as you would not be in a position to assist in their care. There was a significant likelihood that your children would be taken into care if your wife was unable to manage.
Whilst Ms Karvelis also diagnosed you with PTSD as a result of the collision, as well as major depressive disorder (severe recurrent episode),[51] her opinion differed on the topic of whether your mental health condition causally contributed to the accident. She considered that the episodes of self-harming by Kim in the presence of the two youngest children and the consequent family disruption[52] were immense stressors present in your life prior to and at the time of the collision. She opined that your emotional and executive cognitive functioning would have been severely impaired at the time of the accident, which would have impacted your ability to focus, concentrate and make sound decisions.
[51]296.33, as defined in the Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition (DSM-V) of the American Psychological Association.
[52]Ms Karvelis said of the time that followed your wife becoming seriously (mentally) unwell (Karvelis Report (n 7) 5):
Since this time, his 15-year-old daughter has developed aggressive tendencies, which often result in violent outbursts with her mother. The 14-year-old daughter self-harms via cutting and is suicidal; Mr. Perry takes her to Headspace weekly. Mr Perry’s wife receives psychological support and is prescribed a myriad of psychopharmacology including antidepressants, antianxiety, and strong antipsychotic medications.
Ultimately, I was not satisfied as to the basis for Ms Karvelis’ opinion that your mental health was the cause of the dangerous driving that led to the collision. Whilst I accept that you had pre-existing PTSD from the childhood trauma you experienced in the boys’ homes referred to above,[53] and also that your mental health may well have been impacted by the aforementioned family pressures, I consider any suggested causal link to the actual circumstances of the collision to be rather speculative.
[53](Including sexual abuse inflicted by another inmate when you were 14 years of age).
Nevertheless, the opinion of Ms Karvelis was important in explaining the severity of family hardship and associated risks to your two youngest daughters if you were to be imprisoned. Ms Karvelis averted to the possibility of your daughters being taken into State care if you were imprisoned, which seems especially plausible now in light of recent information regarding Kim’s serious illness. Ms Karvelis reports that not only are you the sole financial provider for the family, but you are also responsible for the children’s safety due to Kim’s limited capacity. She noted that your youngest daughter confides her thoughts to you, including her suicidal ideation. She reported that your youngest daughter continued to self-harm and express suicidal ideation and only attended school twice a week. She was not safe in her mother’s care, but there were limited resources outside the family. BP, your older teenage daughter, also attends school irregularly and is inclined to be aggressive towards Kim. Both of your younger daughters placed a heavy reliance on you, even though you work full time.
I accept that, if you were to be imprisoned, the impact on Kim and your two younger daughters would be extraordinarily harsh; both because of the loss of material support, but more particularly because of their dependence on you for emotional support and safety. Ms Karvelis considered that your wife’s acute psychiatric condition requires constant management and is emotionally burdensome for the entire family. These issues may well be more pressing since your wife’s recent medical crisis.
In describing the likely effects of imprisonment, Ms Karvelis noted that your recurrent depression would make you more susceptible to a significant risk of further deterioration in your mental health.[54] Also, you would not receive the individualised treatment for PTSD in custody. She considered that you would be subject to a substantially and materially greater than ordinary psychological burden or risks within the custodial system; although whether this is so is ultimately a question for the Court. On the basis of the opinion of Assoc. Prof. Sullivan and Ms Karvelis, I accept that your mental health would deteriorate very significantly if you were imprisoned.
[54]She said you would likely experience intense depression as a result of concerns regarding the welfare of your family. The recent treatment for PTSD provided by her had been a very important process for you, but you would not be able to receive evidence-based treatment for your symptoms in custody.
The applicable law
Under amendments to the Sentencing Act1991 (Vic) (‘the Act’) introduced in October 2018, dangerous driving causing death was made a Category 2 offence. Under s 5(2H) of the Act, if a person is to be sentenced for a Category 2 offence, the Court must impose a sentence of imprisonment (other than a sentence of imprisonment imposed in addition to making a CCO) unless the offender establishes that they fall within one of several specified exceptions.
Application of s 5(2H)(c)(i)
Mr Cameron sought to rely on the exception under 5(2H)(c)(i), submitting that the Court should find on the balance of probabilities that, at the time of the commission of the offence, you had impaired mental functioning that was causally linked to the commission of the offence and substantially and materially reduced your culpability. He submitted, in summary, that impaired mental functioning can include a psychologist’s diagnosis of major depressive disorder, stress and trauma (including PTSD) and that you suffered impaired mental functioning prior to the collision as discussed by Mr Karvelis.[55]
[55]Defence Plea Submissions (n 5) [13]; Defence Supplementary Plea Submissions (n 13) [14].
He referred to the evidence of Ms Karvelis as to your significant disturbance of thought, mood, perception or memory, caused by your personal circumstances prior to the accident. The evidence of Ms Karvelis was tested under cross-examination by Mr Albert. The Crown disputed that your psychological condition was causative of the offending driving. Instead, they submitted that your driving was due to poor safety judgment. Assoc. Prof. Sullivan did not assert a causal link between your pre-existing mental health condition and the offending driving.
I was not persuaded, on the balance of probabilities, that your impaired mental functioning at the time of the offending was causally linked to the commission of the offence.
Application of s 5(2H)(c)(ii)
Regarding the exception under s 5(2H)(c)(ii), Mr Cameron submitted that the Court should find on the balance of probabilities from the expert evidence of Ms Karvelis and Assoc. Prof. Sullivan that, because of your impaired mental functioning, the burden of imprisonment for you would be substantially and materially greater than the ordinary burden or risks of imprisonment.
In the recent 2023 case of DPP v Browne,[56] the Court of Appeal appeared to accept[57] (amongst a constellation of other mitigating circumstances) that the respondent’s PTSD would result in the burden of imprisonment being substantially and materially greater for him than for other prisoners who did not suffer from that condition.[58] The Court of Appeal has also said that the hurdle set by s 5(2H)(c)(ii) represents a higher bar than that which attracts Verdins principles.[59] Justice Fox recently considered the exception under s 5(2H)(c)(ii) in a PTSD context in the case of R v Al-Anwiya.[60]
[56](2023) 103 MVR 226 (‘Browne’).
[57]Ibid 248 [100(c)] (Kyrou, T Forrest and Kennedy JJA); this was also conceded by the Crown (see at 234 [29]).
[58]This was, however, a very particular case, as the Court of Appeal was at pains to emphasise (see Browne (n 54) at 248 [103]). See also, eg, DPP v Armstrong [2022] VSC 827, [77]–[83] (Champion J).
[59]Peers v R (2021) 97 MVR 379, 390–1 [52] (Niall and Sifris JJA).
[60][2022] VSC 428; leave to appeal refused in Al-Anwiya v The Queen [2022] VSCA 181 (Priest and Beach JJA).
Having given this aspect close consideration, based on the psychiatric and psychological evidence called on your behalf regarding your current condition and taking into account your constitutional vulnerabilities which derive from your disturbed childhood, I am satisfied this exception is met pursuant to s 5(2H)(c)(ii).
Mr Cameron also sought to invoke s 5(2H)(e) of the Act, and submitted that the Court should be satisfied that there are substantial and compelling circumstances that are exceptional and rare which would justify the Court not imposing a custodial sentence. He relied on a combination of matters to satisfy the statutory threshold, including the low objective gravity of the offending; your impaired psychological condition superimposed on an upbringing that enlivens Bugmy considerations;[61] the presence of remorse; and the extraordinary hardship that would be caused to you and your family if you were imprisoned.[62] I return to the question of s 5(2H)(e) further below.
[61]Bugmy v The Queen (2013) 249 CLR 571. It was noted that the psychologist has diagnosed you with major depressive disorder, stress and trauma at the time of the offending, equating to impaired mental functioning and offending, and that you have been experiencing suicidal ideation since the accident and because of your psychological condition.
[62]Mr Cameron made reference to the delayed passage of Mr Perry’s plea, though I did not understand the question of delay to be connected to Mr Cameron’s specific arguments concerning s 5(2H)(e) of the Sentencing Act 1991 (Vic) (‘Sentencing Act’): see, eg, Transcript (n 28) 21 [24]ff and 59 [24]ff.
In placing reliance on Bugmy principles, Mr Cameron referred to your deprived upbringing, early exposure to family violence, parental rejection, and juvenile incarceration. The Crown did not dispute the application of Bugmy principles in your case. I accept that your disadvantaged upbringing invokes Bugmy considerations, but I consider that Bugmy does not have much work to do in reducing moral culpability for dangerous driving in circumstances where you have otherwise been a responsible driver throughout your adult life.[63] Whilst Bugmy factors do little to explain your poor driving judgment at the time of the offending, applied in a general rather than a specific way, they do help explain your early travails with the criminal justice system and the significance of your efforts in reforming yourself and overcoming early disadvantage.
[63]See, eg, the discussion regarding a causal nexus between disadvantage enlivening Bugmy principles and offending driving in DPP v Barrett [2023] ACTSC 260, [86]–[92] (Loukas-Karlsson J).
By the time of the offending, you had a lengthy and solid work history, and despite many challenges in your marriage to Kim, you appear to have been the glue holding your family together. You continue to be central to the welfare of Kim and your two younger children. I accept that Bugmy considerations are a feature of your make-up, and remain relevant to the determination of the appropriate sentence in your case.
Whilst I am bound to give less weight to your personal circumstances in considering the statutory regime for charge 1, I am permitted to give some weight to them, and your personal circumstances contribute to my conclusion that imprisoning you would be a harsh and destructive outcome in this case. The negative and damaging experiences you were exposed to in care and protection facilities and juvenile justice facilities have left you poorly equipped to cope with a custodial sentence at this later stage of your life.
Mr Cameron sought to argue that all limbs of Verdins were open in your case. I am prepared to accept that Verdins principles two, five and six apply to you. I am satisfied that your PTSD and depressive disorder – as expounded by Ms Karvelis and Assoc. Prof. Sullivan – meet the description of impaired mental functioning,[64] and ought have a bearing on the kind of sentence I impose on you, and the conditions under which it should be served; and is such that a custodial sentence would weigh more heavily on you than on a person of ordinary health. Also, that there is a serious risk that imprisonment would have a significantly adverse impact on your mental health.
[64]As discussed in DPP v Lombardo (n 25) 33–4 [46].
Application of s 5(2H)(e)
Regarding the ‘substantial and compelling circumstances that are exceptional and rare’ exception under s 5(2H)(e), the Court of Appeal in DPP v Lombardo[65] (‘Lombardo’) explained that s 5(2H)(e) involves an evaluative judgment for the judge to make unaffected by notions of burden of proof once the relevant underlying facts have been established in accordance with settled principle.[66] It was further explained that the proper application of s 5(2H)(e) entails a two-step evaluative process as follows:
First, the court must identify whether there are ‘substantial and compelling circumstances’. In that context, ‘substantial and compelling’ means that the circumstances are weighty and forceful or powerful. The issue is whether the circumstances are substantial and compelling so as to justify not imposing a custodial sentence. That is the criterion by which the substance and compulsive force of the circumstances are to be assessed.
The second critical step, if the circumstances are substantial and compelling in the sense described above, asks whether they are also ‘exceptional and rare’. In our view, this is to be regarded as a composite phrase imposing a single test, rather than as two discrete tests. That is because the meanings of the two words overlap; in particular, ‘exceptional’ means ‘out of the ordinary course, unusual, special’, which includes that which is ‘rare’. In that situation, a separate test asking whether something that is ‘exceptional’ is also ‘rare’ would be redundant. Instead, the two words operate together and each influences the meaning of the overall phrase.[67]
[65]Ibid.
[66]Ibid 38 [72].
[67]Ibid 37 [66]–[67] (citations omitted). This approach was recently confirmed in DPP v Kenneison [2023] VSCA 321, [37] (Emerton P, Priest JA and Taylor JA).
The two step approach was recently confirmed by the Court of Appeal in DPP v Kenneison.[68]
[68][2023] VSCA 321, [37] (Emerton P, Priest JA and Taylor JA). Whilst Kenneison was handed down after the conclusion of the plea hearing and just prior to sentence, the Crown in writing did not seek to withdraw its concession that s 5(2H)(e) was satisfied in this case, or change its position that a combination CCO and imprisonment was within range. The concession was made before Kenneison. At any event I consider that the factual matrix in Kenneison is significantly different given that the offender in that cases was driving a ten tonne truck and given the number of victims.
In determining whether there are substantial and compelling circumstances that are exceptional and rare under s 5(2H)(e), I must regard general deterrence and denunciation of your conduct as having greater importance than the other purposes set out in s 5(1) of the Act, and I must give less weight to your personal circumstances than to the nature and gravity of the offending.[69] In this regard, I observe that the Court of Appeal in Lombardo indicated that in a case where moral culpability is low (as in this case), and the offending is agreed to be at the lower end of the range for the offence, such a finding may help justify rather than negate the exception.[70]
[69]Sentencing Act (n 60) s 5(2HC)(b).
[70]Lombardo (n 25) 40 [83].
In considering whether the exceptions ought be invoked, I must not have regard to previous good character, other than an absence of previous convictions or findings of guilt, and I must not have regard to prospects of rehabilitation or parity with other sentences. Further, I must have regard to parliament’s intention that in sentencing an offender for a Category 2 offence imprisonment should ordinarily be imposed, and have regard to whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence. In my view, the cumulative impact of the circumstances do justify a non-custodial sentence in this case.
Ultimately, as more material came to light regarding your wife’s diagnosis with an aggressive lung cancer, and the precarious situation attaching to your two younger children, the Crown conceded that the criteria in s 5(2H)(e) could be met in your case, although they submitted that a combination sentence involving a CCO and prison was open.
Having considered the cumulative impact of the circumstances of the case – and conscious of the qualifying matters referred to above regarding issues that should receive a lesser degree of weight – I am persuaded, on the balance of probabilities, that the exception in s 5(2H)(e) is invoked in your case. I have reached the conclusion that the following combined factors meet the first step of being substantial and compelling. Further, I consider they meet the second step of being exceptional and rare based on:
(a) The low objective gravity of the offending;
(b) Your evident remorse;
(c) Your wife Kim’s recent diagnosis with an aggressive form of lung cancer, and her recent stroke, which is compounded by her serious pre-existing mental health concerns and self-harming behaviours associated with her BPD;[71]
[71]Within this accumulation of factors itemised at (a)–(j) above, list item (c) is in my view particularly exceptional and rare.
(d) The fact that you are Kim’s primary support and caregiver;
(e) The fact that you are the sole financial provider for Kim, BP and EP;
(f) The fragile mental health of your 14-year-old daughter EP, who has displayed a pattern of self-harming behaviours and suicidality, and the fact that she is heavily reliant on you for emotional support due to frequent conflict with her mother and elder sisters;
(g) The precarious state of your family unit due to the pressures on Kim, BP and EP, including as a result of your older daughter SP bringing her two children into your home;
(h) The risk that BP and EP could be removed to out-of-home care if you were imprisoned, and the material pressure on the family without any other financial provider able to meet expenses;
(i) The likelihood that you would suffer a very significant deterioration in your mental health if you were imprisoned; and
(j) To the extent that any delay in this matter being finalised is not attributable to any fault of yours, I also take that into account.
In reaching the abovementioned conclusion, I am aware that the Court of Appeal in Farmer v The Queen[72] – referring to a case where an accumulation of factors was relied on under s 5(2H)(e) – referred to the stringency of the test but also observed that ‘[t]o a degree paragraph (2H)(e) guards against the risk of injustice’.[73]
[72][2020] VSCA 140.
[73]Ibid [52] (Maxwell P, Kaye and Niall JJA) (emphasis added); see also [51], [55]. See further, eg, Fariah v The Queen [2021] VSCA 213.
Having determined that two of the exceptions to mandatory imprisonment apply in your case, in arriving at a just sentence in this matter I have applied the remaining purposes of sentencing in s 5(3) of the Sentencing Act as applicable.
I have not lost sight of the fact that Eileen McDonald lost her life in the collision caused by you, and that Nicole Muller and Jennifer Muller also suffered from the impacts of that collision. I have balanced the importance of denunciation, and general and specific deterrence and just punishment, which are always important considerations in respect of road safety offences. However, I note your lack of prior driving offences. Whilst your rehabilitation is not one of the factors forming the substantial and compelling circumstances in this case, it remains an important objective of sentencing, and I consider you have very good prospects of rehabilitation.
Finally, it is to be remembered that a CCO is a flexible sentencing option that enables both punishment and rehabilitation and is suitable even in cases of relatively serious offences. I consider that a properly conditioned CCO of lengthy duration is able to meet all the purposes of sentencing in the current case.[74]
[74]See Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 308, 338 [131] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
Sentence
Mr Perry, please stand.
I intend to impose a three-year community correction order for your offending in this case. I understand the proposed order, its length and conditions have been explained to you. You have been made aware of what would happen if you breached that order. I have been told that you consent to that order being imposed on the proposed terms and conditions.
Therefore, on the first charge of dangerous driving causing death, you are convicted and sentenced to a CCO for a period of three years.
On the second charge of dangerous driving causing serious injury, you are convicted and sentenced to a CCO for a period of three years. The sentences are concurrent sentences.
I order that pursuant to s 89(1)(a) of the Sentencing Act, your driver’s licence is cancelled, and you are disqualified from obtaining a further driver’s licence for a period of two years from today’s date.
The conditions of the CCO, in addition to the core conditions, are:
(a) that you perform 300 hours of unpaid community work over the period of the order in accordance with s 48C of the Sentencing Act. Treatment hours may be credited towards this condition under s 48CA of the Act;
(b) that you undertake treatment and rehabilitation, including psychological treatment for your mental health in accordance with s 48D(3)(e) of the Act; and
(c) that you undertake any program that addresses factors relating to your offending in accordance with s 48D(3)(f) of the Act.
You will be required to report to the Dandenong Community Correctional Services office within two working days of this order.
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