Director of Public Prosecutions v Pinch
[2025] VCC 783
•12 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01836
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA TED PINCH |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 May 2025 | |
DATE OF SENTENCE: | 12 June 2025 | |
CASE MAY BE CITED AS: | DPP v Pinch | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 783 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Dangerous driving causing death – fatigue – 21 year old – offender working night shifts as a baker – impact of night shift - subsequent PTSD diagnosis - major depressive disorder - mild cannabis use disorder – low objective gravity of offending – low moral culpability – genuine remorse - substantial and compelling circumstances that are exceptional and rare.
Legislation Cited: ss 5(2H), 5(2HC), 5(2I), Sentencing Act 1991 (Vic).
Cases Cited:R v Verdins (2007) 16 VR 269; Board v The Queen [2013] VSCA 190; DPP v Flamenco [2024] VCC 1377; DPP v Sandy [2023] VCC 566; DPP v Van Remmen [2021] VCC 1466; DPP v Borg [2016] VSCA 53; DPP v Curram [2020] VCC 873; DPP v McGarrigle [2022] VCC 1426; DPP v Dodt [2022] VCC 1449; Farmer v The Queen [2020] VSCA 140; DPP v Lombardo [2022] VSCA 204; DPP v Stockil [2025] VCC 260; DPP v Oates [2007] VSCA 59.
Sentence: 3 year Community Correction Order with 250 hours community work and conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Pezzimenti (for plea) Mr Morrison (for sentence) | Office of Public Prosecutions |
| For the Accused | Mr Barreiro (for plea) Ms Lyon (for sentence) | Adrian Paull Criminal Lawyers |
HIS HONOUR:
1Joshua Pinch, at about 6.35 am on Tuesday 2 May 2023, you were driving your mother's Mazda station wagon on the Ballarat-Daylesford Road in Clarkes Hill. You lost control of the car, crossed the centre of the road, and struck a Holden utility travelling in the opposite direction. Craig Ridgway was driving that utility. He died from injuries caused in the collision. He was 51 years of age. He worked as a carpenter and lived in Buninyong. You were 21 years of age and held a full Victorian Driver's Licence.
2You have pleaded guilty to a charge of driving a motor vehicle in a manner that was dangerous to the public, having regard to all the circumstances of the case, and causing the death of Mr Ridgway.
Circumstances of offence
3The circumstances of your offending are set out in Exhibit P1, the Summary of Prosecution Opening. You do not dispute the matters in the Summary, and they form the factual basis upon which you are to be sentenced.
4At the time of the collision, you were employed as an apprentice baker in Daylesford. You were rostered to work nightshifts Sundays to Thursdays, working between 10.00 pm and 6.00 am.
5On the morning of the collision, you started your drive home shortly after finishing work at 6.00 am. You had driven approximately 27 kilometres, and you were about 15 kilometres from your home in Ballarat.
6
Just before the collision, you drove approximately 150 metres south of
Boundary-Church Road and over a crest when you crossed the solid white dividing line. Your car partially entered onto the incorrect side of the road and collided with
Mr Ridgway's utility, causing a 'side swipe collision'. Both cars rotated in a clockwise direction, ending up on grass verges next to the road. Mr Ridgway's car was severely impacted, and he sustained multiple serious injuries from which he died shortly afterwards.
7Although you sustained an injury to your leg, you managed to get out of your car. You went to Mr Ridgway and called Triple 0. During the call, you stated:
I was driving along the road and I fell asleep at the wheel and the next thing I knew there was another car. I feel so bad.
8You gave the operator details concerning Mr Ridgway, who was breathing but unresponsive and trapped behind the wheel of his car.
9A passing driver, Fiona Corry, stopped to assist. She states you 'freaked out' when she shone her torch on Mr Ridgway. You said to her 'I should not have been driving. I fell asleep behind the wheel'. Ms Corry was concerned you might go into shock.
10
Ross Faderson was another driver who stopped to assist. You told him that you thought you had fallen asleep behind the wheel and you were afraid you had killed someone. You said you could not remember the incident. You also told
Mr Faderson that you had smoked some cannabis on the weekend but had not had anything for 24 hours.
11A passing off-duty paramedic, Richard Dalton, checked on Mr Ridgway. He attempted to assist Mr Ridgway but there were no signs of life.
12Police attended the scene at about 6.50 am. You spoke to Senior Constable Samuel Dugteren and gave him your details. When asked what had happened, you said:
I'm pretty sure I fell asleep 'cause I was driving along. I don't – don't even, like, remember closing my eyes and the next thing I know I'm spinning around and … I don't remember closing my eyes but the next thing I knew I was, like, spinning around in the car.
13You were required to undergo a preliminary breath test which returned a negative result. Senior Constable Dugteren's impression was that you were alert and orientated.
14It was put by the learned prosecutor, Ms Pezzimenti, that due to excessive fatigue, you fell asleep, and this resulted in you losing control of your vehicle resulting in the collision and the death of Mr Ridgway.
15The collision was investigated by police officers from the Major Collision Investigation Unit. The speed of both vehicles was not able to be calculated but in the opinion of the collision reconstruction expert, Detective Sergeant Robert Hay, neither car was exceeding the speed limit.
16On 9 June 2023, you attended the Ballarat police station by appointment. You told police that you remembered bits afterwards, but you genuinely did not remember the crash. You could not give an explanation for what happened. You stated:
I never wanted anything like this to ever happen. I'm sorry, it's just hard. I saw him. I called the ambulance when I saw him. I'm really sorry.
17You were asked whether you had smoked cannabis before you went to work. You said you smoked cannabis on the weekends and had some on the Sunday before the crash.
18At the time of the collision there was heavy fog and visibility was not good. The speed limit was 100 kilometres per hour. The north and southbound lanes were each 3 metres wide. The road had no visible defects. You were heading in a southerly direction. Vehicles travelling south were able to enter the northbound lane when safe to do so.
Victim Impact Statements
19The learned prosecutor tendered two Victim Impact Statements.
20
Mr Ridgway's partner, Debbie Truswell, had her statement read out in Court by
Ms Pezzimenti.
21Ms Truswell states that she and Mr Ridgway were together 23 years and had always been very open and honest about death, dying, and their beliefs. This, she said, has been a great comfort to her since the incident. Ms Truswell states she holds no animosity in her heart towards you and believes that things happen for a reason, and that everyone has lessons to learn in their lifetime.
22Ms Truswell also states that she misses her partner more than she is able to explain noting, however, that she misses his friendship, love, humour, patience, encouragement, gentleness, understanding and generosity of spirit.
23An Impact Statement was also read to the Court by Craig Ridgway's sister Sharon, on behalf of herself and the Ridgway family.
24
Sharon Ridgway states that 2 May 2023 was a date on which their lives were changed in the worst possible way. She states that nothing prepared them for the feelings of shock, devastation and disbelief on learning of Craig's death.
Ms Ridgway states that the hardest thing they ever had to do as a family was to go to the morgue and identify their loved one.
25The Ridgway family describe Craig as a kind, loving, trustworthy and hardworking person who lived life to the fullest. They feel that their life will now never be the same, having to live with anxiety, grief and sleepless nights.
26It is clear that Mr Ridgeway was a highly regarded and much-loved man. As a result of your dangerous driving, the partner and family of Mr Ridgway have been profoundly impacted, and their emotional pain and grief continue to this day, and will no doubt continue for years to come.
27It is clear from your own letter of apology that you are well aware of the devastating consequences of your conduct.
Personal circumstances and background
28You were born in Switzerland in June 2001. When you were a few years old you migrated to Australia with your family. Your mother is of Swiss descent and your father of Australian descent. You have lived in the Ballarat area for most of your life.
29Your parents separated when you were approximately five years of age, but they continued to reside together until you were aged 10. You described your parents' relationship as generally positive.
30You report that your physical needs were met throughout your childhood although you felt sheltered from your parents' issues.
31You continue to live with your mother. Both your parents attended Court during the plea hearing and remain supportive of you.
32You performed well at school, completing Year 12. You established and maintained a number of positive friendships. You received high grades and engaged in leadership roles in your final years.
33Approximately one year after completing your schooling you obtained an apprenticeship as a baker in Daylesford. This required you to travel between Ballarat and Daylesford each day and work overnight as a shift worker.
34You left your employment in Daylesford a few months after the collision because you were struggling to cope with the travel to and from your work. You have since obtained employment in Ballarat and you are currently completing your apprenticeship at another bakery. You are no longer required to work overnight shifts.
35A significant aspect of your background is your involvement in community activity. For a long time now, indeed since you were 10 years of age and in the fifth grade of primary school, you became involved with an organisation called Road RAGE - RAGE being an acronym for Ride Against Greenhouse Emissions. You have continued your involvement with that organization volunteering in many of its activities and raising funds for charities.
Psychological Report
36A report from psychologist, Austin Campbell, dated 28 April 2025, was tendered on your behalf.
37You told Mr Campbell that although you had a positive experience with your work in Daylesford, you had difficulty maintaining overnight shift work. In your discussion with him, you reported difficulty maintaining a healthy lifestyle while working overnight and driving to and from your work. You recalled that your mental health was 'low' in the weeks and months before the offence, attributing this to the impact of shift work and reliance on cannabis to reduce experiences of stress. When reflecting on the days prior to the offence, you told Mr Campbell that you had slept less than usual due to the demands of your volunteer work over the previous weekend. You said that on the morning of the offence, after completing your overnight shift, you noted feeling tired and exhausted but stated you felt able to drive home safely. You also said that you had previously utilised power naps, when needed, by pulling over to rest when driving home from work, however, you did not feel this was necessary on the morning of the collision. You reported limited memory of the moments preceding the collision, recalling suddenly waking to the sensation of spinning in your car and hearing sounds associated with the collision.
38You told Mr Campbell of experiencing symptoms of guilt and shame due to your involvement in the collision. You experience intrusive and distressing memories related to the incident. You spoke of a desire to make positive impacts on the lives of others in an effort to accept responsibility for this offence.
39You told Mr Campbell that you first used cannabis at the age of 17 years. You were using it on a near daily basis after commencing your apprenticeship as you considered it helped to reduce your stress and to assist you to sleep. You said you no longer use cannabis and intend to remain abstinent in the future.
40I should make it clear that it is not suggested by the prosecution that your use of cannabis affected your ability to drive on the morning of the incident.
41
Following the collision, you sought psychological treatment because you were experiencing symptoms of distress. You engaged in seven sessions of treatment but stopped because of financial constraints. You were diagnosed with
post-traumatic stress disorder. You told Mr Campbell you are motivated to engage in future treatment, particularly as you continue to experience trauma related symptoms of distress.
42You were also prescribed Mirtazapine to help manage your psychological distress. You used that medication for approximately six months but stopped because of negative side effects and limited perceived results.
43Mr Campbell administered the Depression, Anxiety and Stress Scale concerning self-reported symptoms of psychological distress over the preceding week. Your results were consistent with an individual experiencing mild levels of stress, moderate levels of anxiety, and extremely severe levels of depression. The results were consistent with your disclosures throughout the assessment. Mr Campbell also administered the Impact of Events Scale – Revised Assessment. Your results were consistent with an individual experiencing a moderate level of overall symptoms comprised of few hyperarousal symptoms and moderate levels of intrusion and avoidance symptoms.
44Based on the psychological assessment and your disclosures, Mr Campbell was of the opinion that you suffer a post-traumatic stress disorder, a major depressive disorder, and a mild cannabis use disorder.
45Mr Campbell also stated that it was notable that the breakdown of your parents' relationship and your perceptions of being sheltered from issues within the family home appear to have contributed to the development of an overall avoidant style of coping with experiences of distress. This appears to have predisposed you towards the development of avoidant behaviours and issues with effectively identifying, communicating and managing experiences of distress.
Character references
46At the plea hearing I heard evidence from three character witnesses and also received a bundle of character references.
47Anthony Davidson has known you since you were in the fifth grade of primary school. He runs the Road RAGE organisation. He stated that the organization provides environmental education to people all around Australia, builds energy efficient vehicles, races them around Australia, and raises money for charities. You commenced your involvement with Road RAGE, as I earlier stated, at the age of 10 and you are now regarded as a senior leader. You are involved in organising events and you help to supervise younger members.
48Mr Davidson states that you have worked closely together on volunteer events such as the National Road Cycling Championships, Beyond Blue Wellness Run, Royal Children's Hospital Run for Kids, RACV Energy Breakthrough and many triathlons and other events, to raise funds for charities and to assist the community. Your volunteer work includes interstate and overseas events. You are considered a role model within the organisation, putting in many hours of hard work, and putting the needs of others ahead of your own needs. Mr Davidson has always found you to be polite, compassionate, honest, and enthusiastic.
49He has discussed the charge with you and states that the impact of this offence upon you has been one of guilt, shame and remorse, and a desire to do as much as possible to rectify the harm you have caused. He states you have shown empathy for the victim and the victim's family, and he does not believe that there is a sentence available that could match the lifelong sentence that you have imposed upon yourself.
50
Adam Eden gave evidence that he met you in Year 7 when you were students at Mt Clear College. You have remained firm friends since that time. He speaks of your distress arising from the incident and of your genuine remorse. Mr Eden states that over the last two years you have struggled with your self-image,
self-worth, and remorse. He describes you as one of the kindest people he has met and speaks of you having assisted those in the community who are less fortunate than you.
51Meredith Atkinson has known you since you were a very young child. She described you as a lively and engaged young person. She became aware of the incident after you were released from hospital. She gave evidence of your shock and horror concerning what occurred. She states you were very distressed and remorseful and, following the incident, you had lost much weight from the stress.
52I have also had careful regard to the written statements tendered on your behalf, all of which are testament to your hitherto excellent character and deep remorse. Your mother writes that after you returned to work, a couple of weeks after the collision, you stayed in Daylesford. You were not able to return home daily, and you would frequently call her or your sister, crying, expressing feelings of failure and suffering nightmares. You resigned from your apprenticeship in Daylesford because you could no longer drive past the area where the collision occurred.
Submissions
53Your counsel, Mr Barreiro, characterised your offending as momentary inattention because of fatigue. He submitted, however, that there is no evidence to suggest that you were so affected by fatigue that you were driving dangerously throughout the course of the journey. He also submitted that there was no indication that you were going to fall asleep prior to having done so at the point of the collision, and that your situation can be distinguished from those situations where a driver has experienced and ignored microsleeps and continued to drive. Mr Barreiro submitted there is no basis to sentence you other than that you became a dangerous driver at the moment of, or very shortly before, the collision. It was put that you were not 'bound to realise' that you should not have been driving on the road at that time.
54Mr Barreiro relied on what you told Senior Constable Dugteren at the collision scene that you were 'pretty sure you fell asleep and that you did not even recall having closed your eyes immediately before the collision'. Thus, Mr Barreiro submitted the collision occurred because of your momentary inattention caused by fatigue.
55Mr Barreiro also submitted that the reason for your fatigue is relevant to your moral culpability. Your fatigue, he submitted, was caused by prosocial activity, namely the requirements of your employment. You had been to work, completed your shift, and commenced your journey home. You were not fatigued, it was put, because of antisocial activity. Mr Barreiro also submitted that there is no evidence that you suffered sleep deprivation. What was put is that a disturbance of your circadian rhythm was likely a contributing factor to your tiredness.
56Mr Barreiro referred to the evidence of Professor Matthew Naughton given at the committal hearing. Professor Naughton is a respiratory and sleep physician and heads the General Respiratory and Sleep Medicine Services at the Alfred Hospital. He is also an Adjunct Clinical Professor of Medicine at Monash University. He made a statement at the request of the police.
57Professor Naughton gave evidence that shift work is a public health problem because of its adverse impact on the body's circadian rhythm and alertness. It produces effects similar to jet lag. He said that where persons do shift work, their body clock is constantly changing, and this may contribute to significant errors. The healthcare and the mining industries, he said, have taken the impact of shift work very seriously and have significantly changed their approach to staff rostering.
58Professor Naughton was of the opinion that your shift work at the bakery would have impaired your capacity to drive safely but he was not able to give a numerical value to the degree of that impairment.
59Mr Barreiro also relied on there being an absence of other aggravating features such as speeding, being distracted such as through the use of a mobile phone, erratic driving, showing off, ignoring of warning signs, or otherwise acting in gross disregard of the interests of the deceased and other road users.
60While it was acknowledged that the offence of dangerous driving causing death is an inherently serious offence, Mr Barreiro submitted that the objective gravity of your offending and your level of moral culpability fell at the lower end of the spectrum.
61Other matters relied upon by Mr Barreiro are your youth at the time of the offence, your good character and prospects of rehabilitation, your profound remorse, your plea of guilty indicated once a charge of culpable driving causing death was withdrawn, the application of Verdins[1] principles 5 and 6, and your cooperation with law enforcement authorities.
[1] (2007) 16 VR 269
62Mr Barreiro submitted that by reason of a combination of factors, the exception under s5(2H)(e) of the Sentencing Act 1991 has been made out. He submitted I should sentence you to a community correction order. Mr Barreiro accepted that general deterrence is a significant sentencing consideration and that most persons charged with this offence receive sentences of imprisonment. I was referred to a number of comparative cases in which a community correction order was imposed.
63Ms Pezzimenti submitted that your offending was not a case of momentary inattention. She submitted that it is difficult to place a case involving fatigue in the same category as those in which courts have found momentary inattention.
64
Regarding your moral culpability, Ms Pezzimenti accepted it fell at or towards the lower end of the spectrum. With the exception of what she submitted was sleep deprivation and your awareness of the impact of working nightshifts,
Ms Pezzimenti also noted the absence of other aggravating features that would otherwise have raised the level of your culpability.
65Ms Pezzimenti referred to the fact that you were a person working shift work who had, in the past, been aware of the impact of fatigue, to the point where you occasionally stopped your journey home to take a power nap.
66Ms Pezzimenti submitted that the sentencing consideration of general deterrence, that is, the deterrence of others who are minded to drive when fatigued, is a significant sentencing consideration. She submitted that persons intending to drive should use extreme caution and care when making a judgment call regarding their ability to drive.
67Ms Pezzimenti submitted that at the scene of the collision you admitted to having fallen asleep at the wheel, but accepted it was not possible to put a time on how long you had been asleep, other than it was of short duration, not momentary and, in her words, 'more than the blink of an eye'.
68Regarding the width of the south and northbound lanes, I was informed that they are 3 metres wide with a shoulder on either side of 1 metre. Ms Pezzimenti informed me that the standard width of a road varies between 3 and 3.3 metres. Your car had entered onto the incorrect side of the road by some 70 centimetres.
69Ms Pezzimenti disputed that the exception in s5(2H)(e) is made out. Many of the factors relied upon by you, she submitted, are not relevant to that exception, or carry less weight.
70Regarding the timing of your plea, Ms Pezzimenti submitted it was not entered at the earliest opportunity because you had not offered a plea to the charge of dangerous driving causing death at an earlier stage, notwithstanding the absence of such a charge on the indictment. Ms Pezzimenti argued that the charge of dangerous deriving causing death is a statutory alternative and hence an offer could have been made.
71
Ms Pezzimenti did not take issue with the psychological diagnoses made by
Mr Campbell or the application of Verdins’ principles relied upon by your counsel. However, she submitted that the only sentence available is one of imprisonment given that the charge is a category 2 offence and, in her submission, you have not made out the exceptional circumstances.
72Since the plea hearing, I have received further written submissions from both counsel concerning, principally, the question of delay. As already stated, the collision occurred on 2 May 2023. The plea hearing proceeded on 12 May 2025, and you are being sentenced today, 12 June 2025.
73
Mr Barreiro relied upon what he termed is the 'significant delay' in two ways. First, the delay has caused you profound anguish and, secondly, you have not
re-offended in the 25 months since this offence was committed.
74In Ms Pezzimenti's written submissions, dated 19 May 2025, it was submitted that the delay is lengthy but not unusually so. It was conceded that some degree of mitigation may be attributable to the delay. It was noted that while the delay may well have had a deleterious effect upon you psychologically, it has enabled you to complete your apprenticeship. In that sense, it was put that you have benefitted from the delay and that it was to your credit that you have continued to work and contribute to your community over the last two years.
75Ms Pezzimenti also submitted that the delay in your case could not be considered 'undue' because of the complexity of the case, the fact of a contested committal hearing, and the obtaining of expert reports. I should note that at the time of the committal hearing you were facing the more serious charge of culpable driving causing death. I should also note that in her written submissions, Ms Pezzimenti corrected an earlier submission, informing me that you had in fact offered to plead guilty to the charge on 29 April 2024 on the basis of fatigue alone. That offer was then rejected by the prosecution.
76While Mr Barreiro submitted that the delay is a matter to which I may have regard under s5(2H)(e) of the Sentencing Act 1991, Ms Pezzimenti disputed that the delay, either in combination with other factors, or of itself, supported a finding that an exception existed.
Sentencing considerations
77I accept the submission of Mr Barreiro that the objective gravity of your offending, however that offending may be characterised, falls at the lower end of the scale. This was not really gainsaid by Ms Pezzimenti, nor does it seek to play down the fact that Mr Ridgway lost his life as a result of your dangerous driving or the devastating impact this has had on his partner and wider family. As with many crimes, the objective seriousness with which this offence may be committed can vary significantly. In your case, many of the aggravating features, unfortunately common in cases of dangerous driving, are absent. You were not speeding, driving erratically, using a phone, ignoring warning signs, or showing a disregard of the other road users.
78To the extent that your driving was dangerous, I find that you were fatigued and fell asleep at the time, or very shortly before, your car drifted onto the incorrect side of the road. There is no evidence that you were struggling to stay awake or that you were nodding off before the incident itself. The fact that on other occasions when you felt fatigued, you would pull over for a sleep, gives me confidence in accepting that this is not a case where you ignored signs of fatigue, as had happened in some of the cases to which I was referred. For example, in Board v The Queen,[2] the offender told his wife he was tired and because of the danger of driving in that condition, he should pull off the road but failed to do so before the collision. See also DPP v Flamenco[3] where the offender admitted to having had two microsleeps before the third and fatal microsleep; DPP v Sandy[4] where the offender knew he was tired and drowsy and had been thinking of pulling over but decided instead to keep driving until he got home; and DPP v Van Remmen[5] where the offender said he was tired, felt himself nodding off, and drove on the wrong side of the road for a distance of about 1.3 kilometres.
[2] [2013] VSCA 190
[3] [2024] VCC 1377
[4] [2023] VCC 566
[5] [2021] VCC 1466
79I accept also that there is no evidence of dangerous driving before the moment you crossed the centre of the road, as in some of the cases to which I was referred. For example, again in Board, the offender's car had been veering onto the incorrect side of the road and from side to side within his lane for some three kilometres. See also DPP v Borg[6] where the offender's car was seen to wander across the road, crossing the double white lines twice before the fatal collision; and DPP v Curram[7] where the offender's car had been seen to swerve in its lane over a few minutes and crossed rumble strips on six occasions.
[6] [2016] VSCA 53;
[7] [2020] VCC 873
80Your case bears some similarity to the circumstances in DPP v McGarrigle[8] where the offender was tired from long driving in the course of his employment, lost control of his truck as he rounded a corner, hit a tree and killed his passenger. However, unlike your case, McGarrigle stated he had been thinking of pulling over to have a sleep but did not think there was anywhere along the road to do so. He had also taken the sedative doxylamine the night before, which contained a warning that drowsiness may persist into the following day. The sentencing judge in that case characterised the offender's driving as 'momentary inattention' or 'insufficient attention for a short period of time'.
[8] [2022] VCC 1426
81In DPP v Dodt,[9] a case involving driver fatigue, the sentencing judge considered that the overwhelming inference, given the offender drove for 75 metres straight into a tree, was that he fell asleep. The offender in that case told police that he was going to get his passenger to drive as he was tired. However, the judge was not able to make any finding as to the extent of the offender's fatigue or the degree of the offender's awareness of his fatigue and its impact. The judge found that there was no evidence of any specific warning that the offender was so fatigued that he might 'lose attention'. These latter considerations apply with equal, if not more force, in your case. You did not consider on this occasion, unlike on other occasions, that you were so tired that you should stop for a break.
[9] [2022] VCC 1449
82As earlier stated, I consider the objective gravity of your offending is low. I am also of the opinion, for very much the same reasons, that the level of your moral culpability is low.
83In coming to these conclusions, I also have regard to the opinion of Professor Naughton concerning the impact of shift work on a person's circadian rhythm and, in turn, its impact on the level of a shift worker's alertness. To the extent that this was a matter unknown to you, and there is no evidence to suggest otherwise, I accept that this further reduces your level of moral culpability.
84The offence to which you have pleaded guilty is a Category 2 offence. Accordingly, pursuant to s5(2H), I am required to impose a custodial sentence, other than a sentence of imprisonment in addition to making a community correction order, unless, pursuant to sub-paragraph (e), there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3. As earlier stated, your counsel submitted that by reason of a combination of circumstances, the exception is made out. The learned prosecutor takes issue with that submission.
85Pursuant to s5(2HC), in determining whether there are substantial and compelling circumstances, I must
'(a)regard general deterrence and denunciation of your conduct as having greater importance than the other purposes set out in section 5(1); and
(b)give less weight to your personal circumstances than to other matters such as the nature and gravity of the offence; and
(c)not have regard to—
(i)your previous good character (other than an absence of previous convictions or findings of guilt); or
(ii) an early guilty plea; or
(iii) prospects of rehabilitation; or
(iv) parity with other sentences.'
86Furthermore, pursuant to s5(2I), I must have regard to the Parliament's intention that in sentencing an offender for a Category 2 offence, a sentence of imprisonment should ordinarily be made, and I must also consider whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
87I have had careful regard to these provisions, to relevant case law, and the arguments advanced by counsel. I accept that the requirements of the exception make the burden of establishing it a heavy one – it is 'a very high hurdle'[10] to overcome. However, in my opinion, the exception in s5(2H)(e) has been made out. I have come to this conclusion having regard to my findings concerning the objective gravity of your offending; your level of moral culpability (including the absence of evidence of any warning signs); your cooperation at the scene of the collision including your admission that you thought you must have fallen asleep; the absence of prior convictions or findings of guilt for any driving or other offence; Professor Naughton's evidence concerning the hazards of shift work; Mr Campbell's opinion concerning your state of mental health; there being little need for specific deterrence and protection of the community from you; your personal circumstances including your youthful age, contributions to the community through your volunteer work, and your genuine remorse;[11] and the stress of having this charge hang over you for a not insignificant period. I consider that these factors, in combination, establish substantial and compelling circumstances that are exceptional and rare and that justify making an order not to impose a custodial sentence. I should also state my opinion that in all the circumstances, but for your admission at the scene of the collision, that you believe you fell asleep, proof of the charge would have been difficult to establish beyond reasonable doubt.
[10] See Farmer v The Queen [2020] VSCA 140 at [51]; DPP v Lombardo [2022] VSCA 204
[11] Although by reason of s 5(2HC)(3) Sentencing Act 1991, I must give less weight to personal circumstances that to other matters.
88Regarding Ms Pezzimenti's reliance on the decision in DPP v Stockil[12] in support of her submission that the exception has not been made out, that case may readily be distinguished from yours both factually and in the sentencing judge's conclusion that Mr Stockil's dangerous driving was a 'mid-range example' of the offence and that the level of his moral culpability was 'considerable'. Mr Stockil, an experienced driver, travelling on a narrow road he knew was frequently used by cyclists, used his mobile phone while driving at 80 kilometres per hour to look up an address. In any event, Stockil is not a case that establishes a principle, but rather a case that applies well known principles to its own facts.
[12] [2025] VCC 260
89Having reached the conclusion that the exception has been established, I must nevertheless determine an appropriate sentence according to all relevant considerations.
90In DPP v Oates[13] the Court of Appeal stated that a custodial sentence will usually be appropriate for the offence of dangerous driving causing death except where the offender's level of moral culpability is low. This reflects the significance of sentencing considerations of general deterrence and denunciation. The offence is also an inherently serious offence given it involves the loss of life and has a maximum penalty of 10 years' imprisonment.
[13] [2007] VSCA 59
91I have regard to your plea of guilty. Your plea is of significant utilitarian value. You have spared witnesses the trauma of having to give evidence at trial, spared the victim's partner and other members of his family from having to endure the stress of a trial, and you have spared the Court and the community the time and cost of a trial. Your plea of guilty has facilitated the course of justice and marks an acceptance by you of your responsibility for causing the death of Mr Ridgway. Your plea of guilty is also an indicator of your remorse.
92You were, for much of the time, facing the more serious charge of culpable driving causing death. Just prior to a sentence indication hearing on 1 May 2025, the prosecution agreed they would accept a plea to the charge of dangerous driving causing death. You informed me then that you would plead guilty to that charge, obviating the need for a sentence indication. In all the circumstances, I find that your plea was entered at an early time.
93It has now been in excess of two years since this offence was committed. You were then 21 years of age and I have significant regard to your youth at the time. You are still young and the prospects of your rehabilitation, while they could not be considered in determining whether the Category 2 exception was made out, is relevant to my determination of the appropriate sentence. In my opinion, your prospects of rehabilitation are excellent. You have strong family and community support, you are employed, you no longer work shift work, and you have made significant contributions to the community and continue to do so through your volunteer work. Importantly, you have no previous convictions, including for driving offences, and you have not been in any further trouble since you committed this offence. This finding means that less weight should be attached to considerations of specific deterrence and community protection in the sentencing synthesis.
94I accept that your remorse is both genuine and profound. This is borne out not only by your plea, but also through your discussions with Mr Campbell, the observations of your character referees, your acceptance of responsibility, and your desire to make up for your conduct. I have had particular regard to your letter of apology that was read in open court by your counsel. In that letter, you state that throughout your life you have tried to be the best person you could and improve the lives of those around you. You now feel that you have thrown away any good work you have done and no matter the outcome of the court proceeding, you say you will strive to do better and be better. You state you never want to come close to repeating what you did, and you are truly and deeply sorry for it.
95I have regard to the fact that there has now been a delay of more than two years since the commission of the offence, and a period in excess of 16 months from the date on which you were charged, both of which, for a person of your age are, in my opinion, significant. During that time, you have lived with the uncertainty of what will ultimately occur by way of charge and sentence and, importantly, you have not reoffended. This is all while living with the knowledge that through your conduct an innocent life was lost. I consider that this is a burden which will weigh heavily upon you for many years to come.
96In sentencing you, I also have regard to your current mental state and the diagnosis of post-traumatic stress disorder and major depressive order. I accept that by reason of those conditions, a term of imprisonment will be more onerous for you than on a prisoner not subject to mental health difficulties. I am not persuaded, however, that the psychological evidence goes so far as to suggest that a term of imprisonment will pose a serious risk to your mental state.
97I have regard to the loss not only of Mr Ridgway's life, but also the impact suffered by his partner and family. Their grief and pain is powerfully evident in their impact statements, and I have had full regard to those statements. Considerations of general deterrence, denunciation and just punishment, as I have already stated, are also significant. Others who drive while fatigued should be made aware of the risks of being sentenced to a term of imprisonment if they cause death or serious injury to others.
98As I earlier mentioned, I consider there is little need to deter you from further offending given this is your first and only offence, and the impact that it has had upon you. For similar reasons, there is little need to protect the community from you. I am also mindful that the principle of parsimony operates, such that a term of imprisonment is a sentence of last resort, especially for a young offender.
99Having regard to each of the sentencing considerations I must apply, the circumstances of your offending, and your personal circumstances, I am persuaded that a community corrections order is an appropriate sentence and, subject to your agreement, I propose to place you on such an order.
100You have been assessed as presenting a low risk of reoffending and you are suitable for a community corrections order. To ensure adequate punishment, it will be of long duration and will require you to perform a significant number of unpaid community work hours.
101The conditions that will attach to the order are as follows.
a)
The order will last for three years and commences today and ends on
11 June 2028.
b)You must attend at the Ballarat Community Correctional Services office in Ballarat within two clear working days after the commencement of this order.
c)You must not commit another offence for which you could be imprisoned during the time that the order is in force.
d)You must comply with any obligation or requirement prescribed by Regulation 15 of the Sentencing Regulations 2021. That means that you must not attend at the Office of Corrections or any place they direct you to attend under the influence of alcohol or drugs.
e)You must report to and receive visits from the Secretary or his or her delegate.
f)You must let a Community Corrections officer know within two clear working days of you changing your address or job.
g)You must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate.
h)You must obey all lawful instructions from and directions of the Secretary or his or her delegate.
i)You must perform 250 hours of unpaid community work over a period of three years, as directed by the Regional Manager. If you fail to comply with this order, the Secretary to the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the provisions of the Sentencing Act 1991.
j)You must be under the supervision of a Community Corrections officer for a period of three years.
k)You must undergo assessment and treatment including testing for drug abuse or dependency, as directed by the Regional Manager.
l)You must undergo any mental health assessment and treatment and that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed by the Regional Manager.
102Mr Pinch, do you understand those conditions?
103OFFENDER: Yes.
104HIS HONOUR: Do you wish to speak to your solicitor before I ask you whether you agree to being placed on such an order?
105OFFENDER: No.
106HIS HONOUR: I must also warn you that should you fail to comply with the conditions of the order you may be charged with an offence and returned to this court to be re-sentenced on the original charge.
107Do you agree to being placed on the order?
108OFFENDER: Yes, I agree.
109HIS HONOUR: Very well.
Sentence
110You are convicted and sentenced to a three year community corrections order on the conditions that I have just read out to you.
111All licenses held by you are cancelled and you are disqualified from driving for a period of 18 months from today.
112Mr Prosecutor, is that the minimum period?
113MR MORRISON: It is, Your Honour.
114HIS HONOUR: Thank you. Are there any other orders that are sought?
115MR MORRISON: No, Your Honour.
116MS LYON: Nothing sought.
117HIS HONOUR: Very well. May I thank the parties, including the victim's family for your attendance and for your conduct throughout this trial. We will now adjourn the court.
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