Director of Public Prosecutions v Ristovski

[2016] VCC 1226

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01443

DIRECTOR OF PUBLIC PROSECUTIONS

v

SASHO RISTOVSKI

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2016
DATE OF SENTENCE:	16 August 2016
CASE MAY BE CITED AS:	DPP v Ristovski
MEDIUM NEUTRAL CITATION:	[2016] VCC 1226

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Stylianou	Office of Public Prosecutions
For the Accused	Mr S. Payne	Victoria Legal Aid

Pages 1 - 20

 

 

1HIS HONOUR:  Sasho Ristovski, you pleaded guilty to one charge of dangerous driving causing death, and one charge of reckless conduct endangering a person with serious injury.  The prosecution tendered a summary of the circumstances of your offending.  It was exhibited upon the plea and will remain on the court file.  For purposes of this sentence it will suffice to recite these agreed facts. 

2At about 2 pm on Thursday 3 July 2014 you picked up Amber Newman, aged 16 years, and Maddison Tilyard, also aged 16, from Williamstown where they lived together.  You were headed to an appointment in Caroline Springs, where you were to inspect the house at 5 pm that afternoon.  When you picked them up you were angry and aggressive towards Tilyard.  You pulled into a car park, you were yelling at her.  On your own account you were upset about some photographic images you had found on social media. 

3Newman stepped out of the car but could hear yelling between you and Tilyard.  After a while the trip resumed.  You were still annoyed and you proceeded to pull the stereo equipment out from the car and threw it onto the backseat.  Tilyard was asking you to calm down.  You then produced a bag containing a white powder which was methylamphetamine, the drug commonly known as ice, from a compartment in the car.  You put an amount onto your finger, you sniffed it.  You appeared to calm down.

4The inspection of the house proceeded and you then dropped the girls off in Williamstown.  Tilyard declined an invitation to hang out that night with you at that stage.  You offered to drive the two girls to Craigieburn, where they were to visit a school friend, and you did so later that evening, telling them you would pick them up when they were finished.

5At about 1.30 am on Friday 4 July, Tilyard called you to come and pick them up.  You did so, this time in your father's car, a Ford Falcon.  You had asked your father to drive his car and he had initially refused.  You insisted and he relented because your own car had some electrical issues.  However, you were not too familiar with this car and this vehicle was a very powerful one.

6When you got to Craigieburn you went to the house where the girls were visiting and you consumed some alcohol.  Probably because of your awareness of your drug taking during the night, and the effect of the combination of them with the alcohol that you had just drunk, you made some sadly pressing statements about putting your passengers in a grave by the end of the night. 

7It was 3 am when you left Craigieburn.  Tilyard was the front passenger and Newman was in the back.  As you left the address you did a burnout, causing the rear of the car to fishtail, then you drove away at speed, skidding around a corner onto the main road.  These manoeuvres would undoubtedly have made you aware of the power of the car you were driving. 

8Heading for Williamstown, at one point of the journey on the highway, you told the girls, and Newman observed, that you were driving at 210 kilometres an hour.  Newman was frightened, describing your speed as flying.  She told you to slow down.  You did so momentarily, only to speed up again.  You almost collided with another car but you swerved onto the right lane, overtaking that car.  Newman believed that continuing to ask you to slow down was useless because you were not listening. 

9One driver described your driving on the Western Ring Road as frightening.  He was travelling at 100 kilometres per hour on cruise control and he said your car passed his and "Left me for dead".  He estimated your speed at that point to be about between 150 and 160 kilometres an hour.  Just after the Keilor Park Drive overpass, this driver then saw your car stationary in the emergency lane.  Shortly thereafter you drove past him again at speed, overtook his car and merged into the left far lane without indicating.  He was still travelling at 100 kilometres an hour.

10Another driver on the Western Ring Road noticed your car behind him as he approached Ballarat Road.  At Fitzgerald Avenue you pulled up beside him.  When the lights turned green your car took off at a fast rate, and though he was travelling at around 100 kilometres per hour, you pulled away and was soon "Nowhere to be seen". 

11This course of driving constitutes the reckless conduct endangering serious injury.  It is probably fortunate that while the car you were driving at clearly reckless and dangerous speeds, and performing manoeuvres which endangered your passengers, the vehicle you were driving not only enabled such speed but was in good condition enough for you to have avoided any accident, and that the road you were travelling on was a well-made and maintained highway. 

12In any event, this reckless conduct was engaged in by you in full awareness of its danger to you, your passengers and others on the road that night.  Your observation as to your speed does not discourage you or deter you.  You ignored repeated warnings by Newman by slow down and you were aware of your own condition, which was affected by drugs and alcohol. 

13During this journey to Williamstown you said to Tilyard, "I'm going to kill you in a car crash tonight", causing Tilyard to say to Newman, apparently jokingly, "See you Amber.  I'm going to die in a car crash tonight".  These statements would not only have been frightening to the girls, not because they reveal any intention on your part, but because they indicate a clear awareness on your part that the conduct you were engaging in was very dangerous. 

14Your reckless disregard for the lives of your passengers, and of other motorists on that night, was appalling and fell so short of the care required of a driver, that it deserves the unequivocal condemnation of the court. 

15The sentence which pertains to it should endeavour to denounce such reckless conduct and justly punish you in a way which deters you, and more generally, others who wish to drive in this way on our roads.  As a discreet offence which describes your driving on that portion of the night in question, the portion of the sentence will appropriately be cumulative on the sentence to be imposed on Charge 1.  The maximum penalty for this offence is five years and, short of real injury, this offending lies well beyond the mid-level, in my view. 

16Considering the manner of your driving, it was fortunate you arrived back in Williamstown to drop off the girls.  They spoke to each other for a while near the car.  They said goodnight and then you and Tilyard left together apparently intending to remain together that night.  You headed north on Fitzgerald Road, heading towards Doherty's Road in Laverton North.  When you got to the roundabout at Doherty's Road, the applicable speed was 80 kilometres an hour. 

17You asserted in your evidence that you had come to a stop at the roundabout.  What can be ascertained from the reconstruction of dynamics, of what took place thereafter, and from the brief images captured on CCTV at that location, is that your car came out of the roundabout travelling north.  You lost control on the straight stretch of road a short distance after the roundabout.  The car struck the gutter on the western side of the roadway.  You steered the car to the right, causing it to yaw to the right, and at this time you were travelling at a minimum of 88 kilometres per hour when it first commenced to yaw.

18The car crossed the southbound lane and collided with a tree in the centre median while travelling at 82 kilometres at impact.  It was airborne for some five metres immediately prior to impact.  It rotated up into the tree and around it on the passenger side before coming to rest immediately under its base.  For approximately four seconds before the collision, the car's tyres were spinning. 

19'Yaw' is a technical term which describes the particular type of rotation around the axis of an object which changes the direction in which that object, in this case the car, is pointing.  The body of the car is pointing in one direction while it is travelling in another direction.  When this happens the car tyre distort as they rotate to accommodate this misalignment, and this generates side forces as a consequence. 

20Your car suffered side intrusion and the roof was crushed, as shown in the photographs tendered.  Maddison Tilyard, the front passenger, was pinned in her seat.  She died as a result of her injuries.  One person driving past the scene stopped to assist and spoke to you.  You were screaming out her name.  You were eventually extracted from the driver's seat by emergency services and conveyed to the Royal Melbourne Hospital for treatment. 

21In your clothing police found a bag containing ice.  A blood sample was taken from you at about 6 am that morning.  Analysis revealed a blood alcohol content of .064, and methylamphetamines at a level of .09 micrograms per litre. 

22A mechanical inspection of the Ford driven by you found no mechanical fault which could be linked or could have contributed to the collision. 

23These were the factual circumstances of the offence of dangerous driving causing death. 

24As I have already said, conduct endangering a person contrary to s.23 of the Crimes Act carries a maximum penalty of five years.  This charge clearly encompasses a wide variety of conduct but for the reasons which I have outlined, in my view that offence lies in the high range of conduct covered by that offence. 

25Dangerous driving causing death carries a maximum penalty of ten years' imprisonment.  This charge similarly encompasses a very wide range of conduct.  In my view your offending in relation to that charge lies towards the high end of the scale of offending covered by that charge.  Your driving was dangerous because there were serious breaches of the proper conduct of a vehicle, so as to be in reality, and not speculatively, potentially dangerous to others.  Here, tragically, that potentiality became a sad reality. 

26Your driving subjected the public to a risk over and above the ordinary risk associated with driving a car.  That dangerousness crystallised in the death of a young person.  Your driving created significant risk and when that risk materialised, the harm that it caused was catastrophic. 

27The seriousness of your particular offending can be determined as high when one looks at the aggravating features of your driving.  A person was killed.  Your speed was clearly excessive under the circumstances and well above the limit indicated at that place immediately before the collision.  You were affected by alcohol and by methylamphetamine. 

28In my view, the immediately preceding features of the driving (that is, from Craigieburn to Williamstown) can be seen to be part of a course of conduct.  That preceding segment of travel included the fact that you had been warned and asked to slow down, warnings you had ignored.  That earlier driving must have made you aware of the powerful nature of the car you were driving, a car you were not used to driving, as opposed to your Hyundai.

29As I said during the plea, the quality and speed of your driving earlier in the day does not constitute a continuum.  Driving, by its very nature, is made up of segments separated and distinguished by different and divergent circumstances on the roadway.  However, the matter I have just raised in my view can be, in effect, transposed to your later driving because they are matters which are linked to your course of driving.  Yours was conduct which you had deliberately undertook and chose.  This observation is tempered by a matter which I will raise later in my sentence and which slightly qualifies it.

30You were not forced into it by an unexpected action of some other driver or pedestrian, to make an instant decision.  There was no emergency.  Negotiating a roundabout requires a chicane-like manoeuvre, first around the actual traffic island in a circular motion, and then straightening out.  Undertaking it even from a stop, at a rapidly accelerating speed it converts an everyday manoeuvre into a highly risky situation.  By undertaking a completely unnecessary risk you abandoned your responsibility to Maddison and to other road users with disastrous results.

31Any sentence to be imposed by me must take into account your moral culpability as assessed by reference to all of the conduct and circumstances of the case, including your personal circumstances.  In my view these considerations must lead me to conclude that your moral culpability is high.  The question of moral culpability must be assessed by the degree to which the particular consequences of your acts should have been, or were foreseen, by you. 

32Offending by a person who has knowledge of the risks associated with particular driving are more blameworthy because of that knowledge.  You have had that knowledge.  Your actions and utterances on the night show you were fully aware and knew the risks you were exposing your passenger to.  Therefore, this offence must be reckoned by me as falling well above the mid category and within the high or very serious range of offending.

33In making this determination I have taken into account all the matters and reports and documents pertaining to your personal circumstances.  However, before outlining those matters, I will refer to the victim impact statements which were received by the court during the plea.  There were nine such statements and I have taken each of them into consideration. 

34Such statements can only begin to capture the devastating loss of a loved one so young and full of hope and promise.  Such losses are always overwhelming and profoundly painful, particularly for the parents but also other family and friends.  When a young life is lost like this the many facets of grief which this loss leaves behind cannot be expressed adequately.  However, these statements, written and delivered with clarity, with dignity and extraordinary civility, must be acknowledged and paid a proper respect in this process.

35I received such statements from Amber Newman, Mario McDonald, Antonia Tilyard, Gabrielle Tilyard, John Tilyard, Mitchell Tilyard, Angela Pope, John Tilyard and Lachlan Tilyard.  Each speaks intimately and impressively of a beloved daughter, grand-daughter, sister and friend whose life promised much and whose presence enriched her family and those who knew her. 

36At the end of the plea I said to those present that the damage involved in such cases as these cannot be fully addressed by law when it comes to providing comfort and what people have called closure.  Some forms of wrongdoing are in some sense irreparable, and no mere penalty or number can satisfy or repair adequately.  However, any decent legal system can, and does, relieve people of much of the practical and emotional burden of dealing with such cases.

37The law might not be able to exhaust the emotional task of dealing with the loss but it can vindicate the rights of victims and endeavour to rehabilitate offenders.  The sentence enables the court, on behalf of the community, to state with clarity that such conduct will not be tolerated.  In this sense, by recognising the nature and significance of the wrong that has been done, it can facilitate personal and social recovery.  This is the value of the court's denunciation, having regard to the moral sense of the community and its expectations of appropriate punishment.

38You are 28-years-old, born in Australia to migrant parents from Macedonia and Yugoslavia respectively.  I accept your parents are hardworking persons of good character, respected in their community.  Your father is an accountant and translator, and your mother works in your father's accountancy firm.  You are the youngest of three children with two older sisters.  Your upbringing was largely unremarkable in the context of the family, which was supportive, loving and hardworking, and an extended family which surrounded you with grandparents, aunts, cousins and friends.  You have lived at home the majority of your life.  Your parents and family remain very strong and supportive and positive supports for you. 

39I heard and take into account impressive and candid evidence from your father, and have received and taken into account many impassioned, equally impressive and insightful letters of support from your family. 

40Your education though secondary school began to evidence the issues which have beset you ever since.  Expert opinion received from Dr Owens and
Dr Moriarty suggest probable diagnosis of ADHD, significantly exacerbated by significant and protracted bullying on the streets of your neighbourhood, which shaped your view of the world and others at a very crucial formative period of your youth. 

41This in turn was reflected in poor academic progress, consequential displays of anger and violence which caused expulsions from school.  In Year 11 you completed one year of VCAL followed by a joinery course at TAFE, which you did not complete.  Thereafter, your employment history has similarly been chequered.  You were a storeman for some nine months, followed by sporadic factory work. 

42Between 2009 and 2011, following a course in licensing process, you became a security guard, a position you enjoyed but lost, probably because of your temperament and inappropriate responses, coupled with your continued substance abuse.  You then drove a forklift for six months and you have now been unemployed for two years, pending finalisation of this matter. 

43In 2010, at aged 23, you married a woman you had met when aged 19 but separated after a year.  You have a child from the marriage aged seven.  You have had daily contact with your child after, and often most weekends.  You enjoy a loving and close relationship with her.  You are in a current relationship of some seven months, one which appears positive and which may provide you with some support and some long-term hope during your reclusion.  I take these matters into account.

44One important feature of your background is your history of drug and alcohol use, which commenced at aged 13 with cannabis.  By age 14 you were using speed.  By age 16, ice and ketamine.  While ice use began sporadically, it increased significantly, particularly peaking after the accident and up to a period on incarceration in August of 2015, to which I will refer in a moment.  You also began drinking alcohol at 13 and peaked in the same period.  More detailed examination of your alcohol and drug use is contained in the various reports which were tendered on your behalf, and which I have carefully reviewed and taken into account. 

45One consequence of your incarceration was that the illicit drug use and alcohol use ceased and you have remained drug free with very infrequent drinking over time.  A substantial number of consistently negative drug screens were tendered to demonstrate this abstinence which is to your credit.  You have resolved to abstain with the incentive of better general health and the abhorrence of drug use by your partner, Melissa, appears to be serious and will no doubt be required if your relationship and your rehabilitation is to be successful. 

46As a result of the collision you also suffered significant injuries, including broken ribs, a broken collarbone, fractured spine.  Notwithstanding these injuries, you checked yourself out of hospital prematurely out of a sense of guilt and self-loathing.  Your injuries have healed but I will take them into account.  This example of your sense of shame is but one which demonstrates your significant remorse, which I accept.

47Often remorse is difficult to assess.  In your case this emotional reckoning has been made plain by your very hand.  Within a month of the offences you tattooed your face and head with disturbing images and disfiguring symbols, reflective of your acute remorse, guilt, shame and self-punishment.  These will remain a lifelong reminder of your action and its consequences.  Your sense of worthlessness and self-loathing have been expressed to your family, your child and all who have seen you, given that this physical scarring is impossible to ignore.

48Although you had tattoos on your neck and head before, they did not have the, quite frankly, frightening and repulsive impact which these self-inflicted signs will have for a long time. 

49I take your plea into account and such plea will attract a discount of your sentence by operation of law and I accept that it is made with remorse.  It has a utilitarian value of having avoided a substantial and probably invariably traumatic criminal trial.  There has been some delay in this case and although a committal was held in August 2015, it was clear then that you were accepting of your responsibility and were willing to facilitate the course of justice by an appropriate plea reflective of contrition and genuine penitence. 

50Time was taken thereafter to obtain a report which was seeking to explore the issue of the reconstruction of the dynamic of the collision by the defence.  Such an extensive report was obtained but was not relied on.  Even though the delay is real, it is not exceptional, in my view, and in view of this enquiry, but I will take it into account as being a time factor during which the consequences of this matter have been pending upon you.

51You have a couple of minor matters in your criminal history.  In 2012 you were discharged after completing diversion, having been charged with possession of a prohibited weapon without lawful exemption.  In 2013, again, you completed a diversion program for an assault and intentionally damaging property.  I was appropriately informed of matters which form part of your antecedent history which are not priors but which are clearly relevant. 

52Subsequent and consequent to these events of July 2014, you were dealt with for a number of offences committed by you in July and August 2014.  It is clear that quickly following upon the car collision, your drug and alcohol use escalated and your behaviour became generally more problematic.  This behaviour had already had consequences and been displayed in late June 2014, in fact, just before the collision, and involving Maddison Tilyard. 

53They involved your approach to a security guard outside a city nightclub, involving the confiscation of some false identification cards, leading to charges and related to a weapon and assault.  You were subsequently placed on a 12 month Community Corrections Order in December of 2014 for those matters, and for possession of drugs and proceeds of crime committed in August 2014 when you were found in possession of ice and cocaine.

54A Community Correction Order only had treatment conditions attached to it.  However, your attendance and engagement with Corrections was poor and you incurred many unacceptable absences and failed to attend treatment opportunity so that by July 2015 Corrections breached your order and recommended its cancellation.  Your drug use was still current and your behaviour was deteriorating further. 

55Then in August 2015 you were dealt with for the breach of the order, as well as serious charges arising out of allegations that you had made threats to kill to Maddison Tilyard's brother, threats made in response to his statement on social media that you had murdered his sister. In response, you had messaged him that you would shoot him in the head. 

56You were imprisoned for three months with pre-sentence detention of 39 days reckoned as having already been served.  Paradoxically, but perhaps not surprisingly, the structured containment afforded by the custodial setting provided, at the beginning, for what Professor Brewer, a consultant clinical neuropsychologist, called the best treatment for your "Dis-regulated cognitive and behavioural impulses"). 

57That setting was trouble to begin with.  You self-harmed against a wall in response to hearing voices and you were transferred to the St Paul's Mental Health Unit.

58In the end, by the time of your release and thereafter, you were not only about to be free of substance use but willing to undertake rehabilitative steps.  You were released in October 2015.  Your urine screens through 2016 attest to your abstinence. 

59You reduced your alcohol consumption significantly, severed ties with your former drug scene associates and have been receiving drug and alcohol counselling and are taking medication to deal with your mental health issues, and have been attending upon Dr Moriarty, a clinical psychologist, to whom you were referred to by Dr Ryan, a general practitioner.

60I accept that you have endeavoured to embark with commitment on a course of rehabilitation to overcome the issues that have beset you and this is to your credit.  The references tendered all attest to the significant first steps and apparent change in you which they have experienced, particularly this year, and I take this effort into account.  I accept that your prospects of rehabilitation are probably good but are necessarily guarded because they are dependent upon a long-term ability to remain abstinent from drugs, to behave pro-socially in the future and your commitment to deal in cooperation with professionals with your mental health issues.

61Although I accept that any necessary therapeutic support through the prison system is likely to be dependent on the available resources, I am confident that correctional authorities administer complex and difficult mental health management plans every day.  I will note in my orders the need for a management plan, in conjunction with your treating psychiatrist and psychologist and am confident that such a plan can address your mental health issues towards rehabilitation. 

62Much material was presented and discussed during the plea, aimed at describing the mental health issues with which you have dealt with.  I will need to take some time to describe that material.  A useful summary of it was not only provided in submissions to the court upon the plea by your counsel, but also in the very detailed report of Professor Brewer, dated 18 July 2016. 

63The first point made, which I accept, is that your incarceration may be more onerous for you than for someone without your history of mental health issues.  That is, rendering you, as in your incarceration last year, more vulnerable to the harsh experiences of imprisonment.  I will take this aspect into account. 

64Secondly, submission was made, albeit tentatively and not persuasively in my view, that the materials and opinions provided a basis for arguing the primary effect of the Verdins principles which deal with the amelioration of general and specific deterrence by a diminution of moral culpability due to the causal link to the offending of some mental illness. 

65The materials are problematic, to the extent that firstly, although there appears to exist a diagnosis of schizophrenia, this diagnosis seems to be questioned by the most recent assessments of you.  And secondly, even if it was to be accepted that it is only linked in a very qualified way by Professor Brewer to your offending, it is expressed to be "In part only", and "To a mild extent", at p.12 of Professor Brewer's report. 

66These assessments, in my view, are insufficient in the context of a complex mental history to be a foundation for the application of the primary Verdins principles to my sentence, as properly reflected in the somewhat unenthusiastic way in which this matter was raised and properly so by counsel upon the plea.  In any event, this is a summary of the matters raised by those who wrote reports for the court. 

67Dr Nicholas Owens, a consultant psychiatrist, on 1 November 2014 provided a report for the court, for your court appearance of December 2014.  In this report
Dr Owens relates your attendance upon Dr Jager, a psychiatrist in your late teens, or early twenties and that you had been prescribed, in your view, over-prescribed anti-psychotic medication.  You told Mr Owens that Dr Jager told you you had developed psychosis from your dependence on drugs.  You told him the drugs made you feel like a zombie.  You told him a history of fluctuating moods from elation to depression and anger.  You outlined your current significant daily use of ice and its effect, and alcohol use, as well as your sadness and grief arising out of the accident. 

68Dr Owens was of the opinion that you had not developed the skills to manage your moods or interpersonal conflicts and this failure of character maturation, when combined with your early history, made you paranoid and suspicious of the world and others in it, leading to displays of anger, impulsivity, instability in relationships made worse by significant drug abuse.  He did not consider you to have an enduring psychotic illness such as schizophrenia and did not consider that the offending for which he was writing, the June 2014 offences at the nightclub, were connected to any psychosis. 

69Mr Cummins, a forensic psychologist, provided a report dated 11 December 2014.  He had Dr Owens' report provided to him.  You were still addicted to ice and engaging in binge drinking of alcohol.  Mr Cummins opined that there was no evidence of any psychotic-like symptoms and you did not present as being schizophrenic.  In his opinion you showed features of a borderline personality disorder and a paranoid personality disorder.

70The court received two reports from Mr Jager, forensic psychiatrist, one dated August 2010, another dated October 2015.  The first recites Dr Jager's assessment of your history but does not provide in clear terms his diagnosis.  The second, a letter to Dr Ryan, relates to assessments made just before your release from prison and immediately after.  In his opinion you have chronic paranoid schizophrenia exacerbated by poly-substance abuse, then in remission.  However, in the body of the report, Dr Jager expresses his diagnosis as "Lingering symptoms of chronic paranoid schizophrenia".  Dr Jager refers to your regime of Risperidone injections that I have referred to above. 

71The next report dated 11 July 2016 was that of Dr Nicole Moriarty.  She refers to your attendance upon her since October 2015.  She gives a history, refers to the Owens and Cummins reports and notes your significant improvement.  She notes the diagnosis of Dr Jager without much comment.  She gave a general outline of your state as anxious, depressed and concern for the future, states that you are medication compliant, abstinent and managing your schizophrenia. Your prospects of rehabilitation appear to her to be good, subject to the anxiety and depression you are currently experiencing being exacerbated in custody.

72Dr Biehl, a GP from Taylors Lakes, wrote a report dated 11 July 2016 about your contact with that practice and the doctors there, including Dr Ryan and himself.  His report simply confirms Dr Jager's diagnosis, your history and your recent improvement. 

73Dr Adam Deacon, a consultant psychiatrist, provided an extensive report dated 18 July 2016.  He outlined your personal history, your drug and alcohol history and your psychiatric history, and interventions by Dr Jager and
Dr Moriarty.  He opined that your personality structure may have borderline anti-social and paranoid traits.  He stated that there are a number of possible differential diagnosis relating to your psychotic symptoms.  He said you might have an enduring psychotic disorder, schizophrenia.  However, it is not possible to definitely diagnose schizophrenia given your persistent use of amphetamine and ice. 

74He said that you have:

"Quite possibly persistently experienced psychotic symptoms directly relating to the effect of the drugs". 

75He agreed with Professor Brewer that this drug taking, when combined with a history of multiple closed head injuries, may have contributed to a mild required brain injury.  This would lead to cognitive decline and deficits.  Importantly, Dr Deacon finds it difficult to find an identified nexus between your mental processes and the driving offences.  Also notable is his comment at paragraph 7 that these mental problems, however, may have contributed to some degree to moderate your capacity to make rational decisions in regard to driving but that this is very difficult to determine.  He confirms your vulnerability as a prisoner. 

76Dr Brewer's report is dated also 18 July 2016.  He provides a very useful and concise summary of your history and the preceding reports.  He conducted a number of psycho-metric tests, your previous diagnosis and your current intramuscular neuroleptic anti-psychotic medication.  Professor Brewer concurs with Dr Owens' impression of likely untreated ADHD symptoms and with respect to the diagnosis of chronic schizophrenia, he remained cautious because there is available evidence which supports "A more parsimonious explanation of drug induced psychosis". 

77What is able to be diagnosed is a mild acquired brain injury due to your significant history of drug abuse, together with multiple closed head injuries.  This substance abuse would only be expected, he writes, to exacerbate your disorganised and immature personality features where you are easily overwhelmed by social and emotional factors, undermining your reasoning and judgement skills.  This aspect, he says, is casually linked, though in part only, to the commission of the offences so as to mitigate "To a mild extent your responsibility". 

78The compounding impact of these matters is to provide "A moderate compromising impact on your ability to reason, think and make proper judgement and engage in consequential thinking". 

79I remain unpersuaded that this provides sufficient basis to enliven the primary Verdins principles.  However, I do accept, as explained in paragraph 20 of his report, that you exhibit a significant reduction in your speed of processing and your cognitive vulnerabilities include a reduced attention to visual details, poor self-monitoring capacity, impulsivity, instability of mood and poor emotional regulation".  These factors may have contributed to your conduct at the time of the collision and in that sense, again to a mild extent, moderate your moral culpability. 

80Their impact must be mild because the major factor in their existence is the abuse of drugs and alcohol in which you voluntarily engaged. 

81I also received a letter from Mr Henness about your attendance on drug and alcohol counselling from October 2015 to January 2016, where it is said you demonstrated great enthusiasm to stay away from drug use.  The ten character references I received on your behalf were from Natalie (your sister), Melissa (your partner), Rade Talevski (your second cousin), Ms Laventis (your cousin), Mr Bill Dimovski (your uncle), Mr Gorgovski (your cousin), Mr Zore Dimovski (your uncle), Cindy (your sister), Mr Talevski and Maria Ristovski, your mother. 

82Each of these letters eloquently speaks of the life you have led and the life they have experienced with you.  They describe your kindness and gentleness as well as unexplained rages, aggression and paranoia.  They each have attested to your difficult times after the collision, your descent into your own hell of drug abuse and ultimate imprisonment and slow recent rehabilitation.  They each speak of this progress with hope and express their support.  Each and together they reflect a family environment which has been both perplexed by these years of difficulties but which speaks of a better future.  I take each of those letters into account.

83General deterrence and denunciation must be primary considerations in this sentence.  Specific deterrence also has significant weight, as does community protection.  Just punishment is expressed in this sentence, will take into account ameliorating factors I have outlined, particularly the recent effort at rehabilitation.  I am conscious of the fact that the court sentence should not crush rehabilitative efforts, given that the best protection and interest of the community in the long term, lies in your rehabilitation after your punishment. 

84In my view the parole period which I have determined is of an appropriate length, to provide the opportunity for support and assistance required for this goal. 

85Please stand.  On the charge of dangerous driving causing death, you are convicted and sentenced to six years' imprisonment and three months. 

86On the charge of reckless conduct endangering serious injury you are convicted and sentenced to three years' imprisonment. 

87I order that nine months of Charge 2 be cumulative on Charge 1, making a total effective sentence of seven years.  I order a non-parole period of four years and nine months. 

88But for your plea of guilty I would have ordered a total effective sentence of eight years with a non-parole period of five and a half years. 

89I have signed an order under s.464ZF for a biological sample to be placed upon the DNA database.  That forensic procedure is usually of a scraping from the mouth.  It is not a painful procedure and when that request is made of you, if you do not consent then an authorised member of the police force can take a blood sample from you using reasonable force.  Do you understand?

90OFFENDER:  Yes.

91HIS HONOUR:  How many days has it been since the plea that I should declare?

92MS STYLIANOU:  Twenty-six days, not including today, Your Honour.

93HIS HONOUR:  Thank you. 

94MR PAYNE:  I agree with that, Your Honour.

95HIS HONOUR:  I declare that you have served 26 days by way of pre-sentence detention excluding today. 

96MS STYLIANOU:  Your Honour, there's just one other matter.  I don't believe I made an application for a disposal order in relation to the drugs that were seized from the clothing of the accused at the hospital.  I make that application now, Your Honour, and if the draft orders have not been provided to the court, we will do so by this afternoon.

97HIS HONOUR:  Thank you.  I'll sign them when I receive them. 

98COUNSEL:  As Your Honour pleases. 

99HIS HONOUR:  Are there any other orders? 

100MS STYLIANOU:  No Your Honour. 

101HIS HONOUR:  Yes, you can remove Mr Ristovski.

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