Director of Public Prosecutions v Salter
[2021] VCC 2161
•2 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-21-01051
Indictment no. L11300271
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BILLY-JO SALTER |
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JUDGE: | HER HONOUR JUDGE CARLIN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 November 2021 |
DATE OF SENTENCE: | 2 December 2021 |
CASE MAY BE CITED AS: | DPP v Salter |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2161 |
REASONS FOR SENTENCE
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Subject: Criminal
Catchwords: plea of guilty; dangerous causing death; Category 2 offence; destruction of evidence; mandatory custodial sentence; no explanation for offending given; no remorse; youthful offender aged 21 at time of offending and a probationary driver; 6AAA declaration.
Legislation Cited: Crimes Act1958 (Vic); Sentencing Act1991 (Vic).
Cases Cited: DPP v Neethling [2009] VSCA 116; Stephens v the Queen [2016] VSCA 121; R v Verdins [2007] VSCA 102; Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann [2021] VSCA 160; DPP v Oates (2007) 47 MVR 483; Worboyes v The Queen [2021] VSCA 169; DPP v Ristevski [2019] VSCA 287; Staples v The Queen [2021] VSCA 307; Arpaci v The Queen [2020] VSCA 81.
Sentence: Total Effective Sentence of 45 months imprisonment, with a non-parole period of 27 months. Licence disqualification for a period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Glynn | Office of Public Prosecutions |
For the Accused | Ms E. Millar with Mr D. Gibson | Victoria Legal Aid |
HER HONOUR:
Introduction
1 Billy-Jo Salter, in the early hours of Sunday morning, 2 June 2019, the car you were driving struck and killed 62-year-old Raymond Meadows and his guide dog, Gerry, as they were walking along the side of the Calder Highway.
2 Although vision impaired, Mr Meadows was fit and happy and enjoying newfound freedoms as a result of his recent pairing with Gerry. He was looking forward to spending his retirement with his wife, Valma, and daughter, Kristen. Two weeks before he died, he told Valma how happy she and Gerry made him and suggested they all holiday together.
3 Your driving on that morning not only brought to an abrupt and violent end the lives of Mr Meadows and Gerry. It profoundly affected many others, including Valma and Kristen, and you. You now face a term of imprisonment and the knowledge that you caused the death of an innocent person when you were 21 years old will remain with you for the rest of your life.
4 The reason you collided with Mr Meadows and Gerry is known only to you. You have refused to tell the truth about what happened and you destroyed the only evidence, being dashcam footage, which might have shed light on the topic. What is known has been reconstructed from a combination of witness accounts, scene examination and airbag control data and is as follows.
Circumstances of the Offending
5 Mr Meadows and Gerry left their home just outside Wedderburn in Central Victoria at about 6:30 that morning to walk to the gym. It was still dark but Mr Meadows was wearing a high-vis vest and a backpack with flashing lights and Gerry was wearing a dog harness with flashing lights. After walking down their long driveway they crossed to the northside of the Calder Highway and proceeded to walk into town, along the bitumen shoulder of the highway, facing oncoming traffic.
6 At around that time you, a probationary driver, were driving back to your home in Inglewood about 30 kilometres south-east of Wedderburn, along the Calder Highway. You had spent the night with your friend, Jade Cooke, who lived in Wedderburn. You had stayed awake the whole night and even driven to and from McDonald's in Bendigo in the very early morning. Before you left her place Ms Cooke made up a bed for you and tried to persuade you to sleep but you assured her you would be fine. You were driving a rental car, a 2015 red Toyota Corolla, but were familiar with it.
7 Just before you reached the intersection with Wedderburn Junction Road, only minutes after you had left Wedderburn, your car struck Mr Meadows and Gerry. At that point the Calder Highway was long and straight with a speed limit of 100 kilometres per hour. It was a bitumen road in good condition with a single lane of travel in each direction. The lanes were separated by double unbroken white lines and there were also unbroken white fog lines on each side of the road leading to bitumen shoulders. It would have been dark as there was no overhead lighting.
8 The impact of the collision threw Mr Meadows and Gerry down the road. Gerry was killed almost instantly and Mr Meadows was critically injured. He died on route to hospital.
9 You stopped your car nearby and waved down a passing car. You told the occupants that you thought you had killed someone on a bike and they called Triple 0. You also told them that your car had dashcam.
10 Tragically, Mrs Meadows arrived at the scene, having heard the collision from her home, and saw her husband and Gerry lying on the road.
11 When police arrived you submitted to a PBT, preliminary breath test, and oral fluid test, both of which were negative. You told them that Mr Meadows had appeared in the middle of the road in front of your car and you could not avoid him. This was a lie. You said nothing about your car having dashcam and the police were unaware of that fact until after.
12 Not only did you not tell the police about the dashcam, at some point you removed the SD card from the camera and placed it in your pocket. You later left it at Jade Cook's house and days later asked her to destroy it, which she did.
Investigation and Charge
13 The scene was examined by collision reconstruction expert, Dr Janelle Hardiman. She was able to determine from Mr Meadows and Gerry's post collision resting positions that they had both been on the bitumen shoulder of the highway when struck. She was also able to determine from the five seconds of pre-crash data, which was available from the Toyota Corolla's airbag control module, that for the five seconds immediately prior to the collision you had your cruise control set at 94 kilometres per hour and that you had not applied the brakes or steered the car at all.
14 Dr Hardiman conducted experiments using an identical car to the Toyota Corolla driven at the same speed. She determined that the camber of the road was such, that without any steering input a car driving that stretch of the road would drift to the left and further, that approximately five seconds after the steering was last corrected, the car would travel onto the bitumen shoulder.
15 You were formally interviewed by police on 15 June 2019 and 30 May 2020. Essentially, you maintained the lie that Mr Meadows and Gerry were on the road.
16 Specifically, in your first interview you said it was ‘really foggy’ and that you were driving more slowly and really paying attention because of that. You denied being drowsy. You said variously, that you thought you saw a motorbike riding towards you, veering into the middle of the road and that you had hit that motorbike, that you did not see the person you hit until the last second, that he was in the centre of your lane and you had swerved to your right to avoid him and that you only saw flashing lights after the collision.
17 In your second interview, almost a year later, you repeated the same general account without mentioning steering to the right. This time you said it was somewhat foggy and that you could see a reasonable distance in front. When confronted with Dr Hardiman's opinion that Mr Meadows and Gerry were on the road shoulder you said that, although what happened was a bit hazy, the collision definitely happened on the road and in your lane.
18 You also, in the second interview, denied knowing anything about the dashcam or SD card. Although, almost immediately after the interview concluded you admitted that you had removed the card from the car.
19 After the second interview you were charged and remanded in custody until 1 June 2020, when you were released on bail.
20 On 18 May 2021 you were committed for trial to this court on a total of six charges after a two-day contested committal, involving nine witnesses, five civilians and four police, including Dr Hardiman. On 4 August 2021, the matter resolved to one charge of dangerous causing death, contrary to s 319(1) of the Crimes Act1958 (Vic), and one charge of destruction of evidence contrary to s 254(1) of the Crimes Act1958 (Vic). You were arraigned and pleaded guilty before me to those charges on 24 August 2021.
21 The offence of dangerous driving causing death carries a maximum penalty of 10 years and a mandatory loss of licence of at least 18 months.[1] Further, the date of your offending means that a custodial sentence, not being one combined with a Corrections Order, is mandatory unless certain exceptions exist, none of which apply in your case.[2] The destruction of evidence offence carries a maximum penalty of five years imprisonment.
[1] Sentencing Act 1991 (Vic) s 89 (‘Sentencing Act’), the charges being ‘serious vehicle offences’ as defined by s 87P of that Act.
[2] Ibid s 5(2H).
22 A plea on your behalf was conducted before me on 11 November 2021 and it now falls to me to sentence you for your conduct.
23 Your counsel, David Gibson, accepted that there were no exceptions to the requirement that I impose a term of imprisonment.
24 In arriving at an appropriate sentence, which in your case really means the length of the prison terms, I am required by law to have regard to a variety of sometimes counter-veiling factors.[3] Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each one the weight it deserves in order to arrive at a just sentence.
[3] Ibid s 5(2).
Your Personal Circumstances
25 Turning first to your personal circumstances. These were outlined in defence submissions and the report of consultant psychologist, Patrick Newton, as well as various medical assessments, letters and reports. Mr Newton interviewed you by video conference on 18 October 2021. He did not conduct formal psychological tests due to your low literacy levels.
26 You are now 24 years old. You were 21 at the time of the offending.
27 You were born in Tasmania but have lived in Victoria since you were a toddler, predominantly in the Bendigo and Shepparton areas. You have two older half-siblings, a brother on your mother's side and sister on your father's side, but are not close to either of them.
28 Your childhood was unstable, abusive and chaotic. You told Mr Newton that your father was a violent alcoholic, whilst your mother suffered significant physical and mental health issues, including schizophrenia, bipolar disorder, depression and anxiety.
29 Your parents separated when you were 17. You lived with your father until he developed dementia and moved into a care facility. Your mother is also now in a facility.
30 Not only were you not supported or nurtured during your early years, you experienced physical and emotional violence from both parents. Your early social and emotional development was further impacted by neuro-developmental issues for which you did not receive appropriate support or care. You report being diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) at the age of seven or eight and were prescribed Ritalin but found it to be of little assistance. You were diagnosed as having an Autism Spectrum Disorder (ASD) at the age of 16. The associated learning and social difficulties with both disorders were largely untreated and made the transition into adulthood and independent living difficult. You only began to receive NDIS support in 2020.
31 Your time at school as marred by social isolation, bullying and difficulty developing literacy skills. You became a target for negative attention from your peers due to your appearance, poverty, and social difficulties. Despite struggling academically and socially, you were not provided with specific interventions or supports. You transferred between mainstream schools and experienced significant social, behavioural and learning problems at each of them. You transferred to a community schooling program, which supported people with disabilities, in Year 9 before leaving school in Year 10.
32 You have worked in a number of supported enterprises, including doing garden maintenance, but have had difficulty maintaining stable employment. You most recent position after this offending was as a delivery driver for a local bakery. That came to an end when your licence was suspended by VicRoads, pending confirmation of your fitness to drive after your doctor disclosed a concern about possible sleep apnoea.
33 You are currently unemployed and receiving the disability support pension.
34 You have had two relationships in adulthood. The first was your partner at the time of the offending, who also acted as your carer. You describe that relationship as abusive and unstable. The second is your current relationship with Natasha Etridge, who was, up until very recently, pregnant with your child. You describe that relationship in positive terms. Ms Etridge miscarried at 21- or 22-weeks’ gestation it appears, on or about 19 November. You were looking forward to becoming a parent.
35 Your life since the offending has been somewhat unstable. One relationship broke down and another started. You had a period of homelessness and you gained and lost employment. You also have ongoing health issues, including morbid obesity, possible impaired liver function, a nodule in your lung and slipped discs. Leading up to today you have been living in a rental property in Bendigo with Ms Etridge but have struggled to manage your finances and have required financial assistance to afford items like fuel to attend appointments.
36 Hospital records indicate you were diagnosed with Post-Traumatic Stress Disorder (PTSD) related to the offending. You told Mr Newton you experienced episodes of lowered mood and fleeting suicidal ideation after the collision. You told him you worried about being separated from Ms Etridge during the late stages of her pregnancy and missing early milestones of your child's life. You also said you were worried you would be mistreated by other prisoners, similar to your experiences at school.
37 Mr Newton noted that you were taking the antidepressant Effexor at the time you saw him, although perhaps inconsistently. He thought there was likely a degree of attention seeking in your past expressions of suicidal intent and he also saw no evidence of PTSD at the time you saw him. He considered any PTSD you might have suffered as a result of the collision to be in remission.
38 Whilst he only evaluated you over video-link and did not conduct a neuro-psychological or cognitive assessment, Mr Newton said you were clearly of well below average intelligence, although not within the intellectually impaired range.
39 He agreed with your previous diagnosis of ASD, noting that you presented with the core features of ASD in your interview. He concluded that you find it hard to ‘understand others, to express empathy and to establish lasting and secure connections with them'.[4]
[4] Exhibit 2 on the Plea, Report of Patrick Newton, [45] (‘Exhibit 2’).
40 Mr Newton also assessed you as having an adjustment disorder with anxiety. He considered this was a response to your current predicament, in particular your fear of imprisonment, rather than a reaction to past traumatic events such as the collision, albeit it was exacerbated by your ASD and past exposure to abuse.
Objective Gravity of your Offending and Moral Culpability
41 Two factors of central importance in determining your sentence are the objective gravity of your offending and your moral culpability.
42 The offence of dangerous driving causing death covers a wide range of conduct from momentary inattention to intentional risk-taking behaviour but always involving a serious breach of the proper management or control of a vehicle, so as to be in reality, not just speculatively, potentially dangerous to others.
43 The objective dangerousness of the driving and the driver's state of mind are relevant to both offence gravity and moral culpability.[5] Further, the extent of the risk created and the potential harm from that risk are relevant to the dangerousness of the driving.[6] The essence of the offence is not just the dangerousness of the driving but that dangerous in association with the taking of human life.[7]
[5] DPP v Neethling [2009] VSCA 116 (‘Neethling’).
[6] Stephens v the Queen [2016] VSCA 121, [20] (‘Stephens’).
[7] Neethling (n 5) [29], adopting an unreported 1997 NSW case of R v Musumeci.
44 Whilst the circumstances of your collision seem consistent with you falling asleep, Mr Gibson submitted this was unlikely, given you had only left Wedderburn moments ago. Further, amongst the different explanations you gave to your friends after the event, one of them was that you were adjusting the car radio. Again, whilst this seems a plausible explanation, you later resiled from it. Not only that, when you gave that version you also claimed that you had tried to slow down and brake, which clearly is not true. I am therefore left in the situation that I simply do not know what happened.
45 This means that in assessing the dangerousness of your driving and your culpability for it, I am limited to the bare facts that for at least five seconds you drove at 94 kilometres an hour on a dark country road without exercising any control over your car. In so doing you failed to prevent your car from drifting onto the road shoulder and failed to take any preventative action to avoid a collision with Mr Meadows and Gerry. You were not affected by drugs or alcohol and you were not speeding. If you were fatigued there is no evidence that it contributed.
46 Whilst those bare facts do not put you in the worst category of offending, they also do not put you at the lowest end.
47 Clearly, yours was more than momentary inattention. To drive for five seconds at that speed in the dark without exerting any control at all over your car and without keeping a proper lookout for whatever reason, is highly irresponsible and risky behaviour and a total abdication of your responsibility as a driver. Further, even if fatigue did not contribute, you knew you had been up all night and decided to drive anyway.
48 As a young, inexperienced probationary driver you should have been vigilant to ensure you did not drive when your ability might have been compromised. You owed it to yourself, as well as all other road users.
49 Your destruction of the SD card is a wholly different matter. Whilst the decision to take the card might have been impulsive, your instruction some days later to Ms Cook to destroy it was not.
50 You were well aware of the significance of the card to the criminal investigation. This was especially so, since you had obviously decided that you were not going to tell the truth about what happened yourself. Destroying the card not only delayed and impeded the investigation, it deprived Mr Meadows' family of the opportunity to gain some insight into the last moments of their loved one's life and thereby prolonged their anguish. It was serious planned offending, which you well knew to be wrong. In that regard, I note that Mr Newton expressly said that despite your various limitations your 'moral reasoning is not impaired'.[8]
[8] Exhibit 2 (n 4) [49].
51 Mr Gibson accepted that your moral culpability was not reduced for either offence by the principles of a well-known case called Verdins.[9] However, he did submit in relation to Charge 2, that your moral culpability was reduced in accordance with the principles of another well-known case called Bugmy v The Queen (‘Bugmy’),[10] which was concerned with the long-term effects of profound childhood deprivation.
[9] R v Verdins [2007] VSCA 102 (‘Verdins’).
[10] (2013) 249 CLR 571.
52 The High Court in Bugmy articulated two different ways in which childhood deprivation may be relevant to moral culpability. The first depends on a nexus between the deprivation and the offending and the second does not.[11]
[11] DPP v Herrmann [2021] VSCA 160, [36]-[46].
53 I am not satisfied on the evidence before me that your early disadvantage, whether or not it could be categorised as severe, has a ‘nexus’ in the sense contemplated by the authorities with your offending in Charge 2, so as to reduce your moral culpability on that basis. That is, I am not satisfied that it either explains or contributed to your conduct in destroying the SD card.
54 However, I do accept that in the more general sense envisaged in Bugmy, your early disadvantage is relevant to your moral culpability. Clearly, you should not be judged as harshly as if you had been brought up in a safe, stable, loving environment.
55 Similarly, your youth and immaturity have some bearing on your moral culpability for Charge 2. In that regard, the law recognises that young people, as you were at age 21, are more prone to make ill-considered decisions and may not fully appreciate the seriousness or consequences of their conduct.
56 Taking your early disadvantage and youth into account in the manner I have just indicated, in my view you still bear a high moral responsibility for your decision to destroy the SD card.
Current Sentencing Practices
57 One of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices, which may be gleaned from statistics or sentences imposed in other cases or both. The rationale for this is to promote consistency of approach in sentencing, particularly the application of relevant sentencing principles.
58 Since the offence of dangerous driving causing death was introduced into the Crimes Act1958 (Vic) in 2004, its penalty has changed several times, reflecting parliament's view of its seriousness. First, in March 2008, the maximum penalty was increased from five to ten years. Then in 2016, it became subject to a form of mandatory sentencing, whereby offenders had to receive non-combination custodial sentences unless certain exceptions existed. Finally, on 28 October 2018, the exceptions were tightened making it even harder to avoid a custodial sentence. As I have already said, Mr Gibson accepted that none of the exceptions apply to you.
59 Even before the introduction of the mandatory sentencing scheme, our Court of Appeal made it clear that except in cases of low moral culpability, the offence of dangerous driving causing death should attract a custodial sentence and usually a significant term.[12] In 2016, the same court determined that courts were, in essence, sentencing too leniently for this offence.[13]
[12] Stephens (n 6); DPP v Oates (2007) 47 MVR 483.
[13] Stephens (n 6), although dealing with mid-range offences.
60 Consideration of past sentences must be mindful of the various legislative changes and Court of Appeal pronouncements.
61 The most recent Sentencing Advisory Council statistics of the higher courts, June 2020, indicate that roughly 50 per cent of people sentenced on a charge of dangerous driving causing death between 1 July 2015 and 30 June 2020 received an immediate term of imprisonment, ranging from a number of months to seven years, with two to three years being the most common sentence.[14]
[14] A community corrections order was the next most frequent sentence imposed at 43.8%.
62 Whilst no two cases are every truly the same, of more use than statistics are sentences imposed in comparable cases. Whilst such sentences are not binding precedents to be applied or distinguished, they are a guide or yardstick against which to measure any sentence I propose in this case. There is never only one single correct sentence.
63 I have considered the three cases involving dangerous driving causing death, to which I was helpfully referred by your counsel and the prosecutor, two County Court and one Court of Appeal decision. There is no need to recite the facts or sentences of those cases. Suffice to say, there were some similarities but also, a great number of dissimilarities, serving to highlight that ultimately, my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.
Plea of Guilty, Co-operation and Remorse
64 You are entitled to a discount in your sentence for the fact you pleaded guilty. Noting that at least some of the cross-examination at committal was directed at charges which have not been pursued by the Crown, the discount you receive will not be as great as if you had pleaded guilty at an earlier stage. In pleading guilty you have facilitated the course of justice and taken legal responsibility for your crimes.
65 Further, our Court of Appeal has recently reinforced the need for sentences to reflect the high value of pleas of guilty in the current COVID-19 environment, where the legal system is under considerable strain.[15]
[15] See, eg, Worboyes v The Queen [2021] VSCA 169, [39].
66 You do not get any additional discount in your sentence for remorse, as quite simply there is no convincing evidence that you are remorseful. As I have already said, you maintained in your police interviews that Mr Meadows and Gerry were in the middle of the road, even when confronted with the opinion of the collision reconstructionist, Dr Hardiman, that they were on the road shoulder. Further, although you admitted after the second interview to removing the SD card from the car, you minimised your conduct by saying that you did this to ensure it was not tampered with and that you intended to hand it into police. You also deflected blame for its destruction onto your friends.
67 When you saw Mr Newton on 18 October 2021, you did say to him that you wanted to say sorry to Mr Meadows' family. However, you still maintained that: 'The man and the dog walked in front of me. I don't really think I did anything dangerous myself'.[16] You, again, deflected blame for the destruction of the card, saying that your friend told you to get rid of it. You said these things, even though by that stage you had been arraigned before me and pleaded guilty to both charges.
[16] Exhibit 2 (n 4) [33].
68 Mr Meadows' family and Gerry's trainer have a right to know how the accident occurred but you have deprived them of that knowledge. Although there is authority for the proposition that lies, such as yours in those circumstances can be aggravating,[17] the Crown has not sought to rely upon them in that way and I do not treat them as such.
[17] DPP v Ristevski [2019] VSCA 287; Staples v The Queen [2021] VSCA 307, [74]-[75].
69 I accept that your ASD maybe an explanation, at least in part, for your lack of empathy for Mr Meadows' family. But whatever the reason, the fact is you do not get the added benefit of remorse in the sentencing equation.
Impact of your Offending
70 Other matters I am required to take into account is the impact of the offending on your victims and their personal circumstances.[18] No sentence I impose will ever bring back Mr Meadows or relieve the suffering of his family.
[18] Sentencing Act (n 1) ss 5(2)(daa), (da) and (db).
71 Three victim impact statements were tendered and read to the court. The first was by Valma Meadows. The second by Kristen Evans, Mr Meadows' daughter, and the third by Yoav Ortov, the seeing eye dog instructor who trained Mr Meadows and Gerry.
72 The loss of a loved one is always accompanied by grief, but the sudden and senseless manner of Mr Meadows' death has had a profound impact on his family and friends. The incident was particularly traumatic and distressing for Mrs Meadows, who, as I have already mentioned, heard the two impacts from her home and attended the scene to see Mr Meadows and Gerry on the road. To avoid the constant reminder Mrs Meadows sold her property and moved away from the area. She described the pain and loneliness she feels at the loss of her beloved husband and how difficult it is to cope without him. In court she addressed you directly, telling you that she did not hate you but will never forgive you.
73 Ms Evans described her ongoing grief at the death of her father. Despite the passage of time, Ms Evans still struggles every day with her father's death. She still finds it difficult to sleep and said at times it, 'becomes unbearably hard to breathe'. She also noted her anger that you, 'initially … used my dad's vision to [your] benefit'.
74 Mr Ortov recounted being both personally and professionally affected by the death of Mr Meadows and Gerry. He described feeling grief at the loss of their lives but also the feeling of possible responsibility, wondering if he gave Mr Meadows the best advice for walking on that particular route. In turn, those feelings impacted Mr Ortov’s ability to work with other guide dog handlers. Mr Ortov especially noted the distress caused by your claims that Mr Meadows and Gerry were in the middle of the road before it was proved that they were on the road shoulder.
Your Character and Risk of Reoffending
75 Turning to your character and risk of re-offending, you have only one prior court appearance, that being in the Children's Court in 2015 for possession of cannabis. You also have no subsequent matters and nothing pending. Given your background it would not have been surprising if you had a more extensive involvement in the criminal justice system and it bodes well for your future that you have not.
76 Whilst your repeated insistence that Mr Meadows and Gerry were in the middle of the road is a worry, at 24 you are still a young man and I consider that overall, your prospects for rehabilitation are reasonable.
The Burden of Imprisonment
77 In determining the appropriate sentence, I must consider how a term of imprisonment would be likely to impact you.
78 There are a number of reasons why a term of imprisonment may be particularly difficult to you and I take them all into account in your favour.
79 First, you are a vulnerable young man of 24, with minimal involvement in the criminal justice system, facing a term of imprisonment in an adult prison.
80 Secondly, your cognitive limitations and ASD will probably mean that the experience of prison, at least initially, will be harder for you than someone not suffering from those conditions. You are more likely to have difficulties with other inmates and may suffer more restrictive conditions in custody as a result. This is the fifth limb of Verdins.[19] I accept the opinion of Mr Newton in that regard.
[19]Verdins (n 9).
81 I do not find that your mental health is likely to decline in prison. In fact, according to Mr Newton, the experience of prison may help to improve your adaptive living skills and there needs to be care to ensure you do not become institutionalised.
82 Finally, although this is not peculiar to you, you are being sentenced during the COVID-19 pandemic. I accept that a term of imprisonment during the pandemic is generally harder than at other times. The initial period of quarantine, the curtailment of various activities and programs, the reduction or suspension of personal visits and the occasional lockdowns are all additional burdens.
Purposes of Sentencing
83 Under the Sentencing Act1991 (Vic) (‘Sentencing Act’), the only purposes for which a sentence may be imposed are just punishment, deterrence, rehabilitation, denunciation and protection of the community. I am obliged not to impose a more severe sentence than is necessary to achieve those sentencing purposes. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required. I must also be mindful of the principle of totality. That is, whilst your two charges warrant separate penalties and a degree of cumulation, I must not punish you anymore than is proportionate and appropriate for your overall offending.
84 The importance of general deterrence and denunciation in sentencing for dangerous driving causing death has been repeatedly emphasised by the courts and is now also enshrined in the Sentencing Act, by virtue of the provisions prescribing the manner of determining whether there are substantial and compelling circumstances justifying a non-custodial or combination sentence.[20] Members of the community must understand that if they drive dangerously, especially intentionally, with consequent loss of life or serious injury, significant punishment will follow.
[20] That is, in making that determination general deterrence and denunciation must be regarded as of paramount importance, less weight given to personal circumstances, other mitigating factors disregarded, and Parliament’s intention be considered.
85 Further, the sentence must manifest the community's disapproval of dangerous conduct, which results in the loss of human life. Such conduct not only harms the innocent victims; it harms the community as a whole.
86 I do not consider there is a significant need for my sentence to specifically deter you from doing anything similar again or to protect the community from you given my assessment of your future prospects.
87 Your potential rehabilitation is also something to which I must have regard. The law recognises the paramount importance of promoting the rehabilitation of young offenders, such as you. Not only is this because young people have the greatest potential to rehabilitate but also because it is by their rehabilitation that society will be best protected. It is also generally acknowledged that a period of incarceration in an adult prison will most likely have a detrimental effect on a young person's prospect of rehabilitation.
88 However, it is also settled law that the importance of rehabilitation in the sentencing equation declines as the seriousness of the offending increases and dangerous driving, resulting in the death of an innocent person is very serious. Further, the sad fact is that serious driving offences are often committed by young people and it is they who most need deterrence. As was stated in a well-known case of DPP vNeethling:
'It is precisely because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance and youth must be given relatively less weight'.[21]
[21] Neethling (n 5) [55].
89 Accordingly, whilst I do take into account your relative youth and the need to avoid a sentence which crushes your prospects of rehabilitation,[22] it does not displace the primacy in the sentencing equation of general deterrence.
[22] Arpaci v The Queen [2020] VSCA 81, [273].
90 Of course, my sentence must also be just and accommodate the mitigating factors I have already outlined in detail.
Sentence
91 Weighing all the competing considerations as best I can, I sentence you as follows. Mr Salter, can you please stand?
92 I convict and sentence you on Charge 1, to a term of imprisonment of three years and two months, so that is 38 months. This is the base sentence.
93 On Charge 2, I convict and sentence you to one year and six months. That is 18 months. I direct that seven months of the sentence on Charge 2 be cumulative on Charge 1, making a total effective sentence of three years and nine months or 45 months.
94 I set a non-parole period of 27 months, that is, two years and three months. That non-parole period of two years and three months is the earliest time at which you can be released from prison. It does not necessarily mean you will be released at that time. It is up to the Adult Parole Board when you are released.
Mandatory Licence Disqualification
95 As you have pleaded guilty to a serious motor vehicle offence, as defined in the Sentencing Act, I am obliged to cancel your licence and disqualify you from driving for a least 18 months on that offence. I have taken into account the effect loss of licence will have on your employment prospects. But in all the circumstances, I consider it appropriate to exceed the minimum. I cancel and disqualify you from driving for four years, effective from today.
Pre-Sentence Detention
96 I declare you have served two days in custody, not including today.
S 6AAA
97 If you had not pleaded guilty to these charges and been found guilty by a jury, I would have sentenced you to a total effective sentence of five years imprisonment with a non-parole period of three and half years.
98 So, Mr Salter, do you understand the sentence that I have imposed and that is, that the total effective sentence is three years and nine months with a non-parole period of two years and three months? Yes. You are nodding. Thank you. All right. Can I ask counsel, are there any matters that I have not attended to? Just one moment. Yes. Are there any matters that I haven't attended to? I'm not sure if there was a disposal order request made or - - -
99 MR GLYNN: No. There wasn't, Your Honour.
100 HER HONOUR: All right.
101 MR GLYNN: No.
102 HER HONOUR: I direct that the report of Mr Newton be provided to Corrections as soon as possible. Mr Gibson, are there any custody management issues that you want me to note, apart from as I say, directing that report be provided to Corrections?
103 MR GIBSON: Yes. Thank you, Your Honour. It's effectively his first time in custody. Your Honour has obviously already noted that he is vulnerable but his psychological vulnerability has been exacerbated by the recent miscarriage. So, he perhaps needs extra attention in that regard.
104 HER HONOUR: All right. I'll note that. Thank you and can I indicate, we have received media requests. I'm not sure from how many media organisations but in any event, they seek access to: the indictment, which I will grant them; the summary of prosecution opening for plea, which I will also approve; and the summary of defence submissions for plea. Mr Gibson, are there any problems with those submissions being released?
105 MR GIBSON: I probably oppose that, Your Honour. I think the submissions have been adequately summarised in your reasons for sentence.
106 HER HONOUR: Yes. I won't release those. The victim impact statements, I will not release those statements unless the victims, themselves, approve of that release. I wonder if the victims are able to communicate that to the OPP or Mr Glynn, if you are able to obtain those instructions. If they don't oppose then I will direct that they be released. If they do, I will not. I have also been requested to release any footage of the scene but there is no footage. There are photos of the scene. I would propose to release photographs of the scene, which do not show any graphic detail of Mr Meadows or Gerry but otherwise, I would release them. Anything to say about that?
107 MR GIBSON: No, Your Honour.
108 MR GLYNN: Not now, Your Honour, no.
109 HER HONOUR: All right. Thank you. In that case Mr Salter will be taken into custody – there are custody officials in Bendigo Court with him – and I will now adjourn the court.
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