Director of Public Prosecutions v Sheather
[2023] VSC 219
•27 April 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0315
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| TED DOUGLAS SHEATHER | Accused |
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JUDGE: | HANNAN J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 March 2023 and 26 April 2023 |
DATE OF SENTENCE: | 27 April 2023 |
CASE MAY BE CITED AS: | DPP v Sheather |
MEDIUM NEUTRAL CITATION: | [2023] VSC 219 |
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CRIMINAL – Sentence – Dangerous driving causing death – Plea of guilty - ‘substantial and compelling circumstances that are exceptional and rare’ for purpose of Sentencing Act 1991 s 5(2H)(e).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Hamill | Office of Public Prosecutions |
| For the Accused | Ms M O’Brien Mr G Chipkin | McDonald Lawyers |
HER HONOUR:
Ted Douglas Sheather you have pleaded guilty to one charge of dangerous driving causing death contrary to s 319(1) of the Crimes Act 1958.
The maximum penalty for this offence is ten year’s imprisonment.
As this is a category 2 offence committed after 18 October 2018, s 5(2H) of the Sentencing Act 1991 applies and requires the Court to impose a term of imprisonment unless one of the exceptions set out in sub-ss (a)-(e) of s 5(2H) are established.
Relevant to this matter, it is submitted on your behalf that sub-s 5(2H)(e) is enlivened as there exists ‘substantial and compelling circumstances that are exceptional and rare’.[1] The prosecution submit that this exception is not engaged. I will return to this issue in due course.
[1]Sentencing Act 1991 (Vic), s 5(2H)(e).
Facts
The facts which found your offending are set out in the Crown opening which is Exhibit A.[2]
[2]Tendered at the hearing of your sentence indication on 7 March 2023.
I have, in addition, seen the CCTV video which is Exhibit F.
On 18 March 2020, by driving a motor vehicle in a manner that was dangerous to the public, having regard to all the circumstances of the case, you caused the death of Nami Nakao.
You were driving a Kenworth truck and trailer north on St Kilda Road, St Kilda.
You stopped your truck at the Fitzroy Street intersection in the first of three lanes designated for travel straight ahead into St Kilda Road, and to the immediate right of a bicycle lane. Your vehicle was second in the line of traffic at the lights.
Ms Nakao was riding her bicycle in a designated bike lane.
She approached the Fitzroy Street intersection at a time when the lights were turning green, and she continued through the intersection still within the bicycle lane.
To the left of the bicycle lane is a lane designated for vehicles turning left, including onto Queens Road.
When the lights changed, you drove through the intersection with the other traffic and turned on your left indicator.
You were not in the correct lane to take that exit and the bicycle lane was between you and the left turn lane onto Queens Road. Between your lane and the bicycle lane there is a section of broken white line followed by a section of unbroken white line which commences further into the intersection.
The left turn lane onto Queens Road had several vehicles in it and a black Mercedes van paused to allow your truck room to merge into its lane.
There was a solid white line delineating the bicycle lane immediately to your left.
You crossed into the bicycle lane at a point where there was an unbroken white line.
The passenger side drive tyre of your truck struck Ms Nakao, causing both her and her bicycle to fall onto the roadway. It is unclear what part of your truck was involved in the initial impact.
She was tragically drawn under the truck tyres resulting in fatal injuries.
Ms Nakao was wholly in the designated bicycle lane at the time of the collision.
You stopped your vehicle as soon as you could and returned to the scene where you remained until police arrived.
When interviewed, you told police that you were aged 29. You said you worked for Doolan’s Heavy Haulage and had done so for the preceding 3.5–4 years. You said you had been driving trucks since you turned 18, which was 10-11 years, and further that you had been driving the relevant truck for a year and a half.[3]
[3]Record of interview – Ted Sheather, 18 March 2020, Q.10, [52], [54], [55] and [66].
In relation to the route you were taking, you said that you had been that way before a few times. Somewhere in the region of 8-10 times.[4]
[4]Ibid, [104]-[105].
You said as you were coming along the Nepean Highway you knew you had to turn off, but you were not fully familiar with that road.[5]
[5]Ibid, [109].
In relation to the position of your truck, you said you realised you were in the wrong lane once you came over the peak of the hill, about 80 metres back from the intersection.[6]
[6]Ibid, [124], [128] and [195].
You told police that at the lights you were in the second lane and there were cars in the lane that you wanted to be in, and that the lane was full.[7]
[7]Ibid, [158] and [161].
Police asked you if you had seen the cyclist at all and you said ‘not, not at all, I didn’t’.[8]
[8]Ibid, [164].
You agreed that you knew there was a bike lane there between the turning lane and the through lane but said that you were unsure whether it went across the intersection.
You told police that as you started taking off you put your left indicator on to merge over, and there was another vehicle doing the same thing.[9] A black car in the left lane slowed down to let you in and you and another vehicle merged over.[10]
[9]Ibid, [185].
[10]Ibid, [186].
You said you were looking in your left mirror, to see if a car was going to let you in.[11]
[11]Ibid, [205].
You said that you did not start crossing the bike lane until you had gone right through the intersection, but you were not sure if your whole truck was through or just the prime mover.[12]
[12]Ibid, [218].
You said you were not looking for bikes, but you were looking in your mirrors.[13]
[13]Ibid, [246].
You said there are blind spots along the passenger side of the truck.[14]
[14]Ibid, [262], [263], [265], [266], [272], [274], [275], [277] and [282].
You told police you were not sure about what the road rules were around bike lanes but agreed that you cannot cross a solid white line, only a broken line.[15] You said you knew there was a green strip but did not know there were white lines beside it and that you did not know you were not allowed to cross the bike lane.
[15]Ibid, [292], [294], [295], [299], [322] and [469].
In my view, a fair reading of the totality of your Record of Interview supports the following:
(a) You believed that at the intersection at Fitzroy Street you could not be in the left lane, which becomes the turn lane, due to weight restrictions.
(b) You at no time saw a cyclist.
(c) You knew there was a bike lane, but you were unsure if it proceeded through the intersection.
(d) You were looking in your mirrors and saw a car slow to let you and another driver in.
(e) You were looking back using your left mirror.
(f) You had your indicator on prior to attempting to merge.
(g) You were not looking for a bike, but you were looking in your mirrors.
(h) You were using your standard side mirror and the smaller mirror and the see-through window in the passenger door.
(i) You were aware of blind spots on the passenger side of your truck.
(j) You regularly take measures as you described because of the blind spots.
At the time of her death Ms Nakao was aged 22. You will live the rest of your life with the certain knowledge that you have killed another member of our community. The burden will be a heavy one, as it should be.
Objective gravity and moral culpability
Every offence of this nature involves tragedy and loss. Objective gravity is not determined by listing factors which are absent, but rather an assessment of all the circumstances. Your counsel submits that your offending is at the lower/lowest end of the range in terms of offence gravity and further that your moral culpability is properly assessed as low. The prosecution submits that while your offending is not high-end it is not at the lowest end.
In your case you were driving a large truck. You crossed the bike lane and failed to keep a proper lookout. The errors took but moments, but the consequences endure. That said, you were in all other respects driving as would be expected.
As was said by Maxwell P in R v Towle,[16] ‘dangerousness of driving is informed by the degree of risk of harm being caused and the extent of potential harm’.[17] Assessment is to be made having regard to all the circumstances of this matter. This offence can encompass a wide range of factual circumstances and culpability.
[16][2009] VSCA 280.
[17]Ibid, [66].
I must look to all the circumstances in this matter. The following matters are, I think, relevant:
(a) You were an experienced professional truck driver.
(b) You were driving a large heavy and long truck.
(c) You were familiar with this vehicle having driven it for 18 months.
(d) You knew your truck had blind spots on the passenger side. You told police as a result you would use your mirrors and then wait a few seconds. It is unclear why you did not see Ms Nakao.
(e) You were driving slowly – at about 30 kilometres per hour – with your indicator on, waiting for an opportunity to change lanes, guided by another driver slowing to let you in, having never seen the cyclist, despite using your mirrors, and proceeding gradually to change lanes.
(f) The incident occurred over a very short distance and within seconds.
(g) There are no issues regarding speed, drugs, racing, erratic or competitive driving or disregard of warnings.
(h) This is not a case of callous disregard. It was tragic momentary error.
The prosecution accepts changes could be made to the St Kilda Road junction intersection to make the intersection more in line with the ‘safe system’ philosophy explained in Dr Turner’s report, which is Exhibit 6.[18]
[18]Outline of prosecution submissions on sentencing indication, [32].
The prosecution agree that this is a complex intersection and I think there are particular vulnerabilities for cyclists which increase both danger to cyclists and the care which must be exercised by all road users.
It is not however to the point to say that the accident could have been avoided with physical barriers and birds eye cameras. Dangerousness is not to be judged in a perfect world, but rather the reality of the circumstances at a point in time, and what is required of a driver is dependent upon those circumstances.
Your counsel took the Court to the matter of Georgiou,[19] where the Court of Appeal held that for driving to be dangerous, ‘there must be some feature [of the driving] which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention’.[20]
[19]Georgiou v The Queen [2022] VSCA 172.
[20]Jiminez v The Queen (1992) 173 CLR 572 at 579; cited with approval in Georgiou v The Queen [2022] VSCA 172 at [16].
While it is not always helpful to seek to classify offending into ranges, I think in this case objective gravity and moral culpability are properly assessed as being in the lower end of the range of offences of this type.
In saying that I want to make clear to Ms Nakao’s family that this is not an assessment of the immeasurable value of a life lost but an assessment relevant to the criminal culpability of Mr Sheather.
Victim Impact Statement
Tendered as Exhibit D are two letters from Ms Nakao’s mother. Three Victim Impact Statements from Ms Nakao’s mother, sister-in-law and a family friend were read by the prosecutor and are Exhibit E.
I note that Ms Nakao’s husband Santi attended Court upon the plea in what must be very taxing and emotional circumstances. Several other family and friends joined the plea hearing remotely.
Returning to the Victim Impact Statements Ms Nakao’s mother’s grief and anger are palpable. She clearly expected and needed an apology at an early stage as would be the case in Japan, where I am told, it would be expected that the accused and the company publicly apologise for the death usually at some type of news conference. In this regard, there are aspects of our system, relating to what is sometimes a fear to apologise for a death lest it has consequences in subsequent legal proceedings, which bear some reflection. What is clear is that pain ripples through the lives of the victim’s family. Grief pervades and they must endure what they should not have had to endure. There is no comfort for their loss.
Ms Nakao’s sister-in-law reflects on all that is lost when a tragedy of this type touches a young life. Their future is taken and those who are left behind have an unfillable void in their lives.
Rie Matsumura is a family friend who knew Ms Nakao since she was four. She paints a compelling picture of Nami’s life and of the unbearable pain her family suffered and continue to suffer after her death.
There are no words, and I understand that Ms Nakao’s family seek to honour her in their pursuit of justice. They have, in my opinion, been brave and honourable in the face of such tragedy.
It is to be hoped that time will make bearable the reality they now all live with. It is clear to me that Ms Nakao was, and is, a much-loved wife, daughter, sister-in-law, friend and loved one and she is missed.
Remorse
I accept in your case that your plea is properly used as evidence of your remorse. It is clear that you regret your actions and not just the situation you now find yourself in. Your remorse is demonstrated in your full and frank record of interview and your plea of guilty. You have expressed remorse to family and friends and during your community corrections order assessment.
Your counsel conveyed your deep remorse and acknowledgement of how difficult it must be for Ms Nakao’s family to sit and listen to evidence about your children, having lost their child. You acknowledge that the family are deprived of seeing their daughter and sister have a family, a career and so many things that make a life.
Importantly, you gave evidence upon your plea, as did your partner, expressing your remorse directly to the victim’s family and loved ones. While you are clearly not a man of many words your apology was in my view genuine. As I have said, you will live with this, and it is clear the burden is heavy.
Priors
You have admitted the contents of a criminal record, which is Exhibit C.
You have appeared twice at the Geelong Magistrates’ Court.
On 30 March 2009, upon charges of careless driving, failing to display ‘P’ plates and unnecessary noise or smoke being found proven, you were without conviction directed to attend a Road Trauma Awareness seminar and to make a donation of $400.00 to the Red Cross Bushfire Appeal. Your licence was also suspended for one month.
On 27 January 2010, upon charges of drive in a manner dangerous and hinder police being found proven, you were without conviction fined an aggregate of $1,500.00. I am told this related to circumstances where you drove into a field to pick up friends who had been in a fight at a hotel and fled to the field when police arrived.
Neither of these incidents were work related and are now a significant number of years ago.
In addition, you have admitted receiving two traffic infringement notices. The first in 2010 for speeding and your licence was suspended for one month, and the second in 2018 again for speeding and your licence was again suspended for one month. Both these infringements were in your personal vehicle and not work related.
The 2018 matter occurred on a highway with a 110 kilometre per hour limit when you failed to comply with a road works speed reduction sign.
While it cannot be said that you are without relevant prior matters, they are in my view not to be given significant weight in the sentence I will impose this day.
Personal circumstances
You are now aged 32, having been born on 15 May 1990. You are the oldest child in a sibship of three.
Your parents separated when you were 12 years old. Your mother re-partnered and had five more children with her new partner before commencing a relationship with a man with six children. You report having a good relationship with your mother and continuing contact with both parents following separation.
Your father was a long-distance truck driver. He too re-partnered after separation but had no further children.
You described your father as being, like you, ‘a closed book’. Your father in more recent years has been in receipt of a disability pension following a truck accident.
You grew up in Lara and report no history of significant physical or mental health issues.
You attended a local primary school where you were the subject of bullying. In your secondary years you described to Dr Sullivan having minor behavioural issues before being expelled at the end of year 10.
You transferred to Corio Bay Secondary College where you successfully completed year 11.
After leaving school you worked as a labourer before obtaining your truck licence at 18. You worked for various businesses before setting up your own business with a partner who you report defrauded you resulting in you declaring bankruptcy.
Following your offending, you returned to working as an employee driver for Doolan’s in circumstances where your employer paid your legal fees, and you were working off that debt.
You have recently resigned and found employment with a landscaping company called Daisy’s in Geelong. You were initially employed doing deliveries, but your employers are aware that you will lose your licence and you will thereafter work for them in other capacities which do not involve the need to drive a motor vehicle.
You are currently living at your partner’s mother’s premises with your partner Ms Stacey Lagalle and your two children.
You have known Ms Lagalle since you were a teenager but only commenced a relationship with her in 2019.
Your son Rusty was born on 12 March 2021 and turned two in March this year. He has significant health issues, which I shall turn to in a moment.
Ms Lagalle gave birth to your daughter Dallas in February this year. Your family remains supportive of you, and your partner, mother and father attended Court upon your plea.
As regards your medical history, you suffered significant injuries in a car accident in 2009 resulting in you being placed in an induced coma for several weeks. You suffered numerous fractures resulting in several surgeries and inpatient rehabilitation. You have permanent restriction in movement of your jaw but have otherwise recovered.
You told Dr Sullivan that you have never accessed mental health services or been treated for any mental health issues.
Following this fatality you report flashbacks, hypervigilance when driving and impaired sleep.
While you have some history of drug use in your teenage and young adult years, neither played any role in your offending noting that you tested negative to both drugs and alcohol following this incident.
Exhibit 2 is a report from Dr Danny Sullivan, dated 29 November 2022.
You attended upon Dr Sullivan for the purposes of assessment and report on 20 November 2022. Dr Sullivan opines that your speech demonstrated increased latency and decreased spontaneity. He says your mood was restricted and you appeared dysphoric. He notes this was not present prior to this incident, you being charged, and your knowledge of the potential consequences.
He says your thought was normal and you appeared to be in the low-normal range of intellect.
Dr Sullivan says that you have a full complement of the biological and cognitive features of depression. He diagnosed you as suffering from major depressive disorder, which is moderate-severe. He strongly recommends you commencing anti-depressant medication and treatment. He also recommends that you notify VicRoads of your depression.
In addition, Dr Sullivan says you meet the criteria for post-traumatic stress disorder (PTSD) which is mild-moderate in severity. In this regard he notes your description of re-experiencing and avoidance, hypervigilance, and abnormality of emotional experience. He says this diagnosis is directly attributable to this incident with no improvement or attenuation over time.
Dr Sullivan opines that you would be at risk of serious deterioration or self-harm in custody. He notes it is unclear whether you could receive individual psychological support whilst in custody. He says incarceration would be more burdensome due to your mental disorder.
Ms Lagalle gave evidence that you have recently seen a GP and obtained a mental health plan but to date, despite numerous enquiries in Geelong and Melbourne, you have been unable to secure an appointment. Given the orders I will make this day this will become a matter for Corrections.
Exhibit 5 is a report from Dr Mike Forrester, paediatrician, to Dr Mark Magill in relation to your son Rusty.
Dr Forrester confirms Rusty’s developmental regression and opines this is likely related to his autism spectrum disorder (ASD) level 2 to 3. He outlines a treatment plan including an electroencephalogram (EEG) and consultation with a neurologist, Dr Ian Woodcock, and a brain scan under general anaesthetic.
Dr Forrester says it is unclear what Rusty understands as he has no words, just pointing. He noted autistic interactions and minimal eye contact.
Dr Forrester says that Rusty will require intensive parent and therapy support to maximise his developmental potential and longer-term participation and inclusion. He says, ‘Ted is needed at home to support his wife, son with major developmental issues and high needs, and their new baby’.
Exhibit 4 is a report, dated 25 November 2022, from Khyalla Morgan, a child development practitioner and physiotherapist at Barwon Health, in relation to Rusty. Ms Morgan first saw Rusty aged 14 months. She notes Rusty’s history including seizures and regression and the other assessments conducted through Barwon Heath regarding occupational therapy and speech pathology.
She says Rusty presented with autistic traits and regression and he was referred to Early Intervention.
Ms Morgan says Rusty is a sensory seeker and requires increased feedback to help him self-regulate which he does through full-body movements like climbing and mouthing. She says Rusty has a decreased awareness of his environment and he is unable to assess and moderate for safety. Thus, without close adult assistance he is at risk of injuring himself. This means he requires full-time close supervision during all waking hours. She notes he also has issues with sleep, waking three to five times a night.
Rusty remains nonverbal and is unable to communicate his needs by other means, so he cannot communicate that he is in pain, hungry or tired, and requires close surveillance by his carers to ensure his needs are met.
Ms Morgan says Rusty presents with Global Developmental Delay and ASD traits. She notes the significant burden placed on his family who are required to provide a high-level of close surveillance and assistance.
Ms Morgan notes that the birth of a second child will place an increased burden on the family and risk in relation to injury if the hands-on supervision Rusty requires is not available.
Exhibit 3 is a copy of Rusty’s National Disability Insurance Scheme (NDIS) plan dated 4 October 2022. What is clear is the scope of the support Rusty requires now and will require into the future. He is currently on an Early Intervention Plan which provides $27,000 a year funding to assist Rusty with specialist supports including speech, occupational and play therapies. The reality is that these supports are just part of what is required, and all interventions require continuity and follow up at home, with continuity being key.
Exhibit 8 is a letter from Chloe Scott, Director at Twinklekids Early Learning Centre, dated 14 February 2023. Rusty has attended the centre since May last year. Ms Scott says Rusty presents with complex ASD with level two supports required. She notes he is non-verbal. Ms Scott says you play a large role in supporting Rusty with his disabilities and that Ms Lagalle, recently having had a new baby, is not able to meet Rusty’s daily needs alone.
Ms Scott opines that Rusty is heavily reliant on structure, routine, and predictability and that the removal of one of his parents from his daily routine is highly likely to have a severe impact on his development – both physically and psychologically.
Ms Scott notes that Rusty has physical delays with his gross motor skills and without constant supervision he poses risks to his health and the potential for severe harm.
From an emotional perspective it is Ms Scott’s opinion that removal of a parent would be significantly detrimental to his emotional wellbeing and likely to have long-term lasting effects.
Letter
Exhibit 7 is a letter from your partner, Ms Stacey Lagalle, dated 6 February 2023. She details the role you play in your son’s care and support, and your care and support of her. She describes your criticality in terms of Rusty’s care, and in particular how care needs will increase with the birth of your second child. She describes completing what is necessary as ‘impossible’ without you as she has no other family support.
In addition to her letter Ms Lagalle gave evidence upon your plea. I note that Ms Lagalle is qualified in early childhood education and had worked in that industry for 12 years prior to Rusty’s birth. Most recently she had been working at Twinklekids Early Learning Centre where Rusty now attends, and her sisters and mother still work.
Ms Lagalle said Rusty was reaching milestones until he was about three and a half months old at which time, he commenced suffering from seizures resulting in numerous hospital admissions. Ms Lagalle observed that Rusty had balance issues and that he would run into walls and have falls. For the first year of his life, he woke every one and a half to two hours and, while there has been some improvement prior to Dallas’ birth, he woke several times a night and now again more frequently.
Rusty continues to be medicated for epilepsy, but doctors are hoping to trial weaning him off the medication to determine if he is still suffering from seizures which remain of unknown origin.
Ms Lagalle says that Rusty currently attends childcare two days a week for five hours and she does not anticipate any increase given how Rusty is coping. An application has been made for Rusty to have one-on-one support while he is at day-care due to his needs, but this is still pending.
Ms Lagalle gave evidence that a parent must be at all therapies and often Rusty must be sedated for testing as he cannot self-regulate. It is yet unknown whether these early interventions will be successful.
As regards recent issues, Ms Lagalle says that Rusty has started to run away. This could be onto the road or into other dangers including as it relates to animals such as horses at his grandmother’s home. He will not stop until somebody catches him. He also throws objects, hits his head on walls, flaps, and screams sometimes for hours.
Rusty remains nonverbal. Ms Lagalle has Rusty’s name on numerous wait lists for programs and says at home the follow-up is a team effort and you are solely responsible for the nights which can involve it taking a few hours to get Rusty back to sleep. It was Ms Lagalle’ s evidence that you sleep when Rusty sleeps.
His lack of self-regulation also means that he can never be left alone with his sister as he may hit her or otherwise injure her, and he cannot regulate himself to be gentle. He has also stopped eating following the birth of his sister and Ms Lagalle believes he is jealous and affected by the changed routine.
Ms Lagalle was asked about other possible carers to assist her. It was her evidence that while Rusty has a good relationship with her mother and she can leave him with her at times, her mother is in full-time employment, aged 60 and unable to help with the nights. Other family live 40 minutes away, do not have a relationship with Rusty and are unable to assist.
As regards Rusty continuing to have a relationship with you in a prison environment, Ms Lagalle says that Rusty would be unable to visit as he could not comply with requirements and is very sensitive to noise and people.
Character reference
Exhibit 9 is a character reference from David Alford who has known you since you were six years old. He says you put everybody’s needs above your own. He describes you as decent, hardworking, and trustworthy, and details contributions you have made to the community. Mr Alford describes you as an amazing father. Mr Alford also speaks to the remorse you have expressed to him and how heavily this incident weighs upon you.
Application of s 5(2H)(e) Sentencing Act 1991
As noted previously, it is submitted by your counsel that s 5(2H)(e) is enlivened. The prosecution submission is that the exception is not enlivened and, even if it was, that application of relevant sentencing principles properly results in sentence of imprisonment, that being the only sentencing option properly open.
Section 5(2HC) of the Sentencing Act 1991 requires that, in making this determination the Court:
(a) must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in s 5(1); and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to—
(i) the offender’s 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.
Section 5(2I) of the Sentencing Act 1991 further requires that, in making this determination the Court must have regard to:
(a) the Parliament’s intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with s 44) should ordinarily be made; and
(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
No party bears the onus in establishing that the exception applies, and I have acted on that basis.
As the Court of Appeal said in Farmer v R:
Within the context of s 5(2H), paragraph (e) is a residual category of limited scope. On any view, it is a very high hurdle that will not often be surmounted. The legislative norm is that category 2 offences will attract an immediate term of imprisonment, drug treatment order or detention in a Youth Justice Centre or youth residential centre. Importantly, community correction orders (‘CCOs’) or a combined CCO and term of imprisonment under s 44 are not available.
In many cases, given the type of offences within category 2, a term of imprisonment will be inevitable. In some cases, the operation of s 5(2H) will be harsh. In other cases a term of imprisonment or youth detention would be entirely unjustified, counterproductive from the view point of rehabilitation and work a serious injustice. That may be particularly so for young offenders. To a degree paragraph (2H)(e) guards against the risk of injustice. But the stringency of the test cannot be avoided.[21]
[21][2020] VSCA 140, [51]-[52].
The Court of Appeal continued:
However, although each of the aspects on which the applicant relies fit within a category or type that is common, in our view, the accumulation of detail was exceptional and compelled the conclusion that the mandatory detention provision should not be applied.[22]
[22]Ibid, [55].
Your counsel relies upon a combination of factors in submitting that the exception is enlivened but primarily what is relied upon are Rusty’s medical condition and needs. Before turning to that aspect, I wish to say something about the other factors relied upon.
Your counsel seeks to rely upon financial hardship occasioned to your family if you are incarcerated. Standing alone this could not be seen as more than the inevitable consequences of the incarceration of any family’s primary income earner. The prosecution submits that this is not substantial, compelling, exceptional, or rare, and note that as you are currently employed as a truck driver and there is a mandatory disqualification, you would be unable to continue in your current employment whether you were incarcerated or not. That, of course, puts to one side you obtaining other employment.
Turning to your mental health condition and the increased burden of custody resulting from that condition. In this regard your counsel relies primarily upon the report of Dr Sullivan, to which I have already referred, specifically his diagnosis of major depressive disorder and PTSD. It is Dr Sullivan’s professional opinion that in custody you would be at risk of serious deterioration or self-harm. He says incarceration would be more burdensome because of your mental disorder. The prosecution submits that neither your conditions, nor the prospect of them being exacerbated in custody, are exceptional or rare.
As the Court of Appeal said in DPP (Vic) v Lombardo (‘Lombardo’):
The Director emphasised authority in this Court to the effect that the ‘substantial and compelling circumstances which are exceptional and rare’ formulation is ‘almost impossible to satisfy’. Observations of that kind, however, must not be treated as a substitute for the statutory language. At best they describe the apparent operation of the provision, but without supplying a guide as to its meaning. That is especially so, given that the subsection applies to multiple offences and the degree of difficulty in satisfying the exception may vary according to which offence is under consideration. For example, both culpable driving causing death and dangerous driving causing death are category 2 offences, but the former offence is, by definition, more serious than the latter.[23]
[23][2022] VSCA 204, [64].
Further, the Court of Appeal said:
… in a case such as the present where the respondent’s moral culpability is low and the offending is agreed to be at the lower end of the range for the offence, consideration of the ‘nature and gravity of the offence’ tends to justify rather than negate the invoking of the exception.[24]
[24]Lombardo, [83].
Your counsel relied on Lombardo to submit that, while the Court could not take into account your prospects of rehabilitation for the purposes of deciding whether the exception was established, the Court could take into account the existence of protective factors, such as your stable employment and strong family ties, as relevant towards other sentencing considerations such as specific deterrence and protection of the community.[25]
[25]Lombardo, [81]-[82].
In my view none of these matters can be categorised as substantial, compelling, exceptional, and rare alone, and in my view, none carry any real weight in a combined circumstances approach.
I now return to Rusty’s medical condition, his level of needs and the role you play in ensuring those needs are met. This includes daily care, attending appointments, and supporting your wife, together with the risk of harm to Rusty if you are not available to assist in meeting his needs.
As outlined in the letter of Ms Morgan, the birth of your second child has placed an increased burden upon your family and an increased risk to Rusty as your wife is unable to provide the 24-hour close supervision he requires to access his environment safely without your assistance. Without this, Rusty will be in danger of injuring himself or his sister and it will be difficult for your wife to meet Rusty’s medical needs given he currently attends two to three medical and therapeutic appointments a week.
Your partner’s letter, to which I have already referred, is a compelling account of the challenges posed by Rusty’s condition and the essential nature of the support you provide.
Rusty’s need for the level of support described by your wife is confirmed by Ms Morgan, whose report I have already referred to.
These matters are the central feature of your counsel’s submissions on this issue. The prosecution submits that ‘an accused having family responsibilities, including contribution to the care of young children/children with developmental delays or disabilities is not exceptional and rare.’[26]
[26]Outline of prosecution submissions on sentencing indication, [18].
It was ultimately submitted by your counsel that the exception was enlivened to justify not imposing a custodial sentence on the basis that, when considered in combination the circumstances were, ‘sufficiently weighty and powerful to justify not imposing a custodial sentence’,[27] and ‘wholly outside the “run of the mill” factors typical of the relevant offending’.[28]
Conclusion as to s 5(2H) Sentencing Act 1991
[27]Lombardo, [66].
[28]Lombardo, [67]-[71].
I am satisfied that the circumstances as they relate to your son Rusty are substantial and compelling circumstances. The circumstances are far from run of the mill and are in my view comfortably within the category of exceptional and rare.
Not only are the burdens great but the risks are real for a child with extensive special needs. There are risks to Rusty and Dallas’ safety which Ms Lagalle cannot adequately mitigate without your support.
There is a window of opportunity for early intervention which will impact the remainder of Rusty’s life. It is not something that can be deferred or delayed, and your participation is, in my view, essential to giving Rusty the best chance at a quality life outcome. The prosecution points to you working long hours and the primary role played by Ms Lagalle but the reality is that you take the night shift, attending to Rusty’s needs which are ongoing and onerous throughout the night, so the family can function especially after the birth of your daughter. There is nobody else to fill this role and in any case continuity and routine are essential.
Yours is a family in crisis hanging on, hoping the future will provide relief and a quality life outcome for Rusty. The duties of parenting are difficult in the usual course, but Rusty’s condition and the needs that flow mean that your circumstances are both exceptional and rare.
Having concluded that s 5(2H) is enlivened I return to other matters relevant to the sentence I will impose this day.
Your counsel has pointed to a number of matters which you are entitled to have taken into account in mitigation.
Firstly, your plea of guilty. You have by your plea saved the witnesses the ordeal of giving evidence and saved the community the time and expense of a trial. You are entitled to the benefit of that plea, and I have acted on that basis. Your plea has greater utilitarian value due to the existence of triable issues in relation to the single charge. In addition, your plea is given weight for the reasons set out by the Court of Appeal in Worboyes v R.[29]
[29][2021] VSCA 189.
There has been delay in this matter not attributable to you including you being charged in March 2020 but the preparatory cross-examination pursuant to s 198B of the Criminal Procedure Act 2009 did not occur until March 2022. The effect is to have had this hanging over your head for a significant period of time.
You are still a relatively young man, and you have a limited prior history, your most relevant prior matter now being 13 years ago when you were aged 19.
The community must have a real interest in your rehabilitation. Your prospects of rehabilitation are, in my view, excellent.
You are aware that your conduct has affected not only the victim’s family but yours as well.
The reality of what you have done is likely to have significant deterrent effect.
Verdins principles
I have sentenced you on the basis that your mental health condition will increase the burden of imprisonment upon you and am satisfied that limbs five and six of R vVerdins & Ors[30] have application in this matter. You would experience imprisonment more harshly as a result of the knowledge of the circumstances of your wife and children. The prosecution conceded that the Verdins principles have application on this basis.
[30][2007] VSCA 102.
Hardship
To take hardship into account it must be established as more than the inevitable hardship upon any family having a partner, parent and/or provider sent to prison. The circumstances must be exceptional. The matters relied upon relevant to your family and referred to in relation to s 5(2H) above, are relevant and satisfy the requirement of establishing that the hardship is exceptional and thus a factor relevant to sentence.
The parties’ submissions as to sentence
The Crown submits that the exception provided in s 5(2H)(e) of the Sentencing Act 1991 is not enlivened and says that the Court must therefore impose a sentence of imprisonment.
As already discussed, the prosecution submits that even if the exception arises, application of relevant sentencing principles continues to require the imposition of a sentence involving imprisonment.
Your counsel submits that the exception is enlivened and that taking into account the unique and compelling mitigating factors in your case, it is open to the Court to impose a community corrections order (CCO).
The authorities make clear that ordinarily the only disposition open would be a term of imprisonment and that significant weight should be properly given to deterrence and denunciation, and less weight afforded to prior good character.[31]
[31]See Neethling v R [2009] VSCA 116; Stephens v R [2016] VSCA 121; Peers v R [2021] VSCA 264; Lombardo; DPP v Browne [2023] VSCA 13.
The prosecution has taken the Court to a number of Court of Appeal decisions relevant to dangerous driving causing death (DDCD) as a category 2 offence, including
(a) Gray [2021] VSCA 322: plea of guilty to DDCD, and
(b) Singh [2021] VSCA 161: plea of guilty to DDCD.
As is always the case, each of these examples have a unique matrix of factors as is the case in this matter. This matter is clearly distinguishable on the same basis that the exception is enlivened.
Sentence
Sentencing is of course a balancing exercise and I have approached my task on that basis. As well as matters personal to you, to which I have referred, I must also take into account other relevant sentencing considerations. Your sentence must manifest the community’s denunciation of your conduct and impose just punishment.
General deterrence is of particular importance in matters such as this. I must seek to deter not only you but others who would engage in like conduct. I have regarded this sentencing consideration as having significant weight in the sentence I will impose this day.
Specific deterrence can be given less weight in light of your history and demonstrated remorse, combined with the ongoing effect of this incident upon you.
I wish to make clear to the victim’s family before announcing sentence that the sentence does not and could not ever reflect the value of a life. My task is to sentence in accordance with the law.
Would you stand please.
Sentence
As you are aware you have been assessed as suitable for a community corrections order and you have consented to the making of that order.
You are sentenced as follows.
On the charge of dangerous driving causing death, you are convicted and placed on a community corrections order for a period of three years.
The conditions of that order are that:
(a) you are to perform 450 hours unpaid community work over the period of the order;
(b) you are to be under the supervision of a community corrections officer for the first 6 months of the order; and
(c) you are to participate in mental health assessment and treatment as directed.
Licence
Further, your licence is cancelled. You are disqualified from driving in the state of Victoria for a period of two years commencing this day.
Section 6AAA Sentencing Act 1991
I direct it be noted in the records of the Court that, were it not for your plea of guilty, I would have sentenced you to a community corrections order with 600 hours of unpaid community work, 18 months supervision and mental health assessment and treatment.
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