Director of Public Prosecutions v Stockil
[2025] VCC 260
•12 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01447
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VIVIAN STOCKIL |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2025 | |
DATE OF SENTENCE: | 12 March 2025 | |
CASE MAY BE CITED AS: | DPP v Stockil | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 260 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Guilty plea – Dangerous driving causing death – Use of mobile phone – Collision with cyclist after veering to right-hand lane – Early plea – Genuine remorse – Category 2 offence – Autism spectrum disorder –
s 5(2H) exceptions not satisfied – Custodial sentence required
Legislation Cited: Crimes Act 1958 (Vic); Road Safety Act 1986 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Stephens v The Queen [2016] VSCA 121; Hall v The King [2024] VSCA 255; DPP v Weidlich [2008] VSCA 203; King v The Queen [2012] HCA 24; Lee v The Queen [2021] VSCA 156; Paulson v The King [2024] VSCA 188; Peers v The Queen [2021] VSCA 264; Buckley v R [2022] VSCA 138; DPP v Bowen [2021] VSCA 355; Farmer v The Queen [2020] VSCA 140; DPP v O’Neill (2015) 47 VR 395; Muldrock v The Queen (2011) 244 CLR 120; Clifton v The Queen (2021) VSCA 111; Latina v The Queen [2015] VSCA 102; DPP v Harvey [2023] VSCA 234; DPP v Sturgess [2024] VCC 428; DPP v Johnstone (2006) 16 VR 75; DPP v Neethling (2009) 22 VR 466; DPP v Lombardo (2022) 302 A Crim R 329; DPP v Kenneison [2023] VSCA 321; DPP v Karazisis (2010) 31 VR 634; DPP v He [2024] VCC 1954; DPP v Duhan (2023] VCC 1901; DPP v Sandy [2023] VCC 566; R v Vosiliatis (Victorian Court of Appeal, 15 June 1998)
Sentence: Imprisonment for 2 years and 6 months – Non-parole period of 13 months – s 6AAA declaration – 4 years’ imprisonment with a non-parole period of 2 years and 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G Chisholm | Stephen Peterson Lawyers |
| For the Accused | Ms C Pezzimenti | Office of Public Prosecutions |
HIS HONOUR:
Introduction
1On the morning of 26 February 2024 a car collided with a bicycle on a quiet country road in Glengary, a small town near Traralgon. The collision caused the death of the rider of the bicycle, Leslie Camilleri. The driver of the car, Vivian Stockil, was subsequently charged with the serious criminal offence of dangerous driving causing death.
2The ripples of the collision and its aftermath have spread through this small close knit community. Two families and their friends have been deeply affected probably for life.
3The court’s task is to finalise the legal proceedings by imposing sentence on Vivian Stockil.
4It is first necessary to set out in some detail the factual circumstances of the collision and its aftermath and to consider the objective gravity of your offending. This will be followed by a discussion of the complex legal framework that governs the court’s sentencing task which will in turn lead to an examination of matters personal to Dr Stockil. Finally, I will explain the outcome. The reasons are lengthy because this is a complex sentencing exercise.
Summary of the offending
5Vivian Stockil, you have pleaded guilty to one charge of dangerous driving causing death, contrary to s 319(1) of the Crimes Act 1958 (Vic) (‘Crimes Act’). This offence carries a maximum penalty of 10 years’ imprisonment.
6You are a well-known vet in this region. On the morning of 26 February 2024, you left your home to drive to a new client’s property. You were driving your Ssangyong Musso DC utility vehicle.
7You drove the 760 metres of your driveway and turned onto Bassets Lane, travelling another 950 metres along Bassets Lane to the point where the collision occurred.
8Bassetts Lane is a two-lane road in a rural area with small farming properties on either side. The road has a well-maintained bitumen surface approximately 3.8 metres wide with no painted centre or edge lines. On both sides of the roadway the edge of bitumen gives way to gravel verges that run to a grass verge and then a property line. The property line on both sides is defined by a post and wire fence.
9There are literally thousands of such roads in rural Victoria.
10Bassetts Lane has a slight incline in the direction of your travel and a rural road default speed limit of 100km per hour.
11Mr Camilleri was riding his bicycle as he did most days, having travelled along River Road and turned right into Bassets Lane, travelling west. He was wearing bright blue and red riding attire and a yellow helmet.
12The day was warm, dry and fine, and sun was not an issue in your direction of travel given the time of day.
13At approximately 10:55 am you veered to the right-hand (south) side of the road and collided with the middle of the right hand side of Mr Camilleri’s bicycle. Based upon the locations of the damage to your vehicle and the bicycle, police accident reconstruction experts concluded that Mr Camilleri may have been veering left to avoid your vehicle at the time of the collision.
14There were no direct witnesses to the collision but Ken Marshall, who is known to you, was working in a paddock near the intersection of River Road and Basset Lane. He told police he saw a male cyclist pass, and then subsequently saw you travelling east on Bassetts Lane, performing a U-turn and then parking in his neighbour’s driveway.
15You called ‘000’ at 10:56 am, and attempted to assist Mr Camilleri until emergency services attended the scene. Mr Camilleri was then transported via helicopter to a Melbourne hospital. Sadly, the serious injuries he sustained in the collision deteriorated, and the helicopter was diverted to Latrobe Valley Hospital. It was there that Mr Camilleri tragically succumbed to his injuries and died.
16A pathologist, Dr Michael Burke, conducted an autopsy on Mr Camilleri and found the cause of death to be ‘multiple injuries in a bicycle accident’.
Post-offending conduct
17Witness Evelyn Freeman, who was also known to you, attended the scene and made observations of the vehicle and bicycle, and assisted with the treatment of Mr Camilleri. She had several conversations with you at the scene and told police you said the following:
(a) It was my fault, I didn’t see him I was on my phone;
(b) I thought I had killed him;
(c) I got a call from a client in Heyfield who needed help;
(d) I looked up Bassetts Lane and it was all clear; and
(e) I looked at my phone to see where I was going and struck the rider.
18The transcript of the 000 call shows that you:
(a) Admitted to being the driver involved in the accident with the bike; and
(b) Confirmed your name, address and phone number.
19Leading Senior Constable Thain attended the scene and had a conversation with you. You stated that you were the driver and, after being cautioned, explained how the collision occurred. You told police:
(a) …Yeah, look I didn’t see him;
(b) … I saw him late, like really late;
(c) … Well I’m heading out to a job and I am checking an address…on my phone;
(d) … coming past the dam there I looked – I looked like that and went “its all clear”;
(e) … Picked up my phone and went “Well where is it”;
(f) I did that and looked up again and there he was;
(g) … we’re pretty used to bike riders, they’re up and down here all the bloody time; and
(h) That the collision occured as you were distracted while looking at google maps as you were travelling out to see a new client in Heyfield. You were travelling at about 80km/h in the middle of the road. You looked up the road and thought it was all clear before checking your phone.
20Officer Thain seized your phone and observed when the 000 call was made; you stated that the collision occurred just before 10:55 am, and volunteered your phone number.
21Leading Senior Constable King from Wellington Highway Patrol also attended the scene and had two conversations with you. During the first of these conversations, both of which were recorded on BWC Footage and later transcribed, the following occurred:
(a) You confirmed you had been given a caution and that you understood it. You stated that you were going east, and the cyclist was going west. The cyclist was on the edge of the bitumen for the west bound lane of travel. You stated that you did not see him;
(b) You stated that you were looking down at your phone, at directions for an address in Heyfield; and
(c) You stated that you were in and out of your address 4 or 5 times a day and there are always cyclists.
22In the second conversation and again after caution you stated the following in relation to how the collision occurred:
(a) Your phone was in your left hand;
(b) You had a new client out at Heyfield, didn’t know the address;
(c) So you came out and you look up the road, yeah it’s all clear, no stress. Good to go;
(d) Grab that address and then let’s get out of here and get on with it;
(e) Glanced down;
(f) He was on the road, just he was on the left-hand edge; and
(g) Oh mate he was … on top of me.
23I will discuss the significance of what you told police, in relation to the sentencing exercise, later in these reasons.
Arrest, Interview and Investigation
24You were arrested at the scene and transported to Sale Hospital where a sample of your blood was obtained under section 55BA of the Road Safety Act 1986 (Vic). The sample was later analysed, and the results showed no alcohol or drugs in your blood.
25You were interviewed by Leading Senior Constable Thomas on the same day and replied ‘no comment’ to all questions put to you as was your right. Following this you were released pending further investigations.
26Investigators from MCIU attended the scene and conducted investigations. The scene was photographed, videoed, scanned through the use of a 3D scanning device and surveyed. A 2D scale plan of the collision was created.
27Your mobile telephone seized at the scene of the collision was forensically downloaded by Detective Senior Constable Barry Bassett and a report produced.
28On page 96 and 97 of the report the following entries are observed:
(a) At 10:55:00 and 10:55:01 am, the phone accessed maps;
(b) At 10:55:56 and 10:56:10 am, the phone used data to search;
(c) At 10:56:13 am, the phone made the first call to 000 (duration 1 minute 43 seconds); and
(d) At 10:58:17 am, the phone made the second call to 000 (duration 2 minutes 47 seconds).
29The phone was physically examined, and images were obtained of the screen of the phone.
30The following was observed:
(a) The last entry in the maps application was an address in Heyfield.
31Your vehicle was examined and photographed at the scene. It sustained damage to the front driver’s side and the damage continued along the driver’s side.
32No mounting for a mobile phone was observed in the vehicle.
33Your vehicle was mechanically inspected by Victoria Police Mechanic Sergeant Daniel Pearce who found no ‘faults, failures or conditions with the vehicle that could have caused or contributed to the collision’.
34There was no evidence at the scene to suggest that you were travelling at an excessive speed. Your car continued off the bitumen on the right-hand (south) side after striking Mr Camilleri, and further along Bassetts Road to the east. You then effected a U-turn and returned to the scene.
35The area of impact was located on the south-side of the road, approximately 63cm from the edge. This places it in the area of travel for the westbound cyclist.
36Mr Camilleri and the bicycle came to rest off the southern side of Bassetts Lane in the grass verge. There were items of debris at the scene, some of which were identified as coming from your vehicle.
37Detective Senior Constable Zhao, Victoria Police Reconstructionist, attended the scene making observations and taking measurements of the scene of the collision. Based on his analysis of the material and drawing on his expert knowledge, he opined:
Based on the scene examination, information provided, and analysis conducted, it is my opinion that on Monday the 26ᵗʰ of February 2024 at approximately 10:55am, the SsangYong was travelling east on Bassetts Lane, Glengarry when it impacted the westbound cyclist travelling along the southern edge of the bitumen road. The front driver side corner of the SsangYong impacted the middle right side of the bicycle.
Objective gravity of the offending
38In determining the appropriate sentence to impose on you, it is necessary to start by assessing the objective gravity of your offending.
39A driving offence that results in the death of another person is obviously very serious; so much is clear from the maximum penalty of imprisonment for 10 years.
40The gravity of dangerous driving causing death or serious injury offending is gauged by considering the offender’s moral culpability and the objective dangerousness of their driving.
41The Court of Appeal has explained the correct approach that a court must follow in assessing the objective gravity of a given instance of the offence of dangerous driving causing death:[1]
Driving will be dangerous where there is ‘some serious breach of the proper conduct of a vehicle so as to be in reality and not speculatively, potentially dangerous to others.’ The driving must have some feature which subjects the public ‘to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by a person who may on occasion drive with less than due care and attention.’ A Court’s assessment of the dangerousness of the driving will be informed by the extent of the risk which the driving created, as well as by the extent of potential harm should the risk materialise.
[1] Stephens v The Queen [2016] VSCA 121, [20].
42In your case, the extent and nature of Mr Camilleri’s injuries resulted in his death.
43An aggravating aspect of your driving is your use of a mobile phone whilst driving at considerable although not excessive speed. At such a speed, inattention, even for a brief period of time, represents a clear departure from the standard expected of drivers and places other road users, especially vulnerable users such as cyclists, at considerable risk of grave harm.
44As the Court of Appeal has observed in a case bearing some similarities to yours:[2]
While each case is to be determined on its own facts, it must be understood that dangerous driving involving distraction by the misuse of a mobile phone falls within the category of factors which may aggravate the seriousness of a particular offence of dangerous driving causing death. The use of a mobile phone other than in a ‘hands free’ mode is incompatible with the safe operation of a vehicle.
[2] Hall v The King [2024] VSCA 255, [36]. As the Court noted, it has been warning of the dangers of using mobile phones while driving since 2006 – see DPP v Johnstone (2006) 16 VR 75.
45Your counsel submitted that ‘to the extent that such categorisations are of assistance, ‘[your offending] is a mid-range example of the offence and moral culpability’.[3] I accept this submission.
[3] Defence Outline of Plea Submissions dated 2 March 2025, [16] (‘Defence Submissions’).
46I conclude that yours is a mid-range example of the serious offence of dangerous driving causing death. The following features of your offending lead me to this conclusion:
(a) You were an experienced driver and were very familiar with the road in question;
(b) You were driving in the middle of a straight stretch of unmarked bitumen road which was around 3.8 metres wide;
(c) You were well aware that cyclists commonly used the road;
(d) There was nothing to hinder your view and the driving conditions were good;
(e) Mr Camilleri was riding along the left edge of the road and was wearing highly visible clothing; and
(f) The only reason that you did not see the cyclist was because you were distracted by looking at your mobile phone which was in your left hand.
Moral culpability
47An assessment of the objective gravity of your offending is incomplete without regard to your moral culpability. In other words, to what extent are you to blame for Mr Camilleri’s death?
48This in turn involves a consideration of the extent to which you are ‘personally responsible for both the prohibited acts and their consequences’.[4] This assessment requires consideration of all the circumstances of your offending and the extent to which you should have foreseen the consequences of your driving.
[4] DPP v Weidlich [2008] VSCA 203, [17].
49An offender’s moral culpability will be higher if they knew the risks associated with their driving behaviour. Their moral culpability may be lower if the accident occurred because of momentary inattention or misjudgement, or where external circumstances such as the poor design of an intersection, contributed to the accident.
50It is necessary to say more about ‘momentary inattention’ in this context. In the case of King, the High Court recognised that ‘… in some circumstances where particular attention is required to the road and other road users, momentary inattention will result in a manner of driving that is dangerous …’.[5]
[5] King v The Queen [2012] HCA 24, [43].
51The circumstances of your case provide such an example. Given the narrowness of Bassets Lane, it is clear that the margin for error is very narrow indeed for a driver who is not giving their full attention to the road ahead of them even if only for a short period of time. This should be a salutary lesson for any driver on a country road.
52In the case of Lee v The Queen, the Court of Appeal explained that:[6]
The first obligation of a driver is to pay attention to the road ahead, and to be aware of the movements of others who are on or near the road. The inherent dangerousness of a motor vehicle travelling at speed makes it imperative that the driver remain in control of the vehicle at all times. The obligation to maintain control is an obligation which each driver owes to each other road user and to those in the vicinity of the road. Compliance with that obligation is essential to community safety.
[6] Lee v The Queen [2021] VSCA 156, [20].
53When a driver takes her or his eyes off the road while driving at 80kph, their car becomes an unguided and very dangerous missile.
54The degree of dangerousness of the offender’s driving is assessed by reference to the extent of risk that it creates. The extent of risk includes both the likelihood that something will go wrong, and the extent of harm which will result if it does.
55The extent of risk created by distracted drivers is universally known and has been the focus of numerous road safety campaigns in Victoria.
56If you needed to check an address, you could easily have pulled over and done so.
57The extent of the risk created, combined with the extent of the harm which would result from its eventuation, lead to my conclusion than that your moral culpability for the offending is considerable.
Victim impact
58I must take into account the impact of your offending on Mr Camilleri’s family and loved ones.
59Several victim impact statements were tendered in this matter, some of which were read by the prosecutor in court; some, even more movingly, were read aloud by their authors. The court received the following victim impact statements:
(a) Emily Boynes dated 08/01/2025;
(b) Matt Boynes dated 08/01/2025;
(c) Maree Boynes dated 08/01/2025;
(d) Rose Sinclair dated 27/10/2024;
(e) Angelo Maselli dated 11/10/2024; and
(f) James (Jim) Syme dated 15/10/2024.
60Ms Emily Boynes, who was the great niece of Mr Camilleri, described the large impact he had on her life. She described how she can’t bear the thought of getting married anywhere near the accident site and how much heartache she feels at the thought of getting married without her great uncle there.
61Mr Camilleri’s niece, Maree Boynes has seen her life change dramatically. She will miss going to the footy with her uncle and enjoying Sunday breakfasts or dinners. She misses sharing Maltese food with her uncle and misses his sense of humour.
62A close friend, Mr James Syme, states that Mr Camilleri’s death has had a profound effect on him and that he sincerely misses him every day. He feels lost at times and will continue to have an overwhelming feeling of loss.
63Another friend, Angelo Maselli finds that Mr Camilleri’s death has hit him harder than he imagined. It feels as painful as losing a brother. Mr Maselli will miss talking for hours about the Bombers football team celebrating the highs and lamenting the lows.
64Mr Camilleri’s sister, Rose Sinclair states that she lost her brother and her best friend. Mr Camilleri used to drive her to see their sister in Leongatha. She can no longer travel to do that. She thinks of her brother in the morning and last thing at night every day.
65Finally, the court heard from Mr Camilleri’s great nephew, Mathew Boynes. Since this tragedy, Mr Boynes faces strong bouts of anxiety when he sees ambulances. He struggles to go to Glengary and finds family events difficult.
66I take into account the impact of your offending on these victims.[7]
[7] Sentencing Act 1991 (Vic), s 5(2)(daa).
Personal circumstances
67You are a 44 year old veterinarian. Your parents are farmers from what was previously called Rhodesia and is now Zimbabwe. They migrated to Australia in 1984 when you were young first settling in Queensland.
68Your family are religious although you are not, having lost your faith at university.
69Your childhood was relatively normal and you completed school and attended Melbourne University where you studied veterinary science.
70You married Megan in 2007 and the two of you have two children – a daughter Finlay who is 16 and a son Ryan who is 14.
71You have worked as an equine vet in the Gippsland area for a number of years and are held in very high regard by your clients and others associated with the racing industry, as is made clear by the numerous glowing character references that have been provided to the court on your behalf.
72You have no prior convictions and have committed no offences since the date of the collision.
Statutory considerations
73While a judge has discretion when sentencing, the judge must also comply with the law. Parliament has limited a court’s discretion in this area of the law.
74Dangerous driving causing death is a category 2 offence. This means that a sentencing court must impose a custodial sentence other than one in combination with a Community Correction Order unless one of several statutory exceptions applies. Even where one or more of the exceptions are enlivened, this does not mean that the court is prevented from imposing a custodial sentence; it merely means that the court is not required to do so.
75The Court of Appeal has recently described the effect of this statutory scheme:[8]
In considering whether the statutory threshold has been met so as to justify but not require a non-custodial sentence, the Sentencing Actalters the ability to prioritise various aspects of the sentencing process. A sentencing judge must regard general deterrence and denunciation of the offender’s conduct as more important than other sentencing purposes in s 5(1) of the Act (which include just punishment, specific deterrence, rehabilitation and the protection of the community from the offender), and less weight must be given to the offender’s personal circumstances than to the nature and gravity of the offence. A person’s previous good character (other than an absence of convictions) and prospects of rehabilitation must be put aside.
[8] Paulson v The King [2024] VSCA 188, [82]-[83] (citations omitted).
76Parliament, as the ultimate voice of the broader community, has decreed that a person who causes the death of another road user by driving dangerously will nearly always go to jail. This court is required to sentence an individual case such as yours in a manner that is faithful to this clear legislative policy.
77Your counsel, in comprehensive and detailed submissions, sought to enliven two exceptions under section 5(2H) of the Sentencing Act 1991 (Vic) (‘Sentencing Act’). The first concerns the likely effect of your impaired mental functioning on the burden of a custodial sentence that may be imposed by the court (s 5(2H(c)(ii)). The second involves a consideration of whether there are substantial and compelling circumstances that are exceptional and rare and that justify not making a custodial order (s 5(2H)(e)).
78I will deal with each in turn.
Section 5(2H)(c)(ii)
79Section 5(2H)(c)(ii) provides that a court is not required to impose a sentence of imprisonment in respect of a category 2 offence if the offender ‘has impaired mental functioning’ that would result in them being subject to ‘substantially and materially greater than the ordinary burden or risk of imprisonment’.
80The section raises a similar question to that which arises in respect of limb 5 of Verdins. However, the hurdle set by s 5(2H)(c)(ii) ‘… is higher than that which attracts the principles in Verdins’.[9] In the case of Peers, a woman with ‘entrenched, longstanding and severe mental illness’ was able to attract the operation of the exception.[10] It was highly significant that she would not be able to access the mental health treatment that she needed in custody.
[9] Peers v The Queen [2021] VSCA 264, [52].
[10] Ibid, [58].
81It is necessary to turn to the evidence before the court.
82You have no history of any diagnosed pre-existing mental impairment.
83Shortly after the accident, you commenced counselling sessions with Mr Peter Winter of Gippsland Counselling.[11] Mr Winter first saw you on 7 March 2024 and has had 14 consultations with you. The purposes of these sessions is to assist you with the trauma and extreme stress the accident has caused. According to Mr Winter, you have expressed ‘genuine remorse and a deep understanding of the impact of [your] actions’.
[11] Counselling Letter dated 4 February 2025 by Peter Winter, Exhibit D3.
84For the purposes of this hearing, you were examined by Dr Davis, a forensic and clinical psychologist. Dr Davis provided the court with a very comprehensive report dated 11 February 2025.[12] Your counsel also called Dr Davis to give oral evidence and he was cross-examined by the prosecutor Ms Pezzimenti and answered some of the court’s questions.
[12] Forensic Psychologist Report by Dr Michael R Davis dated 11 February 2025, Exhibit D2, (‘Davis Report’).
85According to Dr Davis you do not meet the formal criteria for major mental illness.[13] Although you likely met the formal criteria for Acute Stress Disorder in the aftermath of the accident, your symptoms have ameliorated as a result of counselling.
[13] Ibid, [131].
86However, Dr Davis does diagnose you with Autism Spectrum Disorder (ASD), a neurodevelopment disorder characterised by deficits in social communication and interaction and restricted persistent patterns of behaviour.[14] Despite being 44 years of age, you have never previously been diagnosed with this disorder which is usually diagnosed in childhood. The condition is not treatable; nor can it be cured.
[14] Ibid, [134].
87Dr Davis explained that your ASD is a mild example that rises to Level 1 at its worst.
88ASD falls within the definition of ‘impaired mental functioning’ for the purposes of s 5(2H)(c) of the Sentencing Act.[15]
[15] See s 5(2HB) and 10A(1).
89Dr Davis observes that your offending ‘occurred in the context of [your ASD] during a period in which [you were] likely at least somewhat anxious to be travelling to an unfamiliar area’.[16]
[16] Davis Report (n 12) [135].
90Dr Davis opines that you will ‘likely cope extremely poorly’ if you are imprisoned. This is due to a combination of your ASD, sheltered life, seeming proneness to anxiety and low mood.[17] Dr Davis considers that while many individuals cope poorly in prison, you are ‘considerably less equipped for the vicissitudes of prison life than the average inmate’.[18]
[17] Ibid, [137].
[18] Ibid, [137].
91I accept this opinion and note that many people with your background find imprisonment for the first time very difficult. Your experience will no doubt be affected by your understandable concern for your family.
92However, I am not satisfied that you meet the high hurdle set by the section. The evidence does not demonstrate that your ASD will result in you being subject to ‘substantially and materially greater than the ordinary burden or risks of imprisonment’. Unlike the case of Peers to which reference has been made, you do not suffer from an entrenched longstanding and severe mental illness that requires treatment.
93Although the evidence does not satisfy the test in s 5(2H)(c)(ii) of the Sentencing Act, I accept that the evidence enlivens Verdins limb 5. I will address this later in these reasons.
Section 5(2H)(e)
94It was also submitted by your counsel that s 5(2H)(e) of the Sentencing Act is applicable in your case due to a combination of powerful mitigating factors, and that a community correction order would adequately reflect the relevant sentencing considerations, including general deterrence and just punishment.
95The matters relied upon are:
(a) Your actions at the scene of the accident;
(b) Genuine remorse;
(c) Early plea of guilty;
(d) Prior good character;
(e) Autism;
(f) Special needs of family members;
(g) Negligible reoffending risk;
(h) Profound personal shame; and
(i) The principle of parsimony.[19]
[19] Defence Submissions (n 3) [38].
96Before examining these matters in more detail I will first outline the relevant statutory provisions. As will become clear, a number of the matters upon which your counsel relies either are not able to be considered by the court in determining if the exception applies or must be given less weight than other concerns.[20]
[20] s 5(2I).
97Section 5(2H)(e) provides an exception to the provisions mandating a term of imprisonment for this offence where there are substantial and compelling reasons that are exceptional and rare and that justify not making an order which would see you imprisoned. The prosecution argues the exception is not enlivened and that accordingly the only available sentence is one of immediate imprisonment.
98In determining whether there are substantial and compelling circumstances, s 5(2H)(e) of the Sentencing Act requires that 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 s5(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;
(ii) an early guilty plea;
(iii) prospects of rehabilitation; or
(iv) parity with other sentences.
99Further, in determining whether there are substantial and compelling circumstances, s 5(2I) requires the court to have regard to:
(a) Parliament's intention that in sentencing an offender for a category 2 offence, 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.
100Consistent with the language of s 5(2H)(e), no party bears the onus of establishing that this exemption applies, and I have acted on that basis.
101It will be recalled that your counsel listed nine matters which are said, in combination, to satisfy the statutory test. Of those nine, I am prevented from considering:
(a) Para (c) concerning your early guilty plea; and
(b) Para (d) concerning your previous good character except the absence of prior convictions.
102In addition, to the extent that I am allowed to consider the personal matters relied upon, I must give less weight to them than to other matters such as the nature and gravity of the offence. As noted earlier, I consider that yours is a mid-level example of the offence for which your moral culpability is considerable.
103In the case of Farmer v The Queen, the Court of Appeal described the test in section 5(2H)(e) as a 'stringent' test that poses 'a very high hurdle that will not often be surmounted'. [21]
[21] [2020] VSCA 140, [51]. As submitted by the prosecutor, that court has made similar observations in the cases of Buckley v R [2022] VSCA 138 at [1] and DPP v Bowen [2021] VSCA 355 at [11].
104Many of the matters relied upon by Mr Chisolm are, unfortunately, all too common in cases of this nature. As the Court of Appeal observed in DPP v Kenneison:[22]
It is the sad reality that people of otherwise good character who drive in a dangerous manner and cause death often exhibit immediate, genuine and ongoing contrition and are cooperative with police. They frequently suffer from symptoms of anxiety and PTSD, which a term of imprisonment may exacerbate. Fathers, as well as mothers, often have dependents who will suffer hardship upon their incarceration.
[22] [2023] VSCA 321, [40] (citations omitted).
105On balance, I do not accept that you have surmounted this high hurdle - the exception in s 5(2H)(e) is inapplicable to your case. I therefore have no choice but to impose a custodial sentence. Further, it cannot be combined with a CCO.
106I make clear that in determining both the head sentence and the non-parole period you must serve I have had regard to all of the matters raised in mitigation by your counsel which I will now discuss, as part of my synthesis of all relevant sentencing factors.
Matters in mitigation
107The most important matter in mitigation is your early guilty plea.
108Your plea saves the need for a trial at which witnesses would be called upon to re-live the traumatic events of the day in question. This so-called utilitarian benefit is particularly important in a case such as this. Court time is also saved.
109Your guilty plea is also cogent evidence of your acceptance of responsibility for the death of Mr Camilleri. It is evidence of your genuine remorse for your conduct. Your genuine remorse is also evidenced by your letter to the court and the many character references.
110As noted, you come before the court as a 44 year old man with no prior convictions or findings of guilt. You have lived an exemplary life as is made abundantly clear by the many character references provided to the court on your behalf.[23]
[23] Twenty-four references from friends, family members, clients and others were provided to the court.
111Based on those references, I conclude that you have been:
(a) a loving and supportive husband and father;
(b) a dedicated veterinarian heavily relied upon by horse owners in Gippsland; and
(c) a committed contributor to your community in a wide range of ways.
112Your mental ill-health, discussed earlier, is also a relevant matter of mitigation in the following ways:
(a) It is relevant to the question of whether it is unfair to any extent, under the case of Verdins, to promote general deterrence in the sentence the court imposes; and
(b) It is relevant, under the same case, to the impact that a custodial sentence will have on you compared to a person with normal health.
113I have concluded that both limbs 3 and 5 of Verdins apply to your case.
114Starting with limb 3 - in the case of O’Neill, the Court of Appeal explained that in certain circumstances, the ‘full application of the principles of general deterrence’ may be ‘repugnant to the underlying sense of humanity which guides proper sentencing’.[24] The most obvious circumstance concerns an offender with an intellectual disability.[25]
[24] DPP v O’Neill (2015) 47 VR 395, [59].
[25] Muldrock v The Queen (2011) 244 CLR 120; Clifton v The Queen (2021) VSCA 111.
115While your case is not to be equated with such a situation, I accept your counsel’s submission that the existence of your autism spectrum disorder means that there is a degree of injustice in using you as a ‘vehicle’ for general deterrence. Accordingly, I have moderated the role of general deterrence slightly.
116I have also moderated both the head sentence and the non-parole period under limb 5 of Verdins. I accept the evidence of Dr Davis that your ASD together with other features of your life mean that ‘you are considerably less equipped for the vicissitudes of prison life than the average inmate’.[26]
[26] Davis Report (n 12) [137]. Dr Davis expanded on this opinion in his oral evidence.
117I have referred above to the high degree of co-operation with police that you exhibited at the road side. This is to your credit.
118Your counsel submitted that you are entitled to a ‘Doran’ discount on account of your assistance to police. I consider that your case is distinguishable from ‘classic’ Doran cases where police are only able to charge an accused with one or more offences because of the assistance of the accused.
119However, I do accept your counsel’s submission that, as a result of your admission that you were using your phone at the time of the collision, prosecutors were better able to formulate their case of dangerous driving causing death than would otherwise have been the case. Without your admission, as Ms Pezzimenti conceded in argument, there would only have been a circumstantial case that you were doing something to distract your attention shortly before the collision.
120However, by virtue of your admission, the case against you is brought on the basis of the aggravating circumstance that your attention was diverted by your voluntary use of your phone. Under the case of Latina, you are entitled to ‘considerable leniency’ because of your admissions that were ‘indispensable to proof of the magnitude of [your] offending’. [27] This discount must be greater than that which applies by virtue of your guilty plea. The reason for this is to encourage others to assist the authorities in similar circumstances and because it assists victims in better understanding the circumstances of the crime.[28]
[27] Latina v The Queen [2015] VSCA 102, [17].
[28] Latina, [12] (and the cases there cited).
121A period of incarceration will be very difficult for your family. Your wife will be without her husband; your children will temporarily lose their father.
122Your daughter Finlay has also been diagnosed with autism. Your son presents with Developmental Language Disorder. A report from their treating speech therapist, Tracy Oliver, states that their progress ‘is undeniably due to the consistency of home-based support that they have received throughout their lives’.[29] This is in no small part due to you. In your absence, your wife will have to bear this burden alone. This will likely cause you anxiety. I accept that this will add to the burden of any custodial sentence. I have taken into account this impact on you of your incarceration.
[29] Treating Report by Tracey Olivier dated 4 August 2024, Exhibit D5, 2.
123By reason of a combination of your exemplary character, your work history, stable home life, genuine remorse and plea of guilty, I conclude that your prospects of rehabilitation are excellent. I have reflected this finding in setting a shorter than usual non-parole period.
Current Sentencing Practices
124A further matter to which a sentencing court is required to have regard is current sentencing practices. This is to promote consistency in sentencing.
125According to a report provided to the court by Mr Chisolm, there were 155 charges for dangerous driving causing death sentenced in the five years from 1 July 2018 to 30 June 2023.[30] The most common sentence was imprisonment (49% of cases). The median sentence of imprisonment was 2 years.
[30] Sentencing Advisory Council, Dangerous driving causing death: Higher Courts sentencing outcomes 1 July 2018 to 30 June 2023.
126Such statistics are of limited assistance to a sentencing court as they say little about the circumstances of individual cases.
127More assistance is gleaned from individual cases especially those that have been considered on appeal.
128One recent case to which counsel made reference was Hall v The King.[31] Ms Hall had pleaded guilty to a single charge of dangerous driving causing death in 2023. She had collided with the rear of another car while she was distracted by sending a message and accessing Instagram on her mobile phone for a period of 10 seconds. She was not speeding nor was she affected by alcohol or other drugs.
[31] Hall v The King [2024] VSCA 255.
129The offending was assessed as mid-level. There was extensive victim impact material before the court.
130The mitigation matters were similar to those presently before this court.[32] Ms Hall was 30 years of age, had a masters degree in agricultural science and worked in a professional capacity. A number of impressive character references testified to her compassionate, caring and capable character; she was well loved. At the time of sentencing Ms Hall had demonstrated great remorse for her actions and suffered from depression. Her husband was under great stress. Ms Hall had excellent prospects for rehabilitation.
[32] Ibid, [17], [30].
131The court concluded that the same two exceptions under the Sentencing Act upon which your counsel relied were inapplicable.
132This court sentenced Ms Hall to imprisonment for 3 years and 4 months. A non-parole period of 2 years was set.
133Ms Hall appealed to the Court of Appeal. That Court rejected her argument that the sentence was manifestly excessive. In so doing, the Court of Appeal emphasised the importance of general deterrence and denunciation as sentencing purposes in such cases. The sentence imposed was found to be ‘wholly within the range open to the judge in the sound discharge of his sentencing discretion’.[33]
[33] Ibid, [38].
134The objective gravity of Ms Hall’s offending was greater than yours. She was distracted for 10 seconds whereas, as noted, yours is a case of momentary inattention.
135In Harvey v The King,[34] a sentence of 2 years and 6 months for dangerous driving causing death was considered to be manifestly inadequate on appeal. The sentence was increased to 3 years and 6 months. Mr Harvey’s truck collided with a cyclist killing him. Mr Harvey was fatigued and under the influence of methylamphetamine. His guilty plea was not an early one and his mitigation material was not as impressive as that presently before the court. There was a significant delay in the finalisation of the case.
[34] DPP v Harvey [2023] VSCA 234.
136Your case is also a less egregious example of dangerous driving causing death than Mr Harvey’s was.
137The court was also referred to a number of other Court of Appeal and County Court decisions each of which I have read and considered.[35]
[35] DPP v Sturgess [2024] VCC 428; DPP v Johnstone (2006) 16 VR 75; DPP v Neethling (2009) 22 VR 466; DPP v Lombardo (2022) 302 A Crim R 329; DPP v Kenneison [2023] VSCA 321; Farmer v The Queen [2020] VSCA 140; Buckley v R [2022] VSCA 138; DPP v Karazisis (2010) 31 VR 634; DPP v He [2024] VCC 1954; DPP v Duhan (2023] VCC 1901; DPP v Sandy [2023] VCC 566; R v Vosiliatis (Victorian Court of Appeal, 15 June 1998).
Consideration and Orders
138At the risk of repetition, the principal sentencing considerations in your case are general deterrence and denunciation. The court must send a message to other road users. The message is simple and easily understood: if you drive dangerously and cause a death you will very likely be incarcerated. Deaths such as Mr Camilleri’s are entirely preventable.
139There is little call for specific deterrence in your case. Nor does the community need to be protected from you as you are unlikely to offend in future.
140Taking into account all of the relevant sentencing considerations discussed earlier, I make the following orders:
(a) On the charge of dangerous driving causing death, you are convicted and sentenced to imprisonment for 2 years and 6 months.
(b) You must serve a period of 13 months in custody before you will be eligible for parole.
(c) Your driver’s licence is cancelled and you are disqualified from obtaining a new licence for a period of 18 months.
141Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I indicate that if you had pleaded not guilty and been found guilty by a jury, I would have jailed you for 4 years; your non parole period would have been 2 years and nine months.
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