Director of Public Prosecutions v Taylor
[2024] VCC 172
•23 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-23-00296
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LILLI TAYLOR |
---
JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Sentence indication heard 8 November 2023, | |
DATE OF SENTENCE: | 23 February 2024 | |
CASE MAY BE CITED AS: | DPP v TAYLOR | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 172 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Dangerous driving causing death, reckless conduct endangering serious injury x 2. Accused a young offender driving with 3 unrestrained passengers who had been drinking. One passenger fell and died. Profound victim impact for deceased's family. Admissions to driving and conduct.
Driving prolonged and inherently risky. Absence of a large number of usually aggravating features and gravity towards lower of scale, with culpability more towards mid-range.
Plea of guilty after case conference and sentence indication hearing.
Young offender, good character, profound remorse and exhibiting now PTSD and other issues. Exception made out under Sentencing Act s.5(2H)(c)(ii) regarding burden of imprisonment, but term of imprisonment with head sentence and non-parole period still appropriate.
Sentence moderate due to delay meaning YJC open, offender sentenced 2 years after offence, youth, character, remorse, Verdins considerations. Prospects for reform excellent.
Sentence imposed lower than that which articulated at sentence indication hearing.
Legislation Cited: Crimes Act 1958, Sentencing Act 1991, Criminal Procedure Act 2009
Cases Cited:Weineger v The Queen [2003] HCA 14, R vBos [2023] VSC 68, DPP v Hibberd [2020] VCC 1597, Spanjol v The Queen [2016] 55 VR 350, Guseli v The Queen [2019] VSCA 29, Papagelou v The Queen (2022) VSCA 53; 99 MVR 232, Peers v The Queen [2021] VSCA 264, DPP v Lombardo [2022] VSCA 204, DPP v Browne [2023] VSCA 13, Worboyes v The Queen [2021] VSCA 169, Azzopardi v The Queen [2011] VSCA 372, R v Verdins (2007) 16 VR 269, R v Novakovic(2007) 17 VR 21, Koukoulis v The Queen [2020] VSCA 19.
Sentence: TES of 18 months, NPP of 6 months
s.6AAA declaration: TES 2 years 4 months, NPP 14 months
PSD – 7 days
Licences cancelled and disqualified for 18 months
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Cookson | Office of Public Prosecutions |
| For the Accused | Ms J. Poole | Damian McNally & Associates |
HIS HONOUR:
Introduction
1On the night of 15 December 2021, tragedy visited a number of people.
2Twenty-one-year-old Bailey Quaife lost his life in the most senseless and preventable of ways. His family and friends live now on with the anguish of his passing. He was killed by your dangerous driving Lilli Taylor on that night.
3
You, and all of those who were present at the tragedy,
together with the family of Mr Quaife, have lived in the aftermath of this senseless loss of life from the moment it happened. That is not to ignore the risk that other people travelling with you were placed in.
4You, like so many who find themselves in your situation, are otherwise a fundamentally decent young person of impeccable character, who acted aberrantly, without malice and who is profoundly sorry for making such a tragic mistake.
5Now is the time when I must sentence you for your conduct. This is an exercise where I am required to balance and weigh sentencing considerations, including deterrence, punishment, denunciation, protection of the community and also to consider your prospects for reform in order to bring about a just outcome.
6I am acutely aware that this sentence cannot return things to the way that they were before Mr Quaife's death. These reasons are designed to make it plain to those many people who have an interest in this case, and have been so deeply affected by the events of December 2021, how I have arrived at the sentence that I impose.
7Cases such as this are not only tragic and require real sensitivity in their handling but are also legally complex. I want it known now that am indebted to the quality of assistance I received from both Counsel – Mr Cookson on behalf of the Director and Ms Poole on your behalf throughout this process.
Brief context
8You were born in August 2001 and at the time of the offending you were aged just 20 years old. You held a valid Probationary P2 Victorian Driver's license.
9Aside from your brother Daly Taylor, you were friends with Bailey Quaife (Quaife). He lived with his family in Drouin and was completing an electrical apprenticeship. Travis Axtell (Axtell), a 19-year-old man; and Corey Garlick (Garlick), an 18-year-old man, were also your close friends at the time.
10On 15 December 2021 in Darnum, you were driving a Ford Ranger Utility with Quaife and Axtell unsecured in the rear tray with Garlick unsecured riding on the bull bar. Mr Quaife fell from the tray onto the road and later died from the injuries he suffered.
11The charges that have arisen out of that incident, and have been pleaded guilty to are:
· Charge 1: Dangerous Driving Causing Death[1] of Bailey Quaife
(maximum penalty 10 years)
· Charge 2: Conduct Endangering Serious Injury[2] to Travis Axtell
(maximum penalty 5 years)
· Charge 3: Conduct Endangering Serious Injury[3] to Corey Garlick
(maximum penalty 5 years)
[1]s 319(1) of the Crimes Act1958 (Vic).
[2]s 23 of the Crimes Act1958 (Vic).
[3] Ibid.
The Offending [4]
[4]Taken from Exhibit A- Summary of Prosecution Opening for Trial dated 19 May 2023.
Background
12At the time of the offending, your brother Daly Taylor was good friends with and Quaife, Axtell and Garlick. Through your brother you were friends with them too.
13On the evening of 15 December 2021, you and the young men I have just mentioned, all met in Warragul at the Commercial Hotel. Your brother did not have any alcohol, but the other boys shared a number of rounds of beer in pots and jugs of beer, as well as Bundy and Coke cans.
14Your group then moved to the La Passion restaurant in Warragul, where you stayed until closing, which was about 10 pm. At that location, the boys, with the exception of your brother, continued drinking. Daly Taylor noticed that Quaife, Axtell and Garlick were all intoxicated and 'drunk enough to do silly things but not drunk enough that they were falling over'.
15Garlick estimated he had around 12 drinks over the course of the night and that he, Axtell and Quaife had drunk about the same amount.
16You and your brother lived with your mother and stepfather in Darnum. After La Passion closed, you drove Axtell in his vehicle to your house. Your brother drove Quaife in your car to the same place. Garlick was driven by Maddie Burns (your stepsister) to the same location.
17The vehicle driven on the night of the offending was a 2015 Ford Ranger Utility. That car was registered to Axtell's employer, Brendan Cremin Plumbing. Axtell required the Ford Utility for work the following day but agreed to allow you to drive the Ford Utility this evening.
18The Ford Utility had two large toolboxes affixed to the top of the tray. They were toolboxes large enough that they were approximately the same height as the roll bar fitted to the tray, which was slightly higher than the cabin. These toolboxes opened outwardly to each side of the vehicle.
19From your house, the decision was made for you to drive the Ford Ranger with your brother, Garlick, Axtell and Quaife as passengers. Your brother Daly reversed the Ford Ranger and left it facing the gate to the property and at that point it was driven by you.
20The evidence reveals that it was plain there was enough room in the cab of Axtell's vehicle for everyone to travel safely. If only that obvious, and sensible option, was taken but it was not. I still do not fully understand why. I can infer from the closeness of the group, and the involvement of alcohol, and the folly of youth, all played a part in the decision for the vehicle to be driven in this fashion.
21Instead, Garlick, Axtell and Quaife climbed onto the bull bar of the front of the Ford Utility. Daly Taylor indicated that you could not see, and Axtell and Quaife got off and moved into the tray while Garlick remained on the bull bar on the left-hand passenger side.
The Incident
22You drove the Ford Ranger from your home. Alarmingly, at the point at which you left your address, Garlick was still seated on the top front of the bull bar. Your brother was travelling inside the cabin in the front passenger seat. Both Axtell and Quaife were travelling in the rear of the Ford Utility in between the toolboxes I mentioned a moment ago.
23This point in time represents the commencement of the conduct that endangered both Axtell and Garlick at risk of serious injury – conduct referrable to Charges 2 and 3 respectively. The reckless conduct in question continued until you stopped driving the car with passengers unrestrained on it. This behaviour, I might add, also answers to the description 'dangerous'.
24You drove the vehicle about 1.5 kilometres before the incident occurred. The incident occurred on Silbys Road, Durnam. Silbys Road is a single lane, two-way gravel road which has a loose gravel surface. It is a rural road with no lighting. The incident occurred about 300 meters east of the intersection of Silbys Road and Rhodes Road, at which point the road was gradually sloping down in your direction of travel, that is to say eastbound.
25During the drive towards Silbys Road, Mr Quaife sat on one of the toolboxes. He then stood up at the back of the Ute, with one foot on each toolbox, holding onto the roll bar with his hands. He was apparently straddling the toolboxes, and standing over the top of Axtell, who was also holding the roll bar.
26Both Quaife and Axtell were laughing, and Daly Taylor was saying things like 'look at you guys, you dickheads' while looking backwards from the cabin.
27Shortly after the Ford Ranger Utility turned left from Rhodes Road, your brother took off his seatbelt and turned around in his seat. He then raised himself up and out of the window to look over the roof of the car towards the tray area to check on Quaife and Axtell.
28Daly Taylor saw Quaife standing on top of the driver's side toolbox, with his hands out to the side as if he was trying to balance himself. As he was looking at Quaife, he saw the latter turn towards his right and fall off the toolbox. He appeared to lose his balance and was not touched by Axtell or anyone else as he fell.
29After seeing this fall, Daly Taylor immediately told you to stop the car, which you did. Axtell did not realise what had happened but saw that his companion was not in the tray with him.
30Bailey Quaife was later pronounced dead as a result of the injuries he sustained in that fall. Those are the facts that underpin Charge 1 – Dangerous Driving Causing Death.
Post offence
31You stopped the vehicle (which represents the conclusion of your reckless and dangerous driving) and your brother ran over to where Quaife was lying on the ground, nearly 50 meters away. Quaife was not moving, and he was bleeding from his nose, mouth and ears.
32Your brother told you to go home so you did not have to see it and you complied. Axtell told you to go to Garlick's to wait there and that they would sort it out.
33Daly Taylor used his phone to call Triple 0, which happened around a minute after the fall from the vehicle. Garlick and Axtell also assisted. Garlick held the phone while the operator provided first aid advice to Daly Taylor who did compressions.
34Paramedics arrived after 15 -20 minutes and attempted to assist. Daly Taylor, Axtell, and Garlick all remained at the scene until the police arrived.
35The three then provided a story to police that was false (a decision they made amongst themselves and without any input or knowledge on behalf of you, I might add), namely that they were going back from the pub and that Quaife had fallen and hit his head while running.
36Daly Taylor, Axtel, and Garlick then went to the latter's residence and told his parents that they had actually been in a vehicle driven by you.
37At about 12:50 am on 16 December 2021, Sergeant Graeme Carter and First Constable Ryan Bateman attended Garlick's residence to thank the boys on behalf of Ambulance Victoria for their efforts. The police then left the premises.
38As they were leaving, Garlick's father followed police outside. He indicated that he had heard Quiafe might have fallen out of a Ute.
39The Police immediately returned to the premises and asked the boys if there was 'anything anyone wants to tell us'. Daly Taylor, Axtell, and Garlick then indicated that their previous version was false, and that you were driving the vehicle when the deceased fell out of the back of the tray.
40At around 1:15 am, you had a conversation with Megan Griggs (your brother's girlfriend), at her house in Darnum. You stated that Axtell tapped on the roof for her to stop, and your brother had popped his head out the window, and Axtell was saying 'stop stop stop'.
41You also stated to Griggs that they all ran about 100 meters down the road to check on Quaife, but you did not go all the way, and that you were told to drive to Corey's house on Silbys Road in Darnum, which you did and waited there for half an hour.
42You also told your mother, Andree Addison that you had heard a banging on the toolboxes and Daly put his head out the window and asked you to stop. You told your mother that one of the boys had said something along the lines of go home and that the police will be around.
43When the police did not come around, your mother told you that she would take you to the police station. On the drive, you repeated to your mother that you had heard banging on the toolboxes and Daly had stuck his head out of the window to see what was up.
44You indicated you had one drink with dinner and had not been driving above 60 kilometres per hour. You indicated you were driving on Rhodes Road which is a dirt road with no speed signs and you had just gone around the corner from Rhodes Road onto Silbys Road, so you had to slow right down as it was a sharp bend.
45You stated you did not take off fast after the corner, but thought that is where Mr Quaife had fallen off.
46At approximately 2:45 am on the same day, you presented yourself to the Warragul Police Station.
47At 4:20 am, you were transported to the West Gippsland Hospital, where you provided a voluntary sample of blood before returning to the Warragul Police Station for interview.
48It ought to be noted that you had no idea of the short-lived plan deployed, without your knowledge, by others to shield you from the possibility of Police intervention your presence at the Police station and your co-operation thereafter with them needs to be seen in that light.
Investigation and Record of Interview
49When you were interviewed with the police you had said:
(a) You had met up with Travis, Bailey and Corey for dinner at 7:00 pm on the night of the incident (Q29)
(b) You were driving Travis' Ranger, with Travis and Bailey on the tray and Corey on the bull bar (Q29)
(c) You were never going more than 60 Ks an hour because you were 'conscious of where all the boys were' (Q29)
(d) It was quite an effort to turn the vehicle, as it did not have good power steering (Q29)
(e) That you slowed right down on the corner of Rhodes Road and Silbys Road until the beginning of the slope on Silbys Road (Q29)
(f) You then heard a bang on the roof of the car and Daly got out of the passenger window and told you that Quaife had gotten off (Q29)
(g) You did not believe you were going more than 40 kilometres an hour on that stretch of road, but wasn't sure (Q29)
(h) That you were around 100 to 200 meters away from Bailey when you stopped the car, and the boys ran over to check him (Q29)
(i) You also ran down to see what had happened and saw Bailey lying on the ground with blood next to his head on the road. Travis told you to go back to the car, you assume because he was worried about what you might see and he told you to take it (meaning the car) to Corey's (Q29)
(j) That you were at the scene for 'no more than five minutes' (Q29)
(k) That you heard that Bailey had passed away about 2:30 am and was in tears (Q29)
(l) From that point, you had your parents drive you to the police station (Q29)
(m) You had one schooner of Midori at the Commercial Hotel with your dinner and a lemonade (Q43)
(n) After the Commercial Hotel, you went to La Passion, where you did not have anything to drink (Q55)
(o) That with the exception of Daly, the other boys had at least 3 or 4 drinks each from what you saw at the Commercial and one or two drinks at La Passion also (Q57-59)
(p) Travis' car had no power steering and had toolboxes on the back with a swag between them (Q78)
(q) When you reversed the vehicle out of the car park, Travis helped you to turn it, so you did not hit the gutter owing to the power steering issue (Q88)
(r) That as you left, Corey was sitting on the bull bar, Daly was in the passenger seat and Bailey and Travis got onto the tray after initially sitting on the bull bar (Q98)
(s) You thought that Travis and Bailey were standing on top of the swag between the toolboxes, but it was dark and you could not see exactly where they were standing (Q107)
(t) They decided to get on the tray themselves (Q121)
(u) You felt the tray moved and looked in the rear-view mirror and saw them get up on the tray (Q124)
(v) That from when you left the driveway to when Bailey fell off you were unsure of which part of the tray Travis and Bailey were standing on (Q138)
(w) You did not see Bailey fall off (Q138)
(x) That you could hear Daly yelling out the window to Travis, Bailey and Corey and that you were laughing at their antics during the drive (Q144)
(y) The first you knew that Bailey had fallen off was Travis banging on the roof (Q145)
(z) You were on the straight of the road when Bailey had fallen off, but the vehicle was around 100 meters from the corner when this had occurred (Q174)
(aa) After Travis said 'take the car to Corey's' you 'just blindly listening to them, … you knew that if it was said to you, it was for some reason so you just went' (Q185)
(bb) That you knew Daly had called the ambulance so you were looking out for them (Q187)
(cc) Daly texted you and told you to go back to your mums (Q188)
(dd) The boys had never jumped in the tray before while you were driving on roads, but that you had driven them in the tray on private property before (Q217-219)
(ee) You did not think to ask them all to get in the cab before you started driving, although there was plenty of room in the cab for everyone (Q221-223)
(ff) There was no reason that they could not have hopped inside (Q226)
(gg) You were keeping an eye on Corey on the bulbar to make sure he stayed on (Q227-228)
(hh) You assumed Daly was looking at the people in the back and you did not think to turn around and look at what they were doing (Q230)
(ii) That the car was in the middle of the road as you were driving (Q241)
(jj) That you went around the corner slowly because you could not turn the car quickly enough, but Bailey had fallen off well after that (Q254)
(kk) 'You thought the only person that would have seen him fall off was Travis, because Daly was in the car when it happened, and Corey would not have been able to see over the bulbar either as he was facing the other direction' (Q254)
(ll) That the alcohol you consumed would have been well out of your system by the time you drove (Q264); and
(mm)You just regretted your actions and wished you had behaved differently, and had them in the car, and that you feel responsible for what has happened' (Q286).
50Your phone was seized with your consent, complete with the provision of a passcode. It is not alleged you were using or otherwise distracted by that phone at the time of the offending.
51Members of the Major Collision Investigation Unit arrived at the scene about 4:30 am on 16 December 2021.[5]
[5]A Go-Pro ‘walk through’ video footage was obtained, as were photographs of the scene.
52At 11:15 am on the same day, Investigators executed a warrant at your address, where they seized the Ford Ranger. Further photographs were taken of that vehicle.
53That vehicle was mechanically examined by Victoria Police Mechanical Investigation Unit. It was noted that issues existed with the power steering of that car and noted that these issues made the vehicle extremely difficult to manoeuvre.
54Examiners concluded that this issue was unlikely though to have contributed to the incident in this matter, as the incident occurred on a straight length of road where there was no evidence of steering input being required at the time of or immediately prior to the incident. No other faults were detected that could have contributed or caused the incident.
55When Mr Quaife was medically examined, the cause of his death was confirmed, in the sense that it was determined to be a traumatic head injury sustained in a motor vehicle incident. I will turn now to the aftermath of this offending.
Victim impact
56It is important to acknowledge the anguish of Bailey Quaife's family and friends (of which I know you count yourself as one) in these proceedings.
57I specifically refer to the articulate and moving Victim Impact Statement (VIS) written by Bailey's mother, Jennifer Quaife on behalf of the whole family[6] and read in open Court on the plea, complete with an explanation of the significance of the accompanying photographs to that VIS.
[6]Exhibit D – Victim Impact Statement of Jennifer Quaife dated 16 August 2023.
58The impact this event has had on those who knew and loved Mr Quaife has been immense. His mother describes carrying around the heaviness of ongoing anxiety, grief and heartbreak, which is now part of her everyday life. Life has changed forever for them, with family gatherings now imbued with pain, anxiety and sadness. Ms Quaife has even questioned her own profession in the medical field. This is a burden on someone, so obviously caring and considerate of others, should not have to bear.
59One of the remarkable things about this particular VIS was just how powerfully it communicated to me what a fun, lively, young man Bailey was. He was brimming with life, mischief and potential. He was the friend, son, brother, uncle that everyone wished they had, and the vast hole he has left by his passing has affected the lives of many.
60The Victim Impact Statement was not just powerful and articulate, it was dignified and did not include attacks or recriminations towards you, Ms Taylor. The family members of Bailey that attended the plea conducted themselves similarly with grace, dignity and decency. They are remarkable people. It is little wonder they had such a wonderful son and brother for whom they grieve so much.
61
I pause to repeat what I have already said, that it is sad as it obviously is, nothing can ever return things to the way that they were before. I must impose a sentence that will be expressed in terms of time; months and years and the like. The following comes from undertaking an analysis of many legal factors, or as our High Court puts it, I ‘have to translate the complexity of the human condition and human behaviour into mathematics of units of punishment expressed in periods of time'.[7] The length of any punishment I impose is not the value of
Mr Quaife's life. His life simply cannot be valued in that way. To do that does him no justice. His life was priceless and his loss immeasurable.
[7] Weineger v R [2003] HCA 14; 212 CLR 629 at [24] per Gleeson CJ McHugh, Gummow, Hayne JJ.
62
No VIS’s were received on behalf of Axtell and Garlick. I can safely infer given the closeness of the friendship group that they too grieve for
Mr Quaife, and they have the added burden to bear of being present at the incident that caused his death. It is harder to discern if they suffered at the time or later as a result of the risk that they were placed in when they travelled unsecure in the way they did.
Case history
63This offending occurred on 15 December 2021 when you were just 20.
64You were not charged for 9 months, until 15 September 2022, by which time you had had turned 21, meaning that as a sentencing option, a term of detention in a Youth Justice Centre (YJC) was not available.
65Moreover, you were placed on bail conditions that restricted your ability to have contact with those present at the offence (as well as others) who you would have ordinarily turned to for advice and emotional support.
66You conducted a contested committal in order to better explore the circumstances of the allegations against you. I note that the plea resolution differs in meaningful ways to the number and nature of charges you first faced.
67The matter proceeded throughout the case management process in this Court, commencing with a Case Conference in June 2023, and after very productive discussion about the case, the matter was listed before me as a Sentence Indication Hearing (SIH) in November 2023,[8] where I indicated that should you plead to the present charges on the indictment, I would sentence you to not more than 20 months' imprisonment and further stated I would impose a non-parole period of 8 months.[9]
[8]Part 5.6 Criminal Procedure Act2009 (Vic).
[9]Sentence Indication Transcript (8 November 2023) p57, I indicated the duration of a non-parole period after discussion with counsel about the benefits of doing so.
68That indication was accepted, with the caveat that if more material became available between the SIH and the formal plea and sentence, it would be raised with and considered by me.
69The plea was formally listed before me on 16 February 2024 and indeed further information was presented that caused me to revisit the issue of what the appropriate sentence ought to be. The sentence I impose will be lower than that stated in the SIH.[10]
[10]As occurred in R v Bos [2023] VSC 68.
70
More than two years have now passed since the offence. You have not
re-offended.
71I deal elsewhere in my reasons as to how I deal with this effluxion of time.
Circumstances and features of the Offending (both varieties of offences)
Features
72The two types of charges you have pleaded guilty to on the indictment occur in the same episode, but of course are different in nature, gravity and outcome.
Essential offence description - dangerous driving causing death
73One needs to commence with an examination of what is constituted by dangerousness when examining the circumstances of the principal charge.
74By your plea, you admit that your driving involved a serious breach of the proper management or control of a vehicle which created a real risk that members of the public in the vicinity would be killed or seriously injured.
75Relevantly, the manner of driving includes all matters concerned with the management and control of the vehicle, such as your technical driving skill (and it also includes the vehicle itself).
76Dangerousness means more than a minor mistake. You drove in a manner that significantly increased the risk of serious injury or death to others, over and above the ordinary risks of the road. This may be because your driving increased the likelihood of a collision, or because it made it more likely that any injuries suffered in a collision would be serious. I sentence you on the basis of the latter here. It is noteworthy that there is no mental element required to prove the element of 'dangerousness'.
77Moreover, Mr Quaife died as a result of your driving in a manner that was dangerous to the public. Put another way there was the necessary relationship between your dangerous driving and Mr Quaife's death, and what is more your dangerous driving was at least a substantial or significant cause of that result, even if one found it was not the sole cause.
Reckless conduct endangering serious injury
78In contrast, you also admit to the charges of reckless conduct endangering serious injury. By pleas of guilty to those charges, you admit that by driving with one person on the bull bar (Garlick) and another person unrestrained in the back of the vehicle (Axtell) you endangered those people.
79A reasonable person who committed the same conduct as you in the same circumstances, would have realised they were placing another person at risk of serious injury, or may have placed another at an appreciable risk of serious injury. This encompasses recklessness – that is, you foresaw an appreciable risk of serious injury was a probable consequence of your actions and continued to drive.
Gravity of offending (and culpability for it)
Accused submissions.
80Ms Poole conceded the offence of dangerous driving causing death is serious. That much is reflected in the maximum penalty available of 10 years' imprisonment and the fact that this is a Category 2 offence (more of the latter later).
81The offence of recklessly placing another person in danger of serious injury is also serious, carrying a maximum penalty of 5 years' imprisonment.
82Ms Poole conceded that the following circumstances make your driving objectively dangerous:
(a) you knew Mr Quaife was unrestrained in the utility tray.
(b) you knew that Mr Quaife had been drinking alcohol.
(c)
There is evidence you knew the unrestrained passengers were up to what is referred to as 'antics' – although you did not specifically know that
Mr Quaife had climbed onto the toolbox.
83Taking the entirety of the circumstances into account, including the extent of the risk, it was submitted that the objective gravity of the offending in this case is towards the lower end of dangerousness.
84The degree of dangerousness of driving is to be assessed by reference to the extent of the risk it creates. In circumstances where passengers were thought to be between toolboxes, it was submitted the likelihood that a passenger would fall from the utility tray was relatively low. Having said that, it is conceded that the extent of harm that might result if a passenger did fall was not insignificant – hence the criminal dangerousness of the offending.
85Your moral culpability for the offending lies in the decision to drive a vehicle with unrestrained and intoxicated passengers in the utility tray.
86However, as with the objective gravity of the offending, it was submitted your moral culpability is towards the lower end when compared with other examples of this type of offending. It was properly conceded on behalf of the Director that this case is absent a number of factors of aggravation that often accompany cases of this kind.
87A number of facts were relied on in support of this contention by Ms Poole:
(a) You were fully and properly licenced;
(b) You were not under the influence of drugs or alcohol;
(c) You were driving with the lights on;
(d) You were not speeding. Indeed, the speed restriction was 100 kilometres per hour and the evidence supports a finding you were travelling at a speed significantly below this;
(e) You were not fatigued;
(f)
You were not driving erratically (or showing off) in an attempt to scare your passengers prior to the incident. To the contrary, the evidence suggests that you showed an otherwise degree of care in the handling of the car, slowed down a lot to turn corners, and that Mr Quaife fell only about
100 metres from that corner;
(g) The gravel road was 'in a good state of repair'. You disavowed needing to suddenly swerve to avoid a pothole or wildlife on the road in your record of interview;
(h) There was nothing mechanically wrong with the car that contributed to the accident;
(i) The utility tray had secured toolboxes which functioned effectively as high side panels, capable of supporting and containing passengers in the utility tray;[11]
(j) You had no reason to believe that Mr Quaife had, or would, climb onto the toolbox. To the contrary, your belief that Mr Axtell and Mr Quaife were between the toolboxes (although it is accepted that part of the criminal dangerousness of the offending is that you could not be sure of this); In this regard, I was taken to relevant passages of your record of interview at question and answers at 29, 140, 107, and 250.
[11]This is to be contrasted with the situation in DPP v Hibberd [2020] VCC 1597 (‘Hibberd’), where the tray of the utility from which the passenger fell had no side panels.
88I am informed that you learnt to drive in part, by driving a Ute with your dad. It was submitted that while you appreciated there was a risk associated with driving people in the utility tray, you did not appreciate the possibility of a fall in the nature and the manner in which occurred. I am not sure that I can accept that entirely. Such awareness was found to be an 'important consideration' in the assessment of moral culpability in Hibberd for instance.
89The degree to which particular consequences were, or should have been, foreseen by you inform the assessment of your moral culpability. Your moral culpability, I repeat, for Mr Quaife's death lies in your decision to drive the vehicle with Mr Quaife in the utility tray.
90In that context it was said the likely consequence of your decision resulting in the death in the particular circumstances on this evening, whilst it cannot be said to be entirely unforeseeable, was not so great that your moral culpability could be characterised as high. Rather, your moral culpability founded on those circumstances, would be properly characterised at the lower (but not lowest) end.
91In addition to the above, the defence position on the behaviour of Mr Quaife himself has a role to play in the assessment of your culpability. While it is accepted that his position in the tray was a dangerous thing, his climbing up onto the toolbox augmented the risk in a way that represents an additional matter beyond your control (in the sense that that term is understood following the case of Spanjol.[12]
(a) Applying the principles in Guseli[13], in any sentence to be imposed on you, it was submitted, ought to be reduced because Mr Quaife's conduct was an additional factor substantially outside your control, and was a material cause of Mr Quaife's death; and
(b) Further, applying Papagelou[14], by reason of the nature of Mr Quaife's conduct (in particular, it could not have been reasonably anticipated he would do what he did, your moral culpability is reduced.
[12] Spanjol v The Queen [2016] 55 VR 350 (‘Spanjol’).
[13]Guseli v The Queen [2019] VSCA 29 (‘Guseli’).
[14]Papagelou v The Queen [2022] VSCA 53; 99 MVR 232 (‘Papagelou’).
92The Court in Spanjol[15] gave the following example in elaboration of the second limb, also cited in Guseli:
[15] Spanjol v The Queen [2016] 55 VR 350 at [46].
As to the second proposition … which is concerned with causation, the offender may be able to establish that there was an additional factor — outside the offender's control — which was also a material cause of the serious injuries.
An example would be where the passenger, though wearing a seatbelt, was leaning far out of the window of the passenger side, making himself much more vulnerable to injury than he would have been if he was in his seat in the usual way.
Again, assuming there was sufficient evidence to establish that this conduct result in the injuries being materially worse than they would otherwise have been, the circumstance should also ordinarily result in a reduction of penalty.
Crown position
93The Crown position was different. The Prosecution submitted that the salient features of your offending are as follows:
(a) The offending involved poor driving and poor decision making, in which you were aware your passengers were intoxicated, they were up to 'antics' and that you were driving with three unsecured persons – one on the bull bar and two in the rear tray of the vehicle (meaning your attention was split in a way it never should have been);
(b) The dangerousness can in those circumstances be seen as both ongoing and obvious, to be contrasted with those cases which involve momentary inattention;
(c) Dangerous Driving causing death is itself a serious offence, the ramifications of which are both dire for the victim and their network of family and friends; and
(d) The Victim Impact Statement from Mrs Quaife makes such consequences clear.
94With conspicuous fairness, the Prosecution does not submit that the dangerousness of your driving represents a high end, or the worst example of the subject offending, but rather because the dangerousness was both obvious and ongoing, it cannot be said to be within the lower end either.
95The Prosecution submit that you bear full responsibility for this offence. You were sober, driving a vehicle with one person unrestrained on the front of the vehicle and two unrestrained in the tray, with your attention divided between them and limited vision, whilst being aware that those passengers were both drunk and up to 'antics'.
96The decision to drive in those circumstances was made deliberately by you, and was ongoing. Whilst the decision might not be as reprehensible as a decision to speed or show off in the same circumstances, Mr Cookson says it is a decision that you are entirely responsible for and cannot accurately be described at the 'lower end' of moral culpability.
97The Crown accept that Mr Quaife's actions in climbing atop the tool tray would pass the same test enunciated by the Court of Appeal in Guseli, being that they exposed the deceased to an obvious risk of death or serious injury, but that any moderation to be applied by necessity must be very modest noting that whilst it may be a factor substantially out of your control, it does not do much (if anything) to reduce your culpability given the authorities.
98It is submitted by the Crown that no reduction in moral culpability can be sensibly found when an inherently dangerous act results in precisely the type of danger inherent in it.
99Regarding Papagelou[16], the Crown submits that moral culpability is to be assessed from the viewpoint of the Offender. Thus, the Court of Appeal found:
We consider it to be likely that, as he approached the intersection, the appellant's view was obscured by Mr Huang's vehicle. Hence, when he manoeuvred to the left of Mr Huang's vehicle, he would not have anticipated the presence of Mr Ekselman in the intersection walking against the applicable traffic control signal. So much bears upon the appellant's moral culpability, and, in our view — as the prosecution accepted on the plea — puts the appellant's driving towards the lower end of the spectrum of seriousness of cases of dangerous driving causing death.
[16] Papagelou v The Queen [2022] VSCA 53; 99 MVR 232 at [29].
100So, the argument goes, the above passage is a proper analysis of moral culpability on first principles, and not an implicit modification of any of the principles in Guseli. There can be no analogy between the facts of this case and those of Papagelou – at least not after you understood that drunken unpredictable behaviour was being undertaken by your passengers and yet you drove on.
Conclusions on culpability and gravity of offending.
101Overall, I find the gravity of the instant offending tending towards the lower end, but certainly not at the lowest end.
102I have factored the matters concerning Mr Quaife's conduct into the sentence I impose and reduced your culpability in a very modest way because of them.
103But I cannot lose sight of the fact that the episode I am dealing with is protracted (it certainly cannot be described as momentary inattention), and the warning signs and the risks involved were plain. I assess your culpability accordingly, which is not at the lower end but at least in the mid-range.
Personal Circumstances
Family
104You are now 22 years of age, born in August 2001. You are the much loved eldest of two children born to Andree Addison and Cameron Taylor. Your parents separated when you were aged eleven. Both of your parents have re-partnered, and you have a positive relationship with each of them, your stepparents, your brother Daly aged 21, and your stepsiblings.
Education and employment
105You attended Warragul North Primary School, and 'was always good at school' before attending Warragul Regional College until the completion of Year 12. Despite contending with your mother's ill-health during VCE, you excelled in your studies. You took a gap year after Year 12 to work and save money to support yourself at university. In 2022, you completed a Diploma of Family History at the University of Tasmania.
106You enjoy an extremely close and supportive family network. The stability and support that these people offer was curtailed during the earlier phases of your time on bail.
107Up until now you worked full-time with your mother in the family business – an outdoor equipment and hire company.
108By referring to those two matters – your education and work, one would be mistaken that the events of December 2021 have not affected you adversely, and life for you has gone on uninterrupted. Nothing could be further from the truth.
Mental health
109You have been, and remain, deeply affected by this incident which causes immense distress, guilt and grief. You have sought professional help for a substantial period of time to deal with the aftermath and consequences of your own offending. You have attended no less than 33 appointments since October 2022 with Ms Karly Doyle of Ontrack counselling,[17] and engaged fully with therapy. You are described as having ongoing commitment to improving your own metal health in the face of the grief, anxiety and self-recriminations I have just referred to.
[17]Exhibit 10- Report of Karly Doyle dated 8 February 2024 mistakenly says since 2023.
110You have a mental health diagnosis of PTSD and Adjustment Disorder with Mixed Depression and Anxiety. You continue to report symptoms of 'severe' psychological distress and 'moderate/extreme' depression.
111Ms Lechner, forensic psychologist (who gave evidence on the Sentencing Indication) submitted in her report[18] of 25 July 2023 that you would likely find a period of immediate detention extremely difficult to manage. She stated in her reported at [7] that:
Ms. Taylor would be a vulnerable prisoner on account of her youth, lack of 'street-smarts', and perceived background of privilege. She is unlikely to manage the nuances, the direct and indirect communication of such an environment or to withstand efforts to stand over or bully her.
[18]Exhibit 3- Report of Carla Lechner dated 25 July 2023.
112Ms Lechner further submits you are likely to experience difficulties in a custodial setting in her later report of 11 October 2023[19] at [3]:
Imprisonment is particularly onerous for all persons with mental health issues, given the nature of the environment. For persons with PTSD, such as Ms Taylor, the ongoing stress, conflict and unpredictability within a custodial setting, provides a constant source of potential danger and therefore an increased need to be hypervigilant…
Despite the brave face that she projects, Ms Taylor is barley coping in an optimal environment; she would find it extremely difficult to cope in a gaol. Accordingly it is my opinion that her impaired mental functioning from the diagnosed disorders of PTSD, and Adjustment Disorder with Mixed Depression and Anxiety, would result in her being subject to substantially and materially greater burden or risk than the ordinary burden of the risks of imprisonment.
[19]Exhibit 4- Supplementary Report of Carla Lechner dated 11 October 2023.
113More recently, Ms Lechner says in her report of 5 February 2024[20] that since the Sentencing Indication Hearing:
(a) Your mental health appears to have declined markedly since the acceptance of the sentence indication; [21]
(b) Your 'level of depression now fulfils the criteria of a diagnosis of Major Depressive Disorder (DSM 5-TR) in light of the chronic nature of her depression and the intensification of symptoms'; [22] and
(c) She 'remain[s] of the view that imprisonment is likely to have a further detrimental impact on [Ms Taylor's] mental health with a further deterioration in mood and increased in her level of anxiety'.[23]
[20] Exhibit 9- Report of Carla Lechner dated 5 February 2024.
[21]Exhibit 9- Report of Carla Lechner dated 5 February 2024 at [1].
[22]Exhibit 9- Report of Carla Lechner dated 5 February 2024 at [2(i)].
[23]Exhibit 9- Report of Carla Lechner dated 5 February 2024 at [2(ii)].
114It is submitted (and ultimately accepted by the Crown, it was open for me to find) that your impaired mental functioning would result in you being subject to substantially and materially greater burden or risk than that ordinary burden of the risk of imprisonment.[24]
[24]Exhibit C- Further Prosecution Submissions dated 1 November 2023 at [2].
115I will deal more with your psychological make-up when dealing with the 52(H) exceptions.
Character
116You are a young woman of good character –a feature of your life that extends well beyond a simple lack of prior convictions.
117The plea hearing was attended by a number of people to support you – family, friends and your partner Mr Eccles.
118I received 25 references of the highest quality attesting to your character and your personal qualities. You are universally described as a deeply kind, caring, reliable and compassionate young woman who is very close to her family and devoted to them (as they are to you).[25]
[25]Exhibit 7- Bundle of 25 Character References- I have had regard to those portions of the references of Cameron Taylor, Simon Dawson and David Byrne that I was taken to on the plea.
119The same can be said of your relationship with many friends. You are described often as having qualities of maturity and reliability which are qualities that sadly abandoned you when this offending occurred.
120The devastation, grief and sadness you feel because of your own actions is evident in these references. Your remorse is palpable, and to a large degree, debilitating. You see little hope in the future and your life is punctuated now by despair, anxiety and anguish. That much is clear from the extremely powerful letter you authored and read in open Court to me and Mr Quaife's family.[26]
[26]Exhibit 11- Letter Authored by Lilli Taylor dated 4 February 2024.
121You are described by others as a selfless and resilient person who has been forever changed by these events. Your mental health has unravelled, and you require professional assistance in this regard. Thankfully you have taken positive steps by engaging in ongoing rehabilitation counselling to assist you.
122Given the way you have lived your life to date, the supports you enjoy present you with excellent prospects for rehabilitation. You are a low risk of reoffending, based on these factors. I find it hard to conceive of you ever re-offending.
Matters of Sentencing Principle
Category Two Offending
123The offence of dangerous driving causing death is a serious one, and it is difficult to see how a sentence, other than one of immediate imprisonment, could possibly meet the needs of general deterrence, adequate punishment, and denunciation.
124Consistent with that position, dangerous driving causing death is a Category 2 offence and this means the Court must impose a custodial sentence (not in combination with a community corrections order) unless one of the exceptions set out in s5(2H) of the Sentencing Act 1991 applies.
125The Act is prescriptive in the type of penalty to impose in your case, being a term of imprisonment unless the relevant circumstances set out in s5(2H) (a)-(e) of the Sentencing Act are enlivened.
126It has been consistently maintained on your behalf that s5(2H)(c)(ii) and s5(2H)(e) are made out and accordingly a Community Corrections Order (CCO) would be the appropriate disposition.[27]
[27]Exhibit 1-Outline of Submissions on Sentence fated 9 August 2023 at [3], and elsewhere, including Exhibit 8- Outline of Submissions for Plea Hearing dated 9 February 2024.
127The Prosecution initially did not accept that either of these exceptions are engaged and therefore, a sentence of imprisonment to serve (with a non-parole period) is the only available option to me.[28]
[28]Exhibit B- Crown Submissions on Sentence Indication dated 21 August 2023.
128Section 5(2H) of the Sentencing Act requires that in making the determination, I am required to:
(c) the offender proves on the balance of probability that—
(ii) he/she has impaired mental functioning that would result in the offender being subjected to substantially and materially greater than the ordinary burden or risks of imprisonment; or
(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of part 3 of the Act.
129Section 5(2HB) states:
In that section impaired mental functioning has the same meaning within s10A of the Mental Health Act'
130Section 5(2HC) In determining whether there are substantial and compelling circumstances in this section - and counsel I am not going to recite (2H)(e) and s5(2I) for the purposes of the sentence.
131The nett effect of the legislation is that on this charge, I must impose a term of imprisonment (other than one in combination with a CCO) unless I am positively satisfied (on balance) that one of the exceptions are met.
132If I am so satisfied, this does not compel me to impose a CCO or a sentence of imprisonment in combination with a CCO, but rather without such a state of satisfaction I cannot impose a sentence of that kind.
133I note for instance in Peers[29] such a state of satisfaction was reached such that s5(2H)(c) (ii) had been made good, but a head sentence and non-parole period was still imposed nonetheless. The following passage from Peers at [73] is instructive.
However, each case must be considered having regard to its own facts. In our view, a term of imprisonment is required. The speed at which the applicant drove and the overtaking manoeuvre plainly rendered the driving dangerous and general deterrence is important. However, in our view, a term of imprisonment of shorter duration is sufficient in this case to meet the demands of general deterrence, which must be moderated having regard to the applicant’s particular mental health conditions and the extra burden that she would suffer in prison. In our view, these factors deserve very great weight. They mean that in the particular circumstances of the case there is less room for general deterrence. It is the necessary reality for offending of this kind that people with unblemished records, undoubtedly remorseful, and with little or no prospect of re-offending, will receive an immediate term of imprisonment That is the effect of making the charge a category 2 offence and a consequence of the need for general deterrence. However, other sentencing principles which serve to moderate a sentence are not to be put aside as irrelevant.
[29]Peers v The Queen [2021] VSCA 264 (‘Peers’).
134Ms Poole submitted that the following two exceptions are satisfied in this case, such that it is open for me to impose a non-custodial sentence. I of course only need to be satisfied that one exists on the balance of probabilities in order to have any discretion to impose something other than a custodial sentence.
135The Prosecution position was simple - whether either exception to category 2 is made out or not, they ultimately submit a custodial component is still called for in circumstances of the present offending, for reasons outlined already recited concerning the gravity of the offending and your culpability.
Mental impairment exception
Accused
136It is said that you have an impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary risks or burden of imprisonment. I have summarised the relevant expert evidence relied on in support of this point already.
Crown
137As far as the Crown is concerned, there was initial resistance to the argument that this exception was made out.[30]
[30]Exhibit B – Crown Submissions on Sentence Indication Hearing dated 21 August 2023 at [25].
138No issue was ultimately taken with the diagnosis of Adjustment Disorder and Mixed Depression and Anxiety, nor with the symptoms of depression being characterised by lack of appetite and energy loss, irritability, loss of interest and pleasure, the desire to cry (without being able to) and feelings of sadness and pessimism.
139In terms of the PTSD diagnosis, no issue was taken with that either. It was noted elsewhere that you had symptoms including flashbacks, nightmares, avoidance, hypervigilance and a sense of threat in a moderate to extreme range amongst others.
140It was submitted that you had failed to discharge the burden of establishing mental impairment would result in you being subject to substantially and materially greater than the ordinary burdens or risks of imprisonment. It was said that prison being 'difficult to manage' was really the result of you being young, naïve and to some extent pro-social.
141After hearing from the expert in question and upon the provision of further material though, Mr Cookson did not say that such a finding was not open to me, or in other words that you might have made good that exception.[31]
[31]Exhibit B – Crown Submissions on Sentence Indication Hearing dated 21 August 2023 at [2], and Transcript of Sentence Indication Hearing dated 8 November 2023 at p50.
Conclusion
142As I said earlier, the finding that an exception exists is not the end of the enquiry. I still need to turn my mind to the availability and appropriateness of a CCO either as a standalone penalty or in combination with a term of imprisonment. I have carefully considered the authorities in this regard, of which Browne[32] and Lombardo[33] are of particular significance.
[32] DPP v Browne [2023] VSCA 13 (‘Browne’).
[33] DPP v Lombardo [2022] VSCA 204 (‘Lombardo’).
143Although I find the exception made out, I am unable to conclude that all relevant sentencing considerations can be satisfied by the imposition of a CCO alone or in combination, even acknowledging the significance of the mental impairment exception.
Substantial and Compelling Circumstances exception
Accused
144Ms Poole submits there are substantial and compelling circumstances that are exceptional and rare that justify not making a custodial order.[34]
[34]I note that the accused does not bear any onus in establishing same, but rather this is a state of satisfaction I must arrive at – see Peers.
145The combination of circumstances relied on to support the submission that you fall within the substantial and compelling circumstances exception, having regard to the limitations on matters that I might take into account under s10A of the Sentencing Act, are:
(a) In this case, an independent and unexpected act by Mr Quaife which was the immediate cause of his death (which is climbing out of the utility tray onto the toolbox). Indeed, it was said the issue of causation was a live one in this case. That the deceased was the immediate cause of his death rather than the driving itself was said to be an exceptional and rare circumstance which provides substantial and compelling support for a more merciful disposition;[35]
(b) Your personal circumstances. Whilst carrying less weight than matters such as the nature and gravity of the offence (s10A(b) Sentencing Act), in circumstances where objective gravity is at the lower end, your personal circumstances such as youth and mental condition are a compelling reason justifying a non-custodial disposition; and
(c) Finally, while general deterrence and denunciation are to be given greater weight than other sentencing purposes (s10A(a) Sentencing Act 1991), this is to be balanced against the mitigatory matters tied to your mental impairment and low risk of reoffending.
[35]Transcript of Sentence Indication Hearing dated 8 November 2023 at p26, a submission which came close to traversing the plea but did not.
146In addition, it was submitted that the supplementary reports of Ms Lechner add further weight to the submission that you fall within the definition of substantial and compelling circumstances. The supplementary report provides clear evidence of a mental impairment, the existence and severity of which forms part of your relevant personal circumstances.
147That you lost the opportunity to be dealt with by way of a YJC because of the delay in laying the charges is a further matter relied on to establish the availability of the second exception.
148To repeat, section 5(2H) of the Sentencing Act requires 'an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community corrections order in accordance with s44)'.
149A term of detention in a YJC for a young offender under the age of 21 at the time of sentence falls within such a division. YJC would have been therefore an (attractive) sentencing option for an accused had they been dealt with before turning 21.
Crown
150
Mr Cookson acknowledged you are entitled to rely on the exception to
Category 2 that the present sentencing exercise involves 'substantial and compelling circumstances that are exceptional and rare' and justify not making a custodial order. That was not a concession of course that the exception had been made good.
151It has been noted the test under this formulation is 'almost impossible to satisfy' but that observation is not to substitute the statutory language.
152The Court of Appeal has analysed this test in two steps, with the first step determining whether circumstances are substantial and compelling and the second determining whether they are exceptional and rare.
153I will not repeat the provision the of s5(2HC) which limits the considerations of the Court.
154Accordingly, the Court must have regard to general deterrence and denunciation of any accused's conduct as having greater purposes that the other purposes of the Sentencing Act when applying the test. The Court must give less weight to personal circumstances and 'must not' have regard to prospects of reform or good character (other than to note that there are no priors).
155In response to the submission made on your behalf
(a) The Crown rejects the notion that you were anything other than the relevant legal cause of Mr Quaife's death; and
(b) Your personal circumstances carry less weight in this exercise than they might otherwise, noting that the submission made on your behalf is effectively an invitation to the Court to have regard to prohibited circumstances like your prospects for reform.
156The prosecution submit that only matters raised that are capable of going to the test of 'substantial and compelling circumstances that are exceptional and rare' are effectively your personal ones. These are accorded less weight in the test noted above.
157I will return to Lombardo, which also involved dangerous driving causing death and the application of the above provisions. The Court of Appeal found it was reasonably open to the sentencing judge to find that personal circumstances might be substantial and compelling, but said this in respect of whether those circumstances were exceptional and rare[36]:
[87] We turn to the 'exceptional and rare' requirement. Here, we must respectfully part company with the sentencing judge. It is true the subjective evaluation required in this context may well be informed by the sentencing judge's experience and observation of the panoply of cases which come before the courts at first instance. It is also true, as the respondent submitted, that this Court sees only a 'skewed sample' of these cases, and should be cautious as a result not to simply substitute its own assessment of what is exceptional and rare.
[88] But in the context of dangerous driving causing death, at least, it has long been recognised the offence is often committed by young people of previously impeccable character, who are racked with remorse and grief for what they have done and have the best prospects for rehabilitation. Both in New South Wales and in this State, these features have been described as 'frequently recurring'. Such offenders can be expected to suffer from the symptoms of anxiety and post -traumatic stress, which a term of imprisonment may tend to exacerbate.
[36] DPP v Lombardo [2022] VSCA 204 at [87] and [88].
158The Court of appeal determined that even personal circumstances such as those described above were not enough to take it out of the 'ordinary tragic case of this offence' and it was 'impossible to conclude it was open to the sentencing judge to find that the circumstances of that case "exceptional and rare'''.
159The Prosecution considers that the Supplementary Report of Ms Lechner, if its conclusions are accepted by the Court, capable of rendering open a determination that the Accused would be subject to materially greater burden or risks than the ordinary burden or risks of imprisonment. That, the Prosecution submits that even if that conclusion is accepted, that would not fall within the exception of s5(2H)(e).
Conclusion
160I am not satisfied this exception is made out. That a young person with otherwise positive prospects of rehabilitation who is traumatised (to the extent of developing PTSD) by killing someone close is sadly neither not exceptional or rare, in the context of dangerous driving causing death cases. Indeed, it is one of the common tragedies of cases such as this one.
161This is a tragedy that is not exceptional and rare by the weight of personal circumstances of the accused alone, nor in combination with the other factors that have been relied on.
162I want to stress that these factors are not irrelevant. I simply note that they fall short in my view of the very stringent statutory test.
Dangerous driving causing death
163At risk of labouring the point, there is sufficient body of authority in this State to confidently conclude that it will be a rare case where an offender will be sentenced to anything other than a term of imprisonment with some component to serve for the charge of dangerous driving causing death.
164In Browne, this position is succinctly summed up this way at [46] and following where the court says.
This Court in Peers made the following pertinent observations:
This Court has previously noted that the offence of dangerous driving causing death is a serious one, and 'it is difficult to see how any sentence other than one of immediate imprisonment could possibly meet the needs of general deterrence, adequate punishment, and denunciation'. This Court has previously upheld sentences of imprisonment comparable to that received by the applicant, and found in the case of Borg, that the imposition of a five-year CCO without any period of incarceration was wholly inadequate.
[E]ach case must be considered having regard to its own facts. In our view, a term of imprisonment is required. The speed at which the applicant drove and the overtaking manoeuvre plainly rendered the driving dangerous and general deterrence is important … It is the necessary reality for offending of this kind that people with unblemished records, undoubted remorse, and with little or no prospect of
re-offending, will receive an immediate term of imprisonment.
Those observations are consistent with earlier authority such as Neethling.[37] In that case, this Court stated a non‑custodial sentence for the offence of dangerous driving causing death should be seen as exceptional and that a degree of the offender's moral culpability will be 'a key factor' in determining whether such a sentence is available as a sentencing option. That statement was endorsed in the more recent case of Lombardo, where this Court stated that, whilst non-custodial sentences are exceptional for the offence of dangerous driving causing death, the exception applies where the offender's moral culpability is low, such as where there has been momentary inattention or misjudgement.
[37] DPP v Neethling [2009] VSCA 116 (‘Neethling’).
165I repeat my findings here about the gravity of and your culpability for the present offending as a counterpoint to what is just mentioned above in the reference to Lombardo.
166In addition to deterring others, I must express denunciation of your conduct not just in words, but in a practical way by the sentence I impose. I must honour and reassert the sanctity of human life by the sentence I impose.
Conduct endangering serious injury.
167In considering the gravity of an endangerment offence, the key factors are the nature and degree of risk created. The risks to Axtell and Garlick were obvious – with the latter literally perched on the bull bar of a large vehicle in your full view. Those who disregard the risks they impose on others must expect to be punished. In this case, I find the risk knowingly posed to Garlick to be of a greater magnitude than that posed to Axtell, and I will sentence accordingly.
Mitigating Factors
Plea of guilty and remorse
168You conducted a committal which in my opinion was necessary to explore the fuller circumstances of the allegations. You then properly utilised the Courts' case management resources in order to attempt to bring this matter to a resolution. Serious alternative charges were withdrawn by the time of resolution. You cannot be criticised for taking this course.
169Your plea also facilitates the efficient administration of justice, and you are entitled to a benefit for that. The utilitarian benefit of the plea is to be enhanced by the Worboyes[38] considerations which are relevant. Accordingly, the discount to be applied to the sentence will receive will answer the description perceptible amelioration.
[38]Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’).
170Your plea of guilty shows you have accepted responsibility for your criminal conduct.
171I accept that your guilty plea can be properly used as evidence of remorse. It is clear that you regret your actions and not just the situation you now find yourself in.
172You deeply grieve for the loss of your friend and your cause of that loss to his friends and family. So much is manifest in what others as well as the letter you wrote that was read aloud in open Court to me and Mr Quaife's family and friends.[39] It was genuine, free of cynicism and full of profound regret.
[39]Exhibit 11- Letter Authored by Lilli Taylor dated 4 February 2024.
173You have not run a trial, avoiding further distress to the deceased's friends and family.
Character
174I have already dealt with the issue with character. It, coupled with your work history and supports that you have in the community stand you in good stead. So much is conceded by the Crown in this case.
Youth
175The tragedy is that many offences of this kind are committed by young people, are of the kind of character you enjoy Ms Taylor, who kill a friend or family member and are broken by it. This does not mean youth has no role to play in the sentencing calculus.
176I sentence you on the basis that you are a young first offender. You were so young in fact that had the matter proceeded in a timelier way, there was a potential for a sentence to be imposed that might have involved your detention in a less harsh environment – one perhaps more tailored to your age, prospects and vulnerabilities.
177One only needs to look at authorities such as Azzopardi[40] where Redlich JA starkly observes the corrosive, corruptive influences of adult prison which can work against a young person's prospects for reform and the community may pay a heavy price in the longer term for this reason. In such an instance where a first time youthful offender will be confined, a shorter term of imprisonment may be warranted and such is the case here.
[40]Azzopardi v The Queen [2011] VSCA 372 (‘Azzopardi’) at [36].
Delay
178I have dealt with the case history of the matter already.
179The delay here is not submitted to be an inordinate one, but delay is a matter that has an effect upon any young accused, and that is especially true for you.
180The time since the offending further evidences your very good prospects of reform, and given that (consistent with the first 20 years in which you led your life) you have not -re-offended.
181I repeat the way in which your age and the delay between offence and finalisation of the case provides a more limited range of sentencing options for the Court, which has tempered the sentence that I am imposing.
Verdins[41]
[41] R v Verdins [2007] VSCA 62 (‘Verdins’).
182Your poor mental health as canvassed already when dealing with the 'mental impairment' exception plays a significant role in the sentencing process. Your unravelling (and the hardship you will encounter in custody because of it) remains relevant despite my finding that the exception made out in s(2H)(c)(ii) will not result in the case being concluded in a way that involves the imposition of a CCO or combination sentence.
183The hurdle set out by sub-section (2H)(c)(ii) is higher than that which attracts the principles in Verdins
184Given my earlier findings with respect to mental health, I give particular emphasis to Verdins limb 5 - the existence of an impairment at the time of sentence, or its reasonably foreseeable reoccurrence, means that a specific sentence may weigh more heavily on you than it would a person in normal health; as well as limb 6 – where there is a serious risk that imprisonment will have a significantly adverse impact on your mental health.
185Although it was not agitated on the plea per se, I find at the very least I ought to moderate the need for specific deterrence in light of your condition, given the profundity of your resulting condition. I considered you to be specifically deterred in any event and have already found your prospects for reform to be excellent.
186The evidence surrounding limbs 5 and 6 of Verdins are weighty matters in mitigation and although there was evidence of how your mental health might be considered in light of these principles at the time of the Sentencing Indication Hearing, the subsequent further deterioration of your mental health means the weight to be given to them needed to be reconsidered.
187As a result of my further evaluation of those matters (and the weight to be given to them) as I said, the sentence I impose will be lower than that which was stated at the Sentencing Indication Hearing.
Totality
188I am mindful of the significance in this case of the application of the principle which requires me when sentencing you for multiple offences to ensure the aggregate term I impose is just and an appropriate measure of the total criminality involved.
189There must be appropriate relatively between the totality of all criminality and the totality of the effective sentence I impose. This is true when I consider the interactions between the charges on the indictment.
190Some concurrency is necessary given the fact that although there are 3 charges and 3 victims, the events all occur simultaneously (with the caveat that different risks were posed to different victims and there was a notably different result in the conduct where Mr Quaife is concerned, obviously). [42]
[42]And I have noted elsewhere the different elements of same.
191I have determined an appropriate length of imprisonment for each charge, taking the applicable sentencing consideration into account, and designated the highest term (which will be on the dangerous driving causing death charge naturally) as the base sentence, and then I have determined the extent to which there should be any cumulation regarding each count and finally stood back and considered in light of totality what the appropriate sentence ought to be.
Considerations
192In formulating an appropriate sentence in your case, I have had regard only to the purposes for which sentence must be imposed. Previous sentencing decisions that I have made reference to, have made clear the importance of punishment and general deterrence. I am satisfied in the circumstances of this case, the need for specific deterrence and the need for community protection, is somewhat decreased. There is also a need for any sentence to facilitate your reform as appropriate, but I still find that your prosects are excellent.
193Ultimately, your serious offending must be denounced on behalf of the community, and you must be justly punished. I am aware that imprisonment is a sentence of last resort, but the justice of the matter requires imposition of such a sanction.
Parole
194Finally, in affixing appropriate sentence for you and allowing for a parole eligibility component, I have had regard to the principle of parsimony; that is, the requirement not to impose a sentence that is more severe than that which is necessary to achieve the purposes for which the sentence is imposed.
195The purpose of parole is to provide for mitigation of punishment in favour of reform through conditional release when appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances. Due to the mitigatory factors in your case, I have concluded it is appropriate to allow a very meaningful parole component to your sentence. Accordingly, the non-parole period, that is, the period of imprisonment to be served before which you become eligible for parole, will appropriately take into account the mitigatory factors in this case and facilitate your reintegration into the community and ultimate reform.
196I make this observation – this non-parole period is the minimum term that I determine that justice requires you must serve, given all of the circumstances, before being eligible for release.
197This is a non-parole period that falls outside the common range for non-parole periods, and it does so by design. In determining the length of the non-parole period in your case, I have placed particular emphasis on the cumulative effect of the very significant matters relied on in mitigation. The potency of those matters in my view compel a conclusion that a significantly disparate non-parole period is justified and appropriate.
198I come now, to the portion of my sentencing remarks where I pass sentence on you. As I have said earlier, there is no alternative to me but to impose a head sentence and a non-parole period to be served immediately.
199After having carefully considered, balancing and weighing all of the relevant sentencing considerations, I convict and sentence you in the following way:
200On Charge 1, dangerous driving causing death, 15 months' imprisonment.
201On Charge 2, reckless conduct endangering serious injury, to Axtell, 4 months
202On Charge 3, reckless conduct endangering serious injury to Garlick, 5 months.
203The fifteen months imposed on Charge 1 is the base sentence. I order that 1 month of the sentence imposed on Charge 2, and 2 months of the sentence imposed on Charge 3 be served cumulatively upon the base and on each other. This brings about a total effective sentence of 18 months' imprisonment.
204I make it clear that you have been sentenced to a term of imprisonment of 18 months' imprisonment.
205You will need to serve at least 6 months before you are eligible for parole. This does not mean you will be automatically released on the date your non parole period comes up, rather it represents the earliest date you may be released should your application be made in a timely way, and the Adult Parole Board conclude that it is appropriate for you to be released at that time.
PSD
206You have been in custody since I remanded you after the plea in mitigation was heard. Pursuant to s18 of the Sentencing Act 1991, I declare that you have served 7 days by way of pre-sentence detention and such a declaration will be entered into the records of the court.
Section 6AAA
207Section 6AAA of the Sentencing Act 1991 (Vic), requires me to state that but for your plea what sentence you would have received. But for your plea of guilty, I would have sentenced you to a total effective sentence of 2 years 4 months and set a non-parole period of 14 months.
Licence
208Pursuant to s89(2)(a) of the Sentencing Act 1991, if a person is a holder of a driver licence or permit and they have been found guilty of an offence of dangerous driving causing death, I must cancel their licence or permit and disqualify them from obtaining another one for at least the minimum period designated – in this case 18 months.
209I have set the disqualification period at this minimum so as not to unduly hamper your prospects, but regrettably you will be disqualified if you are paroled. That is unavoidable. That 18-month period of disqualification will start from now.[43]
[43]I have had regard to the principles in R v Novakovic(2007) 17 VR 21, and Koukoulis v The Queen [2020] VSCA 19, when arriving at this period.
210Is there any clarification required?
211MR COOKSON: Not from my end, Your Honour.
212MS POOLE: No, Your Honour.
- - -
0
16
0