Director of Public Prosecutions v Thomas

[2017] VCC 1278

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

GENERAL LIST

Case No. CR-17-00255

Indictment No. G13027786

DIRECTOR OF PUBLIC PROSECUTIONS

v

DIMPLE GRACE THOMAS

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	17 and 24 July 2017
DATE OF SENTENCE:	6 September 2017
CASE MAY BE CITED AS:	DPP v Thomas
MEDIUM NEUTRAL CITATION:	[2017] VCC 1278

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW

Catchwords:             Sentence – dangerous driving causing death – plea of guilty – contested plea – whether the accused honestly and mistakenly believed what she did was permitted or whether the accused was acting in wanton disregard of the law – approximately mid-level of moral culpability

Legislation Cited:     Crimes Act 1958, s319(1); Sentencing Act 1991; Migration Act 2014

Cases Cited:Formosa v R [2012] VSCA 298; Markovic v R; Pantelic v R [2010] VSCA 105; DPP v Neethling [2009] VSCA 116; Stephens v R [2016] VSCA 121; Sharma v R [2017] VSCA 63; DPP v Oates [2007] VSCA 59; DPP v O’Neill [2015] VSCA 325; R v Verdins & Ors (2007) 16 VR 269; Guden v R (2010) VR 288; Darcie v R [2012] VSCA 11; R v Kwon [2005] NSWCCA 456; DPP v O’Neill [2015] VSCA 325; Konamala v R [2016] VSCA 48; Da Costa Jnr v R [2016] VSCA 49; Schneider v R [2016] VSCA 76, Nguyen v R [2016] VSCA 198; R v Whyte (2002) 55 NSWLR 252

Sentence:                 Sentenced to two and a half years imprisonment with a non-parole period of fifteen months; Drivers licence cancelled and disqualified for 2 years; 6AAA declaration, four years imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D. Piekusis	Solicitor for the Director of Public Prosecutions
For the Offender	Dr T. Alexander	BK Lawyers & Conveyancers

HIS HONOUR:

1       Dimple Grace Thomas, you have pleaded guilty to the offence that you, on 8 August 2016, by driving a motor vehicle in a manner that was dangerous to the public, caused the death of Milarniah Oscuro.

2 Dangerous driving causing death is contrary to s.319(1) of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment. Furthermore, pursuant to s.89(1) of the Sentencing Act 1991, your licence must be cancelled and you be disqualified from obtaining a licence for a minimum of 18 months.

3       

You were charged with the offence on 2 November 2016 and indicated that you would plead guilty, on or about 13 February 2017 at a committal mention.  At that time, those acting for you asserted that the plea would proceed as

a “contested plea”. 

4       Both parties accepted that the principles applicable on a contested plea are “well settled” and aptly described by Whelan JA (with whom Redlich and Osborn JJA agreed) in Formosa v The Queen [2012] VSCA 298, when he stated, at paragraph [8]:

“The legal principles which apply on a contested plea hearing are the following:

1.  Conventionally, the Crown opening constitutes an agreed factual basis upon which the judge passes sentence. [Citations omitted]

2.  It is standard practice to use the depositions and related exhibits as the basic materials. [Citations omitted]

3.  Should either party seek to have the sentencing judge take any additional matter into account in passing sentence, it is for that party to bring the matter to the attention of the judge and, if necessary, call evidence about it. [Citations omitted]

4.  A contested factual assertion upon a plea must be proved by admissible evidence. [Citations omitted]  That is, however, no requirement that the evidence should all have been given on oath, or that there should have been a prior opportunity for cross-examination. [Citations omitted]

5.  A sentencing judge must not take facts into account in a way that is adverse to the interests of the accused, unless those facts have been established beyond reasonable doubt.  On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities. [Citations omitted]”

The Circumstances of the offending as alleged by the Prosecution

5       Counsel for the prosecution tendered a document headed “Summary of prosecution opening” (Exhibit 1), which sets out the details of the subject offending, as alleged by the prosecution.

6       I will not repeat all of the details of that document, but refer to the following important matters:

(a)You are presently 32 years old, having been born in May 1985.  At the time of the offending, you were 31 years old and residing in Cranbourne South;

(b)On Monday, 8 August 2016, at approximately 1.30 pm, you were returning home after attending a gymnasium at the Cranbourne Home Shopping Centre.  You travelled in a westerly direction out of the car park via the access road and onto the South Gippsland Highway.  The access road meets at a T‑intersection with the South Gippsland Highway, with the provision for a left turn only for vehicles exiting the car park;

(c)

The access road, designed unambiguously, funnels vehicles left into three lanes of southbound traffic on the South Gippsland Highway and inhibits access to the central median.  South Gippsland Highway is divided by

a grassed central median.  There was a break in the central median that allowed for northbound traffic to execute a right turn into the shopping centre or make a U‑turn into the three lanes of southbound traffic on the South Gippsland Highway.  The break in the median is for use solely by north-travelling right-turning vehicles and is located to align with the entry to the shopping centre.  This places the opening immediately north of the vehicles exiting at the centre and its geometry precludes an unintentional right turn;

(d)You did not turn left into the South Gippsland Highway as required, but travelled across South Gippsland Highway, straight towards the break in the central median, rushing to beat the traffic.  You disobeyed a "Give Way" sign applicable to you and drove in a direction against an arrow pointing south and against the flow of traffic, in a direction aimed at the opening in the central median.  It was clear to the vehicle behind you that there was oncoming traffic from the right;

(e)Approaching from your right and moving from the centre lane into the third lane, that is, closest to the median strip, was Ms Ashlea Allen, who was 25 years old at the time of the collision.  Ms Allen had been visiting family prior to the collision and had with her in the car, her daughter, who was aged two years old at the time of the collision.  Ms Allen was pregnant, carrying Milarniah Oscuro, who was 28 weeks in gestation;

(f)Approaching from your right and moving from the centre lane into the third lane, Ms Allen saw you move out and into her path.  Ms Allen moved to the third lane, believing you would stop and slowed prior to the impact.  However, the front driver side of your vehicle collided with the front passenger side of Ms Allen’s vehicle;

(g)The impact caused an air bag deployment, with Ms Allen driving up over the central median, knocking down the "One Way" sign that was applicable to all traffic on this side of the South Gippsland Highway and therefore applicable to you;

(h)Immediately after the collision, Ms Allen felt abdominal pain and she was conveyed to the Royal Women’s Hospital, where Milarniah was born;

(i)On presentation at the Royal Women’s Hospital, it was discovered Ms Allen had suffered an abruption of the placenta, which is where the placenta separates from the uterus, which can result in hypoxia, that is, low oxygen and ischemia, that is, reduced blood flow, to the baby before birth.  Milarniah was found to be in a non-reassuring condition with abnormal heart beats and an emergency caesarean and subsequent delivery of Milarniah occurred.  On birth, she was in a very poor condition with very low haemoglobin and required a blood transfusion immediately after birth;

(j)Milarniah was transferred to the Neonatal Intensive Care Unit, where she died on 10 August 2016, after intensive care was withdrawn.  She had suffered multiple organ failure, seizures, and a significant global brain injury caused by the placental abruption, secondary to the motor vehicle incident.

Investigation

7       Investigators from the Major Collision Investigation Unit attended the scene and confirmed that this section of the South Gippsland Highway was an 80‑kilometres per hour zone and that the access road from the shopping centre car park was controlled by a "Give Way" sign and a "One Way" sign, which you failed to comply with.

8       Reconstruction of the collision determined that Ms Allen’s vehicle was travelling south on the South Gippsland Highway, Cranbourne, between 83 and 87 kilometres per hour, when she observed your vehicle enter the intersection from her left.  Ms Allen braked and steered right, prior to the collision.  Based on the area of impact and damage profile of both vehicles, it was determined you were travelling west along the three southbound lanes of the South Gippsland Highway, towards the break in the central median.  The physical evidence was inconsistent with you turning left, as legally required for all vehicles leaving that car park.

9       The journey home would be shorter if you were able to make the right-hand turn into the South Gippsland Highway.

Record of interview

10      During a record of interview held at the Cranbourne Police Station on 3 October 2016, you stated, amongst other things, the following:

(a)   You had been to the gym and were trying to enter the South Gippsland Highway when the “accident” occurred (see Q34–46);

(b)   After you had been at the gym and shopping, you were going home (see Q93–94, 100 and191);

(c)   You entered the road and the “accident” happened (see Q99);

(d)   You made “no comment” to questions regarding how the collision occurred (see Q101, 104, 129–130, 134, 141, 215, 227, 243, 275, 278);

(e)   After the “accident” you pulled over some distance down the road (see Q139);

(f)    When leaving the car park, you were turning left into the South Gippsland Highway (see Q194–211);

(g)   You knew vehicles could not travel straight across the South Gippsland Highway from the car park, because there was a "Give Way" and a "Keep Left" sign and vehicles from the other side of the road would be using the break in the road to wait and turn right (see Q218–221);

(h)   You agreed the road was designed for vehicles to only turn left (see Q245);

(i)    You could not remember which lane on South Gippsland Highway you turned into (see Q246–248);

(j)    You looked, but did not see any other vehicles on the road and did not know where the other vehicle had come from (see Q251–271);

(k)   You denied trying to drive to the break in the central median and repeated that you could only turn left and the road was one way (see Q273–274, 277, 282);

(l)    You had used this exit from the car park many times (see Q285–300);

(m)    

You denied previously using the break in the central median to get into

a road that would make your journey home quicker (see Q301); and

(n)   You did not mean for the “accident” to happen, and you were at “some fault”, as you did not see the other car (see Q325 and 329–333).

11      Counsel for the prosecution also tendered the following material:

(a)A bundle of 100 photographs, Exhibit 2;

(b)

A scale plan of the collision with aerial photograph of collision site,

Exhibit 3;

(c)A further booklet of photographs, Exhibit 4;

(d)A DVD of your record of interview undertaken on 3 October 2016, Exhibit 5.  Such DVD was played in full during the course of the plea on 13 June 2017;

(e)Aerial shot of the site where the collision occurred, Exhibit 8.

12      Counsel for the prosecution also tendered the following victim impact statements:

(a)The statement of Ashlea Louise Allen, the mother of Milarniah, declared on 5 June 2017, that being Exhibit 6;

(b)The statement of Christopher Darren Oscuro, the father of Milarniah, declared on 5 June 2017, Exhibit 7.

13      In her statement, Ms Allen describes how she was 28 weeks’ pregnant at the time of the motor vehicle collision and was eagerly anticipating the pending arrival of Milarniah, due on 28 October 2016.  She asserts that the consequences she and her family have been through as a result of the collision are something. “I never wish for any other mother to go through, because the pain and suffering is too much”.  She describes how she has survived the accident and is alive, but she just does not “live”, existing but feeling empty, not knowing how to live in a world without her daughter.

14      In particular, she states:

“The accident has changed my life and taken away so many things from my family and I.  I wasn’t the first person to meet my daughter and I have no memory of ever meeting Milarniah for the first time.  I may have photos, but no recollection, because I was heavily medicated after having an emergency caesarean whilst being put under.  This is something that I never wanted during my pregnancy, but because this happened, I wasn’t even awake to see Milarniah enter the world and had my right to give birth to my daughter on my own stripped away from me, while there was nothing I could do.  I couldn’t even hold my daughter because of all the tubes and machines connected to her, until it was time to turn off the machine that was keeping her heart beating and all her organs working.  What breaks my heart the most is all the things I can never tell you about Milarniah, the things I will never know, like the sound of her cry, whether her hair would be full of curls like her older sister Ariarnah?  Would she almost be walking by now?  Would Ariarnah be the best big sister to Milarniah and would they grow up to be best friends like my sister and I?  All the things I had planned, we had planned as a family.  These are the questions and things I think about over and over, except my family and

I had to organise a funeral, choose the last outfit Milarniah would ever wear, pick out the tiniest coffin that I didn’t even believe existed, listen to the songs from the funeral that I now constantly play on repeat in my head and we had to say our final goodbyes to the daughter/sister we so very much wanted in our lives.  Our family should have been complete, yet it is now forever broken.”

15      Ms Allen also describes how her daughter, Ariarnah, is also “suffering”, as she has to understand that her sister is not to be with her.  Furthermore, she describes that whereas prior to the accident, the family was strong and independent, now it has changed and in particular, her relationship with her partner, communication, love, sex, and friendship, has also changed.  She describes how she does not want to be intimate with her partner for the fear of falling pregnant again and the feeling of guilt that she would have by replacing Milarniah.  She describes looking down at her stomach at the scar across her abdomen, which reminds her that she failed to protect her daughter.  This has changed her as a mother and woman entirely.

16      In his statement, Christopher Oscuro describes how his life has changed since his family was involved in the car accident on 8 August 2016.  That particular day was his first day back at work, after being off work for six weeks following knee surgery.  On being telephoned by his partner, he left work immediately, attending the scene of the accident and seeing his partner being taken off to the Royal Women’s Hospital for emergency surgery.  At the hospital, he describes how he was not allowed into the operating room and he was unable to see Milarniah being born.  He describes how he had to be strong for his family and that the hardest decision was the choice that had to be made about turning off life support.  He asserts that he would give up everything and anything to have his beautiful daughter back with him.

17      In particular, he states:

“It’s changed our family and it will never be the same again.  All the struggles we continue to deal with, knowing our little girls didn't get to grow up together, has turned my world upside down.  All I ever wanted was to make sure my daughters would always be safe, but Milarniah’s life was cut short because of another driver’s wrong choice on the road.

"I hope our family doesn’t have to suffer any more grief and that the defendant is made responsible for their actions, because my family and I have suffered to much pain and we never want any other family to go through what we have gone through.”

The basis of the contested plea

18      Your counsel tendered a document headed "Accused’s outline of submissions", which also contained various references and other documentary material,  (Exhibit A), and it was submitted on your behalf that the prosecution opening, dated 6 June 2017, is accepted, save for the description of the collision set out in paragraphs 6(c), (d), (e) and (f) of these sentencing remarks.

19      In particular, your counsel submitted that:

“(a)   [you accept] that the road design requires vehicles to turn left onto South Gippsland Highway only, a three lane carriageway, there being no access through the central median;

(b)   despite the road design, [you] mistakenly believed that [you] could in fact turn right onto South Gippsland Highway through the central median;

(c)   [you] came to a complete stop at the Give Way sign, before looking for oncoming traffic to [your] right and ahead of [you] towards the central median.  [You dispute] the prosecution case that [you] intentionally disobeyed the Give Way sign;

(d)   believing it was safe to do so, [you] did not see the victim’s vehicle. [You] slowly took off from the Give Way sign and then proceeded across the first lane, towards the central median.  [You dispute] the prosecution case that [you were] rushing to beat the traffic;

(e)   whilst proceeding from the first lane to the second lane of South Gippsland Highway towards the central median, [you] saw a One Way sign in front of [you], and so immediately attempted to turn left to enter the third lane, rather than proceed to the central median;

(f)    whilst attempting to turn into the third lane from the second lane, the [driver of the other vehicle], who saw [you] attempting to proceed across the highway, then moved from the centre lane to the third lane and started to slow;

(g)   as a result, the left hand passenger side of the [other] vehicle collided with the right hand driver’s side of [your] vehicle at about 60 km per hour upon impact.”

20      It was submitted that you strongly denied that you disobeyed a "Give Way" sign, rushed across three lanes of traffic and attempted to make an illegal right-hand turn through the central median, knowing that such a turn was illegal.

21      Rather, it was submitted that you obeyed the "Give Way" sign by stopping completely and looking for oncoming traffic, slowly proceeded to cross the three lanes of oncoming traffic, mistakenly believing that you could turn right through the central median and then realised that you could not and attempted to turn left into the third lane.

22      It was submitted by your counsel that the factual distinction between the prosecution case and what you say occurred is potentially relevant to:

(a)    The characterisation of the acts that constitute the dangerous driving;

(b)    The identification of your moral culpability; and

(c)     The categorisation of the seriousness of your offending.

23      Reference was made to the High Court decision of McBride v The Queen (1966) 115 CLR 44, wherein Barwick CJ explained the quality of the driving which makes the driving dangerous:

“This section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving, which either intrinsically, in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who, as a member or as members of the public, may be upon or in the vicinity of the roadway on which the driving is taking place. It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public, but the need for death or injury to a person to result from impact with a vehicle so driven, may make that question unlikely to arise, although the possibility of its doing so must be acknowledged.

"The quality of being dangerous to the public in the speed or manner of driving, does not depend upon resultant damage, though to complete the offence under the section, impact causing damage must occur during that driving. Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality. A person may drive at a speed or in a manner dangerous to the public without causing any actual injury.  It is the potentiality in fact of danger to the public in the manner of driving, whether realized by the person or not, which makes it dangerous to the public within the meaning of the section.”

(at page 50)

24      Your counsel accepted that the concept of “dangerousness” is an objective test and your belief is irrelevant to the dangerous manner of driving.  However, it was submitted that what is relevant are the factual findings as to how the collision actually occurred.  This is because a charge of dangerous driving requires consideration of, "…all the circumstances of the case”.

25      Your counsel submitted that your driving was dangerous for the following reasons:

“(a)Crossing three lanes of traffic always carries with it an element of danger and especial attention is required;

(b)[You] proceeded from the Give Way sign to cross the three lanes of traffic, without keeping a proper lookout and therefore failed to see the oncoming traffic;

(c)[You] attempted to turn right through a median when it was in fact illegal and objectively dangerous;

(d)[You] did not join the highway in the first lane from the slip lane and you proceed over to the third lane, as required by law and prudent driving practise.”

26      However, your counsel, although conceding that your driving constituted “dangerous driving”, submitted that the factual distinction between what was opened by the prosecution and what is in dispute, is potentially relevant to the characterisation of the acts which constitute the dangerous driving, the identification of your moral culpability and the categorisation of the seriousness of your offending.

27      It was submitted, correctly in my view, that these matters impact on the sentence to be imposed for such offending.  In this respect, I do refer to DPP v Neethling [2009] VSCA 116, wherein the Court of Appeal (consisting of Maxwell P, Vincent JA and Hargrave AJA) stated, at paragraph [39], that:

“The mere fact that the offence is proved by establishing that the manner of driving was dangerous, does not render the driver’s moral culpability irrelevant. The example given in court was that of a husband driving at high speed and hence dangerously, in order to take his pregnant wife to hospital. As senior counsel properly conceded, those circumstances would inevitably affect the assessment of the driver’s culpability and hence, the determination of the appropriate sentence. The position is no different from, for example, the offence of manslaughter by unlawful and dangerous act. Proof of objective dangerousness suffices, together with proof of illegality, to establish the offence, but the sentence to be imposed will depend, to a significant degree, on the moral culpability of the offender for the act in question.”

28      Furthermore, I refer to the more recent decision of Sharma v R [2017] VSCA 63, wherein Santamaria JA refused leave to appeal a sentence in relation to two charges of dangerous driving causing death. It is made clear from the various authorities referred to, that mid to high-level offending will always result in immediate imprisonment, even in the event that moral culpability is low.

29      It was contended by your counsel that accepting your version of the facts leading up to the collision, your moral culpability should be identified as low, because:

(a)You were not in a rush, nor trying to “beat the traffic”, nor driving foolishly or aggressively;

(b)Your mistaken belief as to the ability to turn right through the centre median was genuine, albeit unreasonable, which may be the result of driving inexperienced;

(c)Neither alcohol, nor drugs, speed, or tiredness, was a factor in the driving;

(d)      Your car was fully serviced, roadworthy and safe;

(e)Completely stopping at the "Give Way" sign, believing that there was no oncoming traffic, indicates that you did not intentionally or with reckless abandon, put other drivers at risk (compared to a case of hooning);

(f)The accident was not the result of inattention, other than the "One Way" sign, rather, driving error and potentially confusion in the course of

a matter of seconds. 

30      Furthermore, it was contended by your counsel that the subject offending cannot be described as exhibiting a “high objective gravity”.  Your counsel referred to Sharma v R (op cit), wherein the offender drove across double white lines to the centre of the road, so that his car was entirely on the wrong side of the road and proceeded into the path of oncoming traffic.  It was submitted that the driving on the wrong side of the road was objectively very serious, especially where double white lines forbid it.

31      In distinction, it was submitted that on your version of facts, the failure to properly understand the road rules at the moment you took off from the "Give Way" sign and to have properly kept a lookout for ongoing cars, makes the driving dangerous, but that does not equate to a high objective gravity in your conduct or manner of driving.  In this sense, so it was submitted, the collision was ultimately an accident, arising from a very unfortunate set of circumstances that occurred over a period of probably less than 30 seconds from taking off to impact.  It occurred, so it was submitted, by reason of human error, misjudgement and inexperience, giving rise to consequences which can only be described as tragic and serious.

32      It was submitted that although you are criminally responsible for your objectively dangerous driving, on a scale of dangerous driving, such dangerous driving could not be properly characterised as mid to high-level seriousness or gravity.

33      Your counsel ultimately submitted that the contest between the prosecution case and your case can be distilled to a single question, “Why did you proceed across the southbound lanes of the South Gippsland Highway towards the central median, in an attempt to turn right to the northbound lanes of the highway?”

34      It was submitted that there were three possible answers to such question:

(a)Because you honestly mistakenly believed that it was permitted;

(b)That you were acting in wanton disregard for the law;

(c)For reasons which cannot be ascertained to the requisite standard of proof.

35      It was submitted on your behalf that such a disputed fact or facts are relevant to the appropriate disposition in this matter, primarily because it identifies your moral culpability and to a lesser extent, assists in the categorisation of the seriousness of your offending, that is, if you acted on an honest but mistaken belief that you were permitted to turn right through the central median, then it was submitted that immediate imprisonment is not required.  However, it was conceded if you acted in wanton disregard of the law, then immediate imprisonment is almost certainly required. 

36      To resolve these contested facts and consistent with the aforementioned directions in Formosa, the court assessed the evidence contained in the record of interview, various depositions, the evidence given by you and your husband, Libin Jose, the clinical psychologist, Mr Cummins and the informant.

37      

It was submitted by your counsel, on the evidence available to the court, that

a finding of either (a) or (b) was open in the case.

38      Again, I refer to Formosa (op cit), wherein Redlich JA, at paragraph [3], stated:

“Where there is a factual issue in dispute on the plea which might substantially affect the view that is taken of the objective gravity of the offence or the degree of criminality of the offender or some matter relied upon in aggravation or mitigation of penalty, it will usually be desirable that the sentencing judge announce his or her findings at the completion of hearing any evidence and submissions directed to that dispute. Although reasons for the findings may await the sentencing remarks, sufficient needs to be said, so as to the intended findings before the balance of the plea in mitigation is conducted, so that the parties have an opportunity to make submissions in the light of those findings.”

39      Consistent with such direction, I informed the parties on 20 July 2017, that I was satisfied beyond reasonable doubt that you were acting in wanton disregard of the law and in particular did not accept that you honestly but mistakenly believed that you were permitted to perform such actions. 

40      Before proceeding to set out my reasons for making such a finding, I propose to set out some circumstances relating to your background, marital status, employment status and general circumstances.  Such information is based on, in part, submissions made by your counsel and in part by other documentary evidence.

Your personal, educational and employment background

41      I note the following:

(a)   You are presently thirty-two years of age, having been born in Kerala in South India in May, 1985.  You are the second eldest of four children.  Your older sister is married and is employed as a language teacher in a secondary school in Kerala, whereas your younger sister is also married, living in the Middle East and working as a paediatric nurse.  Your youngest sibling is your 25-year-old single brother, who is a qualified lawyer who lives in Kerala and currently undertaking further studies;

(b)   Your parents, who are retired school teachers, are alive and living in Kerala and have not been informed of your legal situation;

(c)   

You are married to Libin Jose and have a three-year-old son, Josh Libin, who was born in 2014.  You met your husband when working as nurses in a hospital in Mumbai in early-2009 and married in Kerala in February 2012.  Your husband was trained as a nurse in India and is currently undertaking a traineeship in cardiac perfusion at the Epworth Hospital.  His Indian qualifications have yet to be recognised and such traineeship is to perform the same tasks as he did in India.  He also works part-time at the Caulfield Hospital and will have his exam for accreditation in late 2017 or

early 2018;

(d)   Your husband arrived in Melbourne in May 2012 on a 457 Visa, an occupational visa, after which he completed a three-month nurse bridging program at Deakin University, prior to undertaking a placement at Caulfield Hospital;

(e)   You arrived in December 2012.  Prior to coming to Australia, you were educated in Kerala, completed and passed a nursing degree in a university in Karnataka, where you were situated as a boarder.  Such degree was completed over four years and then you undertook two years’ work experience in a hospital in Mumbai.  You also worked as a lecturer in nursing studies at a college in Kerala for 16 months and also worked for 12 months in a hospital in Mumbai, where you met your husband.  All of your studies were undertaken in English;

(f)    Since November 2014, you have been working as a personal carer at Mecwacare, which is an aged care facility.  You are presently working in that job two to three days a week, but have previously worked more than that, but are not able to deal with the stressors at that job at the moment.  I refer to a reference from Mecwacare signed by a Mr Graham Bailey, facility manager, wherein he describes you being responsible for supporting the residents’ physical, spiritual, social and cultural needs, to maintain their wellbeing and independence.  In particular, he describes you of displaying core values of being caring, accountable, respectful and ethical.  Furthermore, he states that you consistently demonstrate your ability to show empathy with the residents and your capacity to operate, both effectively and physically, as a well-respected team worker;

(g)   

You and your family presently live in Cranbourne in a house with

a mortgage and that is the extent of your assets.  The family does have two cars;

(h)   You did drive in Kerala, although it was put that you drove in a village-type environment, where road traffic is very different, being much lighter and the road rules and conditions of driving are also very different.  You obtained your Victorian licence in June 2015 and it was submitted that you would be described as someone who is a “nervous driver”, who required your husband to describe and set out routes that you would have to follow.  There is no history of speeding, drink driving or any type of problematic driving in the past;

(i)    I also refer to your tendered medical records, running from 9 August 2016 through to 25 January 2017.  You suffered a miscarriage in about November 2016, which you attribute to your actions on the day of the accident.  Also, about November 2016, your medical records would suggest that you were stressed and very worried about the court case flowing from the incident on 8 August 2016;

(j)    You were referred by your treating general practitioner to a psychologist, Ms Margaret Morkos, in November 2016.  In a report, dated 20 January 2017, Ms Morkos reports, in part:

“Dimple reported that on 8 August 2016, she had a car accident, which is (sic) contributed to her stress and anxiety.   She also stated that she was eight weeks pregnant; however due to stress, she had [a] miscarriage in the first week of November.

"A clinical assessment and psychometric tests were conducted and revealed that Dimple was experiencing some symptoms of anxiety, as well as stress.  Therefore, psychological intervention was implemented to reduce anxiety and stress.  During the intervention sessions, there was evidence of improvement regarding her mental health conditions.

…"

Material referred to in resolution of the contested plea

42      

I refer to the following depositions which relate to the circumstances of the collision on 8 August 2016.  It is common ground that you were driving

a relatively new, grey, Mitsubishi Lancer and that Ms Ashlea Allan, the driver of the other vehicle, was driving a white Hyundai IX35 wagon at the time of the collision:

(a)In his deposition, Phillip Tibor Santa states, in part:

“2.     On Monday, 8^th August 2016, I was in the Cranbourne area and had just gone through the Hungry Jacks' drive through, which is part of the Bunnings and Home Centre carpark at the intersection of South Gippsland Road and Thompson Road in Cranbourne.  As I left the car park, I took up a position behind the grey Mitsubishi Lancer and we were approaching the South Gippsland Highway, where you can only turn left into the flow of traffic and head towards Cranbourne business district. 

3.     "As she approached a give way sign, I saw her move into the intersection and couldn’t believe she moved out, because

I saw a white car clear as day, along with another car, coming towards her.  This location has long intervals of no traffic and the Thompson Road lights stopping a lot of traffic.  The white car was in the third lane, or the far right lane, it was heading towards Cranbourne and when it was about 50 metres away, which is a guess, the Lancer moved out.  I had no idea what she was doing and do not recall seeing an indicator, but the car had moved out over into the second lane and it was going straight, not turning left as you would expect.  But there is

a gap in the road so traffic can turn into the shopping centre car park for the traffic on the other side of the road.  It is a right turn lane and not for traffic heading to Cranbourne to use. 

4.      "As the Lancer moved further into the road, the impact between the two cars happened.  The Lancer struck the other car on the front left hand corner of the white car and the right front corner of the Lancer.  It didn’t look like the white car had slowed down when the Lancer moved off, it went across slowly and couldn’t say whether she was going to stop halfway to allow the white car to pass, but she kept going.

8.     The way the accident happened didn’t make sense to me, for there was no reason for her to drive straight across the road, if she was intending to drive towards Cranbourne.  The only reason for the way that the car was driver [scil driven] was to make the short cut across the gap in the road and to turn towards Thompsons Road, which is an illegal turn.”

(b)    In his deposition, Gary Julian Charles states, in part:

“On Monday 8 August 2016, at 1:37 pm, I was with my wife, Lynette and we were heading to Bunnings and I was driving my red Triton twin Ute.  I was travelling towards Thompsons Road, along South Gippsland Road and had just entered into the right turn lane that provides for traffic to turn and cross over South Gippsland Highway, traffic moving in the opposite direction.  There is a cut in the grass medium [scil median] strip here and I was half way along when

I saw two cars about to collide.

"The first vehicle was a grey Mitsubishi Lancer.  It had come across from the entrance/exit road from the Bunnings and Homemaker Centre.  It was the road I was going to take and so I was looking at all of the traffic.  I also saw the second vehicle, a white Hyundai.  It was approaching in the first lane closest to me and the first vehicle took off into the lanes, as it was trying to beat the traffic quickly.  The vehicle didn’t move off slowly, but was the opposite, rushing across into the path of the Hyundai.

"The first vehicle also angled back slightly, giving the impression that the vehicle was trying to do a right hand turn, but there was no access, as there was a dark coloured car in front of me and stopped waiting to cross the access road, so the first vehicle had no hope of getting across.

"The white Hyundai and Lancer crashed at the opening in the road.  The Hyundai went right and ended up in a ditch.”

(c)In his deposition, Joel Andrew Forsyth, states, in part:

“2.     On Monday the 8 August 2016, I was driving on my own in Cranbourne, going to Bunnings.  From memory it was just after lunch, because I was pretty hungry, I think 1.50 pm or

2 pm, somewhere around there, the weather was fine. 

3.     "I was in the right turn lane on the South Gippsland Highway, facing towards Thompson Road but heading into Bunnings and the Homemaker Centre park.  There are only two entrances into the Homemaker Centre from the South Gippsland Highway; one where there are traffic lights and one where there are no traffic lights.  I was at the one with no traffic lights. 

4.     "I was the fourth car in the queue to turn right.  There was another burgundy four-wheel drive in front of me and no one else behind me.  I use this turn lane pretty regularly and whenever I pull up in the right turn lane, I always look across the South Gippsland Highway to the Homemaker Centre.  In this case, I remember seeing three cars waiting to enter the South Gippsland Highway from the entrance that I was waiting to enter.  The first of these three cars was a little grey sedan, but I didn’t take any further notice of it until I saw this car out of control, coming towards me. 

5.     "I hadn’t been looking forward, but I remember hearing a loud bang.  When I looked up, I saw the small grey sedan had collided with a white sedan, I think maybe an Nissan X-Trail.  The white car was in the lane closest to me and hardly moved after impact.  The grey car, on the other hand, bounced off after impact and fishtailed towards me, because the wheel was locked into position.”

(d)The deposition of Ms Ashlea Louise Allan, the driver of the other vehicle, who states, in part:

“On Monday 8 August 2016 at about 1.30 pm, I was driving my car, a white Hyundai ix35, along South Gippsland Highway near Bunnings.  I was with my daughter, Ariarnah, who was almost two. 

I had been visiting my sister and I had just had lunch at McDonald’s in Thompson Road, when I turned from Thompson Road.

"The turn from Thompson Road is that you need to slow down if there was traffic and I slowed to see if there was traffic, but there wasn’t and I moved across into the far lane, being the right lane.

"The speed limit about this part is 80.  As I was approaching the area near Hungry Jacks, I saw a car move out into the road. 

I thought, what was it doing?  At this time Ariarnah was having

a tantrum and in between me looking back in the car, using the mirror and looking back, the car was right on me.  I applied the brakes and the car hit me at the front passenger side.”

(e)I refer to the deposition of Steven Yang, who is employed by VicRoads as the Manager, (Acting Team Leader - Traffic and Transport) and has qualifications as a civil engineer.  He describes the site of the accident in the following terms:

“4.     South Gippsland Highway is a duplicated arterial road with two northbound through lanes and a dedicated right turn lane for accessing the centre located on the east side of the highway.  The southbound carriageway comprises three through lanes and a dedicated left turn lane into the Homemaker Centre. 

5.     "The two carriageways are separated by a ten metre central median. 

6.     "The centre access consists of a single lane entry, serviced by the left and right turn lanes from the highway.  A single left turn lane exit from the centre to the highway is provided. 

A physical triangular island exists to channelise the entry and exit movements to and from the centre.  The island shape is designed to unambiguously guide all movements entering the highway from the Homemaker Centre to turn left and to inhibit access to the central median, similar to many other intersection locations.

7.     "Additionally, the right turn median opening is located to align with the entry to the centre.  This places the opening immediately north of the vehicles exiting the centre and its geometry precluding an unintentional right turn.

8.     "A site inspection was undertaken on 23 August 2016 of the Homemaker Centre exit and shows:

a.That a ‘one way’ sign exits in the centre median opposite the exit for the Centre to direct motorists to turn left and travel southbound.

b.No signage is present on the approach to the highway from the centre indicating either a ‘No Right Turn’ (R2‑6(R)) or a diagrammatic left turn only (R2-14(L)).

c.The absence of any pavement markings (left turn arrow)

d.There is the presence of a ‘KEEP LEFT sign and ‘GIVE WAY’ sign on the left turn splitter island and associated give way line marking.

…"

(f)I refer to the deposition of Senior Constable Patrick Daley, who was stationed at the Operations Response Unit.  On Monday, 8 August 2016, he was performing patrol duties and received information regarding

a collision on the South Gippsland Highway outside the Hungry Jack’s restaurant in Cranbourne.  He proceeded to the collision site.  On that day, he required you to undergo a preliminary breath test, which did not indicate the presence of alcohol.  In particular, he states:

“I asked the accused what had happened.  The accused stated that she was exiting the slip lane from the car park into the middle lane of the highway.  She said she didn’t see the other vehicle coming.”

(g)In her deposition, Dr Jenelle Kathryn Mehegan, described herself as

a detective acting sergeant of the Major Collision Investigation Unit.  She was requested by Detective Patrick to perform an analysis and reconstruction of the two-vehicle collision which had occurred on the South Gippsland Highway, Cranbourne on 8 August 2016.  She notes that she did not attend the collision scene when the vehicles were in situ, but attended later for a site examination.  Her analysis and reconstruction is predominantly based on the photographs, scale plan and the airbag module download report.  Furthermore, she did not examine either of the two vehicles involved in the collision, but has had access to photographs which depict the damage.  In particular, she states: 

“The area of impact between the two vehicles can be determined, based on the post impact tyre marks from both vehicles and the impact scuff on the road surface in the right of the three southbound lanes of the South Gippsland Highway, Cranbourne.  The scuff marks are consistent with the front passenger tyre of the Hyundai wagon having been forced sideways to the right when it collided with the Mitsubishi sedan.  The impact scuff was located in the right of the three southbound lanes and consistent with having been left by the front passenger side tyre of the Hyundai wagon.  The scuff mark commenced in line with the break in the centre median of the road.  The impact tyre mark was rearward (north) of the path taken by vehicles turning left out of the Homemaker Centre Car park.  Based on the location of the impact scuff, it is unlikely that the driver of the Mitsubishi sedan was turning left and more likely that the driver was intending to cross to the break in the centre median to turn right."

(my emphasis).

Later, Detective Acting Sergeant Mehegan states:

“In my opinion the Hyundai ix35 wagon was travelling south on the South Gippsland Highway, Cranbourne, between 83 kilometres  and 87 kilometres per hour when the driver has observed the Mitsubishi Lancer sedan enter the intersection from the left out of the car park of the Homemaker Centre.  The driver of the Hyundai wagon has braked and steered right, prior to colliding with the Mitsubishi sedan.  Based on the area of impact, the PDOF of the Hyundai sedan and the damage profile of both vehicles, in my opinion, the Mitsubishi sedan was travelling west across the three southbound lanes of the South Gippsland Highway, towards the break in the centre median.  The physical evidence is inconsistent with the driver of the Mitsubishi turning left, as legally required for all vehicles leaving the car park.”

(my emphasis).

43      I also refer to the record of interview undertaken by you on 3 October 2016 at the Cranbourne Police Station.  The record of interview was conducted by Detective Sergeant Mark Patrick and also present was Detective Leading Senior Constable Fletcher Pearson.  As I have already noted, the DVD of that record of interview was played to the court.

44      Further, as already noted in the prosecution opening, you gave the following information:

·        You knew vehicles could not travel straight across the South Gippsland Highway from the car park, because there was a ‘Give Way’ and ‘Keep Left’ sign and vehicles from the other side of the road would be using the break in the road to wait and turn right (Questions 218-221).

·        You agreed the road was designed for vehicles to only turn left when leaving the car park (Question 245).

·        When leaving the car park, you were turning left onto the South Gippsland Highway (Questions 194-211).

·        You made “no comment” to questions regarding how the collision occurred (Questions 101, 104, 129,130, 134, 141, 215, 227, 243, 275 and 278).

45      It was submitted by your counsel that the record of interview does not accurately reflect your evidence about the circumstances of the driving because of your limited English ability, your distress at the time of the interview and your confusion about the meaning of the questions. (See paragraph 10 of Exhibit A).

The evidence of the accused

46      On 13 June 2017, you gave evidence in the course of the contested plea.

47      

I should point out that at the commencement of the plea on 13 June 2017,

I permitted an interpreter to be sworn to assist you.  The interpreter was capable of translating the South Indian language of Malayalam to English and vice versa.  I permitted the interpreter, after enquiry of your counsel, as to the need to have an interpreter to assist you.  Your counsel stated:

“She’s capable of conversational English without difficulty, but in terms of accuracy of expression and understanding, there are some problems.”

(T2, L17-19).

48      You gave your evidence that you had heard your counsel give a brief history about your background, set out in paragraph [41] of these reasons, and that what was put to the court was “correct”.

49      When queried as to whether you preferred to speak directly to your counsel in English, or rather through the interpreter, you requested through the interpreter.  In particular, you gave the following evidence:

·        You obtained your Victorian driver licence in June 2015 and for the year prior to the subject collision, you used to drive going to your job and dropping off your child at day care, which involved only one route, which your husband had taught you.

·        After dropping off your son at a day care centre, you went to a gymnasium at near the Bunnings Homemaker Centre, intending to pick up your son from day care at about 4 pm.  After going to the gymnasium, you did some shopping, but was relaxed because the whole day was “free”.

·        When you got into your car to leave the Bunnings Homemaker Centre, you gave evidence that you were in no rush to get anywhere and in particular, the following evidence was given:

Q:      “And where had you planned to go?---

A:       "To go home."

Q:"Right.  Now can you take the court through what happened from the time you took off from your car park until the time the accident occurred?---“

HIS HONOUR: 

Q:“Can I just ask what time did you get into your car intending to go home?  What time was that?---"

A:"I don't remember, but it was about 1 o'clock."

Q:"Yes, thank you.”

DR ALEXANDER:  (To witness) 

Q:"Yes, so if you could explain?---"

A:"I got into the car and there was an exit just after where

I parked the car."

Q:"Was that this exit?---"

A:"Yes."

Q:"Yes, go on?---"

A:"So I took that exit.  I just came in front of the give way and there were other cars behind my car."

Q:"What did you do at the give way sign when you arrived?---"

A:"I just stopped the car completely, there was cars going, I was just waiting the road to get cleared."

Q:"How long would have been, if you recall, how long would you have been waiting at the give way sign for the road to clear?

---"

A:"I don’t remember well, but I’m sure that I waited for most - all the cars to get cleared and waited near the give way."

Q:"Before you took off, did you see the victim’s mother’s vehicle?---"

A:"I didn’t see.  I saw that car after the accident."

Q:"Now please, take us from the time you took off from the give way sign?  What were you intending to do when you took off?

---"

A:"I was waiting in the give way when I saw the road was cleared.  There was an intersection.  I was about to go to the road.  There was an intersection in front of the road.  There was a black car near the intersection and I didn’t know where the car was going.  The car was waiting there.  Then I was confused.  I thought the car was waiting for me, for me to go in - onto the road.  Then I got into - when I got into the second lane, as I was there, I saw the one way sign. 

"As soon as I saw that, I realise I can’t - I couldn’t go through that way, then I - then I turned to the third lane.  Then I got accident." 

Q:"You used the word 'intersection', are you in fact describing the break in the central medium strip?---"

A:"There’s a space between the roadway and cars from the other side can wait.”

(T40, L 1 - T41, L 17.)

·        You gave evidence that the black car that you have described was waiting for you to go through that lane.  Furthermore, when queried as to the distance that remained between the kerb and the black car, you considered that there was enough for you to get your car through.

·        You describe that you took off from the ‘Give Way’ sign “very slow” and believed that you could go “straight ahead”, until such time that you saw the ‘One Way’ sign confronting you on the highway, causing you to turn left into the third lane of the highway.

·        You gave evidence that you had been at the left turn position a number of times before, but this was the first time that you had attempted to cross the highway as you have described.

·        When queried whether you drove straight across or at an angle to approach the break in the median strip, you answered:  “I just took my vehicle straight”.  (T45, L31).

·        At times in the past when you had turned left into South Gippsland Highway, you would travel some distance so you could turn around and come back on the other side of South Gippsland Highway to travel home.  When queried as to why you did not follow that course on the day of the collision, you stated:

“When I saw that car waiting there, I just thought, that car's waiting for me and until I saw the give way sign.  I don't know that I could or could not go through that way.”

(T46, L23-28)

·        You confirmed that you were interviewed by the police on 3 October 2016.  When advised of the upcoming interview, you and your husband consulted Legal Aid and were informed that, if you were charged, then you should return to Legal Aid, but they would not assist prior to being charged.  Legal Aid gave no advice to you or your husband about the interview.

·        When you arrived at the interview, you were asked whether you had received any advice and ultimately, arrangements were made for you to ring a lawyer, which you did, named Dominic, who advised you to make “no comment” in relation to questions about the collision.  The telephone call with “Dominic” was about three or four minutes.

·        You had a conversation with the informant prior to the commencement of the interview, during which time you queried what the punishment is for the offence and you were informed that the maximum punishment was ten years of imprisonment.  You gave evidence that on being informed of that, you became:

“I became completely lost, I can’t even think about that.”

(T50, L16-18).

·        You gave evidence that through the course of the interview, you felt confused and had too many thoughts in your mind.  You also gave evidence that you did not “hear properly” most of the questions.

·        

You gave evidence that the South Gippsland Highway to your right was

a straight road and you estimated that you could see about 100 metres up the road.  When queried as to why you did not see the car that you collided with, you stated:

“Ah I didn't see the car.  Ah it was a very, very bright day.  I think that might be the reason.”

(T72, L13-15)

·        

When queried by the court as to the statement made to the police,

“I intended to drive onto the South Gippsland Highway”, that is, left onto the Highway, you said you did make such statement and that it was not the truth.  When asked why you made such statement, you stated:

“I was tense and thinking about the punishment.  And after that

I knew I couldn't go that way.  That's - that was all in my mind, so whatever it came to my mind came up - came through my mind.”

(T76, L13-16)

·        When queried as to why you had changed your normal route from turning left and going along the South Gippsland Highway before turning and coming back the other way, as you had done on a number of occasions in the past, you stated:

“Ah, that day when I saw the black car there, for some reason I had a thought like that.”

(T77, L24-25)

·        You gave evidence that to obtain your licence in June 2015, you undertook lessons and the test and in particular, drove with your husband who made clear the routes that you would have to follow.  You did not have to drive with L plates because you had an Indian licence and you obtained a full licence at that time, albeit on the second attempt.

·        You gave evidence that you have written two letters to the parents of the deceased child and in particular, the following evidence was given:

Q:“You have written two letters to the victim’s parents?---"

A:"I couldn’t talk to the mother.  I was much - I couldn’t face her.  But I have to let her know my sadness.  So I wrote two letters."

Q:"Is there anything you want to say now?---"

A:"(Direct) I’m so sorry.  (Through Interpreter) I didn’t do anything purposely.  I know what - things happen very bad, but I can say only sorry.  (Direct) So sorry.”

(T80, L3-10)

50      Under cross-examination, you were questioned extensively about your understanding of the English language.  In particular, the following evidence was given:

·        When studying nursing in India, such study was undertaken in English. Furthermore, when lecturing in nursing, some lectures were undertaken in English, but more in Malayalam.

·        When you arrived in Australia, you applied for a full driver licence and that process was undertaken in the English language.

·        Since working at Mecwacare from 2014, you accepted that you are required to speak English when dealing with those you are caring for.

·        When you attended the psychologist, Ms Morkos, in November 2016, you spoke English over the course of the four consultations.

·        When you dealt with the psychologist, Mr Jeffrey Cummins, on a number of occasions, you always communicated with him in English and at no time sought to have an interpreter present.

·        In all your communications with the police, you have spoken in English and at no stage did you request an interpreter to communicate to the police. 

·        At the two occasions that you attended the Magistrates’ Court, prior to the plea hearing, you were not assisted by an interpreter in court.

·        The two letters of apology sent to the parents of the deceased child, dated 24 April 2017 and 19 December 2016, were written in your handwriting and you accepted that you can read and write English well.

·        In re-examination, you did inform the court that the letters were originally written by you in Malayalam and your husband and friends helped you translate the letters to English.

The evidence of Mr Libin Jose

51      Your husband, Libin Jose, gave evidence in relation to both circumstances relating to the accident and in a more general sense, as to the circumstances of the family.  Your husband confirmed that you had been married for about five years, since February 2012 and that the marriage was “going really well”.

52      When queried about a discussion he had with you subsequent to the collision, he informed the court that he took you to the site a couple of times and asked you to explain what you were doing.  You explained that you were attempting to do a "right turn”, which he could not believe, as you had never done that and thereon stated:

“Yes, yes, the median strip in the middle part of the median, um, and I was of course surprised at how she can do that, because she has never done anything like that before and I told her that is a one way, you should not be going to that side and it's only for the vehicles coming and I explained her that road and also I suggested not to take that route anymore, as that is more confusing and because she will have to get into the turn lane again to get down to the lights to take the U-turn, so it’s more than ‑ ‑ ‑ .”

(T109, L20-29)

53      Your husband gave evidence after a series of discussions with you in Malayalam.  He understood what you were trying to do and that was as you have explained in your evidence during this plea hearing.

54      Your husband also gave evidence that prior to the collision, you usually took the route from the Homemaker Centre, turning left into the South Gippsland Highway and taking the U-turn further down the highway, to return back to your home address.  In particular, your husband confirmed that when you drove, he would discuss with you what was the appropriate route to take.  In particular, he gave this evidence:

“Um she is actually a very nervous driver, even back home in India, she was um driving only in the village area.  She’s not really used to city roads.  Even we started living in Caulfield and then we came here, she was only going to the workplace, only very select areas, which - prior experience with me, I - ah I drive with her um to that place and make sure that she's used to that place and then she started driving in that particular route only so she’s very much um limited to a certain number of places, where she goes.  If she has to go to a new place, she has been Uber and taxiing many times, because she’s not used to the place, so she just tried to avoid that if she's not really familiar to the places.”

(T111, L29 – T112, L11)

55      Your husband also gave evidence that he is doing specialist training four days a week with a company and he also nurses for a couple of days each week.  He confirmed that you were working a less number of days now because you were looking after the child whilst your husband could go to work.

56      When queried as to what would be the situation if you were incarcerated in relation to home arrangements, your husband gave evidence that no family could assist and it would be left to your friends.  In particular, your husband stated he would probably have to give up the traineeship and find a job that suits him between 8 am to 4 pm, something like that, to look after your son.

57      

As the matter now stands, he works as a trainee Monday to Friday from seven in the morning and could be working for anything between seven to 14 hours

a day, depending on what the requirements are.

58      Your husband also described that if you were unable to work, he would definitely have to sell the present house.  That house was bought with a five per cent deposit and he would not be able to pay the mortgage payment, causing him to sell the house, probably at a loss and then find somewhere to live and make alternative arrangements for looking after his son.

59      Your husband also gave evidence that prior to the collision, you were normally a person who was very enthusiastic and were the person mainly involved in talking to other members of the family, both here and overseas.  Since the collision, he describes you have given up talking to people and seem almost distressed and reserved every day.  Furthermore, you have been very concerned about driving on the road again, although you continue to drive over small distances.

60      Your husband gave evidence also about the miscarriage and how you became, according to him, very distressed, particularly after the police interview and the risk that you carry of being imprisoned for a sizeable period.

61      Your husband confirmed that on the advice of your lawyers, Mr Cummins was engaged by you and your husband.

62      Under cross-examination, your husband was asked whether he had any discussion with you as to how the collision occurred.  In particular, the following evidence was given:

“Q:"Did she ever tell you how the collision occurred?"

A:"I, she, um, we , we - she tried to explain things and um, um, and after a few times, we came to know what she was trying to say."

Q:"How long after the collision did you come to understand what she was saying?"

A:"I can’t really say how exactly, but it didn’t take that long."

HIS HONOUR:  "Are you talking about a couple of days or a week or

a month or - - - ?---"

A:"Um, well, less than a month, maybe one or two weeks or even less, because we were – I wasn’t asking her continuously so that it was stressing her too much, so I had be very selective on the times.  Yes."

MS PIEKUSIS:  "Then what did she say happened?"

A:"She - she mentioned that she was planning to get out of the - of the um, parking to the highway and um, she saw a black car there and she was trying, she thought that car was going to make a

U-turn and going back to the south or South Gippsland Highway, so that she can get in the car and wasn’t moving out.  She thought the car was waiting for her to get into because I think she didn’t realise that those cars were waiting."

Q:"Not what you think, just what you told her."

His Honour:  "Tell the court what she said."

A:"Yeah.  She mentioned that the car was waiting.  She felt like the car was waiting there for her to go through."

Q:"To go through the gap, the median gap?---"

A:"Yes.”

(T120, L8 – T21, L3)

The evidence of the consultant clinical forensic psychologist, Jeffrey Cummins

63      The consultant clinical forensic psychologist, Mr Jeffrey Cummins, gave evidence and was cross-examined.  Mr Cummins reported that you were referred to him by your counsel and that your solicitors were BK Lawyers.

64      Mr Cummins interviewed you on the following occasions:

(a)Initially on 13 January 2017, when you were accompanied by your husband.  Mr Cummins initially interviewed you alone, later your husband alone and then briefly you and your husband together;

(b)A follow-up interview on 18 January 2017, when you were accompanied by your husband;

(c)Further, on 10 May 2017, which was brought about after Mr Cummins making inquiry of your barrister as to why you had not returned.

(d)And finally on 10 July 2017, when you were accompanied by your husband.

65      Mr Cummins compiled two reports; one dated 6 February 2017, which is based on the initial two interviews; and one dated 12 July 2017, following the last two interviews.  Both reports were said to be true and correct and were admitted into evidence.  (See exhibit C)

66      

Mr Cummins also informed the court that he had a copy of the police summary as at January 2017 and further, he had been supplied the DVD of the record of interview, which he initially viewed at some time between the interviews of

13 January 2017 and 18 January 2017, and secondly prior to dictating the report dated 12 July 2017.

67      

When asked in evidence-in-chief how you presented at the first interview with Mr Cummins, he described you as being quite tearful and seemed to be in

a state of significant psychological distress.  At that time, you repeatedly raised concerns about how you could be charged with the offence.  That was the predominant aspect of your presentation.  Mr Cummins decided that it would be appropriate to have you complete some personality testing and self-report questionnaires, which in fact you completed during the initial interview. 

68      In particular, you gave the following history to Mr Cummins at the initial two consultations:

“At interview, she stated she had no recollection of the accident of 8 August 2016.  She stated she exited the shopping centre car park where there was a turn left only sign and had formed the intention to turn left onto the South Gippsland Highway and then execute a U-turn further up the highway, in order to drive to her home address.”

(See paragraph 30 of the report, dated 6 February 2017).

69      Later in the same report, Mr Cummins records that you stated:

“At interview, she stated she remains shocked that when interviewed by the police, it was suggested to her she caused the accident because she endeavoured to turn right, rather than left when she exited the Cranbourne Home Shopping Centre onto the South Gippsland Highway.  She said there was no way she would have attempted to turn right, with

a view to making her way through the opening into the centre median strip.  She said she was very familiar with that part of the South Gippsland Highway and was also very familiar with turning left from the shopping centre and then making a U-turn further along the South Gippsland Highway.  She stated that prior to exiting Cranbourne Home Shopping Centre, she repeatedly looked right and believed it was safe for her to exit the driveway and make her way across the lanes so that she was readying herself to make a U-turn further up the highway.  She stated at the time of undertaking this manoeuvre, she was not distracted by any event or any other issues.” 

(See paragraph 35 of the report, dated 6 February 2017)

70      When queried as to why he was surprised that she had not returned after the second interview on 18 January 2017, Mr Cummins stated:

“At the relevant time and in both consultations, on 13 January and again on 18 January, I had encouraged her to go away and think further about her driving behaviour at that time.  And I thought we had an agreement that she would return to my room, maybe within the next two or three weeks, so that I could follow that up further with her.”

71      Mr Cummins gave evidence that when interviewed on 10 May 2017, that is, the third occasion, he noted that your account of the circumstances of the accident was, “much more consistent with her evidence-in-chief” heard by Mr Cummins when you gave evidence during this plea hearing.

72      In his second report, Mr Cummins noted that he had not diagnosed you with any specific clinical diagnosis following the interviews on 13 January 2017 and 18 January 2017, but was, “firmly of the opinion [you were] in a state of shock concerning [your] legal situation.”  He expresses the view that you appeared to struggle psychologically to give a comprehensive explanation of your driving behaviour at the time of the accident.

73      Mr Cummins records that on 10 July 2017:

"Ms Thomas remains of the opinion that when she exited the car park on 8 August2016, she did not know she could not drive straight ahead or slightly to the right, thereby crossing the road through a gap in the median strip.  She said she realised she could not make this driving manoeuvre when she realised a car was rapidly approaching from her right-hand side, whereupon she began turning left into what she thought would have been the third lane, immediately prior to the accident occurring.  In other words, she is of the opinion that she made a genuine and honest mistake.”  

(See paragraph 6 of the second report.)

74      Also at the interview on 10 July 2017, you apparently informed Mr Cummins that you had exited the car park onto the South Gippsland Highway, under circumstances where you were the driver of the vehicle and the sole occupant of the vehicle on only approximately four occasions prior to the collision.  You confirmed that you had essentially been coached by your husband to drive on a limited number of routes in the local area.  Mr Cummins noted that, at the interview on 10 July 2016, both you and your husband were very emotional and again expressed their shock that you could be incarcerated in relation to the charge of dangerous driving causing death.  Mr Cummins was of the opinion that both you and your husband, but particularly you, were having genuine difficulty in comprehending the situation and making plans for how your husband would have to significantly alter his daily commitments, including his current traineeship in cardiac perfusion and his work at Caulfield Hospital, in order to also act as the sole caregiver to your son, if you were incarcerated.  Again, according to Mr Cummins, you are highly ashamed about the possibility of being incarcerated.

75      

In his second report, Mr Cummins expressed the opinion that the most applicable diagnosis is one of “other specified trauma and stressor-related disorder.”  In this respect, he notes that the mental health problem had

a prolonged duration of more than six months, in association with a prolonged duration of multiple stressors, in conjunction with features of traumatisation.  In his opinion, a percentage of patients suffering from a trauma-related disorder, such as an adjustment disorder, an acute stress disorder or a Post-Traumatic Stress Disorder, report recurrent experiences of feeling detached from themselves and/or “emotionally frozen” and this dissociative symptom, depersonalisation, appears to be a significant current feature of your presentation.

76      Mr Cummins noted that you had discontinued receiving mental health treatment from the psychologist, Ms Morkos, and had declined to take further stabilising medication, which he considered is related to your difficulties in developing insight into your current mental health. 

77      Mr Cummins also expressed the opinion that if incarcerated, your mental health would inevitably deteriorate.  In particular, Mr Cummins stated:

“Based upon my assessment of Ms Thomas, it is my opinion that if she were incarcerated, her mental health would inevitably deteriorate.  It is therefore my opinion that if she is incarcerated, the prison authorities should be informed regarding my concerns about her possible decompensation upon incarceration.  In my opinion, it will be significantly more difficult for Ms Thomas to serve a gaol sentence than for someone who does not have a young son and for someone who regards herself as being relatively socially isolated and for someone who is riddled with embarrassment, shame, guilt and remorse concerning the fact her driving precipitated the death of a baby.” 

(See paragraph 12 of report, dated 12 July 2017.)

78      When queried as to whether Mr Cummins had an opinion about the cause of the difference between what you said in relation to the circumstances when first interviewed by him and what you have said in court, Mr Cummins opined:

“Yes, I can.  At interview on 10 May this year, she did explain that she thought she had driven straight forward and I was explaining to her, well it is the police view that the gap in the median strip is in fact not straight forwards and was slightly - was somewhat to her right.  So that to me made more sense, in terms of her account and she also emphasised that when she had initially said to me, she had no recollection of the accident, that what she was referring to was specifically no recollection about the cars colliding.  She knew they had collided, but she had no recollection of that specific event.

(T10, L23 – T11, L3)

79      Ultimately, Mr Cummins stated that you are largely still in a state of psychological denial concerning the circumstances of the collision.  When queried as to a denial of “what” Mr Cummins indicated a denial of the sheer magnitude of her circumstances and the fact that she is at grave risk of being incarcerated.  Throughout the various interviews, there was never an interpreter and indeed, according to Mr Cummins, neither you nor your husband, or indeed he, sought the presence of an interpreter.  During the cross-examination, when queried by the court as to whether you did need an interpreter, he answered:

“Well I don’t believe she does.”

(T18, L10 – 11)

80      In re-examination, Mr Cummins was questioned about his denial and gave the following evidence:

“Well I don’t think the problem for this lady really relates to whether or not she understands English.  In my opinion the problem relates to, are her psychological difficulties and how they are confounding the picture for her.” 

(T28, L10-14)

The evidence of the informant, Detective Mark Patrick

81      The prosecution called the informant, Detective Mark Peter Patrick, who at the time of the collision was a Detective Sergeant at the Major Collision Investigation Unit.  He is the informant in this matter and has dealt with you over the course of the investigation.

82      He gave evidence that he had three phone calls with you prior to the police interview, initially to inform you that he was taking over the investigation from the local police; secondly, to inform you that the baby, Milarniah, had died and that you will be needed to be interviewed; and lastly, to arrange a time for an interview at the Cranbourne Police Station.  He gave evidence that during the course of these telephone calls, he did not have any concern about your comprehension of what was being discussed.

83      

He confirmed that a record of interview was held on 3 October 2016, in company with Detective Senior Constable Fletcher Pearson.  He had a discussion with you and your husband prior to the interview, where you informed him that they had attended Legal Aid, but did not, at that time, have representation.  The informant gave evidence that he went about organising a phone call for

a solicitor to speak to you and ultimately that was arranged with a solicitor referred to as “Dominic”.  The informant stated that he had no concern at all about your understanding of the questions being asked of you.  Furthermore, he gave evidence that at no stage, either before the interview or during the interview, did you indicate that you had any difficulty understanding him. 

84      The informant also gave evidence that after the interview, you did not indicate at all that you had any difficulty in understanding him and that since the time of the interview, there has been no suggestion or concerns raised about what you said at the record of interview because of your lack of English.  The informant stated he only became aware of that issue in court now. 

85      The informant was queried as to when one is stationary at the intersection intending to turn left into the South Gippsland Highway, how far can one view oncoming traffic from the right hand side?  In this respect, the informant was reminded that you had given evidence that the period of road over which you could see was about 100 metres, whereas the informant gave evidence that when looking south to the intersection of Thompson Road, there is 200 metres of straight, flat road.

86      Under cross-examination, the informant stated that it was a long interview, during which questions were asked and responses received that were acceptable to his questioning.  He recalls that one question was asked to be repeated and that came about because of the poor sentence structure by the informant.  The informant gave evidence that he did inform you prior to the interview, that the maximum sentence for this offence was ten years’ imprisonment and he did that because you had to understand the seriousness of the matter.  When it was suggested to the informant you became even more distressed than she already was, he answered:

“Q:    "Would you agree that after you said that to her, she became even more distressed than she already was?---"

A:     "Well I don't know whether she was actually - on attending the police station she was.  I don't believe she was distressed.  She was uncomfortable in - in the environment of the police station, which most people would be, but she didn't appear distressed, but on telling her that, yes, then I think it, it, um, it's hit home on - to her that it was a serious investigation."

Q:    "Would you agree with Mr Cummins, that throughout that time that you were with her, that you might observe that she was in a state of shock about all this?---"

A:     "No."

(T46, L30 – T47, L10)

Resolution of the contested issue

87      At the end of the evidence relevant to the contested plea, each party submitted further documentation in relation to the resolution of that issue.  The prosecution tendered a document headed, “Submissions Regarding Finding of Fact”, dated 12 July 2017, (Exhibit 9) and counsel for the accused tendered a document headed, “Accused’s Further Submission on Culpability”, dated 11 July 2017, (see Exhibit F).  After due consideration of the evidence and the submissions referred to, I informed the parties that I was satisfied beyond reasonable doubt that you were acting in wanton disregard of the law leading up to and immediately prior to the collision and, in particular, I did not accept that you honestly but mistakenly, believed that you were permitted to perform such actions.

In this respect, the following circumstances are relied on.  The situation facing your husband in pursuing his training course of cardiac perfusion, the obligation to care for your young child without any family support and the financial position of the family, which will be diminished because of your lost income (if incarcerated), causing a real risk that the recently purchased family home on a substantial mortgage will have to be sold. 

(e)In his report dated 12 July 2017, the psychologist, Mr Cummins, identifies you to be suffering from some degree of psychological disorder.  In particular, Mr Cummins opines that:

(i)If you were incarcerated, your mental health would inevitably deteriorate (and thus authorities should be informed regarding his concerns about possible mental decompensation upon incarceration); and

(ii)That it will be significantly more difficult for you to serve a gaol sentence than for anyone else who does not have your psychological issues and someone who is “riddled with embarrassment, shame, guilt and remorse concerning the fact that [your] driving precipitated the death of a baby”.

Your counsel relies on Principles 5 and 6 set out in the R v Verdins & Ors et al (2007) 16 VR 269. Principles 5 and 6 read:

“5. The presence of the condition at the date of sentencing, or its foreseeable recurrence, may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having

a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”

(iii)      Your counsel also referred to Principles 2 and 4, which read:

“2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

…

4.   "Whether specific deterrence should be moderated or eliminated as a sentencing consideration, likewise depends upon the nature and severity of the symptoms of the condition, as exhibited by the offender and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.” (footnote omitted)

(f)It was submitted that the prospect of deportation is a factor which may bear on the impact which a sentence of imprisonment will have on you in two possible ways:

(i)During the currency of any incarceration, because it makes the imprisonment more burdensome on the offender than it otherwise would have been due to the offender serving imprisonment in

a state of fear or concern about being deported upon expiry of the sentence.  Reference was made to Guden v R (2010) VR 288 at [27]; Darcie v R [2012] VSCA 11 at [29]-[46]); and secondly

(ii)Upon release, because it amounts to an additional “punishing consequence” of the offending, such as where the offender loses the opportunity of settling in Australia.  Again, reference is made to  Guden v R (op cit, citing R v Kwon [2005] NSWCCA 456 at [14]).

The response of counsel for the prosecution

106     Counsel for the prosecution accepted that you entered a plea of guilty at an early time, that clearly you have no prior convictions for any offending and in particular, driving and that you have a good work history.

107     However, counsel for the prosecution does not accept that you have shown “deep remorse”, as submitted by your counsel.  Counsel for the prosecution generally accepted that you have shown some degree of remorse in relation to Ms Allen suffering the loss of her child, but submits that the two letters of apology, which I am informed were not well received by Ms Allen, were more focused on your miscarriage and distress, rather than the situation of Ms Allen.  Furthermore, counsel for the prosecution submits that you have not demonstrated overly much remorse about the circumstances of the accident, in that at no time have you admitted, as I have found, that you knowingly went across the intersection illegally.  In this sense, it is submitted your various versions of events were no more than trying to minimise your culpability.

108     In relation to your counsel’s submission in referring to “exceptional circumstances”, counsel for the prosecution submits that the circumstances, as enunciated by your counsel, do not amount to “exceptional circumstances” within the law.  In this respect, reference was also made to Markovic v R; Pantelic v R (op cit) and in particular paragraphs [6]-[7], which state:

“[6] The case law reveals that the 'exceptional circumstances' test was developed in response to several considerations, as follows. First, it is almost inevitable that imprisoning a person will have an adverse effect on the person’s dependants. As the New South Wales Court of Criminal Appeal (Gleeson CJ) said in R v Edwards:

"There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship and sometimes extreme hardship to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of

full-time imprisonment.

[7] Secondly, the primary function of the sentencing court is to impose a sentence commensurate with the gravity of the crime. Thirdly, to treat family hardship as the basis for the exercise of leniency produces the paradoxical result that a guilty person benefits in order that innocent persons suffer less. Fourthly, to treat an offender who has needy dependants more leniently than one equally culpable

co-offender who has none would ‘defeat the appearance of justice’ and be ‘patently unjust’. Hence it is only in the exceptional case, where the plea for mercy is seen as irresistible, that family hardship can be taken into account.” (footnotes omitted)

109     It was submitted on behalf of the prosecution that on any view of the circumstances following incarceration, your husband would be able to work as a normal nurse and support your child.  It should be added it is not clear how these circumstances would evolve, particularly so with the evidence that the other Ms Thomas (your friend), will be moving into the house during her pregnancy.

110     

In response to the submissions based on Verdins principles, counsel for the prosecution submits, in part, that a moderation of general deterrence will not ordinarily be required where the mental condition arises after the offence as

a reaction to the discovery of the offender’s crime or the prospect of a lengthy term of imprisonment and she refers to DPP v O’Neill [2015] VSCA 325. In relation to Principles 5 and 6, the prosecution submit that such was open to be accepted by the court, but it is a matter of “how much weight is to be given” to such principles. Counsel did note that you seemingly voluntarily ceased mental health treatment with Ms Morkos and have declined to take mood-stabilising medication.

111     

In relation to the deportation issue, counsel for the prosecution referred to the recent cases of Konamaoa v R [2016] VSCA 48; Da Costa Jnr v R [2016] VSCA 49; Schneider v R [2016] VSCA 76 and Nguyen v R [2016] VSCA 198, all of which post-dated Guden v R (op cit).  In particular, the Migration Act 1958 changed in 2014 in that, after that date, a person holding a visa such as the visa held by you, will have that visa revoked if, amongst other things, sentenced to a term of imprisonment of12 months or more. There are remedies open to such people to overturn such revocation in the legislation. At the time that Guden v R (op cit) was decided, the prospect of deportation was a discretionary decision made by the Minister of Immigration.  Under the present regime, it is

a matter of speculation as to what a responsible Minister may or may not do when an application for revocation is made following any automatic cancellation decision (Nguyen v R (op cit) at [52]).

112     I refer to Konamala (op cit) at paragraphs [34]-[37], wherein the Court of Appeal, consisting of Maxwell P, Redlich and Priest JJA stated:

“Self-evidently, when the prospect of deportation in a given case will make the burden of imprisonment more onerous, will depend on the prisoner’s personal circumstances. It is an unhappy fact that many offenders come to this country for the sole purpose of criminal activity. They have no interest in making Australia their home. For offenders such as those, deportation to their country of origin may impose no burden upon them at all. Indeed, deportation might be something of a blessing, particularly where language or culture have caused them to be isolated. On the other hand, the prospect of deportation might be a severe additional punishment for an offender who had aspired to make Australia his or her home, particularly if the offender has a spouse, children or other family resident in the country, or has other ties to the Australian community.

In Guden, it was recognised that - subject always to the state of the evidence before the sentencing judge - the prospect of deportation is

a proper matter for consideration in determining an appropriate sentence. Despite the changes to the Act, that must remain so. Without evidence bearing on the issue, although it may be said with some confidence that the visa of an offender in the applicant’s position will be cancelled, it cannot be assumed that the Minister will not revoke the original decision to do so.

For the reasons given in Lima Da Costa Jnr v R, the amendments do not require any change to the approach in sentencing. What was said in Guden still applies. It is apparent that the judge directed herself correctly in considering the significance of the risk of deportation.

As already mentioned, the judge said that she considered that ‘there is the possibility that [the applicant] may lose the opportunity of settling permanently in Australia’, and that there ‘is a degree of risk that [his] concern and fear of being deported upon serving [his] sentence will make [his] imprisonment more burdensome than it would have otherwise’. The sentencing judge said specifically that she had ‘taken these factors into account’.” (footnotes omitted)

113     Counsel for the prosecution ultimately submitted that the authorities stand for the proposition that, subject to the state of the evidence, an offender’s period of imprisonment would be more burdensome than for others in similar circumstances, due to the risk of deportation, which is a proper matter for consideration in determining an appropriate sentence.

Conclusion

114     

You have pleaded guilty to the offence that you, on 8 August 2016, by driving

a motor vehicle in a manner that was dangerous to the public, caused the death of Milarniah Oscuro.  Contrary to your assertion that the dangerous driving was brought about by an honest, reasonable mistake, I have found that you were aware of the circumstances of the intersection and knowingly disobeyed various traffic signs, in order to move into the intersection towards the median-strip gap.  The consequences of your driving has caused the death of a young baby girl.  Such offending is serious.

115     

I refer to various decisions setting out some of the relevant considerations in determining an appropriate sentence.  I initially refer to the decision of DPP v Neethling [2009] VSCA 116, wherein the Court of Appeal, consisting of

Maxwell P, Vincent JA and Hargrave AJA, state, commencing at paragraph 27:

“[27] The New South Wales Court of Criminal Appeal has, on two separate occasions, found it necessary to publish a guideline judgment on sentencing for dangerous driving causing death. In the first of these cases, R v Jurisic [citation omitted] (Jurisic), the Court of Criminal Appeal cited with approval what had been said by Hunt CJ at CL in R v Musumeci [citation omitted] (Musumeci), a judgment which Spigelman CJ described as ‘in many respects… a guideline judgment, although not called such.’

[28] In Musumeci, Hunt CJ said:

This court has held that a number of considerations which had to be taken into account when sentencing for culpable driving, must also be taken into account when sentencing for this new offence of dangerous driving [causing death]:

1. The legislature has always placed a premium upon human life and the taking of a human life by driving a motor vehicle dangerously, is to be regarded as a crime of some seriousness.

2. The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life.

3. Such is the need for public deterrence in this type of case.  The youth of any offender is given less weight as a subjective matter than in other types of cases.

4. The courts must tread warily in showing leniency for good character in such cases.

5.…

6.…

7.The statement made by this court in relation to the previous offence of culpable driving - that it cannot be said that a full-time custodial sentence is required in every case - continues to apply to the new offence of dangerous driving [causing death].  As that offence is committed, even though the offender has had no more than a momentary or casual lapse of attention, there must always be room for a non-custodial sentence, although that does not mean that a non-custodial sentence is ordinarily appropriate in such a case, but the case in which a sentence other than one involving full-time custody is appropriate, must be rarer for this new offence.’

[29]

In our respectful view, these propositions apply with equal force to the offence with which we are presently concerned.  Importantly, as the New South Wales Court of Criminal Appeal said in Jurisic,

a non-custodial sentence for this offence should be seen as exceptional.

[30] The guideline judgment in Jurisic was reviewed and revised by the New South Wales Court of Criminal Appeal in R v Whyte [citation omitted) (Whyte). The decision in Whyte was followed by this court in DPP v Oates [citation omitted] (Oates). In that case, Neave JA, with whom Warren CJ agreed, enunciated the following principles, which reflect what was said in Musumeci, Jurisic and Whyte:

1. General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.

2. A person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment.

3. The sentence which is imposed must take account of variations in the moral culpability of the person responsible.

4. A custodial sentence will usually be appropriate for this offence, except in cases where the offender’s level of moral culpability is low.

[31]

The New South Wales Criminal Court of Appeal has identified

a number of factors which may aggravate the seriousness of a particular offence of dangerous driving causing death. The list of aggravating features, first propounded in Jurisic and then revised in Whyte, is as follows:

i.       Extent and nature of the injuries inflicted.

ii.      Number of people put at risk.

iii.     Degree of speed.

iv.     Degree of intoxication or of substance abuse.

v.      Erratic or aggressive driving.

vi.     Competitive driving or showing off.

vii.    Length of the journey during which others were exposed to risk.

viii.    Ignoring of warnings.

ix.     Escaping police pursuit.

x.      Degree of sleep deprivation.

xi.     Failing to stop.

[32] Consistently with the decision of this court in Oates, we proceed on the basis that the propositions set out in paras [28]–[31]," that is what

I have just referred to, "above govern the approach to sentencing in Victoria for the offence of dangerous driving causing death.”

116     The court also again referred to the Court of Appeal decision of DPP v Oates [2007] VSCA 59, wherein reference was made to the New South Wales Court of Criminal Appeal in Whyte (2002) in which it was stated:

"…in determining the appropriateness of full-time custody and the length thereof, the sentencing judge must give close attention to the degree of  moral culpability involved. This is a critical component of the objective circumstances of the offence. (See R v Whyte (2002) 55 NSWLR 252 at [205])

117     Also, earlier, in Musumeci, Hunt CJ had made clear that a sentencing court must give some consideration to the driver’s state of mind, as well as to the “objective gravity of the dangerous manner in which he or she drove”.

118     In the later decision of Stephens v R [2016] VSCA 121, the Victorian Court of Appeal, consisting of Redlich, Santamaria and Beach JJA, stressed that factors identified in previous judgments as being relevant to an assessment of the seriousness of this kind of offending, does not constitute a checklist, nor are they intended to be exhaustive (see Stephens at [25]).

119     Furthermore, the court stated that moral culpability in respect of criminal conduct, does not fall to be assessed by identifying aggravating features that could have been present and then asserting that the case under consideration cannot be regarded as serious or very serious because of the absence of some of those factors.

120     Both the dangerousness and moral culpability fall to be assessed by reference to all of the conduct in the circumstances of the specific case, including the circumstances of the offender [at [26]].  In particular, the court stated in Stephens (op cit) at paragraph 27 that:

“Offending by a person who has knowledge of the risks associated with particular driving, will ordinarily be adjudged more blameworthy than offending by one who is without that knowledge. The degree to which particular consequences of the offender’s acts were, or should have been, foreseen by him or her will inform the question of moral culpability.” (Footnotes omitted)

121     In Stephens, the court also stated that there was a need for a gradual increase in sentences to be imposed in cases of dangerous driving causing death which fall within, or above, the mid-category of seriousness.

122     I also refer to the relatively recent decision of Sharma v R [2017] VSCA 63, wherein Santamaria JA, in determining an application for leave to appeal against sentence in relation to two charges of dangerous driving causing death, found that the sentencing judge did not wrongly evaluate the seriousness of the offending when he recognised that the moral culpability of the applicant in that matter was low, but the offending was of “high objective gravity”, given that he had been driving on the wrong side of the road, which was extremely dangerous.

123     

Also in that case, Santamaria JA annexed a table of cases decided between 2015- 2016 from the County Court and the Court of Appeal for the offence of dangerous driving causing death.  Such table sets out, amongst other things, whether there was a plea of guilty, relevant factors surrounding the offence and sentences.  In particular, the sentences were divided between where

a community corrections order only was made, where an order was made for imprisonment and a community corrections order and where an order was made for imprisonment only.

124     

Your counsel submitted that notwithstanding the finding made by the court on the contested plea, your moral culpability remains at the lower end of the spectrum.  In particular, it was highlighted that your dangerous driving did not involve drugs, alcohol, or excessive speed.  In respect to the latter issue of speed, I decline to make any finding in respect to your speed, as there was conflicting evidence as to what speed you may have been travelling at when crossing the highway to the median strip.  Furthermore, although it was suggested that the purpose of your travelling across the highway to the median strip was to effectively take a “short cut” home by avoiding turning left in the highway travelling for some distance before committing a U-turn to travel back up the highway to home, such assertion lies in the realms of speculation and

I make no such finding. 

125     However, as is made clear in Stephens (op cit), there is no particular checklist which determines the extent of the moral culpability or the objective gravity, in terms of dangerousness.

126     In paragraph 25 of these reasons, your counsel set out various reasons why your driving was dangerous (and thus constituting the offence), but ultimately conceded, (appropriately in my view), the objective seriousness of the dangerous act increases when one knows it is wrong to perform such act, rather than believing it is permitted.

127     Counsel for the prosecution submitted that bearing in mind the finding that you made an unlawful turn done with knowledge that it is an unlawful turn, creates a “high objective gravity in terms of dangerousness”.  Given all the circumstances, I have come to the view that I would characterise the dangerousness of your driving as reasonably high objective gravity, in terms of dangerousness.

128     Counsel for the prosecution also submit that your moral culpability in relation to the offending must be considered somewhere between mid to high, bearing in mind all of the circumstances in the matter.

129     

I do consider that bearing in mind the findings that the physical layout of the intersection was “unambiguous”, the various traffic signs indicating that you must turn left, your pre-existing knowledge of the intersection which had involved you turning left and the apparent instructions given by your husband how to negotiate the turn, I have come to the view that you have at least

mid-level moral culpability, given your actions which gave rise to the offending.  Given the matters to which I have just referred, I do not accept that in any way, could this offence be said to have been brought about by momentary inattention or distraction.

130     Consistent with the authorities, I consider that general deterrence and denunciation are particularly important factors in determining the appropriate sentence.  I also consider specific deterrence to be relevant, although not to the same degree, given your unlikelihood of you repeating such offending, given the impact on you brought about by the death of the baby.

131     

In mitigation of any sentence, I do take into account your early plea of guilty in relation to the offence.  A plea of guilty, at the very least, has utilitarian effect in saving the time and cost of a trial (see Phillips v R [2012] VSCA 140, in particular, at paragraph [36]) and, in the circumstances of this matter, saving

Ms Allen being required to give evidence at a committal and trial.

132     

It is always a question for the sentencing judge whether remorse, a willingness to facilitate the course of justice and acceptance of responsibility, are to be inferred from a plea of guilty (again, see Phillips v R (op cit) at paragraph [96]).  In the circumstances of this matter, I have no doubt that you have suffered remorse in relation to you appreciating that your driving caused the death of Milarniah Oscuro.  This is made manifest by your comments to others (and in particular the psychologist Mr Cummins), the letters of apology you sent to

Ms Allen, the onset of your psychological conditions (at least in part), and what you perceive to be the reasons for your miscarriage a number of months after the offending.

133     However, bearing in mind your stated position that you made an honest and reasonable mistake in relation to the driving which led to the collision, (which I ultimately did not accept), it cannot be said that you have any remorse for ignoring traffic signs, your past knowledge of the layout, your past experience when turning at that intersection and indeed the physical layout of the intersection.  In other words, you have not accepted the full extent of your culpability in relation to the collision.

134     I also accept that you have no convictions for any type of offending prior to this subject offending and indeed, from the tenor of the various references to which I was referred, you have been hitherto, a person of good character and involved in the community.  I do note that in Musumeci, referred to in Neethling (op cit), it is stated that the courts “must tread warily in showing leniency for good character in such cases”.

135     Although I accept that in the event you are incarcerated for a period of time, such event will cause hardship to your husband, both in terms of dealing with his ongoing training in cardiac perfusion and meeting his responsibilities for the care of your son and maintaining the house, which has recently been purchased.  Ultimately, I am not persuaded that these circumstances are “exceptional circumstances” within the meaning of Markovic (op cit).

136     

Furthermore, it is unclear precisely what will occur if you are incarcerated for any period as to whether arrangements will be made in some form or another, perhaps maybe involving your friend, Ms Thomas, to permit your husband to carry on with the course.  It is, on the evidence before me, a matter involving some degree of speculation, but I freely admit there is the potential for hardship - but as I say not rising to “exceptional circumstances”.  However, I do accept that in any event, if incarcerated, these matters will weigh heavily on you, and

I take that into account.

137     

I also accept that, based on the evidence of Mr Cummins, the so-called Principles 5 and 6 set out in Verdins (op cit) are enlivened and that there is

a risk that your psychological condition will deteriorate in prison, (unless appropriate measures are taken by the authorities and, furthermore, you will find such incarceration harder than someone who does not have such psychological difficulties.  However, I do accept the submission of those acting for the prosecution, that a moderation of general deterrence would not ordinarily be required where the mental condition arises after the offence as a reaction to the discovery of the offender’s crime or the prospect of a lengthy term of imprisonment.

138     I also take into account that the risk of deportation will weigh particularly heavily on you, bearing in mind that I do accept that you and your husband have come to Australia to settle and raise your child and any future children.  I was informed by your counsel that, in the event you were deported, your husband intends to stay here and pursue his ongoing profession in cardiac perfusion - although there will be some doubt where your son would be situated, bearing in mind that apparently both of you would like him to be raised in Australia, with its added advantages.

139     I take all these matters into account.

140     Your counsel has submitted that although he accepts that a term of imprisonment would be open in the circumstances of this matter, but urges the court to order a stern community corrections order with no custodial element.  Counsel for the prosecution submitted that such a sentence would not be within range, given the objective gravity of the driving and the extent of your moral culpability.  In this respect, counsel for the prosecution submitted that the only appropriate sentence is one of immediate incarceration.

141     I have come to the view that, bearing in mind my findings in relation to the circumstances surrounding this matter, which inform as to the objective seriousness of your driving and your moral culpability, the only sentence can be one involving immediate incarceration. 

142     Please be upstanding:

(a)In relation to the charge of dangerous driving causing death, you will be convicted and sentenced to a period of two-and-a-half years' imprisonment, with a non-parole period of 15 months;

(b)Furthermore, pursuant to s.89(1) of the Sentencing Act 1991, your licence is cancelled and you are disqualified from obtaining a licence for a period of two years, commencing from 1 December 2018;

(c)I direct that the relevant authorities assess you for any care needed for any psychological conditions that you may be suffering during your period of incarceration.

143 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that save for your plea of guilty, I would have sentenced you to four years’ imprisonment.

144     Yes.  Any - - -

145     MS PIEKUSIS:  There is one final application, Your Honour.  The 464ZF forensic sample application. 

146     HIS HONOUR:  What do you say about that, Doctor?

147     DR ALEXANDER:  Your Honour, the prospect of future - commission of future crimes is low, but I - it's a matter for the court. 

148     HIS HONOUR:  I have got a discretion on that, haven't I?

149     MS PIEKUSIS:  Yes.

150     DR ALEXANDER:  Yes.

151     HIS HONOUR:  Yes, I refuse that application. 

152     MS PIEKUSIS:  As Your Honour pleases.

153     DR ALEXANDER:  May it please the court. 

154     HIS HONOUR:  Yes.  Dr, I will allow the husband of the accused to approach her now, just for a short period, but I'll remain on the Bench. 

155     DR ALEXANDER:  We are grateful, Your Honour.

156     HIS HONOUR:  As I understand it, I don't think they are allowed to approach people down in the cells, but - - -

157     DR ALEXANDER:  That is correct. 

158     HIS HONOUR:  Yes, well I will allow a short time. 

159     Yes, I think it might be better if we bring this to an end now, thank you. 

160     Yes, anything else to be raised with me? 

161     MS PIEKUSIS:  No, Your Honour.

162     DR ALEXANDER:  No, thank you, Your Honour. 

163     HIS HONOUR:  Yes, this court will be adjourned until 2 o'clock this afternoon. 

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