Director of Public Prosecutions v Toulson

[2017] VCC 1819

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01110

DIRECTOR OF PUBLIC PROSECUTIONS

v

EMILY TOULSON

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2017 and 24 November 2017
DATE OF SENTENCE:	5 December 2017
CASE MAY BE CITED AS:	DPP v Toulson
MEDIUM NEUTRAL CITATION:	[2017] VCC 1819

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Culpable driving – five charges of negligently causing serious injury – plea of guilty – traumatic brain injury as a result of the offending – whether causal or realistic connection between post natal depression and offending – denunciation – general deterrence – impact of acquired brain injury on sentence – extra curial punishment – remorse   

Legislation Cited:                   Sentencing Act 1991 (Vic)

Cases Cited:Khoja v The Queen [2014] VSCA; R v Kennedy [2006] VSCA 77; DPP v Chambers [2006] VSCA 189; R v Verdinsand Ors [2007] 16 VR 269; DPP v O’Neill [2015] VSCA 325; DPP v Harman [2017] VSCA 169; Altun v The Queen [2014] VSCA 46; Fuller v the Queen [2013] VSCA 186; R v Jurisic [1998] 45 NSWLR 209; DPP v Barry [2017] VSCA 344; DPP v Rivette [2017] VSCA 150

Sentence:Total Effective Sentence of eight years and eight months imprisonment. Non-parole period of 5 years imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Piggott	Office of Public Prosecutions
For the Accused	Mr C. Thomson	Tony Hannebery Lawyers

Pages 1 - 18

 

 

HIS HONOUR:

Introduction

1Emily Toulson, at about 6.15 pm on 6 October 2015, you drove a supercharged V6 Commodore motor vehicle along Hereford Road, Mount Evelyn, at a speed well in excess of the speed limit.  At the time you had a blood alcohol concentration of 0.111 per cent.  On taking a bend in the road you lost control of the car, sideswiped two cars on the opposite side of the road, and then collided with a concrete power pole.

2There were eight passengers in the car.  One of them, Amber Beard, who was 16 years of age at the time, lost her life.  Five others were seriously injured and you also were seriously injured.

3In consequence, you were charged with one offence of culpable driving and five charges of negligently causing serious injury.  Those offences are punishable by a maximum term of 20 years' imprisonment in respect of culpable driving, and a maximum of ten years' imprisonment in respect of negligently causing serious injury.

4You have pleaded guilty to those offences and must now be sentenced.

Summary of circumstances of offending

5On the plea the prosecutor, Ms Piggott, tendered the plea opening Exhibit A, which detailed the circumstances of your offending.  I will annexe that opening to these reasons.

6In summary, you were 22 years of age at the time of the collision.  You held a probationary licence only.  The car you were driving was unregistered, in that it was subject to a permit which allowed it to be driven for the purposes of obtaining repairs.  On this day you were using the car outside the conditions of that permit, it was therefore unregistered.

7At around about lunch time on 6 October 2015, you drove from Lilydale to Montrose Park with Melissa Fry, Andrea Mullins and Alex Nelson.  Mr Nelson had purchased a six pack of Carlton Draught and a 10 pack of Jack Daniels and cola.  You purchased some take away food on the way.  At Montrose Park you met up with Alex Van Mourik and Jake Chubb.  After consuming the alcohol and food, you and the others decided to go to Lilydale Lake for a swim because it was a hot day.

8Once at the lake you and your friends continued drinking Mr Nelson’s Jack Daniels cans.  When the alcohol ran out you drove with him and Ms Fry into Lilydale where Mr Nelson purchased 24 more Jack Daniels cans. In Lilydale you also met Kiara Douglas, Chris Landriat, Amber Beard and Ashley
Gaskell-Beard.  You all then went back to the lake.

9After some time, the group you were part of was observed to become loud and offensive.

10Alex Nelson described you in particular as being "hysterically tipsy". Mr Van Mourik told police you were "half cut".  Ashley Gaskell-Beard described you as looking "pretty pissed".

11Your boyfriend at the time, Warren Lane, arrived at the lake during the afternoon and encouraged you to stop drinking.  He confiscated your car keys and gave them to Mr Nelson, instructing him not to give them to you.  Mr Lane then left with Jake Chubb.

12Later you asked Mr Nelson to give you your keys; you told him it was your car and your keys and you wanted them back.  He gave the keys back to you.

13Shortly afterwards, at what must have been just after 6 pm, you told the group at the lake that they were going back to your place. Eight people then got into your car and you commenced driving towards your home in Mt Evelyn.

14Ashley Gaskell-Beard sat in the front passenger seat with his sister,
Amber Beard sitting on his knee.  Christopher Landriat was in the rear passenger side seat, Alex Van Mourik was in the rear driver side seat and
Kiara Douglas was seated in the middle.  Melissa Fry was seated on
Chris Landriat’s lap and Alex Nelson was seated on Mr Van Mourik’s knee. Andrea Mullins was sitting on the centre console facing towards the back of the car.  Only you and Mr Van Mourik had put seatbelts on.

Manner of Driving

15As you drove out of the Lilydale Lake car park you accelerated quickly enough to cause the rear wheels to spin.  You then drove erratically and dangerously by speeding, tailgating and overtaking cars when it was unsafe to do so.  Two of your passengers told you to slow down but you ignored their requests.

16The collision occurred on Hereford Road between Adams Lane and
Dawn Street.  At the point where there is a left hand bend in the roadway there was an advisory speed sign of 50 kph.  The speed limit was 60 kph. A police collision reconstruction expert concluded that you negotiated the bend at too great a speed, the vehicle slipped sideways and you lost control; at that time you were travelling at a minimum speed of 100 kph.

17Your vehicle travelled on to the incorrect side of the road.  Craig Atkin, who was driving a silver Daewoo motor car in the opposite direction, saw your vehicle coming on to his side of the road.  He swerved to avoid your car but you collided with the back driver’s side causing it to spin around 180 degrees before coming to rest on the gutter and nature strip.

18Scott Fergus was driving his Nissan Navara Utility behind Mr Atkin travelling in the same direction.  He applied his brakes and moved his car as far as he could to the left side of the road to avoid a collision, but your car nonetheless clipped the rear driver’s side guard on his car.

19Although your car moved back towards its correct lane, you once more over-corrected the steering, causing the car to again slip sideways.  The expert concluded that your car was travelling at a minimum of 82 kph at that time.  It then mounted the nature strip and collided, passenger door first, into the concrete power pole.  At that point the car was travelling at a speed of at least 70 kph.

20Expert evidence from a forensic physician established that with a blood alcohol concentration of 0.111 per cent there would have been a significant effect on your driving skills, and you would have been unable to maintain proper control of your motor vehicle.

21I will now turn to the impact of this offending.

22Amber Beard, who was aged 16 years old at the time suffered severe head and chest injuries in the collision, and died at the scene. She was sitting on her brother’s knee on the front passenger seat and not wearing a seat belt at the time of the collision.

23Ashley Gaskell-Beard, aged 26, was seated in the front passenger seat with his sister on his knee.  He was not wearing a seat belt.  Mr Gaskell-Beard suffered serious injuries and was transported to the Alfred Hospital via air ambulance where he remained in intensive care until 16 October 2015.  His injuries included an unstable pelvic facture, lacerated spleen and liver, facial fractures, bi-lateral orbital roof fractures, collapsed lungs, a fractured right collar bone, and multiple rib fractures.  He was transferred to the Victorian Rehabilitation Centre on the 22 October 2015, and was still in a wheel chair a month later.

24Christopher Landriat, aged 22, was seated in the back seat directly behind the front passenger seat. He was not wearing a seat belt. Mr Landriat suffered serious injuries and was transported to the Alfred Hospital by ambulance. 
Mr Landriat sustained injuries that included fractures to both his right and left femurs, fractures to his hip, fractured ribs and a punctured lung and extensive lacerations to his left foot.  He was transferred to the Donvale Rehabilitation Hospital on 17 October 2015 where he remained until 11 November 2015.  He then continued his rehabilitation as an outpatient.

25Melissa Fry, aged 23, was lying across the back seat passenger’s seat and was unrestrained. Ms Fry suffered serious injuries and was transported to
Royal Melbourne Hospital by ambulance. She sustained injuries which included multiple pelvic factures, a sacral fracture and inpatient admission was complicated by supra ventricular tachycardia which self-reverted to sinus rhythm.  Acute blood loss anaemia was treated with a blood transfusion and she remained in hospital for six days.  She was then admitted as an inpatient to the Epworth Rehabilitation Hospital for four weeks to learn to walk again. She was then discharged home to continue her rehabilitation as an outpatient.

26Andrea Mullins, aged 26, was lying across the back seat passenger seat and was unrestrained.  Ms Mullins suffered serious injuries and was transported to Royal Melbourne Hospital by ambulance. She sustained numerous fractures to her spine and pelvis and a fracture through her right femoral head.  She remained in hospital for about a week and was then transferred to the
Epworth Rehabilitation Hospital for four weeks. She then continued her rehabilitation as an outpatient.          

27Alex Nelson, aged 22, was seated on the knee of the rear seat passenger,
Alex Van Mourik, and was not wearing a seat belt.  Mr Nelson was transported to Maroondah Hospital, and later transferred to the Royal Melbourne Hospital, due to the seriousness of his injuries.  Mr Nelson suffered a left fifth metacarpal fracture, a right fourth metacarpal fracture, fractured knee cap, bleeding into the joint spaces and contusions on both his lungs.  He was in hospital for about two weeks and was then transferred to the South Eastern Private Hospital for rehabilitation for about four weeks.  He then moved in with his sister so he could continue with his rehabilitation.

28Alex Van Mourik and Kiara Douglas only suffered relatively minor injuries as a result of the collision.

29You yourself suffered serious injuries including a serious brain injury. I will return to the significance of those injuries shortly.

Victim Impact Statements

30Amber Beard’s mother, Lisa Beard provided a victim impact statement.  It simply and eloquently describes the profound effect of this offending. She states as follows:

"We didn’t have much, but what we had was each other. We were happy.  Amber had such a passion for life, loved and adored her family and friends.  All that changed on 6 October 2015 when my baby didn’t come home.  Life without Amber has taken its toll on all of us.  I am never going to see my baby grow up, get married, have children.  I can’t hug her and kiss her and tell her I love her, only in my thoughts and memories.  There is no other way I can explain how I feel, as I said, you can’t put emotions onto paper or into words.  I feel like I can’t get over the fact that I’ve lost my daughter".

31Amanda Beard’s grandmother, Madeline Williams who had been Amber’s carer for some time, also provided a moving victim impact statement.  Ms Williams describes the effect of Amber’s death on the family as horrendous.  She states that, "Amber has left us all broken in many ways but the love she shared and the people she touched has given (us the) fondest memories which will remain forever in our hearts".

32Kiara Douglas was a back seat passenger at the time of the collision.  Fortunately, she suffered little physical injury, but Ms Douglas provided a victim impact statement in which she sets out the emotional toll these events have had.  She describes the day on which she lost her close friend, Amber, as the
"hardest thing" she has ever had to live with.

33These events have changed her life, as they have the lives of so many others.

34Erin Schofield was the mother of Ashley Gaskell-Beard’s daughter.  In her victim impact statement she documents the devastation felt by the whole Beard family in losing Amber, and throughout Ashley’s rehabilitation.  She says, "All this is just the tip of the iceberg for the painful and devastating effects that this event has had on so many people".

35Although no other victim impact statements were provided, it is manifestly apparent that the impact of your offending has been utterly devastating.  As
Ms Schofield indicated, its catastrophic effects will be felt by numerous people for many years to come.

Objective Seriousness

36It is difficult to overstate the seriousness of your offending. It was conceded by Mr Thompson who appeared on your behalf that this was a serious example of this serious offence. In my view that was an appropriate concession.  The combination of the following factors underline how serious this offending was.

37You were grossly affected by alcohol.  You had been told not to drive.  Your car keys had been taken from you but you demanded and obtained them back.   You then drove dangerously and at excessive speed.  You did so with a large number of people in the car, many of whom were unrestrained.  You ignored requests to slow down. You seriously endangered many other road users.  Amber Beard lost her life.  Five of your passengers were very seriously injured.

38Before dealing with the submissions as to sentence, I need to set out something of your personal circumstances.

Personal Circumstances

39You were born on 18 April 1993.  You were 22 years of age at the time of these offences and are now 24.  You have three children now aged five, three and two. Although your children currently live with their grandparents under the supervision of the Department of Health and Human Services, you have frequent contact with them.

40On the plea, your mother Tracy Port, gave evidence and detailed your upbringing.  You grew up in housing commission homes in and around the Healesville area.  Your mother separated from your father when you were just 18 months.  Your father had experienced mental health problems and you were subjected to some traumatising incidents as a child.

41For example, when you were 11, it was said that you were abducted, and had your head shaved, and you were placed in a school in rural Victoria.  You were returned to your mother approximately three and a half weeks later.  There were other incidents referred to by your mother which appear to have been traumatising for you.  I am well satisfied that you come from a disadvantaged background.

42When you were young you were invited to attend a camp for disadvantaged children organised by a local police officer.  For some years afterwards you were mentored by this police officer and you developed the ambition to become a police officer.  Tragically your mentor killed himself and you lost your faith in that vocation.

43At this time, you had commenced Year 11, at Healesville High School but dropped out soon afterwards.

44You obtained a work placement in a mechanics workshop in the hope that you might pursue that trade, but you were treated badly and bullied.  After a short time you lost confidence in your ability to do that sort of work and left.  You fell pregnant shortly after that experience, and you have not worked in paid employment since.

45You were 18 when you had your first child; the father never had contact with your son.  In 2013, you commenced a relationship with a man who became the father of your two youngest children.  He had a significant criminal history and subjected you to family violence.  In 2014, you moved into public housing in
Mount Evelyn.  Your relationship with your then partner deteriorated in the wake of his heavy drinking, violence, and criminal behaviour.  He was sentenced to a term of imprisonment in December 2014.

46In June 2015, your youngest child was born.  You gave up the care of that child because you had difficulties coping with his care.  He went to live with his grandparents.  In August, your other children were taken into the care of the Department of Health and Human Services, following you forming a relationship with another man, about whom the department had concerns. 

47Around that time you fell pregnant again.  That pregnancy was terminated on 23 September 2015, less than 2 weeks before these events.

48After your plea was heard on 18 October 2017, your legal representatives obtained further medical material that shed light on your condition in the lead up to the collision.

49In 2012, you had been prescribed anti-depressant medication in circumstances where you were suspected of having post-natal depression.  There was scant detail of your condition at that time.

50In July 2014, you attended on Dr Georgina Whittaker who noted the problems you had in coping with the care of your children and diagnosed depression.  Her notes queried whether there had been postnatal depression in the past, and you were referred to a psychiatrist but did not attend that referral.

51In January 2015, you attended your General Practitioner, Dr Tate, who noted that you were 22 weeks pregnant with two other children, aged three and one, and that you were "At the end of your tether". Dr Tate diagnosed mixed anxiety and depression, and you were referred for further psychological assessment. Unfortunately, you did not attend that referral either.

52On 24 August 2015, you saw Dr Tate again.  By that stage, all of your children had been placed in the care of their grandparents, and the doctor noted,
"Has no kids now, so should be okay".  However, your new pregnancy was confirmed, and in a report provided to my associate on 28 November 2017,
Dr Tracy Little confirmed that the termination took place on 23 September 2017.

53In the months before this offending, I was told that you had started binge drinking.  You had never had alcohol or substance abuse problems in the past. Indeed, you have no prior convictions of any kind.  At the time of the collision, you were still waiting to be granted conditional care of your children.

Collision

54As to the injuries you received in this collision, you sustained a severe traumatic brain injury.  You were found to have a left frontal subdural haematoma, a diffuse axonal injury involving the splenium of the corpus callosum, and possible small haemorrhage in the left cerebellum.  There was approximately 17 days of post-traumatic amnesia.  In addition, you suffered multiple rib fractures, left clavicle fractures, pulmonary contusions, and a left occipital condyle fracture.

55You now suffer from a lasting acquired brain injury.  You have lost the memory of much of your past life.  Assessments a month or so after the collision, revealed deficits in processing speed, verbal abstract reasoning, attention span, divided attention, and new learning.  These deficits appear to have persisted and subsequent evaluation has been difficult because your condition is complicated by your psychiatric status, in that you concurrently suffer from a major depressive disorder, major anxiety disorder and symptoms of

post-traumatic stress.

56One of the assessing psychiatrists, Dr Walton, noted a strong element of
self-punishment in your current depression.  Since the collision you have been admitted as an inpatient to the Epworth Hospital mental health ward with suicidal ideation on three separate occasions, for periods of between five to nine days.  Your mental health remains precarious.

57Earlier assessments from two neuro-psychologists raised concerns as to whether you would be able to adequately comprehend and follow your legal proceedings because of your brain injury.  Accordingly, your plea hearing of
3 November 2016 was adjourned to enable further assessment.  In her comprehensive report of 13 May 2017, Dr Linda Borg identified significant deficits in your cognitive functioning.  In her view, whilst you were fit to provide instruction in a plea hearing, there was some considerable qualification.  She stated that;

"Her capacity to retain this information over time and to follow the course of the trial, is likely to be highly variable, and dependant on factors such as her degree of psychological distress, and mental fatigue.  In instances where these are elevated, she's highly likely to decompensate, which is characterised by her failure to actively participate in, attend to, and subsequently retain an understanding of legal proceedings.  To address these issues, Ms Toulson will need the support of:

(1) A neuropsychologist, well-versed in legal proceedings, to accompany her and explain the nature of the discussions in a manner that taps into her cognitive strengths. 

(2) Ongoing psychiatric monitoring throughout this process, to monitor suicide risk, and to prevent further decompensation from a psychiatric standpoint. 

(3) Provision of regular rest breaks, to account for cognitive fatigue. 

If such provisions are made, it is considered that Ms Toulson is fit to provide instruction on the plea hearing, as defined under the Crimes (Mental Impairment and Unfitness To Be Tried) Act 1997. However, some concern does remain regarding her ability to consistently attend and process information in lengthier proceedings".

58More generally as to your presentation Dr Borg noted as follows,

"Severe psychomotor retardation was evident, whereby responses to questioning, movements, and speech, were all markedly slowed.  Eye contact was generally well-maintained.  At times, she stared blankly, particularly when being provided with instruction, or asked questions, which is likely attributable slowed processing speed.  Speech tended to be somewhat mumbled.  While she was fluent, she occasionally demonstrated difficulty pronouncing words.  There was paucity of content, evident at times in responses to more complex material, often exhibited poor comprehension".

59Dr Borg expressed considerable concerns about your position in custody.  She said,

"Ms Toulson is considered at high risk of decompensating from a psychiatric and brain injury perspective.  Given the high degree of Allied Health and psychiatric support currently required to maintain Ms Toulson in the community, a lack of access to such supports whilst incarcerated, is likely to have a detrimental impact".

60Dr Lester Walton, a consultant psychiatrist provided a more recent report of
12 September 2017 as to your predicament. He noted,

"It is apparent that Ms Toulson is suffering from a permanent brain injury, and chronic depression, and she's likely to remain symptomatic for the foreseeable future, despite any further treatment.  It is possible there may be a further modest improvement in her cognitive functioning, but she has been permanently psychologically scarred by the accident, living with the responsibility that she's caused death and injury to others".

61Dr Walton concluded his report with the somewhat understated comment that, "It is fair comment that she would endure incarceration as more onerous than others".

62Another psychiatrist, Dr Terrence Chong, stated:

"Generally speaking, my clinical experience is that a custodial sentence would weigh more heavily on a person with these mental health conditions, then someone without these and this would apply to Ms Toulson.  Furthermore, there is a risk of imprisonment having a significant adverse effect on Ms Toulson's mental health, as it is a significant stressor and may worsen her psychiatric conditions.  She's likely to have less access to her support network, and treating services in this context which may also exacerbate her condition".

63After your release from hospital in late 2015, you have resided with your mother Ms Port.  You continue to be highly dependent on her.  Your mental health has been precarious as the hospital admissions demonstrate.  You explained to your lawyers that because of your injuries you had forgotten how to be a parent to your children.  With the considerable assistance and support of your mother, you have been able to enjoy quite frequent contact with all three children.

64I am told and accept that you have been alcohol-free since the offending and submit to the Department of Health and Human Services for testing in order to ensure contact with your children continues.  You have tried to undertake a parenting course and your mother monitors your access to the children.  You have formed a new relationship with a man which your mother believes is positive and supportive in contrast to your previous relationships.

65At the return of the further plea, I was provided with an extremely helpful joint expert report of 13 November 2017, from Dr Nancy Salton, a clinical neuropsychologist, Ms Courtney Ireland, an occupational therapist, Ms Edwina Dalco, a speech pathologist, and Mr Shane Heron, transport accident commissioner support co-ordinator. This is the multidisciplinary team who have worked with you since your discharge from hospital.  It specifically addresses your difficulties and provides practical guidance to those that may need to manage and assist you.  It shows how far reaching your disability is.

66I received and read 12 personal references tendered on your behalf.  There are two predominant themes in those references.  The first is your profound remorse for what you did on this day, and that theme is also echoed in the professional reports.  On the strength of all of the material, I have no doubt that you are deeply remorseful for what you have done.

67The second predominant theme referred to in the references, was that all those that were close to you attest to how very out of character drinking and behaving irresponsibly, was for you.

Sentencing Submissions

68Turning to the submissions as to sentence, Mr Thompson argued that your disadvantaged background, your unsuccessful attempts to cope effectively as a single mother of a new born and two other children under the age of five, the subsequent loss of the care of your children, and the termination of your pregnancy in the weeks leading up to the collision, provided the setting within which you acted out of character, by binge drinking and engaging in reckless behaviour.  

69None of this was put to justify your offending, but it was submitted in effect that, the deterioration in your life at that time, provided for some measure of understanding given that you had never offended before these events.  It was behaviour that was said to be very much out of character as the personal references confirmed.

70It was also argued that your possible post-natal depression, first identified in 2012, and the depressive condition diagnosed by Dr Tate in 2015, together with what was said to be your suicidal ideation, resulted in binge drinking as a form of self-medication.  In this way, it was suggested there was a "causal link" between your depression and your offending, such as to engage the first four principles in Verdin’s case. Given your circumstances, the fifth and sixth principles, it was said, would apply irrespective of a causal or “realistic” connection with the offending.

71It was put that your plea of guilty ought to attract a significant discount.

72It was submitted that the severe brain injury constituted significant extra curial punishment.

73It was recognised that youthfulness had reduced significance in cases of this kind; you were 22 at the time and are now 24, but was still a relevant consideration.

74Your prospects for rehabilitation, within the confines of your acquired brain injury, were said to be good having regard to the excellent supports you have in the community, your motivation to parent your children, your remorse, your lack of prior or subsequent criminal history, and your abstinence from alcohol.

75It was further suggested that the decision in Khoja v The Queen [2014] VSCA 9 was a useful case comparator.

76On behalf of the Crown, Ms Piggott acknowledged many of the powerful subjective features relied on by the defence.  She accepted that prison would be more onerous for you and that your acquired brain injury did constitute a very real extra curial punishment, and that specific deterrence was not, to use her words, "A huge factor".

77However, she argued that general deterrence had more than usual importance in cases of this kind. By way of example, she referred to the decision of
R v Kennedy [2006] VSCA 77, which involved a serious culpable driving, in which the appellant had killed his own son. Upholding what was described as a stern sentence in the context of strong mitigation, the Court of Appeal affirmed that general deterrence remained the principal objective in sentencing for this offence.

78Similarly, in DPP v Chambers [2006] VSCA 189, the Court of Appeal accepted a submission from the Director, to the effect that the need for general deterrence of offences of this kind cannot be overstated. Likewise, it was submitted here, that the objective gravity of your offending was such that the need for general deterrence could not be overstated.

79The Crown submitted that your condition such as it could be ascertained from the doctor’s notes, was not causally or realistically connected with your offending so as to reduce your moral culpability.

Analysis

80In analysing these submissions I accept much of what has been put in mitigation on your behalf.

81Your disadvantaged background and the personal deterioration in your life in the weeks before this offending, do in my view allow for a significant measure of understanding and leniency.

82You have pleaded guilty, you are remorseful, you have no prior convictions, your offending was out of character, you are youthful, and you do within the confines of your acquired brain injury, have good prospects for rehabilitation.

83As to the six circumstances set out in R v Verdinsand Ors [2007] 16 VR 269 at 276 [32], which summarised how impaired mental functioning was relevant to the formulation of an appropriate sentence, I note that the scope and limitations of those circumstances were summarised in O’Neill [2015] VSCA 325, at paragraph 70 and following.

84Trying to apply those principles with the rigour required by the authorities, I am not satisfied that there is an adequate factual foundation that would enable me to find a causal or realistic connection between any depressive condition and the offending.  Further, I would likely take the view that even if there was sufficient evidence of such a link, any reduction of moral culpability could not be significant given the role alcohol played in the commission of this offence.

85That said, I find that your brain injury is relevant in three other ways in the formulation of sentence.

86The first is that now, that is, at the time of sentence, you have impaired mental functioning.  The nature and severity of the brain injury and its effect on your mental capacity, in my view, render you a less ideal vehicle for general deterrence.

87As was made clear in O’Neill [82] and in DPP v Harman [2017] VSCA 169 [66], that circumstance may provide for some moderation of general deterrence, even though it was not present at the time of the offending. I further note that the decision in Khoja does have some parallels with your case, but I also note that whilst the offender in that instance, like you, had a severe reaction to the horror of his actions, he did not sustain the acquired brain injury that you sustained.

88Secondly, your injuries, and particularly your acquired brain injury, do constitute severe extra curial punishment.  In that respect, I note the decisions of
Altun v The Queen [2014] VSCA 46, and Fuller v the Queen [2013] VSCA 186, affirming that principle in the context of offending of this kind.

89Thirdly, the fifth and six considerations set out in Verdins are relevant. Those principles are that, "The existence 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".

90The next principle is this, "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".

91Those principles are engaged here.  There is an ample factual foundation for their application and in my view they apply with some force.

92The joint expert report setting out the specific difficulties occasioned by your brain injury, and the steps that might be taken to manage your disability, will be annexed to these reasons.

93One of the purposes that must be served by this sentence is to denounce what you did.

94In Jurisic [1998] 45 NSWLR 209 at 221 Spigelman CJ said,

“It has long been accepted that denunciation of criminal conduct is a relevant factor in the sentencing process.  In the course of such denunciation, courts do and should have regard to the moral sense of the community and to community expectations of appropriate punishment.  Courts are, however, aware that the requirements of justice and the requirements of mercy are often in conflict, but that we live in a society which values both justice and mercy".

95In sentencing you I must not lose sight of the objective gravity of this offending, and to the need to emphasise general deterrence, albeit with some moderation. I must also be mindful that you must be sentenced not only for culpable driving, but also for the five charges of negligently causing serious injury.  The seriousness of that offence was recently emphasised in DPP v Barry [2017] VSCA 344.

96Finally I note that the sentencing judge in Khoja imposed an aggregate sentence in circumstances similar to this case.  Having regard to what was said by the Court of Appeal in DPP v Rivette [2017] VSCA 150 at [80], the preconditions for the imposition of an aggregate sentence appear to be made out. Given that the conduct constituting these offences arises out of precisely the same circumstances, I will adopt that course here.

Sentence

97In all of these circumstances, Emily Toulson you will be sentenced as follows.

98You will sentenced to a total effective sentence of eight years' and eight months' imprisonment.  That is an aggregate sentence imposed in respect of all matters on the indictment.

99I will fix a non-parole period of five years.

100I further declare, pursuant to s6AAA of the Sentencing Act, that but for your plea of guilty, you would have been sentenced to a total effective sentence of ten years, with a non-parole period of six years and eight months.

101Are there any other orders required?

102MS PIGGOTT:  Your Honour, there was an application for a 464ZF order, which I understand is not opposed Your Honour.

103MS PIGGOTT:  Also, I suppose a moot point, license cancellation Your Honour, which - - -

104HIS HONOUR:  Yes.  Ms Toulson's driving license will be cancelled and disqualified for a period of four years.

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