Director of Public Prosecutions v Tunescu
[2024] VCC 1270
•16 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01867
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IONEL TUNESCU |
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JUDGE: | HIS HONOUR JUDGE KELLY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 July 2024 | |
DATE OF SENTENCE: | 16 August 2024 | |
CASE MAY BE CITED AS: | DPP v Tunescu | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1270 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Dangerous Driving Causing Death – Truck driver – Momentary Inattention – whether s 5(2H) is enlivened – Whether impaired mental functioning – whether substantial and compelling reasons that are exceptional and rare - low moral culpability – good prospects of rehabilitation – elderly offender – minor criminal history - significant and complex health challenges – remorseful – community protection and specific deterrence of negligible importance.
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited:GAS v The Queen (2004) 217 CLR 198; Cheung v The Queen (2001) 209 CLR 1; R v Storey [1998] 1 VR 359; Boulton v The Queen (2014) 46 VR 308; R v Whyte (2002) 55 NSWLR 252; DPP v Sheather (2023) 104 MVR 144; DPP v Hanson [2022] VCC 2007; DPP v Wilson [2022] VCC 1349; DPP v Knowler [2021] VCC 2141; DPP v Black [2020] VCC 1551; DPP v Chambers (2006) 47 MVR 22; DPP v Neethling (2009) 22 VR 466; Camin v The King [2024] VSCA 124; DPP v Kenneison [2023] VSCA 321; Peers v The Queen [2021] VSCA 264; DPP (Vic) v Lombardo (2022) 302 A Crim R 329; Director of Public Prosecutions v Browne (2023) 103 MVR 226; DPP v Armstrong [2022] VSC 827; DPP v Singh [2023] VCC 2033; DPP v Parsons [2023] VCC 1662; DPP v Hudgson [2016] VSCA 254; Farmer v The Queen [2020] VSCA 140; Stephens v R (2016) 50 VR 740; CD v The Queen [2013] VSCA 95; Phillips v The Queen (2012) 37 VR 594; Barbaro v The Queen (2012) 226 A Crim R 354; Georgopolous v The Queen [2010] NSWCCA 246; Siganto v The Queen (1998) 194 CLR 656; Director of Public Prosecutions v Oates (2007) 47 MVR 483; Director of Public Prosecutions v Weybury (2018) 84 MVR 153.
Sentence: 3 Year Community Correction Order; 120 Hours Unpaid Community Work, Therapeutic Conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Johnston | Office of Public Prosecutions |
| For the Accused | Mr K. McDonald | Slades & Parsons |
HIS HONOUR:
Introduction
1On the morning of the 16th of June 2020, Ms Alana Hornhardt was driving to work. She was 30 years old and a speech pathologist. She'd moved to Victoria with her fiancé, Cameron Bleakley and they were due to be married in November 2020. They met in primary school and had been together 12 years. They were planning to move back to Adelaide and start a family. You took that from her.
2Ionel Tunescu, a jury has found you guilty of one charge of Dangerous Driving Causing Death, which carries a maximum penalty of 10 years imprisonment.
3As the offence is a Category 2 offence, pursuant to section 5(2H) of the Sentencing Act 1991 I must impose a term of imprisonment unless I find an exception to that requirement is enlivened.
4The offence is also a ‘Serious Motor Vehicle Offence’ within the meaning of s 89P(d) of the Sentencing Act 1991, and I must therefore cancel your existing licence and disqualify you from obtaining a new one for a minimum of 18 months.
Circumstances of Offending
5You were found guilty by a jury on 12 April 2024. I need to determine the facts in this case consistently with that verdict.[1]
[1] E.g., GAS v The Queen (2004) 217 CLR 198, 211 [30] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
6At the time of your offending, you were employed by SST Advertising Pty Ltd as a driver of an advertising truck. On the morning of the 16th of June 2020 you were driving a 2005 Isuzu Tray Truck along the outermost outbound lane of the Monash Freeway from Tullamarine to a location in Cranbourne. Ms Hornhardt had left her house to drive to work that morning and was also travelling outbound along the Monash Freeway.
7You were in the outer left lane and Ms Hornhardt was in the lane next to yours. At about 8:27 am on the stretch between the Power Road overpass and the South Gippsland Freeway exit, your vehicle drifted from your lane into hers and collided with the left rear quarter panel of her car, causing it to rotate clockwise across two lanes before the rear of her car collided with a DAF prime mover driven by Mr Robert Talevski. This second collision caused Ms Hornhardt’s car to reverse direction and rotate anti-clockwise before coming to a rest on the left shoulder of the road. As a result of these collisions Ms Hornhardt tragically suffered fatal injuries (charge 1: dangerous driving causing death). You brought your truck to a halt on the side of the road, as did other witnesses who attempted to resuscitate Ms Hornhardt but were unable to do so.
8Officers attended the scene and conducted preliminary breath and fluid tests, before formally interviewing you on the 19th of August 2020.
9There was some argument advanced on your plea about the speed at which you were travelling at the time of the collision. The evidence is insufficient for me conclude that you were driving at 100 km/h at the time, but I am satisfied that you were travelling faster than Ms Hornhardt, albeit not exceeding the speed limit. There was some cross-examination of witnesses directed to establishing that you were in the second outbound lane. The reconstructionist called by the Crown, Dr Hardiman, gave evidence that the point of impact between your truck and Ms Hornhardt’s car was in the second lane. Witnesses travelling behind her car did not observe her change lane prior to her car’s impact with your truck.
10Accordingly, I am satisfied that you moved from your lane into hers and struck her rear left quarter panel when you did so. That was doubtless the conclusion reached by the jury in finding you guilty.
Victim Impact Statements
11A number of victim impact statements were tendered and read aloud at the plea hearing.
12David Bleakley is the father of Ms Hornhardt’s fiancé Cameron. He told me about the life Ms Hornhardt and his son were making together, recalling the day they set off for Melbourne from South Australia, full of life and excitement. He remembered the day Ms Hornhardt had asked his wife Sharon if she would be mother of the bride at her wedding, her own mother having died of breast cancer. His son and Ms Hornhardt were to marry in South Australia later that year. He read to the court a poem he’d wrote about the heart-wrenching day they found out what had happened. He thanked the witnesses, first responders and the detective for their kindness to their family.
13Daryl Hornhardt is Ms Hornhardt’s father. His statement was read aloud by the Prosecutor. He spoke about the closeness of his bond with his daughter, the vital role she played in the family when his wife passed and how Ms Hornhardt was the last of his children to leave home because she committed herself selflessly to his welfare until she was satisfied that he could cope on his own. She was the oldest of his four children, but she chaperoned him through his grief until he was ready to live independently. He said he avoids family gatherings now as they remind him of what he has lost. He described the consequences of Ms Hornhardt’s death on his mental health. His grief is still raw and consuming, unsurprisingly.
14Ms Hornhardt’s brother, Matthew had his statement read aloud by the Prosecutor. He said Ms Hornhardt was his best friend, and described her as like a Disney movie, having a sweet innocence which led her to always put others first. He described the shock and pain upon hearing of her death and feels the effect of her death upon their father has impacted his own relationship. He told the court he has a newfound paranoia when it comes to driving, or when he receives unexpected phone calls or alternatively when his calls go unanswered. He feels he has lost a limb and will forever have a hole in his heart.
15Shawna Hornhardt is the youngest sister of Ms Hornhardt, and provided a statement to the court. She told the court there is nothing she doesn’t miss about her big sister, and although it is impossible to enumerate all the details, she nevertheless endeavoured to provide a comprehensive list and is to be commended for it. She concluded by promising to enjoy every moment of life, to remain enchanted and never stop believing.
16Each of these Victim Impact Statements was powerful and difficult to read. Ms Hornhardt was at the hub of her family. She was mature, responsible, devoted, loyal, industrious, playful, optimistic and brimming with potential. She has left an unbridgeable chasm in the lives of her father, her siblings, her bereaved partner and his family. No sentence I pass can repair that damage or atone for her loss which is tragic and came out of the clear blue sky.
Personal Circumstances
17Your personal history is set out in Mr Patrick Newton’s report dated 28 June 2024.[2]
[2] Report of Mr Patrick Newton dated 28 June 2024 (Exhibit ITD9) (‘June Report’).
18You were born in Romania, the youngest of four children raised during that country’s communist dictatorship. You grew up in the resort town of Eforie Sud near the Black Sea and described your childhood to Mr Newton as normal and happy.
19Your father worked in a restaurant and your mother devoted herself to home duties. You described their relationship as harmonious and free from conflict.
20You reported that it was difficult living under communism and that your family was very poor. You report your living situation rapidly deteriorating after the death of your father in 1965. Your family was persecuted by the Romanian Securitate. You spent time in a refugee camp in Yugoslavia before migrating to Australia in 1987. You report being on good terms with your surviving brother and sister and your extended family though you have no siblings in Australia.
21You completed eight years of schooling in Romania and reported having been a good student. You reported participating actively in sports. You undertook TAFE equivalent tourism training before undertaking two years of a plumbing apprenticeship. You have worked in Australia in various roles including for a large building materials company and as a painter and asbestos remover. You report having a positive work history and a strong work ethic. You have been employed in your current driving role for ten years.
22You first married in Romania. Your first wife moved to West Germany and you separated. You have a son who remains in Romania. You and your current wife Floriana have been together since 1988. You have one adult daughter. You describe your current marriage as good, loving and supportive.
Physical Health
23A number of medical reports were tendered on your plea. You have seen various specialists including a cardiologist, vascular surgeon, gastroenterologist, endocrinologist and an eye consultant among others for your numerous health challenges.
24Dr Kushma Nand in a report dated 15 March 2023 outlines your various diagnoses as:
(a)Chronic Kidney disease with albuminuria;
(b)Diabetic Nephropathy
(c)Interstitial nephritis with prolonged antibiotics
(d)Type II Diabetes
(e)Ischaemic Heart disease with coronary artery bypass grafting complicated by wound infection
(f)Hypertension
(g)Hypercholesterolaemia
(h)GORD
25Dr Nand also reports that you risk progression of your kidney disease which may lead to a need for dialysis due to poor blood sugar control and noted that you recently had life threatening hyperkalaemia. She explained that you are currently on a number of medications and that you require frequent and close follow ups by specialists to reduce your risk of complications.[3]
[3] Report of Dr Kushma Nand dated 15 March 2023 (Exhibit ITD11) (‘Kushma Report’).
26Dr Plehwe is an endocrinologist. In his report dated 19 April 2024, he wrote that your current treatment is insufficient to reduce your risk of developing further diabetes related complications. He outlined your various admissions to Epworth Hospital, first in late 2015 for coronary artery disease requiring by-pass graft surgery, then again on the 5th of August 2018 for nerve root pain in your right arm. You spent a number of weeks in hospital and underwent surgery on 16 August 2018. You were admitted again to hospital on the 9th of September and discharged on the 14th.
27He says that you require insulin treatment and cessation or disruption of your treatment risks worsening your renal disease, the development of diabetic eye disease, exacerbation of your underlying macrovascular disease and peripheral neuropathy. He was unable to say whether you would receive the necessary treatment and monitoring in a custodial setting. His recommendation was that you continue to have consultations every three months.28I was also provided a report from Dr Peter Chu who is a vascular and endovascular surgeon.[4] In it, he explains that he saw you for review following revascularisation of your legs in the context of the above diagnoses noted by Dr Nand. He reported that you are due to return for review within 12 months for a fresh ultrasound scan of your abdomen and legs.
[4] Report of Dr Peter Chu dated 18 December 2023 (Exhibit ITD4) (‘Chu Report’).
29Dr Sheriff who has been your general practitioner since 2004 notes that you are an unwell man who requires close medical monitoring of your cardiovascular, diabetic and vascular complications.[5] Dr Sheriff adds that a custodial sentence will not be optimal for your wellbeing and will adversely affect your already fragile health.[6]
[5] Report of Dr A A Sherrif dated 24 April 2024 (Exhibit ITD8) (‘Sherrif Report’).
[6] Ibid, page 2-3.
30In a supplementary report, Dr Sheriff explained that you were involved in a motor vehicle accident on 20 May 2024 and sustained chest injuries.31Dr Zimmet, a consultant cardiologist also noted that the monitoring and treatment you require would not be readily available in a custodial setting. He adds:
Furthermore, cessation or disruption of Ionel’s current treatment would pose grave risks to his health. Specifically, these risks would include those of a heart attack, stroke, cardiac arrhythmia, worsening of his aortic dilatation and uncontrolled high blood pressure.[7]
[7] Report of Dr Hendrik Zimmet dated 14 May 2024 page 1 (Exhibit ITD7) (‘Zimmet Report’).
Character References
32Two character references were tendered at your plea hearing.
33Ms Georgiana Ruhrig is your daughter.[8] She writes that you are a strong disciplined man with a kind heart who was always ready to lend a hand. She described you as a strong role model who ensured she grew up with the best possible opportunities for success. She told the court you held the family together, keeping them happy and provided for whilst ensuring the house was in perfect condition.
[8] Exhibit ITD2.
34Mr Brett Richards is the director of STT Advertising Pty Ltd who worked with you for over 7 years.[9] He described you as a diligent worker and dedicated to achieving the best outcomes for customers. He writes that you have discussed your offending with him, and the sorrow you have caused Ms Hornhardt’s family. He described you as a man with strong family ties, a valued employee and a family friend. He continues to employ you and his faith in you as an employee has not been diminished by this charge.
[9] Exhibit ITD3.
Defence Submissions
35Mr McDonald on your behalf submitted that it would be open to the Court to impose a Community Correction Order (‘CCO’) that would exceed any likely period of immediate imprisonment. He submitted that having regard to the guideline case of Boulton,[10] a CCO can achieve all the purposes of sentencing and submitted that this is an appropriate case for such a disposition based on the following factors:
(a)Your expressions of remorse;
(b)A limited criminal history, and no relevant criminal record;
(c)Your good prospects of rehabilitation and low likelihood of recidivism;
(d)A lesser need for protection of the community;
(e)Reduced weight for specific deterrence;
(f)Some reduced weight for general deterrence; and
(g)Subjective factors including your mental and physical health.
[10] Boulton v The Queen (2014) 46 VR 308 (’Boulton’).
36Mr McDonald took the court to the guideline judgement of Whyte concerning dangerous driving causing death cases and the relevant considerations informing sentences for that charge.[11] He took me to a number of sentences which provided some assistance to the court,[12] as well as recent sentencing statistics for dangerous driving causing death cases, noting that this offence can be committed in any number of ways.
[11] R v Whyte (2002) 55 NSWLR 252 (‘Whyte’).
[12] DPP v Sheather (2023) 104 MVR 144; DPP v Hanson [2022] VCC 2007; DPP v Wilson [2022] VCC 1349; DPP v Knowler [2021] VCC 2141; DPP v Black [2020] VCC 1551.
Prosecution Submissions
37Mr Johnston on behalf of the Crown submitted that a term of imprisonment with a non-parole period is the only appropriate sentencing disposition having regard to the inherent seriousness of a driving offence resulting in the death of another person.[13]
[13] DPP v Chambers (2006) 47 MVR 22.
38Mr Johnston referred me to the case of DPP v Neethling in which the Court outlined a number of considerations relevant to sentencing dangerous driving cases, namely that:[14]
(a)General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury;
(b)A person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment;
(c)The sentence which is imposed must take account of variations in the moral culpability of the person responsible; and
(d)A custodial sentence will usually be appropriate for this offence, except in cases where the offender’s level of moral culpability is low.
[14] DPP v Neethling (2009) 22 VR 466, 472-3 [30] (‘Neethling’).
39Mr Johnston referred me to the cases of Camin v The King,[15] DPP v Kenneison,[16] and Peers v The Queen,[17] as instructive of current sentencing practices for this offence.
[15] [2024] VSCA 124 (‘Camin’).
[16] [2023] VSCA 321 (‘Kenneison’).
[17] [2021] VSCA 264 (‘Peers’).
Moral Culpability and Gravity of Offending
40Mr McDonald submitted that your offending can be characterised as an instance of momentary inattention shorn of aggravating features. The evidence demonstrates that your driving was unremarkable prior to the collision.
41He submitted that this collision was unusual: because the protruding tray of your truck caught Ms Hornhardt’s vehicle, it rotated and travelled across two lanes of traffic. Without the contribution of the tray, the contact between your two vehicles would have created a sideswipe impact.
42He submitted that the court is entitled to consider the other contributing factors such as the presence of the DAF Prime mover on the road, the second collision between it and Ms Hornhardt’s vehicle in assessing the gravity of your offending. I do not accept this argument. You are responsible for the path Ms Hornhardt’s vehicle took post-impact. You were aware of the dimensions of your truck’s tray. You had driven it for years. The gravity of your offending is not reduced as a consequence of another foreseeable collision once your truck had catapulted Ms Hornhardt’s car across two lanes of traffic.
43Mr McDonald submitted that momentary inattention cases generally involve low moral culpability on the part of the offender. I accept that.
44Mr Johnston for the Crown submitted that the degree of your inattention was significant and more than momentary. He submitted that establishing your culpability requires more than a finding of the absence of aggravating features.[18] He relied on the following factors that he submitted are consistent with the jury’s verdict:
· You are a professional driver. You had been driving the Isuzu truck for years prior to the collision. You were familiar with the characteristics, dimensions and handling of the Isuzu.
· The tray of the truck protruded about 370mm beyond the width of the cabin. You were driving at about 100km/hr on a motorway with other vehicles. The weather was mostly fine. On this point I note I have already dismissed this characterisation of your speed at the time of the collision.
· You were found by a jury to have either drifted inattentively into lane 2, or failed to see the Suzuki when merging into lane 2.
· The Suzuki was white and in front of your vehicle. It would have been in your field of vision.
[18] Citing Stephens v R (2016) 50 VR 740, 747 [26] (Redlich, Santamaria and Beach JA).
45Mr Johnston conceded that your moral culpability can be assessed as towards the lower end, however maintained that it is not at the lowest end of seriousness for offences of this kind. He submitted that your experience and your occupation as a professional driver are relevant to my determination.
46The sentencing principles applicable to cases of dangerous driving causing death have been considered by the Court of Appeal on many, many occasions. Prior to the enactment of s 5(2H), cases of dangerous driving causing death attracted significant gaol terms save in exceptional instances of momentary inattention where the offender’s moral culpability was assessed as low.
47In Neethling, the court adopted the list of considerations identified in the NSW appellate judgement of Whyte, which include:[19]
[19] Neethling (n 15) [31] citing Whyte (n 12) [216]-[217].
(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.
48I note that factors (iii) to (xi) are absent in this case: it is not suggested that you exceeded the speed limit applicable to you, you were neither impaired by drugs or alcohol, you did not engage in erratic or aggressive driving, you were not showing off, there is no evidence of any other road user exposed to risk by your driving prior to your collision with Ms Hornhardt’s car, you had not ignored warnings, you were not sleep deprived, you were not escaping police and you stopped as soon as you could after this collision. You drifted into Ms Hornhardt’s lane and struck the rear of her car with the tray of your truck. I accept that this is a case of momentary inattention, albeit one with tragic consequences.
49I accept that your moral culpability is low. Whether you drifted inattentively into lane two or whether you merged into lane two and failed to see Ms Hornhardt’s car when changing lanes, your moral culpability is equally low. I am sure it would be possible to find cases where the offender's moral culpability is lower still, but in my assessment, yours is on the bottom rung.
50In saying that I do not mean to minimise the consequence of the collision or its impact on the Hornhardt family. The phrases, “moral culpability” and “objective gravity” are legal terms merely and have nothing to say about the devastating impact of this fatal collision on those left behind.
Dispute as to mandatory imprisonment – s 5(2H)
51It was accepted that you are to be sentenced for a ‘Category 2 Offence’ as defined in the Sentencing Act, and therefore pursuant to section 5(2H) of the Sentencing Act you are required to be sentenced to a term of immediate imprisonment unless one of the exceptions in that section is enlivened.
52Mr McDonald submitted that two exceptions are enlivened in your case, namely s 5(2H)(c)(ii), in that your impaired mental functioning will make prison a substantially and materially greater burden, and s 5(2H)(e), in that there are substantial and compelling circumstances that are exceptional and rare.
53In considering s 5(2H)(e), I am obliged to regard general deterrence and denunciation as having greater importance than other sentencing purposes,[20] and I can only have limited regard to your personal circumstances and previous good character,[21] and cannot have regard to your prospects of rehabilitation or parity with other sentences.[22] I am also required to have regard to the fact that parliament intended for category 2 offences to ordinarily result in a term of imprisonment. I must also consider whether the cumulative impact of your circumstances justify a departure from such a sentence.[23]
[20] S 5(2HC)(a).
[21] s 5(2HC)(b)-(c)(i).
[22] S 5(2HC)(c)(iii)-(iv).
[23] S 5(2I).
Impaired Mental Functioning
54Mr McDonald submitted that Mr Patrick Newton’s two reports provided sufficient evidence to enliven the s 5(2H)(c)(ii) impaired mental functioning exception.
55In his 28 June report, Mr Newton noted that you had told him that as a result of the collision you had been unable to work for a period of three months and had felt depressed and tense and had difficulty coping. You also told him that you had obtained assistance from a general practitioner and you were prescribed anti-depressants.[24] Mr Newton described you as presenting with symptoms of anxiety and depression which have only worsened following the jury verdict.[25]
[24] June Report (n 3) [24].
[25] Ibid [37]-[42].
56He diagnosed you with an adjustment disorder with mixed anxiety and depressed mood but noted that you do not present with signs of PTSD or any other mental disorder.[26]
[26] June Report, [44].
57Mr Newton also observed that without adequate coping resources you would be at risk of developing more severe psychological problems.[27] He believes that the combination of your mental impairments, cultural dislocation and historical political persecution render you particularly vulnerable to heightened anxiety and depression in custody.[28] He acknowledged that the nature of the stressors in your life are such that they would persist to some extent regardless of the sentence this court is to impose.[29]
[27] Ibid [45].
[28] Ibid [55].
[29] Ibid [45].
58You were involved in a motor vehicle collision in May 2024, precipitating a further assessment and report from Mr Newton. In his Report dated the 8th of July 2024, Mr Newton stated that during this assessment you had informed him that following that collision you had experienced an increase in your emotional distress and your pre-existing emotional, interpersonal and psychological symptoms had grown worse.[30] You presented with increased anxiety and hyperarousal. His diagnosis of your mental impairment had not changed; you remain unlikely to develop PTSD in the future.[31]
[30] Supplemantary Report of Mr Patrick Newton dated 8 July 2024, [14]-[15] (Exhibit ITD10) (‘July Report’).
[31] Ibid [12]-[13].
59However, he said following the subsequent collision your symptoms had worsened.[32] He said this further deterioration in your mental state makes your condition more vulnerable to erosion in prison due to the lack of supports and your anticipated decreased resilience in such an environment.[33] This underscores the importance to you of receiving adequate ongoing mental health supports.[34]
[32] [15].
[33] [16].
[34] [17].
60Mr McDonald accepted that it is incumbent upon the Defence to establish the existence of the relevant impairment, and that the standard to be met by s 5(2H)(c)(ii) is higher than that which enlivens the Verdins principles.[35] He nevertheless submitted that these diagnoses meet the threshold, particularly where you have been found at risk of further deterioration if imprisoned.
[35] Peers (n 17) 389-90 [52]; DPP (Vic) v Lombardo (2022) 302 A Crim R 329, 338 [46] (McLeish, Niall and Kennedy JJA) (‘Lombardo’).
61You are at a significant risk of increased anxiety and stress, as well as intense bouts of depression beyond those experienced by a normal prisoner due to your existing impairment.[36] You are less likely to manage these stressors in a prison environment.[37] You are at risk of your condition worsening, albeit not to the point of a PTSD diagnosis.[38] In short, you risk having your condition worsen to a point where it becomes acute.
[36] June Report [54]-[55]
[37] July Report, [16].
[38] July Report [15].
62In considering whether your infirmities engage the exception in s 5(2H)(c)(ii), I have had regard to recent appellate authorities.
63Lombardo was a Director’s appeal from a sentence of a CCO imposed for a charge of dangerous driving causing death where the offender suffered mild symptoms of anxiety and post-traumatic stress falling short of a diagnosis of PTSD.[39] The psychologist, Ms Carla Ferrari assessed that the offender’s condition was likely to deteriorate severely in prison. The Court of Appeal found that what is required to ground the exception is “proof that the offender has a mental illness.”[40] It found that the offender’s symptoms did not reach clinical significance. It noted that his symptoms were below the diagnostic threshold for generalised anxiety disorder and he did not meet the diagnostic criteria for PTSD.[41] It concluded that it could not be satisfied on the balance of probabilities that the respondent had a mental illness at the time of sentencing and the mental impairment exception was therefore incapable of being established.
[39] Lombardo (n 35).
[40] Lombardo [46]
[41] Ibid.
64Peers concerned an appellant who had been sentenced to 2 years and 6 months for one charge of dangerous driving, the circumstances of which had led to the death of her de facto partner.[42] The appellant suffered complex PTSD and was diagnosed with BPD with a background of a troubled and dysfunctional childhood. Psychological reports referred to the appellant having stabilised and having engaged in psychological intervention for five years. The psychologist, Ms Gina Cidoni assessed that the appellant had major functional difficulties due to her isolation, inability to work and mental health conditions and gave evidence to the effect that the appellant’s condition would deteriorate in prison in part due to separation from her support dog which aided in reducing self-harming behaviour. The Court of Appeal concluded that there was sufficient evidence of ‘entrenched, long-standing and severe mental illness’ and that s 5(2H)(c)(ii) could be made out.[43]
[42] (n 17).
[43] Ibid [58].
65In your case, having reviewed the authorities, I am not satisfied that any time spent in prison will be a substantially and materially greater burden than ordinary, and thus s 5(2H)(c)(ii) is not enlivened. I accept that your condition may worsen in custody, but I am obliged to assess your condition now. Your condition appears reactive to your predicament. I have no doubt it would make any sentence you served more difficult, but I am obliged to determine that your time in custody will be a substantially and materially greater burden than ordinary and the reports of Mr Newton have not persuaded me that it will.
Substantial and Compelling
66In Lombardo, the Court of Appeal identified two steps in determining whether s 5 (2H)(e) was engaged. The court must first identify whether there are any “substantial and compelling circumstances”, defined as weighty, forceful or powerful.[44] If the circumstances are substantial and compelling, the court must then ask, ”are they also exceptional and rare?”. The words ”exceptional” and ”rare” operate together. Applying these two steps calls for an evaluative judgment once the underlying facts have been established, unaffected by notions of burdens of proof. It is possible that a set of circumstances may engage the exception in combination, even where the constituent circumstances are mainly or even wholly relatively common.[45]
[44] Lombardo (n 35) 341-2 [66].
[45] Ibid 342 [72]. See also Farmer [54]-[55].
67In Fariah, the Court of Appeal determined that s 5(2H)(e) does not impose a burden on an offender to prove on the balance of probabilities the existence of substantial and compelling circumstances that are exceptional and rare but that it is an evaluative judgment for the judge to make.[46]
[46] Fariah v R [2021] VSCA 213, [24] (Priest and Beach JJA).
68Mr McDonald submitted that a combination of factors engage the exception. In particular he relied on:
· The low objective seriousness of the offending;
· Your demonstrated remorse;
· Your significant and complex physical health conditions and a concern as to whether you would be able to obtain appropriate treatment if sentenced to imprisonment;
· Your role as primary financial provider for your wife, mother-in-law and daughter; and
· Your aforementioned mental health concerns and accompanying demonstrated risk of further worsening.
69In his written submissions he relied on the comments of the Court of Appeal that a non-custodial sentence may be sufficient in cases of low moral culpability and offending at the lower range of seriousness.[47]
[47] Lombardo (n 35) 344 [83].
70In DPP v Hudgson[48] the Court of Appeal analysed the term ‘substantial and compelling’ in a separate but related provision, s 10A(2)(e) of the Sentencing Act which provides for circumstances in which the court may not impose a mandatory minimum non-parole period. They said of the phrase ‘substantial and compelling’ that:
It was plainly the intention of Parliament that the burden imposed upon an offender who sought to escape the operation of s 10 should be a heavy one, and not capable of being lightly discharged.
More specifically, we accept the Director’s submission that the word ‘compelling’ connotes powerful circumstances of a kind wholly outside what might be described as ‘run of the mill’ factors, typically present in offending of this kind.[49]
[48] [2016] VSCA 254 (Weinberg, Whelan and Priest JJA).
[49] Ibid, [112].
71The Court of Appeal in the case of Farmer applied this test in a case relating to a youthful offender charged with armed robbery and found that the substantial and compelling exception was made out in circumstances where the accused suffered from alopecia and agoraphobia in combination with his psychological diagnoses including a generalised anxiety disorder.[50] It was held that a combination of factors, in particular the offender’s serious physical disfigurement which could not be hidden in custody were exceptional and rare and, to borrow from the words of a different case, could not be described as ’run of the mill factors’[51].
[50] [2020] VSCA 140.
[51]DPP v Hodgson [2016] VSCA 254 [112] (Weinberg, Whelan and Priest JJA).
72Your physical infirmities are different in nature, but, on the material before me you would be extremely vulnerable in custody. You are on the cusp of your seventies and in very fragile health.
73I have also had regard to the sentence of Perry.[52] Here, the court found that s 5(2H)(e) was also enlivened by a combination of factors, including low objective gravity, evident remorse, serious risk of deterioration of mental health and that the offender was the primary caregiver and financial provider for his wife and children.[53]
[52] DPP v Perry [2023] VSC 761.
[53] Ibid [88].
74In determining whether your circumstances are “exceptional and rare’, I note the Court in Lombardo observed:But in the context of dangerous driving causing death, at least, it has long been recognised that the offence is often committed by young people of previously impeccable character, who are racked with remorse and grief for what they have done and have the best prospects for rehabilitation. Both in New South Wales and in this State, these features have been described as 'frequently recurring'. Such offenders can often be expected to suffer from symptoms of anxiety and post-traumatic stress, which a term of imprisonment may tend to exacerbate.[54]
[54] Lombardo (n 35) [88].
75In contradistinction to the ‘average’ case of dangerous driving causing death, you are a man of advanced years. You are in fragile health and your specialists believe that custody would have a serious adverse impact on your health. On the medical material which I have been provided, you are at risk of suffering life-threatening complications such as a heart attack, stroke and cardiac arrhythmia, worsening aortic dilation and uncontrolled high blood pressure. You require ongoing and regular specialist medical care. Also significant to my determination is Mr Newton’s opinion that your level of anxiety is ‘somewhat in excess of that normally evident in individuals whom (he has) assessed in similar situations’. He explains that this is in part attributable to the continuing impact of past adverse events and the relative lack of social supports in your life.
76Dr Sheriff, Dr Plehwe and Dr Zimmet have expressed doubt that the treatment you need would be available to you in custody. Those opinions have not been challenged or queried by the prosecution.
77In Peers, the court found that it is ‘extremely difficult for the applicant to prove a negative’ that health treatment received in prison would be inadequate and that in circumstances where there were complex mental health needs and several reports outlining those needs, the Crown is best placed to adduce evidence from Corrections Victoria.[55] That case concerned mental health treatment however I am satisfied the same principle applies to medical treatment in custodial settings.
[55] Peers (n 17) [53] - [54].
78Accepting the unchallenged opinions of your specialists, I find that substantial and compelling circumstances exist in your case constituted by your parlous health, the risk of grave deterioration in custody, your fragile psychological condition and the low moral culpability of your offending. It is in my experience exceptional and rare that two specialists would query the ability of an offender to receive adequate care in custody and to have another warn of grave risks to an offender’s health posed by the cessation or disruption of his current treatment regime.
79I find therefore as a consequence of these combined factors that s 5(2H)(e) is enlivened.
Prospects of Rehabilitation
80It was submitted by Mr McDonald that you are a man with good prospects of rehabilitation. He pointed to your personal circumstances, your work history, your age and your grief in support of this contention.
81You were assessed as suitable for a Community Correction Order by Corrections Victoria. They assessed you as a low risk of reoffending. You have had a long and stable employment history and are well supported by your family.
82Mr Newton describes you as a ‘resilient and resourceful man with a strong desire to engage with work and a capacity to apply yourself when this is required.’[56] He observed that but for your current state of anxiety and depression which is reactive to your circumstances, you have no mental illness, personality defect or other issues that would undermine your ability to benefit from the deterrent aspects of your sentence. He added that there are no indications that you lack the skills and attitude to engage positively with society.[57]
[56] June Report (n 3) [57].
[57] Ibid.
83You have a criminal history dating back to 1990. You told Corrections Victoria that the birth of your daughter approximately 29 years ago motivated you to change. That appears to be borne out by the fact that you have no recent criminal convictions. Since speed is not alleged as a circumstance of aggravation, there is nothing of relevance to my sentencing exercise in your antecedents.
84Your prospects of rehabilitation are very good.
Remorse
85It is not easy to determine the extent of your remorse. You stood your trial and you were found guilty. I accept that the trial was run on a narrow basis and that you were guided by the legal advice you received about the defence available to you. I accept that you can run a trial and leave to the jury the question of whether your actions were criminally blameworthy whilst at the same time experiencing anguish about the loss of life your actions caused. You do not get the full benefit for remorse that would accompany a plea of guilty, but I accept that you are wracked by guilt.
86The prosecution accepts that you have repeatedly expressed genuine contrition and remorse for your conduct. You told Corrections Victoria that the day of the incident was a tragedy and that the day will ‘never disappear from [your] mind’. You were asked to write your response to the collision by Mr Newton and you wrote:
‘To be involved in such accident mark you for the rest of your life seeing on front of your eyes young lady losing her life. I feel very sorry for her losing her life at such a young age’.
87Although you have not taken active steps to reach out to Ms Hornhardt’s family by writing a letter for instance, I understand that a man standing trial might be reluctant to commit to a gesture that might be interpreted as an admission of wrongdoing. The regrettable thing here is that closure for the Hornhardt family has been delayed.
Sentencing Principles
88Section 5 of the Sentencing Act 1991 provides that the only purposes for which you may be sentenced are:
(a) To punish you in a manner and to an extent which is just in all of the circumstances;
(b) To deter you or others from committing similar offences in future;
(c) To facilitate rehabilitation;
(d) To manifest the denunciation of your conduct;
(e) To protect the community; or
(f) A combination of two or more of these purposes.
89Mr McDonald submitted on your behalf that both community protection and deterrence do not have significant roles to play in the sentence I am to impose. I find that Community protection is satisfied by the imposition of a lengthy period of licence disqualification.
90You are a man entering his seventies. You have been devasted by your offending. You are very unlikely to come before the court again. Specific deterrence has a negligible role here.
91General deterrence is an important sentencing principle, but it has greater work to do where the driving occasioning death or serious injury is accompanied by the circumstances of aggravation identified in Whyte and Neethling. Its role in deterring momentary inattentiveness is more opaque.
Sentence
92What I am proposing to do at this stage, on Charge 1 is record a conviction and place you on a Community Correction Order for a period of 3 years from today's date.
93Before I ask if you to consent to such an order being made, I have to tell you a little bit about the order, so you know what it means.
94The following core conditions apply to all Community Correction Orders:
· You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
· You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order.
· You must report to the Community Correction Centre at Sunshine within 2 clear days.
· You must notify the Secretary, or his or her nominee, of any change of address or employment within 2 clear working days after that change.
· You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.
· You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the Order.
95Do you understand?
96OFFENDER: Yes.
97There are a number of other conditions attached to this Order, and they apply to you:
· You have to perform 300 hours of unpaid community work over a period of months/years as directed by the Regional Manager (s48C). 150 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition (s48CA).
· You must be under the supervision of a Community Corrections Officer for a period of 3 years.
· You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s.48E).
· You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager (s48D(3)(e)).
98I direct that I be advised by your Corrections Officer of any non-compliance of these conditions (s48(1)) and I will then determine if the matter should be brought back before me.
99I can only impose a Community Correction order if you agree to such an Order being imposed. So I need to tell you just a little bit more about that.
100I should advise you that if you contravene or breach that order by committing further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach (s83A(d)).
101You can also be re-sentenced for the offences that are before me. One of the options available includes a term of imprisonment (s83A(s)).
102So you have got to be extra careful for the next 3 years. No committing any further offences that might incur a term of imprisonment, otherwise you are back before the Court and you will be re-sentenced on these charges that are before me.
103I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer, worker if you like, as part of this order, a substantial fine can be imposed (s83A(e) and A(f)).
104Now you are aware of all of that, Mr Tunescu?
105OFFENDER: Thank you, Your Honour.
106HIS HONOUR: Do you consent to such an order being made?
107OFFENDER: Sorry?
108HIS HONOUR: Do you agree to such an order being made?
109OFFENDER: Yes.
110On charge 1, Dangerous Driving Causing Death, you are convicted and sentenced to 3 year Community Correction Order, with conditions including 300 hours of community work, supervision, psychological counselling.
111Pursuant to s 89 of the Sentencing Act 1991 I cancel any existing drivers licence you have and disqualify you from obtaining any new licence for a period of two years.
112Now, I will remain on the bench while the community correction order is signed.
113MR DEAN: Could I briefly approach Mr Tunescu, Your Honour.
114HIS HONOUR: You can, yes. While that is happening, Mr Johnston, are there any ancillary orders.
115MR JOHNSTON: No, Your Honour, I don't believe there are.
116HIS HONOUR: Thank you. Very well, lastly, I just want to thank the Hornhardt family for the dignity and the forbearance with which they have conducted themselves during what has been for them a very difficult and confronting experience.
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