Director of Public Prosecutions v Tuteru (No 4)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0024

DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
SIMIONA TUTERU	Accused

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2024
DATE OF SENTENCE:	6 March 2024
CASE MAY BE CITED AS:	Director of Public Prosecutions v Tuteru (No 4)
MEDIUM NEUTRAL CITATION:	[2024] VSC 80

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CRIMINAL LAW – Sentence – Earlier sentence indication – Plea of guilty – Failure to comply with duty under the Heavy Vehicle National Law as a “scheduler” in the chain of responsibility for a heavy vehicle – Driver fatigued and under the influence of a drug of dependence – Accused reckless as to the risk of death or serious injury to both the driver and third parties by allowing the driver to operate a heavy vehicle – Driver engaged in culpable driving causing the deaths of 4 police officers on duty – Early plea in context of history of delay – Gravity of the offence – Impact on victims – Good character and prospects of rehabilitation – Specific and general deterrence – Community correction order imposed – Heavy Vehicle National Law, ss 5, 6, 26C, 26F – Sentencing Act 1991 (Vic), ss 5, 6AAA, 8L, 45, 47, 48C, 52 – Sentencing Regulations 2021 (Vic), reg 15 – Criminal Procedure Act 2009 (Vic), ss 145, 164, 182, 207.

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APPEARANCES:	Counsel	Solicitors
For the prosecution	M Fisher	Office of Public Prosecutions
For the accused	D Hallowes SC with A Beech	Holman Webb Lawyers

HIS HONOUR:

A. Introduction

Simiona (Simon) Tuteru, you have pleaded guilty to a single charge:[1] namely, failing to comply with your duty as a person in the chain of responsibility for a heavy vehicle under section 26C of the Heavy Vehicle National Law (“the National Law”),[2] contrary to section 26F of the National Law. In essence, these provisions require each party in the chain of responsibility for a heavy vehicle to ensure, so far as is reasonably practicable, the safety of the party’s transport activities and impose penalties for a person’s conduct that exposes an individual to a risk of death or serious injury if the person is reckless regarding that risk.[3]
[1]By notice of related summary offences dated 22 September 2021, a series of summary charges were transferred to this court pursuant to s 145 of the Criminal Procedure Act 2009 (Vic). By email dated 7 February 2024, the prosecution confirmed that the plea of guilty to the single charge on the current indictment was in “full satisfaction of the matter” (which includes the related summary offences).
[2]The National Law is set out in the schedule to the Heavy Vehicle National Law Act 2012 (Qld), and was applied as a law of Victoria by the Heavy Vehicle National Law Application Act 2013 (Vic), s 4. Broadly, a “heavy vehicle” is defined as a vehicle with a gross vehicle mass or an aggregate trailer mass (individually or in combination) of more than 4.5 tonnes: National Law, s 6.
[3] Sections 26C and 26F of the National Law provide as follows:
26C      Primary duty
(1)     Each party in the chain of responsibility for a heavy vehicle must ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle.
(2)     Without limiting subsection (1), each party must, so far as is reasonably practicable—
(a)eliminate public risks and, to the extent it is not reasonably practicable to eliminate public risks, minimise the public risks; and
(b)ensure the party’s conduct does not directly or indirectly cause or encourage—
(i)the driver of the heavy vehicle to contravene this Law; or
(ii)the driver of the heavy vehicle to exceed a speed limit applying to the driver; or
(iii)another person, including another party in the chain of responsibility, to contravene this Law.
(3)     For subsection (2)(b), the party’s conduct includes, for example—
(a)the party asking, directing or requiring another person to do, or not do, something; and
(b)the party entering into a contract—
(i)with another person for the other person to do, or not do, something; or
(ii)that purports to annul, exclude, restrict or otherwise change the effect of this Law.
26F       Category 1 offence
(1)    A person commits an offence if—
(a)the person has a duty under section 26C; and
(b)the person, without a reasonable excuse, engages in conduct related to the duty that exposes an individual to a risk of death or serious injury or illness; and
(c)the person is reckless as to the risk.
(2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse.
The surrounding circumstances of this case are utterly tragic. On the afternoon of 22 April 2020 at 5.36pm, Constable Glen Humphris, Senior Constable Kevin King, Constable Joshua Prestney and Leading Senior Constable Lynette Taylor were run down and killed when a 20 tonne truck driven by Mohinder Singh (“Singh”) collided with 2 police cars and another car stopped in the emergency lane of the Eastern Freeway.
At this time, Singh was working as a truck driver at Connect Logistics Pty Ltd (“Connect Logistics”), a trucking company. You were his supervisor. When the collision occurred, Singh was affected by drugs, including methylamphetamine, and a lack of sleep. While driving from Lyndhurst towards the city, he travelled as far as Kew, but then fell asleep at the wheel and veered into the emergency lane of the freeway.
The deaths of these 4 police officers in their line of duty is demonstrative of the potentially catastrophic consequences of allowing a person who is unfit to drive to operate a heavy vehicle. However, the deaths that resulted from this tragic event do not form part of any element of the offence to which you have pleaded guilty.[4]
[4]Compare Director of Public Prosecutions v FrewstalPty Ltd (2015) 47 VR 660, 686 [127] (Priest and Kaye JJA) in considering the Occupational Health and Safety Act 2004 (Vic), s 23.
Relevantly, you are to be sentenced for failing to comply with your duty under section 26C of the National Law by engaging in conduct, without reasonable excuse, that exposed an individual or individuals to a risk of death or serious injury while being reckless as to that risk; and not for the actual consequences of that risk materialising.[5]
[5]Subject to general sentencing guidelines: see par 55 below.

B. Your roles and responsibilities

You are 52 years of age. At the time of your offending, you were 48 years old and had worked in the transport and logistics industry for most of your working life. From 16 September 2019 until the time of your offending, you were employed by Connect Logistics as the supervisor of the Lyndhurst depot. As part of this role, you were responsible for managing and scheduling drivers with respect to fatigue-regulated heavy vehicles. As such, you were a scheduler for the purposes of the National Law.[6] You were aware of your responsibilities as a supervisor of transport activities related to heavy vehicles, and had completed an accredited course on fatigue management strategies in 2016.
[6]Pursuant to s 5 of the National Law, a “scheduler”, for a heavy vehicle, means a person who—
(a)schedules the transport of any goods or passengers by the vehicle; or
(b)schedules the work times and rest times of the vehicle’s driver.
Connect Logistics was accredited under the National Heavy Vehicle Accreditation Scheme in, amongst other things, basic fatigue management. It utilised a chain of responsibility management system manual as part of its processes. As supervisor, your responsibilities as set out in that manual included ensuring that rosters did not require workers to exceed the permitted number of working hours, assessing risk, and ensuring that delivery schedules did not encourage drivers to breach driving hours, speed or mass requirements set out in the manual or under the applicable law. You were also provided with a drivers’ manual which outlined Connect Logistics’ company policies on areas including fatigue, fitness to drive assessments, and work health and safety requirements.
In short, at all relevant times, you were fully aware of your responsibilities with respect to heavy vehicles and the steps that were to be taken if it appeared that a driver was not fit for duty. These steps included exercising your authority to allocate, re-allocate and change drivers’ duties as required, including the authority to engage additional or replacement drivers as needed. When there was a need to engage an additional or replacement driver at Connect Logistics, such drivers were readily available on as little as an hour’s notice.

C. Your background

You were born in Rarotonga in the Cook Islands on 8 July 1971. You spent your early life living in a village with your mother and father and your 2 younger brothers. In 1977, your parents separated and your mother was forced to leave the village. She relocated to Auckland, New Zealand with you and 1 of your brothers, while your other brother remained in the Cook Islands with your father.
Without descending into the detail, your life in New Zealand could only be described as tumultuous and extremely difficult. You married your wife in 1991 and had 3 children in close succession. After a watershed moment in 1998 which involved a number of your friends being convicted for their involvement in a violent crime, you decided to immigrate to Australia.
After arriving in Melbourne, you discovered a Christian church and became heavily involved with the church community. Both you and your wife became pastors. In 2001, you were both ordained and established a parish in the suburb of Preston. During this time, you also had 2 further children.
Between 2004 and 2008, you and your family moved to Mozambique to work as missionaries. As part of this vocation, you also travelled to other parts of Africa, and to China and the Philippines.
Throughout your adult life, you have always maintained full-time employment. As a result of the charges laid against you, your ability to earn a living has been seriously impaired. You now run your own sliding door repair business. Your wife works part-time. Your combined income is modest.
Your family is extremely close. You also have considerable support in the wider community, which was demonstrated by the attendance of a large number of people at the hearing conducted in November 2023 when a sentence indication was sought.[7] The court has also been provided with character references that demonstrate the high regard in which you are held by your family and the broader community.

D. Events leading up to the collision

[7]The court was informed that it was decided that those persons would not attend the plea hearing on 6 February 2024 out of respect for the victims and their families.

D.1 Singh’s nightshift: 4.00pm on 21 April 2020 to 3.46am on 22 April 2020

On 21 April 2020, Singh commenced his regular nightshift at around 4.00pm as scheduled. On that shift, Singh was working with 2 other shuttle run drivers employed by Connect Logistics, 1 of whom was Stephen Harrison (“Harrison”). Harrison was an experienced driver who had previously worked as the Connect Logistics supervisor. He was also the overnight contact person for a key customer.
At approximately 1.30am on 22 April 2020, Harrison telephoned Singh to ascertain his whereabouts. Singh did not answer, but Harrison did not find that to be unusual. Harrison subsequently had various interactions concerning Singh during the early hours of that morning, both with Singh directly and with other persons. For example, a customer reported to Harrison that Singh had uncharacteristically attempted to park his truck in the wrong dock at the customer’s premises on 2 separate occasions. Further, in a telephone conversation, Singh told Harrison that he was tired, and had pulled over for a sleep and slept through his alarm. However, after having engaged in these discussions, there was no suggestion from Harrison that Singh should not complete his shift.
Indeed, up until this point in time, there was nothing to suggest that you were on notice of any issues in relation to Singh’s fitness to drive a heavy vehicle by reason of drug use, fatigue or otherwise.[8] As you explained in your record of interview, neither you nor anyone else had observed anything that was other than normal in relation to Singh.
[8]An analysis of Singh’s mobile phone records indicated that in the 72 hours leading up to the collision, he could only have had a maximum of 5 hours of potential sleep. However, there was no suggestion you were aware of this. Expert evidence was to the effect that this lack of sleep would have severely impaired Singh’s capacity to drive safely.
Harrison spoke to Singh in person at the end of Singh’s shift. Harrison observed that Singh did not look tired, but rather confused and as if he had “something on his mind”. He told Singh that he should see a doctor to receive counselling in relation to some personal issues that Singh had disclosed to him. He also told Singh to contact you to inform you of this conversation. Singh then finished work and left the depot. It was 3.46am.

D.2 Singh’s return home from his nightshift: 4.30am to 7.30am

After Singh arrived at his home in Cranbourne at around 4.30am, Singh’s son, who was leaving home for work, observed Singh looking disoriented in their driveway. Once inside their home, Singh told his wife that he had being seeing a witch who changed clothes. Singh had spoken of witches in front of his wife in the past, over a number of years. When his wife left for work at 6.00am, Singh had already turned the light off and gone to his bedroom.
Whatever sleep Singh may have had in the early hours of the morning of 22 April 2020, it was not for any extended period. From 4.30am to 7.30am, the longest period of inactivity on his mobile phone was 1 hour and 43 minutes.[9]

D.3 Singh’s activities after leaving home at 7.30am until he arrived at the Lyndhurst depot at 3.30pm

[9]See pars 33, 45 below in relation to Singh’s evidence about his level of sleep that morning.

At 7.30am, Singh left his home to meet a person in Dandenong to sell that person methylamphetamine, which he duly did. That person told Singh that he should go home and have a sleep. Singh gave evidence to this court that he had no recollection of going to this person’s home on 22 April 2020.
Just over an hour later, you exchanged text messages with Singh. In the first of these messages, Singh stated that he had seen Harrison the previous night, and told you that he was “going through some hard times at home and other things”. Singh said he needed “to come and speak to you about some of them”. After stating that he intended to see a doctor, Singh enquired as to when he could come and see you. You messaged back shortly after stating that you could talk that afternoon, and that you would be in the office. A minute later, Singh responded stating “Ok”, but explained that Harrison had expressed the view that Singh was not fit to drive.
As a result of this exchange, Singh telephoned you and you spoke with him for roughly 5 ½ minutes. Almost immediately after this discussion, you sent a further text message to Singh stating “[Harrison] is NOT a doctor”. Singh responded by stating simply “Ok thanks”.
At around 11.00am, Singh visited a house in Cranbourne, again for drug-related purposes. He told the occupant that he had not slept in 8 days, which was plainly untrue.[10] He was mumbling as he spoke and appeared to be falling asleep. At the time he gave evidence in this court, Singh had no recollection of this visit either.[11]
[10]It was uncontroversial that Singh had slept the night before while on his shift: see par 16 above.
[11]For completeness, Singh suggested that a meeting had taken place outside a hardware store.
Shortly after midday, you sent a text message to Singh telling him to come in at 3.30 that afternoon so that “we have time to talk and we’ll make sure you’re going to be ok”. About half an hour later, Singh replied by stating “OK”. You then received a text message from Harrison which read:
Hi Simon, has [Singh] called you? He came and seen (sic) me last night and I am concerned about his mental state. He told me he is not in a good spot. He was putting trucks on wrong docks and he had a sleep on the way back from Thomastown and slept in, he didn’t get back to Lyndhurst till around 2.00am. I was trying to ring him, but his phone was off. I don’t think he should be driving, I told him to go to doctors (sic) straight away. I will leave it with you to maybe make contact with him, if he hasn’t rang (sic) already.
After receiving this message, you immediately sent a response to Harrison stating you would speak to Singh.
The prosecution sought to make something of the fact that you did not speak with Harrison directly as a result of his text message to you. In my view, little turns on this. As a preliminary matter, your senior counsel submitted that it was not out of the ordinary for a driver to have a sleep during a shift, pointing out that the vehicles have bunks in them specifically for that purpose. No contrary submission was made. In relation to your decision not to discuss the matter with Harrison, Harrison himself suggested that it was appropriate to leave things to you, presumably because you were the supervisor. Further, Harrison was not working at the time he sent his message. Most importantly, you agreed with Harrison to speak directly with Singh, which is what you duly did. Indeed, you stated in your record of interview that you considered it important to have that conversation.
All of that said, as a result of Harrison’s text message, you were plainly on notice that there were issues concerning Singh’s fitness to drive and that those issues needed to be addressed.
At around 2.30pm, Singh returned home. His daughter described him as looking “distressed”, and he was rambling and erratic. Singh’s son said that he had dilated pupils, and that he could not stop speaking and kept repeating himself.
At around this time, you had a telephone discussion with a co-worker at Connect Logistics. You told him that Singh might not be in that day and that you might be doing the Thomastown load instead of Singh. Obviously, at this time you were alive to the possibility that Singh may not be fit to drive.

D.4 Interactions between you and Singh upon his arrival at the Lyndhurst depot at 3.30pm

Singh arrived at the Lyndhurst depot of Connect Logistics at around 3.30pm. You and Singh engaged in conversation at the depot for 44 minutes. Some of the interactions that occurred during that time were in dispute. Accordingly, it is necessary to assess Singh’s account of those events.[12]
[12]As for the approach on a contested plea, see Formosa v The Queen (2012) 36 VR 679, 681-682 [8] (Whelan JA, with whom Redlich and Osborn JJA agreed), cited with approval in McCray v The Queen [2017] VSCA 340, [20] (Maxwell P and Croucher AJA).

D.4.1 Singh’s account

Singh gave evidence in this court that he asked you to come outside the depot so that other people could not overhear you speaking to 1 another. His evidence was that he told you that he had picked up a girl who he thought was a witch who had cursed him, and that he had not slept and was seeing things.[13] According to Singh, in response you stated that witches leave items behind “like voodoo dolls and hair”, and you both then searched his car. Singh deposed that while this was occurring, he told you again that he “hadn’t been asleep” or “hadn’t any sleep”. Singh said that you did not respond to these comments, and kept searching the car. He suggested that the search was conducted for around 10 to 15 minutes, though he could not be sure about the length of time.
[13]The prosecution provided a number of different versions of what Singh said with respect to his state of fatigue. In its summary of prosecution opening for sentence indication dated 25 October 2023, it was stated that, while searching Singh’s car, Singh said that he had not had any sleep since he had been sent home by Harrison earlier that day. In an amended opening for plea dated 5 December 2023, it was suggested Singh stated that he was tired. The prosecution explained that this change was made as a result of an objection, in the hope that the change would result in resolving an issue between the parties as to what was said. This remained the version advanced by the prosecution until the hearing on 6 February 2024. However, at the hearing on that day, the prosecution contended that Singh stated that he had not slept since he went home the previous night.

It seems there is little dispute that matters relating to a witch’s curse were discussed and that, after the search, you put your hand on Singh’s head and said some words which ended with: “In Jesus’ name, I cast a spell out of you”. Singh’s evidence was that you then told him that he was “right to go now”, and that you just needed Singh to do 1 load and after that he could see how he felt or go home. That load was to Thomastown, a return trip that usually took about 2 ½ to 3 hours. From a conversation Singh had with an acquaintance a short time later, it appeared that Singh believed that you had “cleansed his spirit” and rid him of the curse.[14]
[14]However, it should be noted that in his evidence before this court, Singh swore that he did not feel significantly different after praying.
With respect to Singh’s mental and physical state on the afternoon of 22 April 2020, his evidence was that he had been taking “a considerable amount of drugs in the days leading up to the collision”, including the preceding weekend,[15] and was feeling “crap” because of a lack of sleep. Singh also conceded he had memory issues at the time, such that he could not remember many things leading up to the collision.[16]
[15]Expert evidence was adduced to the effect that the level of methylamphetamine in Singh’s body at the time of the collision would have impaired his ability to drive to such an extent that he would have been incapable of having proper control of a motor vehicle.
[16]See par 24 above. Further, amongst other things, Singh gave evidence that he had no recollection “at all” of a 20 minute conversation on his mobile phone which occurred shortly before the collision.
Despite this, Singh’s evidence was that he could remember everything about attending at the depot when meeting with you.
There are numerous reasons why this assertion cannot be accepted. Without being exhaustive, I will refer to some matters which demonstrate why Singh was a very unreliable witness.[17]
[17]To be clear, the points to be made in this section of the sentence concern Singh’s reliability, rather than his credibility.

D.4.2 Singh’s lack of reliability as a witness

Singh’s evidence in this court was that when he arrived at the depot, he did not think that he was fit to drive. Consistent with this, he also swore that he had no intention of completing his shift, and that he had only travelled to the depot for the purpose of meeting with you. In an attempt to corroborate his evidence about his state of mind and asserted clear recollection of the critical conversation he had with you, Singh said that he remembered “what shirt [he] had on, everything”.
He elaborated by stating that he came to the depot wearing an orange T-shirt and blue jeans and was not dressed to drive. Singh accepted that he was wearing his work boots when he arrived, but he explained this on the basis that he always wore them wherever he went. Although his evidence on this point was slightly unclear at times, Singh appeared to state that after his discussion with you at the depot, he went to his car and changed into his work T-shirt because he had had a “yellow/orange T-shirt on” when he arrived, and that he left the depot shortly after this.
When this issue was raised in cross-examination, Singh maintained that he was wearing an orange T-shirt when he arrived at the depot, stating that it could be proven by footage from the surveillance cameras at the depot. Singh was then shown photographs captured by the depot’s surveillance cameras which clearly showed that at the time he entered the depot to meet with you, he was not in fact wearing an orange T-shirt. Instead, Singh had his high-visibility work shirt on, being the same shirt he had worn during his shift the night before and the 1 that he usually wore when working as a driver.
In an attempt to explain this away, Singh said he was dressed in this manner because of “rules or regulations” concerning forklifts and trucks and that he may have taken the high-visibility work shirt out of the boot of his car when he arrived. He then sought to dispute that the photograph was taken on the day in question, but the evidence irrefutably established that it was in fact taken on that day.[18] Whatever be the position regarding when he put the high-visibility work shirt on, the photographic evidence demonstrated that Singh was plainly incorrect in stating that he only put it on after meeting with you.
[18]The photograph was time and date stamped 3.35pm on 22 April 2020, being the approximate time at which Singh arrived at the depot: see par 30 above.
Another matter concerned Singh’s contrary accounts of whether he had slept at home on the morning of 22 April 2020. In his statement to police in May 2021, Singh said he had been asleep that morning and was woken by a phone call from you. However, in his evidence to this court, he said he could not remember if he was asleep at this time, and could only remember “relaxing on the bed and getting a jolt” when he received a text message from you. Later, Singh gave implausible evidence that what he meant in his May 2021 statement when he said that he had “slept” was in fact that he “jumped into bed”. However, in the same answer, he also said that he might have slept for an hour or so.
Under cross-examination, Singh then sought to avoid the consequences of answers he had given at the committal hearing in this proceeding in relation to the question of whether or not he had slept that morning by saying that his brain “froze up” and he did not know what he was answering when giving that evidence. In re-examination, Singh positively stated that he did not fall asleep when he went to bed that morning. However, very soon after this, his evidence was that he did not know whether or not he fell asleep. In short, Singh’s evidence on this critical issue was totally unsatisfactory. Thus, there was no proper basis to reject your account that, at the time you spoke with Singh that afternoon, you made the assumption that he had had sufficient rest since his previous shift.
Issues concerning Singh’s reliability as a witness were not confined to the inconsistencies in his account of the events on 22 April 2020. Singh accepted that in May 2021 when he first gave a statement to police, he had been having general memory problems for a number of years. Singh also acknowledged that at the time he gave his May 2021 statement he was taking olanzapine, an anti-psychotic medication, which he said adversely affected his memory. However, he insisted that his memory had improved after giving his May 2021 statement.
Be that as it may,[19] there were many further pieces of evidence that demonstrated that Singh still had a very unreliable memory. Indeed, although he said that he read his May 2021 statement on the morning he gave evidence to this court, he indicated on a number of occasions while giving his evidence that he could not recall its contents, explaining that “nothing really sinks in”. In a similar vein, he gave sworn evidence at a committal hearing in this proceeding on 21 May 2021, but when giving evidence for this plea hearing, he said he could not really remember his earlier evidence.
[19]There was no need to determine this issue for the purpose of determining reliability issues, given the litany of inconsistencies in Singh’s evidence.
By way of another example, Singh met with a forensic psychiatrist for 2 consultations after the collision, during which he gave his version of the relevant events. Remarkably, his evidence to this court was that he could not recall a single thing about what he told this psychiatrist.[20]
[20]This was in response to suggestions that what had been said to the psychiatrist was inconsistent with Singh’s current account of the events in question.
I will refrain from referring to other examples of the unsatisfactory nature of Singh’s evidence. It suffices to say that the prosecution failed to prove beyond reasonable doubt[21] that Singh said to you on 22 April 2020 that he had not slept or words to that effect.
[21]Being the standard of proof required in order for a sentencing judge to take into account facts adverse to the interests of an accused: R v Storey [1998] 1 VR 359, 369.6 (Winneke P, Brooking and Hayne JJA and Southwell AJA), cited with approval in R v Olbrich (1999) 199 CLR 270, 281 [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ). See also fn 12 above.
In light of this finding, it is not strictly necessary to make any finding about Singh’s credibility, and accordingly I do not do so. However, some matters should be referred to in passing.

D.4.3 Matters relating to Singh’s credibility as a witness

When giving evidence in this court, Singh acknowledged that at the time of the collision, there was nothing wrong with the truck he was driving. He specifically accepted that it was not wobbling shortly before the collision, despite the fact that this was what he told police at the scene. He conceded that in telling police this untruth, he had been trying to “get out of trouble” and to lessen his blame and responsibility. Although Singh denied that this was what he was again doing in making a statement against you, his willingness to misrepresent the position previously did not instil any confidence in accepting his current account of what had happened.
Singh also told a number of other untruths to police when giving his statement in May 2021, including that he had not taken any drugs at all between the time he completed his shift on the morning of 22 April 2020 and the collision. Further, Singh told police that you had required him to come into work on 22 April 2020. As the text messages referred to above demonstrate,[22] this was an inaccurate account of why Singh attended the depot on that day. In giving evidence in this court, Singh accepted that he attended at his own instigation in circumstances where he thought he might otherwise lose his job. This context gives a completely different impression of any discussion that took place before Singh chose to drive that afternoon than that which Singh attempted to portray when giving his statement to police in May 2021.
[22]See par 22 above.
Finally, it is noted that Singh’s first statement was provided to police more than a year after the collision. In giving evidence in this court, Singh accepted that he understood that by doing so it might assist with his then pending appeal against his initial sentence.

D.5 Singh’s departure from the Lyndhurst depot

Returning to uncontroversial matters, as Singh left the Lyndhurst depot for Thomastown, he signed a “fitness for duty” acknowledgement. Thus, immediately before getting in the truck, Singh represented in writing that he was fit to drive a heavy vehicle. Singh signing such a document is consistent with the account you gave police, namely that at the end of your conversation with him you both agreed that he was fit to drive.
At 4.58pm, Singh left the depot in his truck, stopping briefly nearby to supply a person methylamphetamine. He told that person that he had not lost his job, that he was going to Thomastown to do 1 important load and his boss had said he could go home and rest after that.
As mentioned earlier, the collision that resulted in the deaths of Constable Humphris, Senior Constable King, Constable Prestney and Leading Senior Constable Taylor occurred just over half an hour later, at 5.36pm.
Having outlined the relevant offence, your roles and responsibilities, your personal background and the events leading up to the collision, including an assessment of Singh’s evidence in relation to those events, I turn now to the principles underpinning my decision regarding the appropriate sentence to impose on you.

E. Sentencing guidelines and considerations

E.1 Governing principles

The only purposes for which a sentence may be imposed are prescribed under section 5(1) of the Sentencing Act 1991 (Vic). These purposes include punishing the offender to an extent and in a manner which is just in all of the circumstances; deterring the offender or other persons from committing offences of the same or a similar character; establishing conditions which may facilitate the rehabilitation of the offender; manifesting the denunciation by the court of the conduct in question; and protecting the community from the offender.[23] In sentencing you, I must adhere to the principle of parsimony and must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.[24]
[23]See also Veen v The Queen (No 2) (1988) 164 CLR 465, 476.8 (Mason CJ, Brennan, Dawson and Toohey JJ).
[24]Sentencing Act, s 5(3).
I must also have regard to a number of other considerations, including but not limited to the maximum penalty prescribed for the offence,[25] any current sentencing practices, the nature and gravity of the offence, your culpability and degree of responsibility for the offence, the impact of the offence on victims, and the presence of any aggravating or mitigating factors.[26] The weight and emphasis to be given to various factors is a discretionary exercise which depends on the facts and circumstances of each case.[27] Through a process of instinctive synthesis, I must balance these factors, which may point in different and conflicting directions, in order to arrive at a sentence that is just in all the circumstances.[28]
[25]In this case, $300,000 or 5 years’ imprisonment or both: National Law, s 26F(1).
[26]Ibid, s 5(2).
[27]Director of Public Prosecutions (Victoria) v Dalgliesh (2017) 262 CLR 428, 434 [7] (Kiefel CJ, Bell and Keane JJ), 452 [79] (Gageler and Gordon JJ); Markarian v The Queen (2005) 228 CLR 357, 371 [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ); R v Williscroft [1975] VR 292, 300.8-301.3 (Adam, Starke and Crockett JJ).
[28]Director of Public Prosecutions (Victoria) v Dalgliesh (2017) 262 CLR 428, 434 [5] (Kiefel CJ, Bell and Keane JJ), 452 [79] (Gageler and Gordon JJ), citing Wong v The Queen (2001) 207 CLR 584, 611 [75] (Gaudron, Gummow and Hayne JJ). See also Markarian v The Queen (2005) 228 CLR 357, 373-375 [37]-[39] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

E.2 Early plea to remaining charge in the context of the history of the proceeding

The prosecution of the case against you has been somewhat protracted. The consequential delay is an important consideration and must be taken into account in sentencing.[29] In addressing this issue, it is also important to refer to the key steps taken in this regard, as the prosecution has disputed your contention that you pleaded guilty early.
[29]R v MWH [2001] VSCA 196, [18] (Callaway JA, with whom O’Bryan AJA agreed), and the cases there cited.
As a result of the events surrounding the collision, you were first arrested on 1 August 2020, at which time you were charged with 4 counts of manslaughter. You were granted bail on the same day. The case against you has changed substantially since this time.
The hand-up brief was served on you on 28 September 2020. In addition to the 4 charges of manslaughter, it disclosed 11 charges under section 26F of the National Law, only 6 of which related to the collision on 22 April 2020. Obviously, charges of manslaughter against 4 serving police officers are very serious, and each charge carried a maximum sentence of 25 years’ imprisonment.[30]
[30]Crimes Act 1958 (Vic), s 5.
On the facts as now presented to the court, those charges simply could not have been made out. Appropriately, there was no suggestion by the prosecution at the plea hearing that you should have ever contemplated pleading guilty to such charges.
Before the committal hearing was held, your senior counsel enquired of the prosecution whether there was any prospect of the matter resolving on the basis that you would plead guilty to a regulatory offence and the manslaughter charges would be dropped. In essence, the response was described as “an emphatic no”. Your counsel was informed by the prosecution at that time that the manslaughter charges would continue to be prosecuted.
When an indictment was first filed on 22 September 2021, it contained 4 charges of manslaughter and 4 charges under section 26F of the National Law. In December 2021, you successfully applied for that indictment to be severed. This resulted in 2 further indictments being filed on 7 February 2022. The second indictment contained the previous 4 charges of manslaughter and the third indictment contained the previous 4 charges under section 26F of the National Law. Thus, together, they effectively replicated the first indictment.
Only the 4 manslaughter charges the subject of the second indictment were set down for trial and listed to commence on 3 October 2022. The hearing commenced on that day with a series of pre-trial arguments. The trial judge heard submissions and gave rulings up until 14 October 2022. A few days later, the prosecution was directed by the court to rewrite its opening. This was in order for the prosecution to explain the manner in which the case against you was to be put, including the acts, facts, matters and circumstances relied upon.[31] This never occurred. On 28 October 2022, the prosecution filed a notice of discontinuance in relation to the charges the subject of the second indictment.[32] As a consequence, the prosecution was ordered to file an amended opening with respect to the third indictment, and the matter was adjourned to 5 December 2022.
[31]Pursuant to s 182(2) of the Criminal Procedure Act.
[32]This change of position was also announced in open court.
Instead, on 11 November 2022, a fourth indictment was filed, effectively discontinuing the third indictment.[33] It contained 2 charges under section 26F of the National Law. The conduct giving rise to these charges was alleged to have occurred between 16 September 2019 and 22 April 2020. This indictment persisted for only 3 months.
[33]Criminal Procedure Act, s 164(4).
On 5 December 2022, the proceeding was again set down for trial, this time on 13 February 2023. Submissions were filed on your behalf in support of an application for a permanent stay of the fourth indictment on 19 January 2023, which application was to be heard at the commencement of trial on 13 February 2023.
However, on 10 February 2023, a fifth and final indictment was filed, which again had the effect of discontinuing the charges the subject of the fourth indictment.[34] This indictment contained a single charge, being the same charge to which you are now to be sentenced. Importantly with respect to the issue of the timing of your plea of guilty, the amended prosecution opening which accompanied this fifth indictment stated, amongst other things, that it was alleged that you were reckless by allowing Singh to drive in an unfit state and that you knew there was a probability of a danger of serious injury or death.
[34]Ibid.
The prosecution maintained its case based upon probability up until the proceeding was permanently stayed by the trial judge on 3 March 2023.[35] That also remained the position when the Court of Appeal set aside the order granting a permanent stay on 17 August 2023.[36] Sometime after this, you indicated to the prosecution that you would be willing to plead guilty to a lesser offence under section 26G of the National Law.[37] That offer was rejected. However, “very shortly” after this rejection, the prosecution’s position changed.
[35]Director of Public Prosecutions v Tuteru (Ruling No 3) [2023] VSC 93.
[36]Director of Public Prosecutions v Tuteru (2023) 105 MVR 125, 158 [137] (Beach, Walker and Taylor JJA).
[37]The offence under s 26G of the National Law is a category 2 offence that does not include an element of recklessness and does not carry a penalty of imprisonment. The offence under s 26F is a category 1 offence and provides for more serious penalties, including up to 5 years’ imprisonment.

Prior to a directions hearing held in mid-September 2023, the prosecution indicated that it would be putting its case on the basis of foresight of a possibility of the relevant risk, rather than a probability.[38] Self-evidently, there is a fundamental difference between pleading guilty to a charge that you knew there was a probable danger of exposing an individual to a risk of death or serious injury and being reckless as to that risk, and the far less serious allegation that you knew it was possible there was such a danger and were reckless in that regard.
[38]This position is consistent with the construction of s 26F adopted in National Heavy Vehicle Regulator v Birrell (2023) 104 MVR 18, 32 [49], 34-35 [65]-[67] (Blue J).
On this materially less serious premise for the charge to be prosecuted, you promptly indicated that you would seek a sentence indication.[39] The hearing for the purpose of that indication took place on 30 November 2023, and upon an indication being given that day, you immediately indicated that you would plead guilty to the single remaining charge. In doing so, you justifiably did not accept the facts advanced by the prosecution insofar as they placed reliance upon Singh’s account of what he told you on the afternoon of 22 April 2020.
[39]Criminal Procedure Act, s 207.
The history set out above clearly shows that once the basis on which the single remaining charge was to be put was clarified by the prosecution, you pleaded guilty at the first reasonable opportunity. You are entitled to the benefit of this,[40] including because of the utilitarian value of pleading guilty in circumstances where the continued prosecution of the charge would have required significant court and prosecution resources and necessitated a large number of witnesses giving evidence.
[40]Phillips v The Queen (2012) 37 VR 594, 605-606 [37]-[39] (Redlich JA and Curtain AJA, with whom Maxwell P agreed).
Further, while no criticism is made of the prosecution,[41] the objective fact is that this proceeding has been a drawn out process conducted over a number of years in a way that could not be described as optimal or efficient.[42] For much of that time, you were facing very serious charges that have resulted in the loss of your job and your ability to engage in your pastoral role. You and your family have struggled financially as a result.[43] The media has also taken an active interest in this case, which interest was described by your counsel as “significant if not relentless”.[44] This has included a media presence outside your family home, as well as when you have been required to attend court. Undoubtedly, this has all placed a heavy burden on you, which must be taken into account.
[41]Noting the observations in Director of Public Prosecutions v Tuteru (2023) 105 MVR 125, 156 [116] (Beach, Walker and Taylor JJA).
[42]Ibid, 158 [135].
[43]See par 13 above.
[44]The circumstances of this case have been the subject of extensive media coverage, including on a number of national current affairs programs.
Pleading guilty is also demonstrative of your remorse. Although it was difficult to demonstrate such remorse when the far more serious charges remained on foot, your actions since those charges were dropped show remorse. This was also illustrated in the character references that were tendered on your behalf. Although it may provide little comfort to the victims’ families, the extent of your remorse is reflected in the fact that since the tragic deaths of the 4 police officers on 22 April 2020, you and your wife have prayed for their families every day.

E.3 The gravity of the offence

The court must ensure just punishment. What is just in part depends upon the gravity of the offending. The prosecution accepted, both at the sentence indication hearing and at the plea hearing, that a non-custodial sentence was within the range of appropriate sentences for the charge to which you have pleaded guilty.[45] Notwithstanding this, the prosecution submitted that the circumstances of this case represented a grave example of the offence charged.
[45]This was the prosecution’s position in relation to this case, whereas it submitted that ordinarily a term of imprisonment would be appropriate. This sentence is only concerned with the facts of this case.
As already discussed,[46] self-evidently, if you had realised it was probable there was a relevant risk and were reckless to this, that would have been far more egregious than realising that there was a possibility of the risk and being reckless in that regard. This uncontroversial proposition is directly relevant to assessing the gravity of the offence.
[46]See par 67 above.
Further, the prosecution’s submission relied, albeit not exclusively, upon the court finding that Singh told you shortly before commencing his shift on 22 April 2020 that he had not slept since the previous shift, and that he thereby implicitly told you that he was not fit to drive. In light of the rejection of this evidence of Singh,[47] this submission must also be rejected.
[47]See par 45 above.
Furthermore, although it is clear that you appreciated that there were issues about whether Singh was fit to drive in the sense that you knew it was possible there was a risk of death or serious injury and were reckless in that regard, there was also no evidentiary basis for the prosecution’s contention that, upon seeing Singh, it would have been obvious to you that he was not fit to drive.
Moreover, although considered objectively the fact that you agreed to pray with Singh to cast out the curse he believed he was under is somewhat unusual, it does not elevate the gravity of your offending to such a level that the circumstances could be considered grave. It is clear that, because of your religious beliefs, you firmly believed you could help (and in fact had helped) Singh by praying with him in the manner that you did.[48] This subjective belief that I am satisfied you genuinely held is also relevant to your level of moral culpability.
[48]The fact that you held such a belief was evident from a text message you sent shortly after Singh left the depot.
In addition, the fact that you stated to Singh that he should do 1 load and then an assessment could be made after that as to whether he would continue driving did not suggest total indifference to the situation. Such an approach was entirely consistent with recognising a risk, but considering it was reasonable for Singh to do an early shift that afternoon and to then reassess the position.
Next, the prosecution relied on the fact that there was evidence that replacement drivers were readily available.[49] In my view, this fact is entirely consistent with you forming a view that Singh was fit to perform a single delivery and that the circumstances did not warrant the (albeit relatively minor) inconvenience of calling in another driver. In short, this fact does not indicate an increased gravity in your behaviour.
[49]See par 8 above.
Without itemising the remaining matters relied upon by the prosecution, each of them amounted to little more than repeating the elements that would necessarily form part of any breach, rather than a grave example of a breach of the relevant duty. In particular, while there can be no doubt that the risks involved were grave, including death or serious injury, these are the very risks that form part of the elements of the offence.
In assessing the gravity of your offending, I also take into account the fact that when you were informed there might be an issue with Singh’s fitness to drive, you responded promptly and thoughtfully. You accepted that you needed to make your own assessment of Singh’s fitness rather than relying upon others. Further, your decision-making process was not motivated by any benefit that might have come to you or to Connect Logistics from allowing Singh to drive. As you explained to police in your record of interview, you were not under any pressure to have Singh perform his shift.
In summary, while not disregarding or in any way diminishing the horrific consequences of your decision, which involved the deaths of 4 police officers, the facts do not demonstrate that the circumstances of this case represent a grave example of the offence.

E.4 The impact on victims

Ten victim impact statements were tendered in relation to the impact of the deaths of Constable Humphris, Senior Constable King, Constable Prestney and Leading Senior Constable Taylor. Three of these statements were read aloud in open court by the mother, father and brother of Constable Prestney. In addition to family members, statements were also made by others affected by the deaths of these police officers and the horrific scenes of the collision. The statements clearly and overwhelmingly demonstrate the devastating, life-changing and irreversible impact that their deaths have had on their family and friends, the police force and the community more generally. I have taken each of these statements into account in determining the appropriate sentence to impose upon you.[50]
[50]It was accepted that a number of the victim impact statements contained inadmissible material. Consequently, the victim impact statements have been taken into account in accordance with s 8L(6) of the Sentencing Act, which states that:

E.5 Your character and prospects of rehabilitation, deterrence and other matters

Your personal background demonstrates a life that has been spent caring for your family and other members of the community, and makes clear that you are hardworking and dedicated.
There is no question that you are a person of good character.[51] Indeed, your personal history shows a remarkable resilience. You have become a valued member of your community against a backdrop of a very difficult and confronting upbringing.
[51]It appeared as though the prosecution might have been challenging this proposition by referring to certain answers given in your record of interview. It was submitted that you told police that “at no point” did Singh mention a witch in his conversation with you on the afternoon of 22 April 2020. That submission was not supported by an accurate reading of the answers referred to. Further, the prosecution failed to refer to a further answer given by you shortly after in which you expressly acknowledged that Singh had spoken to you about witchcraft.
You have no criminal record.
Your prospects of rehabilitation are very strong. I do not consider there is a need to give much weight to specific deterrence, given your long history in the transport and logistics industry without any prior transgressions. The prosecution conceded that specific deterrence and protection of the community should be given little, if any, weight in sentencing.
However, general deterrence is a different matter. It is a relevant factor to be given significant weight in determining your sentence. A national legislative scheme in relation to heavy vehicles was introduced in recognition of the serious and potentially tragic consequences that can result from a failure to observe appropriate safety measures in this context. Equally, denunciation is a further factor to be taken into account in seeking to ensure that appropriate practices and procedures are adopted to make the trucking industry as safe as it can reasonably be.
There are presently no current sentencing practices in relation to a contravention of section 26F of the National Law.

F. Appropriate form of penalty

I accept the prosecution’s submission that any fine or community correction order imposed must be substantial in order to reflect the seriousness of a breach of section 26F of the National Law.
If a fine were imposed, it would be necessary for the court to consider your financial circumstances and the nature of the burden it would place upon you in determining the appropriate amount.[52] As has already been touched upon, you have suffered considerable financial consequences due to your offending and have limited financial means. In these circumstances, the amount of any fine that could be imposed in accordance with the strictures of the Sentencing Act would not, in my view, properly reflect the seriousness of the offence and the circumstances of this case.
[52]Sentencing Act, s 52(1). See also Sgroi v The Queen (1989) 40 A Crim R 197, 200.5 (Malcolm CJ, with whom Roland J agreed).
The appropriate alternative to a fine in this case is a community correction order. Such an order is regarded as a flexible sentencing option that enables punitive and rehabilitative purposes to be served simultaneously,[53] albeit the latter is of less relevance in this case.
[53]Boulton v The Queen (2014) 46 VR 308, 311 [2] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA). Senior counsel on your behalf accepted that a community correction order would be an appropriate alternative to a fine, and no doubt has had a reasonable opportunity to explain to you the nature and effect of such an order: ibid, 354 [201]-[202].
The Sentencing Act requires that at least 1 discretionary condition is imposed on any community correction order,[54] which may include unpaid community work.[55] Beyond the standard conditions, it was not suggested that anything other than unpaid community work for a specified number of hours ought to be imposed as a condition of any order made against you.
[54]Sentencing Act, s 47(1).
[55]Ibid, s 48C(1).

G. Conviction and sentence

In all the circumstances, in balancing the relevant factors as best as I am able, upon a conviction being entered and you providing your consent to the order, a community correction order will be made. This order will have attached to it an unpaid community work condition of 200 hours over 3 years.
Pursuant to section 45(1) of the Sentencing Act, the order will contain the following standard conditions:
(1)You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
(2)You must comply with any obligation or requirement prescribed by the regulations.[56]
(3)You must report to, and receive visits from the Secretary [to the Department of Justice and Community Safety (“the Secretary”)] during the period of the order.
(4)You must report to the community corrections centre specified in the order within 2 clear working days after the order coming into force.
(5)You must notify the Secretary of any change of address or employment within 2 clear working days after the change.
(6)You must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary.
(7)You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
[56]See Sentencing Regulations 2021 (Vic), reg 15.
Pursuant to section 6AAA of the Sentencing Act, I declare that, but for your plea of guilty, if you had been found guilty of the offence charged after pleading not guilty, I would have imposed upon you a sentence of 300 hours of unpaid community work by way of a community correction order.

If the court receives a victim impact statement that contains inadmissible material, the court, in sentencing the offender—
(a) is not to rely on the material that the court considers to be inadmissible; and
(b) need not specify which of the material is not being relied on.

[2024] VSC 80

6 March 2024