Director of Public Prosecutions v Twentyman
[2023] VCC 2229
•5 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-22-01213
Indictment No. M11938961.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES MICHAEL TWENTYMAN |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 30 October 2023 | |
DATE OF SENTENCE: | 5 December 2023 | |
CASE MAY BE CITED AS: | DPP v Twentyman | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2229 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One charge of recklessly engaging in conduct endangering persons, namely driving a motor vehicle while under the influence of drugs and one charge of culpable driving, negligently and/or while under the influence of drugs, to such an extent as to be incapable of having proper control of a motor vehicle – pleas of guilty following sentence indication – guilty plea having utilitarian value, attracting principles in Worboyes – some evidence of remorse – limited criminal history – reasonable prospects of rehabilitation
Legislation Cited: Crimes Act 1958, s23, s318(1); Sentencing Act 1991, s3, s5(2H), s87P and s89
Cases Cited:Pasznyk v R (2014) 43 VR 169; Worboyes v R [2021] VSCA 169; Phillips v R (2012) 37 VR 594; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; R v Brown [2018] VSC 742; Brown v R (2019) 59 VR 462; Muldrock v R (2011) 244 CLR 120; Lugo (A Pseudonym) v R [2020] VSCA 7; R v Williamson (2009) 21 VR 330; Director of Public Prosecutions v Clarke [2005] VSCA 2; R v O’Connor [1999] VSCA 55; Barbaro v R; Zirilli v R (2012) 226 A Crim R 354; DPP v O’Brien [2023] VCC 505; DPP v Mitcham [2023] VCC 464; Director of Public Prosecutions v Kellalea [2023] VCC 47; DPP v Egel [2022] VCC 645
Sentence: Total Effective Sentence – 7 years, 10 months
Non-Parole Period – 4 years, 8 months
Cancellation of licence for 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P J Pickering | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr M Kozlowski | Papa Hughes Lawyers |
HIS HONOUR:
1Following a sentence indication hearing on 13 July 2023, you were arraigned and pleaded guilty to the following offences:
CHARGE 1 – That you, at Spotswood in Victoria on 12 September 2021, without lawful excuse, recklessly engaged in conduct that placed Christine Hocking in danger of serious injury, namely, driving a motor vehicle whilst under the influence of drugs.
The offence of conduct endangering persons is contrary to s23 of the Crimes Act 1958 and carries a maximum penalty of five years’ imprisonment.
CHARGE 2 – That you, at Spotswood in Victoria on 12 September 2021, by culpable driving of a motor vehicle, caused the death of Harry Papagoras in that you drove the motor vehicle:
(a) negligently; and/or
(b) while under the influence of drugs to such an extent as to be incapable of having proper control of the motor vehicle.
The offence of culpable driving causing death is contrary to s318(1) of the Crimes Act 1958 and carries a maximum penalty of 20 years’ imprisonment.
2Furthermore, s3 of the Sentencing Act 1991 defines a “category 2 offence” to include the offence of culpable driving, as set out in s318(1) of the Crimes Act 1958. Section 5(2H) of the Sentencing Act 1991 directs that in sentencing an offender for a category 2 offence, a court must make an order pursuant to Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with s44 of the Sentencing Act 1991) unless a defined exception applies.
3Your counsel disclaimed reliance on any exception and, accordingly, you must be sentenced to a period of imprisonment – not being a sentence of imprisonment in addition to making a community correction order in accordance with s44 of the Sentencing Act 1991.
4The offence of culpable driving is also subject to the Standard Sentencing Scheme which was introduced by the Sentencing Amendment (Sentencing Standards) Act 2017. That Act introduced standard sentencing for various serious offences committed in or after February 2018 (see s5A and s5B of the Sentencing Act 1991). Section 318(1A) of the Crimes Act 1958 stipulates the standard sentence for the offence of culpable driving to be eight years.
5Furthermore, s87P(c), of the Sentencing 1991 provides that an offence contrary to s318 of the Crimes Act 1958 (that is, culpable driving), is a “serious motor vehicle offence”. Accordingly, pursuant to s89 of the Sentencing Act 1991, the Court must order that any licence that you hold be cancelled and that you be disqualified from obtaining a further licence for a period of time to be specified by the Court, but in the circumstances of this matter, no less than twenty-four months.
The circumstances of the offending
6Counsel for the prosecution has provided a document headed “Summary of Prosecution Opening for Plea” (exhibit 1).
7I will not repeat all the contents of that document, but highlight the following important matters:
· You were born in June 1993 and are presently thirty years old. At the time of offending, you were twenty-eight years old and the registered owner of a silver Ford Territory, registration number ending 684 (“the Ford Territory”).
· The victims in this matter are Ms Christine Hocking and Mr Harry Papagoras.
· On Sunday, 12 September 2021, you were driving the Ford Territory travelling south on Douglas Parade, Spotswood (“Douglas Parade”) in the early afternoon.
· At approximately 2.00pm on that day, Ms Hocking left her home and was travelling north along Douglas Parade in her white Honda Civic, registration number ending 3ME (“the Honda Civic”).
· At the same time, Mr Papagoras was riding his bicycle north along Douglas Parade in the bicycle lane.
· Douglas Parade is a two-way, two-lane road running north-south, with the opposing lanes being divided by a broken white line. The speed limit in the area of Douglas Parade was 60 kilometres per hour.
· Prior to the point of the collision, the road facing the southbound driver – that is, you – curved slightly to the left before straightening again.
· The collision occurred between the Ford Territory and the Honda Civic and the bicycle ridden by Mr Papagoras at approximately 2.20pm.
· In the vicinity of the intersection of Sun Street and Douglas Parade, Ms Hocking observed the Ford Territory to cross the centre line of Douglas Parade. The Ford Territory did not slow down, but instead went directly towards the Honda Civic, across the centre line to the incorrect side of the road without deviation or braking.
· The path of the Ford Territory as it crossed the centre line to the wrong side of the road was described by a witness as follows:
“… the oncoming car, which was a light coloured wagon, veering onto the incorrect side of the road. It wasn’t a sudden veer it was gentle veer, it almost looked like it was floating across the road.
The light coloured wagon continued to travel on the same path and it looked to me like it was travelling on a 45 degree angle into the wrong lane”.
· Ms Hocking turned the Honda Civic to the left, but was unable to avoid the Ford Territory, with the front right corner of your vehicle striking the front right side of the Honda Civic. As a consequence of the impact, the Honda Civic rotated clockwise and to the rear, and became stationary along the western bicycle lane facing north-east.
· After the impact of the Ford Territory on the Honda Civic, the Ford Territory did not change its path but continued on the west side of Douglas Parade where Mr Papagoras was riding his bicycle in the marked bicycle lane.
· Mr Papagoras’s bicycle was struck by the Ford Territory and Mr Papagoras was thrown from the bicycle, landing on top of a cyclone-wire boundary fence across barbed wire. His bicycle landed in the bicycle lane opposite Sun Street.
· The Ford Territory driven by you continued after the impact with the Honda Civic and the bicycle across the nature strip, before colliding with a brick wall in Sun Street.
· Later analysis by the police accident reconstruction experts made the following findings:
(a)at impact with the Honda Civic, the Ford Territory was wholly on the wrong side of Douglas Parade;
(b)you applied the brakes short of impact with the Honda Civic, causing the Ford Territory to skid 46.7 metres before colliding with the brick fence;
(c)at the point of impact with the Honda Civic, the Ford Territory which you were driving was travelling at not less than 91 kilometres an hour.
· Ms Hocking was trapped in the Honda Civic and was removed with the assistance of Emergency personnel. After being taken to the Royal Melbourne Hospital for treatment, she was found to have the following injuries:
(a)bruising to both of her knees;
(b)bruising to left wrist;
(c)bruising to right shoulder;
(d)facial lacerations;
(e)lacerations to both arms;
(f)a blood nose;
(g)general soreness.
· Mr Papagoras suffered multiple injuries from the impact of the Ford Territory and died shortly after arrival at hospital.
· You were unhurt by the collision and declined medical treatment at the scene.
· Observations of you at the scene by police noted that:
“James appeared very calm and very unaware of what had just occurred. He could not tell me a straight story of what happened and he was pacing next to his car.”
· You were conveyed by police to the Mercy Hospital at Werribee at 4.00pm on that day.
· At the hospital, a blood sample was taken at 4.50pm which, when analysed, showed that your blood contained the following drugs:
(a)methylamphetamine – 0.03 milligrams per litre;
(b)amphetamine – 0.03 milligrams per litre;
(c)alprazolam 0.16 milligrams per litre;
(d)delta-9-tetrahydrocannabinol 4 milligrams per litre.
· You discharged yourself from hospital after declining any medical treatment and were transported to the Altona North Police Station. At that stage, you were declared unfit for interview.
· Later you were transported to the Sunshine Police Station pending your fitness for interview being further assessed.
· On 13 September 2021, you were deemed fit for interview.
· Your Ford Territory was later examined by police and there were no faults, failures or conditions of the vehicle identified which could have caused or contributed to the collision.
· In the opinion of Dr Schreiber of the Victorian Institute of Forensic Medicine:
(a)the use of methylamphetamine and Alprazolam had the potential to significantly impair driving;
(b)the level of Alprazolam found in your blood was high and in the toxic level range;
(c)the effects of this level of Alprazolam were highly likely to impact your driving;
(d)the presence and effect of cannabis and GHB, as well as general tiredness, cannot be excluded in action which would compound the effects of the methylamphetamine and the Alprazolam;
(e)you would be incapable of having proper control of a motor vehicle at the time of the collision.
· Associate Professor Mark Howard also reviewed the evidence of your behaviour prior to the collision with regard to fatigue and the effect of drugs on your blood at the time of the collision. He concluded that:
(a)you had an impaired conscious state with severe sleepiness;
(b)you were affected by several drugs, in particular, toxic levels of Alprazolam which is highly likely to be the main cause of impaired consciousness and falling asleep at the time of the collision;
(c)the disruptive sleep and mild sleep restriction on the night prior to the collision experienced by you would only have caused mild driving impairment, but would have further exacerbated the effects of the alprazolam.
8Ultimately, the prosecution alleges that you are guilty of culpable driving causing the death of Mr Papagoras:
(a) you were negligent in that you failed, to a gross degree, to observe the standard of care of a reasonable man in the driving of your motor vehicle while fatigued and incapable of properly controlling the vehicle and at an excessive speed; or
(b) you were affected by drugs to such a degree that you were incapable of properly controlling your motor vehicle.
9Section 318(1) of the Crimes Act 1958 provides that the culpable driving of a motor vehicle causing the death of another person is an indictable offence. In particular, s318(2) of the Act provides:
“ (2) For the purposes of subsection (1) a person drives a motor vehicle culpably if he drives the motor vehicle—
(a) recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving; or
(b) negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case; or
(c) whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle; or
(d) whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle.”
(Emphasis added.)
Section 318(2A) then states that, without limiting ss(2)(b), negligence within the meaning of that subsection may be established by proving that:
“(a) a person drove a motor vehicle when fatigued to such an extent that he or she knew, or ought to have known, that there was an appreciable risk of him or her falling asleep while driving or of losing control of the vehicle; and
(b) by so driving the motor vehicle the person failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case.”
10I refer to the Court of Appeal decision in Pasznyk v R,[1] wherein Priest JA noted that culpable driving causing death may be committed in four ways: By driving recklessly, negligently or under the influence of alcohol or drugs, to such an extent to be incapable of having proper control over a motor vehicle. Priest JA also noted that, although there are four forms of the offence, a single maximum penalty is prescribed. After reviewing various authorities, Priest JA states, at paragraph [57]:
“In my view, the correct position is that s 318 of the Crimes Act 1958 creates a single offence which may, by virtue of s 318(2), be committed in one of four ways. I draw support from the fact that, despite Parliament having increased the maximum penalty for the offence in 1992 from seven years’ imprisonment to 15 years, and in 1997 from 15 years to 20 years, the legislature has not sought to differentiate the maximum available penalty as between the four forms of the offence. That is a powerful indication that there is no statutory hierarchy of seriousness between the manifestations of the offence, with the reckless form sitting at the apex. The correct position is, in my view, that for sentencing purposes the objective seriousness of each case — whether it be culpable driving by recklessness, negligence or another form — must be adjudged according to the factual circumstances peculiar to it, including the offender’s state of mind. But duly acknowledging the different mental element attending the reckless form and the negligent form, it is not correct to say that all cases of the reckless form of the offence are of a species worse than cases involving the negligent form. I agree with the view expressed by Ormiston JA in Birnie,[2] that although the mental element is clearly different, there may be factual elements which will render the criminality of a case of causing death by grossly negligent driving worse than that of some cases of causing death by reckless culpable driving.” (My emphasis.)
(Footnote omitted.)
[1](2014) 43 VR 169
[2]R v Birnie (2002) 5 VR 426 at paragraph [53]
11Further, the prosecution allege that you recklessly engaged in conduct which placed Ms Hocking in danger of serious injury by driving a motor vehicle while under the influence of drugs.
12You have been remanded in custody in respect of these offences since 12 September 2021, and as at 4 December 2023, have spent 814 days in custody.
Chronology
13Counsel for the prosecution prepared a chronology which states:
13 September 2021 – filing hearing and matter listed for committal mention on 6 December 2021.
6 December 2021 – committal mention in the matter. The matter did not proceed due to extension of time application.
7 February 2022 – committal mention and listed for committal hearing on 11 July 2022.
11 July 2022 – committal hearing with you being committed. Listed for IDH on 29 November 2022.
1 June 2023 – case conference.
13 July 2023 – sentencing indication with indication accepted and you being arraigned.
9 and 30 October 2023 – plea hearings.
Criminal record
14Counsel for the prosecution tendered your criminal record, dated 6 July 2023 (exhibit 2). I note the following:
(a) at the Geelong Magistrates’ Court on 29 September 2011, you were found guilty of criminal damage and being drunk in a public space. In respect to the criminal damage charge, you were fined $400 without conviction, and in relation to the charge of being drunk in a public space, such charge was dismissed;
(b) at the Geelong Magistrates’ Court on 6 July 2017, you were convicted of burglary, intentionally damaging property and sentenced to a community correction order for six months to perform 120 hours of unpaid community work;
(c) at the Geelong Magistrates’ Court on 13 March 2018, you were convicted of theft from a shop and fined $500;
(d) at the Melbourne County Court on 16 March 2018, you were convicted of aggravated burglary and sentenced to fifty-six days’ imprisonment (being the amount of pre-sentence detention) and to a community correction order for three years to perform 200 hours of unpaid community work, with any hours of treatment and rehabilitation satisfactorily undertaken to be taken as hours of unpaid work;
(e) at the Geelong Magistrates’ Court on 10 April 2018, you were convicted of affray, committing an indictable offence while on bail, theft from a shop and intentionally damaging property and sentenced to an aggregate of seven days’ imprisonment (being seven days pre-sentence detention), and sentenced further to a community correction order for twelve months involving 120 hours of unpaid community work).
Furthermore, on 10 April 2018 it was proven you contravened the community correction order made on 6 July 2017 and sentenced to a community correction order made on the same date;
(f) at Melbourne County Court, on 5 May 2020, it was proven that you breached the community correction order made on 16 March 2018, resulting in conviction and being fined $750, with the order otherwise confirmed;
(g) at the Geelong Magistrates Court, on 12 May 2020, it was proven you breached the community correction order made on 10 April 2018 and sentenced to a varied community correction order for twelve months, commencing on 12 May 2020 and including a condition for unpaid community work for a period of 100 hours.
Also on that date, you were convicted of two charges of theft and one charge of obtaining property by deception and sentenced to a period of 234 days’ imprisonment (being the 234 days of pre-sentence detention);
(h) at the Melbourne County Court on 30 June 2021, it was proven that you had breached the community correction order made on 5 May 2020 and you were convicted and sentenced to $750, with the order otherwise confirmed;
(i) at the Geelong Magistrates’ Court on 15 July 2021, it was proven that you breached the community correction order made on 12 May 2020. With conviction, you were fined $500, together with seven days’ imprisonment (such sentence made up of seven days served as pre-sentence detention) and further fined the sum of $3,500.
Certificate under s84(1) of the Road Safety Act 1986
15I refer to the certificate under s84(1) of the Road Safety Act 1986.[3] In particular, I note the following:
(a) at the Geelong Magistrates’ Court, on 28 May 2015, you were convicted of driving when authorisation suspended and sentenced to a fine of $350;
(b) on 14 July 2018, you were given a traffic-infringement notice in respect of exceeding the speed limit by 25 kilometres or more, but less than 30 kilometres, and your licence was suspended for one month from 14 July 2018;
(c) on 14 December 2020, you were given a traffic-infringement notice in respect of exceeding the speed limit by 25 kilometres or more, but less than 30 kilometres, and your licence was suspended for three months from 14 December 2020.
[3]By oversight, it would appear this was not tendered and I direct that it be tendered and marked as exhibit 3.
Victim Impact Statements
16Counsel for the prosecution tendered the following Victim Impact Statements:
(a) Victim Impact Statement of Ms Christine Elsie Hocking, declared on 18 August 2023 (exhibit 3);
(b) Victim Impact Statement of Mr Alex Kountoris, declared on 2 October 2023 (exhibit 4);
(c) Victim Impact Statement of Mr Charlie Kornberg, declared on 19 September 2023 (exhibit 5);
(d) Victim Impact Statement of Mrs Nicole Josephine Papagoras, declared on 30 September 2023 (exhibit 6);
(e) Victim Impact Statement of Jack Papagoras, declared on 30 September 2023 (exhibit 7);
(f) Victim Impact Statement of Rose Papagoras, declared on 1 October 2023 (exhibit 8);
(g) Victim Impact Statement of Mr Garry Patrick Ryan, declared on 28 September 2023 (exhibit 9);
(h) Victim Impact Statement of Ms Rachel Roberts, declared on 8 October 2023 (exhibit 10);
(i) Victim Impact Statement of Mr George Tsatouhas, declared on 9 October 2023 (exhibit 11).
17Some of these Victim Impact Statements were read by the prosecutor and some were read by the author of any particular statement and, in particular, the widow of Mr Harry Papagoras, Mrs Nicole Papagoras, read not only her statement, but those of her children, Rose and Jack Papagoras. I have read all such statements.
18In her statement, Ms Christine Hocking stated that, as time has passed, she still has a “lingering anger” that what should have been a safe and pleasant commute was anything but and, through no fault of her own. She is also angry and saddened at the loss of an innocent life in completely-preventable circumstances.
19After the accident, she was “very fearful about driving again” and has only been able to recently resume driving with a concerted effort. She is still nervous when driving and finds herself becoming quite distressed and upset if she witnesses “a motorist driving erratically”.
20In her statement, Mrs Nicole Papagoras comments:
“The sudden and completely unexpected death of my amazing, kind, calm and caring husband has had and still has a significant impact on my life. I have lost my best friend, my advisor, my husband, and the father of my children. I have become a widow and sole parent responsible for two children who are traumatised and who have lost a loving father. I have lost my dreams of the future that we had together - our holiday plans, our retirement plans, our family plans.”
21She describes, very poignantly, the trauma of the police coming to her door advising her of the accident, her attendance at the hospital with the doctors explaining that her husband was dying; the further trauma of explaining to her children – twins aged nine years old – that their father was never coming home and hearing their sobs forever being etched in her memory.
22She describes what a wonderful father her husband had been to the children and, in this respect, she describes how, sometimes, it is only the “simple things that are perhaps the most difficult”. In her statement, she describes how the impact of her husband’s death continues – there being a constant struggle to work full time, to manage the household, to juggle the finances, to keep up the children’s sport and social activities by herself, she finds “really tiring and challenging”.
23Grief for the loss of her husband strikes at unusual times. She ultimately describes him as a person who was “a light that shone brightly in our lives”.
24In their Victim Impact Statements, the children of Mr Harry Papagoras, twins Rose and Jack Papagoras, describe their father in the most poignant of terms.
25In her Victim Impact Statement, Rose describes, at school, she does not like not having a “dad” and does not like Father’s Day, because people at school treat her differently because they feel “bad for me”. In general, she describes herself as feeling sadder and crying more easily, getting angry thinking, “why did it have to be me” and notes that she has therapy so she can talk to someone else about how she feels. She misses so many things that she loved doing with her father.
26In his Victim Impact Statement, Jack describes how his dad “was also a friend” and would help with sport, like soccer, AFL and running. Like his twin sister, he remembers all the wonderful things he did with his father, like making really good food while playing his rock music on speakers. In particular, Jack describes how his father made him “feel really safe”. He describes how he loved going on bike rides with his father, maybe to Docklands and back, or to the local river. Jack notes that it took him a year to even get on his bike after his father’s death and he is now scared to go on the roads and cannot go on long bike rides.
27In particular, he states:
“It's hard because you never know, you could be fine one minute and the next crying and sobbing. I feel sad and angry but there is nothing I could have done about it. I felt like it was my fault because I was the one that reminded him that he wanted to go on a bike ride that day, I was going to go with him, but he said that he was going to go on a longer bike ride. I now have anxiety that one day someone might leave and there is not a 100% chance that they will come back. I can barely survive 30 minutes home alone. It's hard for mum because when I get scared, I call her. Sometimes she is in a meeting and doesn't' (sic) pick up, and I get really worried that something has happened to her. I know she can't really stop the meeting, but I want to hear her voice and know that she is ok. I get very worried about my mum.”
28In his statement, Mr George Tsatouhas described how he had been a friend of Mr Papagoras for about thirty-seven years and someone who introduced his wife-to-be to him, and he was best man at Mr Tsatouhas’s wedding. He describes Mr Papagoras in these terms:
“[He] was someone who understood the value of friendship, respect, kindness and justice in this world. His humour and intelligence were integral in our interactions together and taking all that away has been significantly consequential. I regularly question the futility of life and feel a sense of helplessness because Harry was a massive presence and it is unbelievable to me that he has been taken from all of us that loved him dearly at such a critical and joyous time in his life.”
29Mr Tsatouhas ultimately described how his life:
“… has become somewhat more anxious as a result, as I grapple with all the negative thoughts that have emanated since the event. The loss has affected me profoundly and will continue to do so later in life. I am hurt and still angry, frustrated that I can't do anything to change events. … .”
30In her Victim Impact Statement, Ms Rachel Roberts, describes how she met Harry Papagoras when they were both twelve years old, after which followed a lifetime of friendship. She described Harry as:
“Funny, smart and tenacious, with the most positive of outlooks on life. Harry was my go-to when I needed a boost. He steered me through my anxiety issues and recommended a therapist I should see. He helped me through the sad points in my life. Now I feel so very sad and lost. Scared too. Are we just going through life avoiding death at every turn? I think about this all of the time now. I worry if my children get the slightest sniffle or rash or cough. Are they dying? My anxieties are now impacting on their mental health as I am constantly checking them and asking ‘Are you OK?’. It is exhausting and debilitating. I am sad because I have lost the person who would cheer me up and remind me of how lucky we both were. We’ve got partners we love, steady jobs, great kids....Harry’s life was not without tragedy - his dad was killed in a car accident when he was in his twenties. His mum suffered dementia. His pragmatic outlook helped him through I think. … .”
31In his Victim Impact Statement, Mr Garry Ryan, Mr Papagoras’s father-in-law (Nicole’s father), recalled that at the wedding of Nicole and Harry, he said:
“… Harry, you have all the attributes that we could have hoped for. You are caring, loving, attentive, hard working, and an honest man of sincere integrity.”
32He goes on to say:
“Harry never changed, he demonstrated those attributes throughout his life, a life dramatically cut short by a person doing the wrong thing.”
33In particular, he noted that:
“Harry was a wonderful father. He bathed, changed, and played with his children from the day they were born. … .”
34He noted that Harry was a great reader of books, including the classics, and loved a robust discussion on any topic. He was both forceful and eloquent. He noted his son-in-law was a small businessman, running a number of physiotherapy clinics over the years. In particular, he states:
“The loss of Harry affects us every day. Memories pop up in unexpected places at unexpected times. It causes us profound sadness that our daughter Nicole is deprived of her loving, caring wonderful partner and the twins, Jack and Rose have lost their devoted, loving father. Not a day passes without us being saddened by this loss. We now need to more (sic) available to fly to Melbourne with little notice to support Nicole, Jack and Rose. We need to be available in the school holidays, either in Melbourne or Brisbane, so that Nicole can continue to work and support their family unit of three.”
35In his Victim Impact Statement, Alex Kountouris details how he knew Harry Papagoras for over forty years, commencing in primary school, through playing soccer together at Sunshine Heights in the western suburbs, high school, and jointly studying physiotherapy over four years, travelling overseas backpacking throughout Europe after university finished and obtaining their first job together at the Ballarat Base Hospital. Mr Kountouris states:
“The impact of Harry’s loss has left me sad, emotional and extremely anxious. I now suffer from panic attacks that result in me being totally incapacitated for a period of time. I end up on the floor hyperventilating, sweating profusely until I either pass out or almost pass out. I have medications to reverse this with me, or nearby, all the time. It means I am anxious to be in public for fear of having the panic attacks. I have had to start taking daily medication that I may need for the rest of my life. I was too anxious to leave the house, exercise or go to work for a long period of time.”
36In his Victim Impact Statement, Mr Charlie Kornberg, describes the death of Harry Papagoras as the loss of his best friend and the devastation that your driving has caused to “Harry’s friends and colleagues”. In particular, Mr Kornberg states:
“… the personal devastation I have felt by the loss of my best friend, Harry Papagoras, is immeasurable. I still wake most nights, thinking about him and hoping that it was a bad dream, only to come to the realisation that he was never coming back. The tragedy of this was that his death was as a direct result of a man choosing to drive his car when, by all reports, he shouldn’t have been on the road. His choosing to drive caused the accident that took the life of my dearest friend. This senseless act has completely shattered the world of everyone who knew and loved Harry - his family, me and my family, his friends and his physiotherapy colleagues. We still talk about him every day. It's incredibly difficult to even put into words how much Harry meant to me, but I will do my best to articulate the impact his loss has had on my and my family’s life.”
37Mr Kornberg goes on to say:
“Harry was not only my best friend, but he was also one of the funniest, kindest, compassionate, intelligent and thoughtful human beings I have ever had the pleasure of knowing. We met in 2003 and hit it off immediately, growing our friendship through working together, travelling together and spending time with our families together. We spoke almost every day - sometimes about the problems of the world but most of the time it was just connecting and talking about what we had done throughout the day and what was in store for tomorrow. … .”
Your personal circumstances and background
38Your counsel relied on the following documents:
(a) a document headed “Defendant Outline of Submissions for Sentence Indication”, dated 10 July 2023;[4]
[4]I will have this document tendered and marked as exhibit “A”.
(b) report from the consulting psychologist, Mr Warren Simmons, dated 7 July 2023. Mr Simmons interviewed you at the Fulham Correctional Centre on 28 June 2023;[5]
[5]I direct that this report be tendered and marked as exhibit “B”.
(c) reference from your mother, Mrs Margaret Twentyman, dated 23 June 2023.[6] In her reference, your mother describes her relationship with you as “loving and respectful” and “very close”. She notes that you are well loved by everyone and still, today, are “respected for [your] compassion, empathy and kindness towards others”.
[6]I direct that his reference be tendered and marked as exhibit “C”.
Your mother also described your upbringing, noting that, to her observation, you struggled emotionally after your parents’ separation and your father living in Western Australia. She also noted that you continue to have a close relationship with your older sister, Chelsea.
She also records how you suffered injury to your back in your late teens while skateboarding. Thereafter, there were “multiple occasions” where you sustained injuries to your back, which has caused you to consider other career options, such as the hospitality industry, and also to obtain heavy vehicle licences.
In particular, your mother notes that, after the breakdown of your relationship with your partner – the mother of your son Jakoda – you continued to be a “very attentive, capable and caring father” to him. However, she notes that towards the end of 2016, your ex-partner expressed, and took steps, to deny you visitation rights to see your son. Your mother notes that you did not have the financial ability to contest this in court, and this caused you much devastation and from her observation, to become “very anxious, depressed and very lost in the world”.
Your mother also notes that your commenced work with Plastercom Pty Ltd – the company operated by Ryan Brady, a fellow referee – and since the commencement of that employment, you have developed technical skills and given great opportunities to broaden the type of projects you worked on. Although still experiencing pain in your lower back, your mother describes how you pushed through that pain with the help of medication from doctors and intervention from physiotherapists. She also notes that you had severed a tendon in your hand at work, requiring plastic surgery, and hand therapy for some time.
Your mother writes:
“… on behalf of myself and my family, our deepest sympathy to the family and friends who have been devastated and affected by this traumatic accident.”;
(d) reference from Mr Ryan Brady, dated 26 June 2023. In that report, Mr Brady states he is the owner of a plastering company – “Plastercom” – and that you worked as a plasterer with that team for just over three years. He states, in part:
“[You were] … always hardworking, conscientious, and trustworthy contractor who rarely missed a day’s work. [He feels] strongly about [you] and [your] future and would like the best outcome possible for [you].
In the time,[he has] spent with [you], [he] always found [you] to be a person of good moral character. [He realises] this may seem hard to believe, given the circumstances surrounding [your] charges, but it’s true, nonetheless.
[He has] witnessed [you] go through personal ups and downs but all in the while [you have] always displayed attributes of someone who has decent core values and prides themselves on treating others with respect and honesty. [You were] a reliable employee who displayed unimpeachable work ethic and quality workmanship within [your] trade.”;
(e) reference from Mr Zahn Holden, dated 11 July 2023.[7] Mr Holden lived opposite you in 2019 and noted that you have been helpful to him over the years and were always very polite to his wife and four children. He notes that he would hire you as a worker, and that you are a good man, showing nothing but “respect and that is the way [he] treated [you]”.
[7]I direct that such reference be tendered and marked as exhibit “D”.
39Partly based on some of the documents tendered on your behalf, and partly based on various submissions made by your counsel, I note the following:
· You were born in Orange, although your family moved to Torquay when you were aged one. Your father was a farmer for more than twenty years and your mother has been essentially a stay-at-home mother who has undertaken occasional cleaning jobs. You were the only child.
· Your parents separated when you were about six and you have two older maternal half-siblings. Your older half-brother remained in Orange and you have seen him approximately ten to twenty times over the years, although not for the last fifteen years. Your half-sister lived with the family until she moved out at about the age of twenty and you are close to her at times, but on other occasions more distant.
· During school holidays, you visited your father, who, after separation, resided in Western Australia and this continued until about the age of thirteen. Over the years from fourteen to sixteen, your father would travel to Victoria to visit, but gradually you grew apart.
· You attended the Torquay Primary School and described yourself as an “average student academically”, but generally got on well with teachers and other students. You completed Year 10 at Belmont Secondary College, saying it was much the same as primary school, although you commenced using drugs and alcohol at the age of fourteen and consequently “played up” more.
· You became involved in skating and graffiti, and admitted to the psychologist that there was increasing truancy and you lost interest in school work. However, relationships with your peers remained positive and there had been no major conflict with teachers.
· You realised from about the age of thirteen that you did not want to advance further in school and were more interested in a trade. At the end of Year 10 you commenced a pre-apprenticeship in house painting, but quit that job when aged about seventeen, following which you were unemployed for about two years and subsequently commenced a plastering apprenticeship, which was “signed off” after three years, and you have been plastering ever since.
· You explained to the psychologist that you met “Abby”, who was a year younger in high school, at the age of fifteen, although it was not until the age of nineteen that you formed a relationship with her. You described the relationship as “positive” to start, but it became toxic at times, disclosing some infidelity, which led to trust issues. You and Abby had a son, now aged approximately nine years old, with whom you have had no relationship since that child was aged three.
· When you were about twenty-four, you commenced a relationship with “Ebony” and you remained with Ebony for approximately three years, over which time problems arose because you and Ebony were using methamphetamine together.
· Other than a “fling” for several months in 2020, you have had no other serious relationships.
· At the age of eighteen, you commenced using cannabis, initially smoking weekly, but at times smoking daily, and from the age of sixteen to twenty you were smoking daily, after which you ceased for two to three years. Over those years, you dabbled with other drugs and, indeed, would smoke cannabis after work until such time you were remanded in prison.
· At about the age of sixteen, you commenced using amphetamines, ecstasy, acid and MDMA, all of which were introduced to you by peers. You informed the psychologist that you would use these drugs on weekends with friends while attending parties. Leading up to September 2016, your relationship was struggling, you commenced dating someone else and contact with your son became complex. You were attending family mediation, but had had enough. At that time you commenced using methylamphetamine on a daily basis. You were in custody between September 2019 and June 2020, during which time you alleged your drug use ended “in any significant manner”.
· You commenced consuming alcohol at the age of fourteen, revealing it gave you confidence, and by 2020 you were consuming alcohol daily, and after that date did not drink daily, but developed a pattern of binge drinking.
· You informed the psychologist that you believed you had problems with anxiety and depression when you were younger. You also asserted that you were shy and anxious when younger, revealing this occurred predominantly on social occasions. You also believed that you had a depressive episode at the age of sixteen, when you were angry at the world.
· You informed the psychologist that your sleep, appetite and weight are stable, and there are no problems with concentration, energy or motivation, although your memory is sometimes poor.
The evidence of the psychologist, Mr Warren Simmons
40As I have already recorded, the psychologist, Mr Warren Simmons, interviewed you on 28 June 2023 at Fulham Correctional Centre. At that time, he obtained a personal history relating to your personal life, education and employment, drugs and alcohol, relationships and medical, psychiatric and forensic history. On the basis of obtaining such histories, he formed the following opinion:
“22.[You are] a 30-year-old man whose parents separated when [you were] aged six. There does not appear to have been significant issues with abuse or neglect, with [you] saying that [your] half-sister lived with the family and they appear to have had a typical relationship. There was limited contact with relatives as they lived in New South Wales and Queensland, although [you] did visit [your] father in Western Australia during the school holidays until [your] early teens.
23.There does not appear to have been a significant history of behavioural difficulties at school, although [you] acknowledged that once [you] commenced consuming alcohol and using drugs, there was a pattern of truancy and [you] lost interest in school. [You] subsequently completed [your] apprenticeship as a plasterer and worked in that capacity until 2016 when [you] became a carer for [your] son over the next three years. [You] revealed that there has been further employment in 2019 and 2020, although it was only the later time that [you] became more serious about returning to work.
24.There did not appear to be significant issues in [your] childhood that would have left [you] vulnerable to substance use other than [you] ceasing contact with [your] father on a regular basis. However, [you] then commenced cannabis at the age of 14, saying that [you] enjoyed the experience of the drug. There was a pattern of daily use from ages 16 to 20, followed by a period of abstinence from cannabis, although [you were] experimenting with numerous other drugs at the time. [You] admitted using drugs such as ecstasy, acid and amphetamines on the weekends and also the use of mushrooms as well. There is evidence of [you] experiencing problems with anxiety and finding that alcohol gave [you] confidence and made [you] feel less anxious. There has been a pattern of binge drinking and more recent use of methamphetamines. There has been involvement in treatment programs in the past, but it is unclear how significant these have been.
25.[You have] had two long-term relationships of approximately three years each. [You] noted that there were difficulties in both relationships, the first due to infidelity and dishonesty while in the second, it would appear that it was related to [you] both using methamphetamines. [You] identified a period of difficulty after [you were] no longer able to see [your] son after three years of co-parenting.
26.While [you have] a history of prior convictions, it was noted that there are some that occurred well over 10 years ago. There was then a long period of no further offences, noting that [your] behaviour appears to have deteriorated in the period when [you were] not working, there were Family Court matters and [you were] struggling with not seeing [your] son. While [you have] used other drugs including Benzodiazepines, these appear to assist [you] in withdrawing from stimulants.
27.[You report] a history of depression and anxiety going back to [your] teenage years. [You] identified symptoms consistent with a diagnosis of social anxiety which [you] said could be quite severe at times. There have been some issues with depression since [you were] not able to have contact with [your] son and felt that there was also a period of depression around the age of 16. Certainly, [you describe] symptoms consistent with that diagnosis. However at the present time, there was no evidence that [you are] experiencing any depressive symptoms nor problems with anxiety, noting that having been abstinent for such a long period of time has most likely been therapeutic.
28. While disposition is a matter for the Court, it is respectfully suggested that [you] would benefit from a referral for drug and alcohol counselling with a focus on increasing self-efficacy, harm minimisation and relapse prevention strategies. In addition, [you] would also benefit from a referral to a psychologist to assist [you] with cognitive behavioural strategies with regard to depression and anxiety. At the present time being in custody offers [you] a relatively safe environment and therefore, [your] emotional state has stabilised. However once [you return] to the community and [have] to deal with the normal vagaries of life including not having contact with [your] son, then [you are] at risk of further episodes of anxiety and depression leading to relapse.
29. [You are] not without some prospects for rehabilitation given that there have been significant periods where there has been no offending, [you have] been able to remain abstinent at times and [you appear] to want to have a relationship with [your] son. [You recognise] that the current allegations are quite serious and that the outcome of these matters may very well have a significant impact on [your] life.”
Matters in mitigation of your sentence
41Your counsel accepted that the only sentence available to the Court was one involving immediate imprisonment with a non-parole period. However, he further submitted that the following matters are relevant in mitigation of your sentence for the subject offending:
(a) Your plea of guilty
It was submitted that your plea of guilty has significant utilitarian value, as it would save the Court, and the prosecution, time and resources. In particular, it was submitted that such plea obviates the need for any witnesses to give evidence at any court proceeding which would involve them reliving their observations of the devastation of the accident.
It was also submitted that such a plea was entered into when the ordinary operation of the Court was still affected by the COVID-19 pandemic and such a plea should attract a “natural and palpable amelioration of sentence”. Reference was made to Worboyes v R,[8] wherein the Court of Appeal (consisting of Priest, Kaye and T Forrest JJA) stated, in part:
[8][2021] VSCA 169 at paragraph [39]
“For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.”;
(b) Remorse
It was further submitted by your counsel that your plea of guilty, in itself, is some evidence of remorse. Furthermore, your counsel informed the Court that you had expressed to him much remorse after reading the Victim Impact Statements, to which reference has already been made;
(c) Hardship in custody as a result of the COVID-19 pandemic
It was submitted that, bearing in mind you have been on remand since 12 September 2021, you would have experienced added hardship in prison as a result of COVID-related measures – various lockdowns, limitation on personal visits and the reduction of various courses open to prisoners;[9]
(d) Your criminal record
It was submitted that, although you have a criminal record, such record does not involve any offending involving drug or drink driving. In particular, the only driving history was limited to driving while your authorisation was suspended (28 May 2015) and traffic infringement notices in respect of exceeding a speed limit by 25 kilometres or more, but less than 30 kilometres, one of which gave rise to a suspension for one month (July 2018), and the other to a suspension for three months (December 2020);
(e) Drug issues
It was submitted that, although you had used drugs during your teenage years, this matter only became problematic in recent years, when contact with your son was ended by your former partner. In particular, it was submitted that you had been drug free in prison and it is your intention to remain so.
(f) Rehabilitation
It was submitted that your prospects of rehabilitation are “reasonable”, in particular, if you are able to remain drug free. In this respect, it was submitted that you have strong family support – as is made evident by the character reference from you mother – and also you have a stable work history, having worked as a plasterer for many years, up until the date you were remanded. It was submitted that your employment path “will continue” to be available upon your release from prison.
It was further submitted that any period of imprisonment imposed ought to involve a sufficient long parole period to assist you in remaining drug free.
[9]See, generally, Brown v R (2019) 59 VR 462.
Conclusion
42You have pleaded guilty to the offence of recklessly engaging in conduct that placed Ms Christine Hocking in danger of serious injury (Charge 1) and the offence of culpable driving, by driving a motor vehicle which caused the death of Mr Harry Papagoras (Charge 2).
43The offending arose out of your driving of a Ford Territory motor vehicle on 12 September 2021. In particular, on that day, for reasons connected with your drug use, your vehicle was driven across the centre line of Douglas Parade, Spotswood, and ultimately collided with the vehicle driven by Ms Christine Hocking, who was travelling in the opposite direction. Furthermore, your vehicle continued moving and came into contact with a bicycle lawfully ridden by Mr Harry Papagoras in a bicycle lane.
44The consequences of such driving were tragic – causing the death of Mr Harry Papagoras and serious injury to Ms Christine Hocking, involving bruising to her knees, left wrist and right shoulder, together with lacerations to her face and both arms, and general soreness.
45I refer to the various Victim Impact Statements. The statements which relate to Mr Harry Papagoras make abundantly clear how much he was loved by his family and friends, all of whom were devastated by his death in different ways and continue to suffer in many ways. I also refer to the Victim Impact Statement of Ms Christine Hocking, wherein she describes her “lingering anger” as to what happened to her, in circumstances which should have been a safe and pleasant commute, but through no fault of hers turned into something terrible, causing her to be very fearful about driving again. Indeed, she continues to experience nervousness and distress when she witnesses other motorists driving erratically.
46Both charges are serious charges – particularly the charge involving culpable driving. Such an offence is inherently serious offending, as it is offending that involves the loss of human life. In the circumstances of this matter, your culpability arose from the fact that your drug intoxication and/or your gross negligence caused you to be incapable of having proper control of your vehicle, with devastating consequences. The seriousness of the offence is also reflected by the maximum penalty of twenty years’ imprisonment prescribed by Parliament. As the Court of Appeal has observed:
“The starting point in this case as in every case of culpability driving is the offence is a species of involuntary manslaughter and it must be treated as such.”[10]
[10]R v Williamson (2009) 21 VR 330 at [paragraph [20], citing Director of Public Prosecutions v Clarke [2005] VSCA 2 at paragraph [12] and R v O’Connor [1999] VSCA 55 at paragraph [19]
47Of course, by your plea, you also accept that your reckless conduct involving driving your vehicle whilst under the influence of drugs caused Ms Christine Hocking to suffer the injuries so described.
48In relation to the offence of culpable driving, the prosecution has pleaded that you drove your motor vehicle in a grossly negligent way and when fatigued and incapable of properly controlling the vehicle, and at an excessive speed, and/or you were affected by drugs to such a degree that you were incapable of properly controlling your motor vehicle. The evidence before the Court – namely opinions of Dr Schreiber of the Victorian Institute of Forensic Medicine and that of Associate Professor Mark Howard, which have been recorded earlier in these Reasons ꟷ clearly support such assertions.
49After a consideration of all of the circumstances, I have come to the view that your moral culpability is quite high. Furthermore, I consider that the objective gravity of your offending, although clearly not at the lower end of the scale, is also not the worse type of this offence. In this respect, your culpability on the evidence before me is limited to you veering across the road after coming around a bend in the road, either through gross negligence and/or being affected by drugs that you had consumed. There is no evidence before the Court as to what your driving leading up to that event was, and I also note that you remained at the scene, albeit seemingly in some sort of dazed state.
50I do accept the following matters in mitigation of your sentence for the subject offending:
(a) Your plea of guilty cannot be characterised as an early plea of guilty, having been made on 13 July 2023, following a sentencing indication hearing on that day. Prior to that date, there had been a filing hearing on 13 September 2021, and a committal hearing undertaken on 11 July 2022.
However, I do accept that such plea is of substantial utilitarian value, as such plea saves the time and resources of both the Court and the prosecution, and perhaps more importantly obviates the need for any witnesses to give evidence at a court proceeding and be required to relive their observations of the devastation of the accident. As was emphasised by Redlich JA and Curtain AJA in their joint judgment in Phillips v R,[11] the utilitarian value of a plea of guilty will, in all but the most exceptional cases, entitle an offender to a reduction in what otherwise would be an appropriate sentence;[12]
[11](2012) 37 VR 594
[12]See, also Barbaro v R; Zirilli v R (2012) 226 A Crim R 354 at paragraph [32]
(b) Although it was further submitted by your counsel that such plea of guilty, in itself, is some evidence of remorse. In this respect, I refer to the decision of Barbaro;[13] and, in particular, to the discussion by the court (consisting of Maxwell P, Harper JA and T Forrest AJ) at paragraphs 32 to 40. In that discussion, the court noted that a distinction must be drawn between the anguish of being caught and punished, on the one hand and – on the other – the determination to change one’s behaviour and, to any extent possible, make amends. The court noted that the first is not remorse at all and the second is. The court went on to say:
[13]Op cit
“It follows, in our view, that a person wishing to rely on remorse as a mitigating factor needs to satisfy the court that there is genuine penitence and contrition and a desire to atone. In many instances, the most compelling evidence of this will come from testimony by the offender. A judge is certainly not bound to accept second-hand evidence of what the offender said to a psychiatrist or psychologist or other professional, let alone testimonials from family or friends, or statements from the Bar table.
If there is evidence of remorse, and if that remorse is genuine, it is a very important element in the exercise of the sentencing discretion. Remorse of this kind enhances prospects of rehabilitation and reduces the need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy — in the form of a material reduction in what would otherwise be an appropriate sentence — is very likely due.
But sentencing discounts, and especially significant sentencing discounts, should not be given unless remorse is established by proper evidence, or unless on a proper basis the judge is content to relieve the offender of the need to discharge that burden. … .”[14]
As I have recorded, your counsel stated from the Bar table that you had expressed to him much remorse after having read the Victim Impact Statements to which reference has already been made. I consider that there is scant evidence of remorse. I do note that your mother in her reference expressed remorse on behalf of herself and her family – that is, of course, you – as to the devastation caused to the victims of your driving. On balance, I do allow some weight for the issue of remorse, but it is not a profound feature in the make-up of your sentence;
(c) It was submitted that, bearing in mind you have been on remand since 12 September 2021, you would have experienced severe or added hardship in prison as a result of COVID-related measures – various lockdowns, limitation on personal visits and the reduction of various courses open to prisoners. In this respect, I do refer to Brown v R[15] and accept that you would have experienced added hardship since being remanded from September 2021 to date. However, I do also accept in general terms that what was experienced in the past has been ameliorated to some extent, although there is some degree of ongoing hardship, but not to the same frequency or intensity as earlier;
(d) I do accept that your criminal record clearly does not demonstrate any offending involving drug or drink driving. Furthermore, the traffic infringement notices occurred in 2018 and 2020 and, all things considered, I consider that specific deterrence plays a limited role in formulating an appropriate disposition;
(e) Drug issues
Your counsel submitted that, although you had used drugs during your teenage years, this matter only became problematic in recent years, when contact with your son was ended by your former partner. I understand the situation to be that you have been drug free in prison and one would only hope this would continue in the future, as it would appear to be the basis of your subject offending;
(f) Rehabilitation
I do accept that your prospects of rehabilitation are “reasonable”. I do accept that you have strong family support, as is made very evident by the character reference from your mother. Again, even through your darkest periods you have had a reasonably-stable work history, having worked as a plasterer for many years and you are particularly skilled in that area. Indeed, you were performing this work until the date you were remanded. It was submitted that “this employment path will continue”, to be available upon your release from prison and, indeed, you also have other skills in driving heavy machinery. As noted above, you have been drug free in prison and wish to remain so – this abodes well for your future.
[14]See Barbaro (op cit) at paragraphs [38]-[40]
[15](2019) 59 VR 462
Standard sentencing considerations
51I refer to s5A and s5B of the Sentencing Act 1991, which set out various matters relevant to a standard sentence. Although the Standard Sentencing Scheme has been applied by a number of judges in the County Court, it was first dealt with in the Supreme Court by Champion J in R v Brown.[16] That decision was appealed in Brown v R,[17] wherein a five-judge Bench of the Court of Appeal (consisting of Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) explained the operation of the new provisions. The Court of Appeal largely upheld the reasoning of Champion J in R v Brown[18] at first instance. Some assistance is also obtained from the High Court decision of Muldrock v R.[19]
[16][2018] VSC 742
[17]Op cit
[18]Op cit
[19](2011) 244 CLR 120.
52I refer to the Court of Appeal decision in Brown v R,[20] wherein the Court of Appeal stated:
[20](Op cit) at paragraphs [4]-[7]
“For the most part, the provisions are clear and the approach required is not in dispute. The key new requirement is that a judge when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’. This requirement:
is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;
does not affect the established ‘instinctive synthesis’ approach to sentencing;
does not require or permit ‘two-stage sentencing’; and
does not otherwise affect the matters which the court may, or must, take into account in sentencing.
The only area of uncertainty concerns the judge’s assessment of the seriousness of the offence before the court (‘the subject offence’). The ‘standard sentence’ is defined as:
the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. [see s5A(1)(b) of the Sentencing Act 1991]
The provisions then specify that those ‘objective factors’ are to be determined:
(a)without reference to matters personal to a particular offender or class of offenders; and
(b)wholly by reference to the nature of the offending. [see s5A(3) of the Sentencing Act 1991]
It is not in doubt that those specifications apply to the identification of the hypothetical ‘middle of the range’ offence. The question which was explored at the hearing of these appeals was whether the new scheme required (or permitted) the sentencing judge to assess the seriousness of the subject offence ‘taking into account only the objective factors’ as thus defined.
The submission of senior counsel for the Director was that, on their proper construction, the scheme provisions neither required nor permitted such an assessment. For the reasons set out in Part I, we would uphold that submission. In our opinion, the standard sentence provisions do not have any bearing on the judge’s obligation to assess the seriousness of the subject offence. That assessment remains a necessary part of the process of instinctive synthesis and it is not constrained by the legislative definition of ‘objective factors’. Those constraints are referable only to the assessment which gives content to the hypothetical offence as an offence ‘in the middle of the range of seriousness’.”
(My emphasis.)
53I refer to the matter of R v Brown,[21] at first instance, where Champion J stated, at paragraphs 96-97 and paragraph 99, as follows:
“… Matters personal to a particular offender such as an offender’s age, state of health, family circumstances, employment and general background, are matters that bear little or no explanatory or relevant connection to the assessment of the nature of the offending.
However, matters such as the mental illness of an offender, the motivation for carrying out the offending, provocation, and aspects of duress, are examples of factors that can have a relevant causal connection to the offending, such that they are fundamental qualities of the offence. Such matters, by their fundamental nature, in my opinion can be relevant the assessment of the objective seriousness of the offence.
…
In my view, the correct approach to take under s 5A(3) of the Act is for a sentencing judge to make an assessment of what factors causally affect the relative seriousness of the offence, complying with the prescribed language and structure of the legislation.”
[21]Op cit
54I also refer to Lugo (A Pseudonym) v R,[22] a Victorian Court of Appeal decision constituted by five judges. At paragraphs 25-26, the Court stated:
“For the reasons given by this Court in Brown v The Queen, [[2019] VSCA 286] that comparative assessment was neither authorised nor required by the standard sentence provisions. The judge’s obligation to assess the seriousness of the subject offence was, the Court said, unaffected by the standard sentence provisions [at [7]]. Judges sentencing for standard sentence offences ‘should continue to assess offence seriousness in the conventional way, taking into account both objective gravity and moral culpability [at [55]].
The sentencing judge in R v Brown [(op cit)] had, likewise, undertaken a comparative assessment ‘taking into account only the objective factors’. The Court concluded that, although his Honour had gone beyond what was required by the provisions, this misapprehension had not affected his Honour’s assessment of the seriousness of the offending … .”
(My emphasis.)
[22][2020] VSCA 7
55I also refer to s11A of the Sentencing Act 1991 which directs, as to the process of the fixing a non-parole period for a standard sentence offence or in respect of a total effective sentence imposed in respect of two or more sentences, at least one of which is for a standard sentence offence.[23]
[23]See s11A(1)
56Section 11A(4) of the Sentencing Act 1991 provides that, unless a court considers that it is in the interest of justice not to do so, the Court must fix a non-parole period for at least – relevantly – 70 per cent of the relevant term if that term is a term of twenty years or more, or 60 per cent of the relevant term, if that term is a term of less than twenty years. The “relevant term” referred to in s11A(5) is defined to mean, inter alia, the total effective sentence referred to in ss(1)(b).
57In Brown v R,[24] the Court of Appeal also examined the standard non-parole period scheme and in particular referred to the High Court decision of Muldrock v R,[25] and in particular, paragraphs 27-29. The Court of Appeal then stated, at paragraphs 25-26 that:
[24]Op cit
[25]Op cit
“These passages may be distilled into a number of propositions, as follows:
1.The standard non-parole period is a ‘legislative guidepost’, in the same way as the maximum sentence is.
2.In order for it to serve as a guidepost, meaningful content must be given to the legislature’s specification of the standard non-parole period as the non-parole period ‘for an offence in the middle of the range of objective seriousness’.
3.Giving meaningful content to that specification requires that ‘objective seriousness’ be assessed:
(a) ‘without reference to matters personal to a particular offender or class of offenders’; and
(b) ‘wholly by reference to the nature of the offending’.
4.The sentencing court is neither required nor permitted to assess whether the subject offence falls within ‘the middle of the range of objective seriousness’ by comparison with ‘an hypothesised offence answering that description’.
5.The requirement to give reasons for fixing a non-parole period above or below the standard non-parole period does not require the judge to ‘classify the objective seriousness of the offending’.
6.The judge must, however, identify all of the facts, matters and circumstances which bear on the conclusion reached as to the appropriate sentence.
In the High Court’s view, therefore, the standard non-parole period provisions required only one assessment of ‘objective seriousness’. That was the assessment which was necessary in order to give ‘meaningful content’ to the legislative description of the ‘hypothesised offence’ as an offence ‘in the middle of the range of objective seriousness’. It was that assessment, the Court said, which must be undertaken ‘without reference to matters personal to a particular offender or class of offenders’ and ‘wholly by reference to the nature of the offending’.”
(Emphasis added.)
58Consistent with the direction given by the foregoing authorities, I do take into account the standard sentence in relation to the offence of culpable driving, but note that such sentence is to be treated as a “legislative signpost” and does not affect the established “instinctive synthesis” approach to sentencing.
59In cases involving culpable driving, the sentencing principles of general deterrence in particular, together with denunciation, just punishment and the protection of the community, will ordinarily all be strong considerations. By this, it is to be stressed that, when the Court sentences for such an offence, it is important to send a clear message to others that a significant sentence of imprisonment can only be expected in cases of culpable driving causing death. In coming to an appropriate disposition I take all these matters into account, including limited weight for specific deterrence, together with the various mitigating factors to which I have referred, and also the various Victim Impact Statements in relation to both offences.
60I have also had regard to the totality principle and the need to avoid double punishment for what was one episode of negligent and/or drug-affected driving giving rise to the two offences.
61Consistent with the foregoing authorities, I do take into account the standard sentence in relation to the offence of culpable driving and have indeed been referred to a number of cases where sentences for culpable driving under the Standard Sentencing Scheme have been handed down, particularly by the County Court of Victoria.[26]
[26]See DPP v O’Brien [2023] VCC 505; DPP v Mitcham [2023] VCC 464; Director of Public Prosecutions Kellalea [2023] VCC 47 and DPP v Egel [2022] VCC 645; all of which I have read
62Taking all these matters into account, I intend to convict you of each offence and sentence you to a period of imprisonment, consistent with the foregoing principles.
Disposition
63Please be upstanding:
(a) in relation to Charge 1 on the Indictment, you are convicted and sentenced to one year and six months’ imprisonment;
(b) in relation to Charge 2 on the Indictment, you are convicted and sentenced to seven years’ imprisonment;
(c) I direct that ten months of the sentence in relation to Charge 1 be cumulated with the sentence in relation to Charge 2;
(d) the total effective sentence is seven years and ten months and I direct that you serve a non-parole period of four years and eight months;
(e) I further declare that you have been in custody in respect of these offences, for a period of 814 days and that they be reckoned as a period of imprisonment already served under the sentence, which is to be deducted administratively;
(f) I declare, pursuant to s6AAA of the Sentencing Act 1991, save for your plea of guilty, I would have ordered a total effective sentence of nine years, with a non-parole period of six years;
(g) Pursuant to s87P of the Sentencing Act 1991 and s89(2)(b) of that Act, I order that all driving licences in your name be cancelled and you be disqualified from driving for a minimum of three years from today.
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