Director of Public Prosecutions v Vandergeest

[2018] VCC 1324

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-02330

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS VANDERGEEST

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	26 June 2018
DATE OF SENTENCE:	23 August 2018
CASE MAY BE CITED AS:	DPP v Vandergeest
MEDIUM NEUTRAL CITATION:	[2018] VCC 1324

REASONS FOR SENTENCE
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Subject:
Catchwords:

Legislation Cited:  DPP v Neethling (2009) 22 VR 466; R v Boxtell [1994] 2 VR 98

Cases Cited:  Sentencing Act 1991
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Saville
For the Offender	Mr A. Trood

HER HONOUR:

1Mr Vandergeest, the sentencing process is somewhat lengthy.  I am not going to ask you to stand during that process until we get towards the point where I am going to impose sentence, which is at the end.

2Thomas Vandergeest, you have pleaded guilty on indictment to a single charge of dangerous driving causing death.  This offence occurred on 24 December of 2015, with the deceased being your then girlfriend, Natalie El-Ali.

3A charge of dangerous driving causing death is one which carries a maximum penalty of ten years imprisonment.  This penalty reflects the seriousness with which Parliament regards this offence.  It is also an offence which has seen an increase in the maximum penalty in 2008 from five years to ten years imprisonment.

4The circumstances of your offending are set out in a document entitled 'Plea Opening' and dated 6 December 2017.  It has been exhibited as P1.  The summary is largely accepted by your counsel.

5The fatal collision giving rise to the charge for which you have pleaded guilty occurred on the South Gippsland Highway between Leongatha and Koonwarra on 24 December 2015 at about 5.15 am.  You fell asleep and lost control of your car, which rolled.  Natalie El-Ali died at the scene from injuries she sustained in the collision.  You were then 24 years of age and Natalie El-Ali 20 years of age.  You were licenced, in your own car, a BMW, which you had owned for about 12 months, and were familiar with the area.  You had been in a relationship with Ms El-Ali since the start of 2015 but were not residing together.

6In the lead up to that tragic event on 23 December 2015 you had started work at the family dairy farm at around 5.30 am and finished work after milking the cows in the afternoon.  Natalie El-Ali worked at the Foster Golf Club that evening and arrived home at about 8.30 pm.  You had previously arranged to go to the Chadstone Shopping Centre late in the evening to take advantage of that shopping centre being open for 24 hours for Christmas shopping.

7From Foster you drove to Korumburra to pick up Natalie El-Ali and her 12 year old twin brothers and then drove to Chadstone, arriving at approximately 11 pm.  You shopped until around 2.30 am the following morning.  On the way home you stopped at a service station in Officer for some refreshments and then drove to Natalie El-Ali's family home in Korumburra to drop off her twin brothers.

8After dropping off her brothers you and Ms El-Ali both slept in your car for about one hour outside her family home.  Upon waking you started to drive home to Foster so that you could again milk the cows.  Natalie El-Ali was asleep in the front passenger seat, which was reclined, and she was not wearing a seatbelt.  You drove through Leongatha and were approximately 3.5 kilometres from Koonwarra when you fell asleep.  Your car veered into the oncoming northbound lane, and then onto the gravel and grass embankment on the incorrect side of the road.  It continued to travel along that embankment until it hit a depression in the embankment and a concrete drain, which caused your car to flip and roll twice before coming to rest on its roof on the northbound carriageway.

9At the time of the collision, traffic was reported to me as being light, visibility was clear and the road was dry.  It was dark and there was no street lighting.

10Natalie El-Ali was ejected through the sunroof of the car and she came to rest on the southbound lane, approximately 8 metres from your car.  You gave her first aid and contacted 000, following their instructions until paramedics arrived.  Unfortunately, and tragically, she died at the scene from head injuries she sustained in that collision.  You were also taken to hospital and released the following day with minor injuries.

11There is no suggestion that you had either consumed drugs or alcohol.  The case against you is put, as I understand it, that the primary source of the dangerousness, in terms of your driving, was the fact that you fell asleep at the wheel.

12In the Crown opening you were attributed to having the following conversations post-accident.  Firstly; you told the 000 operator that you had fallen asleep at the wheel and crashed.  Secondly; you told paramedic Karl Wassenburg that you were tired and must have fallen asleep, and that you thought that Natalie was wearing a seatbelt.  At the Leongatha Hospital you told Mr Wassenburg that you felt tired as you were driving through Leongatha and had intended to stop at a truck stop just beyond where the accident happened.  You told Michael Symons, a passer-by who assisted you at the scene, that you had rested at Korumburra but had to be home at quarter to five or six to milk the cows, had started to feel tired after leaving Leongatha and intended to pull over further down the road, but did not make it.

13At the Leongatha Hospital you were treated by Dr Yi Hui Li.  Before assessing you she also asked you what happened, and the conversation that you had with her is the subject of challenge.

14You subsequently attended at the Leongatha police station by appointment on 11 January 2016, after receiving legal advice, and participated in a record of interview in which you made full and detailed admissions.  In relation to the collision you told police that on either side of Leongatha, as you were going up a hill, you noticed that you were getting drowsy and thought that you needed to pull over, because it was getting dangerous.  You told police you were intending to pull over in the rest area, but the next thing you could remember was looking at grass and a ditch.  Before you had time to respond, you had collected a culvert.

15You gave details to the police of the breaks you had taken to rest or sleep.  Professor Shanthakumar Rajaratnam, an expert in sleep medicine from Monash University, was requested by police to provide an opinion regarding this single vehicle collision.  After reviewing all of the materials he concluded that all the characteristics of the collision were consistent with a fall asleep motor vehicle crash event, which is indeed consistent with your record of interview and other conversations attributed to you.

16At best you had three hours and 40 minutes sleep in a total of 24 hours, accepting the nap periods that you attributed to yourself at various stages throughout that period.  I suspect it is likely to be less, given it would be unusual in the blocks for sleep which you did attribute to giving yourself would have involved sleeping for the entire period - as it takes time to fall asleep, and indeed to wake up - but I am prepared to sentence you on the basis that you had three hours and 40 minutes sleep in that 24-hour period, noting also that it is that period on which Professor Rajaratnam uses to form his opinion.  In his opinion the sleep history in that 24-hour period was inadequate.

17Under challenge is a conversation which you are alleged to have had with
Dr Li which, in brief compass, would indicate that at the point of leaving the El-Ali house in Korumburra to return to Foster, you were aware that you were tired and sleepy, and that Natalie El-Ali had warned you not to drive.  It is said by the parties that if I find that you did report such things to Dr Li, and if I do accept that you were truthful in saying them, then that would increase the objective gravity of your offending and your moral culpability. It is submitted by the parties, and I agree; that I would have to be satisfied beyond reasonable doubt that the conversation with Dr Li occurred, and that what you reported was truthful.

18In my view there were two aspects to the import in the evidence under challenge.  Firstly; the stage at which you were aware you were sleepy, and secondly; that you were warned at Korumburra by Natalie El-Ali not to drive.

19The first piece of evidence in this regard is a statement or report of Dr Li juratted 14 November 2017, to which she also attaches medical notes.  In that statement she reports a series of questions which she asked of you, and answers purportedly given whilst treating you in the emergency department of the Leongatha Hospital at approximately 6.20 am.  This would be one hour after the accident in which Ms El-Ali was killed.  I note that she undertook a physical examination of you and that many of her questions were designed to ascertain injury, and not to gather evidence.

20Dr Li identified a 3 cm laceration on your forehead, scalp and skin, and a superficial abrasion around the laceration.  There was also a skin abrasion on your forearm.  Dr Li did not find any significant injury but observed that you were understandably emotional, and that you had tears in your eyes.

21In a statement to which I have just referred Dr Li attributes the following conversation, referring to herself as "me".

"Me:  'Thomas, can you tell me what happened?' 

Thomas:  'I had an accident.  I know I shouldn't drive'. 

Me:  'Can you tell me a bit more?' 

Thomas:  'Yes.  I and my girlfriend went to Chadstone Shopping Centre for Christmas shopping overnight.  We drove back around half-past two in the morning.  I was very tired.  We stayed at my brother's house for about one hour.  I got up around 5 o'clock, as I had to go to work.  I was very sleepy and my girlfriend told me not to go, but I felt I had to go, so we got in the car.  I felt I was very sleepy.  I am not sure how the accident happened'".

22Dr Li reports speaking to you with you lying in a bed with a cervical collar, that you were alert, and that after medical assessment she was of the belief that you were medically stable and able to give further information.

23The Crown draw the court's attention to this alleged conversation with Ms El-Ali.  If it occurred it was approximately 15 minutes before the accident, and attributes you with knowing that you were very tired and very sleepy before recommencing the drive.  It also attributes you as being told not to drive by Ms El-Ali, but choosing to do so anyway.

24The defence position is that I cannot be satisfied beyond reasonable doubt that you did say such things when considering, firstly, that English is the second language for Dr Li, she does not attribute her account of what you said as being word for word, and that she also made errors in other information that she recorded.  For example, she attributes you to saying that you stayed at your brother's house when in reality you had dropped Ms El-Ali's brothers at her mother's house and slept outside the premises in your car.

25The notes to which Dr Li referred in her statement are entitled 'Selective History Report for Vandergeest, Thomas'.  Contained in that document are the typed words:

"He and his friend went shopping and was back around 0230 hours.  Stayed at his brother's house for about one hour around five to 6 o'clock hours.  He thought he had to go to work even though he felt very tired.  He and his friend got into the car, was driving about 100 kilometres speed.  He felt tired and drowsy when he was driving around 0630 hours.  His girlfriend was sleeping whilst he was driving".

26Your defence point out that these notes, or selective history report, do not detail the alleged warning by Natalie El-Ali that you should not drive.

27Dr Li was cross-examined at committal proceedings held on 14 November 2017.  She agreed that the notes that she took at first instance were not word for word.  She also agreed that at the time of her conversation with you that you appeared to be upset.  Dr Li gave evidence that after her original notes were entered into the computer, she was reminded by police to make sure that she documented clearly any conversation with you.  She realised that the selective history that she took at first instance did not clearly document some conversation that she states she did have.  She made her more detailed account the same day, or at least within one to two days thereafter.  It was in that context that her more detailed notes came about.

28Dr Li gave evidence that she wrote down all things that were in her memory; albeit not word for word.  Much of this cross-examination commences at p.29 of the committal transcript, and I will read some of the question and answers that she gave.

"Question:  'When you're having this conversation with him he was upset and emotional?' 

Answer:  'It's not extremely upset.  I can see the feeling is regret when we were first beginning, because I clearly remember he said 'I shouldn't drive'.  That is the first thing he told me, so that's why give me very big impression for that, and I can see his tears'. 

Question:  'But when you were speaking with him was he having - because he was emotional was he having difficulty?' 

Answer:  'No.  He's quite calm when I talk to him'.  'Was he having difficulties saying words?'  Answer:  'No'. 

Question:  'And one of the things - focussing on your report you say that he told you that he'd stayed at his brother's place?' 

Answer:  'Yes'.  'And you've accurately recorded what he told you about his brother's place?'  Answer:  'I didn't furthermore ask.  He just said 'have a rest'.

Question:  'I understand that, but you've accurately recorded that he has told you it his - that it was his brother's place that he stayed at for the rest of the night.  Is that right?' 

Answer:  'Brother's place.  Yeah, yeah, that's my memory.  Yes'. 

Question:  'Now, in terms of what he told you he mentioned some circumstances with his girlfriend about whether to go or not?' 

Answer:  'Ah, yes, he did tell me, because he said he's just got up, going to work, and he told me because I said 'I shouldn't drive'.  He kept saying that.  He kept saying that 'I shouldn't drive, I shouldn't drive.  My girlfriend told me not to go', but he insist to go.  That's - that's he said to me'".

29The context in which you referred to your girlfriend telling you not to go becomes less clear as part of this conversation, in my view.

"Question:  'Did he give you a reason as to why she wanted to go?  That she didn't, for example, want to get back in the car and drive for a further couple of hours?' 

Answer:  'No.  But I remember the patient did tell me he feel tired but he felt he had to go, yeah'. 

Question:  'Sorry?  He kept saying to you that he shouldn't have gone; did I understand you?' 

Answer:  'Yes.  He said 'I shouldn't drive', yes'. 

Question:  'And he was saying 'I know I shouldn't have driven' in the past tense?' 

Answer:  'Shouldn't.  Yes, that's the word he used'. 

Question:  'So what he was saying to you is that in the past tense 'I know I shouldn't have driven'? 

Answer:  'I can't remember'.  Question:  'There's a difference between what someone can say looking back on events, now that the terrible events have happened'.  Answer:  'I understanding is past tense'. 

Question:  'You understand that you can talk about things in past tense?' 

Answer:  'Yeah, past tense'. 

Question:  'Like 'I know I shouldn't have driven'.  Given he's lying in hospital and his girlfriend has died, and that's a terrible event on any view of it.  So is that the sort of thing he was saying to you?' 

Answer:  ' I think I understand this way.  Yes'. 

Question:  'Did he say to you at any stage that he must have gone to sleep, or words to that effect?' 

Answer:  'I can't really remember for that'. 

Question:  'Again, one can look back on the event and draw conclusions like 'I must have gone to sleep' as opposed to saying 'I was asleep'.  There's a difference between the two.  Do you understand the difference?' 

Answer:  'He said, 'Yes, I was sleepy.  Tired, yeah'. 

Question:  'One can look back on the event and say, for example, 'I must have gone to sleep', as opposed to, 'I was asleep'.  There's a difference between the two.  Do you see?' 

Answer:  'Yeah, I see that'. 

Question:  'Was he saying he was asleep, or must have gone to sleep?' 

Answer:  'He tell me 'I was tired, I was sleepy'.  'And did he tell you that he was sleepy before he felt the bump?' 

Answer:  'I don't know.  I can't really give you the detail about that, but he said that when he jump into the car he was tired and sleepy.  That's the word he tell me.  I didn't ask ‘while you were driving did you sleepy?'.  I didn't ask this question, I have to admit'. 

Question:  'Did he use the word sleepy?'

Answer: 'That's my memory, yes'. 

Question:  'Or did he use the word he felt tired?' 

Answer:  'He used both.  'I felt tired and sleepy'".

30Your counsel contended that I should accept the account in your record of interview that you felt reasonably fresh between Korumburra and only started to feel drowsy at the point near the top of the hill, shortly before the accident occurred.  If I accept this account it is submitted that I should consider a community corrections order, and that your culpability would be low.

31In terms of this challenge, you have not given evidence, and I am being asked to rely on your record of interview.  Professor Rajaratnam opined that it is unlikely that you experienced a sudden onset of sleepiness, as you had attributed to yourself in your record of interview with police.  In his opinion a sudden onset and rapid progression of sleepiness are not typical, and whilst he could not rule that out it was unlikely in the absence of some medical or sleep disorder.

32Based on the clarification through committal, whilst I am satisfied at some point Natalie El-Ali spoke to you about whether or not you should be driving, I cannot be certain as to the context or the timing of any such conversation, and will not take it into account in determining the objective gravity of your offending, or your moral culpability for it.  I am satisfied, however - to the requisite standard - that at the point in time that you left Korumburra you realised that you were tired and sleepy.  This view comes from a combination of evidence, including the conversation attributed to you by Dr Li.

33As I have already referred Dr Li attributes the conversation with you at the Leongatha Hospital at approximately 6.20 am on 24 December 2015.  She reports you as saying, at that time, you left Korumburra and were sleepy.  She reports you as saying that you drove back from Chadstone at 2.30 in the morning and that you "felt very tired at that point".  You then stayed at your brother's house - noting it was actually Ms El-Ali's mother's house - for about an hour before recommencing the drive.  This would represent an acknowledgement by you that you were aware you were tired and needed to rest.

34In your record of interview with police you refer to that same point in time at which you and Ms El-Ali arrived at Korumburra, and that you determined that you were too sleepy to continue, so the decision was made to sleep in the car.  In the selective history report Dr Li refers to you as saying that you thought you had to go to work even though you felt very tired, and that you and your friend got into the car.  It is consistent - through both sets of her notes that she has taken at that time - that you recommenced your journey after approximately one hour's nap, and that you described yourself at this point as being both "tired" and "sleepy".

35Under cross-examination at committal hearing Dr Li remains very firm, in my view, that you repeatedly told her that at the point of leaving Korumburra you did feel tired, but felt that you had to go, and that when you jumped in the car you were both tired and sleepy.  This of course makes sense, given the limited access that you had to sleep prior to this point in time and your own acknowledgement as to how tired you were at the point in time when you arrived at Korumburra from Chadstone.

36In your record of interview with police on 11 January 2016 you refer to being woken from your nap outside Natalie El-Ali's parents' house in Korumburra by alarm.  After waking you describe going for a walk in the cool night air.  You had water to freshen yourself up before driving.  This, in my view, is a clear indication of your awareness of the need to wake yourself up from the rest.  I am also satisfied beyond reasonable doubt that at the point before commencing the continuation of your journey you realised that you were not in sufficient condition to drive; that is, you were too tired to drive.

37It was, in my view, a deliberate decision by you to drive, as you remained committed to the obligation to your father to milk the cows.  Even on your own account, you realised you were too tired to drive after you left Leongatha, telling police that you were going to need to pull over because it was obviously getting dangerous, but you were trying to locate an appropriate position to do so.

38In my view the real objective gravity of your offending comes from the poor planning involved for what can only be considered a lengthy period of driving overall, in only accessing short periods of sleep in a 24-hour period when the risks associated with driving with inadequate sleep are well-publicised and well-known.  Whether you realised you were simply too tired to drive 15 minutes, ten minutes or two minutes prior to the accident has marginal impact on assessing the objective gravity in these circumstances.

39On your own account you made an assessment outside Leongatha that you were too tired to drive and were finding a spot to pull over.  You attribute, at that moment in time, to the need to wipe your face, to rub your eyes, to try and sit up in your vehicle and to try and focus, given your oncoming fatigue.  This statement shows that you were aware that you were too tired and that - because of the danger associated with driving in that condition - you should pull off the road.  The loss of control which resulted in the collision was not, in that sense, a momentary lapse.  You made the decision to keep driving at various points in time.  You would have appreciated the risks of so doing.  You had been driving for some eight years prior to this point in time, and possibly more given you had grown up on a farm.  You had owned the car you were driving for about 12 months.  You had clearly had an inadequate amount of prior sleep in order to continue this journey, and that in itself should have indicated that it was not safe to do so.

40The reality of this situation is such there was simply insufficient planning for this trip when you clearly had alternatives in terms of timing, staying overnight, and making arrangements for your father to milk the cows the following morning.  According to your record of interview you had previously made arrangements with your father to milk the cows when you were unable to be present for the morning milk.  Given that you knew you were likely to be up all, or most of the night, it is a mystery why you did not make similar arrangements to take the pressure off, or alternatively simply did not undertake the shopping trip.  These, I understand, are the benefits of hindsight, which has 20/20 vision, but in my view is also common sense.  I do accept that you could never have intended the tragic consequences which subsequently unfolded.

41Reference was made during your initial plea hearing to Ms El-Ali contributing to her own injuries by her failing to wear a seatbelt.  I reject that submission.  I simply do not have evidence before me that would allow me to form the view that any admission by Ms El-Ali to wearing a seatbelt would have made her injuries worse than they would otherwise have been.  Leaving that to one side, you as the driver bore the responsibility for ensuring that your passenger's seatbelt was being used, and that her seat was not reclined during the drive.  According to your record of interview you were certainly aware that she was in a reclined position.

42For dangerous driving causing death the court's assessment of the dangerousness of the driving is informed by the extent of the risk which the driving created, as well as by the extent of potential harm should the risk materialise.  It thus covers a wide range of driving behaviour. 

43In the DPP v Neethling (2009) 22 VR 466 the court accepted the following principles apply for sentencing for dangerous driving causing death:

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

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

(3) The sentence which is imposed must take into account variations in the moral culpability of the person responsible;

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

44The court, in that case, also identified non-exhaustive factors which may aggravate the seriousness of such an offence.  It would appear from those factors that those which are applicable to you are primarily the extent of sleep deprivation to which I have already referred.  The nature of the injuries inflicted is contained within the charge to which you have pleaded guilty.

45In R v Boxtell [1994] 2 VR 98, at pages 103 to 104, it was held that:

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

46You simply must have been aware of the risks of continuing to drive without adequate sleep.  It appears from your record of interview that you were well aware - particularly in the lead-up to the accident – that you were having trouble staying awake.  In this context I find your moral culpability to be at a moderately high level.  Given your lack of access to sleep in the 24 hours prior to the accident you simply must have been aware of your fatigue, and yet made a conscious decision to drive, appreciating the inherent risk in driving in the circumstances.

47I do accept that your particular case does not carry the too often seen hallmarks such as drug or alcohol intoxication, high speed or erratic driving, showing off, or even police pursuits - which, in my view, puts your case in a lower category than most in terms of its objective seriousness, given its lack of aggravating circumstances.

48Professor Rajaratnam's report opines that 55 per cent of fall asleep motor vehicle crashes occur in adults younger than 25 years of age.  As I have already referred, the risks associated with driving without adequate sleep are well-publicised and well-known.

49General deterrence is a matter that I must give some significant weight in order to send a clear message to the community of the responsibilities involved in driving a motor vehicle and the dangers of driving when deprived of sleep.  I accept in your case that less weight needs to be given to the aspects of specific deterrence and the need to protect the community from you.

50Ms El-Ali's mother, Susan Assad, read her victim impact statement to the court.  The contents of that document cannot be lost on you.  The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in a criminal justice process by informing the court about the effects of the crime upon them.  It is clear that the effect of your offending against
Ms Assad remains profound, and continues to this day.

51As I must, I take into account matters personal to you as raised by your counsel in detailed written and oral submissions.  These include the fact that you are now 27 years of age, but were 24 years of age at the time of the accident.  You were born in Foster and grew up in dairy farms; your parents having come from the Netherlands some 30 years prior.  You have two older sisters.  You completed your secondary education in Leongatha and have a Year 12 education which you completed in 2009.  Your parents separated that same year.

52Upon leaving school you commenced working with your father.  In 2011 you attended La Trobe University and commenced an agricultural science degree, but were not able to complete it.  You met Natalie El-Ali in January of 2015 and shortly thereafter commenced a relationship with her.  In March of 2016 you stopped working with your father, as the relationship with him had deteriorated.

53In March of 2017 you commenced work with an earth construction company known as Stable Earth Constructions, which builds walls and houses from rammed earth walls.  I am told you will lose this employment as a result of the mandatory disqualification of your licence, as well as the need to serve any prison sentence.  I take this into account as a form of extra curial punishment.

54You maintain a good relationship with your mother and have recently married Jessica Davis.  I have also had recourse to references authored by Jessica Davis, Adrian Fyfe and Owen Cowell.

55At the time of writing her reference on 8 June 2018, Ms Davis was your fiancée, and, as of 5 August, is now your wife.  She has known you for approximately ten to 11 months.  She speaks of the distress you have encountered as a result of having difficulty planning for your future.  Mr Cowell knows you as an employee in his construction company, and has known you for approximately 18 months.  He speaks of your level of responsibility, your intelligence, and describes you as hardworking.  He described your offending as being out of character, although no one suggests otherwise.  The reference from Mr Fyfe is authored by someone who has known you for at least 20 years, as he watched you grow from childhood into adulthood.  He describes you as polite, hardworking and honest.  He speaks of how heavily this accident has weighed upon you.  Each of these persons has obviously known you in a different capacity.  I am satisfied that you were well-supported, and will be so upon your eventual release into the community.

56I am satisfied from this information, and other material before me, that you have good, if not excellent prospects of rehabilitation.

57I note that no psychological or medical material has been tendered on your behalf.

58You have obviously pleaded guilty to your offending.  I do accept that your plea of guilty has served a utilitarian purpose in that it has saved the court the time and expense of a contested proceeding.  More importantly, in the context of this case it has saved the witnesses the trauma of having to give evidence.  I accept your plea was entered at an early opportunity, although committal proceedings were conducted.  This was primarily to ascertain an appropriate charge to which you would plead guilty.  A charge of culpable driving was withdrawn at the committal hearing.  On the evidence before me I accept that your plea is one of remorse.  All of these matters must be properly reflected in your sentence in order to show you, in a tangible way, the benefits of pleading guilty, and sending a clear message to the community in order to encourage others to take a similar course.

59You have no prior matters, as is often the case for offences of this type.  You have no subsequent matters.  The sentence that I will impose this day will be your first experience in the context of no involvement with the criminal justice system or custodial setting.  I accept that that will make your experience in custody more difficult than it would for others who are not in the same category.

60Your offence, as I have described, occurred in December of 2015.  You were not charged until June of 2016.  Proceedings then went through normal processes until the contested committal hearing in November of last year, at the conclusion of which you entered a plea of guilty to dangerous driving causing death.  The plea was then listed in the next circuit sittings in November of 2017, but could not be reached until June of this year.  In that sense I accept there has been a delay such that there has been both uncertainty and considerable stress associated with the matter - particularly its outcome - hanging over your head for this period of time.  In addition this period allows the court further time in which to assess your prospects for rehabilitation.

61I have already referred to the fact that you are before this court without prior convictions.  In the two years and eight months since December 2015 there has been no further offending.  This - combined with your family supports, new marriage and solid work history - would indicate, as I have already referred, that you have good, if not excellent prospects for rehabilitation.

62The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters such as the seriousness of your offending, your culpability for it, your personal circumstances and those of your victim. 

63I am also required to balance the clear interests in the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and reintegrated into society. 

64I have taken into account relevant sentencing guidelines referred to in s.5 of the Sentencing Act 1991 where relevant to your case.

65There are no winners in a case such as this.  Any sentence I impose cannot adequately compensate for the loss, but must reflect the matters to which I have already referred.  If I had to consider your personal circumstances alone it may be that I would see limited need to impose a term of imprisonment on you, however general deterrence, just punishment and denunciation all must, in my view, be given proper weight.  Driving cases where lives are lost and changed forever are often cases where we are called upon to sentence otherwise good and decent people to imprisonment.  I see no option, if I am to apply sentencing principles that I have identified properly, other than to sentence you to a term of immediate imprisonment.  It must be long enough to properly reflect your moral culpability for the life taken and the injuries inflicted, and to reflect the needs of general deterrence, just punishment and denunciation, as well as the other matters to which I have already referred. 

66I do now turn to sentence and would ask that you stand.

67I am required to cancel and disqualify any licence held by you for a minimum of 18 months.  Any licences held by you are cancelled and disqualified for a period of two years as of today's date.

68Thomas Vandergeest, you are convicted and sentenced to 30 months imprisonment.  You are to serve 16 months before being eligible for parole.  I have fixed a longer than usual period between the minimum term and head sentence in order to provide for your supported release and transition back into the community upon the expiration of any non-parole period.

69Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty to the charge.  If not for your plea of guilty I would have sentenced you to four years and three months with a non-parole period of two years and ten months.  If you could remove the prisoner and I'll stand down temporarily.  Is there a matter, Ms Saville?

70MR SAVILLE:  There was the ancillary order; the 464.  I'm not sure if Your Honour ‑ ‑ ‑ 

71HER HONOUR:  Did we hear anything about that?  The 464?

72MS SAVILLE:  It was noted on the last occasion and I believe it's been e-lodged.  I'm not sure if ‑ ‑ ‑ 

73HER HONOUR:  Have you got any instructions?

74MR TROOD:  I'm in your hands, Your Honour.  The only objection I'd raise is in respect of he has no prior history.  It's unlikely that that would ‑ ‑ ‑ 

75HER HONOUR:  Yes.

76MR TROOD:  ‑ ‑ ‑ be of any forensic nature, but I'm in your hands, effectively.

77HER HONOUR:  The discussion we're having is about a forensic sample being taken.  I'm not satisfied in the context of this case that that order should be made and I decline to do so.

78MR TROOD:  As Your Honour pleases.

79HER HONOUR:  All right, I'll stand down temporarily.

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