Director of Public Prosecutions v Wells
[2025] VCC 613
•12 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-02226
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| MATTHEW WELLS |
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JUDGE: | HER HONOUR JUDGE BRECKWEG | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 May 2025 | |
DATE OF SENTENCE: | 12 May 2025 | |
CASE MAY BE CITED AS: | DPP v Wells | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 613 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING
Catchwords: Dangerous driving causing death – Dangerous driving causing serious injury – more than momentary inattention – heavy vehicle – category two offence – high moral culpability- remorseful – major depressive disorder and post traumatic stress disorder as a result of the offending – suicide risk post offending – deleterious effect on mental health -find that s 5(2H)(c)(ii) is met on the balance of probabilities.
Legislation Cited: Crimes Act 1958 Vic; Sentencing Act 1991 Vic;
Cases Cited:DPP v Neethling (2009) 22 VR 466; Stephens v The Queen (2016) 50 VR 740;Gray v The Queen [2021] VSCA 322; Lee v The Queen [2021] VSCA 322;DPP v Janson (2011) 31 VR 222; Bugmy v The Queen (2013) 249 CLR 571; Buckley v The Queen [2022] VSCA 138.
Sentence: Convicted and sentenced to 12 months imprisonment followed by a 2 years Community Corrections order with community work hours and conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A French | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr C Terry | Doogue & George Criminal Lawyers |
HER HONOUR:
Introduction
1Matthew Wells, you have pleaded guilty to:
Charge 1:Dangerous driving causing death contrary to s 319(1) Crimes Act 1958 (Vic) which carries a maximum penalty of 10 years’ imprisonment; and
Charge 2:Dangerous driving causing serious injury contrary to s 319(1A) Crimes Act 1958 (Vic) which carries a maximum penalty of 5 years’ imprisonment.
Circumstances of the offending
2The facts of your offending are set out in the Summary of Prosecution Opening (Exhibit A), and these were not in dispute. On Tuesday 9 April 2024 just after 12pm in the course of your employment, you were driving a 16.5 tonne front loader rubbish truck in a westerly direction along Greens Road, Dandenong South.
3Ahead of you, Mrs Raye Peacock was driving a 2009 Hyundai Tucson in the same direction. Her husband John Peacock was seated in the front passenger seat. The Hyundai had come to a complete a stop behind other vehicles that had stopped at a red light at the Lanyon Street intersection. Mrs Peacock had left at least a car length’s distance between her Hyundai and a Coates truck in front of her vehicle.
4Your truck did not stop at the lights but continued at a constant speed of 57kms an hour and collided into the rear of the Hyundai. Your truck impacted the Hyundai with significant force, resulting in:
(a)The Hyundai being shunted into the rear of the Coates hire truck.
(b)The Coates hire truck being pushed forward into the rear of a Volvo sedan; and
(c)The Volvo sedan being pushed forward into the rear of another rubbish truck.
5The Hyundai sustained significant rear end and front-end damage. Mrs Peacock was assisted out of the vehicle by members of the public, while Mr Peacock remained in the vehicle until he was stabilised by paramedics. Both were then transported to The Alfred Hospital. Mr Peacock, who was 87 years old, suffered extensive internal injuries from which he was unable to recover. He died on 11 April 2024, from “complications of multiple injuries sustained in a motor vehicle incident (passenger) in a man with multiple medical co-morbidities” (Charge 1: Dangerous driving causing death).
6 Mrs Peacock, who was 84 at the time of the collision, sustained the following injuries:
(d)Sternal body (chest bone) fracture with retrosternal haematoma (blood clot behind the fracture.
(e)Multiple bi-lateral rib fractures.
(f)Bi-lateral haemothorax (small amount of blood in the chest).
(g)Bruising over lower abdomen (from seat belt).
(h)Cervical spine fractures (C5 and C6) with ligament injury, for which she wore a neck collar for 3 months.
(i)Thoracic spine fracture (T9), lumbar spine fracture (L2) and sacral spine fracture (S2); and
(j)Right and left side distal fibular (ankle) fractures.
7Mrs Peacock was transferred to the Hawthorn Centre for rehabilitation on 7 May 2024 and was discharged on 3 June 2024 with outpatient support. (Charge 2: Dangerous driving causing serious injury).
8At the time of the collision you held full and current car and heavy rig Victorian driver’s licences. A blood sample taken from you did not reveal the presence of any alcohol or drugs in your system.
9The truck you were driving had no fault, failures or conditions that could have caused or contributed to the collision. Whilst there were some mechanical defects in the vehicle, these did not cause or contribute to the collision. The speed limit on the road where the collision occurred was 70 km/h. It is a road with two lanes which travel straight and at the time of the accident, it was daylight, and the road was dry.
Impact on victims
10In reaching a sentence that is appropriate in all the circumstances, I have had regard to the relevant and admissible portions of the Victim Impact Statements prepared by Mrs Raye Peacock (Exhibit B), Steven Peacock (Exhibit C) and Karen Webb (Exhibit D).
11Steven Peacock, the son of Mr and Mrs Peacock, stated that the collision has changed his life and that of his family forever. He described his father as the most caring, giving person you could ever meet and said the loss of his father is one that he thinks he will never fully recover from. He also spoke of a sense of deep, relentless anger that he cannot let go of.
12Mrs Raye Peacock described how she lost her husband of 63 years which was a “huge loss” that has shattered her sense of security and love and left a massive hole in her life. Mrs Peacock said that because of the injuries she sustained, her life will never be the same and she feels that she has been a burden on her family due to her ongoing medical problems. She said she is reminded of the accident and loss of her husband John, her forever love, every day.
13Karen Webb, the daughter of Raye and John Peacock, read her victim impact statement to the court. She described the incident as not only cutting her father’s life short but robbing her parents of “many years they still had together”. After her father’s death she was responsible for organising the funeral and other matters while supporting her mother through months of recovery. She spent six months living almost entirely away from her own home to be close to her mother and support her in her rehabilitation. Ms Webb stated that the trauma of the accident and its aftermath took a “monumental toll” on her mental health, and she has been diagnosed with PTSD and depression and is seeing a psychiatrist regularly.
Comments to police
14Around 8 minutes after the collision you told a police officer who attended the scene that “I was looking up, everything seemed to be flowing ok. I was just sorting out the next couple of jobs I had to do in my head. I looked away for a second, everyone had stopped. I jumped on the brakes”.
Personal circumstances
15You were 41 years of age at the time of the offending and are now almost 42. At the time of the collision you were employed as a truck driver for Wanless Waste Management.
16You have a sister and two brothers. Two of your siblings were at the plea hearing to support you and they have provided character references (Exhibits 2 and 3). You told Ms Carla Ferrari, psychologist, that your parents separated when you were four years old due to your father’s aggression and violence towards your mother. You said this possibly extended towards the children although you do not have a recollection of any specific incidents. Your mother re-partnered twice before she passed away from various medical issues in 2020. Both your mother’s subsequent partners were abusive towards her. Your relationship with your mother was strained at times, but you described reconnecting with her before her passing. You told Ms Ferrari that the absence of a father figure in your life did not impact you because you had other positive male role models including your grandfather, uncles and older brother. You became a father at age 18 and now have 3 adult children.
17You reported a generally positive experience at school, and you have a very good employment history. Since the offending you have remained employed with Wanless Waste Management in an administration position and the company is supportive of you.
Sentencing considerations and principles
18In sentencing you, I must have regard to those matters set out under s 5(2) of the Sentencing Act 1991 Vic (‘the Act’).
19 I have also had regard to what was said in Stephens v The Queen[1] that:
[1] (2016) 50 VR 740, [21]; See also Hall v The King [2024] VSCA 255.
Dangerous driving…encompasses a very wide range of conduct, but… dangerous driving causing death or serious injury is likely to receive a significant term of imprisonment. That sentencing principle was qualified in Director of Public Prosecutions v Oates, by noting that any sentence which is imposed must take account of variations in the moral culpability of the person responsible and that a custodial sentence will usually be appropriate for this offence except where the offender’s moral culpability is low.
20Similarly, in DPP v Neethling[2] the court held that when sentencing for indictable driving offences that cause death or serious injury the court must have regard to the principles that a) general deterrence must be given considerable weight; b) that a person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment and c) that the sentence which is imposed must take account of variations in the moral culpability of the person responsible.
[2] (2009) 22 VR 466.
21In addition to the need to reflect general deterrence, specific deterrence, community protection, denunciation and just punishment are also of significance in sentencing.[3]
[3] DPP (Vic) v Chambers (2006) 47 MVR 22, 27 [25]; DPP (Vic) v Browne [2023] VSCA 13; Vasilevski v The Queen (2018) 83 MVR 351.
22The authorities make it abundantly clear that driving offences that result in the death or serious injury of another person are very serious.[4] This is reflected by the fact that charge 1 is a Category 2 offence pursuant to s3 of the Act which means a custodial sentence (other than a combination term of imprisonment and community correction order) must be imposed on you for that charge unless one of the exceptions in s 5(2H)(a) to (e) of the Act are established.
[4] DPP (Vic) v Chambers (2006) 47 MVR 22, 27 [25]; 3489; DPP (Vic) v Kenneison [2023] VSCA 321.
Nature and gravity of offending
23 Your counsel accepted your offending is very serious but submitted that it was towards the lower end of seriousness for dangerous driving causing death and serious injury and your moral culpability is low. Your counsel accepted that your offending was aggravated by the additional duty of care owed as a driver of a heavy vehicle, but stressed that you were not speeding, were unaffected by drugs, alcohol or fatigue, were not driving erratically before the collision, did not receive any prior warnings of your dangerous driving and you did not try to leave the scene. The prosecution submitted that your moral culpability could not be regarded as low given your inattention was more than momentary, but they accepted that your offending was towards the lower end of objective gravity given it did not involve aggravating factors such as alcohol or drug use, speeding or fatigue.
24Determining the objective seriousness of the offences should not however be approached by identifying the absence of potentially aggravating features.[5] It is not a matter of simply subtracting possibly aggravating features when determining objective gravity. Whilst I accept there are many features that may have aggravated your offending (indeed may have made you liable for a more serious offence) that are absent in your case, I must have regard to the facts and circumstances that are present.
[5] Gray v The Queen [2021] VSCA 322, [25].
25The objective gravity of an offence of dangerous driving causing death or serious injury depends on both the degree of dangerousness of the driving and the seriousness of the injury caused.[6] The degree of dangerousness depends upon the extent of the risk which the driving creates and the extent of potential harm which would be caused should that risk materialise.[7]
[6] Lee v The Queen [2021] VSCA 156, [2].
[7] R v Towle [2009] VSCA 280, [66]; Stephens v The Queen (2016) 50 VR 740, 745 [20]; [2016] VSCA 121; Woldesilassie v The Queen [2018] VSCA 285, [22].
26In my view, your driving was highly dangerous, and your offending is not at the lower end of seriousness but falls well within the mid-range level of seriousness. Your offending caused the death of Mr Peacock and very seriously injured Mrs Peacock. Your moral culpability is towards the high level. Your offending occurred because you failed to pay proper attention to the road, the vehicles ahead of you and the traffic lights. Your first obligation as a driver is to pay attention to the road ahead, and to be aware of the movements of others who are on or near the road. This is essential to community safety.[8]
[8] Lee v The Queen [2021] VSCA 156, [20].
27The inherent dangerousness of failing to pay attention when driving is obvious. Yours was not a momentary lapse of attention. The collision occurred at 12.01:16pm when all traffic at the intersection had come to a complete stop including the Hyundai driven by Mrs Peacock which had come to a complete stop 3 seconds before. The traffic lights at the intersection had been red for 23 seconds and the brake lights of the Hyundai were activated at least 15 seconds before the collision. Between 12:00:44 and 12:01:14pm the speed of your truck increased from 50km/h to 57 km/h. A dual tyre skid mark from your vehicle determined braking to have commenced 1.14 metres before your truck collided with the Hyundai. The weather conditions were favourable. As the court said in DPP v Janson[9]:
The respondent’s lapse of attention of some 10 seconds duration amounted to a most remarkable failure to keep a proper lookout and the nature and gravity of…the offending, are to be assessed accordingly.
[9] (2011) 31 VR 222.
28I do not suggest your inattention was for as long as 10 seconds, but it was certainly more than momentary. I have viewed the CCTV footage in the matter, which makes it abundantly clear that you were not paying any attention whatsoever to what was happening ahead of you at the time of the collision. The lights had been red for some 23 seconds before you approached them, and this was a remarkable failure to keep a proper look out. You were a mature and experienced driver who was driving a very large and heavy truck. You had, and were required to have, a special licence to drive this type of vehicle and as such you would have been aware of the extra responsibility you assumed when driving the vehicle given the catastrophic consequences that could occur if you did not drive it responsibly.
29The risk you posed to other road users was very high. Again, you were driving a heavy vehicle, in traffic, in a built-up area and not maintaining control of your vehicle exposed many others who were in the area to a risk of serious harm. Again, your driving caused the death of Mr Peacock and very seriously injured his wife.
30In terms of your moral culpability, I assess this as being towards the mid to high end. There was no justification for your failure to keep a proper lookout. Your central and first explanation to police at the scene, that you were preoccupied ruminating about your next jobs, in some ways undermines any argument that your level of moral culpability is low. Your second explanation - given much later to Ms Ferrari - that you were dealing with stinging eyes cannot be easily reconciled with the fact that you increased your speed rather than slowed down and you did not attempt to pull over.
31Your counsel submitted that the principles of Bugmy[10] were relevant - in the general sense recognised in that decision - to an assessment of your level of moral culpability given your traumatic early childhood. I have difficulty accepting that any real weight attaches to Bugmy principles in your case. Your offending type is difficult to reconcile as being shaped by your early childhood experiences especially in circumstances where you have lived a responsible law-abiding life, held almost constant employment, and your offending did not involve drugs or alcohol. I nevertheless do very slightly reduce your level of moral culpability to take account of the residual effects of your disruptive childhood.
[10] Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
32General deterrence, denunciation and just punishment assume real significance in this sentencing exercise. A message must be sent to the community that you simply cannot fail to have regard to your driving and keep a proper look out driving – especially when you have control of a very large vehicle. When general deterrence is paramount, less weight is given to factors such as prospects of rehabilitation than otherwise may have been.
33I accept that you have no prior convictions, including traffic infringements, and you are a person of prior good character. However, it is a sad reality that driving offences that cause death or serious injury are committed by people of prior good character and who have unblemished or very good driving records.[11] I also have regard to the fact that imprisonment will be harder for you as you will be separated from your children. You are close to your children, and you worry about them as they have their own personal issues they are dealing with.
[11] Buckley v The Queen[2022] VSCA 138; (2022) 71 VR 218.
34You pleaded guilty to the charges at the first available opportunity. Your plea warrants a clear reduction in sentence to reflect its utilitarian value in saving the community the time and expense of a trial and witnesses, from having to give evidence, and to reflect its demonstration of acceptance of responsibility, and willingness to facilitate the course of justice.
35Your plea itself also demonstrates a degree of remorse. In terms of remorse in addition to your plea itself, you expressed remorse to your family and through your counsel. You also expressed your remorse to Ms Ferrari who said that you made no attempts to justify your offending, you acknowledged it resulted from poor decision making whilst driving and you are devastated that you caused the loss of a life and such devastation to a family. I have no doubt that you are very traumatised by your offending and its consequences, and I accept that you have expressed genuine remorse considerably over and above that demonstrated by your plea alone.
36In terms of specific deterrence, given you have no prior matters at all, and you are clearly very remorseful for your offending and have suffered mentally because of it, I do not consider any real weight needs to be given this principle. I am confident that you will never drive in this manner again.
37As to your prospects of rehabilitation, I consider these to be excellent and you are highly unlikely to commit a further act of causing serious injury or death by driving. You have very strong family support which was evident from the references provided to the court and by the number of people including close family members and ex partners that were in court to support you. You fully comprehend the devastation your actions caused. You are committed to living a productive life. I accept the conclusion of Ms Ferrari that you are a low risk of re-offending given the range of protective factors you have, and the CCO assessment which assessed you as a low risk of further offending.
38I have considered the contents of the psychological report prepared by Ms Ferrari (Exhibit 1). Ms Ferrari concluded that you were not experiencing any mental health issues at the time of the offending, and your counsel did not seek to rely on limbs 1 to 4 of Verdins to reduce your moral culpability for the offending or the weight to be given to general or specific deterrence. These limbs clearly do not apply in your case.
39Ms Ferrari did however opine that the offending itself has had a significantly deleterious effect on your mental health and has diagnosed you with a major depressive disorder (MDD) and post-traumatic stress disorder (PTSD) arising from your extreme guilt and remorse at causing the death of a person and severe injury to another. Ms Ferrari noted that you have severe anxiety symptoms because of your two mental health conditions, and you continue to relive the incident via flashbacks and nightmares which increase when you are dealing with the legal consequences of your actions. She also referred to the breakdown of your longest relationship post the offending as having a destabilising effect on your mental health.
40Ms Ferrari noted that whilst you engaged in psychological counselling following the offending and have been taking an anti-depressant since January of this year, your MDD and PTSD symptoms remain moderate to severe, and they continue to impact your functioning by causing significant disturbances in your mood and neurovegetative functioning and leading to suicidal ideation.
41As part of your suitability assessment for a Community Correction Order (CCO), a report was also provided by the Mental Health Advice and Response Service (MHARS) dated 6 May 2025. The view of the author was that you have fragile mental health and moderate to severe mental health difficulties as evidenced by your clear post traumatic and depression symptoms. In an addendum to that report, reference was made to your CAPS assessment by Ms Wood which concluded that during your presentation for assessment, your acute distress, mental health decline and suicide risk were so prominent that it was considered necessary to engage in safety planning with both you and your family.
42The author of the MHARS report concluded that you are at risk of suicide and whilst this risk is currently mitigated by your ongoing treatment, family support and liberty, your suicide risk may increase further in a custodial environment. Ms Ferrari made the same conclusion as to your risk of suicide increasing in custody and recommended that if you were sentenced to a custodial term, you will require immediate admission to the prison mental health to monitor your suicide risk and mental health.
43Based on the reports I have been provided I accept, and the prosecution do not dispute, that limbs 5 and 6 of Verdins are engaged and your mental health is likely to deteriorate in a prison environment and that you will find imprisonment more onerous than a prisoner without your mental health conditions.
Submissions on sentence
44As noted earlier, the offence of dangerous driving causing death is a Category 2 offence which means a term of imprisonment must be imposed on you unless one of the exceptions in s 5(2H)(a) to (e) of the Act are established. In your case, your counsel submitted that you had ‘impaired mental functioning’ that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment pursuant to s 5(2H)(c)(ii) and/or that ‘substantial and compelling circumstances that are exceptional and rare’ were established pursuant to s 5(2H)(e).
45 Your counsel submitted that because either, or both exceptions are established, I am not required to impose an immediate term of imprisonment on you, and I should sentence you to a CCO. Your counsel added that if I considered that a CCO alone was an inappropriate sentencing disposition, and some period of imprisonment was required, I should impose a combination sentence. I note that I received a report, and you were assessed as suitable for a CCO and the only special condition recommended was unpaid community work.
46The prosecution submitted that neither of the exceptions are made out and accordingly I must sentence you to a term of imprisonment and one that includes the imposition of a non-parole period. Even if I did find one of the exceptions applied, the prosecution submitted I should nevertheless still impose a sentence of imprisonment on you to reflect general deterrence, just punishment and the fact that Mr Peacock was killed because of your driving. In addendum submissions provided upon the receipt of the CCO assessment, the prosecution maintained its position on sentence as stated above but submitted that if I was to find an exception applied, a total effective sentence comprising an appropriate period in custody and a CCO of appropriate duration and with substantial hours of unpaid community work would not fall outside the range.
47 Sections 5(2H) and 5(2I) relevantly provide:
(2H)In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—
…
(c) the offender proves on the balance of probabilities that—
(ii)the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
(e)there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
…
(2I)In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—
(a)the Parliament’s intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and
(b)whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
49Dealing firstly with the exception in s 5(2H)(e) which deals with whether there are ‘substantial and compelling circumstances that are exceptional and rare’ in your case such that a term of imprisonment should not be imposed. Your counsel relied on the combined effect of your plea of guilty, the absence of aggravating factors in your offending, your intense remorse, lack of prior convictions, the applicability of Verdins limbs 5 and 6 and your good prospects of rehabilitation. I am mindful that this provision does not impose a burden on an offender to prove on the balance of probabilities the existence of substantial and compelling circumstances that are exceptional and rare. That is an evaluative judgment for me to make based on the relevant facts that have been established.[12]
[12] Fariah v The Queen[2021] VSCA 213.
50The prosecution submitted that in accordance with DPP v Lombardo[13] it must firstly be established that ‘substantial and compelling factors’ have been established to justify not imposing a custodial sentence and if they are, it must then be established that those ‘substantial and compelling factors’ are also ‘exceptional and rare’. The prosecution noted that for the purposes of the exception in s 5(2H)(e), s 5(2HC) of the Act provides:
[13] [2022] VSCA 204, [66] – [67].
In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court— (a) must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and (b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and (c) must not have regard to — (i) the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or (ii) an early guilty plea; or (iii) prospects of rehabilitation; or (iv) parity with other sentences.
51 The prosecution argued that the exception in s 5(2H)(e) had not been satisfied because matters raised by your counsel as ‘exceptional and rare’ are common features of persons being sentenced for dangerous driving causing death. I agree with that submission. Indeed, I am not satisfied that the combination of circumstances relied upon satisfy the first requirement under subsection (2H)(e), as amounting to substantial and compelling circumstances given the matters set out in ss 5(2I) and 5(2HC), the nature of the matters relied on, the primacy to be given to general deterrence and denunciation and the reduced emphasis to be given to personal circumstances. It is also quite clear from the authorities that the offence is often committed by people with no prior convictions who experience great remorse for what they have done, suffer trauma in the aftermath such as anxiety and PTSD which a term of imprisonment may tend to exacerbate, and have excellent prospects for rehabilitation.
52In terms of the exception under s 5(2H)(c)(ii), the standard to be met is higher than that required to invoke the principles in Verdins.[14] Your counsel submitted that your dual diagnoses of MDD and PTSD along with the opinions of Ms Ferrari would make imprisonment more onerous for you because:
[14] Peers v The Queen [2021] VSCA 264.
a) You would be a vulnerable prisoner in custody as you have no experience of imprisonment or dealing with anti-social individuals and this would place you at a higher risk of being threatened, intimidated and exploited.
b) The volatile nature of the custodial environment would pose a significant risk to your MDD, PTSD and your anxiety symptoms increasing. Your emotional regulation and poor coping resources would be impaired in a custodial environment which would cause you undue distress and increase your risk of further emotional deterioration.
c) Your PTSD would mean you had a higher risk of having issues with staff or other prisoners and of responding inappropriately or disproportionately to any negative interactions had with these groups, because you are hypervigilant and display impulsive behaviour and poor emotional regulation.
d) Your mental health conditions require specialised and ongoing treatment, including therapy, and it is unlikely you could access appropriate treatment in custody.
53Your counsel also pointed to the CCO assessment which concluded that your offending has had a significant and ongoing traumatic impact on your mental health, and you scored highly in relation to your risk of self-harm on the assessment tools. The defence also referred to the MHARS assessment which noted your high suicide risk and the fact that further discussions with you about the offending would be detrimental to your mental health.
54The prosecution submitted that your mental health conditions are not out of the ordinary. Prisoners often present with PTSD, depression and anxiety. You have maintained employment until the collision, you were undertaking treatment and are prescribed anti-depressant medication. Your risk factors can be managed by referral to prison mental health services. The prosecution submitted that Ms Ferrari’s conclusion that you would be subjected to a substantially and materially greater burden of imprisonment was not expressed ‘…with an adequate measure of certainty’.
55 In my view, your current mental health diagnoses do mean that imprisonment would result in you being subject to a substantially and materially greater burden of imprisonment than the ordinary burden. True it is that many prisoners suffer MDD and PTSD but in your case your level of remorse and guilt has led to a situation where you are a genuine suicide risk, your PTSD is acute and will not abate until you have completed treatment and obtained methods to deal with your guilt. I consider it will be exacerbated in a prison setting given your poor coping skills and probable inappropriate interactions with staff and other prisoners. It is doubtful that the mental health treatment available to you would ameliorate the risk of your mental health declining in custody to any significant extent.
56Having found on the balance of probabilities that s 5(2H)(c)(ii) is met, it is open to me to impose a non-custodial sentence. I do not consider that a CCO alone can achieve all the relevant sentencing purposes in your case, especially the heightened need for general deterrence and denunciation. Your offending was very serious indeed. You caused the loss of Mr Peacock’s life. You seriously injured his wife and she, and her family have been irreparably damaged by your actions. Your inattention was not fleeting, and you failed to observe the traffic when you were driving a heavy vehicle. There was nothing of significance to justify or explain your offending such that you level of moral culpability is towards the mid to high end. Again, offenders like you often come before the courts with unblemished records, genuine remorse, and with little or no prospect of re-offending, but they receive immediate terms of imprisonment.
57However, I consider that the demands of general deterrence, denunciation and just punishment, can be met with the imposition of a shorter term of imprisonment coupled with a CCO to be completed on your release. This will also allow me to give due recognition to your personal mitigating factors including your mental health issues and the additional burden of imprisonment on you. It is also clear that a CCO does have a punitive element especially when unpaid community work is a condition. It must also not be forgotten that you will be serving the order under threat of imprisonment if you breach it, together with the prospect of being resentenced for the relevant offence.
Current sentencing practices
58I was provided with written and oral submissions as to current sentencing practices and have had regard to the cases I was referred to, bearing in mind that there are a variety of different circumstances involved in those cases and each case must be decided on its own facts.
Totality and cumulation
59I consider that there must be a modest degree of cumulation between the sentences to reflect the existence of two individual victims of your offending. Further, whilst both offences occurred as part of what was an ongoing episode, each offence warrants separate punishment. I am mindful of the principles of totality and proportionality in directing the degree of cumulation to be imposed and that I must not impose a sentence on you that is ‘crushing’.
Sentence
60Mr Wells please stand. On Charge 1 you are convicted and sentenced to 10 months imprisonment. On Charge 2 you are sentenced to 6 months imprisonment. I direct that 2 months’ of the sentence on charge 2 be served cumulatively upon the sentence on charge 1, resulting in a total effective sentence of 12 months.
61On both charges, following 12 months imprisonment you will be required to serve a Community Correction Order for a period of 2½ years during which you will have to perform 250 hours of unpaid community work.
62You have previously consented to the making of a Community Correction Order. In a moment, I will ask you to sign this Community Correction Order giving your formal consent to this Order.
63Upon your release from custody, after you have served 12 months imprisonment, you must attend at a specified Community Corrections office within 2 working days.
64Finally, I must tell that you that should you breach the Community Correction Order by failing to comply with the terms and conditions of this order or by re-offending, you may be brought back to Court and re-sentenced for the offences and a further sentence may be imposed for the breach.
65Dangerous driving causing death is a serious motor vehicle offence pursuant to s 87P(b) of the Act. Pursuant to s 89(1)(a) and s 89(2)(b) of the Act I must order that all Victorian licences and/or permits held by you be cancelled and disqualify you from obtaining any such licence or permit for a period of at least 18 months.
66In your case, the Prosecution did not seek a longer period of disqualification and cancellation. On each charge, I cancel all licences to drive held by you and I disqualify you from obtaining any another permit or from driving in this State for a period of 18 months commencing from today.
67Pursuant to s 6AAA of the Act, were it not for your pleas of guilty, I would have imposed a sentence of 3 years’ imprisonment with a non-parole period of 2 years.
68In view of the opinions of Ms Ferrari and others, there is concern about a significant decline in Mr Wells mental health. I will include in the Orders that there are custody management issues, such as a heightened suicidal ideation as well as this being Mr Wells first time in custody. As I understand Mr Wells is currently taking prescribed antidepressant medication, please ensure appropriate documentation is provided to those who will be taking him into custody.
HER HONOUR: Thank you, could you please remove Mr Wells. Thank you both for your assistance.
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