DPP v Georgiou

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01069

DIRECTOR OF PUBLIC PROSECUTIONS

EFFIE CATHERINE MARIE GEORGIOU

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2021 and 26 November 2021
DATE OF SENTENCE:	8 December 2021
CASE MAY BE CITED AS:	DPP v Georgiou
MEDIUM NEUTRAL CITATION:	[2021] VCC 2036

REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords:
Legislation Cited:                  Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: DPP v Hibberd [2020] VCC 1597; DPP v Ballan [2020] VCC 883; Lee v The Queen [2021] VSCA 156; DPP v Nasser [2020] VCC 1660; Peers v The Queen [2021] VSCA 264; R v Hackett [2021] VSC 773
Sentence:  Community Corrections Order – 4 years; Cancellation of licences and/or permits and disqualification from obtaining any such license or permit – 36 months

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr M. Gibson QC	Office of Public Prosecutions
For the Accused	Mr D. Gurvich QC with Ms J. McGarvie	Lamplugh McIntosh Lawyers

HIS HONOUR:

Effie Catherine Marie Georgiou you were found guilty by me after a Judge-alone trial on 6 May 2021 of one charge of dangerous driving causing death (Crimes Act 1958 s 319(1)) on Indictment L10176899. The maximum penalty for this offence is 10 years imprisonment (Level 5).
The offence of dangerous driving causing death is a Category 2 offence under Part 2 Sentencing Act 1991 (Vic) (‘Sentencing Act’).[1]
[1] As defined in Part 1 Sentencing Act 1991 (Vic).
Section 89 of the Sentencing Act applies in this case. As such, your driver’s licence must be cancelled and you must be disqualified from driving for a period of no less than 18 months.
You have no prior criminal history.
The facts and basis upon which you were found guilty are set out in my judgment and verdict of 6 May 2021. I refer to and adopt my judgment as setting out the facts in this matter.
The plea hearing was conducted substantially on 27 May 2021. At that time, you were about seven months pregnant with your first child. I was urged to defer sentencing until after the birth of the baby. Your son Morrie was born on 21 July 2021.
Since the day of the initial plea hearing, the state of Victoria has experienced two further lockdowns in an effort to stem the spread of the coronavirus pandemic. The defence made an application to make further submissions on the plea before me, which was set down and heard on 26 November 2021. As a consequence of the concatenation of factors relating to the lockdown, the provision of further medical and psychological material, your physical and mental health and that of your family, including your recovery from the birth of your child, this represents the first practical opportunity to proceed to sentence.
It is necessary to set out the statutory framework which applies to sentencing considerations in this matter.
As I have already said, the offence of dangerous driving causing death is a Category 2 offence. The Sentencing Act therefore requires that I must make an order for imprisonment (excluding an order for a combination sentence of imprisonment with a Community Corrections Order) unless either:
(a) You establish on the balance of probabilities that you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
(b) In my evaluation, there are ‘substantial and compelling circumstances that are exceptional and rare’.[2]

Impaired Mental Functioning

[2] Fariah [2021] VSCA 213, [24], [25]; Peers [2021] VSCA 264, [68].

The impairment to your mental functioning must subject you to substantially and materially greater than the ordinary burden or risks of imprisonment. ‘Substantial’ may be variously defined as ‘of considerable importance’ or ‘real and tangible rather than imaginary’. ‘Materially’ may be defined as ‘to an important degree’ or ‘considerably’.[3]
[3] Macquarie Dictionary.
The parties agreed that the comparison to the burden or risks of imprisonment is to those in the general prison population and not to a class of pregnant prisoners, prisoners with children, or prisoners with impaired mental functioning.

Substantial and Compelling Circumstances that are Exceptional and Rare

I turn then to substantial and compelling circumstances that are exceptional and rare. The assessment of whether there are substantial and compelling circumstances that are exceptional and rare to justify the imposition of a non-custodial sentence or a combination sentence is a matter to be determined by me, and not to be proved by you.
The words ‘exceptional and rare’ were added to the phrase ‘substantial and compelling circumstances’ in order to raise the threshold from that phrase alone; that is to make the avoidance of imprisonment for this offence (as it states) an exceptional and rare event indeed.[4]
[4] Maxwell P & Weinberg JA in Roach v The Queen [2020] VSCA 205.
The meaning of this phrase was considered by the Court of Appeal in the matter of Andrew Farmer v R.[5] In that case, the Court adopted the observation that ‘compelling’ connotes powerful circumstances of a kind wholly outside the ‘run-of-the-mill’.
[5] [2020] VSCA 140 (‘Farmer’).
The Court further stated that this is a high hurdle that will not often be surmounted, and in many cases, a term of imprisonment will be inevitable. The Court acknowledged that there may be departures from a sentence of imprisonment but a test of stringency must be applied.
In determining whether substantial and compelling circumstances that are exceptional and rare exist:
(a)   I must regard general deterrence and the denunciation of your conduct as having greater importance than other sentencing purposes. Further, less weight must be given to your personal circumstances.
(b)   I must have regard to the fact that Parliament’s intention is that a period of imprisonment should ordinarily be imposed; and whether the cumulative impact of the circumstances of this case would justify a departure from such a sentence.
(c)   I must not have regard to your previous good character (other than the fact that you have no prior convictions); your prospects of rehabilitation; or parity with other sentences.
(d)   When looking at comparable sentencing decisions, I must not have regard to cases that are not Category 2 cases.
I must make an assessment of the objective gravity of your offending and your moral culpability for it. I have already referred to my judgment and verdict on the question of liability, and as I say, I adopt it here for the detailed findings I made as to the circumstances of the collision. In particular, I now refer to the fact that the collision occurred at about midday on a cool, clear, sunny Saturday; on a long stretch of flat straight road where Michael Varvodic had stood in the centre of the roadway for a considerable period of time.
In this assessment, I concluded that you did not suffer from any physical or mental health infirmities; your car was mechanically sound and roadworthy; you were not seen to be driving erratically before the collision; you have no history of prior criminal convictions for bad driving; there were no electronic or other devices operating to distract you; you were not reaching into a bag or otherwise searching for a phone, and you were not affected by drugs or alcohol.
In short, the collision was caused by prolonged inattention. The risk of the harm which actually eventuated was high.
The pedestrian you struck was Michael Varvodic. Mr Varvodic was 82 years of age at the time of the collision. He died of his injuries the following day.
My assessment of the objective gravity of your offending must take into account the impact your conduct has had on the family of Mr Varvodic. In short, the loss of Mr Varvodic has been life-changing for his wife and family.
The victim impact statement of Mrs Alexis Varvodic speaks of her husband’s vitality and the ‘unimaginable devastation and heartbreak’ she feels at his loss.
Mr Nick Varvodic speaks of his the lifelong bond he had with his father, and the adverse effects his father’s death has had on his physical and mental health.
Mrs Demi Varvodic, Nick’s wife, has had to pick up the pieces of her shattered family. She speaks of having to step up to become the family head and decision-maker. Mrs Varvodic has watched the effect on her mother-in-law and husband whilst trying to deal with her own grief.
Finally, Ms Isabella Varvodic speaks of her difficulty in coming to terms with the death of her beloved grandfather.
The Varvodic family have participated through the entire trial and plea process with courage and dignity. I acknowledge the tremendous sense of loss they continue to feel.
I was urged by the parties to avoid, or to only cautiously apply, labels, in my assessment of the objective gravity of your offending and your moral culpability. I will pause and explain to the family or to those who may later read these sentencing remarks that in order to arrive at my assessment of the correct sentencing outcome, Senior Counsel for the Crown and Defence assisted me by using descriptions, such as placement of the offence on a scale or level of seriousness. I want to make it clear that my assessment of the seriousness of the offending takes into account all of the circumstances. The fact that I may refer to the terms used by counsel implies no disrespect or callousness, nor do they objectify the fact that a life very dear to his family and his community has been lost.
Mr Gibson QC submitted that, notwithstanding the absence of aggravating features, your moral culpability for this offending lies at the high-end of the low range. Mr Gurvich QC with Ms McGarvie submitted that I should conclude that your moral culpability should be placed below this point.
I will return to the question of objective seriousness and moral culpability after I consider the submissions of each counsel.

Mazzone and Westin affidavits

I turn now to the Mazzone and Westin affidavits. As part of the Crown case on the plea, I received affidavits from the Crown instructing solicitor, Gabriella Mazzone, and Melissa Westin, the Deputy Commissioner, Custodial Operations Division within Corrections Victoria. These affidavits address the prospect of you being sentenced to a term of imprisonment.
In her affidavit, Ms Mazzone sets out the Department of Corrections principles and parameters for babies residing in prison with their mothers.
In her affidavit, Ms Westin sets out further Department of Corrections principles for the reception of babies into prison with their mothers which includes the following:
[11] the program is available at the Dame Phyllis Frost (DPFC) and Tarrengower correctional facilities;
[15] there must be an assessment for eligibility for the program involving an assessment of the child, the mother, and prison security before the child may be accommodated. The child may not accompany the mother to prison on sentencing. The Department may determine that a mother may continue to care for a child in the prison until a formal assessment is made if there is no alternative available carer.
[47] where healthcare cannot be provided within the prison, St Vincent’s public hospital is the state-designated tertiary care facility to provide hospital care for prisoners within Victoria. Where services cannot be provided at St. Vincent’s public hospital, permission can be sought for treatment to occur at another public health facility.
[48] At the prisoner’s own expense and subject to appropriate approvals, [access to] a private registered medical practitioner, dentist, physiotherapist, or chiropractor.
[51] Health service delivery within the Victorian corrections system is based on the principle of community equivalence, whereby prisoners are provided with health care of a quality and standard equivalent to that provided in the community through the public health system. Where appropriate, referrals will be made to the public hospital waiting list in line with the community waiting list management in the public hospital system.’
[53] Primary mental health services include assessment and ongoing treatment and care. These services are provided by registered mental health nurses and general practitioners. An appropriate mental health care plan is developed to monitor the patients’ mental health status and program with a recovery focus. This includes an ‘At-risk’ of self-harm or suicide assessment.
[54] Secondary mental health services are provided through [Forensicare].
[55] Tertiary mental health care is provided on an inpatient basis at Thomas Embling Hospital by Forensicare. Thomas Embling is a secure hospital for men and women from the criminal justice system requiring involuntary treatment.
Ms Westin provided a further affidavit dated 24 November 2021. Ms Westin states at [4], [5] that where babies accompany their mothers into prison, ‘all routine primary care for children residing in prisons is provided by medical professionals in the community, including specialist physicians’. If there is a medical emergency, the child may be admitted to tertiary healthcare services within the community and the mother is permitted to accompany a child to a hospital for the period of the treatment.
The affidavit further confirms that primary mental health care within the prison is provided by mental health nurses and general practitioners. At DPFC, a prisoner may be admitted to the Marrmak Unit for mental health treatment. At Tarrengower, mental health services are provided by visiting psychiatrists.
The services of a specialist perinatal psychiatrist are not directly available. Although all members of the FRANZCP must complete a component of perinatal psychiatry, those working at these centres are more generalised psychiatrists. The opinion of a perinatal psychiatrist may be sought if it is considered necessary.
I will consider the defence response to the matters raised in these affidavits later in these sentencing remarks.
It is appropriate now however to consider your personal circumstances.

Personal Background / Biography

You were born on 29 November 1989 and are now 32 years old.
You have one older brother. You grew up with your brother and parents, as well as your grandparents during your teenage years.
Your parents are still together. Your father was a mechanical engineer and your mother was a teacher. You are very close to your parents. Out of both economic necessity and your responsibility of caring for your mother, you moved back in with them before the birth of your son.
You stated to Mr Simmons, psychologist, during his assessment of you on 18 May 2021, that you had a ‘good childhood [with] lots of love’. Despite the financial pressure of your grandparents moving in with your family during your teenage years, you have said that you ‘always had what [you] needed growing up’.
You often did activities with your family during your childhood and you had regular contact with your relatives, although this has decreased as you have all grown up and have your own families.
You attended Oakleigh Greek Orthodox College. You did very well academically and did not have any problems with peers or teachers. You were Dux of the school in Year 12.
On the weekends, you would do school work, play tennis and basketball, and spend time with your school friends. You would attend the Greek Orthodox Church on special occasions.
After completing Year 12, you enrolled in a dentistry degree at Melbourne University, due to your love of science and art. In 2012, you were placed on the Dean’s Honours List in recognition of your examination results.
After completing your degree, you were unable to find a position in the public sector as you had hoped, so you worked for 2 years in the private sector as a dentist. You also worked part-time with an indigenous agency throughout this period. You then found part-time work in the public sector but also supported your mother who was unwell at that time.
You were commissioned as an Officer in the Australian Army in January 2015 and were sent to Brisbane for 18 months as part of the recruitment process. You travelled to Melbourne on weekends to care for your mother.
You requested a posting in Melbourne after your mother’s Multiple Sclerosis diagnosis and were transferred to HMAS Cerberus in Melbourne in June 2016. You eventually became second in charge of the dental unit.
In 2019, you were awarded the Royal Australian Army Dental Corps Colonel Kenny Award. This is awarded every 2 years and publicly recognises exemplary service. The award cites your dedication, hard work, achievements, and commitment to duty to be in keeping with the finest traditions of the Australian Army.
As a result of you facing criminal prosecution, the Army transferred you out of the Dental Corps and into an essentially administrative role as a Bereavement Support Officer. Under cross-examination by Mr Gibson QC for the Crown, Mr Simmons, psychologist, expressed (in blunt terms) the inappropriateness of this position. Mr Simmons considered that, it has taken a considerable emotional and psychological toll on you, and may have exacerbated your already precarious psychological condition. I will say more about that later.
Mr Gurvich QC stated in his submissions that as a result of your conviction for this offence, you will be discharged from the Army. As this has represented nearly your whole working life, and you intended it to be your life career path, this is a matter of tremendous significance to you.
You have had one long-term relationship and you are now married. In early 2014, you met your now husband, Michael Moretti, through friends. You began a relationship with Mr Moretti in 2016 and were married in November 2018. You reported to Mr Simmonds that your relationship is very good and you do not argue.
Your fertility difficulties resulted in you having IVF. At the time of trial, a little after that you were 32 weeks pregnant.
You gave birth to your son Morrie on 21 July 2021. You had a difficult birth and required a 5-day hospital stay. After returning home, you had significant difficulties with feeding Morrie which resulted in the need for ongoing contact with his paediatrician.
You do not regularly consume alcohol. You have not, and do not, use drugs.
You have been healthy throughout your life, apart from your fertility issues.
You have had difficulty sleeping and struggle to remain asleep due to vivid dreams of your mother, death, separation from your son, and the events of your past. You continue to experience disturbed sleep due in part to feeding Morrie but also due to your unpleasant dreams.
Due to difficulty sleeping, you have been placed on Temazepam by your obstetrician. You have recently been placed on Sertraline (anti-depressant) which you say has helped you maintain a calm mood, although it has not been fully effective, as well as Oxazepam (anti-anxiety).
As I have said you have a strong bond with your parents, but especially your mother, and state that she is the ‘best mother in the world’. You are currently supporting your mother, who has limited mobility due to her Multiple Sclerosis. Your father has been looking after your paternal grandmother, who has dementia. Your grandfather died last year.

Mr Warren Simmons – reports and evidence

Mr Simmons’ reports, resume, and evidence referred to the fact that he has worked in the field of mental health for 38 years, and for 27 years has worked with a wide range of offenders through the community program at VIFM and in private practice.
In his report dated 19 May 2021, Mr Simmons states that you reported sleep issues, hopelessness, and your mood was lifeless and flat. He opined that there is ‘clear evidence that [you are] experiencing symptoms of Post-Traumatic Stress Disorder at the present time and may very well meet the criteria for the disorder... [although] it is difficult to disentangle which symptoms arise from a clear Severe Depressive Disorder at the current time and which from PTSD’.

Mr Simmons noted the difficulty you had in becoming pregnant, the fact that you resorted to an IVF program, and concluded that your time in becoming pregnant was a mentally challenging and draining process for you.
Mr Simmons stated that there is little to suggest you are even at minimal risk of reoffending and that your prospects for rehabilitation appear to be extremely good.
In his addendum report dated 24 May 2021, Mr Simmons reiterated that you present with a severe depressive disorder, which may be contributable to your current legal situation or your pregnancy. He opined that your mental health condition would result in any period of imprisonment weighing more heavily upon you, and that imprisonment ‘will almost certainly lead to an exacerbation of [your] depressive disorder with the potential risks inherent in the disorder such as self-harm or harm towards the child.’ Mr Simmons expressed concern as to the lack of a specialised mother-baby unit for treating postnatal depression in custody, and that the standard of treatment in custody ‘may very well be below the standard necessary to provide appropriate and optimal care’.
Mr Simmons was called to give evidence before me on 27 May 2021. He reiterated his opinion that you suffer from severe depressive disorder and stated that he considered that prison would increase the severity of your disorder. Mr Simmons was alive to the operation of the Verdins principles; especially the applicability of principles 5 and 6 in your case.
Under cross-examination, Mr Simmons disagreed that your needs could be appropriately catered for in prison. Specifically, Mr Simmons stated that, after his long experience working in the prison system, if you were given mental health care, you may be deprived of the mother/baby services. Further, Mr Simmons considered that you would not be allowed certain medications that are allowed in the community. The mental health facilities in prison and at Thomas Embling hospital do not provide mother/baby care and services.
Mr Simmons was critical of the ADF moving you from your dentistry career to providing bereavement duties to families of deceased service personnel whilst you were depressed. He considers this probably exacerbated your condition. I note that on the last occasion, Mr Gurvich said that you felt you derived some assistance from the role. I simply note that the psychological evidence does not support this.
Mr Simmons was asked to comment on aspects of the Westin affidavit. He stated that in his experience, there are differences between the primary mental health care available in prison and in the community. Whereas GPs will provide the same level of physical care, they cannot provide the skilled and specialised care of a perinatal psychiatrist in the treatment of postnatal depression. He stated that specialised units of psychiatry were not available in prison and that you would be required to go to either Marrmak or Thomas Embling hospital, where you would not be able to care for your baby whilst being treated for mental health issues.
Mr Simmons provided a further supplementary report dated 11 November 2021. He notes that your son is allergic to cow’s milk; takes only small feeds; and that you spend seven to eight hours a day feeding him (which you have diarised and documented). He notes that your son ‘appears to have experienced some trauma issues related to his experience when he was having an allergic reaction, holding onto [you] tightly’. Your sleep is still broken by caring for your son, feelings of separation from your son, thoughts of your mother being ill, and the like. You have lost weight, feel a lack of energy and a sense of hopelessness and doom. And as I said, you have commenced on Sertraline.
He noted that you and your husband have returned to live with your parents and even with the birth, you continue to assist your mother due to her Multiple Sclerosis. Your mother recently had a fall and was hospitalised. Upon examination, she was found to have a malignant lesion on her kidney. It is impossible to operate at the moment and the lesion is being monitored. Given her other myriad of severe health problems and almost entirely limited mobility, you are still intimately involved in her care.
Mr Simmons assessed your depression is lower than previously assessed, but that you still demonstrate evidence of severe depression. Further, he concludes that any period of imprisonment will be more onerous and provides a greater risk to you given that your condition has not yet been effectively treated, and treatment may yet prove to be ineffective.

Dr Peter England – report and evidence

Dr England provided a report and gave evidence as your obstetrician. Essentially he gave evidence from his report that on review, he was increasingly concerned about your mental state from your visit on 7 April 2021. Dr England considered that you needed antidepressant treatment for antenatal depression which, based on his experience and assessment, was likely to develop into postnatal depression if not treated.
Dr England considered there would be long-term adverse consequences for both you and the child if you were separated by a period of imprisonment. Specifically, both parent and child can suffer difficulties in attaching if separated. Furthermore, Dr England considered that your postnatal depression could exacerbate if you are separated from your child after birth.
Under cross-examination, Dr England stated that he considered the court case was probably a major contributor to your ‘situation’, but even without the case, you are anxious and depressed. Without intervention, he considered your symptoms would escalate.

Dr Martien Snellen - report

Dr Snellen provided a report as your treating psychiatrist since 31 May 2021. The treatment has involved weekly psychotherapy and pharmacotherapy.
Dr Snellen initially diagnosed you as having a major depressive disorder with antenatal onset, characterised by depressive mood with despondency, frequent tearfulness, marked insomnia, anxious ruminations, loss of appetite, anergia, loss of motivation and drive, feelings of hopelessness and futility, guilt and shame for having been the cause of the loss of life and for bringing a child into your current situation, and potentially not being able to care for your mother.
As I have already mentioned, Dr Snellen is prescribing Sertraline and Oxazepam but considers you are unlikely to achieve full remission from your illness in the foreseeable future.
Your symptoms are likely to persist until your situation normalises and you no longer face a threat of separation from your child. Dr Snellen considers that imprisonment would be likely to have a significantly adverse impact on your mental health ‘with worsening of depressive symptoms being a likely outcome’.
Moreover, Dr Snellen considers that a separation from your child would have adverse consequences for your child’s social-emotional development, well-being, and mental health.
Dr Snellen further states that it is unlikely that you could remain with your child in the prison environment and have your mental health needs addressed. He states:
Should imprisonment together with Morrie occur it is unlikely that a psychologically and physically safe environment for the child could be manifest in an environment in which the mother’s mental health needs can also be addressed. I am unaware of any Perinatal Psychiatrists that work within the custodial system. Thus, any ongoing treatment is likely to be generic rather than specific for Ms Georgiou’s needs. Thus, likely achieving a lesser standard of care.
This paragraph from Dr Snellen’s report played a critical role in the submissions made before me on 26 November 2021. I shall return to the submissions in my analysis.
I received the nine character references from your family and friends. They speak of your dedication to your family, in particular, to the care and assistance you provide to your mother due to her health issues and the support you provided to your grandparents whilst they lived with you. They speak of your honest, kind, and supportive nature, your motivation to work and study hard since childhood, and your passion for your service in the Defence force. They state that you have always been motivated to help and serve others; that you are a person of the highest integrity, and you are devoted to your family. They speak of their love for you and the devastation and torment you have experienced in dealing with the death of Mr Varvodic. They state that you have wished that you had been the one to die and that this deep sorrow will be with you for the rest of your life.

Defence Submissions in Mitigation

Mr Gurvich QC and Ms McGarvie submitted[6] that a Community Corrections Order, including conditions for Community work and a Road Safety Course, would achieve all sentencing purposes, including general deterrence, denunciation, and just punishment. They stated that a finding of guilt, criminal record, and the burden of the guilt of taking a life are also punitive.
[6] Written submissions dated 24 May 2021 and 16 November 2021; oral submissions provided on 27 May 2021 and 26 November 2021.
Your counsel submitted that you had satisfied the burden under s5(2H)(c)(ii) Sentencing Act 1991, (that is, the impaired mental functioning provision) and referred to:
(a)   Three reports and evidence of Mr Warren Simmons, Psychologist.
(b)   Letter and evidence from Dr Peter England, Obstetrician;
(c)   Report of Dr Martien Snellen.
In this respect, your counsel referred me to the Court of Appeal decision of Peers, especially at [50] – [59]. I have read the judgment and those paragraphs in particular and will consider their application in my analysis of the submissions later in these remarks.
Additionally and alternatively, your counsel submitted that I should be satisfied that substantial and compelling circumstances, etc. exist.
(a)   First they submitted that in determining whether s.5(2H)(e) applies, the limitations in s. 5(2HC) and the expression of parliamentary intention in s. 5(2I)(a) must be acknowledged.
(b)   Principally, the factors that are relied upon to achieve the necessary cumulative impact are referred to in the legislation and in s.5(2I)(b) / Farmer at [55], [67]) are:
·First, your pregnancy, and the birth of your child on 21 July 2021;
·Second, the struggle of fertility issues and IVF;
·Third, you chose the option of a judge-alone trial within months rather than wait for a jury trial some years away;
·Fourth, you faced direct indictment after discharge in the Magistrates’ Court;
·Fifth, you have prior criminal convictions and an unblemished driving record;
·Sixth, with regard to the nature and gravity of the offending,[7] I should assess the objective gravity as being at the lower end of seriousness; that I should find that there is an absence of any aggravating features[8] and your moral culpability should be assessed as low;
[7] s 5(2HC)(b) Sentencing Act 1991 (Vic)
[8] DPP v Hibberd [2020] VCC 1597 at [14] citing DPP v Neethling (2009) VR 466.
·Seventh, your personal circumstances may be taken into account but, as I have already acknowledged, must be given lesser weight than the principles of general deterrence and denunciation[9];
[9] s.5(2HC)(b) Sentencing Act 1991 (Vic)
·Eighth, your counsel referred to your career as Captain in the Army, and as a dentist in the armed forces; and the fact that you were moved from dentistry and face discharge from the ADF as a consequence of the finding of guilt;
·Ninth, they referred to your family circumstances. After the birth of your child, you have engaged in the constant care of your mother, whose health has failed substantially over the years. Her health issues have led to her becoming substantially immobilised and largely dependent upon you for her care. Your father in turn provides substantial care to his mother. Your mother now faces a dangerous period of waiting to see whether a malignant lesion on her kidney can be surgically removed. To this effect, I was referred to the:
o    Letter from Dr Tony Hammond, dated 18 October 2021;
o    Letter from Michael Moretti, dated 27 October 2021; and
o    Undated letter from Katherine Georgiou.
·Tenth, they referred to the fact that you have the constant care of your baby son, which is outlined in the various reports. You still spend seven to eight hours a day feeding him as a consequence of his feeding difficulties;
·Next, they referred to custody would be more burdensome for you due to your anguish of being unable to care for your mother or your son whilst in custody
·Then, the psychological evidence attracts the operation of Verdins limbs 5 and 6;
·Next, they referred to remorse. You exhibited obvious devastation at your actions at the scene of the collision and in interview; you have insight into the gravity of your conduct, and I refer to the character references in this respect;
·Next, they submit you ran the trial cooperatively and efficiently[10];
·Next, you cooperated with authorities. You assisted at the scene of the collision, and participated in a lengthy record of interview;
·Next, the COVID-19 rules in prison require quarantine on entry. There are restrictive conditions that make custody more onerous;
·Next, they refer to the impact of the loss of licence. There is an 18-month mandatory minimum loss of licence,[11] which will impact your employment opportunities and your life with an infant child.
·Finally, general deterrence and denunciation must assume greater importance than the other sentencing purposes[12] but that does not mean that the only way that they can be given effect is to impose a term of imprisonment.[13] Your counsel submitted other sentencing purposes must be taken into account.
[10] Ss. 5(2C) and s. 5(2D) Sentencing Act 1991 (Vic)
[11] s.89(1) & s. 89(2)(a) Sentencing Act 1991 (Vic)
[12] s. 5(2HC)(a) Sentencing Act 1991 (Vic)
[13] DPP v Hibberd [2020] VCC 1597 at [26]; DPP v Ballan [2020] VCC 883.
Your counsel acknowledged that the operation of s.5 (2HC)(c) prevents me from having regard to the following matters in my consideration of whether there are substantial and compelling circumstances, but if I find that there are, then I may have regard to other factors, namely your prior good character (that is no criminal history, character references), and your excellent prospects of rehabilitation.

Crown Submissions

Mr Gibson QC on behalf of the prosecution submitted that the objective gravity and your moral culpability for your offending are at the higher end of the low range, notwithstanding the absence of aggravating factors. Nevertheless, on the whole of the case, Mr Gibson submits that the factors submitted on your behalf (regarding the impairment to your mental functioning and the existence of substantial and compelling circumstances, etc.) do not meet the stringent tests justifying a departure from Parliament’s intention that such offending be met by a term of imprisonment.
Mr Gibson submitted that the seriousness of your offending may be measured by a few factors:
·First, Hawthorn Road is a long, straight, relatively flat length of roadway;
·Second, the weather was fine dry and sunny,
·Third, there is no evidence that your view of the pedestrian was blocked;
·Fourth, rather, you were inattentive for a period of approximately nine seconds; which amounts to prolonged inattention.
In this way, Mr Gibson submitted that when the focus is returned to the objective seriousness of, and your moral culpability for, your offending, a term of imprisonment as provided under s.5(2H) ought to be imposed.
Having regard to the principles set out in Farmer, Mr Gibson submitted that the focus of the sentencing task must be on the risk created by driving, as well as the potential harm caused by driving if the risk is realised. The cases stress the fact that there is a premium on human life, and for the fact that a life has been taken, general deterrence and adequate punishment become the focus of the sentencing objective. The opportunity for leniency in sentencing is dramatically reduced. There is a need for reasonable proportionality to be expressed in the sentence imposed relative to the objective circumstances of the offending.
Mr Gibson submitted that you have not established impaired mental functioning and that additionally, I ought not be satisfied that there are substantial and compelling circumstances that are exceptional and rare.
Mr Gibson submitted that if the burden upon you to prove impairment to mental functioning et cetera is discharged, or if I am satisfied of the existence of substantial and compelling circumstances etc., then the appropriate sentence to be imposed is a combination sentence; that is a period of imprisonment followed by a Community Corrections Order. Mr Gibson submitted that this follows from taking into account the principles of general deterrence, denunciation, and just punishment. Mr Gibson acknowledged your prospects for rehabilitation are excellent and that specific deterrence has no applicability in this case.
In the course of the two hearings, I was referred to a number of cases: including:
(a)   Lee v The Queen[14]: the Court of Appeal dismissed an appeal against a sentence of 6 months imprisonment on a charge of dangerous driving causing serious injury. In that case, the appellant ran a red light after a period of inattention lasting about 14.78 seconds. The Court of Appeal noted that prolonged inattention is highly dangerous and exposes everyone to risk. The Court did not consider that a CCO ‘should have been imposed’.
(b)   DPP v Nasser[15]: the sentencing judge took into account a range of factors referred to by Mr Gibson which differ from the objective circumstances of your case. I do not consider the sentencing remarks and Nasser to be of any particular assistance to me in considering your circumstances;
(c)   Peers v The Queen[16]: on appeal, the Court of Appeal reduced the sentence imposed after a plea of guilty to a charge of dangerous driving causing death to 20 months, with 8 months to serve. That case involved speed and a dangerous overtaking manoeuvre;
(d)   I was referred to sentencing remarks in the cases of Hibberd[17] and Ballan[18] where CCOs were imposed - in my view, these cases reflect the diversity of circumstances in which this offending can occur.
[14] [2021] VSCA 156.
[15] [2020] VCC 1660.
[16] [2021] VSCA 264.
[17] DPP v Hibberd [2020] VCC 1597.
[18] DPP v Ballan [2020] VCC 883.
I also note the sentencing remarks after a plea of guilty in the matter of Hackett.[19] Croucher J gave weight to the factor of extra-curial punishment. In my view, the fact of your discharge from the Army, which provided a potentially secure and satisfying lifelong career with opportunities for promotion has been denied to you by reason of this offending and must be taken into account.
[19] R v Hackett [2021] VSC 773.
A significant factor which I must have regard to in those other cases is that they were all pleas of guilty.
In the end, I must not be overly influenced by the outcomes in other cases. I must take into account the circumstances of your offending, Parliament’s intention, and so far as I can, your personal circumstances and arrive at a sentence appropriate in the circumstances in this case.

Analysis

Impaired Mental Functioning

In my view, the evidence establishes that you currently suffer from, and are being treated for, Major Depressive Disorder with antenatal onset (as expressed in the opinion of Dr Snellen); and expressed in the opinion of Mr Simmons, as severe depression.
Your condition is being treated with weekly psychotherapy and medication by Dr Snellen who specialises as a perinatal psychiatrist.
The symptoms of your depressive condition were described at length by Dr Snellen and Mr Simmons. Mr Simmons has elaborated on your condition over three reports from 19 May 2021 to 11 November 2021 and evidence before me on 27 May 2021.

The condition is well documented and indeed, its existence is not challenged.
It was not suggested that your depressive disorder does not constitute an impairment to your mental functioning.
The nature of your depression is tied inextricably to your relationship with your baby. Putting aside your baby’s own health needs, Dr Snellen (see [80] above) and Mr Simmons (and I set out as Annexure A a summary of evidence that I particularly rely on, attached to my sentencing remarks) both consider that the complexity of your specific mental health needs cannot be met in prison even if you were allowed to take your baby to prison with you.
Essentially, they say that whilst you may be able to take your baby to prison, your mental health needs will not be sufficiently met. The provision of care by mental health nurses and general practitioners is insufficient. If you are treated by psychiatrists visiting Tarrengower, those psychiatrists will not be specialised perinatal consultants. Then, if you were transferred to either Marrmak or Thomas Embling, you would not be able to take your baby with you. Even then, it would not be under the direct care of a specialist perinatal psychiatrist.
Mr Gibson submitted that the mental health services available to you in prison would be ‘sufficient’. Mr Gibson submitted that you would, in all likelihood, be able to take your baby with you into prison. He submitted that the chances of separation were low. Mr Gibson perceived that the thrust of the opinions expressed by Dr Snellen and Mr Simmons was that you feared separation from your child. In effect, he submitted that once your fear is allayed and your baby is able to remain with you in prison, the main thrust of the defence argument fails and you cannot meet the burden upon you under s.5(2H)(c).
In my view, this submission does not meet, the opinions expressed by Dr Snellen that I have set out (set out at [80] above), and the opinion and evidence of Mr Simmons. The fact is, whilst your severe depression intrinsically involves your relationship with your baby, it is not the only factor contributing to it. It cannot simply be labelled as a bout of anxiety about your future. Its roots are far deeper and more complex than that.
I conclude that you have established that your impaired mental functioning does place you at substantially and materially greater than the ordinary burden or risks of imprisonment; that is when compared to the general prison population. The consequences of insufficiently treating your complex and severe depression must be considered to reach that high standard. In addition, I consider the risks of separation from your son add incrementally to this.

Substantial and Compelling Circumstances

In assessing the objective gravity of your offending, I have taken full account of the circumstances in which the accident occurred, and of the risk that your inattention caused to others and ultimately to Mr Varvodic. Simply said, the offence of dangerous driving causing death is an objectively and intrinsically serious offence. As I said earlier, I am loath to put labels such as these on this type of offending. A human life has been lost. Nevertheless, in assessing your moral culpability for your offending, I take full account of the fact that it was caused by prolonged inattention. I do however take account of the absence of any physical or mental, chemical or alcohol impairments, and the absence of any mechanical, electronic, visual, or audio, internal or external distractions. Moreover, as I have noted, your driving before the accident was not characterised as erratic, fast, or in any way out of the ordinary. These factors must affect the Court’s assessment of your moral culpability.
I must give less weight to your personal circumstances than to the nature and gravity of the offence. I must not have regard to your previous good character, but I ought to have regard to your lack of prior convictions and, in particular, lack, absence of driving convictions.
I must also have regard to Parliament’s intention and must consider whether the cumulative impact of the circumstances of the case would justify a departure from that intention.
In this case, my assessment of all of these factors that I have referred to leads me to conclude that substantial and compelling circumstances that are exceptional and rare have been made out; that is, I evaluate them as existing, thereby justifying a departure from s.5(2H) Sentencing Act. I take account of:
(a)   the objective circumstances of and your moral culpability for your offending;
(b)   the primacy of, and how general deterrence and denunciation may be met in this case; and
(c)   those permissible factors personal to you to the extent that I am able to take these into account.
Of course, that is not the end of the matter. It does not simply flow that a non-custodial sentence will now be imposed. Mr Gibson submitted that, if I made such findings as I have, that at least a combination sentence of imprisonment with a community corrections order should follow. Mr Gurvich with Ms McGarvie submitted that principles of deterrence and denunciation can be met without imprisonment.
Once the presumptions of the Category 2 provisions are put to one side, I may take into account other factors personal to you, that is:
(a)   Your undisputed previous good character;
(b)   Your remorse and guilt for your offending (which the Crown acknowledges to be genuine);
(c)   The agreed operation of limbs 5 and 6 of Verdins;
(d)   That whilst you do not seek to make out the exceptional circumstances of family hardship, you do suffer anguish and anxiety at the prospect of separation from your very ill mother for whom you provide daily care; and
(e)   Your undoubted prospects for your rehabilitation.
Your previous good character speaks for itself. Unlike many cases after trial, I do not consider that your remorse and guilt you feel for your offending lies in conflict with your plea of not guilty. The key element of the charge of dangerous driving causing death requires the objective assessment of the community standard of your driving and not an element of a guilty mind. It is not suggested that you set out to commit this offence.
I do not need to say any more about the operation of Verdins. Likewise, your anxiety at the prospect of separation from your mother is a factor I may take into account. Further, your prospect for rehabilitation is excellent.
You were assessed as suitable for a Community Corrections Order in May 2021 and again last week.
I have decided that in all the circumstances the principle of general deterrence can accommodate the imposition of a non-custodial sentence in this case. I do not take this decision lightly. I am acutely aware of the intention and presumption of Parliament, the various statements of sentencing principles, the loss felt by the Varvodic family, and the fact that this is a sentence imposed after a trial and not a plea of guilty.
Nevertheless when I weigh the factors I have referred to extensively (and I fear repeatedly), I consider your impairment to be considerable without exaggeration, and without contrivance.
As I have also repeatedly stated now, I considered the circumstance of this case to be that substantial and compelling, rare and exceptional case that justifies the departure from the ordinary intention of the legislation. Having reached that conclusion, I consider that on the whole of the circumstances, both objective and personal to you, militate towards the imposition of a non-custodial sentence.
The sentence I propose is therefore a community based order for four years.
I propose that you undertake 400 hours of unpaid community work; that you undertake a road trauma awareness course that you submit for mental health treatment and assessment, which I propose will be coordinated with your private current mental health provider; and that you submit to supervision for the period of the order. Ms Georgiou do you consent to the making of the order, I cannot make it without your express consent.
OFFENDER: Yes, Your Honour.
HIS HONOUR: All right. The order of the court will be that, on the charge, you are convicted and ordered to undertake a Community Corrections Order for a period of four years. The order commences on 08 December 2021 and ends on 07 December 2025. You must attend or communicate – I do not know which it is – with the Dandenong Community Corrections Services by 10 December 2021, 4 pm. In addition to the generic terms that I have already read, you must undertake and perform 400 hours of unpaid community work over a period of four years as directed by the regional manager. I direct that you must be under the supervision of a Community Corrections Officer for a period of four years.
You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric, or treatment in a hospital or residential facility as directed by the regional manager, and I propose that that be undertaken coordinating with Dr Smellen and any other treaters recommended. You must participate in programs and courses that address factors relating to your offending behaviour as directed by the regional manager, and I specifically direct that you undertake a road trauma awareness course.
On the charge with conviction, I order that all Victorian licences and permits held by you be cancelled and that you be disqualified from obtaining any such licence or permit for a period of 36 months – that is three years – from 08 December 2021. The paperwork will be prepared, and then I will have you sign it.
The first thing - I am just going to stand down while the paperwork is prepared – the first thing that I will say is that, given the absence of Mr Gibson, Ms Mazzoni, and Mr Gurvich and Ms McGarvie, I intend to provide an unrevised copy of my sentencing remarks to the parties for the purposes of review. The second thing I say, is can you bring up the Varvodic family? To the Varvodic family, I say this brings this proceeding to an end. I can only wish you all the very best going forward into the future. I know that today must be a very difficult day for you, and the whole of the proceedings in the last couple of years must have been very, very difficulty for you. I can only imagine how you feel going forward, but I do hope that there are some brighter and sunny days in the future for you.
VARVODIC FAMILY: Thank you.
HIS HONOUR: All right. With that, I will stand down for the moment.
(Short adjournment.)
HIS HONOUR: All right, the order has been signed. Ms Georgiou, you will be provided with a copy of the Community Corrections Order. I am sure Ms McGarvie will take the time to explain the consequences of the order to you in more detail than I have. I will also make the order which operates as an absolute bar on your driving for the period I have set out. Ms Mazzoni, is there any other matters from your perspective?
MS MAZZONE: No, Your Honour.
HIS HONOUR: Thank you. Ms McGarvie, anything to raise?
MS McGARVIE: No, Your Honour.
HIS HONOUR: All right. I will adjourn now.

-.-.-

ANNEXURE A
Warren Simmons excerpts of Evidence 27 May 2021 pages 23-40
Page 24 line 12 – page 25 line 1

Specifically at paragraph 2 of that report you've said, 'It would seem that Ms Georgiou's mental health condition would weigh more heavily upon her resulting in any period of imprisonment being more onerous'. How have you reached that opinion, Mr Simmons?---Um, in my first report I indicated that Ms Georgiou suffers from severe depression. Um, I believe that her being incarcerated will increase her disorder and therefore lead to her circumstances being more - more onerous on her. Um, in particular, this will be her first period of incarceration. Um, she is a woman who I think it would be fair to say has little in the way of any significant antisocial personality traits or contact with that world, um, being incarcerated also while pregnant and about to give birth to her baby will have a significant impact upon her. Um, this will be further impacted upon by the fact that, um, depending on when she is sentenced, therefore she may give birth in prison, um, even if she was sentenced subsequently and, um, if given birth to the child then that would create greater difficulties for her depending on whether the child is with her in custody.
Page 25 lines 2 – 14
You've also said at paragraph 2 referred to the particular significance of the IVF pregnancy. Can you explain what you mean by that, Mr Simmons?---Um, the use of, um, assisted reproductive techniques comes with a significant both emotional and financial cost. It can be a difficult process, um, and one that is, um, I think the couples find the process emotionally taxing and become quite dependent and reliant on the obstetrician providing care, um, depending again on where - under what circumstances Ms Georgiou gives birth. That may not be under the auspices of her obstetrician who has been providing treatment all the way along. Um, this I think adds to the, um, pressure that giving birth will have.
Page 25 line 15 – page 26 line 3
Just taking you to paragraph 3 of your addendum report, you've stated, 'Should Ms Georgiou be sentenced to a term of imprisonment this will almost certainly lead to an exacerbation of her depressive disorder'. Can you explain to the court how you've reached that conclusion? ---Um, the circumstances of being incarcerated in themselves are traumatic. Um, most people suffer a period of adjustment disorder. Um, in someone who is already depressed that will manifest itself by an exacerbation of their symptoms. Um, certainly in the context of giving birth there will be the lack of the supports normally available to people who have given birth, um, when not in the community, and I think that that will, um, lead to an exacerbation of her depressive disorder. In particular in the current circumstances as the affidavit from Ms Western points out, um, Ms Georgiou will spend two weeks in quarantine which is essentially solitary confinement. During that period she will be in a cell on her own and I think that will certainly have a significant effect on her mental state.

Page 26 lines 4 – 13

Can I just ask you in respect of potential separation of Ms Georgiou with her newborn child, can you give an opinion as to the effect of that on Ms Georgiou's severe depressive disorder?---My opinion would be that any separation of a mother from their child would increase the likelihood of further depression, um, given that this is not on the basis of her being a poor parent or any of the usual factors that normally would come into play, um, yes, so I think that that would have a significant impact upon her.

Page 26 lines 17 –28

What, if anything, can you say about the ability or the treatment available to Ms Georgiou in custody as compared to the treatment available within the community especially for depression?---Um, certainly, um, Ms Georgiou would be able to access treatment in prison. Um, that would be in the Marrmak Unit. I think it's a 20 bed unit run by Forensicare. Um, that would I understand it, and I'm not certain of that, um, would mean that she would not be able to access the services of the mother and baby unit, um, so Ms Western's affidavit doesn't make it very clear what would happen with that - in that regard.

Page 26 line 29 – page 27 line 18

And in terms of postnatal depression is there anything specific in the community that would be available to Ms Georgiou that may not be available if she were in custody?---Um, the public health system has five specialised units for postnatal depression in women who have given birth. Um, three of them are in metropolitan Melbourne, that is the Monash Medical Centre, Austin Hospital and Werribee Mercy Hospital. These are specialised units designed to provide treatment for the, um, depressive disorder as well as caring for the child in that instance, and ensuring that there is bonding and appropriate care for the mother… I cannot see that that would be available. The, ah, material supplied by Ms Western, I think it's MSW1, ah, the certificate identifying the Living with Mum program, doesn't specifically identify the services available for women who already have postnatal depression. It identifies only that, ah, such people in the - women in the program are monitored for the development of the disorder.

Page 32 lines 8-23

MR GIBSON: Thank you. Mr Simmons, what experience have you had with the specialised mother-baby unit within the correctional - Corrections facilities?---I haven't had any personal experience at all or professional, sorry.
Yes, I was talking about professional, yes?---Yeah, sorry. Yeah.
And therefore I take it you read with interest the affidavit of Ms Westin?---I did.
It's clear from Ms Westin's affidavit that the objective is to provide the same level of assistance, that is medical assistance for mothers about to give birth, who have just given birth and subsequent to giving birth, as can be received and obtained outside the prison world. Is that right?---Yes. That's the, ah, principles governing.
And you have no practical experience. You've just told us that?---No. No.

Page 35 line 3 – page 35 line 28

What I'm putting to you, and correct me if I'm wrong, is that her needs as you've identified in your reports will be appropriately catered for within the prison correctional system. Do you agree?---No.
Why not?---Um, well, I - I'm not sure what the first few paragraphs have to do with that, um, but, as I said, um, the availability of mental health services will preclude, ah - well, my understanding is that mental health services in Dame Phyllis Frost Centre are provided by - at the Marrmak Unit, which is run by Forensicare. That is not part of the mother-baby unit, um, so mental health care will not necessarily, um, enable that for her to have a child there.
Certainly if she has required treatment at the Thomas Embling I am certainly not aware that Thomas Embling is set up to, um, provide mother-baby services. Ah, I certainly don't accept - I understand the principle that's being put forward by Ms Western, but, um, that is - it's not true that that happens. Um, people are not allowed medication that they would have in the community: benzodiazepines as a rule are not prescribed, dexamphetamine is not prescribed. These medications are stopped on being prescribed to prisoners when they go into prison. Other medications are stopped as well. So, no, the - the level of service available in the prisons is not consistent with that available in the community.

Page 38 line 28 – page 39 line 8

...What if anything do you say about the difference in primary mental health care in prison compared to in the community?---Um, look, the GPs that are in the community and prison are probably at the same level of competence. Um, I think that the availability of services is limited. Um, there are processes required to go through to access those, so it can become difficult. Um, they are not going to necessarily be as skilled in the treatment of postnatal depression, um, and I think that, ah, you know, they will certainly provide the best that they can do but that will be limited.

Page 39 line 9 – page 40 line 3

What about the ability of Ms Georgiou to access more specialised treatment such as psychiatry in the prison system as compared to in the community?---Well, as I've already pointed out, I think that, ah, specialised units are not available, ah, in the prison. Um, my reading of MSW1 is that this is not a program that's developed for people with, um, mental illness that is, um, observed and, ah - and, um, monitored for, but it's not part of it. So if, um, Ms Georgiou requires more significant mental health treatment then that will probably have to be in either the Marrmak Unit or Thomas Embling.
Ah, the latter, Thomas Embling, I'm fairly certain does not have a mother-baby unit. Um, we only have three in metropolitan Melbourne, so I think it would be unlikely that a forensic mental health service will have one. Um, the - and I - I can't be certain about, um, the differences, but I understand Marrmak is a psychiatric unit and is not part of the mother-baby unit program, which is carried out in the cottage.

Certainly there is not going to be availability of all the mental health services that would be available in a specialised unit such as mothercraft nurses, 24-hour care mental health and nursing care. Ah, there would certainly be restrictions placed on accessing care. Um, that's not to say that the system will be neglectful, but it has its limitations.

[2021] VCC 2036

8 December 2021