R v Guzman

[2021] VCC 260

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

Indictment: K11705937

CR-20-01475

THE QUEEN

v

JAMES GUZMAN

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2021
DATE OF SENTENCE:	12 March 2021
CASE MAY BE CITED AS:	R v Guzman
MEDIUM NEUTRAL CITATION:	[2021] VCC 260

REASONS FOR SENTENCE

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CRIMINAL LAW – Plea – Culpable driving causing death – Significant victim impact – Social rehabilitation and sentencing – Lack of vigilance – Lack of aggravating features – Offending in the midrange of seriousness – Offending out of character – Significant remorse – Significant physical and psychological distress – Low risk of recidivism – Strong family support – Increased burden of imprisonment – DPP v DJK [2003] VSCA 109, considered – R v Verdins (2007) 16 VR 269, applied.

SENTENCE – Standard Sentence Offence – Early plea – Good prospects of rehabilitation – Youthful offender – No prior convictions – General deterrence prominent – Offending to be condemned – Sentencing Act 1991, s5, 6AAA, 89 The Queen v Sherpa [2001] VSCA 145 – Director of Public Prosecutions v Reid [2020] VSCA 247 – Hill v The Queen (2012) 223 A Crim R 285 – Director of Public Prosecutions v Reid [2020] VSCA 247 – Victorsen v The Queen [2020] VSCA 248 – Julian Lockyer (a pseudonym) v The Queen [2020] VSCA 321, applied – Total Effective Sentence: 7 years imprisonment, Non-Parole Period 3 years 9 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms C. Parkes	Ms A. Hogan, Solicitor for Public Prosecutions
For the Accused	Mr B. Johnston	Victoria Legal Aid

HIS HONOUR:

1James Guzman, you have pleaded guilty to one charge of culpable driving causing the death of Jarryd Currie; maximum penalty 20 years' imprisonment.[1]

[1] Contrary to s 318(1) of the Crimes Act 1958

2The circumstances of the offence were set out in the prosecution opening, which was read in open court on the plea and which I incorporate by reference.

3In brief outline, you were the holder of a P2 probationary driver licence.  You had just turned 20 and were driving the family motor vehicle – a 2011 Holden Commodore.

4Just after midnight, on 1 July 2019, you were driving home on Westwood Drive, Burnside.  This was a relatively new road in an urban area which was not built up to the road but passed through an area of light brush and tussocks.  It is a single carriageway road divided by a continuous white line.  You were driving north.

5The victim in this matter had left his parents' home and was riding a mountain bike without any lights south along Westwood Drive, heading towards Deer Park.  The collision occurred on a new section of carriageway, where the street lighting was not operating, and just after a newly constructed bridge over the Kororoit Creek.

6At the point of impact you were fully in the southbound or wrong lane, with the carriageway at that point divided by a marked pedestrian refuge.  You collided head on with the victim, who was thrown onto your windscreen.  Your car continued for 80 metres before it came to a stop, with the deceased under it.  The airbag deployed.  The deceased suffered multiple injuries and died at the scene.

7After the collision you immediately contacted 000.  You told the operator that the cyclist came out of nowhere and you did not see him.  You waited in a state of shock while the police and ambulance arrived.  You told an ambulance officer that you had crossed the bridge.  'There was a car in front of me, I didn't see anything else, and then all of a sudden I saw a cyclist's helmet and I hit him dead on', and the airbag went off.

8A PBT taken at the scene returned a negative result.  You were taken to hospital to be checked and treated for minor injuries.  Later you provided a 'no comment' record of interview to the police.

9The police undertook a full investigation of the accident that included retrieving CCTV footage showing that 300 metres south of the collision scene your vehicle can be seen travelling at a high but undetermined speed.  This was also an observation of another motorist.

10Police investigators reconstructed the scene and their expert witness opined that at the time of the collision you were travelling at about 112 kph.  There were no faults in your vehicle.

11On 1 July 2019 you were charged on the day of the accident.  You remained in custody until 11 July, when you were granted bail.  The matter was the subject of a committal mention on 6 November 2019 and, after a committal hearing was adjourned twice, the matter resolved without the calling of any witnesses at a committal hearing scheduled for 9 November 2020 to a plea of guilty.

Victim Impact Statements

12The deceased, Jarryd Currie, was aged 28 and the youngest of four children, and he had three older sisters.  The Court heard four moving victim impact statements from the three older sisters and the deceased's mother.  All family members have been grievously impacted by his death.

13Tegan Currie, in her victim impact statement[2], said that she still feels the pain when the police knocked on her door.  She said:  

'I then had the responsibility to call all of the family members, who had all gone to work'.  She said she still replays the screams, crying and severe distress and intense emotional hurt and pain she heard from every one of her family members.  She said:  'I replay this day over and over and I'll never forget it, and it's something that I'll have to live with forever'. 

[2] Exhibit E on the plea.

14She goes on to say: 

'Since then it has impacted my every day well-being and work life', and she had to take over a month off work and every day she was struggling to get out of bed.  She had a negative mindset, she became withdrawn and could not sleep, as her mind was constantly ticking over, and she completely lost her appetite to the point that she lost weight because of the grief.

15In her personal life it took her a significant timeframe to go back to the gym and get back into social situations and learn how to deal with her emotions.  She still gets distressed when she meets new people.  She says: 

'My grief will never go away.  I'll never be able to have a conversation, laugh, share my experiences and achievements with my brother, because he has been taken away.  He's missed out on living and fulfilling his own life.  I will always be completely heartbroken and it doesn't get any easier as the days go on'. 

16She goes on to say that she continues to have anxiety and she notes that he has missed many milestones in the family, special occasions - missed out on the fact that she has now bought a house, her sister's engagement, a birth of a sister's child.

17Another sister, Alicia, gave a similar victim impact statement[3], saying how she turns over in her mind when she received the call advising that her brother had died.  She said:

'I needed almost a month off work before I felt even slightly able to return' to her job as an emergency nurse, where she is dealing with this type of thing all the time. 

[3] Exhibit F on the plea.

18She says: 

'I think a lot about the events.  I always wonder and hope that he did not suffer.  I often think about how alone he was when he died.  How I wish I could have been there for him, as his older sister.  I wish I also had time to say goodbye'.

19She goes on to refer to the fact that the deceased, Mr Currie, was the baby of the family and so he was treated sort of differently by his older sisters.  'And for months after Jarryd was gone I'd hope that every time I went to my parents' house he would just come through the door, it was all a big mistake.  Knowing that it wasn't'. She again refers to family gatherings and events like Christmases and birthdays that he misses out on.  She has never gone back to riding her bike since Jarryd died.

20She again refers to the fact that she has become a mother, and he would have been an uncle, and the joy and excitement that he would have experienced has been lost, and lost to her – to her child as well.  She ends by saying: 

'What I would just give to see him, to talk to him, to hug him, to hear his music he would make, to listen to his banter, to hear his laugh, and for him to meet his nephew', her son.

21Jayde Currie, another sister, also gave a victim impact statement.[4]  She says she could not sleep, she felt overwhelmed with those who were not her immediate family.  After she heard about it she just wanted to be with her family.  She said: 

'I was feeling so angry and frustrated that Jarryd had been taken away from me and thinking of all the things I never got to say to him, and end up with me being snappy trying to somehow cope with this'. 

[4] Exhibit D on the plea.

22It caused fights between herself and her partner.  She felt herself being irritable at work and at home and becoming snappy.  She would have trouble with controlling her crying for months after Jarryd died.  'I had no energy or motivation to get through the days, weeks and months'.  She took just under a month off work and had a feeling of anxiety about returning to work.  'This is where my sister and her husband had to come and tell me Jarryd was gone.  I still replay the moments in my head'.

23She refers to the family events where he is missing out.

'Having that emptiness there and that missing person at the table is so emotional and they're tough days to get through'. 

24She refers to the fact that in Christmas 2019 her partner proposed to her, and she is expecting in May this year, and how that event, again, he will not be there to participate in that event.  She ends by saying:

'I will forever miss my brother.  My heart will be forever broken.  I miss his voice, his company, his laugh and his hugs'.

25Karen Currie - Jarryd's mother, an emotional victim impact statement[5], as any mother would, saying: 

'I just remember feeling numb.  Having to be brought home by a work colleague, hugging and crying with my family, and then sitting there not knowing what to do next.  It has left me heartbroken.  I would cry myself to sleep night after night while also trying to be strong and support my family, who are struggling to deal with the loss of Jarryd'. 

[5] Exhibit G on the plea.

26She had difficulty sleeping, struggling to get up and be motivated, but had to push forward.

27She was so impacted by this that she suffered a medical condition known as broken heart syndrome, and even though she had no heart problems she had four days in hospital.  Just as they treated those symptoms it was the impact on her of your driving, so when she was released from hospital she continued to have to take medication until she was given the all clear.  She ends it by saying: 

'He was the youngest of my four children.  He was a kind-hearted person who loved his immediate and extended family.  Family was everything to him and due to his life being cut short there are so many things he'll never experience.  He now has a nephew and another due in May.  He would have been a wonderful uncle.  For me, time hasn't healed the pain and losing my child and I don't think it ever will.  Part of me died that day too.  No parent should ever have to bury their child'.

28So the loss to the family of their son and brother cannot be retrieved by any sentence of the court, but the victim impact statements will be taken into account and give the victims of your crime the opportunity to participate in the sentencing process.

29As I indicated in the course of the plea hearing, the process of sentencing has been described as akin to social rehabilitation following a criminal act, and that is set out in a decision of Vincent JA in Director of Public Prosecutions v DJK.[6] I quote:

'The notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system'.  'It seems to me that the process of social and personal recovery that we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts.

'The imposition of a sentence often constitutes both a practical and ritual completion of a protracted, painful period.  It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator.

'It is the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted.  If not, there will almost certainly be granted a sense of injustice in the community generally that damages the respect for which our criminal justice system has held, which may never be removed.  Indeed, from the victim's perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of a crime may well aggravate the situation'.[7]

[6] [2003] VSCA 109.

[7] Ibid at [18].

Assessing the seriousness of the offence

30Your counsel accepted that this was a serious example of a serious offence.  Gross negligence is the form of culpability alleged against you.  You were driving at night in an urban area where the street lighting was not operating.  You were familiar with the area.  You were travelling at nearly double the speed limit, at 112 kph at the point of impact. You had been travelling at an undetermined high speed for about 2.5 kilometres before the actual impact.

31You told an ambulance officer that there was a car in front of you and that you did not see the cyclist, Mr Currie, until impact.  As you were in the oncoming lane it is a fair inference that you had sought to pass a vehicle at the time.  The prosecution disputes that there was another vehicle in the vicinity but I give you the benefit of the doubt on that point - that is what you told the psychologist.  That is supported by the data retrieved from the airbag control unit in the vehicle that indicates that 2.5 seconds before impact your vehicle was travelling at 108 kph and, at impact, 112 kph 2.5 seconds later.[8]

[8]Depositions, Airbag Control Module Download,’ DS Hardiman pg. 77 - 78

32In the short interval prior to impact there was a substantial increase both in the engine speed and in the accelerator pedal position, consistent with the gearbox changing down and the engine speed rising, allowing the vehicle to overtake another vehicle.  Thus the explanation for you being in the incorrect lane was a dangerous overtaking manoeuvre wherein you were substantially above the speed limit and failing to keep a proper lookout for oncoming traffic, including bicycles.  The collision occurred when you were fully in the oncoming traffic lane.  There was no evidence of braking prior to the impact.  The actual collision occurred when you were on the wrong side of the pedestrian refuge located in the middle of the carriageway.

33As submitted by the learned crown prosecutor, your conduct was placing other road users at risk, as the CCTV footage indicates light traffic using the road at the time, including a vehicle heading at a slow rate of speed in the same direction as yours shortly before the collision.

34Your counsel put that this offending did not have a number of the features that are often associated with culpable driving offences including a bad prior driving record, hooning, use of drugs and alcohol, and driving whilst disqualified or unlicensed.  I accept that these aggravating features are not present, however the fact is you were a probationary driver driving at a high speed in an urban area on the wrong side of the road, and this driving caused the tragic death of Mr Currie.  Being a probationary driver meant you were obliged to be even more vigilant in your driving.

35While it is possible to hypothesise less serious cases and more serious cases, on an objective basis I am satisfied that the objective seriousness of the offending here is in the mid-range.  Had your actual speed been lower, but still in excess of the speed limit, then the offending may have been characterised as dangerous driving causing death rather than culpable driving.  Added to the objective seriousness of the offence is the impact that it has had on the Currie family, as set out in the victim impact statements that I have just referred to.

Matters in Mitigation

36I turn now to the subjective matters put in mitigation by your counsel in a comprehensive plea, which I must take into account.

37First, you have pleaded guilty.  The prosecution accepted that the plea was entered at the earliest opportunity.  You have accepted responsibility for your conduct and facilitated the course of justice.  You have obviated the need for a committal and for the calling of witnesses.  You receive full credit for this, particularly given the COVID environment and its impact on the operations of the legal system.  Further, I am satisfied that the plea is evidence of your remorse.  I accept that you are genuinely remorseful for your conduct and your remorse is evidenced not only by the plea but by comments recorded in a number of the impressive references that were tendered before me, and in the two psychological reports.

38Your personal circumstances are that you are of El Salvadorean extraction and you born in Melbourne.  At the time of the offending you had just turned 20, and will turn 22 in June this year.  You are still a young man.

39Your parents were in Court supporting you on the plea.  Your father is a bus driver and your mother a cleaner.  You have a younger brother, aged 19, who is working as a packer, and a younger sister, 11, who is still at school.

40You completed Year 12 at Lakeview Senior College in 2017.  You worked in an administrative and clerical capacity for a chiropractic practice in 2018 until March 2019.  A very good reference was filed.[9]  In the reference your employer states that you demonstrated a good level of maturity and a genuine and strong sense of remorse.  'He takes responsibility for his actions and is deeply regretful for his actions.  He expressed sympathy for the victim, as well as the victim's family'.  He says you have a strong sense of social justice.

[9] Exhibit 4, Reference Ravi Maistry dated 4 February 2021.

41After you left work with this employer in about March of 2019 at that point you were focussing on applying to join the police force and were not working at the time of your offence.

42Other references before the court indicate that you have been actively involved in a church youth group and are highly regarded by those you are interacting with, thus Mr David Romero says:

'When James was in the youth group I saw him on a weekly basis and found James to be extremely polite, reliable, caring and trustworthy in all the time I spent dealing with him.  He was a highly esteemed member of our youth group.  I know James is a good young man'.

43A friend since school days, Mr Taleveski, states that he has seen a drastic change in you since the accident.  He believes you are remorseful and the conduct was very much out of character.

44The pastor at the Chilean Pentecostal Evangelical Church in North Dandenong, who has known you for seven years, describes you as hardworking, reliable and honest in his dealings with you.  He said the accident has left you very withdrawn and currently feeling incredibly stressed and anxious.[10]

[10] Exhibit 7 on the plea.

45Your former girlfriend states that you have become ashamed and self-conscious and have expressed remorse and distress and sought counselling.  You have told her that you wish to be involved in a career in youth work, educating youth on the importance of road safety.[11]

[11] Exhibit 5 on the plea.

46There are other references before me indicating your good character, contributions to the community, family support, and that this event was very much out of character.

Impact of the offending

47A significant matter on the plea was the impact that the offending has had on your own mental health.  In evidence were two psychological reports.[12]  You were referred to a psychologist Ms Sandra Cokorilo and undertook a mental health plan commencing in August 2019, and in the period from then to date you have undertaken 30 consultations with that psychologist.  He opines that you are suffering from chronic PTSD and he has been working with you using CBT (cognitive behavioural therapy) to assist you to address what he has described as 'significant physical and psychological distress', thus this report indicates that you have already suffered significantly as a result of this offence.  It is a matter to be taken into account in your favour, although your own conduct is the author of your own misfortune.

[12] Exhibit 2 and 3 on the plea.

48Before the court was a report from Sandra Cokorilo, psychologist.[13]  In her report, after examining you on 11 December 2020, she found that you are suffering moderate depressive and anxiety symptoms and severe stress.  She found that there was no evidence of personality disorders or traits.  She found you are exhibiting symptoms of PTSD and major depressive disorder and moderate to severe distress.  She assesses your risk of recidivism as low on the basis of an absence of prior convictions, a pro-social peer group, absence of history of alcohol and substance abuse, positive familial support, lack of psychosocial adversity and history of pre-morbid psychological functioning and a positive attitude to intervention.

[13] Exhibit 2, Report of Ms Sandra Cokorilo - dated 12 January 2021

49Your counsel relied on the opinions in this report to support his submission that imprisonment will weigh more heavily upon you, as you continue to manifest severe PTSD and MDD symptomology.  It is appropriate to read a significant passage from the report:

'Within the psychological literature immaturity can be attributed to cognitive and psychosocial differences in individuals and specific attention is given to responsibility, perception and temperance in decision making'.  She refers to two authors.  'They argue that the question is not whether the individual recognised their behaviour to be bad, illegal or immoral, but whether their decisions arose from factors that put young offenders, relative to adults, at an inherent disadvantage when faced with choices in potentially anti-social situations.

'Whilst the nature of Mr Guzman's offending dictates an unavoidable imprisonment term it is noted that it will weigh more heavily on him than a person without his conditions.  Despite full support of his family and ongoing intensive psychological intervention over the past 16 months
Mr Guzman continues to manifest severe PTSD and MDD symptomatology.  There is no doubt that the unpredictable, volatile and tense prison environment is going to cause exacerbation of Mr Guzman's hyperarousal and anxiety symptoms.

'Noting his severe depression and persistent suicidal ideation there are grave concerns as to the potential consequences of further mental health deterioration in prison, where he will not have access to treatment specific to his PTSD and MDD, and certainly not at the intensity he requires.  It seems fair to opine that imprisonment will have a significant negative impact on Mr Guzman's development and future behavioural outcomes through loss of positive social structures and educational and vocational access, and exposure to negative peers at his impressionable developmental stage'.[14]

[14]Ibid, p. 8, [84] – [85]

50She refers to other reports as to the susceptibility of young offenders in prison, including the risk of PTSD and assault, and goes on:

'Mr Guzman's emotional instability, compromised coping and sensitive and gentle disposition place him at a greater risk of injury and further trauma during imprisonment than a person without his emotional and personality characteristics and mental health concerns'.[15]

[15] Ibid [87]

51She recommends you be provided with psychological interventions while in prison.

52On the plea your counsel relied heavily on this report in support of the submission that under the principles of Verdins[16] a sentence of imprisonment will be more burdensome on you than others and that your condition may deteriorate while in custody.  The prosecution accepted that the Verdins principles were engaged (principles 5 and 6).  I found the opinions of the psychologist cogent and to be afforded very significant weight in the sentencing synthesis.

[16]R v Verdins (2007) 16 VR 269 (‘Verdins’)

53Another matter I take into account is the additional burden of imprisonment as a result of COVID.  This has, until recently, limited contact visits by family, but they are now being reinstated.  Programs in prisons are adapting to COVID restrictions and until the widespread availability of a vaccine there will always be a sense of uncertainty for those in confined environments such as the prison.  I will take those matters into account in your favour, including that upon reception into a prison you have been required to undergo 14 days of quarantine and I am sentencing you while you are in one of the prisons.

54You have already undergone 10 days on remand in July 2019, which, for a first offender, would have been a very difficult period.

Prospects of rehabilitation

55At the time of the offending you were living at home and you remained living at home until the plea.  You had completed your VCE and had worked in an office position for a chiropractor for a year, as I indicated.  You had ceased employment prior to this and were exploring the prospects of entering the police force.

56The references, in particular the reference from your former employer indicate that you have good prospects for further entry into the workforce.  Significantly, you also come before the Court as a person of good character and no prior appearances for criminal matters or for driving matters.  You also have strong support in the community that is testified by the references from the Church, in which you have been actively involved, and also from your family. Thus you are of good character and this is a matter to be taken into account in your favour.

57All these matters bode well for your prospects of rehabilitation.  I would regard your prospects of rehabilitation as very good.  The prosecution accepted that they were good.

58Another matter put in mitigation is the impact of imprisonment on you, as set out in the report of Ms Cokorilo that I just referred to.  There are a number of elements to this.  First, you are a youthful first offender.  This will make the prison milieu completely unfamiliar to you.  You are worried that you will stand out and be victimised due to your ethnicity and your weight.

59The learned Crown prosecutor accepted that you will be vulnerable in prison not only due to your youth but also due to your psychological state.  On the basis of the psychological report you need continuing therapy.  I accept her opinion the assistance available in prison will not be at the same level as in the community, however it is the duty of the authorities to make appropriate arrangements for the mental health of prisoners and my sentencing remarks and the reports will be made available to the authorities.

Sentencing submissions

60A key matter put in submissions was your youth.  Youth is always relevant in sentencing and this has been emphasised in a number of cases.  You were 20 at the time of the offending and will turn 22 in June this year, as I indicated.  Had you been dealt with before you turned 21 you would have been caught within the definition of a youthful offender the Sentencing Act 1991.  Given your current age you must still be treated for sentencing purposes as a youthful offender.

61You have no prior convictions, which is an important sentencing consideration.  The need for leniency to be accorded to youthful offenders in order to encourage their rehabilitation is in tension with the principles of general deterrence, which are very important in sentencing for serious driving offences.  These two incommensurable factors can be seen in the following extracts.

62The principles for sentencing of youths were set out in a well-known passage from the late Callaway JA in Sherpa,[17] where he said:

'General deterrence must usually be emphasised in the punishment of this offence of culpable driving and there is correspondingly less scope than in the case of some other crimes for leniency on account of an offender's youth.  That does not mean that there is no scope for youth and concomitant prospects of rehabilitation to influence the disposition.  Even if an immediate custodial sentence is warranted, as it almost always is, those factors may still have a bearing on the kind of sentence to be imposed (in particular the choice between imprisonment and youth training, where the latter is a realistic option), the length of sentence and the time that must necessarily be served, but it is not to be forgotten that a life has been lost'.

[17]The Queen v Sherpa [2001] VSCA 145 at [11].

63Weighing against your youth, as discussed during the plea is that this type of offending is often committed by youthful offenders.  This is set out in the decision of the Court of Appeal in Hill, which was quoted in the decision in DPP v Reid.[18]

'Driving is an adult responsibility.  That responsibility involves the necessity to make adult decisions and choices and an awareness that a failure to do so will result in the same consequences that apply to mature adults.  Those who have the privilege of holding a driver's licence must ensure that they make decisions carefully and responsibly, because the failure to do so may have catastrophic consequences, including the death of others.

'Unfortunately, the offence of culpable driving is one which is frequently committed by young drivers.  If general deterrence is to be meaningful it must be directed towards this class of offenders and cannot be regarded as irrelevant because of their youth'.[19]

[18]Director of Public Prosecutions v Reid [2020] VSCA 247

[19]Hill v The Queen (2012) 223 A Crim R 285; (‘Hill’), pp. 14 – 15, [45], [51]

64Thus, general deterrence must always play a prominent role in sentencing for this offence and this is emphasised by the standard sentence for the offence of eight years and the repeated comments by the Court of Appeal, including those referred to in the responding sentencing submission by the learned Crown prosecutor.  At the same time, the fact that the court is dealing with a youthful offender without prior convictions must always remain a relevant consideration.

Purposes of sentencing

65The basic purposes for which a Court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of factors such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victims.  I am also required to balance the interests of the community in denouncing criminal conduct and the interests of the community in ensuring that, as far as possible, offenders are reintegrated and rehabilitated into society.

66In sentencing you I must have regard to all the matters set out in s.5 of the Sentencing Act 1991.  This includes the maximum penalty, which is 20 years' imprisonment, current sentencing practices, the standard sentence, the circumstances of the offence, the impact on the victims and your personal circumstances.

67The learned Crown prosecutor referred me to a number of cases that could provide assistance as illuminating current sentencing practices.  I have considered those cases.  She did not submit that any particular case was completely on all fours, rather they provide appropriate yardsticks.

68The cases set out in her submission all involve sentences of nine years' imprisonment for counts of culpable driving since the establishment of the standard sentencing regime.  Save for the cases of Reid[20] and Victorsen[21] they all involve older offenders and a number of them have prior criminal records.  It would not be productive to seek to analyse and distinguish the circumstances of each particular offence and offender, but I have had regard to the sentences imposed as illustrative of current sentencing practices.

[20]Director of Public Prosecutions v Reid [2020] VSCA 247.

[21]Victorsen v The Queen [2020] VSCA 248.

Standard Sentencing Provisions

69In sentencing you I must also sentence you on the basis that this is a standard sentence[22] offence that requires me to consider the legislative guidepost of that sentence – namely eight years' imprisonment for an offence – taking only the objective factors into account, in the middle of the range of seriousness.

[22] S

70The approach to sentencing offenders for standard sentencing offences has been considered in a number of recent cases. It is clear that Parliament intended that sentences for this offence – and indeed for all the standard sentencing offences – should increase.  Further, in sentencing judges are not to engage in a two-stage sentencing process reasoning back from the standard sentence.

71In the recent case of Lockyer[23] the Court of Appeal was dealing with the offence of rape, which is another standard sentencing offence.  I have adapted the following comments from Priest and Weinberg JJA to illustrate how to approach this matter.

'It must be understood that the standard sentencing regime, so recently introduced, does not in any way diminish the importance of giving proper weight to relevant mitigating factors.  These include the personal circumstances of the offender, his or her prospects of rehabilitation and, where appropriate, the need to give due weight to a plea of guilty (particularly if coupled with remorse).

'If the standard sentencing regime is not approached in accordance with the principles laid down in both Drake and Brown it will have replaced instinctive synthesis with two-tiered or starting point sentencing.  It is clear that this was not the intent of Parliament.

'A standard sentence of [eight years' imprisonment for culpable driving] represents a legislative guidepost and is to be understood as but one factor to be taken into account in what is obviously a far more nuanced and careful process than one which is crudely arithmetic'.[24]

[23]Julian Lockyer (a pseudonym) v The Queen [2020] VSCA 321. (‘Lockyer’)

[24] Ibid [67]–[69].

72Thus the standard sentence is simply another factor to be taken into account in the overall assessment of the appropriate sentence along with the other matters in s.5 of the Sentencing Act.  It is not to be treated as a determinative figure and should not interrupt or displace the operation of the instinctive synthesis principle.

73In sentencing you I have taken into account all the matters in s.5 of the Sentencing Act and had regard, as one of those matters, to the standard sentence for an offence in the middle range of objective seriousness.

74As you are a first offender, and are remorseful, considerations of specific deterrence, in my assessment, have little relevance in sentencing you.  The tension between the requirements of general deterrence and denunciation, and your personal circumstances, including your plea of guilty, remorse, your youth, your lack of prior convictions, the psychological problems as a result of the offence, the prospects of rehabilitation and the burden of imprisonment, make this a very difficult sentencing exercise.

75A signal must be sent to all drivers, including young drivers, that dangerous conduct on the road causing death and serious injury will be met by heavy penalties regardless of personal factors including youth.  Your conduct that night, driving at a fast speed and then seeking to execute an overtaking manoeuvre, was grossly negligent and resulted in the needless death of Mr Currie.  Your conduct is to be utterly condemned.

76I have had regard to all the mitigating matters put on your behalf – and in particular your youth, good character, prospects of rehabilitation, vulnerability and the impact of a sentence of imprisonment, as well as the other matters set out in s.5 of the Sentencing Act.  These matters lead me to conclude that the community interest in your rehabilitation and not being crushed by a sentence of imprisonment calls for a just sentence that, while having regard to the standard sentence, is lower than the standard sentence.

77In the case of Sherpa that I referred to, which was an appeal against the severity of a sentence imposed for culpable driving, the late Justice of Appeal Callaway described a seven year sentence of imprisonment imposed upon a 22 year old for an offence committed when he was aged 20 – an offence of culpable driving – as a “severe sentence”.[25] While those comments were made nearly 20 years ago and community attitudes and the legislative regime have changed, they can be applied to the sentence that I am about to impose on you, as a youthful offender, of seven years' imprisonment.

[25]The Queen v Sherpa [2001] VSCA 14 at [12].

78The Sentencing Act requires that unless the interests of justice dictate any non-parole period for a standard sentence offence should be no less than 60 per cent of the standard sentence.  In the particular circumstances of this case, and having regard to and applying the comments in Sherpa that I have earlier referred to, I am satisfied that the interests of justice call for a lower non-parole period than 60 per cent of the head sentence, particularly having regard to the opinion of Ms Cokorilo as to your psychiatric condition and the burden of imprisonment.

79Under the Road Safety Act 1986 I am required to cancel your licence upon a conviction for this offence and disqualify you from driving for a minimum period of two years.  Licence disqualification is an additional punishment.

80In this case I propose to cancel your licence and disqualify you from driving for a period of four years from 5 March 2021, which is the date of the plea and your remand in custody.

The sentence of the court

81On the charge of culpable driving causing death you are convicted and sentence to seven years' imprisonment.  I order that you serve a minimum term of three years and nine months being eligible for parole.

82All licences you hold are cancelled and you are disqualified from driving for a period of four years from 5 March 2021.[26]

[26] Pursuant to Sentencing Act 1991, s89.

83I declare you have served 18 days pre-sentence detention.

84I declare that had you not pleaded guilty I would have imposed a total effective sentence of 10 years' imprisonment with a minimum term of six and a half years.[27]  Any other matters, Madam Prosecutor?

[27] Pursuant to Sentencing Act 1991, s6AAA

85MS PARKES:  No, Your Honour.  No other matters.

86HIS HONOUR:  I want to thank you, Madam Prosecutor, for your assistance in this matter.

87MS PARKES:  Thank you, Your Honour.

88HIS HONOUR:  Your comprehensive submissions, written and oral, and also the defence counsel, Mr Johnston, for his comprehensive submissions and assistance, and I will now adjourn the court sine die.