R v Lu
[2022] VSC 258
•20 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0140
| THE QUEEN | Crown |
| v | |
| ZHUOHUI LU | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 April 2022 |
DATE OF SENTENCE: | 20 May 2022 |
CASE MAY BE CITED AS: | R v Lu |
MEDIUM NEUTRAL CITATION: | [2022] VSC 258 |
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CRIMINAL LAW – Sentencing – Dangerous driving causing death – Date of offence 18 August 2018 – Plea of guilty – No prior convictions – No subsequent matters – Low objective gravity – Low moral culpability – Convicted and sentenced to a three year Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Mahady with Ms S Clancy | Office of Public Prosecutions |
| For the Accused | Ms P Marcou with Mr T Brown | Markotich Lawyers |
HER HONOUR:
Mr Lu, you have pleaded guilty to one charge of dangerous driving causing death. The maximum penalty for this offence is ten years’ imprisonment.
The offending
On the evening of Saturday 18 August 2018 at approximately 6:20pm, you were driving your white Toyota HiAce van home from work. In the course of your journey, you drove down Williams Road in Blackburn North and turned left into Springfield Road. The applicable speed limit is 60 kilometres per hour. Approximately 220 metres along Springfield Road is a traffic light controlled pedestrian crossing, situated near Primrose Street.
The victim in this matter, ten year old Jack Power, had been attending a family party nearby in Blackburn North. Jack, his six year old sister Stephanie, and their 12 year old friend, Brina, had left the party with permission and walked to the local supermarket. They were walking home from the supermarket when the fatal collision occurred.
The children reached the pedestrian crossing on Springfield Road and Brina pressed the button to activate the pedestrian lights. They waited until the pedestrian light turned green before starting to cross the road. Brina was holding Stephanie by the hand, and the two of them were walking slightly ahead of Jack. As they crossed, Brina looked and saw your van approaching the crossing. She realised that you were not stopping and yelled at Stephanie to run, pushing or pulling her so they were both running to the other side of the road. You, due to inattention, had failed to react in time to the vehicle traffic lights, which were red at the time of the collision. You applied emergency braking prior to the pedestrian crossing, but skidded through the crossing.
Jack Power was struck by the front passenger side of your vehicle. As he was struck, his head hit your windscreen and his body hit the front bull-bar. Your van did not have ABS braking, and the tyres were locked due to your emergency braking prior to you entering the pedestrian crossing. Brina and Stephanie looked back and saw that Jack was lying on the road at the back of your van. They started screaming, and fortunately, people from a nearby house came out to investigate. They comforted the distressed girls and helped Brina call her mother.
You immediately got out of your vehicle and went to assist Jack. You picked him up from under your van, carried him off the road and placed him down on the nature strip. You returned to your van to retrieve your phone and call 000. I have listened to that call. You are very distressed and, due to language difficulties, had trouble conveying what had happened. A passer-by took over and explained what had occurred. A number of other passers-by also stopped to assist, and police and ambulance services arrived a short time later.
Jack was conveyed to the Royal Children’s Hospital. A CT scan showed a profound diffuse brain injury. Despite medical intervention, tragically Jack died on the following day.
You were interviewed by police with the assistance of an interpreter on the evening of the collision. You told police that you were driving at normal speed and the vehicle traffic light was green. You said all of a sudden there were four children running across the road, and you applied your brake in a very quick response. You said three children passed the car, but the last one you struck. You were charged with this offence on 27 August 2018.
The scene
A thorough examination of the scene was conducted by the Major Collision Investigation Unit.
The pedestrian crossing had four vehicle traffic lights. Viewed from your perspective on this night, there were two traffic lights on the left-hand side, one on the right hand side, and another on the right hand side but in a more overhead position. There were no physical structures, such as a sign or a tree, obscuring the lights.
Police obtained operating records for the pedestrian crossing. The pedestrian crossing operates on demand and is activated when a pedestrian pushes the button. After this occurs, the vehicle traffic lights remain green for a minimum of ten seconds. The vehicle lights are then amber for four seconds, and red for two seconds. The pedestrian light then cycles through the following sequence: a green walk light for 11 seconds; a red flashing symbol for eight seconds; and a solid red ‘Don’t Walk’ symbol for three seconds. The vehicle lights then return to green.
At the time of the collision, it was dark and the road surface was wet. This hindered the ability of investigators to determine with precision when you commenced braking in the lead-up to the collision. Using measurements taken at the scene, it was calculated that your van was travelling at not less than 52 kilometres per hour as it entered the pedestrian crossing. There was no steering input data available due to the age of your vehicle.
You provided police with the PIN for your mobile phone. Investigators checked your phone and it was not being used at the time of the collision. You were not affected by drugs or alcohol at the time of the collision, and you were not speeding. You have no prior convictions and no subsequent matters in the almost four years since this occurred.
Victim impact
Seven victim impact statements were tendered and read to the Court. The victim impact statements in this case were, individually and collectively, very eloquent and terribly sad. The victim impact statement of Jack’s mother was heartbreaking from start to finish. She is devastated by his death and misses him dearly. Everyday events that should be ordinary or even happy occasions, such as watching his friends grow into teenagers, are a source of anguish, as they remind her that Jack has gone; that he will never get to grow up and become a teenager and then a man; that he was so young when he died; and that his death was so unfair. She worries about the impact on Stephanie, who is plagued by an image of that night that just keeps playing in her head. She hopes her daughter will not spend a lifetime reliving that dreadful night, but only time will tell.
Victim impact statements were also provided by Jack’s two grandfathers, his uncle, his grandmother, his godmother and a long-time family friend. They are all heartbroken by Jack’s death. They miss him, and they think about him every day. Family occasions and significant events, such as birthdays or Christmas, are particularly difficult.
There is, of course, nothing this Court can do to bring Jack back, or ease the terrible sadness and pain that his family and friends continue to experience. In sentencing, I must take into account a number of matters, only one of which is the impact on the victims. As a result, this process may sound quite clinical. I want to make clear that the sentence I will impose is in no way a measure of the worth of Jack’s life.
Personal circumstances
You were born in 1972 in Guangzhou, China. Your parents and younger sister remain in China, and prior to this incident, you would visit regularly. Your family are good people, and you had a stern but loving upbringing. You attended school until the age of 16 and then worked in commercial Chinese cookery. You left China for Australia 24 years ago, in 1998, and have lived continuously in Australia since this time. In 2008 you became a permanent resident of Australia, but you remain a Chinese citizen.
You were married in 1998 and have one son who is 22 years old and studying robotic engineering. You and your wife separated after ten years, but still enjoy a close and supportive relationship. Both she and your son provided character references on your behalf. You remarried in 2009, but the marriage dissolved in 2012. You have been with your current partner for approximately 18 months. You live together, and she also provided a character reference and attended Court to support you.
You were aged 45 at the time of the collision and are now aged 49. You have been driving in Victoria since you arrived here in 1998, and are the holder of a valid Victorian driver’s licence. You have been self-employed as a carpenter for the past five years, focusing on residential renovations. You have a very strong work ethic and have always worked hard to support yourself and your family. Since being in Australia, you have found work within the Chinese diaspora. As a result, your English language skills remain very basic despite living in Australia for almost half your life.
Psychological material
Mr Patrick Newton provided a report and gave evidence on the plea. In his opinion, you have a clear and prosocial code of ethics which you live by. You respect lawful authority and are a low risk of recidivism. You drink alcohol sparingly and have never taken illicit drugs. You were at pains to stress to Mr Newton that you are responsible for Jack’s death. It was clear to Mr Newton that you continue to be deeply affected by the collision. You think about it every day, have dreams and nightmares about it, and at times, visions of Jack hitting your windscreen break into your consciousness. You work hard to the point of exhaustion to try and ensure that when you do go to bed, you will fall asleep.
In Mr Newton’s opinion, you have been clearly traumatised by the collision and developed post-traumatic stress disorder, now in partial remission. You experience some reactive anxiety related to your current legal predicament and a more chronic anxiety as a result of your involvement in the collision. You are, by nature, a reserved man, but consistently and repeatedly expressed regret, remorse, sadness and a desire to indicate to Jack’s family both your sorrow, and the responsibility you wish to take for the harm and hurt you have caused.
In Mr Newton’s opinion, a sentence of imprisonment would weigh more heavily on you as a result of your post-traumatic stress disorder. There is also a significant risk that your post-traumatic stress disorder could progress and return to the full syndrome. This could potentially occur in custody, as you would be isolated and unable to use your strategy of hard work to avoid ruminating on the collision.
Your counsel, relying on your post-traumatic stress disorder, submitted that principles 5 and 6 of Verdins[1] have application here. She submitted that the existence of that condition means any sentence will weigh more heavily on you than it would on a person in normal health. Further, there is a serious risk that imprisonment will have an adverse effect on your post-traumatic stress disorder, and this is a factor which mitigates punishment. The prosecution acknowledged that both principles do have application here. However they queried the weight to be given to the principles, as there is an intermeshing of matters which would make prison more difficult, including any anxiety arising from the risk of deportation.
[1]R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
I accept that Verdins principles 5 and 6 are relevant here, although principle 5 in particular does overlap with other reasons as to why you would likely find imprisonment more onerous. These include your limited English language skills, and anxiety arising from your concerns about deportation, which I will come to. Your limited English would also make accessing treatment and programs in custody more difficult.
Other matters
Your plea of guilty was entered reasonably late in the proceedings. However, your counsel submitted that your plea was ‘made at the first reasonable opportunity to the set of facts which are now the basis of the agreed prosecution opening’. The prosecution did not take issue with this submission.
Your plea of guilty shows you have taken responsibility for your offending, and has facilitated the course of justice. Importantly, your guilty plea was entered before Brina or Stephanie were required to watch their VAREs, give evidence or be cross-examined. This is a significant matter in mitigation. I conducted the ground rules hearing in this matter last year and have therefore read the intermediary reports prepared in relation to the children. Both Brina and Stephanie, but more so Stephanie, were worried and anxious about having to give evidence. By pleading guilty, you have spared all witnesses, but particularly Brina and Stephanie, the trauma of having to give evidence and remember these events. You have also spared Jack’s family and friends the ordeal of a criminal trial.
Your plea of guilty was entered at a time when the court listings remain significantly impacted due to the pandemic. Your plea of guilty in this matter is deserving of greater weight in mitigation than a similar plea entered at a time when the courts are not disadvantaged by the impacts of the pandemic. Whilst the community has grown used to ‘living with COVID’, it is important to remember that the courts are still experiencing considerable backlog, and the additional mitigatory value of a guilty plea must be reflected in the ultimate sentence.[2]
[2]Papagelou v The Queen [2022] VSCA 53, [28].
I am satisfied that your plea of guilty is evidence of remorse. There is substantial evidence of genuine remorse in this case. It is found in the report and evidence of Mr Newton and in the character references tendered on your behalf. It has also been expressed through your behaviour. Although you are not particularly religious, you followed certain Buddhist cultural practices, such as a period of eating a vegetarian diet, to show respect for the life you took. You place flowers at the scene every year. You continue to experience guilt and remorse, but you recognise that nothing you can do or say is adequate to make up for the loss you have caused.
There has been considerable delay in this matter, and your offending occurred almost four years ago. A trial was listed in the County Court in 2020, but was one of many trials vacated due to the suspension of jury trials. You agreed to the matter being transferred to this Court in an effort to ‘fast track’ the case. The delay is relevant in two ways: first, you are able to show that in the years since the collision, you have remained in the community, worked hard and not reoffended. Secondly, you have had the anxiety and uncertainty of what will happen to you hanging over your head.
You are not an Australian citizen, and a criminal conviction places you at some risk of deportation. You have lived here for half your life, and Australia is your home. Your son, his mother and your current partner all live here. I do not know if you will or will not be deported, and there is no evidence or material that establishes deportation is likely. It is the prospect of deportation, in circumstances where you have made a life here, that is additionally punishing.[3] The weight to be ascribed to this factor depends in large part on whether you receive a custodial sentence, and if so, the length of that sentence.
[3]Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288, 294 [25].
You are a man of good character. Whilst good character is sadly common in these types of cases, it remains a factor which I must take into account in mitigation of penalty.[4] Prior to this offence, you had lived a productive, blameless life, and this weighs in your favour when sentencing you today.
[4]Papagelou v The Queen [2022] VSCA 53, [26].
Given your unblemished history and conduct since the offence, I find you have excellent prospects of rehabilitation. Specific deterrence, that is, the need to deter you personally from further offending, is not of significance when sentencing you today. General deterrence, however, is a significant sentencing factor. Driving a motor vehicle carries with it great responsibility, and all drivers must ensure that they are continually paying attention when driving. As this case shows, inattention can have catastrophic consequences.
Objective gravity and moral culpability
The offence of dangerous driving causing death was introduced in 2004, and in March 2008 the maximum penalty was increased from five to ten years’ imprisonment. It is now a Category 2 offence, however those provisions do not apply here, given the age of the offence.[5] Even before those changes, appellate courts had made clear that non-custodial sentences for this offence are exceptional, and available only in cases that fall at the lower end.[6] A custodial sentence will usually be appropriate, except in cases where the offender’s level of moral culpability is low.[7] The moral culpability of the driver is of central importance to the sentencing task.[8]
[5]In 2018 the offence of dangerous driving causing death became a Category 2 offence, effective from 28 October 2018. Therefore section 5(2H) of the Sentencing Act 1991 (Vic) is applicable to cases of dangerous driving causing death where the offence is committed on or after 28 October 2018.
[6]DPP v Neethling [2009] VSCA 116; (2009) 22 VR 466, 472 [29].
[7]Ibid 472 [30], citing DPP v Oates [2007] VSCA 59; (2007) 47 MVR 483, 487 [22], [25] (Neave JA) 488 [31], [33] (Warren CJ), 489 [38] (Nettle JA).
[8]Ibid 474 [38].
It follows that the objective gravity of your offending, and your moral culpability, are both of key importance when determining the appropriate sentence in this case.
Your counsel submitted that this was a case of ‘momentary inattention’ and falls at the lowest end for offences of this type. The prosecution submitted your offending was at the lower end, but not at the lowest end. This characterisation, be it lower or lowest, bears upon both moral culpability and the objective gravity of the offence. Translated into a submission on penalty, your counsel submitted that you could be dealt with by way of a Community Correction Order. The prosecution submitted the appropriate sentence was a period of imprisonment with a minimum term.
On the plea, the prosecutor conceded that the Court cannot make a finding, to the criminal standard, as to how many seconds you were inattentive for. Six seconds, being the combined period of the amber and red cycles of the vehicle traffic lights, is the ‘outer limit’ of inattention. However, trying to calculate the period of inattention is muddied by your vehicle braking, and not being able to say when the braking commenced. Nonetheless, the prosecution submitted this is not a case of ‘momentary inattention’, such as a split second decision to execute a U-turn, or the drifting of a vehicle across a laneway. Nor is it a case of ‘prolonged inattention’, such as inattention of 14.8 seconds prior to collision.[9]
[9]Lee v The Queen [2021] VSCA 156, noting the charge in that case was dangerous driving causing serious injury.
The prosecution referred me to the decision of Woldesilassie v The Queen[10] (‘Woldesilassie’) and submitted the circumstances are “broadly comparable”. In that case, the offender failed to stop at a red light that was applicable to his vehicle at an intersection. He struck two pedestrians who were crossing the road, killing one and seriously injuring the other. The pedestrians, who had the green ‘walk’ signal, had crossed three of the four lanes at the time they were struck. The offender was travelling in the left hand lane, and under the speed limit, as he approached the intersection. The traffic lights had changed from green to yellow 13.5 seconds before impact, and from yellow to red a minimum of 9.5 seconds before impact. There was no evidence of braking prior to the collision. The Court of Appeal described the offender’s inattention as “prolonged and extended”.[11] The offender had passed three vehicles that were either slowing down, or stopping, in the right hand lane, and the failure to notice the three vehicles “compounded” the offender’s culpability.[12] The Court of Appeal held the sentencing judge had correctly found that, while the offender’s culpability might be characterised as being of a low order, nevertheless it was not of such a low degree as would justify the imposition of a non-custodial sentence.[13]
[10][2018] VSCA 285.
[11]Ibid [37].
[12]Ibid [35].
[13]On the charge of dangerous driving causing death, the offender received a head sentence of 3 years 6 months’ imprisonment. The offender received a TES of 4 years 6 months’ imprisonment with a non-parole period of 3 years’ imprisonment.
Your counsel argued Woldesilassie is a more serious example of dangerous driving, and not comparable to the facts here. Your counsel referred me to a number of decisions where an offender has received a Community Correction Order for dangerous driving causing death.[14] I have read those sentences but will not summarise them here. The decisions were of some assistance, but each case ultimately turns on its own unique facts.
[14]R v Hackett [2021] VSC 773; Bell v The Queen [2018] VSCA 28; DPP v Cowburn [2019] VCC 1918; DPP v Mica [2021] VCC 1976; DPP v Demel [2015] 1735; DPP v Warrick [2016] VCC 1134; DPP v Kusen [2017] VCC 1971; DPP v Doughney [2019] VCC 1266; DPP v Calf [2020] VCC 353; DPP v Borg [2020] VCC 1218; DPP v Marlow [2021] VCC 956; DPP v Nasser [2020] VCC 1660; DPP v Georgiou [2021] VCC 2036.
Your counsel also provided the Sentencing Advisory Council statistics for this charge, dealt with in the higher courts between 1 July 2015 to 30 June 2020. Those statistics reveal that of 128 examples, 49.2% received a term of imprisonment, and 43.8% received a Community Correction Order.[15] Sentencing statistics have their place, but they also have substantial limitations. They say nothing about why a particular sentence was fixed; they disclose no details about the offence or the offender; and they tell the Court nothing about the circumstances of each individual case.[16]
[15]Sentencing Advisory Council, SACStat Higher Courts: Dangerous driving causing death, 1 July 2015 to 30 June 2020. Additionally, 4.7% received a Youth Justice Centre Order, 0.8% received a fine, and 1.6% received an adjourned undertaking/discharge/dismissal.
[16]DPP v Hill [2012] VSCA 144 at [46].
A person is guilty of dangerous driving causing death if, by their driving, they cause the death of another person, and the driving was “at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case”.[17] The driving must involve a serious breach of the proper management or control of a vehicle, so as to create a real risk that nearby members of the public would be killed or seriously injured. To be dangerous, the driving must have some feature which subjects the public ‘to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by a person who may, on occasion, drive with less than due care and attention’.[18] It is in this context that the phrase ‘momentary inattention’ must be understood. When describing the driving as being a case of ‘momentary inattention’, the inattention cannot be so fleeting that it would not be dangerous, or would be no more than careless. Measuring the period of inattention in seconds does not necessarily provide a complete answer as to whether, or to what extent, the driving is dangerous. For example, a period of inattention at very low speed on an empty road may be seen as less dangerous than the same period of inattention when driving in heavy traffic at 100 kph. It is necessary to look at all of the circumstances of the driving.[19]
[17]Crimes Act 1958 s 319.
[18]Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572, 579.
[19]See, eg, DPP v Janson [2011] VSCA 19; (2011) 31 VR 222, [17], where Nettle JA held that a period of inattention of between 9.8 and 10.8 seconds cannot rationally be described as a ‘very short period of inattention’ in relation to ‘the control of a vehicle the weight and size of a Kenworth prime mover and trailer travelling on a major road in a built-up are in the known vicinity of controlled intersections at a speed of approximately 70 kph’.
Traffic lights are designed such that they do not change instantly. They cycle through amber before turning red, and are red for a time before the opposing light (here, the pedestrian light) turns green. In this case, the vehicle lights were amber for four seconds and red for two seconds before the pedestrian lights turned green. At the time Jack was struck by the front passenger side of your van, the other two children were nearing the centre of the road, meaning at a minimum, another one or two seconds must have passed. Immediately prior to applying your brakes, you were not driving with proper care and attention in a built up area, at a time when it was dark and when other road users and pedestrians were in the vicinity.
The road surface was wet and your vehicle did not have ABS brakes, meaning once your brake had locked, you could not steer. Expert evidence established that your wheels had locked due to the emergency braking prior to your vehicle reaching the pedestrian crossing. Significantly, the prosecution concede that they cannot say when you applied your brakes. The Summary of Prosecution Opening stated:
As the prosecution is unable to establish precisely when the offender commenced braking, and for what period of time prior to the collision the traffic lights would have been visible to him, the prosecution cannot establish with precision how long the offender was inattentive for prior to the collision. However, had the offender been driving with proper care and attention, he should have been able to respond to the traffic lights and safely stop.
In other words, the prosecution cannot say at what stage you observed the traffic lights and commenced braking, and therefore cannot establish with any precision the period of inattention.
I find the following factors are relevant when assessing the seriousness of your offending:
·You failed to pay sufficient attention for a low number of seconds. I am deliberately not being precise as to the number of seconds because the evidence does not allow me to be, but I am dealing here with a very short period of inattention.
·You commenced braking prior to entering the pedestrian crossing, but were unable to stop in time.
·The pedestrian crossing was clearly marked and there were four red lights facing you. You went through those red lights.
·It was dark and the road surface was wet. Both those factors demand that drivers drive more carefully, not less.
·Anyone on that crossing was placed at great risk, as pedestrians are the most vulnerable of all road users. The number of persons placed at risk include Brina and Stephanie, as they were also on the pedestrian crossing.
There is no dispute that your offending is properly characterised as being at the lower end for offences of this type. In my view, to try and label your offending further is unproductive, as it is not a matter of “exactitude or precision”.[20] Less serious examples can be found, and more serious examples are very common. In my view, the offending in Woldesilassie is a more serious example. In Woldesilassie there was evidence of an extended period of inattention; the offender did not brake prior to the collision; and as he approached the intersection, he passed three slowing or stopping cars. Here, there was a very short period of inattention, and you had braked prior to reaching the pedestrian crossing. In all the circumstances, I find your moral culpability is low. There is nothing that elevates your blameworthiness. You were within the speed limit, your vehicle was roadworthy, you were not fatigued and you had not been observed prior to the collision driving in any way that could be considered unsafe. You were not affected by drugs or alcohol, and you were not using your mobile phone.
[20]Woldesilassie [2018] VSCA 285, [30].
Sentencing
This crime is one where there is no mens rea, or no intention to kill or injure or otherwise cause harm. For this reason, sentencing is often very difficult, and this case is no exception. There are powerful matters in mitigation. However, you have committed a serious offence, with devastating and tragic consequences. A child has lost his life, and his family and friends are grief-stricken. General deterrence and adequate punishment must be given considerable weight when sentencing for this offence. All drivers need to understand that they must, at all times, pay due care and attention to their driving. The result of even a very short period of inattention, as this case demonstrates, can result in tragedy for other road users. Driving on our roads demands that drivers must be continually focussed, cautious and attentive.
I had you assessed for a Community Correction Order and, unsurprisingly, you were assessed as suitable and the report was positive. You were assessed as being a low risk of reoffending. You expressed considerable remorse during the assessment, and repeated that you are responsible for the loss of a life. A number of conditions were recommended, including unpaid community work and engagement with Road Trauma Support Services Victoria, who deliver driver education programs.
I must have regard to s 5(4) of the Sentencing Act 1991 (‘Act’), which reflects the principle of parsimony: put simply, I must not impose a sentence of imprisonment unless I consider that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve sending you to prison.
The purposes of sentencing frequently pull in different directions, as they have in this case. I have given the matter anxious consideration. Ultimately and in all the circumstances, I have concluded that there is an alternative to imprisonment that is capable of satisfying the requirements of sentencing, including general deterrence and punishment.
On the single charge of dangerous driving causing death, you are convicted and sentenced to a Community Correction Order for a period of three years.
Together with the mandatory conditions that I will not read out, I impose the following conditions:
· You are to perform 300 hours of unpaid community work over 36 months as directed. Pursuant to s 48CA, hours successfully undertaken for treatment and rehabilitation are to be credited as hours of unpaid community work;
· You are to undergo any other program, course or treatment as directed; and
· You are to undergo mental health treatment and rehabilitation as directed.
I confirm you have consented to the Order.
If you breach this Order, either by non-compliance or further offending or both, you will be brought back before me on the breach. Depending on the nature of the breach, you may find yourself being resentenced for this offence. Driving without a licence – and I am about to take your licence – would breach this Order. If that were to happen, you will be back before me, and you may find yourself being sentenced to a term of imprisonment.
Dangerous driving causing death is a ‘serious motor vehicle offence’ as defined in s 87P(d) of the Act. Pursuant to ss 89(1)(a) and 89(2)(a), I must cancel any licences or permits held by you, and disqualify you from obtaining any further permits or licences for a period of not less than 18 months. This is a lengthy period, and given your lack of prior convictions, together with the other matters in mitigation I have been through, I will not exceed that period. All permits and licences held by you are cancelled and you are disqualified from obtaining any further ones for a period of 18 months from today.
As I have imposed a CCO for more than two years’ duration, I must state pursuant to s 6AAA that but for your plea of guilty, I would have sentenced you to two years ten months’ imprisonment and I would have fixed a non-parole period of twenty months’ imprisonment.
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