DPP v Cook [2020] VCC 1172

3 Your victim, Mr Zeeshan Burhan, was driving his Suzuki sedan south along Springvale Road in Nunawading, where the permissible speed limit is 80 kilometres per hour. Mr Burhan was travelling at about 70 kilometres per hour in the middle of three lanes, and indicated to move into the lane to his right. As he was doing so, the Holden utility, which was being driven by you at a very high speed in that lane, collided with the front passenger corner of Mr Burhan's car, causing it to spin uncontrollably to the left across all three lanes. It struck the kerb and then flew through the air. The front of his car hit a tree on the nature strip and, then, its rear went through the front fence of a residential property.

4 Following the impact, your vehicle also spun uncontrollably across all three lanes, and its driver's side struck the same tree before coming to rest, partially on the nature strip and partially in the far left lane, facing the wrong way.

5 The basis of the charge of criminal negligence to which you have pleaded guilty is your excessive speed, your driving skills being adversely affected by alcohol, and your erratic driving, which, at times, in the lead-up to the collision, involved cutting across all three lanes and cutting across the paths of other vehicles. Detective Sergeant Robert Hay, of the Collision Reconstruction and Mechanical Investigation Unit of the Forensic Services Department, calculated your speed 2.5 seconds prior to impact to be 168 kilometres per hour (km/h), 1.5 seconds prior to impact to be 172 km/h, and 0.5 seconds prior to impact to be 157 km/h. His expert opinion is that you applied your brakes only 1 second before colliding with Mr Burhan's car.

6 You were uninjured in the collision and, almost an hour afterwards, at 8.32pm, were found to have a blood-alcohol reading of 0.17 grams of alcohol, over twice the legal limit.

7 Mr Burhan was taken by ambulance to the Royal Melbourne Hospital with a complex constellation of injuries. They included cardiovascular problems which had caused his blood pressure to drop at the scene of the collision, a variety of soft-tissue injuries, bone fractures, and internal injuries, which are detailed in the Prosecution Opening. On arrival at Royal Melbourne Hospital, he underwent specialist emergency surgery for a large perforation of the stomach and intestines, which had caused abdominal wall inflammation from leakage of gastrointestinal content into the abdomen, along with other complicating internal injuries, including bilateral bruising to the lungs, together with fluid accumulation and collapse of lung tissue. He underwent a laparotomy, which involved opening his abdominal cavity and removing parts of the stomach and inserting a drain tube, together with a complex stomach bypass procedure.

8 Mr Burhan also suffered a complicated left wrist fracture, a complicated unstable spinal bone fracture at the lumbar level, and fractures of his right big and second toes. On 12 January 2019, he underwent further surgery. This involved a spinal bone fusion at T12, L1 and L3. It also involved open reduction and internal fixation of his left wrist using metal wire, plate and screw implants. In addition, a nasogastric tube was inserted to provide for nutrition and a stiff neck collar was applied for spinal neck protection.

9 Mr Burhan remained in intensive care for five days. Ultimately, after 14 days in hospital, he was transferred to South Eastern Private Rehabilitation Centre, where he remained for the next 4 months up to 30 May 2019. By this date his mother's visa had been approved, enabling her to come to Australia from Pakistan to assist with his rehabilitation. He attended two further weeks of outpatient rehabilitation before flying back to Pakistan in mid-June 2019 to continue his recovery with the assistance of his family.

10 Dr Jason Schreiber, forensic medical practitioner, in a report dated 3 June 2019,[1] expressed the opinion that Mr Burhan's injuries were severe and required emergency life-saving surgeries, without which he would have died. Whilst in hospital, Mr Burhan experienced significant ongoing pain issues, as well as suffering Post-Traumatic Stress Disorder with panic attacks, nightmares and flashbacks requiring psychiatric and psychological treatment. He required potent painkillers, antibiotics, medication to prevent blood clots and anti-anxiety medications, as well as receiving physiotherapy, occupational therapy, and assistance from a social worker. Dr Schreiber stated that Mr Burhan is at risk of psychological problems in the future, and at high risk of digestive problems. He is also at risk of ongoing impaired functioning and pain to the back, wrist and foot, impacting on his work and social life. He stated that Mr Burhan had sustained serious life-threatening injury.

11 You are presently aged 30 years, having been born on 13 August 1989. You come before the court with a limited criminal history relating to one court appearance at Sale Magistrates' Court over 12 years ago. On 22 July 2008, you came before the court on one charge of being drunk in a public place. You were convicted and discharged. At that time, you were 19 years old and there are no other prior or subsequent offences alleged against you.

12 In a plea on your behalf by Mr Lewin, the court was told that on the day of your offending you had had an argument with your then girlfriend. This was a troubled relationship as she had mental health difficulties and you, over the years, had battled with a dependence on alcohol albeit that you had had significant periods where you were totally abstinent. Prior to the date of the collision, you had not drunk any alcohol for approximately two and a half months. However, in an angry and emotional state following the argument with your girlfriend, you drove to one hotel, where you drank alcohol, and, then, to another hotel, where you drank more alcohol. You then got into your car whilst affected by alcohol and drove erratically and at high speed, and collided with your most unfortunate victim.

13 Mr Lewin pointed to your cooperation with police when interviewed and your early plea of guilty at the committal mention on 13 January 2020, at which date you made a conscious decision not to apply for bail in order to be remanded in custody to commence your punishment. He submitted that these circumstances, coupled with other material from psychological reports and personal references tendered on the plea, indicated that your plea has not only utilitarian benefit but, also, is an expression of remorse entitling you to a significant discount on your sentence.

14 In addition, your counsel relied upon you having strong supports in the community, a good employment history and a preparedness to embark upon rehabilitation. He submitted that, in all the circumstances, it is unlikely that you would offend in this way again.

15 Tendered as Exhibit "1" at the plea hearing was a report of an assessment by Mr Ian Mackinnon, psychologist, dated 25 June 2020. Mr Mackinnon noted that you had been raised by your biological mother after your father abandoned your mother and you and your three siblings when you were aged approximately three years. Some years later, when you were aged approximately eight years, your mother established a relationship with a man who became physically and emotionally abusive to you, your brother and your mother. Mr Mackinnon noted that you still feel angry with your father for not protecting you and the family. Your father has lived in the United States for a long time and you have had no contact, at all, with him for about six years.

16 The relationship between your mother and your abusive stepfather ultimately broke up and, when you were aged approximately 16 years, your mother re-partnered with another man, which has been a stable relationship to the present time. They have two daughters, who are your half-sisters. You have a good relationship with your mother, who works as a nurse, and also with her partner.

17 You grew up in the Gippsland area and completed Year 12 at Sale Secondary College, after which you and your girlfriend moved to Melbourne. You told Mr Mackinnon that you found employment "at random jobs" such as call centres, and "got drunk for three or four years." You described yourself as having been mixed-up, and told him that you had separated from your girlfriend when you were aged 20 years. At age 23, you enlisted in the Australian Defence Force and became a military policeman for three years, following which you found casual employment as a residential care worker with the Berry Street Program for children with special needs. Whilst undertaking such work, you completed a Nursing Diploma Program and, in 2016, became qualified as an Endorsed Enrolled Nurse. You then worked in general nursing for two years. Subsequently, you moved to work in the Adult Inpatient Psychiatric Unit with Bendigo Health, where you were employed at the time of this offending.

18 Prior to the collision, alcohol had been a big part of your life as you had commenced consuming it regularly when you were 15 years old. You told Mr Mackinnon that you "drank to try not to feel the way I was feeling", and noted that you had seen a number of counsellors and psychologists and a psychiatrist over the years and had been on antidepressant medication for some five or six years prior to the collision.

19 Mr Mackinnon diagnosed you as suffering a longstanding complex Post-Traumatic Stress Disorder, which is a form of Post-Traumatic Stress Disorder that arises in response to multiple (often developmental) traumas, rather than one acute event. He considered that the primary factors contributing to your Post-Traumatic Stress Disorder had been your abandonment by your biological father and the emotional and physical abuse from your stepfather. Mr Mackinnon stated that you suffered subsequent exacerbations from "highly distressing experiences and vicarious trauma arising in the context of [your] work as a military policeman, as a residential healthcare worker with disturbed and challenging youth and as a nurse in the mental health system."

20 Mr Mackinnon did not record details of your traumatic experiences whilst you were working as a military policeman. However, both at Berry Street and later whilst working in an adult inpatient psychiatric unit, you dealt with people who had a lot of mental health issues and who engaged in self-harm and attempted suicide. You considered that you took on a lot of people's problems as you wanted to help them and make a difference, but would then use alcohol as an escape.

21 Mr Mackinnon considered that you had a strong tendency to identify and feel empathy with other individuals who were also chronically troubled and distressed, and that had played a factor in your choice of vocation as well as in your attraction to intimate partners, including the partner with whom you had argued prior to the subject offending. Apparently, she had been diagnosed with Borderline Personality Disorder and was seeing a psychiatrist every week to receive medication, but she also smoked cannabis. Thus, you were dealing with trauma at work and in your intimate relationship, and he considered that this contributed to you drinking more.

22 You told Mr Mackinnon that you had been on anti-depressants for 5 or 6 years before the offending and had seen a few counsellors, psychologists and a psychiatrist. Also, you had been prescribed Valium in order to try to stop drinking alcohol, although you had not taken Valium on the day of the collision. You stated that, in the 10 months prior to the collision, you had only drunk alcohol twice, approximately two and a half or three months before the collision, and on the day of the collision itself.

23 Following the collision, you struggled psychologically and, on 27 November 2019, you attempted suicide and were admitted to Bendigo Hospital. On 5 December 2019, you saw a psychologist, Mr Tim Smyth, for three consultations from 5-19 December 2019, with a history of alcohol dependence and clinical depression.

24 Mr Mackinnon formed the view that you, yourself, "[s]truggle with many symptoms and behaviours associated with Borderline Personality Disorder - including a tendency for suffering, self-harming and suicidal ideation, identity insecurities, chronic interpersonal relationship difficulties and general life instability." However, he considered that you possessed considerable ability to ameliorate these problematic tendencies and, hence, do not appear to suffer with an entrenched Borderline Personality Disorder. In his view, also, you do not have entrenched antisocial and criminal tendencies. In particular, he noted your very minor prior criminal history and no history of behaviour that was violent, dishonest or involving offences against property or drug trafficking. He noted that you had a long history of legitimate employment, and that you apparently enjoy good relationships with several family members and appear to be generally wracked with guilt about this offending.

25 Mr Mackinnon considered that, given your longstanding complex Post-Traumatic Stress Disorder, probably you had not been psychologically well enough to work as a military policeman, residential care worker with damaged youth, or mental healthcare nurse. He thought that these roles probably further damaged you psychologically and complicated your longstanding Post-Traumatic Stress Disorder and maybe you should not return to that type of work. He also considered that you would be well-advised to be very careful about the type of person with whom you form an intimate relationship, as you are not well enough to deal with individuals who present with Borderline Personality Disorder or other significant psychological difficulties. He considered that you were likely to benefit from long-term psychological therapy and pharmacotherapy. He did not believe that you needed to engage in substance abuse treatment, but would probably benefit from participation in road trauma awareness or alcohol awareness seminars.

26 Mr Cook, the material before me indicates that you do understand the gravity of your offending. The charge to which you have pleaded guilty punishes conduct that, if Mr Burhan had died, would have constituted manslaughter by criminal negligence. The photographs of the mangled mass of metal that had been Mr Burhan's car before this collision might cause one to think that it was a miracle that Mr Burhan was not killed. Indeed, the massive damage to your utility might cause one to think it extraordinary that you, too, were not killed in this horrific collision caused by your erratic, alcohol-fuelled driving at an insane speed.

27 It is hard to know how members of the community do not absorb the message that, if they are emotionally distressed or angry, and particularly if they are affected by alcohol, they should never get behind the wheel of a car to drive. The Transport Accident Commission has had powerful advertisements on television for four decades which highlight the awful consequences of irresponsible driving behaviour. The TAC slogan "If you drink, then drive, you're a bloody idiot" has become part of our vernacular, but still people like you do not heed the basic message. For this reason, in sentencing you the court must denounce your offending conduct and place emphasis upon general deterrence. What that means is that, in imposing the sentence for your offending, the Court must send out a message to the community, yet again, that where a person drives their vehicle in a way that falls so greatly short of the standard of care which a reasonable person would have exercised and causes serious injury, that will not be tolerated by our community and just punishment will be imposed in order to protect other road users.

28 As has been correctly pointed out by Ms Malobabic for the prosecution, your driving which caused the collision was not due to a momentary lapse of attention. You had been drinking for a number of hours before making the decision to get into your car to drive. You were observed driving erratically and cutting off other cars and cutting across lanes, and driving at a high speed leading up to the collision. Your blood alcohol level about one hour after the collision was over double the legal limit, and your speed was over double the legal speed limit at the point where the collision occurred. There was no evidence that you steered your vehicle to avoid the impact, and apparently your brakes were only applied one second before the impact occurred. This combination of factors involves a very serious departure from the standard of care required of a driver and, thus, your moral culpability is high.

29 The impact upon Mr Burhan has been truly devastating, as outlined in his Victim Impact Statement, dated 30 June 2020, which was tendered as Exhibit "B". I will not revisit every portion of that statement, but it is a poignant record of the intense physical, psychological and financial suffering which your offending inflicted upon an innocent young man.

30 Mr Burhan was 23 years old and had already completed an Undergraduate Degree in Pakistan. He came to Australia in 2018 on a student visa and was undertaking a Masters Degree of Professional Accounting and International Finance at Deakin University. He supported himself as a student by working as a delivery driver for "Menu Log". He was travelling within the speed limit and wearing his seatbelt as he drove to deliver food to a customer, when you, by your appalling driving, negligently caused him serious injuries.

31 As I have previously mentioned, he described that he spent five months as an inpatient in terrible pain. He was isolated and lonely because he had no family members in Australia to support him. He suffered depression and anxiety, and was diagnosed with Post-Traumatic Stress Disorder. He underwent multiple surgeries to various parts of his body to which I have previously referred, and a very lengthy period of rehabilitation involving physiotherapy and a substantial amount of medication. A recent report from his general practitioner, Dr Khan, dated 8 July 2020 (Exhibit "D"), notes that he has undergone another operation on his left wrist recently.

32 In his Victim Impact Statement, Mr Burhan notes that he is still on a significant regime of painkilling medication each day, along with medication to help his suicidal thoughts. He still feels very anxious and depressed, scared of driving, and suffers interrupted sleep with bad dreams. He suffers problems with his memory, which impact upon his everyday life and his studies. He finds that he is unable to remember numbers and formulas, which are crucial to his goal of becoming an accountant. For this reason, his medical advisers have told him that he should stop studying accounting and finance. He was unable to continue with his studies in 2019. This year, he enrolled in two units to try to continue his course but, apart from his memory problems, found it difficult to sit for more than 20 minutes because of his spinal fusion. He was unable to finish one of his exams and has now failed two units, which resulted in financial loss of $10,000 in course fees paid by him.

33 He now feels as though he is in limbo whereas, had he not been injured by your negligent driving, he would have completed his course by now and most likely been on his way to having a promising and rewarding career as an accountant.

34 His physical limitations make it difficult for him to bend, push and lift, and impact on everyday activities, including his ability to undertake his regular Muslim prayers in the usual way, attend to his home and garden, and be the active husband and father of a young baby that he would like to be.

35 Prior to the collision, Mr Burhan had been a fit and active young man who enjoyed playing cricket and other sports. He had planned a trip to Thailand to engage in skydiving, kayaking, mountain biking and other active adventure sports. He is now unable to participate in any of these activities. He lacks energy and has lost weight and body structure because his stomach surgery has affected his eating capacity and digestion. The injury to his wrist causes him difficulties with his own showering, dressing and self-care, as well as the care for his baby. It is now over one and a half years since the collision, and he still often has medical or psychological appointments every second day of the week.

36 Dr Khan, in his most recent report, confirms that Mr Burhan's mental health has been severely affected. His mood is low, he lacks motivation, is unable to concentrate, and has problems remembering things. He states that it is very hard to comment about his prognosis at this stage, and that he will be reviewed again in three months to assess his capacity to work and study. In sentencing you, these very serious consequences to your victim must be taken into account.

37 From the material put before me at the plea hearing, I have no doubt that you are a fundamentally decent and caring person. This comes across in the many references which were tendered on your behalf from family and friends (Exhibit "3"). Except for a minor infraction of the law, now many years ago, you have led a blameless life. Unhappily, quite a significant number of people who cause serious injury through grossly negligent driving are of previous good character. As the offence that you have committed is prevalent and causes such harm, the principles of denouncing such conduct and generally deterring others from it, must outweigh the weight to be given to your former good character. That does not mean that no weight is attached to it. It is a question of balancing out the relevant sentencing considerations.

38 In sentencing you, I do take into account that you have had a background of disadvantage in that your father abandoned you when you were of tender years, and you then suffered emotional and physical abuse over a number of years from a stepfather. The law acknowledges that this type of trauma, in one's formative years, can have enduring adverse effects. It is thus appropriate to give weight to your background of deprivation in sentencing you.[2]

39 I accept the analysis of Mr Mackinnon concerning the impact of this childhood trauma. I note that from the age of 16 years, you were without any effective parental supervision, which resulted in early inappropriate dependence upon alcohol and a series of jobs which involved traumatic experiences. I accept that these factors have all contributed to a longstanding complex Post-Traumatic Stress Disorder which, in turn, seems to have perpetuated your maladaptive reliance upon alcohol.

40 Having said that, I note that one of your references is from Mr Jeff Farrell, who mentions that he met you at an AA meeting in Glen Waverley some three to four years ago, but he did not see you again until you contacted him in mid-2019 after you had committed this offence. So, although you apparently recognised your need to address your alcohol dependence, you nevertheless did not follow through with any strategy to ensure that this occurred. You have clearly struggled with a dependence upon alcohol over quite a number of years, although it seems that you have been capable of abstaining from consuming alcohol for months on end at various stages over the years. It is particularly noteworthy that, notwithstanding your problems with alcohol, you have no prior history of alcohol-related driving offences or, indeed, any other driving offences. This is an indication to me that you are not an habitually irresponsible person. It is to your credit that you recommenced attending AA meetings in the second half of 2019 and abstaining from alcohol, and that you did seek some counselling with Mr Tim Smyth prior to making the decision to commence undertaking your punishment by being remanded in custody on 13 January 2020. It is also to your credit that, after being remanded in custody, you continued to attend AA meetings every Thursday night at Fulham Prison.[3]

41 I am satisfied that you have many good qualities. It is clear that for a period of three and a half months, from 1 September 2016 to 14 January 2017, you undertook the full-time care of your sister's five children, who were aged from 6 to 13 years, while your sister undertook some form of rehabilitation. This is confirmed by a letter from the Department of Health and Human Services (Exhibit "6"). The many references tendered on your behalf speak of your kindness and good moral compass and ability to make people feel good about themselves. You are variously described as a genuinely good person and a hardworking, generous, helpful and compassionate person, who is always wanting to help others. This is perhaps demonstrated by the residential care and nursing jobs that you have undertaken.

42 Further, notwithstanding your problem with alcohol, you have a very good work history. There are references from people who have worked with you who speak highly of your reliability and competence in challenging situations. These character traits and good work history bode well for your rehabilitation. I accept Mr Mackinnon's assessment that you do not have entrenched antisocial or criminal tendencies, and that your long history of legitimate employment and good relationships with others are also strong factors in favour of your rehabilitation. I also agree with Mr Smyth's observation that the fact that you have achieved periods of sobriety in the past demonstrate that you are capable of change.

43 Finally, I accept without hesitation that you are truly and deeply remorseful for the pain and suffering that you have caused to Mr Burhan. This was evident in your cooperation with the police when you were interviewed very soon after the accident. On the evening of the accident, you readily acknowledged that you had been drinking alcohol at two separate hotels, and that you were travelling over the speed limit immediately before the collision.[4] After that interview was suspended, you were reinterviewed the following morning and, again, you gave frank, cooperative answers to police to the best of your ability. You stated that you believed that you may have been over the legal blood alcohol limit when you left the first hotel but still decided to drive.[5] You readily acknowledged that, given your blood alcohol content, your driving would have been impaired.[6] You were honest in admitting that you really were not in "a good head space" that evening,[7] and that you had had an argument with your partner which resulted in you going to the pub, and that you had not eaten anything all day.[8] You acknowledged that your drinking was the cause of the collision because it affected your driving and your reaction time.[9] You conceded that the fact that you had not eaten all day and had not had an alcoholic drink in two and half months probably reduced your tolerance for alcohol. You volunteered that your drinking and then driving was extremely careless.[10] At the time of your second record of interview, you were unaware of what injuries had been suffered by Mr Burhan, but volunteered that you wished to say sorry to him.[11]

44 Your cooperation during your records of interview was followed up by your plea of guilty at the earliest opportunity. I accept that it has high utilitarian value in facilitating the course of justice, and saving the State the cost of a trial and your victim the trauma of giving evidence and, also, that it is a plea which evinces heartfelt remorse to an almost self-flagellatory degree. Your remorse is demonstrated by you describing to your psychologist, Tim Smyth, an "ongoing intense and agonising shame and guilt for the pain and suffering [you] had caused due to the accident, which [you] said [you] relived daily".[12] These feelings culminated in what, in my experience, is an unusual situation of you completely accepting responsibility for your offending and demonstrating a willingness to be punished for it, by not seeking bail at the committal mention when you indicated your intention to plead guilty, but rather surrendering yourself into custody.

45 Mr Mackinnon assessed you as appearing "to genuinely be wracked with guilt". He reported that you had stated:

"The accident, I really do think about it. I've always tried to live my life helping people. I find it hard to digest the fact that I've put this person [the victim] through this. I've changed his life forever, hurt someone else. He was just driving to deliver Uber Eats. I've looked after people who've had bad accidents. To think that I've caused that to someone ... I don't know how the victim is now, how it's affected him and his family ..."

46 Similarly, the references tendered on your behalf variously speak of your strong sense of contrition. One mentions that you are "riddled with an enormous sense of guilt and remorse" and your "strong awareness of the impact of [your] actions ... influenced [your] decision to revoke [your] bail and surrender [yourself] early to the judicial system".[13] Another describes you being "unable to move past the trauma of what [you] did and [decide you] would prefer to be incarcerated as you knew you would be anyway".[14] Another states that you had talked about your remorse "and even written a letter to [your] victim to express [your] sincerest apology, even though, you, knew an apology might not be enough".[15]

47 A further reference details how you had spoken of having badly hurt a young man, and you began drinking again and were caving in under the guilt of what you had done. You spoke about the man you had hurt and wondered whether you had ruined the man's life. The author of this reference, Brenda Fenton, states:

"I have never seen guilt overwhelm someone like that before ... He so badly wanted to know how the young man was and battled with how he could show that he was sorry. When he decided to revoke his bail he was relieved ... I could see that he found a way to take a step in the right direction to make amends ... He doesn't deny the severity of what he's done and he wants to try [to] to right his wrong however he can".__[16]

"He knows that his actions were not ok. There were many long nights staying up comforting Jared as he lay in sadness and remorse. I know Jared feels for Zareetha [sic] each day and would take his pain away tomorrow if he could."__[17]

"Jared remains consumed with guilt and regret for the devastation he had caused to the victim. The accident has hit him to the core of his existence, the guilt and grief he feels for inflicting physical and emotional pain is so contrary to Jared's beliefs, self-worth and values as a caregiver (nurse) and man. Over the 11 months after the accident Jared's life began to unravel, struggling with his mental health, financial disaster, alcohol abuse and loss of his long term relationship."

She goes on to describe how you attempted suicide, but did seek help, and ultimately chose to forfeit your bail conditions.[18]

50 In my view, there is before the Court a very solid basis for finding that you are deeply remorseful, and this is also expressed by you in a letter addressed to the victim, which was tendered as Exhibit "8". This was written on 13 January 2020, the day upon which you surrendered yourself into custody rather than applying for bail. This is an impressive letter, which demonstrates empathy with your victim for the shock and hurt you have caused him. It is a very sincere acceptance of responsibility for failing in your duty of care towards him because of your own stupid mistakes. You state that you are sorry, and that you know that these words cannot change his pain and that you want him to know that you mean what you say because you think about him every day and hope that his life is improving. You express your hope that he can get all the help he needs for his recovery, and that he can have a happy life. You conclude by stating "I promise that I will do everything I can to help prevent this happening to others, I truly mean that".[19]

51 The material to which I have referred shows poignantly the tragedy of grossly irresponsible driving. On the one hand is an innocent young man diligently pursuing vocational qualifications in a foreign country and working in a menial job to support himself, who suddenly finds his physical and mental health seriously impaired, his daily life very difficult, and his future uncertain. On the other hand is you, a fundamentally good person who, through gross negligence, has not only had such a destructive effect on Mr Burhan's life, but also your own through being wracked with guilt and suffering an inevitable significant sentence of imprisonment. Your tragedy is summed up in a similar way in a number of the references but, perhaps, most aptly, in that of your brother, Wade Cook, who states "Jared is a caring, loving and intelligent person who has made a horrible mistake".[20]

52 Your counsel has conceded that the seriousness of your offending means that the only appropriate sentence is a term of imprisonment. This is so because of the emphasis on denunciation, general deterrence, just punishment and the protection of the community. However, your early and sincerely contrite plea of guilty entitles you to a high discount upon the sentence which otherwise might have been imposed. I have placed considerable weight upon this factor in arriving at the length of the term of imprisonment, being conscious that in recent years the Court of Appeal has indicated a need for uplift of sentences for this offence in the upper end of seriousness.

53 The other factor upon which I place emphasis in sentencing you is your prospects of rehabilitation, which I consider to be very good. Although you have had a problem with alcohol dependence for some time, it has not previously resulted in repeated serious infringements of the law. You have taken this very serious infringement to heart and have taken steps to address your alcohol abuse, both prior to and since being taken into custody, even though you have been suffering from previously undiagnosed complex Post-Traumatic Stress Disorder and depressive symptoms which require ongoing daily medication by way of Fluoxetine (an antidepressant) and Neulactil an antianxiety/antipsychotic).

54 Prior to going into custody, you had enrolled in and completed the first year of a Bachelor of Nursing course at Charles Sturt University, but have been unable to continue this in custody. Nevertheless, you have used your time profitably in custody to enrol in a business and information technology course at Kangan TAFE, as well as attending AA meetings. These factors, together with your former good work record and support from family and friends have been taken into account by me in arriving at my belief that you have very good prospects of rehabilitation.

55 I am conscious that, as a person who has had no contact with the criminal justice system other than your minor infraction when you were aged 19 years, a criminal milieu is unfamiliar to you, and your first time in custody, serving what will be a substantial sentence, is something which will be hard for you.

56 Although Mr Mackinnon has expressed the view that you appear "likely to cope well enough in the prison environment", I consider that your psychological vulnerabilities and your mental health conditions, which require medication and have necessitated weekly psychological counselling, will make serving a term of imprisonment more onerous than for someone without those problems.

57 I am particularly conscious that the conditions for all prisoners during the COVID-19 pandemic have been more onerous because of less out of cell time in order to facilitate social distancing, a very significant reduction in the availability of rehabilitative programs, and the suspension of all personal visits since March 2020. In addition, I am aware that Fulham Prison is one of a number of prisons that had total lockdown of prisoners confined to their cells for 23 hours on a number of days during the pandemic, most recently from 21 to 24 July.

58 Unhappily, as at the date of sentence, the state of the pandemic in the Victorian community is very concerning. The stage 3 restrictions were reimposed in early July for a period of six weeks, and recent spikes in the number of coronavirus cases have resulted in even greater stage 4 restrictions being imposed recently. It is difficult to know when there will be any degree of normality returned to enable prisoners to have visitors again and to resume undertaking programs. Doing the best I can, I have made some allowance for the more onerous conditions of imprisonment during the pandemic, whilst appreciating that it is difficult to have any certainty about the duration of such conditions.

59 On one charge of negligently causing serious injury, you are convicted and sentenced to be imprisoned for a period of five years and three months. I direct that you serve a period of three years and eight months before becoming eligible for parole. I declare a period of 205 days pre-sentence detention to be time reckoned as already served under the sentence imposed this day.

60 Pursuant to s6AAA of the Sentencing Act 1991, I state that were it not for your plea of guilty the total effective sentence imposed would have been seven years and three months' imprisonment with a non-parole period of five years and five months.

61 The charge of negligently causing serious injury is a serious motor vehicle offence pursuant to s87P(b) of the Sentencing Act. As you have been convicted of that offence, a court must cancel your licence and disqualify you for a period of time of not less than 24 months pursuant to s89(2)(b) of that Act. Accordingly, I order that your driver's licence is cancelled and that you are disqualified from obtaining another licence for a period of two years commencing upon the date of your release from custody.

62 Pursuant to s89C(1), this Court makes a finding that the offence of negligently causing serious injury was committed while you were under the influence of alcohol, which contributed to the offence.

63 Mr Cook, I know this is a difficult time for you. The Court sincerely wishes you well with your rehabilitation.

[2] Bugmy v The Queen [2013] HCA 37, [43] and [44]

[4] Record of interview on 10 January 2019, Q&A 40-41

[5] Record of interview on 11 January 2019, Q&A 128-131

[6] Record of interview on 11 January 2019, Q&A 151-152

[7] Record of interview on 11 January 2019, Q&A 129

[8] Record of interview on 11 January 2019, Q&A 220 and 227

[9] Record of interview on 11 January 2019, Q&A 243-245

[10] Record of interview on 11 January 2019, Q&A 260-266

[11] Record of interview on 11 January 2019, Q&A 315-316

[13] Reference of Lisa Baxter dated 26 June 2020, part of Exhibit "3"

[14] Reference of Jeff Farrell dated 25 June 2020, part of Exhibit "3"

[15] Reference of Adam Douthat, part of Exhibit "3"

[16] Reference of Brenda Fenton dated 1 June 2020, part of Exhibit "3"

[17] Reference of Emma White dated 27 April 2020, part of Exhibit "3"

[18] Reference of Karen Devisser dated 20 April 2020, part of Exhibit "3"

[19] Letter from the offender dated 13 January 2020, Exhibit "8"

[20] Reference of Wade Cook dated 25 May 2020, part of Exhibit "3"