DPP v Elliot [2025] VCC 1472

1. The facts upon which the jury found their verdict may be briefly stated.
2. On 12 January 2022, you were driving your 2019 Nissan Patrol station wagon north on Williams Road, Blackburn North, at about 4:45 pm. Williams Road terminates in a T-intersection with Springfield Road. Springfield Road runs

east-west. The intersection is controlled by traffic lights. 3. You were stopped at the red light at the Williams Road intersection, intending to turn right (that is, east) into Springfield Road. On the east side of the intersection (that is, to your right), a pedestrian, Mrs Shumei Wang, stood waiting to cross from south to north onto Springfield Road. 4. The traffic control signal that faces vehicles on Williams Road also operates a pedestrian walking signal. The green pedestrian walking signal runs for eight seconds. A flashing red symbol runs for eight seconds, followed by a steady red symbol. At the same time, an illuminated flashing 'give way to peds' sign facing vehicles on Williams Road was operated. The traffic control signals for vehicles on Williams Road change to green to permit vehicles to turn into Springfield Road. 5. CCTV footage depicts Mrs Wang pressing the pedestrian walk button and waiting stationary at the south-east corner of the intersection to cross north onto Springfield Road. She was stationary at the corner for about 25 seconds. 6. The CCTV footage further depicts you stopping as the first vehicle in the right turn lane at the intersection on Williams Road. Your vehicle was stationary at the intersection for about 14 or 15 seconds while Mrs Wang was standing on the south-east corner. 7. On the appropriate light signal, Mrs Wang commenced walking north across the intersection within the marked pedestrian crosswalk. About one to one-and-a-half seconds after Mrs Wang commenced crossing, the Nissan Patrol driven by you commenced turning right at slow speed into Springfield Road. It continued turning slowly right whilst the traffic control signal was green for both turning vehicles and pedestrians. According to the witness in the car behind you, and from the view obtained of the collision from CCTV footage, you did not appear to slow down or brake. Your car impacted Mrs Wang eight seconds after she commenced crossing Springfield Road and six to seven seconds after you commenced turning right into Springfield Road. Mrs Wang was about two-thirds of the way across Springfield Road when she was hit by your car. 8. Mrs Wang died of her injuries two days later. 9. You told police at the scene that you did not see Mrs Wang waiting stationary at the red light as you turned into Springfield Road, or at all, before the collision. 10. In a record of interview conducted with the police, you stated: * conditions were clear and sunny; * you were not distracted by the car radio or phone; * you were paying attention and were not otherwise distracted; * you were familiar with the intersection and with the pedestrian crossing; * you had previously given way to pedestrians crossing at that intersection on other days; * you knew of the 'give way to peds' flashing light, but you did not notice it on this day; * you did not know where the pedestrian came from; * you were travelling at approximately 12 kilometres an hour when you turned into Springfield Road. 11. The police investigation was able to confirm each of the objective features you reported. In addition, your car was found to be in good mechanical order; there was no defect with the brake or other mechanisms that contributed to the impact. 12. I conclude the jury was satisfied that your driving was dangerous due to your prolonged inattention to keep a safe and proper lookout for the pedestrian at the crossing, in circumstances where you had an unimpeded view over an extended period. Moreover, the jury accepted that there was no other factor that would explain the impact occurring. As such, your driving constituted a serious departure from the level of care and attention required of a driver in the circumstances, and you failed to exercise proper management of your vehicle in a way that was dangerous to other road users.

1. I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability.
2. The objective gravity of the offence of dangerous driving causing death is first marked by the maximum penalty of 20 years' imprisonment, and then by the fact that Parliament has prescribed it as a Category 2 offence, calling for the imposition of a term of imprisonment unless I am satisfied that substantial and compelling circumstances that are exceptional and rare exist; or you prove on the balance of probabilities that at the time of the collision you had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces your moral culpability; or you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
3. I shall return to the exceptions to the presumption of imprisonment later in these remarks. The point to be made here, however, is that whilst imprisonment is ordinarily the sentence of last resort, the starting point of the sentencing consideration for this offence is the imposition of a period of imprisonment. So, the crime of dangerous driving causing death is a serious crime indeed.
4. As I have already said, the hallmark of what made your driving dangerous on this occasion was your prolonged inattention. You failed to see the pedestrian, Mrs Wang, as she stood at the lights, and you failed to see her at any point of the eight seconds she spent crossing the road on a pedestrian crossing at an intersection with which you were familiar. There was nothing to distract you or to impede your view of her, either as she stood at the light or once she commenced to cross the road. The inattention is emphasised by the slow speed at which you were travelling - you still did not see her. Objectively speaking, your offending seems inexplicable.

1. The victim impact statement of Shiuxing Liu, Mrs Wang's husband, is devastating. Mr Liu's statement tells of the grief, loneliness and isolation he has felt since his wife's death. Her death is made even more heartfelt by the fact that Mr Liu and Mrs Wang left their lives and careers in China to be closer to their only child, who died suddenly of illness in May 2021. Still grieving her loss, he lost his wife of 40 years and partner of 43 years in January 2022.
2. Mr Liu's loss is made all the more acute by the fact that he feels so isolated without the familiarity of his family, friends, surroundings, work, food, language and culture.
3. I certainly take Mr Liu's loss into account in assessing the seriousness of your offending.

1. Two issues were raised about the intersection, which must be considered in this context.
2. The first is that the intersection had been the subject of police concern, both in the past (that is, before your fatal collision) and afterwards. There had been another fatal collision at the same intersection after yours. VicRoads examined the intersection and made changes to the traffic light sequences, giving pedestrians an exclusive crossing light sequence, and changes were made to the roadway surface where the pedestrians cross to highlight the fact that there is a pedestrian crossing there.
3. I take into account the fact that police and VicRoads have long considered this a dangerous intersection. In doing so, however, this does not excuse you from liability.
4. Second, I brought to the parties' attention the existence of an engineering report commissioned by lawyers for the driver who pleaded guilty to dangerous driving causing death in relation to a fatal collision at the intersection, which occurred after your matter.
5. In that report, the engineer reconstructed the circumstances of the collision with the pedestrian. Given the time of year, winter, the difference in the light falling on the intersection and the fact that the pedestrian was walking from north to south, the engineer concluded that the pedestrian blended closely with the high bush foliage on the north side of the intersection as they crossed, making it more difficult for the driver of the vehicle to see them.
6. In that case, the prosecution conceded that substantial and compelling circumstances that are exceptional and rare existed under s5(2H) such as to justify not making an order for immediate imprisonment.
7. In your case, the collision occurred on a sunny day in summer, where the pedestrian walked from south to north. The circumstances were entirely different to those considered in the expert report. As you did not commission your own report, and as the circumstances were so different between the two incidents, you did not provide any basis to argue the existence of substantial and compelling circumstances under s5(2H)(e).
8. Even taking into account the considered dangerousness of the intersection, I nevertheless conclude that your offending is serious.
9. I shall return to your moral culpability after my consideration of the medical evidence adduced on your behalf.

1. You are presently 80 years old, being born in May 1945. At the time of the offending, you were 77 years old and you had been driving since the age of 17.
2. You were born in Sydney and attended secondary school to intermediate level. Upon leaving school, you worked with your father, who was a truck driver subcontracting to the New South Wales Egg Marketing Board.
3. You obtained your truck driver's licence at age 18 and worked as a truck driver for various companies. In 1974, you commenced your employment with the Transport Workers Union, and from 1977, you moved to Darwin, where you held the position of Secretary of the Northern Territory Transport Workers Union. Through this work, you appeared at the Arbitration Commission in various proceedings relating to local industries, and you served on a number of committees.
4. In 1996, you were employed by Netforce as an industrial relations advisor. You were last employed as a national business manager from 1999 until your retirement in 2015.
5. You met your wife, Kaye, in 1968, and you have been together since. Together, you have three children and a number of grandchildren. I note you have strong family support, with your wife and children attending court during the trial and the subsequent proceedings.
6. I was informed of your various health issues, which include obstructive sleep apnoea for which you require a CPAP machine, as well as regular specialist care. I note that Professor Cook did not consider that this was a possible contributing factor to your driving at the time of impact.
7. You have a range of relatively minor health issues consistent with your advancing age. It was submitted on your behalf that your health issues require regular treatment by specialists, which is not available in a custodial setting. I do not consider these issues determinative.

1. I received a number of references from your long-standing friends and neighbours. The references refer to you as a supportive friend who contributes positively to your local community. You are clearly family-oriented and a person your friends can rely on if they ever require a helping hand.
2. The references speak to their surprise at your offending, given your 'impeccable' driving record, your career in driving trucks and your experience in driving caravans.
3. In the time since the collision, you and your wife have moved into a retirement home.

1. Over the course of many months following the jury verdict, I allowed your lawyers to gather a range of medical opinions on your health.
2. The report of Dr Sandra Porter, psychologist, states that you reported symptoms consistent with major depressive disorder and post-traumatic stress disorder following the collision. Dr Porter states that you have been trying your best to process what occurred, that you have shown remorse and empathy towards Mrs Wang's family. Dr Porter concludes that a term of imprisonment would not allow you to manage your health, that is, physical and psychological, to the standard of care that you require. You fear a term of imprisonment for the adverse effect on the psychological and physical well-being of both you and your wife.
3. Dr Chien Ying Kao, geriatrician, assessed you in October 2024. The assessment included an MRI scan. Dr Kao noted an old right frontal infarct (obstruction) and cavitation, and other areas of chronic small vessel ischaemic changes. In other words, Dr Kao found evidence that you have suffered a stroke. Dr Kao compared the 2024 scan to a scan from November 2019 (which was not a dedicated brain scan) but found on comparison that: 'On the brain imaging captured in that study, there was no suggestion of this right frontal stroke'.
4. Your wife reported to Dr Kao that in 2020, she saw some changes in your cognition, particularly your sense of direction. You compensated by asking her for directions. Dr Kao could not diagnose dementia or mild cognitive impairment on his testing, or concerns with your peripheral vision and tracking. Nevertheless, Dr Kao considers that if you had suffered the stroke before January 2022, 'it is possible that this could have caused difficulties with motor skills and reaction time given that this is a region of the brain that controls executive function. This could also impact his ability to make judgement and contributes to inattentiveness.'
5. However, as I say, Dr Kao was unable to determine whether you had suffered the stroke before or after 12 January 2022.
6. Professor Mark Cook, the Director of Neurology at St Vincent's Hospital and Professor of Medicine at the University of Melbourne, provided reports dated 20 January 2025, 23 April 2025 and gave evidence before me on 1 August 2025.
7. Professor Cook reviewed all of the available medical reports and your medical history, and the CCTV footage of the collision. Like Dr Kao, Professor Cook took particular notice of the presence of damage caused to your brain by the stroke and the 'very extensive deep white matter disease throughout the cerebral hemispheres': see p. 5 Report 20 January 2025. Professor Cook remarked in evidence that this white matter disease takes a long time to accumulate.
8. Like Dr Kao, Professor Cook compared the October 2024 MRI image to the November 2019 MRI image and concluded that you suffered a stroke in the intervening period and not before 2019. In evidence, Professor Cook stated that he considered the white matter disease caused by vascular injury was chronic rather than acute in nature; as such, it developed over a long time and had to have been present at the time of the collision.
9. From his studies, Professor Cook was able to state in his report and evidence that elderly drivers are disproportionately involved in serious and fatal crashes relative to the distance that they drive. Research shows that up to 40 per cent of elderly drivers involved in collisions had previously undiagnosed health issues that compromised their driving abilities, including cerebral vascular disease (strokes and TIAs) and cerebral microvascular changes, affecting attention, decision-making and reaction times. Up to 20 per cent of individuals over 65 have suffered undiagnosed strokes, which deplete their cognitive functioning and compromise their driving.
10. Professor Cook reviewed the footage of your collision and remarked in evidence that it was (using the term that I borrowed) seemingly inexplicable.
11. Professor Cook stated:

I think it is most likely that Mr Elliott's unrecognised and extensive cerebral vascular disease impaired his ability to drive safely and was a significant contributory factor to the accident.

1. Mr Lavery, who appeared on your behalf at trial and on the plea, submitted that your moral culpability should be assessed as being at the lowest level for this offence:
2. You were not affected by drugs or alcohol. You were not speeding, using a mobile phone, or otherwise driving in a defective way.
3. There were defects in the characteristics of the intersection, which contributed to the collision.
4. There were potential environmental factors, such as shadows, which may have contributed to the collision; and
5. You were driving with a neurological impairment (of which you were unaware), which likely contributed to the collision.
6. It was submitted that on the basis of the evidence of Professor Cook, s5(2H)(c)(i) of the Sentencing Act is enlivened on the basis that you had impaired mental functioning causally linked to the commission of the offence, which substantially and materially reduces your moral culpability.
7. As I have referred to earlier, Mr Lavery also submitted that there are substantial and compelling circumstances pursuant to s5(2H)(e) that are exceptional and rare and justify not making an order under Division 2 of Part 3 of the Sentencing Act. Those circumstances, he submitted, include the factors that I have already outlined.
8. Mr Lavery also submitted that I could take into account the difficulties you would experience in a custodial environment and take into account your prior good character.
9. Mr Lavery ultimately submitted that a community correction order was the appropriate sentencing disposition in the circumstances.
10. Mr Albert, who appeared for the crown, submitted that the only appropriate sentence is a head sentence with a non-parole period.

1. As I have already said, the offence of dangerous driving causing death is a Category 2 offence. The Sentencing Act therefore requires that I must make an order for imprisonment (excluding an order for a combination sentence of imprisonment with a community corrections order) unless you establish on the balance of probabilities that at the time of the commission of the offence you had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces your culpability.
2. Impaired mental functioning includes a neurological impairment, including but not limited to dementia.
3. 'Substantial' may be variously defined as 'of considerable importance' or 'real and tangible rather than imaginary'. 'Materially' may be defined as 'to an important degree' or 'considerably'. (I refer to the Macquarie Dictionary for those definitions.)
4. The evidence of Professor Cook establishes that you currently have neurological impairments:
5. There is present evidence of stroke injury and white matter disease. White matter disease refers to the damage to the brain's nerve fibres, which exchange information and communicate between brain areas. White matter disease is caused by prolonged reduced vascular blood flow (which is known medically as ischemia).
6. While it is apparent that you did not show evidence of stroke injury in the MRI scan of November 2019, that scan was not brain-specific, and doctors were not investigating your cognitive functioning. As such, the presence of white matter disease, which Professor Cook opines started years ago, cannot be excluded.
7. There is anecdotal evidence from your wife to which I have referred, and a report by you to Professor Cook (see report January 2025, p8) of incidents in 2020 and 2021 respectively, from which it may be suspected, if not concluded, that you suffered the stroke in 2020 or 2021.
8. The white matter disease is chronic and not acute, meaning that it has been present for years. As I have said, it was perhaps, and in Professor Cook's opinion, very likely to have commenced before the MRI of November 2019. In any event, Professor Cook opines that it was present in January 2022.
9. Professor Cook gave evidence that on 12 January 2022, the white matter disease most likely impaired your ability to drive safely and was a significant contributing factor to the accident, that is, adversely affecting your judgement and attentiveness.
10. Although Professor Cook was challenged in cross-examination, I do not consider that the effect of cross-examination diminished the force of Professor Cook's evidence or opinion.
11. It is important to note that the prosecution asked for time to consider whether to engage another expert on this issue and ultimately decided against it.
12. In the end, I am satisfied that the defence has established on the balance of probabilities that at the time of the collision, you suffered impaired mental functioning in the form of a neurological impairment. I am satisfied that your neurological impairment substantially and materially contributed to the cause of the collision in accordance with the opinions, research and findings of Professor Cook.
13. Accordingly, for the exception being established under s5(2H)(c) of the Sentencing Act, I am not required to impose a period of imprisonment (excluding a combination sentence of imprisonment with a community corrections order) in accordance with s5(2H). I must therefore determine the appropriate penalty, which may include a term of imprisonment with a CCO, to impose upon you in this case.
14. In the circumstances, I am now able to have regard to your age, your physical and psychological state and the fact that you were a person previously of good character, with no prior convictions and no matters outstanding, and other factors.
15. I am satisfied that you are a person of advanced years and that you are now only in fair to reasonable health. Your cognitive functioning will continue to deteriorate. The law does not exclude elderly offenders from serving periods of imprisonment, nor does the law exclude elderly offenders with health issues from such a fate. However, in this case, there are other factors to take into account.
16. You had no prior convictions to the point of the jury verdict. You had a long, continuous and meaningful working life. It is apparent from your work that you knew, understood and valued road transport. You have been married for about 57 years, and you have a family that supported you in court each day.
17. Dr Porter considered that you were suffering shock, anxiety/depression and PTSD after the collision. She also stated that you had expressed remorse and empathy to Mrs Wang's family. Although you pleaded not guilty and the trial was vigorously defended on your behalf, I do not consider the expression of remorse and empathy to be inconsistent with the nature of the charge for the jury's task. In other words, I am satisfied that your expressions are heartfelt, and that your shock, depression and PTSD are very real.
18. There has been some considerable delay since the jury verdict, much of it related to allowing your lawyers to gather and call appropriate medical evidence and to provide the prosecution with time to determine if it wanted to call evidence. There was a further delay to ensure Mr Liu had the opportunity to participate in the sentence hearing.
19. I consider it is at this point, the point at which I decide the appropriate penalty to impose upon you, that I can take into account, to some small degree, the dangerousness of the intersection as observed by police and VicRoads, and the fact that the intersection has been upgraded in recent times.
20. I have no doubt that your prospects of rehabilitation (so far as I have to pronounce on them) remain undiminished.
21. The final factor in the mix for consideration is the tragic loss and pain felt by Mr Liu.
22. In the end, however, I am satisfied that the sentencing objectives can be met by imposing a non-custodial sentence. Moreover, I have decided that there is no utility in having you assessed for, or imposing a community corrections order. At your age and in your state of infirmity, such an order amounts to a disposition in name only. Quite frankly, Community Corrections does not need the burden of supervising you on an order, and there is no supervision to be done.
23. I have decided that the appropriate penalty is to place you on an adjourned undertaking with conviction for a period of three years. In that time, you must undertake to be of good behaviour and not to commit any offence. As a condition of the undertaking, I order you to pay the sum of $2000 to the court fund.
24. I further order that you are disqualified from holding a licence to drive for a period of 10 years. It is my intention that, practically speaking, you never drive again. You cannot be granted a licence without medical evidence and a court order. At 90 years of age, that will never happen again.
25. I note Mr Liu decided not to participate in the sentence hearing, but to him I again express my condolences and my best wishes for the future.

1. Accordingly - if you can stand, please, Mr Elliott - the sentence of the court is that you be placed on an undertaking with conviction to be of good behaviour for three years; that you pay the sum of $2,000 to the court fund.
2. Mr Elliott, before I can impose the order, I must have your agreement to such an order. Do you agree to be of good behaviour for a period of three years?
3. ACCUSED: Yes, Your Honour.
4. HIS HONOUR: Thank you. I order the sum of $2,000 to be paid to the court fund within the period of three months. I don't need your agreement to the period of disqualification. All right, thank you, with that, Mr Elliott, you are able to step forward from the dock. Thank you, Ms Rezsneki. Are there any other matters or any other orders ‑ ‑ ‑
5. MS REZSNEKI: Your Honour, the only - I understand that your associate just advised earlier that there are two summary charges that remain outstanding that were transferred from the Magistrates' Court. If your associate can just remind me what they are, I think, Your Honour, we can withdraw them.
6. ASSOCIATE: Careless driving and fail to give way.
7. MS REZSNEKI: Failure to give way and careless driving. Your Honour, they can be withdrawn.
8. HIS HONOUR: Thank you, I will mark those matters withdrawn.
9. MS REZSNEKI: Thank you, Your Honour.
10. HIS HONOUR: Are they the only matters ‑ ‑ ‑
11. MS REZSNEKI: Yes, I understand so.
12. HIS HONOUR: Thanks for your attendance today.
13. MS REZSNEKI: Thank you, Your Honour.
14. HIS HONOUR: Mr Lavery, any matters from your perspective ‑ ‑ ‑
15. MR LAVERY: No, Your Honour.
16. HIS HONOUR: Thank you.