DPP v Ferris [2024] VCC 1878

'Tired as hell, and driving to Geelong, then Torquay and I'm struggling already. I will have a power nap before I get to Lorne, as I can't risk driving through the twists and turns tired.'

1. You, in fact, did not have a power nap before Lorne or at any time. Rather, what you had recently revealed is that when you stopped at one point for delivery and pick-up, you used more amphetamines before heading back towards Melbourne and sadly coming upon Ms Middleton's car with her friend, Ms McQuinn in the passenger seat patiently waiting to turn right and head home.
2. It is clear that you drove while you were sleep-deprived and, importantly for these criminal proceedings, you well appreciated the risk that you would fall asleep while driving. Speaking with the expert neuropsychologist your lawyers engaged, Dr Treeby, you said in February of this year:

'I started at 5 am and had a couple of puffs of methylamphetamine in the morning. The last time I had ice that day was 1 pm to keep me going. I was on my way back from Lorne with a load of dirty linen and the accident happened at 5.30 pm. I just heard "Bang" and then saw red. I assume I fell asleep. It was one of those microsleeps.'

1. The prosecution case against you was put in this way, set out in the summary of the opening, paragraph 70. That is, you had a significant quantity of methylamphetamines in your system at the time of driving. You also had a dangerously inadequate amount of sleep in the days prior to the collision. The prosecution case of culpable driving is put on the basis of a combination of factors; fatigue, drug use and inattention which together establish gross negligence. The case is put on the basis that you drove when you were fatigued to such an extent that you knew or ought to have known there was appreciable risk of you falling asleep while driving or losing control of the truck. Gross negligence can be demonstrated by the fact that you drove whilst fatigued, when you had recently consumed methylamphetamines and you failed to have sufficient attention on the road, such that you did not see the red car in front of you. I add to that, of course, the red car was there to be seen and could be seen by other drivers who were behind you and Mr Brown in front of you.
2. My task in determining the just and appropriate sentence is to assess the gravity of your crimes, your moral culpability as well as consider factors such as the impact on the victims, your personal circumstances including your past crimes and the factors raised in mitigation including your genuine remorse and what can be done to facilitate rehabilitation. All these matters and considerations will allow for proper weight to be attributed to the sentencing purposes of denunciation of what you did, punishment, deterrence to you and to others, protection of the community and the facilitation of rehabilitation.
3. I will turn first to the victim impact statements. What must always be taken into account in sentencing is the impact of a crime on victims. That requirement is of particular importance in these tragic and avoidable death and serious injury cases arising from gross negligence in driving.
4. I have listened to, and I have read the raw and heartbroken words of Mr Neil McQuinn, husband of Dianne McQuinn and also the words of Ms Middleton herself in her victim impact statement. Mr McQuinn commenced with sentiments, that I know from hearing many victim impact statements, and that is, how painful it is not to have been able to say goodbye to a loved one killed on the roads. He wrote:

'I doubt we will ever recover from the senseless act that caused the death of my wife and the mother of our two boys. My biggest regret is not being able to say goodbye. There are so many things I wanted to say. This has haunted me every day.'

1. This tragic loss came at a time when he and his wife were on the verge of a new phase of their lives, being together in retirement and travelling. Mr McQuinn wrote:

'I retired in January 2022. When this tragic accident occurred, we were three weeks away from an overseas trip that we were taking before Dianne was to retire. We had so many plans of what we wanted to do in the future which are now a distant memory.'

'The trip was planned for 2020, then 2021, all delayed by COVID and finally planned for 2022.'

1. The close and loving bond between Mr McQuinn and his wife was apparent and expressed in compelling words. He wrote:

'Dianne was the love of my life. Initially, we lived together or she moved in with me, then we lived together for 11 years and after that we were married for over 29 years. We were rarely apart except for work and other family commitments. We designed and built our house in 1991, creating our lifelong home in Moores Road. We are all reminded of the tragic accident constantly as we drive through the accident intersection daily.'

'There is not a day that goes by without me wishing Dianne was here and me questioning what her thoughts would be. I go to the cemetery at least three times a week to see her.'

'The first six months I cried regularly at night when I was alone. He says he sought out psychological assistance but he felt that he should be able to cope on his own. He was able to explain things to his friends but once they asked how I was, emotions took over and I could not stop crying.'

1. He spoke about what his wife brought to the family. She was the great communicator, she was able to keep everyone in contact, keep them in touch. She took pride in buying presents wrapping them in fancy ways, something that Mr McQuinn feels unable to replicate. He speaks about his wife raising their two boys, now men. Most particularly, he speaks about his wife's capacity to communicate with and support their youngest son. The younger son struggles with his mother not being there. Mr McQuinn finds filling this gap particularly hard.
2. Ms Middleton's victim impact statement expressed the life-changing impact on her. She writes that physically her life has changed enormously with her eyesight not returning to normal, her balance being uncertain, her swallowing difficult and not being able to go up or down stairs. She can no longer work. Her day-to-day activities are much reduced. As to her emotions, she writes that there is frustration that she:

"cannot do what I did previously - anger that his actions changed all of our lives and sadness that his actions changed my life, my family's life and Dianne's family"

She wonders what her future health will hold and writes:

'It changed everybody's life as in an instant. There is irreversible damage to everybody involved.'

1. A further victim impact statement was received at the plea. It came from Mr Brown who was the driver of the Ute heading south that could not avoid hitting Ms Middleton's car. He works at sea and your counsel sensibly had no difficulty with the form of the document tendered. He wrote that this day, when he was one kilometre from his home, changed his life forever. He speaks in contrast at having been that day surfing with his best friend and feeling on top of the world, but then his world all of a sudden, was thrown into a world of darkness when your truck hit the vehicle in front and forced it into his path. He says what injuries he had, some you can see, meaning physical and some you can't, meaning no doubt psychological. He says:

'Some have healed but some haven't and will never. The lifelong trauma of that day will never heal.'

1. He says he feels, or carries guilt that his car impacted the lives of so many through your actions and he still struggles with that every day. It affects him and his family and will for the rest of their lives.
2. As to the gravity of these offences and your moral culpability, as I have already said, this was a completely avoidable tragedy. All road users need to adhere to straightforward standards of slowing and avoiding cars turning right on single lane highways. In this case, the view of the Hyundai turning right into Moores Road was clear and unimpeded. There was nothing in the road infrastructure, or the view of you as the approaching driver, or the elevations of the road, that created any impediment or difficulty for you seeing, and then avoiding, Ms Middleton's car as it negotiated the right-hand turn into Moores Road.
3. There was adequate room to the left-hand side of Ms Middleton's car, that is the paved shoulder and the left-hand side of the lane. In any event, you needed to slow to ensure that you avoided colliding with the car and pushing it into the oncoming traffic. Manoeuvres around the car, even by trucks, in my view, were straightforward and easily achievable by any reasonable driver who was alert and not drug affected. You hit the small car because your driving was grossly below the standard expected of reasonable drivers. The objective gravity was at a very serious level. The factors that go to establish this level of gravity and your high moral culpability are the following:
   1. You were acutely fatigued and most importantly you knew that. Text messages you sent at midday, that I have already read out just now, established this with, as I have said, haunting clarity. You were almost predicting the utter tragedy that unfolded;
   2. Text messages over the preceding 10 days and into the month of April establish that there was a theme that you were deeply fatigued when you drove and, you knew that you were experiencing significant impact on your capacity such as blurred or double vision. Notwithstanding this knowledge, you chose to drive on until the risk and inevitable grave consequences materialised at the Moores Road intersection on 11 May 2022. What was revealed on your phone were the following text messages sent to associates.
4. You wrote on 6 May:

'This has been the worst week for me. First, I had blurred driving.'

'Sorry, I was driving with double of everything.'

'How many dexies would I need to keep me awake for 12 hours. I'm driving blurry with double vision to Lorne with twists and turns and cliffs. If I fuck up, I'm dead within seconds.'

'It always starts out good then it turns into a long day, 14 hours yesterday and 14 hours tonight.'

'Do you ever sleep?' An answer: 'Yeah, mostly while I'm driving lol. Crazy.'

'Unfortunately one day my luck will run out.' Response: 'Let's hope not.' Your response: 'It's only a matter of time.'

'I'm so tired, if I make it back to work it will be a miracle. I'm more worried about making it back to work. I see everything in double and I keep falling asleep.'

1. At this point I refer to submissions made by your counsel and a tendered document entitled, 'Can say statement' made by you in July of 2024. In that document you emphasised your subjective sense that your employers wanted you to do your linen runs and that your employment may be at peril if you did not. The appropriate police authorities have investigated this issue and found that there was no substance in seeing your employer to be in some way implicated. Your employers did know of your financial problems and they generously helped you in paying your car registration and the like. Your counsel acknowledged that your own decisions were the critical ones; to drive and drive in the state of fatigue that you were in, and then to take methylamphetamines at the beginning and during the day. Your counsel's submissions were that these decisions were very poor ones but your compromised intellect played a role in that regard. I will refer again to that matter shortly.
2. Your counsel did not seek or submit that a discount on your sentence was appropriate due to the public policy of rewarding, and thus encouraging offenders to cooperate with authorities. This was an important matter in another case of Singh[1] arising from the death of four police officers as a consequence of a drugged and fatigued driver losing control of his truck. Nonetheless, I have taken into account in a limited way what you said in the document tendered.
3. I return back to the list of factors that impacts on gravity;
   1. Your use of methylamphetamines in the morning before driving and then during the day while driving and at such high levels dramatically increased your risk to others. With those levels of methylamphetamines in your system, you should not have been driving at all.

It seems clear now from what you have said in recent times to the neuropsychologist that you used methylamphetamines in the morning and, appallingly, just hours before this collision to combat your overpowering fatigue. You did not have a power nap, rather you took methylamphetamines. It only has to be said, for your high moral culpability to be exposed. This aspect of your driving, that is drug taking as you drove as it were, is most concerning.

d) The fact that you were a professional driver with a large vehicle fully laden adds to the gravity. Your responsibility was more elevated and thus your significant falling short of the base level of responsibility for a road user, elevates the gravity and moral culpability of this offending.

1. The assessment of the gravity of your offending requires a focus on the risks your driving created; also given the element in the offence is gross negligence, the gravity is to be assessed by how severe the gross negligence was and with respect to the negligently causing serious injury to Ms Middleton, the level of serious injury caused also impacts on an assessment of gravity.
2. As to that last matter, I have of late been assisted by more recent reports from a variety of clinicians assisting Ms Middleton's recovery. What is plain is there was a brain injury that has slowly recovered but Ms Middleton is not fully returned to the person that she was before you caused her injuries. As to her other physical injuries, they were significant, with multiple spinal fractures and displacements, multiple rib fractures, pelvis fractures, collarbone fracture, significant shoulder injury, arm fractures, liver injury, concussion and post accident amnesia for a lengthy period. There is enduring double vision and swallowing issues and there was incontinence. What is clear is that the injuries suffered by Ms Middleton are significant within the broad domain of serious injury. They are not, as in some motor vehicle accidents where the serious injuries are properly described as being catastrophic, but they are of a dimension that has significantly, adversely affected Ms Middleton's life and the consequences for her are enduring.
3. The final aspect of the assessment of gravity of the offending is the impact on the victims. As I have already outlined, the adverse impact on Mr McQuinn, his sons, and Ms Middleton has been profound, and also Mr Brown. They will never be the same. It serves to make crystal clear the sanctity of human life, which must be kept to the forefront in assessing gravity and imposing punishment in these death on the road cases.
4. The conclusion I have come to is that the gravity of these crimes is pronounced. This issue of determining the level of the objective gravity of your crimes is a fundamental requirement in sentencing, indeed for any crime. However, because the crime of culpable driving is a standard sentence crime there are other requirements with respect to assessing the level of objective seriousness that are set out in the Sentencing Act 1991 for standard sentencing offences. What is set out in the Sentencing Act is the following:
5. What is set out in the Sentencing Act is the following - this is at s5A(1)(b)[2] - the period specified in the standard sentence for the offence, taking into account only the objective factors affecting the relevant seriousness of that offence, is in the middle of the range of seriousness. It goes on to indicate that:

'Objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to a particular offender and wholly by reference to the nature of the offending.'[3]

1. In my view, considering all the objective factors that I have outlined, your culpable driving causing the death of Ms McQuinn is beyond or above the middle range of seriousness. I refer to, without repeating all the factors that I have set out in my assessment as to the gravity of your crimes.
2. On this issue of the standard sentence, the finding and the level of seriousness, the prosecution argued your crime is considerably above the middle range. Your counsel submitted it was below, while conceding the gravity was still serious.
3. The standard sentence of eight years is one legislative guidepost along with the maximum term for culpable driving of 20 years imprisonment.[4] The methodology that I have mentioned of instinctive synthesis is still the guide for standard sentencing crimes. I have followed the Court of Appeal's guidance with respect to standard sentencing as set out in Brown v The Queen.[5]
4. Separately, I consider your moral culpability to be very high. This was dreadful conduct, given that you well appreciated that you were not fit to drive and, your deliberate drug taking to supposedly ameliorate simply and obviously made things so much worse. Your moral culpability is also elevated because you have a poor driving history over many years with regular infringements for speeding. You have a significant relevant prior conviction for dangerous driving while being pursued by police committed some years before in 2016. I have read and understand the broad context of that offending. The community corrections order that you were placed on for that offending was breached.
5. Before turning to the expert reports tendered on your behalf and in particular the relevance for sentencing of you chromosomal illness, that is, that you have an extra Y chromosome, an illness known as Jacobs Syndrome. Before moving to that matter, I will briefly deal with some less complex matters.
6. Your plea of guilty is of utilitarian value, but it was a late plea coming after the sentence indication and as the trial was just weeks away. You must and will receive a benefit and your sentence will be less because of your plea of guilty. More importantly, I accept that you are genuinely remorseful for the great pain and distress you have caused to the victims and their family. Your brother's letter to the court explains how you have not taken responsibility for your chaotic drug-taking lifestyle all your adult life until now. You had, in his eyes, for once taken responsibility appropriately for the pain you have caused. That is a refreshing change. Recently, your sister wrote a letter tendered at the plea. In that she said:

'I have spoken to Peter many times and I know he is very remorseful for the things that occurred that day and if he could fix it, he would.'

'He's expressed remorse from day one, and told me he wished it was him instead of Dianne that passed away. The guilt has never left him nor will it ever.'

1. There were other references to your remorse in your sister's helpful letter.
2. Your upbringing was said to be not easy for you and I take into account all that was set out in the psychological report of Ms Fahkri and that of Dr Treeby. Your elder siblings have done well. You constantly struggled at school and in holding down regular employment. You have had several relationships and a number of children, now adults. You have had a long term drug addiction that has significantly impacted your life, as it did so dreadfully in these crimes.
3. You are now 48, you were 45, about to turn 46 at the time of these offences. As I have mentioned, you have an extra Y chromosome, as I said, known as Jacobs Syndrome. This congenital and enduring syndrome diminishes your cognitive capacity. A recent MRI arranged while you were in custody reveals mild vascular caused cognitive impairment. You have now a low average general intelligence function with levels at or closer to borderline in some domains. Your literacy and numeracy is at an extremely low level. You have a heightened risk of developing vascular dementia.
4. Your mental health over your adult life has been troubled with depression, suicidal ideation and suicide attempts which have seen you treated in the public mental health system. The relevance to sentencing of your chromosomal disability and your mental health were said by your counsel to lower your moral culpability. Dr Treeby concluded your chromosomal issues caused brain injury or impairment that impacted on your capacity for sound judgement. Dr Treeby notes:

'This was one of the contributing factors along with fatigue and drug-use.'

1. This conglomeration of factors and their interaction with each other makes the issue of whether your impaired mental functioning was causally connected to your crimes, a most difficult issue.
2. The prosecution contended in the end there ought be a conclusion that none or very slight impact on your moral culpability should be found. Your counsel argued for a substantial reduction saying that it was warranted in this case.
3. I am of the view that any causal link between your impaired mental functioning arising from Jacobs Syndrome and/or your depression or other behavioural issues, ought be seen as slight. In my overall assessment, the reduction in your moral culpability from its very high level is slight to very slight.
4. Your counsel argued that the weight to be given to general deterrence ought be, to a small degree, moderated. The prosecution disagreed. I am not persuaded to the required standard that there ought be any moderation or at best for you, only very slight moderation of the very important and weighty sentencing purpose of general deterrence.
5. General deterrence is a powerful sentencing consideration. Truck drivers must understand that if they drive fatigued or drug affected or worse, both, the penalty for causing death and serious injuries on the roads will be very stern punishment involving years of imprisonment.
6. Your time in prison is and will not be easy, though the medical attention given to your chromosomal disability in recent times has aided in understanding your slow deterioration and likely progress. Prison will be harder for you because of your illness and its impact on your cognitive capacity in particular over time. I have factored that into the overall equation.
7. In the end, as I have outlined, there are many factors that make this a very bad example of these serious crimes involving the taking of the life of a

much-loved vibrant woman with so much more life to live with her beloved husband. Also, the serious injuries to Ms Middleton has reduced significantly, her enjoyment of life, the things she loved doing in her small farm in Moores Road, Bellbrae. It seems the memories of what her life was and what happened to her and what the future holds are hard for her. The matters in mitigation have been given proper weight but in truth, there are some, but not many, and none that are particularly compelling. 8. I have factored in the delay in this case. It has taken too long and caused stress for you and everyone involved. 9. Denunciation of your appalling crimes and deterrence to you and especially to others and to a degree protection of the community must be given prominence. Your rehabilitation, while not overlooked, must yield to the punitive purposes given the seriousness of what you did. 10. Thus, I will allow for the potential of parole but whether and when you are released on parole, is for others. For my own part, I say that it would be in the benefit to you of course, but also the community if you were released on parole so that you are under supervision and have support when you are released after a significant period in custody. 11. There must be some cumulation for the two crimes as there are different victims, but it must be, in my view, measured. 12. Doing the best I can for the crime of culpable driving, you are sentenced to a term of imprisonment of 10 years and six months. 13. For the crime of negligently causing serious injury you are sentenced to a term of imprisonment of three years and six months. 14. I order that 14 months of the sentence on Charge 2, the negligently causing serious injury, be cumulative upon the sentence imposed on the culpable driving. This gives a total effective sentence of 11 years and eight months - not 10 - 11 years and eight months. The non-parole period that I have fixed is eight years and four months. 15. Had you pleaded not guilty to these offences I would have imposed a sentence of 13 years with a non-parole period of 10. Your time in prison has been since 22 May 2022. However, you have undergone other sentences during that time. Pre-sentence detention has been carefully calculated at 873 days. This figure having been reckoned, I now declare that it is part of the sentence that I have just announced. As I say, this is too long and has caused stresses for everyone. 16. I must make an order against your licence. I considered whether to adopt an approach of ordering disqualification and cancellation of licences from a period upon whenever it is you are released. I decided not to take that course but rather to impose a lengthy period of licence disqualification of 3 years and 6 months to commence today. That is in my view, a more straightforward approach and as was submitted by your counsel, you will not be able to be re-licensed but would have to go before a Magistrate and make a case for it. I make a declaration or a finding that drugs contributed to these crimes. 17. I just want to check Mr Moore and Mr Barreiro, if those figures are now correct, and there is a summary charge of driving under the influence as I understand it. That is proven and there is no further order. 18. MR MOORE: Yes, Your Honour. 19. HIS HONOUR: Thank you. I thank counsel for their considerable assistance and that of everyone involved, the informant and those that showed significant dignity throughout, including you Mr Ferris, but you now have to head downstairs. Your lawyer will be able to come and see you in due course. Thank you.

[1] R v Singh (2021) VSC 182.

[2] Sentencing Act 1991.

[4] Crimes Act 1958 - s.318(1).

[5] [2021] VSCA 204.